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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham.
Browse: Home » Personal Injury

PROVING THINGS 194: PROVING CAUSATION IS AN ESSENTIAL ELEMENT OF A CLAIM IN NEGLIGENCE

December 31, 2020 · by gexall · in Appeals, Civil evidence, Personal Injury, Statements of Case

The judgment of Mrs Justice Foster in Norfolk County Council v Durrant [2020] EWHC 3590 (QB) illustrates how it is essential for a claimant to prove causation in a case based on negligence.  It also highlights the need to consider,…

THE MOTOR INSURERS BUREAU IS AN EMANATION OF THE STATE AND LIABLE TO MAKE PAYMENT TO A PASSENGER

THE MOTOR INSURERS BUREAU IS AN EMANATION OF THE STATE AND LIABLE TO MAKE PAYMENT TO A PASSENGER

December 15, 2020 · by gexall · in Civil Procedure, Personal Injury

In Colley v Shuker & Ors [2020] EWHC 3433 (QB) Mr Justice Freedman held that the MIB was directly liable to compensate an injured passenger in circumstances where the passenger knew that a driver was not insured. THE CASE The…

PROVING THINGS 192: WHEN A WITNESS GIVES EVIDENCE OF MATTERS THAT TOOK PLACE 50 YEARS AGO: HOW THE JUDGE WEIGHS THE EVIDENCE

PROVING THINGS 192: WHEN A WITNESS GIVES EVIDENCE OF MATTERS THAT TOOK PLACE 50 YEARS AGO: HOW THE JUDGE WEIGHS THE EVIDENCE

December 14, 2020 · by gexall · in Civil evidence, Personal Injury, Witness statements

In Pinnegar v Kellogg International Corporation & Anor [2020] EWHC 3431 (QB)  HHJ Platts (sitting as a High Court judge) considered the weight to be given to evidence of matters that had happened some 50 years previously.  It shows that…

PROVING THINGS 191: PROVING LOSS OF EARNINGS (III): CLAIMING AND PROVING "FRINGE BENEFITS".

PROVING THINGS 191: PROVING LOSS OF EARNINGS (III): CLAIMING AND PROVING “FRINGE BENEFITS”.

December 14, 2020 · by gexall · in Civil evidence, Damages, Personal Injury

Some jobs have “fringe benefits” which provide an important part of the employee’s overall remuneration.  There are many examples of these benefits being claimed as damages.  Here we look at some cases where the courts have considered the issue of…

PROVING THINGS 191: PROVING LOSS OF EARNINGS (II): A CLIENT QUESTIONNAIRE

PROVING THINGS 191: PROVING LOSS OF EARNINGS (II): A CLIENT QUESTIONNAIRE

December 10, 2020 · by gexall · in Civil evidence, Damages, Personal Injury

Here we return to the basic issue of proving loss of income.  This often applies in personal injury action, but is an issue that can arise in several other types of litigation.  We have a questionnaire on the single issue…

PROVING THINGS 190: PROVING LOSS OF EARNINGS (1) : THE IMPORTANCE OF THE WITNESS STATEMENT: THE QUESTIONS YOU SHOULD ASK

PROVING THINGS 190: PROVING LOSS OF EARNINGS (1) : THE IMPORTANCE OF THE WITNESS STATEMENT: THE QUESTIONS YOU SHOULD ASK

December 9, 2020 · by gexall · in Civil Procedure, Damages, Personal Injury, Useful links, Witness statements

The basic task of proving damages, particularly elements such as loss of earnings and disability in the labour market, are often overlooked in witness statements prepared for trial, both in personal injury actions and other actions were loss of income…

INSURER WAS ENTITLED TO AVOID EMPLOYER'S LIABILITY POLICY: A RESULT THAT IS "DEFECTIVE AND UNFAIR"

INSURER WAS ENTITLED TO AVOID EMPLOYER’S LIABILITY POLICY: A RESULT THAT IS “DEFECTIVE AND UNFAIR”

December 3, 2020 · by gexall · in Access to justice, Applications, Personal Injury

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

DEFENDANT’S LIABLE TO PAY INJURED SOLDIER FOR LOSS OF EARNINGS AFTER HE HAS TO HANG UP HIS BOOTS

December 3, 2020 · by gexall · in Damages, Personal Injury

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,…

WHY AN EXPERT WITNESS MUST EXAMINE THE OBJECTIVE EVIDENCE: WHY MEDICAL RECORDS ARE NORMALLY THE KEY

November 27, 2020 · by gexall · in Civil evidence, Credibility of experts, Expert evidence, Experts, Personal Injury

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

PROVING THINGS 188: PROVING A WARNING WOULD HAVE MADE A DIFFERENCE: PEDESTRIAN HIT BY CRICKET BALL LOSES CASE ON APPEAL

November 26, 2020 · by gexall · in Appeals, Personal Injury

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’S THE DIFFERENCE BETWEEN A COMMERCIAL SOLICITOR AND A PROFESSIONAL KICKBOXER? (THERE’S A WHOLE WEBINAR ABOUT THIS…)

November 23, 2020 · by gexall · in Damages, Personal Injury

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...)

LOSS OF EARNINGS AND THE SELF-EMPLOYED: SOME KEY ISSUES: (ALSO A WEBINAR…)

November 9, 2020 · by gexall · in Damages, Personal Injury, 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

November 2, 2020 · by gexall · in Appeals, Damages, Personal Injury

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

HOW SHOULD DAMAGES FOR PAIN AND SUFFERING BE ASSESSED WHEN PROVISIONAL DAMAGES ARE BEING AWARDED? A HIGH COURT CASE

November 1, 2020 · by gexall · in Damages, Personal Injury

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

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

October 27, 2020 · by gexall · in Civil evidence, Conduct, Expert evidence, Experts, Liability, Personal Injury

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…

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

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

October 18, 2020 · by gexall · in Appeals, Costs, Personal Injury, Success Fees

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…

SWIFT -v- CARPENTER:  USEFUL LINKS AND GUIDANCE ON THE CASE AND HOW THE DECISION IS LIKELY TO WORK OUT IN PRACTICE

SWIFT -v- CARPENTER: USEFUL LINKS AND GUIDANCE ON THE CASE AND HOW THE DECISION IS LIKELY TO WORK OUT IN PRACTICE

October 12, 2020 · by gexall · in Damages, Personal Injury, Useful links

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"

THE CARPENTER DECISION: THE BASIC PRINCIPLES: FAIR DAMAGES “NOT A PENNY MORE BUT NOT A PENNY LESS”

October 12, 2020 · by gexall · in Appeals, Damages, Personal Injury

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

CARPENTER DECISION IN THE COURT OF APPEAL: THE APPROACH TO ACCOMMODATION CLAIMS: THE AWARD OF NIL REVISED TO £801,913

October 9, 2020 · by gexall · in Damages, Personal Injury

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

EMPLOYER’S LIABILITY AND THE PRACTICAL JOKER: THE “LOWEST FORM OF HUMOUR” DOES NOT LEAD TO VICARIOUS LIABILITY

October 5, 2020 · by gexall · in Appeals, Civil evidence, Personal Injury

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…

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