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Personal injury

RTA insurance – fraud

Can an RTA insurer avoid liability to a third party because of fraud by the policy holder? The answer is ‘yes’ according to the CA’s interpretation of RTA 1988 in EUI [2012] and Sahin [2016]. In those cases it was held that the compensatory guarantee of RTA 1988 can even be circumvented by contractual exclusions and restrictions in cover.  

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Discount rate – next change

The discount rate was set at 2.5% in 2001, and remained at that level until it was lowered to -0.75% in February 2017. Because of complaints by the insurance industry, the Lord Chancellor is to change the approach that is taken when setting the discount rate.  

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Vicarious liability – independent contractor

The question of vicarious liability for the deliberate actions of an independent contractor has recently been considered in the context of claims against a doctor who carried out medical examinations for a bank.

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Defective premises – disrepair?

Under Defective Premises Act 1972, L owes a duty of care if there are defects in the state of the premises. But, this duty only arises if L has an obligation to maintain or repair the premises, or if L has a right (express or implied) to enter the premises to carry out maintenance or repair.

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Law reform – probate fees

The damages that can be claimed under the Law Reform (Miscellaneous Provisions) Act 1934 are limited.

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Credit hire – impecuniosity

An ‘impecunious’ claimant has to be treated differently from a ‘pecunious’ claimant. The test of impecuniosity is, however, somewhat vague. In Lagden [2003] it was said to depend on whether or not the claimant had the ‘choice’ to go into the open market and hire at ordinary credit hire rates.

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Discount rate – change

The change in the discount rate from 2.5% to -0.75% will vastly increase the pay-outs in serious injury cases. For instance, a 25-year-old with a moderate brain injury awarded £100,000 for life would previously have been awarded £3.1m, but with the change to the Ogden rate this would now be £8m. Similarly:

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Credit hire – spot rates

In Stevens [2015] the CA gave clear guidance on how to assess the basic hire rate (which a ‘pecunious’ claimant is entitled to recover). Normally, this will be the lowest reasonable rate quoted by a mainstream hire company in the locality.

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Contrib – lethal weapon?

The ‘lethal weapon’ principle applies when a defendant is in control of something that has obvious potential to cause serious harm. The classic example is the claimant cyclist and the defendant HGV driver. In a recent case, the cyclist had pedalled to the near side of the HGV, even though it had been indicating left, and yet the CA upheld a finding of 70% contrib on the part of the HGV driver with the court noting that it was appropriate for the judge:

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Discount rate – accommodation

February 2017’s lowering of the discount rate from 2.5% to -0.75% caught everyone unawares; a drop of over 3% in a single step is staggering. Such a situation is neither good for defendants nor claimants, and it does reinforce the argument that there should be regular (eg six-monthly) reviews, with the rate then being fixed by a suitably qualified body.

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