Cases – 2018 Insurance market | DAC Beachcroft


At a glance

Armes v Nottinghamshire County Council

AXA Insurance UK Plc v Financial Claims Solutions Ltd and others

Bilta (UK) Ltd (in Liquidation) and others v RBS and another; Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd

Cameron v (1) Hussain (2) Liverpool Victoria Insurance Co Ltd; Farah v Abdullahi and others

Dreamvar (UK) Ltd v (1) Mishcon de Reya (2) Mary Monson Solicitors Ltd; P&P Property Ltd v (1) Owen White & Catlin LLP (2) Crownvent Ltd

Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd

Gee and others v Depuy International Ltd

Haberdashers’ Aske’s Federation Trust Ltd and another v (1) Lakehouse Contracts Ltd (2) Cambridge Polymer Roofing Ltd and others

MT Højgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Ltd and another

Navigators Insurance Co Ltd and others v Atlasnavios-Navegacao LDA

R&S Pilling (t/a Phoenix Engineering) v UK Insurance Ltd

Razumas v Ministry of Justice

Roadpeace v Secretary of State for Transport and the Motor Insurers’ Bureau

Robinson v Chief Constable of West Yorkshire

Sea Tank Shipping AS v (1) Vinnlustodin HF (2) Vatryggingafelag Islands FH

Secretary of State for the Home Department and another v (1) TLU (2) TLV

Ted Baker Plc and another v AXA Insurance UK Plc and others

Thefaut v Johnston

Tiuta International Limited (in liquidation) v De Villiers Surveyors Limited

Various Claimants v Wm Morrisons Supermarkets Plc

Armes v Nottinghamshire County Council 

Supreme Court – vicarious liability for the actions of foster carers

The Claimant, who had been placed in foster care by the Defendant authority, pursued a claim alleging that she was abused physically, sexually and emotionally by her foster carers. The Supreme Court was required to consider whether the authority owed a non-delegable duty of care to children it placed in foster care and whether it was vicariously liable for the actions of foster carers.

The Supreme Court found that it was not fair, just and reasonable for the local authority to owe a non-delegable duty of care. However, given the significant degree of control the local authority had over foster placements, the fact that placing children with foster carers furthers the local authority’s activities and the local authority’s greater ability to compensate than the foster carers, the Court found that local authorities are vicariously liable for the actions of foster carers.

The judgment places children in foster care on a similar footing to children placed in care homes (where authorities are vicariously liable for the actions of their employees) and, while further claims may follow in relation to historic abuse, it is not expected to discourage local authorities from placing children in foster care in the future, although local authorities should scrutinise the contracts they have with independent fostering agencies.


AXA Insurance UK Plc v Financial Claims Solutions Ltd and others 

Court of Appeal – clarification of exemplary damages as a weapon in the fight against fraud

The Defendant presented four sets of proceedings in personal injury claims arising from two fake accidents, supporting the claims with fake hire invoices and medical reports. After the Claimant insurer secured Orders striking out the claims, it pursued the Defendant company (which had held itself out as a firm of solicitors, which it was not) for damages in a claim for the tort of deceit.

Following Rookes v Barnard (1964), in which it was stated that “exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay”, the Court of Appeal decided in this case that it was appropriate for exemplary damages to be awarded against both the company and individuals involved in it, in addition to damages reflecting the cost of investigating and defending the claims (which in themselves were inadequate to remove the wrongful gain achieved by the tort). This would ensure that the Defendants were punished and others deterred from similar behaviour and bringing fraudulent crash for cash claims. The fact that criminal proceedings or confiscation proceedings were ongoing against the individuals did not affect this civil remedy.

While it will be important for insurers to ensure that they choose cases in which they explore this remedy with care, the judgment provides a powerful weapon for them to use in their fight against fraudulent personal injury claims.

DAC Beachcroft acted successfully for the insurer.


Bilta (UK) Ltd (in Liquidation) and others v RBS and another; Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd 

Privilege status of documents created in the course of an internal investigation

In Bilta, the Claimants sought disclosure of employee interview notes and a report prepared by RBS’s external lawyers relating to an investigation by HMRC RBS’s alleged participation in carbon credit trading and connected VAT fraud. They argued the documents were not privileged because they were not created for the dominant purpose of conducting litigation, but were rather:
(1) to inform RBS of its position regarding HMRC’s claim;
(2) to supply a full and detailed account of relevant facts concerning VAT deductions to HMRC pursuant to its duties and obligations as a taxpayer; and (3) to persuade HMRC not to issue an assessment.

The court upheld RBS’s claim to privilege. The court was persuaded that a letter by HMRC to RBS which made allegations of tax fraud was a “watershed moment” and RBS’s appointment of external lawyers thereafter to investigate strongly suggested that RBS anticipated litigation. Even if the documents had been created for multiple purposes, the dominant purpose was to defend the expected litigation with HMRC.

Bilta calls into doubt the general application of the ENRC decision, which held that interviews with employees conducted as part of an internal investigation to deter a criminal prosecution by the SFO were not privileged and should be disclosed. At the time of writing, the Court of Appeal has heard the ENRC appeal, judgment is awaited and we hope the approach in Bilta is preferred.


Cameron v (1) Hussain (2) Liverpool Victoria Insurance Co Ltd; Farah v Abdullahi and others 

Court of Appeal – unidentified driver

In 2017, the Court of Appeal held that where a defendant driver cannot be identified but the vehicle is identified and insured, a judgment can be obtained against the unidentified defendant, to be satisfied by insurers pursuant to s152 of the Road Traffic Act 1988. Previously, the Motor Insurers’ Bureau would deal with these claims under the Untraced Drivers’ Agreements.

Aside from the central point that a claim could be made against an unidentified person, Cameron also left various issues outstanding, including the practicalities of issuing and serving proceedings against an unknown person and the applicability of the decision to an Article 75 insurer. The case is being appealed and is due to be heard by the Supreme Court on 28 November 2018.

In the meantime, Farah has now clarified some of the issues. It held that permission of the court is not required to issue a claim against an unidentified defendant, although permission for alternative service is still required. Further, the principles in Cameron do apply to an Article 75 insurer. The decision, therefore, broadens the scope of Cameron. It is an unhelpful decision for insurers, assisting in crystallising the decision in Cameron ahead of the forthcoming appeal.


Dreamvar (UK) Ltd v (1) Mishcon de Reya (2) Mary Monson Solicitors Ltd; P&P Property Ltd v (1) Owen White & Catlin LLP (2) Crownvent Ltd 

Court of Appeal – liability of solicitors and estate agents in property transactions involving identity fraud

Both cases concerned fraudsters, posing as owners of London property, purporting to sell to two property development companies. The frauds were discovered before registration but by then the proceeds of ‘sale’ and the fraudsters had disappeared. In each case, the purchasers sought to recover their losses from the professionals involved.

The Court of Appeal held that both the vendors’ and the purchasers’ solicitors were in breach of trust in releasing the purchase monies in the absence of a genuine completion of the sale. The Court refused to grant relief from such liability under s61 of the Trustee Act 1925. Acting honestly and reasonably were highly material factors but was not conclusive. A court was entitled to consider the effect of the breach on the beneficiaries and the existence of professional indemnity insurance could suffice to deny s61 relief to the solicitors. Where both sets of solicitors are liable, apportionment should be resolved by contribution proceedings.

In P&P, the Court of Appeal further held that, by signing the contract, the vendor’s solicitor had warranted that she had authority from the actual owner of the property and would be liable for breach of warranty if that warranty was relied upon; the vendor’s solicitor was also liable for breach of an undertaking. The position of the estate agents was different and, on the facts, no warranty of authority from the actual owner had been given there. Finally, the Court of Appeal confirmed that the vendor’s solicitors and estate agents did not owe a separate duty of care to the purchaser when carrying out identity checks.


Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd 

Supreme Court – fixed costs in RTA Portal claims for personal injury

The Supreme Court considered the question of whether fixed costs are payable in Portal claims where a defendant’s insurer negotiates a settlement directly with a claimant after receiving a claim notification form (that is, where a pre-medical report offer is made directly to a claimant).

After considering the contractual arrangements between the Claimants and their solicitors and also the extent of the latter’s lien for costs, the judgment confirmed that, where a claim is presented through the Portal by a solicitor, the defendant’s insurer may not avoid a liability for costs by negotiating directly with the claimant.

The settlements reached, in this case, were all the result of an acceptance of pre-medical report offers. Clause 6 of the Civil Liability Bill would prohibit pre-medical report offers in whiplash claims, requiring insurers and all other regulated parties to obtain ‘appropriate evidence’ (an accredited medical report) before making offers.


Gee and others v Depuy International Ltd 

Metal on metal hip litigation finds for manufacturer

The court decided that the ‘inherent propensity’ of a metal on metal (MoM) hip to shed metal debris in the course of normal use was not a defect pursuant to the Consumer Protection Act 1987. Over 300 Claimants alleged they had suffered an adverse reaction to metal wear debris generated by their MoM hip prostheses, requiring revision surgery.

The litigation provided the court with a chance to review when a product will be deemed defective and how to arrive at that decision. Earlier cases had taken very different approaches to this question. As occurred in these previous decisions, the judge reviewed the purposes behind the EU legislation and noted that a fair balance had to be struck between the competing interests of producers and
injured consumers.

In deciding whether a product was defective, the court had to “maintain a flexible approach to the assessment of the appropriate level of safety, including which circumstances are relevant and the weight to be given to each.”

This flexible, common sense approach to assessing product safety is likely to be viewed as the leading judgment on the Act. It will be welcomed by manufacturers and insurers alike in an increasingly technical age for product development.


Haberdashers’ Aske’s Federation Trust Ltd and another v (1) Lakehouse Contracts Ltd (2) Cambridge Polymer Roofing Ltd and others

Construction of project-wide insurance cover

The question of whether project insurers could pursue a subrogated recovery against a sub-contractor, Cambridge Polymer Roofing (CPR), and thereby claim on the insurance fund of CPR’s liability insurers was considered as a preliminary issue.

CPR argued that it was entitled to the cover provided by the project insurance as it fell into the class of ‘sub-contractor
of any tier’, even though CPR was not named as a subcontractor at the time the project policy incepted and was required to carry its own insurance as a pre-requisite to
its engagement.

In order to decide the extent of the project insurance, the court considered the way in which a sub-contractor may become a party to the project insurance, a legal analysis not previously judicially decided. It was accepted that, without the express requirement in the sub-contract for it to take out separate insurance, CPR could have been entitled to the benefit of the project insurance. This was subject to satisfying the requirements of a ‘standing offer’ made by project insurers that would imply a term of cover into the sub-contract.

The court also considered the recent decision of the Supreme Court in Gard Marine & Energy Ltd v China National Chartering Co Ltd (2017) which we reported on last year. Applying the rationale in Gard to the facts of this case, the court held that as CPR and Lakehouse had expressly agreed in the sub-contract terms and conditions that CPR was required to have its own insurance cover, CPR was not entitled to the protection of the project insurance fund. The principles of agency and ‘standing offer’ was considered in detail, but in the end, the express term in the roofing sub-contract proved insurmountable.

DAC Beachcroft acted successfully for the First Defendant and all the Third Parties.


MT Højgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Ltd and another 

Supreme Court – literal interpretation of 20-year design life requirement

The contractor agreed to design and install the foundations for the Robin Rigg wind farm. The employer’s technical requirements expressed to be the minimum requirements, provided that the works should be designed with a minimum site-specific ‘design life’ of 20 years. The General Design Conditions required the contractor to prepare the detailed design in accordance with J101, an international design standard. The foundations failed shortly after completion.

At first instance, the contractor was held liable for remedial works costing €26.25 million as it had given a lifetime warranty of 20 years. The Court of Appeal allowed the contractor’s appeal, stating that such a warranty would be inconsistent with the other contractual terms. The Supreme Court restored the first instance decision holding that the contract words should be given full effect and meaning.

Although complying with the design requirement, the contractor was liable for the failure, whether or not there was an alleged error in the required J101 design standard. The contractor had accepted the risk and had the duty to identify the need to improve on the design and was liable for the failure to comply with the required criteria.

In reaching this decision, the Supreme Court seems to have given priority to a strict and literal interpretation of the relevant provision.


Navigators Insurance Co Ltd and others v Atlasnavios-Navegacao LDA 

Supreme Court – loss not caused by ‘any person acting maliciously’

A vessel was detained in a Venezuelan port when 132kg of cocaine was found strapped to its hull. There was no suggestion that either the owners or their crew were in any way implicated. In accordance with the policy detainment provisions, after six months the owner served a notice of abandonment, declaring that the vessel was a constructive total loss. The vessel was insured under the Institute War and Strike Clauses 1/10/83.

These clauses provide that loss caused by “any person acting maliciously” is an insured peril (under 1.5). The clauses also exclude cover for “arrest restraint detainment confiscation or expropriation under quarantine regulations or by reason of infringement of any customs or trading regulations” (under 4.1.5). It was common ground between the parties that drug smuggling constituted “any person acting maliciously”.

The judge at first instance held that the concealment of cocaine had been a malicious act for the purposes of 1.5 and implied a limitation on the scope of exclusion 4.1.5 where the customs infringement only came about due to the malicious act. The Court of Appeal deemed that the clauses had to be considered together to determine the ambit of the policy; neither had primacy over the other. It held that if the malicious act was concealing drugs on the vessel, and concealing drugs was an infringement of customs regulations, then the detention was for a breach of customs regulations. There was no justification to exclude an infringement of customs regulations consisting of a malicious act from 4.1.5; this was not supported by the case law.

The Supreme Court has taken an entirely different approach. Despite the common ground between the parties, they held that the necessary starting point was to examine the scope of the concept of “any person acting maliciously”. On their analysis, the smugglers were not acting maliciously, relevant authorities indicating that an element of spite or ill-will is required.

Having found that cover under clause 1.5 did not apply, Lord Mance concluded this was sufficient in itself to dismiss the appeal. However, he went on to consider the position if clause 1.5 was applicable and agreed with the Court of Appeal that if there are two concurrent causes, one insured and the other excluded, the exclusion will prevail. There was nothing to suggest that insurers were willing to accept the risk of smuggling by third parties.


R&S Pilling (t/a Phoenix Engineering) v UK Insurance Ltd 

Supreme Court hearing awaited on use of a vehicle

Thomas Holden was a mechanical fitter employed by R&S Pilling t/a Phoenix Engineering. Mr Holden undertook some repairs to his own vehicle in Phoenix’s workshop. During this work, sparks from welding equipment ignited flammable material inside the car. The fire took hold very quickly and soon spread to adjoining premises causing substantial damage. As a result of the fire, Phoenix’s property and public liability insurers paid out sums in excess of £2 million.

Phoenix sought a full recovery from Mr Holden’s motor insurers, UK Insurance Limited (UKI), on the basis that the motor policy covered the losses suffered by Phoenix. UKI disagreed and commenced proceedings against Mr Holden, seeking a declaration that its policy did not cover such losses.

Phoenix was joined as a second Defendant and, in turn, they brought a claim against Mr Holden for an indemnity in respect of the sums paid out by their insurers.

At first instance, the court found that the repairs being undertaken did not constitute “use” of a vehicle on the basis that the car was not being operated in any way.

Phoenix appealed. Delivering the leading judgment in Phoenix’s favour, the Master of the Rolls found that the express wording of the UKI policy and the cover provided by it should not be restricted by reference to the provisions of the Road Traffic Act 1988. Therefore, Mr Holden’s liability to Phoenix in respect of damage caused by the fire was covered by his policy of motor insurance. Applying the reasoning in Vnuk v Triglav (2014) that “use of the vehicle” in section 145(3) of the Road Traffic Act 1988 must include any use of the vehicle consistent with its normal function, the repair of the vehicle by Mr Holden in these circumstances was “use” of a vehicle and so the policy should respond.

Since last year’s report, UKI has successfully applied to have the matter considered by the Supreme Court. The hearing is due to take place in December 2018.

DAC Beachcroft acts for the insurers of Phoenix (the respondents in the appeal).


Razumas v Ministry of Justice 

No non-delegable duty of care for prison healthcare

The High Court considered the potential liability of the Ministry of Justice (MoJ) for health care provided to prisoners. Mr Razumas alleged that, through various healthcare failings, his treatment for a soft tissue sarcoma to his left calf was delayed, resulting in an above-knee amputation. He argued that the MoJ owed him a non- delegable duty of care and/or was vicariously liable for the negligent medical treatment, based upon the five criteria set out in the landmark decision in Woodland v Swimming Teachers Association (2013).

The Claimant’s arguments failed. The court held that the MoJ had not breached its duty of care which was linked to matters of custody and did not extend to the medical treatment itself. Further, the MoJ did not owe a non-delegable duty of care – the Claimant was not in prison for the purpose of receiving health care and the MoJ owed no statutory or common law duty to provide healthcare. Finally, the MoJ was not vicariously liable as the tort complained of was committed by the sub-contracted health provider, and the MoJ was not their employer and had no control over how medical treatment was delivered by them.

This decision offers helpful guidance on the court’s approach to applying the Woodland criteria and determining issues of alleged non-delegable duties, at a time when claimant groups are trying to expand its remit and bring claims against corporate healthcare providers across the spectrum of healthcare provision.


Roadpeace v Secretary of State for Transport and the Motor Insurers’ Bureau 

Compatibility of domestic compulsory motor insurance legislation with EU law

There were three groups of issues to be determined. The first concerned the compatibility of UK statutes and delegated legislation with the Sixth Motor Directive (the Directive), including various provisions concerning an insurer’s right to limit or exclude their liability to a policyholder contained within the Road Traffic Act 1988, the European Communities (Rights Against Insurers) Regulations 2002 and the Third Parties (Rights Against Insurers) Act 2010.

The second group of issues related to the findings in the European case of Vnuk v Triglav in 2014. The Defendant did not dispute that Vnuk widened the scope of the compulsory insurance obligation to include vehicles used off-road so that the Road Traffic Act 1988 is incompatible with the Directive, but the European Commission is currently deciding whether to amend the Directive. Meanwhile, the issue concerned what remedy should be available here and now.

The third group of issues related to the compatibility of various specific provisions of the Uninsured Drivers’ Agreement and Untraced Drivers’ Agreement with the Directive.

In relation to the first group, the court found no incompatibility between the domestic legislation and the Directive. In relation to the second group, there is already a recognised remedy in the form of Francovich damages for claims which would have been met had there been proper implementation of the Directive. The judge held that a declaration should be made to this effect. The Defendant accepted that the limitation of the definition of “accident” breached the Directive and that a declaration should also be made on that issue. In relation to the third group of issues, all of the Claimant’s arguments in relation to the compatibility of the MIB Agreements with the Directive were dismissed.

This decision confirms that it is permissible for insurance policies to exclude cover, such as deliberate damage or road rage. Following the decision in Vnuk, however, compulsory insurance should be extended beyond vehicles used on roads and it appears likely that domestic road traffic legislation will require some amendment.

The recent review of the scope of the Motor Insurance Directive by the European Commission (EC) as part of its REFIT programme affirms this. Whereas it was widely anticipated that the EC would look to amend the Directive to limit its scope to use in “traffic situations”, in May it reported that the Directive would apply to “any use of such vehicle, intended normally to serve as a means of transport, that is consistent with the normal function of the vehicle, irrespective of the vehicle’s characteristics and irrespective of the terrain on which the motor vehicle is used and of whether it is stationary or in motion”. The reference to “means of transport” widens the requirement for compulsory motor insurance beyond that of vehicles used “in traffic situations”, bringing the likes of mobility scooters in scope and with it a number of potential challenges for insurers around uninsured driving and fraud. It remains unclear what action the UK Government will take as a result of the EC’s decision. Much may depend on its appetite for equivalency of EU laws in this area post Brexit.


Robinson v Chief Constable of West Yorkshire 

Supreme Court – confirms standards of care expected by the police

The Claimant, aged 76, suffered injuries when police officers and the suspect they were attempting to arrest collided with her as she walked along a footpath.

The Supreme Court noted that the police generally owe a duty of care when such a duty arises under ordinary principles of the law of negligence unless statute or the common law provides otherwise; the police are usually under a duty of care to protect an individual from a danger which the police themselves have created.

The police generally do not owe a duty of care to individual members of the public, in the performance of their investigative function, to protect them from harm caused by criminals; there is no duty to protect members of the public.

Here, the police officers had themselves created the risk of harm by deciding to arrest the alleged drug dealer in the street and a duty therefore arose. The officers’ assessment of the risk was negligent and that negligence had caused the Claimant’s injuries.

The confirmation by the Supreme Court that there is no general duty on police officers, except in special circumstances, to protect third parties should be welcomed by the police service.


Sea Tank Shipping AS v (1) Vinnlustodin HF (2) Vatryggingafelag Islands FH 

Court of Appeal – package limitation does not apply to bulk cargoes

Under the Hague Rules 1924 article IV rule 5, which is incorporated into the Carriage of Goods by Sea Act 1924, a carrier’s liability for loss or damage is capped at £100 per unit. A dispute arose out of damage to a cargo of fish oil carried in bulk on board the tanker ‘Aqasia’.

The carrier’s position was that package limitation could be applied to bulk or liquid cargo by reading the word ‘unit’ as a reference to the unit used by the parties to denominate or quantify the cargo in the contract of carriage. This would have the effect of reducing liability to under £55,000 (£100 per metric tonne of cargo damaged). However, the cargo interests’ position was that the word ‘unit’ could only refer to a physical item of cargo, or to a combination of physical items bundled together for shipment, meaning that the package limitation did not apply to a liquid or other bulk cargo.

The judge at first instance ruled that the package limitation did not apply to bulk cargoes. The Court of Appeal dismissed the carrier’s appeal and confirmed that ‘unit’ refers to a physical item of cargo or shipping unit, and not a unit of measurement or a freight unit. Therefore, article IV rule 5 under the Hague Rules did not apply to bulk cargoes.


Secretary of State for the Home Department and another v (1) TLU (2) TLV 

Court of Appeal – accidental online disclosure of private information relating to asylum seekers

A spreadsheet containing the personal data of 1,598 lead applicants seeking asylum in the UK was accidentally published on the internet. Six lead applicants brought successful claims against the Home Office for distress arising from the misuse of private information and breach of the Data Protection Act 1998.

TLT was a lead applicant. The disclosed spreadsheet included his forename, surname, date of birth, age, recorded his nationality as Iranian, and stated ‘Family with Children’. TLT’s wife, TLU, who had a different surname, and his daughter, TLV, who used his surname, were not named in the spreadsheet but they sought compensation for distress on grounds that their identity could be inferred from the data disclosed and there was a genuine (not irrational) fear that the Iranian authorities could identify them. The judge found that the Claimants had proved a de minimis level of distress and awarded compensation of £12,500 to TLT and TLU, £2,500 to TLV, plus costs and interest.

The Court of Appeal rejected the Home Office’s appeal that liability should be limited to lead applicants and not extend to unnamed family members. There was no basis for interfering with the trial judge’s findings of fact that TLU and TLV could be identified as asylum seekers by third parties findings that the judge had reached after conducting a trial and hearing evidence over a number of days. It affirmed that the publication of the spreadsheet misused TLU and TLV’s private and confidential information and, in addition, there was a breach of 'personal data' relating to 'identifiable persons' under the Data Protection Act. Accordingly, they were entitled to compensation.


Ted Baker Plc and another v AXA Insurance UK Plc and others 

Court of Appeal – insurer had ‘duty to speak’

In the latest instalment of this litigation arising out of the theft of stock from Ted Baker by an employee over a number of years, one of the issues the Court of Appeal reconsidered was the first instance decision that there had been a breach of the claims co-operation condition precedent by failing to provide management accounts requested by loss adjusters.

The policyholder had refused to provide a shopping list of documents until either liability was admitted or insurers confirmed that the cost of retaining accountants to produce the information would be covered by the ‘professional accountants clause’ in the policy. In response, the loss adjuster had advised that he would take instructions from insurers and revert but there was no further mention that any information was outstanding. In these specific circumstances, the Court of Appeal held that there was a duty on insurers to speak. (Ultimately, the claim was dismissed on other grounds relating to the quantification of the loss.)

This is a decision very much on its own facts. It remains the case that there is no general duty on insurers to warn an insured of the need to comply with policy conditions, especially where the policyholder is advised by an experienced broker. An argument of estoppel may, however, arise again if, in the light of the circumstances known to the parties, a reasonable person in the position of the person seeking to set up the estoppel would expect the other party acting honestly and responsibly to take steps to make his position plain. There is no need for any kind of dishonesty or the intention to mislead. Suitable care must, therefore, be taken when communicating with insureds.


Thefaut v Johnston 

Informed patient consent requires comprehensible dialogue between patient and professional

This decision highlights the high threshold for obtaining patient consent, following Montgomery v Lanarkshire Health Board (2015). The Claimant was warned of the risks of a non- negligent complication (which occurred) and yet she still succeeded based on consent.

The Claimant had elective surgery to treat back and leg pain. Pre-surgery, she had a five-minute telephone conversation with the Defendant, in which she was advised that the surgery carried a 90% chance of resolving her leg pain and that there was every chance that her back pain would settle too. She was told that there was a 0.1% risk of nerve damage and a 2% chance of spinal fluid leakage. This advice was followed by a letter confirming the substance of the call.

Mr Justice Green held the Claimant would not have consented to the surgery had she been given proper advice, and although the surgery was not performed negligently, the Defendant was liable. The advice materially overstated the chance of resolving her pain, understated the risks and failed to mention the option of having no surgery. There was also insufficient time and space given to the doctor-patient dialogue.

This case again makes clear that dialogue is central to the process of obtaining informed consent. The patient must be given adequate time and space, and dialogue should be de-jargonised to ensure the message is conveyed in a comprehensible manner. A signed consent form was not to be taken as an acceptance of risk.


Tiuta International Limited (in liquidation) v De Villiers Surveyors Limited 

Supreme Court – restructuring of finance cannot be ignored in lender claim

The Claimant provided a facility to a borrower relying on a valuation by the Defendant valuer. A second facility was subsequently agreed, on the basis that the sums due under the first facility were repaid from it. Approximately £289,000 of new money was advanced with the Claimant relying on a further valuation by the Defendant.

The second facility was not repaid and the Claimant sought to recover its losses from the Defendant alleging negligence in respect of the second valuation alone.

The Defendant successfully argued in a summary judgment application that loss should be restricted to the new money as, had the second facility not been granted, indebtedness of over £2 million would have remained unpaid. Loss on that amount would have been sustained in any event. The Court of Appeal disagreed and said the Claimant could recover its entire loss on the second facility.

The Supreme Court allowed the Defendant’s appeal, restating the principle that damages should reflect the difference between the position the Claimant would have been in had the Defendant not been negligent (the second facility would not have been made) and the Claimant’s actual position. The fact that the second facility was used to discharge the first did not mean that the Court should ignore the fact that the monies under the first facility would have been lost in any event. The Defendant could only be liable for the loss of the new money. How a lender structures any further lending will, therefore, be crucial to the amount of recovery.


Various Claimants v Wm Morrisons Supermarkets Plc 

Vicarious liability for the deliberate criminal actions of an employee extended

The Claimants sought damages following the disclosure of their personal information by an employee of the Defendant in breach of the Data Protection Act 1998.

The Defendant was held vicariously liable for the actions of the employee, the disclosure of the data not being disconnected from the employee’s employment by time, place or nature and the employee being entrusted with the data for a specific action. The chain of events from legitimate receipt of the data to its disclosure was unbroken and the fact that the disclosure was made from his home and outside working hours did not break that chain. There was also a sufficient connection between the position of employment and the actions of the employee, who was put in the position to handle the data through his employment, and it was appropriate for the Defendant to be vicariously liable for his actions.

The imposition of vicarious liability for the deliberate criminal actions of an employee away from the workplace and outside working hours stretches the boundary of vicarious liability. Businesses and their insurers should take care to ensure that employees and contractors are properly supervised in order to minimise the risk of harm to others.