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September 2022 Contents
 Welcome to the September 2022 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 | |
 Striking out claims in evolving areas of the law: HXA v Surrey CC [2022] EWCA Civ 1196 - Anisa Kassamali, Temple Garden Chambers The Court of Appeal considered the circumstances in which local authorities owe a duty of care to children to whom they provide child protection services. In so doing, it commented upon the proper exercise of a Court's power to strike out a claim pursuant to CPR 3.4... |
 State Immunity and Personal Injury in the High Court: Al-Masarir v Kingdom of Saudi Arabia [2022] EWHC 2199 (QB) - Sebastian Bates, Temple Garden Chambers Under section 1(1) of the State Immunity Act 1978, '[a] State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions'. In Al-Masarir v Kingdom of Saudi Arabia [2022] EWHC 2199 (QB), the High Court considered the exception set out in section 5 of the Act, according to which '[a] State is not immune as respects proceedings in respect of (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom'... |
 A school was not vicariously liable for abuse by a man on work experience placement against the Claimant student: MXX v A Secondary School [2022] EWHC 2207 (QB) - Grace Corby, Temple Garden Chambers The court rejected the Claimant's arguments that the Defendant school was vicariously liable for torts committed against her by an 18-year-old who she met while he was on work experience placement at her school. The Defendant is a co-educational secondary school, and the Claimant was a pupil who joined the school on 5 December 2013 aged 13. One of the Defendant's former pupils ('PXM') did a work experience placement at the Defendant's school. He was then 18 and hoping to qualify as a physical education teacher... |
 Parties Can Contract Out of the Fixed Costs Regime: A Reminder for Caution when Drafting Consent Orders: Doyle M&D Foundations & Building Services Ltd [2022] EWCA Civ 927 - Grace Corby, Temple Garden Chambers A claim for damages for personal injuries had settled for £5,000 by a consent order ("the Order"). The Order provided that the Defendant would pay the Claimant "such costs to be the subject of detailed assessment if not agreed". Following the agreement, the Claimant had filed a bill of costs for detailed assessment on the standard basis. The Defendant disputed this approach, arguing that the case fell within the fixed recoverable costs regime under Section IIIA of CPR Part 45. At first instance the district judge ruled that the parties had contracted out of the fixed cost regime using the Order and assessed the costs at £14,467.44. The appeal concerned the interpretation of that provision, in particular, whether the fixed costs regime under CPR Part 45 applied... |
 Case Report: B v X - Helen Reynolds, Spencers Solicitors Instructions were received to act on behalf of the Claimant in connection with a claim for damages arising from an injury sustained whilst playing 'zorb' or 'bubble' football at an event organised and provided by the Defendant on 04 March 2017. The Claimant was aged 26 at the time of the incident. The Claimant was provided with an inflatable bubble or 'zorb' by the coach in charge of the event on the day in question; the Claimant felt that the ball was too small with his head at the top of the ball and complained to the coach. Despite these complaints no alternative ball was provided... |
 Browne Jacobson successful in fundamental dishonesty appeal ruling on behalf of the Medical Protection Society - Louise Jackson, Browne Jacobson In Simpson v Payne, the Defendant/Respondent (Defendant) was successful before Her Honour Mrs Justice Collins Rice in having the Claimant/Appellant's (Claimant) appeal against a previous finding of fundamental dishonesty dismissed resulting in a further enforceable costs order against the Claimant directly. The Claim was initially brought against the Defendant for the alleged negligent breast augmentation surgery by the Defendant in February and May 2013. The Claimant alleged that the surgery had... |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No. 39: 'Keep the Joint Statement Concise and Logical' - [Koch HCH, Jansen F, Potts M and Browne G] This is the thirty-ninth in a series of Case reports and Commentaries from Professor Koch and colleagues. There is now a wealth of literature to document the merit and value of experts being directed by the Court to meet and prepare a joint statement to clarify issues of agreement and disagreement in particular personal injury cases (Koch, 2018; Eyre, 2021). The ground rules for the process of preparing a joint statement are straightforward and logical. Applied correctly, they result in a greater clarity and completeness of opinion than any one expert's report alone, and reflect one of the explicit advantages of the adversarial approach to resolving cases... |
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August 2022 Contents
 Welcome to the August 2022 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 | |
 The Executor of an Estate Can Apply for Provisional Damages: Power v Hastie & Co Ltd [2022] EWHC 1927 (QB) - Anisa Kassamali, Temple Garden Chambers Provisional damages can be awarded where a claimant's prognosis is uncertain. By way of a provisional damages order ('PDO', a claimant is effectively given the right to return to court to apply for further damages if he or she suffers serious deterioration in the future as a result of the original injury. The applicant in Power v Hastie & Co Ltd [2022] EWHC 1927 (QB) (22 July 2022) asked the High Court to consider whether that right survives a claimant's death. Put differently, can the estate... |
 Damages Based Agreements Are Not Enforceable Against a Non-Counterclaiming Defendant: Candey Ltd v Tonstate Group Ltd & Ors [2022] Ewca Civ 936 - Grace Corby, Temple Garden Chambers The appeal raised the novel question of whether it is lawful for a party against whom a claim is made (i.e. the defendant to a claim or counterclaim) to enter into an agreement that, if he succeeds in defending that claim in whole or in part, he will pay his legal representatives a percentage of the money or the value of the assets that he has resisted having to pay or transfer to his opponent. The Court of Appeal determined such Damages Based Agreements could not be... |
 A Reminder of the 'Generous Ambit' Of Potential Responses to Applications for Extensions of Time for Service of A Claim Form: ST v Bai (SA) [2022] EWCA Civ 1037 - Sebastian Bates, Temple Garden Chambers 19/08/22. The Court of Appeal has in ST v BAI (SA) [2022] EWCA Civ 1037 considered the approach to be taken to applications under CPR 7.6(2) for an extension of time in which to serve a claim form. ST alleged that she had been s--ually assaulted on a ferry operated by BAI (SA). Her claim was subject to a limitation period of two years... |
 How (Not) to Consider Permission to Appeal and Applications to Re-Open Appeals: UCP Plc v Nectrus Ltd [2022] EWCA Civ 949 - Sebastian Bates, Temple Garden Chambers In UCP plc v Nectrus Ltd [2022] EWCA Civ 949, the Court of Appeal addressed 'the circumstances in which judges should accede to an application to recuse themselves, and the process adopted in the Court of Appeal when parties apply to set aside permission to appeal and, separately, to re-open the final refusal of permission to appeal under CPR Part 52.30'... |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No. 38: The Importance of being an independent expert - [Koch HCH, Jansen F, Grundy L and Robertson C, August 2022] This is the thirty-eighth in a series of Case reports and Commentaries from Professor Koch and colleagues. The recent case of Andrews and others v. Kronospan Ltd (2022) EWHC 479 involved the Senior Master prohibiting the claimant from relying upon their experts' evidence (Deal N, 2022), due to his 'inability to act in accordance with his obligation'... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 How to write a personal injury template - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains why every expert should write their own personal injury template. In my role as an independent auditor of medical expert reports I am asked whether I consider any of the report writing software (RWS) to be the best. My answer is that each have advantages and disadvantages but the expert should avoid... |
 What should an expert put into the Past Medical History section of a PI report? - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP discusses the relevance of previous injuries, MSK symptoms and psychological problems. Most people with aches and pains and stress do not attend their doctors to discuss their problems, many consider (rightly) that they are a normal part of life. 'At any given time 15% to 20% of adults will report having back pain and 10% to 20% will report neck pain symptoms'... |
July 2022 Contents
 Welcome to the July 2022 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 | |
 Karanja, R (On the Application Of) v University of the West of Scotland [2022] EWHC 1520 (Admin) - Rochelle Powell, Temple Garden Chambers This case dealt with a number of procedural issues including jurisdiction and an extension of time for service of the claim form pursuant to CPR 3.1(2)(a). Michael Ford QC, sitting as a Deputy High Court Judge, also considered whether there had been good service of the claim form whilst providing a helpful recap of the relevant law... |
 Section 57 & Substantial Injustice - Nicholas Dobbs, Temple Garden Chambers In Woodger v Hallas, the Defendant appealed against the trial judge's failure to dismiss the claim in its entirety following a finding that the Claimant had been fundamentally dishonest within the meaning of s 57(1) of the Criminal Justice and Courts Act 2015. The Defendant argued that there was no proper basis for a finding of substantial injustice, and the trial judge did not balance the extent of the Claimant's dishonesty against the suggested injustice to him if the claim were dismissed in its entirety... |
 Contracting Out of the Fixed Costs Regime - Nicholas Dobbs, Temple Garden Chambers In Doyle v M & D Foundations Building Services Ltd [2022] EWCA CIV 927, the Respondent was injured whilst working on a construction site in the course of his employment by the appellant. His claim fell within the scope of the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims ('the Protocol'). Liability was disputed with the result that the Protocol ceased to apply to the claim. Proceedings were commenced and the case allocated to the fast track... |
 Judicial College Guidelines 16th Edition: Work-related Limb Disorders - Jim Hester, Parklane Plowden Chambers The recent publication of the 16th Edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases, has brought a number of changes for industrial disease practitioners, in relation to: 1. Work-related limb disorders: Vibration White Finger (VWF) and/ or Hand Arm Vibration Syndrome (HAVS); work-related upper limb disorders (WRULD); and cold injuries... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 How to Audit an Expert Report - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains the general principles behind auditing expert reports for the civil, family and criminal courts. All reports have basically the same function, to provide a reasonable and logical explanation of the evidence for the court in a language that can be understood. The purpose of an audit is to consider... |
 Instructing Experts in Post-Traumatic Stress Disorder (PTSD) - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains how the new advice on PTSD from the can assist lawyers improve instructions to medical experts. Instructing medical experts to consider PTSD has been difficult because the previous guidance has led to over and under diagnosis of the condition. Medical experts have taken different... |
June 2022 Contents
 Welcome to the June 2022 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 | |
 Hill v Ministry of Justice [2022] EWHC 370 (QB) - Rochelle Powell, Temple Garden Chambers The case concerned an appeal against the order of Recorder Bright QC dismissing a claim for personal injury suffered by Mr Hill ("the appellant") in the course of his duties as a probationary prison officer. The appellant was instructed to escort two young offenders when one of the prisoners ("DB") assaulted him, causing the appellant to sustain a spinal injury... |
 Uncertainty In The Law: When Actionable Damage Arises In Mesothelioma Cases - Nicholas Dobbs, Temple Garden Chambers In Brooks v Zurich Insurance, the Claimant had worked as a maintenance engineer at a paper mill in Enfield. His work brought him into contact with asbestos and, around 30 years later in March 2020, he began to suffer from the first symptoms of mesothelioma. He was formally diagnosed in April 2021. When examined in October 2021, his life expectancy was in the range of 6 to 18 months. His wife suffered from dementia and he wished to progress the claim as quickly as possible so that there would be funds available for her on his death... |
 PI Practitioner: Ex Turpi Causa Oritur Actio - Nicholas Dobbs, Temple Garden Chambers In Lewis-Ranwell v G4S Health Services (UK) Ltd & Ors, the First, Third, and Fourth Defendants applied for an order striking out the claim against them on the grounds of illegality, 'ex turpi causa non oritur actio' (out of a dishonourable cause no action arises). The Claimant had killed three men in their homes whilst suffering delusional beliefs about them. He made numerous allegations of negligence against each of the Defendants, in essence arguing that they were... |
 Knowledge of the specific injury or disease? - Jim Hester, Parklane Plowden Chambers Does the specific injury or disease which a claimant sustained need to be reasonably foreseeable for liability to be established? Or is reasonable foreseeability of a risk of any injury or disease sufficient? The date of 'guilty' knowledge is a frequent topic which arises in industrial disease litigation. This is when a defendant ought to have known that a particular form conduct could reasonably foreseeably cause injury... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 How to Write a CV for an Expert Report - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains what a court is looking for in an expert's CV and how even senior experts can keep their CVs looking fresh. Courts need to be able to see in the medical report why they should consider this expert witness should be seen as an expert in this case. Although anyone can say that they are an expert it is the court that determines whether the practitioner is an expert... |
 Addressing Inconsistencies in PI reports - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains why inconsistencies are a sign of a good personal injury report and the expert's skill is in addressing them. Inconsistencies can arise from an internal error in a report, a mistake by a claimant or a biopsychosocial phenomenon. Errors in the report can occur when the claimant said that they had no previous neck pain and then said that they had whiplash following a previous RTA... |
May 2022 Contents
Welcome to the May 2022 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 CHAPTER from 'A Practical Guide to Injury Claims Involving Cyclists' by Patrick Kerr & Helen Waller...
This book is designed to be a succinct overview of the key features of cycling litigation. It looks at cyclists as road users as well as group cycling, racing and professional cyclist claims. The book contains an essential overview of the key aspects of the new Highway code, introduced in January 2022. It also looks at the ins and outs of highways claims and considers the role of cycle helmets and other aspects that could give rise to a finding of contributory negligence on the part of a cyclist... |
Acoustic Shock claim revived because the defendant's evidence was unreliable: Storey v British Telecommunications plc [2022] EWCA Civ 616 - Rochelle Powell, Temple Garden Chambers
The Court of Appeal revived an acoustic shock claim after a finding that the defendant's evidence was incorrect and the judge was considering the wrong issue. Lady Justice Andrews overturned the decision of the Circuit Judge to strike out the claim. The claimant brought an action alleging that he had suffered injury to his hearing as a result of the use of a headset due to acoustic shock. The court gave... |
The discretion of the court and relief from sanctions: Chan Mok Park v Hassan Hadi & Anor [2022] EWCA Civ 581 - Rochelle Powell, Temple Garden Chambers
In a joint decision, Holroyde, Stuart-Smith and Warby LJJ held that Freedman J had not erred in granting relief from sanctions after the Respondent made an informal oral application without filing a witness statement. The claimant brought an action relating to the transfer of ownership of a public house. The defendants applied to strike out a claim and a peremptory order was made that the claimant must... |
When Seeking Permission To Obtain Fresh Expert Evidence - Nicholas Dobbs, Temple Garden Chambers
In Fernandez v Iceland Foods Ltd, the Claimant appealed against an order refusing his application for permission to substitute a fresh medical expert for an existing one. The decision includes a thorough summary of the applicable law and principles to be considered when parties seek to instruct fresh expert evidence (at [18]-[27]). The judgment also reiterates the well-established principle that an... |
Giving Notice of Conditional Fee Agreements with a Success Fee - Nicholas Dobbs, Temple Garden Chambers
In EXN v East Lancashire Hospitals NHS Trust, the court considered the proper approach to the failure of a party to comply with the rules relating to notice that a claim is funded by a CFA with a success fee. Since 1 April 2013, the recovery of success fees as costs has not been allowed. However, section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2021 retains provision for the... |
Former Regional Costs Judge confirms on appeal that County Court decision was wrong to refuse Litigation Friend expenses for an ATE Premium - Daniel Slade, Express Solicitors
On 21st April 2022, before HHJ Lethem, helpful guidance was provided to assist County Courts commonly falling into error in refusing expenses to Litigation Friends who seek reimbursement of their liability to pay success fees and ATE premiums. LW, an 11-year old on 9th February 2019 was at an H&M store in Bromley and caught his right eye on a clothing pole-edge. His mother, RH instructed Express Solicitors to bring a claim for... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
MSK: The Basic Examination - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP explains the minimum necessary examination in MSK cases to comply with GMC guidance... |
The Generalist and the Specialist in Conference - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP discusses the effects of power difference between experts and the sometimes paradoxical outcomes... |
![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)
