In Spire Healthcare v Royal & Solar Alliance Insurance coverage Ltd  EWCA Civ 17, the Court docket of Enchantment reversed the primary occasion determination of Decide Pelling QC holding that the 2 units of claims in query had in frequent a unifying issue, such that they need to be aggregated for the needs of the aggregation clause within the coverage. The web impact of this determination was that the insured’s declare was restricted to the £10m per declare restrict of the coverage (somewhat than the £20m mixture restrict).
The case involved claims made in opposition to Spire Healthcare in respect of the conduct of a advisor breast surgeon, Ian Paterson. The claims have been categorised into two teams: people on whom Dr Paterson had carried out incomplete whole mastectomies and people on whom Dr Paterson had carried out pointless surgical procedures. Dr Paterson was convicted of legal offences, and Spire Healthcare settled the claims made in opposition to it for roughly £27 million. It was accepted by Royal & Solar Alliance Ltd (RSA) that Spire was liable in respect of the settlement. The problem between the events involved the aggregation clause within the coverage and whether or not the underlying claims must be aggregated and handled as one declare or handled as two.
At first occasion, Decide Pelling QC held that the claims must be handled as two claims, such that RSA was accountable for the total £20m mixture restrict of the coverage. RSA appealed.
The Court docket of Enchantment first set out the related ideas referring to the aggregation clause within the coverage (which allowed for aggregation in respect of all claims “consequent on or attributable to 1 supply or authentic trigger”, in relation to which there was little dispute between the events. The start line was that the language used within the clause in problem was a well-know formulation meant to have the widest doable aggregating impact (on the subject of AIG Europe Ltd v OC320301 LLP  1 All ER 143; reference was additionally made to the well-known feedback of Lord Mustill in Axa Reinsurance (UK) plc v Discipline  1 WLR 1026 – “A trigger is to my thoughts one thing altogether much less constricted. It may be a unbroken state of affairs; it may be the absence of one thing taking place. Equally, the phrase ‘originating’ was in my opinion consciously chosen to open up the widest doable seek for a unifying issue within the historical past of the losses which it’s sought to mixture”). The Court docket of Enchantment additionally famous that previous authority made it plain that in contemplating whether or not losses might be aggregated, one ought to think about whether or not there was a single “unifying issue” frequent to the claims in query (Countrywide Assured Group plc v Marshall  1 All ER (Comm) 237); on this context, “authentic trigger” didn’t imply proximate trigger (a “significantly looser causal connection” was permissible: Beazley Underwriting Ltd v Vacationers Corporations Inc  1 All ER (Comm) 1241), however there should be some causative hyperlink and there needed to be some restrict to the diploma of remoteness that’s acceptable to ensure that losses to be aggregated (see American Centennial Insurance coverage Co v INSCO Ltd 1996] LRLR 407 and Cultural Basis v Beazley Furlonge Ltd  Bus LR 2174).
Making use of these ideas to the information, the Court docket of Enchantment held that it was applicable to mixture the 2 teams of claims for the needs of the aggregation clause within the coverage. The primary occasion decide had erred in that he didn’t undertake a large seek for a unifying issue within the historical past of the claims, as he was required to do by the authorities referred to above. The right method was summarised within the Court docket of Enchantment judgment as follows: “As a matter of odd language, and making use of the ideas relevant to aggregation clauses expressed in these huge phrases, it appears to me to be plain that all or any of (i) Mr Paterson, (ii) his dishonesty, (iii) his follow of working on sufferers with out their knowledgeable consent, and (iv) his disregard for his sufferers’ welfare may be recognized both singly or collectively as a unifying issue within the historical past of the claims for which Spire have been liable in negligence, regardless of whether or not the sufferers involved fell into Group 1 or Group 2 (or each).”
In the end, this case was a reasonably simple utility of the related, properly established, ideas that are utilized to cause-based aggregation wordings. Nonetheless, the case does emphasise the truth that points which come up on this context are sometimes very fact-dependent, which might generally result in difficulties within the correct interpretation of the legislation because it applies to aggregation.
Article authored by Mark Everiss and Sam Tacey