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August 2014 Contents

Welcome to the August 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
Editorial: On Unreasonableness and Opportunism - Aidan Ellis, Temple Garden Chambers
One of the surprising aspects of Denton v TH White Ltd [2014] EWCA Civ 906, was the criticism which the Court of Appeal reserved for those who resist successful applications for relief from sanctions. According to Denton, unreasonableness and opportunism are inimical to cooperation and the avoidance of...
Akhtar v Boland: Costs Game-Changer - Matthew Hoe, Jaggards & Taylor Rose Law
The Court of Appeal's decision in Akhtar v Boland [2014] EWCA Civ 872 is at first blush only about the appropriate track for a low value claim. But it has wider implications. In confirming that 'any amount not in dispute' when determining the value of a claim for allocation purposes is wider than...
Bullying, Confused Perceptions and Stress Claims - Liam Ryan, Ely Place Chambers
In stress claims where there is evidence that an employer was on express notice of an employee's stress related condition (e.g. such as by emails, letters, appraisals and minutes), the law is relatively clear. However, there was less clarity as to how the courts would deal with...
Gray v Botwright - Paul Oakley, 1 Essex Court
On 5th July 2010 Mr Gray was driving along the A143 in Bradwell, Norfolk. His intended route of travel was to the right into Long Lane. This is part of a 5-route junction controlled by 11 traffic lights and drivers intending to turn into Long Lane do so by way of slip lane with a filter arrow...
Damages Guidance in Brain Injury Cases - Nigel Cooksley QC & Rosalie Snocken, Old Square Chambers
This article is designed to give some guidance to Claimant lawyers on issues and matters to consider regarding quantum in cases involving serious brain injury, particularly looking at the gathering of evidence ready for preparation of the schedule.
Can You Have Your Cake and Eat It? - Helen Tinkler, CILEx, CILEx Law School, Bar Standards Board and Whatley Weston & Fox
Following Denton v TH White Ltd; Decadent Vapours Ltd v Bevan; Utilise TDS Ltd v Davies [2014] EWCA Civ 906, litigation life might have seemed momentarily sunlit and calm as we slipped into the summer months but now the heat is up for litigators preparing statements of case...
Doctor! Doctor! Can I Have a Second Opinion? - Ruwena Khan, Zenith Chambers
At a time when the law of medical negligence is under particular scrutiny with the second reading of the Medical Innovation Bill (the 'Saatchi Bill') having taken place on 27th June 2014 and the government requiring significant amendments to be made to ensure that doctors are not at risk of...
Mcgregor v. Genco (FC) Ltd: Time and Duty - Simon Morrow & Malcolm Keen, BLM
An employer's duty at common law is to take reasonable care to protect its employees from a foreseeable risk of injury. In mesothelioma and other asbestos-related illness cases, foreseeability of the risk of injury has a particularly significant role. The recent High Court mesothelioma case...
Walsall MBC v Millard - Matthew White, St John's Chambers
Matthew successfully represented the defendant/appellant highway authority in Walsall MBC v Millard, unreported, Walsall County Court (HHJ Gregory), 30/6/14, a decision that should give solace to highway authorities worried about the implications of the decision in Wilkinson v City of York Council [2011] EWCA Civ 207. This email address is being protected from spambots. You need JavaScript enabled to view it.
Fighting Fraud: Paying Off for Motor Insurers and Their Customers? - Thomas Crockett, 1 Chancery Lane
Recent growth has been seen in the litigation market in the field of allegations of fraud in road traffic accident cases. Insurers (particularly certain insurers) have latterly been far more confident in fighting claims where there is good evidence of something untoward: dishonesty, such as...
Exit Mitchell, Enter Denton - Ian Miller, 1 Chancery Lane
Our jurisdiction generally does not favour laws (whether judge- or parliament-made) which fail to take account of what is just in the individual circumstances of the particular case. The common law prides itself in being able to adapt to new situations to yield what we would generally understand...
Court of Protection in the Spotlight - Eddie Fardell, Thomson Snell & Passmore
The Court of Protection found itself in the spotlight again recently when Cathy Watson, the mother of a girl severely injured at birth, was found guilty of plundering her daughter's damages award. She was sentenced earlier this year, and handed down a prison term of 5½ years. Her ex-husband...
Costs Management - Nicholas Lee, Managing Director of Paragon Costs Solutions
By now many readers will have prepared or seen a costs budget and experienced a Costs Management Conference (CMC). With little by way of reported decisions, I take this opportunity to share some of our experiences and the lessons learned.
Allocation and Admissions - Ian Miller, 1 Chancery Lane
Where a defendant admits a part of a claim, how does the admission affect the allocation of the claim? This was the question considered in Akhtar v Boland [2014] EWCA Civ 872. The defendant filed a Defence admitting hire, recovery and storage charges in the sum of... Limited v Huzar and the Extraordinary Circumstances Exception - Frances Mcclenaghan, 1 Chancery Lane
Whilst this appeal concerns fixed compensation for flight delay under the Regulations rather than personal injury it is of interest to travel law practitioners whose work encompasses both specialisms (as well as the numerous other international conventions engaged when holiday makers have accidents abroad).
Mitchell Misunderstandings - Bill Braithwaite QC, Head of Exchange Chambers
The Court of Appeal gave judgment in a way which has caused a lot of critical discussion amongst practising lawyers. They said that "the judgment in Mitchell has been misunderstood and is being misapplied by some courts. It is clear that it needs to be...
Grasping the Nettle: the Need for Employees to Make an Employer Aware of Stress - Liam Ryan, Ely Place Chambers
An issue which continues to be prevalent in stress cases is how to approach cases where an employee conceals his or her stress from an employer prior to a breakdown. The recent Judgment in Bailey v Devon Partnership NHS Trust [2014] WL 3387689 has raised a number of points...
Instructing an Accountant in PI Cases Post-Jackson - Richard Formby FCA MAE, Experienced Accountancy Expert Witness & Partner at Monahans, Chartered Accountants
Having provided quantum expert support in Personal Injury claims for over 25 years, it has been interesting to watch the recent development of the tough PI litigation environment. I have observed over the past six months or so, a marked difference in attitude by courts and, particularly...
Drug Dealer's Injury Damages Bonanza - Ivor Collett, 1 Chancery Lane
In a result which the judge acknowledged had scope to cause some serious head-scratching among ordinary members of the public, a drug-dealer has recently succeeded in a damages claim against the UK government because domestic legislation denied him the ability to...
Recent Cases on Fatal Accidents Considered - Gordon Exall, Zenith Chambers
Here we review recent cases relating to fatal accidents. (1) Accidents abroad and the scope of the Fatal Accidents Act; (2) Cohabitation, human rights and the Fatal Accidents Act; (3) Valuing a dependency claim; (4) Damages for loss of consortium...
Dealing With Setbacks - Bill Braithwaite QC, Head of Exchange Chambers
I saw a young client recently who has been really struggling to get his life back after catastrophic brain injury. He has been growing through his teen years, coping with difficult family life, and gradually discovering how much he can't do. Along the route, he has been to inappropriate...
Summary of Recent Cases, August 2014
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, August 2014
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month, Denton & ors v TH White Ltd & ors [2014] EWCA Civ 906.
Medico-Legal Articles, Edited by Dr Hugh Koch
Post-Concussion Syndrome and the Role of The Clinical Psychologist: Article Review - Dr Karen Shannon, Clinical Psychologist & Dr Karen Addy, Clinical Neuropsychologist
In a recent article published in Clinical Psychology Forum Dr Phil Moore reviewed the role of Clinical Psychology in the assessment and treatment of post-concussion syndrome. In this brief review Dr Shannon and Dr Addy highlight the need for such assessment within the medico legal context.

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