News Category 2
Valid Consent: The Role of the Medical Expert - Paul Sankey, Enable Law
09/02/18. What is the medical expert's role in reporting on consent to treatment? With the change in the law following Montgomery v Lanarkshire Health Board in 2015 that role has also changed.
Medical Consent: The Law
Prior to the Montgomery decision, the courts applied the Bolam test to medical advice. The test of whether advice was adequate was whether it accorded with the practice of a responsible body of doctors practicing that discipline. Advice by an orthopaedic surgeon was adequate if a responsible body of orthopaedic surgeons would have said the same. Similarly advice by a GP was adequate if a responsible body of GPs would have given similar advice. Consent based on that advice was valid.
In Montgomery, the Supreme Court in rejected the Bolam test in relation to advice (as opposed to diagnosis and treatment). In broad terms, advice is adequate if it covers what a reasonable patient in this patient's shoes would want to know. The doctor's duty is to take reasonable care to ensure the patient knows the material risks of any recommended or reasonable alternative treatment. A risk is material if, in the circumstances of a particular case...
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Mrs Rhonda Stewart (New Rohonda White) v Lewisham and Greenwhich NHS Trust [2017] EWCA Civ 2091 - Andrew Wilson, Park Square Barristers
05/02/18. In a case where the claimant alleges breaches of an employer’s duties under the Management of Health and Safety at Work Regulations 1999, of the Manual Handling Regulations 1992 and of its common law duty of care, in relation to an injury caused by lifting an object, the Claimant must first prove that there was a real risk of injury before deciding whether there was any breach of duty.
Background
The Claimant was employed by the Defendant Trust as a Community Midwife. On 28thMay 2010, in the course of her employment, she suffered an injury to her back; she was lifting a plastic carry case that contained an oxygen cylinder and some ancillary equipment (“the case”). It was agreed that the case weighed between 7.5 and 8 kgs.
The Claimant brought a claim for personal injury alleging the Defendant’s breach of the Management of Health and Safety at Work Regulations 1999, of the Manual Handling Regulations 1992 and of its common law duty of care...
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High Court Decision Will Affect All London Pedestrians and Bus Drivers - Daniel Slade, Express Solicitors
02/02/18. A case run by Manchester-based personal injury law firm Express Solicitors, which on 7 December 2017, saw the High Court hand down an important decision that will affect all pedestrian Londoners and London bus drivers, has proved how important is for lawyers not to overlook the secondary effects of drivers’ negligence.
Heard before His Honour Judge Cotter Q.C., the case involved Claimant Jacqueline Brown and Defendant Arriva North London Limited.
A judgement was released almost immediately following the trial of the preliminary issue of liability following a road traffic accident on Sunday 30 March 2014.
The Claimant was a pedestrian who stepped off the kerb into the path of the bus as it was pulling into a bus stop in Peckham; she was struck by the bus, which knocked her forward and then hit her again, with the nearside wheel running over her lower legs, leading to severe injuries and amputation.
Prior to instructing Express Solicitors, Brown was represented by a senior catastrophic lawyer at Irwin Mitchell who advised that the case did not warrant accident reconstruction investigations. However, when she approached Express Solicitors with the case and on seeing a police video of the accident partner Daniel Slade believed her previous representatives had overlooked the separate component parts of the accident beyond the first collision. He argued that even if she was to blame for the first collision with the front of the bus, it should have stopped before its wheels ran over her later – and on that basis instructed a reconstruction specialist.
The case was denied and fought throughout, but in the High Court Express Solicitors succeeded in winning the case because the Judge found if a driver is pulling into a busy high street and such emergency is presented;
- a bus driver should be able should react to such emergencies in less than one second
- 8mph is too fast and the more appropriate speed was 5mph
- a bus driver should be braking with full force
- a bus driver should be looking predominantly at the people on the pavement
The Judge found that if the London bus driver – Mr Smith – had done all of the above, he wouldn’t have hit the claimant a second time, causing the amputation of her left leg and disabling fractures to her right leg.
Commenting on the judgement, Express Solicitors’ partner, Daniel Slade said: “We were the first to see that even if our client was to blame for the first collision, if the bus driver had been driving non-negligently, he would have seen her and reacted in time to prevent that second contact. It is only because we saw this that she will receive the compensation she deserves to deal with these life changing injuries.”
Daniel Slade
Express Solicitors
www.expresssolicitors.co.uk.
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Mind the Gap: Perversity as a Point of Appeal, an Insurmountable Chasm? - Liam Ryan, 7 Bedford Row
30/01/18. Any appeal against a County Court decision on the grounds of perversity is always going to be complex and difficult. From an Appellants point of view there will no doubt be a sense of genuine unfairness at a result and a sense of trepidation that the Judiciary may “close ranks” to protect any Judge subject to such an appeal. This is set against a Respondents desire to have a litigation concluded and to not have to re-endure the stress, risk, and cost of being forced to relitigate. Whilst the Courts have shown a willingness to consider appeals based on the grounds of perversity, it is important to understand what needs to be made out to succeed and how to differentiate between genuine and objective perversity and a party’s sense of subjective dissatisfaction at an outcome.
Perversity as a point of appeal
When considering if a Judgement should, or could be appealed as being perverse, it is absolutely vital to remember the dicta of Laws LJ in Subesh v Secretary of State for the Home Department[2004] EWCA Civ 56 namely that...
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Fixed Recoverable Costs: No Advocacy, No Fee! - Chris Boxall, Park Square Barristers
28/01/18. Christopher Boxall discusses the first instance decision in Crawshaw v Alfred Dunhill Limited (County Court Sheffield, 16.11.2017 before District Judge Bellamy).
Facts
The Claimant suffered injury by tripping over unmarked cabling at a golf tournament. There was an application for pre-action disclosure relating to (amongst other information) the contract between Alfred Dunhill and IMG Ltd. However, voluntary disclosure was made, removing the need for a hearing.
The claim was eventually notified on the portal and settled, save for the narrow issue of the cost of the application for pre-action disclosure. In short, is a Claimant entitled to recover ‘advocates costs’ if no advocacy is provided?...
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