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April 2017 Contents

 

Welcome to the April 2017 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.

 

Personal Injury Articles, April 2017
UK Personal Injury Reform and New Ogden Rates Go Into Law - Jacob Maslow, LegalScoops.com
Personal injury reform in the United Kingdom is changing at a rapid pace. A long way back, in 1995, there was no advertising or referral fees for legal services. No win, no fee cases led to lawyers fronting the risk of losing a claim...
Deregulation of Health and Safety Law for the Self-Employed - Matthew Hodson, Farrar's Building
The Health and Safety at Work etc. Act 1974 ('HSWA') has been amended by: The Deregulation Act 2015, which came into force on 26th March 2015; and, The Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015, which came into force on 1st October 2015 ('the Regulations')...
Criminal Injuries Compensation: Time for Change - Neil Sugarman, Neil Sugarman, President of APIL
The first ever scheme to compensate victims of violent crime in Great Britain was launched in 1964. It was an ex gratia scheme provided by the government of the day and followed ten years of political lobbying by justice campaigners such as Margaret Fry, who was determined to ensure that innocent victims were properly compensated...
Comment on the Consultation, Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims - Agata Usewicz, Hodge Jones & Allen
News that the Department of Health's long-awaited consultation Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims will close on 2 May this year was met with considerable frustration by those working in the field of clinical negligence, not least because the consultation will close before the National Audit Office's (NAO) investigation into the operations and efficiencies of NHS Resolution (formerly known as the NHSLA) will report its findings...
Editorial: Parenting and Personal Injury - Aidan Ellis, Temple Garden Chambers
Confronted by bad weather and overly energetic children, I recently gave in and took my family to an indoor soft play centre. Once inside, it transpired that many parents had had the same idea. It was full of adults sipping coffees whilst children swarmed and rampaged over the soft play equipment. I soon had the opportunity to take a closer look at the chaos because my daughter habitually gets stuck on the highest and furthest away section of soft play equipment...
Third Parties (Rights Against Insurers) Act 2010: Winners and Losers - Marlene Henderson, Browne Jacobson LLP
The Third Parties (Rights against Insurers) Act 2010 ("2010 Act") which came into force on 1 August 2016 is a clear victory for claimants wishing to pursue claims against insurers of dissolved companies or insolvent individuals. The 2010 Act is intended to resolve the problems which were encountered with the application of the Third Parties (Rights against Insurers) Act 1930 ("1930 Act")...
Mcgeer v Macintosh: Lethal Weapon 6? - Charles Feeney, Complete Counsel
In McGeer v Macintosh (2017 EWCA Civ.79), the Defendant's appeals both against primary liability and the assessment of contributory negligence risen from a road traffic accident involving an HGV and a cyclist were both dismissed. Having rejected the Defendant's appeal on primary liability, Lord Justice Treacy considered the question of apportionment. Notwithstanding that the Claimant had cycled to the nearside of the Defendants' vehicle when it had been...
How Will the New Motor Insurers Bureau Agreements Affect Motor Claims in the UK? - Michelle Reilly, Hill Dickinson LLP
The Motor Insurers Bureau has released a new Untraced Drivers Agreement 2017 and a Supplementary Agreement to the Uninsured Drivers Agreement 2015. Both apply to accidents that occurred on or after 1st March 2017. Michelle Reilly takes a look at the new agreements and considers how they will affect motor claims in the UK...
Payment of the Incorrect Court Fee; Does It Give Rise to a Limitation Defence? (Answer: Almost Certainly Not) - Andrew Roy, 12 King's Bench Walk
Wells v Wood, Lincoln County Court, HHJ Godsmark QC 9 December 2016, 2016 WL 07330089...
Consent to Medical Treatment: Must the Surgeon Advise Who Will Operate? Can the Patient Choose? - Paul Sankey, Foot Anstey LLP
Does a patient have a right to choose who will carry out their operation? Is her consent to treatment valid if there is a late change of surgeon? These are questions which have caused concern to many medical professionals following the decision in Kathleen Jones v Royal Devon & Exeter NHS Foundation Trust in September 2015. That decision is one of several in the wake of the landmark Supreme Court decision in Montgomery v Lanarkshire Health, which redefined a doctor's duty in advising and obtaining consent to treatment...
Court of Appeal in Sharp v Leeds CC Decides Fixed Costs 'plainly apply to the costs of a PAD application' in Ex-Protocol Cases - Marcus Coates-Walker, St John's Chambers
In the case of Sharp v Leeds City Council [2017] EWCA Civ 33 the Court of Appeal (COA) determined a "short but important point" in relation to pre-action disclosure (PAD) application costs, which are ordinarily governed by the general rule and exceptions in CPR 46.1(2) and (3)...
Thoughts on the Discount Rate Review - Nicola Bickham, Veale Wasbrough Vizards
Claimant personal injury lawyers welcomed the announcement made by the Lord Chancellor, Liz Truss, that the way future losses in personal injury claims will be calculated has been changed to reflect the current return on investments. The last time a review took place was in 2001...
Critical Time Ahead for PI Firms - Lesley Graves, Citadel Law
With reform firmly on the horizon, firms need to take a critical look at the profitability of their personal injury work and consider a radical shake up, advises Lesley Graves...
Bolam Under Attack: Muller v Kings College Hospital and Webster v Burton Hospitals - David Sanderson, 12 King's Bench Walk
Two judgments handed down recently explore the boundaries of the Bolam principle and limit its application. In the first, Kerr J doubted that Bolam was apposite where the court is concerned, not with a choice between two courses of treatment, but instead with a missed diagnosis. In the second, the Court of Appeal rejected the judge's application of Bolam, in circumstances where a patient had been entitled to information about risks before deciding between treatment options...
Summary of Recent Cases, April 2017
Here is a summary of the recent notable court cases over the past month...
PI Practitioner, April 2017
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: McBride v UK Insurance Ltd and Clayton v EUI Trading Ltd [2017] EWCA Civ 144...
Using Mathematics in Loss of a Chance Cases - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP explains how mathematics can improve consistency and fairness in Loss of a Chance cases...
An Update from North of the Border, Edited by John Wilson, Brodies LLP
Sanction for Counsel Allowed on Appeal - Cumming v SSE Plc - Catriona Hepburn, Brodies LLP
In the Sheriff Court (Scotland's County Court) parties will not automatically recover the cost of counsel and must instead seek approval, or sanction, from the Sheriff. This case was an appeal against the sheriff's decision to approve the pursuer's (claimant's) use of counsel. Despite the case settling for just £9,175 the Sheriff Appeal Court upheld the Sheriff's decision that the use of counsel was reasonable...