Participation of vulnerable parties in civil litigation: split trials and stays (AXX v. Zajac) – Exchange Chambers

‘AXX (A protected party by his litigation friend XRE) v. Zajac [2022] EWHC 2463 is the first reported case in the High Court (KBD) concerning the ‘new’ CPR Practice Direction 1A which requires the court to take all proportionate measures to address any impediment to a party’s participation in proceedings caused by their ‘vulnerability’. Master McCloud granted an application made on behalf of the Claimant (who was a protected party due to a psychotic condition which had arisen after his accident) for a trial of causation as a preliminary issue on the basis that, if successful at that stage, the Claimant could seek interim funding for treatment to address his psychiatric symptoms and allow him to participate fully in the subsequent quantum trial. The Master also refused an application from the Defendant for an ‘unless’ order (whereby the claim would be stayed unless the Claimant cooperated with examinations to be performed by the Defendant’s instructed medical experts) because of concerns about the Claimant’s capacity to consent to examination. This decision illustrates the important role that PD1A has in shaping case management decisions to protect the interests of parties with vulnerabilities.’

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Exchange Chambers, 22nd December 2022

Source: www.exchangechambers.co.uk

Patient fault and contributory negligence in clinical negligence – Exchange Chambers

‘Professional experience and the reported cases (considered below) suggest issues of breach, causation and contributory negligence are invariably intertwined. The advisor’s role is to carefully unpick the strands. Whilst there is a factual and legal overlap, the issues need to be considered separately on their individual merits.’

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Exchange Chambers, 22nd December 2022

Source: www.exchangechambers.co.uk

Case Comment: Khan v Meadows [2021] UKSC 21 – UKSC Blog

‘In this post Rebecca Khan, a Legal Support Assistant at Matrix Chambers, comments on the case of Khan v Meadows [2021] UKSC 21 – handed down on the 18th of June 2021. This appeal raised important questions about the application of the scope of duty principle in clinical negligence cases. The judgment is handed down together with the court’s judgment in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20.’

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UKSC Blog, 4th January 2023

Source: ukscblog.com

Clangers: LPAs and duties of care – Local Government Lawyer

Posted November 11th, 2022 in causation, damages, duty of care, local government, negligence, news, planning by tracey

‘Does a local planning authority owe a duty of care to an applicant for planning permission? Simon Ricketts analyses a recent High Court ruling.’

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Local Government Lawyer, 11th November 2022

Source: www.localgovernmentlawyer.co.uk

Diagnosis and Management of Strokes in Emergency and Primary Care Settings – Ropewalk Chambers

Posted October 20th, 2022 in causation, chambers articles, expert witnesses, medical treatment, news by sally

‘The diagnosis and treatment of suspected strokes and transient ischaemic attacks (TIAs) is a very broad topic. Depending on the context, determination of the issue of breach of duty is likely to involve consideration of relevant NICE guidance and individual NHS Trust guidelines. It is invariably fact-sensitive and involves detailed expert evidence. Even when breach of duty is not in issue and/or is established in evidence, causation is likely to be contentious in all but the clearest of cases due to the absence of definitive evidence or trial data regarding the efficacy of anticoagulant treatment.’

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Ropewalk Chambers, 11th October 2022

Source: www.ropewalk.co.uk

Claimant Benevolence in a Clinical Negligence Setting, by Tom Bourne-Arton – Farrar’s Building

‘Tom Bourne-Arton reviews the relatively recent case of Richins v Birmingham Women’s and Children’s NHS Foundation Trust [2022] EWHC 847 (QB) in which HHJ Kelly had to consider, amongst other matters, whether it was appropriate to apply “Claimant benevolence” otherwise known as “Keefe benevolence” when determining causation.’

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Farrar's Building, 4th May 2022

Source: www.farrarsbuilding.co.uk

Causation and Intervening Medical Treatment – Ropewalk Clinical Negligence Blog

Posted February 22nd, 2022 in causation, hospitals, medical treatment, negligence, news, personal injuries by tracey

‘As lawyers representing parties in clinical negligence cases, we will often encounter scenarios where the injured party has been involved in a road traffic accident or an accident at work and subsequently seeks medical assistance for the purpose of treating their injuries. As a result of negligent medical treatment, the Claimant’s injuries are aggravated, or further injury is suffered. In such circumstances, there may be multiple potential Defendants to any legal claim.’

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Ropewalk Clinical Negligence Blog, 17th February 2022

Source: www.ropewalk.co.uk

Identifying and Proving Breach of Duty Relating to Ambulance Response Time – Ropewalk Clinical Negligence Blog

Posted February 7th, 2022 in causation, chambers articles, delay, duty of care, hospitals, news by tracey

‘When you call for an ambulance, you generally want it now. To you, it’s an emergency and an emergency requires an immediate response.

The reality of a modern NHS generally and Ambulance Trusts specifically mean that such an expectation is rarely met. Thankfully, in the vast majority of cases the timing of the arrival of the paramedic is of no real consequence. More important to outcome can be what happens once the paramedic alights from the ambulance and attends to the patient, how long it takes from that point until admission to A&E or the unit to which the patient is taken for necessary specialist care. These latter issues can all have a bearing on the timing, the quality and the nature of care received by the patient.’

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Ropewalk Clinical Negligence Blog , 3rd February 2022

Source: www.ropewalk.co.uk

Causation Strikes Again: Dalchow v St George’s University NHS Foundation Trust – Ropewalk Clinical Negligence Blog

Posted January 28th, 2022 in causation, chambers articles, expert witnesses, medical treatment, negligence, news by tracey

‘On 20 January 2022, Hugh Southey QC (sitting as a Deputy Judge of the High Court) handed down judgment in the case of Dalchow v St George’s University NHS Foundation Trust [2022] EWHC 100 (QB). The decision gives rise to some interesting considerations on causation and the judicial assessment of expert evidence, and provides a useful illustration of the application of Wisniewski v Central Manchester Health Authority [1998] PIQR P324.’

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Ropewalk Clinical Negligence Blog , 25th January 2022

Source: www.ropewalk.co.uk

Paralysed jockey Freddy Tylicki sues rider Graham Gibbons for £6m over fall – BBC News

Posted November 30th, 2021 in causation, horse racing, negligence, news, personal injuries by tracey

‘Former Flat jockey Freddy Tylicki’s £6m negligence claim against fellow rider Graham Gibbons has begun in the High Court.’

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BBC News, 29th November 2021

Source: www.bbc.co.uk

The (Rebuttable) Presumption of Honesty – Hailsham Chambers

Posted November 2nd, 2021 in causation, fiduciary duty, loss of chance, negligence, news, set-off, solicitors by sally

‘The claim related to an opportunity to develop a Jaguar Land Rover (JLR) dealership in Wolverhampton (the Wolverhampton Opportunity), which the claimants alleged was lost due to the negligence of the defendant solicitors.’

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Hailsham Chambers, 8th October 2021

Source: www.hailshamchambers.com

Material Contribution in the Spotlight (Again) following Thorley v Sandwell & West Birmingham Hospitals NHS Trust – Ropewalk Clinical Negligence Blog

‘This blog deals with the causation aspects of Thorley v Sandwell & West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB). Philip Godfrey dealt with the factual background and breach of duty aspects of this case in his recent blog. In short, Soole J preferred the evidence of the Defendant’s expert and dismissed the claim on that basis. In so doing, however, he concluded that as a matter of law the material contribution approach to causation does not apply when there is a single tortfeasor and an indivisible injury.
Soole J is surely right to acknowledge that this is an issue “ripe for authoritative review” (see [151]), but it is suggested that his reasons for reaching the above conclusion are somewhat questionable.’

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Ropewalk Clinical Negligence Blog, 26th October 2021

Source: www.ropewalk.co.uk

Breach of Duty and Hospital Guidelines: Thorley v Sandwell & West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB) – Ropewalk Clinical Negligence Blog

‘This case considered the interplay between hospital guidelines and breach of duty in the clinical negligence setting.’

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Ropewalk Clinical Negligence Blog, 12th October 2021

Source: www.ropewalk.co.uk

‘Negligent’ London firm defeats £12m claim for lack of causation – Legal Futures

Posted October 1st, 2021 in causation, construction industry, damages, law firms, negligence, news by tracey

‘Leading London law firm Withers has fought off a £12m claim on the basis of causation after the High Court ruled that it gave negligent advice to a property developer.
However, His Honour Judge Pelling QC, sitting as a High Court judge, found that the firm gave negligent advice on a settlement agreement, leading to an award of £270,000 in damages.’

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Legal Futures, 1st October 2021

Source: www.legalfutures.co.uk

Underwriting on trial – Mills & Reeve

Posted August 3rd, 2021 in causation, disclosure, evidence, inducements, insurance, misrepresentation, news by sally

‘James Thompson and Suzanne El-Safty consider the importance of underwriting evidence for insurers attempting policy avoidance, in the context of Zurich Insurance plc v Niramax Group Ltd [2021] EWCA Civ 590 (“the Niramax case”) and Jones v Zurich Insurance plc [2021] EWHC 1320 (Comm) (“the Jones case”).’

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Mills & Reeve, 30th July 2021

Source: www.mills-reeve.com

Meadows v Khan in the Supreme Court: Scope of Duty in Clinical Negligence Claims – Ropewalk Clinical Negligence Blog

‘In Meadows v Khan [2021] UKSC 21, the Supreme Court unanimously dismissed Ms Meadows’ appeal, finding that there was no principled basis for excluding a clinical negligence claim from the ambit of the ‘scope of duty principle’ in the tort of negligence. The judgment can be read here. This short blog looks at the majority’s reasoning.’

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Ropewalk Clinical Negligence Blog, 24th June 20201

Source: www.ropewalk.co.uk

Supreme Court Revisits Wrongful Birth Claims: an extended look — Robert Kellar QC and Owain Thomas QC – UK Human Rights Blog

‘In Khan v. Meadows [2021] UKSC 21 the Supreme Court has revisited the principles to be applied in “wrongful birth” claims: claims for the cost of bringing up a disabled child who would not have been born but for a doctor’s negligent medical advice/treatment. However, the judgment has implications beyond the world of clinical negligence litigation. The Supreme Court has taken the opportunity to clarify the components or ingredients of the tort negligence more generally. In particular, the Court has affirmed the importance of the “scope of duty” principle: a principle which limits the recoverability of damages wherever it applies. In particular, it is not sufficient for a claimant to establish that – with competent advice – they would have made a different decision about their treatment or care. They must also demonstrate that the particular harm that they have suffered fell within the scope of the defendant’s duty of care.’

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UK Human Rights Blog, 24th June 2021

Source: ukhumanrightsblog.com

Whistleblowing: causation, guidance for complex cases and judicial proceedings immunity – 3PB

‘In GMP v Aston we receive a helpful reminder of the approach to be applied in cases where there are multiple protected disclosures spanning a significant period and allegations of multiple detriments involving multiple perpetrators and multiple victims. The case also involves an alleged detriment consisting of evidence given in other tribunal proceedings which was subject to judicial proceedings immunity (JPI) and deals with the issue of whether evidence which is covered by JPI can amount to a detriment. Finally, where the issue of JPI had not been raised before the first instance Tribunal, the Appeal Tribunal considered whether it had to deal with this newly argued point (i.e. whether it was mandatory) or whether it had a discretion to consider the newly argued point (i.e. whether it was discretionary). The considerations when deciding whether or not to exercise the discretion are also set out.’

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3PB, 10th June 2021

Source: www.3pb.co.uk

The limits of a reply – Practical Law: Construction Blog

Posted June 11th, 2021 in causation, construction industry, contracts, news, pleadings by tracey

‘A claimant who receives a defence is not required to take any further step in relation to the statements of case. It can consider the pleadings closed and seek to move on to directions, disclosure, evidence and ultimately trial. Nevertheless, sometimes the claimant will want to react to or deal with the allegations made in the defence.’

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Practical Law: Construction Blog, 9th June 2021

Source: constructionblog.practicallaw.com

Defensive Advising Strategies 1: What you learn from practising in the field of professional negligence – Wilberforce Chambers

‘Relatively speaking, barristers usually have rather broad practices. Even if (like me) a significant part of their practice is concerned with advisory work and drafting, barristers are often also engaged on various litigious matters relating to their underlying area of expertise, including professional negligence claims. By contrast, despite exposure to a variety of areas of practice whilst training, the organisation of many firms of solicitors can often have the effect that private client solicitors know little of litigation. For example, I once saw a draft witness statement prepared by a private client solicitor, where the parties in the heading were referred to separately in each capacity – as with a deed. And it is particularly problematic that private client lawyers often do not know very much about the field of professional negligence.’

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Wilberforce Chambers, 13th May 2021

Source: www.wilberforce.co.uk