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August 2017 Contents

Welcome to the August 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
Emerging Issues in Holiday Sickness Claims - James Beeton, 12 King's Bench Walk
It is now 7 months since the Court of Appeal's decision in Wood and Anor v TUI Travel Plc (t/a First Choice) [2017] EWCA Civ 11 (considered in detail here). That decision coincided with a massive increase in claims by British tourists for holiday sickness, prompting recent calls by the MOJ for a government-led crackdown on the new 'sickness claims culture' in the form of the extension to this area of fixed recoverable costs...
Damages for the Failure to Obtain Informed Consent? - Nicholas Pilsbury, Hailsham Chambers
When a doctor fails to obtain a patient's informed consent to an operation, should damages be awarded for that failure to obtain consent, regardless of any award that might be made for PSLA and financial losses? After all, the failure to obtain consent means that a person's right to self-determination and bodily integrity has been violated and doesn't that require the Court to make an award to recognise that legal wrong? These were the questions that the Court of Appeal was being asked to decide in the recent case of Shaw v Kovac [2017] EWCA Civ 1028...
Review of the Latest Proposals for Fixed Costs in Clinical Negligence - Geoffrey Simpson-Scott, Simpson Millar LLP
At p117 of his Supplemental Report on Fixed Recoverable Costs (31st July 2017), Sir Rupert Jackson recommends that fixed recoverable costs cannot simply be imposed in clinical negligence cases in the absence of also changing the procedural rules. I made this point in "A Practical Approach to Clinical Negligence Post-Jackson" (Law Brief Publishing (2016). It recognises that the average clinical negligence case is inherently more complex than the average civil litigation case of comparable value...
Part 36 & Late Acceptance: When Is It Unjust to Apply the Usual Order? - Fran McDonald, Old Square Chambers
The case summary of Briggs v CEF Holdings Ltd (Court of Appeal, 13/7/17) was published on lawtel this morning. Although it is important to bear in mind the lack of a full judgment as yet, the decision gives further guidance on the way in which lower courts should decide if it is unjust to impose the normal Part 36 cost consequences, where an offer is accepted out of time...
Stressful Times: Marsh v Ministry of Justice [2017] EWHC 1040 (QB) - Andrew Roy & Vanessa Cashman, 12 King's Bench Walk
Following a 15 day trial before Thirlwall LJ (as she now is; she was promoted to the Court of Appeal during the course of the litigation) the Ministry of Justice was found liable for prolonging a disciplinary investigation and accompanying suspension against the Claimant prison officer. These failings were found to have caused the premature termination of the Claimant's career due to psychiatric injury. He was awarded over £286,000...
A Novel Duty of Care by Geneticists to Provide Information: ABC v St. George's Healthcare NHS Trust and Others [2017] EWCA Civ 336 - Lawrence Caun, Lamb Chambers
The Court of Appeal in this case realized that it might be creating a novel duty of care in deciding that it is arguable that geneticists could be liable for a failure to provide information to a claimant ("C") about her father's diagnosis of Huntington's disease. The Court reversed the striking out of a claim by Nicol J. [(2015] EWHC 1394)...
Hospital Misdiagnosis of Foot and Ankle Fractures - Sylvia Taylor, Tilly Bailey & Irvine
Foot and ankle injuries are a common place reason for attending the Accident and Emergency Department or Minor Injuries Unit. However, not everyone with an ankle and foot injury will need an x-ray...
Personal Injury Claims Involving Insolvent Defendants: Selecting the Correct Statutory Scheme - Andrew Burns QC & Jonathan Butters, Devereux Chambers
Redman v Zurich Insurance plc [2017] EWHC 1919 (QB) analyses the circumstances in which a claim for personal injuries where an insured defendant is insolvent should be brought relying on the old statutory regime provided by the Third Party (Rights Against Insurers) Act 1930 ("the 1930 Act") as opposed to the new regime provided by the Third Party (Rights Against Insurers) Act 2010 ("the 2010 Act"). It is of particular importance in industrial disease claims where the date when a liability for an injury is incurred is medically uncertain...
Rights Without Recourse? - Richard Paige, Park Square Barristers
In the case of Shaw v Kovac & others [2017] EWCA Civ 1028 the Court of Appeal considered the question of whether a claimant could recover damages for "infringement of the [claimant's] right of autonomy" as a free-standing head of loss, when they had been treated in the absence of informed consent...
Catalano v Espley-Tyas Development Group Ltd [2017] EWCA Civ 1132 - Jamie Carpenter, Hailsham Chambers
In the 1960s Ms Catalano had been employed as cone winder in a textile factory. In 2012, she decided that she wanted to bring a claim against her former employer for deafness as a result of the noise in the factory. She instructed solicitors, who entered into a CFA with Ms Catalano on 13 June 2012. So far, so commonplace...
J C and A Solicitors Ltd v Andeen Iqbal & Another [2017] EWCA Civ 355 - Jim Knight, Harmans
The Court of Appeal unanimously agreed that no obligation to repay Stage 1 fixed costs (£400 + VAT) is imposed by the RTA Protocol or by the CPR upon Protocol Claimants merely because, after the conclusion of Stage 1, they take no steps to pursue their claim under Stage 2.
What Is a Diffuse Axonal Brain Injury And Why Is It Important to Get Early Rehabilitation - Alix Walker, Burnetts Solicitors
The brain is a relatively small part of the human body, measuring the size of about two adult fists together and weighing only 3lbs. Made up of around 75% water it consists of 60% white matter (the network needed to send signals) and 40% grey matter (neurons that send the signals)... sheet preview http://www.pibulj.com/content/law-journal-summaries/news-category-2-53514/4268-what-is-a-diffuse-axonal-brain-injury-and-why-is-it-important-to-get-early-rehabilitation-alix-walker-burnetts-solicitors
If Only I Had Known I Would Have... Consent to Medical Treatment and the Problem of Hindsight - Paul Sankey, Enable Law
A recent decision (Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB)) is another example of how the law has changed following Montgomery v Lanarkshire Health Board. It nevertheless also shows how difficult it is for patients to succeed in consent claims... sheet preview http://www.pibulj.com/content/law-journal-summaries/news-category-2/4266-if-only-i-had-known-i-would-have-consent-to-medical-treatment-and-the-problem-of-hindsight-paul-sankey-enable-law
Editorial: Filing by Email or Fax - Aidan Ellis, Temple Garden Chambers
Upon emailing draft directions to a County Court recently (as requested by the Judge), I received a standard acknowledgement email which reminded me (in bold red and blue lettering) of the rules applicable to filing documents by email...
Summary of Recent Cases, August 2017
Here is a summary of the recent notable court cases over the past month...
PI Practitioner, August 2017
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Fixed recoverable costs: Jackson Part II...
Medico-Legal Articles, Edited by Dr Hugh Koch
Legal Mind Case and Commentary No 16: Uncertainty in Judicial Decision Making: A Case to Answer? - Dr Hugh Koch, Dr Lorna Livingstone & Dr Sophie Mayhew, Hugh Koch Associates
Kennedy v. London Ambulance Service Trust (LAS) 2016 QBD. This complex case reviewed in June's edition of PIBULJ (Johnson and Jacobson, 2017) illustrates interesting medico-legal points about causation and attribution...
Clinical Negligence Medicine by Dr Mark Burgin
10 Issues With Medical Reports That Make Third Parties Suspicious - Dr Mark Burgin
Dr Mark Burgin BM BCh (oxon) MRCGP gives 10 examples of weaknesses in medical reports that defendant solicitors can challenge with a low value generalist re-examination...
Short Notes on Muscular Skeletal Susceptibility 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 Muscular Skeletal Susceptibility...
Book Reviews
Two Excellent Books for Your Shelf - Dr Hugh Koch
Bloomsbury Publishing have recently published two excellent legal books which I would recommend to lawyers and experts alike. They cover areas such as Compensation Culture, Damages, Uncertainty and Causation, all of which are crucial yet, at times, confusing concepts in theory and practice...