The Practical Lawyer

Personal injury

Personal injury – changes

It seems the government is going ahead with its proposals to scrap general damages for whiplash claims, and to raise the small claims limit to £5,000 for all PI claimants. These changes are likely to come into effect in 2017. [2016] LSG 9 May 1.
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Highway – moss?

Section 41 Highways Act 1980 requires the highway authority to maintain the highway at the public expense. This is an absolute duty (ie there is no element of reasonableness). But, that duty is to ‘repair’ and ‘keep in repair’.

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RTA – medical fees

In a ‘soft tissue claim’ under the RTA protocol the only amounts that can be recovered for medical reports or medical records are as below.

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Labour market disadvantage – Smith damages

Smith v Manchester damages are awarded to compensate the claimant for future disadvantage in the labour market. For instance, if a claimant has returned to work, but has a disability that will put them at a substantial and not speculative or fanciful disadvantage in the open labour market, then they would receive compensation for that.

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Foreign claim – Rome II

Within the EU, Rome II deals with foreign claims. In general terms, the claimant can sue in the country in which they are domiciled, but the ‘applicable law’ will be that of the country in which the accident occurred. Note that ‘applicable law’ will cover the ‘nature and assessment of damages’, although ‘evidence and procedure’ matters will be governed by the country in which the claimant sues.

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Vicarious liability – wider interpretation

The Supreme Court has reviewed the law on vicarious liability and the end result is a more flexible approach.
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Infant approval – 25% is maximum

Suppose an infant approval involves a straightforward RTA where the child was a passenger. In such cases the risk to the solicitors of not winning the case is very low. But, many solicitors will want to deduct an amount representing a success fee and ATE insurance premium. That such sums are deductible is quite clear. But, what the solicitors cannot do is to deduct 25% of the child’s damages as of right, irrespective of the reasonableness of entering into the CFA and irrespective of the reasonableness of the success fee being claimed, or the need to take out an ATE insurance premium.
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Fatal accidents – multiplier

The Supreme Court has overturned the previous rule that in fatal cases the multiplier should be calculated as at the date of death. Now, it will be calculated as at the date of trial. This was a widely anticipated change, and one that had been recommended by the Law Commission as long ago as 1999. It adopts the practice that has been followed in Scotland since 2011, and also accords with modern practice, as evidenced by the Ogden tables.
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CFA – assignable?

Last month (March 2016, p26) we noted a county court decision which held that it was not possible to assign a CFA. We now have a similar decision, this time by a costs judge in the Senior Courts Costs Office.
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PPE Regs – effect of ERRA 2013?

The clear intention of s69 Enterprise and Regulatory Reform Act 2013 is that claimants can no longer rely on the pre-existing Health and Safety Regs (in particular the Personal Protective Equipment Regs 1992 and the Management Regs 1999). But, is that goal being thwarted by the courts simply absorbing those statutory requirements into the common law duty?

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