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Personal Injury Law Journal: May 2012

William Hibbert advises claimants and defendants on practice and procedure

Credit hire cases are of course subject to the standard rules of practice and procedure and this article does not attempt to be a review of the Civil Procedures Rules. What it is intended to do is to focus on particular issues that a credit hire dispute is likely to throw up and to explain how to apply the rules of procedure to the advantage of the relevant party, claimant or defendant.

Paul Jones assesses the conflict that may arise due to the expansion of fixed costs

Lord Justice Jackson, like Lord Woolf before him, is very keen on fixed costs. It also seems that the government, the judiciary and the defendant insurance industry as a whole are also very keen on fixed costs. In the view of those who support them, fixed costs are considered to be the solution to many of the ills of the legal costs world and, if only they could be introduced, the legal costs world would be a much better place all round. That is certainly a persuasive argument, but there is always a counter position and a strong argument against fixed costs is that there is always going to be arguments around the margins of when fixed costs will and will not apply. The recent case of Letts v Royal and Sun Alliance plc [2012] illustrates the point well.

David Sawtell examines the growing instance of personal injury fraud

Personal injury fraud is now big business. Last year’s report by the BBC’s Panorama program (coining the phrase ‘cash for crash’) propelled the problem of fabricated and fraudulent personal injury claims into the public consciousness. The escalating cost of motor insurance premiums has become a concern for the press and for Parliament. Rightly or wrongly, the Association of British Insurers has placed a large portion of the blame on fraudulent personal injury claims. In turn, the insurance industry has come under increasing pressure to combat, and to be seen to confront, this ‘rising tide’.

Philip Mead contemplates issues of jurisdiction

Ever since FBTO Schadeverzekeringen NV v Odenbreit [2007], claimant lawyers have been alert to the opportunity to bring claims against foreign road traffic insurers in the courts of the place of the domicile of the victim. This article seeks to provide an overview of the progress made in the case law since that time, and to suggest possible areas of dispute which may arise for determination in the future in relation to personal injury claims founded on a foreign accident.

Wrigleys

Lynne Bradey considers the test for capacity

It is a sad fact that in many personal injury cases, particularly those involving the most catastrophic injuries, the injured person will lose the capacity to deal with their own affairs. Where that is the case, the majority of injured people will lack the capacity to appoint an attorney to deal with their affairs or set up a personal injury trust of their own volition. The involvement of the Court of Protection will be necessary in all but the very smallest cases. To make matters slightly more complicated, the interaction of personal injury trusts and the Court of Protection has been the subject of recent judicial scrutiny.

Julian Abengowe discusses the apportionment of liability when pedestrians are hit by emergency vehicles

In Smith v Chief Constable of Nottinghamshire Police [2012], a mobile patrol police officer was responding to an emergency call in a vibrant Nottingham city centre busy with revellers on a boozy Friday night, when he struck a young girl who was crossing the road in front of him. The Court of Appeal, in allowing the claimant’s appeal against the decision of the recorder below, said that the police officer was driving too fast in the circumstances, had failed to keep a proper look out and was therefore primarily responsible for the accident that left the claimant with permanent brain damage.

Animals Act 1971; ss2 and 5(2)

The Court of Appeal decision in Goldsmith v Patchcott provides further guidance on the application of the Animals Act 1971. In particular, it assists practitioners in the application and scope of the section 5(2) defence and reviews the history and application of s2(2).

Julian Matthews reviews the current position in England in light of the decision of the Privy Council in Helmot v Simon

All lawyers know that the function of damages for personal injury is to put the claimant, so far as is practicable, into the position that they ought to have been in had the accident not occurred. In relation to future losses, costs and expenses, the assessment is inevitably speculative. Under the law, until relatively recently, the only award that a court could make was one of a lump sum. The aim of the court when awarding a lump sum in respect of ongoing future losses is (per Lord Oliver in Hodgson v Trapp [1989] at para 826D):