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Personal Injury Law Journal: December 2014/January 2015

Paul Jones examines an emerging area of dispute in the application of QOCS

One of the most significant reforms ushered in by the Jackson report was Qualified One Way Costs Shifting (QOCS). This quid pro quo for the abolition of recoverability of ATE premiums provides personal injury claimants with limited protection from the risk of having to face the costs of a successful defendant and, to date, the issue has given rise to very few reported cases. The recent case of Michael Landau v Big Bus Co and Pawel Zeital [2014] is therefore something of a rarity that clarifies a narrow but important point regarding QOCS in appeals.

One of the more intellectually challenging concepts in the field of clinical negligence is that of material contribution. Julian Matthews highlights two recent cases which illustrate some of the issues which arise

There are certain principles in the law of tort which cause external observers to question whether the rules provide common sense answers to common problems. There are two related principles in particular that seem to lead to answers that, from one viewpoint, are counter intuitive. One is the denial of recovery in claims for a lost chance of a better outcome, particularly in cases of delayed diagnosis of cancer: Hotson v East Berkshire HA [1987]; Gregg v Scott [2005] (in which two of the five members of the House of Lords suggested that the denial of recovery favoured by the majority was ‘irrational and indefensible.’) The other is the principle of material contribution, first enunciated in clear terms in Bonnington Castings v Wardlaw [1956], but more recently upheld as applying to clinical negligence cases in Bailey v MOD [2009].

Taking the strain; foreseeability in occupational stress claims

This case provides important confirmation of the difficulties in establishing liability for injury arising from occupational stress.

In the first of two articles Hannah Godfrey considers the tactical and practical considerations associated with multiple defendant claims. The next, in the February issue, will review the substantive law

There is a tension in these cases between two major risks you need to balance:

Nick Leech and Andrew Sands build on their article in October’s issue with further exploration of the traditional lump sum award versus periodical payments

Despite all that has been written about the present discount rate and its impact upon the calculation of lump sum awards the reality can be a legacy of lifelong uncertainty for claimants. An attempt to explain how multipliers include factors such as discount for accelerated receipt, the vicissitudes of life, and an assumed rate of investment return is highly likely to result in blank expressions. Hans Christian Andersen would be hard pushed to dream up such an unlikely and mysterious tale. On that note, please do not attempt explaining the discount rate, multipliers or multiplicands to your children.

Lucy Boyle outlines the details of the new compensation system for asbestos victims

The Diffuse Mesothelioma Payments Scheme (the scheme) has been making payments to eligible mesothelioma sufferers since July 2014. The scheme was established by the Mesothelioma Act 2014 (the Act) and is detailed in the Diffuse Mesothelioma Payment Scheme Regulations 2014 (the regulations). Gallagher Bassett is the scheme administrator.

Guy Pomphrey discusses the new criminal offence of wilful neglect

The public inquiry into the events at Mid Staffordshire NHS Foundation Trust led to Sir Robert Francis calling for a cultural shift in attitude within the NHS to put patients first. The government has since consulted on a number of responses including a new criminal offence of wilful neglect. This article reviews how healthcare professionals and organisations can be prosecuted under gross negligence manslaughter and corporate manslaughter offences and how a new offence of wilful neglect might operate alongside this.