Jacqueline Ann Smith v (1) Lancashire Teaching Hospitals NHS Trust (2) Lancashire Care NHS Foundation Trust (3) Secretary of State for Justice [2016] EWHC 2208 (QB)

The Claimant cohabited with her partner for over two years before he died as a result of the negligence of the First and Second Defendants. Under s.1A(2)(a) of the Fatal Accidents Act 1976 (as amended), two year plus cohabitees were not entitled to bereavement damages. The Claimant sought a declaration regarding the interpretation of s.1A(2)(a), or a declaration that the section was incompatible with the Human Right Act 1998.

HELD: (1) To demonstrate that Article 8 was directly engaged the Claimant must show a direct and immediate link between the restriction and her private and family life: Swift v Secretary of State for Justice [2012] EWHC 2000 (QB). Article 8 could be engaged even where the family member in question was deceased. However, the denial of a bereavement award to two year plus cohabitees did not imply that their grief was considered less valuable by the state than the grief of a spouse. The Claimant failed to show that Article 8 was directly engaged.

(2) Once it had been decided that a measure did not engage Article 8, that measure would often fall outside its ambit for the same reasons. The lack of a right to compensation for grief was not linked at all to her private life and was only tenuously linked to her family life. That conclusion was in line with the R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 four-stage test.

(3) Had it been necessary to decide, the Claimant had “other status” for the purposes of Article 14 because she was in a relationship closely analogous to marriage with the deceased. The similarities between the situations was sufficient to require any discrimination infringing rights within the ambit of Article 8 to be justified.

(4) As the Law Commission has identified, the current law requires reform. If Articles 8 and 14 had been engaged, the Secretary of State had not established justification for the differences in treatment.

(5) It would not have been possible to read s.1A(2)(a) so as to include two year plus cohabitees. The right remedy, had the claim succeeded, would have been a declaration of incompatibility.

October 15, 2016 · Editorial Team · Comments Closed
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Mohammed Azim v Tradewise Insurance Services Ltd [2016] EWHC B20 (Costs)

The Claimant, who was injured in a road traffic accident and pursued a personal injury claim, accepted a Part 36 offer of £3,500 from the Defendant. He had been represented by three firms of solicitors. A Conditional Fee Agreement into which the Claimant had entered with the second set of solicitors (TLW Solicitors) in January 2013 was assigned to the third set of solicitors (Russell Worth Ltd) in July 2014 after TLW had written to the Claimant explaining the reasons for the transfer. At detailed assessment, the Defendant took issue with the validity of that assignment and therefore the Claimant’s right to recover any costs under it. The questions for Master Leonard were whether the Claimant’s retainer with TLW had been terminated at the time of the assignment arrangement; whether it was lawfully possible for the CFA to be assigned in the manner attempted; and whether the assignment was effective.

HELD: In relation to whether the retainer had been terminated, the case was distinguished from Budana v Leads Teaching Hospitals NHS Trust (District Judge Besford, County Court at Kingston-Upon-Hull, 4 February 2016) and Webb v London Borough of Bromley (SCCO, 18 February 2016). On analysis, there was no evidence the TLW CFA had been or was terminated by TLW at the time of the assignment. In relation to the assignment’s legality, there was no identifiable obstacle in the principles governing assignment of the benefit and burden of contracts to the validity of a bona fide, arms-length CFA assignment in the circumstances of the case: Jones v Spire Healthcare Ltd (HHJ Graham Wood QC, Liverpool County Court, 11 May 2016) considered. The assignment was found to be effective and a novation did not take place. It followed that the indemnity principle did not operate to prevent the recovery of the costs incurred by the Claimant and payable both to TLW and Russell Worth Ltd under the terms of the TLW CFA.

September 28, 2016 · Editorial Team · Comments Closed
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Motor Insurer’s Bureau v Moreno [2016] UKSC 52

The Respondent was walking on a roadside verge while holidaying in Greece in 2011 when she was struck by a vehicle registered in Greece whose driver neither had a valid driving licence nor any insurance. She was left with very serious injuries. The Respondent was entitled to pursue the UK Motor Insurer’s Bureau, rather than the responsible Greek body, via the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003. Liability was admitted but the issue in dispute was whether the scope of the MIB’s liability to the Respondent was to be measured according to English or Greek law (thereby resulting in a lower level of compensation). At first instance, the Respondent had argued that the 2003 Regulations provide for English law to govern the measure of recovery – as accepted by the Court of Appeal in Jacobs v Motor Insurer’s Bureau [2010] EWCA Civ 1208 and followed in Bloy v Motor Insurer’s Bureau [2013] EWCA Civ 1543. The MIB successfully applied for a leap-frog appeal directly to the Supreme Court.

HELD: The Supreme Court held that the starting point in construing the 2003 Regulations was that they should be interpreted in a way which was not in any way inconsistent with the Directives which they were designed to implement. The scheme of the Directives was clear: rather than leave the question of the provision of compensation to individual Member States, the Directives proceeded on the basis that a victim’s entitlement to compensation would be measured on a consistent basis by reference to the law of the state of the accident. This approach was reflected by the language of the Regulations, specifically regulation 13(2)(b). Jacobs and Bloy were therefore overruled and accordingly the scope of the MIB’s liability was to be determined in accordance with Greek law.

September 15, 2016 · Editorial Team · Comments Closed
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Albert Victor Cardner v University of Exeter [2016] EWCA Civ 790

An asbestosis sufferer was entitled to damages from a former employer who was responsible for 2.3% of his total exposure to asbestos dust; although that was a very small contribution, it was a material contribution to his condition.

The appellant former employer had conceded that the 2.3% exposure and contribution to asbestosis was material, but argued that as the contribution had made no difference to the respondent’s symptoms and condition, the judge should have held that it did not make him worse off and therefore made no material contribution to the damage suffered.

The Court of Appeal held that the focus was upon whether the medical condition would have made the person worse off. The question of whether he had suffered material damage depended on the particular facts of the case. The Court held that there was a fundamental contradiction in the appellant employer’s case, as it both argued that the attributable asbestos dust made no material contribution to his asbestosis by arguing that it had not and would not make a difference to his symptoms, but also accepted that it was a material contribution to the entire dose of asbestos dust. The severity of the symptoms had been increased to a small, albeit not measurable extent, and the concession that the increase was material was critical. In those circumstances, the judge was right to hold that the respondent was slightly worse off as a result of the 2.3% exposure for which the appellant was responsible.

August 28, 2016 · Editorial Team · Comments Closed
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Domestic violence victims can get out of lease, says new law (in Canada)

Consideration was given for the editing and publication of this post.

Thanks to a new law in the province of Alberta, victims of domestic violence have some recourse to escape their abusers more easily. Under the Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, renters can break a lease before full term without suffering a financial penalty. The only catch is this: They must produce a certificate verifying that they are at risk of abuse. The certificate is available by giving the Ministry of Human Services an emergency protection order or a letter from a medical professional such as a doctor, nurse, psychiatrist, psychologist or social worker that states that the person is in danger

The idea behind the Act is that finances (or lack of finances) should never be a factor in one’s ability to flee an abusive situation. The new law is also aimed at making it easier for victims to get connected with a variety of services for survivors of domestic violence.

Nearly 5,000 women are admitted to Alberta’s 32 emergency shelters and 12 second-stage shelters every year. Half of the women admitted to shelters in the province between 2014 and 2015 were assessed to be in extreme danger, which is an increase from the year before. More than twice the number of women who found themselves in shelters during that time period had to be turned away because of lack of space.

The Alberta NDP government recently announced that they will invest $15 million in combatting domestic violence. A big part of that will go toward second-stage shelters, which are apartment-style housing that offers longer-term support for domestic violence survivors. Second-stage shelters allow victims to stay for up to two years, as compared to the shorter-term shelter offered by emergency shelters.

The new private member’s bill was put forth by Maria Fitzpatrick and was passed unanimously. The bill will effectively amend current tenancy rules so that a woman who can show proof that they are in danger (such as a restraining order) will be able to break their lease without any financial penalties. It is a step toward removing the most common barriers faced by women who are trying to escape domestic violence. At present, financial difficulties and having no place to go are two of the most common barriers women in domestic violence situations face when attempting to leave. By allowing them to escape their lease without threat of financial penalty, at least one of those worries is alleviated. It is the hope that the rest of the province’s investment in helping victims of domestic violence will also address the issue of ensuring that victims have a place they can go.

Domestic violence is a widespread problem in Canada and around the world. Too often, women stay in situations that are dangerous to themselves and their children because they feel trapped and without alternatives. Thanks to laws such as the private member’s bill recently passed in Alberta, we are taking a step in the right direction. Lawmakers are increasingly turning their attention to finding ways to make it easier for victims of domestic violence not only too physically and financially escape, but to feel safe once they leave and start to rebuild their lives. Those are the ingredients necessary to give victims the safety net they need to take the plunge and leave a dangerous domestic violence situation.

August 22, 2016 · Editorial Team · Comments Closed
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Should you go to law school?

Consideration was given for the editing and publication of this post.

Many young people are drawn to the idea of going to law school, thanks at least in part to television shows like Law & Order and how they depict the legal profession. But is law school right for you? Do you really know what you are getting into? Ask yourself these questions to find out whether it’s a good career path for you.

Why do I want to go to law school?

Going to law school has a certain cache about it. If you hear someone is in law school or has graduated from law school, most people are instantly impressed. But if you are going to law school just so your resume sounds good, that’s not a good reason. Law school is tough – really tough. Not only that, but it’s expensive. You don’t want to put yourself in debt just so you sound impressive.

What do you plan to do with your law degree?

This is an important decision when you are considering which law school to go to, or whether to go at all. Some schools specialize in certain areas of the law more than others, so it’s important to understand that before you make your decision. Also, consider where you will live and practice once you get your degree. If you want to work in a big firm, for example, you’re going to need to live in a big city. That could influence your choice of school.

Are you ready for your workload?

Law school is pretty gruelling. You’ll be doing a lot of reading, often hundreds of pages every night. Not only that, but you’ll have to endure long days of classes, too. Some classes may be in the evenings, too. If you work (which most students do) or have a spouse or children to consider, it’s important to know that you will be spending a lot of time in class and studying if you go to law school.

Can you handle the lack of social life?

Here’s the hard truth: Law students have time for law school and not much else. You’ll spend your days in classes and your evenings reading over your class notes and doing the assigned reading. You’ll spend a lot of time with classmates, but that time will be spent studying. Can you handle that?

Can you manage your time well?

If you’ve always struggled with procrastination and/or are easily distracted from the task at hand, you are going to find law school tough. The workload is demanding, the professors have high standards, and if you don’t know how to manage your time on your own, you are going to quickly find yourself drowning. If you are organized, driven, and self-motivated, on the other hand, you should be fine.

Do you have a support system in place?

As with everything challenging in life, the challenges of law school are made easier by having a support system in place. When you go to law school, will you be moving to a new city where you don’t know anyone? Or will you be staying near your family and friends? That may seem like an insignificant consideration, but it isn’t. Having a support system can make a big difference in terms of whether or not you can successfully complete law school.

Whether or not you should attend law school depends on several different factors. Of course, you need to consider your particular interests and aptitudes, but there are other things to consider as well. Before you apply, ask yourself these questions.

August 22, 2016 · Editorial Team · Comments Closed
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Hayward v Zurich Insurance Co PLC [2016] UKSC 48

Where an insurer had settled a personal injury claim when they suspected fraud by the claimant, they would be entitled to set aside that settlement if they later discovered proof of fraud on the basis of fraudulent misrepresentation. It was not necessary to prove that the insurer settled the claim because they believed the claimant’s misrepresentations; only that they had been influenced by those misrepresentations.

The respondent had injured his back as a result of an accident at work, and claimed that he had continuing serious back pain restricting his mobility and seriously impairing his ability to work. The insurer argued that he had exaggerated his injury, relying upon video evidence showing him undertaking heavy work at home. The parties reached a settlement agreement for £134,974 in full and final settlement. Two years later, the respondent’s neighbours approached the employer, stating that from their observation of the respondent, he had entirely recovered at least one year before settlement.

The Supreme Court held that there was no requirement for a defrauded representee to prove that it had settled because it believed a misrepresentation was true, in order to show the requisite influence by or reliance on the misrepresentation.

August 15, 2016 · Editorial Team · Comments Closed
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Liverpool Victoria Insurance Co Ltd v Khan & Ors (2016) QBD (Judge Walden-Smith)

An insurance company applied for permission to bring contempt proceedings against the second and third respondents (R2 and R3).

R3, a doctor, had examined a driver who had been in an accident in December 2011. His report, dated 17 February 2012, said the driver had symptoms including muscle spasms and continuing pain. The driver’s solicitors, who included the first respondent (R1), prepared a trial bundle with a copy of a report from R3; that copy, also dated 17 February 2012, did not mention spasms and said the pain had resolved within one week. The insurance company began an inquiry and interviewed R3 on 20 August 2013. He said he didn’t recall the report or being asked to amend it, and that the “one-week pain” report was correct. However, in a later statement, he said he had amended the report himself, because the “one-week pain” report had only included the acute symptoms, and that he had looked at the report on 19 August. He said that he had amended the report on the basis of a letter from R1 dated 22 February 2012. Metadata showed that the only copy of that letter, an electronic copy, was created on 28 August 2013. An email chain from 24 February 2012 had been disclosed; in it R1 told R3 that the driver was still experiencing pain, and requested that the report be amended. R2 worked for a claims company and helped the driver with his claim. His statement said that the driver was happy with the amended report. The driver’s statement was that the pain had resolved within three days and he had not asked for an amendment.

The issues were whether (1) there was a strong prima facie case that R3 knowingly, or without caring, made a false statement that was likely to interfere with the course of justice; (2) the public interest and overriding objective were in favour of granting permission; (3) permission should be given to proceed against R2.

HELD: (1) The emails indicated that R3 had been willing to alter the prognosis and details of the patient examination without further inquiry. There were discrepancies in R3’s account. There was strong prima facie evidence that he trying to obscure what had happened. There had been a fundamental change between the two reports. The court took into account his good character, but that was not a full answer to the allegations. Although the insurance company had not provided evidence of a motive for R3 to falsify, that was not a necessary ingredient to obtain permission. R3 completed a large number of medical reports and had a great deal of experience, but there were inconsistencies that could not be explained as mere errors. It was understandable that a busy doctor might not remember a patient a week later, but he had not asked why the solicitor said the driver was still in pain, contradicting the examination. On its face, it was not credible that an experienced doctor was willing to accept, without more, that his patient history and examination had been wrong.

(2) The court rejected R3’s contention that given that no trial had occurred, it was not in the public interest to proceed (Malgar Ltd v RE Leach (Engineering) Ltd [2000] C.P. Rep. 39 considered).

(3) The case against R2 was heavily dependent on the driver’s evidence, but that evidence had not been tested and the court’s ability to assess it was limited. It was consistent with other available evidence and nothing appeared embellished. No reason had been suggested for him to have lied. The driver’s evidence constituted a strong prima facie case, and the court was satisfied that it was in the interests of justice and the overriding objective to give permission for contempt proceedings against R2.

July 28, 2016 · Editorial Team · Comments Closed
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Darren Scott v Nicholas Joseph Gavigan [2016] EWCA Civ 544

The gross carelessness of a pedestrian in running across a road into the path of an oncoming moped driver was not foreseeable and meant that the pedestrian was wholly responsible for the road traffic accident.

However, the court noted that it was doubtful that the pedestrian’s behaviour was a new intervening act (as had been suggested by the trial judge). It was not that uncommon for a claimant to run out into the road carelessly or recklessly. A defendant who collided with such a claimant might not be held negligent (as in this case) or the claimant might be found contributorily negligent to a high degree. Nevertheless, the reason for imposing liability on a defendant was because he should have foreseen a risk and he owed a duty of care not to injure even the foolish. Although recklessness could be sufficient to break the chain of causation, it would be exceptional for a claimant who had established foreseeability, negligence, and causation to be denied any remedy.

July 15, 2016 · Editorial Team · Comments Closed
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Hall v North Hertfordshire NHS Trust, QBD (Judge Forster QC) 26/05/2016

A midwife who had turned away from a woman in the second stage of labour to switch on a machine was not negligent.

The Claimant was under the care of a midwife and a first-year student midwife when she gave birth in the second stage of labour, standing by her bed with the student midwife kneeling behind her. At the time, the midwife was at the other end of the bed to switch on a machine for use during the birth. The baby had fallen onto a pillow and was unharmed other than for a snapped umbilical cord and some mild bruising.

The court found that delivery could not have reasonably been foreseen, preferring the Defendant expert’s evidence. It was reasonable for the midwife to leave the Claimant for the short amount of time necessary to turn on the machine. The midwife had acted reasonably and in accordance with a reasonable body of midwifery opinion. The claim was therefore dismissed.

June 28, 2016 · Editorial Team · Comments Closed
Posted in: Cases