Petroleum Company of Trinidad and Tobago Limited (Appellant) v Ryan and another (Respondents) (Trinidad and Tobago) [2017] UKPC 30

The respondent Claimants were diagnosed with pulmonary fibrosis and reactive airways disease respectively, which they attributed to emissions of hydrocarbon gases from land under the Appellant’s control. They sought compensation for their conditions by bringing actions in nuisance and negligence against the Defendant. The Defendant had accepted that there had been oil leaks, and had taken steps to prevent further leaks. However, even on the Claimants’ own medical evidence, there were many possible causes of both of their conditions, and a link with hydrocarbon emissions had not been established. The Court of Appeal in Trinidad and Tobago had taken a flexible approach to causation, applying the Fairchild v Glenhaven Funeral Services line of case law: they held that on the basis of policy reasons the Court could and should draw inferences to bridge evidential gaps, and therefore held the Defendant liable on the basis that the emissions were a contributing factor to the Claimants’ conditions. The Privy Council held that this assumption was not supported by the evidence, and that there was no reason to depart from the usual ‘but for’ test of causation in this case. As a result, the appeal was allowed and the claims were dismissed.

November 28, 2017 · Editorial Team · Comments Closed
Posted in: Cases

Armes v Nottinghamshire County Council [2017] UKSC 60

The Claimant had been in the care of the Defendant council between the ages of 7 and 18. During that time she had been placed with two sets of foster parents. She was physically and emotionally abused during her first placement, and sexually abused during her second. In both instances the abuse took place within the foster homes. The Claimant brought a claim in negligence on the basis of two arguments: either the Defendant council owed the Claimant a non-delegable duty of care, or it was vicariously liable for the wrongdoing of the foster parents.

The Supreme Court held that the council did not have a duty of care to provide day to day care to children, which would be too broad. Their duty was to take reasonable care in selecting foster parents and supervising those placements. There had been no negligence in the performance of that duty. Therefore, the claim for negligence in the performance of a non-delegable duty could not stand.

However, the Supreme Court found in the Claimant’s favour on the issue of vicarious liability. Applying the five factors set down by the Supreme Court in Cox v Ministry of Justice in 2016, the Court held that the foster parents were not carrying on an independent business of their own and that the acts had been committed in the course of an activity conducted for the council’s benefit; the council’s placement created a relationship of authority and trust between foster parents and children, rendering the latter vulnerable to abuse; the council exercised a significant degree of control over what foster parents did and how they did it; and that councils are more likely to be able to satisfy any compensation granted to victims than foster parents with insufficient means. The Court emphasised that when assessing vicarious liability, the role of control should not be exaggerated and that vicarious liability may be imposed in the absence of close supervision.

November 15, 2017 · Editorial Team · Comments Closed
Posted in: Cases

Breaking Down First and Second Degree Burglary Charges in California

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According to the California Penal Code 459 the act of burglary involves breaking and entering a property in order to commit theft or felony. This could refer to an apartment or another place of residence, a business office, a cargo container and even storage units and tents.

However, California law recognizes two degrees of burglary. But what constitutes a first degree burglary or second degree burglary? This depends on several factors, including the type of property you entered and the type of theft committed: petty or grand.

In this article, we break down the difference between first and second degree burglary.

First Degree Burglary

The first degree burglary involves breaking into a place of residence or dwelling, like a house or an apartment. This type of burglary usually involves a harsher sentence than a second degree burglary.

A person facing first degree burglary charges can be sentenced by two, four or up to six years in prison. Since this type of burglary marks a strike on a criminal record, a convict has to serve 85% of their sentence.

However, if they were convicted with a prior strike, they will have to serve a double sentence and at least 80% of this sentence. Finally, if this is the third strike on your criminal record they are facing 25 to life.

Second Degree Burglary

Second Degree burglary involves breaking into a structure that does not serve as a dwelling, like an office with the intent to commit theft or felony.

Since this type of burglary is considered a wobbler, the prosecution can choose to treat it whether as a felony or a misdemeanor. The prosecutor’s choice depends on a number of factors.

If the burglary is filed as a felony, a convict could face a sentence of three years maximum. If it is filed as a misdemeanor, a convict is looking at a sentence of up to 364 days.

The factors that help determine how to file a second degree burglary involve whether a person charged has any prior convictions, what type of crime they committed upon breaking and entering and whether there’s enough evidence to convict them.

Naturally, a grand theft will lead to a larger sentence. You can read more about what constitutes a grand theft here: https://www.monderlaw.com/pratice-areas/theft/grand-theft

What are the Possible Defenses?

The prosecution has to present the evidence proving that the accused intended to commit a crime upon breaking and entering for both types of burglary charges. Therefore, there are several possible defenses against the allegations.

  • The defense could try to prove that the defendant was not aware of the party’s intent to commit a crime upon burglary.
  • The defendant did not commit an act of burglary, leading to a false accusation
  • The defendant did not intend to commit a crime
  • The defendant was intoxicated and couldn’t form intent.
  • The defendant was invited by an owner or a resident of the structure
  • The police violated the defendant’s constitutional rights.

If you are accused of burglary in San Diego, contact Monder Law Group at 424 F Street, San Diego, CA, US; 619-405-0063.

November 6, 2017 · Editorial Team · Comments Closed
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Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303

Mr Thomas brought a professional negligence claim against his previous solicitors for allegedly settling his claim in respect of Vibration White Finger for an under-value. He argued that he had not received proper advice in respect of special damages (in particular in respect of gratuitous care and assistance received) and so had accepted an offer made in relation to general damages alone.

The Recorder at first instance dismissed the claim and found that there was no actionable breach of duty; the solicitors had advised generally in respect of special damages which was enough.

The Claimant appealed on the grounds that the solicitors had been in breach by failing to provide an approximate value of the special damages claim, failing to inform him about the availability of interim payments and treating comments regarding evidential difficulties as concluding the special damages claim.

The Court of Appeal dismissed the appeal finding that the failures identified did not constitute a breach of duty, as the solicitors’ retainer merely required the solicitors to give advice about possible general and special damages claims. That had been done. It was significant that the claim was a low-value one which the solicitors were running as part of a high volume fixed-costs practice and the Claimant had instructed the solicitor not to pursue the claim for special damages. In those circumstances the solicitors could not be criticised for failing to ‘go the extra mile’. There had to be a sensible limit on what solicitors could be expected to do in those types of cases.

October 28, 2017 · Editorial Team · Comments Closed
Posted in: Cases

Bizarre use of a No Win No Fee agreement

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The below article on no win no fee from solicitors is from https://www.irelandpersonalinjuryadvice.com/no-win-no-fee-solicitors-dublin/ more information can be obtained by contacting the law firm directly.

No Win No Fee agreements are widely used by the legal profession in Personal Injury and Medical Negligence claims for compensation for injury suffered in accidents. It is also used by the law firms in employment law and just recently it has appeared in litigation. In recent times it has been associated with the search for the lost Malaysian Airlines flight 370.  The aircraft which disappeared on March 18th, 2014 was a Boeing 777 and was on a flight from Kuala Lumpur to Beijing when it vanished from radar screens after a short while from taking off. There were 239 people on board.

A number of governments searched the oceans for the missing airplane from shortly after it disappeared until January 2017. Although a few parts from the airplane have been washed up in the western Indian Ocean there has been no sign of the airplane or where even it came down.

The mystery has continued of what happened to the airplane and with many questions about the last flight of the aircraft unanswered an American company called Ocean Infinity stepped in. What they have said to the Malaysian government is intriguing. They have said that they will continue to search for the aircraft on a No Win No Fee basis and that they will only get paid if they find the missing aircraft.

And they will get well paid although no exact details of the recent contract with the Malaysian government have been released it is believed that Ocean Infinity stands to earn in excess of a $150 should they find the missing aircraft. But in the meantime, Ocean Infinity will bear all the costs of the search operation until either they find the aircraft or they stop looking for it. Sceptics’ are of the opinion that they either know where the aircraft is or they know the rough area where it is. We will see soon enough!

What is a No Win No Fee agreement? A No Win No Fee agreement sometimes known as a No Win No Foal agreement or a Contingency agreement says that you pay nothing, either upfront or during the process until your case is won or as in this case, the aircraft is found. In some ways, it is a reward for success for the person or organization that does all the work. In some jurisdictions, a premium can build into the reward for having taken the risk on winning. In other jurisdictions, this is not allowed in the legal area where solicitors and barristers may only charge for the actual work done. Indeed the Law Society of Ireland who regulates all solicitors in Ireland requires the following statement or disclaimer on all advertising and websites “In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.”

For sure anyone who offers a No Win No Fee agreement must believe that there is a fair chance of winning. Ocean Infinity must have an idea as to where the aircraft is the size of the Indian Ocean alone makes looking for a needle in a haystack fairly easy!

For the peace of mind and for some closure for the family and friends of the people aboard flight 370 we certainly hope that they find the aircraft.

 

 

October 25, 2017 · Editorial Team · Comments Closed
Posted in: News

Common Personal Injuries Sustained at Work

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The companies and organizations for which we work do their best to keep all their employees safe from harm. Of course, accidents can happen. Accidents may be more common in certain job fields, but we all know that accidents can happen to anyone and anywhere. So what can we do if disaster does strike in the workplace? If the accident was easily preventable or due to carelessness of another of the company, and you do not feel that you have had been properly compensated, you may have a personal injury lawsuit on your hands. Your friends at Morris King & Hodge are here to help you out with your personal injury case. Talk to them about your situation and ask any questions you may have regarding taking a personal injury case to court. Here is a list of the top ten most common injuries sustained in the workplace.

  1. Overexertion: These injuries happen mostly in jobs where you find yourself doing a lot of heavy lifting or are consistently on your feet. While an hour or so a day of this kind of exertion is healthy, doing it for four or more hours each day is going to lead to wear and tear of the muscles, tendons and bones.
  2. Slipping or Tripping: Even if you do not fall, you can still injure yourself from slipping or tripping simply due to the unnatural motion that your body many take to rebalance itself. If you do fall, there are numerous injury possibilities from broken bones and teeth to torn muscles and tendons.
  3. Falling from a Height: When your job requires you to be on a ladder either to complete a task or to put equipment or products in storage, gravity can become a brutal enemy. Falling from a height makes your impact with the ground that much greater and therefore more dangerous.
  4. Injury due to Reaction: We react to everything, it’s one of Newton’s Laws. Reactions can put us into an unnatural position for our bodies or may pull or strain our muscles too far.
  5. Falling Objects: Falling objects can happen anywhere, but are especially common on construction sites. If your job does not require you to wear a helmet and something falls and hits you, this can cause far greater injury than imagined.
  6. Walking into Objects: We can often be careless when it comes to looking where we are going, especially with our smartphone addictions. Sometimes though, there may be a fluke tile hanging from the ceiling or a floor board sticking out; unnatural and unexpected. These can cause you bang your head or fall.
  7. Vehicle Accidents: Many companies rely on truck and delivery drivers to get product where it needs to go. Road safety is important, but we cannot control conditions or other drivers. These accidents can be highly catastrophic.
  8. Entanglements in Machinery: Not enough sleep or not looking can cause a machinist to accidentally get caught up in a machine. These are extremely dangerous accidents that can result in lost limbs or worse.
  9. Repetitive Motion: These motions are similar to overexertion but stem from having a body part in the same attitude for too long of times. Injuries include cataracts and carpal tunnel.
  10. Violent Acts: No one is perfect and everyone has different opinions. However, sometimes people are not so good at articulating when it comes to differences. These violent acts tend to stem from work politics.

October 25, 2017 · Editorial Team · Comments Closed
Posted in: News

Tips For Hiring a Medical Malpractice Lawyer

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The American dream of liberty and justice for all. It is a beautiful idea planned out centuries ago by the founding fathers. Their system, everyone’s right to a fair trial with a judge and a jury of their peers, is a system still practiced today. While the cases have changed and evolved through the years, the outfit of the system has not. Despite this being an age old system, it can still be difficult to navigate. When you are not a lawyer or a judge, you do not spend much time within the justice system. If you are looking for medical malpractice lawyers and are not exactly sure where to start, these tricks of the trade should help you when it comes to choosing any lawyer.

Ask About

You would never purchase a new car or a washing machine without doing your research, so why wouldn’t you research a lawyer? Asking around to friends and family about lawyers or law firms that they have worked with in the past. Ask about the kinds of cases they dealt with and what their experiences with those lawyers and firms were like. If none of your friends or family has dealt with the justice system, online forums can be helpful as well. Search for local forums that discuss lawyers in cases similar to your own.

Do Your Research

Merely hearing stories of others’ experiences with certain lawyers and firms will not get you all the information that you need before hiring on a lawyer. Look up any lawyers that you have an interest in on their websites. A lawyer’s web page should let you know the basic information surrounding the lawyer such as their contact information, their credentials, what types of cases they tend to take, their rates, and the like. With this information, you can narrow your potential attorneys to a mere few before taking the plunge into a final decision. When it comes to your budget, many lawyers will be flexible with a pay plan that will work for you.

Book a Consultation

Many lawyers offer free consultations, but even if the lawyers that you have your eye on charge a fee, book yourself a consultation. A face to face meeting will give you an idea of how you might work with this lawyer, whether you feel comfortable around him or her, and will let you see if they seem truly passionate about your case. You cannot learn all that from a phone call or website! This is also an opportunity to discuss your budget, learn about the evidence you may need to build your case, and learn that lawyer’s communication policies and any other policies he or she may have. Your case is in your hands, pick the best lawyer for your team!

October 18, 2017 · Editorial Team · Comments Closed
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Darrell Baker (A Protected Party by his Litigation Friend Kerry Baker) v British Gas Services and J&L Electrics (Lye) Limited [2017] EWHC 2302 (QB)

The Claimant, an electrician, brought a claim for personal injuries arising out of an electric shock he sustained while repairing a light fitting. As a result of the shock he suffered a cardiac arrest and fell from a height, suffering a severe brain injury. The trial on liability centred on how the defect arose, and therefore if either Defendant was liable. D2 installed the wiring in 2004 and D1 was responsible for its maintenance and inspection (and was the Claimant’s employer). The Judge found the ballast in the light fitting was original; the light fitting itself had not been removed; and, there was no likely explanation for the junction box to have been rewired. On the balance of probabilities the Judge was thus satisfied the fault arose at the time of installation. D2 was therefore liable. D1 carried out periodic inspections in 2009 and 2010 and failed to identify the fault. That was negligent, notwithstanding TUPE transfer issues that arose in the intervening period. The Judge found no contributory negligence attached to the Claimant. Although the experts agreed use of a volt stick would have been appropriate in the circumstances, his employers did not require him to use one. Therefore he was not acting in an unreasonable or unsafe manner. It was agreed that if the Judge found that D2 were responsible for the original wiring error, they would bear a greater share of liability. In the circumstances the Judge apportioned liability 25% to D1 and 75% to D2.

October 16, 2017 · Editorial Team · Comments Closed
Posted in: Cases

Top 5 Workplace Injuries

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The safety of workers is very important in every workplace. Workers dedicate their time and energy to ensuring the success of the organizations they work for and it is only fair that the organizations provide them with a safe environment to carry out their duties. A failure to do this carries serious legal consequences and to avoid them, organizations have gone the extra mile to make their offices and workstations safe for doing business. This has reduced the accidents in most workplaces and workers are able to go about their assignments in peace. This, however, doesn’t mean that accidents are non-existent at the workplace. They still happen and cause injury and harm to the workers as they are going about their duties. Off all the injuries that are common in the workplace, here are the top 5.

  1.      Slips and falls.

Slips and falls are very common in the workplace. They are caused by among other things slippery floors, poorly arranged office furniture and torn carpets. A lack of concentration as workers go about their duties also results in slip and fall injuries. To prevent slip and fall injuries, office workers should put up appropriate signs when cleaning the office. Furniture in the office should also be arranged properly and the torn carpets replaced appropriately. If you slip, trip or fall and get injured at the workplace, your supervisor should help you get the workers compensation that is due to you as a result of the injury. To hasten the process, you should find a great slip and fall lawyer to help you with your case.

  1.      Muscle strains.

Workers strain their muscles when they overstretch as they are reaching for something in the office. They also strain their back and neck muscles when they sit on their desk for the entire day doing computer work. Lifting heavy items also cause muscle strains and even tears. To prevent such injuries, workers are advised to learn the best techniques for handling heavy loads. Those who work in cubicles should also take regular breaks and stretch their muscles.

  1.      Falling objects.

Falling objects cause a lot of injuries at the workplace. It could be books falling from a shelf or even the entire shelf falling on you. Falling objects inflict a lot of pain and could result in external and internal injuries. Workers are advised to set up their stations away from falling objects and shelves. The shelves should also be fastened appropriately to effectively hold the items placed on them.

  1.      Cuts and bruises.

Chefs and other professionals working in the service industry are at risk of these injuries. Kitchenware such as knives can cut and injure an individual when they are not handled or stored appropriately. To avoid such injuries, workers should store sharp items properly when they are not in use.

  1.      Toxic fumes.

Inhaling toxic fumes causes respiratory challenges when it is allowed to go on for a long period of time. Employers should provide their workers with the protection gear such as gloves and dust masks to prevent them from inhaling toxic fumes from chemicals.

October 13, 2017 · Editorial Team · Comments Closed
Posted in: News

Common construction worker injuries

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All jobs come with some risk. However, construction workers face more risk than most. Every day that they show up to work, there is a chance of injury. And although most employers try to prevent workplace injuries, it’s impossible to guarantee that incidents don’t occur. Find out what are the most common risks for construction workers.

The Dangers of Construction

OSHA has designed many safety nets for construction workers. They make sure that employers provide all the necessary training and equipment necessary to ensure the safety of their workers. However, not all employers follow through. And even when they do, accidents can happen. You might find yourself in the middle of a worker’s compensation incident. Here are some of the most common injuries that construction workers encounter.

  1. The collapse of a trench

Working in a trench is risky business. There are many things that can go wrong and cause a trench to collapse. When a collapse occurs, the results can be devastating. A worker can have a limited air supply which could result in brain damage. The collapse could also result in crush injuries. Often, crush injuries result in long-term consequences. You might find yourself unable to work a physical job because of your injuries. In extreme situations, the collapse could result in death.

If there is a trench collapse, you deserve compensation. It’s a terrifying incident with extreme consequences. You should contact a lawyer to file for worker’s compensation.

  1. Falling from high places

Often, construction workers find themselves working in a high place. You might be on top of a billboard, on a ladder, or on the roof of a tall building. No matter where you are, there is a chance of falling. There are many precautions that you can take while you’re working up high. With the proper safety equipment, you could limit your chance of injury. However, it’s possible that the equipment will fail or an unforeseeable event will occur. You could fall, and the results could leave you with a serious injury.

The most common falls in construction come from falls off of scaffolding, machinery, or buildings. I scaffolding falls, the equipment is usually to blame.

  1. Repetitive motion injuries

When you perform the same motion over and over again, you put your body at risk. Over time, your muscles and soft tissues become damaged. Those muscles and tissues are usually in body parts that you need for mobility. When you injure them, you could be unable to get around. You may find yourself unable to work and in need of a costly surgery. This could leave you with a pile of debt.

Handling Your Worker’s Comp Claim

If you suffer from any injury on the job site, you may be eligible for worker’s compensation. The only way for you to determine your eligibility is to speak to a lawyer. As a construction worker, you have a dangerous job. But that doesn’t mean that you deserve to pay for medical bills that you incur on the job site. Don’t hesitate to call a lawyer for help. You may be able to get compensation for your construction injury.

October 12, 2017 · Editorial Team · Comments Closed
Posted in: News