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December 2014 Contents

Welcome to the December 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
FREE BOOK CHAPTER: Future Developments in RTA Claims, Reducing Fraud and Costs - Andrew Mckie, Clerksroom
Here is another free chapter from the new book 'RTA Personal Injury Claims Post Jackson: A Practical Guide' by Andrew Mckie, A clear but comprehensive guide to road traffic accident personal injury claims. Covers issues in relation to RTA claims dealing with such issues as the portal, fixed costs, liability, indemnity, vicarious liability, causation, litigation tactics, investigating quantum, vehicle related damages and head of special damages, commonly found in RTA cases and in particular focuses on the day-to-day issues in practice, one encounters with such cases.
For the Greater Good? Summary Dismissal, Psychiatric Injury and Remoteness - Liam Ryan, Ely Place Chambers
Exploring the impact of the Court of Appeals decision in Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512 and how Claimants in stress at work claims can bring claims for psychiatric injury and consequential loss occasioned through a single incident of stress.
The Importance of Evidence of Local Standards When Bringing a Holiday Claim - Joe Smith, Bartletts Solicitors
A recent Court of Appeal case has emphasised the importance of adducing evidence of local standards when bringing a slipping claim under the Package Travel, Package Holiday and Package Tours Regulations 1992 (the 1992 Regulations)...
Butcher v Southend-on-Sea Borough Council [2014] EWCA Civ 1556 - Jack Nicholls & Mike Blitz, 5 Pump Court
In Butcher v Southend-on-Sea Borough Council [2014] EWCA Civ 1556, the Court of Appeal rejected any attempt to treat the various factors established as relevant to occupier's liability as a checklist. The decision serves as a reminder that weight is just as important as...
Editorial: Promptness and Applications to Set Aside Default Judgment - Aidan Ellis, Temple Garden Chambers
As is well known, when the Defendant invites the Court to exercise its discretion to set aside default judgment pursuant to CPR 13.3, the Court must consider whether the application was made promptly. But what does promptness add to the Court's analysis?
The Claimant's Burden: The Decision of the Court of Appeal in Lougheed v On The Beach Limited [2014] EWCA Civ 1538 - Sarah Prager, 1 Chancery Lane
Sarah Prager considers the recent decision of the Court of Appeal in Lougheed v On the Beach Limited [2014] EWCA Civ 1538 relating to the necessity for evidence of local standards in holiday claims...
Court of Appeal Upholds Finding of No Residual Earning Capacity - Gordon Exall, Zenith Chambers
It is rare for the Court of Appeal to consider matters relating to loss of earnings. In the judgment today in Ali -v- Caton and the MIB [2014] EWCA Civ 1313 the Court of Appeal upheld a finding of the trial judge that the claimant had no residual earning capacity.
Claimant PI Firms Urged to Keep It Real About The WIP - David Johnston, PI-Solutions
Many claimant personal injury (PI) law firms, particularly smaller firms or departments, are putting a much higher value on their work on progress (WIP) than it's actually worth and, in some cases, it's proving to be their downfall warns David Johnstone...
Heneghan v Manchester Dry Docks Ltd & Others - Nick Pargeter, BLM
In a successful BLM asbestos-related lung cancer case, the High Court has held that where the claimant has been exposed to asbestos in breach of duty by more than one defendant, and no defendant is responsible for more than half the total cumulative exposure...
Compensating an Injured Foetus: The CA's Decision - Ian Miller, 1 Chancery Lane
Can a child make a claim to the Criminal Injuries Compensation Authority in circumstances where it has been injured by its mother's excessive alcohol consumption during pregnancy? What duty of care is owed by a mother to her unborn child?
Loss of Earnings: Proving That the Injuries Caused the Losses - Gordon Exall, Zenith Chambers
The burden of proof is on the claimant in proving loss of earnings. This applies as much to proving causation as to the duration and amount of the loss. Here we look at two recent cases which are very different but highlight the problems there can be with causation.
Neutral Facilitation - Bill Braithwaite QC, Head of Exchange Chambers
I've been writing for some time about my scheme of neutral facilitation; the parties appoint a neutral facilitator at the outset of the claim, or during its progress, and that person, who needs to be a specialist in the type of litigation being conducted...
Shooting Admiral Byng - Ian Miller, 1 Chancery Lane
Although Hildyard J. made reference to Admiral Byng in his judgment in the case of Caliendo v Mishcon de Reya [2014] EWHC 3414 he was not prepared metaphorically to shoot the Claimant's solicitors, DLA Piper LLP, to encourage the rest of us...
A Review of the Case of Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138 - Rushmi Sethi
This is an interesting claimant personal injury international law case because the Court of Appeal clarified the law on the issue of which expert evidence the court should order fell to be determined by reference to English law, the law of forum, rather than French law, the applicable law.
Platinum Salts Sensitisation/Allergy: No Injury as the Court Follows Pleural Plaques - Alan Care, Thomson Snell & Passmore
The medical profession particularly allergists and immunologists may well be surprised by this recent High Court judgment as Jay J has apparently swept aside medical science or at least an appreciation of allergy...
Whiplash and Fraudulent Claims - Ian Miller, 1 Chancery Lane
The justice secretary spoke to the Association of British Insurers recently, telling them about the new panels of medical experts in whiplash claims, reported The Times. The government's plans for such panels have long been known about but...
No Liability for Development of Sensitivity to Platinum: Greenway -v- Johnson Matthey PLC - Gordon Exall, Zenith Chambers
In Greenway -v- Johnson Matthey PLC [2014] EWHC 3957 (QB) Mr Justice Jay decided that there was no claim in law for claimants whose exposure to substances at work led to their developing sensitivity to platinum...
Negotiation in Catastrophic Claims - Bill Braithwaite QC, Head of Exchange Chambers
Negotiation in catastrophic injury claims is so interesting; everyone has different styles. Some work for me, and some don't. I had two settlement meetings recently, close together, which demonstrated the two extremes.
Summary of Recent Cases, December 2014
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, December 2014
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: The Supreme Court's judgment in HRH Prince Abdulaziz Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd
Medico-Legal Articles, Edited by Dr Hugh Koch
Detection of Deliberate Deception in Medico-Legal Assessment - Dr Karen Addy Consultant Clinical Psychologist / Neuropsychologist
A key part of the medico legal process involves the expert's assessment of if the individual presented before them is telling a true and accurate account of their difficulties. Some people say that gaze aversion is a sign of lying, others that fidgety feet or hands are the key indicators. Still others believe that analysis of voice stress or body posture provides benchmarks. Research has tested all of these indicators and found them only weakly associated with deception.
Expert Witness Articles
The Bond Solon Annual Expert Witness Survey - Mark Solon, Bond Solon
Expert witnesses say they are being put under pressure to change their reports, according to the latest Bond Solon Annual Expert Witness Survey. In a survey of 186 expert witnesses, 55 respondents said they had been asked to, or felt pressurised to, alter a report, in a way that damaged their impartiality. Witnesses' experiences ranged from being asked to remove sections of reports which were seen as damaging to the client's case to being asked to re-write in their favour. Other experts said some solicitors had even refused to...