Occupational Disease Brief: latest decisions September 2019
A roundup of recent court decisions raising issues relating to a claim for ‘lost years’, allegations of unlawful air pollution levels, an acoustic shock appeal case, preferred funding methods for shortened life expectancy and a failed claim for occupational stress.
A mesothelioma ‘lost years’ claim fails as the dividend income exceeds the surplus earnings
Michael Head v Culver Heating Co Ltd [14.05.19]
The court awarded general damages to a claimant who had contracted mesothelioma but refused a claim for ‘lost years’ based on his reduced life expectancy. The net dividends, which his shareholding would continue to earn after his death, would exceed the surplus earnings he currently enjoyed. Accordingly, there was no loss of income.
The claimant, aged 60, had contracted mesothelioma due to asbestos exposure while working for the defendant in the 1970s. He was the managing director of a successful business. The claimant and his wife each held 45% of the businesses shares and the sons each held 5%. The claimant claimed general damages in the sum of £95,000 and damages under the ‘lost years’ head came to just under £4.5million.
Contact: David Bywater
Fresh evidence suggests unlawful levels of air pollution caused fatal asthma attack
R (on the application of AB) v HM Assistant Coroner for Inner South London [02.05.19]
The High Court granted a new inquest into the death of a nine-year-old girl after fresh expert evidence suggested that her fatal asthma attack was caused by unlawful levels of air pollution.
The deceased died on 15 February 2013. Her death was reported to the coroner and an inquest was conducted in 2014, which concluded that the deceased suffered an asthma attack followed by a seizure.
The applicant, who was the deceased's sibling, claimed that new evidence had come to light since the inquest that related to the extreme air pollution in the area where the deceased lived and that this contributed to her severe asthma and ultimately her death.
The discovery of new evidence made it necessary that a fresh inquest be held, for the 2014 inquest be quashed and for a fresh investigation.
Contact: Philippa Craven
Court of Appeal uphold decision that Royal Opera House failed to adequately protect musician
Goldscheider v Royal Opera House Covent Garden Foundation [17.04.19]
The Court of Appeal rejected the defendant’s attempt to overturn an award of damages to a musician who suffered acoustic shock whilst rehearsing with an orchestra.
The claimant had been sat in the orchestra pit, with the brass instrument section behind him, with loud parts of the performance repeatedly rehearsed. Due to his injuries, the claimant was unable to continue to work as a musician.
The Court of Appeal agreed with the decision at first instance that the defendant fell ‘well short’ of establishing it had taken steps to reduced the risk of injury to the lowest level reasonably practicable.
Contact: Cameron Clark
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Preferred mechanism for awarding future care – PPOs vs Interim payment
Geoffrey Howard V Imperial London Hotels Ltd [06.02.19]
Payment of future funding for immunotherapy and chemotherapy for a terminal mesothelioma sufferer should be by way of interim payments rather than by way of a periodical payment order (PPO) as drawing on interim payments was a more flexible and appropriate tool.
The claimant, a mesothelioma sufferer, had sought a PPO in relation to ongoing payments towards future immunotherapy costs, to which the defendant had objected.
The claimant had been diagnosed as having terminal malignant mesothelioma with a life expectancy of between three to six months. Judgment on liability had been entered and the claim proceeded to an assessment of damages hearing.
Contact: Lorna Henderson
Occupational stress – vicarious liability claim for harassment fails
Theodore Piepenbrock v London School of Economics & Political Science [05.10.18]
The claimant brought an action for damages for psychiatric injury arising from his employment with the university.
In 2012, the claimant ran a postgraduate programme assisted by a graduate teaching assistant (D), who alleged sexual harassment on the part of the claimant following a trip to Boston and Seattle and made a formal complaint.
The claimant alleged the university was vicariously liable for the actions of D and for her alleged harassment of him.
The claim was dismissed – D had legitimate grounds for her complaint and whilst stress was reasonably foreseeable, the development of the claimant’s acute depressive illness was not, and the university was not on notice of any particular psychological vulnerability on the part of the claimant.
Contact: Amanda Hill