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October 2018 Contents

Welcome to the October 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, October 2018
Duce v Worcestershire Acute Hospitals NHS Trust [2018] PIQR P18: The implications for Chester v Afshar - Michael Patrick, Hailsham Chambers
Consider the traditional medical consent scenario: a doctor, in breach of duty, fails to advise her patient of a material risk of a given treatment. The treatment proceeds, the risk materialises causing injury, and the patient seeks compensation. There are three logical causation possibilities. But for the failure to properly advise...
Tuson v Murphy [2018] EWCA Civ 1491 - James Manning, Bevan Brittan LLP
In Tuson v Murphy [2018] EWCA Civ 1491, the Court of Appeal overturned a costs order made against the Claimant, who had been ordered to pay a proportion of the Defendant's pre-Part 36 offer costs when she accepted the offer after the relevant period had expired...
Editorial: When can a Claimant be allowed a Second Bite at a Cherry? - Aidan Ellis, Temple Garden Chambers
Following the Jackson reforms, the renewed emphasis on efficiency and compliance with rules, practice directions and orders led to an increased number of claims being struck out. Those technical knockouts, however, would provide only temporary relief to defendants, if claimants could simply...
Kids will be kids: What is the extent of the duty owed by schools to their pupils? - Lauren Seagart, Queen Square Chambers
How far does the duty of care owed by schools to pupils extend? We were all familiar with the shouts of 'WALK! Don't run' from teachers as we careered around school corridors. But can failure to echo this stern warning amount to a breach of duty?...
What makes an injury 'actionable'? The Supreme Court offers some guidance - Joanna Lewis, Queen Square Chambers
Although Dryden v Johnson Matthey PLC [2018] UKSC 18 is a case involving industrial disease, the Supreme Court's decision has wider significance in helping to clarify what makes a personal injury 'actionable'...
The importance of NICE guidance in a clinical negligence claim regarding the diagnosis and management of pre-eclampsia - Sam Holden & Gemma Dunn, Clyde & Co
The Court recently considered the importance of NICE guidance in a clinical negligence claim regarding the diagnosis and management of pre-eclampsia. Clyde & Co were instructed by NHS Resolution on behalf of the Trust. The decision reinforced the position that NICE guidance (and other specialism-specific guidance) should be followed unless there is a clinically justified reason to depart from it...
http://www.pibulj.com/content/law-journal-summaries/news-category-2/4668-deborah-tilsley-v-derbyshire-community-health-services-andrea-ribchester-hodgson-sarah-wright-spencers-solicitors A on behalf of Estate of B v C NHS F Trust - Andrea Ribchester-Hodgson & Sarah Wright, Spencers Solicitors
B was diagnosed with lung cancer in or around November of 2011 and was advised that there was no treatment for her condition. She was discharged from hospital and no follow up by the respiratory department was arranged. B suffered increased pain, reduced mobility and her health deteriorated because of the absence of any treatment / any accurate diagnosis for what was in actual fact an inflammatory arthritic condition...
Deborah Tilsley v Derbyshire Community Health Services - Andrea Ribchester-Hodgson & Sarah Wright, Spencers Solicitors
The claim against the Defendant Trust was brought by the Executor of the Estate of the deceased following an assault upon the deceased by another patient when he was a patient in the Defendant hospital, compounded by the subsequent failure of medical staff to assess his injuries sustained in the assault, leading to a delayed diagnosis of a fracture of the neck of the femur and thereafter delay in treating the same...
Pleadings and fundamental dishonesty: Howlett affirmed as film director's compensation claim is dismissed - Jeff Turton, Weightmans LLP
David Pinkus v Direct Line [2018] EWHC 1671 is an example of another claim being dismissed under section 57 Criminal Justice and Courts Act 2015. The claimant raised a preliminary issue as to whether the defendant should be prevented from arguing the claim was dishonest at all. The facts The claimant was involved in a road traffic accident on 21 August 2012 with the defendant's insured...
Laurence Sprey -v- Rawlinson Butler LLP [2018] EWHC 354 (QB) - Andrew McAulay, Clarion
Following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2013 (LASPO), solicitor/own client costs disputes have increased. The case of Laurence Sprey -v- Rawlinson Butler LLP [2018] EWHC 354 (QB) is a good case to read for anyone who would like to learn more about these types of disputes...
Accommodation; Discount or Dilemma? - Trevor Ward, Fletchers Solicitors
Will the likely change in the discount rate for personal injury losses affect the way in which the Courts deal with the calculation of accommodation claims in serious personal injury cases?...
Fundamental dishonesty in occupational disease claims - Paul Debney, Weightmans LLP
In this, the first of a series of 3 articles, Paul Debney, Partner and head of disease counter fraud at national firm Weightmans LLP, highlights some of the issues surrounding fundamental dishonesty ('FD') in disease claims...
Summary of Recent Cases, October 2018
Here is a summary of the recent notable court cases over the past month...
PI Practitioner, October 2018
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. In this month's PI practitioner update we consider the case of Alpha Insurance A/S v (1) Lorraine Roche (2) Brendan Roche [2018] EWHC 1342 (QB) which concerns discontinuance and fundamental dishonesty...
Medico-Legal Articles, Edited by Dr Hugh Koch
Legal Mind Case and Commentary No 19: Case: Wright v First Group PLC (12 January 2018, Queens Bench Division, Foskett J Unreported) - Professor Hugh Koch, Dr Claire Browne, Dr Andrew Medley
Personal Injury damages claimed by pedestrian crossing the road when hit by a bus. Two accident reconstruction experts were instructed. Following a joint discussion, both experts signed a joint statement apparently stating that there was nothing the bus driver could have done to avoid the collision. Claimant confirmed this reflected a material change in his expert's opinion and applied for permission to instruct a new expert and adjourn the trial...
Clinical Negligence Medicine by Dr Mark Burgin
The Biopsychosocial Consent Process: Changing how Clinical Negligence is Decided? - Dr Mark Burgin
Dr Mark Burgin BM BCh (oxon) MRCGP challenges the belief that informed consent is the gold standard and shows how the BPSM sees consent as a transaction between the doctor and patient...
Book Reviews
Book Review - 'Tough Choices: Stories from the front line of medical ethics' by Daniel Sokol (Book Guild, 2018)
Reviewed by Tim Kevan