Synopsis
Traditionally an insurance company will pay out to mesothelioma sufferers if it has been the employer’s insurer at the date of inhalation. However, following the Court of Appeal’s decision relating to public liability policies in Bolton MBC, the Municipal Mutual Insurance Limited (2006) EWCA Civ 50, (2006) 1WLR1492, some insurers have declined to pay out on Employer’s Liability Policies in force at the date of inhalation to mesothelioma sufferers or to the employers liable to them. Their argument was the wording of their policies were sustained and/or contracted rather than the usual causation wording. In insurers maintain that liability was triggered when the tumour developed as that was when the injury was sustained and/or contracted.
Court of Appeal Judgment
The Court of Appeal accepted the insurer’s argument that the mesothelioma sufferer sustained their injury not at the date of inhalation but in a period five years prior to diagnosis. The Court of Appeal did not, however, accept the same argument with regard to contracted and said that contracted had the same meaning as caused.
Judgment of the Supreme Court
The Supreme Court dismissed the insurer’s appeal with regard to the contracted wording upholding the decision of the Court of Appeal that contracted should have the same meaning as caused. They also held that the word “sustained” may initially appear to refer to the manifestation of an injury but on looking at the underlying purpose of Employer’s Liability Insurance it is the initiation or cause of the accident/disease which injured the employee. They therefore concluded that a disease may properly be said to have been sustained by an employee when it was caused or initiated even though it may not have developed or manifested until many years later.
Local Government Team
Nockolds have a strong multi-discipline team within the Local Government sector, drawing on experience across the entire practice. We deliver specialist advice to secure the objectives of the public sector within the regulatory frameworks that apply.
Ivan Moody represented Municipal Mutual Insurance Limited in the High Court and Court of Appeal.
If you would like to discuss any issues raised in this update or any other Local Government related matters, please do not hesitate to contact Ivan Moody on 01279 712532 or email imoody@nockolds.co.uk.
Ivan Moody (profile) 
Tuesday 1st May 2012
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PIP IMPLANTS – WHAT SHOULD YOU DO?
This weekend saw a further
National Press announcement regarding the PIP implant scandal. This follows on
from recent press interest in the situation. The Times recently featured an
article about Rachel Jacomb who is suing her private clinic for refusing to
remove her breast implants free of charge. It is now estimated that she is one
of 45,000 women in Britain who have received implants manufactured by the now
defunct French Company Poly Implant Prosthese.
Unfortunately
although many of the governments in Europe have concluded that these implants
are dangerous the UK government does not agree. Andrew Lansley, the Health
Secretary, says that the experts advising him have found no evidence to
recommend their early removal.
The NHS has, however, confirmed they will remove and replace the implants
without charge if patients, the NHS had operated, on remained concerned. This
however only covers a small fraction of the women in Britain who have had PIP
implants (6.65%)
The government
expects the private sector to follow suit but what do the 93.35% of women do if
they do not?
What should I do if I have concerns about my implants?
As with all
surgery there is a risk and no doubt those firms who carried out the surgery
provided their clients with details of those risks. It is, however, unlikely
that these risks included the use of non-medical grade silicone which could
cause injury if the implants leaked.
If you have
concerns about your Breast Implants the first step is to find out if the
implants are PIP implants. You can obtain this information from the supplier or
the clinic where the surgery was carried out.
If you find out
you do have PIP implants contact your GP or the clinic where the operation took
place and ask for a scan so they can assess whether the implants pose any risk
to your health. If the scan shows there is a risk then speak to the clinic
about having them removed. If the scan shows there is no risk you will have to
decide whether you want them removed in any event or whether to monitor them to
see if a problem arises
If you have
received PIP Implants and still have concerns you should contact either the NHS
or the firm that carried out the surgery. Many of the firms such as Harley Medical Group or the Transform Medical Group have patient advice and information available on
their websites.
How
can Nockolds help?
If after
speaking to the medical professionals mentioned above you remain concerned
about your implants please contact Nockolds for a free no obligation
consultation. As part of our “Looking After You” campaign we believe the people
in Hertfordshire and Essex need a local solicitor who is prepared to treat them
as an individual. We will discuss with you whether you might be entitled to
compensation and if you are we will act on a “no win no fee” basis thus
ensuring you receive 100% of any compensation which you are awarded. We will
also advise you whether or not to pursue a claim as we realise that
compensation is not always the best result for all of our clients.
For further
information or to contact our dedicated Medical Negligence team please call
Jennie Jones or Ivan Moody on 01279 755777.
Ivan Moody (profile) Jennie Jones (profile) 
Monday 19th March 2012
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The figures in relation to Whiplash claims do seem incredible but although the press are happy to sensationalise our “Compensation Culture” there are two sides to every story. David Cameron is meeting today (14th February 2012) with insurance, consumer and business groups to discuss what can be done.
BBC News - David Cameron pledges action to cut car whiplash claims
The vast majority of people who claim for whiplash have genuine injuries. They have, in many cases, been innocent passengers or drivers whose vehicle has been hit from behind by a careless driver. Should that driver (who is often clearly at fault) be allowed to get away with his negligent action? The Insurance industry states that if a vehicle is travelling at less than 6.25mph then the claim will fail. The problem with this argument is we are all built differently and some of us can withstand greater impacts than others.
If the 6.25mph limit is implemented who will be who is responsible for proving the speed at impact? Will it be open for a Defendant to simply say that they were travelling at less than 6.25mph and leave the claimant to obtain expensive expert evidence to prove otherwise?
There are clearly a number of fraudulent whiplash claims and they need to be weeded out but the vast majority of Claimants have legitimate injuries and the government is in danger of unfairly punishing them.
What is the answer?
The suggestion of a panel of approved court experts is a good one providing Defendants and Claimants can agree who should be on the list. A number of years ago APIL (The Association of Personal Injury Lawyers) and FOIL (The Federation of Insurance Lawyers) managed to produce a list of agreed Orthopaedic Experts and surely they could meet again and produce a similar list for Whiplash Injuries.
For more detail on Whiplash Claims see Jennie Jones’ article of 12th January 2012 Whiplash claims...scandal or a right to claim
Ivan Moody is a solicitor at Nockolds LLP with over 20 years’ experience of Road Traffic and other Personal Injury Claims
For help and advice contact the team on accidents@nockolds.co.uk
Ivan Moody (profile) Jennie Jones (profile) Rachel Davis (profile) 
Tuesday 14th February 2012
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Hertfordshire are considering the alternative of promoting someone from within but doing away with their job instead of the CEO role.
Other Authorities are taking the opportunity, when their CEO retires, of approaching neighbouring authorities and asking if they can share their CEO. This raises the question of whether that CEO will be able to give sufficient time to both authorities and if not will one or both of the Authorities suffer? The CEO is only as good as his staff so sharing a CEO will probably work in well-run authorities but in authorities that are already struggling this is unlikely to be the answer.
Ms Tapster is currently paid over £200,000 in her role as CEO but the Council are hoping to persuade her replacement to accept the new role but to remain on the same or slightly increased salary. If her replacement is an internal appointment they propose that the position that the replacement comes from will not be replaced and that the newly appointed CEO will remain on the same pay scale as their previous role. This would result in a saving to the council of over £200,000.
In December Councillor David Lloyd said:
“The need to constrain public spending means that the council’s total income is falling while the pressure to spend increases, particularly because of inflation and the cost of meeting the needs of Herts’ aging population……..Taken together, these factors mean that we have to reduce our spending by around £200m a year by 2014-15.”
So what are the alternatives for councils who have to find £200m a year in savings? Well getting rid of highly paid staff and not replacing them or replacing them with someone less expensive is clearly one avenue being explored by Hertfordshire CC and other authorities but a saving of 0.1% leaves £199,800,000 to be found.
Cllr Lloyd has indicated that they are three-quarters of the way towards their target but savings of this scale cannot be made by internal re-organisation alone. Some of us have already noticed these cuts including the turning off of street lights, reduced bus services and funding cuts to various charities.
The outcome of today’s council meeting will be watched carefully by many of us who care about our Council. Nockolds recognise that these are difficult times and cut backs and savings need to be made but the Council must do all they can to ensure this has as little impact on their residents and local businesses as possible.
Ivan Moody 23rd January 2012
Ivan Moody (profile) Monday 23rd January 2012
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COMMISSIONING (VIRTUAL) COUNCILS – ARE THEY THE WAY FORWARD?
Southampton City Council has recently announced that they are considering becoming a “commissioning council” but what does this mean?
A commissioning council tries to ensure there is flexibility for cultural change whilst guaranteeing a healthy public sector into the future and maintaining efficiency.
The general public are usually unconcerned about who provides their services as long as they are high quality, consistent and delivered in an efficient and effective manner. It is no longer necessary for existing councils to provide the services themselves and they should look to see whether it would be beneficial to outsource some services to the private sector. In certain circumstances outsourcing will not be the correct way forward but councils should consider the private, public and third sectors to see which can provide each of the services they require at best value for their constituents.
Southampton City Council’s decision to involve outsourcing firm Capita in discussions about becoming a commissioning council by 2015 have been criticised by Unite the Union as they believe this will have a significant effect on the services that are provided as well as the employment conditions and pensions of existing council workers.
The Council leader, Councillor Royston Smith, denies that working with private companies such as Capita would lead to residents receiving “an inferior standard of service”. He believes that by working with companies such as Capita they can provide an even better service to residents whilst finding the necessary savings required in these difficult times.
As with all debates about the benefits of the public and private services there are good and bad points made by each side. The unions should embrace the prospect of working with the private sector, which will in many circumstances improve their members’ conditions and prospects. The council should also recognise the important part that their existing staff play in the services that are provided and not automatically assume that private sector companies can perform the work better than their existing staff.
In the legal sector, for example, it would be foolhardy to completely do away with a legal department, as a number of the areas which local government have to deal with are best left in-house. There are, however, numerous areas of law where the use of external firms such as Nockolds LLP can be of significant benefit to the councils. For example, outsourcing employment law issues can help ensure that the relations between the council and the union (which often break down when these are dealt with in-house) remain convivial.
Each council must decide how best to run the services they provide to the public but outsourcing some services whilst keeping others in house may (in the long run) be the best solution.
Ivan Moody (profile) Thursday 12th January 2012
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