MARCH Germaine v Hexham & St Helier University Hospital NHS Trust (Lawtel 4/2/2013) Page. 1 Employers Liability Contributory Negligence

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1 Page 1 Employers Liability Contributory Negligence 2 Employers Liability Mesothelioma MARCH Fraud Death by Dangerous Driving Germaine v Hexham & St Helier University Hospital NHS Trust (Lawtel 4/2/2013) EMPLOYERS LIABILITY; CONTRIBUTORY NEGLIGENCE The Claimant was employed by the defendant as a senior nurse. She suffered a back injury in 2008 when moving rows of metal seating. Contractors had moved the rows of seating over the weekend as they were installing new flooring in the hospital. The contractors had left the seating rows blocking access to consultation rooms. On arriving at work, the claimant asked a porter to help but he refused saying that he was too busy but he would be able to move them after lunch. The claimant telephoned cleaners and maintenance technicians, who also refused and said that it was not their job to move the seating. The project manager, who had overseen the work at the weekend, also refused to assist. The claimant was left in a position where she felt that there was no option other than to move the seats herself, as they were blocking the consulting rooms and patients were beginning to arrive. She successfully moved three rows but injured her back moving the fourth. The incident was immediately reported to her line manager. The extent of her injuries was such that she was required to leave her employment as a senior nurse. trained in manual handling techniques but had failed to exercise proper form when lifting the seating. She had failed to consider alternatives and should have waited for porters to arrive after lunch. The defendant s arguments were dismissed by the High Court. When giving evidence at the trial, the claimant s manager had criticised her actions, but this was contradicted by the reports which had been made shortly after the incident. The line manager s first report, which was only a month after the claimant sustained her injuries, clearly stated that the chairs needed to be moved, implying that she had no option given the lack of co-operation from others. No criticism was directed towards the claimant in this initial report. The defendant admitted liability but sought a reduction for contributory negligence on the basis that the claimant had been adequately

2 There was a second report compiled several months later, and again the claimant s line manager did not criticise her directly. There was criticism of others including the project manager, contractors and porters, all of whom should have assisted when the claimant asked for help. The claimant s manual handling training was adequate but it was specific to the nurse s role, i.e. moving and handling patients. Manual lifting of the heavy metal seating was not part of her usual duties and therefore not covered in her training. It had not been reasonably practicable for the claimant to avoid lifting the seating. She was left in an impossible position, with patients arriving, the consultation rooms being blocked and employees more suited to the task refusing to help. The defendant s arguments were rejected and there was no finding of contributory negligence. It s clear that the claimant had tried to get help from others, and she had no option but to move the seating even though it was not part of her usual job. A finding of contributory negligence could have been made if the claimant had taken it upon herself to move the seating rather than ask others for help, as the defendant would be in a much stronger position to say that other employees who had been properly trained to lift items, such as the seating, were available. However, the claimant had taken reasonable steps to get help from others and she cannot be criticised for her actions. International Energy Group Ltd v Zurich Insurance plc UK Branch (2013) EWCA Civ39 EMPLOYER S LIABILITY, MESOTHELIOMA, EMPLOYER S LIABILITY INSURANCE - The Court of Appeal overturned an earlier decision, and held that the employer s liability insurer was liable to indemnify the employer for all damages paid when a former employee contracted mesothelioma. The deceased employee had been employed by International Energy for 27 years, from 1967 to He had then moved onto other companies where he had also been exposed to asbestos. The defendant Insurer had provided employer s liability cover for only six years, between 1982 and International Energy has settled the claim in full, applying Fairchild v Glenhaven Funeral Services Ltd (UK HL ) which had held that exposure to asbestos had materially increased the risk of developing mesothelioma. An employee who had developed mesothelioma was entitled to recover damages in full from the employer who had materially increased the risk of injury, even if he had been equally exposed to asbestos with other employers.

3 The decision in Fairchild was modified by Barker v Corus UK Ltd (2006), which held that damages could be divided according to the share of each company s contribution to the risk. The decision in Barker left many affected employees potentially unable to recover damages in full, when it was not possible to identify all insurers on risk when the employee had been negligently exposed to asbestos. Parliament therefore intervened, and the Compensation Act 2006 allows employees suffering from mesothelioma to recover in full against any employer who had exposed them. In other words, they did not need to pursue separate claims against a multitude of employers and insurers, some of whom could not be traced or were uninsured and unable to pay damages. However, the Compensation Act 2006 does not apply in Guernsey where this action was brought, and the Court of Appeal therefore had to consider the claim on common law principles. It was held that, for the purposes of employer s liability insurance, liability for mesothelioma following exposure to asbestos created during an insurance period involved a sufficient causal link for the disease to be regarded as being caused within that insurance period (Fairchild and Durham v BAI (Runoff) Ltd (2012) considered. The combined effect of Fairchild and Durham was that there was a sufficient casual link between the employee s exposure to asbestos during the period Zurich were on risk for International Energy to be liable for causing the disease. International Energy had a contractual right of indemnity under the Zurich policy to cover that liability. The employee s exposure elsewhere was irrelevant when considering International Energy s right to an indemnity under the Zurich policy. Once it had been established that exposure during a policy period had triggered International Energy s liability to the claimant, they were entitled to claim an indemnity under that policy. It would be inequitable to regard an employer as being self insured in respect of any period for which they were unable to trace insurance cover. This case was made less straightforward as the provisions of the Compensation Act 2006 did not apply in Guernsey. The Court of Appeal held that International Energy was liable to compensate the claimant in full, notwithstanding the fact that he had been exposed to asbestos elsewhere. Zurich were on cover for only 6 out of 27 years of employment, but once it had been established that negligent exposure had occurred during their policy period, the employer s liability policy was required to provide a full indemnity.

4 Fraud Death by Dangerous Driving; Sentencing Baljinder Gill suffered fatal injuries in a staged road traffic accident which occurred on 11 June 2011 on the A40 Western Avenue, heading out of London. Two collisions took place in short succession on the outside lane of the A40. The first collision was a staged accident where the three defendants (A B Skowron, R P Bileaski and J Kowalczyk) were driving and a passenger in a Volkswagen Passat and Audi A3. They carried out a deliberately dangerous manoeuvre, intending to cause an innocent Ford Transit van to collide with the rear of one of their cars. The occupants of the cars would then pursue fraudulent whiplash claims. The driver of the Ford Transit van was vigilant and managed to avoid the collision. He braked sharply but Ms Gill crashed into the back of the van. After leaving her vehicle to inspect the damage and then reaching back in to get some personal items out of the back seat, her vehicle was struck by a Renault Trafic van, killing her instantly. The defendants pleaded guilty to causing death by dangerous driving, conspiracy to commit fraud and perverting the course of justice. One was jailed for ten years and the other two, ten years three months. Another defendant, Artur Okrutny, was involved but not present at the crashes. He had been paid 300 to help pay off debts, and was jailed for 12 months for perverting the course of justice. The Renault Trafic van which ploughed into Ms Gill s car was driven by Colin Lee. He was not involved in the scam but jailed for 12 months for causing death by careless driving, having previously being cleared by a jury of the more serious offence of causing death by dangerous driving.

5 Mr Lee was driving at 70 mph in a 60 mph zone and the judge said that he had not made enough effort to stop to avoid crashing into Ms Gill s car, despite having time to do so. Reading Crown Court was told that this type of staged crash was part of an elaborate criminal industry which costs insurers and motorists 392 million per year. This was a landmark case as it was the first incident whereby a person had died as a result of a staged crash. The case shows that far from being a victimless crime, a staged crash can have unintended and catastrophic consequences. The maximum sentence for causing death by dangerous driving is 14 years imprisonment. The sentences imposed in this case were towards the upper end of the guidelines, and the intended fraud was an aggravating factor which increased the sentences. The contents are considered accurate at the time of publication but nothing in this document constitutes specific legal advice from Cunningham Lindsey or any of the sources from whom contributions have been gratefully received. It is intended only to highlight issues that may be of interest to those to whom it is sent directly. Cunningham Lindsey accepts no liability for errors or omissions in this document. The purpose of this publication is to provide a précis of recent interesting case law and legal developments. If you would like to request that particular areas of liability law and claims handling feature in future editions please contact our editor, Craig Faulkner. Craig works within Liability Services as a Complex Loss Specialist. He has 23 years experience in the insurance industry specialising in personal injury cases particularly catastrophic injuries, fatal accidents, bullying, stress, harassment, sports and the entertainment and leisure industry. Craig Faulkner FCII CIP Complex Loss Specialist Liability Services Lowry House 17 Marble Street Manchester M2 3AW Mobile: craig.faulkner@cl-uk.com