23 August 2007 - PI Practitioner

WORKPLACE REGS 12(1) AND 12(2) – FLOOR SLIPPERINESS
Ellis v. Bristol City Council [2007] EWCA Civ 685
In the Workplace (Health, Safety & Welfare) Regulations 1992, the combined effect of r. 12(1) and 12(2) was that the floor of a workplace must not be slippery. The slipperiness had to be considered in the context of the use to which the floor was put, including temporary circumstances which arose with sufficient regularity. The court had to consider the frequency of any intermittently hazardous conditions, the chance of injury and the severity of that injury.

In this case, the floor of the claimant’s workplace was frequently contaminated by urine. The surface was slippery when wet, and injury was reasonably foreseeable. The defendant was in breach of r. 12(1) and 12(2), although the claimant, having been warned of the hazard, was guilty of contributory negligence to the extent of one-third.

01 May 2006 - PI Practitioner

CONSUMER PROTECTION ACT 1987: THE TEST

Tesco Stores Ltd. V Pollard [2006] EWCA Civ 393
Section 3 of the Act sets out that a product has a defect if “the safety of the product is not such as persons generally are entitled to expect.” (Section 2, of course, sets out the liability for damage cause by such defects.) In this case, a child was injured by consuming dishwasher powder in a container fitted with a child resistant closure (‘CRC’) which he had nevertheless managed to open. The CRC did not meet the relevant British Standard, although it was found to be more difficult to open than a normal closure.

The Court of Appeal held that the Act did not import any duty on those responsible under the Act to fulfil the British Standard. To do so would effectively mean that a producer warranted that the product would fulfil the relevant standard, when the producer may never have had any contact with the purchaser. Neither would the purchaser be likely to have the faintest idea what safety standard, if any, applied to a product. The Act did not go so far. The only requirement that persons generally would be entitled to expect of a CRC is that it would be harder to open than a normal closure, and that requirement was met.

REASONABLE SECURITY FOR PERIODICAL PAYMENTS – NHS FOUNDATION TRUSTS

YM v Gloucestershire Hospitals NHS Foundation [2006] EWHC 820 (QB)
Under section 2(3) of the Damages Act 1996, a court may not make an order for periodical payments unless it is satisfied that the continuity of payment is reasonably secure. When a normal NHS trust is ordered to make periodical payments, they are reasonably secure because of section 1(1) of the National Health Service Residual Liabilities Act 1996 (‘the 1996 Act’). This requires the Secretary of State to exercise his statutory powers to ensure that all liabilities are dealt with in the event of the trust ceasing to exist.

However, an NHS Foundation Trust is in a different position. Sections 25(3) and 26(1) of the Health and Social Care (Community Health and Standards) Act 2003 give the Secretary of State a discretion to transfer the property and liabilities of a failing foundation trust. Is this sufficient to make the payments reasonably secure?

The court did not decide this; it did not need to. The NHS Litigation Authority (‘NHSLA’) is a body in respect of which, if it is the source of periodical payments, those payments are reasonably secure. If the NHSLA is named in an order for periodical payments as the source of those payments, they are reasonably secure. A framework of agreements was put in place between the foundation trust, the NHSLA, the Secretary of State and the claimant which made the NHSLA the source of the payments. Thus was the difficulty overcome.

If an order for periodical payments is sought against a foundation trust, it is very important that a similar framework of agreements is put in place. Attached to the judgment in this matter was a model form of order to be used in such matters.

23 February 2009 Summary

NEWSLETTER

LAW JOURNAL

Personal Injury Articles

Strained Relations – The Health and Safety (Display Screen Equipment) Regulations 1992 after Goodwin V Bennetts Uk Ltd - Jack Harris, 2 Temple Gardens
Despite the prevalence of computers in the modern workplace and the increasingly long hours employees are expected to undertake, there have been surprisingly few reported cases concerning the Health and Safety (Display Screen Equipment) Regulations 1992. However, in the recent case of Goodwin v Bennetts UK Ltd [2008] EWCA Civ 1374 the Court of Appeal has confirmed that the DSE Regulations place a heavy duty on employers to plan the work routines of any of their employees, who use computers at work.

Recovery of Costs in Managing Periodical Payments - William Latimer-Sayer, Cloisters
Now that periodical payments have been around for a few years, some practical difficulties have started to emerge. What happens if the defendant is late in paying or underpays? Who checks the calculation to make sure that the defendant has got it right and has correctly uprated the periodical payment to take account of the change in the relevant index?

Ex Turpi Causa: An Analysis of the Decision in Gray v Thames Trains Limited (2008) PIQR P20 - Sarah Prager, 1 Chancery Lane
All lawyers of a certain age are familiar with the Latin tag ex turpi causa non oritur actio, or, post-Woolf reforms, the maxim that one knowingly engaged in an illegal activity may not profit from it...

PI Conference Drives Debate on Reform
The impending Ministry of Justice’s Claims Reforms and the controversial issue of pleural plaques will be two of the issues likely to spark intense debate at the forthcoming Legal & Medical Conference 2009.

Instructing an Expert new to Expert Witness work. - Jenny Cotton, Mortons Marketing
Materials supply and sourcing: second in a series on briefing an Expert new to Court reporting.

PI Travel Law, Edited by Katherine Deal, 3 Hare Court

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In the recent case of Laroche v Spirit of Adventure [2009] EWCA Civ 12, the Court of Appeal provided authoritative guidance on what is meant by being carried as a passenger in a aircraft pursuant to a contract of carriage within the meaning of Articles 1 and 17 of Schedule 1 to the Carriage By Air Acts (Application of Provisions) Order 1967 (“the 1967 Order”). This article summarises this important decision in the field of aviation law and gives some practical points for practitioners.

Clinical Negligence Articles

Patients and Doctors Working Together in Partnership: Birch v UCL Hospital NHS Foundation Trust [2008] EWHC 2237 (QB) - Odette Hutchinson, Aston Business School
Of the myriad of pressing topics current in medical law and ethics, the issue of informed consent appears to be the ‘plainer sibling’. The decision by Cranston J in Birch v UCL Hospital NHS Foundation Trust in 2008 has brought into sharp relief that which many commentators already held to be true. Far from being the ‘plainer sibling’ when weighed against other prominent issues in medical law and ethics, the doctrine of informed consent, is one of the most significant principles to emerge in recent years.

Medico-Legal Articles, Edited by Dr Hugh Koch

How to manage stress during litigation: Advice to Claimants - Hugh Koch & Paul Elson
It is widely recognised that bringing a personal injury claim can be a stressful process. In addition to the distress and pain, both emotional and physical, of experiencing an injurious incident, the complex and lengthy nature of subsequent litigation is an extra stress which can reinforce or exacerbate the initial incident related problems.

Mediation & ADR Articles, Edited by Justin Patten, Human Law

Can the courts force parties to mediate? - Philip Hesketh, Hesketh Mediation
Does the court at present have any powers under the CPR to order the parties involved in litigation to mediate their dispute? If yes then would such an order breach a litigant’s rights to a fair trial under Article 6 of European Convention on Human Rights?

Marketing for Solicitors

Marketing Your Practice: Interest & Action, Understanding Competition - Jenny Cotton, Mortons Marketing
Today and everyday clients, yours and your competitors’, are under increasing pressures to review their own aims, needs and their suppliers of legal services. How does your practice compare? Who are your real competitors? Do you identify direct and indirect competition? Do you recognise “Do nothing” and/or ”Do nothing yet” as competitors to commitment to your proposals?

Charon QC

Charon QC, February 2009
Liberty and Libertarianism