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January 2017 Contents

Welcome to the January 2017 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles.

CPD

Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.

 

Personal Injury Articles, January 2017
FREE BOOK CHAPTER: Why Get an Expert? (From 'On Experts: CPR35 for Lawyers and Experts' by David Boyle)
Court cases normally involve the interaction of evidence, law and procedure, albeit that often one or more of those aspects withers on the vine. The legal and procedural aspects of the case should fall outwith this volume, which concentrates on evidential issues, although there are clearly circumstances where the expert's evidence actually pertains to legal or procedural matters...
X v Kuoni Travel Limited [2016] EWHC 3090 (Qb): Tour Operator Liability for Rape by Hotel Employee - William Audland QC, 12 King's Bench Walk
William Audland QC of 12 King's Bench Walk and Gary Tweddle of MB Law represented the Defendant in this case where the Claimant, who was raped by an employee of a Sri Lankan Hotel, sued the Defendant tour operator that had organised the package holiday...
Fixed Costs Post-Portal Exit (aka 'Prexit') - Sarah Robson, Alpha Court Chambers
Much has been written in the blogosphere about the two recent Court of Appeal cases on fixed costs post 'Prexit'; Terrence Bird v Acorn Group Ltd [2016] EWCA Civ 1096 and Qader v Esure [2016] EWCA Civ 1109. You would have to have been half asleep recently to not know that you can jump to the highest rate of fixed costs despite skipping allocation, and that you are not limited to fixed costs if your claim goes into the multi-track. What impact do these decisions have, though, for the everyday litigator?...
Treat the Man Not the Scan - Angelina M Rigby, Geldards
The case of Dr Sido John v Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust [2016] EWHC 407 marks an important development in the law...
Vicarious Liability: The Close Connection Test is Alive and Well - Jonathan Dale, 18 St John Street Chambers
In Fletcher v Chancery Supplies Limited [2016] EWCA Civ 1112 the Court of Appeal considered the issue of vicarious liability in a case in which the employee had not given evidence at the trial and none of the witnesses called at the trial knew why the employee was crossing a road when the accident occurred...
Court Confirms Part 36 Offers Reject Earlier Common Law Offers (but watch this space for the appeal) - Sarah Holland, Loney Stewart Holland LLP
In DB UK Bank Limited (t/a DB Mortgages) -v- Jacobs Solicitors [2016] EWHC 1614 (Ch) the High Court ruled that making a Part 36 offer has the effect of rejecting an earlier common law offer, meaning it is no longer capable of acceptance...
O v Muller Wiseman Dairies, Quantum: EL Claim - Andrea Ribchester-Hodgson & Sarah Wright, Spencers Solicitors
Accident date: 18/7/2010. Settlement date: 21/10/2015. Gross settlement: £235,000.00. The Claimant; Mr O, a 35 year old Maintenance Engineer employed by the Defendant, was carrying out maintenance work on a piece of machinery. There was insufficient space in the area of the machine to use a stepladder and he had to step down a 2 ½ foot drop. As he did so, Mr O lost his balance and fell onto his left ankle...
Challenge by The Criminal Injuries Compensation Authority to a First Tier Tribunal Decision to Re-Open a Case Closed by the CICB In 1997 - E A Gumbel QC - 1 Crown Office Row
The Queen On The Application Of Criminal Injuries Compensation Authority V First-Tier Tribunal (Criminal Injuries Compensation) and MB (Interested Party) [2016] EWHC 2745 (Admin)...
Editorial: Constitutional Litigation - Aidan Ellis, Temple Garden Chambers
Though not a personal injury claim, it would be churlish for this editorial to overlook the most important legal case of the month. In Miller v Secretary of State for exiting the European Union, the Supreme Court decided by majority that withdrawal from the treaties establishing the European Union required an Act of Parliament and could not lawfully be done by the executive alone...
Jackson in Action: Case Law - Marcus Davies, DWF LLP
In our regular round up of cases we look at the effects of the changes to the Civil Procedure Rules under the Jackson Reforms...
Moving on, After Waiting for Godot - Jon Lang & Denise O'Connor, Independent Mediators
Positive momentum. It's probably one of the best antidotes to procrastination, and often the difference between the parties resolving a commercial dispute at mediation and having to see each other in court. Are there particular circumstances which may merit co-mediation, with the clear objective of increasing the pace of that positive momentum?...
Review Announced of Discount Rate for PI Damages - Ian Miller, 1 Chancery Lane
The Lord Chancellor has announced that the discount rate is to be reviewed and the result to be announced on 31st January 2017. The press release is instructive and is set out in full below...
Quantum Report: Float v Hedingham & District Omnibuses Ltd (2016) - Annie Bates, Express Solicitors
The claimant, a 55 year old man, received £110,000 for a foot injury he sustained in December 2010 when he fell from a ladder in his place of work...
Adjudication: Will It Ever Be Flavour of the Month? - John Bennett and Will Graham, DWF LLP
Adjudication has been a fixture in professional negligence disputes relating to construction since its introduction as a mandatory element of the pre-action protocol in 1996. Quick decisions, given by experienced professionals, obtained at a relatively low cost, have provided insurers with cost-efficient resolution for a significant number of such claims...
Managing Difficult Cases: The Embarrassed Claimant 2016 - Dr Mark Burgin
Dr Mark Burgin BM BCh (oxon) MRCGP explains how to assess the disabling effects of embarrassment on capacity, consent and vulnerability...
Summary of Recent Cases, January 2017
Here is a summary of the recent notable court cases over the past month...
Quantum Report: Walker V Fensome (2016) - Annie Bates, Express Solicitors
The claimant, a 55 year old man, received £51,000 for a shoulder injury sustained in a road traffic accident in December 2012. His injuries improved however, he was left with an increased risk of re-rupture which rendered him at a disadvantage on the open labour market...
Jones v Kaney in Contract Law 2016 - Dr Mark Burgin
Dr Mark Burgin BM BCh (oxon) MRCGP explains how new terms in Expert's contracts will import the ruling in Jones v Kaney (1) into personal injury work... sheet preview http://www.pibulj.com/content/law-journal-summaries/news-category-4/4021-jones-v-kaney-in-contract-law-2016-dr-mark-burgin
PI Practitioner, January 2017
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Excluding parties from court...
Range of Opinion in PI Prognosis 2016 - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP explains the theoretical approaches that underpin expert range of opinion with regards to soft tissue injury in Personal injury...