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October 2013 Contents

Welcome to the October 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.

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Personal Injury Articles
A Nearby Defect Ought to Have Triggered a Thorough Investigation of the Area of the Highway, That Would Have Identified the Index Defect (Under a Parked Car) - James Osborne, Clerksroom
Simson v London Borough of Islington, [2013] EWHC 2527 (QB) was an appeal against the decision of Mr Recorder Bowley QC sitting in the Clerkenwell and Shoreditch County Court in relation to a claim for damages for breach of section 41 of the Highways Act 1980. In the first instance the judge found for the Claimant and awarded...
Suspicions, Beliefs and Knowledge: the Date of Knowledge Test After AB v Ministry for Defence - Martin Canny, Barrister
The 'date of knowledge' provisions in s 14 of the Limitation Act 1980 ('LA 1980') play an important role in personal injuries litigation. The predecessor to this section was introduced in 1963 to reverse the result of Cartledge v E. Jopling & Sons Ltd [1963] AC 758, where workers exposed to noxious dust found that their cause of action for damages for personal injuries had become become statute barred prior to them realising they had...
Vicarious Liability: The Times, They Are a-Changing - Thea Wilson, 12 King's Bench Walk
Vicarious liability is a long-established doctrine of English law; dating back at least as far as the seventeenth century. The doctrine was "founded in policy rather than conceptualistic reasoning and essentially creates strict liability of employers for their employees' acts because for policy reasons it is considered right to impose liability. As with many areas of the common law, the doctrine has always been in a state of evolution, but this has particularly been the case over recent years.
Unpicking the Patchwork Quilt: Psychiatric Injury and Secondary Victims - Vanessa Cashman, 12 King's Bench Walk
It is agreed by most practitioners in this field that the law on recoverability for psychiatric injury as sustained by secondary victims is extremely messy. It consists of many conflicting decisions all uncomfortably pieced together in what has been and still can be termed a patchwork quilt. This was so even in 1999 when Lord Steyn said that the law on the recovery of compensation for pure psychiatric harm "is a patchwork quilt of distinctions which are difficult to...
Does the Thing Ever Speak for Itself in Medical Claims? - Dr Jock Mackenzie, Anthony Gold Solicitors
Two cases in the last year have again explored the concept of res ipsa loquitur, the Latin maxim literally meaning "the thing speaks for itself", and its applicability in medical negligence cases.
After the Revolution - Aidan Ellis, Temple Garden Chambers
Claimants beware. Section 69 of the Enterprise and Regulatory Reform Act 2013 came into force on 1 October 2013. As a first year law student I remember being surprised by Wade's use of the dramatic term "revolution" to describe changes in the fundamental rules regarding parliamentary sovereignty...
Catastrophic Injury Claims Without Recourse to the Courts - Bill Braithwaite QC, Head of Exchange Chambers
This may sound pathetic, but the best read I've had in a long time is the 2013 Jackson ADR Handbook! In his Foreword, Lord Dyson, Master of the Rolls, says: ".... this book should be as tried and trusted as the White Book and the Green Book.". I think that ADR may represent a revolution which is about to happen in personal injury litigation...
Post-Jackson Costs Cases - Sue Nash, Litigation Costs Services
We are now 6 months+ into the post-Jackson era and while the Court of Appeal has yet to get involved (although see Mitchell below), there have been a few cases that may indicate how the new regime will affect us all in the future. Most of these have been to do with compliance with the new Rules and I urge everyone to read the 18th lecture in the Jackson implementation series of lectures which was delivered by the Master of the Rolls on 22nd March this year...
No Reasonable Drunks - Marc Rivalland, 1 Chancery Lane
In the leading case of Owens v Brimmell [1977] QB 859, a passenger who was injured in a car accident had his damages reduced by 20% because he had accepted a ride with a driver whom must have known had too much to drink. In a much quoted dictum, Russell J held...
Suitability and Work Equipment: a New Test and an Even Greater Burden on Employers? - Jack Harding, 1 Chancery Lane
On 23rd April 2013 the Enterprise and Regulatory Reform Act received royal assent. One of the most controversial changes that it will introduce is an amendment to the Health and Safey at Work Act 1974, the effect of which will be to abolish civil liability for breach of the various 'six pack' regulations which govern employer's liability. The regulations can still be relied upon as...
The Changing Face of a Law Firm - Jeanette Aspinall, Fletchers Solicitors
When the delayed Jackson reforms finally came into effect in April this year, firms across the UK braced for the worst. Six months on, Jeanette Aspinall, head of medical negligence at Fletchers Solicitors, reveals an industry in flux and how the changes have led to innovation.
CRO's: When Is It Time to Go for 'the General'? - Lisa Dobie, 1 Chancery Lane
Some of you in the world of personal injury and clinical negligence may have had the misfortune of encountering vexatious litigants. Those litigants where another file opens, before the last file is closed - where much time, money and energy is spent on claims and applications that are eventually struck out as being totally without merit.
What is a Montreal Convention "Accident"? Recent Court of Appeal Guidance - Matthew Chapman, 1 Chancery Lane
Ford v Malaysian Airline System [2013] EWCA Civ 1163 (27 September 2013) - The Claimant was travelling on the Defendant's scheduled flight from Heathrow to Melbourne, via Kuala Lumpur. She fell asleep during the flight and woke up at 6am and went to the toilet. She found that she was unable to urinate, which she attributed to her pre-existing cystitis. Her cystitis medication was inaccessible...
Failure to File Costs Budgets: a Recent Example in Practice - Jack Harding, 1 Chancery Lane
Pursuant to CPR 3.12 and 3.13, unless the Court orders otherwise all parties (unless they are litigants in person) in a multi-track case commenced after 1st April 2013 must file and exchange costs budgets. The date for doing so will either be prescribed by the Notice of Proposed Allocation served by the Court pursuant to...
Case Managers and Accreditation: The Current Situation - Jan Harrison, Joanna Collins & Niccola Irwin, Harrison Associates
The authors, senior occupational therapists and case managers with Harrison Associates, consider the need for accreditation of case managers in the United Kingdom. They look at the evolution of the role of case manager, the role and function of a case manager, the current lack of a formal accreditation regime and conclude that...
LASPO - Six Months On
It's exactly six months since the controversial reforms to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect on the 1st of April. Now that the dust has settled, what do industry figures really think of the changes, and what does the future have in store for the personal injury sector?
A Busy Day in Gwent - Ian Clarke, 1 Chancery Lane
Yesterday's Guardian reported that Cwmbran magistrates' court was closed for all normal business due to the court having to deal with 86 people, mainly from just two valleys in south Wales, being accused of taking part in one of the UKs largest "cash for crash" frauds. The charges ranged from single counts of...
Farewell to Civil Actions for Breach of Stat. Duty: Revision To s.47 H&SW Act '74 by #ERRAct In Force From 1st October - Jamie Clarke, Hardwicke
Philip Mead of Old Square suggested an interesting angle to post 1/10 claims: taking (of course) the starting point that negligence actions survive, i.e. breach of the duties at common law to provide safe place/systems of work etc remain actionable in damages...
Mental Capacity - Bill Braithwaite QC, Head of Exchange Chambers
We had a meeting of our Court of Protection team yesterday, and it highlighted the many areas of difficulty and dispute in relation to people who do not have mental capacity...
Summary of Recent Cases, October 2013 
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, October 2013
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: accidents at work.
Medico-Legal Articles, Edited by Dr Hugh Koch
Factors Affecting Good Functional Recovery Following Traumatic Brain Injury - Implications on Future Health, Well Being and Employment Status - Dr Karen Addy, Consultant Clinical Neuropsychologist
Traumatic brain injuries are a common consequence of high impact road traffic accidents with estimates suggesting that 25% of all brain injuries occur in this manner. In addition evidence suggests that road traffic accidents account for a far greater proportion of moderate-to-severe head injuries...