the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Stroke Caused By Beauty Facial Case Settles

Claims against negligent beauticians and the like are not altogether uncommon. The injuries tend to be dermatological in nature consequent of some allergic reaction to an untested product. But who would have thought it possible, let alone likely, for someone to suffer a stroke as a result of a beauty facial treatment? Tragically that is what happened to Elizabeth Hughes after her visit to the spa at the Eastwell Manor Hotel. What should have been a weekend treat resulted in a serious stroke that left her disabled for life. Her claim, which otherwise would have been tried in the High Court this week, settled for an undisclosed amount. How did it happen? The medical experts on both sides were agreed that the stroke occurred as a result of a dissection to the carotid artery. The dissection was in all probability caused when beauty cream was massaged onto the sides of her neck by the beauty therapist. The issue was whether she was negligent or had applied an excessive degree of force. Unlike sports injury or deep tissue massages, where there are reported cases of stroke, this was a novel situation. This type of injury had not been encountered previously by beauty therapists. Mrs Hughes who was employed by the NHS as a nurse was left significantly disabled. Her disabilities prevented her from returning to employment in the nursing sector. The case has been watched closely by the beauty industry and the press. (http://www.mirror.co.uk/news/uk-news/nurse-disabled-stroke-after-allegedly-6798935) Elizabeth Hughes was represented by Edward Bishop QC and Kiril Waite at 1 Chancery Lane, instructed by Ciaran McCabe at Moore Blatch Legal Resolve.

“ .. Friends, Romans, personal injury lawyers ...!”

Or so Mark Antony might have said if Shakespeare had been around to reflect on the amendments to the CPR which come into effect on 6 April 2015. All the talk is of the changes to Part 36. But what of the new Part 87 which is being introduced as part of the continuing drive to replace Latin terms with simpler English language.   I confess to a fondness for Roman law having been made to study it as a student. I dutifully worked through “ius civile” (law of citizens), ius gentium (law of peoples) and other concepts. I learned about “ferae naturae-propter privilegium” (qualified property in animals) on which some modern legislation such as the Bees Act 1980 is based. Sadly I have not yet had the opportunity in practice to deploy this knowledge or what Justinian had to say about the sale of chariots and other “res corporalis”.   That is not to say that Roman law is irrelevant to personal injury lawyers.   Fairchild v Glenhaven Funeral Services Ltd and others [2002] UKHL 22; [2002] 3 All ER 305; [2003] 1 AC 32 is the seminal authority on indivisible injury in negligence cases. The claimants were negligently exposed to asbestos by multiple employers but were permitted to “leap the evidentiary gap” such that their employers were held jointly and severally liable.   Less well known are the references in Lord Rodger’s judgment to Roman jurisprudence and his observation [at §157] that “in a certain form, problems with unidentifiable wrongdoers had begun to exercise the minds of Roman jurists not later than the first century BC”. Lord Roger comments [at §158] on “D 9 2 51 Julian 86 digesta” written in the second century AD in which Julian discusses the “Lex Aquilia” and [at §159] on the later writer Ulpian in “D 9 2 11 2 Ulpian 18 ad edictum” both of whom considered the situation where a slave was killed by a number of people in such a way that it was impossible to say whose blow had caused his death.   On his way to finding causation proved in Fairchild, Lord Rodger notes [at §160] that “classical Roman jurists of the greatest distinction saw the need for the law to deal specially with the situation where it was impossible to ascertain the identity of the actual killer among a number of wrongdoers”.   The new Part 87 continue the process set in motion by Lord Woolf in June 1996 when he published his review of the civil justice system and writs gave way to claim forms, plaintiffs became claimants (although they remain plaintiffs in other jurisdictions such as Hong Kong) and hearings in camera would hence forth be hearings in private. Now, from 6 April 2015, habeas corpus “ad subjiciendum” becomes habeas corpus “for release”.   In “Beyond the Fringe” the great Peter Cook reflected that “I could have been a Judge but I never had the Latin for the judgin’”.   There is no longer any need for Peter or for others to worry.

Olympic Rings: Tinnitus at London 2012

If you were lucky enough to see Sir Chris Hoy take gold in the Velodrome or the ‘Mobot’ in action in the stadium, you might be wondering why the buzz hasn’t worn off…   According to LOCOG officials, cheering crowds caused noise levels in the stadia to regularly exceed 100 decibels, which is 512 times louder than breathing and 10 billion times louder than the smallest noise the human ear can pick up.   The Excel arena hit 113.7db during a fight involving Irish boxer Katie Taylor - which is louder than a rock concert at full tilt. The Velodrome topped 124db during the track cycling finals - which is louder than a thunderclap (and 26db shy of the point at which the ear drum ruptures).   Prolonged exposure to noise above 85db can cause temporary tinnitus or even permanent hearing loss.   With the Paralympics approaching and promising to sell out, Action on Hearing Loss is urging athletes and spectators to pack earplugs – which shut out loud noises but allow ambient noise - and not to bring the Olympic Rings home with them.

Lords insist on amendments to LASPO

The Legal Aid, Sentencing and Punishment of Offenders Bill (“LASPO”) has now reached the “Ping Pong” stage, during which time the Bill will be batted back and forth between the two Houses, until both Houses agree on the text. From the point of view of PI practitioners, two important amendments are being sought by the Lords. The first is that people should have access to legal services that "effectively meet their needs". The duty is subject to resource limitations; it therefore ensures that, so far as budgets allow, access to justice will be maintained. This amendment had its origins in a recommendation tabled by a number of Lords, including Lord Faulks of 1 Chancery Lane. The second amendment exempts asbestos victims from the new "no win no fee" regime. Lord Alton, a former Lib Dem MP, is quoted in the Guardian as saying that it is wrong to use people suffering from mesothelioma to help to push down lawyers' costs. "I suspect when you are dying, especially when you are dying from an excruciating and debilitating disease, you may have other things on your mind than watching the lawyer's clock.” For more information on the progress of LASPO, see http://services.parliament.uk/bills/2010-11/legalaidsentencingandpunishmentofoffenders.html

Knit at your peril...

I’ve long believed that knitting is a rather odd pursuit. I learnt in childhood that the results rarely justify the hours of effort: misshapen Christmas presents and unwanted scarves still litter cupboards at home. However, I didn’t believe that knitting was actually dangerous. It seems that I was wrong. As a result of a recent Supreme Court decision we now know that knitting – at least on an industrial scale – can cause hearing loss. The Supreme Court appeal concerned the liability of employers in the knitting industry of Derbyshire and Nottingham for hearing loss that employees suffered during the years prior to 1 January 1990 (being the date when the Noise at Work Regulations 1989 came into force). The key issue for the Supreme Court Justices was whether liability could be established at common law and/or in breach of statutory duty pursuant to section 29(1) of the Factories Act 1961 in respect of an employee able to prove a noise-induced hearing loss as a result of exposure to noise levels between 85 and 90dB(A)lepd. The appeal is Baker v Quantum Clothing Group & Anor. [2011] UKSC 17 (judgment was delivered yesterday and a report is in today’s Times and on Lawtel).

Causes and effects: The Supreme Court decision in Sienkiewicz and Willmore

The Supreme Court today handed down its judgments in two linked mesothelioma appeals: Grief (UK) Ltd v Sienkiewicz and Knowsley MBC v Willmore [2011] UKSC 10.  In doing so it made a number of important findings on the law of causation in tort generally as well as the special Fairchild rule applicable in mesothelioma cases.  It also doomed counsel appearing in future industrial disease cases to the embarrassment of likely mispronunctiation of the name of the claimant in the Sienkiewicz case. The feature shared by the two cases was that the claimant identified a single environment in which he was exposed to low levels of asbestos by the actions of a single defendant.  Such cases are termed, potentially misleadingly, "single exposure" cases.  They are to be contrasted with "multiple exposure" cases in which a claimant is exposed, either concurrently or consecutively, to exposure in different environments and/or for which different defendants are responsible. As is well-known, in Fairchild the House of Lords concluded that it was impossible in the current state of scientific understanding (as is still the case) to prove on the balance of probabilities that a particular defendant caused mesothelioma in multiple exposure cases.  That therefore justified a departure from the normal requirement to prove that it was more likely than not that the defendant caused or contributed to the onset of a disease, and led the House to rule that demonstrating that a defendant had materially increased the risk would establish liability. In Barker, the House decided that the logical consequence of this was that a defendant should only have to pay an aliquot share of damages in line with the degree to which, in multiple exposure cases, he had increased the risk of contracting mesothelioma.  However, Parliament swiftly intervened to provide, by s3 of the Compensation Act 2006, that a defendant would have to pay full damages. In the two cases under appeal, it was argued that in a single exposure case, the only competing causes were general environmental exposure which, rather worrying, all of us who live in cities apparently have (see Fairchild at [7] per Lord Bingham) or exposure unknown and unidentified.  It should be necessary for a claimant to prove that the exposure to asbestos by the defendant at least doubled the risk of the claimant contracting mesothelioma. The origin of this argument lies in the science of epidemiology or the statistical analysis of the correlation between events in order to establish causes and effects.  To those who have never worked as hard in their lives as they had to do to get a Maths A-level (ie me), Lord Phillips' judgment contains a reasonably comprehensible account of the significance of a doubling of risk: at [80]-[84].  In the Sienkiewicz case, the trial judge had concluded on the basis of the expert evidence that the exposure of claimant to asbestos in the defendant's employment had increased the risk by 18%.  No such conclusion was reached in the Willmore case of very slight exposure from a number of sources while the claimant was a pupil at the local authority's secondary school. The Supreme Court, sitting in a panel of seven, unanimously rejected the principle that in a "single exposure" case, a doubling of the risk would need to be demonstrated.  Rather frustratingly, each member of the court decided it was necessary to give a judgment and this will no doubt lead to detailed dissection of the decision in future cases.  The main judgments were given by Lord Phillips and Lord Hope. First, they disagreed with the Court of Appeal's view in Sienkiewicz that the defendants' arguments were precluded by the 2006 Act.  It was pointed out that all s3 did was to reverse Barker and require a defendant found to have exposed a claimant to asbestos to pay full damages rather than a proportion.  It did not enshrine the Fairchild rule on causation into statute: at [70], [130]-[132]. However, following a detailed consideration of the main decisions on causation, they held that Fairchild applied in a single exposure case: at [94]-[106], [160]-[161].  Accordingly, the fact that only one source of exposure can be identified does not prevent a claimant establishing liability on the basis of showing that an exposure is material. The court also unanimously rejected an alternative argument that unless the risk of mesothelioma was doubled, the exposure could not be "material" for the purposes of Fairchild: at [107], [161]. The judgment of the Supreme Court is also of relevance to the law of causation in relation to other industrial diseases and more generally.  First, Lord Phillips gave guidance as to the role of the 'doubling of risk' principle in relation to different types of case: 90. For reasons that I have already explained, I see no scope for the application of the "doubles the risk" test in cases where two agents have operated cumulatively and simultaneously in causing the onset of a disease. In such a case the rule in Bonnington applies. Where the disease is indivisible, such as lung cancer, a defendant who has tortiously contributed to the cause of the disease will be liable in full. Where the disease is divisible, such as asbestosis, the tortfeasor will be liable in respect of the share of the disease for which he is responsible. 91. Where the initiation of the disease is dose related, and there have been consecutive exposures to an agent or agents that cause the disease, one innocent and one tortious, the position will depend upon which exposure came first in time. Where it was the tortious exposure, it is axiomatic that this will have contributed to causing the disease, even if it is not the sole cause. Where the innocent exposure came first, there may be an issue as to whether this was sufficient to trigger the disease or whether the subsequent, tortious, exposure contributed to the cause. I can see no reason in principle why the "doubles the risk" test should not be applied in such circumstances, but the court must be astute to see that the epidemiological evidence provides a really sound basis for determining the statistical probability of the cause or causes of the disease. .... 93. Where there are competing alternative, rather than cumulative, potential causes of a disease or injury, such as in Hotson, I can see no reason in principle why epidemiological evidence should not be used to show that one of the causes was more than twice as likely as all the others put together to have caused the disease or injury. What amounts to a "material" exposure has caused some difficulty for practitioners since Fairchild was decided.  Lord Phillips gave some useful guidance.  He pointed out the importance of comparing the exposure for which the defendant was responsible with the total exposure: at [108].  It remains a question of fact in all cases, but the test is not a high one.  At [111] he said: The reality is that, in the current state of knowledge about the disease, the only circumstances in which a court will be able to conclude that wrongful exposure of a mesothelioma victim to asbestos dust did not materially increase the victim’s risk of contracting the disease will be where that exposure was insignificant compared to the exposure from other sources. The court also made some general comments about the law of causation in personal injury cases.  Varying comments are made by the court as to epidemiological evidence generally: besides Lord Phillips' comments quoted above, see at [163], [190]-[192], [204]-[206], [221]-[222].  Effectively, the weight to be given to such evidence will continue to depend on its content and the context in which it is adduced. Some fairly strong comments were made by Lord Brown, in particular stating at [182] that the Fairchild principle should not be extended beyond mesothelioma cases.  They cannot, however, be regarded as part of the ratio of the decision. Overall, the decision is a welcome one to the practitioner; if the appellants had succeeded, then "single exposure" cases would have more frequently called for complex engineering and statistical evidence which can only ever give an approximate answer to the question posed.  Clearly it will be unwelcome to insurers.  There is, however, a crumb of comfort for defendants in the observations on the challenges to the factual inferences drawn by Nicol J in Willmore, which had partly succeeded in the Court of Appeal.  The inferences were described as "truly heroic" by Lady Hale at [176] and as having a "slender and speculative basis" by Lord Mance at [195].  Lord Rodger gave this warning at [162]: Especially having regard to the harrowing nature of the illness, judges, both at first instance and on appeal, must resist any temptation to give the claimant’s case an additional boost by taking a lax approach to the proof of the essential elements. That could only result in the balance struck by the Fairchild exception being distorted. This merely echoes the earlier decision in Brett v University of Reading [2007] EWCA Civ 88, para 26, where Maurice Kay LJ said: Fairchild exceptionally relieves a claimant who has proved exposure and breach of duty from having to prove causation. What it does not do is to relieve him from proving the other elements. As Lord Justice Sedley has demonstrated, the evidence in this case sufficiently established exposure in the course of employment at Reading University but it did not begin to establish a breach of duty on the part of the university. With the incidence of mesothelioma, sadly, not expected to peak in the UK for at least another decade, it is unlikely that the Sienkiewicz decision will be the last word on the subject of causation in mesothelioma claims.