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Ben Elkington KC and Ben Smiley act for successful insurer in the Court of Appeal in £10m aggregation dispute

News & Judgments
17 January 2022

Ben Elkington KC and Ben Smiley were instructed by DWF to represent RSA in the Court of Appeal, seeking the reversal of the judgment of HHJ Pelling KC. The claim arose out of the misconduct of the infamous rogue surgeon, Mr Paterson, who mistreated his patients over many years. His misconduct resulted in 100s of claims being brought against Spire Healthcare Limited, the operator of two hospitals where Mr Paterson performed breast surgery.  Spire had liability insurance with RSA. The issue was whether the multiple claims against Spire Healthcare Limited were consequent upon or attributable to one source or original cause. The trial Judge held that they were not, and found that Spire was entitled to an indemnity of £20m from RSA. The Court of Appeal reversed that decision, holding that all the claims were consequent upon or attributable to one source or original cause (namely Mr Paterson, his dishonesty, his practice of operating on patients without their informed consent, and his disregard for his patients’ welfare). Thus Spire’s entitlement to an indemnity was limited to only £10m. The judgment, which can be found here, contains a useful analysis of the meaning and effect of aggregation clauses where multiple claims against an insured arise out of the misconduct of a single individual.

The judgment can be found here.

Related People

Ben Elkington KC, FCIArb

Call: 1996 Silk: 2012

Ben Smiley

Call: 2009

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