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Personal injury

‘Fundamental dishonesty’ – credibility

The CA has held that a district judge was entitled to find a claimant ‘fundamentally dishonest’ despite that term not having been raised by the defendant.

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SRA – holiday sickness claims

All PI practitioners will be familiar with the SRA’s ‘advice’ on holiday sickness claims. While many will think that the SRA has gone too far with its veiled threats (and its clear determination that solicitors should discourage such claims) it is worth repeating one point in relation to social media evidence. The SRA says (not unreasonably) that it is ‘highly improper advice to clients to delete evidence’.

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Insurers – third parties

The Third Parties (Rights against Insurers) Act 2010 introduced a simplified procedure for those claiming against the insurer of an insolvent defendant. Under the 1930 Act a claimant had to (i) obtain judgment against the insured; (ii) then commence separate proceedings against the insurer; (iii) do so without knowing whether the insurer might have any indemnity defences (and without knowing the scope of cover); and (iv) if the defendant was a company, this meant having that dissolved company restored to the register of companies (so as to allow proceedings to be commenced).

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Informed consent – damages?

Suppose a doctor fails to obtain a patient’s informed consent to an operation; are damages recoverable for that failure to obtain consent (irrespective of any damages for pain, suffering, loss of amenity, and financial losses)?  

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Res ipsa – clinical negligence

Res ipsa loquitor means ‘the thing speaks for itself’. In the PI world it has been applied to a wide range of cases, including objects falling from buildings, malfunctioning machines, collapsing cranes, and stones in buns.

The requirements for res ipsa to apply are:  

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Discrimination – civil courts

Most discrimination claims are heard in the ET (because they arise out of employment situations). But, discrimination claims against service providers, Ls, education establishments and associations are brought in the civil courts (county or High Court).  

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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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