David Myall v (1) Ministry of Defence (2) Serco Ltd [2017] EWHC 1752 (QB)

The post below is by Aliyah Akram. It is about the case of David Myall v (1) Ministry of Defence (2) Serco Ltd [2017] EWHC 1752 (QB), in which the claimant’s request for a split trial to allow for the possibility of his being assessed for immunotherapy treatment was refused by Master Giddens in the absence of any medical evidence in support of such treatment. Mrs Justice May upheld the Master’s decision on appeal.

The recent case of Myall is a reminder to practitioners that although there is a sound legal basis for the recovery of the costs of immunotherapy treatment, care must be taken to ensure a sound evidential basis behind any such claim.

The claimant applied for a split trial to allow for the possibility of his being assessed for immunotherapy treatment.  The application appears to have been unsupported by any medical evidence and was made solely “on the strength of an unsupported assertion by the Claimant’s solicitor”.  It is not clear from the judgment how much time remained before the original trial, but it appears that there was insufficient time for the claimant to have undergone an assessment as to his suitability for immunotherapy treatment before trial.

The basic principle of restitutio in integrum or full compensation encompasses recovery of damages for expenses incurred, or to be incurred, by the victim as consequence of injury. In Jones v Royal Devon NHS Trust [2008] EWHC 2706 (QB) it was held that in relation to medical expenses the Court must “apply the touchstone of reasonableness and principles of remoteness and proportionality”.

Najib v John Laing [2011] EWHC 1016 (QB) shows just how far this may be stretched in practice. The court allowed a mesothelioma sufferer to recover the cost of “photodynamic therapy”.  There was no objective medical justification for this so-called treatment and counsel for the claimant, Harry Steinberg QC, had not contended otherwise. But there was some evidence from the treating clinician that it had been reasonable for the claimant (who was frightened of the side-effects of chemotherapy) to try it as a last resort. Accordingly, even though (a) the claimant did not contend that the treatment had any clinical value and (b) it had been wholly unsuccessful, it had not been unreasonable for this claimant to undertake this therapy, and so Nicola Davies J held the costs were recoverable in full.

In Myall, Mrs Justice May refused even to consider the application for a split trial because the claimant had failed to provide any medical evidence at all in support of such treatment. It remains to be seen whether the trial judge will be more sympathetic in allowing the claimant to bring his full claim.

Practitioners in mesothelioma cases need to give thought to gathering evidence in support of a potential immunotherapy claim as soon as they receive instructions. Such evidence, particularly at a case management level, need not be extensive but should highlight the potential suitability of a claimant for immunotherapy treatment and the possibility that it might prolong a claimant’s life expectancy.

The new wave of immunotherapy appears to be one of the most exciting developments in oncology in a generation. While it is easy to be swept up in this excitement surrounding immunotherapy – and to assume that the court will share this enthusiasm – the need for such treatment is not self-proving. The courts are highly likely to be sympathetic, but they need something to work with.


The Department for Communities and Local Government v Blackmore [2017] EWCA Civ 1136

On 27 July 2017, the Court of Appeal gave judgment in The Department for Communities and Local Government v Blackmore [2017] EWCA Civ 1136.

The facts of the case were that Mr Blackmore sustained heavy occupational asbestos exposure between 1966 and 1986. He had smoked cigarettes since he was 14 years old. In 2005 he cut down from smoking around 20 a day to around 12 per day, but he never gave up completely.

He died of lung cancer on 28 October 2010 at the age of 74. The post-mortem indicated a quantity of total retained asbestos fibre count above the level at which the risk of contracting lung cancer doubles.

Causation and primary liability were conceded. The case came before HHJ Cotter QC on the issue of contributory negligence, which was assessed at 30%. This apportionment was upheld by the Court of Appeal.

Michael Rawlinson QC has written a paper analysing this case in the context of asbestos lung cancer litigation generally, and giving practical advice to practitioners in this area. You can read it by clicking here.

The English Electric Company v Alstom [2017] EWHC 1748 (QB)

This post was written by Max Archer. This case is not to be confused with the earlier decision in The English Electric Company Limited v Alstom UK [2016] EWCA Civ 1314, featured on the blog earlier in the year (accessible here).

The Background

Mr Edmund Critchley was diagnosed with malignant mesothelioma in early 2013. He brought proceedings against his employer, Associated Electrical Industries Ltd (“AEI”) that had exposed him to asbestos whilst he worked in the turbine industry between 1965 and 1967.

AEI subsequently admitted that it was his employer and effectively admitted liability by failing to show cause as to why judgment in default should not be entered against it. AEI paid compensation to Mr Critchley, the total amount expended including costs was £850,672.45.

The dispute before the court arose out of the corporate histories of the English Electric Company (“EE”) and Alstom:

• EE and AEI had been members of the same corporate group.
• Pursuant to an agreement of sale of AEI’s turbine business to EE in 1970, EE agreed to indemnify AEI against any claims arising on completed and uncompleted contracts as at 1st April 1970.
• EE then sold the business on to Alstom UK Limited in 1989.
• The 1989 sale also contained an indemnity clause to the effect that Alstom were liable to indemnify EE under the agreement.

The basis of EE’s claim against Alstom was as follows:

• AEI was liable to Mr Critchley as alleged
• EE and that it was bound to indemnity AEI pursuant to the 1970 agreement.
• Pursuant to the 1989 agreement Alstom was now liable to indemnify EE.

The Parties’ Arguments

Alstom argued that in spite of AEI’s admission of liability and pay-out to Mr Critchley, AEI was not liable to Mr Critchley as it was not his employer. It was argued that Mr Critchley was instead employed by AEIM, a subsidiary.

Against this, EE argued that AEI was Mr Critchley’s employer and that even if he had been employed to some extent by AEIM, the latter had been acting at all times as an agent for AEI which was the party ultimately liable anyway.

It was agreed that if EE was liable to indemnify AEI under the 1970 agreement then it must be liable to indemnify it on the 1989 agreement.

The Decision

HHJ Waksman QC gave judgment for EE.

It was held that AEI was Mr Critchley’s employer. There was no contract of employment before the court, further, there were many documents that were inconsistent, some pointing to AEI as the employer, some pointing to AEIM. However, the fact that Mr Critchley considered himself to be employed by AEI was of considerable importance in coming to the conclusion that it was the employer. Further, AEI’s admission that it was the employer was a further matter of importance, this was a decision that would not have been made lightly. The judge considered that on the balance of probabilities EE had established that the employer was AEI. The various uncertainties in the documents were not enough to displace this finding.

He went on to find that AEIM might have held itself out (to HMRC for example) as the employer and be acting for AEI as an agent in that regard. That being the case, AEI would be the principal, there could therefore be no reason why AEI could not be liable to Mr Critchley as had been admitted in the previous proceedings. If there was any extent to which AEIM could have been his employer it could only have been as an agent for AEI.

EE was therefore successful in its claim.