EWJ 60 April 2025 web - Journal - Page 29
success before an assessment of a loss of chance can be
determined.
About the authors
Jemma Brimblecombe
Partner
(+44) 020 3535 1570
jbrimblecombe@kingsleynapley.co.uk
Therefore, the CA reasoned that Marsh’s argument
that Norman Hay’s refusal to plead whether it or IMP
was liable to Ms Sage was “not the knock-out blow” it
believed it to be. If it could prove that Norman Hay
and/or IMP was not liable to Ms Sage, then that would
be just one factor in the hypothetical counterfactual
matrix. The court would still then need to consider at
trial the chances of whether the putative insurer would
still have paid out in the circumstances.
Jemma is widely recognised for her skills and
experience in commercial litigation and specialises in
professional negligence claims. She acts for both
claimants and defendants in a wide range of sectors,
including financial services, legal services, accountancy,
and construction.
Accordingly, Norman Hay’s claim against Marsh
continues and will proceed to a full trial.
Filton Pavier
Associate
+44 (0)20 7369 3834
fpavier@kingsleynapley.co.uk
Comment
This decision reiterates the position laid out in Fraser
that in cases of negligence involving brokers who have
failed to arrange suitable insurance, the court will
apply loss of chance principles as opposed to requiring
claimants to prove on the balance of probabilities that
it would have recovered under a putative policy. By
clarifying the assessment is what a putative insurer
would have done, and not what it is strictly entitled to
as a matter of law, it underscores the general principle
of damages of placing the injured party in the
position it would have been in but for the broker’s
negligence, at least as far as money can do so.
Filton is an Associate in the Dispute Resolution team.
His experience spans a range of complex matters, including civil fraud claims, contractual, company,
boardroom and shareholder disputes, international
arbitration, insolvency litigation and professional
negligence claims.
www.kingsleynapley.co.uk
If you require an expert call the Expert Witness
free telephone searchline on 0161 834 0017
Dr Wael I Agur
Urogynaecologist
MBChB MSc MD FRCOG
Dr Wael Agur is a Consultant and Lead Urogynaecologist at NHS Ayrshire & Arran, West of Scotland. He is doubly qualified from the
Royal College of Obstetricians & Gynaecologists (RCOG) as an Obstetrician & Gynaecologist and a Subspecialty-Accredited Urogynaecologist. Dr Agur is also an Honorary Professor at University of Glasgow.
He has practiced Obstetrics & Gynaecology, and principally Urogynaecology, as a consultant since 2009. He is currently Consultant
Gynaecologist & Obstetrician, and Subspecialist and Clinical Lead in Urogynaecology. His area of interest is Urogynaecology which
also includes maternal childbirth injuries.
Dr Agur has served on several Government Groups addressing the transvaginal mesh matter in Scotland and England and has provided
written and oral evidence to the UK Independent Medicines and Medical Devices Safety Review, The Cumberlege Review.
He has been undertaking medico-legal work since 2010 and has undertaken full training with Bond Solon courses on basic and
advanced report writing. Medico-legal work has involved reports on Liability and Causation, Condition & Prognosis and Product
Liability. He has also provided medico-legal advice to NHS Scotland Central Legal Office and continues to provide Consultancy and
Expert Reports to several law firms in the UK, Republic of Ireland and Australia.
Instructions undertaken from solicitors representing claimants, defendants, and joint instruction in relation to Clinical Negligence
matters in the areas of Urogynaecology (including pelvic mesh procedures), General Gynaecology and Maternal Childbirth Injuries.
Dr Agur also considers instructions in relation to Pelvic Mesh Product Liability.
Dr Agur has given evidence in The Federal Court of Australia in July 2017, following instructions from the law firm acting on behalf of
over a thousand women in a Product Liability Class Action against a pelvic mesh manufacturer.
He currently accepts around 15-20 instructions per year. Dr Agur participates in annual appraisal and appropriate Continued
Professional Development in compliance with the RCOG Portfolio; and remains up to date in his expertise in his area of practice.
Dr Agur has authored and co-authored several key peer-reviewed publications.
He runs an active research programme in the surgical and non-surgical treatment of pelvic floor dysfunction and continues to hold a
Research Fellowship from NHS Research Scotland.
1 Simonsburn Road, Kilmarnock, KA1 5LA
Area of work: Nationwide and Worldwide
Tel: 07860 249290 - Mobile: 07810 508878
Email: oaklaw@oak-law.co.uk - Website: oak-law.co.uk
EXPERT WITNESS JOURNAL
27
APRIL 2025
