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June 2017 Contents

Welcome to the June 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
Roberts v Johnstone: A New Accommodation - Nigel Spencer Ley, Farrar's Building
If the method for calculating damages for the additional capital cost of new accommodation set out in Roberts v. Johnstone [1989] 1 QB 878 is applied strictly using the new discount rate, a claimant purchasing more expensive accommodation as a result of his disability will have to pay damages to the defendant...
FREE BOOK CHAPTER: An Introduction to Housing Disrepair and Cavity Wall Claims (From 'A Practical Guide to Running Housing Disrepair and Cavity Wall Claims' by Andrew Mckie, Ian Skeate, Simon Redfearn)
The 23rd February 2017 was a day that will stick in the mind of many Personal Injury Lawyers - the day we found out that the small claims track would increase for RTA claims from 1st October 2018 and the limit would increase to £2,000 for EL/PL claims. For those who work in an RTA firm, these changes are dramatic and will likely mean it is very difficult for RTA Lawyers to run a practice beyond October 2018, without diversifying into new areas of law...
RE v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB) - Vanessa Cashman, 12 King's Bench Walk
In this case, the infant claimant had suffered a brain injury during her protracted birth in 2011. She was a very large baby and suffered (the claimants argued) a shoulder dystocia, meaning that her shoulders got stuck in the birth canal. As a result of this she suffered a hypoxic insult to her brain. The two other claimants were her mother and grandmother, who sustained psychiatric injury as a result of the birth...
FREE BOOK CHAPTER: What Is Pain? (From 'A Practical Guide to Chronic Pain Claims' by Pankaj Madan)
There is no unanimity on the definition of "pain" but the consensus of medical opinion uses this IASP definition. Until 1979 there was no published definition. The key to understanding the definition is to note that firstly, whilst most patients with pain had tissue damage, the definition embodied the patients who had no identifiable tissue damage but nevertheless experienced pain...
Material Contribution in Cases of Psychiatric Injury - Richard Johnson, Browne Jacobson
The difficulty of raising causation arguments when defending claims for psychiatric injury was exemplified by the case of, Diane Jennifer Kennedy v London Ambulance Service NHS Trust (LAS) 2016 QBD...
Cyclist Death on Tram Tracks: An Accident Waiting to Happen? - Caroline Kelly, Thorntons Law
I was saddened to read the news of a 24 year old cyclist being killed in Edinburgh city centre after the wheels of her bike became stuck in the tram tracks, causing her to fall into the path of a minibus. My sympathy lies not only with the family of the cyclist but also with the driver of the minibus who is understandably distressed at the incident...
What Duty Is Owed To Patients By Non-Medical Hospital Staff? - Kay Ditcham, Tilly Bailey & Irvine
There is no doubt that the NHS is under a great deal of pressure. Accident and Emergency Departments all over the country handle large volumes of injured patients every day and they are of course under a duty to prioritise the needs of those people. It is estimated that around 450,000 people visit A&E Departments in England every week...
When Diabetic Amputations Are Avoidable: Lessons From the Reported Cases - Paul Sankey, Enable Law
With diabetes increasing, more patients are likely to need amputations. Good preventative care is crucial. Unfortunately medical mistakes sometimes lead to amputations, a situation which is familiar to clinical negligence practitioners. So where are the risks and why do things go wrong? The reported cases give an indication...
Editorial: Civil Procedure Wish List - Aidan Ellis, Temple Garden Chambers
If you could change any of the Civil Procedure Rules, which ones would you amend (or remove altogether)? I'm sure many readers will have their own suggestions for relatively minor tweaks which could enhance the clarity or fairness of the Rules. Here are two of my suggestions, prompted by situations that arise relatively frequently in civil litigation...
An Interesting Fixed Costs Case - Anna Macey, Kings Chambers
(Prescott -v- THE TRUSTEES OF THE PENCARROW 2012 MAINTENANCE FUND Defendant). On the 27 October 2015, the claimant Logan Prescott, a minor, was a passenger in a car being driven by his mother. The car collided with a tree that fell on to the highway. The tree was owned by The Trustees of the Pencarrow 2012 Maintenance Fund, the defendants. The claim was settled for £1000, which was approved at an infant approval hearing on 7th October 2016...
Fundamental Dishonesty: Blind Men and Elephants? - Patrick West, St John's Chambers
'Me I'm dishonest, and a dishonest man you can always trust to be dishonest. Honestly it's the honest ones you have to watch out for, you never can predict if they're going to do something incredibly stupid' - Jack Sparrow, Pirates of the Caribbean. Joking apart, Johnny Depp's line rings true when it comes to QOCS cases and fundamental dishonesty. These cases come in two varieties...
Historic Abuse Claims: When Is Late Too Late? - Paul Donnelly & Samantha Chambers, DWF LLP
Six reported cases in three months give clear judicial guidance on when the court should/should not disapply the limitation period...
Wilkinson Lives on in Crawley! (A Highway Authorities Lack of Resources Is Still Irrelevant to a Section 58 Defence) - Ian Pennock, Park Lane Plowden Chambers
The recent case of Crawley-v-Barnsley Metropolitan Borough Council [2017] EWCA Civ 36 confirms three main points established in the case of Wilkinson-v-City of York Council [2011] EWCA Civ 207 which has caused highway authorities difficulties because...
Nervous Shock Following Birth - Anna Macey, Kings Chambers
(RE and others v Calderdale and Huddersfield NHS Trust). This case arose out of a claim for clinical negligence following the birth of a baby, RE, who suffered an acute profound profound hypoxic ischaemic insult immediately prior to and after her delivery, on 22 April 2011...
Living Mesothelioma Claim: Damages Assessed in Life, and More to Follow After Death - Dominic Collingwood, DWF LLP
Andreou v S Booth Horrocks & Sons Limited, High Court (QBD), 13 January 2017. The recent decision of Judge Walden-Smith highlights the difficult task facing the judiciary in assessing the damages payable to a claimant unfortunate enough to have the terminal asbestos related disease mesothelioma...
Caution Required on Ringfencing Property From Care Fees - Justin Patten, Human Law
The issue of care fees was topical in the general election Irrespective of the future direction of the Conservative minority administration families across the country will continue to be concerned about their liability for care fees. Here are some questions and answers on liability for care fees and how to protect your family's inheritance...
Summary of Recent Cases, June 2017
Here is a summary of the recent notable court cases over the past month...
PI Practitioner, June 2017
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Unreasonable behaviour in the Small Claims Track...
Clinical Negligence Medicine by Dr Mark Burgin
Short notes on Peripheral Vascular Disease (PVD) 2017 - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving Peripheral Vascular disease...
Why is a Generalist an Expert? 2017 - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP explains how generalist experts use an alternative to the medical model to explain complex cases to the court...