Compass Reparation Members:
Iain Armstrong QC
Ian Mackay QC
Susan O'Brien QC
Andrew Smith QC
Geoff Clarke QC
Robert Milligan QC
Barry Divers
Malcolm McGregor
Peter Milligan
David Sheldon
Astrid Smart
Calum Wilson
Kay Springham
Robin Cleland
Amber Galbraith
Steve Love
David McNaughtan
Graeme Middleton
Barry Smith
Craig Thomson
Yvonne Waugh
Craig Murray
Richard Pugh
Gavin Thornley
Compass Clerking Contacts:
Irene Mackenzie
Michelle Williamson
Grace Moran
To view previous
Bulletins:
October 2009
|
The Court of Appeal recently reversed, in Sienkiewicz -v- Greif (UK) Ltd [2009] EWCA Civ 1159, a County Court decision dismissing a fatal damages case brought by the daughter of an office worker who had died from mesothelioma. The deceased worked in an Ellesmere Port factory for about 18 years, spending some time in areas which were contaminated with asbestos. Like many other inhabitants of Ellesmere Port she was exposed to a low level of asbestos in the general atmosphere.
The County Court judge concluded that to succeed on causation it was necessary for the deceased’s daughter to prove that the wrongful exposure had at least doubled the risk of injury due to environmental exposure.
The main appeal argument was that the judge erred in failing to apply the causation test based on material increase in risk: see the cases of Fairchild [2003] 1 A.C. 32 and Barker [2006] 2 A.C. 572 and section 3 of the Compensation Act 2006. By contrast the respondents submitted that the judge was correct on causation. This case did not involve multiple exposures. The House of Lords would not have included such a case in the Fairchild exception. Consequently section 3 of the 2006 Act did not apply.
The Court of Appeal found that the incorrect causation test had been applied. By enacting section 3 Parliament was saying that the claimant had to prove the causation element of common law liability by any available method which included showing a material increase in risk. Section 3 applied in all mesothelioma cases if the conditions laid down in it were satisfied. It followed that the judge should not have determined causation by reference to at least doubling the risk.
While the Court of Appeal was attracted by the force of the submission that the facts of the case would not have been envisaged as falling within the Fairchild exception, it was idle to speculate on what the House of Lords might have said in the context of fixing the limits of the exception. Demonstrating causation by reference to doubling the risk of injury in appropriate cases with multiple potential causes was not ruled out. But this case affirms that as long as the conditions in it are satisfied, section 3 operates in place of the common law in mesothelioma cases.
On 2nd November 2009 the Act of Sederunt (Ordinary Cause Rules Amendment) (Personal Injuries Actions) 2009 came into force, amending the existing Ordinary Cause Rules by inserting a Special Procedure for personal injuries actions.
The following is a summary of the main features of the new Rules.
- Simplified Pleadings
- A Timetable at the Outset
- Early Proof Diet
- A Specification of Documents which may be attached to the Writ
- Provision for Variation, Sists and Withdrawals
- Requirements to lodge Statements of Valuation
- Pre-proof Conferences
The model for the new Rules is the Court of Session’s Chapter 43 procedure. It is sensible to introduce them. The routine nature of many personal injuries actions makes simplified pleadings appropriate. If parties fail to adhere to the Timetable the case will be brought before a Sheriff. The Statement of Valuation requirement encourages a full exchange of information at an early stage. Pre-proof Conferences are designed to facilitate settlement or agreement of uncontroversial matters. It is anticipated that the new Rules will herald a culture change in the manner in which personal injuries litigation is conducted, as has been the Court of Session experience. The changes are to be welcomed.
Munro v Aberdeen City Council [2009] CSOH 964; 2009 SLT 964
Reparation practitioners may be familiar with the thorny issue of what exactly is the extent of the duty imposed on an employer under regulation 5(1) of the Workplace (Health, Safety and Welfare) Regulations 1992. That regulation provides: “The workplace…shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair.” Whether regulation 5(1) applies to transient hazards has been considered previously, but with no consistency in decisions. Some judges favoured an interpretation which means that the absolute duty in regulation 5(1) does apply to transient hazards (e.g. the chip in Gilmour v East Renfrewshire Council 2004 RepLR 40; the wood and glass bottle in Love v North Lanarkshire Council [2007] CSOH 10). Others favoured an interpretation which recognises a distinction between structural defects which attract absolute liability, and transient hazards where the employer’s duty is qualified (e.g. spilt coolant in McEwan v Lothian Buses plc 2006 SCLR 592; unexpected leak of water in Lewis v Avidan [2005] EWCA Civ 670).
Lord Malcolm has opted for the latter interpretation in assoilzing the defenders in the Munro case. There, the hazard was ice on a car park which was part of Ms Munro’s workplace. The pursuer’s case was periled on regulation 5(1), as she was unable on the facts to rely on regulation 12. In accepting the defenders’ arguments on the interpretation of regulation 5(1), Lord Malcolm indicated that the differences between regulations 5(1) and 12(3) “simply reflect the long established dichotomy between absolute duties for long-term dangers and qualified duties for short-lived transient conditions…” Guidance from the Inner House may be forthcoming as the decision has been reclaimed.
The full decision can be accessed at:
http://www.scotcourts.gov.uk/opinions/2009csoh129.html
Report of the Scottish Civil Courts Review
The report of the Scottish Civil Courts Review under Lord Justice Clerk, the Rt Hon Lord Gill, was launched on Wednesday, 30 September 2009. Published in two volumes, it is a detailed document containing many proposals for change in the civil courts. The remit of the Review was wide ranging, but its particular focus was to improve access to civil justice in Scotland. For reparation practitioners the key points of the proposals are:-
- the creation of a specialised personal injury court, based at Edinburgh Sheriff Court, but with jurisdiction throughout Scotland. Pursuers would have the choice between litigating in their local court or in a specialised PI court. The review envisages two specialist personal injury sheriffs dealing with all of the business of the new court.
- the creation of a new judicial office, a district judge. The district judge would sit in the sheriff court and hear civil claims of modest value, i.e. PI cases worth £5,000 or less (as well as summary criminal business).
- the creation of a national Sheriff Appeal Court to hear civil appeals from district judges (and summary criminal appeals).
- the exclusive jurisdiction of the sheriff court (in all types of cases) would be raised from £5,000 to £150,000.
- it would be compulsory to use pre-action protocols aimed at ensuring early exchange of information, with the intention that it would allow cases to be settled early and without the need for litigation.
- pursuer’s offers to settle to be re-introduced.
Compass Chambers prepared a preliminary response to the Report on 7/10/09, which can be accessed on our website at
http://www.compasschambers.co.uk/news.asp
We are committed to engaging constructively in the process of change.
|
Compass Chambers