Personal Injury Claims arising from Defective Premises - Damp and Mould25/01/19
We are seeing a significant number of claims for personal injury included within defective property claims which emanate from damp and mould. Most of these relate to exacerbation of constitutional asthma and bronchiolitis in children, and occasionally include a psychiatric injury. Once new legislation comes into force in March 2019, we anticipate that the number of personal injury claims will rise.
On 20th March 2019 the Homes (Fitness for Human Habitation) Act 2018 will come into force and this provides that the dwelling must be fit for human habitation at the commencement of the tenancy and remain fit for human habitation during the lifetime of the tenancy. We anticipate that the strict wording of the Act will result in an increase in personal injury claims emanating from defective property.
Damages for personal injury are typically recovered in the region of £500 - £10,000, although in Hutchinson v Trivallis Limited  (unreported) the Claimant recovered £240,000 in an out of court settlement having suffered worsening of his asthma which caused him to develop secondary blood clots in his legs and lungs as well as a significant psychological injury.
Responding to a claim
S11 Limitation Act 1980 gives a Claimant three years from the cause of action, or from the Claimant’s later date of knowledge (as defined by S14), to bring a personal injury claim. This contrasts with the six year period for non-injury claims. However, these periods can be extended by agreement between the parties.
Which protocol should be used?
Paragraph 3.5 of the pre-action protocol for housing disrepair claims provides that if the personal injury claim requires expert evidence other than a letter from a GP, the PI protocol should be followed for that element of the claim.
If the injury is very minor, and likely to be valued at no more than £5,000, damages should be capable of assessment on the basis of a letter from the Claimant’s GP. There would be no need to invoke a separate pre-action protocol or requirement to obtain expert evidence (assuming there are no causation or fraud concerns).
Where the injury is valued in excess of £5,000, or where a more detailed investigation is required in relation to the alleged injury, you may wish to consider obtaining a report from a medical expert (e.g. in respiratory medicine if the claim is asthma related) and invoking either the personal injury pre-action protocol or the pre-action protocol for disease and illness claims. The latter primarily covers any “illness physical or psychological, any disorder, ailment, affliction, complaint, malady, or derangement other than a physical or psychological injury solely caused by an accident or other similar single event”. This protocol covers diseases which are likely to be complex and frequently not suitable for fast track procedures even though they may fall within the fast track limit (claims with a value of less than £25,000).
The same ‘cards on the table’ ethos applies to both protocols from the outset. The Defendant has 90 days in which to respond to the pre-action letter of claim, although more time can be requested if there are difficulties in investigating the claim.
What evidence will be needed?
In order to investigate an injury claim the Claimant’s GP and any relevant hospital records should be requested and reviewed at the earliest opportunity. Then consideration can be given as to whether or not an expert’s report should be obtained, either on a sole or joint basis with the Claimant.
As a leading firm of housing, healthcare and insurance lawyers, we have unrivalled expertise in all aspects of claims arising from defective premises including bodily and psychiatric injury from low value to maximum severity. We can assist you in your investigations, including analysing medical records and experts’ reports. We know, and regularly instruct the leading medical experts and can advise you in relation to the likely value of the claim and settlement recommendations. We can also arrange for full representation in connection with the claim.