Since moving away from home and theoretically becoming an adult, it has always amazed me how our parents had the time to: 1) look after us; 2) go to work and 3) have something vaguely representing a life of their own (otherwise known as BC – Before Children). Questioning my own parents on the subject directly, I was reliably informed that raising me involved a high proportion of late nights, severe lack of sleep and a heavy reliance upon my grandparents. A common theme from speaking to any friend’s parents is that having a child, at times, was like a black hole, in which money just disappeared!

So, this begs the question, how on earth do you value the cost of raising a child? And what happens if that child was born with a disability because of negligent advice? Should a defendant be responsible for those costs? Just how far does a doctor’s duty go?

In the case of Meadows v Khan [2017] EWHC 2990 (QB) Mrs Meadows consulted her doctor with a view to avoiding the birth of a child with haemophilia. Mrs Meadows was aware that her nephew had been born with the condition and sought to avoid conceiving a child who would also suffer from its effects. Accordingly, she consulted her GP to establish whether she was a carrier of the haemophilia gene. Her GP arranged for blood tests; however, the requested tests were those which established whether the patient had haemophilia and could not confirm if Mrs Meadows was indeed a carrier. To establish whether an individual possesses the haemophilia gene, genetic testing would have had to have been arranged.

Mrs Meadows then returned to her GP practice where she was seen by the defendant GP, Dr Khan. Mrs Meadows was informed by Dr Khan that her blood tests were normal. Because of that advice, Mrs Meadows believed that any child she would go on to bear would not be born with haemophilia.

Some four years later, Mrs Meadows became pregnant. She gave birth to her son Adejuwon, in September 2011 and shortly after his birth Adejuwon was diagnosed with haemophilia. Mrs Meadows was subsequently referred for genetic testing which confirmed she was indeed a carrier of the haemophilia gene. Had Mrs Meadows been tested when she originally contacted her GP in 2006, she would have known she was a carrier before she became pregnant. In those circumstances, Mrs Meadows would have undergone fetal testing for haemophilia. In Adejuwon’s case, this would have revealed the fetus was affected and Mrs Meadows would have chosen to terminate the pregnancy.

Subsequently, Adejuwon was also diagnosed with autism. Adejuwon’s haemophilia treatment has been complicated by his autism as he does not understand the benefits which treatment offers.

The question before the court was whether Mrs Meadows could recover for the additional costs of raising a child with autism, or just the costs associated with his haemophilia. Mrs Justice Yip in her judgment praised both parties for their sensible approach in relation to a highly emotional case as all other issues had been resolved by agreement, including the quantum in relation to both scenarios.

In considering Mrs Meadows’ case, Mrs Justice Yip undertook a review of the relevant case law surrounding, so called, “wrongful birth claims”. She noted that since the case of McFarlane v Tayside Health Board [2000] 2 AC 59 it had been a matter of public policy that claimants could only claim for the costs of raising a disabled child. Furthermore, if it was the negligence which led to the conception or the continuation of the pregnancy a claimant is entitled to recover for any disability arising from genetic causes or foreseeable events during pregnancy (Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266).

In Mrs Meadows’ case, there was no argument between the parties that Adejuwon’s autism was nothing other than a natural and foreseeable consequence; however, the dispute lay as to whether the scope of a doctor’s duty of care extended to the occurrence of a condition upon which the defendant was not consulted and whether it was fair, just and reasonable to hold Dr Khan liable for the costs of Adejuwon’s autism.

In her decision, Mrs Justice Yip referred to the SAAMCO case and Lord Hoffman’s analogy of the mountaineer and the avalanche. It was agreed in Mrs Meadows’ case that the risk of autism was a risk that existed in every pregnancy and that risk had not been increased, or lessened, by Dr Khan’s failure to properly manage Mrs Meadows’ risk of having a child with haemophilia. Mrs Justice Yip considered that Mrs Meadows’ case was simply a matter of the “but for” causation of test, no mountaineers required. “But for” Dr Khan’s negligence the testing would have shown that the fetus was affected and Mrs Meadows would have terminated the pregnancy. Mrs Meadows’ case was distinguishable from the unfortunate mountaineer as autism was associated with the pregnancy whereas the avalanche was not associated with the mountaineer’s expedition. Accordingly, Mrs Meadows was permitted to recover for the costs of raising a child with both autism and haemophilia as the pregnancy and the birth with indivisible. This was because the purpose of the consultation with Dr Khan was to decide about whether to have a child and once that child is born there can be no separation of the effect of different disabilities or conditions.

What made this case particularly interesting to this writer were Mrs Justice Yip’s comments surrounding the alleged increased costs this claim may cause to GPs’ indemnity premiums. Here Dr Khan’s legal team sought to argue that if the court were to allow for the recoverability of the costs associated with Adejuwon’s autism, doctors may need to purchase indemnity cover which allows for coincidental loss. Mrs Justice Yip quite neatly kicked this argument into touch by stating that whilst the rising costs of GP indemnity premiums are a legitimate matter of public concern, Mrs Meadows’ case was rare and would not open the floodgates to many other claims.

The Medical Protection Society, a group formed to support the medical profession (including in their legal claims), has proposed a radical change to the way that clinical negligence clients are dealt with. It is not a helpful addition to the debate.

A fundamental principle of law is that if you suffer injury or loss through the negligence of someone who owed you a duty of care, you are entitled to be put back as far as possible in the position that you were before the event occurred. In other words, you should receive compensation sufficient to place you back roughly where you would have been but for the negligence. If you can no longer work and previously earned £60,000 a year, then you should be able to recover the net income that you would have taken home at that rate. If you need equipment to assist you with tasks which you could previously do unaided, then the cost can be recovered.

For the MPS however the people who suffer loss caused by the negligence of the medical profession should be in a different class from those who suffer through any other type of negligence. If you suffered as a result of a doctor making a mistake (where the consequences could be disastrous) then the MPS proposes that you should not receive the same level of compensation as anyone else. Their proposal is that there should be a limit on what you can recover regardless of your loss.

Further, they consider that there should be a limit on future earnings recovery. This should be based essentially on national average weekly wages. If you are a higher earner that obviously puts you in some difficulty. It is not clear but I would suspect the proposal does not mean that those who are lower than the national average will recover more and at the rate of the national average either.

In addition, the MPS wants to limit the number of expert reports that can be commissioned to support a case. On the face of it no doubt this seems attractive, cutting legal costs. But actually, there is a process for this already. It is called a judge. The role of the judge once proceeding are issued is to manage the case. The judge makes the decision about how many experts are required and can be relied aupon to support a case. This is having heard arguments from both sides about what experts are needed. In clinical negligence there is very rarely a significant dispute as to the number of experts that can be used. It is some surprise therefore that apparently the MPS do not feel that the judicial system can be trusted.

Of course, this is all wrapped up in the costs to the NHS (although we must remember that a considerable number of MPS members are not NHS employees) in clinical negligence claims. Therefore the costs issue is considered more important than the principles of law .

It is certainly true that the costs can be substantial. However, as all claimant lawyers would say, if the NHS legal teams would stop for a moment when they get a case, review it properly and defend only those cases that are actual defensible then most of the costs would be reduced significantly.

Every year, there are cases in which costs are awarded against the defendant as a result of the conduct in proceedings. There are also costs awarded in cases that should never go to trial. Last year for example, there was a case of JRM v King’s College Hospital Foundation Trust. This was a claimant where a baby was injured during birth as a result of excessive force used in forceps delivery. The forceps had been placed incorrectly by the obstetrician. The witness evidence for the defendant suggested only gentle traction was used. This was despite the baby going into paediatric intensive care, with significant injuries (including a spinal cord injury), testimony from the father who had been there at the birth and photographic evidence of the nature of the appearance immediately after birth.

The judge considered the medical witnesses’ evidence as unreliable. He was very critical of whoever it was who decided that the claim should be resisted on the basis that the delivery was straightforward and unremarkable. This clearly flew in the face of the evidence. The cost to the NHS of defending the indefensible would have been substantial.

Rather than continually complaining about the costs that are incurred as a result of clinical negligence claims, there are two matters that the NHS and the medical profession as a whole could do to avoid this.

Firstly, learn from the mistakes that are made and put in place protocols which reduce negligence in the first place.

Secondly, do what the duty of candour was supposed to do which is admit the facts at the outset. Stop defending cases which are just indefensible. Start working with claimant lawyers and agree issues that really cannot be disputed.

I have lost count of the number of cases where I have to issue proceedings because there is a denial of liability and yet some way down the line, usually when experts get together, the NHS agree to resolve the matter amicably. This is when our experts have said, they cannot understand why the defendants are challenging and defending the case. Of course there are cases that are legitimately defended but there are also a sizable minority which should not be defended at all. They should simply be quantified and resolved.

This proposal from the MPS suggests that for whatever reason, people who suffer negligence as a result of the medical profession should be deemed to be lesser individuals. The law should be changed so that they don’t have to receive the same amount of compensation as somebody else. This is simply because a doctor was negligent. If there is a problem with your heating and you suffer carbon monoxide poisoning and brain damage as a result, apparently you should be entitled to full compensation. If it is a doctor that causes your brain damage apparently you should not.

The proposal is legal nonsense. It flies in the face of the principles of law and it treats clinical negligence suffers as second-class victims. It is also deeply insulting to those who lives have been devastated by the actions of the medical profession. It may have been an innocent mistake by the medics but the effects can be catastrophic and life changing. Those people deserve our sympathy and a fair system of compensation.

The MPS should be ashamed of themselves for the proposal. Instead they should work with their doctors to try to reduce the negligence overall and work to resolve all issues that can be resolved in a claim at the earliest possible opportunity without incurring unnecessary costs.

We live in a society which positively  encourages people to view mental health on the same terms as physical health in a bid to remove the stigma surrounding mental health issues. In recent years we have seen a breakthrough in how these issues are reported, understood and treated. However, we are far from achieving a level playing field within the legal system relevant to injury and medical claims. There is usually no problem in recovering compensation for psychiatric injury when physical injuries have also been sustained. For example, the loss of a limb as a result of a car accident following which the victim develops depression. But what if the car accident causes psychiatric injury alone?

Those working within the injury claims field will be aware of the limits imposed upon the ability of claimants to recover compensation for purely psychiatric injury. One area where the requirements are less restrictive is work related stress. This is because an employer is under a duty not to cause psychiatric injury to an employee (see Sutherland v Hatton [2002] 2 All ER 1. A discussion of occupational stress claims is not within the remit of this blog, but see this blog and its links for an example of what is involved in winning a claim.

The prevailing law for psychiatric injury was established and has developed little since Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310. In essence, primary and secondary victims of a “shocking” event are able to recover damages for psychiatric injury. A primary victim is usually a participant in the “horrifying” event and whose belief that they would suffer physical harm “violently agitates [their] mind” (Lord Ackner). Secondary victims are those who are not in physical danger themselves, but:

1. The psychiatric injury arose from witnessing the injury/death of the primary victim
2. The injury arose from sudden and unexpected “shock”
3. There were close ties of love and affection between the primary and secondary victims
4. The claimant was present at the scene of the event or witnessed the aftermath a short time later
5. Injury of that type to that claimant was reasonably foreseeable

There are therefore a lot more obstacles for a secondary victim to overcome than if they were a primary victim. And remember, there has to be negligence for any of the victims to succeed in their claims.

At Anthony Gold we work closely between departments to provide a complete and seamless service for our clients. One area where there is often overlap is with housing. For example, damp and poor conditions can cause physical injuries. See this historical but still relevant blog. But what about when there is only psychiatric injury?

Disrepair is not a “shocking” event. However, in Asghar v Barnet LBC and Minoan Investments Limited Central London County Court 23 January 2013 the claimant was successful in recovering compensation for an exacerbation of his depression and panic attacks caused (at least in part) by his landlord’s failure to remedy disrepair. The claimant was in the presence of physical danger (potentially from the damp) but he did not actually suffer any physical injuries. If the above caselaw was strictly followed the claimant’s claim should have failed. However, caution should still be exercised in relying upon this decision as precedent for establishing liability for pure psychiatric injury in housing disrepair claims. This was a county court decision and likely to be challenged at a higher level.

For now, for pure psychiatric injury claims the floodgates remain more or less firmly closed with only a few breaches here and there. It does little to promote the parity of esteem between mental and physical illness. There is some talk of investigating what physical changes occur to the brain as a result of psychiatric injury as a way of bringing these claims within the remit of physical injury. This is a stretch and one that should not have to be made to create a fair system.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Now that the Christmas and New Year festivities are over, everyone is returning to work and gearing up for another winter. At this time of year, two of the main – and related – issues at the forefront of the NHS are coping with the winter and coping with flu. It has been recently reported that there was a sharp rise in hospital admissions with confirmed flu in the last weeks of December 2017. Accordingly, there remains a drive to ensure that people are vaccinated. GPs aim to vaccinate with the Influenza vaccine as many adults over 65 years old as possible, as well as the routine flu vaccination of pregnant women, children between the ages of 2 and 8 and those at risk of catching the virus (patients with chronic lung or heart disease, for example). In addition, the NHS tries to vaccinate as many of its healthcare workers in the frontline as it possibly can.

The Influenza virus is quite complicated and there are many types. In a nutshell, though, it can be subdivided into Influenza A and B, although there is also a very mild childhood type called Influenza C and a clinically irrelevant Influenza D. Influenza A is the most complex and most virulent variety: it is subdivided according to the proteins that it has in its capsule, known as H and N proteins. This broad classification is how Influenza A is described and how you will see the virus referred to, for example, H3N2, which describes a particularly virulent form. Presently, there are about 18 known H proteins and 11 known N proteins on the surface of the virus, many of which are not found in “strains” that infect humans but which are in birds and other animals (e.g. pigs). This H and N classification is yet further subcategorised into more specific forms of the virus e.g. A/Hong Kong/4801/2014-like virus is a strain of the H3N2 virus which will be included in the present 2017/18 vaccine, as will be the B/Brisbane/60/2008-like virus which affects children. The H1N1 virus was responsible for the Swine-flu pandemic in 2009 (A(H1N1)pdm09). Influenza B is milder than A and does not have the same categorisation as A.

Influenza is highly infectious with an incubation period of 1-3 days. Transmission is via aerosol droplets, so it can spread rapidly. Viral “shedding” (when people are still infectious) tends to occur from day 1 to 5-7 days after. Cases usually occur within a 2-3 month period in the winter, although it is never certain exactly when that period will begin. The “flu season” is considered to run from October to March or April (in the Northern Hemisphere), but most cases will occur between December and February. Symptoms include sudden onset fever, chills, headache, myalgia (aching muscles) and fatigue. There may be associated common cold symptoms, such as a dry cough, sore throat and stuffy nose. In most people, recovery can be expected in 2-7 days, but there can be secondary complications, including bronchitis, pneumonia and ear infections. Occasionally, severe infections can lead to meningitis or encephalitis. It can kill.

Flu is a worldwide problem. In the last century there were three pandemics: 1918 (Spanish flu), 1957 and 1968. The 1918 pandemic is estimated to have killed about 40-50 million people worldwide. In this century, the first pandemic was in June 2009, caused by the A(H1N1)v virus. Every year, however, there are worldwide about 3-5 million cases of severe flu with about 250,000 to 500,000 deaths (according to the World Health Organisation). These are frightening statistics. It is difficult to ascertain with certainty the exact impact on mortality of flu in the UK, because it rather depends on whether a death was directly caused by or as a result of flu, or whether flu indirectly affected a patient, perhaps by aggravating another pre-existing condition, and there are patients who are more prone to succumbing to flu e.g. those with chronic lung conditions or ischaemic heart disease, which is why such patients are advised to have the flu vaccination. In the UK, on average about 600 people die from flu every year, but during epidemics this figure can rise to in excess of 10,000.

Influenza is a tricky virus to prepare for because its H and N proteins change, which means that the vaccine is not perfect. The two primary factors that effect change are called “antigenic shift” and “antigenic drift”. Drift occurs when there are minor changes in the surface protein of the virus from season to season, which means that people may have a degree of immunity but can still contract the virus, albeit that they tend to have a milder condition. This behaviour is responsible for “seasonal” flu. Shift occurs periodically when there is an emergence of a fully-fledged new subtype of the virus to which antibodies have not yet been produced, and the population may, therefore, initially have little or no immunity. This behaviour is responsible for the occasional pandemics, e.g. bird-flu and swine-flu.

It is shift and drift which keep the vaccine companies on their toes because, in making the vaccine, it has to be anticipated what strains of virus are likely to be circulating the following winter. The vaccine is available in two forms. First, an injection into the deltoid muscle in the upper arm. This is not a live vaccine so you cannot catch flu from it. It stimulates the immune system into producing antibodies to the H and N proteins. Secondly, a nasal spray, which contains live attenuated virus to H1N1, H3N2 and two Influenza B strains, and which is used primarily in children. One of the problems with the vaccine is that it takes about 6 months to manufacture it, so to have it available for inoculation in November, December or January means that which strains to protect against must be decided in the preceding Spring/Summer. Unfortunately, it is simply not possible to know with absolute certainty which strains will be around over 6 months later and in some years the guesses are better than in others. For example, only 39.8% of vaccinees (across all ages) had their flu prevented by the vaccine last year and it was not effective at all in the over-65 year olds against Influenza A. In the preceding year, the vaccine was 52.4% all-age effective, 29.1% in the over-65 year old group.

Notwithstanding the seemingly relatively modest success of the vaccine year-on-year, it is critical not to underestimate the Influenza virus: it is a worldwide killer on a regular basis and, even in the UK where there is a reasonable uptake of the vaccination, morbidity and mortality can reach very significant levels at this time of year, so it is a virus to which we should pay some respect.

In clinical negligence work expert evidence is vital to the success or failure of a case. The choice of expert and their approach to the case is a fundamental issue to be considered throughout.

There has always been a conflict between claimants and defendants in respect of expert evidence. In a case that goes to trial in which liability is disputed defendants will often bring treating medical professionals to the court. In essence, they are allowed to use additional experts to give evidence on behalf of the Trust. This inequality of arms has been a continued battle over many years and there is of course established case law to allow the claimant to adduce additional evidence if required.

More recently there has been a tendency in some cases to bring forward as witness evidence (that is not expert) what is in fact expert evidence.

Recently I had a case where a witness statement was served purporting to come from a consultant radiologist at another hospital but in the same Trust. Ostensibly it was to do with waiting times for an MRI scan . However, within it is contained expert evidence about the original radiological reports and whether they demonstrate what has (in fact) been agreed they demonstrate. In short it is a clear attempt to provide expert evidence by the back door.

This issue arose also in a patent case called Teda UK Limited v Gilead Sciences Incorporated in 2017.

In that case, the defendant served a witness statement of a professor in HIV medicine based at the Chelsea & Westminster Hospital. The witness was in fact a well-known expert in his field and had provided evidence before . His witness statement indicated that he had been asked to give evidence as “an independent factual witness”.

This was a clear attempt to provide a witness statement from an expert not connected to the case. Although the statement was quite short (which the court applauded), it did not change the position that it was expert evidence which the court had not given permission for.

In the same case, there was an additional problem because the claimant had then served hearsay notices in respect of some scientific papers which again amounted to expert evidence by the back door because the court’s permission had not been granted.

Both the claimant and the defendant had their attempts to adduce evidence through the back door rejected by the court with obvious potential costs issues.

There is anecdotally a change in emphasis between the claimant and the NHS Resolution in part. Some cases proceed on a very consensual basis throughout and there is a good working relationship between defendant and claimant lawyers on the whole. However, attempts to circumvent the court’s directions and to add evidence for which permission has not been granted only serves to cause difficulties with the running of a case, disrupt the timetable and prevent good working relations which ultimately is in the interests of both claimant and defendant organisations.

Court delays are such that the disruption to the timetable can be significant, causing distress to claimants and anxiety for defendant witnesses alike..

If claimants and defendants are to work together properly in relation to cases to keep costs at a reasonable and proportionate level (which is something the NHS Resolution considers pertinent) then attempts to circumvent the directions of the court must not be made. Proper practice is that if expert evidence should be adduced permission should be sought. The defendants or indeed claimants should follow this.

Attempts to circumvent the system cause enormous problems. This cannot be in the interests of the claimant, the defendant, the court or justice generally.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The recent case of Jacqueline Smith (suing in her own right & as the surviving partner of John Bulloch, Deceased) v (1) Lancashire Teaching Hospitals NHS Foundation Trust (2) Lancashire Care NHS Foundation Trust (3) Secretary of State for Justice once again highlighted just how out of date section 1A of the Fatal Accidents Act 1976 (“the Act”) is.

For many years cohabitees who have been living together like married couples in all but name, have been denied the right to claim the statutory bereavement award currently set at £12,980 following the loss of their partner. It does not stop there; parents of an unmarried adult child are also denied the award. That is only because they do not fit into the very small class of people entitled to claim the award.

Section.1A of the Act quite simply reads:

Bereavement

(1) An action under this Act may consist of or include a claim for damages for bereavement.

(2) A claim for damages for bereavement shall only be for the benefit—

(a) of the wife or husband or civil partner of the deceased; and

(b) where the deceased was a minor who was never married or a civil partner —

(i) of his parents, if he was legitimate; and

(ii) of his mother, if he was illegitimate.

(3) Subject to subsection (5) below, the sum to be awarded as damages under this section shall be £12,980.

(4) Where there is a claim for damages under this section for the benefit of both the parents of the deceased, the sum awarded shall be divided equally between them (subject to any deduction falling to be made in respect of costs not recovered from the defendant).

(5) The Lord Chancellor may by order made by statutory instrument … amend this section by varying the sum for the time being specified in subsection (3) above.”

Rather bizarrely, whilst cohabitees can be dependants under the Act under section 1 of the Act, if they have been living with the deceased for two years or more prior to death, they are not included in the Act as being entitled to a bereavement payment under section 1A.

In the case of Smith, the claimant brought a dependency claim under section 1 of the Act against the first two defendants for their negligent treatment which resulted in the death of her partner of 11 years in 2011. Liability was admitted and her claim for dependency was compromised. However, due to the exclusion in section 1A of the Act, she did not claim the statutory bereavement award against the first two defendants. Instead, she joined the Secretary of State for Justice as the third defendant so that the claim for bereavement award could be pursued. This was on the grounds that she was a co-habitee of more than two years and section1A was incompatible with the European convention on Human Rights (“the Convention”). She sought a declaration of incompatibility under section4 of the Human Rights Act 1998.

The claimant pleaded that section 1A(2)(a) of the Act was incompatible with Article 8  of the Convention (the right to respect for private and family life), or alternatively with Article 8 of the Convention read with Article 14. Article 14 prohibits discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Sadly, for the claimant, the claim against the third defendant was dismissed at first instance on the basis that the bereavement damages were not within the ambit of Article 8 and did not interfere with those rights. Therefore, it did not engage Article 14 and there was no unlawful discrimination. She appealed and very sensibly the Court of Appeal upheld her appeal and made a declaration of incompatibility. The appeal judges concluded that the situation of someone like the claimant “who was in a stable and long term relationship in every respect equal to a marriage in terms of love, loyalty and commitment, is sufficiently analogous to that of a surviving spouse or civil partner” and once justified can amount to discrimination and an infringement of Article 14 in conjunction with Article 8.

The Court of Appeal took note of evidence of the social acceptance of co-habitation and that the UK population sees no material difference between marriage and civil partnership, on the one hand, and living together as an unmarried and non-civil partnered couple, on the other hand.

This judgment will have far reaching consequences, and the state will need to undertake a major review of the Act to ensure it is compatible with modern society and to expand the class of claimants.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

As a firm specialising in dealing with catastrophic injury claims, we commonly deal with accident at work claims. The injuries suffered at work by our clients can in some cases be significant and life-changing and have a devastating effect on both them and their family.

The Health and Safety Executive has published in its recent report that in 2016/17, 137 workers were killed at work in Great Britain, click here to read more.

The industries in which most fatalities occurred were construction, agriculture and manufacturing. Common accidents included being struck by a moving vehicle or object, falls from height, being trapped by something collapsing or overturning, contact with moving machinery, and contact with electricity.

Given the nature of the work involved, labour-intensive industries are likely to have the highest rate of fatal injuries. However, figures from the past five years suggest that whilst fatalities in construction, agriculture and manufacturing have remained broadly level, they have increased in waste management and recycling.

Whilst figures reveal a downward trend over the last 30 years, there is still a lot to be done to raise awareness to prevent further injuries and deaths.

In 2016/17, 97% of all people killed in accidents at work were men, a similar proportion to other years.

It is also concerning that older workers over the age of 60 are more prone to workplace fatalities than any other age group. This can be seen particularly in industries like agriculture, where health and safety processes are often inadequate or implemented poorly. There needs to be greater awareness and education given to older workers about the importance of health and safety.

It should also be noted that the HSE report excludes figures relating to fatalities caused by occupational disease and work-related injuries such as fatal accidents from work-related collisions, fatal accidents involving workers travelling by air or sea and fatalities to on-duty members of the arm. Therefore, the statistics should be interpreted with some caution.

Regardless of what the statistics reveal, all employers and employees need to be committed to creating a safe work environment.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

With Road Safety Week recently having taken place with the theme “Slow Down Save Lives”, it is an opportune moment to consider whether Britain’s roads are becoming safer.  Road traffic collisions are a frequent cause of the life-changing injuries suffered by many of our clients.

Statistics from the Department for Transport’s show that the number of casualties reported to the police in road traffic collisions in Great Britain in the year ending June 2017 have decreased by 5% compared to the previous year, while traffic levels rose by 1.4%. This overall casualty rate per billion vehicle miles has decreased by 6%, leading officials to point to this as an indication that safety on the UK’s roads is improving.

However, whilst UK roads remain amongst the safest in Europe, such optimistic figures should be interpreted with a degree of caution. The number of people killed on Britain’s roads has not changed significantly in this period, with 1,710 people killed in road traffic collisions between July 2016 and June 2017. And while the numbers of car users and motorcyclists injured have decreased compared to last year by 8% and 3% respectively, Britain’s roads have this year been more dangerous for pedestrians and cyclists. 18,870 cyclist casualties were reported which represents a 2% increase from last year, whilst there was a 1% rise in the number of pedestrian casualties to 24,190. According to British Cycling, 110 cyclists are killed each year on our roads and almost all result from collisions with motor vehicles.

These latest figures also show that the number of those killed or sustaining serious injuries in road traffic collisions has increased from 24,791 in 2015-16 to 27,130. The Department for Transport attributes this increase to changes in police reporting systems.

So far, about half of police forces in England have adopted a new system for reporting injuries in road traffic accidents called Collision Recording and Sharing (CRASH). The Metropolitan Police Service adopted the Case Overview Preparation Application (COPA) in September 2016. Both of these systems require the investigating officer to report the injuries suffered, rather than make a judgment as to the severity of the injuries. The new systems aim to reduce the uncertainty generated by the subjective nature of earlier reporting systems, by automatically translating the reported injuries to a severity classification to allow for more accurate statistics.

Changes to the reporting systems used by approximately half of all police forces across the country for the severity of injuries does mean that comparisons with the numbers of people killed or seriously injured in road traffic collisions in previous years cannot be accurately drawn. However, Brake and other road safety charities have raised concerns that not enough is being done to reduce collisions and that this year’s increase is cannot, in its entirety, be attributed to changes in reporting methods. Brake is campaigning for the establishment of a road collision investigation branch to mirror those that allow lessons to be learned from air, sea and rail crashes. The charity has also called for a review of speed restrictions on rural roads, a graduated licensing system and mandatory rural driving training for learner drivers to help reduce the number of casualties and fatal collisions on our roads.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The Court of Appeal has finally handed down judgment in the case of Budana v Leeds Teaching Hospital NHS Trust. The issue of the assignment of Conditional Fee Agreements (CFAs) has been rumbling on for a considerable period of time and practitioners were hoping that the Budana judgment would bring some much-needed clarity.

So, what is the all the fuss about? It concerns historic cases where CFAs were entered into before the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) on 1 April 2013.  LASPO abolished the recoverability of CFA success fees and After the Event insurance premiums from the opposing party. If a case funded by a pre-LASPO CFA was transferred to a new firm of solicitors, there was inevitably a big attraction in assigning the CFA so the new firm could benefit from recovering the success fee. If they simply signed a new agreement, then they would not be able to charge the opposing party a success fee.

The issue has been made more crucial by the number of mergers, takeovers, and closures of firms operating in the PI market. In practice when a firm has closed their personal injury department, there was a massive task of assigning all over the CFA funded cases to the new firm. There is no doubt that the firms would have accounted for the recovery of success fees in the viability of purchasing the new work. Therefore, while the determination of this issue will only affect a finite number of cases, it will have an enormous financial impact on businesses conducting the personal injury claims.

Budana was initially heard in February 2016 by District Judge Besford at Kingston-Upon-Hull County Court. It concerns the assignment of a pre-LASPO CFA from a solicitors firm called Baker Rees who were closing their personal injury to department to another firm called  Neil Hudgell.  DJ Besford held that there was no valid assignment of the CFA between the firms, as Baker Rees had terminated the CFA when it wrote to the client telling them that they were closing down their personal injury department. The CFA was terminated at that point and there was nothing to assign.

DJ Besford went on to consider whether it was actually possible to assign a CFA in these circumstances. He found that he was bound by the High Court’s judgment in Jenkins v Young Bros Transport 2006, which held that it was possible to assign a CFA between firms. However, the facts of that case were quite different. In Jenkins, the client had followed the same fee earner as he moved around firms. It did not concern the mass sale of cases from one firm to another.

Both parties were granted permission to appeal and cross-appeal. Permission was given to leapfrog to the Court of Appeal.  The appeal was heard in July 2017 and there has been significant uncertainty for practitioners awaiting the decision. That uncertainty has ended with the Court of Appeal released a detailed (42-page) judgment.The Court of Appeal held the following:-

• That the letter from Baker Rees to the client did not terminate the CFA. The letter or the actual transfer could not amount to an act of termination unless the Claimant treated the contract as terminated. Baker Rees could not in the circumstances of the case terminate the CFA unilaterally.
• That it is possible to assign the benefits and rights under a CFA to another firm. This possibility is not just limited to the circumstances in the Jenkins case where the client’s solicitor moves to a different firm. It includes situations where a third-party firm buys an existing firm’s goodwill and work in progress.
• That whilst the Claimant entered into a new contract with the Claimant and that was technically a novation, that the transitional provisions of LASPO did not prevent the recoverability of a success fee as this was the clear expectation of the parties (although Lord Justice Davis disagreed on this point saying he felt the contract was validly assigned).

The Claimant’s appeal was allowed in full and the Defendant’s cross-appeal was dismissed.

The judgment is well reasoned. It provides clarity and certainty for practitioners in this area. The nod to Supreme Court decision in Plevin v Paragon Personal Finance Limited 2017 will hopefully deter the Defendant from pursuing any further appeal.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

 

It is well known that surveillance evidence is frequently used by insurers in some injury claims. The aim is to show any difference between the alleged level of impairment/injury and the truth.

There are several consequences to the successful deployment of surveillance evidence that results in the discontinuance or settlement of claims, including: costs sanctions and the potential for contempt of court proceedings (pursuant to rule 32.14 of the Civil Procedure Rules which provides that “Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth”).

The case of AVIVA INSURANCE LTD v ALEKSANDAR KOVACIC [2017] EWHC 2772 (QB) serves as a stark reminder that the insurers may take proceedings against a claimant for contempt of court in cases where video surveillance shows that they have made a false statement.

In this case the defendant in the contempt proceedings (who had the claimant in the injury claim) had sustained severe injuries in a road traffic accident in 2010. Liability was admitted, and in 2013 the claim was pleaded in excess of £1 million. The defendant maintained that he continued to struggle with a number of daily activities because of his injuries. However, the insurer obtained video surveillance evidence that showed he had consistently lied in his particulars of claim, witness statements and interviews with medical experts. The judge considered that the surveillance footage showed that the defendant had exaggerated his continuing disability (including his ability to walk, use of walking sticks, and ability to drive) and awarded him just £95,114. Following the award the insurers were granted permission to bring contempt proceedings and, after the court studied the surveillance, succeeded in proving twelve allegations of contempt to the required criminal standard of proof.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*