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September 2013 Contents

Welcome to the September 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
Highways Act Claims: What Is "the Part of the Highway to Which the Action Relates" for the Purposes of Section 58? - Robert Vernon, 9 Park Place Chambers
Any practitioner who has been involved in a tripping claim involving allegations against a highway authority of a breach of the statutory duty to maintain the highway will be familiar with the matters upon which the claimant in any such case bears the burden of proof. Amongst them, the claimant must...
Poole v Wright and Others: Foreseeability in Voluntary Recreational Activities - Gary Thornett, 12 King's Bench Walk
In most of our cases, we are rarely troubled to question whether a duty of care exists in principle. When the question does arise, however, it is not always easy to answer, despite reported decisions from Caparo Industries v Dickman [1990] 2 AC 605 onwards.
Stepping Out of Line - Michael Lemmy, 9 St John Street
This article considers how the Court of Appeal has wrestled with issues of primary liability and contributory negligence in pedestrian running down accidents. In Paramasivan v Wicks [2013] EWCA Civ 262 the Court of Appeal was required to consider issues of primary liability and...
Playing With Fire - Ian Miller, 1 Chancery Lane
Do the Fire Services as employers owe duties under health and safety regulations or at common law, or does a 'fireground immunity' exist? These questions were dealt with by Irwin J in the tragic case of the Wembridge Claimants and others v East Sussex Fire and Rescue Service and others [2013] EWHC 2331...
Tracing Historic Insurance Companies - Daniel Easton, Leigh Day
A "how to" guide on tracing insurance companies should be every asbestos practitioners' best tool. Perhaps the biggest challenge Claimant disease practitioners face is a potential defendant that has disappeared in the mists of time...
Stylianou v Toyoshima and Suncorp Metway Insurance Ltd: Case Comment - Robert Weir QC, Devereux Chambers
In Stylianou v Toyoshima and Suncorp Metway Insurance Ltd [2013] EWHC 2188 (QB), Sir Robert Nelson had to address, for the first time, the vexed issue of whether a foreign discount rate applied to a claim brought in England in which the foreign substantive law applied or whether, under Rome II...
Relief From Sanctions - Le Plus Ca Change? - Andrew Spencer, 1 Chancery Lane
As noted in previous articles, post April judges have been encouraged to take a much firmer line with applications for relief from sanctions - see for example Venulum Property Investments Ltd v Space Architecture Ltd[2013[ EWHC 1242 (TCC); Thevarajah and others v Riordan and others (9/08/13).
What's in a Name? A Strike Out, That's What - Jasmine Murphy, Hardwicke Chambers
A claimant received a nasty surprise this week when her claim for injury pleaded under the Montreal Convention was struck out with costs to the defendant of nearly £6,000. It was struck out because the only claim she could make against the defendant was under the unamended Warsaw Convention 1929. However...
CRU, "Lost" Personal Injuries Claims and Professional Negligence - Andrew Spencer, 1 Chancery Lane
The DWP website has the following to say about CRU liability in professional negligence claims: 3.1 Professional negligence (See Part 1 Section 4.8) - If a claim is made in respect of professional negligence and the particulars of claim, statement of claim or letter before action does not include...
Editorial: Media Coverage of Personal Injury Actions - Aidan Ellis, Temple Garden Chambers
Last week national media picked up on the story that a Norfolk police officer was withdrawing her claim for compensation against a garage owner, after she fell whilst investigating at his premises.
A Topsy-Turvy World: Foreign Accidents, Jurisdiction and Australian Law - Jack Harding, 1 Chancery Lane
Stylianou v Toyoshima (1) Suncorp Insurance (2) (2013) EWHC 2188 (QB) is the latest in a line of cases addressing the thorny issue of the English court's jurisdiction over accidents abroad. The facts read like a conflict of laws exam question: an English Claimant was injured by a Japanese...
Low Dose Asbestos Litigation: Challenges for Practitioners - Niall Maclean, 12 King's Bench Walk
The importation of asbestos into the UK has fallen dramatically from about 1970 onwards, yet the number of deaths from mesothelioma has risen equally dramatically from about the same date. The answer to this conundrum lies in the unusual toxicity of asbestos....
Taylor v Novo: Is This De Novo for Nervous Shock? - John de Bono, Serjeants' Inn
We were just becoming used to a subtle judicial softening in the application of the strict, and arbitrary, Alcock control mechanisms in nervous shock claims. The Court of Appeal have now spun the roulette wheel again. The recent decision in Taylor v Novo [2013] PIQR P15, may have been welcomed by defendants but on closer analysis...
Evidential Status of Medical Records & Lifting Babies: Cooper v Bright Horizons [2013] EWHC 2349 (David Pittaway QC sitting as a High Court Judge, QBD) - Ben Posford, Osbornes Solicitors LLP & Daniel Lawson, 9 Gough Square
Mrs Cooper ("C") worked as a nursery nurse at the Little Stars Nursery in Harpenden, which was owned by Bright Horizons ("D"). On 2nd June 2009 C was required to use a cot in the baby sleeping room on which the drop down side had been rendered inoperative such that it could not be lowered. The side had been tied up with...
CPR 3.14 - How Explicit and Draconian? - Thomas Crockett, 1 Chancery Lane
The notes in the White Book below Civil Procedure Rule 3.14 suggests the "rule is explicit and the consequences of failure to comply Draconian". The rule itself provides that "Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget...
The Death of Litigation? - Julie Carlisle, Boyes Turner
I attended a round table discussion at the Law Society recently to discuss The Future of Personal Injury. I can already hear your replies, but to stick to the matter in hand item 1 on the agenda was this: "LASPO's effect on Access to Justice"...
CPRwatch: Relief From Sanctions - Ian Miller, 1 Chancery Lane
Does the original checklist under rule 3.9 (relief from sanctions) have any role now? That question was considered by Hildyard J in Thevarajah v Riordan(9th August 2013, unreported). The Claimant sought to strike out the Defendant's Defence for failure to comply with an unless order in relation to disclosure...
The Taylor Review - Jenny Dickson, Scottish Representative to National Committee, FOIL
The Scottish Government has taken another step along the road of its proposed reform of the civil justice system with publication of the report into the review of expenses and funding of civil litigation in Scotland. The Taylor Review extends to over 300 pages and contains no less than 85 wide ranging recommendations...
No Liability for Kart Accident: Duties of Care & Vicarious Liability - Ivor Collett, 1 Chancery Lane
In an interesting survey of the principles giving rise to duties of care and vicarious liability, Mrs Justice Swift has handed down a liability judgment in a catastrophic injury case brought against various categories of defendant. The claimant was injured when her scarf got caught up in the rear axle of...
Ending the Postcode Lottery: New Coroners Rules - Kirsty Real, Albion Chambers
New Coroners Rules came into force on 25th July 2013. Many of these simply reiterate, modernise or simplify old rules and principles, such as entitlement to examine witnesses and the order in which this should be done, a power to disallow irrelevant questions, a prohibition on addressing the Coroner as to the facts, and giving directions to a jury.
Government's Proposed Reforms Will Create Great Injustice to Victims of Mesothelioma - Harminder Bains, Leigh Day
The Government released a consultation on 24 July 2013 and is to be responded to by 2 October 2013. The stated objective is to speed up claims without the need for litigation through the courts.
Summary of Recent Cases, September 2013
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, September 2013
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Contributory Negligence & Admissions of Liability.
Medico-Legal Articles, Edited by Dr Hugh Koch
DSM-5: Current State of Play and Implications - Hugh Koch
The clinical psychology forum (2013) recently summarised where DSM-5 deliberations have got to since the launch in May, 2013. The publication and its prior publicity created considerable debate amongst clinicians, especially psychologists, both in the UK and USA. A cross-continental working group fostered debate via its website...
Expert Witness Articles
Trained Expert Witnesses Are Needed to Combat the Epidemic of Whiplash Claims - Mark Solon, Bond Solon
Whiplash claims are still costing a fortune, putting up insurance premiums and clogging up courts. In the UK, 75% of motor accidents involve a whiplash claim. In France, the figure is just 3%. Amid suspicions that claims are routinely exaggerated...
Marketing for Solicitors
Marketing your Practice: Post Jackson, Costs and Fees: Creative Thinking and Benchmarking Options - Jenny Cotton, Mortons Marketing
One organisation's fees are another's costs and hence the inter organisation current pressures to improve cost effective practice. The Legal services sectors are not alone. The IPA, Institute of Practitioners in Advertising which represents professionals in...
Book Reviews
PI Book Reviews - Aidan Ellis, Temple Garden Chambers
Aidan Ellis reviews 'Personal Injury Limitation Law 3rd Edition' by Frank Burton QC & Andrew Roy, and 'Limitation of Actions in England and Wales' by Martin Canny.