Update: personal injury

Proving causation when there is no empirical proof

In Ministry of Defence v Shaun Wood [2011] EWCA CIV 792, which many consider a ground-breaking decision, Dame Justice Smith confirmed that it is not necessary to have supporting epidemiological evidence to prove causation. This case, which held there was a causal link between high levels of organic solvent exposure and serious neural diseases such as Parkinson's, could open the door to other similar claims.

The respondent, W, was a painter who was exposed to organic solvents (trichlorethylene and dichloromethane) when working on aircraft while serving with the RAF. He served from 1975 until 1995 with the majority of his exposure occurring after 1987 (i.e. after the period when the appellant, M, could rely on Crown immunity). As a result of this exposure, W alleged he developed a neurological condition causing symptoms similar to Parkinson's disease.

M admitted liability (restricted to any exposure after 1987 naturally), but disputed causation on grounds there was no scientific proof to show such exposure could cause permanent neurological damage.

W relied on medical evidence prepared by S (a professor of environment and occupational medicine) who was primarily instructed on causation and a neurology expert who commented on diagnosis. He also relied on an engineering expert's report that indicated the levels of solvent exposure were much higher than permitted.

M solely relied on the reports of two neurology specialists in relation to diagnosis, but neither was instructed on causation. They provided their views on causation in any case, but these were limited.

At first instance, it was considered that only S provided causation evidence of any substance. M argued, among others, that there was no empirical proof to support S's views regarding a possible link. This was accepted by S, but he maintained this did not prevent him from reaching a view on a balance of probabilities. This is because epidemiological studies require a high degree of certainty (which can be over 90 per cent) which is not necessary in civil claims. S was therefore entitled to consider other literature to determine if a causal link was probable.

The judge confirmed this was the correct approach. He considered the various papers which S referred to and noted W's high level of exposure in finding there was a causal link.

On appeal, M claimed the judge had misunderstood some of the scientific material. However, Dame Justice Smith considered this would not have altered his reasoning. In her view, the evidence before him justified his conclusion on causation. In addition, there was no evidence to contradict S and so his finding was not surprising. Accordingly, the appeal was dismissed.

These statements concerning the standard of proof may not be surprising, but medical professionals and scientists are accustomed to dealing with such matters by reference to a high degree of certainty. Understandably, it can be difficult for them to revise this approach in civil claims. It is important, therefore, to analyse the basis of any expert's conclusions (including any papers or studies to which they refer) to ensure the correct standard has been adopted. Even if there is no confirmed scientific link, this will not necessarily prevent a claim.

Another observation in this case is that it appears M failed to obtain any substantial evidence to address the causation issues. Certainly, none was served in proceedings. It hard to predict, therefore, whether this claim would have had a different outcome had the relevant evidence been adduced.

Clarifying part 36

In Fox v Foundation Piling Ltd [2011] EWCA CIV 790, LJ Jackson criticised the relatively recent stream of authorities (including Carver v BAA [2008] EWCA 412) that has caused much uncertainty concerning the consequences of part 36 offers. This has resulted in increased litigation and he considered the forthcoming amendment to rule 36.14 will not come soon enough.

In this case, the claimant, F, suffered a back injury at work which he alleged seriously affected his mobility. His schedule therefore claimed significant damages of £280,000.

He issued against his employers, P, who subsequently conceded liability, so the focus turned to quantum.

F's medical expert considered the accident aggravated a pre-existing condition that would not have been symptomatic were it not for the accident. P's medical expert disagreed, considering his symptoms were inevitable '“ meaning the accident had accelerated their onset.

As such, P made a relatively low offer (relative to the sum F claimed) in the gross sum of £63,000 which equated to £23,550.79 net. P was in possession of video evidence showing F was generally well, but their offer did not reflect this. In fact, their expert had not seen this evidence. This offer was rejected by F.

P subsequently obtained further video evidence showing F's journey to a spine clinic. F exhibited virtually no disability, but, as he approached the spine clinic, he started using a walking stick and was limping.

When both parties' experts later produced a joint report, F's expert conceded the condition was accelerated, and so a revised schedule in the total sum of £59,451.56 was served.

Thereafter, P made an offer of £37,500 gross or £31,702.53 net. This was later accepted by F.

P rather erroneously claimed its costs from the date of expiry of the previous offer on grounds the gross offer was not beaten. However, part 36.10 (8) confirms that it is the net sums that should be compared. Nevertheless, the costs judge agreed and ordered costs against F from the date of expiry of the first offer. He said that, even if he was wrong, F's conduct justified such order.

Jackson LJ considered the matter on appeal and first confirmed that it is the net sums offered to the claimant which are compared (P had conceded this point just before the appeal in any case). Therefore, F was the successful party.

He then addressed the next question of whether F's conduct justified a departure from the usual order on costs. Among others, P alleged that F exaggerated his claim. However, the costs judge had not found him guilty of any misrepresentation (which is surprising given the video evidence) and it was not possible for the appeal court to substitute its own finding. This aside, P possessed video evidence early on, but failed to make an offer reflecting the appropriate level of disability until it made its second offer. P could therefore have protected its position at a much earlier stage (Morgan v UPS [2008] EWCA Civ 1476 followed). Therefore, F's appeal was allowed.

The uncertainty created by recent authorities is not just undesirable for the reasons given by Jackson LJ. It makes advising your client (claimant or defendant) incredibly difficult as it is not possible to predict with any degree of certainty what will be considered more 'advantageous' at trial. Many would therefore welcome this decision and the forthcoming changes to the CPR which will bring back some of the certainty part 36 previously afforded.

Splitting the assessment of damages

Cook v Cook & Walker [2011] EWHC 1638 (QB) is particularly significant to child injury claimants. Here, the claimant, C, sought an order for the assessment of her damages to be split. It is common to split liability and quantum, but an order splitting quantum is unusual.

In this tragic case, C's mother, who was 28 weeks pregnant with C, was injured when she was a passenger in a car driven by C's father (the first defendant). As a result, C was born prematurely with complications that necessitated a shunt to be inserted in her skull to relieve pressure caused by cerebrospinal fluid.

Following discharge, the shunt became blocked and C's GP (the second defendant) misdiagnosed her condition and sent her home. The pressure build up of cerebrospinal fluid continued causing severe brain injury and blindness.

There was no issue on liability and so quantum fell to be determined.

C's expert reported there would be no future change in her physical injury. Her mobility would be the same, there was an increased risk of epilepsy and she would remain blind. However, the expert could not predict the future psychological effects of the injuries as C became more self aware with age. This, coupled with the extent of brain damage she suffered, made it impossible to predict her long-term prognosis. It was therefore recommended she have a neurological and psychological assessment at the age of 16.

This evidence meant that her general damages, past losses and those until she was 16 were capable of assessment now, but the rest of her claim could not be properly determined until she underwent assessment at a later date as recommended.

Given this unusual situation, C sought an order enabling the assessment of her damages to be split such that the long-term losses could be assessed at a later date.

In contrast, the defendants emphasised that all claims involve some form of speculation and prediction and claimed there was sufficient evidence to enable full assessment now.

Eady J considered there were four general principles to be applied: (1) that it was desirable and the normal rule to resolve all issues at one hearing; (2) the principle of finality was crucial; (3) no judge should invent rules to compensate for deficiencies in statute; and (4) the power to postpone certain issues was a 'rare and exceptional' exercise.

He concluded this was a case where the long-term effects were uncertain. Therefore, justice could only be achieved by granting C her order.

One of the main issues in brain injury claims involving minors is that not all of the injury's possible effects are apparent at an early age. As the child's brain develops, they may exhibit symptoms which cannot be tested until they are older.

A relatively minor defect or problem could sound heavily in damages given the possible effect this may have on day-to-day living and employment prospects. As such, it may be necessary for the child to undergo all future testing to ensure they are not grossly under compensated. There is therefore potential uncertainty in many such cases and this case may not seem significantly different.

The other option for claimants is to seek an interim payment which is more likely to be successful on application than seeking an unusual order for damages to be split. The advantage of this decision, however, is that it provides claimants with another option that may better suit their immediate financial needs.