News Category 2
QOCS: The Strike Out and Fundamental Dishonesty Exceptions in Action - Rebecca Jones, Hardwicke
25/08/16. There are still relatively few findings of fundamental dishonesty being made by Courts. Despite the fact that this is obviously an important exception to the QOCS regime, the fundamental dishonesty threshold is proving a difficult hurdle for Defendants to meet. This article explores a recent finding of fundamental dishonesty and the lessons that can be learned by Claimants and Defendants in such cases.
The Facts
This case arose out of claims brought by three Claimants for injuries arising out of a road traffic accident which had allegedly occurred on 12 December 2013. It was alleged that the First Claimant had been driving along a major road, with the Second and Third Claimants as passengers, when the First Defendant had suddenly emerged from a minor road, in to a collision with the nearside of the vehicle in which the Claimants were travelling.
All three Claimants brought claims for personal injury and the First Claimant also brought a claim for vehicle damage and physiotherapy. Despite all three Claimants being represented by the same firm of Solicitors, the claims were not initially issued together, with the Third Claimant’s claim being brought by way of separate proceedings which were issued around one month after the First and Second Claimants’ claims. The claims were later consolidated by consent and proceeded to trial together.
The Second Defendant was the insurer of the First Defendant, however...
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The Law Relating to Fatal Accidents: An Introduction - Gordon Exall, Zenith Chambers & Hardwicke
23/08/16. When a person is killed a claim can be brought on behalf of his estate or on behalf of their dependants. The person or persons who bring the action are called the “claimant” or “claimants” (if more than one person brings the action).
Liability in fatal accident cases depends on establishing that the deceased would have had an action in negligence in breach of duty had he not died..
The claimants in the personal injury action “stand in the shoes” of the deceased, see Gray –v- Barr [1971] 2 QB 554. It is necessary to prove that the defendant’s breach caused the death or made a material contribution towards it. If the deceased was contributory negligence then the claim by the estate or dependants can be reduced.
Claims on behalf of the estate
The estate of the deceased person can recover reasonable funeral expenses, any special damages the claimant could have claimed, including loss of earnings (if any), from the date of the accident to the date of death, and general damages for pain, suffering and loss of amenity (unless death was instantaneous). There can only be one action so if the executors or administrators bring an action on behalf of the estate they must bring an action on behalf of the dependants. The claim is brought under the Law Reform (Miscellaneous Provisions) Act 1934...
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Key Issues Which Arise in Cycling Claims - Kate Sweeney, Stephensons Solicitors LLP
18/08/16. As someone who 12 months ago started cycling a daily 9 km commute to work (and back) in an effort to improve fitness and avoid traffic congestion, I have experienced first hand the thrills and terrors that almost 2 million Britons experience, as we become an ever increasing cycling obsessed nation.
Our inspirational Olympic Champions have helped transform what was a hobby pursuit for most, into an everyday part of life, commuting to work, school and university and the effects of this incredible and relatively recent transformation extend to more than just improving the fitness levels of the nation, as it contributes positively to our economy. Cycling has become highly political and highly profitable!
The increase in cyclists on our roads has also inevitably led to an increase in accidents involving cyclists. And such claims are not without their own, specific issues.
Unlike motorists, cyclists are not governed by their own legislation, but instead fall under statutory legislation designed for other road users , the main one being the Road Traffic Act 1988. We also have to look to Common Law when dealing with cycling claims, and on occasion also seek assistance from the Highway Code and any relevant bylaws and to a certain degree, the application of common sense.
The most contentious and common issue in cycling claims is the wearing, or not, of a helmet. There is no legislation which requires the wearing of helmets, nor is there definitive case law on the subject, such cases being few and far between, and so the question of whether the failure to wear a helmet affects the outcome of an accident and whether such failure is an issue of contributory negligence is an often raised and extremely vexed issue in accidents involving cyclists.
There is some case law on the subject, but it is conflicting, and every case must be considered individually. The circumstances of the accident, such as the speed of travel, road surface, point of impact (was it the road, a car, street furniture) all have to be scrutinised, coupled with the type of injury sustained. Is it a head injury, a facial injury, or a chin injury, in which case the wearing of a helmet may offer no protection at all. There is available evidence to suggest that even correctly worn and adjusted helmets provide limited protection. Securing good, reliable evidence is key, both medical (causation of harm) and non medical (for example, accident reconstruction).
The Highway Code provides guidance on the wearing of a suitable, regulation conforming helmet, as well as appropriate clothing, which includes reflective clothing for those cycling in the dark. The failure to wear “hi viz” clothing is, after helmets, another very common argument raised in an effort to establish contributory negligence on the part of the cyclist. Establishing how visible the cyclist was is key in overcoming contributory negligence arguments of this nature.
As with other road users, cycling whilst under the influence of drink or drugs is an offence, and this is another argument we encounter when dealing with cyclists claims.
Such arguments are often linked with reckless or dangerous cycling, which include the participating in risky cycling behaviour, such as undertaking large vehicles, or cycling at excessive speed. The Road Traffic Act 1988 offers limited assistance in such circumstances, despite containing a definition of dangerous cycling, and deals also with careless and inconsiderate cycling.
Your cyclist may not have been wearing a helmet, but were they wearing earphones or distracted in any other way? Again, it is important to rule out any other distractions which could be responsible in part or completely, for the cyclist’s accident.
Again, unlike a motorist, a cyclist is not required to hold a cycling licence, or be insured, so ascertaining a detailed cycling history from your injured cyclist is often useful when establishing how experienced a rider they are. Have they undertaken any kind of cycling proficiency test or a rider development course. How often do they cycle? Being able to demonstrate good cycling experience is often key in proving how proficient and safe your injured cyclist is.
Not all cycling claims involve other road users. Many cases involve cyclists injured as a result of poor road surfaces, such as potholes. In such cases, the usual laws relating to inspection and maintenance apply, but again, be prepared for the usual arguments of speedy cycling and lack of helmets, and allegations of contributory negligence.
And some cycling claims involve only cyclists, so unless all involved have some form of cycling insurance, securing a compensation payment can prove difficult, if not impossible. The same applies to motorists, who suffer damage and personal injury as a result of a negligent cyclist.
As we continue to grow and develop as a cycling nation, then so should all things relating to cycling develop and evolve too, not simply the laws governing cycling, which are sadly some way down the road behind our eager cyclists, but also our infrastructure, with better opportunities for cycling, increased and improved cycling lanes, improved awareness and tolerance of cyclists, which would in turn lead to improved cyclist/road user relationships, and more education to all about cycling, it’s benefits and it’s risks.
Kate Sweeney
Partner & Head of Injury Department
Stephensons Solicitors LLP
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PI Practitioner, August 2016
16/08/16. 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.
Costs Budgets: Changes Introduced in April 2016
Rule 3.13 of the Civil Procedure Rules, which deals with the filing and exchanging of costs budgets, has been amended by the Civil Procedure (Amendment) Rules 2016, which came into effect on 6 April 2016. Among the most important changes are the alteration to the date by which parties must file budgets in multi-track cases (r.3.13(1)) and the introduction of a requirement for a budget discussion report (r.3.13(2)). As previously, the requirements only apply...
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Assessing the Cost of ATE Premiums - Thomas Crockett, 1 Chancery Lane
10/08/16. If anyone needs a reminded why the costs landscape for personal injury litigators has changed so dramatically they may not need look much further than the judgment of the Designated Civil Judge of the County Court at London, HHJ Walden-Smith, sitting with DJ Letham as assessor in the costs case of Banks v London Borough of Hillingdon, which has been commented upon in the legal press.
The case concerned the correct assessment of an After-The-Event insurance policy, an issue which ranked high on the list of insurers' (and it seems the Government's) bugbears with the unreformed CFA system.
The underlying case was a straightforward, low-value, public liability tripper case. The successful claimant was awarded just under £7,000 in damages and costs were assessed/agreed save for a somewhat eye-watering £24,694 ATE premium...
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