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Personal Injury Law Journal: September 2015

Bill Braithwaite offers a round-up of some notable recent cases in personal injury law

As we approach the end of the year I thought it would be helpful to highlight those cases that have interested me and why; they cover a wide range of issues and emphasise the importance of good case preparation and obtaining evidence in support.

Julian Matthews looks at the recent case law on psychiatric injury for nervous shock, where there appears to have been a tightening of the relevant control mechanisms

In relation to psychiatric injury sustained by the close relatives or friends of those who sustain injury or death due to medical negligence, the long established general principles can be put as follows:

Paul Jones discusses the application of qualified one-way costs shifting in a case concerning pre-commencement funding arrangements

Qualified one-way costs shifting or QOCS, to give it its more popular acronym, is one of those areas of new costs law that everybody knew was going to cause problems. The basic premise, protect the claimant from defendant’s costs liabilities in return for an end to recoverability of success fees and ATE premiums, was a central tenet of Lord Justice Jacksons interlocking reforms and the idea seems fine in principle. The difficulty lies in the way the rules have actually been drafted and the opportunities this presents for some fairly nuanced arguments around the margins of when the QOCS rules apply and when they don’t. The recent case of Casseldine v Diocese of Llandaff Board for Social Responsibility (2015) being a classic case in point.

Liability in negligence for the mentally ill; the duty and standard of care applicable

The claimant (C) was a young man who sustained extreme burns as a result of the actions of his uncle (V).

Kim Harrison explains the importance of the Human Rights Act in neglect and sexual exploitation cases

The scope and reach of the Human Rights Act (HRA) and the European Convention of Human Rights (ECHR) upon our legal system is a topical debate. Sections of the British press along with the newly elected Conservative government argue that the HRA and ECHR have pushed the boundaries of human rights jurisprudence further than was ever intended by the politicians who enacted the HRA.

In part two of his article Steven Akerman continues his assessment of section 57’s incompatibility with human rights

The first part of this article examined the legislation of s57 and Article 6 of the Human Rights Act (Art 6 – one’s right to a fair trial) and of Article 1 of the First Protocol (A1P1 – right to the peaceful enjoyment of one’s property) and the conflict between them, highlighted in Fairclough Homes Ltd v Summers [2012].

George Ampat

George Ampat sets out issues surrounding consent between vulnerable patients and an enthusiastic doctor

This article debates the vulnerability of patients versus the responsibility of the treating doctor. Physicians are expected to possess ‘technical skill, scientific knowledge, problem-solving, and human understanding…’(M Y Rathor, et al, 2011) Therefore the patient is reliant on the doctor and often puts total faith in their knowledge, making all patients potentially vulnerable, by the very nature of this relationship with the doctor. Over the course of centuries, the relationship between patients and doctors has changed, becoming less paternalistic, though this tradition still influences patients today. Compared to a hundred years ago, people increasingly want to be kept informed about the progress of their conditions and treatments and have more power over their progress. Now, all invasive procedures recommended within the modern healthcare system legally require a patient freely giving their informed consent. If there is no informed consent, the treatment will not be allowed to proceed and if any of the factors which qualify an informed consent is absent then the consent is void.

Stephanie Prior considers the effect of recent government cuts and the consequential delay and cost for claims

Recently, the Lord Chancellor Michael Gove has given notice that there will be extensive reforms to the courts. The Ministry of Justice then confirmed that this would include closure of at least a fifth of the Magistrates Courts, which equates to approximately 91 courts being shut and that there would be integration of at least another 31 courts. It has been quoted that ‘in total 257 magistrates court rooms would go, representing 23% of the current total’. Further, 4% of Crown Courts would be closed.