‘Knowledge’ for Limitation Purposes: Is It Sufficient for a Claimant to Believe the Surgeons Had Resected Too Much Acromion When in Fact They Had Completely Detached the Deltoid Muscle? - Simon Wheatley, 7 Bedford Row

04/05/13. The definition of knowledge for the purposes of sections 11 and 14 of the Limitation Act 1980 is a subject which has generated a generous amount of legal scholarship. One only has to think of Nash v Eli Lilly [1993] 4 All ER 383, Forbes v Wandsworth Health Authority [1996] 4 All ER 881 and Spargo v North Essex District Health Authority (1997) PIQR 235 to realise how many times the central issue of what knowledge is required and when it is triggered has been analysed and considered. And behind that triumvirate there lies a depth of further cases, all contributing to the subject. So you might think that there would be no requirement for...

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Smith v Fordyce and Quinn Insurance [2013] EWCA Civ 320 - Dr Nicholas Braslavsky QC, Kings Chambers

15/04/13. C was the front seat passenger of a motor vehicle being driven by D1. The vehicle skidded on a bend on minor country road in Devon. D1 lost control and the vehicle struck the gatepost of a house with force. C suffered a head injury. D1 informed the police and his insurers (D2) that the loss of control occurred because of the presence of unforeseeable black ice. C had little recollection of the events. Meteorological evidence confirmed the likelihood of black ice in the vicinity. Following the commencement of proceedings and a chance meeting between D1 and C, D1 revised his position and alleged that although there might have been black ice in the vicinity the loss of control occurred because the vehicle was being driven too fast and, in the circumstances, negligently. D2 successfully applied to join the action alleging that D1’s revised version of events was false (for a reason not positively asserted) and that the initial version was correct and the collision occurred because of a non-negligent skid on black ice. Both C and D2 called expert evidence which disagreed as to the likely location of the skid and the reasons for the collision. The trial Judge held that D1 was untruthful and that, on the facts, D2 had laid a sufficient evidential foundation to rebut the presumption in a case such as this that an unexplained loss of control was caused by the negligence of the driver (D1). C appealed unsuccessfully. The Court of Appeal upheld the Judges approach to both the issue of negligence generally and the specific application of the maxim res ipsa loquitur.  Toulson LJ (as he then was) giving the Judgment of the Court held that a skid in the presence of black ice was not to be regarded as a ‘neutral event” (see Barkway v South Wales Transport Co Limited [1949] 1 KB 54) but an unusual and hidden hazard. The doctrine of res ipsa is a rule of evidence based on fairness and common sense. C need not show precisely how the event occurred in order to succeed under the maxim. There may be a combination of factors which, without more, lead to the drawing of a proper inference of negligence. A car going off the road is an obvious example. Unexplained failure to maintain proper control will justify the drawing of the inference. In those circumstances, the burden lies upon the defendant driver to establish facts from which it is no longer proper for the Court to draw the initial inference. That burden was discharged in this case and the Judge was correct in arriving at that conclusion.

The ratio of the case re-states principle. However, what clearly emerged from the case was the appreciation that (a) the presumption of negligence can be rebutted even in a clear loss of control case but (b) only on the basis of clear, cogent and compelling evidence (lay and expert) which would justify depriving an ‘innocent’passenger  from a remedy in damages. The slightly unusual feature of the case is that the Court reached that conclusion notwithstanding the driver’s own concession of negligence (albeit late via a volte face).

Dr Nicholas Braslavsky QC
Kings Chambers 

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April 2013 Contents

Welcome to the April 2013 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 quiz is designed to meet the CPD requirements of the SRA and provides 1.5 hours accredited distance learning. Law Brief Publishing Ltd is registered with the Solicitors Regulation Authority for England and Wales, ref EGB/LBPL. The CPD is also valid for cILEX (formerly ILEX) members and for members of the Chartered Insurance Institute (CII). Please check with the relevant organisation for full details of their CPD rules. Take the CPD Quiz    Feedback Form    CPD Information
Personal Injury Articles
Priming the Pump: Solicitors and Non Party Costs Orders - David Sawtell, 4 King's Bench Walk The litigation in Germany v Flatman; Barchester Healthcare Ltd v Weddall [2013] EWCA Civ 278 posed a very important question for personal injury litigators: in what circumstances do solicitors acting for claimants make themselves vulnerable to an application for non party costs?	Credit Hire: Enforceability Update - Gary Herring, Keoghs LLP Once the most contentious area of dispute between credit hire companies and insurers, arguments over the enforceability of credit hire agreements have subsided considerably since the landmark decisions in Dimond v Lovell and Burdis v Livsey. Credit hire organisations now without known...
Secondary Victims and Psychiatric Injury: What Is the Relevant Event When Considering Proximity? - Rhiannon Lewis, 1 Chancery Lane The Court of Appeal has recently given judgment in relation to recoverability for psychiatric injury by a "secondary victim".	The Future Lost Earnings of Catastrophically Injured Children - Chris Gutteridge, Exchange Chambers How is a judge supposed to make any estimation of what a young child would have earned in his or her adult life in the absence of a catastrophic injury? It is an unquestionably difficult task. That task falls on the claimant's representatives. The court must be provided with...
An Introductory Guide to Rome II for Personal Injury Practitioners - Charles Dougherty QC & Marie Louise Kinsler, 2 Temple Gardens This brief guide considers the key provisions in Rome II which are likely to be of interest to personal injury practitioners.	Skidding on Black Ice: is the Driver at Fault? (Smith v Fordyce [2013] EWCA Civ 320) - Tom Gibson, Outer Temple Chambers Res ipsa loquitur did not assist the claimant passenger in this case where the defendant driver of the only car on the road crashed his BMW into a wall after skidding on black ice.
Cost Budgeting: Creating a Plan for the Case - Bill Braithwaite QC, Head of Exchange Chambers Going back to the cost budgeting issue, I suspect that lawyers will now have to create a plan for the case. For many years, I have been urging claimants to predict a plan for life, which involves them in looking into the future and making all sorts of major decisions as to how they hope that their lives will develop...	Editorial: Assessing the Impact of the Civil Procedure Reforms - Aidan Ellis, Temple Garden Chambers There is no mistaking the key issue this month. Everyone is concerned about the long term impact of the civil procedure reforms which came into force on 1 April 2013. In preparation for the storm, the last month has been packed with unprecedented numbers of training sessions and bulletins.
New CPR 3.9: Ending the "Culture of Toleration of Delay and Non-Compliance With Court Orders" and a "Different Justice"? - Thomas Crockett, 1 Chancery Lane 1st April marks the end of an era. Not a particularly long era. But all of fourteen years of the Civil Procedure Rules as we have known them. From the 1st April 2013, the CPR will be significantly altered for every civil litigant. Most pertinently, the...	The Revised Costs-Only Procedure - Matthew Hoe, Jaggards & Taylor Rose Law Lord Justice Jackson had no recommendations to make about the costs-only procedure in his Final Report. But on 1st April 2013, it changed anyway. Those changes may turn a simple procedure into a new costs battleground.
Jason Sharp v Top Flight Scaffolding Ltd - Nicholas Baldock, 6 Pump Court The case of Jason Sharp has raised some interest in Personal Injury circles given the high level of contributory negligence (60%) ascribed to the Claimant. A number of authorities were cited and reviewed at the hearing although only...	RTA Post Jackson: The Key Facts You Need to Know - Andrew Mckie, Clerksroom The reforms apply across civil litigation, but will have a particular impact in personal injury cases, where no win no fee CFAs are used significantly. A summary of the main changes appears online at the justice.gov.uk website. Here's what you need to know...
Stress at Work: Capping the Claim Is Not Clear Cut - Flora Wood, Ashfords Solicitors Stress at work cases are notoriously complex, as exemplified by Lord Justice Hale in the case of Hatton v Sutherland [2002], who said: 'many stress-related illnesses are likely to have a complete aetiology with several different causes. In principle, a wrongdoer should pay only for...	Expert Evidence and the Amendments to CPR 35 - Steven Weddle, Hardwicke The case of the Ikarian Reefer 1993 2 LILR 68, 81-82 is still the definitive case in respect of the duties and role of an expert witness and the introduction of the Civil Procedure Rules in 1999 was in part designed to reinforce that. In 2000 HHJ Toulmin further refined the definition...
Jason Sharp v Top Flight Scaffolding Ltd [2013] EWHC 479 (QB) - Nigel Cooksley QC, Old Square Chambers In this case the court had to consider both primary liability and contributory negligence where the facts of this scaffolding accident were largely agreed. The claimant was an experienced scaffolder and had worked in the industry for over 20 years. For much of that time he had...	A Jackdaw's Nest, a Curate's Egg, a Tinkerer's Charter and Winston Churchill's Pudding: Health and Safety in the House of Lords: Part 1 - Roderick Abbott, 1 Chancery Lane Question: Which is the odd one out? Answer: The first one; all the others were used by peers to describe the Enterprise and Regulatory Reform Bill at its Second Reading in the House of Lords. There is no doubting the Bill's breadth...
Claims Against the Ministry of Defence Arising Out of the Iraq War - Geoffrey Kelly & Victoria Ellis (Pupil), Pump Court Chambers During the course of the Iraq war, there was considerable concern voiced about soldiers in lightly armoured "Snatch" Landrovers being exposed to unnecessary risk of injury from Improvised Explosive Devices or "IEDs". In fact, numerous soldiers were killed or injured. In Smith & Ors v MoD [2012] EWCA Civ 1365, the Court of Appeal considered whether...	Medical Causation in Noise Induced Hearing Loss Cases - Philip de Berry, 18 St John Street Chambers & Philip Jackson, Imperium Law Solicitors This article focuses on some of the nuances in the Coles, Lutman and Buffin Guidelines by reference to the recent case of Aldred v Cortaulds Northern Textiles Limited, Liverpool County Court, 2012 (unreported).
Civil Justice Reform or a Sausage Factory in the Making? - John van der Luit-Drummond Examining the Lord Jackson Reforms and the impact they may have on civil litigation and law firms in England and Wales. The chief executive of the Law Society, Des Hudson, has admitted in an article with Litigation Futures, that some law firms specialising in personal injury litigation will...	Simmons v Castle: Round 2 - Adam Gadd, Pump Court Chambers The Court of Appeal revisited its judgment handed down on 26 July 2012, where it announced that from 1 April 2013, general damages in tort cases would be increased by 10% from current levels.
Summary of Recent Cases, April 2013 Here is a summary of the recent notable court cases over the past month.	PI Practitioner, April 2013 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Relief from sanctions - the new CPR 3.9
Medico-Legal Articles, Edited by Dr Hugh Koch
Employment Stress: How Can We Help Employees and Employers - Hugh Koch, Simon Midgley & Julie Bevan-Pearson Review of recent publication: Employment stress, Legal and Personal Injury Issues, Koch, Beesley & Byram (2013). This interesting article discusses how to consider and define employment stress, what factors contribute to it and maintain it and what services, both preventative and rehabilitative are necessary to maintain a healthy workforce.