COMPENSATION FOR PERSONAL INJURIES

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1 COMPENSATION FOR PERSONAL INJURIES First Edition Peter Barrie MA Barrister, Recorder OXFORD UNIVERSITY PRESS

2 Preface Acknowledgments v vi Table of cases xv Table of Statutes xxiii Table of rules, practice directions, regulations etc Table of codes, agreements etc xxix xlv INTRODUCTION 1 COMPENSATION FOR INJURIES: AN OVERVIEW Introduction The importance of insurance The place of tort compensation A compensation culture? Purpose and justification Insuring oneself The pattern of change Pocket calculators Clinical negligence 6 2 MEANINGS OF LEGAL WORDS AND REFERENCES Introduction Glossary 2.3 Legal Latin Abbreviations, references and bibliography 13 LIABILITY: GENERAL PRINCIPLES 3 GROUNDS FOR CIVIL LIABILITY Introduction Negligence Breach of statutory duty Nuisance Trespass Breach of contract Vicarious liability 22 4 CAUSATION AND REMOTENESS Introduction But-for causes A 'material contribution' is sufficient The test of foreseeability for remoteness of damage The kind of härm The interruption of causation Mitigation of loss Unexpectedly severe consequences Successive injuries 32 5 PROOF AND UNCERTAINTY Bürden and Standard of proof Past and future uncertainty 35 vii

3 Sources The 1945 Act Children Seat belts CONTENTS 6 CONTRIBUTORY FAULT 38 7 DEFENCES Introduction Willing acceptance of risk The claimant's wrongdoing Accident, Act of God, involuntary act Necessity Limitation Exclusion clauses 46 Sources 47 LIABILITY: PARTICULAR CASES 8 ROAD ACCIDENTS Introduction Judicial decisions 52 Sources 55 9 THE MOTOR INSURERS'BUREAU 57 Sources HEALTH AND SAFETY AT WORK Common law duties Breach of statutory duty The Work Equipment Regulations The Workplace Regulations The Manual Handling Regulations The Protective Equipment Regulations The Management Regulations ACCIDENTS ON BUILDING SITES 105 Sources TRIPPING AND SLIPPING ACCIDENTS Introduction Pavements Supermarkts and other premises Tripping and slipping at work Claims handling 124 Sources DEFECTIVE PRODUCTS l Introduction Breach of contract Claims in the tort of negligence Strict liability under the Consumer Protection Act Package holidays 13 Sources 1-^1 viü

4 14 THE STATE OF LAND AND BUILDINGS The Occupiers' Liability Act Common law Occupiers and visitors Trespassers Defences Liability of landlords 139 Sources ANIMALS Introduction The Animals Act Sources SPORTS INJURIES Introduction Liability of players to each other Liability of referees Liability to spectators Liability for grounds and premises DELIBERATELY INTENDED INJURIES Introduction Assaults False imprisonment 156 Sources CRIMINAL INJURIES COMPENSATION 159 Sources LIABILITY FOR PSYCHIATRIC INJURY Psychiatrie injuries Injury together with physical injury Psychiatrie injury standing alone Psychiatrie injury where there is also risk of physical injury Psychiatrie injury frorn witnessing physical injury to others A 'recognised psychiatric illness' Psychiatric causes of physical Symptoms CLINICAL NEGLIGENCE Introduction Which defendant? Proof of negligence Consent Public funding Practical points The future INJURIES CAUSING DEATH Introduction The living claimant After death 206 Sources 208

5 22 INQUESTS 209 Sources 211 INJURIES 23 MEANINGS OF MEDICAL TERMS NOTES ON SOME COMMON INJURIES Introduction Brain injuries Whiplash Back injuries Post-traumatic stress disorder Illness behaviour NOTES ON SOME OCCUPATIONAL DISEASES Introduction Deafhess Repetitive strain injury or RSI Vibration White Finger Dermatitis Occupational asthma Other lung diseases Stress at work 295 ASSESSMENT OF DAMAGES 26 THE RANGE OF COMPENSATION PAYMENTS Compensatory damages Nominal damages Aggravated damages Exemplary damages National insurance benefits Private insurance benefits Criminal injuries compensation INJURY DAMAGES Pain and suffering and loss of amenity The Judicial Studies Board Guidelines Case law sources Inflation Loss of congenial employment Comment 305 Sources THE USE OF MULTIPLIERS The general principle The rate of return The Ogden Tables 329 Sources LOSS OF EARNINGS The simple claim Tax and NJC 344

6 29.3 Pension contributions 29.4 Sick pay Uncertain or fluctuating earnings Small businesses and partnerships Alternative work: the New Earnings Survey 29.8 Tax and NIC rates HANDICAP IN THE LABOUR MARKET LOSS OF PENSION Introduction Employee final earnings schemes Other pension schemes NURSING AND CARING Medical treatment Professional and residential care Recompense for care freely given How much Establishing a regime Rehabilitation Comment on care damages SPECIAL NEEDS AND ACCOMMODATION Special needs Accommodation OTHER CLAIMS INCLUDING CREDIT HIRE Damaged belongings Damaged vehicles Loss of use and credit hire Domestic tasks such as housework and DIY Fuelcosts Travelling expenses STATE AND OTHER BENEFITS Introduction Benefits The treatment of benefits in a claim THE BENEFIT RECOUPMENT SYSTEM 380 Sources FATAL ACCIDENTS ACT CLAIMS ASSESSMENT Introduction The multiplicand The multiplier Disregard of other benefits Calculation of Claims 396 Sources PROVISIONAL DAMAGES 407 Sources 410 xi

7 39 STRUCTURED SETTLEMENTS 414 Sources INVESTMENT ADVICE AND THE COURT OF PROTECTION Investment advice The Court of Protection Special needs trusts 423 Sources INTERIM PAYMENTS 428 Sources INTEREST General damages Special damages Delay Interest on a successful Part 36 offer Procedure 437 Sources 439 PRACTICE 43 RELATIONSHIPS WITH CLIENTS AND FUNDING Where to turn for advice Traditional engagement of solicitors Community Legal Service funding or legal aid Conditional fee agreements Legal expenses insurance Comment on conditional fee agreements 445 Sources BEFORE COURT PROCEEDINGS BEGIN 459 Sources GENERAL RULES OF THE CPR 474 Sources THE CLAIM FORM 501 Sources STATEMENTS OF CASE Introduction General approach Particulars of claim Defence Request for further information 520 Sources SCHEDULES AND COUNTER-SCHEDULES CASE MANAGEMENT AND ALLOCATION 549 Sources 551 xü

8 50 STRIKING OUT AND SUMMARY JUDGMENT Introduction Striking out Summary judgment 576 Sources SMALL CLAIMS 584 Sources FAST TRACK CLAIMS 594 Sources THE MULTI-TRACK 613 Sources MORE THAN TWO PARTIES Tactics Bullock Orders and Sanderson Orders The new provisions 631 Sources DISCLOSURE OF DOCUMENTS AND VIDEOS The list of documents Privilege Surveillance Videos 642 Sources EVIDENCE OF THE FACTS Introduction Witnesses Hearsay evidence 658 Sources EXPERTS 675 Sources APPLICATIONS AND TRIAL Introduction Evidence in chief Cross-examination Re-examination 692 Sources TIME LIMITS FOR CLAIMS: LIMITATION 707 Sources CHILDREN AND INCAPABLE PATIENTS 721 Sources 723 xüi

9 61 SETTLEMENT AND PART Principles Settlement Privilege Claimant's Part 36 offer 739 Sources COSTS 62.1 General principles 62.2 Summary assessment 62.3 Detailed assessment 62.4 The indemnity principle 62.5 Wasted costs 62.6 Security for costs 62.7 Sources 63 APPEALS Permission to appeal Procedure for the appeal Grounds on which an appeal can succeed To which court does an appeal lie? 827 Sources REFERENCE INFORMATION 859 Calendar 1997 to Conversion multipliers 863 Income tax and National Insurance rates 863 Useful addresses and Websites 865 Addresses of courts 865 Some after-the-event insurance firms for conditional fee agreements 879 INDEX xiv

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