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August 2013 Contents

Welcome to the August 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
Decoding the Statutory Defence - Mark Fowles, Browne Jacobson LLP
We tend to forget how novel, in the context of the history of personal injury claims, are accidents on the highway. The current Section 41 of the Highways Act 1980 can trace its history back to no earlier than to Section 1 (1) of the Highways (Miscellaneous) Provisions Act 1961...
Editorial: Striking Out Claims and the Right to a Fair Hearing - Aidan Ellis, Temple Garden Chambers
The initial indications, many of which have drawn comment in this journal, are that the Courts are using the new emphasis on proportionality together with the narrower approach to relief from sanctions in CPR 3.9 to impose significant sanctions including strike out for breaches of the procedural rules and Court orders.
RTA Post Jackson, How to Deal With Them 3 Months on: What Have We Learned? - Andrew Mckie, Clerksroom
(LASPO), Sections 56, 57 and 59 of the Act are in relation to the prohibition of the payment and receipt of referral fees in personal injury cases commenced on 1 April 2013. "A significant number of businesses involved in the personal injury market have been acting in breach of...
Jurisdiction Over Torts Occurring Outside the EU: the Decision in Stylianou v Toyoshima [2013] EWHC 2188 - Sarah Prager, 1 Chancery Lane
Sarah Prager considers the recent decision in Stylianou v Toyoshima [2013] EWHC 2188 relating to jurisdiction over torts occurring outside the EU.
Summer Cycling: Space to Roll and Strict Liability - Frances McClenaghan, 1 Chancery Lane
The long hot summer has encouraged not just questionable sartorial choices but an influx in the number of commuters hopping on bikes. Sadly, this has led to a high number of cyclist deaths. A few days ago a man died after being hit by a lorry near Archway...
Jackson in Action: the 1st April Reforms Begin to Take Effect - Shirley Denyer, Shirley Denyer LLP & Knowledge Services Consultant for FOIL
Four months in from the introduction of the new rules both claimant and defendant lawyers are getting used to the new regime and attention is turning to how the new rules work in practice. Even without the changes introduced by the new RTA and EL/PL protocols and portal, there is much...
No Smoke Without Fire: Fire Service Liability - Andrew Roy, 12 King's Bench Walk
Wembridge and 14 others v (1) Winter (2) East Sussex Fire Service and another [2013] EWHC 2331 (QB). These claims arose out of a mass explosion which occurred at a fireworks factory at Marlie Farm in East Sussex on 3 December 2006...
Legionnaires' Disease, Is There a Claim? - Kirsty Clifton, Ascot Lawyers
Headache, muscle pain, high fever, chest pain, a persistent cough, breathing difficulties, loss of appetite, diarrhoea, nausea and vomiting.... this may sound like a nasty bout of the flu, however these same symptoms could also arise from contraction of Legionnaire's Disease.
The Mesothelioma Bill: Does It Go Far Enough? - Ruth Johnson, Blake Lapthorn
Mesothelioma is a rare cancer of the lungs caused, it is thought, exclusively from exposure to asbestos. It begins in the mesothelium which is the membrane that lines and protects the lungs, the heart and the abdominal cavity. There are three main types of mesothelioma...
Under-Settlement: First VWF Scheme Professional Negligence Case Reported - Ivor Collett, 1 Chancery Lane
Former miners who had worked for British Coal were offered a tariff-based government compensation scheme from 1999 if they could show they had developed symptoms of vibration white finger (VWF - now more commonly referred to as hand arm vibration syndrome or HAVS). The scheme was the result of extensive negotiations between ex-miners' representatives (principally claimant solicitors' firms) and the DTI, which took over responsibility for British Coal's liabilities.
Johnson v Unisys Revisited: Monk v Cann Hall Primary School and Essex County Council [2013] EWCA Civ 826 - Frances McClenaghan, 1 Chancery Lane
Mrs Monk was made redundant from her position as an administrative assistant at the First Respondent's primary school, with effect from 31st August 2008. On 10th July, however, she was required to clear her desk before being publicly escorted from the premises...
Accepting Help After Serious Injury - Bill Braithwaite QC, Head of Exchange Chambers
When we evaluate a compensation claim, we always start by working out what the injured person needs, by way of accommodation and support, and all the other elements of a substantial personal injury case. However, it is vitally important to remember that need is not the only test of whether a person receives compensation; in some cases, "want" is also decisive.
The Length of Judgments and the Cost of Litigation - Thomas Crockett, 1 Chancery Lane
For a number of reasons, the cost of litigation is a hot topic at the moment. Lord Justice Mummery in giving the lead judgment of the Court of Appeal in Neumans LLP v Andrew Andronikou & Ors [2013] EWCA Civ 916, suggested a way that he and his brethren could assist in ensuring that legal costs are kept to a minimum by judges keeping their judgments as short as possible...
Dog Eat Dog: Professional Negligence Is the New Personal Injury - Julie Carlisle, Boyes Turner
When the news of the Jackson reforms first began to circulate more than one person connected with the profession suggested quietly that a move into professional negligence might be the way to ensure profitability...
Whipped! - Paul Stanton
Everyone is no doubt aware of the ongoing litigation involving Andrew Mitchell MP, the former Government Chief Whip. He is currently bringing a libel case against The Sun newspaper for it's allegations that Mr Mitchell had sworn at (and generally abused) a Downing Street police officer-front page "news" at the time...
What Exactly Are Defective Thought Processes? - Bill Braithwaite QC, Head of Exchange Chambers
This is another post about mental capacity, but it's more of a question. When we consider whether an injured person has mental capacity, ie the ability to manage his or her own affairs, we are interested in their thought processes, not simply the decisions they make. In fact, it is clear that making bad decisions does not necessarily prove that someone lacks capacity...
Flash for Cash - Philip Waters, Camps Solicitors
Last week we saw a car crash scam, 'flash for cash' come to light. According to the Asset Protection Unit, this scam involves criminals flashing their lights to let other drivers out of a junction, before crashing into them on purpose. This is clearly a despicable practice, but there is little evidence that is a wide-spread or growing problem...
Why I'm Not in Sympathy With the Whiplash Debate - Bill Braithwaite QC, Head of Exchange Chambers
The headline - "Claimant campaigners today hailed the report as a 'welcome shift to transparency and truth' in the whiplash debate" made me think. I'm a claimant only advocate, and I spend my life seeing claimants who have suffered catastrophic injury. I believe passionately in their rights, and in achieving justice for them. But...
Summary of Recent Cases, August 2013
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, August 2013
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Vicarious Liability
Medico-Legal Articles, Edited by Dr Hugh Koch
The Benefits of Earlier Interventions for Children in Road Traffic Accidents: Less Cost, Faster Recovery and Quicker Claim Settlement - Tracy King
One of the biggest health threats to children in Europe is road traffic accidents (RTA). Each year in Europe, approximately 9000 children and adolescents under the age of 19 die in an RTA, and 355 000 are injured...
Mediation & ADR Articles, Edited by Tim Wallis, Trust Mediation Ltd
Potential Pitfalls in Pi Mediations: The DMU - Tim Wallis, Trust Mediation Ltd
It is a basic, but crucial, rule of mediation that each party needs its "Decision Making Unit", or DMU, to be present at, or at the very least, remotely connected to, the mediation. If a person who holds the purse strings or is otherwise influential in the final decision does not attend the mediation the prospects of reaching a settlement at...

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