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May 2013 Contents

Welcome to the May 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
Pi in the New Era - Deborah Evans, APIL Chief Executive
Certainly, personal injury lawyers are no strangers to commercial thinking. What with managing 'no win no fee' business models, competitive advertising, portals and fixed fees, and risk assessments, the average PI lawyer has had to evolve at speed over recent years. Over the last month we have witnessed the start of the most fundamental shift in personal injury law and practice this century.
Children, Car Seats, Parental Responsibility and the Law - Laura Johnson, 1 Chancery Lane
Choosing car seats is an agonising and expensive process for parents. Group 0? Group 0+? Straight to a Group 2 or via Group1? Rearward facing to age 4 or forward facing from age 1? It is confusing, stressful and wrapped up with heavy societal pressure to be a "good parent".
AC v. Devon CC [2013] EWCA Civ 418 - Daniel Tobin & Angela Frost, 12 King's Bench Walk
The eagerly awaited decision of the Court of Appeal in the case of AC v Devon (reported as Devon CC v. TR) was handed down on 30th April 2013.
Fatal Accidents: Does the Cohabitee Legislation Breach Human Rights Law? (Swift v SS Justice) - Tom Gibson, Outer Temple Chambers
Does the statutory 2-year minimum cohabitation requirement for cohabitees (as opposed to married couples) to bring claims as 'dependants' under the Fatal Accidents Act 1976 breach human rights law? No, said the Court of Appeal in Swift v Secretary of State for Justice [2013] EWCA Civ 193.
The Continuing Plight of the Secondary Victim: An Analysis of the Law Relating to "Nervous Shock" in 2013 - Simon Allen, Slater & Gordon Lawyers
There will always be risk. As Lord Justice Jackson stated: "It is not the function of the law to eliminate every iota of risk." The law does, however, believe that it must impose limitations on those who can claim damages.
Res Ipsa Loquitur: Is Latin Back in Fashion? - Sarah Prager, 1 Chancery Lane
Sarah Prager discusses the changing fortunes of the use of the doctrine expressed in the Latin tag res ipsa loquitur, and asks if the doctrine is enjoying a resurgence.
Smith v Fordyce and Quinn Insurance [2013] EWCA Civ 320 - Dr Nicholas Braslavsky QC, Kings Chambers
C was the front seat passenger of a motor vehicle being driven by D1. The vehicle skidded on a bend on minor country road in Devon. D1 lost control and the vehicle struck the gatepost of a house with force. C suffered a head injury...
Court of Appeal Re-Asserts Hillsborough Cases Limiting Secondary Victim Claims - Charles Bagot, Hardwicke
In the first Court of Appeal case on secondary victims for 10 years, in Taylor v. A. Novo (UK) Ltd [2013] EWCA Civ 194, the Court of Appeal has re-visited the Hillsborough cases concerning secondary victims of psychiatric injury and re-affirmed...
Personal Responsibility, Unfortunate Accidents and the Liability of Occupiers - Laura Johnson, 1 Chancery Lane
Criminal lawyers are often asked how they can bring themselves to defend people who they know are guilty. Actually, I am asked that not infrequently too... But the more common dinner party accusation aimed at civil common law lawyers is: "Pft! Nanny state! People can sue for anything nowadays! Don't people have to take some responsibility for themselves?" I have two responses to this...
Editorial: Minor Soft Tissue Injuries - Aidan Ellis, Temple Garden Chambers
Most personal injury practitioners will be very familiar with the brackets set out in the JC Guidelines for short lived soft tissue injuries. The 11th edition provides for three brackets for minor neck injuries, with increasing value depending on the duration of symptoms...
'Knowledge' for Limitation Purposes: Is It Sufficient for a Claimant to Believe the Surgeons Had Resected Too Much Acromion When in Fact They Had Completely Detached the Deltoid Muscle? - Simon Wheatley, 7 Bedford Row
The definition of knowledge for the purposes of sections 11 and 14 of the Limitation Act 1980 is a subject which has generated a generous amount of legal scholarship. One only has to think of...
Jones (by Caldwell) (Respondent) v First Tier Tribunal (Respondent) and Criminal Injuries Compensation Authority (Appellant) [2013] UKSC 19 - Arti Shah, Pattinson & Brewer
On 18th January 2005 Gareth Jones was going about his everyday job driving a gritter lorry along the A282, a six-lane carriageway which links Dartford Crossing bridge and tunnel...
Cockbill v Riley: Youthful Exuberance and the Test of Foreseeability - Frances McClenaghan, 1 Chancery Lane
I turned 29 recently. As I reminisced about the days when hangovers were a mild inconvenience to be overcome within a matter of hours, my attention was drawn to a recent case arising out of an end-of-GCSE party, a paddling pool and an attempted bellyflop that went tragically wrong.
Res Ipsa Loquitur and Clinical Negligence Following Thomas v. Curley [2013] EWCA Civ 117 - Richard Baker, 7 Bedford Row
I would think that most clinical negligence practitioners have from time to time met a client who underwent an apparently routine operation under general anaesthetic albeit with disastrous consequences. We look to the consequences of that operation...
"In Loco Parentis": the Liability of Schools When Disaster Strikes - Laura Johnson, 1 Chancery Lane
School trip season is approaching again now that the summer term has begun and, as usual, I reflect on the current state of the law. It distresses me when it is said that the law is making it impossible for schools to give the next generation the same opportunities we had...
Why Accommodation Is So Important - Bill Braithwaite QC, Head of Exchange Chambers
Accommodation is fundamentally important following a catastrophic injury. It impacts in many different ways, for example change of locality, so that the injured person does not get bullied or harassed because of their disability.
CA Decision in Highways Claim TR v Devon CC [2013] EWCA Civ 418 - Angus Piper, 1 Chancery Lane
The unanimous judgment of the CA was given by presiding judge Lord Justice Lloyd. Sir Stanley Burnton and Lord Hughes of Ombersley (who has been elevated to the Supreme Court bench since the appeal hearing took place) completed the bench, and the CA partially overturned the decision of Mrs Justice Slade (reported at [2012] EWHC 796 QB).
Does the Multi-Track Code Represent Reality? - Bill Braithwaite QC, Head of Exchange Chambers
I've been re-reading the Multi-Track Code recently, for the umpteenth time, for an article I'm writing about resolving major personal injury claims with recourse to the courts. I've always wondered whether the fine words in the Code represent reality, and I'm not sure that they do.
Life After LASPO for Legal Expense Insurance: an Overview From an Underwriters Perspective - David Pipkin, Temple Legal Protection Ltd
The LASPO effect will hit the Legal Expense industry hard and underwriters have been working hard to come up with products which address the needs of consumers and allow lawyers to continue to offer security to their clients for the significant risks of litigation which remain after April 2013.
Whatever Next for the PI Claimant? - Julie Carlisle, Boyes Turner
So, here we are, post 1 April and still feeling around in the dark. New clients are being told that the daytime TV promise of "You get to keep 100% of your compensation" no longer necessarily applies, and the cost of ATE insurance premiums is being carefully explained. The world hasn't ended and we lick our wounds and press on. Sadly of course, the worst is yet to come as...
Summary of Recent Cases, May 2013
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, May 2013
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Exemplary Damages
Medico-Legal Articles, Edited by Dr Hugh Koch
Detecting Deception: Is It the Feeling or the Words or Just Chance? - Hugh Koch, Ben Goodall and Jon Willows
Two recent studies continue the thorny debate about how to increase proficiency in detecting deception in either civil or criminal litigation contexts. Peace and Sinclair (2012), psychologists in Canada, speculated and confirmed that when judging "emotional reports"...
Expert Witness Articles
How Are Expert Witnesses Responding to the New Focus on Time and Money? - Mark Solon, Bond Solon
Measures to cut costs are at the heart of the changes to the Civil Procedure Rules (CPR) which came into effect on 1 April 2013 as a result of Lord Justice Jackson's 2010 report into civil litigation costs.