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Personal Injury Law Journal: March 2015

Bill Braithwaite highlights the major trends in personal injury law that have drawn his interest in the last year, as well as the importance of practical case experience

It’s always interesting for me to look back and see what caught my attention in the area of personal injury law over the last few years. Last year I wrote on many topics; here is a selection.

Anna Macey considers a recent case which highlights the importance of statutory interpretation

A child (CP) was born with Foetal Alcohol Spectrum Disorder (FASD), as a consequence of her mother’s excessive drinking during pregnancy. The local authority caring for her sought to gain compensation on her behalf from the Criminal Injuries Compensation Authority. The Court of Appeal had to determine if CP was entitled to compensation, which in turn depended on whether her mother had committed a crime of violence, as required by the CICA scheme.

Paul Jones reviews the attempts that have been made to give guidance on proportionality in costs judgments

In 1667, the English poet John Milton published Paradise Lost, a poem narrating the ultimate battle between good and evil. In addition to any parallels one may choose to draw between this epic struggle and modern day personal injury litigation, it contains the familiar aphorism, ‘Easy is the descent into Hell, for it is paved with good intentions’ and one could certainly apply that sentiment to one of the central tenets of modern day litigation, proportionality.

Causation; multi-defendants; asbestos

The High Court ruled on the principles of causation to be applied to a multi-defendant case of asbestos-induced lung cancer. Mr Justice Jay decided that the modified Fairchild test of causation applied to lung cancer cases and that employers were liable only to extent of the risk created.

Julian Matthews discusses two recent cases which illustrate the potentially far reaching consequences of the rules of causation of damage

The ‘egg shell skull rule’, under which a tortfeasor must take their victim as they find them and is liable for all of the consequences of negligence, is very familiar to all lawyers, but often forgotten when arguing about the extent of a defendant’s liability. No defendant, however negligent, regards it as fair that the compensation payable will be assessed by reference not only to the direct and immediate consequences of their breach of duty, but will also include compensation for damage, deficits or disadvantages for which they have no responsibility at all. The courts have, over many years, wrestled with this issue, and the results have not been wholly consistent. In my last article I considered this in the context of the doctrine of ‘material contribution’ as it applies to primary causation. Thus, in relation to industrial injuries such as noise induced deafness, the defendant is only liable for such part of the injury as related to the noise exposure for which he was responsible on a time/dose basis: Thompson v Smiths Ship Repairers (North Shields) Ltd [1984]. A similar approach was adopted in relation to asbestosis: Holtby v Brigham & Cowan (Hull) Ltd [2000]. Where, however, an injury is deemed to be indivisible, and incapable of apportionment, material contribution applies, and the claimant is entitled to recover for the whole of their loss, which necessarily includes injury that may well have caused by others, or by environmental factors, for which the defendant could have no responsibility: Wardlaw v Bonnington Castings [1956], and McGhee v National Coal Board [1972].

Stephanie Prior examines the latest changes to the Civil Procedure Rules

The Civil Procedure Rules came into force in 1999 and apply to all cases after 26 April 1999. These rules replaced the Rules of the Supreme Court and the County Court Rules.

Tim Trotman outlines the effect of the Enterprise and Regulatory Reform Act 2013 on personal injury litigation

Where a breach occurred before 1 October 2013, regulations introduced under the Health and Safety at Work Act 1974 (HSWA 1974) give rise to civil liability for injuries under s47(2) (breach of a duty imposed by health and safety regulations shall so far as it causes damage be actionable except in so far as the regulations provide otherwise.). A report by Professor Lofstedt of November 2011 did not recommend radical change to the regulatory scene for health and safety at work. However the present administration begged to differ and s47(2) of HSWA 1974 was amended by s69(3) of the Enterprise and Regulatory Reform Act 2013 (ERRA 2013) so as to read: