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Corporate Claims Bulletin April/May 2017 - Quantum, Practice and Procedure and Other News

  • United Kingdom
  • Personal injury claims litigation

31-05-2017

Quantum

Javed v Ageas Insurance (2016)

On the 21 May 2015, the claimant was the driver of a vehicle, when the defendant collided with it to the rear, causing him to be jolted within the confines of his seatbelt.

Liability for the accident was admitted.

The claimant sustained soft tissue injuries to his lower back. Following the accident, the claimant’s symptoms in his back were described as moderate in intensity. He attended his GP by telephone on one occasion and medicated with ibuprofen for more than 10 weeks. He had no time off work but sport was restricted. Symptoms were acute for two months and thereafter mild to moderate in intensity and intermittent in frequency.

At the date of the medical examination 10 weeks after the accident, only tenderness was noted. Six sessions of physiotherapy were recommended. A full recovery from symptoms was anticipated in seven months

£3,110 total damages. Breakdown of General Damages: Pain, suffering and loss of amenity: £2,800

Moira Goodbody v First Bus (2016)

On 10 October 2015 the claimant was travelling on a bus operated by the defendant company. The bus stopped suddenly, began to move forwards then braked heavily again. The claimant was thrown forward, hit her legs on a metal bar in front of her seat and hit her right hand.

Liability for the accident was admitted.

The claimant sustained injuries to her legs, left arm and right hand. She experienced pain and bruising on her legs and left arm. She attended a fracture clinic where she was provided with a splint for her right hand and thumb. She also suffered passenger anxiety.

All symptoms resolved within approximately 12 weeks from the date of the accident.

£2,940 total damages. Breakdown of General Damages: Pain, suffering and loss of amenity: £2,800.

Campbell v Admiral (2016)

On 6 November, 2015, the claimant was the driver of a vehicle, when the defendant collided with it to the rear, causing her to be jolted within the confines of her seatbelt.

Liability for the accident was admitted.

The claimant sustained soft tissue injuries to her neck, left shoulder and lower back. Following the accident, the claimant’s symptoms in her neck, left shoulder and lower back were described as severe in intensity for one week. She medicated with ibuprofen and attended seven sessions of physiotherapy. She had not taken time off work but suffered postural difficulties for a couple of weeks. Sleep was affected.

By the time of examination at two months after the accident, her symptoms had improved albeit there remained slight restriction of movement and tenderness. A full recovery from the back symptoms was anticipated within five months of the accident, with the neck and shoulder resolving within eight months.

Breakdown of General Damages: Pain, suffering and loss of amenity: £3,000

Aivaras Karapetianas v Kent & Sussex Loft Conversions LTD [2017] EWCH 859 (QB)

In March 2012 the claimant suffered a pelvic fracture in an accident at work.

The issue was the extent to which he had recovered and the extent of his residual symptoms.

The presentation of symptoms to the medical experts was inconsistent with the impression from video surveillance captured obtained in 2014. The video evidence showed the claimant engaging in everyday activities on 17 different occasions and appeared to show a relatively normal level of function. However, when examined by medical experts before and after 2014, he appeared to be severely disabled.

At trial, the claimant’s evidence was that he had been getting better up until 2013 -2014, but deteriorated from that point and was now in constant pain, could not drive, and could walk only with crutches.

The pain management consultant accepted the video evidence was a strong indication of the claimant's actual ability, and was unable to explain his pain by reference to the tissue injury, and suggested that he might be suffering from chronic pain syndrome. The consultant neurologist conceded there was no explanation for the claimant's current condition or alleged deterioration since 2014 by reference to the physical injury. He believed that there might be a psychological cause, indicating that the claimant presented as somebody who was depressed and not coping.

There was no psychological evidence before the court.

HELD: The video evidence of the claimant engaging in everyday activities was too great to be explained away on the basis that he had been filmed on random "good days", or days when he had taken large doses of painkillers.

The trial judge found the claimant was not fabricating or exaggerating any residual effects of the accident, or that he was being otherwise dishonest. He appeared entirely worn down and sincerely distressed by his condition, and it was implausible that he was faking that presentation. His case was not one of those rare ones in which, by his conduct, he had forfeited his right to a judgment on the merits.

It was held there was no basis for striking out the claim on the basis that the claimant had been fraudulent Summers v Fairclough Homes Ltd [2012] followed. The defendant was liable to compensate the claimant for the accident and its consequences, but only to the extent that by May 2014 he had substantially recovered from the effects of the injury sustained in the accident.

John Davey v 00017518 (Formerly known as Shaw-Saville and Albion Co LTD) (2017)

Between 1948 - 1971 the deceased worked for the defendant as a labourer in their ship repair business. At the age of 86 the deceased was diagnosed with mesothelioma. He died approximately three-and-a-half years after the onset of symptoms. He had previously been a healthy and active man.

Liability was not disputed and judgment was entered against the employer.

Over the period of three and a half years the deceased experienced breathlessness and developed a large pleural effusion on his left lung. He underwent various procedures including pleural biopsies and an intercostal drain. During the course of his illness he suffered a persistent cough, swelling of the ankles, severe chest pain and dramatic weight loss. During the final 18 months of his life he was unable to go out independently and towards the end of his life his disability and pain became very severe. The prognosis caused him to experience significant anxiety. His life expectancy was reduced by 4.4 years.

Held: The court awarded damages of £150,977.

The judge noted the deceased had been predominantly nursed by his family and had been able to die at home. On this basis the judge found the award for pain, suffering and loss of amenity fell below the very top end of the bracket and awarded £90,000.

The award under the Law reform (Miscellaneous Provisions) Act also included past gratuitous care and support of £11,090, past income dependency of £18,893, past service dependency of £9,523 together with past miscellaneous costs and travel expenses of £1,500, funeral expenses of £3,825.

The award under the Fatal Accidents Act comprised bereavement damages of  £12,980, future income dependency of £2,980 and future service dependency of £186.

Practice and Procedure

Harriet Thompson v 1. Sam Reeve 2. Motor Insurance Bureau 3. Mid Essex Hospital Services NHS Trust

The claimant was involved in a Road Traffic Accident in August 2008. She was 14 years old at the time. There had been negligent treatment of her injuries. Judgment had been entered against the second and third defendant. The issues of the case related to causation and quantum.

The claimant’s schedule of loss put her claim at £347,000. The claimant made a Part 36 offer to settle the whole of her claim against all defendants in the sum of £340,000 on 25 August 2016.

On 28 February 2017 the claimant sent an email to the second and third defendants withdrawing the Part 36 offer. The withdrawal was prompted by the review to the discount rate. This change lead to an increase of the claim to £602,500.

On 2 March 2017 a CMC was held by the court and the defendants confirmed that the Part 36 offer had been accepted. An acceptance was sent by fax and DX.

The claimant submitted an application seeking permission to withdraw the Part 36 offer and for an order to be made confirming the offer being deemed to have been withdrawn on 28 February 2017.

The issue in this case was whether the withdrawal of the Part 36 offer was deemed to be served and therefore effective. The claimant accepted that service of the withdrawal by email was not in accordance with CPR6.20 but submitted that CPR 3.10 could be applied so that service could be treated as valid.

The defendant argued that Part 36 is a self-contained code and therefore CPR3.10 cannot be used. The defendant relied on the case of Sutton Jigsaw Transport Limited v Croydon London Borough Council (2013) in which the court decided that a hand written note accepting a Part 36 offer past over at trial, was not valid service. This did not find favour with the court who treated Part 36 as a mechanism of providing a level playing field. To allow the application to dispense with service would provide an unfair advantage to the party not complying with the rules.

The court held in this case that the claimant gave notice in writing of the withdrawal and there was no dispute that it was received. The court stated that it was the method of service that was defective and as such, they could invoke CPR 3.10 to cure the defect. The court did not feel bound by the Sutton case as CPR3.10 was not relied upon in that case.

The court held that Part 36 is a self-contained code but it is not completely freestanding. The defendant’s had also relied on a rule outside of Part 36 to submit that service was irregular.

The court had the power to make an order under CPR3.10 and therefore treated the notice of withdrawal as 29 February 2017. The court held that it would not be just to impede a proper assessment of damages in the case.

JC & A Solicitors LTD v (1) Andeen Iqbal (2) EUI LTD : JC & A Solicitors LTD v (1) Lucas Lonsdale Smith (2) EUI LTD: JC & A Solicitors LTD v (1) Holly Pits (2) EUI LTD (2017)

The defendant’s insurer admitted liability and paid stage one fixed costs of £400 plus VAT. The three claimants then took no further action and the claim because statute-barred. The defendant’s insurers brought proceedings for recovery of the stage one costs.

Neither the protocol or the Civil Procedure Rules made any express provision for a right to repayment where the claimant took no steps to pursue the claim after stage one.

At first instance, the district judge found that the protocol conferred a right of recovery of the stage one fixed costs in circumstances where a claim was not pursued by a claimant.

On appeal, the Court of Appeal allowed the claimant solicitors to keep stage one costs. The decision reflected:

  1. The protocol proved a clear, detailed and precise code into which the court should be slow to imply terms.
  2. It was an express aim of the protocol that the claimant solicitors should receive payment for the work they have done at the end of each stage regardless of what happens later.
  3. It was very difficult to understand how a stage one costs payment could sensibly be regarded as an interim payment on account or a conditional payment.
  4. It would be contrary to the overall purpose of the protocol to interpret it in a way which encouraged the parties to come to court in circumstances where the court would not otherwise be troubled with the claim.

Comments:

This is a test case where the decision would have a binding effect on at least 400 other cases concerning the same issue.

Other news

Personal injury lawyers to be banned from hospitals from 2018

Changes to the NHS Standard Contract mean that law firms will be banned from operating at healthcare premises from 2018. The NHS paid out £1.5 billion in clinical negligence costs in 2015-16, with legal costs accounting for 34% of that bill, where in lower value claims, it was not unusual to see lawyers' costs exceed the compensation awarded to claimants.

Courts and Prison Bill scrapped

Legislation that would radically change the personal injury market and overhaul the courts has been dropped in the runup to the general election. 

House of Commons leader David Lidington confirmed in parliament today that the Prisons and Courts Bill has been abandoned.

The legislation, which had yet to clear the committee stage, has been under threat since prime minister Theresa May announced her intention to call a general election on 8 June. MPs on the bill committee this morning voted unanimously to scrap the legislation.

Parliament is set to be dissolved at the start of next month and the government will not include the bill in the so-called ‘wash-up’ of legislation rushed through in some form. The Criminal Finances Bill will be kept alive with lords amendments scheduled for next Thursday.

If the opinion polls are correct the decision to scrap the courts bill probably means only a temporary halt to plans for a tariff system for whiplash damages and a ban on pre-medical offers. It also postpones any prisons reform, changes to the treatment of domestic violence victims in court and legislatory changes required for the online court to get the go-ahead.

It is open to the next government to resurrect measures included in the bill, although that is likely to take some time and could be subject to a decision by a new lord chancellor.

The news is likely to receive a mixed reaction from stakeholders: prison campaign reformers will be dismayed that much-needed changes are being put back.

Law Society president Robert Bourns said: 'We are pleased this decision will provide a chance for a re-think on the misguided whiplash reforms which would deny people access to justice and clog up the court system.

'We hope that the new government elected in June will make an absolute priority in re-introducing the proposals providing protection for victims of domestic violence from being cross-examined by their abusers in the family court, as well as statutory provisions to help bring the courts and procedures into the 21st century.'

Personal injury lawyers opposing the bill, however, will be pleased to see the postponement of the October 2018 date earmarked for sweeping changes.

Huw Evans, director general of the Association of British Insurers, said the new government will now have the chance to group whiplash reforms with changes to the method for calculating the discount rate for personal injury payments.

‘The task now is to win the argument for both issues to be dealt with as a priority in the new parliament so there are no major delays to much needed reform,’ said Evans.

‘Issues like the increased cost of insurance for motorists and businesses and the £6bn bill for the NHS are not going to go away, so the incentives for a new government to act promptly are there.’

Court publishes service levels for electronic filing in the Rolls Building

The Courts Charter for the Rolls Building has been revised to refer to the Courts Electronic Filing (CE-File) system which will become mandatory for professional users from 25 April 2017.

Revised Precedent R

The Civil Procedure (Amendment) Rules 2017 (SI 2017/95) were laid before Parliament on 3 February 2017 and will come into force on 6 April 2017 (save for specified provisions that take effect earlier). As part of the 88th CPR update, a revised Precedent R: Budget Discussion Report has now been published.

Referrals through cold calling

President of the Association of Personal Injury Lawyers (APIL), Brett Dixon, has warned that the Solicitors Regulation Authority (SRA) needs to do more to crackdown on law firms acquiring instructions from businesses that generate leads through cold calling. In his view the fact that companies are still making cold calls suggests the market continues to exist even though the SRA's code of conduct prohibited accepting referrals from cold calling.

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