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1 Headlight motoring news welcome to Headlight, Dolmans Solicitors motoring news bulletin. In this edition we cover: case summaries capacity Jubair Ali (protected party by Jabid Ali, his father and litigation friend) v (1) David Graham Caton (2) Motor Insurers Bureau [2014] causation Iwona Sobolewska (a protected party by E Q A Sobolewska, her litigation friend) v Michael Alfred Threlfall [2014] contributory negligence Wormald v Ahmed [2014] success fee Carol Bright v Motor Insurers Bureau [2014] articles guidance for the instruction of experts in civil claims 2014 whiplash reform programme update : independence in medical reporting and expert accreditation winter 2014/2015 edition

2 Jubair Ali (protected party by Jabid Ali, his father and litigation friend) v (1) David Graham Caton (2) Motor Insurers Bureau [2014] When the claimant was 17, he suffered a severe brain injury in a road traffic accident caused by the negligence of the first defendant who was uninsured. The Motor Insurer s Bureau (MIB) conducted the defence and liability had been admitted, subject to a deduction for contributory negligence. The only issue at trial was quantum, and various medical experts gave evidence that the claimant suffered from significant cognitive disabilities. The claimant had taken a UK citizenship test and passed it. The experts all agreed that this was surprising and appeared to be inconsistent with his apparent level of cognitive disability. However, the judge found that the had passed the test without assistance, having learned the answers and having struck lucky with the questions that came up. He found that the claimant lacked mental capacity, had no residual earning capacity and awarded a net sum of 998,902, after allowing for interim payments and contributory negligence. He also awarded periodical payments of 14,529 per annum for 20 years, rising to 18,000 thereafter, for the rest of the claimant s life. The MIB appealed on the basis that if the judge had attributed the correct weight to the citizenship test, he would have found that the claimant had either been malingering or consciously exaggerating and that he did not suffer from significant cognitive defects / mental incapacity and did have a residual earning capacity, and subsequently would have made a smaller award. The claimant submitted a cross-appeal in respect of the damages awarded. It was held that the judge had been entitled to make the finding that the claimant had passed the citizenship test unaided and had been acutely aware of the need to factor the test success into the rest of the evidence. To focus on the citizenship test almost to the exclusion of everything else would have not have been the correct approach. There could be no doubt that the claimant suffered a very severe brain injury and the judge had been entitled to conclude that the claimant lacked capacity having regard to the sum total of the evidence, including evidence as to how the claimant presented and functioned in his day -to-day life. The judge s awards were upheld and both appeals dismissed. 1

3 Iwona Sobolewska (a protected party by E Q A Sobolewska, her litigation friend) v Michael Alfred Threlfall [2014] The claimant was found on the ground of a supermarket car park after leaving work one evening. She had sustained a fracture to her ankle and a significant head injury causing brain damage. As a result of her head injury, the claimant could not remember what had happened, but her case was that her injuries had been caused when the defendant s vehicle came into contact with her in the car park. It was not an issue that the defendant s car had been travelling very slowly at the time, but the defendant was uncertain about what had happened. In his witness statement, he said that upon driving off in the car park, he had noticed a shadow on his left hand side, which suddenly disappeared. Whilst the defendant accepted that the ankle injury had been caused by him making contact with the claimant, he said that insufficient force would have been applied to the claimant for her to have fallen and to have impacted the ground with adequate force to cause such a severe head injury. It was held that the evidence showed that there had been contact between the defendant s car and the claimant; that the claimant had fallen to the ground as a result; that the claimant had injured her ankle and head and that the head injury was caused by her impact with the ground. It was clear that an awkward fall onto a car park surface could easily lead to the kind of injury that the claimant sustained. In the absence of any other credible explanation for the claimant s injuries, the court was satisfied that the injuries were probably caused as a result of impact with the defendant s car. There was no basis for a finding of contributory negligence as the claimant would not have been in the direct line of view of the car s front or rear lights and there was no evidence to suggest that she had been distracted by listening to music or focusing on her mobile phone. Wormald v Ahmed [2014] The claimant pedestrian sought damages for negligence against the defendant taxi driver after being seriously injured when hit by the defendant s taxi during the early hours of the morning. The accident occurred on a oneway road which was well lit and the defendant was an experienced driver who was familiar with the road. The claimant had been talking to people on the pavement to the left of the road, when he began to cross it, and to the right of the road was a public house. 2

4 The defendant gave evidence that there were taxis outside the pub from which people sometimes ran out in the road. It was, therefore, necessary for him to check his mirror, blind spot and to watch to the right, but said that when he noticed the claimant was in the road, he could not avoid the collision. It was held that the evidence suggested that the claimant had been stationary at the kerb and had then entered the road, increasing his speed so that he was striding and almost at a jog. The court held that a reasonable driver would have monitored the road ahead to ensure that he had identified any hazards, and had the defendant not looked away for so long without looking at the whole road ahead, he would have seen the claimant as a potential hazard on the pavement stepping out into the road. Primary liability was, therefore, established. It was also held that the claimant had misjudged the situation and had crossed the road when it was unsafe to do so, walking quickly into the defendant s path. The court determined contributory negligence at 40%. Carol Bright v Motor Insurers Bureau [2014] The claimant pedestrian had been seriously injured in a road traffic accident and brought a claim for personal injury against the driver, but when his insurance company avoided its obligations, she brought a claim against the Motor Insurers Bureau (MIB). The claimant signed a conditional fee agreement with her solicitors which provided for a two stage success fee. The MIB denied liability and argued that the claimant had been contributory negligent. The claim settled shortly before trial and the claimant s costs included a success fee of 75%. The MIB contested this and offered 30%. The master held that the MIB s offer adequately reflected the risk and did not consider that it would be reasonable to increase the percentage uplift from 30%, simply because the case settled so close to trial. On appeal, it was held that the reasonableness of the success fee was to be determined by reference to the facts and circumstances as they appeared to the solicitors at the time when the CFA was entered into. The master s conclusion that the MIB would have difficulty contesting liability was supported by what was known at the time of entering into the CFA, namely, in circumstances where the driver reversed at speed into the claimant. The risks to the claimant revolved around a part 36 offer and the complications that might ensue from a finding of contributory negligence. Applying C v W [2008], in which the court of appeal substituted a 20% success fee for the risk of failure to beat a rejected part 36 offer where contributory negligence was an issue, it was held that the master did not err in his approach of assessing a reasonable success fee at 30% and the appeal was dismissed. 3

5 ARTICLES guidance for the instruction of experts in civil claims 2014 Since 1 December 2014, new guidance on the instruction of experts in civil claims has been implemented. The new guidance, entitled guidance for the instruction of experts in civil claims 2014, replaces the 2005 protocol for the instruction of experts to give evidence in civil claims (amended October 2009) which was annexed to part 35 of the civil procedure rules (CPR). The purpose of the new guidance is to assist litigants, those instructing experts and experts themselves to understand best practice in complying with part 35 of the CPR and court orders. Whilst the substance of the new guidance is largely unchanged from the protocol, it better reflects the spirit of the Jackson Reforms from April 2013, focusing on the changes those reforms introduced to case and costs management generally and to expert evidence specifically. The new guidance in full can be located in the September 2014 edition of Dolmans Insurance Bulletin. However, several key provisions are outlined below. Under the new guidance, there is a requirement that experts must (formerly should ) provide opinions that are independent. An expert s report must contain a statement that the expert is not only aware of the requirements under part 35 and the practice direction, but that they have been complied with. There is now a specific reference to the requirement under part 35 for a party to provide a costs estimate in relation to any proposed expert evidence. Where a party appoints their own expert in addition to a single joint expert, the guidance explains that the cost of such an expert will not be recoverable from another party. This differs from the protocol, which stated that such costs may not be recoverable. Where a solicitor sends additional documents to an expert before their report is finalised, there is now a requirement for the solicitor to tell the expert whether any witness statements or expert reports forming part of such documentation are updated versions of those previously sent and whether they have been filed and served. In addition, before filing and serving an expert report, solicitors must now check that any witness statements and other expert reports relied upon by the experts are the final saved versions. Where there is to be sequential exchange of reports, the guidance provides that the defendant s report should not repeat information adequately dealt with in the claimant s report, but should focus on the material areas of difference with the claimant s report. 4

6 There is also reference to the court s power to order hot-tubbing within the new guidance. This is a practice whereby experts from the same discipline give evidence at the same time and in each other s presence. The guidance endorses this practice stating that concurrent evidence can save time and costs and assist the judge in assessing the difference of views between experts. The guidance requires that experts shall be kept informed about deadlines for all matters concerning them and should be aware that sanctions might apply for non-compliance with part 35 or court orders, which may include costs penalties against those instructing the expert (including wasted costs order) or the expert themselves (such a disallowance or reduction of the expert s fee). In more extreme cases, an expert could face contempt of court leading to a fine or imprisonment. Whilst it remains to be seen whether, in reality, the guidance fundamentally changes the way in which practitioners instruct their experts, the new guidance certainly places greater responsibility upon experts and those instructing them to ensure compliance with part 35 of the CPR. whiplash reform programme update : independence in medical reporting and expert accreditation The first tranche of the government s whiplash reform programme was implemented on 1 October 2014 via changes to the Civil Procedure Rules and the Pre- Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, under the Civil Procedure (Amendments No.6) Rules The reforms build on the previous reforms to civil litigation funding and costs through provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and are aimed at removing unnecessary costs from the system. As outlined in our summer 2014 publication, the key reforms from the first phase are: Fixed costs for medical reports for use in low value soft tissue (whiplash) road traffic accident personal injury claims ( 180 for the initial report); Limiting medical evidence to a single report in most cases (except in exceptional circumstances where a clear case is made otherwise); Prohibiting the reporting expert from also being a treating physician, which removes incentives to encourage or recommend unnecessary treatment; Discouraging pre-medical offers to settle, and; Allowing defendants to give their account of the accident to the medical expert, where appropriate. 5

7 Work has continued on the next phase of reforms and the second tranche of reforms deals primarily with three major reforms: (1) A new independent IT hub which will allocate medical experts to claims; (2) A mandatory accreditation scheme for experts, in order to improve standards of diagnosis, prognosis and report writing, and; (3) Searches to be carried out by claimant lawyers on any potential client. The consultation for these reforms began on 4 September 2014 and ended on 1 October 2014, with the government s response being published on 4 December Further amendments to the pre-action protocol for low value personal injury claims in road traffic accidents and to the civil procedure rules implement the second phase of the whiplash reform programme. breaks any direct links between those commissioning medical reports and the medical experts themselves. This system will be delivered via a new independent IT hub which will be operated by a not for profit company (the working title for which is MedCo ) through which suitable experts for medical reporting organisations (MRO s) can be sourced. From 6 April 2015, medico-legal experts and MRO s will need to be registered with MedCo in order to provide initial medico-legal reports for RTA soft tissue injuries, and the CPR and pre-action protocol have been amended to provide that in respect of any claim notification form sent on or after 6 April The first report in a soft tissue injury claim must be a fixed cost medial report commissioned from a medical expert or medical reporting organisation (MRO) sourced via the MedCo portal. independence in the commissioning of reports The government is firmly committed to upholding the independence of medical evidence relied upon in support of whiplash claims. Therefore, medical experts, or any intermediary organisation through which the report is provided, should not have a real of perceived financial interest in the outcome of the claim. In order to reinforce the independence of the commissioning of reports, the government has decided to introduce a new system of allocating medical experts to claims which A strong and balanced governance system for MedCo has been agreed with stakeholders from across the personal injury industry; MedCo will have 9 directors drawn from the insurance, medical and claimant sectors of the industry and an independent chair. The Association of British Insurers (ABI) have agreed to fund and build the IT system required to support this new service and are working closely with the Motor Insurers Bureau. 6

8 The system will provide users with a randomly selected choice of medical experts or MRO s who they may instruct. This selection will be filtered to facilitate a search from locally available experts and MRO s and to exclude those experts or MRO s with a direct financial link with the commissioner. A number of safeguards will be built into the system. The system will operate to avoid any individual expert or MRO never being selected. Users may choose whether to search for individual experts or MRO s and will retain a choice as to which of those randomly selected experts or MRO s to instruct. The system will not operate so as to allocate a share of the available work to a particular MRO or expert. Market choice remains an important part of the process. accreditation for experts writing reports Following strong stakeholder support for a system of accreditation to ensure minimum quality standards, the IT hub will introduce a new accreditation scheme for all experts wishing to continue to produce medical reports for low value soft tissue injuries arising from road traffic accidents. The government has decided that both medical experts and MRO s will be subject to an objective and transparent accreditation process which will assure both the quality of medical reports and, more generally, the service levels to be provided. In order to remain on the MedCo system, all experts will have to meet the minimum standards set by the accreditation process. The scheme for MRO s will be based on objective criteria related to service levels and other operational information, which will also provide an incentive for MRO s to improve the quality and efficiency of their services. Details of the accreditation schemes for experts and MRO s will be published in due course. All current experts will be allowed to register with MedCo when the system goes live (planned to be in early 2015) and experts will then be given a period of time (yet to be determined) in which to gain their accreditation. Any experts who are unable or unwilling to attain accreditation by the deadline will have their details removed from the MedCo system and these experts will only be able to re-register once accreditation is attained. The accreditation (and re-accreditation) requirements will also include a peer review, and accredited experts who do not continue to meet appropriate standards will face sanctions, such as the removal of, or restrictions applied to, their accreditation. With effect from 1 January 2016, medical experts must be accredited by MedCo Registration Solutions in order to provide the initial fixed costs medical report in a soft tissue injury claim. 7

9 data sharing to fight fraudulent claims The third element of this phase of reforms is the government s support for the recent industry data sharing agreement relating to data on claimants patterns of behaviour. Following detailed discussions on how to implement this agreement, from 1 June 2015, there will be a mandatory requirement for claimant representatives to check the claims history of potential clients before sending the claim notification form to the defendant s insurer in accordance with the pre-action protocol. A new IT interface will provide the relevant data and collect management information related to the searches undertaken to prevent fraudulent and unnecessary whiplash claims at source. It is proposed that claimant representatives will be able to obtain data on the number of previous personal injury claims made by potential clients within the previous 5 years, putting them in a better position to make a judgment as to whether they wish to accept the potential client s instructions. The system will also record the searches undertaken, including data on (multiple) searches undertaken by different legal representatives on individual potential claims. Claimant representatives will be required to input the unique reference number generated by the search into the claims notification form. The mandatory system will prevent a whiplash claim being started under the preaction protocol unless a search has been carried out. For those claimants who choose to settle their claim for compensation directly with an insurer, the mandatory search will be carried out by the insurer, as is currently the case. In order to strike a fair balance, if a claimant does not comply with this requirement, they will be given a second opportunity to complete the check and to prove that they have done so. They will, however, face costs sanctions if they do not then comply with this requirement and proceed, successfully, with a claim. This is an important step to tackle the issue of fraudulent or unnecessary claims at source. However, the government have pointed out that it is important to note that previous claims are not, in themselves, evidence of fraud or a bar to the claim being taken on. It is anticipated that such data will also help identify information useful to the medical expert relating to possible underlying conditions or previous injuries which could affect the value of a genuine claim. If there are any topics you would like us to examine, or if you would like to comment on anything in this bulletin, please the editor: Simon Evans at One Kingsway, Cardiff, CF10 3DS Tel : Fax : This update is for guidance only and should not be regarded as a substitute for taking legal advice. Dolmans 8

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