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March 2013 Contents

Welcome to the March 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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Personal Injury Articles
Detecting Significant Brain Injury - Bill Braithwaite QC, Head of Exchange Chambers
I frequently worry that many people with significant brain injury slip through the net, and are not properly diagnosed. That may lead to many consequences, some of them disastrous. I know that many other professionals who specialise in severe brain injury share my concern.
When Can a Judge Change Their Mind? - Thomas Crockett, 1 Chancery Lane
In re L and Anor (Children) (Preliminary Finding: Power to Reverse)[2013] UKSC 8 the Supreme Court considered the circumstances where a judge was entitled to depart from such a preliminary judgment or ruling. Whilst the underlying facts of this case being appealed related...
Appealing Without a Point of Law - Dr Jock Mackenzie, Anthony Gold Solicitors
Two interesting recent cases show the Court of Appeal's approach to appeals on only matters of fact, and the importance of all of the key evidence being taken into consideration by the trial judge and the judgment being properly justified.
Thames Water Utilities Limited v. Transport for London [2013] EWHC 187 (Admin) - Daniel Tobin, 12 King's Bench Walk
This interesting case examines the traffic management obligations of statutory undertakers and their contractors performing works under the New Roads and Street Works Act 1991 ('the 1991 Act'). It also clarifies the...
Editorial: Establishing Need to Hire for Corporate Claimants - Aidan Ellis, Temple Garden Chambers
It has been clear since Giles v Thompson [1994] 1 AC 142 that need to hire a replacement vehicle following a road traffic accident is "not self-proving" (at 167D). In relation to individual claimants it is not hard to establish...
Government Defeated on Strict Liability for Employers - Tim Kevan
The government's radical plan to remove strict liability of employers in personal injury actions has been defeated in the House of Lords.
Late Acceptance of Part 36 Offers: the Consequences - Robert Vernon, 9 Park Place Chambers
Even though it is almost 6 years since the current provisions of Part 36 of the CPR came into effect, they (perhaps surprisingly) still give rise to a significant amount of litigation, particularly in relation to the prescribed consequences of acceptance (and non acceptance) which are all too familiar to litigators. The current provisions have resulted in some difficult (and sometimes unintended) situations for litigating parties, not least due to the fact that a Part 36 offer may now be...
Lords Protect Workers' Rights - Cathrine Grubb, Barrister at Civitas Law
The Lords have opposed the government's proposals to remove the rights of workers to bring civil claims for breaches of health and safety legislation.
Liability of Public Bodies to Unidentifiable Members of the Public - Anna Macey, Pupil Barrister, 12 King's Bench Walk
The High Court upheld a decision to strike out a claim by a petting farm owner, that an indemnity or contribution from the Health Protection Agency and local District Council was due in respect of claims brought following an E-Coli outbreak at the petting farm.
The Magnificent 7: Tips for Profitable Cosmetic Surgery Cases Post-Jackson - Geoffrey Simpson-Scott, Colemans-ctts Solicitors
Cosmetic surgery is on the frontline of the battle between maintaining good medical practice and making money. As the recent PIP implants scandal showed, consumers are the casualties. A single manufacturer went rogue by using low-grade silicone gel rather than the medical-grade materials...
One for the Road - Kate Lamont, 9 Gough Square
The Courts are not unfamiliar with RTA claims involving intoxicated pedestrians. Decisions tend to be quite fact specific but that is not to say that there is not some common rationale to them. A couple of recent decisions illustrate how the courts may approach the issue of liability and the last one should act as a warning to anybody acting on behalf of a Claimant in any RTA claim.
Expert Evidence and the Amendments to CPR 35 - Steven Weddle, Hardwicke
The case of the Ikarian Reefer 1993 2 LILR 68, 81-82 is still the definitive case in respect of the duties and role of an expert witness and the introduction of the Civil Procedure Rules in 1999 was in part designed to reinforce that. In 2000 HHJ Toulmin further refined the definition in Anglo Group plc v Winther Brown & Co. Ltd but in the last 10 or so years we...
After Pasties and Caravans: CFAs and DBAs? - Simon Readhead QC, 1 Chancery Lane
Is it just me or should we all be concerned about the way in which the legislation to implement Lord Justice Jackson's recommendations is being introduced? Why have there been so few announcements about what are, after all, radical and...
British Victims of Terrorism Abroad: a Fair Regime Introduced - Jill Greenfield, Field Fisher Waterhouse LLP
In 2005, a string of terrorist atrocities against British Citizens highlighted a key issue in respect of financial support available for British Citizens when injured.
Mind the Gap: Part 2 - Simon Readhead QC, 1 Chancery Lane
As regular readers will recall, the Health and Social Care Act (HSCA) 2012 received Royal Assent on 27 March 2012. Many of its key reforms take effect on 1 April 2013. The HSCA has attracted strong opposition from the medical profession. Richard Horton, editor of The Lancet, warned in March 2012 that "people will die" and of "unprecedented chaos" as a result of the reforms the HSCA introduces.
First Use of Power to Strike Out Following Summers v Fairclough - Jamie Clarke, Hardwicke
The transcript of the decision of HHJ Mitchell sitting at Central London County Court on 9 October 2012 is now available. He struck out the claim of Mrs Barbara Fari against Homes for Haringey. The decision has not been appealed.
No Duty of Care Owed by Regulators to Members of the Public Following an Outbreak of E Coli - Andrew Spencer, 1 Chancery Lane
In Summer 2009, Godstone Farm, a petting farm, became the source of a serious outbreak of E Coli 0157. Many children who visited the farm became ill, a number seriously, and some continue to suffer from long-term health problems.
Costs Budgeting: Opportunity or Threat? - Kelvin Farmaner, FOIL & Trethowans
With all the talk about non recovery of success fees and insurance premiums, banning referral fees and whether or not the RTA portal will be extended, one might miss what could be the most significant change to the way in which litigation is conducted since the Woolf reforms: Costs Budgeting.
Contributory Negligence of a Minor - John van der Luit-Drummond
Examining the importance of Gough -v- Thorne and the potential culpability of children in personal injury claims in light of the ongoing case of Bethany Probert -v- Churchill Insurance.
CFAs Prior to 1st April 2013: Will the Old or New Rules Apply? - Ian Miller, 1 Chancery Lane
What do you have to do to ensure that Parts 43 to 48 of the existing rules continue to apply to CFAs entered into before 1st April 2013? Do advocacy or litigation services have to be provided before 1st April 2013 or not?
Taxpayers! Beware What You Wish For - Julie Carlisle, Henmans Freeth
The Daily Telegraph Online reported on 12 March 2013 that East Sussex County Council has paid out more than £800,000 in the last 5 years on compensation to workers - including £2,000 to an employee who suffered injury whilst moving a laptop and £1,000 to an employee who sustained injury whilst placing rubbish in a skip.
Costs Budgeting: Threats and Opportunities - Stuart Kightley, Osbornes Solicitors LLP
Costs budgeting is widely seen as a threat to claimants in Multitrack personal injury cases. Budgets will be mandatory from April 2013 and the sanction is onerous: no budget no costs, just disbursements. The budgeting rules will conspire with the new rule of proportionality to ensure that budgets will be restricted and if they are exceeded without good cause and prior approval the excess will be disallowed on assessment. With all that, what's to like?
Post Jackson CPR Amendments Published: A Brave New World? - Andrew Spencer, 1 Chancery Lane
The Civil Procedure Rule Committee has published CPR amendments due to come into force on 1st April 2013. Some of the key provisions for PI practitioners are as follows...
Summary of Recent Cases, March 2013
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, March 2013
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: The use of surveillance evidence.
Medico-Legal Articles, Edited by Dr Hugh Koch
Medical Negligence: Psychological Perspectives on Why People Pursue Litigation - Dr Karen Addy, Consultant Clinical Psychologist
There is a common perception that the UK has become an increasingly more litigious society and the government is exploring ways to reduce the number of claims. Whilst there is a perception that there has been an increase in compensation claims the number of actual claims for damages due to a medical accident or...
RTA Portal Claims: One Profitable Way to Beat the MOJ Blues - Sharon Lister, inJur
April 2013 is fast approaching; personal injury firms are looking for ways to preserve their profitability. Sharon Lister explains how instructing medical experts via your own medico-legal agency could be just what you need to say in business. She also discusses just how easy it is in this day and age using a resource such as inAge.
Expert Witness Articles
Controlling Experts' Fees: the End of the Long Piece of String - Mark Solon, Bond Solon
Since Lord Justice Jackson's 2010 report into the costs of civil litigation the legal community has been discussing the far-reaching impact of costs cutting measures. As of 1 April 2013, many of those measures will start to bite as changes to the Civil Procedure Rules (CPR) come into effect. The question is, who is ready?
Book Reviews
Book Review: 'Writing Medico-Legal Reports in Civil Claims: An Essential Guide' by Giles Eyre and Lynden Alexander - Reviewed by Aidan Ellis, Temple Garden Chambers
I will admit that, like the authors of this book, on occasions in the last year I have been dissatisfied with the state of the medical evidence in personal injury claims. It is never straightforward to translate a vaguely expressed prognosis into a detailed Schedule of Special Damages, or to explain a poorly expressed acceleration period to...