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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The headlines and discussions in the media suggest that these claims are a way of gaining “easy money” and that insurance companies pay out automatically. Cutting through the hype and innuendo, it should be made clear that in order to succeed with a personal injury claim for whiplash or any injury, the injured person needs to prove that the other driver was at fault i.e ‘negligent’. If this can be proved then they are entitled to compensation for the injury suffered.
Over recent years, the insurance industry has lobbied hard for a revised process to deal with low value road traffic accidents. An on-line process is now in place. Insurers will often press for a General Practitioner’s report to be obtained to prove the injury rather than a more expensive neck and spine expert, such as Orthopaedic Surgeon. The medical experts instructed owe a duty to the Court to be independent. They are not ‘hired guns’. If properly instructed by a qualified, experienced, personal injury lawyer, the medical expert will be asked to review the person’s medical history and comment on whether the accident has caused an injury or that there are other causes for the injured persons pain and discomfort.
If an injured person suffers for only a few weeks, then the claim is unlikely to be taken any further. In order to recover legal costs, the claim must be worth more than £1,000.00. Under the Court guidelines the reality is that unless an injury is suffered for 2-3 months, this level of compensation would not be awarded. If an injured person has instructed a solicitor or has been referred to a solicitor by their insurance company, which is often the case, then they would be personally responsible for the legal fees.
Whilst some whiplash claims do involve a relatively short to medium term injury which may need some physiotherapy or other treatment, there are occasions when even a relatively minor accident can have a devastating effect on someone’s life. For someone with a vulnerable back or with a pre-existing problem, even an accident at a slow speed can cause devastating injuries, or accelerate the problems experienced. In the past Nockolds have dealt with a case where a person was involved in a relatively minor rear end shunt. The solicitor instructed by her insurer initial dealt with this as a minor 6 month whiplash injury. She did not recover within 6 months and decided to seek a second opinion from Nockolds. When we investigated further, the medical evidence found that due to a pre-existing problem with her back and neck, the accident made her symptoms at least 200% more severe, and had the accident not occurred, these symptoms would not have materialised for another 15 years. Unfortunately due to the severity of her injury, our client was unable to continue working as a trainer for vulnerable adults with learning difficulties. Having loved her job for more than 20 years, this affected her emotionally and psychologically. The medical evidence of two Consultants confirmed the accident had significantly altered the likely progression of her back problem, and therefore she was entitled to recover compensation for this and for the impact it had on her ability to work. The claim was resolved and compensation (including loss of earnings) received just two months before her mortgage company were due to take the final steps to repossess her home. So whilst on the face of it, whiplash claims can be trivial, this is not always true and without proper investigation injustice will arise.
The insurance industry are suggesting that on one hand, expert legal representation is not required, but then arguing that these injuries should be fully proved and tested.
Former Justice Minister Jack Straw was heard on Radio 4 Today programme, speaking about referral fees. These fees have clouded the impression of independence on both sides. Insurers have sold on peoples’ details following the reporting of an accident, in return for a fee paid by the solicitors or claims management companies. Despite the strict professional codes of conduct, and even where solicitors are meeting their obligations to their clients, there is a suspicion that independence is lost.
Jennie Jones of Nockolds LLP explained that “our independence is key and we took the decision, as a firm, not to pay referral fees for personal injury claims. We have criticised insurance companies for making money from selling on their customers information and for them encouraging people to make claims when their injuries may not be severe enough for them to consider taking this action themselves. We are committed to providing those injured in accidents with honest and clear advice as to whether they have a claim, and if so, whether it is a claim worth pursuing. This advice should not be tainted in any way by clients’ fears that there are links with the other parties insurer, their own insurance company or another interested party. Reputable and experienced personal injury lawyers will investigate claims and will consider whether the injured person can justify bringing a claim whether their injury is severe enough:
- to warrant compensation above the small claims limit;
- incurring the legal costs of doing so;
- to cause financial implications such as loss of earnings or the need for care.
Compensation is not paid out automatically and an injured person has to overcome a number of hurdles before their claim is successful and they recover compensation. It is very difficult for an individual who has not been through the process before to deal with the might of a multinational insurance company whose aim is to pay as little as possible and take their shareholders interest.”
Injured people with genuine claims need representation and accurate, honest advice as to whether to pursue a claim in the first place. Without this experienced advice, claims may not be handled and resolved fairly (either for the injured person or society as a whole, in terms of insurance premiums).
Following a review and consultation during 2010 and 2011, the Government has put forward various proposals and reforms to the personal injury claims system and these are currently being debated in the Legal Aid Sentencing and Punishment for Offenders Bill, which is being considered in detail by Parliamentary Committees. It is likely that referral fees will be banned, and other changes made to how the legal costs of claiming, and personal injury claims are recovered. These will significantly change the personal injury landscape and it is yet to be seen whether this will be to the detriment of those who have genuine claims and a right to compensated.
If you would like to discuss an injury claim, or the claims process generally, please contact Jennie Jones on 01279 712537 or email accidents@nockolds.co.uk.
Jennie Jones (profile) Thursday 12th January 2012
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