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Published 28 June 2018
In this update we consider
In Dryden the court held that notwithstanding that the claimants suffered no symptoms as a result of occupational exposure to platinum salts the fact they had been sensitised to the same amounted to an actionable injury.
The Supreme Court held that it was common ground that physiological changes had occurred in the claimants which made them more susceptible to further exposure to platinum and this limited the work that the claimants could undertake in the future which were more than mere evidence of exposure to platinum and therefore the claims were actionable.
The question of how a claim for financial dependency and dependency on services should be assessed, when the deceased and claimant were in the process of divorcing at the time of the accident, was considered by HHJ Freedman in the High Court in CC (as widow and dependent of JC) v TD, judgment in which was handed down on 23 May 2018.
The deceased and claimant were living separately, the claimant had commenced divorce proceedings, and the deceased was in a new relationship at the time of his death.
Following Davies v Taylor  AC 207, HHJ Freedman stated that the test for a claim by a dependant under the Fatal Accidents Act was whether there was a reasonable expectation of pecuniary benefit from the deceased, which, in the case of a separated couple, meant that the claimant had to show some significant chance that there would have been a reconciliation. Significant chance or prospect was to be contrasted with mere speculative possibility. In the event that the court concludes that there was a substantial possibility of a resumption of cohabitation, then the next stage is to assess, in percentage terms, the prospect of such reconciliation. Such percentage then falls to be applied to the amount of dependency which would otherwise have been awarded to the claimant.
In this case, the judge was unable to find that there was a significant chance that, but for his death, the deceased and the claimant would have been reconciled: he concluded that the chances of this marriage being saved and not proceeding to a Decree Absolute were no more than a speculative possibility.
RSA insured a company which employed a certain Mr Merritt as a painter and decorator. Mr Merritt was exposed to asbestos during his employment from 1975 to 1986 and subsequently developed mesothelioma. RSA were on risk for only 6 months of the alleged exposure. The claim was settled on 17/01/11 in the sum of £173,750.00 on a 100% basis by RSA as per s.3 of the Compensation Act 2006.
Following settlement of the claim further insurance cover was identified with Aviva (1976-79) and Generali (1981-83) and contribution was sought from those insurers by RSA. The contribution sought from Generali was 32% and from Aviva 60%. Aviva agreed to contribute but Generali declined to do so.
RSA issued proceedings against Generali seeking a contribution under the Civil Liability (Contribution) Act 1978 on 13/01/17. The issue then arose whether the claim for contribution against Generali was statute barred by s.10(1) of the Limitation Act 198 i.e. 2 years from the date on which the right to a contribution accrued. A further issue arose as to how the proportionate share of a contributing insurer was to be calculated.
The court held that:
When considering a contribution (whether from co-insurers or co-defendants) the date from which limitation begins to fun is the date of judgment or settlement whichever is earlier. Settlement should be considered not as the date on which damages are paid but the date on which agreement is reached to make the payment i.e. the date of acceptance of an offer.
Barbara Goddard's note regarding this can be found at: https://www.dacbeachcroft.com/en/gb/articles/2018/march/asbestos-a-limitation-decision/
James Tallent has prepared a note on this widely reported case previously which can be found at:https://www.dacbeachcroft.com/en/gb/articles/2018/march/musician-wins-hearing-loss-case/
Whether the case will be subject to appeal is yet to be seen and we shall provide further updates as the matter progresses.
Will Potts attended an RCJ Asbestos Court Users Meeting on 13 June 2018. The meeting had been called to consider the court's likely approach to immunotherapy treatment. Master Eastman had reportedly expressed surprise that there had been no contested hearings in relation to the reasonableness of immunotherapy treatment & the best way of ordering how it should be funded.
Facts and Background
The pursuer was a former employer of the defender and was exposed to asbestos dust in a shipyard in Scotland and while in the employment of a Scottish company. However, by the time the pursuer developed a condition related to this exposure for which compensation could be claimed (pleural plaques and asbestosis), he was a resident of England.
The pursuer's estate and various dependents raised an action in Scotland so as to benefit from the Damages (Scotland) Act 2011 which allows for claims to be made by the relatives of the deceased, in this case there were 24 pursuers including the widow of the deceased.
As detailed above Lord Tyre held in this case that the claim against the Scottish employer should be governed by English law, as it was not until the pursuer was a resident of England that the resultant injury occurred and the pursuer had a right of damages.
Under English law the executors claim for non-pecuniary loss prior to death including loss of expectation of life, executors claim for care provided by relatives and funeral expenses.
The claim came before Lord Tyre in the Outer House of the Court of Session. In this judgment, Lord Tyre held that in an asbestos-related claim, the applicable law to be applied to a claim is the law of the country in which the "injury occurred", rather than the country in which the wrongful or negligent act (the negligent exposure to asbestos) occurred.
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