PI Brief Update

25 January 2007 - PI Practitioner

PERIODICAL PAYMENTS: WHEN RPI IS INAPPROPRIATE
Thompstone v. Tameside and Glossop Acute Services NHS Trust [2006] EWHC 2904 (QB)
When a claimant seeks an order for periodical payments, he can ask the court to order them to be increased otherwise than in accordance with the RPI. However, the burden of showing that the RPI would be inappropriate is on the claimant.

In this case, the claimant argued that the sums required to pay for care and assistance would increase faster than the RPI, as the earnings in that field would probably grow more quickly. The court was satisfied that ordering RPI increases would under-compensate the claimant, and awarded an increase matching the 75th percentile of a survey of earnings of care assistants.

DECISION BASED ON ARGUMENT NOT IN PLEADINGS: WRONG
Dziennik v. CTO [2006] EWCA Civ 1456
It is wrong for a judge to base his decision on a point not raised either in pleadings or in argument.

The defendant argued that the claimant was contributorily negligent in relation to an accident on board a ship. The claimant was injured when he removed a sensor unit from a coolant line filled with very hot water, which escaped and burned him. He had believed a safety device was in place to prevent this. The defendant pleaded and argued that the claimant was contributorily negligent for failing to follow a procedure for the operation. The judge found the claimant 60% to blame because it was irrational to believe a safety device was present, an allegation which had been neither pleaded nor argued by the defendant. The finding was therefore overturned on appeal.

PHARMACISTS’ NEGLIGENCE: THE STANDARD REQUIRED
Horton v. Evans [2006] EWHC 2808 (QB)
A pharmacist dispensing prescribed medication is required to consider whether the medication is suitable for the patient. In this case, an increase in the dosage of a regularly prescribed drug should have caused the pharmacist to question whether the prescription reflected what the doctor wanted, or whether it was a mistake.