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Personal injury

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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WIP – accessing

An article in the SJ gives this checklist as a starting point for looking to improve the settlement pipeline of PI claims, and release cash from locked-up work in progress and disbursements:

Liability admitted claims: can these be pushed ahead; what is required to achieve final settlement?

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Clinical negligence – established practice

A child was born in 1997 with a congenital heart disorder, with serious surgery being carried out in 1998. Unfortunately, the result was brain damage and the child eventually died in 2015 (shortly before his 18th birthday).

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Costs – from other side’s expert?!

An expert witness undoubtedly owes a duty of care to the client (who is instructing the expert), and there is an overriding duty to the court. But, there is no duty to the opposing party. However, CPR entitles a party to apply for costs against a non-party – which then raises the question of whether that power could be used against the other side’s expert.

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Vicarious liability – wrongful settlement?

Suppose an employer is sued on the basis of vicarious liability for the behaviour of an employee. If the employer settles that claim without the consent of the employee, is that a potential breach of the duty of implied trust and confidence between employer and employee?

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MIB – new agreements

In January, the MIB published a new Untraced Drivers Agreement, and a revised version of its Uninsured Drivers Agreement, with the changes coming into effect on 1 March 2017.

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Discount rate – change

There has been much publicity about the reduction in the discount rate to -0.75%. The change came into force on 20 March 2017. As a note from Stephen Gold put it: ‘withdrawn any claimant CPR Part 36 offers lately?’ [2017] LJ 10 March 17.

 

Foreign accidents – Rome II

For all accidents occurring after January 2009, Rome II sets out which country’s laws should apply (ie the ‘applicable law’). Clause 4 sets out three principles:

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Fixed costs – Part 36

One of the most important personal injury cases of 2016 was Broadhurst [2016] in which the CA decided that Part 36 trumps the fixed costs regime (in Part 45). Previously, defendants had argued that claims begun in the portal should only get fixed costs – whatever the outcome. Since that decision we can see a much greater use of Part 36 offers by claimants, and a greater willingness by defendants to take those offers seriously. In simple terms, a claimant who beats an earlier Part 36 offer at trial will normally get indemnity costs, which are likely to be several times more than the fixed costs that would otherwise have been available.

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GDPR – references
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GDPR impacts on the giving of references: Read more...

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