Around 50,000 coalminers have potential claims for undercompensation following settlement of claims brought under a coal health compensation scheme. The scheme was set up to provide compensation to miners who contracted hand injuries caused by using vibrating equipment (vibration white finger (VWF)) whilst working in mines owned by the former British Coal Board and subsequent owners once the industry became privatised.

A large number of claims have been settled. However, numerous former miners are now claiming that their solicitors negligently failed to obtain the full amount of damages owed to them. In particular, they allege that the solicitors failed to claim “services” damages to compensate them for their need for assistance with everyday tasks such as gardening and DIY - equivalent to a care claim within a normal personal injury claim. The value of such claims can be substantial, as the loss is pleaded on an annual basis for the life of the claimant, with the average award sought being between £30,000 to £50,000.

A court action has been brought in Leeds County Court in relation to a number of these claims, which are collectively termed the “VWF Professional Negligence Litigation”. In the latest decision earlier this year, His Honour Judge Hawkesworth set out directions on how the cases should be progressed.

Undersettlement of personal injury claims

In order for the claims to succeed, the miners will need to prove that they have lost a real or substantial chance of securing settlement on more favourable terms than the settlements in fact agreed. The court will then evaluate what has been lost, by looking at each case on its individual merits.

In some cases it will be clear that there has been an undersettlement. However, in others, it may be difficult to prove this is the case.

In Ogilvy & Mather Ltd v Rubinstein Callingham Polden & Gale [1999] Lord Justice Simon Brown, said:

“It can often be said that a party’s settlement prospects could and should have been improved and/or accelerated by their solicitor taking some step or another in the proceedings. The reasons why parties settle are many and various. It will seldom be possible to demonstrate any certainties in the matter. The scope for argument will be well-nigh limitless. If satellite litigation is to be kept in check, claims like this should be treated with some circumspection.”

However, in Hickman v Blake Lapthorn [2005] the High Court stated that insofar as it may now be more difficult for the claimant to establish his loss, the difficulty should not count against him but rather against his lawyers, because it was as a consequence of their negligence that he did not have his earlier trial.

On this basis, former miners who are able to prove negligence on the part of their former solicitors may find that they have a fair wind on causation.

Comment

The coal health compensation scheme has already been the subject of significant controversy. Over 500,000 claims have been settled under the scheme, but in the early stages the Department of Trade and Industry was strongly criticised for administrative failings in processing the claims, leading to delays. In addition, some Claimants’ solicitors were found to have made deductions from the damages awarded, claiming that they were entitled to success fees, or to make payments to third-party claims handlers or trade unions.

It is ironic that a scheme will now have to be set up to administer compensation payments against the Claimants’ solicitors who themselves had been successful in establishing liability and a scheme against the British Coal Board. Furthermore it will require Claimants’ solicitors to turn from “poacher to game keeper” in the defence of claims against them, since they will have to argue that the disability arising from the VWF was not sufficiently severe to warrant a services claim.