28 February 2011 - PI Practitioner

The onus on a Highway Authority must not be oppressive:

“Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted, A highway is not to be judged by the standards of a bowling green.”

This generally gave rise to the traditional view that defects of less than an inch should not generally be actionable. This case was distinguished by:

Pitman v. Southern Electricity Board [1978] 3 All ER 901

A defect of 1/8” (approximately 3mm) in depth was held to be actionable. A metal plate by altering the condition and level of the pavement had introduced a new and unexpected hazard which constituted a potential danger to users of the pavement, thus the Judge at first instance had been entitled to find the Defendant liable.

Mills v. Barnsley MBC [1992] PIQR 291

In the leading case in these type of claims, the Court of Appeal said that the three things a claimant must prove in order to succeed in an action under section 41 are:

1. The highway was in such a condition that danger from its use might reasonably have been anticipated in the ordinary course of human affairs;

2. The dangerous condition was caused by a failure to maintain; and

3. The injury resulted from that failure.

Pridham v. Hemel Hempstead Corporation (1970) 69 LGR 523

If a highway authority had, after sufficiently careful consideration, adopted a system of inspection and maintenance that had been properly implemented then it would be likely to make out the statutory defence under section 58 of the Highways Act.

29 February 2008 Summary

NEWSLETTER

LAW JOURNAL

Personal Injury Articles

Credit Hire: Is Internet Rates Evidence Good Enough? - Aidan Ellis, 1 Temple Gardens
As credit hire arguments continue to be fought in relatively low value cases, one issue is gaining increasing prominence on the small claims track. In order to prove spot hire rates, is it necessary for the Defendant to pay for an expert report or even for a witness to attend court?

A v Hoare and other cases: The House of Lords Review of Limitation in Child Abuse Claims - Elizabeth-Anne Gumbel QC & Henry Witcomb, 1 Crown Office Row
In November 2007 the House of Lords heard 6 appeals which raised issues in respect of the limitation periods that apply to sexual abuse claims. The House of Lords gave their unanimous decision on 30 January 2008.

Is The Inspector Always Right? - Adam Dawson, 9 Gough Square
Claimant lawyers are becoming more and more wary of running trip and slip cases against highway authorities. No doubt much of this reticence comes from the fact that these claims are increasingly funded through Conditional Fee Agreements and often before entering such agreement the solicitor/insurer requires prospects to be in excess of 60%.

Clinical Negligence Articles

Suicide - Cara Guthrie, Outer Temple Chambers
A recent decision of the House of Lords clarifies the position where someone sustains an injury which causes him to develop depression and to commit suicide.

Medico-Legal Articles, Edited by Dr Hugh Koch

The Behavioural Analysis of Surveillance Recordings - Robert J Edelman, University of Roehampton
This brief paper describes the three key issues which, it is argued, psychologists (and other experts) should address when analysing surveillance recordings in Personal Injury Claims.

Mediation & ADR Articles, Edited by Justin Patten, Human Law

Making Money Talk – How to Mediate Insured Claims and Other Monetary Disputes - Justin Patten, Human Law Mediation
One of the assumptions that can take place about Personal Injury Mediation is that the skills of a mediator are not that useful due to these kind of disputes mainly being just about money...

Charon QC

Charon QC, Feb 2008
A very British earthquake.

19 October 2006 Summary

NEWSLETTER

LAW JOURNAL

Personal Injury Articles

Stress at work: Are the practical propositions set out in Hatton v. Sutherland still useful? - Andrew Buchan, Cloisters
The practical propositions set out in the case of Hatton v. Sutherland [2002] ICR 613 have been used as the principal guidance for the liability of employers in stress at work cases since 2002. This article examines how matters, both legal and practical, have developed since Hatton and argues that they have now been superseded.

Work-Related Upper Limb Disorders: Establishing Liability - Duncan McNair, Equity House
These claims fall into one of the more unusual categories of P.I. work. Because such an injury (catchily known as a WRULD) is normally a result of a series of movements repeated over a very long time, a variety of complications exist in proving a claim. The purpose of this article is to take the reader through the issues which frequently arise in such cases.

Patients, Litigation and CPR Part 21 - William Hoskins, 1 Temple Gardens
CPR Part 21 provides the procedural mechanism by which a litigation friend can be appointed by court order in appropriate cases. Those cases are proceedings involving children or patients...

Periodical payments: AEI or RPI? Flora v Wakom (Heathrow) Ltd [2006] EWCA 1103 - Eliot Woolf, Outer Temple Chambers & Christopher Wilson-Smith QC, Outer Temple Chambers
An early attempt by the Defendant to strike out a claim relying on the Average Earnings Index as opposed to the Retail Prices Index as the basis for varying the sums payable under a periodical payments order failed. The substantive arguments have yet to be aired but guidance needs to be given as a matter of urgency.

Setting Aside Judgments - Ben Leech, 12 King’s Bench Walk
It is a surprising feature of the Civil Procedure Rules that there is still considerable doubt surrounding the powers available to judges to set judgments aside (other than by way of an appeal), unless the judgment was obtained in default. Ongoing debate about the scope of rule 3.1(7) – the power to vary or revoke an order – is one example...

Update on low speed impacts: Casey v Cartwright - Tim Kevan, 1 Temple Gardens & Duncan McNair, Equity House
Following on from Armstrong v First York and then Kearsley v Klarfield, we now have a third Court of Appeal case in the area of low speed impact cases and whilst in some ways it provides useful, it also adds even more room for arguments at the interlocutory stages.

Maximising and Minimising Damages - William Latimer-Sayer, Cloisters
This article continues the series considering some of the arguments which may be deployed to maximise or minimise commonly occurring heads of loss.

Clinical Negligence Articles

Limitation cases since Adams v Bracknell Forest Borough Council - Cara Guthrie, Outer Temple Chambers
The purpose of this article is to remind readers of the limitation difficulties which claimants face as a consequence of the decision in Adams v Bracknell Forest Borough Council (2005) 1 AC 76, particularly in modest value claims.

Medico-Legal Articles, Edited by Dr Hugh Koch

Sobering Thoughts About Motor Vehicles - Mr J Mackinnon, Cheltenham & Gloucester Nuffield Hospital
Over 30 million people have died in traffic crashes since the very first pedestrian death in 1898...

Critical Appraisal - Patrick Nee, Whiston Hospital
The process of critical appraisal of published material allows the practitioner to determine the validity of a study and to make a judgment as to its applicability to real world situations. Many studies of this type have been criticized in terms of small sample size, unrepresentative crash conditions, incomplete or inaccurate quotation, selection bias and inadequate follow-up.