Hodge Jones & Allen

At about 1.30am on 26th June 1997 a huge gas explosion occurred in the boiler house in the basement to Kerrin Point, a 21-story tower block containing 86 flats on the Ethelred Estate in South London, owned and managed by the London Borough of Lambeth. The explosion was caused by problems with the gas- fired boiler which served Kerrin Point and a number of blocks on the estate. There was extensive damage to the block and the local area.

Most of the residents were in bed when the explosion occurred. Many woke up believing that there had been a bomb explosion or that an aeroplane had struck the building, and evacuated the building in a state of panic. After hours of confusion on the night, residents either went to family or friends or were housed in emergency accommodation, mostly local community centres. Some residents were lucky enough to be re-housed within a week, for others it was a much longer process. They never went back to their homes, save under escort to collect some emergency belongings.

Forming the Group

The ex-residents of Kerrin Point quickly formed themselves into the Ethelred Action Group. In May 1998 all ex-residents who wished to make claims instructed Hodge Jones & Allen (HJA) who obtained a lead certificate from the Legal Services Commission to undertake generic work. The legal team assembled by HJA included specialists in both personal injury and housing, because of the different types of claim.

The HJA team was headed by Wendy Backhouse, team partner in the firm's housing department, who coordinated the litigation with other team members including Patrick Allen, senior partner and head of the personal injury department.

Individual cases were funded by a mixture of public funding/legal aid certificates and Conditional Fee Agreements. There were approximately 150 claimants, of which 50 or so were children. The adult claimants included tenants, partners/spouses of tenants, visitors and subtenants/lodgers.

Liability

Following the explosion the Defendants, the London Borough of Lambeth (LBL), appointed solicitors Barlow Lyde and Gilbert to act for them. Their insurers were Zurich. They also instructed Ove Arup engineers to carry out an independent investigation into the cause of the explosion. The Ove Arup report formed the basis of the parties' views on liability. After receiving instructions the Claimants' Solicitors (HJA) wrote a detailed letter of claim and the parties' solicitors and insurers met. The LBL agreed to settle all claims as if they were 100% liable, subject to proof or agreement on causation and quantum. There was no admission of liability due to outstanding proceedings between LBL and sub-contractors involved in the installation and/or maintenance of the boilers at Kerrin Point.

Heads of Claim

The claims were essentially a mix of personal injury and housing claims. Amazingly, the majority of the physical injuries were minor and the main injuries were psychological only.

The claims broke down into the following heads: -

1. General damages for physical and psychiatric injuries

2. Special Damages including items damaged in the explosion, the cost of setting up new homes and loss as a result of psychiatric injury. Claims for items damaged, lost in transit or stolen from the block after the explosion were also included.

3. Damages for breach of covenant for quiet enjoyment where appropriate. This was intended to cover the physical discomfort, inconvenience and distress caused by the explosion and the time that the ex-tenants were homeless or in temporary accommodation.

4. Disrepair damages for the problems experienced by the former tenants before the explosion with the heating/hot water system, lifts and entry phone.

Psychiatric Injury

Even though more than a year had elapsed since the explosion by the time HJA were instructed, many Claimants were still having great difficulty coming to terms with what had happened. These difficulties often rose to the level of a psychiatric disorder with HJA pursuing psychiatric injury claims for approximately 80% of claimants.

In February 1999 HJA convened a panel of psychiatric experts to prepare reports on all Claimants with a potential psychiatric injury. The panel consisted of teams of adult and child psychiatrists and psychologists from the Maudsley Hospital and the Traumatic Stress Clinic. Agreement was reached with the Defendants' solicitors and insurers as to the constitution of the panel, and although the experts were not instructed on a single joint expert basis, the Defendant did not obtain their own evidence in the vast majority of cases.

In addition to obtaining reports, HJA raised the issue of treatment with the Defendants at an early stage. The insurers agreed to fund any treatment which was supported by medical evidence. While the main goal of the legal team was to get the insurers to financially redress the injuries sustained by the Claimants, it was obvious to the legal team that the Claimants were suffering quite badly on a psychological level, and in the main, were not getting the help they needed from their GPs and local mental health services.

For those individuals who were still suffering as a result of their exposure to the explosion, the most common reactions found by the expert team included: Posttraumatic Stress Disorder (PTSD), Major Depression, Specific Phobias (lifts, closed in spaces, loud noises), Separation Anxiety Disorder in children, and Adjustment Disorder with Mixed Emotional Features (a very mild form of PTSD). In addition, many of the Claimants reported increases in family conflict, marital separation and divorce, increases in alcohol and nicotine use, difficulty with returning to and maintaining work, and for the children, increases in school refusal and academic failure.

Issues regarding psychiatric injury arising from a legal perspective

There were specific issues regarding the claims for psychiatric injury that arose in the Kerrin Point litigation. One of the unusual features of the litigation was that often entire families were affected by the explosion. In other multiparty actions, disasters have happened away from the home, but in this case all Claimants lost their homes overnight and to some extent all members of the family were affected. In some cases more than one member of a family had gone on to develop a psychiatric injury in response to the incident. For example, in one family of two adults and two children, one parent developed Obsessive Compulsive Disorder, the other parent clinical depression, and both of the children developed mild PTSD. This was not a particularly unusual case.

It became clear that the parents' recovery impacted to a considerable extent upon their children's recovery. As the parents' symptoms began to diminish, they were more able to assist with their children's recovery. In some cases, this meant that the parents' and usually the mother's treatment had to be prioritised. Where entire families were involved, this often dictated the choice of expert.

Different experts would usually examine adults or children, depending on their expertise. In cases involving an entire family, it was often appropriate for one expert to assess all family members. This had many advantages for the clients saving them time as the parents had to take their children to the assessments and were asked to stay for part of each child's assessment. It allowed the expert to refer to problems affecting the whole family and saved the parents from having to explain their situation to a number of experts.

Treatment and Outcome

The indicated treatment for either children or adults with symptoms of posttraumatic stress is Cognitive Behavioural Therapy (CBT). CBT is a rapid and effective group of interventions that targets current symptoms, encourages active coping, reduces avoidance of traumatic reminders and memories, and undermines negative beliefs about the self and world that often develop during a traumatic event. Treatment with CBT often produces dramatic improvement within 5 -10 sessions, with patients usually obtaining maximum relief by the end of 15-20 sessions. Those with more severe reactions may require longer periods of treatment, with anti-depressant medication a helpful adjunct to CBT in older adolescents and adults.

While CBT is an effective intervention for posttraumatic stress reactions, it can be very difficult to engage traumatised adults and children in treatment. In the aftermath of a traumatic event, individuals are often very reluctant to revisit memories and feelings about the event. Some develop a profound sense of mistrust towards others and the world; feeling misunderstood, permanently damaged, and vulnerable. Such beliefs may be reinforced by negative experiences with the NHS, local housing and education authorities, employers, friends and relatives, and by the legal system. In sum, treatment may be perceived as a very threatening emotional experience. Sensitivity on the part of the therapist and a high level of training in dealing with posttraumatic reactions are needed to engage clients in treatment and to help them work through any negative beliefs. During the initial treatment contact, therapists stress the effectiveness of the treatment, how they will be able to reclaim their life, and that control of the traumatic memory and how it is explored rests with the client and not the therapist. While many families expressed misgivings about the need to re-visit the trauma, quick symptom reduction helped to engage them very quickly in treatment. Other families were keen to have treatment from the start, feeling overwhelmed by memories of the explosion and persistent feelings of nervousness and hyper vigilance.

In the vast majority of cases treated by members of the expert team or by their colleagues in their respective clinics, the outcomes of treatment were extremely favourable. Most clients reported a clinically significant decrease in their posttraumatic stress symptoms, anxiety, and depressive reactions after an average of 10 one-hour sessions. Most said that they generally felt more hopeful about the future and better able to cope with ongoing problems related to housing and resettlement. Treatment was delayed for many families because of the large number seeking treatment and the small number of qualified CBT therapists available. However the delay in treatment for some families did not make the treatment more difficult once it began for the vast majority of Claimants treated. While treatment inevitably delayed settlement of the claims, we were able to negotiate interim payments in many cases.

Summary of the litigation

The legal team hoped initially to be able to avoid the cost of litigation, given the early indication of liability. Much of the early work focussed on formulating heads of claim and gathering evidence. We devised questionnaires for clients to complete and organised the presentation of special damages claims into various standard schedules. Given the large number of heads of claim applicable to most claims, IT played an important part in helping us to manage the mass of data on each case and we devised a large number of databases to help keep track of the progress of each aspect of each case.

The Claimants required considerable help in identifying their losses and in gathering evidence. Many had English as a second language, some had pre-existing mental health and other problems and most were considerably traumatised by their experiences. Home visits were often required and we tried to keep Claimants up to date with progress through regular newsletters and by attending meetings of the Ethelred Action Group.

Attempts by the legal team to engage the insurers in sensible negotiations were not successful and proceedings had to be issued. 138 claims were issued at the Central London County Court against London Borough of Lambeth with 11 claims settling prior to issue of proceedings. After issue of proceedings, we had a number of constructive meetings with insurers at which many claims were settled.

Liability was admitted in the Defences and we applied for judgment to be entered. One very helpful development was the agreements of one District Judge at Central London County Court to case manage all the cases. She has dealt with all applications and directions hearings, has approved consent orders and dealt with approval hearings for children's claims. This has ensured a uniformity of approach. To date136 claims have been settled. Only one claim has gone to a full assessment hearing before the DJ at Central London County Court. One claim remains to dealt with and will be tried before the end of 2003 if not settled beforehand.

Whilst liability was effectively conceded at an early stage, the KP litigation shows that quantum issues can be complex and time consuming to resolve. The need for the resolution of symptoms and continuing treatment meant that many claims were not settled until 4 years after the explosion.

Dr Sean Perrin is a Clinical Psychologist and Lecturer at the Institute of Psychiatry. He gives his clinical time to the Child Traumatic Stress Clinic at the Maudsley Hospital in South London, and was one of the panel of psychiatric/psychological experts used in the Kerrin Point cases.

Melanie Williams
Hodge Jones & Allen, London