Compo culture goes up in smoke

A recent ludicrous case shows just how unreliable group claims are.

Barbara Hewson

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On the evening of 9 June 2011, a fire started at a woodchip-recycling factory in Kirkby in the north of England. The factory’s owner was Sonae, a Portuguese company. By the early hours of the following day, the fire was a raging inferno. The residual fire did not burn out fully until 7 July. Local residents smelt a horrible acrid smell, and complained about excessive dust deposits. In 2012, Sonae stopped production at the plant, with the loss of over 200 jobs.

On 30 July this year, Mr Justice Jay at the High Court dismissed claims by 16,600 residents for damages for personal injury caused by fumes from the blaze.

In a long judgement, only partially summarised here, the judge laid bare the tactics often used by lawyers in these sorts of cases to mount group claims, which may, individually, be minor. He shows how easy it is to produce a wave of allegations based on little more than human suggestibility, unsupported by convincing scientific or medical evidence. Mr Justice Jay criticised the tactics of some firms, two of which he referred to the Solicitors Regulatory Authority for forging client signatures on health questionnaires.

Touting for business

The litigation began after firms touted for claimants in 2013. They evidently sensed a business opportunity. Agents knocked on doors, held ‘pop-up’ stalls in shopping precincts and advertised. They asked people if they had suffered any physical conditions from the fire. As one witness recalled: ‘And then they said, would you like to come along and talk to us, and I said yes, because I don’t want something like that in an area where my kids are.’

Some agents created a misleading impression that Sonae was a soft target and this was easy money. Whole families were signed up, apparently willy-nilly. Prospective claimants were invited to fill in questionnaires with leading questions about their symptoms. A number filled in the same questionnaire on different occasions, giving different answers each time! This did not impress the judge.

To the credit of Sonae’s insurers, they decided to fight the case on its merits. It concerned minor claims of passing discomfort associated with smoke exposure. One matter the court had to decide was when a transient irritation becomes pathological, such as to warrant legal redress. Sonae conceded that it would be liable for any foreseeable injury, but disputed that there was any.

Experts, experts everywhere

In this case, there were experts galore. The claimants called upon a toxicologist, and a modeling expert (the latter dealt with emission factors). The defendant used an expert in fire engineering, and its own modeling expert. Each side had a meteorology expert. Then there were eight medical experts – who we’ll return to later.

The court took 20 sample claimants as test cases, which, in itself, involved an 18-day trial in June this year. The claimants drew attention to Sonae’s poor safety record, the number of fires at the plant (there had been several), the inherent risk of another taking place, and the dry environment. The judge rejected this attempt to short-circuit the forensic process: ‘However badly the defendant may have behaved, the claimants still have to prove their case to the requisite standard.’

Much technical evidence was given about the rate at which the fire would have given off various chemicals. The judge criticised the claimants’ solicitors for failing to instruct their own toxicologist fully. He complained that this expert’s evidence was very general: ‘It is almost as if he was being discouraged from pinning his precise colours to the mast until as late as possible.’

The power of suggestion

Although many claimants were exposed to the smell of acrolein, for example, this fact alone was not enough to prove that they had suffered actionable injury. But here the power of human suggestion came in. As the judge noted:

‘If the claimants smelt something, they might believe that they were exposed to a chemical which might have injured them in some way.’

Turning to the claimants’ modeling expert, who was supposed to work out how emissions might have affected different claimants, the judge said: ‘Dr Carruthers was… significantly hampered, if not misled, by the information he was given…. Like Professor Hay [the claimants’ toxicologist], he was “drip-fed” information over the course of the litigation, much of it being inaccurate, unreliable or unsubstantiated.’

In the end, the judge ended up having to direct modeling exercises, which confirmed that the vast majority of test claimants did not suffer significant exposures. Then he moved on to expert medical evidence. There were four doctors for each side. Their disciplines were: lower respiratory tract; upper respiratory tract; skin, and eyes.

‘Me too’ syndrome

But by the time they came to examine the claimants, there were no relevant symptoms to observe. Worse, in all but one case, no claimant had complained to their GP about the fire, or linked symptoms to the fire when consulting their GP. As the judge said, the lay evidence before him would not get past the door of any reputable scientific journal, ‘owing to the confounding factor of individuals seeking compensation serving to magnify recall bias’.

Some of the claims reported made no sense. As one doctor explained, an airborne irritant could be expected to affect the eyelids. Yet none of the claimants whom they examined reported this. Again, an airborne irritant could not affect skin that was covered up. Yet some claimants reported skin problems on parts of their bodies that were clothed.
These were instances of what a defence expert called ‘me too’ syndrome, which is common to industrial- and product-liability cases. Close investigation typically shows that very few individuals, if any, have problems genuinely attributable to the agent under scrutiny. Typically, their problems arise from unrelated causes.

In his assessment of the claimants’ evidence, the judge emphasised that he was at pains not to be seduced by the claimants’ theory of a ‘bigger picture’, of apparently similar complaints creating a pattern. That would be to commit the logical fallacy of assuming what had to be proved. In the end, the judge remarked that the claimants’ experts ‘have sought to discern a constellation by gazing hopefully into the sky, without taking the time to look closely at the individual stars’.

The bandwagon effect

The judge painstakingly went through the test claimants’ evidence, which he described as ‘unimpressive’ and vague. Some exaggerated; some were ‘unconvincing’. Much of the lay evidence was simply mistaken, such as claimants reporting that they had experienced symptoms for the first time following the fire, when medical records showed a prior history, or getting the duration of the fire wrong. Out of 20, he only regarded three test claimants as potentially reliable.

One witness admitted that she had forgotten about the fire until two years later, when she saw the lawyers’ publicity: ‘When I seen that I thought, oh, there’s been fault with Sonae. There’s a claim. Where there’s claim, there’s blame. And I thought… what have I been exposed to?’

One, Leon Swift, was denounced as a fraud following this Twitter exchange with:

Swift: ‘Either of you’s jumped on this sonae claim bandwagon?’

‘MC’: ‘Looks like everyone’s doing it now because it’s shut down.’

Swift: ‘I’m getting involved… pays for the summer holiday if it goes through.’

‘TC’: ‘Ha ha you’re a bad man.’

The judge commented unfavourably on the two-year gap between the fire and the emergence of claims: had 16,600 people really experienced severe symptoms, it is inconceivable that there would have been no complaints to newspapers, the council and to GPs. Yet here there was none.

Sucked into a vortex of suggestibility

In his ruling, Mr Justice Jay went on:

‘Human beings are naturally susceptible and suggestible, particularly if they are made to believe that they form part of a coherent group with shared experiences, and if they risk none of their own resources in bringing a claim… There was a lot of ill-feeling… towards Sonae, and many people genuinely believed that they must have been harmed in some way. The legal process preyed on human susceptibility and vulnerability, and the rest is history.’

He concluded that the claimants’ expectations were always unsustainable. Again, he blamed the lawyers who ‘should have investigated whether the case stacked up’ but instead ‘wanted to make a virtue out of uncertainty – perhaps because they clung to the notion that the litigation would settle’.

This case also has wider implications for other types of group claims, notably those concerning allegations of historic abuse. Even prima facie reliable witnesses can be mistaken, or sucked into a vortex of suggestibility created by a claims environment. And evidence in historic cases is even more flimsy than this case, where at least there was an observable fire.

Worse, the approach to historic abuse cases embraces the theory of a ‘bigger picture’, with apparently similar complaints creating a pattern, which Mr Justice Jay rightly called illogical. It’s as though we have two parallel legal regimes – and this is wrong in principle. The law of liability should be the same, whatever the context.

Barbara Hewson is a barrister. Her views here are personal.

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

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