Claimant s solicitor loses out insurance policy since failure to recommend that policy could lead to a termination of their panel membership.

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1 06 Defendant Insurer Forbes save client 1million on Claimant costs Forbes specialist cost lawyers recently passed the 1million savings figure on Claimant solicitors charges for a Metropolitan Borough Council client. On mostly fast track litigated cases extending over a period of 4 years the savings represent a significant sum of money for the Council which can now be channelled into other areas. Ridwaan Omar, cost specialist at Forbes Blackburn office said "Over the last few years it has been noticeable on how many occasions the bill of costs presented by some Claimant firms has become totally At a recent Court hearing a Local Authority represented by Forbes was the beneficiary of a pleasing decision from the District Judge. A personal injury claim against the Local Authority had been settled for 6,000. The Claimant's Solicitors then submitted a bill for their costs of 17,000. Forbes had obtained confirmation by serving formal questions on the Claimant's Solicitors prior to the Costs Assessment hearing that the Claimant's solicitors had received the case because of membership of a referral panel. An insurance policy had been taken out by the Claimant with a disproportionate to the originating claim itself. One wonders what the rest of the market is doing if these Claimant firms feel confident in regularly submitting charges of the type we see. Martin Crabtree, Head of Defendant Insurer Operations at Forbes commented "Our approach to Claimants solicitors bills has always been robust and frankly on many occasions it needs to be. Too often we have seen inflated charges and success fees that appear to bear little relationship to the requirements of the case. Our philosophy of having specialist lawyers attacking excessive charges has company which had an arrangement with the referrer. In the Conditional Fee Agreement signed by the Claimant the solicitors had declared that they had no interest in recommending any insurance arrangement. However, submissions were made in the light of the very recently reported case of Garrett v Halton BC that membership of the referral panel meant the Solicitors had an interest in the insurance arrangement. In Garrett the argument was that the Solicitors acting had an interest in the produced considerable savings for all our clients. Whilst the 1 million figure is impressive it only tells part of the story. Forbes take numerous cases to trial and have a very high success rate. In addition a high percentage of cases are discontinued against Forbes clients before trial. The figure does not include the major savings made in terms of damages and costs on these cases. If you would like to know more about Forbes approach to challenging claimants costs contact Martin Crabtree on or Claimant s solicitor loses out insurance policy since failure to recommend that policy could lead to a termination of their panel membership. The District Judge accepted that the "Garrett" argument applied in this case and disallowed ALL of the Claimant's solicitors costs because of breach of the Regulations. The only payment it was ordered should be made was the insurance premium itself of 1000 with a saving therefore of 16,000 and the Claimant's Solicitors receiving nothing for their work.

2 Corporate Manslaughter Bill The Bill defines "senior manger" as those whose responsibilities relate to the whole, or a substantial part of an organisation's activities. What constitutes a substantial part will be considered in the context of the individual organisations and will depend on their overall scale of activities. The offence links corporate liability to a particular level of management responsibility within the organisation. It provides the following criteria in defining management responsibility; (i) making decisions about how activities are managed or organised; or (ii) managing those activities. This test will ensure that managers who set up and monitor workplace practices as well as those providing operational management are covered. In either respect, a person must play a significant role in the management responsibility. In March 2005 the Government published the long awaited Corporate Manslaughter Bill setting out proposals for a new offence of corporate manslaughter. The Home Affairs and Work & Pensions Committees considered the draft Bill and published a joint report back in December In March 2006 the Government gave its response to the joint report of the Select Committee. The Bill has been amended taking into consideration the Committee's views and was introduced in the House of Commons at the beginning of the summer. The Bill makes provision for a new offence of corporate manslaughter and applies to companies and other incorporated bodies, Government departments and similar bodies and police forces. This offence will apply where the harm resulting in death occurs in England and Wales, in UK territorial waters or on a British registered ship or aircraft. In addressing this issue the new offence builds on key aspects of the current common law offence of gross negligence manslaughter in England and Wales. At present, in order to secure a conviction for gross negligence manslaughter prosecutors are required to prove that an individual Director, senior enough to embody the company, is personally guilty of manslaughter (the so called "controlling mind") before the company itself can be prosecuted. It has been difficult to prosecute large companies with complex management structures under the current law. This is perhaps highlighted by the fact that since 1992 there have been 34 prosecution cases for work related manslaughter but only 7 small organisations have been convicted. The new offence seeks to make corporations and a range of Crown bodies liable for the way in which the organisation's activities are run by its senior managers. An offence is committed where an organisation owes a duty to take reasonable care for the person's safety, and the way in which activities of the organisation have been managed or organised by senior managers amounts to a gross breach of this duty and causes the person's death. However, the new offence only applies in circumstances where an organisation owed a duty of care to the victim under the law of negligence at common law, by statutory provisions or both. Duties of care commonly owed by corporations include the duty owed by an employer to his employees to provide a safe system of work and by an occupier of buildings and land to people in or on, or potentially affected by, the property. This reflects the current position under the offence of gross negligence manslaughter and, by defining the necessary relationship between the defendant organisation and victim, sets out the scope of the offence. The Bill also requires the duty of care to arise out of certain specific functions or activities performed by the organisation. The effect is that the offence will only apply where an organisation owes a duty of care i.e. to its employees or to other persons working for the organisation, as occupier of premises or when the organisation is supplying goods or services. A gross Page 3

3 breach of the duty of care is satisfied "if conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances". The usual principles of causation in criminal law will apply to determine this question. It also means the management failure need not have been the sole cause of the death; it need only be a cause. The Bill targets organisations only and not individuals. However the Government has said that it will review existing legislation relating to individuals' responsibility and accountability for health and safety management. It is likely this will include the links between a successful prosecution for corporate manslaughter and the provisions for disqualification of Directors from office under the Companies Act. One of the criticisms of the proposed offence raised during the consultation stage was that unscrupulous companies would be able to avoid prosecution by delegating responsibilities to junior managers so that there could never be a gross breach by a senior manager. We consider any delegation of such duties to junior managers would still be based upon the conscious decision of senior managers and liability could not therefore be avoided in adopting this approach. Corporate manslaughter is a serious offence under the general criminal law. The police will investigate cases and the Crown Prosecution Service will prosecute. For those found guilty sanctions include; an unlimited fine and the possibility of remedial orders being imposed by the Court. Whilst it is not the aim of the Court to dissolve a company if, following the trial, it is considered the organisation was so deficient in its management, the Court may be faced with no option. Tree management Most people would agree that trees are a valued amenity. They provide shade in hot weather, a habitat for wildlife and are, generally speaking, pleasing to the eye. However with the benefits a tree brings there are also responsibilities and, inevitably, liabilities. A tree is a living and changing thing, and as such it needs to be looked after and managed. If not properly managed a tree has the potential to cause damage to property and injury. Recent case law has shown that a failure in that management can end in the Courts. In Poll v Viscount Asquith of Morley an ash tree fell from land owned by the defendants into the road. A motorcyclist collided with it and sustained personal injuries. The issue in the case was whether the tree inspection regime that the land owner had in place was adequate, and whether a better regime would have alerted the land owner to the danger that the tree might fall. It is beyond doubt that the defendants had a responsibility for the maintenance of the tree in question. The question was whether the defendants ought to have known about a disease which affected the tree, a 'fungal bracket', which so weakened it as to cause it to fall into the road. The Judge said that the defendants had to take the care expected of a reasonable landowner who has trees abutting the highway. It held to be not enough, as the defendants had done, to employ an inspector, referred to as a 'level 1' inspector, to drive by the trees who only carried out a closer inspection of those trees where there was a visible structural Whilst this remains a Bill for the time being, and has not yet been formally enacted, it will not be long before organisations will find themselves facing charges for corporate manslaughter. To be able to defend any cases it is necessary to have robust systems in place that eliminate the possibility of such charges, or at the very least reduce the risk to as low as possible. With this in mind it would be prudent for all organisations no matter their size or diversity of business to undertake a review of all health and safety systems and procedures where a duty of care is owed, implementing changes where appropriate. The primary aim for senior management should be that they know that they have in place appropriate systems within their organisation, and that they are working effectively. For further information please contact Siobhan Hardy on or defect. They ought, it was held, to have employed a 'level 2' inspector, who would have appreciated that there was a danger posed by a particular tree as a result of a combination of factors, such as its structure and proximity to the highway, and made a closer inspection to see if there were any additional danger factors. The Judge went on to find that if a proper inspection had been carried out by a 'level 2' inspector then not only would the structural danger have been identified, but also the fungal infection which made the tree an immediate danger. In addition to the perennial problem of damage to buildings caused by the actions of tree roots, this case has raised the bar for the duties of those responsible for tree management. Property damage from tree roots most often occurs after long hot and dry spells, so we might expect an increased incidence of such claims. For further information please contact Robin Stephens on or

4 Forbes at Trial Porter v Tameside MBC This case illustrates the old rule that you should always expect the unexpected when attending court. The Claimant in this case allegedly sustained a broken ankle after tripping on a defect in the carriageway. She produced two short statements from independent witnesses to confirm that the road had been defective for years. The Local Authority sought to rely on their inspection system and the case proceeded to court. On the day of the trial one of the Claimant's witnesses approached the Defence team and asked whether they were aware that the claim was fraudulent. At this point the Forbes representative took a statement from this witness who went on to indicate that the accident did not happen in the carriageway as indicated by the Claimant. In fact the Claimant fell on the footway outside of the witness's house as a consequence of her being intoxicated. At this point the barrister for the Defendants informed his opposite number of the contents of the statement. Shortly afterwards the claim was discontinued and the Claimant was ordered to pay the Defendant's costs. The Local Authority have now referred the matter to the police. Gomersall v Hull City Council The claim arose as a result of a tripping accident on 31 August 2004 in which the Claimant sustained a fractured wrist. The claim was defended to trial on the strength of a Section 58 Defence; the accident locus was subject to routine annual inspections. The last pre-accident inspection took place on 30 April 2004 and the defect was not recorded. The Claimant relied on a lay witness who claimed she had notified the Council of the defect in the weeks prior to the Claimant's accident though the Council had no record of such a complaint. At the original Trial the Judge found in favour of the Claimant; he considered the Defendant had failed to make out the Section 58 Defence though he did not accept the Claimant's witness evidence that the Defendant was put on notice of the defect. The District Judge was of the opinion that the Defendant had incorrectly categorised the accident locus as suitable for annual inspections; he considered six monthly inspections to be appropriate. Given the Defendant's inspection regime did not allow for six monthly inspections; rather annual, three monthly or monthly the Judge found that by default three monthly inspections were appropriate. Following the outcome of the original Trial, Forbes were firmly of the view that the District Judge had failed to apply the correct test. Despite obiter comments made by the Judge that six monthly inspections would have been appropriate, he had found that an inspection conducted four months prior to the accident was insufficient to discharge the Defendant's liability. Upon Appeal, it transpired the original Judge had reconsidered his Judgment and notified the Appeal Judge that he accepted he had incorrectly applied the test pursuant to Section 58. The Appeal Judge had no option but to find for the Defendant, he made an order for costs in the Defendant's favour and permission for retrial was refused. Milburn v Wear Valley District Council The claim arose as a result of a tripping accident on 16 January 2003 on a pathway within a housing estate in Bishop Auckland. The Claimant alleged he had fallen due to a missing flagstone sustaining a fractured hand. The Claimant pleaded negligence and/or breach of statutory duty under the terms of the Highways Act 1980 or the Occupier's Liability Act Forbes ran this matter to trial in accordance with the ruling in Gulliksen v Pembrokeshire County Council. Following investigations it was established that though the Defendant was the owner of the said pathway, they were not a Highway Authority and the pathway fulfilled the necessary criteria to be classified as a highway maintainable at the public expense. Further, it was argued that the Defendant was exercising a public right of way and, in accordance with McGeown v Northern Ireland Housing Executive, the common duty of care under the Occupier's Liability Act 1957 was not owed to the Claimant. Forbes invited the Claimant to discontinue his claim against the Defendant given the case had been brought against the wrong authority; the Claimant declined this offer and proceeded to Trial. At Trial, the Judge agreed with the arguments put forward by Forbes. He agreed that the Defendant had no duty to inspect nor maintain the accident locus as it was not a Highway Authority and the only circumstance in which the Defendant could be found liable for the Claimant's accident was if the defect had been caused by an act of misfeasance rather than non-feasance. Hardy v Whitbread plc On 30th March 2001 the Claimant was a guest at the Meon Valley Hotel and Country Club, which was owned by the Defendants. The Claimant sustained an injury when she slipped having stepped into the bath in her hotel room.

5 The Claimant alleged the surface of the bath was excessively slippery, that there was a failure to supply a rubber shower mat and suitable grab handles. It was considered that the only way to ascertain whether the bath/shower was fit for its purpose was to obtain engineering evidence. A joint report was obtained which indicated that the studs in the bath in the hotel provided a reasonable grip while not impeding the drainage and cleaning. Additionally, there were handles and rails to assist in getting in and out of the bath, along with a vertical rail for support when using the shower. As such the engineer's conclusion was that the Defendants had chosen well in selecting the type of bath they had, and that it could be used in safety by anyone exercising the sort of ordinary care necessary when taking a bath or shower. Faced with this evidence the claim was discontinued with the Claimant paying the Defendants costs. McGarty v Warrington BC The Claimant worked as a market trader on a stall in the Defendants' market hall. On 30th July 2002 she was walking through a service area when she slipped on discarded package binding tape. She alleged the Defendants had failed to keep the area safe pursuant to the Workplace (Health Safety and Welfare) Regulations. She also pleaded negligence and breach of the Occupier's Liability Act. The Defendants argued that the Workplace Regulations could not apply as the Claimant was not one of their employees. They also pleaded that they had a system of inspection and cleaning in place consisting of a clean of the area in the morning and regular inspections of the market generally including the service area. On the basis of the inspection system in place the claim was discontinued with the Claimant paying the Defendants' costs. Mohammed v Oldham MBC The Claimant alleged that he suffered an injury when he tripped in the street on 22nd December 2001 caused by stepping into a pothole. He alleged that as the defect had still been in existence some two years post accident that was evidence of the Defendants having an inadequate inspection system. It should be noted, however, that the claim was not intimated to the Defendants until 18th March On the pre-accident inspection the defect was not noted. It was also not noted on the inspections up to the date of notification of the claim. The highways inspection that took place immediately post accident also did not note the defect but the Defendants contended this was because extensive refurbishment works were being undertaken on the street in question, so that there were building materials on the pavement. The Claimant's hospital records gave a history of a slip. As there was a large lost earnings claim, it was considered appropriate to have sight of the Claimant's personnel and occupational health records. It became apparent that the Claimant had been examined by his employer's occupational health physician whose records detailed that the Claimant had given a history of a slip on ice. The Claimant, in cross examination at trial on 5th April 2006, said that he remembered discussing the cold weather conditions with the OH physician and that he (the OH physician) must have made the jump from that to concluding that the Claimant had slipped on ice. For the best defence of the claim, it was considered necessary to have the OH physician at Court. He stated that he would have spent the first ten minutes of the consultation discussing the mechanics of the accident and would have made a contemporaneous note of what was said. The Judge therefore felt that the Claimant's ability to give a credible account of the accident was called into question and found that the claim failed. The Claimant was ordered to pay the Defendants costs. Paul Hewitt v Oldham MBC The Claimant alleged that on 20th January 2001 he was riding his bicycle along Bessemer Way in Oldham when the front wheel struck a raised metal sheet causing him to come off his bicycle and suffer personal injury. The metal sheet had apparently been placed on the road pursuant to works to renew the underground heating system. He sued the Local Authority, their contractors and their subcontractors. The matter was complicated as the Claimant had apparently sustained injury following a trip in the street on 11th January 2001, some nine days earlier. On being questioned about the symptoms suffered in the earlier accident the Claimant stated that the injuries in the first accident were to his neck and back, and merely to his leg in the second accident. As the Council did not have a defence to the first claim this was settled prior to issue of proceedings based upon the Claimant's representations with a payment for damages and costs. Review of the Claimant's GP records showed an attendance on 26th January 2001 with a history of "fell off a bike two weeks ago". That did not appear to accord with either alleged accident. The medical report in relation to the second accident indicated symptoms of jarring to the neck and back, along with bruising to the neck. It became clear that the Claimant had not told the consultant in relation to the alleged accident on 11th January, that he had an accident on 20th January. Similarly he did not tell the consultant who examined him in relation to the alleged accident on 20th January that he had allegedly been involved in an accident nine days earlier. Based upon the weight of evidence attacking the Claimant's credibility, the second claim was discontinued and the Claimant was ordered to pay costs.

6 In light of the representations made in relation to the earlier alleged accident a counterclaim was pleaded on behalf of the Council for the return of the monies paid to him. This was based upon the Claimant's alleged misrepresentation about the injuries sustained as had it been known he had sustained similar injuries in the second accident then his claim for the first may have been limited as the subsequent injuries may have been supervening injuries. Additionally it was pleaded that the payment should not have been made as the accident may not have occurred at all. The Claimant failed to respond to the counterclaim and judgment was entered. He subsequently made an application to have judgment set aside which was dismissed by the Court. The Claimant is presently reimbursing, in installments, the monies paid to him and his solicitors in relation to the earlier claim. Forbes 'Breakfast Briefing' seminars 2006 concluded with the event being rolled out to Yorkshire clients at the Metropolitan Hotel in Leeds on 8th September. This was the third presentation of its kind following similar sessions held in Manchester and Lancashire. The two hour long seminar involved case studies and presentations by Forbes lawyers and guest barristers together with an active question and answer session. Over the three events in excess of 100 Forbes clients attended the briefings and their success was such that a similar programme is planned for Anderton (a child by her Litigation friend) -v- Bolton MBC Forbes recently successfully defended a claim to a final hearing on behalf of Bolton MBC in relation to a Highways tripping claim presented to the Council by a young child via her mother acting as Litigation Friend. The infant Claimant was 3 years old at the time of the accident. Enquiries revealed that the mother of the infant Claimant pursued a claim for damages 12 months earlier claiming to have been injured following a trip at exactly the same location. The child's parents alleged that the child tripped and fell as a result of defective paving outside the home address. The child's fall was said to have been witnessed by the father but not the mother. At Court the parents gave evidence confirming the accident circumstances and injuries following the fall. The child was not taken to her GP or to hospital after the alleged fall. It was claimed that the child suffered cuts and grazes to the face lasting 7-10 days and that the child had been absent from nursery for a week following the accident. However, enquiries with the nursery had revealed that the child had been absent for several days before the accident but not so afterwards. The child in fact missed no nursery after the alleged accident at all. The Judge concluded that there was insufficient evidence that the accident had occurred as alleged or at all. If it had, there was no evidence that the alleged defective pavement had caused a fall to occur. The claim was dismissed. Forbes breakfast briefings If you would like to attend a Forbes 'Breakfast Briefing' please contact Jeff Honey on or

7 Lifeline to Claimants in limitation cases can, however, be overruled by a higher Court, but not a Court of the same level. As the highest Court in the UK, the House of Lords has a discretion to overrule a decision previously made by itself, however, this is something that is not done lightly. Over the past 27 years the lower Courts took over the opportunity to make exceptions where the facts did not mirror Walkley; sometimes on inadequate grounds leading to uncertainty in practise. The decision in Horton The House of Lords unanimously agreed to overturn Walkley for 3 main reasons: 1. The reasoning behind the decision could not be supported. 2. The decision gave rise to lower Courts drawing distinctions which were "so fine as to reflect no credit on this area of law". 3. It deprived the Court of the wide discretion which Parliament intended to give it. Horton v Sadler & Another [2006] UKHL27 On 14 June 2006 the House of Lords reversed its decision in Walkley v Precision Forgings Ltd [1979] 1 WLR 606. The rule in Walkley In Walkley the House of Lords decided that a Court could not exercise its discretion to disapply the limitation period under Section 33 Limitation Act 1980 where the Claimant had issued a second claim out of time in respect of the same matter. The Law Lords found that any prejudice to the Claimant was as a result of his inaction as opposed to the provisions of the Limitation Act. In those circumstances, a Claimant should not be able to rely upon the discretion within the Act to disapply the limitation provisions in the second claim. The effects of Walkley in practise Walkley provided Defendants with an absolute procedural Defence for claims brought by Claimants outside the primary limitation period when they had previously issued proceedings within it. This was often perceived as being unfair and a windfall to Defendants in circumstances where liability was not in dispute. As a result of the UK common law system, once a Court has made a decision on a case then the same decision must be made for other similar cases. A decision As a result of the House of Lords decision then, if as a result of a procedural error, a Claim Form issued in the primary limitation period fails it is now possible to bring fresh proceedings and to seek to take advantage of the Section 33 discretion. The Court must now be guided by what is equitable and balance the likely prejudice incurred to the respective parties, and whilst it gives the Claimants and their Solicitors a second lifeline, it does not guarantee success in a Section 33 application. The conduct of the Claimant and his Solicitors will remain a relevant issue. If you require any further information or clarification of the decision please contact Kate Humpston on or

8 Mesothelioma/Asbestosis Cases and Insurance Cover - Impact of decision on "long tail" Asbestos related diseases in relation to Public Liability and Employers Liability claims. recovery of their losses from the MMI. They denied liability and Bolton subsequently brought in the Commercial Union as a Second Defendant. The policy wording in both policies were similar, although not identical. It provided for indemnity on the basis of claims for illness or injury "occurring" during the currency of the policy. The MMI clause provided indemnity for accidental and bodily injury or illness (fatal or otherwise) when "such injury, illness, loss or damage occurs during the currency of the policy..". The CU policy provided indemnity for bodily injury or illness "occurring.. during the period of indemnity". It was accepted that the body's defence mechanisms are brought into play immediately as asbestos fibres are inhaled, but the development of mesothelioma can not be said to have commenced until genetic changes allow malignant cells to become established. Mesothelioma generally took about 10 years to progress to the stage where it gave noticeable symptoms and was diagnosable as such. Bolton MBC ats Municipal Insurance Ltd (1) and Commercial Union Assurance Company Ltd (2) - Court of Appeal - 6th February 2006 What did the above case decide? Forbes acted for Bolton MBC in this case. Bolton accepted that they had exposed the deceased, Mr Green, to asbestos in the 1960s whilst working as a contractor. Mr Green was diagnosed with mesothelioma in January 1991 and he died of the disease in November Between 1960 and 1965, Bolton had in place Public Liability insurance with the Commercial Union. Between 1979 and 1991 Bolton MBC's Public Liability insurance was provided by Municipal Mutual Insurance Ltd. Bolton looked to the MMI to meet the claim. They refused. Bolton settled the claim and sought It was held that injury did not occur at the time of exposure/inhalation but rather when the malignant mutation first occurred or when symptoms commenced. The Court of Appeal considered that at the stage of initial exposure or initial bodily reaction to such exposure there was no liability or any cause of action at that stage as no injury was suffered. The Court of Appeal held MMI liable to indemnify Bolton since the mesothelioma occurred during the currency of the MMI

9 policy. The Court of Appeal were concerned with the Public Liability wording as follows:- ".. the company agrees to indemnify the insured in respect of all sums which the insured shall become legally liable to pay as compensation arising out of (a) accidental bodily injury or illness (fatal or otherwise) to any person (except employees) (b) accidental loss of or accident damage caused to property when such injury or illness, loss or damage occurs during the currency of the policy and arises out of the exercise of the functions of a local authority". The "occurrence" for personal injury for mesothelioma, is actual harm, not potential harm ie. escape of cancerous mesothelioma cells from the body's defence mechanisms. This, on the general body of medical opinion, is 10 years from the date cancer becomes symptomatic. What is the impact of the Judgment in Employers Liability cases? The Municipal Mutual in particular are arguing that the decision is applicable in both Employers Liability and Public Liability policies. EL issues have arisen because of the variety of EL policy wordings used, rather than the generally understood liability for all injuries "caused" during an insured period of employment. By way of example compare the following wordings:- A. "the Company hereby agrees that if [during any Period of Insurance] any person under a contract of service with [ ] shall sustain any bodily injury or disease arising out of and in the course of his employment by [ ] in [ ] activities in the said Schedule and if [ ] shall be liable to pay damages for such injury or disease or for death resulting from such injury or disease then, subject to the terms.. [of] this policy. the Company will indemnify [ ] against all sums for which [ ] shall be so liable including Claimant's costs and expenses and will pay costs and expenses incurred with the written consent of the Company in defending any claim for such damages." B. An indemnity in respect of "injury or disease caused during the period of insurance to any employee". C. "The Company agrees to indemnify the insured in respect of all sums without limit as to amount which the insured shall be legally liable to pay as compensation for bodily injury or disease. suffered by any person under a contract of service or apprenticeship with the insured when such injury or disease arises out of employment by the insured and is sustained or contracted during the currency of this Policy." Wordings A and C appear to require the injury to be "sustained" or "suffered" during the period of insurance for it to be covered by the policy, but there seems to be coverage irrespective of whether the insurer was on cover when the injury was "caused" in the past. On the other hand, wording B is not concerned with when the injury is sustained, only with it being "caused" during a period of insurance. Implications - there is a serious problem There can be a gap in long tail claims cover over time where there has been a change in insurer ie. cover under wording A or C, but current cover is under wording B. Eg. Mesothelioma claim, say an injury sustained/suffered in 1995, with death in 2006, where cover in 1995 was under wording B, and cover before that was under wording A or C. A future test case is awaited How will the Bolton decision impact on claims for other asbestos conditions such as asbestosis? The Bolton case dealt with Public Liability insurance not EL. In the Bolton case the Court of Appeal did consider in the Judgment when an injury or damage occurred in relation to other asbestos related diseases. There was reference to unreported decisions where it was held that physical injury did not occur at the time of exposure but only after defence mechanisms of the body were exhausted and identifiable symptoms occurred. It should be remembered that asbestos exposure is considered to be causative on a dose related basis. Asbestos is not likely to commence until after 20 years after exposure. Consider also the pleural plaques litiation - Everard v Grieves. The authorities held that development of pleural plaques was not an injury significant to give rise to a cause of action. The risk of future disease and anxiety in respect of future illness must be dependent upon a physical injury. It does seem that whether it be asbestosis or diffuse pleural thickening or mesothelioma the actionable injury does not occur on exposure of initial bodily changes but later. No doubt there will be further test cases to consider which insurer is liable to indemnify. Notification of claims Pending a test case it is essential that all potential EL insurers are notified of all claims made for an asbestos related matter. In the Bolton case if a claim against the MMI had not succeeded the CU would not have been liable by virtue of Bolton s late notification of the claim despite the late notification being understandable in the circumstances. If you require any further information or clarification of the decision please contact Claire Moran on or

10 Low Speed Fraud? The issue of personal injury claims in low speed road traffic accidents has long been a concern. Following a number of recent high profile Court of Appeal decisions, the Courts have given guidance and practitioners are now required to be clearer as to their intentions. So what is the problem? A party in a low impact accident claims damages for personal injury, usually for whiplash type injuries. Expert evidence suggests that the injury could not have been caused by the accident clearly implying that the Claimant is lying. If he is lying then surely we must plead fraud? That said, if the expert evidence suggests that the injury could not have been caused by the accident but on hearing evidence from the Claimant, the Trial Judge finds the Claimant to be entirely honest and trustworthy. How do we resolve this conundrum? It is of course not for experts to decide the case, their function is to give advice on particular areas within their expertise to assist the Court in making a Judgment. Expert evidence therefore often gives the Court guidance on the probability or otherwise of a particular circumstance having occurred or not. There is however a distinction to be made between improbability and impossibility. If expert evidence is given and accepted by the Court that a circumstance is impossible then in accepting the evidence, the Court must find that the claim is fraudulent. If the Court finds the expert evidence merely gives guidance on improbability then an honest and credible Claimant may persuade the Court that, despite the improbability, the circumstances actually occurred and the Claimant succeed. This issue was first dealt with in Armstrong v First York Ltd (2005). The forensic expert said that the low velocity accident could not have caused the injuries complained of by the complainant driver and passenger. The Judge could find no flaw in that argument but also found the Claimants to be truthful. The Court of Appeal ultimately found that the expert evidence did not outweigh the Court's assessment of the honest Claimant. The same expert witness in the Armstrong case however also gave evidence in a very similar unreported case of Liptrot v Charters again in The Trial Judge was unimpressed with the expert evidence when compared with the honest Claimant. In December 2005, Kearsley v Klarfeld was heard by the Court of Appeal. This decision was important for two reasons. First, the Court settled an old argument and confirmed that it was not necessary to plead fraud in a case involving a low speed impact. That is not to say however that there will not be cases where a pleading of fraud is entirely appropriate but it is simply not necessary in all cases. The second issue was some loose guidance given by the Court in handling such cases. Finally, in October 2006, the Court of Appeal again returned to this issue in Casey v Cartwright. The Appeal Court elaborated on the Kearsley decision and gave more structured guidance. Essentially insurers must advise Claimant's solicitors within three months of receiving a letter of claim that they are raising causation arguments because of a suggestion of low speed impact (LSI). The Defence must also positively plead this reference. Within 21 days of filing the Defence, the Defendant must file and serve a witness statement identifying the grounds upon which LSI has been raised and including evidence as to why this is the Defence s case. Upon receipt of this witness statement, provided that the Court are satisfied that the issue has been properly identified and raised and that there are real prospects of success, the Court will generally give permission for the Defendant to obtain their own expert evidence. Whilst these three main decisions have provided some assistance, there is still much controversy surrounding this issue. The Courts are hoping for a number of test cases to be heard in the High Court to give guidance to practitioners and the Courts alike. However because of the spread of variables on such cases, identifying appropriate cases is proving difficult. What is clear is that the issue of low speed impact cases has far from run its course and also the burden is very much upon the Defence to press this issue forward if they are to be given permission to obtain appropriate evidence. Unless this guidance is strictly adhered to, the Defendant is unlikely to be given permission by the Court. It is also clear however that whilst pleading a reference to LSI is not in itself necessarily a pleading of fraud, in appropriate circumstances this is often the only appropriate pleading and choosing an appropriate case is the key to success. For further information please contact Chris Booth, Head of Anti-Fraud department on or

11 Highways - Manhole covers case of Jackson v Gloucestershire County Council was distinguished, where an opposite decision had been reached, because the manhole cover in question was in a fairly remote country location. The decision then, appears to be limited on its facts, to specifically manhole covers (as opposed to other utility covers) situated in town centres and other busy pedestrian routes. The court has left the possibility that a different decision might be reached if the Defendant Authority can put forward evidence that; Atkins v London Borough of Ealing. High Court What is the appropriate standard of inspection of manhole covers? The recent appeal case of Atkins is being touted to suggest that a purely visual inspection will not suffice. A closer examination of the decision reveals that it is not quite so all encompassing. In Atkins, the Claimant had put her foot down a manhole on a busy street in Acton. The cover had tilted and the evidence was that the defect could only be identified when trodden on. The Defendant had a monthly system of inspection on foot which was purely visual. The intervention level was a trip of 19mm or above. The claim was defended under Section 58 of the Highways Act on the basis that the system was reasonable even though incapable of discovering this particular defect. The judge at first instance, HHJ Oppenheimer, found for the Claimant on the basis that; (a) this was a busy thoroughfare and (b) the risk of serious harm presented by a manhole was great due to its depth and the presence of electric cables. In those circumstances some form of periodic inspection of manhole covers was required to check that those manhole covers were secure. As the Council had failed to present any evidence as to the impracticality of implementing such a system they had failed to discharge their burden of proof under Section 58 and their Defence failed. On appeal, the Council argued that the judge had imposed too high a burden upon them and had failed to strike the proper balance between public and private interests. The appeal judge, Mr Justice Teare, dismissed the appeal. The first instance judge had considered the public interest and the burden was on the Defendant to prove that loose or tilting manhole covers were so rare that it was unreasonable to expect Highway Authorities to have a system of inspection designed to test whether they were secure. The failure to produce any such evidence meant the defence failed. The (a) (b) the occurrence of accidents involving manhole covers is a rare occurrence, and/or the sheer number of manhole covers in a given area makes it impractical to check their security individually. The decision is of persuasive authority only. The Highway Code of Good Practice does not require specific manhole cover inspections. In many cases there may be the additional option of pursuing the owner of the cover for a contribution. Forbes Solicitors have consulted with their clients on this issue and know of one Authority who embrace the decision, and direct inspectors to tread on individual manhole covers in town centres, and another who reject it as impractical. Each Authority will have to make a decision as to whether they will implement such a system in town centres and if not, then consider producing evidence in future cases to demonstrate the impracticality of doing so. For further information please contact David Pickford on or

12 Cycle helmets - A good thing? Many Local Authorities through Cycle Proficiency courses promote the wearing of cycle helmets to child cyclists. But how good are they in preventing a head injury and what is the legal position if a cyclist were to sustain a head injury when not wearing a helmet? Since the publication of the 1999 edition of the Highway Code it has included the advice that a pedal cyclist should wear a cycle helmet when using a cycle on the For further information on Defendant Insurer Law contact: Martin Crabtree or Blackburn Office Telephone Facsimile Leeds Office Telephone Facsimile Manchester Office Telephone Facsimile highway. Most helmets are made of polystyrene and therefore offer minimal protection by comparison with helmets made for motorcyclists. There is a European Standard for cycle helmets which is designed to provide protection in impacts of up to 15mph. Above that figure it appears to be accepted that they provide limited, if any, protection. They are also designed to prevent injury where there is a blow to the crown of the head. Very few accidents happen in this manner. Brain damage is capable of being caused through a serious blow to the side of the head and in that scenario the helmet would provide no protection at all. Cycle helmets of the design presently in widespread use will not prevent facial injuries. It is also accepted that they will provide less effective protection when the wearer's head hits a vehicle rather than the road and they are largely ineffective in preventing a serious brain injury when the circumstances of the collision involve a glancing blow from a vehicle. So what is the legal position? A practice has grown up during negotiation to argue for a deduction of 25% on the part of the injured party for the failure to wear a cycle helmet. There are very few decided cases Claire Moran a Senior Associate with the firm has joined the team in Manchester. Claire has over twenty years post where the wearing of a helmet has featured as an argument and none which have created a precedent on this point. In the case of A (A Child) v Sturrock (2001) the QC spent a great deal of time attempting to persuade two Neurologists to agree that the injury to the Claimant would have been lessened or prevented by the failure to wear a cycle helmet. All took the view that they had seen brain damage cases and fatalities involving pedal cyclists where helmets had been worn and where they had not and in their view in certain impacts there was very little protection to be had from helmets of the present design. In low value cases Defendants continue to successfully argue that a deduction of 20% to 25% should be made against adults who fail to wear a cycle helmet. In more serious cases a detailed examination of the mechanics of the accident and of the injury would be required before a conclusion can be drawn as to whether the argument should be run. For further information please contact Joe Winstanley on or Around the offices We are delighted that Joe Winstanley has qualification experience and will joined the team at our Blackburn office. concentrate on cases of greater Joe was until recently Technical Claims complexity. She has particularly enjoyed Controller at Allianz Cornhill in a number of successes recently, handling Manchester. He brings with him years of failure to educate cases. The Manchester experience having also worked for Zurich office generally continues to expand Municipal and AGF. Joe is concentrating on motor work and is a key member of the firm's CIS team. enjoying increased instructions in what is now its second year. Last but not least Peter Gold retired as a The Leeds office continues to go from Partner in the firm this year. Peter's strength to strength. The office has been contribution over the years has been open now for over five years. We are in immeasurable. We are delighted to say, the process of renewing our lease and will be taking on significantly more space to accommodate our continued expansion. however, that Peter continues with the firm as a Consultant so that the firm still has the benefit of his vast experience and ability. For further information please contact Martin Crabtree on or Images provided by Dreamstime.com The content of this newsletter is merely informative and should not be relied upon as a substitute for legal advice. All Rights Reserved. Forbes Solicitors 2007

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