Pharmaceutical giant Merck has settled litigation in the United States in relation to its arthritis treatment Vioxx for US$4.85 billion (£2.42 billion). Merck had removed Vioxx from the market on the 30th September 2004 after a study found that it doubled the risk of heart attacks and strokes.

The deal settles around 44,000 US claims. Had Merck not settled the litigation, it could have ultimately been facing an overall payout of US$30 billion.

The amount agreed of US$4.85 billion represents around 9-12 months profits for Merck. According to the company's chief executive, Richard Clark, the settlement allows the company to resolve the financial uncertainties that have been hanging over the company.

Nevertheless, the settlement does not apply to British lawsuits, only to US claimants. Approximately 400,000 people were prescribed Vioxx in the UK and about 300 claims have been launched by British families so far.

The Defence Secretary recently announced changes to the way personnel within the armed forces will be compensated when injured in the course of their service. Instead of just compensating them for the 3 most serious injuries arising out of a single incident as is presently the case, they will now be compensated for all injuries arising out of it. The changes moreover are to be backdated. Nevertheless, the cap of £285,000 on the level of compensation awarded remains and this has led to enormous injustices. With respect to the recent high profile case of Ben Parkinson, for example, who was blown up in Afganistan, despite being left paralysed, losing both his legs, and suffering a blast injury to his brain, he was awarded just £152,150 under the old rules which completely ignored 34 of his other injuries. However, following the rule changes, he will now receive the full £285,000. Nevertheless, the fact remains that if Ben Parkinson had received the same injuries in a UK civilian road traffic accident for which he was not at fault, he would have received far more more compensation. Moreover, the £285,000 in compensation he will now receive is in distinct contrast to the £484,000 of compensation an RAF typist is reported in the press to have received for a repetitive strain injury to their thumb.

On the 20th April 2007, the Ministry of Justice issued a consultation paper on case track limits and the claims process for personal injury claims. The consultation has been initiated as a direct result of frenzied lobbying by the insurance industry and it is they and they alone (at the expense of Claimant's) who stand to gain from the introduction of these proposals should they be implemented. Amongst the many poorly thought out measures, one of the worst is that when making a claim, the Claimant is expected to make an offer of settlement and should a lower amount be awarded by a court, then the Claimant will lose their right to have their legal costs paid by the responsible party’s insurers. What a ludicrous suggestion!! In what way does this promote justice? It doesn’t. Instead, Claimant’s will feel compelled to submit artificially low offers and to accept a lower level of damages than they otherwise deserve and are entitled to. Quite simply, this is a deliberate and devious ploy by the insurance industry to catch Claimant’s out, reduce compensation awards, and thereby reduce their costs. Moreover, how can it be just for a Claimant to be penalised and not have their legal costs paid simply because their valuation is 1 pence above what a court says their claim is worth?

According to a recent study by Cancer Research UK and the UK Association of Cancer Registries, Mesothelioma is increasing at the third highest rate amongst cancers. Moreover, the number of deaths from the disease has still not peaked and is not likely to do so until around 2015.

A recent report commissioned by Comic Relief, entitled the UK Study of Abuse and Neglect of Older People, found that a shocking 4% of people over the age of 66 who live in their own homes have been subjected to some form of neglect or abuse in the last year by either their own family (including partners), a close friend, or a care worker. The study found that the majority of the abuse had been perpetrated by a family member.

The appeal against the Court of Appeals appalling decision on Pleural Plaques (a scarring of the lungs) in the case of Rothwell v Chemical & Insulating Co. Ltd (2006) has just been heard by the House of Lords. In this case, the Court of Appeal held that companies who are responsible for causing Pleural Plaques by negligently exposing their employees and members of the public to asbestos fibres cannot be held liable for psychiatric injury caused by the fear of going onto contract a more serious asbestos related illness such as asbestosis or mesothelioma because, it maintained, pleural plaques as a condition in itself is insufficiently serious to give rise to a cause of action and the law does not recognise a duty to take care not to cause anxiety. However, as The Accident Solicitors stated in an earlier article, “given that pleural plaques are evidence that the person who has the condition could go onto develop an asbestos related condition which would amount to a death sentence, the Court’s decision was an extremely harsh one. The Court had within its power the ability to create a duty to take care not to cause anxiety through fear of going onto contract a fatal illness in the wider public interest had it so wished, as opposed to prioritising the interests of commercial companies.  Indeed, shaping law in the wider public interest is one of the Court of Appeals principal functions and surely in a civilized society, it is not unreasonable to impose a duty of care on companies to ensure that they do not place people in fear for their own lives”. The decision, unless overturned by the House of Lords, would bring an established right to compensation to an end and produce a huge financial saving for insurance companies. Essentially, the Court of Appeal ignored its social policy role in the legal system to ensure that the wider public interest and the overall interests of justice prevailed over the commercial interests of insurance companies, and left innocent victims feeling completely betrayed and let down by the entire legal system. The House of Lords hands down its decision later in the year.

The number of people dying from Mesothelioma continues to rise and has almost reached a rate of 2000 per annum. The latest grim statistics published by the Health & Safety Executive show that the number of deaths increased from 1885 in 2003 to 1969 in 2004. The death toll has increased markedly over the last decade with 1322 deaths back in 1996.

In the recent case of Intel Incorporation (UK) Ltd v Daw (2007), the Court of Appeal held that simply providing a counselling service does not of itself absolve an employer of responsibility for occupational stress. The Court found in this particular case that poor management had led to excessive workload. The employers counselling service in no way alleviated this, as ultimately, the poor management and excessive workload issues remained unaddressed. The fundamental lesson employers should take away from this case is that as the provision of a counselling service is not sufficient in itself to discharge them of their legal duties (as that does no more than treat the symptoms of occupational stress), the onus is upon them to tackle the underlying problems causing the stress in the first place (e.g. in this case, reduce the workload and rectify the managerial problems which brought about the excessive workload).

The Government has just announced that it is extending eligibility for welfare benefits for mesothelioma sufferers from just those who contracted it from exposures to asbestos as work to all mesothelioma sufferers. The changes are likely to come into effect early next year.

The 27th February 2007 marked the second Mesothelioma Action Day which was held to highlight the increasing death rate from the condition and the low level of Government funding for treatment. As well as a reception at the House of Commons, events were held in Manchester, Liverpool, and in many other areas. Around 2000 people are diagnosed with the condition every year and each is usually given the devastating prognosis that they have less than 12 months to live as there is presently no cure.

A parliamentary question to the Government has been submitted by MP for Blaydon, David Anderson, as to whether and when the National Institute for Clinical Excellence (NICE) will make Alimta, a new chemotherapy drug which can allegedly prolong the lives of Mesothelioma sufferers, available on the NHS. An answer to the question is expected soon.

The National Institute for Clinical Excellence (NICE) has announced that it will be making a decision in around September 2007 as to whether Alimta, a new chemotherapy drug which can allegedly prolong the lives of Mesothelioma sufferers, will be made available on the NHS.

Unfortunately, there remains no cure for Mesothelioma

The Crown Prosecution Service launched a public consultation on road traffic offences on the 13th December 2006 seeking views on how offences are prosecuted and the service it offers to victims and witnesses. Legislation governs the charges open to the CPS for road traffic offences. Within the parameters laid down by Parliament, there are areas where CPS policy can have a clear effect on the way cases are dealt with. The areas on which the CPS is consulting include:

• What sort of behaviour or actions by drivers should constitute dangerous driving and what should constitute careless driving?

• What information do victims and victims families want and when do they want this?

• How should cases involving the death of a family member or close friend be prosecuted?

Ken Macdonald QC, Director of Public Prosecutions, said: "For most people driving is an everyday activity but a moment of bad, inconsiderate or dangerous driving can have a devastating affect on peoples lives. The way bad driving is dealt with is a matter of great public concern and I am determined to ensure that we offer the best possible service. We apply the law to a wide variety of cases, each of which has its own specific and sometimes tragic circumstances. Incidents can involve a wide variety of people and situations and it is our role to assess the entire incident and apply the law. I want this consultation to open up our practices and procedures and to explain how and why we make decisions. Within the legal framework in which we operate I want to ensure that the service we offer takes account of public attitudes and that people have a fuller understanding of, and confidence in, our decisions."

The dangers posed by carbon monoxide were highlighted again recently by the tragic deaths of Robert and Christianne Shepherd at the Louis Corcyra Beach Hotel in Gouvia, Corfu. Unfortunately, there are numerous fatalities each year of this type. Where a family member has been killed as a result of exposure to carbon monoxide in this country, then you may have a claim for compensation for bereavement and for loss of family income arising out the death. If you yourself have survived an incident involving carbon monoxide exposure, then you may also be able to bring a claim for compensation. The most common type of carbon monoxide claim is that brought by tenants against landlords who have failed to comply with their obligations to have a gas appliance within the property serviced annually by a registered gas engineer. Another common type of claim is that brought against gas engineers for failing to install gas appliances properly or for failing to properly service a defective gas appliance. Carbon monoxide incidents occurring abroad whilst on holiday can be more complicated. The Package Travel, Package Holidays and Package Tours Regulations 1992 govern the responsibilities Tour Operators have to holidaymakers booking a package holiday. If their holiday is covered by the regulations, then the holidaymaker has the option of suing the Tour Operator in this country. Accordingly, the Tour Operator can be held accountable for the actions/omissions of the hotel owner and others. Nevertheless, it will usually be necessary to show that there was a failure to comply with relevant local standards which are often lower than the standards which apply in this country. However, should the accident not have occurred within the context of a package holiday, then the claimant would no option but to sue the party responsible in the country in which the accident occurred under whatever legal system applies in that country.

Health inspectors recently announced that nearly half of Britain's hairdressers are suffering from dermatitis - a debilitating and career-threatening skin disease brought about by the chemicals used in their trade. Around 50,000 hairdressers and barbers across the UK are affected and it is attributed to widespread flouting of safety regulations by salon employers. The hairdressers and barbers involved are contracting the dermatitis through regular exposure to products containing large quantities of chemicals such as peroxides, soaps and shampoos, and it usually develops when they are engaged in "wet working" (i.e. washing hair or applying chemicals and dyes to a succession of customers). Problems like this could be avoided if hairdressers use vinyl or nitrile based synthetic gloves whenever they wash hair or use chemical products.

The Court of Appeals appalling decision on Pleural Plaques (a scarring of the lungs) in the case of Rothwell v Chemical & Insulating Co. Ltd (2006) has been appealed to the House of Lords who will hear the case from the 25th June 2007 – 2nd July 2007. In this case, the Court of Appeal held that companies who are responsible for causing Pleural Plaques by negligently exposing their employees and members of the public to asbestos fibres cannot be held liable for psychiatric injury caused by the fear of going onto contract a more serious asbestos related illness such as asbestosis or mesothelioma because, it maintained, pleural plaques as a condition in itself is insufficiently serious to give rise to a cause of action and the law does not recognise a duty to take care not to cause anxiety. As The Accident Solicitors stated in our article dated the 20th March 2006, “given that pleural plaques are evidence that the person who has the condition could go onto develop an asbestos related condition which would amount to a death sentence, the Court’s decision was an extremely harsh one. The Court had within its power the ability to create a duty to take care not to cause anxiety through fear of going onto contract a fatal illness in the wider public interest had it so wished, as opposed to prioritising the interests of commercial companies.  Indeed, shaping law in the wider public interest is one of the Court of Appeals principal functions and surely in a civilized society, it is not unreasonable to impose a duty of care on companies to ensure that they do not place people in fear for their own lives”. The decision, unless overturned by the House of Lords, brings an established right to compensation of 20 years standing to an end where claimants could expect to receive compensation worth up to £15,000. If the House of Lords upholds the Court of Appeals decision, it will result in a substantial windfall saving for insurance companies. The disgraceful decision by the Court of Appeal in this case in March 2006 has many similarities to the equally appalling decision by the House of Lords in Barker v St. Gobain Pipelines in May 2006 (for details on the Barker case, see the articles dated the 6th May 2006 and 3rd August 2006). In both cases, the appeal courts ignored the fact that they have a social policy role in the legal system to ensure that the wider public interest and the overall interests of justice prevail over the commercial interests of insurance companies, and left innocent victims feeling completely betrayed and let down by the entire legal system. Indeed, the House of Lords decision in Barker v St. Gobain Pipelines was so unjust and provoked such an outcry, that Prime Minister Tony Blair had to personally intervene shortly afterwards to bring about a change in the law. Hopefully, this time the House of Lords will learn from that experience and overturn the Court of Appeals decision in Rothwell v Chemical & Insulating Co. Ltd. If it doesn’t, then it will be provide further evidence that has been apparent for some time that the appeal court system in this country no longer seems to be functioning properly and measures will surely need to be taken by the Government to ensure that the appeal courts start taking their social responsibilities and the wider public interest more seriously.

The tragic accident in Battersea last week in which a crane callapsed onto a block of flats killing two has only served to highlight the appalling fact that falls from a height remain the biggest cause of death in the workplace.

The Work at Height Regulations (2005) came into force on the 6th April 2005 and its introduction has contributed to a slight fall in the number of fatalities. In 2005/06, there were 59 fatalities compared with 67 in 2003/04. However, the statistics remain far too high.

Under the new Regulations, employers, the self employed, and any person who controls the work of others are now under a duty to avoid work at height where they can, use work equipment or other measures to prevent falls where working at a height cannot be avoided, and where the risk of a fall cannot be eliminated, minimise the distance and the consequence of a fall should one occur. Furthermore, duty holders must also ensure that all work at a height is properly planned and organised, that those working at a height are competent, that the risks from working at a height are fully assessed and appropriate work equipment is selected and used, that the risks from fragile surfaces are properly controlled, and that the equipment used is properly inspected and maintained.

The introduction of these Regulations is one thing. The key to their success resides in their enforcement and the fact that the number of fatalities has only fallen slightly illustrates that much greater enforcement is required.

Richard Langton, president of APIL, has welcomed the swift action by the Government following the House of Lord's disgraceful decision in Barker v Corus (2006) (for background information on Barker v Corus and the Government's response, see our news article dated the 3rd August 2006 in our archive news section). Mr Langton said that the "speed with which the Government has addressed the issue could mean thousands of mesothelioma victims and their families have a better chance of obtaining compensation". Nevertheless, Mr Langton called upon the Government to set up "an employers insurers bureau which would act as an insurer of last resort to help those people unable to make a claim through the usual channels".

Shocking new research published by Axa Insurance has found that an astonishing 10% of all workers have sustained an injury whilst at work in the last 5 years. According to Axa, “Whilst employee injuries are most likely to be caused by work-related accidents (81%), for example, using machinery and tripping over, a shocking eight per cent of work-related injuries sustained by employees resulted from a physical assault by either a customer or colleague. Maybe even more surprising is the fact that the professional services industry, which includes lawyers, consultants and accountants, experienced the highest level of physical assault with as many as 15% of employees working in the sector being assaulted by a customer. The study also revealed that employees who work for large companies (250 employees or more) are almost twice as likely to suffer an injury whilst working compared to those employed by small and medium-sized companies (10 to 250 employees). Like SMEs, smaller businesses (one to nine employees) also had a better record for workplace accidents and injuries when compared with large companies - 17% of small business employees have suffered injuries at work compared to 47% in large companies. Workplace accidents account for the most injuries at work and one third of all injuries are the result of falls or trips. Strains and sprains are the most common result of an accident – 34% of workplace accidents resulted in these types of injuries. The AXA study also found that employees aged over 50 are most likely to have a fall whilst doing their job (47%) compared to 28% of 18-29 year olds and nearly one in ten of those injured UK employees (9%) complain of Repetitive Strain Inquiry (RSI) or other injuries caused by the working environment”.

The full results of Axa’s research are as follows:-

Most common accidents and resulting injuries sustained in the workplace:

The new Coporate Manslaughter Bill was finally published on the 21st July 2006. It is intended under the new legislation that companies will be liable for corporate manslaughter if the way in which the organisations activities are managed and organised by its senior managers amounts to a gross breach of the relevant duty of care owed by the organisation to the deceased. Welcoming the new bill, TUC General Secretary Brendan Barber said, "This bill has been a long time coming...[I]..hope it will make it easier to bring prosecutions against companies whose negligence has contributed to the death of employees or members of the public".

According to the Health & Safety Executive, 212 workers and 384 members of the public were killed as a result of workplace accidents during 2005/06 and a high percentage of these deaths were a direct result of negligence on the part of employers, usually attempts by managers to "cut corners". The main aim of the new bill is to reduce this death toll

However, another reason why the new bill has been introduced is that it has proven almost impossible to obtain a conviction under the present law because one has to show that the firms "controlling mind" (i.e. usually its most senior person) was responsible rather than on the basis of wider negligence across the firm. Accordingly, as the present law stands, it is simply not possible obtain a conviction on the basis that the company was grossly negligent on account of the negligence of several individuals. Instead, a specific individual has to be identified as the "controlling mind" within the organisation and this is what the new bill aims to rectify.

Corporate manslaughter charges were brought against Balfour Beatty and Network Rail as a result of the Hatfield Rail Crash in October 2000 in which 4 people were killed and many others injured. However, the prosecutions callapsed last year as it proved impossible to show that the "controlling mind" within each organisation was responsible and this led to calls for a change in the law. Hence, the new bill.

However, the new bill, as it stands, fails to address several important issues. For one thing, it does not cover unincorporated organisations. Why not? Moreover, there is no clear guidance on penalties which indicates that the fines are unlikely to be any greater than under the present health & safety laws and they will therefore act as no real deterrance. There is also no provision for the disqualification of directors or corporate probation, both of which have intrinsic deterrance value. Nevertheless, despite these omissions, the new legislation should at least make it easier to obtain convictions and it may well be the case that as the bill goes through parliament, the omissions will be addressed.  

The new Compensation Act came into force on the 26th July 2006 and the measures to regulate so called 'claims management companies' are extremely welcome. As Constitional Affairs Minister, Baroness Ashton, said, "For too long people have been pressured into making claims by 'hard sell' tactics and misled by inappropriate and aggressive advertising. This legislation will make those who sell such services conform to strict rules of conduct and deal with their client's honestly".

It is expected that the new regulatory regime will be fully in place by Spring 2007. However, these reforms, whilst welcome, do not go far enough. Personal injury claims are best handled by qualified professionals (i.e. firms of solicitors) who know what they are doing. All of the problems associated with the personal injury profession stem from the rise and activities of the claims management companies including the development of the compensation culture myth. Quite simply, the Compensation Act should have outlawed claims management companies and prohibited any other organisation apart from solicitors from handling personal injury work. That would restore public confidence in the personal injury sector as it would guarantee that claims were handled properly and professionally and that client's would receive the quality of service they deserve. It would also dispel any notion that a compensation culture exists in this country because with solicitors handling claims, only valid and legitimate claims would ever see the light of day.

Nevertheless, as well as bringing in a new regulatory regime for claims management companies, the Compensation Act has also brought in provisions relating to the law of negligence and breach of statutory duty. These provisions essentially will allow the courts when considering what standard of care applies to take account of whether requiring particular steps to be taken to meet the standard of care would prevent or impede a so called 'desirable activity' from taking place. According to the Government, "this will improve awareness of this aspect of law and will help to ensure that normal activities are not prevented because of a fear of litigation and excessively risk averse behaviour". These measures go back to comments made by the Lord Chancellor in relation to school trips which The Accident Solicitors commented upon in an article in this news section on the 7th June 2006. According to the Lord Chancellor, "people do not do school trips because they fear they might be sued". However, as The Accident Solicitors pointed out in its 7th June article, the very reason why accidents on school trips have become so rare is because of the fear of being sued and the emphasis now placed upon safety issues as a result of that fear. By bringing in these new provisions, the fear of being sued will be reduced and that inevitably will bring about a lowering in safety standards. This could be potentially disastrous. One set of adverse media headlines pertaining to a major disaster (possible even on a school trip) which could have been avoided but for the introduction of these provisions will probably be enough to see them scrapped at some point in the future. Indeed, common sense dictates that its as inevitable as night follows day. Being devils advocate, how high a priority will safety issues be on school trips for cash strapped schools if they know that they will not be sued if anything goes wrong? The answer is obvious and if the Government can't see it then they are being extremely naive to say the very least. Moreover, it is terrible to think that people are going to needlessly lose their lives as a direct result of these provisions before the Government wakes up and smells the coffee. Quite simply, there is no such thing as "excessively risk averse behaviour" where safety is concerned. One death resulting from lax safety is one death too many.

An amendment to the Compensation Bill during its recent third reading means that victims of mesothelioma can now again claim full compensation from any of the companies who exposed them to asbestos.

The amendment essentially reverses the disgraceful ruling by the House of Lords on the 3rd May 2006 in Barker v St. Gobain Pipelines (2006) in which it held that if a victim was exposed to asbestos by several different companies, then compensation should be apportioned between the culpable companies and that the level of compensation each company should be responsible for paying should be proportionate to the percentage contribution they made to the victims total asbestos exposure. However, as The Accident Solicitors pointed out in this news section in an article on the case on the 6th May 2006, should this decision from the Law Lords have gone unchallenged, then most victims of mesothelioma would have received far less compensation than they deserved because in most mesothelioma cases it is simply not possible to trace all of the employers a victim has worked for who may have exposed them to asbestos because exposure will have taken place many decades prior to the disease manifesting itself and in that time, many of the companies will have gone out of business, thereby making it extremely difficult to determine who their insurers were. 

The appalling decision by the House of Lords provoked such an outcry that it prompted the Prime Minister, Tony Blair, to give his personal backing to a campaign to reverse the decision and it is this campaign which has led to the amendment to the Compensation Bill.

The amendment, as stated above, now enables victims to obtain full compensation from any of the companies who exposed them to asbestos. As The Accident Solicitors pointed out in its May 6th article, victims of mesothelioma and their families had felt extremely let down by the legal system following the House of Lords ruling in Barker. It is therefore good to see that the system is such that major injustices such as the Barker decision can be reversed as relatively quickly as it has. The House of Lords however should learn from this experience and be mindful of the fact that it does have a social policy role which it should be mindful of when deliberating on cases such as Barker to ensure that the wider public interest and the overall interests of justice prevail. It seemed to completely lose sight of this fact in Barker.

On the 12th July 2006, the House of Lords upheld the Court of Appeal decision in Majrowski v Guy's & St. Thomas's NHS Trust (2006). The Law Lords ruled that employers can be held vicariously liable under The Protection From Harassment Act 1997 for acts of workplace bullying and harassment by their employees committed in the course of their employment against fellow employees and other third parties.

The decision was very good news and gives employees an opportunity to seek redress against the activities of workplace bullies.

Overturning the 1979 decision in Walkley v Precision Forgings Ltd, the House of Lords held in the case of Horton v Sadler (2006) that where a Claimant in a personal injury action had initially issued court proceedings before the limitation period had expired and had brought a second action in respect of the same injuries after the limitation period had expired, then a court should use its discretion under section 33 of the Limitation Act 1980 to disapply the 3 year limitation period.

The claimant in the Horton case had been injured in a road traffic accident by an uninsured driver and had had the utter misfortune to fail to adhere to the ridiculous and utterly pointless Motor Insurers Bureau (MIB) notice requirements in relation to its uninsured drivers scheme. The MIB is the organisation which was set up to compensate victims who suffer injury and loss as a result of the actions of uninsured drivers and the pathetic notice requirements were introduced at the behest of John Prescott in 1999. The sole purpose behind the requirements was simply to reduce the total compensation payout by the MIB to an absolute minimum. Essentially, they were designed in such a way that should any claimant breach the requirements, they would lose their entitlement to be compensated by the MIB regardless of any injustice it would create. Consequently, over the last 7 years, numerous seriously injured victims of uninsured drivers (many with terrible injuries such as brain damage and paralysis) have been left totally uncompensated - an appalling state of affairs in a so called civilised society  

The main benefit of the Horton judgement is that where Claimant's do have the misfortune to fall foul of the shameful MIB notice requirements and inadvertantly breach the limitation rules as a result, they will now at least have the opportunity to commence proceedings outside the limitation period and apply to the court to have the limitation rules disapplied. However, as the House of Lords ruled only that judges should exercise their discretion to disapply the limitation rules, there is no guarantee that in individual cases the limitation rules will be disapplied. Hence, the windfall gains which the MIB has benefitted from as a result of breaches of its notice requirements at the expense of innocent victims of uninsured drivers have not been halted in their entirety. They will simply reduce. Nevertheless, if the MIB and the Government had any decency whatsoever, they would put the interests of the many thousands of innocent victims each year who have the misfortune to be injured by uninsured drivers first and foremost and scrap the MIB notice requirements which have created so much injustice over the last 7 years altogether. What are the odds on that happening though..........

The Lord Chief Justice and the Master of the Rolls have both criticised the Governments proposals to allow organisations other than law firms to provide legal services and advice. The Lord Chief Justice, Lord Philips said that "people think that it means that they will be able to get legal advice from a kiosk in Tesco for £5...It [is] more likely to be organisations such as claims management companies that would want to take advantage." Given what happened in relation to TAG and Claims Direct, once these Government proposals materialise, a shambles of monumental proportions awaits.

New “laws designed to stamp out the fear of being sued” read a recent article in the press. “People do not do school trips because they fear they might be sued” said the Lord Chancellor on behalf of the Government. However, is it really such a good idea to “stamp out the fear of being sued”?

The Lord Chancellors argument entirely misses the point. Indeed, it is thanks to the “fear of being sued” that the whole emphasis now when organizing a school trip is firmly on safety and it is the principal reason why safety standards have improved over the years. One only has to look at recent accidents on school trips to realize how disastrous the consequences could be if the fear factor were removed:-

• In 2003, a geography teacher, was jailed for the death of 10-year-old boy who was swept away by a swollen Lake District stream. The Judge said that the teacher had been "unbelievably negligent and foolhardy"
• Four children died in March 1993 whilst canoeing in Lyme Bay, Dorset. A report by the local Council stated that "the..cause of the tragedy was..the lamentable failure of” the activity centre “to organise and supervise the canoeing activity, to employ suitable staff and to have prepared and operated sensible and pre-determined procedures when difficulties arose."
• October 2000 – 2 girls were killed on a school adventure week in the Yorkshire Dales. They lost their footing when ‘river walking’ and were swept away. Leeds City Council was fined £30,000 for not ensuring their safety
• November 14th 2005, a boy died in a caving accident in Yorkshire whilst on a school trip.
• Twelve children died when the minibus they were travelling in crashed into the back of a maintenance vehicle on the hard shoulder of the M40 after their teacher, who was driving the minibus, fell asleep at the wheel.
• Four children died a few years ago when they were swept out to sea at Lands End on a school trip

Tragedies such as these are thankfully rare. But why are they rare? Quite simply it is because of the fear of being sued. Remove the fear factor and safety issues would no longer be a priority for those responsible for the safety of others and tragedies such as those outlined above would become more commonplace.

Thousands of people injured in assaults will no longer be eligible for compensation under proposals recently unveiled by the Government.

Richard Langton, the new Association of Personal Injury Lawyers (APIL) president, has slated the tactics adopted by the Association of British Insurers in the ongoing discussions over the Small Claims threshold, which if increased would severely curtail access to justice. He said that "The Association of British Insurers has in the last few months plunged to new depths in espousing its vision. They say they do not wish to exclude lawyers from the process. But in their brave new world we are included only as a sign off once a deal has been struck". One example of the tactics adopted by insurers which backfired on them spectacularly was the inflation error made by the Norwich Union in its evidence to the Constitutional Affairs Select Committee on Small Claims. In commenting on Norwich Union's mistake, Mr Langton said: "Norwich Union told the...committee that looking at inflation generally since 1991 the figure of £1,000.00 should now be in the band £2,500.00 to £3,000.00. For future inflation proofing [they said that] beyond 2005 a figure of £4,000.00 to £5,000.00 would be more pragmatic. But the true Retail Price Index increase since 1991 is, as a matter of fact, less than 50 percent, not 500 per cent. Which propagandist said 'the bigger the lie, the more people will accept it'?" It was of course Adolph Hitler.....

The House of Lords  reached a decision in the Mesothelioma test cases of Barker v St Gobain Pipelines (2006) on the 3rd May 2006. Overturning the Fairchild ruling, the Court held that when it was impossible to determine which employer caused the condition, then damages should be divided between all of the employers responsible for the victim’s exposure to asbestos.

Back in 2002, it had been established in the case of Fairchild v Glenhaven Funeral Services Ltd (2002) that if a Defendant had exposed the victim to asbestos, thereby increasing the risk of contracting mesothelioma, then they could be held fully responsible for the entire condition. However, the Defendant in the Barker appeal argued that if a victim was exposed to asbestos by several different companies, then compensation should be apportioned between the culpable companies and that the level of compensation each company should be responsible for paying should be proportionate to the percentage contribution they made to the victims total asbestos exposure. The House of Lords agreed with this argument and affirmed the principle in its ruling

Accordingly, for a victim to obtain full compensation, their solicitor will now have to trace literally every single company which may have exposed them to asbestos, no matter how small the exposure may have been, and should one or more of those companies or their insurers prove to be untraceable, then the victim’s compensation will be reduced. The problem is that more often than not, it is simply impossible to locate every company as mesothelioma usually takes many decades to develop once the victim has been exposed to asbestos, and in that time, one or more of the companies may have folded, thereby rendering details of their insurers almost untraceable. Moreover, even when the insurers can be traced, the insurers often deny that they provided cover because they know that the victim’s solicitors are unlikely to be able to prove that they were the insurers, as the documentary evidence has long since disappeared.  

Unfortunately, therefore, the Law Lords decision in Barker v St Gobain Pipelines (2006) is likely to bring about significant reductions in the level of damages awarded to Mesothelioma victims and their families. It is also likely to increase the litigation costs of cases as the time spent in tracing all of the culpable companies responsible for the asbestos exposure (the additional time spent probably bringing about a situation where most victims will have died long before any compensation award is made) will rise considerably. All of this is devastating news for the victims and their families. Given that a diagnosis of mesothelioma is a death sentence to the victim, and the fact that companies continued to expose people to asbestos well beyond the 1960’s after the dangers of asbestos exposure became common knowledge, the ruling has left victims and their families feeling totally let down by the legal system.  

Eileen Corr (Administratrix of the Estate of Thomas Corr (Deceased) v IBC Vehicles Ltd (2006) - the appellant's husband (H) was badly injured in a factory accident as a result of his employers negligence and breach of statutory duty. As a result of his injuries, H became severely depressed and 6 years after the accident occurred, he committed suicide. The employer (E) argued that the suicide was not reasonably foreseeable and that they should not therefore be expected to compensate for the consequences of the suicide. The Court of Appeal, however, held that the severe depression which brought about H's suicide was a foreseeable consequence of E's negligence and breach of statutory duty and that as suicide is a common consequence of depression, the compensatable consequences of the depression included H's eventual suicide

Law Society President Kevin Martin has welcomed the Civil Justice Council's call not to increase the £1,000.00 small claims limit for personal injury cases. He said that "such a rise would mean many people..[would]..not be able to seek redress because the case is too complicated and costs are not recoverable." Mr Martin also added that the focus should instead be "on simplifying the system."

A new service for UK residents who have been injured as a result of a crime of violence in another European Union (EU) country on or after the 1st July 2005 has been launched by the Criminal Injuries Compensation Authority (CICA).

The Court of Appeal recently held in Rothwell v Chemical & Insulating Co. Ltd (2006) that companies who are responsible for causing Pleural Plaques (a scarring of the lungs) by negligently exposing their employees and members of the public to asbestos fibres cannot be held liable for psychiatric injury caused by the fear of going onto contract a more serious asbestos related illness such as asbestosis or mesothelioma because, it maintained, pleural plaques as a condition in itself is insufficiently serious to give rise to a cause of action and the law does not recognise a duty to take care not to cause anxiety.

However, given that pleural plaques are evidence that the person who has the condition could go onto develop an asbestos related condition which would amount to a death sentence, many would sympathise with the view expressed by many after the Judgement was delivered that the Court’s decision was an extremely harsh one. After all, the Court had within its power the ability to create a duty to take care not to cause anxiety through fear of going onto contract a fatal illness in the wider public interest had it so wished, as opposed to prioritising the interests of commercial companies.  Indeed, shaping law in the wider public interest is one the Court of Appeals principal functions and surely in a civilized society, it is not unreasonable to impose a duty of care on companies to ensure that they do not place people in fear for their own lives. 

Prolonged exposure to asbestos can cause plaques to form on the pleura, a thin transparent membrane which covers the lungs and lines the inside of the chest walls. Known as pleural plaques, they result in a thickening of the pleural membrane and they can make expansion and contraction of the lungs difficult.  Nevertheless, they do not always give rise to more serious asbestos related illnesses. Hence, the reason for the Court of Appeal’s decision. However, they represent proof of a grave danger to health and it is little wonder that they give rise to enormous anxiety in individuals diagnosed with the condition.

The House of Lords will shortly be hearing 3 landmark Mesothelioma test cases (known as Barker v Saint Gobain Pipelines PLC (2006).  Mesothelioma is the most serious form of asbestos related illness. It is a cancerous tumour, a form of cancer which affects the membranous lining of the chest (the pleura) and less commonly, the lining of the abdomen (the peritoneum) and of the heart (the pericardium). In the Barker v Saint Gobain Pipelines PLC case, the employer and their insurers hope to overturn existing law by arguing that the cost of compensating mesothelioma sufferers should be apportioned between all of the employers the claimant has worked for who have exposed them to asbestos down the years. At present, the entire compensation award can be claimed from any one of the employers responsible for exposing them despite the fact that other employers have also exposed them. The employer and their insurers argue that where there is more than one employer, then compensation should be split between them all. Nevertheless, when the case was heard by the Court of Appeal on the 5th May 2004, the Court held that compensation should not be apportioned between employers on policy grounds as many claimant’s were exposed up to 60 years ago, thereby making it impossible to locate many of the employers responsible in order to obtain their insurance details as a large proportion of the employers will no longer exist. Given that exposure by any one of several employers a claimant worked for could have been the exposure which triggered the mesothelioma, the Court held that it was only fair to compel those employers that are traceable, even if it is only one of many employers who exposed the claimant, to pay the compensation awarded in full. Otherwise, those claimants who are unable to trace all of the employers they have worked for down the years who have exposed them will end up being under compensated.

About 1800 people die in the United Kingdom every year from mesothelioma and these numbers are expected to peak at around 3000 per annum in 2020.  The increasing number of deaths is related to the use of asbestos in the building industry up until the mid 1980’s and the fact that it can be 60 years before a mesothelioma victim develops the condition after the initial exposure. Once they have the condition, death is inevitable and usually occurs within 2 years of diagnosis. Typically, victims and there families can expect to receive around £150,000.00 in compensation. However, if the House of Lords upholds the appeal from the employers in the 3 Barker v Saint Gobain Pipelines PLC (2006) test cases and holds that compensation payments should be apportioned between employers, then those victims and their families who are unable to trace all of the employers who exposed the victim could receive significantly less. Those claimants who cannot trace some of the employers involved are estimated to amount to about half of all the claimants bringing mesothelioma cases. Hence, should the House of Lords rule in favour of the employers, it will adversely affect a significant number of people.

Select Committees Proposals On Small Claims Limit Criticised

Workplace Bullying & Harassment:
Majrowski v Guy's & St. Thomas's NHS Trust (2005) EWCA Civ 251:

The Court of Appeal held that an employer can be held vicariously liable under the Protection From Harassment Act 1997 for acts of harassment by their own employees in the course of their employment against fellow employees and other third parties.

Occupational stress:
Hartman v South Essex Mental Health & Community Care NHS Trust, CA (2005) EWCA Civ 06

The Court of Appeal observed in this case that despite the guidance provided in Sutherland v Hatton (2002) and in Barber v Somerset County Council (2004), judges were still finding difficulty in applying the appropriate principles to claims arising from stress at work. Accordingly, in its judgment in this case, the Court made some general observations before applying them to the six cases under appeal

Lord Chancellor indicates that Small Claims limit to remain unchanged.