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June 2014 Contents

Welcome to the June 2014 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: The Law, Important Cases And Section 58 Defences - Andrew Mckie, Clerksroom
Chapter 8 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. This chapter will deal predominantly with Highways Act tripping claims due to defects in the road or pavements. The chapter will look at relevant case law and defeating section 58 defences...
Editorial: Sentencing Dishonest Claimants - Aidan Ellis, Temple Garden Chambers
In recent years, Insurers seem to be enjoying more success in defending claims, particularly arising out of road traffic accidents, which are fraudulent or exaggerated. Where a Claimant (or indeed a witness) is found to be dishonest, Defendants increasingly seek to have...
Claims Under the Occupiers' Liability Act 1984 - Andrew Mckie, Clerksroom
Chapter 7 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. It is clear that the Occupiers' Liability Act 1957 has no application where there are trespassers on land as opposed to a visitor within the meaning of the 1957 Act...
Why Employment Lawyers Should Also Be Civil Lawyers and The Risk of Estopping Your Client - Richard Coulthard, Michael Lewin Solicitors
Most individuals assume that if a dispute arises between themselves and their employer that they will need to take action in the Employment Tribunal and will approach an Employment Lawyer. Historically there have been significant advantages to...
Occupiers' Liability Special Considerations, Children and Independent Contractors - Andrew Mckie, Clerksroom
Chapter 6 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. This chapter will look at the special considerations such as cases involving children and independent contractors, provide a summary of the cases in this area and special...
Chartwell Estate Agents and the Mitchell decision - Lisa Dobie, 1 Chancery Lane
Having delivered and attended several post Mitchell case updates, one recent decision that surprised and interested me (in the context of other post Mitchell decisions) was Chartwell Estate Agents Ltd v (1) Fergies Properties SA and Another [2014] EWHC 438. This decision was appealed and the Court of Appeal's decision appeared on Lawtel...
Dealing With Occupiers' Liability Claims: the Law, Case Summaries and Gathering Evidence - Andrew Mckie, Clerksroom
Chapter 5 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. This chapter will deal with slipping and tripping cases in relation to supermarkets, shopping centres and other licensed premises, on private land where the Occupiers' Liability Act 1957...
No Sudden Outburst of Honesty by Under-Compensated Miner - Ivor Collett, 1 Chancery Lane
The Court of Appeal has recently upheld a County Court Judge's decision to award damages to a former miner who complained that he had been under-compensated in an industrial injury scheme. One of the reasons given was that the Defendant's explanation for the Claimant's conduct was...
Trouble with the Uninsured Drivers Agreement - Paul Williams, Greenwoods Solicitors
In the case of Delaney v The Secretary of State for Transport [2014] EWHC 1785 (QB) the court held that clause 6(1)(e)(iii) of the Uninsured Drivers' Agreement 1999 (the Agreement), the so-called "crime exception", is incompatible with the EC Motor Insurance Directives.
What's Trivial? - Andrew Spencer, 1 Chancery Lane
There are an increasing number of reported cases about breaches that can be characterised as "trivial" and thus meriting relief from sanctions without the need to show a "good reason", providing the application was made promptly. One example is Adlington...
Touching a Nerve: Clinical Negligence, Malcolm Atkinson v South Tees Hospitals NHS Foundation Trust [2014] EWHC 1590 (QBD) - Ruwena Khan, Zenith Chambers
A surgeon had divided a patient's ulnar digital nerve during an operation and he had been negligent in failing to recognise that fact and to consider repairing it. It was not established that the patient's palmar cutaneous nerve had been divided in a later operation. Judgment in part for...
Private International Law and PI: Final Gasps of the 1995 Act? - Matthew Chapman, 1 Chancery Lane
As we move further and further away from 11 January 2009 (the date of application of the Rome II Regulation (EC No 864/2007) which governs applicable law in tort: see, Homawoo v GMF Assurances SA [2012] Case C-412/10) we see less and less of Part III of the Private International Law...
The Real Cost of Litigants in Person - Simon Trigger, 1 Chancery Lane
We all know the stereotype of a litigant in person: they turn up at court with numerous carrier bags filled with copious quantities of irrelevant documents heavily annotated in green ink. The parties in Mole v Hunter [2014] EWHC 658 (QB), both litigants in person, did not conform to that stereotype...
Mcdonalds Coffee Case, Round Two - Simon Trigger, 1 Chancery Lane
Many of us will be familiar with the much ridiculed but ultimately successful 1994 McDonalds coffee claim made in America. For those who do not know the facts of that case the Claimant suffered third degree burns to her legs due to a McDonald's coffee that they claimed was excessively hot and which...
Removing the Shackles? - Bill Braithwaite QC, Head of Exchange Chambers
Yet another procedural decision, but an interesting one. In a road traffic accident, the defendant in his defence denied liability and included the words "the Claimant caused the collision". The Defence did not include an explicit claim for contributory negligence, although it was obvious that...
New Guidance on Health and Safety in Docks and Ports - Gordon Exall, Zenith Chambers
The Health and Safety Executive has produced new Guidance on Health and Safety in Docks and Ports. The HSE state: "The new guidance (Safety in Docks: Approved Code of Practice and guidance - L148) replaces the existing Approved Code of Practice (COP25) which has been...
The Future of Expert Evidence in Personal Injury Cases - Paul Phillips, Greenwoods Solicitors
As a solicitor involved in handling largely catastrophic personal injury cases, I spend many of my waking hours reading the often competing reports of a wide range of medical and non-medical experts. In a large number of cases the injuries are remarkably similar; the experts are pretty much...
Causation, Reliance... and Loft Hatches - Andrew Spencer, 1 Chanery Lane
The recent Court of Appeal case of Morcom v Biddick [2014] EWCA Civ 182 raises very interesting questions about duties of care, causation and reliance. Mr Morcom is a skilled tradesman with extensive experience in the building trade. Mr Biddick (now deceased) was...
Example of a Fatal Award at Trial: Brown - v- Hamid Considered: Claims for Loss of Consortium - Gordon Exall, Zenith Chambers
Relatively few fatal cases get to trial. Even fewer involve a consideration by the court of the damages to be awarded under the Fatal Accident Act. The recent decision in Brown - v- Hamid [2013] EWHC 4067 (QB) provides an interesting example of how the courts approach the issue of dependency...
Fatal Accident Claims and Applicable Law of the Tort: Cox v Ergo Versicherung AG [2014] UKSC 22 - Matthew Chapman, 1 Chancery Lane
The claim arose out of fatal road traffic accident in Germany on 16 March 2004 in which the Appellant's husband was tragically killed after being hit by a car whilst riding his bicycle. The driver of the car was German and was insured by the Respondent, a German insurance company...
Risk Management: Avoiding Professional Negligence Claims in the New Litigation Landscape - Peter Causton, Member of Law Society Civil Justice Committee, Mediator and Deputy District Judge
There have always been claims against lawyers by disgruntled clients for the loss of opportunity to bring or pursue a personal injury claim, but with the introduction of the cost cutting Jackson Reforms and fixed fees, there are ever more ways in which errors, omissions and misjudgements can occur, leading to...
Summary of Recent Cases, June 2014
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, June 2014
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Further Guidance on Mitchell and Applications for Extension of Time
Medico-Legal Articles, Edited by Dr Hugh Koch
The Relationship Between Perfectionism and Rumination in PTSD - Dr Jenny McGillion
Clinicians working therapeutically with clients with Post Traumatic Stress Disorder (PTSD) have long recognised that, for some clients, perfectionistic and ruminative cognitive processes appear to play a part both in the development and maintenance of trauma reactions. Whilst research has demonstrated...
Book Review: Clinical Negligence (Seventh Edition, Bloomsbury Professional) by Charles Lewis, Andrew Buchan
Book review by Tim Kevan
Book Review: Personal Injury Practice (Sixth Edition, Bloomsbury Professional) by Andrew Buchan, Jenny Kennedy and Eliot Woolf
Book review by Tim Kevan