Legacy disease brief: latest decisions and insights – April 2022
A summary of key developments relating to the date of knowledge, CRU scheme, an English Court awarding Scottish “loss of society” damages, the evidential hill in asbestos claims, the damages claims portal, and a newly announced discount rate in Northern Ireland.
The importance of a foreseeable risk of injury in asbestos cases
Nicola Steven Watt or Murray and Others v Lend Lease Construction (Europe) Limited [03.03.22]
The family of the deceased, James Watt, sought damages arising from the deceased’s death from mesothelioma, which they alleged he contracted in the course of his employment with the defender as a joiner. He was employed for a six month period between January 1963 and June 1963 during which he had undertaken one task where he came into contact with asbestos when he fitted asbestos ceiling tiles within a car park.
The defender emphasised that secondary and intermittent exposure to airborne asbestos fibres was not considered by the best academic research available at the time to be injurious to health. The court accepted this and as such agreed that the requisite foreseeability to demonstrate liability had not been established.
This case serves as a helpful reminder that a date of knowledge argument may be available where exposure to asbestos dust occurs pre-1965, or indeed slightly later, where the level of exposure to asbestos has been low level. Each case, however, requires to be reviewed on its on facts.
CRU scheme found not to constitute an infringement of human rights
R Aviva Insurance Ltd & Anor v Secretary of State for Work and Pensions [14.01.22]
On 14 January 2022, the Court of Appeal handed down judgment finding that the CRU scheme did not infringe the claimant insurers’ rights under Article 1 of the First Protocol (A1P1) of the European Convention of Human Rights.
This decision has ultimately restored the original position that insurers are 100% liable for state benefits listed on a CRU certificate. However, with recoverable benefits increasing generally, the insurers’ challenge had the potential to result in substantial savings for both insurers and (re)insurers.
The court’s decision has delivered a blow to the insurance market as the judgment has a wide ambit, effectively bringing benefits such as Housing Benefit (not previously a recoverable benefit) into the scheme of recoverable benefits, thereby significantly increasing the overall benefits burden on insurers.
English Court awards “loss of society” damages
Charmaine Haggerty-Garton & Others v Imperial Chemical Industries Limited 
This High Court decision provides a stark reminder of the widening gulf in the level of damages in fatal claims between Scotland and England. For the first time an English Court applied Scots law in quantifying damages in a mesothelioma claim, awarding sums far greater than what would have been recoverable under the laws of England and Wales.
By way of background, the executor and family of the deceased, alleged that he had been negligently exposed to asbestos dust in the course of his employment at ICI’s factory premises in Scotland in the late 1970s. The claimants pled that the law applicable was Scots law under the Damages Scotland Act 2011. Prior to the trial, the defendants conceded liability, admitted that Scots law applied to the quantification of the claim, settled the blood relatives’ claims and confirmed that the family members were entitled to make claims for Loss of Society (the Scottish equivalent of English bereavement damages).
The first claimant was awarded a total sum of £614,060.45 including interest, apportioned as follows:
- First claimant – £492,544.84
- Oldest stepson – £42,266.30
- Middle stepson – £42,266.30
- Youngest stepson – £36,983.01
By contrast had English law been applied, only the widow would have recovered damages for bereavement in the sum of £12,980 (increased to £15,120 from 1 May 2020).
No doubt Scottish claimants’ solicitors will refer to this decision when assessing loss of society awards. However, although this case has been determined on the basis of Scots law, it is an English decision and will not bind the Scottish courts.
Related item: English Court awards Scottish damages!
Asbestos claims and causation: an uphill struggle for claimants
Terence Ward v Wellcome Foundation & Harrods Limited 
In this case the High Court dismissed a claim for asbestos-related lung cancer after declining to find evidence sufficient to cause a breach of duty or to double the risk of contracting a lung cancer.
The claimant alleged exposure to asbestos whilst working as a fire security officer with Wellcome Foundation between 1969 and 1978/9 and as a fire officer with Harrods Limited between 1988 and 1995.
The defendants did not deny their premises contained asbestos but denied the levels of asbestos was sufficient to be causative of the claimant’s lung cancer and that he was exposed in breach of duty. The defendants pointed to the claimant’s 48 to 52 pack years of smoking as the alternative cause of his lung cancer.
As the experts agreed that the exposure was below the required dosage threshold, the court found that the claimant’s heavy smoking history was the most likely cause of his lung cancer.
As highlighted by this case, claimants continue to face an uphill struggle to show their exposure was sufficient to exceed the dosage threshold. As future claims involve later and lighter exposures to asbestos, this evidential hill is likely to become ever steeper.
16th edition of the JC Guidelines now published
The new edition of the JC Guidelines was published on 11 April 2022. There are a number of important changes to this edition, including:
- The creation of a new chapter dedicated to work-related limb disorders – including a wholly new section on 'cold injuries' such as frostnip and frostbite and non-freezing injuries leading to similar soft tissue, nerve, or vascular damage – along with injuries included under ‘Orthopaedic Injuries’ in earlier editions.
- The removal of figures for general damages which do not include the Simmons 10% uplift. Where pre-uplift figures are relevant, such as in mesothelioma cases, the formula is found in the Note on page xvii.
- RPI adjustment of 6.56% has been applied to allow for the period between the new and previous edition of the guidelines.
- Revision of ‘damage to reproductive organs’ to reflect that such injuries and associated physical and psychological sequelae may affect both men and women.
The Damages Claims Portal: to become mandatory
In May 2021, HM Courts & Tribunals Service (HMCTS) launched a Damages Claims Portal pilot scheme (DCP), a digital scheme for the issuing and initial progression of litigation in certain claims. On 4 April 2022, the DCP became mandatory for all claimant legal representatives dealing with claims in the County Court which come within the scope of PD 51ZB. The DCP is set to become mandatory for defendants from 2 June 2022.
New Northern Ireland discount rate announced
The Damages (Return on Investment) Bill received Royal Assent on 2 February 2022, and on 22 March 2022 the Department of Justice confirmed that a new discount rate of -1.5% has come into effect. This means that Northern Ireland continues to have the lowest discount rate in the UK.
According to the Department, “the discount rate remains low as a result of high expected inflation in the short to medium term, low expected interest rates in the longer term and the anticipated returns on bonds and equities remaining low”. This will be disappointing news for insurers and compensators.
The next review of the rate will be in July 2024.