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Personal Injury Law Journal: February 2013

Bill Braithwaite discusses the signs that should trigger investigation

I remember years ago an American brain injury trial lawyer friend of mine told me that they didn’t approve of the use of the phrase ‘minor brain injury’, because there was no such thing. At the end of last year, the UK Acquired Brain Injury Forum put on a seminar in Leeds, with my chambers and I, with the above theme for the day. I thought it was a great success and I enjoyed all the talks.

Julian Matthews reports on a recent application of the alternative approach to causation suggested by Lord Phillips and Baroness Hale in Gregg v Scott

All clinical negligence practitioners are fully familiar with the difficulties claimants face in establishing that a delay in diagnosis of a malignancy has caused any significant recoverable loss. Since the House of Lords decision in Gregg v Scott [2005], there are few cases where it can be proved that the delay complained of has led to a switch from a patient having a high prospect of cure to a high probability of succumbing to the disease. In most cases even an upstaging of the disease consequent upon the delay cannot be shown in clear terms to have affected the outcome. The arguments that the lesion was particularly aggressive, or the patient particularly susceptible, have a tendency to significantly undermine the implications that may otherwise be drawn from the general statistical data. The problem is exacerbated because with many cancers the relevant studies are based on small sample sizes or a collection of cases over a long period spanning significant changes in the treatment regime applied, so the relevance of the statistical data to the particular case, while superficially helpful, can readily be undermined by careful drilling down into the data sets. Against this background, the requirement for the claimant to prove that any delay in treatment or referral led to a different outcome on the balance of probabilities creates a significant obstacle.

Deirdre Goodwin considers when neurological advice should be sought

The recent case of Dunhill v Burgin highlights the risks of settling cases where the claimant lacks capacity and a litigation friend was not appointed.

Laura Sylvester and Verity Danziger examine the factors that will influence a judge to order a liability hearing

Contained within the court’s general powers of management, in Part 3 of the Civil Procedure Rules (CPR), is the power to direct a separate trial of any issue (CPR 3.1(i)). Consideration of a split trial features throughout the CPR rules and accompanying practice directions, including CPR Parts 26, 28 and 29.

Paul Jones investigates the latest challenge to the provisions

If one considers the entirety of the Civil Procedure Rules (CPR), it would be difficult to counter the argument that CPR Part 36 has created more arguments, case law and general difficulties for litigants, commentators and the courts than any other, possibly more than the rest of the CPR put together. The principal behind Part 36 was very simple: to encourage parties to settle claims rather than contest them and, by judicious use of costs penalties, parties were to be gently encouraged to embrace the overriding objective and settle as many cases as possible. On one level it is has been a great success, as evidenced by the widespread use of Part 36 offers, by both claimants and defendants, in nearly all forms of litigation (and pre-litigation) but this ubiquity has inevitably lead to a whole saga of case law examining the minutiae of the rules and their application. The recent case of Jolly v Harsco Infrastructure Services Ltd [2012] is just one example out of many.

Charles Dougherty and Marie Louise Kinsler look at the scope and impact of the rules

On 11 January 2009, Regulation (EC) 864/2007, on the law applicable to non-contractual obligations (Rome II), came into force in the United Kingdom. From that date, Rome II, where it applies, replaces the previous choice of law rules contained in the Private International Law (Miscellaneous Provisions) Act 1995 (the Act). It is the intention of this brief guide to provide an overview of Rome II.

Discount rate; Damages Act 1996; preliminary issue

In Harries v Stevenson [2012], a claimant tried and failed to escape from the arguably unjust effects that the 2.5% discount rate creates in the current economic climate. The case provides guidance on preliminary issue hearings and confirms that the approach of the Court of Appeal in Warriner v Warriner [2002] and Cooke v United Bristol Healthcare NHS Trust [2003] to s1(2) of the Damages Act 1996 remains good law despite the amendment of the Damages Act by the Courts Act 2003. Warriner, the first case to consider s1(2), and Cooke both involved an application by C to call expert evidence as to the appropriate discount rate. The Court of Appeal held in both that it was not appropriate to take account of a different discount rate or to call this evidence. Dyson LJ in Warriner set the test to be applied by the court when considering s1(2).

Chris Gutteridge contemplates recent decisions of the Court of Appeal on an employer’s liability for injuries sustained by employees who are victims of violence while at work

In the conjoined appeals of Weddall v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs Ltd [2012], the Court of Appeal widened the scope of an employer’s vicarious liability for injuries sustained by an employee at the hands of a colleague.