News Category 2
Without A Safety Net: Litigating Employers’ Liability Claims after the Enterprise Act - Andrew Roy & Vanessa Cashman, 12 King's Bench Walk
13/01/15. Section 69 of the Enterprise and Regulatory Reform Act 2013 repealed section 47 of the Health and Safety at Work, etc. Act 1974. The latter accorded a civil right of action for a breach of the regulations created under the HSWA 1974 except so far as the regulations themselves provide otherwise. Section 69 reverses this; breaches are not actionable except so far as the regulations themselves provide otherwise (and virtually none do).
Breaches of health and safety regulations committed after 1 October 2013 are therefore prima facie no longer actionable. (The repeal is not retrospective).
Statutory duties have been the centerpiece of EL litigation for many years.
It follows that s69 demands a profound reconsideration of how such claims should be litigated.
I will seek in this paper to:
- Identify the likely effects of s69;
- Identify possible means for claimants to circumvent or mitigate the effects of s69, and possible counter-arguments for defendants;
- Draw together some conclusions.
The normal preliminary health warning. The paper does not purport to be comprehensive or definitive in its coverage of what is a large and complex topic. It will seek to set out the main principles and the practice points arising from them. It cannot be a substitute for a close study of the relevant statutory and case law, and application of the law to the facts of any particular case...
Andrew Roy has also presented a video masterclass for PIBULJ.TV, on this topic, which is available by clicking here.
Image ©iStockphoto.com/BartCo
Experts and Mental Capacity - Bill Braithwaite QC, Head of Exchange Chambers
05/01/15. Still on the subject of experts, I read two reports about a client’s mental capacity recently, which emphasised to me the need for skilled legal management of evidential problems.
The client is keen to demonstrate that he has the mental capacity to manage his affairs, even though he sustained what, on any view, was a severe brain injury. He thinks he has recovered fully, and so do his family - or, at least, that’s what they say.
One eminent expert considers that the individual does have capacity, because he seemed to be able to hold a conversation. The other one has recorded a series of questions - the best I've yet seen in this area. The answers are truly revealing, and raise serious questions about whether the person does have capacity.
There is a traditional view, with which I disagree, that the opinion of a medically qualified expert carries more weight in personal injury matters than that of someone without a medical qualification. Of course, that depends on the circumstances, but it is still sometimes canvassed in mental capacity issues. I feel that neuropsychology may be the most important opinion on this topic, although, as always, it depends on the experts involved.
Bill Braithwaite QC
Head of Exchange Chambers
This article was first published at http://billbraithwaiteqc.com/blog/
Image ©iStockphoto.com/mediaphotos
Loss of Earnings, Loss of “Perks” and Chances of Promotion: A High Court Example - Gordon Exall, Zenith Chambers
02/01/15. The case of Downing -v- Peterborough & Stamford Hospitals NHS Foundation Trust [2014] EWHC 4216 (QB) provides an interesting example of the court assessing damages in a case where liability was agreed. Here we look at the judge’s approach to the claim for loss of earnings.
THE CLAIMANT
The claimant was 43 years old and left unable to work as a result of an operation.
THE CLAIMANT’S EMPLOYMENT POSITION
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Prior to the operation, the Claimant had been a warrant officer (class 2) in the Army Air Corps and had very good prospects of further promotion and indeed, in due course, of being commissioned. The likelihood is that he would have retired from the army at the age of 50 or, possibly, at 55 if he progressed to the rank of major and obtained a regular (as opposed to intermediate) late entry commission. There would, in either event, then have been a good chance that he would have obtained a responsible and reasonably well paid post in civilian life. He had been classified as an “outstanding” warrant officer and was spoken of in glowing terms in the evidence of the military witnesses, whose evidence was...
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Compensating an Injured Foetus - The CA's Decision - Ian Miller, 1 Chancery Lane
18/12/14. Can a child make a claim to the Criminal Injuries Compensation Authority in circumstances where it has been injured by its mother’s excessive alcohol consumption during pregnancy? What duty of care is owed by a mother to her unborn child? The Court of Appeal has ruled* that a child could not claim compensation from the CICA. It was not disputed that the child suffered from an injury. The difficulty the Court of Appeal identified was that the child was not ‘any other person’ for the purposes of s 23 of the Offences Against the Person Act 1861.
It was argued by counsel for the appellant that the foetus should be regarded as a live being with rights and capable of having an existence separate to its mother long before it is born but, even if not, the criminal law should protect a foetus from conduct resulting from deliberate acts causing foreseeable harm and which resulted in grievous bodily harm evident after birth. On the first argument counsel was trumped by House of Lords authority. As to the second...
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PI Practitioner, December 2014
16/12/14. 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.
The Supreme Court's judgment in HRH Prince Abdulaziz Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd [2014] UKSC 64 was handed down on 26 November 2014. Unusually, the Supreme Court entertained an appeal in respect of case management decisions. The case management decision concerned a requirement that the parties file a statement verified by a statement of truth and signed by them personally in the case of individuals. These statements were in respect of...
Image ©iStockphoto.com/EmiliaU
More Articles...
- Butcher v Southend-on-Sea Borough Council [2014] EWCA Civ 1556 - Jack Nicholls & Mike Blitz, 5 Pump Court
- FREE BOOK CHAPTER: Future Developments in RTA Claims, Reducing Fraud and Costs - Andrew Mckie, Clerksroom
- For the Greater Good? Summary Dismissal, Psychiatric Injury and Remoteness - Liam Ryan, Ely Place Chambers
- Loss of Earnings: Proving That the Injuries Caused the Losses - Gordon Exall, Zenith Chambers
![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
