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July 2015 Contents

Welcome to the July 2015 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: The Enterprise and Regulatory Reform Act 2013 and the Impact on Employers Liability Claims - Andrew Mckie, Clerksroom
Chapter Four from the new book, 'Employers Liability Claims: A Practical Guide Post-Jackson' by Andre Mckie. Section 69 of the Enterprise and Regulatory Reform Act 2013 (ERRA) is now in force. The effect of Section 69 is that most employees seeking compensation for injuries suffered as a result of accidents at work on or after 1 October 2013, will no longer be able solely to rely on a breach of health and safety regulations to establish breach of duty. Instead, they will...
Free Book Chapter: The Portals and Fixed Portal Costs in Employers Liability Claims - Andrew Mckie, Clerksroom
Chapter One from the new book, 'Employers Liability Claims: A Practical Guide Post-Jackson' by Andre Mckie. The Low Value Portals in Employers Liability Claims Came into effect for any claim where the accident date is on of after 31 July 2013. The purpose of this Chapter is to examine the most important aspects of the Portals in the context of Low Value Personal Injury claims, for claims that start off with the Low Value Portal but then exit the Portal.
Editorial: Dishonesty, Allocation and Fixed Costs - Aidan Ellis, Temple Garden Chambers
The interplay between fixed costs and qualified one way costs shifting creates an interesting imbalance with regard to low value cases in which dishonesty is alleged. If a new personal injury is allocated to the fast track, the fixed costs regime will apply and...
Ex Turpi Causa, Causation and Contributory Negligence - Katharine Evans (CILEx), Bartletts Solicitors
The Court of Appeal has recently handed down an interesting judgment in a road traffic personal injury case which involved an examination of the defence of ex turpi causa non oritur actio along with the issues of causation and contributory negligence.
Sea Change - Angela Williams, Browne Jacobson
The Court of Appeal has handed down its judgment in the case of South West Strategic Health Authority v Bay Island Voyages. The appeal related to a Part 20 claim issued by SW SHA's lawyers against Bay Island Voyages, a boat company who had taken Dr Feest on a boat trip...
The Risk and Burden of Being a Trespasser - Helen Tinkler, CILEx Law School, Bar Standards Board and Whatley Weston & Fox
The Occupiers' Liability Act 1957 provides that its rules have effect in place of the rules at common law. This encourages a temptation to overlook the obvious derivation of the statutory rules from the common law. But to be successful in any claim arising from an occupiers' liability, whether to a visitor or a trespasser, the burden of proof rests with...
Paying the Premium for Inadequate Evidence on Detailed Assessment - Andrew Roy, 12 Kings Bench Walk
Nokes v Heart of England NHS Foundation Trust Senior Court Costs Office, Master Leonard, 29 May 2015. This case is the first reported decision on the recovery of additional liabilities taken out after the implementation of the Jackson reforms on civil funding...
Complying with the COSHH Regulations - Martin Stear, Chartered Occupational Hygienist
One hundred and thirty three; that was the number of reported safety-related deaths at work in 2013/14. Each and every one of these deaths was a tragedy and should not have happened but more alarming are the numbers of annual deaths from work-related ill-health and disease...
Woodland v Maxwell and or [2015] EWHC 273 (QB): Liability Win on Basis of Children's Lay Witness Evidence - Jenny Maloney, Slater and Gordon (UK) LLP
The claimant won this case because Mr Justice Blake preferred the contemporaneous evidence to new versions of events given at trial...
Buswell v Symes & Anor - John Foy QC & Laura Hibberd (pupil), 9 Gough Square Chambers
The recent case of Buswell v Symes & Anor [2015] EWHC 1379 (QB) raised a number of issues associated with motorcycle claims on country roads. Primary liability was decided on the basis of the alternative exits from a field available to the Defendant tractor driver and whether he was negligent in the exit he selected...
The Risks of Agriculture, and Risks of the Claim - John Green, Taylor&Emmet LLP
The internet is littered with disturbing videos of people being seriously injured at work, and it is a sad and worrying fact that such injuries are still prominent in the agricultural sector. You only need type 'farm accidents' into YouTube to find videos entitled 'potato harvester crushes worker's leg'...
A Broadening of Perspective or a Narrowing of the Rules? Conduct and Relief From Sanctions Following Cockell v Holton (No. 2) EWHC 1117 (TCC) - Christopher McClure, John M Hayes
It would be easy to succumb to the temptation for sensationalism and pen an article which gives the impression that a simple typing error is somehow synonymous with a possible loss of £1.6 million. Whilst enthralling, that would be to miss the point. When Mr Justice Edwards-Stuart refused the Defendant's application for relief from sanction following...
Low Exposure Asbestos Claims: the Devil Is in the Detail... and the Disclosure - Jon Andrews, Linder Myers Solicitors
Following the cases of 'Williams v Birmingham' and 'McGregor v Genco' in particular, it has become common for asbestos claims to be defended on the basis that low exposure to asbestos, even in the 1970's, did not create a foreseeable risk of injury and hence does not amount to a breach of duty on the part of an employer. The simple point being, that even if causation is established...
Bumper Damages Award in RTA but Final Determination of Costs Delayed; a Tale of Funding Based Deficiencies and Relief From Sanctions - Michael Fitzpatrick, John M Hayes
O'Brien v Shorrock & the MIB (2015) EWHC 1630 (QB). The Claimant had sustained personal injury and loss as a result of an RTA in 2002; a Trial had established the identity of the driver in 2011 and the action was resolved in 2012 by an Order for a lump sum payment of £1.8 million and periodical payments starting at £140,000.00 pa. The MIB were ordered to pay the Claimant's costs...
Vaughan v MOD - James Williams, Henderson Chambers
In Vaughan v Ministry of Defence [2015] EWHC 1404 (QB), the High Court held that an employer's liability does not extend to employee's activities in his free time, even if the employee was abroad at the time on trip organised by his employer.
Memory and Clinical Negligence Trials: Tressider v Royal Cornwall Hospitals NHS Trust - Tamar Burton, Cloisters
In Tressider v Royal Cornwall Hospitals NHS Trust [2015] EWHC 1262 (QB) the court had a single liability issue to determine: did a child present with a visible scoliosis of the spine in November 2000 and November 2001?
Trial and Error: James v Ireland [2015] EWHC 1259 (QB) - Sarah Hunt, John M Hayes
Mr James, the Defendant in a road traffic accident claim, appealed the Judgment and Order of Master Campbell on 7 August 2014. Master Campbell held that for the purpose of CPR 45.16 and 45.17 the trial of the action had commenced and accordingly...
Have We Started Yet? Commencement of Contested Hearing and CFA Uplifts - Thomas Crockett, 1 Chancery Lane
When a trial begins is of obvious import to any litigant where one or more party is funded by a conditional fee agreement which provides for an uplift per CPR 45.16 and 45.17. Mrs Justice Slade in a recent appeal from Master Campbell held that a contested hearing on the issue of liability had yet to commence before a subsequent settlement.
Not All Fun at the Farm - Kelly Langworthy & Rebecca Bowley, Ringrose Law
The farming industry represents approximately 1.8% of the workforce in Great Britain and being a famer or a farm hand is renowned for being a hazardous occupation. Farm Safety Week recently took place between 6th and 10th July 2015. This is an initiative led by the Farm Safety Foundation annually and is supported by a number of organisations...
Getting Wasted: A Look at the Wasted Costs Regime - Gemma Witherington, John M Hayes
The wasted costs regime is set out in Section 4 of the Courts and Legal Services Act 1990, enacting section 51(7) of the Senior Courts Act 1981 which defines wasted costs as being costs incurred by a party "as a result of any improper, unreasonable or negligent act or omission"...
Guidance as to Litigants-in-Person, a Sign of the Times? - Thomas Crockett, 1 Chancery Lane
The Bar Council, Law Society and Chartered Institute of Legal Executives has produced some joint guidance for lawyers in how to conduct themselves towards a litigant-in-person...
MedCo Portal Update - Mark Solon, Bond Solon
The new system under which all expert reports in soft tissue - that's whiplash claims to the non-medical - must be commissioned, went live on 6th April 2015, but it hasn't all been plain sailing...
Introducing PIcARBS, The Personal Injury Claims Arbitration Service
The following is taken from a booklet published by PIcARBS. Many shipping, building and commercial disputes are resolved by arbitration. So why is arbitration not used to resolve personal injury and clinical negligence claims? Arbitration should be used. It is quicker, much more cooperative and flexible and less expensive than the civil justice system.
Counting the Cost of Disability: Writing a Disability Analysis Report (DAR) 2015 - Dr Mark Burgin
Disability analysis reports (DAR) are versatile and can assess care and mobility needs, determine eligibility for benefits such as capacity for work, and are even used in the family courts to assess parental ability to provide childcare...
Three Months of MedCo: A Medical Reporting Organisation's view - Ian Robinson, MDE Medico-Legal
The latest phase of the Government's whiplash reforms is now three months old. From April 6, 2015, all low value RTA claims must go through the MedCo Portal, which randomises how solicitors allocate their work...
Summary of the PIcARBS Arbitration Service
The following is taken from a booklet published by PIcARBS. The Personal Injury and Clinical Negligence claims arbitration service is designed for claims over £50,000...
Summary of Recent Cases, July 2015
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, July 2015
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: MRH Solicitors & others v Manchester County Court [2015] EWHC 1795 (Admin).