News Category 2
Fresh Consideration of How Discount Rate Is Set Is a Post-Election Priority - Shirley Denyer, Shirley Denyer LLP & FOIL
26/05/17. 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.
To get back to basics, whilst research shows that claimants are generally unaware of the discount rate and the role it plays in calculating damages awards, it has a very significant effect on the sums they receive. An award of compensation is based on the principle that a claimant should receive full compensation to restore him or her to the position they were in before they were injured - no more nor less. When damages are paid by way of a lump sum the claimant will be able to invest the money and receive a return, which, if full damages had been paid at the outset, would result in the claimant being over-compensated. To prevent this occurring, damages are reduced by the application of a discount rate which factors in the return that the claimant will obtain, and reflects inflation, so that the lump sum and the investment return together provide full compensation.
As anyone with savings will be only too aware, not all investments are the same. To ensure that...
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The Journey Continues - Henrietta Hughes
24/05/17. In Mohamudv 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.
The facts of Fletcher are as follows. On 18th June 2011 at around 12:45 the claimant, a police officer, was riding an electric power-assisted police mountain bike along a cycle lane of the eastbound carriageway of Liverpool Rd, Eccles. Mr Derek Traynor was crossing the road on foot whilst the traffic in the carriageway was slow moving or stationary. Mr Traynor emerged from behind a transit van and collided with the claimant in the cycle lane. The claimant fell to the floor and sustained injury.
At the time of the incident Mr Traynor was employed by PBT Builders, the trading name of the defendant. They owned a shop at 432 Liverpool Rd, the same side as the cycle lane, as well as an office at 405 Liverpool Rd, on the opposite side...
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'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
22/05/17. 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.
The Facts
Mr Muller was on holiday when he first noted a painful lesion on the sole of his foot, the cause of which was unknown. He was referred to a dermatologist at Orpington Hospital who took a punch biopsy which was reported by the Defendant histopathologist to contain ‘features of an ulcer consistent with trauma’. The lesion failed to heal. An excision of the affected area was carried out in July 2012, and reported to show acral lentiginous malignant melanoma (‘ALMM’). Following diagnosis, the original punch biopsy was reviewed and found to contain histopathological features of malignant melanoma.
The Expert Evidence
The Claimant adduced expert evidence in support of his position on breach of duty that the...
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PI Practitioner, May 2017
16/05/17. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Why do litigants instruct solicitors? Is peace of mind one of their main objectives? It seems the answer is ‘possibly’.
In Gabrielle Shaw v Leigh Day (a firm) [2017] EWHC 825 (QB), the claimant appealed against the striking out of her professional negligence claim in which she had sought, amongst other things, damages for distress.
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FREE BOOK CHAPTER: Historical Background to the Present Legislation (From 'A Practical Guide to Claims Arising from Fatal Accidents' by James Patience)
1.1 INTRODUCTION
In this chapter the development of the current statutory framework for damages for wrongful death is examined. The current statutory framework is summarised.
1.2 THE HISTORIC COMMON LAW POSITION
In the past there was no right of action in tort in English law which enabled a claimant to recover damages for the wrongful death of another1.
The origin of this position at common law can be traced to the case of Baker v Bolton2 which was determined in 1808. This case concerned the death of the plaintiff’s wife in a coach accident. The portion of the claim that was concerned with damages flowing from the death of the plaintiff’s wife, failed. Lord Ellenborough summarised the position at common law as it was at the time:
In a civil Court, the death of a human being could not be complained of as an injury; and in this case the damages, as to the plaintiff’s wife, must stop with the period of her existence.
Before the decision in Baker it is difficult to identify a clear authority for this proposition. The principle enunciated by Lord Ellenborough was subsequently confirmed by the Court of Appeal in Admiralty Commissioners v SS Amerika3.
Subsequent decisions demonstrate that this rule was absolute. It was not possible in the case of Baker for a husband to recover damages for the death of his wife; neither was it possible for a parent to recover damages for the death of their child,4 nor an employer for the death of his employee5.
In addition to the “rule from Baker v Bolton”, with a very few exceptions6, the maxim of actio personalis moritur cum persona (a personal action dies with the person) also operated.
1.3 LORD CAMPBELL’S ACT
The combination of the rule from Baker v Bolton and the maxim of actiopersonalis moritur cum persona created a position which was unsatisfactory. The situation was such that if a person were injured through a tort, the wrongdoer would be liable for causing the injury but if that person were killed through the same tort there was no liability. There was a very limited exception to this position whereby the deceased’s estate had available to it an action in contract7 but this was of limited use.
As a result of the increase in fatal accidents on England’s developing rail network parliament acted to correct this position by enacting a statute8. The Fatal Accidents Act 1846, popularly known as “Lord Campbell’s Act” (which was enacted in the face of some opposition from the railway industry) gave the right to personal representatives of the deceased to bring a legal claim for damages on behalf of the husband, parent, or child of the deceased.
1.4 CONSOLIDATION AND REFORM TO THE PRESENT DAY
The Law Reform (Miscellaneous Provisions) Act 1934 amended the law further so that if the injured person survived for any period of time and had a right to sue for injury, this right was preserved on death and could be pursued by the estate of the deceased.
Over the years the Fatal Accidents Act 1846 was amended and eventually consolidated in the Fatal Accidents Act 19769. The Fatal Accidents Act 1976 itself was amended by the operation of the Administration of Justice Act 1982 which expanded the categories of individuals entitled to claim for damages.
The Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 constitute the framework of statutory law that gives rise to awards of damages in relation to fatal accidents today. Each act gives rise to different considerations which are considered in detail below.
1.5 SUMMARY
In summary:
- Historically, at common law, there was no right of action which enabled a claimant to claim damages for the wrongful death of another;
- Because of an increase in deaths on England’s developing rail network this position was altered by the 1846 Fatal Accidents Act – “Lord Campbell’s Act”;
- The 1846 Act was followed by a number of consolidating acts culminating in the current statute – the Fatal Accidents Act 1976;
- The Law Reform (Miscellaneous Provisions) Act 1934 amended the law so that if the injured person survived for any period of time and had a right to sue for injury, this right was preserved on death and could be pursued by the estate of the deceased.
James Patience
Atlantic Chambers
Click here to buy the book or for more information
1At Scottish law the Court could grant a solatium to the bereaved family for grief.
2(1808) 1 Camp 493
3[1917] A.C. 38
4Clark v London General Omnibus Co [1906] 2 K.B. 648
5Osborn v Gillett (1873) L.R. 8 Ex 88
6Exceptions to this rule arose where the deceased had appropriated property. In these circumstances the rightful owner of the property could maintain an action against the deceased’s estate.
7See Jackson v Watson & Sons [1909] 2 K.B. 193 where a wife died from food poisoning from food purchased by her husband. The husband successfully recovered, in a claim for breach of contract, for the loss of her services.
8Hansard 21 August 1846, Vol 88, col 926
9There were further Fatal Accidents Acts in 1846, 1908 and 1959.
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