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Personal Injury Law Journal: April 2012

Robert Weir QC explores the tactics and pitfalls involved in running a personal injury case he recently settled for a locked-in client.

When I first met Miss W in 2006 she was lying on her back, attached to a ventilator, in a small, overheated room at Stoke Mandeville Hospital. Miss W had suffered possibly the worst kind of injury: she was tetraplegic and had a brain stem injury, which meant that she could not speak, eat or drink. At the same time her mental faculties were wholly unimpaired. She was 21 years old, locked-in and able only to communicate by blinking and wrinkling one side of her nose.

Philip Turton provides practical advice for claimants and defendants

The expiry of a limitation period relating to a personal injury action does not extinguish the claim, but bars the remedy only. Thus, pleading the relevant facts requires care and attention, whether acting for a claimant or a defendant. An understanding of how the defence arises, and to what the constituent parts of ss11, 14 and 33 relate, is key to avoiding procedural error, which may otherwise threaten success on the point. While, in certain circumstances, a defective pleading might be overlooked or swept up in a procedural desire to dispose of cases effectively, a solicitor or barrister runs a risk, if the pleading is not clear, of failing to place before the court the precise issue which requires adjudication, with consequential penalty in the form of adjournment, costs wasted or, worse, avoidable failure on the whole issue.

Anna Macey considers the limits of recovery

In a recent case the Court of Appeal held that ex turpi causa did not prevent a passenger seriously injured in a car being used to transport illegal drugs from succeeding in liability, but that no compensation was due because of an exclusion clause in Article 75 of the MIB agreement.

Vaughan Jacob reviews the practical implications of the decision in Bent v Highways and Utilities Construction

On 24 November 2011, the Court of Appeal handed down judgment in the above conjoined appeals. Both appeals concerned the amounts recoverable by a claimant who is the innocent victim of an RTA and who could have afforded to hire a replacement car without credit terms. Lord Justice Aikens gave the leading judgment and provides a useful summary of the principals involved in determining the basic hire rate at paras 29-41. The judgment has further clarified issues relating to interest on credit hire charges and how to claim the ‘spot hire’ rate.

Colm Nugent contemplates the burden of proof required to establish the statutory defence

Highway tripping cases fall into a fairly regular pattern. First there is the tussle over the size of the defect concerned. This tends to involve a variety of measuring devices set against the (alleged) defect and photographed through what looks like a heavy gauze by someone with an apparent hand-tremor.

Roger Harris discusses the implications of the latest authority

It is now almost ten years since the Animals Act was considered by the House of Lords in Mirvahedy v Henley [2003]. At the time the insurance industry feared that the decision would result in a deluge of successful claims. The reality has proved less straightforward. Since Mirvahedy, the Court of Appeal has had to consider the Act on several occasions, most recently in Goldsmith v Patchcott [2012]. Each decision has highlighted the hurdles claimants continue to face under the Act. This article considers the most troublesome of those hurdles.

Paul Jones highlights technical challenges to the MoJ scheme that will face an uphill struggle

As the debate surrounding reform to the legal costs system continues, fixed costs are often held out as a solution to many of the woes of the existing system and, in the area of Road Traffic Accidents, we have seen not one but two fixed costs regimes in the last ten years. RTA Predictable Costs (CPR 45 Part II) has seen its fair share of case law but the MoJ Fixed Costs regime (CPR 45 Part VI) has seen very little in the way of reported case law – possibly indicative that all is working just fine. However, the recent case of Patel v Fortis Insurance [2011] may give some idea of the arguments going on behind the scenes.

Matthew Hoe examines the latest guidance for assessment

With almost 800,000 road traffic accident claims involving personal injury each year (CRU Statistics), it is a sad fact that some of the accidents involve children. Thankfully, in many cases, with the child inside the protective shell of a car and maybe in a booster seat, the injuries, if any, are minor. Recovery is quick. In some cases, after the initial upset, younger children may shortly not remember the accident at all.