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April 2013 Contents

Welcome to the April 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
Priming the Pump: Solicitors and Non Party Costs Orders - David Sawtell, 4 King's Bench Walk
The litigation in Germany v Flatman; Barchester Healthcare Ltd v Weddall [2013] EWCA Civ 278 posed a very important question for personal injury litigators: in what circumstances do solicitors acting for claimants make themselves vulnerable to an application for non party costs?
Credit Hire: Enforceability Update - Gary Herring, Keoghs LLP
Once the most contentious area of dispute between credit hire companies and insurers, arguments over the enforceability of credit hire agreements have subsided considerably since the landmark decisions in Dimond v Lovell and Burdis v Livsey. Credit hire organisations now without known...
Secondary Victims and Psychiatric Injury: What Is the Relevant Event When Considering Proximity? - Rhiannon Lewis, 1 Chancery Lane
The Court of Appeal has recently given judgment in relation to recoverability for psychiatric injury by a "secondary victim".
The Future Lost Earnings of Catastrophically Injured Children - Chris Gutteridge, Exchange Chambers
How is a judge supposed to make any estimation of what a young child would have earned in his or her adult life in the absence of a catastrophic injury? It is an unquestionably difficult task. That task falls on the claimant's representatives. The court must be provided with...
An Introductory Guide to Rome II for Personal Injury Practitioners - Charles Dougherty QC & Marie Louise Kinsler, 2 Temple Gardens
This brief guide considers the key provisions in Rome II which are likely to be of interest to personal injury practitioners.
Skidding on Black Ice: is the Driver at Fault? (Smith v Fordyce [2013] EWCA Civ 320) - Tom Gibson, Outer Temple Chambers
Res ipsa loquitur did not assist the claimant passenger in this case where the defendant driver of the only car on the road crashed his BMW into a wall after skidding on black ice.
Cost Budgeting: Creating a Plan for the Case - Bill Braithwaite QC, Head of Exchange Chambers
Going back to the cost budgeting issue, I suspect that lawyers will now have to create a plan for the case. For many years, I have been urging claimants to predict a plan for life, which involves them in looking into the future and making all sorts of major decisions as to how they hope that their lives will develop...
Editorial: Assessing the Impact of the Civil Procedure Reforms - Aidan Ellis, Temple Garden Chambers
There is no mistaking the key issue this month. Everyone is concerned about the long term impact of the civil procedure reforms which came into force on 1 April 2013. In preparation for the storm, the last month has been packed with unprecedented numbers of training sessions and bulletins.
New CPR 3.9: Ending the "Culture of Toleration of Delay and Non-Compliance With Court Orders" and a "Different Justice"? - Thomas Crockett, 1 Chancery Lane
1st April marks the end of an era. Not a particularly long era. But all of fourteen years of the Civil Procedure Rules as we have known them. From the 1st April 2013, the CPR will be significantly altered for every civil litigant. Most pertinently, the...
The Revised Costs-Only Procedure - Matthew Hoe, Jaggards & Taylor Rose Law
Lord Justice Jackson had no recommendations to make about the costs-only procedure in his Final Report. But on 1st April 2013, it changed anyway. Those changes may turn a simple procedure into a new costs battleground.
Jason Sharp v Top Flight Scaffolding Ltd - Nicholas Baldock, 6 Pump Court
The case of Jason Sharp has raised some interest in Personal Injury circles given the high level of contributory negligence (60%) ascribed to the Claimant. A number of authorities were cited and reviewed at the hearing although only...
RTA Post Jackson: The Key Facts You Need to Know - Andrew Mckie, Clerksroom
The reforms apply across civil litigation, but will have a particular impact in personal injury cases, where no win no fee CFAs are used significantly. A summary of the main changes appears online at the justice.gov.uk website. Here's what you need to know...
Stress at Work: Capping the Claim Is Not Clear Cut - Flora Wood, Ashfords Solicitors
Stress at work cases are notoriously complex, as exemplified by Lord Justice Hale in the case of Hatton v Sutherland [2002], who said: 'many stress-related illnesses are likely to have a complete aetiology with several different causes. In principle, a wrongdoer should pay only for...
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...
Jason Sharp v Top Flight Scaffolding Ltd [2013] EWHC 479 (QB) - Nigel Cooksley QC, Old Square Chambers
In this case the court had to consider both primary liability and contributory negligence where the facts of this scaffolding accident were largely agreed. The claimant was an experienced scaffolder and had worked in the industry for over 20 years. For much of that time he had...
A Jackdaw's Nest, a Curate's Egg, a Tinkerer's Charter and Winston Churchill's Pudding: Health and Safety in the House of Lords: Part 1 - Roderick Abbott, 1 Chancery Lane
Question: Which is the odd one out? Answer: The first one; all the others were used by peers to describe the Enterprise and Regulatory Reform Bill at its Second Reading in the House of Lords. There is no doubting the Bill's breadth...
Claims Against the Ministry of Defence Arising Out of the Iraq War - Geoffrey Kelly & Victoria Ellis (Pupil), Pump Court Chambers
During the course of the Iraq war, there was considerable concern voiced about soldiers in lightly armoured "Snatch" Landrovers being exposed to unnecessary risk of injury from Improvised Explosive Devices or "IEDs". In fact, numerous soldiers were killed or injured. In Smith & Ors v MoD [2012] EWCA Civ 1365, the Court of Appeal considered whether...
Medical Causation in Noise Induced Hearing Loss Cases - Philip de Berry, 18 St John Street Chambers & Philip Jackson, Imperium Law Solicitors
This article focuses on some of the nuances in the Coles, Lutman and Buffin Guidelines by reference to the recent case of Aldred v Cortaulds Northern Textiles Limited, Liverpool County Court, 2012 (unreported).
Civil Justice Reform or a Sausage Factory in the Making? - John van der Luit-Drummond
Examining the Lord Jackson Reforms and the impact they may have on civil litigation and law firms in England and Wales. The chief executive of the Law Society, Des Hudson, has admitted in an article with Litigation Futures, that some law firms specialising in personal injury litigation will...
Simmons v Castle: Round 2 - Adam Gadd, Pump Court Chambers
The Court of Appeal revisited its judgment handed down on 26 July 2012, where it announced that from 1 April 2013, general damages in tort cases would be increased by 10% from current levels.
Summary of Recent Cases, April 2013
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, April 2013
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Relief from sanctions - the new CPR 3.9
Medico-Legal Articles, Edited by Dr Hugh Koch
Employment Stress: How Can We Help Employees and Employers - Hugh Koch, Simon Midgley & Julie Bevan-Pearson
Review of recent publication: Employment stress, Legal and Personal Injury Issues, Koch, Beesley & Byram (2013). This interesting article discusses how to consider and define employment stress, what factors contribute to it and maintain it and what services, both preventative and rehabilitative are necessary to maintain a healthy workforce.