News Category 3
Summary of Recent Cases, January 2016
16/01/16. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Summary of Recent Cases - Substantive Law
Smith (by his Mother & Litigation Friend Bonner) V (1) Stratton (2) Motor Insurers' Bureau CA (Civ Div), 08/12/2015
The appellant (A) had been a passenger in a car driven by the First Defendant (D1). The vehicle was involved in a collision and A suffered a severe brain injury. He claimed damages from D1, whose insurers were entitled to avoid the policy for non-disclosure and misrepresentation, thus leaving the...
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Pre-Emptive and Tactical Action in Stress at Work Claims - Liam Ryan, Ely Place Chambers
15/01/16. The process of litigation by its very nature, is unpredictable and stressful. The statutory instruments which govern the employment relationship, whilst at their core seeking to regulate, protect and assist both employees and employers are subject to interpretation and practically, when applied to the unique and varied facts of each individual case, result in the outcome rarely being certain due to the number of moving parts that comprise a claim. Despite these uncertainties, litigation before the Courts and Tribunals does not appear to be ceasing or stalling. Litigators therefore may want to consider how they can not only assist their clients at an early stage, but ensure that the facts at least where they can, fall to their client’s advantage.
Whilst it is often obvious for employers to understand and accommodate the needs of a physically disabled employee, how to deal with an employee who suffers from a psychiatric injury is more complicated. The issue is often aggravated by a central theme that permeates stress claims (particularly in the current economic climate), namely a genuinely held belief by employees that they may be dismissed, suspended or treated less favourably by their employers if they raise any concerns. This belief often factually serves as a catalyst or a significant contributing factor of a Claimants subsequent breakdown in stress at work claims as they suffer in silence, and choose not to inform their employer of the difficulties they are facing.
The question therefore is what can be done to alleviate a Claimants concerns but also to protect them in the event that their concerns turn out to be well founded. Whilst it is correct to say that stress at work claims in the County and High Court primarily deal with the aftermath of a breakdown, Claimant’s will find a source of pre-emptive protection in the Employment Tribunals in circumstances where an employer either dismisses or discriminates against a Claimant following their disclosure that they are suffering from a work related stress condition. Further, this pre-emptive protection can in certain circumstances factually assist in the formation of the bedrock of a claim in the County or High Court following...
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T’is the Season to Be Techie - Simon Readhead QC, 1 Chancery Lane
13/01/16. This is the time of year for families… and for gadgets. Lots of them! In particular, smartphones. An average 65% of children in the UK aged between 8 and 11 now have their own smartphone. This figure rises to 90.5% in Newcastle making it the smartphone capital of the UK for children. This compares with 55.2% in London and only 40% in Brighton and Hove.
All this and more is contained in a survey by Internet Matters (www.internetmatters.org) which also revealed that 72% of parents will have bought tech gifts for their children this year.
For those looking forward to getting back to drafting or responding to schedules of aids and equipment in the New Year the challenge is to wise up and become more e-savvy about equipment claims in 2016.
Also out before Christmas was the latest statistical bulletin from the Office of National Statistics (ONS) (www.ons.gov.uk) on families and households in the UK in 2015.
As a result, those grappling with accommodation claims in 2016 may need to reconsider some of the assumptions often made in schedules and counter schedules, for example, that a person will cohabit throughout his or her life and about the likely age at which a person is likely to leave home.
Although in 2015 in the UK there were 12.5 million people living in a married or civil partner couple family and a further 3.2 million living as a cohabiting couple family there were also 7.7 million people in the UK in 2015 living alone. The largest change – and, according to the ONS, one that is statistically significant - is in people aged between 45 and 64 where the number living alone has increased by 23% between 2005 and 2015.
In 2015 around 40% of young adults in the UK aged between 15 and 34 were still living with their parents. In 1996 around 5.8 million people aged between 15 and 34 in the UK lived with their parents. This figure increased to a peak of 6.7 million in 2014 and has remained at around 6.6 million in 2015.
Looking forward, Christmas wish lists are likely to continue to be dominated by tech gadgets and devices. However, in 2016, at least for parents, the focus may be less on paper chains and party games and more on parental controls and privacy settings.
A Happy New Year to all our readers!
Simon Readhead QC
1 Chancery Lane
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Escaping the QOWCS Web - Jasmine Murphy, Hardwicke
10/01/16. One of the effects of QOWCS has been to encourage claimants to bring personal injury claims with only very modest prospects of success because they have the security of QOWCS protection. Without the need to obtain and retain after the event insurance, often the merits of a case are never properly considered or monitored as the case continues. The other consequence of QOWCS is that it disincentivises defendants to fight such cases because in the event of a successful defence, any costs order against a claimant will likely be unenforceable.
A recent case highlights the danger of claimants being lulled into a false sense of security by QOWCS.
In Leung v (1) Eftekhari (2) Eftekhari [2015] at Central London County Court, DJ Price struck out a personal injury multi track claim following an application made by the Defendants at a CMC. The Claimant was ordered to pay the Defendants’ costs. As a result, the exception to QOWCS in CPR 44.15 applied and the Claimant lost her costs protection and the costs order was enforceable. She was ordered to make an interim payment of £5,000 on account of costs...
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Twenty Five Years Plus - Deborah Evans, APIL Chief Executive
08/01/15. After 25 years of turning up to almost every fight, if not all, on behalf of injured people, it would now be inconceivable for APIL not to be involved when the personal injury landscape is facing change.
As the association moves into its 26th year, it is battling ahead with the latest onslaughts on its near 4,000 practitioner members and, ultimately, the injured people they represent.
Not for the first time, the Government’s attention is on whiplash claims and it is planning, yet again, to increase the small claims court limit to £5,000. Even more sinister, is the proposal to remove general damages for some whiplash claims altogether. Our president, Jonathan Wheeler, described this move as a show of ‘callous indifference’ to victims of negligence.
APIL is of course here for the debate and has been sharpening its tools once more, and striving to influence the decision-makers ahead of the consultation.
And while the Government bids to protect the insurance industry’s purse, it is also looking out for its own with its plans for fixing costs for medical negligence claims against the health service. While the details remain to be seen as we wait for the consultation, a fixed costs regime for medical claims will pose a potential access to justice problem for some cases where the work involved is more costly than the resulting damages. In a quick poll of APIL members, 39 per cent said there could be a place for a fast track system for certain cases. The other 61 per cent reserved their judgement, no doubt conscious that the devil will be in the detail. The consultation is delayed and we hope the Department of Health is using the extra time to give its plans some serious thought. In the meantime, we are devising sensible options for workable schemes that would deliver benefit for the injured person through improved speed of resolution and earlier admissions of liability.
Meanwhile, north of the border, APIL’s Scottish members are coming to terms with changes to their court system, the new sheriff court jurisdiction limit and the specialist court for PI cases. We are also expecting the Expenses and Funding Bill, which is the more acceptable version of Lord Justice Jackson’s work on litigation funding in England and Wales.
In Northern Ireland, the scrapping of legal aid is on the agenda and a consultation closing in February examines the potential introduction of CFAs - the post-Jackson version. County courts are also facing closure.
While APIL of course ensures its seat at the table when change is forced upon its members and their clients, the association has its own agenda for change which it continues to push. Most notably, we support Andy McDonald MP’s Negligence and Damages Bill. Currently the level of statutory bereavement damages is £12,980 in England Wales, meaning it is cheaper to kill people than it is to maim them. APIL looks to Scotland for the answer, where each case is assessed on an individual basis. Also, the law on psychiatric harm suffered by secondary victims is far too restrictive, and out of date. These issues are addressed in Mr McDonald’s Bill. APIL has campaigned on these issues for many years, and will continue to do so until much-needed change happens.
APIL will also campaign for compulsory public liability insurance for businesses. Some people who are injured wrongly by others cannot receive the compensation they really need, and to which they are entitled, because the guilty parties have no insurance. We have heard some terrible cases in which injured people have had no-one to pursue for redress.
And APIL’s current president is seeking to develop new ways of protecting vulnerable witnesses, such as those who have suffered abuse, when they seek redress through the courts.
Life after 25 is already shaping up to be very busy indeed.
Looking ahead to APIL’s future, it will continue to provide injured people with a strong voice. As APIL’s president Jonathan Wheeler said recently in the association’s in-house journal: “We are all facing change, and we are so much stronger together in the face of it”.
Deborah Evans
Chief Executive of APIL
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