Medico-Legal Brief Update

Summary of Recent Cases – Substantive Law

editorial — Thu, 23 Feb 2012 07:00:05 +0000

SUMMARY OF RECENT CASES - PROFESSIONAL AND CLINICAL NEGLIGENCE

Solicitor Not Negligent In Disclosing An Unfavourable Expert Report Or For Allegedly Failing To Resolve A Conflict Of Evidence Between Experts
Boyle v. Thompsons Solicitors, QBD, 27/01/12
Coulson J dismissed the Claimant's claim for damages for alleged professional negligence against the Defendant firm of solicitors in relation to her claim for compensation to the Criminal Injuries Compensation Authority ('CICA'). The Claimant's appeal against an award had been rejected by CICA, who had before it conflicting evidence from experts instructed on the Claimant's behalf. In particular, the Claimant's psychologist had concluded that her PTSD was permanent and a direct result of an assault by her former partner. The Claimant psychiatrist stated that the PTSD was not permanent and was not solely attributable to the index assault. The Defendant had already put written questions to the psychiatrist. Coulson J rejected the Claimant's argument that the Defendant should have approached the psychiatrist again to see if she would be prepared to change her view. Coulson J held that the Defendant had no reason to believe that the psychiatrist could offer a different or stronger view and accepted the Defendant's evidence that to approach the psychiatrist again was too risky as she might express herself in a less favourable way. As such, the Defendant had not breached its duty of care. Furthermore, the psychiatrist's report had to be disclosed and consequently the Defendant was not negligent in disclosing it.

Summary of Recent Cases – Substantive Law

editorial — Sun, 19 Feb 2012 07:00:24 +0000

DAMAGES

Interim Payment Properly Ordered To A Non-Test Claimant In Group Litigation
Revenue & Customs Commissioners v. GKN Group, CA, 31/01/12
The Court of Appeal held that the Court had been entitled to make an interim payment to the Respondent, which was a party to the Franked Investment Income Group Litigation. The Court of Appeal held the Court should order an interim payment if it was satisfied that the conditions in CPR r. 25.7(1)(c) were fulfilled, unless there was a specific reason not to do so. The Court of Appeal held that the fact that the interim payment was being sought by a non-test claimant which was party to a Group Litigation Order did not amount to such reasons.

Summary of Recent Cases – Substantive Law

editorial — Thu, 16 Feb 2012 07:00:41 +0000

PERSONAL INJURY & FATAL ACCIDENTS

A Van Emerging Onto A Main Carriageway Without Seeing Motorcycle 20% Liable For Collision With Motorcyclist That Ensued
Ringe v. Eden Springs (UK) Ltd, QBD, 12/01/12
David Pittaway QC had to determine liability in a claim for damages for personal injury brought by the Claimant motorcyclist. The Claimant had been overtaking a articulated lorry by driving in a hatched area. There was a dispute as to his speed but on his own evidence he had been exceeding the speed limit. The Defendant's van was emerging from a junction onto the carriageway, intending to turn right. In the event, the Claimant's motorcycle collided within the Defendant's van. Mr. Pittaway QC held that the van driver should have waited until he had a clear view of the road to his right before attempting to make his turn. However, the Court found that the Claimant should bear the greater degree of responsibility for the accident in that he had significantly exceeded the speed limit (eye witness evidence as to his speed was accepted) and in overtaking the lorry in an improper manner. Consequently, the Claimant's contributory negligence was assessed at 80%.

In A Claim Governed By Guernsey Law, An Employers' Liability Insurer Was Only Liable To Indemnify Employer For The Proportion Of Employee's Employment Covered By Insurance Policy
International Energy Group Ltd v. Zurich Insurance Plc UK, QBD, 24/01/12
Cooke J was required to determine the scope of the Defendant insurer's liability to the Claimant employer and who was insured by the Defendant under an employer's liability insurance policy in respect of an employee who had contracted mesothelioma and subsequently died. The employee had been employed by the Claimant for 27 years. The issue was whether the Defendant was required to indemnify the Claimant for the entirety of its outlay in settling the employee's claim or whether its liability to indemnify should be limited only to a proportion corresponding to the duration of the insurance policy, being 6 years. The insurance policy was governed by Guernsey Law. Cooke J held that as the provisions of the Compensation Act 2006 did not apply, the Defendant was only liable to indemnify the Claimant limited to the proportion of the employee's employment covered by its policy of employers' liability insurance. Such a decision was consistent with the common law principles propounded in Barker v. Corus UK Ltd [2006] 1 A.C. 572, the effect of which the Compensation Act 2006 had sought to reverse.

Industry News

editorial — Mon, 13 Feb 2012 07:00:34 +0000

Cameron pledges to 'kill' health and safety culture...
Telegraph

RTA Portal responds to possible extension of PI Claims Protocol...
RTA PI Claims Process

PI firm launches 'anti-Jackson' campaign...
Legal Futures

Industry News

editorial — Fri, 10 Feb 2012 07:00:28 +0000

Transport Select Committee calls on insurers to take measures to cut costs of premiums...
UK Parliament

...as Fitch Ratings advises that a full referral fee ban would be positive...
Fitch Ratings

...although the Law Society blames the insurers for the hike in premiums...
Trainee Solicitor

PI Practitioner – each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area

editorial — Sat, 04 Feb 2012 07:00:47 +0000

LIABILITY FOR NEGLIGENTLY PARKING OR STOPPING IN THE ROAD

• Waller v Levoi (1968) Sol Jo 865 D stopped too close to a corner, which was not sharp but was a distinct corner. It was held that C was 20% liable for failing to notice the parked car in time.

• Chop Seng Heng v Thevannasan s/o Sinnapan [1975] 3 All ER 57 - A parked his lorry too close to a blind bend, although he had lights on and there was room to pass. C was in a lorry being driven by B which came round the bend too fast and collided with A's lorry. It was held that that both A and B were liable to C.

• Rugg v Marriott (6 October 1999, unrep.) (CA) D's vehicle broke down. He pushed it to the edge of the road, left it between two lamp posts on the left hand side of the road and locked it. The vehicle was visible from 300m away. C was riding his motorbike home in the same direction which D had been travelling. He collided with the stationary vehicle and suffered severe injuries.

It was held that if the possibility of the danger of a car being parked in that position was reasonably apparent, then it was negligent not to take reasonable precautions. If the danger of a car being parked din that position was a mere possibility, which would never have occurred in the mind of a reasonable man, then there was no negligence in not having taken extra precautions.

Summary of Recent Cases – Civil Procedure

editorial — Wed, 01 Feb 2012 07:00:06 +0000

The trial judge had not erred in implicitly accepting a witness' evidence as truthful despite not clearly expressing his reasoning and consequent findings
Maynard v Wigan Metropolitan Borough Council (2011), CA, 21/12/11
A local authority appealed against a decision that it had breached its duty of care owed to the Claimant when she had fallen crossing a grass verge outside her house due an averred hole in the car. During the trial the judge considered a number of photographs of the verge taken at least 3 years after the accident which the Claimant suggested was similar to the size of the whole, albeit it was deeper at the time of the accident. The judge held she was a truthful witness and awarded her damages. The local authority appealed on the basis that the judge had made no clear findings on the nature and size of the hole, and that he had inferred that the hole was dangerous from the mere fact that the Claimant had fallen and that she had complained. The appeal was refused on the basis that the judge, in referring to evidence of the Claimant's foot getting stuck and of her stepping into the hole seemed to accept that there was a hole and that it was large enough for an adult to step into. The judge had accepted the details of the Claimant's account as an honest witness even though he had not expressly found that the hole was deep enough to be able to get stuck in and had not made any findings about the hole's dimensions.

A single judge sitting in the High Court did have jurisdiction to make a committal order for an alleged contempt of court in proceedings commenced in the county court but subsequently transferred to the High Court
Tariq Ali v Esure Services Ltd [2011], EWCA Civ 1582, 19/12/11

The appellant, who had been the original Claimant appealed against a decision that a single judge sitting in the High Court had jurisdiction to hear an application by the respondent Insurer for his committal for alleged contempt of court. The Insurer had filed and served a Defence alleging fraud, at which point the Claimant had filed a notice of discontinuance. The Insurer issued an application to set aside the notice of discontinuance and transfer proceedings to the High Court. The Appellant submitted that the alleged contempt was made in connection with proceedings in the county court and therefore an order of committal could only be made by a Divisional Court and a single judge of the High Court had no jurisdiction. The Court held that Order 52 r.1(3) applied to "any proceedings in the High Court" and those words were wide enough to cover proceedings that were not started in the High Court, but were transferred to it from the county court. The proceedings in the High Court were the very same proceedings that were in the county court. On the transfer to the High Court the proceedings "in connection with" which the alleged contempt was committed did not become a different set of proceedings separate from those that were in the county court. The decision in Brighton and Hove Bus and Coach Co Ltd v Brooks (2011) EWHC 806 (Admin) that only the Divisional Court had jurisdiction where contempt was alleged in proceedings that had been transferred from the county court to the High Court was disapproved.

A hospital trust, having admitted a breach of its duty of care in a clinical negligence claim, was granted summary judgment on outstanding issues which had no realistic prospect of success
Wright v Basildon and Thurrock Hospital NHS Trust (2011), QBD, 07/12/11

The applicant trust applied for summary judgment on the outstanding issues in a clinical negligence claim brought by the respondent. Judgment by consent was entered in relation to a discrete issue with damages to be assessed. However, the Claimant raised further serious allegations which the trust denied. The Claimant had sought to rely on a report of a consultant surgeon (T) in circumstances where T had withdrawn from acting for him and had indicated his unwillingness to testify on his behalf. The Claimant currently stood debarred from relying on all expert evidence. The Claimant sought an adjournment to allow for the appointment of a fresh expert and provided a letter from a prospective expert who stated he had seen the Claimant and was willing to act as his witness. It was held that the fresh expert's letter said nothing in relation to his opinion of the Claimant's case or his availability to give evidence at trial. It was held it was far too late to make such an application in circumstances where the trial was to take place in three days' time. The only possible evidence to support the Claimant's allegations of clinical negligence was T's report. Even if T's written evidence were to be placed before a trial judge, the court found with regret but no hesitation, that the Claimant's case had no real prospect of success.

Summary of Recent Cases – Costs

editorial — Fri, 27 Jan 2012 07:00:35 +0000

Low value RTA claim settled under the terms of a Part 36 offer, the costs were to be assessed under CPR 45 Part II rather than on the standard basis
Sandra Solomon v Cromwell Group Plc: Donna Oliver v Sandra Doughty [2011] EWCA Civ 1584, 19/12/11

The appellants, who had been claimants in low-value road traffic accident claims, appealed against decisions to award costs in accordance with Part 45 Part II rather than on the standard basis. In both cases, the Claimants had accepted Part 36 offers of sums totalling less than £10,000 made by the Defendants before the claims had been issued. The Court held that it could not have been intended that a Claimant in a low-value road accident claim who accepted a Part 36 offer before proceedings had been commenced should be entitled to recover costs assessed on the standard basis, whereas a Claimant accepting an offer not made under Part 36 should be limited to the costs under Part 45 Part II. Furthermore it was not clear why a claimant proceeding under r.44.12A should be subject to a more restrictive costs regime than one who started Part 7 proceedings. If the Claimants' argument were correct, the acceptance of a Part 36 offer would always result in an order for costs on the standard basis in low-value road traffic accident cases which would undermine the fixed costs regime and provide a powerful incentive for defendants not to make Part 36 offers in such cases. The appeals were therefore dismissed.

A judge's award of costs based on a Claimant's Part 36 offer was illegitimate as the offer had been withdrawn the Court could rely on the consequences of a previous unwithdrawn Part 36 offer
Epsom College v Pierse Contracting Southern Ltd (In Liquidation) (Formerly Biseley Construction Ltd) [2011] EWCA Civ 1449, 13/12/11
It was agreed between the parties that the judge's award of costs based on the second Part 36 offer was technically illegitimate as that offer had been withdrawn. The question was whether the award could or properly should be translated into Part 36 costs consequences under the surviving first offer or under Part 44. It was held that the first Part 36 offer was valid and reliance on that offer could be substituted for the second offer. The essence of the judge's disposal of the question of costs would be upheld. As the second Part 36 offer's withdrawal meant that it could not be made the basis of Part 36 costs consequences, reliance on the first, unwithdrawn, Part 36 offer would be substituted.

Summary of Recent Cases – Substantive Law

editorial — Mon, 23 Jan 2012 07:00:55 +0000

SUMMARY OF RECENT CASES - PROFESSIONAL AND CLINICAL NEGLIGENCE

Hospital Trust Granted Summary Judgment In Clinical Negligence Claim Where Claimant Debarred From Relying On New Expert Evidence
Wright v. Basildon and Thurrock Hospital NHS Trust, QBD, 7/12/11

Judge Stockdale QC (sitting as a deputy High Court judge) granted the Defendant hospital trust summary judgment in respect of all outstanding issues in the underlying clinical negligence claim brought against it. Judgment by consent had been entered in respect of part of the claim, there having been an admission of a breach of duty in a limited sense. Summary judgment was however entered in respect of other discrete serious allegations of breach of duty (including that the surgery had been carried out without consent and was barbaric) on the grounds that they did not have real prospects of success. The original expert in support of the Claimant's case withdrew and pursuant to the terms of a Court Order, the Claimant stood debarred from relying upon new expert evidence as he had failed to obtain such expert evidence by a certain date.

Summary of Recent Cases – Substantive Law

editorial — Thu, 19 Jan 2012 07:00:20 +0000

DAMAGES

Judge Wrong Not To ApplyThe Decision in Copley v Lawn In A Credit Hire Claim
Sayce v. TNT (UK) Ltd, CA, 19/12/11
The Court of Appeal held that the judge's decision, that the Claimant had unreasonably failed to mitigate her loss in failing to accept the Defendant's offer of a replacement vehicle, was procedurally irregular in that the judge had decided the appeal on a basis contrary to the way in which it had been argued before him and without any indication that he was so minded (namely he did not hear any submissions on whether the Court of Appeal's decision in Copley v. Lawn [2009] EWCA Civ 580 should be followed). Furthermore, the Court of Appeal held that the judge had not been entitled to disregard the decision in Copley, notwithstanding his disagreement with the decision and his doubts as to its reconciliation with previous decisions of the House of Lords.