INSURER WAS ENTITLED TO AVOID EMPLOYER’S LIABILITY POLICY: A RESULT THAT IS “DEFECTIVE AND UNFAIR”
The judgment of Master Davison in Komives v Hick Lane Bedding Ltd & Anor [2020] EWHC 3288 (QB) highlights an area of law which, as the Master stated, is “defective an unfair”- an insurer was entitled to avoid an employer’s…
DEFENDANT’S LIABLE TO PAY INJURED SOLDIER FOR LOSS OF EARNINGS AFTER HE HAS TO HANG UP HIS BOOTS
There is much that is interesting to read in the judgment of David Lock QC (sitting as a High Court Judge) in Constance v Ministry of Defence & Anor [2020] EWHC 3029 (QB). One interesting point is the defendant’s interesting,…
PROVING THINGS 189: IF YOU WANT TO PROVE THE DEPTH OF SOMETHING – TAKE A RULER (OH, AND PHOTOGRAPHS)
In Nash v Hertfordshire County Council [2020] EWHC 3247 (QB) HHJ Lickley QC, sitting as judge of the High Court, dismissed the claimant’s claim for damages. There were numerous witnesses and expert involved. “They took photographs when they were at…
WHY AN EXPERT WITNESS MUST EXAMINE THE OBJECTIVE EVIDENCE: WHY MEDICAL RECORDS ARE NORMALLY THE KEY
There are several short passages in the judgment of HHJ Baucher in Ali v The Home Office [2020] EW Misc 27 (CC) which emphasises the need for expert witnesses to consider the objective evidence before reporting. It also shows the…
PROVING THINGS 188: PROVING A WARNING WOULD HAVE MADE A DIFFERENCE: PEDESTRIAN HIT BY CRICKET BALL LOSES CASE ON APPEAL
In Lewis v Wandsworth London Borough Council [2020] EWHC 3205 (QB) Mr Justice Stewart overturned a decision in favour of claimant who had been struck by a cricket ball whilst walking near a cricket pitch. “… the defendant was…
WHAT’S THE DIFFERENCE BETWEEN A COMMERCIAL SOLICITOR AND A PROFESSIONAL KICKBOXER? (THERE’S A WHOLE WEBINAR ABOUT THIS…)
What is the difference between a solicitor and a professional kickboxer? There are many answers to this – and I am certain that I am going to receive some interesting responses on social media. However, whatever the differences are, there…
LOSS OF EARNINGS AND THE SELF-EMPLOYED: SOME KEY ISSUES: (ALSO A WEBINAR…)
There are now a record number of self-employed people working in the UK and the numbers are increasing. The self-employed amount to 5 million, that is 15.3% of the workforce, (up from 12% in 2000). Here I want to look…
ILLEGALITY AND DAMAGES: SUPREME COURT DECISION: SOMEONE WHO COMMITS MANSLAUGHTER CANNOT BRING AN ACTION IN NEGLIGENCE
In Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43 the Supreme Court dismissed an appeal on the grounds that the claimant’s action was based on illegality. It found that someone found guilty of manslaughter due to diminished…
HOW SHOULD DAMAGES FOR PAIN AND SUFFERING BE ASSESSED WHEN PROVISIONAL DAMAGES ARE BEING AWARDED? A HIGH COURT CASE
In Hamilton v NG Bailey Ltd [2020] EWHC 2910 (QB) Dan Squires QC (sitting as a Deputy High Court Judge) considered the issue of what discount should be made on an award for pain, suffering and loss of amenity, when…
WHEN A LITIGANT SEEKS TO DEFEND A CLAIM AT ALL COSTS: A HIGHWAY TO HELL: WHY, IN LITIGATION, IT IS IMPORTANT THAT YOU CAN SEE THE WOOD FOR THE TREES
The judgment of HHJ Mithani QC in Colar v Highways England Company Ltd [2019] EW Misc 17 (CC) has recently arrived on BAILLI. It provides an illustration of the danger of defending a claim “at all costs”. The judge was…
CLAIMANT IN LOW-VALUE PERSONAL INJURY CASE NOT ENTITLED TO RELY ON EXPERT REPORTS WHEN PROTOCOL NOT COMPLIED WITH: JUDGMENT ON APPEAL
In Mason -v- Laing (Bradford County Court 20th January 2020 Mason v Laing) HHJ Gosnell held that a claimant that failed to comply with the requirements as to instructing experts prior to a Stage 3 hearing could not rely on…
THE SOLICITOR’S FIDUCIARY DUTY TO THE CLIENT TO EXPLAIN COSTS: FAILURE TO PLACE CAP ON SUCCESS FEE MEANT AGREEMENT WAS UNENFORCEABLE: HIGH COURT DECISION
In Belsner v Cam Legal Services Ltd [2020] EWHC 2755 (QB) Mr Justice Lavender allowed an appeal whereby a firm of solicitors acting on behalf of a claimant were permitted to deduct 25% of the damages in addition to payment…
PROVING THINGS 183: WHERE DOES THE BURDEN OF PROOF LIE IN A HIGHWAY MAINTENANCE CASE?
In Smithson v Lynn & Anor [2020] EWHC 2517 (QB) HHJ Gosnell (sitting as a High Court Judge) found a highway authority partially responsible for an accident in failing to maintain the roads. The are interesting issues relating to the…
SWIFT -v- CARPENTER: USEFUL LINKS AND GUIDANCE ON THE CASE AND HOW THE DECISION IS LIKELY TO WORK OUT IN PRACTICE
Following on from the previous posts about this case here is a set of useful links to commentary about the Carpenter decision. The Association of Personal Injury Lawyers is also presenting a webinar on this issue on the 22nd…
THE CARPENTER DECISION: THE BASIC PRINCIPLES: FAIR DAMAGES “NOT A PENNY MORE BUT NOT A PENNY LESS”
I have written before about how judges regularly go back to the basic principles of damages when faced with challenging issues in relation to personal injury damages. To a large extent this happened in the Court of Appeal decision in Swift…
CARPENTER DECISION IN THE COURT OF APPEAL: THE APPROACH TO ACCOMMODATION CLAIMS: THE AWARD OF NIL REVISED TO £801,913
A more detailed discussion of the Court of Appeal’s decision today in Swift -v- Carpenter [2020] EWCA Civ 1295 will follow. For the time being it is sufficient to note that the court overturned the trial judge’s decision to award…
EMPLOYER’S LIABILITY AND THE PRACTICAL JOKER: THE “LOWEST FORM OF HUMOUR” DOES NOT LEAD TO VICARIOUS LIABILITY
In Chell v Tarmac Cement And Lime Ltd [2020] EWHC 2613 (QB) Mr Justice Martin Spencer upheld a decision that an employer was not vicariously liable for a practical joke in the workplace. “The practical joke must be the lowest…
THE SEVEN YEAR ITCH: A REVIEW OF THE CASES CONSIDERING SECTION 69 OF THE ENTERPRISE AND REGULATORY REFORM ACT 2013 (INCLUDING SCOTLAND)
It is today seven years since the ERRA ended breach of statutory duty as a distinct cause of action in relation to accidents at work. This is an opportune time to review the cases that have considered this issue. Here…
VIDEO EVIDENCE NOT ALLOWED AT TRIAL: APPEAL AGAINST REFUSAL DISMISSED: A “STORM IN A TEACUP”
In Wilcox v King’s College Hospital NHS Foundation Trust [2020] EWHC 2555 (QB) Mrs Justice Lambert dismissed an appeal against a refusal by a defendant to allow video evidence to be adduced at trial. The evidence was not relevant and…
FAKE LAW AND “COMPENSATION CULTURE”: A REVIEW: “SPEND HALF-AN-HOUR WITH A PERSONAL INJURY LAWYER (SHOULD THAT MISFORTUNE BEFALL YOU)”
The Secret Barrister has written their second book “Fake Law”, looking at many of the misconceptions that surround the legal system. Here are selected extracts from the chapter on “Your Health”. It takes a critical look at the way in…
CHILDREN AND PERSONAL INJURY LITIGATION: WEBINAR 5th OCTOBER 2020
This webinar looks at practical issues relating to children and personal injury litigation, including liability, damages and procedure. Details of how to book are available here. This webinar looks at the practical implications of acting for children injured in…
THE EMPLOYER’S DUTY OF CARE IN PERSONAL INJURY CASES: WEBINAR 24th SEPTEMBER 2020
On the 24th September 2020 I am presenting a webinar on the Employer’s Duty of Care in Personal Injury Cases. CONTENT Actions for breach of statutory duty were effectively curtailed by the Enterprise and Regulatory Reform Act 2013. It is…
TWO WEBINARS ON LOSS OF EARNINGS: RECENT CASES: OGDEN 8: CHILDREN: THE SELF EMPLOYED: SPORTSPEOPLE AND ENTERTAINERS
I am presenting two webinars on the specific issue of loss of earnings in personal injury claims. The first, on the 9th September 2020, looks at recent cases, the impact of Ogden 8, claims for disability in the labour market…
A DIFFICULT HEAD OF DAMAGE THAT MAY MAKE THE JUDGE WANT TO RETIRE: BOOK REVIEW: PIBA GUIDE TO PENSION LOSS CALCULATION: JAMES ROWLEY Q.C. & MATTHEW WHITE
The loss, or reduction, of income due to a personal injury is one of the primary concerns to most victims. Loss of earnings is a matter that is often under-explored in many texts relating to damages. This is even more…
THE TREATMENT OF EXPERT EVIDENCE AND APPEALS: ANOTHER CASE WHERE A JUDGMENT IN FAVOUR OF A DEFENDANT IS OVERTURNED
There has been much online discussion about the impact that the decision in Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) will have in relation to food poisoning cases and more generally. That case related specifically to the treatment of…
THE LIMITATION PERIOD, PERSONAL INJURY AND THE RESTORATION OF A COMPANY: A HIGH COURT DECISION
In Holmes v S & B Concrete Ltd [2020] EWHC 2277 (QB) Mr Justice Martin Spencer considered the issues surrounding the claimant’s argument that the limitation period in a personal injury action was suspended when a company was wound up….
EXPERT EVIDENCE UNDER THE MICROSCOPE: THE TRIAL JUDGE CANNOT OVERTURN CONCLUSIONS OF A “UNCONTROVERTED” EXPERT: HIGH COURT DECISION TODAY
NB THIS DECISION WAS SUBSEQUENTLY OVERTURNED BY THE COURT OF APPEAL. THE COURT OF APPEAL JUDGMENT IS CONSIDERED HERE. In Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) Mr Justice Martin Spencer considered the question of the approach of…
COVID-19 Clinical Negligence Protocol 2020
A Protocol has been introduced between SCIL, NHS Resolution and AVMA, which deals with the conduct of personal injury litigation. Details can be found here. SUMMARY The press release has a useful summary “The protocol is wide-ranging, covering: moratoriums…
PROVING THINGS 180: ACCEPTING A LIFT WITH A DRUNKEN DRIVER, WHILST DRUNK: DEFENDANT FAILS TO ESTABLISH THAT FAILING TO WEAR A SEAT BELT MADE A DIFFERENCE
The judgment today of HHJ Robinson (sitting as a judge of the High Court) in Campbell v Advantage Insurance Company Ltd [2020] EWHC 2210 (QB) makes interesting reading. 1. A claimant cannot properly argue that he was too drunk himself…
CLAIMS FOR LOSS OF EARNINGS: RECENT CASES AND THE EFFECT OF OGDEN 8: WEBINAR 9th SEPTEMBER 2020
On the 9th September 2020 I am presenting a webinar on loss of earnings. This webinar looks at recent cases in relation to loss of earnings, and what they can tell us about evidence and the judicial approach to these…
HIGH COURT UPHOLDS DECISION TO STRIKE OUT CLAIMANT’S PERSONAL INJURY ACTION (AND CLAIMANT HAS TO PAY THE COSTS AS WELL)
In Akay v Newcastle University [2020] EWHC 1669 (QB) Mr Justice Lavender upheld an earlier decision that a personal injury action be struck out as an abuse of process. “If it was to be alleged that the judge failed…
THE 8TH EDITION OF THE ‘OGDEN TABLES’ AND THEIR PRACTICAL IMPACT: WEBINAR 31st JULY 2020
I am presenting a webinar on the 31st July 2020 dealing with the new Actuarial Tables. THE CONTENT The government’s new ‘Actuarial Tables’ were published on 17th July 2020. The webinar takes us through the significant changes introduced…
THE MULTIPLIERS THEY ARE A CHANGING: 8th EDITION OF THE “OGDEN TABLES”
The 17th July saw the publication of the latest (the 8th) edition of the Government Actuary’s Department “Actuarial Tables” “With explanatory notes for use in Personal Injury and Fatal Accident Cases”. This may be particularly frustrating for those who were…
DEDUCTIONS FROM DAMAGES AND MITIGATION OF LOSS IN PERSONAL INJURY CASES: WEBINAR 11th AUGUST 2020 (& THEN AVAILABLE ON DEMAND)
On the 11th August 2020 I am presenting a webinar “Deductions from Damages and Mitigation of Loss”. THE WEBINAR This webinar looks at those matters that could reduce the damages a claimant receives in a personal injury case, looking…
CLAIMS FOR MEDICAL EXPENSES, CARE AND WORK AROUND THE HOME: WEBINAR 23rd JULY 2020
On the 23rd July 2020 I am conducting a webinar “Claims for Medical Expenses, Care and Work around the Home”. This webinar looks at damages in relation to medical expenses and care. It covers the whole range of care claims,…
CIVIL PROCEDURE BACK TO BASICS 78: NO DUTY ON AN INJURED CLAIMANT TO USE THE NATIONAL HEALTH SERVICE
This post is due to a tweet someone copied me in on this morning. The issue was, ostensibly, one of general damages in a personal injury case. An insurer was refusing to pay the costs of private treatment – stating…
PERIODICAL PAYMENTS AND PROVISIONAL DAMAGES: LAW, PRACTICE AND THE KEY CASES
On the 17th July 2020 I am presenting a webinar on periodical payments and provisional damages. THE WEBINAR Periodical payments and provisional damages have been a part of the legal landscape for some time now. A knowledge of the…
CONTRIBUTORY NEGLIGENCE IN PERSONAL INJURY AND CLINICAL NEGLIGENCE CASE: WEBINAR 7th JULY 2020
On the 7th July 2020 I am presenting a webinar on contributory negligence in personal injury actions and clinical negligence cases. CONTRIBUTORY NEGLIGENCE Contributory negligence is a common feature of personal injury litigation and (sometimes) in clinical negligence cases….
THE EXPERT’S DUTY TO GIVE A RANGE OF OPINION: A DECISION NOT TO DO SO “BORDERING ON ARROGANCE”
Experts have a mandatory duty under the rules to give a range of opinion for their advices. I am grateful to Gary Smith from Prince Evans & Co for sending me a copy of the judgment of HHJ Belcher in…
ASSESSING DAMAGES IN PERSONAL INJURY CASES: WHEN THE JUDGES GO “BACK TO BASICS” (AND WHY IT MATTERS)
I am giving a webinar on Thursday on “The Fundamentals of Personal Injury Damage”. The starting point is the “basic” element of personal injury damages – to put the claimant back in the position they would be if they had…
THE FUNDAMENTALS OF PERSONAL INJURY DAMAGES: WEBINAR 7th MAY 2020
I am giving a webinar on the 7th May 2020 – 12.00 – 13.00 on the fundamentals of personal injury damages. Many practitioners engage daily in the assessment of personal injury damages without a detailed knowledge of the fundamental principles,…
INSURERS AND CLAIMANTS COVID-19 PROTOCOL.
The Association of British Insurer’s website carries details of a Protocol put in place to deal with the COVID-19 situation. There is a list of signatories on the site, that list also contains the “escalation email address” and hotline number…
BOOK REVIEW: GUIDE TO CATASTROPHIC INJURY CLAIMS
I have been sent a copy of the 3rd edition of the Guide to Catastrophic Injury Claims by Stuart McKechnie QC and others. I can review it briefly. This is a book that needs to be on your shelf if…
FIXED COSTS OUSTED BY AGREEMENT: INSURER HAS TO STAND BY THE DEAL IT STRUCK
I am grateful to barrister Andrew Roy for sending me a copy of the decision of District Judge Baldwin (sitting as a Regional Costs Judge) in Turner -v- Cole (16th December 2019). It is a case where the judge held…
PROVING THINGS 173: FAILING TO PROVE ANY KIND OF PAST OR FUTURE LOSS OF EARNINGS: A BLAMIRE AWARD IS NOT A SUBSTITUTE FOR EVIDENCE
There is another aspect of the judgment of Mr Justice Chamberlain in BXB v Watch Tower And Bible Tract Society of Pennsylvannia & Anor [2020] EWHC 156 (QB) that merits attention. Th claimant sought damage for loss of earnings but these…
APPLICATION UNDER SECTION 33 SUCCEEDS MORE THAN 24 YEARS AFTER EXPIRY OF LIMITATION PERIOD
In BXB v Watch Tower And Bible Tract Society of Pennsylvannia & Anor [2020] EWHC 156 (QB) Mr Justice Chamberlain allowed the claimant’s application under Section 33 of the Limitation Act in a case that was issued more than 24…
DAMAGES FOR PAIN AND SUFFERING: THE AWARD SHOULD BE THE SAME: IT DOESN’T MATTER WHETHER YOU ARE RICH OR POOR
The Privy Council decision in Attorney General of St Helena v AB & Ors (St Helena) [2020] UKPC 1 is of considerable interest to personal injury practitioners. Issues relating to awards made for pain and suffering are rarely discussed at…
PLEADINGS: CLAIMANTS – TELL THE DEFENDANT THE CASE THAT IT IS GOING TO BE PUT AGAINST THEM
There are some interesting observations as to how a claimant should plead their case in the judgment in Walsh v CP Hart & Sons Ltd [2020] EWHC 37 (QB). “If, as in this case, the Claimant produces only at trial…
63 YEARS OLD AND STILL ROLLING OFF THE PRESSES – MUNKMAN (& EXALL) ON DAMAGES – THE WRITING PROCESS
An earlier post looked at the previous 13 editions of Munkman on Damages for Personal Injury and Death, together with photos. Since more people read law books than write them I thought it would be of interest to describe the…
PERSONAL INJURY CASES WHERE THE DEFENDANT IS NOT INSURED AND HAS NO ASSETS: LOOK TO THE CLAIMANT’S OWN INSURANCE POLICY
Periodically I repeat the second ever post on this blog. This related to the (surprising to many) fact that it may be possible for a claimant with an unsatisfied judgment to recover damages from their own domestic insurance policy. …
You must be logged in to post a comment.