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Personal Injury Law Journal: October 2015

William Waldron QC highlights some of the mistakes experts make in court and the importance of impartiality

Recently, I sat as a recorder in the County Court on a tolerably complex, hotly-disputed, six-day trial. Medical evidence was central to resolution of pivotal issues in the case. Each side criticised the experts instructed by the other; in some instances, not without justification. For example, one liability expert stated that ‘he would seek to demonstrate’ that his ‘theory’ was correct. Throughout the remainder of his report he appeared to be engaged in arguing the claim from the perspective of the party instructing him. Similar observations could be made about the written report of his opposite number. The impression made was less than positive. In fact, in large measure, when they gave evidence each was willing to make concessions and adopt a rather more impartial stance than a reading of their written opinions might have suggested would be the case. Nevertheless, the experience caused me to reflect upon the way in which expert evidence has the potential to influence cases, for better or worse; whether some experts truly understand the nature of the task upon which they are engaged; and just what makes a good expert.

Andrew Hogan sets out the need to adhere to the restricted scope of an oral hearing

I have now undertaken more than two dozen oral hearings, in the aftermath of a provisional assessment, when the paying party tries to make its points of principle, or the receiving party tries to claw something from the wreckage.

Rebecca Jones outlines Mr Brian Kite v The Phoenix Pub Group (2015) where the judge had to decide if a claimant’s application was fair

There are many areas of the QOCS regime where the approach of the courts remains uncertain in the absence of detailed guidance in the CPR. One such area arose in a recent case involving an adjourned strike out hearing and the service of a late-in-the-day notice of discontinuance.

Duty of care; providing accurate waiting times

Mr Darnley was attacked by persons unknown and struck on the head. He felt unwell. He was persuaded to go to hospital. He was booked in, but left 19 minutes later, without having seen a clinician. He says he was told that he would be waiting 4-5 hours, the hospital evidence was that a triage nurse would have given an estimate of 30 minutes but the court accepted that the 30 minute estimate was not given. The maximum allowable time for seeing Mr Darnley would have been 30 minutes. Sadly Mr Darnley’s condition deteriorated. The judge held that (a) if Mr Darnley had been told of a 30 minute wait then he would have remained at hospital for treatment (b) on the agreed causation evidence Mr Darnley would then have been treated appropriately promptly at hospital and (c) consequentially made an essentially full recovery but (d) the nature of Mr Darnley’s presentation at hospital was not such as to have alerted non-clinical reception staff to the presence of a condition so serious that it was necessary to bring it to the attention of a triage nurse. So the core issue was this: was there a duty of care owed by a hospital to provide appropriate information as to waiting times? The judge found that there was no duty of care on the staff to inform Mr Darnley of the 30 minute wait.

Clerksroom

Andrew Mckie considers future developments in RTA claims, reducing fraud and costs

The landscape for RTA PI claims has changed dramatically since 2010. We have been through the portal changes, fixed costs changes but the MOJ is not prepared to leave matters there. The industry has become fixated on ‘reducing fraud’ in whiplash claims and some insurance organisations are convinced that Britons have the weakest necks in Europe.

218 Strand

Jonathan Dingle FRSA reviews RTA Personal Injury Claims: A Practical Guide Post Jackson

There was a moment, just one or two weeks before Sir Rupert published his report, that this reviewer might have saved much of the profession who remain engaged in personal injury claims law from the slough of despond that is sometimes said to have engulfed it. I was perambulating along the Strand, towards chambers, when I noticed the eminent pate of Lord Justice Jackson a few paces in front of me, rapidly approaching the pelican crossing on Arundel Street. I can only believe that he was so weighed by the challenges of QOWCS that he looked the wrong way and went to step out, gamely, in front of an unstopping and unforgiving taxi. I grabbed his Lordship and pulled him back from a fate worse than costs budgeting, and the rest is history.

Liam Ryan discusses the case law involving secondary victims in harassment claims

One of the more interesting aspects in the development of personal injury law over the last 25 years has been the acknowledgment that psychiatric injury can be not only as serious as physical injury, but a general acceptance that psychiatric injuries are substantial, real and not fictitious complaints fabricated to secure an award of damages.

Paul Jones reports on the 81st update to Civil Procedure Rules and, in the first part of this article, the details of the new Precedent Q

It seems a lifetime since the Civil Procedure Rules (CPR) were introduced back in April 1999 following the pronouncements of Lord Woolf in his seminal report on the future of civil litigation. Since then we have seen the rise of conditional fee agreements, the death of civil legal aid, the so-called ‘costs wars’ (always somewhat hyperbolic in reality), Lord Justice Jackson’s report and the subsequent reforms ushered in by the Legal Aid Sentencing and Punishment of Offenders Act 2012 and no less than 80 updates to the CPR and attendant practice directions. And now we have the 81st update coming into force on 1 October 2015 which, while not a barnstorming update full of major changes, does herald a very significant indicator of the future for how the courts will deal with the always vexed question of legal costs in the years to come. In this, the first of two articles on this subject, we will consider the all new Precedent Q and what it all means for practitioners.