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August 2017 Contents
 Welcome to the August 2017 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 Emerging Issues in Holiday Sickness Claims - James Beeton, 12 King's Bench Walk It is now 7 months since the Court of Appeal's decision in Wood and Anor v TUI Travel Plc (t/a First Choice) [2017] EWCA Civ 11 (considered in detail here). That decision coincided with a massive increase in claims by British tourists for holiday sickness, prompting recent calls by the MOJ for a government-led crackdown on the new 'sickness claims culture' in the form of the extension to this area of fixed recoverable costs... |
 Damages for the Failure to Obtain Informed Consent? - Nicholas Pilsbury, Hailsham Chambers When a doctor fails to obtain a patient's informed consent to an operation, should damages be awarded for that failure to obtain consent, regardless of any award that might be made for PSLA and financial losses? After all, the failure to obtain consent means that a person's right to self-determination and bodily integrity has been violated and doesn't that require the Court to make an award to recognise that legal wrong? These were the questions that the Court of Appeal was being asked to decide in the recent case of Shaw v Kovac [2017] EWCA Civ 1028... |
 Review of the Latest Proposals for Fixed Costs in Clinical Negligence - Geoffrey Simpson-Scott, Simpson Millar LLP At p117 of his Supplemental Report on Fixed Recoverable Costs (31st July 2017), Sir Rupert Jackson recommends that fixed recoverable costs cannot simply be imposed in clinical negligence cases in the absence of also changing the procedural rules. I made this point in "A Practical Approach to Clinical Negligence Post-Jackson" (Law Brief Publishing (2016). It recognises that the average clinical negligence case is inherently more complex than the average civil litigation case of comparable value... |
 Part 36 & Late Acceptance: When Is It Unjust to Apply the Usual Order? - Fran McDonald, Old Square Chambers The case summary of Briggs v CEF Holdings Ltd (Court of Appeal, 13/7/17) was published on lawtel this morning. Although it is important to bear in mind the lack of a full judgment as yet, the decision gives further guidance on the way in which lower courts should decide if it is unjust to impose the normal Part 36 cost consequences, where an offer is accepted out of time... |
 Stressful Times: Marsh v Ministry of Justice [2017] EWHC 1040 (QB) - Andrew Roy & Vanessa Cashman, 12 King's Bench Walk Following a 15 day trial before Thirlwall LJ (as she now is; she was promoted to the Court of Appeal during the course of the litigation) the Ministry of Justice was found liable for prolonging a disciplinary investigation and accompanying suspension against the Claimant prison officer. These failings were found to have caused the premature termination of the Claimant's career due to psychiatric injury. He was awarded over £286,000... |
 A Novel Duty of Care by Geneticists to Provide Information: ABC v St. George's Healthcare NHS Trust and Others [2017] EWCA Civ 336 - Lawrence Caun, Lamb Chambers The Court of Appeal in this case realized that it might be creating a novel duty of care in deciding that it is arguable that geneticists could be liable for a failure to provide information to a claimant ("C") about her father's diagnosis of Huntington's disease. The Court reversed the striking out of a claim by Nicol J. [(2015] EWHC 1394)... |
 Hospital Misdiagnosis of Foot and Ankle Fractures - Sylvia Taylor, Tilly Bailey & Irvine Foot and ankle injuries are a common place reason for attending the Accident and Emergency Department or Minor Injuries Unit. However, not everyone with an ankle and foot injury will need an x-ray... |
 Personal Injury Claims Involving Insolvent Defendants: Selecting the Correct Statutory Scheme - Andrew Burns QC & Jonathan Butters, Devereux Chambers Redman v Zurich Insurance plc [2017] EWHC 1919 (QB) analyses the circumstances in which a claim for personal injuries where an insured defendant is insolvent should be brought relying on the old statutory regime provided by the Third Party (Rights Against Insurers) Act 1930 ("the 1930 Act") as opposed to the new regime provided by the Third Party (Rights Against Insurers) Act 2010 ("the 2010 Act"). It is of particular importance in industrial disease claims where the date when a liability for an injury is incurred is medically uncertain... |
 Rights Without Recourse? - Richard Paige, Park Square Barristers In the case of Shaw v Kovac & others [2017] EWCA Civ 1028 the Court of Appeal considered the question of whether a claimant could recover damages for "infringement of the [claimant's] right of autonomy" as a free-standing head of loss, when they had been treated in the absence of informed consent... |
 Catalano v Espley-Tyas Development Group Ltd [2017] EWCA Civ 1132 - Jamie Carpenter, Hailsham Chambers In the 1960s Ms Catalano had been employed as cone winder in a textile factory. In 2012, she decided that she wanted to bring a claim against her former employer for deafness as a result of the noise in the factory. She instructed solicitors, who entered into a CFA with Ms Catalano on 13 June 2012. So far, so commonplace... |
 J C and A Solicitors Ltd v Andeen Iqbal & Another [2017] EWCA Civ 355 - Jim Knight, Harmans The Court of Appeal unanimously agreed that no obligation to repay Stage 1 fixed costs (£400 + VAT) is imposed by the RTA Protocol or by the CPR upon Protocol Claimants merely because, after the conclusion of Stage 1, they take no steps to pursue their claim under Stage 2. |
 What Is a Diffuse Axonal Brain Injury And Why Is It Important to Get Early Rehabilitation - Alix Walker, Burnetts Solicitors The brain is a relatively small part of the human body, measuring the size of about two adult fists together and weighing only 3lbs. Made up of around 75% water it consists of 60% white matter (the network needed to send signals) and 40% grey matter (neurons that send the signals)... sheet preview http://www.pibulj.com/content/law-journal-summaries/news-category-2-53514/4268-what-is-a-diffuse-axonal-brain-injury-and-why-is-it-important-to-get-early-rehabilitation-alix-walker-burnetts-solicitors |
 If Only I Had Known I Would Have... Consent to Medical Treatment and the Problem of Hindsight - Paul Sankey, Enable Law A recent decision (Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB)) is another example of how the law has changed following Montgomery v Lanarkshire Health Board. It nevertheless also shows how difficult it is for patients to succeed in consent claims... sheet preview http://www.pibulj.com/content/law-journal-summaries/news-category-2/4266-if-only-i-had-known-i-would-have-consent-to-medical-treatment-and-the-problem-of-hindsight-paul-sankey-enable-law |
 Editorial: Filing by Email or Fax - Aidan Ellis, Temple Garden Chambers Upon emailing draft directions to a County Court recently (as requested by the Judge), I received a standard acknowledgement email which reminded me (in bold red and blue lettering) of the rules applicable to filing documents by email... |
 Summary of Recent Cases, August 2017 Here is a summary of the recent notable court cases over the past month... |
 PI Practitioner, August 2017 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Fixed recoverable costs: Jackson Part II... |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No 16: Uncertainty in Judicial Decision Making: A Case to Answer? - Dr Hugh Koch, Dr Lorna Livingstone & Dr Sophie Mayhew, Hugh Koch Associates Kennedy v. London Ambulance Service Trust (LAS) 2016 QBD. This complex case reviewed in June's edition of PIBULJ (Johnson and Jacobson, 2017) illustrates interesting medico-legal points about causation and attribution... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 10 Issues With Medical Reports That Make Third Parties Suspicious - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP gives 10 examples of weaknesses in medical reports that defendant solicitors can challenge with a low value generalist re-examination... |
 Short Notes on Muscular Skeletal Susceptibility 2017 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving Muscular Skeletal Susceptibility... |
| Book Reviews | |
 Two Excellent Books for Your Shelf - Dr Hugh Koch Bloomsbury Publishing have recently published two excellent legal books which I would recommend to lawyers and experts alike. They cover areas such as Compensation Culture, Damages, Uncertainty and Causation, all of which are crucial yet, at times, confusing concepts in theory and practice... |
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July 2017 Contents
Welcome to the July 2017 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles.
CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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FREE BOOK CHAPTER: What is Cosmetic Surgery? (From 'A Practical Guide to Cosmetic Surgery Claims' by Dr Victoria Handley)
Cosmetic surgery is where a person chooses to have an operation or invasive medical procedure, to change their physical appearance for cosmetic rather than medical reasons. We refer to cosmetic surgery as any intervention, procedure or treatment carried out with the primary objective of changing an aspect of a patient's physical appearance... |
Night Workers and Negligence: Do Nightshifts Cause Disease and When Are Employers Liable? - Gus Baker, Outer Temple Chambers & David Green, 12 King's Bench Walk
There is a growing medical consensus that night-shift work is bad for your health. The disruption to circadian rhythms caused by working out of normal human waking hours is linked in the scientific literature with an increased risk of cardiovascular disease, cancer and diabetes... |
The Scope of Fixed Costs - Andrew Roy, 12 King's Bench Walk
Prescott v Trustees of the Pencarrow 2012 Maintenance Fund, Plymouth CC, District Judge Richards, 12 June 2017. This decision provides important clarification as to the scope of the fixed costs regime (FCR) at CPR Part 45... |
Covert Surveillance and Social Media: From Big Brother to Love Island - Robert Hunter, Devereux Chambers
Rather like reality television, covert surveillance feels as though it has been around for a long time. Although several of the leading cases were decided in the early noughties, some old issues have received recent airtime. This paper will review the current legal landscape and tactical issues before asking: how much has changed? |
Editorial: Striking out, Costs and QOWCS - Aidan Ellis, Temple Garden Chambers
Unusually, by the end of this week I will have had the pleasure of appearing in four strike out applications in a row. Many strike out applications now arise from substantially similar facts; the Claimant failed to comply with directions and, after allowing a more or less decent opportunity to apply for relief, the Defendant applied for strike out pursuant to CPR 3.4(2)(c)... |
Wheelchair v Buggy, Wheelchair Wins (Just) - Gillian Crew, Ely Place Chambers
Duty to Make Reasonable Adjustments on a Service Provider. In the case of FirstGroup Plc v Paulley [2007] UKSC 4, the Supreme Court held that bus companies must try harder to give priority spaces to wheelchair-using passengers... |
FREE BOOK CHAPTER: The Importance Of Branding in Law (From 'A Practical Guide to Marketing for Lawyers' by Catherine Bailey & Jennet Ingram)
Used to give products and services a unique identity or personality, a brand enables organisations to differentiate themselves from the competition. An additional benefit is that the consumers may become brand loyal and thus repeat purchasers... |
Experimental Medicine and Pioneering Patients - David Locke, Hill Dickinson LLP
There are undoubtedly terminally ill patients who wish to pursue non-standard treatments in the hope of finding an unexpected cure, and there are even patients who wish to altruistically volunteer to trial experimental medicines unrelated to their own condition, in order to derive meaning and purpose from a hopeless situation... |
Deputyship vs PI Trust: Round 2 ABC v Watt - Ruth Hughes, 5 Stone Buildings
Where P lacks capacity and has or is likely to have the benefit of a large personal injury award, the question will necessarily arise - how should P's award be managed, through a deputyship award or through a personal injury trust. Unlike where the claimant in the personal injury case has capacity, there is no need to interpose a personal injury trust to maximise state benefits, as considered recently by Norris J in H v Craven [2016] EWHC 3146 (QB)... |
Hampshire County Council v Wyatt - Karen Moss, 3PB Barristers
It has long been the case that it is within the jurisdiction of employment tribunals, to award personal injury damages to employees where they can demonstrate that their employer's unlawful discrimination caused psychiatric or physical injury... |
FREE BOOK CHAPTER: The No Nonsense Gut (From 'The No Nonsense Solicitors' Practice: A Guide To Running Your Firm' by Bettina Brueggemann)
Some call it emotional intelligence, gut instinct, subconscious or sixth sense. Scientists believe we have two brains - the head brain or conscious brain and the stomach (gut) brain. Research seems to suggest both operate completely separately and independently of each other and that the stomach brain is more powerful or effective. I cannot speak for science but what I did learn over the years was that the times I went wrong was when I failed to listen to my stomach... |
Know the Rules! - Jonathan Wheeler, Bolt Burdon Kemp Solicitors
Jonathan Wheeler comments on the case of Thompson v Reeve and the importance of getting service right... |
QOCS in Scotland Proposals Move Forward - Mike Kemp, Thorntons Law
On 28 June 2017 I, along with other Thorntons Law colleagues, attended at the group APIL Scotland meeting to discuss the details of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill. The purpose of the meeting was to allow the APIL Scotland representatives to gauge the membership's views on the Bill before they appear before the relevant Scottish Parliament committee... |
Amputations and Advances in Prosthetic Limbs - Alix Walker, Burnetts Solicitors
Amputations are not something that people want to think about, but they are a part of everyday life, especially for those innocently involved in accidents at work or road traffic accidents. However, with modern advances in surgery, rehabilitation and importantly prosthetic design the loss of a limb does not have to be a detrimental life sentence... |
Who Is to Blame When Private Surgery Goes Wrong? - Laura Williamson, Enable Law
We are all familiar with the NHS being sued when a doctor makes a mistake. The system is not perfect, but if a doctor has been negligent, the NHS, as an entity, is liable. The victim and their family know who they can claim against. Changes can be made to working practices if necessary, and lessons learnt... |
Case Report: A v Balin Distribution Ltd - Helen Reynolds, Spencers Solicitors
Accident date: 13 August 2013. Settlement date: 04 April 2017. Gross settlement: £80,000.00... |
Case Report: Brown v Mosa - Mary Kay & Sarah Wright, Spencers Solicitors
Accident date: 29 August 2014. Settlement date: 20 December 2016. Gross settlement: £265,717.17... |
Case Note: Battram v Dr Geoghegan - Carol Maunder, Dutton Gregory LLP
On 18.9.12 the Claimant received a telephone call from his GP, the Defendant, to advise him that: 1. When the Claimant had undergone a blood test in January 2011, his kidney function was at 80%. The Defendant did not advise him of this fact as the Defendant considered it an acceptable result... |
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Summary of Recent Cases, July 2017
Here is a summary of the recent notable court cases over the past month... |
PI Practitioner, July 2017
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: QOCS and MIB claims... |
| An Update from North of the Border, Edited by Kate Donachie, Brodies LLP | |
Recoverability of Pre-Accident Records: A New Approach for Scotland? - Catriona Hepburn, Brodies LLP
In England it is a well-established principle that, where a plaintiff is claiming for loss of future earnings based upon personal injury, disclosure of full medical records will be allowed. In Dunn v British Coal Corporation [1993] ICR 591 concerned a neck injury at work and on that basis disclosure of medical records was initially restricted... | |
| Clinical Negligence Medicine by Dr Mark Burgin | |
The Unnatural Death: A User's Guide to Coroners in the UK 2017 - Dr Mark Burgin
Dr Mark Burgin BM BCh (oxon) MRCGP considers how a low-cost generalist screening report can assist the coronial process... |
The Five Minute Letter of Claim 2017 - Dr Mark Burgin
Dr Mark Burgin BM BCh (oxon) MRCGP explains how McKenzie Friends can use the generalist clinical negligence report to create a medically sound letter of claim LOC... |
Quantum Made Simple 2017 - Dr Mark Burgin
Dr Mark Burgin BM BCh (oxon) MRCGP explains how McKenzie friends can assist Litigants in Person calculate the amount of damages claimed (quantum)... | |
June 2017 Contents
 Welcome to the June 2017 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 Roberts v Johnstone: A New Accommodation - Nigel Spencer Ley, Farrar's Building If the method for calculating damages for the additional capital cost of new accommodation set out in Roberts v. Johnstone [1989] 1 QB 878 is applied strictly using the new discount rate, a claimant purchasing more expensive accommodation as a result of his disability will have to pay damages to the defendant... |
 FREE BOOK CHAPTER: An Introduction to Housing Disrepair and Cavity Wall Claims (From 'A Practical Guide to Running Housing Disrepair and Cavity Wall Claims' by Andrew Mckie, Ian Skeate, Simon Redfearn) The 23rd February 2017 was a day that will stick in the mind of many Personal Injury Lawyers - the day we found out that the small claims track would increase for RTA claims from 1st October 2018 and the limit would increase to £2,000 for EL/PL claims. For those who work in an RTA firm, these changes are dramatic and will likely mean it is very difficult for RTA Lawyers to run a practice beyond October 2018, without diversifying into new areas of law... |
 RE v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB) - Vanessa Cashman, 12 King's Bench Walk In this case, the infant claimant had suffered a brain injury during her protracted birth in 2011. She was a very large baby and suffered (the claimants argued) a shoulder dystocia, meaning that her shoulders got stuck in the birth canal. As a result of this she suffered a hypoxic insult to her brain. The two other claimants were her mother and grandmother, who sustained psychiatric injury as a result of the birth... |
 FREE BOOK CHAPTER: What Is Pain? (From 'A Practical Guide to Chronic Pain Claims' by Pankaj Madan) There is no unanimity on the definition of "pain" but the consensus of medical opinion uses this IASP definition. Until 1979 there was no published definition. The key to understanding the definition is to note that firstly, whilst most patients with pain had tissue damage, the definition embodied the patients who had no identifiable tissue damage but nevertheless experienced pain... |
| Material Contribution in Cases of Psychiatric Injury - Richard Johnson, Browne Jacobson The difficulty of raising causation arguments when defending claims for psychiatric injury was exemplified by the case of, Diane Jennifer Kennedy v London Ambulance Service NHS Trust (LAS) 2016 QBD... |
 Cyclist Death on Tram Tracks: An Accident Waiting to Happen? - Caroline Kelly, Thorntons Law I was saddened to read the news of a 24 year old cyclist being killed in Edinburgh city centre after the wheels of her bike became stuck in the tram tracks, causing her to fall into the path of a minibus. My sympathy lies not only with the family of the cyclist but also with the driver of the minibus who is understandably distressed at the incident... |
| What Duty Is Owed To Patients By Non-Medical Hospital Staff? - Kay Ditcham, Tilly Bailey & Irvine There is no doubt that the NHS is under a great deal of pressure. Accident and Emergency Departments all over the country handle large volumes of injured patients every day and they are of course under a duty to prioritise the needs of those people. It is estimated that around 450,000 people visit A&E Departments in England every week... |
 When Diabetic Amputations Are Avoidable: Lessons From the Reported Cases - Paul Sankey, Enable Law With diabetes increasing, more patients are likely to need amputations. Good preventative care is crucial. Unfortunately medical mistakes sometimes lead to amputations, a situation which is familiar to clinical negligence practitioners. So where are the risks and why do things go wrong? The reported cases give an indication... |
 Editorial: Civil Procedure Wish List - Aidan Ellis, Temple Garden Chambers If you could change any of the Civil Procedure Rules, which ones would you amend (or remove altogether)? I'm sure many readers will have their own suggestions for relatively minor tweaks which could enhance the clarity or fairness of the Rules. Here are two of my suggestions, prompted by situations that arise relatively frequently in civil litigation... |
 An Interesting Fixed Costs Case - Anna Macey, Kings Chambers (Prescott -v- THE TRUSTEES OF THE PENCARROW 2012 MAINTENANCE FUND Defendant). On the 27 October 2015, the claimant Logan Prescott, a minor, was a passenger in a car being driven by his mother. The car collided with a tree that fell on to the highway. The tree was owned by The Trustees of the Pencarrow 2012 Maintenance Fund, the defendants. The claim was settled for £1000, which was approved at an infant approval hearing on 7th October 2016... |
 Fundamental Dishonesty: Blind Men and Elephants? - Patrick West, St John's Chambers 'Me I'm dishonest, and a dishonest man you can always trust to be dishonest. Honestly it's the honest ones you have to watch out for, you never can predict if they're going to do something incredibly stupid' - Jack Sparrow, Pirates of the Caribbean. Joking apart, Johnny Depp's line rings true when it comes to QOCS cases and fundamental dishonesty. These cases come in two varieties... |
 Historic Abuse Claims: When Is Late Too Late? - Paul Donnelly & Samantha Chambers, DWF LLP Six reported cases in three months give clear judicial guidance on when the court should/should not disapply the limitation period... |
 Wilkinson Lives on in Crawley! (A Highway Authorities Lack of Resources Is Still Irrelevant to a Section 58 Defence) - Ian Pennock, Park Lane Plowden Chambers The recent case of Crawley-v-Barnsley Metropolitan Borough Council [2017] EWCA Civ 36 confirms three main points established in the case of Wilkinson-v-City of York Council [2011] EWCA Civ 207 which has caused highway authorities difficulties because... |
 Nervous Shock Following Birth - Anna Macey, Kings Chambers (RE and others v Calderdale and Huddersfield NHS Trust). This case arose out of a claim for clinical negligence following the birth of a baby, RE, who suffered an acute profound profound hypoxic ischaemic insult immediately prior to and after her delivery, on 22 April 2011... |
 Living Mesothelioma Claim: Damages Assessed in Life, and More to Follow After Death - Dominic Collingwood, DWF LLP Andreou v S Booth Horrocks & Sons Limited, High Court (QBD), 13 January 2017. The recent decision of Judge Walden-Smith highlights the difficult task facing the judiciary in assessing the damages payable to a claimant unfortunate enough to have the terminal asbestos related disease mesothelioma... |
 Caution Required on Ringfencing Property From Care Fees - Justin Patten, Human Law The issue of care fees was topical in the general election Irrespective of the future direction of the Conservative minority administration families across the country will continue to be concerned about their liability for care fees. Here are some questions and answers on liability for care fees and how to protect your family's inheritance... |
| Summary of Recent Cases, June 2017 Here is a summary of the recent notable court cases over the past month... |
PI Practitioner, June 2017 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Unreasonable behaviour in the Small Claims Track... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Short notes on Peripheral Vascular Disease (PVD) 2017 - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving Peripheral Vascular disease... |
Why is a Generalist an Expert? 2017 - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains how generalist experts use an alternative to the medical model to explain complex cases to the court... |
May 2017 Contents
 Welcome to the May 2017 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 Editorial: Further Thoughts on Fundamental Dishonesty - Aidan Ellis, Temple Garden Chambers In claims to which qualified one way costs shifting applies (now the vast majority of personal injury claims though some older cases still remain), it is often the issue of fundamental dishonesty in CPR 44.16 which determines whether or not the Defendant can enforce an order for its costs against the Claimant... |
 FREE BOOK CHAPTER: Historical Background to the Present Legislation (From 'A Practical Guide to Claims Arising from Fatal Accidents' by James Patience) In this chapter the development of the current statutory framework for damages for wrongful death is examined. The current statutory framework is summarised. ... |
 FREE BOOK CHAPTER: An Introduction to Personal Injury Litigation (From 'An Introduction to Personal Injury Law' by David Boyle) Personal injury law is ubiquitous. Whilst only a tiny fraction of day to day legal practice in this country, it differs markedly from other areas of law because those engaged in this sort of law often work on an industrial scale, even though most individual clients only have one claim and might reasonably hope to receive a bespoke service. The advent of cold calling, advertising, and publicity from, amongst other sources, the insurance industry itself, has ensured that people are more aware than ever of the possibility of claiming compensation for injuries suffered as a result of somebody else's wrongdoing... |
 The Law of Unintended Consequences (or Determining Applicable Law in Cross-Border Cases) - Kelvin Farmander, Trethowans LLP & FOIL The recent decision in Marshall v MIB (1) Pickard (2) Generali (3) 2017 provides a useful example of how the rules governing which laws apply in cross border personal injury cases can potentially give rise to unintended consequences... |
 The Journey Continues - Henrietta Hughes, Farrar's Building In Mohamud v William Morrison Supermarkets Plc [2016] AC 677, the Supreme Court declined the opportunity to broaden the test for vicarious liability. Fletcher v Chancery Supplies Ltd [2016] EWCA Civ 1112, a case involving a collision, sees the application of Mohamud... |
'Pure Diagnosis' and 'Pure Treatment': A case considering whether the Bolam principle is applicable across the spectrum of Clinical Negligence cases - Penny Fitzpatrick & Marianne Walker, Slater and Gordon In the recent case of Desmond Muller v Kings College Hospital NHS Foundation Trust the key question to be answered was whether the test in Bolam should be applied to a case where the sole issue of breach of duty was a misdiagnosis... |
 Fresh Consideration of How Discount Rate Is Set Is a Post-Election Priority - Shirley Denyer, Shirley Denyer LLP & FOIL Since the Lord Chancellor announced a change to the discount rate on 27 February, the Government has also triggered Article 50 and announced a general election. Whilst these events may have eclipsed the Lord Chancellor's decision in the headlines, the effect of such a significant rate change is still being felt by insurers, compensators and the public sector - and given the delay in Parliamentary activity brought about by the general election - will be felt for some time yet... |
 The Costs Conundrum: Access to Justice but at What Price? - Elizabeth O'Mahony, BL Claims Solicitors As medical negligence Claimant lawyers gradually get accustomed to corresponding with NHS Resolution, leaving the phonetic NHSLA to one side, I found myself wondering what was the purpose of the rebranding exercise... |
 The Optimistic Surgeon and the Unhappy Patient: Lessons from the Courtroom - Paul Sankey, Foot Anstey LLP When an optimistic surgeon met an unhappy patient in court, it was the patient who had the judge's sympathy. The story has lessons for all surgeons. The courts now expect much more when it comes to advice and the case of Thefault v Johnson is an example... |
 What Is 'Unreasonable Behaviour' for the Purposes of Small Claims Track Costs? - Thomas Crockett, 1 Chancery Lane If the most recently mooted Government reforms as to the financial limit of the Small Claims Track of the County Court go through, litigants will increasingly find themselves litigating within a regime with extremely tight strictures as to the recoverability of litigation costs. As all with experience of such cases will know, there is an exception per CPR 27.14(2)(g) to the effect that further costs may be assessed summarily in cases where one or other party has behaved "unreasonably"... whatever that means... |
 How To Deal With A Hardline Negotiator - Justin Patten, Human Law According to media reports, The EU's chief negotiator has admitted to a clash with Theresa May during last month's dinner in Downing Street and warned that the size of the multibillion pound bill the British government will be presented on leaving the bloc will be 'incontestable'... |
Summary of Recent Cases, May 2017 Here is a summary of the recent notable court cases over the past month... |
| PI Practitioner, May 2017 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Why do litigants instruct solicitors? Is peace of mind one of their main objectives? It seems the answer is 'possibly'.... |
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| An Update from North of the Border, Edited by John Wilson, Brodies LLP | |
 Contributory Negligence Discount of 96.5% in First Sheriff Court Jury Trial - Catriona Hepburn & John Wilson, Brodies LLP Scotland's County Court, the Sheriff Court, has recently seen the reintroduction of jury trials in civil cases. The 2015 legislation creating the specialised All-Scotland Sheriff Personal Injury Court (ASPIC) brought back the use of juries for the first time since 1980. The first trial implementing this new option was heard earlier this month... |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No 14: Uncertainty in Judicial Decision Making: A Case to Answer? - Dr Hugh Koch, Dr Elizabeth Boyd, Dr Tracy Thorns & Dr Louise Payne, Hugh Koch Associates Ludlow vs National Power PLC (2000) EWCA Civ. 289. This interesting and complex case involved an appeal by the claimant against the decision about evidence and quantum of the judgment made (1999). The substance of the case was a work accident in which the claimant was thrown forward on a pay-load (motorised shovel). The psychological/psychiatric problems were the subject of the appeal based on, allegedly, insufficient reason for rejecting this head of damages... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
| Short Notes on Deafness 2017 - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving deafness.... |
Short Notes on NSAIDs - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving non steroidal anti-inflammatory drugs... |
 Short Notes on Breast Cancer 2017 - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving breast cancer... |
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April 2017 Contents
 Welcome to the April 2017 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles, April 2017 | |
 UK Personal Injury Reform and New Ogden Rates Go Into Law - Jacob Maslow, LegalScoops.com Personal injury reform in the United Kingdom is changing at a rapid pace. A long way back, in 1995, there was no advertising or referral fees for legal services. No win, no fee cases led to lawyers fronting the risk of losing a claim... |
 Deregulation of Health and Safety Law for the Self-Employed - Matthew Hodson, Farrar's Building The Health and Safety at Work etc. Act 1974 ('HSWA') has been amended by: The Deregulation Act 2015, which came into force on 26th March 2015; and, The Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015, which came into force on 1st October 2015 ('the Regulations')... |
 Criminal Injuries Compensation: Time for Change - Neil Sugarman, Neil Sugarman, President of APIL The first ever scheme to compensate victims of violent crime in Great Britain was launched in 1964. It was an ex gratia scheme provided by the government of the day and followed ten years of political lobbying by justice campaigners such as Margaret Fry, who was determined to ensure that innocent victims were properly compensated... |
Comment on the Consultation, Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims - Agata Usewicz, Hodge Jones & Allen News that the Department of Health's long-awaited consultation Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims will close on 2 May this year was met with considerable frustration by those working in the field of clinical negligence, not least because the consultation will close before the National Audit Office's (NAO) investigation into the operations and efficiencies of NHS Resolution (formerly known as the NHSLA) will report its findings... |
 Editorial: Parenting and Personal Injury - Aidan Ellis, Temple Garden Chambers Confronted by bad weather and overly energetic children, I recently gave in and took my family to an indoor soft play centre. Once inside, it transpired that many parents had had the same idea. It was full of adults sipping coffees whilst children swarmed and rampaged over the soft play equipment. I soon had the opportunity to take a closer look at the chaos because my daughter habitually gets stuck on the highest and furthest away section of soft play equipment... |
 Third Parties (Rights Against Insurers) Act 2010: Winners and Losers - Marlene Henderson, Browne Jacobson LLP The Third Parties (Rights against Insurers) Act 2010 ("2010 Act") which came into force on 1 August 2016 is a clear victory for claimants wishing to pursue claims against insurers of dissolved companies or insolvent individuals. The 2010 Act is intended to resolve the problems which were encountered with the application of the Third Parties (Rights against Insurers) Act 1930 ("1930 Act")... |
 Mcgeer v Macintosh: Lethal Weapon 6? - Charles Feeney, Complete Counsel In McGeer v Macintosh (2017 EWCA Civ.79), the Defendant's appeals both against primary liability and the assessment of contributory negligence risen from a road traffic accident involving an HGV and a cyclist were both dismissed. Having rejected the Defendant's appeal on primary liability, Lord Justice Treacy considered the question of apportionment. Notwithstanding that the Claimant had cycled to the nearside of the Defendants' vehicle when it had been... |
 How Will the New Motor Insurers Bureau Agreements Affect Motor Claims in the UK? - Michelle Reilly, Hill Dickinson LLP The Motor Insurers Bureau has released a new Untraced Drivers Agreement 2017 and a Supplementary Agreement to the Uninsured Drivers Agreement 2015. Both apply to accidents that occurred on or after 1st March 2017. Michelle Reilly takes a look at the new agreements and considers how they will affect motor claims in the UK... |
 Payment of the Incorrect Court Fee; Does It Give Rise to a Limitation Defence? (Answer: Almost Certainly Not) - Andrew Roy, 12 King's Bench Walk Wells v Wood, Lincoln County Court, HHJ Godsmark QC 9 December 2016, 2016 WL 07330089... |
Consent to Medical Treatment: Must the Surgeon Advise Who Will Operate? Can the Patient Choose? - Paul Sankey, Foot Anstey LLP Does a patient have a right to choose who will carry out their operation? Is her consent to treatment valid if there is a late change of surgeon? These are questions which have caused concern to many medical professionals following the decision in Kathleen Jones v Royal Devon & Exeter NHS Foundation Trust in September 2015. That decision is one of several in the wake of the landmark Supreme Court decision in Montgomery v Lanarkshire Health, which redefined a doctor's duty in advising and obtaining consent to treatment... |
| Court of Appeal in Sharp v Leeds CC Decides Fixed Costs 'plainly apply to the costs of a PAD application' in Ex-Protocol Cases - Marcus Coates-Walker, St John's Chambers In the case of Sharp v Leeds City Council [2017] EWCA Civ 33 the Court of Appeal (COA) determined a "short but important point" in relation to pre-action disclosure (PAD) application costs, which are ordinarily governed by the general rule and exceptions in CPR 46.1(2) and (3)... |
Thoughts on the Discount Rate Review - Nicola Bickham, Veale Wasbrough Vizards Claimant personal injury lawyers welcomed the announcement made by the Lord Chancellor, Liz Truss, that the way future losses in personal injury claims will be calculated has been changed to reflect the current return on investments. The last time a review took place was in 2001... |
 Critical Time Ahead for PI Firms - Lesley Graves, Citadel Law With reform firmly on the horizon, firms need to take a critical look at the profitability of their personal injury work and consider a radical shake up, advises Lesley Graves... |
Bolam Under Attack: Muller v Kings College Hospital and Webster v Burton Hospitals - David Sanderson, 12 King's Bench Walk Two judgments handed down recently explore the boundaries of the Bolam principle and limit its application. In the first, Kerr J doubted that Bolam was apposite where the court is concerned, not with a choice between two courses of treatment, but instead with a missed diagnosis. In the second, the Court of Appeal rejected the judge's application of Bolam, in circumstances where a patient had been entitled to information about risks before deciding between treatment options... |
| Summary of Recent Cases, April 2017 Here is a summary of the recent notable court cases over the past month... |
PI Practitioner, April 2017 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: McBride v UK Insurance Ltd and Clayton v EUI Trading Ltd [2017] EWCA Civ 144... |
| Using Mathematics in Loss of a Chance Cases - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains how mathematics can improve consistency and fairness in Loss of a Chance cases... |
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| An Update from North of the Border, Edited by John Wilson, Brodies LLP | |
 Sanction for Counsel Allowed on Appeal - Cumming v SSE Plc - Catriona Hepburn, Brodies LLP In the Sheriff Court (Scotland's County Court) parties will not automatically recover the cost of counsel and must instead seek approval, or sanction, from the Sheriff. This case was an appeal against the sheriff's decision to approve the pursuer's (claimant's) use of counsel. Despite the case settling for just £9,175 the Sheriff Appeal Court upheld the Sheriff's decision that the use of counsel was reasonable... |
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![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
