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November 2017 Contents

Welcome to the November 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
Editorial: Abolition of Personal Injuries Law - Aidan Ellis, Temple Garden Chambers
Earlier this month, Lord Sumption delivered a provocative lecture to the Personal Injuries Bar Association entitled "Abolishing Personal Injuries Law: A Project". Taking inspiration from Atiyah's Accidents, Compensation and the Law, he argued that our fault-based system leads to anomalous results and is inefficient in its attempt to allocate resources to those who need or deserve it...
FREE BOOK CHAPTER: The Basics of Advocacy (from 'Arguments and Tactics for Personal Injury and Clinical Negligence Claims' by Dorian Williams)
This is the complete Chapter One from our new book, 'Arguments and Tactics for Personal Injury and Clinical Negligence Claims' by Dorian Williams - The objective is to win the case fairly and at proportionate cost; that means ideally resolving before trial as the litigation risk of an adverse outcome is always present, although it can be limited. Much of this book will concentrate on...
FREE BOOK CHAPTER: Qualified One-Way Costs Shifting (QOCS) (from 'A Practical Guide to QOCS and Fundamental Dishonesty' by James Bentley)
Before exploring the qualifications to one-way costs shifting, it will be useful to first look at when the QOCS regime does and does not apply...
Truth, Lies, Exaggeration and the Judicial Crucible: A Reminder of Judicial Independence in Assessing Expert Evidence - Liam Ryan, 7 Bedford Row
Liam Ryan considers the recent decision of Fletcher v Keatley [2017] EWCA Civ 1540 and how a Court should, and can approach a claim for psychiatric injury where a Claimant has been found to have purposefully exaggerated their symptoms...
Patient Consent and the Law: 3 Reasons Why It Matters - Paul Sankey, Enable Law
The Supreme Court's decision in Montgomery v Lanarkshire Health Board changed the law in relation to patient consent. Previously a doctor's duty to advise a patient was governed by the Bolam test. This meant advice was adequate if it accorded with the advice a responsible body of specialists within the same discipline would have given...
Vicarious Liability Once Removed? by Way of TUPE - Lucile Taylor
Case Comment on Baker v British Gas Services (Commercial) Ltd and J&L Electrics (Lye) Ltd [2017] EWHC 2302 (QB)...
Getting Started With the Ogden Tables - Simon Levene, 12 King's Bench Walk
The MOJ's announcement on 27th February 2017 that the discount rate for calculating future losses was to be reduced from 2.50% to - 0.75% caused more excitement than personal injury litigants are used to. The following guide to the basics of the Tables might be useful...
Taking Responsibility: Foster Care, Child Abuse and Vicarious Liability - Liam Ryan, 7 Bedford Row
When dealing with cases of child abuse, strong emotions are stirred in almost all people with clear feeling of right and wrong being arrived at. However, when seeking to compensate an abused party, the question of who should, or can meet a Judgment is a lot more complex, since the culpable individual may have no means with which to satisfy such a Judgment rendering it almost worthless...
The Scottish Government Should Remove Time-Bar for Abuse Victims Over 18 Where There is a Power Imbalance - Mike Kemp, Thorntons Law LLP
I wrote last year about Scottish Government proposals to remove the time limits for childhood abuse claims and those proposals have now been passed and came into effect earlier this month. Now the Scottish Government have produced a helpful guide to making such claims...
Fundamental Dishonesty Goes Beyond Claims in the Fast Track- Sunil Nannar, DWF LLP
Although there are many reports of a finding of fundamental dishonesty in whiplash cases, they are only now starting to emerge in larger claims. Sunil Nannar looks at the judgment in one such case, Stanton v Hunter (2017), where the claimant's attempt to exaggerate his claim for loss of earnings, saw his claim dismissed and lose out on the genuine elements of his claim, which the court valued over £50,000...
A Quick Change of Gear? - Joanne Clancy, Thorntons Law LLP
The Department of Transport have announced their plans to review the law regarding dangerous cyclists. Their announcement comes in the wake of the recent trial of Charlie Alliston sentenced to 18 months imprisonment for causing bodily harm by 'wanton and furious driving' after ploughing down Kim Briggs as she crossed a busy central road in London...
The Relevance of Local Living Standards in the Assessment of Damages - Jack Harding, 1 Chancery Lane
What is the correct approach to the assessment of general damages in a case in which the Claimant resides abroad? Should the increased (or possibly lower) cost of living be taken into account and thereby result in an adjustment to the figures set out in the Judicial College Guidelines?...
Summary of Recent Cases, November 2017
Here is a summary of the recent notable court cases over the past month...
PI Practitioner, November 2017
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Howlett v Davies - The Court of Appeal's approach to Fundamental Dishonesty...
An Update from North of the Border, Edited by Kate Donachie, Brodies LLP
Is the Tide Turning? Sanction for Counsel Refused Again - Kate Donachie, Brodies
The Sheriff Personal Injury Court has recently issued two decisions refusing sanction; Sheriff Mackie's in McKenzie v McCormack and now an unpublished decision issued by Sheriff McGowan last week in McCracken v Kazanowski. McKenzie is the only published refusal of sanction since the new court was created two years ago and there were very few, if any, applications refused before that. These recent decisions are a sign that sanction is not always a given; and it may be that the direction of travel has changed...
Clinical Negligence Medicine by Dr Mark Burgin
Short Notes on Confusion 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 confusion...
Short Notes on Chronic Cough 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 chronic cough...
Short Notes on Urinary Tract Infections 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 urinary tract infections...