In Spire Healthcare v Royal & Solar Alliance Insurance coverage Ltd [2022] EWCA Civ 17, the Courtroom of Attraction reversed the primary occasion determination of Choose 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 online impact of this determination was that the insured’s declare was restricted to the £10m per declare restrict of the coverage (moderately than the £20m combination restrict).
The case involved claims made in opposition to Spire Healthcare in respect of the conduct of a marketing consultant breast surgeon, Ian Paterson. The claims had 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 in opposition to it for about £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 ought to be aggregated and handled as one declare or handled as two.
At first occasion, Choose Pelling QC held that the claims ought to be handled as two claims, such that RSA was answerable for the complete £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 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 difficulty was a well-know formulation supposed to have the widest potential aggregating impact (as regards to AIG Europe Ltd v OC320301 LLP [2017] 1 All ER 143; reference was additionally made to the well-known feedback of Lord Mustill in Axa Reinsurance (UK) plc v Area [1996] 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 for my part consciously chosen to open up the widest potential 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 contemplate whether or not there was a single “unifying issue” frequent to the claims in query (Countrywide Assured Group plc v Marshall [2003] 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 [2012] 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 [2018] Bus LR 2174).
Making use of these rules to the info, the Courtroom of Attraction held that it was acceptable 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 proper method was summarised within the Courtroom of Attraction judgment as follows: “As a matter of odd language, and making use of the rules relevant to aggregation clauses expressed in these vast phrases, it appears to me to be plain that all or any of (i) Mr Paterson, (ii) his dishonesty, (iii) his apply 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 had been liable in negligence, no matter whether or not the sufferers involved fell into Group 1 or Group 2 (or each).”
In the end, this case was a reasonably simple software of the related, nicely established, rules 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 may generally result in difficulties within the correct interpretation of the regulation because it applies to aggregation.
Article authored by Mark Everiss and Sam Tacey
