Clarity, at last, for mesothelioma victims – but we need to keep a watch on LASPO

At last, some clarity in the fraught arena of mesothelioma litigation. Today’s judgment by the Supreme Court finally establishes a level playing field and emerges as the single most important judicial decision affecting asbestos liabilities in the UK to date.

I touched upon mesothelioma, a form of cancer caused by exposure to asbestos, last October in the context of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO). I made the point that the government’s determination to push LASPO through would, in reducing the recoverability of success fees and after the event insurance (ATE), make it very difficult for mesothelioma victims and their families to bring claims.

This remains a live issue but meanwhile the Supreme Court has been busy. Five justices – Lord Phillips, sitting as President, and Lords Mance, Kerr, Clarke and Dyson – have unravelled a complex skein of law and fact to give judgment on an appeal from a Court of Appeal ruling in 2010. The background is undeniably obscure, for many lawyers as much as laypersons, but today’s judgment concerns the obligations of insurance companies under various contracts of employers’ liability (“EL”) insurance.

In essence, the Supreme Court was tasked with determining the scope of the insurers’ obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. This was complicated because of the unusually long gestation period for mesothelioma: it can take up to 40 years for between exposure to asbestos and the manifestation of the disease. The insurers’ case was that EL policies only covered mesothelioma which manifested itself as a disease at some point during the relevant policy period. In contrast, the employers argued that the insurance policies covered mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later.

Thankfully, the Supreme Court came down on the side of the victims and their families. Its analysis of the factual nexus and preceding judgments led it to conclude that it would be “remarkable if the insurers were not liable under the policies”. Crucially, then, for the purposes of the EL policies, “the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurer’s obligation to indemnify the employer.”

What this means is that there is now certainty and a level playing field for those affected by asbestos-related disease – the biggest killer in the workplace in Britain. Insurers have continually tried to wriggle out of liability for mesothelioma claims but this judgment should, thanks to its clarity, render such attempts futile and, just as crucially, see off the prospect of satellite litigation on similar issues.

Hats off to the Supreme Court justices but let’s not forget that LASPO as it is currently drafted will make it difficult to get claims off the ground in the first place. We need to remain vigilant, and ensure that the government’s easy spin about battling ‘compensation culture’ does not ultimately deny the deserving the right to justice.

We go into hospital for treatment. We don’t expect to be set on fire.

Going into hospital is not a pleasant experience. For all that doctors and nurses do a wonderful and valuable job, for all that they’re almost invariably decent and caring people, and for all the improvements in the culinary fare on offer thanks to the NHS, it remains the case that only a tiny percentage of people actually want to go into hospital.

If we do have to go into hospital, most of us grit our teeth and say that it’s for the best. The operation, procedure or treatment we’re set to undergo will hopefully make us feel better, and then we can leave and get on with our lives.

That’s the plan. But sometimes the best laid plans go wrong. Sometimes hospitals get it wrong, and if they’ve been negligent, or worse, it’s right that the people who are affected should be able to bring medical negligence claims. The last thing that any patient should have to put up with is suffering wrong at the hands of hospital staff and having no remedy.

I say this is ‘the last thing’, but perhaps the last thing we expect, as we lie unconscious on an operating table, is to be set on fire. Surely this could only happen in our worst nightmares?

Wrong. Astonishingly, this was precisely the fate of a patient at a hospital in North Yorkshire this month. The patient was reportedly undergoing surgery only to be set on fire during the procedure when solution used to clean skin ignited.

As Liz Booth, director of operations at Scarborough and North East Yorkshire NHS Trust, said: “I can confirm that during a surgical procedure a solution used to clean the skin ignited, causing skin burns to the patient. The skin burn was treated immediately and the patient was kept in hospital overnight. As a precaution the patient was transferred to Pinderfields for further assessment and on return was discharged.”

Needless to say, Ms Booth also said that her hospital was “extremely sorry for any pain and distress”. Moreover, she announced that a full investigation was commenced within minutes. “A final report will be produced and shared with the family,” she said.

It seems to me that the report – with suitable redactions – should be made available not merely to the family concerned but to the public. Yes, accidents happen, but the trauma to this poor patient must have been considerable, not merely for the pain of the burns themselves but also on account of the incident having happened while the patient was under anaesthetic. The public have a right to know how such a regrettable incident came to pass – and they have a right to know that the hospital will take all such steps as are necessary to ensure that this never happens again.

And lastly, while the government may decry what it insists on labelling as the ‘compensation culture’, I hope that the patient has secured representation by reputable personal injury solicitors. Compensation, in circumstances like this, is exactly the price that should be paid.

Being cool shouldn’t come at the expense of being safe

A few weeks ago I wrote a piece in which I wondered whether cyclists ought to be compelled by law to wear helmets. Its prompt was a conversation with Peter McCabe, the CEO of the brain injury association and charity Headway, whose aim is to increase awareness of brain injury and its consequences. Peter made a strong case for legislation to make cyclists have to wear helmets, something that the Post Office made compulsory for its 37,000 cycling postmen in 2003.

By the time I’d written my piece, I was erring strongly on Peter’s side. However, I recently attended a presentation by Martin Potter QC to the Association of Personal Injury Lawyers Transport Group, and found  the biblical proverb true: ‘The first to present his case seems right, until another comes forward and questions him’.

No legal duty to wear a helmet

Martin is a barrister at 2 Temple Gardens. He specialises in personal injury and clinical negligence cases, and has amassed plenty of experience in sports-related litigation, especially involving cycling. His presentation was entitled ‘Cycle Helmets: A Duty to Wear?’ and it ably set out both the law and the arguments for and against wearing helmets.

At present, of course, there is no legal duty for a cyclist to wear a helmet. There may be circumstances when not wearing a helmet could produce a finding of contributory negligence, but they are surprisingly rare. Moreover, Martin’s presentation revealed that only last February a parliamentary debate suggested that change was not in the offing, with MPs apparently convinced that there should be virtually no barriers to cycling, precisely because it is perceived as ‘a good thing’.

Cycling increases levels of fitness and longevity

As Martin put it: “The public policy interest in encouraging and promoting cycling is widely recognised and the subject of much public expenditure. Cycling increases levels of fitness and longevity and decreases obesity, healthcare costs, traffic congestion, pollution and the burning of fossil fuels.”

Thereafter, Martin skilfully examined the evidence as to the efficacy of cycle helmets in reducing brain injuries (inconclusive), assessed the risks in cycling per se (greater in terms of perception than fact), and adduced research which suggested that promoting the use of helmets actually reduced the levels of cycling – something we don’t want, given all the perceived benefits of cycling. In summary, Martin suggested that “it is neither right nor wrong for a cyclist to wear or not wear a helmet. It should be a matter of personal choice leaving the blame to lie with the person or persons responsible for the collision.”

I am not so sure, but, in truth, I can see both sides of the argument. Both Peter McCabe and Martin Potter QC are persuasive, articulate and convincing men. Martin posited the contrary case extremely well, but is it really the case that if we insist that all cyclists wear a helmet, we drive down the numbers of people riding bikes? By extension, if we legislate to compel a cyclist to do the opposite of David Cameron and Boris Johnson – both of whom seem to frequently  eschew a helmet even on the busy streets of London – can we really be said to be encouraging sloth?

Of course not. And yet ... Martin put his case so well that I have paused for further thought and reflection. What is certain is that this issue requires research, analysis and debate. Meanwhile, I’d favour  erring on the side of caution, particularly when it comes to children. The prospect of even one child needlessly suffering brain injury is too horrific to contemplate. Cycle helmets may not be the last word in fashion but they might just make a difference when it’s needed. Better to wear one than worry about being cool.

Out of focus over Autofocus

The Autofocus story is remarkable – and salutary. For the best part of a decade the motoring consultancy was riding high, retained by insurance companies to challenge the cost of replacement hire cars for accident and crash victims. Then, in 2010, the Autofocus bubble burst. The business collapsed, going into administration in the wake of serious claims about serial wrongdoing.

It was alleged that reports produced by Autofocus were skewed in favour of insurers. The company’s ‘rate surveyors’, whose task it was to compare hire rates to assess whether a specific charge was fair and reasonable, are said to have routinely fabricated and manipulated their reports.

The reports were used successfully in more than 4,000 contested court cases, and also formed the basis for thousands of out-of-court settlements. But now, less than two years after the demise as a going concern of Autofocus, the Attorney-General has reportedly referred the matter to the Crown Prosecution Service. According to a piece in The Times this week, it is now expected that the City of London Police’s fraud unit will be notified of the case – and that fraud charges may well ensue.

A case of contempt?

That’s not all. It transpires that the Attorney General’s office is also considering charges of contempt of court against seven former Autofocus staff. No wonder, then, that Lord Justice Moses announced that he was “flabbergasted” by the allegations, which, if proven, he said represented “industrial-scale perjury” and a “serious conspiracy”.

His Lordship is absolutely right. There are indications that the alleged corruption at Autofocus may have been on an industrial scale and that it involved numerous industry players from nearly every facet of the motor accident system. If true, the case would be indicative of the widespread and systemic moral decay which has been facilitated by the departure from the professional principles articulated by Lord Benson and a perpetual drive towards profit to the detriment of everyone else – including consumers and those involved in accidents.

What, though, can be done? How do we right the wrongs that proliferate in the motor accident system?

LASPO doesn’t go far enough

A glance at the Legal Aid Sentencing and Punishment of Offenders Bill (LASPO), which is currently wending its way to legislative approval, reveals that it offers little in the way of regulation or control of ancillary services in the personal injury sector. Autofocus, of course, was an example of one such ancillary service, and a great many of them have sprung up. The worrying fact is, therefore, that Autofocus represents the tip of the iceberg in relation to unethical and even illegal practices, precisely because it, like all the others, is unregulated. A robust but fair and appropriate regulatory authority which adopts a practical approach, backed by legislation designed to close the various loopholes which are exploited by these companies, is needed to improve the current system. LASPO needs to be rethought with this in mind.

Another example of systemic failure is the unregulated insurer practice of ‘third party capture’ which seeks to settle claims directly with motor accident victims without any mandatory protection for the motorist around their access to independent legal advice. This is another example of the dysfunction in the motor accident system. There is strong circumstantial evidence that this has led to claims being made which would never have been brought had the insurers not made an unsolicited offer.

To return to Autofocus, we should recall that among the insurance companies relying upon its reports are household names. There is no suggestion that they colluded with Autofocus, and we should recall that Autofocus has yet to put its side of the story. But nevertheless, whatever the truth of the Autofocus allegations, the clamour for holistic change rather than a piecemeal approach to the ills of the motor accident system is deafening. We ignore it at our peril.