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May 2016 Contents

Welcome to the May 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
Personal Injury Articles
Causation Disputes and Interim Payment Applications - Jennifer Danvers, Cloisters In Sellar-Elliott v Howling [2016] EWHC 443 (QB) permission to appeal against an interim payment order of £100,000 was refused in a clinical negligence case where causation was in dispute. This is an important case for clinical negligence practitioners dealing with such applications prior to exchange of medical evidence...	Case Note: Rai v Ministry of Defence; judgment of 9 May 2016; High Court (QB) Middlesbrough District Registry; HHJ Gargan - Philip Mead, Old Square Chambers Facts: employer's liability claim. Claimant suffered a head injury during the course of training when kicked by a horse. Accident happened in Alberta, Canada. The training course was conducted by a Canadian third party, under a contract for services governed by Alberta law, such services provided for the benefit of the Defendant...
Evidence and Interim Payment Applications - Edward Bishop QC, 1 Chancery Lane The High Court has given useful guidance (which serves as a warning) to defendants on their evidential obligations when defending applications for interim payments...	Editorial: Further Reflections on Fundamental Dishonesty - Aidan Ellis, Temple Garden Chambers It is well known that pursuant to QOWCS, the circumstances in which a Defendant can enforce its costs against an unsuccessful Claimant are limited. One exception applies if the Court concludes that the claim was fundamentally dishonest. But 'fundamental dishonesty' can be a difficult concept to pin down...
Top Tips on How to Avoid Missing a Subtle Brain Injury - Rose Gibson, Simpson Millar LLP As many law firms engaged in personal injury practice attempt streamline the lower value work, it is still vital that even junior staff are properly trained to spot the potentially more complex cases. This is even more important with subtle brain injury cases, as the signs can be hard to spot...	Compensation for Pleural Plaques - Andrew James, Hodge Jones & Allen LLP Pleural plaques are the most common manifestation of asbestos exposure and a form of scarring on the lining of the lungs. They appear as grey-white regions of tiny scar like structures on X ray or CT scan. They are benign and require no treatment...
Damages for Abuse - Roderick Abbott, 1 Chancery Lane The Claimant in KCR v The Scout Association [2016] EWHC 597 (QB) suffered sustained abuse by a Cub Scout Group Leader when a young boy in the 1980s. In 2003 the abuser was convicted of a large number of sexual offences against boys including the Claimant. As might be expected, given recent trends in this area of law, the Defendant admitted that it was vicariously liable for the abuser's actions...	Heneghan v Manchester Ship Canal; Heads I Win, Tails You Lose? - Charles Feeny & Sammy Nanneh, Contributing Editors at Pro-Vide Law Following the Fairchild decisions, Defendants and insurers feared the extension of the modified test of causation to lung cancer claims. This was a real concern because lung cancer, with its association with smoking, is a far more prevalent condition than mesothelioma...
Lord Justice Jackson Is Right: It's Time to Extend Fixed Costs - Duncan Rutter, President of the Forum of Insurance Lawyers Costs control in the civil justice system has proved a tough nut to crack. From Lord Evershed's inquiry into English procedural reform in the 1950s, through Lord Woolf's Access to Justice reforms in the 1990s, to Lord Justice Jackson's review of Civil Litigation Costs in 2009, the conclusion has been the same - the litigation process costs too much. The solutions, however, have proved less easy to identify and even harder to apply...	Cost Budgets: Rule Changes - Roderick Abbott, 1 Chancery Lane Changes to the CPR coming into force today alter the rules relating to cost budgets. In cases with a stated value of over £50,000 all parties except litigants in person will now exchange budgets 21 days before the first case management conference. Parties must then file an agreed "budget discussion report" at least 7 days before the first CMC setting out what is agreed, what not agreed, and brief grounds for the latter. The parties are encouraged, but not required, to use a new precedent ("Precedent R") for the purposes of the budget discussion report...
When a Doctor Cannot Go Back to Work: Examination of the Loss of Earnings Award - Gordon Exall, Zenith Chambers & Hardwicke There are some important matters considered in the decision of Mr Justice Picken in Dr Sido John -v- Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust [2016] EWHC 407 (QB)...	Closing the Door on Strict Liability: A New Erra of Realism in Workplace Claims - Steven Conway, Keystone Law With the passing of section 69 of the Enterprise and Regulatory Reform Act 2013 ("ERRA"), limitation will soon expire of most pre-Act cases, removing strict liability for breach of statutory duty. In this article, Steven Conway insurance litigation lawyer at Keystone Law examines the recent decision in Katie Cruz v Chief Constable of Lancashire [2016] EWCA Civ 402 and why it hopefully signals the dawn of a new age for workplace claims...
Changes to the Civil Procedure Rules Relating to Costs: April 2016 - Stephane Osborne, MRN Solicitors As is often the case these days another Civil Procedure Rule update has brought another change to the rules concerning costs. The statutory instrument containing the amendments to the Civil Procedure Rules has been confirmed and the update contains amendments to both the Practice Directions (PD) in respect of costs management and budgeting and the procedure of detailed assessment are to be changed...	Paying the (Full) Price? Underpaid Fees and Limitation Periods - Simon Murray, 1 Chancery Lane If you pay less than the appropriate fee when issuing your claim before the expiry of the limitation period is your claim in time? Or do you pay the price by being statute barred?...
Cognitive Underperformance in Neuropsychological Testing / Medico-Legal Cases and How to Address It - Dr Linda Monaci, Consultant Clinical Neuropsychologist and Chartered Clinical Psychologist Neuropsychological testing is employed in medico-legal cases to assist in assessing the extent, and validity, of claimants' symptoms. There are occasions when a patient's clinical presentation during neuropsychological testing is inconsistent with the expectations of his/her abilities based on their clinical history, behavioural observations and/or established medical knowledge of the condition in question. This phenomenon is called cognitive underperformance...	Knauer: Supreme Court Allows Appeal: Multiplier Runs From Date of Trial - Gordon Exall, Zenith Chambers & Hardwicke The Supreme Court gave judgment in Knauer -v- Ministry [2016] UKSC 9. The court allowed the appeal. The multiplier in a fatal accident case now runs from the date of trial/assessment and not the date of death. This means that fatal accident awards will now be higher. There is a greater incentive on defendants to settle cases earlier...
Claims of Alleged Fraud Not Exempt From Denton - Ella Davis, 1 Chancery Lane "The court cannot ignore that insurers are professional litigants, who can properly be held responsible for any blatant disregard of their own commercial interests." - Gentry v Miller & Anor [2016] EWCA Civ 141 at 34. Such was the warning sent to insurers by the Court of Appeal earlier this month in allowing a Claimant's appeal against a decision to set aside default judgment in what the Defendant's insurer alleged was a fraudulent claim...	Summary of Recent Cases, May 2016 Here is a summary of the recent notable court cases over the past month.
PI Practitioner, April 2016 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Amendments to Statements of Case (Pt 17)
An Update from North of the Border, Edited by John Wilson & Lauren Pasi, Brodies LLP
Update From North of the Border: Class Actions - Sarah Donaldson, Lauren Pasi & Lewis Clark, Brodies LLP Many readers will be familiar with the concept of a 'class action' thanks to Julia Roberts and John Travolta, and their starring roles in 90s hit films Erin Brockovich and A Civil Action. A class action is one where a large group of claimants have the same complaint, for example, an illness caused by harmful chemicals in the water supply...
Medico-Legal Articles, Edited by Dr Hugh Koch
Legal Mind Case and Commentary No.2: Material Contribution and the 'but for' Test - Dr Hugh Koch and Dr Karen Addy EWCA Civ 883 was a tort law case which concerns the problematic question of factual causation, and the interplay of the "but for" test and its relaxation through a "material increase in risk" test. The case involved Miss Bailey who developed medical complications following treatment for suspected gallstones. Initially she was admitted to the Royal Hospital Haslar (a hospital for civilian NHS patients, but also used and run by the Ministry of Defence) however her... sheet preview http://www.pibulj.com/content/law-journal-summaries/news-category-4/3684-legal-mind-case-and-commentary-no-2-material-contribution-and-the-but-for-test-dr-hugh-koch-and-dr-karen-addy	Legal Mind Case and Commentary No.3: Preparing Expert Evidence: Reasonableness and Logicality - Dr Hugh Koch and Dr Caroline Formby Lawyers and experts alike need to ensure expert evidence fully meets the request of CPR. Issues of reasonableness and logicality are discussed below... sheet preview http://www.pibulj.com/content/law-journal-summaries/news-category-4/3689-legal-mind-case-and-commentary-no-3-preparing-expert-evidence-reasonableness-and-logicality-dr-hugh-koch-and-dr-caroline-formby

April 2016 Contents

Welcome to the April 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

March 2016 Contents

Welcome to the March 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
Personal Injury Articles
Knauer v Ministry of Justice [2016] UKSC 9: Case Commentary - William Mccormick QC & Liam Ryan, Ely Place Chambers The Supreme Court on the 24th February 2016 handed down Judgment in the case of Knauer (Widower and Administrator of the Estate of Sally Ann Knauer) v Ministry of Justice [2016] UKSC 9. The decision has caused a dramatic shift in the law relating to the calculation of claims under the Fatal Accident Act 1976 which practitioners need to be aware of...	Multipliers and Fatal Accident Claims: A Wrong Remedied by the Supreme Court - Harry Trusted, Outer Temple Chambers Knauer v Ministry of Justice is a landmark Supreme Court decision. The speech of Lord Neuberger and Lady Hale (with which five other law lords concurred) finally laid the ghost of the earlier House of Lords decision in Cookson v Knowles [1979] AC 556 which had dictated the basis of fatal accident calculations for nearly forty years...
Adrianna Ramos v Oxford University NHS Trust - Matthew Smith, Kings Chambers In Adrianna Ramos v Oxford University NHS Trust [2016] EWHC B4 (Costs) 2 February 2016, Master Leonard dealt with arguments about the reasonableness of additional liabilities incurred as a result of moving from Legal Aid to a CFA. This is one of a number of such cases. They are inevitably fact sensitive...	UK Insurance Limited v Thomas Holden [2016] EWHC 264 (QB) - Matthew Channon, University of Exeter This potentially significant case in Motor Insurance and the interpretation of EU Law was heard before Judge Waksman QC in the High Court. The case concerned substantial damage in excess of £2 million, after a car, which was being repaired at the time, caught fire which spread to an adjoining property. The property insurers attempted to subrogate the claim to the motor insurers, who denied liability...
Turning the Tables in Fatal Accident Claims: Knauer v Ministry of Justice [2016] UKSC 9 - Stephen Cottrell, Devereux Chambers In a major victory for claimants, multipliers in fatal accident claims have been brought in line with personal injury and clinical negligence cases after The Supreme Court reversed a 37-year-old decision of the House of Lords. Lord Neuberger and Lady Hale gave the judgment of the court and stated that their Lordships 'had no hesitation' in deciding that the law had to be changed...	Knauer v Ministry of Justice: Supreme Court overrules Cookson v Knowles and Graham v Dodds - Christopher Sharp QC, St John's Chambers Christopher Sharp QC explains why this decision marks a fundamental change in claims for future loss of dependency in fatal accident cases...
Editorial: Vicarious Liability for Assaults - Aidan Ellis, Temple Garden Chambers In Mohamud v WM Morrisons Supermarkets Plc, the Claimant went into a petrol station, where he was verbally abused by the attendant who was employed by the Defendant. The employee followed him out of the shop and assaulted and battered him. There was some evidence that the employee's behaviour was racially motivated...	Updating the Package Travel Regime - Philip Mead, Old Square Chambers Since the adoption of Directive 90/314/EEC over 25 years ago, the travel industry has been transformed both in terms of the availability of travel services and how consumers purchase those services. With these considerations in mind, the EU has updated the legislation governing package travel by the adoption of Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending...
The Law of Vicarious Liability Is on the Move... and Hasn't Finished Moving Yet - Chris Rafferty, Zenith Chambers "The law of vicarious liability is on the move", so began Lord Reed in his judgment in Cox -v- Ministry of Justice [2016] UKSC 10...	Court of Appeal Decides Part 36 Trumps Fixed Costs - Shirley Denyer, Shirley Denyer LLP & Knowledge Services Consultant for FOIL Following a number of conflicting decisions across the country, the Court of Appeal has now settled the conflict between the rules on fixed costs and the rules under Part 36 which apply in circumstances where the claimant brings a claim under the RTA Portal process (to which fixed costs will apply) and then beats his or her own Part 36 offer...
Uninsured Drivers' Agreement 2015 - Andrew Baker, Horwich Farrelly Solicitors On 3rd July 2015 the government and the MIB entered into a new Uninsured Drivers' Agreement ("the 2015 Agreement") which followed a previous consultation on updating both the 1999 Agreement (and also changes to the 2003 Untraced Drivers' Agreement). The 2015 Agreement will apply to any incident applying on or after 1st August 2015 (see Clause 2(1))...	The Root of the Issue: Highway Authority Has No Duty to Remove Moss and Algae From Its Footpaths - Jack Harding, 1 Chancery Lane Does the duty to maintain the highway under section 41 of the Highways Act 1980 extend to the removal of moss, algae and other equivalent substances from the footpaths and carriageway? This was the question which came before Haddon-Cave J in Rollinson v Dudley MBC (2015) EWHC 3330 (QB). The answer - a resounding 'no'...
A Scottish Invasion via Europe?: Low Value PI Claims, Forum Non Conveniens and Owusu - Adam Clemens, 7BR With the EU referendum imminent, and Scottish devolution having been recently decided - although that wee beastie may yet come round again - enter stage right a case that had it all. In conjoined cases in the Court of Appeal1, Tesco and Virgin Media faced the argument that the application of European Law - Brussels Regulation 44/2011 - meant that English courts had no jurisdiction, based on...	The Employer's Duty: The Supreme Court States the Importance of Risk Assessments - Gordon Exall, Zenith Chambers & Hardwicke In Kennedy -v- Cordia Services LLP [2016] UKSC 6 the Supreme Court allowed the appellant's appeal. The case related to Scottish law, however the principles are of general application. It raises interesting issues as to the relevance of...
What Is the Cost of Not Having an Expert Clinical Neuropsychologist Following a Mild Head Injury? - Dr Linda Monaci The cost associated with specialist assessments needs to be proportional to the value of the claim. This in principle seems a sensible and fair concept; the difficulty is that brain injuries and their effects may not be as apparent as visible injuries, such as orthopaedic injuries. Paradoxically the same expert assessments that would be likely to increase the value of the claim, which would then allow for specialist assessments to take place, are not allowed in small and fast track claims. Experts are often instructed when a significant brain injury has been sustained, but what about...	Loss of Earnings After Leaving the Military: Murphy -v- Ministry of Defence - Gordon Exall, Zenith Chambers & Hardwicke In Murphy -v- Ministry of Defence [2016] EWHC 3 (QB) HH Judge Coe QC (sitting as a judge of the High Court) considered damages for loss of earnings in the case of a 21 year old soldier who suffered injuries that caused him to leave the army...
Summary of Recent Cases, March 2016 Here is a summary of the recent notable court cases over the past month.	PI Practitioner, March 2016 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Fixed Fee Medical Reports under the RTA Protocol
An Update from North of the Border, Edited by David Stihler, Brodies LLP
Update From North of the Border: Court Reforms - Sarah Donaldson, Brodies LLP The pace of court reform continues north of the border. As you may be aware, as of 22 September 2015, there have been wholesale changes to the world of personal injury litigation in Scotland. On that date, the minimum level of damages that can be sought in the Court of Session, Scotland's highest civil court, increased from £5000 to £100,000...
Medico-Legal Articles, Edited by Dr Hugh Koch
Failure to Seek Help for Post-Accident Psychological Problems: Does This Indicate the Absence of Disability? - Dr Jenny McGillion GP and medical records are one of a number of key sources of information used by experts in establishing an opinion on the degree of psychological injury for civil litigation purposes. Asking claimants about post-accident GP attendances for psychological problems, and comparing claimant reports of GP attendance to the GP records, is one approach to checking the degree of psychological disability, as well as the claimant's credibility. However, it is...

February 2016 Contents

Welcome to the February 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
Personal Injury Articles
Editorial: Fixed Costs on the Multi-Track - Aidan Ellis, 1 Temple Gardens I am once again grateful to Lord Justice Jackson for providing the subject matter of this editorial, through his recommendation in the IPA Annual Lecture that the time has come to introduce fixed costs into the 'lower reaches' of the multi-track...	Sobrany v UAB Transtira: Subrogated Credit Hire Considered by the Court of Appeal - Gary Herring, Horwich Farrelly Described by the COA in its judgment as 'another chapter in the long running saga of disputes between insurers about liability to indemnify claimants in respect of the cost of hiring replacement vehicles', the case featured a claim...
Part 36 Offer: Derisory or Genuine? - Ian Miller, 1 Chancery Lane The case of Jockey Club Racecourse Ltd v Willmott Dixon Construction Ltd [2016] EWHC 167 deals with two interesting questions: (1) does a Part 36 offer have to reflect an available outcome in the litigation to be valid? (2) when is it a genuine attempt to settle liability?	Craig Rollinson v Dudley Metropolitan Borough Council [2015] EWHC 3330 (QB) - Daniel Tobin, 12 King's Bench Walk The recent High Court appellate decision in the case of Craig Rollinson v. Dudley Metropolitan Borough Council addresses the important question as 'whether highway authorities are under a duty to keep all roads, pavements and footpaths throughout England and Wales free from moss and algae'?
Kennedy v Cordia LLP, Supreme Court, 10 February 2016 - Euan Mackenzie, Ampersand Stable This case raises interesting points in relation to employer's liability and expert evidence in civil cases. The facts of the case are simple. The pursuer (claimant) was a home carer employed by the defenders (defendants) to visit clients in their home to provide personal care. In the winter of 2010 the pursuer suffered injury during the course of her employment when she...	Daniel v St George's Healthcare NHS Trust & London Ambulance Service: A Human Rights Cautionary Tale? - Francesca O'Neill, 1 Chancery Lane Edward Bishop QC has successfully defended an NHS trust and the London Ambulance Service against claims under the Human Rights Act 1998 brought by the foster family of a man who died of a heart attack in Wandsworth Prison. The judgment deals with the legal test for liability, causation and victim status...
Costs and the Application of Interest Thereon - Andrew Brough, John M Hayes The Judgment given by Mr Justice Leggatt in the case of Involnert Management Inc v Aprilgrange Ltd and Others [2015] EWHC 2834 (Comm), ruled that interest on costs, which under the Judgment Act 1838 (Section 17) was at a rate of 8%, should not be applied in this case from the date of Judgment, but would apply from a date of 3 months hence...	Maximising Fixed Costs: in the Protocol and Out of It - Jasmine Murphy, Hardwick With costs for low value PI claims being stripped to bare bones and further cuts on the horizon, maximising fixed costs is essential. In this article, Jasmine Murphy asks the question: Have we all been missing a trick? The trick in this case is another eighth of the costs allowed in fixed costs cases.
Damages in Fatal Claims: Mosson v Spousal (London) Ltd - Paul Stagg, 1 Chancery Lane Garnham J's decision in Mosson v Spousal (London) Ltd [2015] EWHC 53 (QB), handed down today, contains a number of points of interest in relation to the calculation of damages in fatal claims...	Failure to Mediate a Detailed Assessment Proves an Expensive Option - Kate Oliver, John M Hayes While traditional case law recognizes costs penalties imposed on successful parties who refuse to mediate, Reid v Buckinghamshire Health Care Trust [2015] EWHC B21 turns the tables and imposes additional costs penalties on the NHSLA losing party for failing to mediate on legal costs in this medical negligence case...
Reforms to Civil Litigation - Stephanie Prior, Osbornes Solicitors LLP It has been an interesting few years there has been so much to think about personal injury and clinical negligence litigation...	Another Bite at the Cherry? Relief From Sanctions & Changes of Circumstances - Thomas Crockett, 1 Chancery Lane The courts' approach to relief from sanctions is something on an ongoing saga of complexity and appeal, as the disparate permutations the new so-called 'Jackson Reforms' present themselves in apparently (at least to the Rules Committee) unforeseen ways...
Mild Traumatic Brain Injuries - Dr Linda Monaci A road traffic accident, or any event which involves trauma to the head, may result in a brain injury which can cause cognitive, emotional and physical symptoms. The severity of a brain injury is usually graded as mild, moderate or severe and this can help provide guidance on recovery and the rehabilitation required...	Fatal Accidents: 10 Key Points - Gordon Exall, Zenith Chambers & Hardwicke The interesting thing about lecturing is that you get questions and feedback. Following a talk at Hardwicke I thought it may be useful to set out some central issues in relation to fatal accidents. These issues arose both in the talk itself and in conversations afterwards. There are 10 key issues which benefit from reiteration...
BBC Expose of 'Crash for Cash' Ring - Thomas Crockett, 1 Chancery Lane For some light relief (this is being posted on a Friday afternoon after all!) any practitioner involved in PI cases where fraud is alleged could be advised as to look no further than the detailed article published on the BBC Wales' website about a successful prosecution of a so-called 'crash for cash' ring...	No Award for Damages for 'Loss of Life': Shaw v Kovac Considered - Gordon Exall, Zenith Chambers & Hardwicke In Shaw -v- Kovac [2015] EWHC 3335(QB) Judge Platts considered the question of whether there is a freestanding head of damages for "loss of life" together with some other aspects of the damages where the claim lies solely on behalf of the estate...
Summary of Recent Cases, February 2016 Here is a summary of the recent notable court cases over the past month.	PI Practitioner, February 2016 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Section 57 of the Criminal Justice and Courts Act 2015
An Update from North of the Border, Edited by David Stihler, Brodies LLP
Update From North of the Border: The Role of Solicitor Advocates in Scotland - Laura Brain, Brodies LLP Earlier this month, another of my colleagues started out on his journey towards becoming a solicitor advocate. All going well, he will qualify later this year and join Brodies' in-house advocacy panel. But what does it actually mean to be a solicitor advocate in Scotland and why was the role created...
Medico-Legal Articles, Edited by Dr Hugh Koch
The Psychological Impact of Floods - Dr Vicky Lucas Five out of the six wettest years documented in UK history have occurred since the year 2000. In December 2015, parts of the UK experienced record-breaking levels of rainfall as a result of Storm Desmond. Climate change is set to...

January 2016 Contents

Welcome to the January 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
Personal Injury Articles, January 2016
Pre-Emptive and Tactical Action in Stress at Work Claims - Liam Ryan, Ely Place Chambers The process of litigation by its very nature, is unpredictable and stressful. The statutory instruments which govern the employment relationship, whilst at their core seeking to regulate, protect and assist both employees and employers are subject to interpretation and practically, when applied to the unique and varied facts of each individual case, result in the outcome rarely being certain due to the number of moving parts that comprise a claim...	Editorial: Civil Claims for Assault - Aidan Ellis, Temple Garden Chambers It is inherently difficult to establish guilt beyond reasonable doubt before a jury where the evidence is limited and turns on one person’s account. One possible solution for victims is to explore the possibility of making a civil claim against their assailant for battery...
Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chambers) and Kenneth Clifford [2015] EWCA Civ 1329 - Sophie Beesley, Old Square Chambers Under the Criminal Injuries Compensation Scheme 2008, minor multiple injuries can only qualify for compensation if they necessitate at least two visit to or by a medical practitioner within six weeks of the incident. The Court of Appeal accepted the argument of the CICA, represented by Ben Collins of Old Square Chambers, that the Scheme requires actual attendance, rather than the fact of an injury which merely warrants...	Top Personal Injury Decisions of the Court of Appeal in 2015 - Ian Miller, 1 Chancery Lane The Court of Appeal made a number of important decisions in 2015 in the field of personal injury. Ella Davis and Ian Miller review some of the most important of them for the PI practitioner. They cover psychiatric damage, causation, quantum, the Athens Convention, jurisdiction, duties of care, vicarious liability and non-delegable duties...
Twenty Five Years Plus - Deborah Evans, APIL Chief Executive After 25 years of turning up to almost every fight, if not all, on behalf of injured people, it would now be inconceivable for APIL not to be involved when the personal injury landscape is facing change...	Scottish Accidents, English Defendants: When Always Isn’t - Philip Mead, Old Square Chambers Should proceedings be issued in England or Scotland where the accident occurred in Scotland, but the Defendant is domiciled in England and Wales? Does the principle of forum non conveniens, which does not apply to cases involving a European domiciled party, apply to intra-UK litigation? Does it matter that the Defendant entered an appearance before raising the issue of proper forum?
Pedestrians On the Pavement v Buses - Gemma Witherington, Hardwicke It has been widely reported in recent years that London buses are involved in two accidents per day. Some of these accidents are claims by pedestrians who have been struck whilst on the pavement by a bus. The recent case of Whyte v Bluebird Buses Ltd [2015] CSOH 56 is a helpful reminder of the principles to apply when considering a collision between a pedestrian on the pavement and a bus...	Qader v Esure: Ex-Protocol Claims Attract Fixed Costs Even on the Multi-Track - Martyn Griffiths, Hardwicke On 15th October 2015, HHJ Grant sitting in the County Court at Birmingham handed down judgment in Qader & Others v Esure Services Limited [2015] EWHC B18 (TCC) on an appeal concerning the scope of the fixed costs regime that applies to cases commenced under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”). The case has potentially far reaching ramifications and will likely also apply to cases leaving the Employers’ Liability and Public Liability Protocol...
Vicarious Liability: Footballers, Assault and 'Initiation Ceremonies' - Gordon Exall, Zenith Chambers & Hardwicke It is well known that recently the Supreme Court heard a number of appeals in relation to vicarious liability, particularly for assaults by employees. While the decisions are pending it is useful to look at examples where these issues are being applied using the current law. The issue of vicarious liability for an “initiation ceremony” which involved intimate touching was considered by His Honour Judge Butler (sitting as a High Court judge) in GB -v- Stoke City Football Club Ltd [2015] EWHC 2862 (QB)...	Material Contribution: The Search for the Elusive Third Way - Charles Feeny & Sammy Nanneh, Contributing Editors at Pro-Vide Law A comprehensive definition of the term 'material contribution to damage' remains elusive. There are two essentially unproblematic ways in which the concept applies, but it appears that judges and academics are still seeking to elucidate a third way in which the term could be used...
Should Cycling Helmets Be Made Compulsory? - Colm Nugent, Hardwicke The apparently never-ending debate about whether cycling helmets should be mandatory for all cyclists resurfaced again with an article in the Guardian (12/10/15) looking at the different experiences of Seattle (which has made them compulsory) and Amsterdam (which has not)...	A Brief Review of the Research Findings of Increased Risk of Dementia in Association With a Traumatic Brain Injury - Dr Linda Monaci In civil law cases provisional damages can be awarded if the disease or deterioration is serious, which means beyond ordinary deterioration and if the risk of disease or deterioration has a measurable chance of occurring. It therefore follows that Solicitors’ instructions usually require the instructed experts of the field - usually Neurologists, Neuropsychologists and Neuropsychiatrists – to also comment on whether...
Quantity Not Quality - Ella Davis, 1 Chancery Lane The decision of Foskett J in Reaney v University Hospital of North Staffordshire NHS Trust [2014] EWHC 3016 (QB)(rightly) caused some excitement in the legal blogosphere when it was handed down in October 2014. It appeared that he had extended the familiar eggshell skull rule by holding that a Defendant who had injured a woman with pre-existing care needs was liable to compensate for her full care needs not just the additional needs. That decision has now been overturned by...	The Bluffer’s Guide to Billett v MOD [2015] EWCA Civ 773 - Jasmine Murphy, Hardwicke In July 2015 a decision was published that took PI practitioners back over 40 years; to a time before some of us were born and Smith v Manchester awards. In case you missed it, here are the key aspects which emerge from the decision, which you need to know...
CPR 35.1: When Is Expert Evidence ‘Reasonably Required’? Part 2 - Tom Collins, 1 Chancery Lane The second case dealing with the proper approach to applications under r. 35.1 is Nuemann v Camel [2015] LTL 29/10/15. In this case, the claimant had been injured in a road traffic accident caused by the defendant's negligent driving and liability was not disputed. The claimant had a pre-existing condition, osteogenesis imperfecta, which had caused her bones to fracture as a teenager...	Escaping the QOWCS Web - Jasmine Murphy, Hardwicke One of the effects of QOWCS has been to encourage claimants to bring personal injury claims with only very modest prospects of success because they have the security of QOWCS protection. Without the need to obtain and retain after the event insurance, often the merits of a case are never properly considered or monitored as the case continues...
Autumn Statement for PI Lawyers - Ella Davis, 1 Chancery Lane The government has released a summary of the Autumn Statement with 20 Key Announcements, the last of which will be of great interest to personal injury lawyers. It reads as follows...	T’is the Season to Be Techie - Simon Readhead QC, 1 Chancery Lane This is the time of year for families... and for gadgets. Lots of them! In particular, smartphones. An average 65% of children in the UK aged between 8 and 11 now have their own smartphone...
Summary of Recent Cases, January 2016 Here is a summary of the recent notable court cases over the past month.	PI Practitioner, January 2016 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Defendant's costs in claims which no longer continue under the RTA Protocol.
An Update from North of the Border, Edited by David Stihler, Brodies LLP
A Look at the New Fatal Accident Inquiries Legislation in Scotland - Jonathan Cornwell, Brodies Fatal Accident Inquiries featured prominently in the Scottish mainstream media during 2015. Following the tragic events of 22nd December 2014 (when a bin lorry collided with pedestrians in Glasgow city centre killing 6 people and injuring 15 others), the decision of the Crown Office and Procurator Fiscal Service not to prosecute the driver and the subsequent Fatal Accident Inquiry meant that the subject was rarely far from the headlines...