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Archive for May 10th, 2011

It is unlikely that our Great Leader, prime minister Camerondirect, will feel the need to park a tiger ( a euphemism/synonym for vomiting which I have used for 30 years) after reading the European Court of Human Rights decision in MOSLEY v UNITED KINGDOM. The ‘unelected’ judges did the biz today for some vested interests.

Inevitably Mosley is seeking to appeal to The Grand Chamber.  The judgment seemed, to my eye, to be fairly robust and clear.  I suspect an appeal may prove to be an uphill struggle.  Judging by his entirely private hobby – a hobby enjoyed by countless thousands throughout the land? – ‘prior restraint’ seems to one of his interests. Good luck to him.  Could be good money after bad?

Rosalind English, writing in The UK Human Rights Blog, notes: “The Strasbourg Court has ruled that the United Kingdom has not breached the right to privacy by failing to have in place a “pre-notification” requirement that would have alerted Max Mosley to the News of the World’s impending publication of covertly filmed footage…..”

Libertarians and others with little taste for censorship of any kind will be delighted with this result.  The mainstream media will also be delighted with the judgment.  It would not surprise me if some newspapers now tweak that ‘margin of appreciation’ and not bother to ‘prior notify’ shaggers and other wrongdoers whose (arguably) private hobbies provide salacious delectation to readers of tabloids (and, latterly, the broadsheets)  in the mornings before work.

We have seen that twitter and the net has effectively sunk the superinjunction as a realistic tool for suppressing information.  This has been covered by many in recent days: A super-injunction toolkit

David Allen Green has this in The New Statesman: Thinking clearly about superinjunctions

One thing, for certain, is that the cats on twitter and other social meeedja will not be herded.  I suspect that any revision of libel law and privacy – separate issues but linked – will have to consider carefully the reality of the jurisdiction of the English court and the use of injunctions.  I cannot see thousands of tweeters being carted off to jail for contempt.

The difficulty is straightforward in one respect.  Freedom of the press is crucial to any nation. The right to privacy and freedom of expression are both enshrined by law.  Injunctions are not working.  Perhaps compensatory (or even aggravated) damages  may prove to be the only effective remedy for invasions of privacy – however defined – when Parliament finally gets around to drafting laws on this…as surely, they must now?

I do not know, but I suspect that commentators are right in saying that the judges will be losing little sleep on the issue. They will have an interest in ensuring that the rule of law is upheld – but it is not for them to prosecute injunction breakers? The judges are merely applying the law as it stands at present;  using a remedy of injunction which has been around for some time and developed in recent years to provide ‘some relief’.

Dominic Lawson, writing in the i newspaper, summed it up quite well when he stated that many who read of the exploits of the shaggers…  actors, footballers etc etc – role models for the future of our Big Society – are more likely to be impressed than horrified.  Worse… Lawson wrote… readers may even start emulating this behaviour.  So, is it really in the ‘public interest’ to know about these exploits and allow the press to make a packet from this mild top shelf porn… he noted, referring to Mr Paul D’Acre’s antics some years ago on this issue?

Freedom of the press is and should be about the really serious stuff – when those who govern, those who run large corporates, those in any public office affecting our lives,  transgress. We have a right to know.  That, really, is in the public interest.  Superinjunctions should be severely restricted in such instances, perhaps even abolished?  After all, if the allegations made by a journalist are wrong – the penalties can be high and made even higher by legislation. The debate will run and run… it is not over yet.

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Carl Gardner, author the Head of Legal blog: Mosley v UK

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Mesothelioma Claims: Why the Supreme Court got it right

By John Carr, Solicitor

Carrs Solicitors pride themselves on delivering successful and fair results in all of our injury at work claims. This includes the compensation we have won for workers suffering from the effects of asbestos diseases an area that is often the subject of biased reporting in the media. 

A recent Telegraph article on Asbestos claims arising from a landmark legal decision of Sienkiewicz v Greif and Knowsley MBC v Willmore is a case in point.

The Telegraph Report: Regarding “The Asbestos Scam”
The article goes on to suggest that the decision is scientifically unsound and will cost “a lot of money” in “an asbestos bonanza.”

Christopher Booker says that a leading Histopathologist says that up to 25% of Mesothelioma cases are not attributed to asbestos exposure. Booker suggests that the brightest legal brains in the land have issued a ‘woolly judgment’ that blurs a crucial distinction between blue and brown asbestos with the significantly less harmful white asbestos.

Unfortunately the decision at no place says that most or possibly all cases are caused by white asbestos. The strap line in fact misquotes from the first two lines of the 84 page judgment which actually reads:

“Mesothelioma is a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres.”

In fact ‘ambient’ asbestos exposure where the victim is not or is no longer aware of the source of their exposure is widely believed to account for the majority of the remaining cases.
 Booker states that the significance of the judgment was that it seemed to ‘abet’ contractors who will ‘cash in’ and the lawyers will ‘exploit’ the supposed blurring of the risks associated with white asbestos and blue and brown respectively to promote an explosion of compensation claims.

In fact the real issue at stake was whether it was necessary to prove in each case that the proven wrongful exposure to asbestos was sufficient to have ‘doubled the risk’ of contracting the disease in order to prove that the wrongful exposure to asbestos had made a material contribution to the onset of the disease.

The ‘doubles the risk’ test was derived from an epidemiological convention of identifying a statistical association where the likelihood of an outcome has more than doubled. In recognising the limitations upon epidemiological evidence in establishing causation in limited exposure cases where the exposure was possibly 40 years earlier Lord Phillips held that there were ‘special features’ about Mesothelioma claims that render it inappropriate to decide causation on epidemiological data as to exposure and that the test for causation for an indivisible condition such as Mesothelioma was whether the wrongful exposure as opposed to other potential contributory factors could be proven to have materially increased the risk of developing the condition. This followed the approach of the House of Lords decision in Fairchild v Glenhaven where the same test is applied where the Mesothelioma could have been caused by wrongful exposure to asbestos where there are two or more potential defendants.

Booker rants about  ‘compensation scams’ ‘woolly headed judges’ and ‘the misery’ and ‘money’ we might be saved had the Seven Supreme Court Justices only decided against giving the asbestos scammers ‘ a great big hand.’ Even in making a tokenistic reference to the victims: ‘Mesothelioma is a very nasty way to die, and when it can be shown beyond doubt that it has been caused by asbestos, compensation may be fully justified’ Booker fails to address the real issue.

Even on Bookers argument if at least 75% of Mesothelioma cases are asbestos related, if the victim can prove that their exposure to asbestos occurred as a result of negligence or breach of statutory duty and that this exposure materially contributed to their condition why should the victims or their families be required to additionally prove ‘beyond doubt’ that it was caused by the asbestos exposure.

In the majority of Mesothelioma cases the victim has been exposed to large quantities of inhaled asbestos and in the absence of other likely causes causation can be established readily.

 Whilst the Supreme Court decision recognises the scientific consensus of opinion is that there is no safe lower limit for asbestos exposure, in many cases the Mesothelioma claims will still fail where the claimant or their family are unable to prove that the extent of the wrongful asbestos exposure is more than negligible.

The Supreme Court decision in Sienkiewicz is about setting a balance on the one hand between the Mesothelioma victims who can show that the breach of duty materially increased their chances of developing Mesothelioma despite the  evidential difficulties presented by the long latency period of the disease and the limits of science and on the other hand the those of the insurers who in common with their policy holders had access to published information from the early 1960s warning them of the risks of asbestos causing Mesothelioma.

Asbestos Claims: Support for Workers

The latest mortality statistics available from the ONS show 2,249 people died from Mesothelioma in 2008. Due to the increased use of asbestos in construction and other industries throughout the 60s and 70s the number of Mesothelioma cases is not expected to peak until 2016 according to the HSE.

If you believe you may have been exposed to asbestos at work, or have contracted an asbestos related disease, contact a solicitor at Carrs Solicitors. As dedicated work related injury and illness firm we will fight for you and your family to receive the compensation you deserve.

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