Actionable damage in isolation

England and Wales

The decision in Keegan v Independent Insurance Company Ltd & Zurich Insurance PLC [2022] EWHC 1992 (QB) concerns the Third Party (Rights Against Insurers) Act 2010 and may be significant as regards the trigger for “actionable damage”. It follows on the back of Brooks v Zurich & Aviva, which we commented on here in May.

Background

From 1972 to 2016 the Claimant had been employed doing general maintenance work, much of which was carried out in retail stores. The Claimant is alleged to have worked with boarding, tiles and cladding containing asbestos. Further alleging that, until 1984, no precautions were taken to protect him from such exposure. In September 2021 the Claimant was diagnosed with mesothelioma and has been undergoing immunotherapy treatment.  The Claimant’s former employer was no longer trading and had been dissolved. The Claimant was eager to make progress in his claim and, specifically, provide funds for the costs of immunotherapy treatment.

The claim was brought against the insurers pursuant to the Third Party (Rights Against Insurers) Act 2010. In instances where that Act applies, that course of action is permitted thereby avoiding the need to restore any defunct employers to the register. The Second Defendant, Zurich Insurance PLC, agreed settlement terms prior to trial. The First Defendant, Independent Insurance Company Limited, is in liquidation. The First Defendant had not served a Defence or Counter Schedule and was not represented at the trial. Notably, a representative for the FSCS attended an earlier CMC but emphasized that they were not a party to the proceedings and was not representing the First Defendant.

At the trial, Mrs Justice Yip concluded that:

  1. Regardless of whether the Claimant sustained actionable damage in January 2021 (when the Claimant suffered chest pain) or October 2020 (when a tiny effusion was visible on a scan), she was satisfied that there was no actionable damage until long after the commencement date of the 2010 Act.

  2. The Claimant was entitled to rely upon the Act to bring proceedings against the insurer directly.

  3. The Claimant obtained the permission of the Court to proceed against the First Defendant, being a company in liquidation. And that proceedings had been validly served.

  4. The evidence presented by the Claimant substantiates his claim for damages as set out in the served Schedule of Loss. In the absence of any defence, Counter-Schedule of representations from the First Defendant, the Claimant was entitled to damages in the sum claimed.

Consequently, Mrs Justice Yip:

  1. Entered judgment for the Claimant against the First Defendant in the sum claimed.

  2. Noted that it was for the Claimant to seek to enforce the judgment and give credit for compensation received from the Second Defendant to avoid double recovery.

  3. The position of the FSCS in relation to the judgment was not a matter for consideration at this stage.

Comment

The views of both the Claimant's medical expert and that of the Second Defendant were said to support the Claimant's position that the cause of action was not complete before 1 August 2016. Given that the Second Defendant had a watching brief and the First Defendant was not represented, it is difficult to see how Mrs Justice Yip could have come to a decision that the actionable damage had occurred prior to 1 August 2016 (the date the Act commenced).

Whilst Mrs Justice Yip commented that it was:

arguable that the tiny effusion visible on the scan in October 2020 represented actionable damage

She then went on to cite Cartledge v E Jopling & Sons Ltd [1963] AC 758 commenting that:

“It seems to me that it would be very difficult to assert that the Claimant had suffered anything for which damages could properly be given.”

Had the claim turned on the point as to whether the trigger for actionable damage should be the position in October 2020, then it appears that argument would have been rejected. Which does not bode well for instances in which earlier dates, such as the date a tumour develops its own blood supply, have been proposed. As a reported claim which sees the Act in operation, it may well encourage others to proceed directly against insurers.