Cerebral Palsy: Knowing your Legal Rights

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Cerebral palsy has a significant impact on a person throughout their life. And without proper legal rights, the harsh world would make it much more difficult for them to survive. However,the legislation that governs the rights of persons with cerebral palsy has crafted ways for them to be treated right under the law. They, increasingly, have more opportunities to live productively and participate in society. Knowing your legal rights, as a person living with cerebral palsy, will go a long way in making life more comfortable.

The Legal Rights

It is necessary to know and understand the legal rights that protect the interests of persons living with cerebral palsy. The Americans with Disabilities Act (ADA) grants rights to every  person  living with cerebral palsy to have equal opportunities to public accommodations, employment, transportation, state and local government services, and telecommunication.

Right to Public Accommodation

Public accommodations cover public, private, and nonprofit entities that own, lease or operate facilities like retail stores, restaurants, hotels, private schools, movie theatres. Others include conventional centers, homeless shelters, doctors’ office, transportation depots, daycare centers and recreation facilities. Right to public accommodation according to ADA requirements, means that persons living with cerebral palsy have the right to enjoy all the public facilities, activities, events, and more. That is, every public place should adjust to fit the needs of persons living with cerebral palsy whether it means installing a wheelchair ramp, bus lifts, or ability to access classrooms. Discriminating a person living with cerebral palsy to access any public amenities, participating in events and activities may lead to a lawsuit.

Right to State and Local Government activities

The ADA states that regardless of Federal funding or entity size, every person with cerebral palsy has the right to benefit from all activities, services, and programs. These include employment, public education, health care, recreation, courts, social services, town meetings, and voting. The local and state governments are required to follow the laid down architectural standards in every new construction and to alter older buildings, to accommodate the needs of persons  living with cerebral palsy. Additionally, they should communicate effectively to people with vision, hearing, and speech disabilities by making reasonable modifications, practices, policies, and procedures.

Right to Public Transportation

Public transportation covers public rail transit (commuter rails, subways, and Amtrak), and city buses. The public transportation authorities should not discriminate against people with cerebral palsy in providing safe and accommodating transport services.

They should have wheelchair accessibility on their open vehicles and ensure paratransit when operating a fixed-route rail and bus system. Paratransit service means picking and dropping individuals who cannot access conventional transit system independently due to mental or physical impairment.

Right to Education

The education rights of children with cerebral palsy require that every public school accommodate them without any discrimination. They should receive free and appropriate public education within the least restrictive environment that’s appropriate to cater to their individual needs.

Public schools are also required to develop Individualized Education Programs (IEPS) to fit the needs of every person  living with cerebral palsy.Each of the related services and special education on each child’s IEP should reflect their personalized needs. The Individualized Education Programs must be developed by knowledgeable persons and reviewed annually. The team should include the parents, the teacher, and an agency representative qualified to supervise and provide provisions of  special education. The child may be present, but only if it is determined to be appropriate, while any other representatives can be included at the discretion of the agency and the parent.

Right to Employment

For any employer with 15 or more employees, they should provide individuals with cerebral palsy, qualified to take a particular position, with employment. Additionally, they should be

provided with all the benefits and opportunities accorded to all the other employees.

For example, they should not be prohibited from promotion, pay, training, or social activities due to their disability. The employer is also required to make reasonable accommodation for such an individual, during the interview process. They should also restrain themselves from asking questions about the person’s disability before making a job offer.

Housing Rights

According to the Fair Housing Act, it is prohibited to deny an individual with cerebral palsy access to housing. The coverage includes local and States government housing, houses under Federal financial assistance, and private housing. Whether it is in the aspect of renting, buying, selling, or dwelling.  Discriminating against persons  living with cerebral palsy is unlawful. The law also covers housing financing, zoning practices, advertising, and even new construction designs.

Additionally, housing rights requires that the house owners provide facilities and make exceptional policies to accommodate people with cerebral palsy and give them equal housing opportunities. For example, a landlord who has a “no pets” policy may be required to grant an exception in the case of a service animal. The exception to such rules needs to allow persons  living with cerebral palsy to keep their guide dog. Rentals are also required to allow disabled people to have easy access to their buildings. Houses should have ramps, large and accessible doors, large use areas, big bathrooms, and kitchens to allow easy maneuvering of wheelchairs.

Air Carrier Access rights

The Air Carrier Access Act gives people with cerebral palsy the right to travel to any part of the world without discrimination. The act is both for local and foreign air carriers to provide and accommodate people with disabilities. The law requires that the airline assist persons  living with cerebral palsy when boarding, deplaning, and during transfers. However, it’s crucial to provide at least 48hours notice to the airline for them to facilitate accommodation, transport and respiratory services for their clients.

Health Care Rights

A person with cerebral palsy has right to non-discriminatory, community-based, and accessible health care services and coverage. Medicaid plans should provide community-based behavioral services to all disabled persons. The act also advocates for federal and state health care policies and ways that adhere to the needs of a disabled person, promoting stronger community integration.

Rights to Telecommunication Relay Services

A person living with cerebral palsy has a right to television and telephone access.The telephone companies are required to establish secure intrastate and interstate telecommunication relay services 24/7. Such relay services enable people with speech and hearing disability to communicate effectively with others through a third party communication assistant.

Federally funded service announcements, are required to have closed captioning.

The 1996 Telecommunication Act requires that manufacturers of telecommunication should have usable gadgets for persons living with disabilities. It ensures people with cerebral palsy enjoy services and products like pagers, cell phones, operator services, and call-waiting services.

Knowing your legal rights as a person  living with cerebral palsy goes a long way in making your life more comfortable and enjoyable. Learn more about your legal rights from government agencies, NGOs, and various organisations that advocate for the interests of persons with disabilities. Don’t be left behind, know your rights!

September 16, 2019 · Editorial Team · Comments Closed
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Nursing Home Abuse is On the Rise

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Elder abuse is a heart wrenching issue—one that is unfortunately on the rise, even in our watchdog of a modern society.  Statistics have shown that nearly 5 million elders suffer from abuse each year with one study reporting 24% of nursing home residents experiencing at least one instance of physical abuse.  According to the Center for Disease Control and Prevention (CDC), “elder abuse is a significant public health problem” and 1 out of every 10 people age 60 and older experiences various forms of neglect and exploitation.

Nursing home abuse can manifest in numerous ways: physical abuse, the infliction of pain or injury; sexual abuse, inappropriate touching or sexual activity with an older adult who cannot consent, does not consent, is threatened, or forced; emotional abuse, verbal threats, harassment, and intimidation; confinement; passive neglect in which a caregiver fails to provide an elder with necessities; willful deprivation, denying an elder necessities outright; and financial exploitation, the abuse or withholding of the older adult’s resources.

The reality of nursing home abuse can be faced on a criminal level, and in fact, many states have implemented laws that penalize those who have victimized older adults.  For older adults who have faced abuse, their risk of death increases by 300% compared to those who have not been abused.  Because of these startling statistics, elder justice laws have been set in place, varying state by state, and there are attorneys who specialize in taking on these cases, seeking out justice for older adults who have experienced any type of nursing home abuse.

Warning signs can arise in older adults differently, depending on which form of nursing home abuse is inflicted.  Your loved one may demonstrated signs of nursing home neglect such as bedsores, poor hygiene, a change in emotional responsiveness and alertness, withdrawal, or becoming argumentative or terse.  Physical abuse can appear in the form of bruises, pressure marks, broken bones, or scrapes or abrasions, indicating clear signs of mistreatment or neglect.  Nursing home abuse can appear as financial abuse as well, when suddenly the older adult has unexpected changes in their finances or valuables.

Preventative steps can be taken, like seeking legal advice early on to ensure financial stability and protection, searching for a reputable nursing home with a qualified staff, and staying connected to trusted family members, the community, and friends. An attorney can also assist in establishing a living will, cementing your medical and health care decisions with legality, and be an extra pair of eyes to any documents or paperwork that require signing.

Nursing home abuse is an under reported issue plaguing our society, our loved ones, and as we age, it will eventually affect us as well.  According to the American Society on Aging in 2012, nearly 87% of Adult Protective Services (ASA) saw an increase of the number of reports and caseloads of elder abuse over the previous five years.  ASA also reports that the direct expense that amounts from financial exploitation of an older adult was estimated to be $2.9 billion in 2011, an astounding 12% increase from 2008.

At Aronberg, Aronberg, and Green, our team of experienced, seasoned attorneys have accomplished history in elder and nursing home abuse cases, ensuring that our clients and their loved ones see the justice they deserve.  We are finely tuned to the Florida laws on the types of elder and nursing home abuse, fortified with years of successful settlements, claims, and casework, and driven by a passion to find a meaningful conclusion for our clients’ and their loved ones’ difficult situations.

June 4, 2019 · Editorial Team · Comments Closed
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Top 3 Reasons Why You Need to Have a Motorcycle Attorney on Standby

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In this modern era, you are at liberty to use what pleases you when moving around. Technology has made a lot of things possible such as making high quality motorbikes. Motorbikes have become common due to their benefits. One of the major benefits is the fact they are convenient; this is according to thoughtco.com. Imagine if you could avoid being stuck in traffic for hours at a time, wouldn’t that be convenient? People with motorbikes find it very easy to go around traffic and arrive at their destination without wasting time on the road. Don’t forget that these modern motorcycles can also navigate through narrow roads which a car cannot. In addition, motorbikes have less fuel consumption. Basically, they are preferred by many due to their benefits. Despite their benefits, some motorcycles get involved in accidents from time to time. The accidents might result from careless driving or even from ignorance from other drivers. When such situations occur, you have to find a way to repair your motorbike. You need to understand that sometimes you might not be the one on the wrong. This means that the person who hit you should take responsibility. If by any chance they refuse, you might need to hire a motorbike accident attorney for the following reasons:

  1. Case evaluation

One of the first advantages you will enjoy once you have a motorcycle lawyer is that he or she is able to evaluate your case and come up with evidence to support it. He or she is there to give a different perspective. This is a perspective you might not be able to see until you have a third party. If you have the required evidence, then chances are you might win the case in court. Another important point you need to know is that the motorcycle accident lawyers have friends like detectives who are able to help him or her gather evidence that will favour your case.

  • Settlement

How many times have you heard of people settling their cases out of court? This has become a common thing because court cases take time to be processed. Sometimes, the person that you are suing might not have that patience, thus they would prefer to sit with you at the same table and come up with a permanent solution that will benefit the two of you. A motorcycle attorney is there to make sure that the settlement you agree to is fair considering the damages suffered. Sometimes, people can take advantage of you if you happen to show up without a lawyer.

  • Legal representation and complication of the law

The other good thing about having a motorcycle attorney is that he or she takes care of your court appearances. If anyone involved in the accident wishes to address you, he or she will have to go through your lawyer. Your lawyer will also be there to advise you on what to agree to and what not to agree. Your lawyer will always show up for emergency meetings that you are required to be present. Basically, you can continue with your daily life as the lawyer represents you legally. In addition, don’t forget how complicated the law is. It might require you to hire someone to just be interpreting it for you. To save yourself that hassle, just get yourself a motorcycle attorney.

January 28, 2019 · Editorial Team · Comments Closed
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What can result in a birth injury or medical malpractice case?

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There is nothing more delightful for parents than the birth of a child. It brings joy and happiness to the entire family. However, things can go wrong when the medical and healthcare providers become negligent during labor pain, pregnancy or even at the time of baby delivery. It can result in severe birth injuries that will affect both the child and parents in the long run.

Working it out legally

As a parent do you suspect that there has been a birth injury while your baby was born? Do you suspect that there was some negligence of the part of the healthcare provider? If yes, then it is essential for you to choose a lawyer from the best and ace malpractice Birth injury lawyers and fight the case legally. Though money can’t at all compensate a severe birth injury, but an ace lawyer can help you present your loss at the court and seek the required justice. These lawyers will help you explore every minute facts related to your medical case and options that you can attempt to appeal for justice and the deserved compensation.

Today, you can have access to legal firms that have a team of ace lawyers to present cases related to wrongful death, birth and personal injury as well. These lawyers work by having access to the correct medical records. Additionally, they have the legal expertise and experience that will help them to address your case better and arrive at an apt solution. 

The birth injury causes you need to know

Before you opt-in for a birth injury lawyer, it is essential for you to be aware of the causes that result in a birth injury. Some of the essential reasons are as follows:

  • Inappropriate execution of the delivery room procedures
  • Inadequate oxygen supply to the infant’s brain
  • Incorrect monitoring of the fetal heart rate
  • Improper use of the forceps and several other delivery room devices and tools
  • A delayed C-section delivery
  • All kinds of medical processes conducted badly
  • Providing the wrong delivery room drugs to the baby’s mother
  • Monitoring the delivery room patients in an inappropriate manner
  • When the correct delivery room techniques don’t get followed

The common birth injuries

There are times when the hospital staff and delivery room doctors are unable to follow the best delivery room processes and protocols. In such a situation, the chances of birth injuries are more. The typical kinds of birth injuries are as follows:

These are some of the dangers that the medical staff and the healthcare provider need to be aware of before it takes the accountability for delivery.

A birth injury leaves a permanent mark! Hence, it is essential for medical practitioners to be aware of the birth injury penalties that might take place due to negligence on their part. Furthermore, people can opt-in for legal help when they have a birth injury or medical practice at hand and request the legal system for an apt compensation of their loss.

January 10, 2019 · Editorial Team · Comments Closed
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Basics of medical malpractice laws that determine the feasibility of filing a medical negligence case

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Some medical malpractices amount to personal injury, and the sufferer can file a lawsuit for claiming compensation due to medical negligence. If a doctor misdiagnoses a disease that results in wrong treatment, it is one kind of professional malpractice. Again, if a surgeon performs surgery at the wrong site or as reported recently that a surgeon removed the kidneys of a patient by mistaking it as a tumor are glaring examples of medical negligence. Similar are the cases of drug errors that doctors commit very often. In all these cases, the patient undergoes pain and suffering for some mistake on the part of doctors and if you Ask4SAM injury lawyer, they would advise filing a personal injury lawsuit to claim compensation for damages.

Lawsuits for medical negligence can charge hospitals, doctors, nurses, EMTs, or any other medical professionals involved in the process that caused injury to the patient. Besides physical injury, the mental trauma associated with it forms a part of the damages. Medical malpractice is just like any other professional malpractice, and the law comes into force only when an individual receives injuries as explained above during the process of receiving some medical care of medical treatment.

To get the compensation in any medical malpractice, you must be aware of medical malpractices by gathering knowledge about it and know how to lodge a claim by proving it. Medical negligence is the most common form of medical malpractice that we usually experience. It happens when the doctor or any other medical professional responsible for providing medical care fails to perform his or her duty competently.

Since the rules about medical practices vary between States, in this article we will discuss the broad categories of rules applicable to most medical malpractice cases. Keep reading to get an overview of the laws and regulations.

Claim requirements

In the court of law, you must prove comprehensively that medical malpractice has occurred for which you must be able to establish a few facts that demonstrate that there was a professional relationship between the doctor and patient, the doctor was negligent, and the injury resulted in damages.

  • Doctor-patient relationship – The primary requirement to file a claim for damages is to establish that there was a professional relationship between the doctor and patient in which the patient approached the doctor for treating him or her, and the doctor agreed to it. Only when the doctor examines the patient and initiates treatment that you can establish the relationship. The question of relationship arises mostly for consulting doctors not directly treating the patient. Similarly, you cannot sue a doctor who has offered some casual advice without any professional engagement.
  • Doctor’s negligence – Your feelings about poor treatment or unsatisfactory results does not make a case for medical malpractice. It is necessary to prove that the doctor was negligent with respect to the diagnosis or treatment. To build a case for medical negligence or malpractice against the doctor, you must be able to establish that the doctor harmed you in some way that any other competent doctor would not have done under similar circumstances. Medical malpractice claim must adequately establish the fact that the doctor was not reasonably skillful and careful as deemed necessary to carry out adequate medical treatment.
  • The injury caused due to doctor’s negligence – Doctors treating patients with prior injuries compound the problem of patients to establish that the doctor’s negligence caused some injury. The question arises about how much the doctor is responsible for causing harm to the patient.   If a patient suffering from some heart disease dies, then even if the doctor made some mistake in the treatment it is hard to distinguish if the death happened due to the disease or was a result of the doctor being negligent.
  • The link between injury and specific damages – Unless there is a direct link between the lapse on the part of the doctor and the harm caused by it is not possible to file a lawsuit for medical malpractice even if the doctor has underperformed. Only when the acts of the doctor cause injury that results in pain and suffering like mental anguish, additional medical expenses and loss of earning capacity by losing work that it becomes a case fit for suing the doctor for medical malpractice.

Types of common medical malpractices

Medical malpractices can be of so many kinds that it is difficult to make a list. However, all medical practices that can result in claims for compensation fall under one of these categories.

Inability to diagnose – If the doctor treating the patient fails to make a proper diagnosis of the illness and starts some wrong treatment it can become a case for medical negligence but with a condition. The patient must feel and be able to establish that some other competent doctor would have made a different diagnosis with a positive outcome.

Improper treatment – Doctors must follow set treatment protocols for specific diseases, but there are cases when the doctor misdiagnoses the conditions and start wrong treatment that no competent doctor would have done. Also, it might happen that despite diagnosing the disease correctly and even selecting the right treatment the doctor fails to administer it competently and hence could face a case of medical negligence.

Failure to caution patients of known risks – Duty of informed consent is a professional protocol that doctors must follow. It stipulates that doctors must share with the patient all information about the dangers known to them that are associated with the medical procedure or treatment. Making the patients aware of the possible risks helps them to take a well- informed decision. It may happen that they would not like to undergo the procedure or treatment at all. If the doctor fails to share the information with the patient and the treatment or medical procedure results in injury to the patient, it becomes a fit case for filing claim for compensation.

The above information should help you to decide the merit of your case and take the right decision about filing a lawsuit against the erring medical professionals.

January 10, 2019 · Editorial Team · Comments Closed
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Why is it important for healthcare providers to stay HIPAA compliant?

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The new age enterprise landscape is often laden with unwarranted data thefts and risks of multiple kinds. It can be a result of misusing internet. There have been many occasions where sensitive and critical data was at stake because of deceitful third-party intruders who have attempted to steal essential patient data.

Importance of staying HIPAA compliant

IT compliance and security have been hugely gaining importance today in the medical field. Amongst multiple medical security problems, patient privacy still happens to be a huge issue. Most patient’s data today are getting transferred to a digital format. And this has made the medical and healthcare service providers realize that they are susceptible to potential data risks and thefts from time to time. A considerable number of these risks include IT hassles that can result in physical damage to computing equipment, which store important patient health data.  Staying HIPAA compliant is essential to secure your data. Today, you have ace service providers who can help you with this. You can browse through websites like American Retrieval Medical and the like, to know more on the subject.

The implications of HIPAA

Even before HIPAA (Health Insurance Portability and Accountability Act) got enforced, by the Congress back in 1996, no global check was adhered to assure if a medical and a healthcare provider was adequately procuring the important PHI (Patient Health Information). HIPAA was created to foster the confidentiality and portability of patient records and also to establish the need for consistent service in the medical vertical. A few of the new age compliance issues comprise the following:

  • Developing and providing IT compliance and security for auditor reviews
  • To make sure that an organization stays compliant and safe on a regular basis
  • To be able to manage the written agreements along with the compliance proof from all business associate in the healthcare and medical sector who can access the PHI

Keeping in mind the HIPAA compliance guidelines, it is essential for all the healthcare and medical companies to stay tuned with the policies that will help them to safeguard their system. It also gives the patient’s the confidence that all their essential and critical medical data will stay private and confidential.

Is your company a medical or health care service provider? And do you want to attain the same level of HIPAA compliance? If yes, first and foremost you need to make sure you have a medical data retrieval plan in place. Today, there are service providers who provide advanced solutions that provide continuous compliance management and ongoing security management. All this gets created on a framework that allows the companies to have complete management on the compliance levels and also improve the same.

Additionally, all these solutions come with a vulnerability scanning process that is inbuilt. And this is what makes HIPAA compliance simple and easy.  There are many aspects of HIPAA that might be unknown to a medical provider. When you join hands with the apt service provider you know the finer nuances and benefits of staying HIPAA compliant.

January 10, 2019 · Editorial Team · Comments Closed
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Astex Therapeutics Ltd v Astrazeneca AB [2018] EWCA Civ 2444

In this case the Respondent had made an offer which was significantly more favourable to the Appellant than the outcome that the Appellant achieved at trial. However, the offer was not made under CPR Part 36 and therefore there were no automatic costs consequences (following F&C Alternative Investments (Holdings) Ltd v Barthelemy [2012] EWCA Civ 843). However, the offer was relevant under CPR Part 44 which obliges the court to consider all the circumstances of a case when deciding the order for costs. The court considered that although there might be some cases where the refusal to accept a reasonable offer was capable of justifying an award of indemnity costs, that situation would only arise where the failure to accept such an offer was itself unreasonable. In this case it was held that the Appellant’s conduct did not justify an order for indemnity costs and that part of the order was set aside.

December 28, 2018 · Editorial Team · Comments Closed
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Andrew Graeme Waring v Mark McDonnell (unrep., Brighton County Court, 6 November 2011)

The Claimant and Defendant had been cycling in opposite directions and collided head-on. Both sustained personal injury and brought claims for damages. The Judge found for the Claimant and dismissed the Defendant’s counterclaim. It was held that the Defendant was not entitled to the protection of qualified one-way costs shifting in relation to the costs of the Claimant’s successful claim. This was because he was not an unsuccessful claimant in the Claimant’s claim, but an unsuccessful defendant. The court expressly disagreed with the approach taken in Ketchion v McEwan (unrep., Newcastle & Tyne County Court, 28 June 2018) where it had been held that, in CPR 44.13, the word “proceedings” included both a claim and counterclaim.

HHJ Venn stated that, if the approach in Ketchion was followed, a number of undesirable consequences would arise, including the fact that insurers of defendants would be incentivised to bring counterclaims for damages for personal injury to ensure there would be no liability for costs.

December 15, 2018 · Editorial Team · Comments Closed
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Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB)

The Respondent wanted to oppose an appeal against a possession order, both on the ground relied upon by the first instance judge in his judgment, and/or upon a different basis rejected by the judge at first instance. The Respondent had not filed a Respondent’s Notice to uphold the lower court’s decision “for reasons different from or additional to those given by the lower court“, as it was required to do by CPR 52.13.

The Respondent therefore had to make an oral application, at the appeal hearing, to file a Respondent’s Notice out of time. Dingemans J held that the Respondent was indeed required to file a Respondent’s Notice, and whether permission to file one out of time should be granted was governed by the principles set out in Denton v TH White Ltd [2014] EWCA Civ 906.

Despite the lateness of the application, it was granted. The breach was serious, and there was no good reason for it (the failure appeared to be founded upon the Respondent’s representatives’ misunderstanding of the function of a Respondent’s Notice and of CPR 52.13). However, the point had been ventilated previously and was taken by the Respondent in its skeleton argument, so the Claimant could not be said to be unaware of it; it was a point of pure law, so no further investigation was required in respect of it; and the Claimant’s representative were able to deal with it so there was no unfairness.

Playboy Club London Ltd v Banca Nazionale Del Lavoro Spa [2018] EWCA Civ 2025:
The Court of Appeal held that there was no abuse of process where the Claimant failed to bring a deceit action at the same time as its claim for negligent misrepresentation.

The Claimant was a casino which had extended credit to a customer who had been provided with a good credit reference by an employee of the Defendant bank. The customer defaulted, and the casino brought an action against the bank alleging that the employee had negligently misstated the customer’s creditworthiness in his reference. At the time of bringing that claim, the casino was aware that it may have a claim in deceit against the bank, but considered that such a claim would be speculative and weak. At trial, material emerged in cross-examination which would substantially support a claim in deceit.

The claim in negligence was lost – on appeal, on the basis that the bank owed no duty of care in negligence to the casino, since the casino was not the addressee, but the addressee’s undisclosed principal: [2018] UKSC 43. Following the loss in the Supreme Court, the casino sought to being a further claim, this time in deceit. The deceit claim was initially struck out as abusive, but the Court of Appeal overturned that decision, noting that: (a) the negligence claim was substantially different from the deceit claim; (b) there was a good reason for not bringing the deceit claim previously, namely that the evidence to support it was circumstantial and weak, and it would have been inappropriate to plead allegations of dishonesty on such a basis; (c) the casino had not been acting tactically or ‘keeping its powder dry’; and (d) it would be a “rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process“.

November 28, 2018 · Editorial Team · Comments Closed
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Lewis -v- Tinsdale & the Motor Insurers Bureau [2018] EWHC 2376 (QB)

In Lewis -v- Tinsdale & the Motor Insurers Bureau [2018] EWHC 2376 (QB), the Claimant suffered serious injuries when he was walking on private land and hit by an uninsured Nissan Terrano 4 x 4 vehicle. The First Defendant was debarred from defending the claim and judgment was obtained against him. The Court considered whether Articles 3 and/or 10 of Directive 2009/103/EC were directly effective against the MIB through being an emanation of the state.

At a trial of the preliminary issues, Mr Justice Soole noted that the CJEU had made it “unequivocal that the obligation of compulsory insurance extends to the use of vehicles on private land”. Crucially, he went on to find that the MIB was an “emanation of the state” for the purposes of the Insurance Directives. He considered that Farrell v Whitty (No.2) (C-413/15) [2018] 3 WLR 285 had superseded the reasoning in Byrne v MIB [2009] QB 66 and the observations of Hobhouse LJ in Mighell v Reading [1999] Lloyds Rep IR 30. Further, the MIB was liable to indemnify the Claimant at least to the minimum level of cover under Directive 2009/103/EC, which is EUR 1 000 000 per victim. The question of whether the European principle of equivalence in fact requires unlimited cover was raised late in the hearing and was not fully argued. As such, Mr Justice Soole went no further than to state that Article 3 had direct effect to the extent of at least the minimum requirement of EUR 1 000 000 per victim. Whether unlimited cover is indeed required remains to be seen.

November 15, 2018 · Editorial Team · Comments Closed
Posted in: Cases