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March 2017 Contents
 Welcome to the March 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 | |
 FREE BOOK CHAPTER: Current Vehicles, Current Law (From 'The Law of Driverless Cars: An Introduction' by Alex Glassbrook) Chapter One from the UK's first book on the law of driverless cars - Motor vehicles are now almost always under the control of a human driver when in motion. The current exceptions are devices like cruise control and parking assist, which temporarily take control of one or more functions of the vehicle. But the driver must be able to take control of the vehicle while those functions are in use... |
 Editorial: Seeing Negatives in the Discount Rate - Aidan Ellis, Temple Garden Chambers No personal injury lawyer will be unaware that on 27 February 2017, the Lord Chancellor lowered the discount rate from 2.5% to -0.75%. It was a dramatic change and immediately had a polarising effect. Insurers denounced the reduction as 'crazy' and began calculating what cost they could pass on to consumers... |
 FREE BOOK SAMPLE: The Package Travel, Package Holidays and Package Tours Regulations 1992 - What is a Package? - Telephone Bookings (From 'A Practical Guide to Claims Arising From Accidents Abroad and Travel Claims' by Andrew Mckie & Ian Skeate) One of the key matters that will always need to be looked at in accident abroad claims, is whether the 1992 Regulations apply or not. This Chapter deals with bookings made by telephone and in a face to face meeting at the office of the tour operator / travel agents... |
 Late Acceptance of Part 36 Offers: Do Fixed Costs Apply? - Tom Collins, 1 Chancery Lane It's a little over a year now since the Court of Appeal gave judgment in Broadhurst v Tan, a decision which dramatically raised the stakes in fixed cost EL/PL and RTA cases where Part 36 offers are in play... |
 Late-Acceptance of Part 36 Offers: Do Fixed Costs Apply? - Tom Collins, 1 Chancery Lane It's a little over a year now since the Court of Appeal gave judgment in Broadhurst v Tan, a decision which dramatically raised the stakes in fixed cost EL/PL and RTA cases where Part 36 offers are in play. Practitioners in this area will be very familiar with the case... |
 The Eagle Has Landed! Coffee, Croissants and Counter Schedules - Simon Readhead QC, 1 Chancery Lane How much do you spend on lunch? The answer for the average Briton is £53,844 during their working lives. Across a 40 year career another £40,128 goes on other workplace costs including coffees, teas, colleagues' birthdays and work nights out... |
 Football and Historic Sexual Abuse: The Approach to Quantum - Francesca O'Niell, 1 Chancery Lane The news has been bleak and unrelenting: the scandal of historic child sexual abuse continues to fill the headlines. It seems as if no sector of society has been unaffected by this blight, but the news emanating from some (major) football clubs may be particularly difficult for the courts to deal with... |
 Long Awaited Move Towards Fixed Costs in Clinical Negligence Claims Suggests New Ways of Reducing Costs in Other Types of Lower Value Claims - Simon Denyer, DWF LLP It is right for insurers to look for likely impacts on costs issues affecting the handling of lower value injury and non-injury claims from the publication yesterday by the Department of Health of their consultation 'Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims'. We can see from... |
 Courts Demonstrate a Reluctance to Extend the Concept of Vicarious Liability in Two Important Decisions in the High Court and Court of Appeal - Liz Harrison, DWF LLP Following on from the Supreme Court's decision earlier this year in Mohamud v WM Morrison Supermarkets Plc, the High Court and the Court of Appeal have introduced some balance to the concept of vicarious liability. They have recognised the need to avoid... |
 Court of Appeal Holds That Defendants May Owe a Duty to Safeguard Their Employees' Reputations When Conducting Litigation - Andrew Warnock QC, 1 Chancery Lane In a remarkable decision with far reaching implications, the Court of Appeal held that the Metropolitan Police Commissioner had arguably owed and breached a duty of care to police officers when he settled a claim a brought against him, vicariously, for an assault allegedly perpetrated by those officers (see James-Bowen v Commissioner of Police for the Metropolis [2016] EWCA Civ 1217)... |
 Nice Try - Colin Vickers, DWF LLP Two claimants who made personal injury claims after a low speed road traffic collision near the Houses of Parliament had their claims dismissed and were found to be fundamentally dishonest. The defendants relied heavily on Sky Sports footage showing both claimants being coached by former international rugby union players Will Greenwood and Scott Quinnell, and playing rugby, at a time when they both claimed to be injured... |
 Compensation for Tree Root Damage: A Different Approach - Gabriel Fay, DWF LLP We are all familiar with actions in nuisance for injunctions and damages in respect of alleged tree root subsidence. In this latest article for local authorities, Gabriel Fay looks at an interesting recent case, Burge & Anor v South Gloucestershire Council, where instead of following this... |
 What Are The Wrong Times To Mediate On A Case - Justin Patten, Human Law What are the dangers of mediation and when should you not mediate? People like me who mediate like to think of the virtues of mediating, but when does mediation not work? Here are nine reasons not to mediate... |
 Summary of Recent Cases, March 2017 Here is a summary of the recent notable court cases over the past month... |
 PI Practitioner, March 2017 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Failure to attend trial (CPR 39.3)... |
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| An Update from North of the Border, Edited by John Wilson, Brodies LLP | |
 An Update From North of the Border: Pursuers' Offers Arrive in Scotland on 3 April 2017 - Douglas McGregor, Brodies LLP Parties litigating regularly in England & Wales will be very familiar with the ability of both claimants and defendants to seek to protect their respective positions by use of a Part 36 offer. A change in the Scottish rules of court will introduce "pursuers' offers" from 3 April. What will that mean for defenders and insurers in Scottish claims?... |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No 13: Reliability of Evidence - Dr Hugh Koch, Dr Tabatha Kon & Dr Tracey Jackson, Hugh Koch Associates Three cases are summarised below, all of which illustrate the difficulty in obtaining reliable evidence... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 Mckenzie Friends: Improving Access to Justice in Clinical Negligence 2017 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP considers the expert's duty to the court when instructed by a Litigant in Person (LIP) assisted by a McKenzie friend... |
 Short Notes on Appendicitis 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 appendicitis... |
| Book Reviews | |
 Book Review: 'Proof of Causation in Tort Law (2015)' by Sandy Steel, Cambridge Studies in International and Comparative Law Review by Dr Hugh Koch, Hugh Koch Associates |
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February 2017 Contents
 Welcome to the February 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 | |
 Hutton and others v CICA: Review of the UT's judicial review jurisdiction and out of time applications in criminal injury compensation claims - Owain Thomas QC, One Crown Office Row Hutton and others v Criminal Injuries Compensation Authority [2016] EWCA Civ 1305. A claim for criminal injuries compensation was brought almost 40 years out of time. CICA refused to waive the time limit, and the claimants appealed. Following a complex procedural history, the matter came before the Court of Appeal, which upheld the First-Tier Tribunal's decision in CICA's favour. The judgment of Gross LJ reviewed the Upper Tribunal's judicial review function in such cases, and considered the issues engaged by historical CICA claims... |
 FREE BOOK CHAPTER: Local Authority Services (From 'A Practical Guide to Personal Injury Trusts' by Alan Robinson) Under Section 9 of the Care Act 2014, local authorities in England are legally obliged to assess anyone who comes to their notice as being potentially in need of care and support due to a physical or mental impairment. This is the case irrespective of whether the authority thinks it is likely that the person will or will not qualify for any care and support, and also irrespective of the person's financial situation (section...) |
 How Not to Litigate in Catastrophic Personal Injury Claims - Bill Braithwaite QC, Head of Exchange Chambers Of course, one strong view is that you shouldn't litigate at all in major personal injury claims - ADR is so much more flexible, and allows the parties to control the process. However, some cases do seem to come to court, and I had a recent court experience - my first for a long time because, although I finalise about £50 million of claims a year, I rarely need to seek the court's help... |
 Emergency Care and Material Contribution in Dr Sido John v Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust - Katherine Galza, Kingsley Napley LLP This case began with Dr John sustaining a serious brain injury having fallen down the stairs to his flat. He remained in an unconscious state for some time before he was reached by paramedics, and when arriving at A&E he presented with a low GCS reading... |
 FREE BOOK CHAPTER: The Pre-Action Protocols (From 'A Practical Guide to Alternative Dispute Resolution in Personal Injury Claims: Getting the Most Out of ADR Post-Jackson' by Peter Causton, Nichola Evans, James Arrowsmith) The 6th April 2015 saw the introduction of new protocols for personal injury and clinical negligence claims dovetailing with increases in Court fees. The terms of the updated protocols are important for practitioners, whether acting for claimants or defendants, as there are some important changes and the protocols now have added "teeth"... |
 Wilkinson lives on in Crawley! - Ian Pennock, Park Lane Plowden Chambers The case of Wilkinson-v-City of York Council [2011] EWCA Civ 207 has rightly caused highway authorities difficulties in highway cases because it not only made a lack of resources irrelevant in considering a highway authority's section 58 defence. But also... |
 Harris v Miller - Victoria Brown, Pupil, Outer Temple Chambers Harris v Miller is one of the rare examples of successfully establishing negligence following a horsing accident. Such cases are notoriously difficult to win; the risk of injury being viewed by many as inherent in riding... |
 FREE BOOK CHAPTER: Liability of the Player to Spectator and Third Parties (From 'A Practical Guide to Personal Injuries in Sport' by Adam Walker & Patricia Leonard) In this section consideration is given to the circumstances in which a participant in a sporting event may be held liable to a spectator injured while attending an event. Such claims are commonly framed in negligence, with the operative allegation being that the participant failed to take reasonable care for the safety of the spectator rather than in trespass to the person... |
 Editorial: Statutory Damages for Injuries from Vaccinations - Aidan Ellis, Temple Garden Chambers An interesting recent case involving narcolepsy and the swine flu vaccine, Secretary of State for Work and Pensions v FG (on behalf of John) [2017] EWCA Civ 61, drew my attention to the Vaccine Damage Payments Act 1979. Provided certain conditions are met, that statute allows an individual who sustains a sufficiently severe injury following a vaccination to claim a lump sum payment from the government... |
 Navigating the Minefield: Claims in the Employment Tribunal, County Court and Abuse of Process - Liam Ryan, Ely Place Chambers Liam Ryan explores the recent decision of Manda v USB AG and how the doctrine of abuse of process can apply to Claimants who bring claims in the Employment Tribunal, and subsequent proceedings in the County or High Court for Stress at Work. He considers not only the pitfalls and dangers that can be created, but how they can be avoided... |
 FREE BOOK CHAPTER: The Severity of a Traumatic Brain Injury (From 'A Practical Guide to Subtle Brain Injury Claims' by Pankaj Madan) One Scale used to assess consciousness is called the Glasgow Coma Scale which is abbreviated in notes to ("GCS"). This is the most extensively used system for assessing the level of consciousness. The scale is based on the motor (M) verbal (V) and eye-opening (E) responses of the patient and is used to classify injury as "minor", "moderate" or "severe". The scale does not go to 0. The minimum score representing complete unconsciousness is 3. Traditional thinking is as follows... |
 Hetherington v The Trustees Thornberry Animal Sanctuary - Andrea Ribchester-Hodgson & Sarah Wright, Spencers Solicitors On 14 December 2013, H attended a jumble sale that was being held at the Defendant's animal sanctuary. He was a regular visitor and attended the jumble sale every week, but on the day of the accident was not familiar with most of the staff helping out... |
 Wood v TUI - Food poisoning in the Court of Appeal - Jack Harding, 1 Chancery Lane The Court of Appeal handed down judgment on 16th January 2017 in in Wood v TUI Travel PLC (2017) EWCA Civ 11, the first appellate authority on the liability of travel companies for gastric illness caused by alleged food poisoning... |
 Case Summary: C v Toma (D) - Emma Melia, Spencers Solicitors The Claimant 'E', aged 35 at the time of the accident, was injured after falling from a horse. E had attended 40-50 riding lessons over a 2 year period but was a still novice rider with little riding confidence. E had never been taught how to gallop... |
 Date of Knowledge and Limitation: Lewin v Glaxo, Case Report - Thomas Crockett, 1 Chancery Lane In cases concerning an allegation of bodily injury, time for the purposes of statutory limitation does not begin to run until the cause of action accrues or the date of knowledge of the alleged victim. The latter may be some months or years after the effluxion of the usual three year limitation period from the accrual of the cause of action. However it is rarely decades as it was in a recent case in the Queen's Bench Division... |
Summary of Recent Cases, February 2017 Here is a summary of the recent notable court cases over the past month... |
 How to Measure Function: Disability Analysis Provides the Answer to Over Complicated Reports - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP shows how disability analysis can provide better answers to the questions raised in occupational health and high value personal injury cases... |
PI Practitioner, February 2017 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Credit hire at stage 3... |
| An Update from North of the Border, Edited by John Wilson, Brodies LLP | |
 An Update From North of the Border: Scottish Courts Continue to Take an Increasingly Strict Approach - Charlotte Edgar, Brodies LLP The Update this month focuses on two decisions that show that Scottish courts continue to take an increasingly strict approach. The first considers a refusal to set aside a default judgement; and very much serves as a warning to insurers and other large organisations. The latter deals with pre-litigation admissions, in the context of extending the period of limitation. The position looks to be quite different to the position in England & Wales, where my experience is that extensions are more common... |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No 12: Expert Evidence: Flawed or Dismissed. Why? - Dr Hugh Koch, Dr Chrissie Robertson & Dr Michelle Potts, Hugh Koch Associates Three cases are briefly summarised in order to highlight and illustrate issues pertaining to the robustness of expert evidence. Each case illustrates some aspect of why evidence was rejected by the courts. The commentary explores lessons to be learnt... |
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January 2017 Contents
 Welcome to the January 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, January 2017 | |
 FREE BOOK CHAPTER: Why Get an Expert? (From 'On Experts: CPR35 for Lawyers and Experts' by David Boyle) Court cases normally involve the interaction of evidence, law and procedure, albeit that often one or more of those aspects withers on the vine. The legal and procedural aspects of the case should fall outwith this volume, which concentrates on evidential issues, although there are clearly circumstances where the expert's evidence actually pertains to legal or procedural matters... |
 X v Kuoni Travel Limited [2016] EWHC 3090 (Qb): Tour Operator Liability for Rape by Hotel Employee - William Audland QC, 12 King's Bench Walk William Audland QC of 12 King's Bench Walk and Gary Tweddle of MB Law represented the Defendant in this case where the Claimant, who was raped by an employee of a Sri Lankan Hotel, sued the Defendant tour operator that had organised the package holiday... |
 Fixed Costs Post-Portal Exit (aka 'Prexit') - Sarah Robson, Alpha Court Chambers Much has been written in the blogosphere about the two recent Court of Appeal cases on fixed costs post 'Prexit'; Terrence Bird v Acorn Group Ltd [2016] EWCA Civ 1096 and Qader v Esure [2016] EWCA Civ 1109. You would have to have been half asleep recently to not know that you can jump to the highest rate of fixed costs despite skipping allocation, and that you are not limited to fixed costs if your claim goes into the multi-track. What impact do these decisions have, though, for the everyday litigator?... |
 Treat the Man Not the Scan - Angelina M Rigby, Geldards The case of Dr Sido John v Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust [2016] EWHC 407 marks an important development in the law... |
 Vicarious Liability: The Close Connection Test is Alive and Well - Jonathan Dale, 18 St John Street Chambers In Fletcher v Chancery Supplies Limited [2016] EWCA Civ 1112 the Court of Appeal considered the issue of vicarious liability in a case in which the employee had not given evidence at the trial and none of the witnesses called at the trial knew why the employee was crossing a road when the accident occurred... |
 Court Confirms Part 36 Offers Reject Earlier Common Law Offers (but watch this space for the appeal) - Sarah Holland, Loney Stewart Holland LLP In DB UK Bank Limited (t/a DB Mortgages) -v- Jacobs Solicitors [2016] EWHC 1614 (Ch) the High Court ruled that making a Part 36 offer has the effect of rejecting an earlier common law offer, meaning it is no longer capable of acceptance... |
 O v Muller Wiseman Dairies, Quantum: EL Claim - Andrea Ribchester-Hodgson & Sarah Wright, Spencers Solicitors Accident date: 18/7/2010. Settlement date: 21/10/2015. Gross settlement: £235,000.00. The Claimant; Mr O, a 35 year old Maintenance Engineer employed by the Defendant, was carrying out maintenance work on a piece of machinery. There was insufficient space in the area of the machine to use a stepladder and he had to step down a 2 ½ foot drop. As he did so, Mr O lost his balance and fell onto his left ankle... |
 Challenge by The Criminal Injuries Compensation Authority to a First Tier Tribunal Decision to Re-Open a Case Closed by the CICB In 1997 - E A Gumbel QC - 1 Crown Office Row The Queen On The Application Of Criminal Injuries Compensation Authority V First-Tier Tribunal (Criminal Injuries Compensation) and MB (Interested Party) [2016] EWHC 2745 (Admin)... |
 Editorial: Constitutional Litigation - Aidan Ellis, Temple Garden Chambers Though not a personal injury claim, it would be churlish for this editorial to overlook the most important legal case of the month. In Miller v Secretary of State for exiting the European Union, the Supreme Court decided by majority that withdrawal from the treaties establishing the European Union required an Act of Parliament and could not lawfully be done by the executive alone... |
 Jackson in Action: Case Law - Marcus Davies, DWF LLP In our regular round up of cases we look at the effects of the changes to the Civil Procedure Rules under the Jackson Reforms... |
 Moving on, After Waiting for Godot - Jon Lang & Denise O'Connor, Independent Mediators Positive momentum. It's probably one of the best antidotes to procrastination, and often the difference between the parties resolving a commercial dispute at mediation and having to see each other in court. Are there particular circumstances which may merit co-mediation, with the clear objective of increasing the pace of that positive momentum?... |
 Review Announced of Discount Rate for PI Damages - Ian Miller, 1 Chancery Lane The Lord Chancellor has announced that the discount rate is to be reviewed and the result to be announced on 31st January 2017. The press release is instructive and is set out in full below... |
 Quantum Report: Float v Hedingham & District Omnibuses Ltd (2016) - Annie Bates, Express Solicitors The claimant, a 55 year old man, received £110,000 for a foot injury he sustained in December 2010 when he fell from a ladder in his place of work... |
 Adjudication: Will It Ever Be Flavour of the Month? - John Bennett and Will Graham, DWF LLP Adjudication has been a fixture in professional negligence disputes relating to construction since its introduction as a mandatory element of the pre-action protocol in 1996. Quick decisions, given by experienced professionals, obtained at a relatively low cost, have provided insurers with cost-efficient resolution for a significant number of such claims... |
 Managing Difficult Cases: The Embarrassed Claimant 2016 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP explains how to assess the disabling effects of embarrassment on capacity, consent and vulnerability... |
Summary of Recent Cases, January 2017 Here is a summary of the recent notable court cases over the past month... |
 Quantum Report: Walker V Fensome (2016) - Annie Bates, Express Solicitors The claimant, a 55 year old man, received £51,000 for a shoulder injury sustained in a road traffic accident in December 2012. His injuries improved however, he was left with an increased risk of re-rupture which rendered him at a disadvantage on the open labour market... |
 Jones v Kaney in Contract Law 2016 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP explains how new terms in Expert's contracts will import the ruling in Jones v Kaney (1) into personal injury work... sheet preview http://www.pibulj.com/content/law-journal-summaries/news-category-4/4021-jones-v-kaney-in-contract-law-2016-dr-mark-burgin |
| PI Practitioner, January 2017 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Excluding parties from court... |
 Range of Opinion in PI Prognosis 2016 - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains the theoretical approaches that underpin expert range of opinion with regards to soft tissue injury in Personal injury... |
December 2016 Contents
 Welcome to the December 2016 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles and take the CPD quiz. Please remember to fill in our quick feedback form after you have finished. CPD Quiz The PI Brief Update Law Journal (PIBULJ) is accredited by the Solicitors Regulation Authority (ref EGB/LBPL) and the Bar Standards Board (provider ID: 2177). The CPD is also valid for CILEx (formerly ILEX) members and for members of the Chartered Insurance Institute. The quiz can provide 1.5 hours of CPD under the hours system. See our CPD Info page for further details including recent changes to the CPD system. Please check with the relevant organisations for full details of their CPD rules. Take the CPD Quiz Feedback Form CPD Information
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| Personal Injury Articles | |
 FREE BOOK SAMPLE: Rates (From 'Ellis and Kevan on Credit Hire - 5th Edition' by Aidan Ellis & Tim Kevan) Disputes over the rate of hire reflect a fundamental dispute between the insurance and credit hire industries. Insurers have long complained that credit hire rates cost substantially more than the equivalent market rates. But the method of determining the 'equivalent' market rate has always been controversial. Moreover, credit hire companies argue that... |
There Are More Ways than One to Skin a Cat - Chris Booth Forbes Solicitors A finding of fundamental dishonesty is not the only way to have QOCS dis-applied. CPR 44.15 is lesser known and is often overlooked in favour of CPR 44.16, however it provides defendants with another line of attack to dis-apply QOCS. Chris Booth, Partner at Forbes solicitors, looks at the lessons from a recent case where CPR 44.15 was successfully utilised... |
 Jackson's Children: Recoverability of Success Fees in Child Claimant Cases - Jake Rowley, Farrar's Building With the implementation of the Jackson Reforms came a complete overhaul of the status and recoverability of success fees and ATE premiums. Gone were the days of presenting a bill at the Defendant's door for payment and instead, in its place was transplanted a new regime pursuant to which solicitors acting for claimants were to look to their own clients for repayment of those sums. Child claimant's, for whom special protective provisions exist in CPR Part 21, were no exception... |
 Editorial: Looking Ahead to 2017 - Aidan Ellis, Temple Garden Chambers As 2016 draws to a close, it feels more difficult than ever to make predictions for the year ahead. Politically, a period of uncertainty beckons. Although we know that Brexit negotiations will start next year, it seems wholly futile to try to guess what kind of deal might result. It is also too early to contemplate... |
 FREE BOOK CHAPTER: Understanding the Brain (From 'A Practical Guide to Subtle Brain Injury Claims' by Pankaj Madan) As an area of medicine, perhaps less than 5% of all there is to be known is in fact, known about the brain, how it operates and how it controls us and how it can deteriorate. Without this understanding brain injury is one of the most difficult areas of personal injury law... |
 The Many-Headed Hydra of Fraud - Catherine Burt & Kate Abraham, DAC Beachcroft Organised crime gangs, illegal and unethical practices in the claims industry, and a persistent compensation culture are all combining to create a costly problem for insurers that is to the ultimate detriment of policyholders... |
 FREE BOOK CHAPTER: Personal Injury Trusts: Overview and Preliminary Considerations (From 'A Practical Guide to Personal Injury Trusts' by Alan Robinson) Personal injury trusts were originally created as a response to the capital rule in means tested social security benefits. Put simply, this rule denies certain means tested benefits to those with capital in excess of a certain amount. This then creates a problem for the existing benefit claimant who receives a sum of capital, in that he or she will on the face of it be immediately deprived of access to his or her benefits... |
 The Portal, Fixed Costs and Claims on the Multi-Track - Andrew Spencer, 1 Chancery Lane Since the coming into force of the fixed costs regimes for road traffic accident, employer's liability, and public liability, it has been unclear whether fixed costs apply to a claim properly started in the Portal, but which ends up being allocated to the Multi-Track - for example because the case develops such that the case value exceeds £25,000... |
 Occupiers Liability and Highways Claims Converge - Jack Harding, 1 Chancery Lane In Edwards v London Borough of Sutton (2016) EWCA Civ 1005 McCombe LJ expressed the view that "not every accident (even if it has serious consequences) has to have been the fault of another; and an occupier is not an insurer against injuries sustained on his premises". That case involved a catastrophic injury caused by the claimant falling from a bridge... |
 Re-opening an RTA settlement: Case Overview - Emma Melia, Spencers Solicitors The Claimant was involved in a road traffic accident on 6th May 2012 and suffered injuries to his chest, ribs, thigh and lower back as a result of the accident. The Claimant was 48 years of age at the time and worked as a self employed floor layer... |
 FREE BOOK CHAPTER: What is ADR? (From 'A Practical Guide to Alternative Dispute Resolution in Personal Injury Claims: Getting the Most Out of ADR Post-Jackson' by Peter Causton, Nichola Evans, James Arrowsmith) ADR means Alternative Dispute Resolution. This is a term with a very wide definition and covers any form of dispute resolution, other than through Court process. Strictly speaking the term "alternative" may be something of a misnomer. Most forms of ADR are used hand in glove with either litigation or arbitration.ADR comes in a range of forms, as summarized below. Most of these forms of ADR are discussed in further detail later on in the book... |
 Qader v Esure: A Practical Guide to the Application of Fixed Costs and Associated Arguments - Matthew Hoe, Taylor Rose TTKW There has already been much commentary on Qader v Esure [2016] EWCA Civ 1109. The judgment is remarkable for re-writing an unambiguous rule. The results it generates are inconsistent. This note does not analyse those features, but is instead a purely practical guide... |
 Bird v Acorn Group Ltd [2016] EWCA Civ 1096: Recent Decision Offers Clarity On A 'Short But Important Point' - Andrew Cullen, Barrister The Court of Appeal decision in Bird v Acorn Group Ltd [2016] EWCA Civ 1096 centered on the question of whether a 10-minute disposal hearing amounted to listing the claim for trial when determining the level of fixed costs recoverable under CPR r.45.29E, Table 6D part B... |
 Unsticking the Stuck Clinical Negligence Case - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP explains how generalist expertise can unlock the most resistant cases of clinical negligence in secondary care... |
 Supreme Court Clarifies Applicable Law for Accidents Abroad Involving Uninsured Drivers - Sara-Jane Eaton, DWF LLP Unfortunately, road traffic accidents whilst abroad on holiday or on business are an all too common occurrence. Even more problematic are claims caused by untraced or uninsured drivers... |
 'Reforming the Soft Tissue Injury ('Whiplash') Claims Process': Access To Justice Thrown Out of the Window - Andrew Cullen, Barrister The Government's Consultation Paper, 'Reforming the Soft Tissue Injury ('whiplash') Claims Process', has sent seismic waves across the PI world, waves which will reverberate for years to come. In the forward to the Government's Consultation Paper, Lord Keen of Elie QC, opines that... |
 The Fall of Clinical Negligence - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains how the rise of clinical negligence in the UK will lead to a fall in the numbers of medical mistakes... |
Summary of Recent Cases, December 2016 Here is a summary of the recent notable court cases over the past month... |
| PI Practitioner, December 2016 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Disposal hearings and fixed costs... |
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| Book Reviews | |
 Book review: 'Legal Mind: Contemporary Issues in Psychological Injury and Law by Dr Hugh Koch' - Editorial This book is a detailed guide to some of the issues which can arise in relation to expert evidence with respect to psychological injury claims. It examines first diagnosis, treatment and prognosis and then moves on to... |
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November 2016 Contents
 Welcome to the November 2016 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles and take the CPD quiz. Please remember to fill in our quick feedback form after you have finished. CPD Quiz The PI Brief Update Law Journal (PIBULJ) is accredited by the Solicitors Regulation Authority (ref EGB/LBPL) and the Bar Standards Board (provider ID: 2177). The CPD is also valid for CILEx (formerly ILEX) members and for members of the Chartered Insurance Institute. The quiz can provide 1.5 hours of CPD under the hours system. See our CPD Info page for further details including recent changes to the CPD system. Please check with the relevant organisations for full details of their CPD rules. Take the CPD Quiz Feedback Form CPD Information
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| Personal Injury Articles | |
| FREE BOOK CHAPTER: Single Joint Experts (From 'On Experts: CPR35 for Lawyers and Experts' by David Boyle) CPR35.7 allows the court to direct that if two or more parties wish to submit expert evidence on a particular issue, that evidence should be given by a single joint expert. The court can decide who that expert should be, or how the identity of that expert should be decided, if the parties cannot agree on who should prepare that report... |
 FREE BOOK CHAPTER: Costs & Funding (From 'A Practical Approach to Clinical Negligence Post-Jackson' by Geoffrey Simpson-Scott) Improving results through avoiding ambiguity and adopting a planned approach to managing your caseload is one of the central themes of this book. This chapter considers why it is essential to get the funding options right at the start of the case in order to avoid fundamental cost recovery problems arising at the end of it. In so doing, it is helpful to consider the costs issues which are likely to arise during the case so that you can have the correct sort of evidence on file to either head off the problem(s) or persuasively deal with them as needed... |
 Qualified One Way Costs Shifting and CPR 36 - Matthew Rose, Clarion Solicitors Following the introduction of Qualified One Way Costs Shifting (QOCS), parties have begun seeking to find ways to try to recover their costs where they are not, on the face of it, recoverable. One of the methods currently being tried is to make a CPR 36 offer on the basis that beating a CPR 36 offer will entitle the defendant to all of its costs, assessed on the standard basis... |
 Albert Victor Carder v The University of Exeter (2016) Court Of Appeal - Richard Johnson, Browne Jacobson The background to the case was that Mr Carder, who was 87 years of age, suffered from asbestosis as a result of exposure to asbestos dust during four periods of employment as an electrician. The exposure period ranged from the 1950s to the 1980s... |
 FREE BOOK CHAPTER: Introduction to Enforceability (From 'Ellis and Kevan on Credit Hire, 5th Edition' by Aidan Ellis & Tim Kevan) The next chapters are devoted to the vexed question of whether a particular credit hire agreement is enforceable in the light of various statutory and common law issues, which in particular dictate the form of consumer credit agreements... |
 FREE BOOK CHAPTER: Liability of the Player to Other Players (From 'A Practical Guide to Personal Injuries in Sport' by Adam Walker & Patricia Leonard) This chapter considers the liability of the player or competitor to their fellow participants. It deals with general principles of liability in negligence with particular regard to the questions of duty of care and breach of duty, including discussion of the appropriate standard of care. The chapter goes on to consider a number of cases relevant to these questions and the circumstances in which liability has been established in the reported case law and in contrast, where it has not. Other potential heads of liability are then considered in turn, including liability for assault, in contract and in public and private nuisance... |
 PI Claims for Clients Who Receive Benefits - Philippa Barton, Hodge Jones & Allen From time to time, personal injury practitioners find they need to pass on interim payments or damages to clients who are receiving benefits. In these cases it is important to consider the effect this will have on a client's entitlement. If they receive means tested benefits or are likely to in the future, and/or receive social care paid for by social services, a failure to take account of this could mean an individual losing the right to those benefits and care... |
How Brexit Could Affect Personal Injury Claims - Nikolai Llewellyn, Hugh James Many of our clients would be forgiven for being unaware of the sheer amount of EU-based regulations and directives that UK lawyers utilise when assisting clients to pursue personal injury claims. In this article I consider how a 'Brexit' could affect a UK citizen's ability to make a personal injury claim... |
 Editorial: Consultation on Soft Tissue Injuries in RTAs - Aidan Ellis, Temple Garden Chambers Earlier this month, the Ministry of Justice announced a consultation process on its long awaited scheme to reduce the burden of whiplash cases. It includes a largely predictable package of measures including reducing or removing compensation for minor soft tissue injuries and increasing the small claims limit. The plan is clearly to eliminate or substantially reduce the incidence or value of "minor" personal injury claims. Apparently, insurers have pledged to pass the anticipated savings onto consumers and so we can all look forward to a £40 reduction in our car insurance premiums as a result. Looking beyond the headlines, readers may be interested in the detail of the proposals... |
 An Important Judgment for Local Authorities, Other Occupiers and Their Insurers - Perry Hill & Fiona James, DWF LLP Edwards v London Borough of Sutton, Court of Appeal 12.10.16. In this important judgment for local authorities, other occupiers and their insurers, the Court of Appeal allowed London Borough of Sutton's appeal against a finding of primary liability for its failure to "warn or prohibit the use of a bridge" in a public park after the claimant lost his balance and fell into the stream below, suffering serious spinal injuries... |
| Court of Appeal Judgment in Bird v Acorn Group - Matthew Hoe, Taylor Rose TTKW The Court of Appeal has handed down judgment in Bird v Acorn Group. Thousands of cases that were stayed for the appeal can now be resolved. The appeal was resolved in favour of the claimants. The appeal concerned the long-running dispute about the applicable fixed costs formula for claims that settle ahead of a disposal hearing. The specific circumstances are... |
 Finding Other People's Hands in Your Pockets: Fox & Ors. v McLoughlin & LV= - James Pinder, DWF LLP The bringing of contempt proceedings is a useful tool in an insurer's armoury and can prove to be a strong deterrent against those who attempt to bring fraudulent personal injury claims, especially those who are serial claimers. DWF Partner, James Pinder takes a brief look at how the threat of contempt proceedings in this case, in which he acted for LV= was enough to convince a group of individuals, who had dishonesty sought damages for personal injury to pay LV= £25,000 in damages and costs... |
 Calculating Loss of a Chance in Delayed Cancer Diagnosis - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP explains how life expectancy calculations can reduce the number of negative condition and prognosis reports... |
 Con-text: Hepburn v Jabreen and Royal and Sun Alliance Insurance Plc - Colin Vickers, DWF LLP A Claimant who saw her claim for personal injury and other losses struck out, also lost the protection afforded to her under QOCS on the basis that her conduct had obstructed the just disposal of proceedings and had abused the Court's process. In an attempt to bolster her claim, the Claimant had disclosed what she claimed was... |
 Kill the Conversation, Not an Innocent Person - Laura Reaney, Spencers Solicitors This is one subject that I can honestly say makes me feel very angry. I drive on our roads everyday and have done for many years now. Each time I do, I see at least one driver using a mobile phone whilst behind the wheel. Over the years, this practice has increased dramatically, probably due to the fact we now use our mobile phones much more than we ever used to, in particular for the internet and social media. This is despite the introduction of criminal sanctions for those caught doing it... |
 Enforcement of a Foreign Judgment: High Court Upholds Public Policy Defence - Helen Coates, DWF Helen Coates, who acted for the successful appellant in Laserpoint Ltd v Prime Minister of Malta & Others, looks at this rare example of the High Court in England upholding the public policy defence to prevent enforcement of a judgment of a court in another EU member state... |
| E v Moorwood Equine - Sarah Wright & Emma Melia, Spencers Solicitors The Claimant 'E', aged 35 at the time of the accident, was injured after falling from a horse. E had attended 40-50 riding lessons over a 2 year period but was a still novice rider with little riding confidence. E had never been taught how to gallop... |
McShane is Such a Shame! - Paul Stanton On 28th June 2016, DJ Peake gave an (unreported) decision in the case of McShane v Lincoln, which may have wide ranging consequences. A self-employed agent, who was not a solicitor, represented the Claimant at the MoJ Stage 3 hearing-arguing that he was an "exempt person" performing a reserved legal activity under the Legal Services Act 2007. The District Judge had to determine... |
| Summary of Recent Cases, November 2016 Here is a summary of the recent notable court cases over the past month... |
PI Practitioner, November 2016 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Fatal accident multipliers... |
| An Update from North of the Border, Edited by John Wilson & Lauren Pasi, Brodies LLP | |
 Quantification of Damages in High Value Cases: A Scottish Strategy - Charlotte Edgar, Brodies LLP Jill Clark v Greater Glasgow Health Board [2016] CSOH 126 concerns a young woman who suffered a catastrophic brain injury at birth. She alleged there had been negligent mismanagement of her mother's labour on the part of the doctors and midwives involved in her mother's care. Decree of absolvitor was pronounced by Lord Stewart, however he prepared a note to assist parties on the quantification of damages, if the case had been successful... |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
| Legal Mind Case and Commentary No 11: Material Contribution: Little or Large? - Dr Hugh Koch & Dr Chrissie Robertson, Hugh Koch Associates In a recent paper by Hardwicke (2016), a Judicial Committee of the Privy Council judgement was described which is potentially highly persuasive. The original case involved a man Mr. W who complained of abdominal pain. Following a delay in investigating his appendix ruptured and he developed complications... |
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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)
