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CILA Liability SIG Legal Review Seminar 2013 

Speaker Notes – Prepared by Martyn Gabbitass, 

Chairman of the CILA Liability SIG 

Good afternoon Ladies and Gentlemen. 

I am going to take you through a review of recent cases in the liability arena which I 

believe to be of interest also relevance to situations we frequently encounter to include 

also one or two quirky cases for those scratching head moments and overall whilst not 

exhaustive keeping you abreast of the latest legal developments. 

I am going to begin with a nuisance case involving complaints by residents against a local 

commercial operation, the case of Anslow and Others v. Norton Aluminium Limited 

(EWHC 2012). The Claimants were 132 residents who lived in or around Norton Canes, 

near Birmingham. The Defendant operated an aluminium foundry which had been in 

operation since 1952 prior to which the site had operated as a coal mine. The Defendant 

had the required environmental permit and since 1998 it also operated the foundry as a 

sand casting business. The Claimants alleged that the operation of the foundry created 

excessive dust, noise and odour over an extended period of time and in particular over the 

period of their claim from 2002 to 2010. In 2002 the local parish council had written to 

the Environmental Health Department describing many complaints of odours by residents. 

In March 2004 the Environmental Agency issued a prohibition notice to shut down the 

factory amongst others due to a failure to carry out an odour survey of the foundry. This 

prohibition notice was however lifted the next day. Later in 2008 Cannock Chase District 

Council wrote to the Defendant about significant justified odour complaints. The High 

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Court held that there had been unreasonable interference with the Claimants’ enjoyment 

of property because of odour between 2003 and 2010. Judge McKenna made reference to 

the Court of Appeal decision in Barr and Others v. Biffa Waste Services Limited noting that 

this earlier decision had highlighted that for Claimants to establish a nuisance, there is no 

requirement for the Court to set a precise ‘threshold’ in terms of a number of days per 

year on which complaints of odour had been made. In short, complaints by residents are 

not a pre-requisite to nuisance; substantial interference in comfortable and convenient 

enjoyment of land is required. Before moving on, I would comment that damages for 

those in the most affected area were allowed at a figure of £2,000 annually and those in 

the least affected areas the annual figure was set at £750. I believe that these sums can 

be introduced into other areas where we are met with loss of amenity claims; the Courts 

have long refused to make substantial awards against these types of claim. 

Sticking with quantum for the moment and a claim for loss of dependency under Section 

1(3)(b) of the Fatal Accidents Act 1976 in the case of Swift –v- Secretary of State for 

Justice (CA 2013). This case was brought on a potential point of principle in that the 

couple concerned had co-habited for less than two years. The deceased’s partner, the 

deceased being killed in an accident at work, gave birth to their child after his death. 

Liability was not an issue. Whilst the infant’s claim was successful; the partner’s claim 

failed. Quite simply, the couple had not been co-habiting for two years. The matter 

reached the Court of Appeal because of that ever increasing chestnut the European 

Convention on Human Rights. The partner argued that the Fatal Accidents Act 1976 was 

incompatible with the European Convention on Human Rights and that the Act had 

discriminated against couples who had not co-habited for very long. The appeal was 

dismissed with the Court of Appeal commenting that the relevant section did not 



discriminate but limited the right to those couples whose relationship had demonstrated 

some degree of permanency. 

Moving on to another area of law, vicarious liability but within the employer’s liability 

sphere and involving a claim brought by a sole director and shareholder of the defendant 

company. This is not an infrequent matter falling for a liability adjusters’ attention. The 

case is Brumder v. Motornet Services and Repairs Limited & Anor.(CA 2013). 

The Claimant was the sole director and shareholder of the Defendant company. He 

sustained a serious injury to his finger when he climbed down from a hydraulic ramp 

following the failure of the ramp mechanism. The Claimant brought a claim for damages 

against both his company and its insurer. The Claimant was found to be 100% responsible 

for the accident and amongst others, the Court at first instance holding him responsible 

for health and safety and for maintaining equipment. On appeal, it was held that as sole 

director and shareholder the Claimant was responsible for the obligations of the company 

under the Health & Safety Regulations and therefore could not sue his company as he had 

failed to meet those obligations. 

Had another employee been responsible for the accident and/or responsible for health and 

safety issues in the company, then I suspect the decision would have been decided 

differently and then turn on the degree to which the Claimant had contributed to his 

injury. 

Staying with employer’s liability, but highlighting the continuing saga of Mesothelioma 

claims and the case of International Energy Group Limited v. Zurich Insurance plc (CA 

2013). Here the question posed concerned policy wordings and policy response to a 

Mesothelioma claim following the Claimant’s exposure to asbestos. The brief 



circumstances are that the deceased employee had made a claim against International 

Energy Group Limited in the Guernsey Court before he died. The employer had settled 

the claim and the litigation surrounded the employer’s claim for an indemnity from its 

insurer, Zurich. Zurich had insured the Claimant’s predecessor for six of the relevant 

27 years. The policy wording was identical each time the policy was renewed. Zurich 

sought to argue that it was only liable for the period during which it provided the cover. 

At Trial, it was held that Zurich had to indemnify their Insured for the cost of the 

employee’s claim, but only for the six years of cover. Both insurer and employer 

appealed. The Court of Appeal held that Zurich’s liability to its insured depended on the 

wording of the policy as identified in the ‘trigger’ litigation case. Accordingly, Zurich was 

liable to indemnify International Energy Group Limited for the whole of the claim not just 

the proportion when they were insurer. 

I understand that Zurich are known to be considering an appeal and in the absence of a 

successful appeal then insurers will have to accept that they will no longer receive 

contribution from solvent insureds for Mesothelioma claims. This is an important decision 

involving a review of the law of causation in Mesothelioma that resulted from the “special 

rule” created in the Fairchild case. The special rule established causation by a material 

contribution to the risk of disease rather than proof of actual contribution to the disease. 

Reference was made in the International Energy Group case to the Barker decision where 

the House of Lords decided that the special rule should be interpreted so that each 

wrongdoer would only be liable for their share of the risk of the disease. Insofar as UK 

cases are concerned, then the Compensation Act 2006 overturned the Barker decision. 

However, in the International Energy Group case the Compensation Act does not apply 

since it originated in Guernsey. I have no doubt that we have not heard the last of 



Mesothelioma cases and indeed the Court of Appeal in International Energy Group did 

suggest that the Barker judgement was “problematical”. 

Moving on to public liability matters. In Alexander v. Freshwater Properties Limited and 

Christopher Place t/a Place Construction (CA 2012), this was a case involving the 

landlord of a block of flats and a contractor who was carrying out refurbishment works. At 

first instance the recorder had found both parties liable when a resident was injured as 

she attempted to close the front door of the block of flats. However, the Court of Appeal 

held that the recorder had erred by holding that the builder had a 75% responsibility for 

the accident; the Court of Appeal held that the landlord was equally responsible for the 

danger that had been created in relation to the door. The landlord was responsible for 

the upkeep of the common parts including the front door and the contractors had been 

engaged by the landlord to carry out a programme of refurbishment to the building that 

included the removal, polishing and replacement of the exterior handles on the front 

door. The Claimant alleged that the self-closing mechanism was defective and that it had 

been necessary for anyone leaving the building to pull the door shut in order to ensure 

that the lock engaged properly. The contactor had removed the exterior handle and 

therefore users had to pull the door by grasping its edge taking care to remove fingers out 

of the way before it closed onto them. There was also a notice displayed advising users to 

always pull the outer door fully closed and make sure that the catch clicked shut. The 

presence of the sign was evidence that the self-closing mechanism was not effective. The 

Court of Appeal commented that this was an accident waiting to happen. 

Sticking with occupiers liability; in Drysdale v. Hedges (QBD 2012) it was held that a 

landlord owed no duty of care under Section 4 of the Defective Premises Act 1972 or 

Section 2 of the Occupiers Liability Act 1957 to her tenant who had slipped on painted 



steps on her property and sustained injury. The Court recognised that the Claimant was 

owed a common law duty of care but that duty had not been breached as although the 

presence of paint on the steps significantly increased their slipperiness, it had not been 

unreasonable for the landlord to paint them using outdoor paint. This case is a useful aide 

memoire in that the Court commented on the inter-play between the Defective Premises 

and Occupiers Liability Acts. Section 2 of the 1957 Act applies generally whereas Section 4 

of the Defective Premises Act defines a landlord’s duty. Specific comment was made that 

it cannot have been Parliament’s intention for both Section 2 and Section 4 to define a 

landlord’s duty. Section 4 of the 1957 Act was replaced by the 1972 Act and therefore 

Section 4 of the 1972 Act defined the extent of a landlord’s duty. 

The paint was additional to the stone and it did not replace it. The stone did not require 

repair neither did the paint. What was required was the removal of the paint. However, 

on the facts the presence of the paint on the steps did not cause the steps not to be in 

good repair. Therefore, there was no breach of Section 4 of the 1972 Act nor the tenancy 

agreement. One of the issues here was that there was an unguarded drop to basement 

level and because the Claimant had fallen some distance to the basement level, serious 

injury had been sustained. However, where as here the Act did not apply, a landlord’s 

duty was to take reasonable care not to create a risk of unnecessary injury. Whilst the 

Court recognised that the presence of rain increased the likelihood of slipping on the steps 

and the presence of paint on the steps significantly increased the risk of slipping that in 

itself did not establish liability. Importantly, the paint was suitable for use outside and 

contained no warning against its use on steps or of it becoming slippery when wet. There 

were references to semi-gloss and producing a sheen that may have alerted the 

‘knowledgeable’ to the fact that the paint was not suitable for use on steps, but not the 



man on the street. It was not unreasonable to have applied the paint to the steps in light 

of the expert evidence and there was no breach of duty. 

At last year’s seminars we included a subsidence presentation and there has been an 

important decision from the Court of Appeal with regard to the liability of local authorities 

to third parties for damage caused by tree roots. I refer to the case of Berent v. Family 

Mosaic Housing and Islington Borough Council (CA 2012). The Claimant sought damages 

following subsidence to her house as a result of tree roots growing under her property. 

She also pursued a claim for damages for distress, inconvenience and loss of amenity on 

the grounds that the trees should have been removed earlier than they were. Physical 

damage had occurred in 2003/2004 and the trees were finally removed in March 2011. 

Both defendants, Housing Association and Local Authority, denied liability. At Trial, 

damage at the right and rear of the house was not related to tree roots, but more to 

defective drains and vibration caused by railway tunnelling work. However, it wasn’t clear 

whether trees had made a material contribution to the damage at the front and left of the 

house. Nonetheless, it was held that in the period before the damage was caused there 

was no basis upon which either the Housing Association or the Local Authority should have 

appreciated that there was a real risk that the trees would cause damage to the 

Claimant’s property either alone or in conjunction with other factors and that as such 

there had been no breach of duty. However, the Court awarded £5,000 in respect of the 

claim for distress, inconvenience and loss of amenity on the basis that the trees ought to 

have been removed in the Autumn of 2010. You will recall that damage occurred in 

2003/2004 and over roughly a six year period the loss of amenity aspect, which I 

highlighted in the first case involving Norton Aluminium, is less than £1,000 per annum. 

Both Claimant and Defendants appealed against the initial decision. The Court of Appeal 



eiterated the accepted proposition of what it was reasonable to do in the light of the 

foreseeable risk. The Claimant’s expert did not support her pleaded case insofar as the 

alleged failure properly to manage the trees by pruning prior to 2003/2004. His written 

evidence stated that pruning promoted growth and if not severe and very frequent could 

lead to increased water extraction and lent no support to the notion that there was in the 

instant case a breach of duty in failing properly to control growth prior to 2003/2004. 

There was much debate on the damage to the property and whether the Defendants 

should have responded to the occurrence of damage by removing the trees earlier than 

they did. The Court of Appeal held that the evidence came nowhere close to establishing 

the liability of the local authority or the housing association whether on a basis that they 

should have long before removed the trees or on the basis that in the earlier years they 

should have carried out more pruning or other risk prevention measures. 

Of greater importance I believe is that the cross appeal by the Defendants on the damages 

awarded bore fruit. The Court of Appeal recognised that damages were intended to 

provide modest not generous compensation and accordingly an award of £150 was 

substituted. This is further clear evidence of the Courts being reluctant to provide 

Claimants with a financial windfall in claims for alleged distress, inconvenience and loss of 

amenity following limited property damage. 

Staying with property damage then Harrison & Ors v. Shepherd Homes Limited & Ors (CA 

2012) involved diminution in value. The Defendants had built houses on an estate. Many 

suffered significant cracking as a result of defects in their foundations. Liability was 

determined in the Defendants’ favour and the correct measure of damages was an award 

for the diminution in value of the houses. Both parties had experts and at Trial it was 

held that the capital comparison method used by the Defendant’s valuation expert was 



the more appropriate for assessing the diminution in value of those houses that were 

probably mortageable whereas the investment return method used by the Claimants’ 

valuation expert was considered more appropriate for those houses that were probably not 

mortgageable. Those that were mortageable attracted a diminution in value of 32.5% and 

the Claimants could also recover the cost of both current remedial work and carrying out 

two lots of remedial work over the next 20 years. 

The Defendants appealed. 

Notably, because before judgment was given one of the houses on the estate was sold, the 

Judge refused to allow the Defendant’s valuation expert to admit further evidence 

relating to that sale. 

The Court of Appeal held that the Judge was correct to take account of uncertainty by 

approaching the question of damages of diminution in value on a gradated basis and that 

they could not interfere with the figure of 32.5%. They also held that the approach to the 

cost of the remedial work was proper and could not be criticised and that there was not 

an element of double recovery. The Court of Appeal also dismissed out of hand the 

Defendant’s request for further evidence commenting that there had to be a limit to the 

litigation process and that the Judge had effectively taken the matter into account in any 

event. 

In summary, repairs and diminution were allowed in this particular case. I am unaware of 

any further appeal having been lodged with the Supreme Court. 

Returning to personal injury matters and a not infrequent accident circumstance in recent 

years diving into water or as in the case of Cockbill v. Riley a paddling pool. This is a sad 



case in that the teenager concerned suffered a serious hyperflexion injury resulting in a 

fracture of the spine and incomplete tetraplegia. 

He was aged 16 and a friend of the Defendant’s daughter who had invited him to a 

barbeque party in their garden. One of the guests had brought a paddling pool which had 

been filled but positioned away from danger, namely the barbeque. Apparently there was 

only a small amount of alcohol available and several of the boys present had jumped into 

the paddling pool but always singly and in turn. When the party started to get more 

boisterous the Defendant served food to calm things down. 

It was shortly after this that the Claimant dived into the pool and was catastrophically 

injured. The issues before the Court were to what extent had alcohol been available, 

what had been going on before the accident, had there been a gap between the earlier 

activity and the accident, how the Claimant entered the pool and finally whether the 

Claimant had slipped on wet grass. The Defendant admitted supplying a modest amount 

of alcohol and also conceded that he had not controlled the alcohol that guests had 

brought, typically a pack of lager. The evidence was however that none of the guests had 

drunk alcohol to the point where they were misbehaving, rude, aggressive or unsteady on 

their feet. The Claimant’s blood alcohol level was between 45 and 60mg/ml enough to 

have given a slightly disinhibiting effect but not enough to be visibly affected. 

Prior to the Claimant’s accident, six or seven boys had jumped in over the edge of the 

pool feet first, some landing on their bottoms and one boy had jumped in off a chair but 

nobody else had dived or somersaulted into the pool. When the food was served this 

caused a break in activity of probably less than 15 minutes though during which the 

Claimant had entered the pool. It would appear that the Claimant had intended to belly 



flop but had misjudged the angle so that he struck the bottom of the pool with his head. 

The Claimant was unable to prove on the balance of probabilities that he had slipped and 

even if he had that would not have been relevant to establish liability. The use of the 

paddling pool would inevitably lead to some spillage but the weather had been hot and dry 

for some weeks and the grass would have drained rapidly. 

Importantly, it was common ground that the Defendant owed a duty of care which 

extended to keep an eye on the children’s behaviour and if necessary intervening in a 

reasonable manner, though not so as to spoil the party. The Court held that it was quite 

unrealistic to contend that the use of a paddling pool at a party attended by teenage 

friends of the Defendant’s children created a foreseeable risk of significant injury or 

justified a formal risk assessment. Equally importantly, the Court held that allowing the 

guests to consume modest quantities of alcohol did not make the risk of significant injury 

foreseeable. Further, the Defendant had not been under a legal duty to tell the guests 

not to run or jump into the pool and he was therefore not in breach of his duty of care. 

Had the decision on primary liability been decided differently, then the Claimant’s 

contributory negligence would have been assessed at 2/3rds. 

And finally in deference to the impending seminal changes under the MoJ Portal, I draw 

attention to a little known case before Leicester County Court - Patel v. Fortis Insurance 

Limited (CC 2011) which involved the Defendant motor insurer failing to acknowledge a 

personal injury Claimant’s Claim Notification Form in accordance with the procedure 

under the pre-action protocol for low value personal injury claims in road traffic 

accidents. Importantly, and with the impending extension of the RTA portal into EL and 

PL arenas, the Recorder at Leicester County Court held that the Insurers’ failure did not 



however mean that the claim could not continue under the protocol and the Claimant’s 

election to withdraw from the protocol procedure meant that his costs following 

settlement of his claim would be assessed in accordance with the fixed cost regime under 

the protocol. 

Whilst not precedent setting, this will be an important case to bear in mind as I anticipate 

significant satellite litigation by the Claimant fraternity in an attempt to maximise their 

reducing costs entitlement. 

Thank you for your attention.

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