BC DISEASE NEWS

A WEEKLY DISEASE UPDATE

1 June 2018 Edition 232

PAGE | 2

CONTENTS

PAGE 2

Welcome

PAGE 3

Collections of NIHL and

Asbestos-Related Articles

Equitable Contribution in a

Mesothelioma Claim: RSA

Insurance PLC v Assicurazoni

Generali SpA (2018)

PAGE 5

Is ‘Fear’ an Actionable Injury?

Kimathi & Ors v The Foreign

and Commonwealth Office

[2018] EWHC 1305 (QB)

PAGE 7

Does QOCS Apply When Only

Part of a Claim is for Personal

Injuries? Brown v The

Commissioner of Police for the

Metropolis & Another (2017)

PAGE 8

Fundamental Dishonesty – 2

Recent Judgments: Molodi v

Cambridge Vibration

Maintenance Service & Anor

[2018] EWHC 1288 (QB) and

Richards & Anor v Morris [2018]

EWHC 1289 (QB)

PAGE 9

Liability When Risk Assessments

Are Not Heeded: CC v Leeds

County Council [2018] EWHC

1312 (QB)

PAGE 10

Disability in Military Personnel

With Mental and Physical

Disorders

Welcome

Welcome to this week’s edition of BC Disease News.

In this week’s edition, we provide links to our up-to-date NIHL and Asbestos

Collection of Articles Guides, featuring related BCDN content.

We also examine several recent case authorities, two of which regarded

inventive interpretation, in attempts to engage desirable limitation periods.

In RSA Insurance PLC v Assicurazoni Generali SpA (2018), the defendant insurer

argued that proceedings for equitable contribution of settlement, served by the

claimant insurer, fell under the statutory contribution regime and were therefore

statute barred by the relevant 2 year limitation period (s.10).

In another decision, Kimathi & Ors v The Foreign and Commonwealth Office

[2018] EWHC 1305 (QB), the claimants argued that ‘fear’ could amount to an

actionable injury, which would allow them to benefit from s.33 discretion,

exclusively afforded to actions in respect of personal injuries (s.11).

We also review a recent study, which sought to identify a relationship between

disability in military personnel and personnel with physical and mental disorders.

Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.

As always, warmest regards to all.

SUBJECTS

NIHL and Asbestos Articles – Equitable Contribution Claims and Limitation Periods

– ‘Fear’ and Actionable Personal Injuries – QOCS and Fractional Personal Injury

Claims – Fundamental Dishonesty – Risk Assessments, Breach of Duty and

Causation – Military Disabilities and Mental and Physical Disorders.

PAGE | 3

Collections of NIHL and

Asbestos-Related

Articles

BC Disease News has covered a wide

range of issues that arise in both NIHL and

asbestos-related claims, over the past 5

years.

Every article encompassing these two

topics (up to edition 225) has been collated

into two separate Guides and each

collection has three volumes (1 volume per

100 BC Disease News Editions).

If you wish to access these resources,

please click on the links below:

1. Asbestos Claims Collection of

Articles

Volume 1 (Editions 1 –

100)

Volume 2 (Editions 101 –

200)

Volume 3 (Edition 201

onwards)

2. NIHL Claims Collection of Articles

Volume 1 (Editions 1 –

100)

Volume 2 (Editions 101 –

200)

Volume 3 (Edition 201

onwards)

Equitable Contribution

in a Mesothelioma

Claim: RSA Insurance

PLC v Assicurazoni

Generali SpA (2018)

Approved judgment has been handed

down in the case of RSA Insurance PLC v

Assicurazoni Generali SpA, in which the

defendant argued that an insurer’s claim

for equitable contribution of settlement, in

a mesothelioma claim, was statute-barred.

An insured painting and decorating

company employed an individual, Mr

Merritt, from 1975 to 1986. He subsequently developed malignant mesothelioma. Medical

evidence attributed the onset of disease to asbestos exposure in the course of employment

with the insured company. The company was later dissolved, in 1996.

The Letter of Claim was sent to the claimant, on 17 March 2010, asserting that asbestos

exposure had occurred throughout the 10 year employment period. The schedule of loss,

served in 2010, claimed special damages of around £110,000

The claimant had only provided EL insurance cover for the last 6 months of the

mesothelioma victim’s employment. However, it was obligated, under s.3 of the

Compensation Act 2006, to indemnify the company for the claim in its entirety,

notwithstanding the fact that there had been other EL insurance cover during the relevant

employment period.

The premise of the 2006 Act provision was to implement the House of Lords ruling of Fairchild

v Glenhaven Funeral Services Ltd [2002] UKHL 22, by which employers are liable for 100%

of losses in asbestos-related case law.

An offer to settle was accepted by Mr Merritt on 17 January 2011 for a figure of around

£173,750 (inclusive of damages and costs). This was broken down, as follows:

£124,250 to Mr Merritt;

£23,700 to the Compensation Recovery Unit; and

£25,800 in legal costs.

The claimant later conducted ELTO searches, which were not available at the date of

settlement. These revealed that Aviva provided the company with insurance cover from

October 1975 to June 1979, while the defendant provided insurance cover from April 1981

to March 1983.

It therefore sought proportionate contribution of settlement from the two other identified

insurers, on a Fairchild basis. The claimant derived that it had an equitable right to

contribution. It is worth noting that this was not a typical contribution claim for so-called

Double insurance, wherein two insurers provided cover for the same insured for same

relevant risk over the same time period and liability would be apportioned equally among

insurers.

Calculated contributions, which excluded employment periods with no identified insurer,

equated to:

Aviva – 60% of the total settlement.

Generali – 32% of the total settlement.

RSA – 8% of the total settlement.

Aviva agreed to pay the calculated contribution. The defendant, on the other hand,

refused. As such, the claimant commenced proceedings against the defendant for an

equitable contribution of settlement, or such sum as the court considered just and equitable.

The defendant argued that an entitlement to contribution is afforded by s.1(1) of the Civil

Liability (Contribution) Act 1978.

Further, the right to a contribution, for the purposes of the 1978 Act, ‘does not create new

rights of contribution but simply regulates existing rights of contribution’.

PAGE | 4

Section 7(3) of the 1978 Act states that the entitlement to recover contribution ‘supersedes

any right, other than an express contractual right, to recover a contribution (as distinct from

an indemnity) otherwise than under this Act in corresponding circumstances ...’

As such, the defendant submitted, as follows:

‘... if there was an equitable right to recover a contribution prior to the 1978 Act coming into

force, then such a right is a right to recover a contribution “in corresponding circumstances”

and in consequence any such right is replaced by the right to pursue a claim under Section

1(1) the 1978 Act’.

Therefore, the defendant contended that the claim for contribution, issued on 13 January

2017, was statute barred under s.10(1) of the Limitation Act 1980. If this interpretation of the

1978 Act was accepted by the court, the 2 year limitation period for the recovery of an

equitable contribution would have expired.

In the alternative, if its limitation defence were to fail, the defendant argued that the

claimant’s settlement sum should be put to the test of reasonableness.

The claimant, by contrast, submitted that the wording of s.6 of the 1978 Act infers that the

target of statutory contribution claims is ‘a person who is, or would be obliged to compensate

the original victim’.

However, it argued ‘rather that Generali is liable to contribute in equity towards the sum that

RSA has paid to Mr Merritt, pursuant to the indemnity that RSA gave to the Company’.

On this basis, the claimant’s action did not fall within s.1(1) of the 1978 Act. As a result, s.7(3)

does not bring all contribution claims within the statutory regime.

The Limitation Issue – Debt or Damages

Claimant and defendant counsel, having interpreted the Law Commission report on the

purpose of the Civil Liability (Contribution) Act 1978, came to an agreement that if the

equitable contribution claim was a claim sounding in debt, then it was not covered by s.1(1)

of the Act. This was the decision reached in the case of Hampton v Minns [2002] 1 WLR 1. By

contrast, if the equitable contribution claim was a claim sounding in damages, then it was

covered by s.1(1) of the Act and therefore subject to a 2 year limitation period.

One of the main reasons given by the Law Commission for not recommending a change to

the rights of contribution sounding in debt was that there was little evidence of injustice being

caused. In contribution claims sounding in damages, there was sufficient evidence.

In the case of IEG v Zurich Insurance [2015] UKSC 33, discussed in BC Disease News (here),

the identified insurer was on risk for 6 out of 27 years of asbestos exposure, which resulted in

the claimant’s mesothelioma diagnosis.

Was IEG’s contribution limited to its proportion of cover?

This case was subject to Guernsey’s jurisdiction. As a result, 100% joint and several liability,

under the Compensation Act 2006, did not apply. The Supreme Court Justices did, however,

provide obiter commentary on what the

likely decision would have been, had the

case been heard in the UK.

Lord Mance, who enjoyed majority support

for his speech, was of the mind that the

1978 Act did not apply:

‘It suffices to say that, if insurance contract

liabilities are viewed as sounding in

damages, it appears somewhat surprising if

the 1978 Act could operate as an

alternative statutory remedy with different

effect in a case of true double insurance in

respect of post – commencement

liabilities’.

Lord Sumption, on the other hand, opined

that the 1978 Act did apply:

‘The class of persons “liable in respect of

any damage suffered by another” may

include those liable in contract, and there

is no reason to limit it to those who have

themselves caused the damage, as

opposed to those who have assumed a

contractual lability in respect of it … on the

footing that (contrary to my opinion) the law

treats each insurer as liable for the whole

loss in each period of insurance, then it

must necessarily have been the same

damage … It would require some

considerable development of traditional

concepts of double insurance to

accommodate a situation like the present

one …’

He argued that a ‘contract of indemnity

gives rise to an action for unliquidated [(to

be proved)] damages, arising from the

failure of the indemnifier to prevent the

indemnified person from suffering

damage’.

HHJ Rawlinson made it clear that his

decision did not involve ‘choosing between

the speeches of Lord Mance and Lord

Sumption in IEG’, as they were obiter

comments, providing ‘little detail as to the

reasons why they held the views that they

did’.

In reaching his decision, the judge referred

to the cases cited in Goff & Jones – The Law

of Unjust Enrichment (9th Edition) and Lord

PAGE | 5

Goff in Firma C-Trade SA v Newcastle

Protection and Indemnity Association

[1991] 2 AC 1, all of which made it clear

that liability of insurers to indemnify the

insured sounds in unliquidated damages

(Damages Indemnity Liability) rather than in

debt.

Within these cited sources, it was

highlighted that ‘“damages” is used in an

unusual sense that should not be taken

literally because the primary contractual

promise is that the insured shall enjoy “the

right to indemnity by payment of money”’

Claimant counsel argued that Lord Goff’s

judgment was inconsistent with the House of

Lords in Bradley v Eagle Star Insurance Co

Ltd [1989] AC, in that:

‘… until a liability on the part of the

indemnified is established by judgment,

arbitration award or agreement, no legal

obligation falls on the indemnifier … at the

moment that the legal obligation falls on

the indemnifier, the amount of the liability is

ascertained and ought therefore to be

properly regarded as a debt liability …’

In spite of this anomaly, at paragraph 114,

HHJ Rawlinson ruled in favour of the ‘long

line of cases which have decided or

confirmed that the liability arising under an

insurance contract of indemnity is a

Damages Indemnity Liability’.

As such, the judge deemed that the

equitable contribution claim was within the

remit of the 1978 Act and was therefore

statute barred.

Even though it was not necessary to do so,

HHJ Rawlinson briefly rejected the

defendant’s 2nd

limb of defence, namely

that the settlement be put to the test of

reasonableness. The defendant stated that

the level of contribution sought could be

reduced to account for the insurer’s failure

to seek contributions from others.

The judge, however, argued that the ‘broad

equitable approach’ taken in Fairchild was

based on ‘natural justice’ and maintained

that claims should be assessed on a time

on risk basis. Time on risk contribution was

not, according to HHJ Rawlinson

contemplated as a ‘wholesale departure

from the normal rule that contribution

should be made equally’. If it was, there

would be great uncertainty, increasing

costs and time taken to settle rights of

contribution between insurers.

Full text judgment can be accessed here.

Is ‘Fear’ an Actionable

Injury? Kimathi & Ors v

The Foreign and

Commonwealth Office

[2018] EWHC 1305 (QB)

In the recent High Court decision of Kimathi

& Ors v The Foreign and Commonwealth

Office [2018] EWHC 1305 (QB), the

claimants attempted to extend the

definition of an actionable injury. In doing

so, they sought to compel the court to

exercise its ambit of discretion and exclude

the 3 year limitation period, pursuant to s.33

of the Limitation Act 1980.

The claimants, in ongoing Kenyan

Emergency Group Litigation proceedings,

alleged that they had been detained in

Kenyan villages, or detention camps, and

the threat of force compelled them to

remain and also to carry out labour. They

argued that the defendant had been

negligent, causing them to suffer ‘fear’ for a

period of 5 years.

Counsel for the claimants cited Supreme

Court and House of Lords judgments, in an

effort to consolidate their case that ‘fear’

amounted to personal injury.

Firstly, Mr Justice Stewart considered Hicks v

Chief Constable of the South Yorkshire

Police [1992] 2 All ER 65, in which Lord

Bridge stated:

‘It is perfectly clear that fear by itself, of

whatever degree, is a normal human

emotion for which no damages can be

awarded ... It follows that fear of impending

death felt by the victim of a fatal injury

before that injury is inflicted cannot by itself

give rise to a cause of action ...’

Stewart J then cited Rothwell v Chemical

and Insulating Co Ltd [2007] UKHL 39, in

which the claimant argued that pleural

plaques had caused ‘anxiety’.

Lord Hope stated that there could be ‘... no

cause of action because the pleural

plaques in themselves do not give rise to

any harmful physical effects which can be

said to constitute damage, and because of

the absence of a direct causative link

between them and the risks and the anxiety

which, on their own, are not actionable…"

Lord Scott cited further authorities in

Rothwell:

‘... In Page v Smith (1995)…, a case about

a psychiatric illness caused by a motorcar

accident…, Lord Lloyd of Berwick said that

"personal injuries include any disease and

any impairment of a person's physical or

mental condition". In Cartledge v E Jopling

& Sons Ltd (1963)… this House held that a

physical condition caused by a negligent

act or omission had to reach a certain

threshold "beyond the minimal" in order for

it to constitute an injury for which damages

in tort could be claimed’.

He also cited ‘... Lord Wensleydale in Lynch

v Knight (1861)… said that "mental pain or

anxiety the law cannot value, and does not

pretend to redress, when the unlawful act

contained of course is that alone ... where

a material damage occurs, and is

connected with (the mental pain or

anxiety), it is impossible a jury, in estimating

it (i.e. the material damage), should

altogether overlook the feelings of the party

interested." So, anxiety simpliciter cannot

constitute the damage necessary to

complete the tortious cause of action; but

if there is some such damage the fact of the

anxiety can enhance the amount of

damages recoverable’.

Stewart J then went on to discuss the recent

decision of Dryden v Johnson Matthey

[2018] UKSC 18, which was distinguished

from Rothwell. In Dryden, the Supreme

Court Justices considered whether platinum

PAGE | 6

salt sensitisation constituted an actionable injury.

Lady Black, giving judgment, said that ‘the terms "physical injury" and "personal injury" tend to be used interchangeably in the authorities

... and this is reflected in this judgment, there being no psychiatric injury to complicate the matters’.

Discussing the threshold for actionable injury, she went on to say that:

‘The physiological changes to the Claimants' bodies may not be as obviously harmful as, say loss of a limb, or asthma

or dermatitis, but harmful they undoubtedly are’.

On reflection of the case law on actionable injury, Stewart J applied the law to the facts. Does ‘fear’ amount to a cause of action in a

personal injury claim? At paragraph 24, the judge summarised the claimant’s submissions, which appeared to have been influenced by

Dryden:

‘The Claimants say that fear is not symptomless or hidden. The Claimants felt fear and it was intended that they should

do so in order to secure compliance with orders. Fear also provokes physical change albeit transitory and there is an

identifiable physiological effect: the release of adrenaline, an increase in blood pressure and an increase in heart

rate. Once the threat ceases, physiological markers return to normal, but the changes are felt by the person

concerned. Fear, they say, is unpleasant and made the Claimants appreciably worse off and compelled behaviour

which would otherwise be different. It also results, or can result, in impairment of normal daily function and is not

negligible’.

However, Stewart J observed, at paragraph 25:

‘None of these submissions, in my judgment, changes the position clearly founded in the authorities that anything short

of a recognised psychiatric condition cannot amount to a personal injury’.

Claimant counsel submitted that the bar is set low for actionable physical injury and there was no reason to differentiate psychological

symptoms. It is therefore worth noting additional comments, raised by Stewart J, at paragraph 31:

‘The use of the word fear covers a very wide spectrum ... looking at the evidence set out above, his fear was a

background fear, rather than one giving rise to physiological change; alternatively, that physiological changes are

likely to have been de minimis. In his case, and potentially those of other Test Claimants, even if I drew the line at the

point where the Claimants ask me to draw it, success may be very limited’.

Therefore, if the ‘traditional definition of "personal injuries"’ were to be extended, it would be ‘extremely wide ranging’ and have ‘numerous

substantial consequences across the law of tort’.

Given the judge’s finding that ‘fear’ does not amount to a personal injury, a tortious claim in negligence could not be brought. This was a

tortious claim based on trespass to the person and was actionable per se (required no proof of damage).

In his concluding statements, Stewart J found in favour of the defendant, at paragraph 37, that the ordinary limitation period for tortious

actions applied:

‘Despite the comprehensive and innovative submissions of the Claimants, it has been clearly and authoritatively

determined that fear alone does not amount to a personal injury. Claims based on fear are subject to a six-year time

limit. The provisions of ss.11, 14 and 33 of the Limitation Act 1980 have no application to them’.

Full text judgment can be accessed here.

PAGE | 7

Does QOCS Apply When Only Part of a Claim is for Personal Injuries? Brown v

The Commissioner of Police for the Metropolis & Another (2017)

At first instance, in the case of Brown v The Commissioner of Police for the Metropolis (2017), His Honour Judge Luba considered whether

the claimant benefited from qualified-one-way costs shifting (QOCS) protection, where it brought an action including both personal injury

and non-personal injury aspects. An appeal of the first instance decision is expected to be heard in June of 2018.

The claimant brought a claim on four separate causes of action and sought to recover its costs from the defendants. However, the

defendants sought to circumvent a costs Order of this nature, on the basis that QOCS did not apply, based on the facts of the case.

CPR 44.13 discusses the proceedings in which QOCS applies:

At the County Court, counsel for the claimant submitted that the entirety of the actions brought against the defendants were encapsulated

within the definition of CPR 44.13(1)(a), namely that the claim was for damages for personal injuries.

In any event, counsel for the defendants submitted that the Court may grant permission for a different consequence, under the exception

to QOCS, afforded by CPR 44.16(2).

PAGE | 8

Did the exception, pursuant to CPR

44.16(2)(b), apply?

In answering this question, HHJ Luba

hypothesised, at paragraph 17:

‘One would envisage a number of

circumstances or situations in which in

addition to bringing a claim for damages

for personal injury, a Claimant includes in

the same action other claims. Alternatively

and additionally, one can envisage a case

in which a Claimant brings two separate

sets of proceedings against the same

Defendant, one of which is a claim for

damages for personal injury and the other

is not, which claims come to be

consolidated. Such a case may be a case

in which the pre-condition in 44.16(2)(b) is

satisfied’.

Then, at paragraphs 18 and 19, the judge

went on to consider whether the facts of

Brown fell within this pre-condition.

‘As I have already indicated, pleadings

against both Defendants incorporate four

heads or causes of action. If any one of

them does not include a claim for personal

injury damages, then it might be arguable

that the terms of 44.16(2)(b) are met. It

seems to me, however, that on a

consideration of the pleaded case here,

set out in the Statement of Case advanced

by the Claimant against each of the two

Defendants, what is alleged is that the injury

has followed as a consequence of each of

the four matters ...

It is not a case, for example, in which there

has been included a separate claim for

some other form of damage for loss arising

in consequence of that claim alone. It

seems to me in those circumstances, on the

facts of these particular cases, that the

exceptions in CPR 44.16 on which the

Defendants would seek to rely if matters

came to that point, is not in fact available’.

In this instance, HHJ Luba deemed that the

claimant was protected by QOCS

‘because the pre-condition to any

exception for which the Court’s permission

is required ... [was] ... not satisfied’.

The first instance judge appears to have

differentiated between claims where

personal injuries stem from multiple heads

of a pleaded case, in which QOCS will

apply, and claims where separate heads of

a pleaded case bare no relationship with

injurious losses, where defendants may

successfully argue that QOCS should be

disapplied.

A copy of the first instance judgment can

be accessed here.

We will consider the ruling on appeal in due

course.

Fundamental

Dishonesty – 2 Recent

Judgments: Molodi v

Cambridge Vibration

Maintenance Service &

Anor [2018] EWHC 1288

(QB) and Richards &

Anor v Morris [2018]

EWHC 1289 (QB)

Two appeals have recently been heard in

the appellate High Court, concerning the

credibility of claimants and findings of

fundamentally dishonesty, under s.57 of the

Criminal Justice and Courts Act 2015:

Molodi v Cambridge Vibration

Maintenance Service & Anor [2018] EWHC

1288 (QB); and Richards & Anor v Morris

[2018] EWHC 1289 (QB). Both cases were

heard by Mr Justice Martin Spencer and

both involved road traffic accidents.

In this article, we examine what types of

misconduct can result in fundamental

dishonesty findings. Strike out applications,

in personal injury cases, were explained in

detail in the LOCOG v Sinfield [2018] EWHC

51 (QB) judgment, which we discussed in

edition 216 (here).

Molodi v Cambridge Vibration

Maintenance Service & Anor [2018] EWHC

1288 (QB)

In this case, the defendant argued that the

claimant was unreliable as a witness

because of the following:

‘The contradiction between the

CNF and the Claimant's evidence

...;

The CNF stated that the Claimant

had no rehabilitation needs when

the Claimant then made a claim

for 12 sessions of physiotherapy;

The Claimant's assertion that he

had time off work in his evidence

when the CNF stated there was no

time off work and the fact that the

Claimant had made no claim for

loss of earnings despite stating in

his witness statement at paragraph

15 that as a result of the accident

he had been unable to work his

normal hours for about two weeks

and for three days after the

accident did not work at all;

The fact that the Claimant told his

medical expert that he had only

had one previous accident,

confirmed in his witness statement

at paragraph 18 when in fact he

had been involved in at least four

previous accidents and probably

more, possibly as many as seven

... previous accidents.’

The trial judge, HHJ Main QC, ruled that the

claimant was not fundamentally dishonest,

but was an inconsistent witness. The

defendant appealed the decision and the

case was overseen by Mr Justice Spencer.

Spencer J, at paragraph 45, stated that the

trial judge had:

‘... adopted a much too benevolent

approach to evidence from a claimant

which could be demonstrated to be

inconsistent, unreliable and, on occasions,

simply untruthful’.

PAGE | 9

He went on to state that, in disclosing to the

medical expert that he was only involved in

one incident factually relevant to the

present case, this constituted a ‘glaring’

example of a ‘clear lie’. This lie had been

maintained in a witness statement,

alongside a statement of truth.

Lying to the medical expert was pertinent to

the claim in question and affected

‘fundamental questions of causation’. At

paragraph 47 of the judgment, Spencer J

provided other examples of dishonesty,

such as:

Fundamental inconsistencies

between the claimant’s witness

statement, evidence and the CNF;

Inconsistencies in respect of the

claimed period of recovery; and

Undergoing more physiotherapy

than was medically necessary.

Counsel for the defendant argued that the

claim should be dismissed, because the

claimant was fundamentally dishonest,

pursuant to s.57 of the Criminal Justice and

Courts Act 2015.

Spencer J agreed, following the case of

LOCOG v Sinfield [2018] EWHC 51 (QB). The

judge overturned the 1st instance decision.

Richards & Anor v Morris [2018] EWHC 1289

(QB)

The case of Richards was factually similar to

Molodi. The defendant appealed the 1st

decision, in which the claimants were

awarded damages.

At 1st instance, HHJ Main QC did not make

a finding of fundamental dishonesty,

despite remarking that one of the

claimant’s evidence was ‘hopelessly

inconsistent’. Spencer J, presiding over this

case, criticised HHJ Main QC for another

benevolent display. He reasoned that the

claimants’ evidence was ‘inconsistent’,

‘unreliable’ and ‘on occasions, downright

untruthful’. Further, he was wrong to accept

evidence after using the adverb

‘hopelessly’ to qualify how inconsistent the

claimant had been.

At paragraph 67, Spencer J summarised

that the claimants had:

Exaggerated medical

treatment and injuries;

Provided inaccurate

information to the medical

expert about previous

medical history and

accidents;

Included false information in

the CNF; and

Adduced an unsustainable

schedule of loss.

Spencer J dismissed the claim on the basis

that the judge should have found that the

claimants had failed to prove their case.

There was no fundamental dishonesty

ruling.

Part of the reasoning given for this was that

he had ‘not seen or heard the Claimants for

myself, nor had an opportunity to assess

them as witnesses’. The judge also

reasoned that, at the appellate level, he

did not have sufficient evidence to make

the finding of fundamental dishonesty,

where HHJ Main QC did, but erred in not

doing so.

Molodi and Richards demonstrate how

unreliable claimants, who give inconsistent

witness evidence, can influence a

fundamental dishonesty decision. The

claimant in Molodi was dishonest through

omission. They failed to disclose relevant

information to the medical expert. The

claimants in the Richards could have been

deemed dishonest through positive action.

They provided inaccurate and

exaggerated factual information to the

medical expert.

The full text judgment of Molodi can be

found here

The full text judgment of Richards can be

found here.

Liability When Risk

Assessments Are Not

Heeded: CC v Leeds

County Council [2018]

EWHC 1312 (QB)

In the recent case of CC v Leeds County

Council [2018] EWHC 1312 (QB), Mr Justice

Turner provided guidance on the effect of

improperly conducted risk assessments on

findings of breach of duty and causation.

A personal injury action was commenced

against the occupier of premises, on which

an accident took place. The interior of the

premises was dim and set on multiple

levels. The claimant alleged the defendant

had been negligent and was successful at

first instance.

On appeal, before Turner J, the defendant

argued that the first instance judge had

erred in finding breach of duty on evidence

unrelated to the practicability of

preventative measures. Further, the judge

had failed to identify any breach which was

potentially causative of the claimant’s

injuries.

On breach of duty, Turner J stated that:

‘... courts must, in cases such as this, resist

the lure of hindsight bias as a result of which

events known to have occurred are judged

to have been more predictable than they

actually were’.

In this instance, the defendant had

prepared a risk assessment four months

prior to the accident. The assessment

identified a risk of tripping and insisted that

visitors should be warned about the

potential to trip over ridges, as a control

measure. Members of supervisory staff,

however, disclosed no risk of tripping in the

health and safety script. Given the lack of

warning, Turner J reasoned:

‘A failure to implement a control measure in

a formal risk assessment will not inevitably

connote a breach of duty in negligence

PAGE | 10

but in most cases it is likely to go a very

considerable way towards it’.

On causation, the judge analysed that the

judge at first instance had made a positive

finding that ‘the failure to warn was a free

standing cause of the accident in the "but

for" sense’. The defendant was unsuccessful

in contesting the sustainability of this

argument.

As such Turner J dismissed the appeal on all

grounds.

Full text judgment can be found here.

Disability in Military

Personnel With Mental

and Physical Disorders

A new study has discussed how mental and

physical disorders contribute towards

disability in Canadian military personnel.

Millions of military personnel have been

exposed to the risk of developing mental

and physical disorders after serving in

recent and ongoing conflicts in Southern

Asia. The researchers therefore hoped to

gain understanding of how these disorders

relate to disability.

Past studies have tended to focus on

subsets of the military population (e.g.

deployed personnel), single out observed

health conditions (e.g. traumatic brain

injury), or isolate disability outcomes (e.g.

medical discharge).

The objective of the current study, however,

was to assess the effect of many different

disorders on disability, in a broad military

population.

All 6,696 participants had taken part in the

2013 Canadian Forces Mental Health

Survey. The assessment was devised by the

World Health Organisation (WHO), and

considered cognition, mobility, self-care,

getting along, life activities and

participation in society.

Disability, for the purposes of the

assessment, was classed as either ‘no/mild

disability’ or ‘moderate/severe disability’.

The participants were asked which mental

and physical disorders they had been

diagnosed with, by a health professional,

lasting longer than 6 months.

Mental disorders investigated, included:

Mood disorders (depression,

bipolar/mania, and dysthymia),

Anxiety disorders (phobia,

obsessive-compulsive and panic);

and

Post-traumatic stress disorder

(PTSD).

Chronic physical disorders investigated,

included

Asthma;

Fibromyalgia;

Arthritis;

Back pain;

Other chronic musculoskeletal

problems;

Hypertension;

Migraines;

Diabetes; and

The after-effects of traumatic brain

injury (TBI).

The average disability score was in the

lower end of the ‘mild’ disability range.

Chronic physical conditions, reported by

53% of participants, were more common

than mental disorders, reported by 13%.

However, a greater percentage of those

with mental disorders (35%) had

‘moderate/severe’ disability, compared to

those with physical disorders (17%). The

most prevalent ‘moderate/severe’ disability

was found in those with ‘other mood

disorders, PTSD and depression’. Among

the chronic physical conditions

investigated, those with the highest

prevalence of ‘moderate/severe’ disability

had developed ‘fibromyalgia, TBI, and

arthritis’.

The overall prevalence of

‘moderate/severe’ disability was 10%.

Women, older members, and senior non-

commissioned members had higher

prevalence of ‘severe’ disability.

Overall, the disorders that made the

greatest contributions to disability were

‘chronic musculoskeletal problems, back

problems, mood disorders and PTSD’.

Mental disorders accounted for 27% of the

burden of ‘moderate/severe disability’,

while physical conditions accounted for

62%. Of the chronic physical conditions,

back problems or other chronic

musculoskeletal problems resulted in the

vast majority of ‘moderate/severe

disability’, due to the high prevalence of

these disorders.

Around 10% of participants reported

having both physical and mental disorders.

An interaction between mental and

physical disorders was noted. The

researchers found that those suffering from

mental health conditions experienced

greater disability from a physical condition

compared to those without mental health

conditions.

In addition, those with both mental and

physical disorders were more likely to report

disability than those suffering with a single

condition. Indeed the likelihood was

greater than the cumulative risk of both

disorders. Generally speaking, this

relationship was strongest in back disorders

and other chronic musculoskeletal

patients, who also had mental disorders.

However, the study had some limitations.

For example, the researchers assumed that

the disorders preceded the disability, on

the premise that, in all cases, the disabilities

were caused by the disorders. This is a

potentially troublesome assumption to

make, however, as not all disabilities can

be attributed to an existing mental or

physical disorder. Also, the analysis did not

differentiate between occupational and

non-occupational health problems.

Potentially, some participants’ disabilities

were related to conditions which were not

considered by the authors of the study, or

alternatively, undiagnosed conditions.

In conclusion, the researchers advised that

methods of disability prevention and

control in military personnel should focus on

chronic musculoskeletal conditions, back

problems, mood disorders and PTSD.

PAGE | 11

References

1 Beliveau, P. J. H., Boulos, D. & Zamorski, M. A. Contribution of mental and physical disorders to disability in military personnel. Occup

Med (Lond) doi:10.1093/occmed/kqy066 <https://academic.oup.com/occmed/advance-

article/doi/10.1093/occmed/kqy066/4999683> (Accessed 27 May 2018)

PAGE | 12

Disclaimer

This newsletter does not present a complete or

comprehensive statement of the law, nor does it

constitute legal advice. It is intended only to provide

an update on issues that may be of interest to those

handling occupational disease claims. Specialist

legal advice should always be sought in any

particular case.

© BC Legal 2016.

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PAGE | 13

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