Legal Watch:DiseaseJanuary 2015Issue: 001

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next months:

The Major Bodily Injury Group (MBIG) | Spring

Seminar | 28.04.15 | The Wellcome Collection,

London

In this Issue:

• Damages for lung cancer claims divisible

following Heneghan

• Limitation boast for defendants in noise –

induced hearing loss claims

• ABI call for the introduction of fixed fees

as the number of noise-induced hearing

loss claims increase

• Irritant induced asthma – the potential for new

claims

• Precautions taken by employer acceptable by

standards of late 1970s

• Appeal tracker: International Energy Group

Ltd v Zurich Insurance Plc UK

• Appeal tracker: Collins v Secretary of State for

Business Innovation and Skills and another

Damages for lung cancer claims divisible following HeneghanThe recent High Court decision in the case of Heneghan v

Manchester Dry Docks Ltd is of great importance to insurers

and defendants because it confirms the application of Fairchild

and Barker to multi-party asbestos-related lung cancer cases.

During the course of his working life Mr James Heneghan was

exposed to respirable asbestos fibres and dust. He died of

lung cancer and claims were brought against six defendants.

The sole issue at trial was whether each defendant was liable

for damages in full or for only a portion of the damages. Mr

Justice Jay remarked at the beginning of the judgment, “One

might be forgiven for thinking that the answer to this issue

ought to be found in the previous authority, because it must

have arisen in the past. As it happens, this issue has not

been previously determined.” The case therefore gave rise to

problems of some difficulty and importance.

The court had to consider whether the principles in Fairchild

(2002), which apply in mesothelioma cases, also arise in a

multi-party lung cancer case. Unusually, because the tables

are normally turned the other way, the defendants contended

that Fairchild did apply and the claimant contended that it

did not. The defendants therefore submitted that the test of

causation was whether the employer had materially increased

the risk of harm to the claimant.

BackgroundThe deceased was employed by the six defendants on

a sequential basis between 1961 and 1974. There were

earlier employers who were not sued. Consequent upon

the deceased’s death, claims were brought against the

defendants, under the Law Reform (Miscellaneous Provisions)

Act 1934 and the Fatal Accidents Act 1976.

03

The parties agreed that the deceased’s exposure to asbestos

over the course of his working life could be quantified and

that the total exposed ‘share’ of those defendants who had

been sued was 35.2%. As between the six defendants, the

distribution of their respective exposures was also agreed

and ranged from 2.5% to 10.1%. Liability was admitted by

all six defendants and judgment had been entered against

them by the master.

Expert evidenceEngineering evidence

Mr John Raper considered the deceased’s levels of

exposure to asbestos fibres during his employment with

ten employers, over many years. The deceased’s aggregate

asbestos dose was 133 fibres/ml years. The six defendants’

cumulative exposure was 46.9 f/ml years yielding the agreed

apportionment division of 35.2%.

According to the Helsinki criteria, formulated by an

international panel of experts in 1997, cumulative exposure

of 25 f/ml years is sufficient to infer that lung cancer in

any individual case is attributable to asbestos. The criteria

has been refined over the years and it is accepted that if

exposure involved equal quantities of amphiboles and

chrysotile, then cumulative exposure of 40 f/ml is probably

necessary to double the risk of lung cancer.

Medical evidence

Dr Robin Rudd (for the claimant) and Dr John Moore-Gillon

(defendant) gave oral evidence.

They agreed that given that the deceased was a smoker, the

risk of him developing lung cancer at this level of asbestos

exposure was more than five times greater than it would

have been had he just been a smoker. It was accepted

that the overall dose of 133 fibres/ml years was more than

enough to double the risk. The medical experts agreed that

it was more likely than not that his asbestos exposure was

causative rather than his smoking. However, the experts

were unable to agree on the main issue before the court.

Legal submissionsIt was common ground that lung cancer is an indivisible

injury because its severity does not depend on the asbestos

dose. It was also accepted that, if the claimant is able – on

what may be termed entirely conventional principles – to

prove some causation of damage against any one of the six

defendants, then that defendant is liable to compensate the

claimant for the entirety of the injury suffered (Sienkiewicz v

Grief (2011)).

The claimant submitted that the deceased’s exposure

with each defendant had materially increased the risk

of him developing lung cancer and that the common law

recognised a category of case which fell neatly between the

conventional approach and the extension in Fairchild. If a

case fell within that intermediate category it was sufficient

for the claimant to prove, on the balance of probabilities that

the risk of injury or damage had been materially increased.

The defendant submitted that either the Fairchild exception

applied and apportionment ensued, or the claim altogether

failed for want of proof.

The claimant then argued, supported by the evidence of

Dr Rudd, that he was entitled to full recovery against each

defendant, on the basis that each had made a material

contribution to his cancer.

The defendants, supported by the evidence of Dr Moore-

Gillon, argued that only contribution to the risk of disease

and not to the cause could be proved. Accordingly, the

Fairchild principle should apply and liability should therefore

be apportioned consistent with the decision in Barker v

Corus UK Ltd (2006).

It was accepted by the claimant that if this case fell to be

accommodated within the exceptional rule laid down in

Fairchild, because causation cannot be proved otherwise,

then the apportionment rules laid down in Barker must apply.

(The Compensation Act 2006 was introduced to reverse the

Barker ruling in mesothelioma cases but does not apply to

lung cancer cases.)

04

If the claimant’s case was right, it was common ground that

he should receive the sum of £175,000, being the damages

in full contemplated in the master’s order. However, if the

defendants’ arguments prevailed, it was equally not in

dispute that the claimant should receive £61,600, based on

the total ‘exposed’ share of 35.2% of the gross sum.

Judgment The Queen’s Bench Division, in ordering apportionment,

rejected the claimant’s submission that the common law

had recognised an intermediate category of case which fell

between the conventional approach to causation and the

principle in Fairchild.

There are only two categories of case. The first category

embodies the conventional approach. The second entails

the application of the principles laid down in Fairchild and

subsequent cases decided at the highest level. For the

purposes of the first category, proof of damage, in whole or

in part, is required; whereas for the purposes of the second

category, proof of enhancement of the risk (of damage) is

required. The intermediate category did not exist. It is, in

fact, the same as the second category.

Although causation was a unitary concept, the court

considered it convenient to distinguish between two stages

of causation, namely, medical causation and defendant

attribution. At the first stage, the court considered whether

medical causation had been made out. In this case, this

involved considering whether the claimant had proved that

the deceased’s lung cancer had been caused by asbestos

dust rather than smoking. At the second stage, the court

considered whether causation was proved against each of

the defendants.

It was over-simplifying matters to state that medical

causation had been proved in the present case on the

balance of probabilities. It depended on how the question

was framed. The claimant had demonstrated on the balance

of probabilities that the deceased’s lung cancer was not

caused by non-occupational factors. However, if the

question was re-framed to ask if it had been proved that any

of the defendants who were sued caused the deceased’s

lung cancer, then the answer must be in the negative. The

claimant could prove against none of the defendants on

conventional grounds despite all being guilty of negligent

exposure. The claimant’s case was therefore covered by

the Fairchild principle and hence Barker. Accordingly,

apportionment was the appropriate outcome in the present

case and the claimant’s recovery was limited to £61,600.

CommentaryThe court therefore clarified that the Fairchild extension

applies to multi-party asbestos-related lung cancer claims.

Asbestos-related lung cancer is therefore an indivisible

condition with divisible damages.

The claimant was granted leave to appeal and the hearing

will be expedited in view of the ill-health of the deceased’s

widow. The true impact of this case will be determined on

appeal. It is likely that claimants in multi-party lung cancer

claims will seek a stay of proceedings in the interim.

In the Heneghan case, none of the defendants sued were

responsible for more than 50% of the overall exposure.

It is arguable that defendants will only be able to seek

apportionment of damages in an asbestos related lung

cancer claim if their contribution amounts to less than 50%.

The High Court suggested that a claimant could recover in

full against a defendant who is responsible for more than

51% of the culpable exposure, on the basis that it can be

proved that they caused the disease on the balance of

probabilities.

Whether Barker remains good law is likely to be considered

by the Supreme Court in the IEG v Zurich Insurance appeal

to be heard this week.

Professor Carl Heneghan (Son and Administrator of the

Estate of James Leo Heneghan, Deceased) v Manchester

Dry Docks Ltd & 5 others [2014] EWHC 4190 (QB)

Karen Scott

05

Limitation boast for defendants in noise-induced hearing loss claimsThe case of Platt v BRB (Residuary) Ltd (2014) recently heard

in the Court of Appeal re-examined the issue of limitation in

the context of a noise-induced hearing loss claim.

BackgroundThe claimant had worked for the defendant company for

35 years in a noisy environment. He first consulted his GP

in relation to problems with his ears in 1982 and made a

number of further visits later in the 1980s and 1990s. In

1997, the claimant complained to his GP that he was

suffering from hearing loss and tinnitus and he was referred

to an ENT surgeon. During a consultation, the claimant

was asked whether he had worked in a noisy environment

and he replied that he had, although he did not go on to

ask and was not told, that he was suffering from noise-

induced hearing loss. In 2010, the claimant read an article

about industrial hearing loss and tinnitus which led him to

contact solicitors. He subsequently consulted Mr Zeitoun

and issued court proceedings in 2011.

JudgmentAt first instance, the judge held that the claimant obtained

knowledge after reading the article in 2010 and disagreed

with the defendant that the claimant obtained constructive

knowledge in 1997. It was unreasonable to expect the

claimant to specifically ask about the cause of his hearing

loss and this was too harsh a test. The judge added that if

the claimant did have constructive knowledge, he would not

have exercised his section 33 discretion as the defendant

had suffered prejudice by the delay.

On appeal, the Court of Appeal made a finding that the judge

at first instance had not paid enough regard to section 14(3)

of the Limitation Act 1980 and the test set out in Whiston v

London SHA (2010). In this case, it was held that constructive

knowledge should be determined by reference to the

knowledge which a person might reasonably be expected

to acquire, which must depend on the circumstances of the

case. In his leading judgment, Vos LJ referred to Johnson

and Adams reiterating the demanding test set down by the

Limitation Act which is “not to protect those who do not

act reasonably in their own interests to obtain and act upon

expert advice.”

The Court of Appeal took the view that it was reasonable to

expect the claimant to have asked the ENT surgeon what had

caused his hearing loss and tinnitus during the consultation

in 1997. This was a natural and appropriate question to ask

and this was not too harsh a test for constructive knowledge.

Judgment was given for the appellant on the basis that the

claimant had constructive knowledge more than three years

prior to the date proceedings were issued.

CommentaryIn light of this Court of Appeal decision, those defending

noise-induced hearing loss claims should seriously consider

whether to defend a claim on the basis of limitation where

there is reference to hearing loss and/or tinnitus within the

claimant’s medical records, even when a diagnosis of noise-

induced hearing loss is not made.

Howard Platt v BRB (Residuary) Ltd [2014] EWCA Civ 1401

Ramiz Wahid

06

ABI call for the introduction of fixed fees as the number of noise-induced hearing loss claims increaseThere has been a lot of publicity about the staggering

increase in deafness claims, which have been dubbed by

some as the new ‘whiplash claims’.

The Association of British Insurers (ABI) has classed noise-

induced hearing loss claims as the new ‘cash cow’ for

claimant lawyers following the introduction of fixed legal

costs in the claims portal for the settlement of personal

injury claims. The ABI is trying to lobby stakeholders to

put in place similar disincentives to those implemented

in whiplash claims, in the form of fixed fees for claimant

lawyers. The ABI commented that for every £1 paid to the

claimant for compensation, £3 was paid to the claimant’s

lawyer. This figure matches our experience.

It has been suggested that a solution to combat the rise in

claims would be for the Ministry of Justice portal to be made

more suitable to deal with disease claims. For example,

at present, multi-employer claims cannot be processed

through the MOJ portal and claims are therefore coming

through as hourly rate claims. Hourly rates are clearly an

incentive for claimant solicitors.

It remains to be seen whether fixed fees will be implemented

as it is argued that the government appears more reluctant

to act in deafness claims compared to in whiplash

claims. A possible reason may be that there was a direct

correlation in damages and costs payable to claimants and

motor insurance premiums. However, employers’ liability

premiums impact indirectly on the public and there appears

to be little political mileage that can be made.

A freedom of information request was made to the

Department of Energy & Climate Change (DECC) regarding

the number of deafness cases received from former

mineworkers. The figures evidence a spike in 2012/13 with

4,082 claims being received. Interestingly the figures reveal

that fewer claims were brought in 2013/14 and the first few

months of 2014/15 indicate there will be fewer still. Some

insurers attribute this to the implementation of the Legal

Aid, Sentencing and Punishment of Offenders Act 2012.

In addition to the concerns in respect of claimant’s

solicitors’ costs, there has been concern that a large

proportion of claims are fraudulent. Having considered the

information received by the DECC, the figures reveal that in

2011/12 only 13.77% of the claims received were paid out

compared to 48.23% of claims being paid out in 2014/15

(as at 31/07/2014). A greater number of claims are being

paid out which may indicate one of two things: (i) insurers

are paying unmeritorious claims to dispose of them due to

the high volume of claims being received or (ii) a significant

proportion of the claims are genuine.

However, these figures are in respect of claims brought

against the former employers of the nationalised coal

industry only and may therefore not be representative of

industry as a whole. Many insurers have stated they have

seen a rise in noise-induced hearing loss claims across

the board. Further, the ABI reported that in March 2014

3,500 notifications for industrial deafness were made to the

Compensation Recovery Unit, compared to 1,000 in March

2012. However, even these figures do not truly represent the

total number of claims as a noise-induced hearing loss claim

only needs to be registered with the CRU when hearing loss

is 50dB or more in each ear.

CommentaryGiven the above, it would appear that the overall number of

noise-induced hearing loss claims has indeed increased. It

remains to be seen whether the above calls to address this

trend will be actioned as the introduction of fixed fees will

be welcomed by insurers and those companies paying out

on noise-induced hearing loss claims.

Yumna Tamez

07

Irritant induced asthma – the potential for new claimsThere has been speculation in recent months over a potential

increase in claims by people developing asthma-type

symptoms and the possibility of work in certain industries

leading to the development of such problems.

It is well established that asthma is more common in certain

industries, such as pulp or paper mills or with cleaners

using disinfectants. These workers are not exposed to

any known sensitising agent and so it has been argued

that repeated low or moderately elevated exposures may

also cause asthma. Recently, some respiratory physicians

have proposed that the term ‘Irritant Induced Asthma’ (IIA)

should be extended to those with asthma caused by single

or multiple exposures to low or moderately elevated doses

of irritants as opposed to ‘Reactive Airways Dysfunction

Syndrome’ (RADS) where there is a single very high dose

exposure.

A May 2014 literary review Malo, Chan-Yeung and Lemière

tackles this particular area and possibly adds weight to the

recent shift in the way some experts assess both diagnosis

and causation.

The paper reviews the diagnosis and management of

RADS and IIA and also considers the causes. RADS is

described as the development of respiratory symptoms in

the minutes or hours after a single accident of inhalation

of a high concentration of irritant gas, aerosol or smoke.

The initial symptoms are followed by asthma-like symptoms

and can persist for a prolonged period. RADS can occur

after exposure to a variety of chemicals generated as gas or

aerosol or exposure to high levels of particulates.

IIA is a more general term to describe an asthmatic

syndrome that results from a single or multiple low dose of

exposure to irritant products. When only a single high dose

exposure has been responsible, the term RADS is used.

IIA caused by single or multiple exposures to low doses

of irritants has been reported and it has been suggested

that IIA also includes the situation where multiple exposures

to low concentrations of an irritant have led to persistent

asthma-like symptoms such as cough, chest tightness and

wheezing. However, it is clearly stated in the recent review

that this is less well established.

It is also reported that when the intensity of the exposure

is less but is of greater duration, symptoms may start after

several hours or days rather than within minutes of inhalation

which will have the effect of further widening the spectrum

of IIA.

For several years, claims have been made by employees

of pulp or paper mills, those working with isocyanate

paints and professional cleaners, although in the past it is

has been more difficult for cleaners working with standard

domestic products to prove a link between the use of such

products and any symptoms they have had. The recent

review however suggests that professional cleaning is

considered a high-risk occupation for occupational asthma

based on recent studies in Europe and in the United States.

These studies show that cleaning agents may also cause

occupational asthma by a mechanism of sensitisation and

that asthmatic symptoms are also associated with the

domestic use of cleaning agents.

We have been informed in discussion with respiratory

medico-legal experts that it is not possible to distinguish a

subject who would have developed constitutional asthma

irrespective of work exposures, from a subject whose

asthma has been caused by low or moderately elevated

irritant exposures at work. A subject who had asthma as

a child which subsequently resolved, is more likely than

not to develop asthma again in later life. It is therefore

reasonable to assert that the former asthmatic child would

have developed a relapse in their asthma regardless of work

exposure.

08

However, we are also informed that it would also be

reasonable to argue that work exposures were an

environmental trigger that brought forward the date of the

return of asthma and it may be difficult to prove otherwise.

CommentaryThese recent developments would appear to lower the

threshold for certain claimants attempting to prove a

causal link between their work and respiratory symptoms.

Diagnosis is based on a history of exposure to an irritating

agent, the presence of asthma-like symptoms and evidence

of reversible airway obstruction. As the onset of symptoms

is gradual rather than acute, it will be easier for claimants

to explain a lack of attendance at their GP or a failure to

report the problem to their employer. In an industry such

as cleaning, where the numbers of workers are so high and

with claimant’s solicitors constantly on the search for new

types of claims, there is clearly the potential for a greater

number of claims to be brought.

The majority of patients with IIA improve over time although

many continue to have some respiratory symptoms for

at least a year and can have physiological abnormalities

such as bronchial hyper reactivity for several years after

exposure ceases. Most claims of this kind are likely to be

of a relatively low value as relatively minor symptoms are

common and exacerbation of a constitutional condition is

likely to be claimed. However, this will not always be the

case as symptoms last for several years in some people.

It is not certain whether the number of asthma claims are

likely to increase in the near future but it will be necessary to

keep an eye on the different claimant firms we usually deal

with, to monitor if they are live to recent developments. It is,

however, definitely something to be aware of at the present

time.

Neil Kochane

09

Precautions taken by employer acceptable by standards of late 1970sMarie Georgina McGregor v Genco (FC) Ltd This first instance decision of Mrs Justice Patterson dating

back to May 2014, will be of interest to employers and

insurers alike, as it casts further light on breach at common

law in low-level asbestos exposure cases.

BackgroundThe facts in the case are reasonably straightforward. The

claimant, Marie McGregor was employed at the Lewis

department store in Liverpool during the 1970s. Her

employer was the British Shoe Corporation Company which

operated a concession on the first floor of the store.

During 1976 Lewis’s underwent a programme to remove

and replace the escalators and the entirety of the work was

carried out whilst the store remained open for business.

It was agreed evidence that the claimant worked in close

proximity to both the old staircase being removed and the

installation of the new escalator. It was a finding of fact

that asbestos insulation boards were removed from the

old escalator. New sheets of AIB were also cut to size by

power saw and applied to the new escalators as part of the

installation process. The claimant’s evidence was that the

workmen involved in the construction wore facemasks.

JudgmentThe court found that the whole process took between two

to three months. Importantly the judge described this to be

of short duration.

The judge accepted that the process was dusty and the

claimant gave clear evidence of dust entering her work area.

She was required to dust the stock on approximately three

to four occasions each day.

A factual dispute arose as to the extent of the physical

barrier between the construction works and the claimant’s

working area. The judge however preferred the defendant’s

evidence that floor to ceiling timber boarding was in place

which was primarily erected as a means of delineating

the construction area from the remainder of the store and

providing a physical barrier to prevent customers straying

into the construction site.

Both parties obtained expert liability evidence and both

experts agreed that the works produced asbestos dust

which, whilst at a higher level than those generally found in

buildings, would not on the balance of the probabilities have

exceeded the standards set out in technical data note (TDN

13) issued by the HSE in 1970.

The claimant’s case was that the defendant failed to take

the appropriate steps to avoid the claimant being exposed

in circumstances amounting to negligence. In particular, the

claimant asserted that the defendant was under a duty to

make enquiries about the risk that the works presented to

employees, in light of the employer’s understanding of the

risk.

The judge acknowledged that the outcome turned

on whether the risk of personal injury arising from the

claimant’s exposure to asbestos, ought reasonably to have

been foreseen by a careful employer, to the extent that the

employer should have taken precautions or at the very least

sought advice as to what, if any, precautions he should take.

In dismissing the claim however, the judge found that whilst

the asbestos dust escaping from the construction works was

causative of her mesothelioma, the floor to ceiling barriers

erected during construction works would be deemed an

adequate protection judged by the standards the day.

The judge resisted the temptation to don the rose tinted

glasses of hindsight and she acknowledged that the position

010

must be considered by the standards operative at the time

of the exposure in 1976.

The judge concluded that there was no negligence on

behalf of the defendant and rejected the suggestion that

a further duty arose to make enquiries about the risk the

work presented to employees given the short duration of the

construction works.

CommentaryThe decision is undoubtedly of interest to insurers given the

relatively late exposure (1976) and its duration for a period

of months as opposed to days or weeks as was the case

in recent previous low-level exposure defence successes.

Practitioners will note the reference to TDN 13 and it will

clearly be of some importance for liability experts to take a

view as to whether an individual’s exposure exceeded or fell

below the published standards. Nevertheless and with each

case being entirely fact specific, it is too simplistic to assume

that a court will always dismiss a claim for the period when

the exposure fell below the published standards.

It is questionable whether a different result may have

been arrived at, had the claimant been employed by

the department store owners rather than the shoe shop

concession business within the store.

Marie Georgina McGregor v Genco (FC) Ltd [2014] EWHC

1376 (QB)

David Jackson

011

Appeal tracker: International Energy Group Ltd v Zurich Insurance Plc UKThis important case has been re-listed before the Supreme

Court during this week, on 27 and 28 January 2015. The

panel of justices has been increased to seven, from the

initial five justices who first heard the appeal in July 2014,

indicating the significance of the case.

As a brief reminder, this case centres on the interpretation of

employers’ liability policies in a mesothelioma case covering,

in particular, the interpretation of ‘sustaining of injury’ or

‘contracting of disease’. The case concerns a claim by Mr

Carré for damages in Guernsey, where the Compensation

Act 2006 does not apply. (Section 3 of the act effectively

reversed the decision in Barker v Corus UK Ltd allowing a

claimant in the UK to recover in full against any tortfeasor

found to have negligently exposed him to asbestos.) The

apportionment rules laid down in Barker therefore apply to

mesothelioma claims in Guernsey.

In this case, the claimant’s employer, IEG, had negligently

exposed him to asbestos over a period of 27 years. The

employer settled the claim and then sought an indemnity

of settlement from the defendant insurer. The employer was

insured by Zurich for six years out of the total 27 years of

exposure. Zurich refused to provide a full indemnity arguing

IEG was only entitled to a proportion based on Zurich’s

period of cover and offered 6/27ths of IEG’s outlay. In the

alternative, Zurich submitted that equitable principles

required a contribution from IEG for the period it exposed

Mr Carré to asbestos but was not insured by Zurich.

The issue before the court is whether under the EL policy,

the insurer’s liability extends to indemnifying the employer

for the full damages paid to the claimant or is limited to

6/27ths of the damages, representing only a proportion of

the policyholder’s outlay based on the period for which the

insurer provided cover.

At first instance the judge found in favour of Zurich.

The Court of Appeal overturned that decision and held that

the judge was wrong to find that the insurer’s liability under

an employers’ liability policy had restricted the indemnity

that the policyholder could claim for damages paid to the

employee. The CA relied on Durham v BAI (Run off) Ltd

[2012] UKSC 14 (the Trigger litigation) made two months

after Cooke J’s decision. It held that if an employer was liable

to his employee for his employee’s mesothelioma following

a tortious exposure to asbestos created during an insurance

period, then, for the purposes of the insuring clause in the

employer’s liability policy, the disease was ‘caused’ within

the insurance period.

Zurich now seeks to overturn that decision.

The decision will have significant implications for the

future handling of mesothelioma claims, in particular the

sharing of liability between successive EL insurers and/or

EL insurers and their solvent policyholders. If the Supreme

Court upholds the decision of the Court of Appeal and

accepts that Barker has been overturned, this will also

have a profound impact on the recent lung cancer case of

Heneghan (discussed above).

International Energy Group Ltd v Zurich Insurance Plc (UK

Branch) [2013] EWCA Civ 39

012

Appeal tracker: Collins v Secretary of State for Business Innovation and Skills and anotherWe covered this case in some detail in our May 2014 edition.

In Collins v Secretary of State for Business Innovation & Skills

the defendants succeeded with their limitation defence.

The claimant, a former dockworker who was exposed to

asbestos and diagnosed with terminal cancer 35 years later,

had delayed after becoming aware of his cause of action.

The court refused to exercise its discretion to extend the

time under section 33 of the Limitation Act 1980 to allow his

personal injury claim to proceed. His claim had significant

weaknesses and the costs of defending it would outweigh

the claimant’s recoverable loss by a large margin.

The Court of Appeal upheld the decision as having been

correctly made and in the light of established authorities,

gave the true construction of s 33(3) of the Act.

We understand that permission to appeal was refused by

the Supreme Court on 22 December 2014. This therefore

remains a useful decision for insurers defending asbestos-

related claims.

Collins v Secretary of State for Business Innovation and

Skills and another [2014] EWCA Civ 717,

Karen Scott

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, Surrey CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk

Contact UsFor more information please contact:

Karen Scott

Knowledge Management Lawyer

T: 0844 245 5235

E: Karen.Scott@Parabis.co.uk

Neil Kochane

Partner

T: 0844 245 5246

E: Neil.Kochane@plexuslaw.co.uk

David JacksonT: 0844 245 5238

E: David.Jackson@plexuslaw.co.uk

Ramiz WahidT: 0844 245 5098

E: Ramiz.Wahid@plexuslaw.co.uk

Yumna TamezT: 0844 245 5185

E: Yamna.Tamez@plexuslaw.co.uk

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