West Law Report

Shit happens

Posted in cause of action, Measure of damages by mrkooenglish on May 14, 2008

Professor Slapper explains what kind of accidents can be compensated:

In 1993, the Court of Appeal ruled in a case about an assistant nurse who had been injured when she bashed into a bedside locker at Winwick hospital in Warrington. Lord Justice Hoffmann said that just because she was injured in a bad accident while on her employer’s premises didn’t mean she would automatically win. She had to show that the accident was caused by the fault of the hospital. Hoffmann said: “Not every accident is somebody’s fault”, adding, “In my judgment there was no evidence to show that the hospital’s arrangement of the furniture was negligent.”

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JOHNSTON v NEI INTERNATIONAL COMBUSTION LTD; ROTHWELL v CHEMICAL & INSULATING CO LTD & OTHERS; TOPPING v BENCHTOWN LTD; GRIEVES v FT EVERARD & OTHERS

Last Updated: 7:01pm BST 24/10/2007

House of Lords
Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Mance
October 17, 2007

Asbestos – Causes of action – Employers’ liability – Pleural membrane – Psychiatric harm – Risk – Pleural plaques – Risk of future disease and consequent anxiety – Actionable damage – Asbestos fibres – Anxiety – Risk of diseases – Fear of future injury – Person of reasonable fortitude – Psychiatric injury – s. 32a Supreme Court Act 1981

FACTS

The appellants (C) appealed against a decision ([2006] EWCA Civ 27, [2006] 4 All ER 1161) that pleural plaques caused by negligent exposure to asbestos, which were not in themselves damage that could give rise to a cause of action, did not become actionable damage when aggregated with the risk of future disease and consequent anxiety. One of the appellants (G) appealed against a decision that psychiatric injury suffered by him was not a reasonably foreseeable consequence of the negligence. C, who had been negligently exposed to asbestos dust by the respondent employers, had developed pleural plaques. The presence of such plaques did not usually occasion any symptoms. The plaques did not cause asbestos related diseases, but they signalled the presence in the lungs and pleura of asbestos fibres that might independently cause life-threatening or fatal diseases. G had developed not merely anxiety but clinical depression, a recognised psychiatric illness, in consequence of being told that his pleural plaques indicated a significant exposure to asbestos and the risk of future disease. C submitted that, although they had no free-standing claim for the risks of developing diseases in the future as it was not pleural plaques themselves that gave rise to them and they had no free-standing claim for their anxiety, taken in combination, those various elements amounted to an injury that was more than negligible.

ISSUE

Whether pleural plaques caused by negligent exposure to asbestos, which were not in themselves damage that could give rise to a cause of action, did amount to actionable damage when aggregated with the risk of future disease and consequent anxiety, neither of which in itself was actionable.

HELD (appeals dismissed)

(i) The symptomless plaques were not damage that could found a cause of action. Neither the risk of future disease nor anxiety about the possibility of that risk materialising amounted to damage for the purpose of creating a cause of action, Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176 and Hicks v Chief Constable of South Yorkshire Police [1992] 2 All ER 65 applied. Although the law allowed the risk of future disease and consequent anxiety to be taken into account in computing the loss suffered by someone who had actually suffered some compensatable physical injury, in the absence of such compensatable injury, there was no cause of action under which damages could be claimed and, therefore, there could be no computation of loss in which the risk and anxiety could be taken into account, Brunsden v Humphrey (1884-85) LR 14 QBD 141 considered. Also, the pleural plaques did not amount to damage when aggregated with the risk of future disease or anxiety. It was not possible, by adding together two or more components, none of which in itself was actionable, to arrive at something that was actionable. Further, the Supreme Court Act 1981 s. 32A, which allowed a claimant to obtain provisional damages where there was a chance that a serious disease would develop in the future, did not support the aggregation theory. The provision made it clear that it applied only where the claimant had a cause of action.

(ii) G’s psychiatric illness was not a reasonably foreseeable consequence of his employers’ breach of duty. It was not foreseeable that the creation of a risk of an asbestos-related disease would cause psychiatric illness to a person of reasonable fortitude, Page v Smith [1996] AC 155 distinguished on the facts.

David Allan QC, Ivan Bowley, Frank Burton QC and Harry Steinberg (instructed by Thompsons) for the appellants. Michael Beloff QC, Michael Kent QC, Michael

SCHWARZSCHILD v HARRODS LTD

Posted in cause of action, Conversion, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 7:12 PM BST 09/04/2008
Queen’s Bench Division
Eady J
March 19, 2008

Accrual of cause of action – Conversion – Detinue – Jewellery – Limitation periods – Summary judgments – Demand for return of goods – Unequivocal refusal to return goods – Pt 24 Civil Procedure Rules 1998

FACTS

The appellant (S) appealed against an order for summary judgment made in favour of the respondent company (H) in respect of proceedings brought by S alleging that H had committed the tort of conversion in accordance with the Torts (Interference with Goods) Act 1977 s. 2(2). S had become entitled to jewellery contained in a safe deposit box held by H. However, after five years of non-payment of the box rental, H opened the box and made a list of its contents. Six years later H opened the box and made another list before mixing the jewellery with the contents of other deposit boxes in respect of which rental payments were owed. Three years later, a private investigator (D) acting for S sent a letter to H demanding an “immediate commencement of the process to return S’s jewellery”. H did not respond. A meeting then took place between the parties, which S said was without prejudice, and at which there was an inspection of the various mixed items in H’s possession. Eight years after that, S brought proceedings but the judge granted H summary judgment on the basis that they were time-barred.

The judge concluded that D’s letter should be construed as an unequivocal demand for delivery up of S’s jewellery; that because of the meeting between the parties there was no need for it to be demonstrated that H had responded with an unequivocal refusal; and that at or after the meeting, S acquired knowledge that the jewellery had been lost and that a cause of action in conversion had come about. S submitted that in order to give rise to a cause of action in statutory conversion it was necessary to establish both that the jewellery had been demanded from H and that there had been an unequivocal refusal. S also argued that although the judge had found that D’s letter represented an unequivocal demand, at no point in his judgment was an unequivocal refusal identified, whether before the critical date for limitation purposes or otherwise. H contended that in some circumstances it would be sufficient to show that a defendant merely “neglected” to comply with a demand.

ISSUE

Whether H had committed the tort of conversion in accordance with the Torts (Interference with Goods) Act 1977 s. 2(2).

HELD (appeal allowed)

Statutory conversion, corresponding to the common law tort of detinue, required a demand for the goods to be returned and an unequivocal refusal, Clayton v Le Roy [1911] 2 KB 1031 CA applied. It was true that there were passing references in some authorities to “neglect” or “failure” as alternatives to “refusal” but those were not easy to reconcile with the much fuller reasoning in Clayton. Inaction or neglect might perhaps in some circumstances be interpreted as an unequivocal response, but that was unlikely to be at all common.

It was right that the court should be guided by the decision in Clayton. The judge at no point identified an unequivocal refusal and D’s letter was at least equivocal. There was therefore no sufficient basis for the judge to conclude that a limitation defence was bound to succeed. It could not be said to be clear that a cause of action arose at the relevant time. According to CPR Pt 24, it was right to ask whether S had a real, as opposed to fanciful, prospect of resisting the limitation defence on the evidence as it stood. In the instant court’s view, the answer was in the affirmative and the order for summary judgment was set aside.

Stuart Isaacs QC and William Willson (instructed by Watson & Brown, South Shields) for the appellant. Ian Croxford QC and Andrew Mold (instructed by Lewis Silkin) for the respondent.