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May 2017 Contents

Welcome to the May 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
Editorial: Further Thoughts on Fundamental Dishonesty - Aidan Ellis, Temple Garden Chambers
In claims to which qualified one way costs shifting applies (now the vast majority of personal injury claims though some older cases still remain), it is often the issue of fundamental dishonesty in CPR 44.16 which determines whether or not the Defendant can enforce an order for its costs against the Claimant...
FREE BOOK CHAPTER: Historical Background to the Present Legislation (From 'A Practical Guide to Claims Arising from Fatal Accidents' by James Patience)
In this chapter the development of the current statutory framework for damages for wrongful death is examined. The current statutory framework is summarised. ...
FREE BOOK CHAPTER: An Introduction to Personal Injury Litigation (From 'An Introduction to Personal Injury Law' by David Boyle)
Personal injury law is ubiquitous. Whilst only a tiny fraction of day to day legal practice in this country, it differs markedly from other areas of law because those engaged in this sort of law often work on an industrial scale, even though most individual clients only have one claim and might reasonably hope to receive a bespoke service. The advent of cold calling, advertising, and publicity from, amongst other sources, the insurance industry itself, has ensured that people are more aware than ever of the possibility of claiming compensation for injuries suffered as a result of somebody else's wrongdoing...
The Law of Unintended Consequences (or Determining Applicable Law in Cross-Border Cases) - Kelvin Farmander, Trethowans LLP & FOIL
The recent decision in Marshall v MIB (1) Pickard (2) Generali (3) 2017 provides a useful example of how the rules governing which laws apply in cross border personal injury cases can potentially give rise to unintended consequences...
The Journey Continues - Henrietta Hughes, Farrar's Building
In Mohamud v William Morrison Supermarkets Plc [2016] AC 677, the Supreme Court declined the opportunity to broaden the test for vicarious liability. Fletcher v Chancery Supplies Ltd [2016] EWCA Civ 1112, a case involving a collision, sees the application of Mohamud...
'Pure Diagnosis' and 'Pure Treatment': A case considering whether the Bolam principle is applicable across the spectrum of Clinical Negligence cases - Penny Fitzpatrick & Marianne Walker, Slater and Gordon
In the recent case of Desmond Muller v Kings College Hospital NHS Foundation Trust the key question to be answered was whether the test in Bolam should be applied to a case where the sole issue of breach of duty was a misdiagnosis...
Fresh Consideration of How Discount Rate Is Set Is a Post-Election Priority - Shirley Denyer, Shirley Denyer LLP & FOIL
Since the Lord Chancellor announced a change to the discount rate on 27 February, the Government has also triggered Article 50 and announced a general election. Whilst these events may have eclipsed the Lord Chancellor's decision in the headlines, the effect of such a significant rate change is still being felt by insurers, compensators and the public sector - and given the delay in Parliamentary activity brought about by the general election - will be felt for some time yet...
The Costs Conundrum: Access to Justice but at What Price? - Elizabeth O'Mahony, BL Claims Solicitors
As medical negligence Claimant lawyers gradually get accustomed to corresponding with NHS Resolution, leaving the phonetic NHSLA to one side, I found myself wondering what was the purpose of the rebranding exercise...
The Optimistic Surgeon and the Unhappy Patient: Lessons from the Courtroom - Paul Sankey, Foot Anstey LLP
When an optimistic surgeon met an unhappy patient in court, it was the patient who had the judge's sympathy. The story has lessons for all surgeons. The courts now expect much more when it comes to advice and the case of Thefault v Johnson is an example...
What Is 'Unreasonable Behaviour' for the Purposes of Small Claims Track Costs? - Thomas Crockett, 1 Chancery Lane
If the most recently mooted Government reforms as to the financial limit of the Small Claims Track of the County Court go through, litigants will increasingly find themselves litigating within a regime with extremely tight strictures as to the recoverability of litigation costs. As all with experience of such cases will know, there is an exception per CPR 27.14(2)(g) to the effect that further costs may be assessed summarily in cases where one or other party has behaved "unreasonably"... whatever that means...
How To Deal With A Hardline Negotiator - Justin Patten, Human Law
According to media reports, The EU's chief negotiator has admitted to a clash with Theresa May during last month's dinner in Downing Street and warned that the size of the multibillion pound bill the British government will be presented on leaving the bloc will be 'incontestable'...
Summary of Recent Cases, May 2017
Here is a summary of the recent notable court cases over the past month...
PI Practitioner, May 2017
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Why do litigants instruct solicitors? Is peace of mind one of their main objectives? It seems the answer is 'possibly'....
An Update from North of the Border, Edited by John Wilson, Brodies LLP
Contributory Negligence Discount of 96.5% in First Sheriff Court Jury Trial - Catriona Hepburn & John Wilson, Brodies LLP
Scotland's County Court, the Sheriff Court, has recently seen the reintroduction of jury trials in civil cases. The 2015 legislation creating the specialised All-Scotland Sheriff Personal Injury Court (ASPIC) brought back the use of juries for the first time since 1980. The first trial implementing this new option was heard earlier this month...
Medico-Legal Articles, Edited by Dr Hugh Koch
Legal Mind Case and Commentary No 14: Uncertainty in Judicial Decision Making: A Case to Answer? - Dr Hugh Koch, Dr Elizabeth Boyd, Dr Tracy Thorns & Dr Louise Payne, Hugh Koch Associates
Ludlow vs National Power PLC (2000) EWCA Civ. 289. This interesting and complex case involved an appeal by the claimant against the decision about evidence and quantum of the judgment made (1999). The substance of the case was a work accident in which the claimant was thrown forward on a pay-load (motorised shovel). The psychological/psychiatric problems were the subject of the appeal based on, allegedly, insufficient reason for rejecting this head of damages...
Clinical Negligence Medicine by Dr Mark Burgin
Short Notes on Deafness 2017 - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving deafness....
Short Notes on NSAIDs - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving non steroidal anti-inflammatory drugs...
Short Notes on Breast Cancer 2017 - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving breast cancer...