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Personal Injury Law Journal: October 2013

Andrew Morgan , who specialises in asbestos claims, looks at the hidden cost of the recent reforms

The insurance industry can be forgiven for looking like the fat cat that got the cream. The previous government largely respected the industry’s position on a range of issues relating, in particular, to personal injury litigation, and attempts to reform and curtail the cost of injured people bringing claims continued steadily. The insurers’ agenda, that the quality of the claims process should be secondary to costs, was never seriously questioned by that government. The judiciary too, by and large, lined up behind the industry’s core proposals.

Georgia Hicks discusses Stylianou v Suncorp and Rome II the Applicable Law in International Personal Injury Law

The recent case of Stylianou v Toyoshima [2013] has addressed three important areas in the developing field of international personal injury law. Firstly, it has confirmed the court’s broad discretion in relation to jurisdiction. Secondly, it has demonstrated the potential for Article 4(3) to be used as an ‘escape clause’ where a manifestly close connection can be shown to the claimant’s home country. Thirdly, it has raised the questions as to whether ‘the assessment of damage’ (Article 15(c)) should be determined by rules of law (the applicable law) or evidence and the procedural law.

Paul Jones reviews the approach of the court to a qualified one-way costs shifting agreement

Qualified one-way costs shifting (QOCS) was one of the key reforms of the Jackson Report and it was seen as a necessary quid pro quo for the abolition of the recoverability of after-the-event (ATE) insurance premiums. The recent case of Vava v Anglo American Africa Ltd [2013], while based on the old law, gives an interesting perspective on the whole issue of one-way costs shifting, particularly in large personal injury claims.

Anna Macey considers the lessons to be learnt from West Midlands Travel Ltd v Aviva Insurance UK Ltd

This Court of Appeal case considers the principles upon which general damages should be calculated when a vehicle is being repaired but where an alternative vehicle is available as a replacement at no additional cost.

Andrew Hogarth QC analyses the recent approach of the courts to compensate primary and secondary victims

Most would agree that the approach of the courts to the recoverability of damages for what lawyers describe as ‘nervous shock’ is in a mess. The starting point for any discussion on the topic is the statement by Lord Wilberforce in McLoughlin v O’Brian [1983] that:

Relief from sanctions; CPR 3.9; overriding objective

Practitioners have had to adapt to a multiplicity of reforms to the civil litigation system over the past six months, the latest offering being the expanded portal to all road traffic accident, employers’ liability and public liability cases worth less than £25,000. It seems that yet more changes are on the horizon with the government’s consultation on reforming mesothelioma claims due to end on 2 October 2013.

In the concluding part of their two-part article Jonathan Mitchell and Georgina Cursham examine the issues that arise with accidents on demised premises

In last month’s article we considered the liability of landlords at common law and under statute. A further issue to consider is limitation.