The Practical Lawyer

Personal injury

Rome II – applicable law

Rome II introduces important changes on the ‘applicable law’ rules when dealing with foreign claims. Note that these apply to all torts (not just PI claims).

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Rome II – road traffic cases

As noted above, Rome II is meant to apply to all non-contractual claims as from 11 January. But, as far as road traffic accidents are concerned, there is some scope for confusion because of Recital 33 in the preamble to the Regs:

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ATE insurance – providers?

There is a useful table summarising the main after-the-event insurance products that are available for clients at


Road traffic – fixed costs

The fixed-costs regime applies when:

  • costs-only proceedings are brought, or proceedings are brought for approval of a settlement or compromise;
  • the claim arises from an RTA occurring after 6 October 2003;
  • the agreed damages include compensation for property and/or PI but the total value does not exceed £10,000; and
  • if the claim had been for the recovery of the agreed damages then the small claims track would not have been the normal track for that claim.
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Cosmetic surgery – claims

Cosmetic surgery claims are unlike other clinical negligence claims. The key point with cosmetic surgery, of course, is that there will be no physical detriment to the patient caused by foregoing the treatment; in simple terms it will normally be designed to meet social or psychological desires, with the results of the surgery not being objectively measurable (its ‘success’ will largely be dependent on the perception of the patient).

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Specials – halved

Special damages attract interest at half the ‘special investment account rate’ (ie the special interest rate applied to court funds).

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Occupiers’ liability – warning

What do you think would be the outcome of this case: a homeowner is carrying out substantial renovation works, using a contractor. A temporary safety bannister is erected by the contractors, but is removed for a day to enable them to fit the new bannisters.

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Part 36 offer – withdrawal?

A person who receives a Part 36 offer can accept ‘at any time’ without the permission of the court. Note that this is not just within the 21-day period after receipt, but at any time after that (prior to commencement of trial).

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Highway – lack of grit

The highway authority is ‘under a duty to ensure, so far as is reasonably practicable, that safe passage along the highway is not endangered by snow and ice’ (s41(1A) HA 1980).

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Intangible benefits – damages

Another common head of damages that is claimed is ‘loss of intangible benefits’ (ie loss of the household services that would otherwise have been provided by the injured or deceased family member). As has recently been said:

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