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January 2013 Contents

Welcome to the January 2013 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
Editorial: The Personal Injury Lawyer on Holiday - Aidan Ellis, Temple Garden Chambers
Sometimes it is difficult to escape from being a personal injury lawyer even when on holiday. This Winter during ski school somewhere in the Dolomites, prior to tackling a particularly steep looking section of the piste one of my fellow students told the instructor that they were tired and wanted to take the cable car back down. The instructor told them to carry on skiing. Shortly afterwards, the student fell sustaining an injury. Once the stretcher had departed, I inevitably found myself thinking...
Personal Injury Articles
MOJ Portal Process: Update - Peter Allchorne, DAC Beachcroft LLP
Having delivered on its promise of quicker settlements for Claimants at lower cost to insurers, the RTA portal process is set to be extended in April 2013. The process is to be extended both vertically to include claims up to the fast track limit of £25,000, and horizontally to include EL/PL and some EL disease claims - mesothelioma claims are specifically excluded.
E-Disclosure: The Current Position and the Position After 1st April 2013 - Andrew Buchan, Cloisters
This article gives a summary overview of the proposed changes for disclosure. It is a rapidly-expanding subject. It will assume increasingly greater importance, certainly in the High Court, particularly after 1st April 2013. If practitioners are not familiar with at least the outline of these issues, there may be very serious consequences for them and their clients.
Is This Stocking Trolley Safe for Use on a Supermarket Floor? - Philip de Berry, 18 St John Street Chambers & Ginny Newman, Pannone LLP
This article explains how the CA approached the issues of breach of duty and contributory negligence in a supermarket tripping case ( Palfrey v Morrisons, Lawtel AC9401225).
Long Term Rehabilitation After Traumatic Brain Injury - Professor Mike Barnes, Newcastle University
This article discusses the need for rehabilitation after traumatic brain injury. I explain what is meant by rehabilitation and then briefly review the evidence for the efficacy of rehabilitation, both in the acute phase and in...
Maximising Personal Injury Damages - Peter E Quegan QVRM TD, Kenworthy's Chambers
Having spent the previous 19 years as a solicitor, the last 15 of them handling serious injury cases, I realised when I transferred to the Bar, that I had developed my own approach to litigation and had picked up one or two useful tricks over the years. After presenting the subject in lecture form, I was invited to...
"Access to Justice": One Sound Bite Too Many for the Insurance Industry? - Carl Waring, Solicitor
Happy New Year to all our readers - that is unless you are a claimant lawyer or for that matter if you are likely to suffer a relatively minor personal injury this year. "Happy" is not a word that those in the claimant camp will likely be using to describe their state of being this year...
Obtaining Anonymity for Personal Injury Claimants - Elizabeth-Anne Gumbel QC & Henry Witcomb, 1 Crown Office Row
Following the award of a large sum in damages as a result of a successful personal injury or clinical negligence claim many Claimants suffer considerable distress as a result of media interest in their award of damages. Further the family of the injured Claimant may also suffer...
Compensation Culture: Making a Mountain Out of a Molehill - Rushmi Sethi
An examination of, with reference to the last thirteen years, the causes of the misperception of compensation culture. An overall conclusion is drawn from the review of causes of misperception, after consideration of some of the key factors for compensation culture as an "urban myth".
Small Claims: Why They Matter - Julie Carlisle, Henmans LLP
Personal injury practitioners are reeling from the series of blows received over the last few months, amongst which is the governments announcement that it is to consult on the raising of the small claims limit from £1,000 to £5,000. For consulting, I think we can safely read "is going to raise it regardless of the result".
Fraud: Defeating Suspected Fraudulent Road Traffic Cases - Andrew Mckie, Clerksroom
This article concentrates on pre-litigation tactics for insurance companies assuming that Solicitors will be instructed once Court proceedings are issued, by the Claimant's Solicitor. The aim of the article is to provide practical advice for defeating claims where fraud is suspected pre-litigation...
I Coulda Been a Contender, M'Lord - John van der Luit-Drummond
Examining the record payout for a professional sportsperson for personal injury in the case of Benjamin Collett -v- (1) Gary Smith and (2) Middlesbrough Football and Athletics Club (1986) Ltd QBD [2008].
Pedestrians Beware - Fiona Ashworth, Kings Chambers
Fiona Ashworth takes a look at the recent approach taken in cases where the pedestrian has stepped into the road into the path of oncoming traffic and has been injured.
When Two Worlds Collide: Tort v Consumer and Contract Law for Product Liability When the Consumer Becomes the Victim - Mary Blyth, Harris Fowler
Our litigation process is failing the victims of defective products as there is no bespoke product liability protocol to follow in the Civil Procedure Rules. At present, victims have to navigate their claim through a maze of personal injury, consumer and contract law for product liability cases...
Personal Injury Trusts: What to Look For - Elizabeth Perry, Irwin Mitchell LLP
If someone has been awarded compensation for a personal injury either as a result of a damages claim or because they have received a payment from another source, for example, an insurance policy because of an accident or injury, they may find it is necessary to review their general financial circumstances. Claimants of means tested benefits could...
Part 36 Does What It Says (Again): A Commentary on Jolly v. Harsco Infrastructure Services Limited - Philip Turton, Ropewalk Chambers
Since the last change made to Part 36 by the Rules Committee on 6th April 2007, that section of the Civil Procedure Rules has probably occupied the Courts more than any other. Practitioners who may not have immediately appreciated the consequence of the changes...
Assistance Animals: a Common Future Head of Loss? - Thomas Crockett, 1 Chancery Lane
On 30th November 2012, The Times carried an article entitled "NHS will cough up for music lessons and manicures." It was referring to the three year trial of personal health budgets, whereby people in the NHS Continuing Care programme are able to determine themselves, how best to spend the money allocated to them.
Journey's End for the Voyage of Discovery: the Disclosure Process From April - Helen Tinkler
If any article beginning with the words "From April this year" has you squinting through your fingers at the page, prepare to turn away now. From April this year, litigation, as we know, will become a judicially-honed process. He who dares issue, must dare do battle with any number of reforms and none more so than...
Limitation in Personal Injury Cases: Knowing When the Section 33 Exception to Limitation Will Apply - John-Paul Swoboda, 12 King's Bench Walk
Section 33 of the Limitation Act 1980 provides courts with the discretionary power in personal injury cases to exclude the normal time limit of three years from the date of the accident, or from the Claimant's date of knowledge, in which...
Personal Injury Litigation Funding Options - Susan Dearden, Wragge & Co LLP
Out: The ability to recover success fees in conditional fee agreements and premiums for after the event insurance. In: A limit on the level of the success fee that personal injury claimants will have to pay; an increase in non-pecuniary general damages; qualified one-way costs shifting; damages-based agreements (otherwise known as contingency fees). These...
Miners' Knee Litigation - Andrew Kinnier, Henderson Chambers
On 25th October 2012 the Court of Appeal (Mummery LJ, Hallet LJ and Tomlinson LJ) handed down judgment in the Miners' Knee Litigation (MKL) limitation appeal1. Following the Supreme Court's decision in the Atomic Veterans Litigation ("AVL")2, the MKL decision is the latest judgment by the appellate courts relating to limitation in the context of group actions.
The Costs Management Revolution: Achieving Proportionality? - John Ludman, TCPRichings Law Costs Consultants
There can be no doubt that the forthcoming rule changes concerning Costs Management represent a truly revolutionary change in the way that the costs of litigation are to be dealt with. As from April 2013, costs are to be actively managed by the Court as cases proceed...
Running Child Head Injury Claims - Victoria Walne, Anthony Gold Solicitors
Each year an estimated one million people attend Accident and Emergency following a head injury. The two age groups at highest risk of sustaining a traumatic head injury are children aged 0 to 4 and between 15 and 19 years old. There is no "one size fits all" when it comes to head injury, but children...
Sporting Injuries: Civil Liability and Consent - James Braund, Trethowans Solicitors
As a nation with sport at its very core it is perhaps unsurprising that more and more people injured during sporting activities are seeking legal redress in the Civil Courts. However despite this the pursuit of personal injury claims by competitors injured whilst taking part in organised sport remains...
When Is an Accident Not an Accident? - Jasmine Murphy, Hardwicke
In order to recover damages under Article 17(1) of the Montreal Convention (where bodily injury was suffered on board an aircraft or in the process of embarking or disembarking) a claimant has to prove that there was an "accident". Sounds simple? Unfortunately it is not - mainly due to the...
PI Practitioner, January 2013
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Recovering the costs of counsel's fees at infant settlement approval hearings.
Summary of Recent Cases, January 2013
Here is a summary of the recent notable court cases over the past month.
Credit Hire Articles
Critical Choices in Credit Hire - Andrew Christon, Browne Jacobson
Life choices - we all make them on a daily basis. The Credit Hire world is no exception with CHOs and Insurers making tactical decisions on credit claims every day. Sometime we don't get those decisions right and the costs of the wrong choice can be significant...
Pleading Mitigation in Credit Hire - Craig Budsworth, Glaisyers Solicitors LLP
New cases in relation to credit hire have not been as prevalent these past few months but an element of change is now happening in respect of pleadings.
Clinical Negligence Articles
Widening the Scope of Duty in Clinical Negligence: the Significance of Less v. Hussain - John de Bono & Katharine Gollop, Serjeants' Inn
In December 2012 the High Court gave judgment in a clinical negligence trial which raised significant new issues as to the scope of a doctor's duty of care. The court also dealt with an attempt to extend the conventional Rees award and considered whether damages could be recovered by a relative/partner of a private patient as a result of breach of contract.
Health & Safety Articles
A Critique of the Government's Proposals on Strict Liability - Ian Pennock, ParkLane Plowden Chambers
The Government's proposals, without any public consultation, to remove Civil Liability for breach of the strict liability imposed on employers by section 47 of the Health and Safety at Work Act 1974 is not only misguided but also another attempt to favour insurance companies (who usually, if not always, have to compensate...
The Health and Safety Conundrum: Difficulties That Arise Between Sections 2 and 3 of the Health and Safety at Work Act 1974 - Matthew Kerruish-Jones, Farrar's Building
In the leading case of R v Tangerine Confectionery Ltd, Veolia ES (UK) Ltd [2011] EWCA Crim 2015, the Court of Appeal heard appeals in respect of two companies which had been convicted under section 2 and/or 3 of the Health and Safety at Work Act 1974 ("HSWA 1974"). It was apparent from the...
Medico-Legal Articles, Edited by Dr Hugh Koch
Detecting Deception in Personal Injury Interviews - Dr Kathy Peace, Frank Beesley & Victoria Byram
Legal, medical and psychological experts involved in interviewing clients regarding personal injury need to determine the veracity of the interviewee's self-report in order to form accurate diagnoses and assess functional disability and losses. This article provides a brief overview of research findings regarding the detection of deception in human interactions.
Expert Witness Articles
Hot Tubbing for Expert Witnesses - Mark Solon, Bond Solon
As expert witnesses enter a new year and face the challenges that 2013 will bring, the buzz words of 2012 - costs, fees and efficiency - will not be far behind. However, high on that list will also be hot tubbing.
Coronial Law Articles, Edited by Bridget Dolan, 3 Serjeants' Inn
Sun, Sea and Balconing: the Role of the Coroner Following Deaths Abroad - Chris Deacon & Daniel Scognamiglio, Blake Lapthorn
By mid-summer 2012, there had been thirteen recorded incidents1 involving Brits falling from balconies abroad. Three of those cases resulted in deaths and the others in serious, life changing injuries. The victims will often be male, aged 24-30 and have been under the influence of alcohol or drugs. For resorts like Magaluf on the Spanish island of Majorca 'balconing' has become a concerning phenomenon. The term refers to...
Marketing for Solicitors
Get Marketing or Get Dying - Mike Massen, Gartons Solicitors
Remember the days before claims management companies, when clients were attracted by reputation and the solicitors own endeavour, when the thought of giving away up to 50% of your recoverable costs just to get the work would have been unthinkable? Well, those days are coming back and you need to get marketing or get dying. The landscape of the personal injury world is set for a seismic shift in the Spring of 2013...