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February 2019 Contents
 Welcome to the February 2019 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 | |
 Recovering and challenging additional liabilities - Andrew Roy, 12 King's Bench Walk In NJL v PTE [2018] EWHC 3570 (QB) Martin Spencer J set out the proper method for quantifying the risks associated with Part 36 offers for the purposes of assessing success fees. This case demonstrates the importance of any claim for an additional liability being properly supported by evidence... |
 Appeals, Clinical Records and Adverse Inferences - Anna Datta, Parklane Plowden Chambers Anna Datta examines the case of Claire Manzi v King's College Hospital NHS Foundation Trust [2018] EWCA Civ 1882... |
 Editorial: Delay and Adjourned Hearings - Aidan Ellis, Temple Garden Chambers Previous editorials have drawn attention to the prevalence of late adjournments of trials due to judicial availability or court resources. Anecdotally, the ripple effect of these adjournments seems to be leading to substantial delays. Towards the end of January, a fast track trial in one of the London courts was vacated due to over-listing... |
 Deal or No Deal? Brexit and Accidents Abroad - Kelvin Farmaner, Trethowans LLP & FOIL It has been difficult to avoid the daily newsfeed updating us on the progress (or lack of progress) with Brexit negotiations. What is less well publicised however is the fact that the question of whether the government manages to negotiate a deal with the EU prior to 29 March will impact upon how... |
 SSB Law win landmark industrial disease case - Stuart White & Christopher Johnson, SSB Law In a landmark judgement, the High Court has ruled that a former employee of Alcoa, one of the world's largest producers of aluminium, should be compensated for loss of hearing despite unsupportive expert evidence... |
 £23m settlement for brain injured child: the cost of medical negligence - Ben Gent, Express Solicitors In December 2018, the High Court approved a £23m compensation settlement for a 10-year-old boy (AC) who suffered brain damage at birth as a result of medical negligence, in what relatively superficial research suggests is the third largest injury settlement ever reported in this jurisdiction... |
 Summary of Recent Cases, February 2019 Here is a summary of the recent notable court cases over the past month... |
 PI Practitioner, February 2019 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month we consider adverse inferences being drawn against defendants who fail to adduce evidence and instead simply put the claimant to proof, with reference to the recent case of Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWHC 149 (QB)... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Holiday Sickness Claims: Travel Claims for Gastroenteritis - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains how the medical expert assesses a claimant who states that they have suffered from travel related gastroenteritis... |
 Practical steps for complying with GDPR - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains why complying with the information commissioner office will assist compliance with the GDPR and The Data Protection Act 2018... |
 Answering Material Questions in Injuries with a Mental Health Component - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains how a generalist medical expert provides answers to the court's material questions in a mental health assessment... |
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January 2019 Contents
 Welcome to the January 2019 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 'scope of duty test' for causation: when 'but for' is just not enough - James Weston, 7BR On Friday 23 November 2018 the Court of Appeal handed down judgment in Khan v MNX [2018] EWCA Civ 2609. The decision will have widespread implications for clinical negligence claims... |
 Fundamental dishonesty in occupational disease claims (part 3) - Paul Debney, Weightmans LLP In this, the last of a series of 3 articles, Paul Debney, Partner and head of disease counter fraud at national firm Weightmans LLP, examines the impact of the suppression of evidence relevant to the causation of a condition... |
 The ambit of QOCS considered (again): who can recover costs in cases outside the straightforward Claimant v Defendant scenario? - Alice Nash, Hailsham Chambers In Cartwright v Venduct Engineering Limited [2018] EWCA Civ 1654, decided in July 2018, the Court of Appeal held that in a QOCS case with multiple defendants, the ability to recover costs from damages pursuant to CPR r.44.14(1) extended to all the defendants, not just the defendant who paid those damages. Cartwright has subsequently been relied upon, with conflicting results... |
 Time to re-examine tree inspection regimes - Simon Jones & Susan Rands, BLM In Witley Parish Council v Cavanagh [2018] EWCA Civ 2232, the claimant was seriously injured when a large mature lime tree fell across the road onto the single decker bus he was driving. The tree was on land owned by Witley Parish Council ("Witley") which accepted that it owed a duty of care to act as a reasonable and prudent landowner and to undertake regular inspections... |
 The complex reasons why a claimant takes legal action - Ali Malsher, Anthony Gold Solicitors Reading the traditional media, it appears, clinical negligence claimants are motivated by finance only. Yet this doesn't equate with the experience of those who work in this area of law. The reasons claimants start the legal process are complex but there is a relationship between response of the health provider to adverse events and litigation... |
Summary of Recent Cases, January 2019 Here is a summary of the recent notable court cases over the past month... |
| PI Practitioner, January 2019 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month we consider extensions to the limitation period in personal injury claims under s.33 of the Limitation Act 1980... |
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| An Update from North of the Border, Edited by Kate Donachie, Brodies LLP | |
 The importance of getting the wording of pre-trial agreements right - Kate Donachie & Mohsen Din, Brodies LLP A joint minute is a form of pre-trial agreement which is lodged with the court and sets out non-controversial matters between the parties in advance of a proof (trial) or other substantive hearing. The use of joint minutes is actively encouraged by the courts because such agreement can reduce the scope of any hearing and the number of witnesses required. Recently there has been... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 How PI experts can keep judges happy by showing their working in PI reports 2019 - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP examines the tension between the instructions from claimant and defendant solicitors from the perspective of the expert's duty to the court... |
 A Novel Approach to Loss of a Chance Cases 2019 - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP discusses how the law of causation has become inconsistent and contrary to natural justice whilst trying to decide loss of a chance cases... |
 What History tells us about Collapsing Health Systems 2019 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP looks to history for clues of what it means for a health system to collapse and how to describe the pattern mathematically... preview http://www.pibulj.com/content/law-journal-summaries/news-category-4/4776-what-history-tells-us-about-collapsing-health-systems-2019-dr-mark-burgin |
 What does a Litigant in Person need from their Medical Expert? 2019 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP discusses how to solve the challenges that come LiPs instructions and how to enjoy this complex type of work. |
December 2018 Contents
 Welcome to the December 2018 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 | |
 Where Paternal Depression Meets Secondary Victim Claims - Chantelle Bacchus, Bolt Burdon Kemp When we talk about post-natal depression, we often think of mothers. This is a fair assumption and 1 in 5 women develop mental health problems during pregnancy or in the first year after childbirth. However, now we know that dads suffer from post-natal depression too... |
 Note on the Supreme Court Judgment in Darnley - Jeremy Pendlebury, 7BR The Supreme Court, per the judgment of Lord Lloyd-Jones (with whom Lady Hale and Lords, Reed, Kerr and Hodge all agreed), allowed the appeal by Michael Darnley from the dismissal by the Court of Appeal of his appeal from the dismissal of his claim by the trial judge. Mr. Darnley will now recover damages for the devastating brain damage... |
 Cavanagh v Witley Parish Council [2018] EWCA Civ 2232 - Peter Wake, Weightmans LLP In a recent decision which contains some salutary learning points for defendants, the Court of Appeal has found the defendant local authority to be liable to the claimant for a tree that fell onto the highway and collided with the bus he was driving... |
 Cauda Equina Syndrome - Sandra De Souza, Anthony Gold Solicitors Cauda Equina Syndrome (CES) is a serious condition which occurs when the nerves in the spinal canal have been damaged. These nerves control the bladder, bowel, genitals and movement of legs. Symptoms of CES include loss of sensation and pain in one or both legs, numbness and a deterioration or loss of bowel and/or bladder control... |
 Editorial: Trial Bundles - Aidan Ellis, Temple Garden Chambers Instead of my usual December 'review of the year', I will end 2018 with some thoughts about trial bundles. I have had a significant number of trials this month (not all effective), and in many of them issues have arisen (or could have arisen) about the state of the trial bundle... |
 Review of Highway Code Due for 2019 - Charles Heppenstall, Weightmans LLP On the 18th October 2018 the Ministry of Transport announced a proposed update of the Highway Code, to further codify driving practices intended to protect cyclists and pedestrians. This follows the publication in September of the DoT's highway casualty statistics for 2017. Although these revealed... |
 An Introduction to Cooling - Flora Midgley, Bolt Burdon Kemp The NHS uses controlled cooling to treat newborn babies who suffer brain injuries following a deprivation of oxygen during birth/labour. I am a solicitor at Bolt Burdon Kemp in the Child Brain Injury team, I specialise in compensation claims for children who have suffered brain injuries - as many of our clients suffer these injuries at birth, often because of... |
Summary of Recent Cases, December 2018 Here is a summary of the recent notable court cases over the past month... |
| PI Practitioner, December 2018 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month's issue focuses on applications for permission to bring in additional fields of medical evidence, and specifically the case of Sharron Denise Hall v Derby Teaching Hospitals NHS Foundation Trust [2018] EWHC 3276 (QB), which provides a stark illustration of 'how not to do it'... |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No 20 - Assessing Distress Post-Cyber Breaches [Koch HCH, Laraway A, Pelser C & Lamswood S 2018] This is the twentieth in a series of Case reports and Commentaries from Dr Koch and colleagues. A recent case involving data breaches is summarised below and debated... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 Artificial Intelligence and the Professions 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP explains how the recent advances in AI such as convolutional neural nets will change the everyday work of the professional... |
 Medical Legal Experts Working in Prisons 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP explains the pitfalls that can occur when performing a Prison Visit for medical legal purposes and the problems arising from increasingly restricted availability of private areas for examinations... |
 An Introduction to Expert Report Writing 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP considers the generic skill of report writing from the point of view of an agency providing training to the new expert... |
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| Book Reviews | |
 'Tough Choices' by Daniel Sokol - Reviewed by Aidan O'Brien Tough Choices is a fascinating collection of case studies and vignettes, drawn from Daniel Sokol's experience on the front line of medical ethics and law... |
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November 2018 Contents
 Welcome to the November 2018 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 from 'A Practical Guide to Relief from Sanctions Post-Mitchell and Denton' by Peter Causton Chapter Two - Background History: From Woolf to Jackson To Dyson. Prior to the implementation of the Jackson reforms, it was considered that the courts had become too tolerant of parties' non-compliance with orders, rules and practice directions and the delays this non-compliance caused... |
 Editorial: Pre-Action Disclosure of Financial Documents in Credit Hire Cases - Aidan Ellis, Temple Garden Chambers As long ago as 2004, in the course of carving out the impecuniosity exception in Lagden v O'Connor, Lord Nicholls expressed the hope that the parties 'should be able to agree on standard enquiries, or some other means, which in practice can most readily give effect to the test of impecuniosity'. In practice, whilst most Courts now... |
 Fundamental dishonesty in occupational disease claims (part 2) - Paul Debney, Weightmans LLP In last month's edition, Paul Debney examined the early reported decisions of findings of fundamental dishonesty in disease claims, with specific reference to a claimant who was found to have lied about the provision and wearing of hearing protection and another who was found to have falsely stated that he had made no previous claim for the same disease... |
 FREE CHAPTER: The History And The Science (from 'A Practical Guide to Claims Arising from Delays in Diagnosing Cancer' by Bella Webb) Chapter Two - The History and the Science. This chapter will look at the trend towards an increase in delayed cancer diagnosis claims and the rationale and statistics that underlie it. It will then go on to look at what we actually mean by cancer in medical terms... |
| FREE BOOK CHAPTER from 'A Practical Guide to Vicarious Liability' by Mariel Irvine Chapter One - Overview. There have been at least five decisions of the Supreme Court relevant to vicarious liability since 2012. A topic of importance in a minority of cases, and sometimes described as 'geeky', has been forced into the spotlight... |
 Vicariously liability for an assault out of work time and off work premises - Simon Anderson, Park Square Barristers Can an employer be held vicariously liable for an assault by a director that takes place on an employee out of work time and off the premises? Yes, according to the Court of Appeal in Bellman v Northampton Recruitment Limited [2018] EWCA Civ 2214... |
 Case Summary: M v Morton - Andrea Ribchester-Hodgson & Sarah Wright, Spencers Solicitors The Claimant, M, was driving her vehicle along the road when the Defendant's vehicle pulled out of a lay-by and collided with the passenger side of the Claimant's vehicle, pushing her into the middle of the road... |
 Motor Insurance / MIB Update - Julie-Anne Luck, 9 St John Street Chambers The potential impact of recent UK and European decisions upon the cost of motor insurance and claims following road traffic accidents cannot be underestimated. The industry is awaiting appeals on two important decisions, which have caused ripples for insurers and the MIB alike... |
 Case Summary: CS v Alan Smith, Northampton CCMCC - Emma Melia & Sarah Wright, Spencers Solicitors The Claimant (age 32 at the time of the accident) was riding a Suzuki GS500 motorbike. He went round a roundabout when he noticed two other cars in front of him. They were indicating to turn right which prevented the Claimant from overtaking them... |
 Balancing the benefits: yoga's healing power has a valuable place in brain injury rehabilitation - Emma Dryden, George Ide LLP The effects of traumatic or non-traumatic brain injury depend upon a number of factors but, in general, symptoms can range from physical and cognitive to emotional and behavioural... |
| Summary of Recent Cases, November 2018 Here is a summary of the recent notable court cases over the past month... |
PI Practitioner, November 2018 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Surrey County Council v Hilliard (2018)... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Helping Doctors Who are Suicidal 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP considers a different approach to suicide based upon the biopsychosocial model and response to potentially modifiable risk factors... |
 How Will the New Advice for Paediatric Experts Affect the Availability of Experts for Defence Work in Family Courts? - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP DCH raises concerns that the new guidance for paediatric expert witnesses tightens the availability of experts prepared to consider the emotional evidence that might support parents... |
| Book Reviews | |
 Book Review - 'Clinical Practice and the Law: A Legal Prima for Clinicians' by Giles Eyre Published by Professional Solutions Publications London (2018). Reviewed by Professor Hugh Koch. |
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October 2018 Contents
 Welcome to the October 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, October 2018 | |
| Duce v Worcestershire Acute Hospitals NHS Trust [2018] PIQR P18: The implications for Chester v Afshar - Michael Patrick, Hailsham Chambers Consider the traditional medical consent scenario: a doctor, in breach of duty, fails to advise her patient of a material risk of a given treatment. The treatment proceeds, the risk materialises causing injury, and the patient seeks compensation. There are three logical causation possibilities. But for the failure to properly advise... |
 Tuson v Murphy [2018] EWCA Civ 1491 - James Manning, Bevan Brittan LLP In Tuson v Murphy [2018] EWCA Civ 1491, the Court of Appeal overturned a costs order made against the Claimant, who had been ordered to pay a proportion of the Defendant's pre-Part 36 offer costs when she accepted the offer after the relevant period had expired... |
 Editorial: When can a Claimant be allowed a Second Bite at a Cherry? - Aidan Ellis, Temple Garden Chambers Following the Jackson reforms, the renewed emphasis on efficiency and compliance with rules, practice directions and orders led to an increased number of claims being struck out. Those technical knockouts, however, would provide only temporary relief to defendants, if claimants could simply... |
 Kids will be kids: What is the extent of the duty owed by schools to their pupils? - Lauren Seagart, Queen Square Chambers How far does the duty of care owed by schools to pupils extend? We were all familiar with the shouts of 'WALK! Don't run' from teachers as we careered around school corridors. But can failure to echo this stern warning amount to a breach of duty?... |
 What makes an injury 'actionable'? The Supreme Court offers some guidance - Joanna Lewis, Queen Square Chambers Although Dryden v Johnson Matthey PLC [2018] UKSC 18 is a case involving industrial disease, the Supreme Court's decision has wider significance in helping to clarify what makes a personal injury 'actionable'... |
The importance of NICE guidance in a clinical negligence claim regarding the diagnosis and management of pre-eclampsia - Sam Holden & Gemma Dunn, Clyde & Co The Court recently considered the importance of NICE guidance in a clinical negligence claim regarding the diagnosis and management of pre-eclampsia. Clyde & Co were instructed by NHS Resolution on behalf of the Trust. The decision reinforced the position that NICE guidance (and other specialism-specific guidance) should be followed unless there is a clinically justified reason to depart from it... |
http://www.pibulj.com/content/law-journal-summaries/news-category-2/4668-deborah-tilsley-v-derbyshire-community-health-services-andrea-ribchester-hodgson-sarah-wright-spencers-solicitors  A on behalf of Estate of B v C NHS F Trust - Andrea Ribchester-Hodgson & Sarah Wright, Spencers Solicitors B was diagnosed with lung cancer in or around November of 2011 and was advised that there was no treatment for her condition. She was discharged from hospital and no follow up by the respiratory department was arranged. B suffered increased pain, reduced mobility and her health deteriorated because of the absence of any treatment / any accurate diagnosis for what was in actual fact an inflammatory arthritic condition... |
Deborah Tilsley v Derbyshire Community Health Services - Andrea Ribchester-Hodgson & Sarah Wright, Spencers Solicitors The claim against the Defendant Trust was brought by the Executor of the Estate of the deceased following an assault upon the deceased by another patient when he was a patient in the Defendant hospital, compounded by the subsequent failure of medical staff to assess his injuries sustained in the assault, leading to a delayed diagnosis of a fracture of the neck of the femur and thereafter delay in treating the same... |
 Pleadings and fundamental dishonesty: Howlett affirmed as film director's compensation claim is dismissed - Jeff Turton, Weightmans LLP David Pinkus v Direct Line [2018] EWHC 1671 is an example of another claim being dismissed under section 57 Criminal Justice and Courts Act 2015. The claimant raised a preliminary issue as to whether the defendant should be prevented from arguing the claim was dishonest at all. The facts The claimant was involved in a road traffic accident on 21 August 2012 with the defendant's insured... |
 Laurence Sprey -v- Rawlinson Butler LLP [2018] EWHC 354 (QB) - Andrew McAulay, Clarion Following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2013 (LASPO), solicitor/own client costs disputes have increased. The case of Laurence Sprey -v- Rawlinson Butler LLP [2018] EWHC 354 (QB) is a good case to read for anyone who would like to learn more about these types of disputes... |
 Accommodation; Discount or Dilemma? - Trevor Ward, Fletchers Solicitors Will the likely change in the discount rate for personal injury losses affect the way in which the Courts deal with the calculation of accommodation claims in serious personal injury cases?... |
 Fundamental dishonesty in occupational disease claims - Paul Debney, Weightmans LLP In this, the first of a series of 3 articles, Paul Debney, Partner and head of disease counter fraud at national firm Weightmans LLP, highlights some of the issues surrounding fundamental dishonesty ('FD') in disease claims... |
| Summary of Recent Cases, October 2018 Here is a summary of the recent notable court cases over the past month... |
PI Practitioner, October 2018 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. In this month's PI practitioner update we consider the case of Alpha Insurance A/S v (1) Lorraine Roche (2) Brendan Roche [2018] EWHC 1342 (QB) which concerns discontinuance and fundamental dishonesty... |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No 19: Case: Wright v First Group PLC (12 January 2018, Queens Bench Division, Foskett J Unreported) - Professor Hugh Koch, Dr Claire Browne, Dr Andrew Medley Personal Injury damages claimed by pedestrian crossing the road when hit by a bus. Two accident reconstruction experts were instructed. Following a joint discussion, both experts signed a joint statement apparently stating that there was nothing the bus driver could have done to avoid the collision. Claimant confirmed this reflected a material change in his expert's opinion and applied for permission to instruct a new expert and adjourn the trial... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 The Biopsychosocial Consent Process: Changing how Clinical Negligence is Decided? - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP challenges the belief that informed consent is the gold standard and shows how the BPSM sees consent as a transaction between the doctor and patient... |
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| Book Reviews | |
| Book Review - 'Tough Choices: Stories from the front line of medical ethics' by Daniel Sokol (Book Guild, 2018) Reviewed by Tim Kevan |
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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)
