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October 2012 Contents

Welcome to the October 2012 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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Editorial: Recent Developments - Adian Ellis, Temple Garden Chambers
It has been a busy month in the Courts, with a number of significant developments in relation to cases that have previously been discussed in this journal. First, it did not take long following Summers v Fairclough Homes Ltd for County Courts to start striking claims out for abuse of process. In Fari v Homes of Haringey (HHJ Mitchell, Central London County Court, 9 October 2012), the Claimant had pleaded losses exceeding £740,000 including a substantial claim for...

Personal Injury Articles

RTA Fraud: The Key Cases - Andrew Mckie, Clerksroom
This article seeks to outlines the most important cases for those dealing with RTA cases, with an allegations of fraud. The latest decisions on contempt of court suggest that the courts’ stance has changed and that exaggerated claims are now considered just as serious as fabricated claims.

Lessons of the Provisional Assessment Pilot Scheme - Matthew Hoe, Jaggards
The provisional assessment pilot scheme in the Leeds, Scarborough and York County Courts under PD 51E has been extended to 31st March 2012. Known often as ‘paper assessment’, it is the pilot under which costs are assessed without a hearing. It is applicable to cases in which a request for detailed assessment is filed at court and the base costs in the case (i.e. costs excluding additional liabilities) do not exceed £25,000. Many personal injury claims are captured.

Fraud Doth Never Prosper: Evidence of Fraud Obtained After Trial or Settlement - Pankaj Madan, Exchange Chambers
Sophocles wrote “Things gained through unjust fraud are never secure”. More recent history in the Personal Injury area of law have shown him to be quite right. Headlines such as “£3 million crash man is “fit as a fiddler” are press grabbing headlines which stir the emotions of hard working, decent and honest people, sell newspapers and make the blood boil of genuine victims of personal injury. I hasten to add that the headline was as it happens entirely unjustified, at least according to the Judgment of the High Court.

Hope for Those in Pain? - Steven Weddle, Hardwicke
In the last 20 years the understanding and acceptance of pain conditions in both medical and legal contexts has advanced significantly. Advances in medicine have given doctors a better understanding of internal processes, and many causes of pain that used only to be identified after death can now be identified early with modern investigative techniques. Despite that, it can still be very hard to prove the "reality" of pain in the legal context.

Ooops, I sued a dissolved Defendant! - Jamie Clarke, Hardwicke
Somewhat like the future Queen’s bikini top, applications to restore a dissolved company to the companies register are often spoken of but rarely seen, so far as injury practitioners are concerned at least. As I say in my training seminar on the topic, the apparent complexities of reviving a claim where the Defendant is dissolved (or is dissolved after proceedings start) takes injury practitioners outside of their comfort zone.

Whose responsibility is it anyway? Duty to warn non-employees of criminal threats - David Sawtell, 4 King's Bench Walk
Selwood v Durham County Council and others [2012] EWCA Civ 979. The claimant social worker was seriously injured by the father of a child in care proceedings. He had made disturbing threats to harm her while under the second and third defendants' medical care. An organisation is not under a duty to warn members of the public of a third party's criminal threats except in special circumstances. At what point does an organisation owe a duty to warn another body’s employees? The boundary between different public sector organisations has become increasingly blurred thanks to multi agency working practices often governed by detailed protocols. The Court of Appeal held that such close ties could make them liable to each other’s employees to warn them about criminal threats.

The Court of Protection and Personal Injury Cases - Lynne Bradey, Wrigleys
For the personal injury litigator, the Court of Protection and mental incapacity is not something that can be ignored. No matter how strong the desire to duck/ignore the issue, it is something which the litigator will have to get to grips with, not least because the issue of capacity to conduct a claim will be absolutely vital but also because in cases where a professional deputy needs to be appointed to administer the affairs of the injured person, Court of Protection costs will form part of the claim for damages. The aim of this article is to set out the possible directions for the administration of the client's affairs and discuss the practical implications of those. It will of course be necessary to involve a specialist, whether that be a colleague or somebody from another firm, but this article should at least provide the road map to enable practitioners to do that.

The Price of Beauty - Ruth Johnson, Blake Lapthorn
When we go for a beauty treatment we look forward to feeling pampered and rejuvenated following it. But what about when things dont go quite right resulting in an injury. What happens then? In order to be successful in bringing a claim for personal injury as a result of a beauty treatment you need to prove that the treatment was undertaken negligently by the therapist and that that resulted in injury to you. Compensation will then be paid by the insurance company for the salon where the therapist works or, if no insurance is in place, by the salon/ therapist themselves.

Landlords Liability: Developments under the Occupiers Liability Act - Adam Gadd, Pump Court Chambers
Two recent decisions have given further clarification of the extent of landlord’s duty under the Occupiers Liability Act 1957. The first, Alexander v (1) Freshwater Properties Ltd (2) Christopher Place (T/ A Place Construction) [2012] EWCA Civ 1048 found that a landlord could be liable under the OLA for an injury that occurred whilst refurbishment works were being carried out...

Ill blows the wind.... - Helen Tinkler, BPP & Central Law Training
There has been a warm welcome from certain quarters for the judgment handed down last week (10th October) in Simmons v Castle [2012] EWCA Civ 1288 . You haven’t heard? The one in which the judges decided that for those claimants funding their claims with a CFA entered into before 1 April 2013, April will, indeed, be the cruellest month as they will not reap a 10% hike in their general damages by virtue of having sown the seeds of their CFA before 1 April 2013? Yes, that judgment, which revisited the earlier, July, episode in the saga of the implementation of the LASPO recommendations.

Cycling Accidents: a Turkey votes for Christmas - Julie Carlisle, Henmans LLP
I work in Oxford, a beautiful city synonymous with dreaming spires and students on sit-up-and-beg bicycles winding their way to their next classes. The reality however, as reported in the local press recently, is that deaths and injuries for cyclists have more than doubled in the past decade with 58 cyclists killed or seriously injured in Oxfordshire alone in 2011.

Blair-Ford v CRS Adventures Ltd [2012] EWHC 2360 QB: Risk Assessments and “Welly-Wanging” - Monika Sobiecki, Pump Court Chambers
The claimant was injured in a tragic accident during a “Mini Olympics” event which left him with permanent tetraplegia. Dismissing the claim, Globe J concluded that this was a “freak accident for which no blame can be established”.

Competition from the Private Motor Insurance Industry? - Danielle Holliday, Collins Law
Should the recent indication by Direct Line that it is considering entering the market for the provision of legal services send shivers down the spine of Claimant PI lawyers and members of the general (motor insuring) public? For lawyers and the general public alike there are changes afoot which, much further down the line, I am sure we will all wish had never happened.

Fast asleep: Adam Mansoor v EUI Ltd (In the Central London CC, 20 July 2012) - Max Withington, Horwich Farrelly
This claim started off life as a run of the mill fast track road traffic claim for hire and repairs, the slight twist being the defendant denied she was ever involved. Was this a case of mistaken identity? During our early investigations Mrs McKenna came across as a compelling witness providing a detailed witness statement. Her evidence was straightforward and a defence was pleaded stating she was fast asleep at the time of the alleged accident.

It’s compensation not whiplash that’s the problem - Andrew Pemberton, Argent Rehabilitation
Independent medical experts, minimum impact of velocity, minimum levels of compensation, minimum levels of injury – they are all being considered as means with which to control the so-called compensation culture. This article will illustrate why it is unlikely any of these will have the desired effect on the market or the wider social perception of motor claims. There is, however, an alternative to financial-based compensation for personal injury claims.

Six Months To Go: April 2013 and Beyond - Julie Carlisle, Henmans LLP
The world of Personal Injury is currently facing unprecedented change. The Road Traffic Accident Portal has already fundamentally altered the way motor accident claims worth less than £10,000 are handled, and the proposed extension of the scheme upwards to claims worth £25,000 and sideways to non traffic accident claims means that the landscape that some of us have worked within for years is about to be remoulded beyond recognition.

Reap What You Sow - Michael Williamson, Williamsons Solicitors
It is generally acknowledged that All Fools’ Day 2013 is likely to mark the start of another huge gunfight the likes of which was really kicking off at about this time last decade. Parliament has done a bit and the rules committees are still drafting. Meanwhile, senior judiciary are reported by one leading commentator to “despair of the shambles surrounding Jackson implementation”.

Are Motor Insurance Premiums Being Wrongly Inflated? - Charles Bagot, Hardwicke
The Office of Fair Trading (OFT) suspects so and has made a referral to the Competition Commission. The latter will be shining a light into the dark (and some might say murky) world of those who arrange, pay for and profit from repairing the vehicles of and hiring replacement vehicles to ‘not-at-fault’ drivers.

Summary of Recent Cases, October 2012
Here is a summary of the recent notable court cases over the past month.

PI Practitioner, October 2012
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: New guidelines for damages in lower value personal injury claims.

PI Travel Law, Edited by Katherine Deal, 3 Hare Court

Court of Appeal holds that English Court should follow German law remedies in a wrongful death case - Sarah Crowther, 3 Hare Court
In a recent decision concerning private international law issues in non-contractual obligations, the Court of Appeal has ruled by a majority that, where a claim for damages for wrongful death is brought pursuant to a foreign applicable law, the claimant cannot have the benefit of the generous rules on assessment of damages provided for under the Fatal Accidents Act 1976 (‘FAA’).

Medico-Legal Articles, Edited by Dr Hugh Koch

Why Medical Evidence Lets Us Down - Giles Eyre, 9 Gough Square
Medical evidence is of course crucial in every personal injury claim. Not only is it the basis upon which damages for pain and suffering and loss of amenity are assessed but it is also the framework within which claims for financial losses both past and future can be made. Medical reports have a status all of their own within a personal injury claim, the maker of the report being regarded almost without fail, and whether justifiably or not, as an expert complying with his or her duty under part 35 of the Civil Procedure Rules, and so giving objective unbiased opinion in which all material facts have been taken into account.

Expert Witness Articles

Choosing the Right Expert - Mark Solon, Bond Solon
Choosing the right expert in a personal injury claim can be one of the biggest factors in deciding the outcome of that claim. And yet, set against a backdrop of continuously updated practice rules and procedures, solicitors need to be more careful than ever that their witness is qualified for the job.

Mediation & ADR Articles, Edited by Tim Wallis, Trust Mediation Ltd

Mediation and ADR: What the Other Side Is Thinking and Reading About - Tim Wallis, Trust Mediation Ltd
Love it or loathe it, the role of mediation continues to increase. The judiciary continues to encourage parties to mediate and the case law on costs sanctions gives a powerful lever to anyone who wants to ensure that the others side takes mediation seriously.Myy role as a personal injury mediator allows me to have a foot in each of the “camps” in the personal injury sector, and I thought it would be interesting to looks at what the insurers that personal injury practitioners deal with are thinking and reading about mediation.

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