In Spire Healthcare v Royal & Solar Alliance Insurance coverage Ltd  EWCA Civ 17, the Courtroom of Attraction reversed the primary occasion resolution of Decide Pelling QC holding that the 2 units of claims in query had in widespread 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 resolution was that the insured’s declare was restricted to the £10m per declare restrict of the coverage (fairly than the £20m combination restrict).
The case involved claims made towards Spire Healthcare in respect of the conduct of a marketing consultant breast surgeon, Ian Paterson. The claims have been categorised into two teams: people on whom Dr Paterson had carried out incomplete complete mastectomies and people on whom Dr Paterson had carried out pointless surgical procedures. Dr Paterson was convicted of prison offences, and Spire Healthcare settled the claims made towards it for about £27 million. It was accepted by Royal & Solar Alliance Ltd (RSA) that Spire was liable in respect of the settlement. The difficulty 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 chargeable for the total £20m combination restrict of the coverage. RSA appealed.
The Courtroom of Attraction first set out the related rules referring to the aggregation clause within the coverage (which allowed for aggregation in respect of all claims “consequent on or attributable to at least one 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 subject was a well-know formulation supposed to have the widest attainable 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 Area  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 attainable seek for a unifying issue within the historical past of the losses which it’s sought to combination”). The Courtroom of Attraction 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” widespread 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 Firms 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 rules to the details, the Courtroom of Attraction held that it was applicable to combination the 2 teams of claims for the needs of the aggregation clause within the coverage. The primary occasion decide had erred in that he did not 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 strategy was summarised within the Courtroom of Attraction judgment as follows: “As a matter of peculiar language, and making use of the rules relevant to aggregation clauses expressed in these extensive phrases, it appears to me to be plain that all or any of (i) Mr Paterson, (ii) his dishonesty, (iii) his observe of working on sufferers with out their knowledgeable consent, and (iv) his disregard for his sufferers’ welfare might 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, nicely established, rules that are utilized to cause-based aggregation wordings. Nevertheless, the case does emphasise the truth that points which come up on this context are sometimes very fact-dependent, which might typically result in difficulties within the correct interpretation of the legislation because it applies to aggregation.
Article authored by Mark Everiss and Sam Tacey