Law and science

Ohn Edward Billett v Ministry of Defence (2015)

[2014] EWCA 3060 (QB)

CA (Civ Div) (Jackson LJ, Patten LJ, McFarlane LJ) 23/07/2015

The court considered the correct approach to determining damages for loss of future earning capacity in circumstances where a claimant had suffered an injury which resulted in only a minor disability, was in steady employment and was earning at his pre-accident rate. Although the use of Tables A–D would often be a useful aid to valuing a claimant’s loss of earning capacity, such a case was a classic example of a claim where the Smith v Manchester approach remained appropriate.

The Claimant (B) when aged 23 sustained an injury at work in February 2009, when employed by The Ministry of Defence (MOD) as a lance corporal. B sustained a non-freezing injury that had been caused by the army’s failure to provide him with appropriate footwear. He was treated and then was deemed medically fit for deployment, and so left the army in October 2011 and found employment as a lorry driver. However, he still suffered symptoms following his non-freezing injury, and this made him vulnerable and at a disadvantage on the labour market should he lose his current job.

However, it was found that B’s injury was minor and that he was ‘disabled’, as that term was defined in the explanatory notes to the Ogden tables, but only just. He determined B’s future earning capacity by using the Ogden Tables A and B, suitably adjusted. He awarded damages for loss of future earning capacity of £99,062.04 and general damages for pain, suffering and loss of amenity of £12,500.

The ministry submitted that (1) an award of £12,500 for general damages was outside the permissible range for B’s minor injury; (2) B was not ‘disabled’ within the definition in the Ogden Tables, but even if he was, damages would have been more appropriately assessed using the Smith v Manchester method.

It was, therefore, held that although the general damages award may have been considered too high if the judge was just looking at the minor injury, but the Judge was looking at all the effects of the injury and how it interferes with B’s daily life. B was able to still work as a lorry driver, and he could enjoy other activities, but he could not do certain things in cold weather, and as a result the judge took the view that ‘B’s injury had a substantial adverse effect on his ability to carry out normal activities and that his condition qualified as a disability, even if only just’.

This was a claim where the conventional Smith v Manchester award was suitable, and the judge awarded B future loss of earnings for two years, which was calculated at £45,000.

Charles Rotsztein v HM Senior Coroner for Inner London (2015)

[2014] EWCA Civ 1602

CA (Civ Div) (Moore-Bick LJ, Tomlinson LJ, King LJ) 11/12/2014

The claimant (CR) made an application for judicial review in relation to a decision made by the defendant, a coroner (D).

D had made a direction during inquest proceedings that a traditional invasive post-mortem examination be carried out on CR’s deceased relative, an orthodox Jew, in order to ascertain the cause of death.

Prior to her death, blood samples were taken from the deceased, and there was a difference of opinion between her GP and the Hospital Trust as regards the deceased’s cause of death.

The deceased’s family did not want the deceased to undergo a traditional post-mortem examination, but wanted a non-invasive post-mortem instead.

They relied on the fact that Jewish law strictly prohibited desecration of the corpse and required prompt burial. The coroner notified the family that although she had taken their religious objections into account, she was nevertheless satisfied that a traditional autopsy was necessary to ascertain the cause of death with certainty. The deceased’s family obtained an emergency without notice injunction to prevent an invasive autopsy.

Thereafter, a non-invasive post-mortem examination was carried out by way of a computed tomography scan and coronary angiography. The results of these procedures strongly demonstrated that the deceased had suffered a heart attack, and the results of the blood tests revealed no sign of infection.

D accepted the blood cultures and the non-invasive procedures as establishing the cause of death to her satisfaction, and D released the body.

CR argued that D

(1) adopted the wrong test when she asked herself whether an invasive autopsy was required;

It was held that D did not at any stage question whether the use of non-invasive post-mortem examination would affect an invasive post-mortem, if proved to be necessary at a later date.

Reference was made to the Coroners and Justice Act 2009 s.1(2)(b), and in particular the guidance reference in cases of religious objection to invasive post-mortem procedures, where the following should be used as a guide:

there had to be an established religious tenet that an invasive autopsy was to be avoided before any question of avoidance on ECHR art. 9 grounds could arise;

D should have been guided to conclude that blood tests would have revealed an infection was not present and therefore the diagnosis of sepsis was excluded. As a consequence, a heart attack was more likely to be the cause of death of the deceased.

It was found that there was ‘no practical purpose to be served in quashing the coroner’s decision’. The judge stated that D ‘had acted unlawfully in her approach’. D had the guidance available and in her mind, but that related to a situation once it had been decided that a non-invasive procedure should be used.

CR’s application was therefore granted.

Albert Victor Carder v (1) Secretary of State for Health and (2) University of Exeter (2015)

QBD (Judge Gore QC) 28/07/2015

C, who was 85 years of age, claimed for damages for personal injury and losses from the second defendant, E, on the basis that E negligently exposed C to asbestos during the course of his employment as an electrician with E. C had been diagnosed with asbestosis and other unrelated illnesses which had affected his lung function. C’s condition was deteriorating, and he made an application to the court for a payment of provisional damages against E under section 32 A of the Senior Courts Act 1981.

Where a defendant was responsible for 2.3% of the claimant’s total exposure to asbestos, it was liable in proportion for damages for his asbestosis, and could not escape liability on the basis of evidence that that particular exposure had made no discernible difference to his condition.

The claim only proceeded against E; the first defendant was not included in the claim. It was accepted by the court that

each source of exposure would have contributed to the development of the claimant’s asbestosis in approximate proportion to the dose received and that the exposure and therefore contribution attributable to the second defendant was 2.3 per cent of the claimant’s total exposure.

E sought to amend its defence to suggest that no injury could be proved by C, as relied upon in the medical evidence, that C’s state of health would not have been much different if E had not exposed him to further asbestos.

D relied upon the cases of Cartledge v E Jopling & Sons Ltd [1963] AC 758 and Grieves v FT Everard & Sons Ltd [2007] UKHL 39 [2008] 1 AC 281, which both required C to show that there had been damage that made him physically worse.

The Judge allowed E to amend the defence, to plead ‘that the particular negligent exposure while in its employment had not given rise to any actionable damage’.

Asbestosis was described as a ‘divisible disease’, and the case of Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421 was relied upon to support this. Yet, the case was quiet on whether an injury was actionable. Further, the case law made it clear that C could suffer an actionable injury without knowing it, but the real question was based on fact and actual evidence as to whether C had suffered real damage and was in fact worse off as a consequence.

In this case, it was found that a 2.3% contribution was small but material. Furthermore, it was found that disease would increase with exposure, and C was worse off physically, even if that was ‘not noticeable or measurable, since each source contributed in proportion to the overall condition.’ C had increased risk of lung cancer and this was benign and progressive.

C was awarded compensation for his pain, suffering and loss of amenity of £60,000 and a further sum of £7500 for future care. E was liable to pay for 2.3% of the damages monies to C.