This contains notes and answers for entire Personal Injury and Clinical Negligence elective module on the LPC at the University of Law for 2019/20.
With these notes I achieved a distinction in this module.
The detailed notes are suitable for anyone studying Personal Injury & Clinical Negligence ...
Overriding objective r1.1 – Regard to costs involved and deal with matter expeditiously and
proportionately
Pre-action activity is v important for PI claims
95% of RTAs are settled
Examples of what is covered by PICN litigation…
¨ Accident involving a car
¨ Public liability claim e.g. Slipping/tripping on pavement (against council)
¨ Trapping hand or leg in machinery
¨ Claim against employer for psychiatric injury due to occupational stress
¨ Occupational disease e.g. breathing or skin problem due to airborne particles (often stem from
historic workplace activities)
¨ Psychiatric injury generally
¨ Medical professional fails to diagnose disease/broken bone etc
Role of PICN solicitor?
¨ Dealing with vulnerable clients
¨ Some clients will have significant injuries
¨ Manage expectations of the client while maintaining a good relationship
¨ Mindful of time and costs of taking claim to trial
¨ Competing for and retaining clients
Where employers or defendant drivers have insurance, usually decision of insurer whether to fight
on liability or settle
à May want to fight a case if it will have repercussions on other claims being brought (e.g. will
encourage others to bring claims)
Clinical defendants will be thinking of more than financial consequences – medical negligence could
be attack on practitioner’s professional reputation
*NHS Resolution is the indemnity insurer for most NHS trusts
RTAs - Establishing Liability (and then quantum)
Who are the Þ Individual
parties? Þ Groups of individuals
Þ Children/incapacitated due to injury
¨ Injured person/estate or dependents of deceased person
e.g. Drivers,
Passengers,
Pedestrians,
Driver’s insurers (under Reg 3, Europ Communities (Rights against Insurers) Regs 2002),
Driver’s employer (vicarious liability if acting in course of employment),
Motor Insurers’ Bureau (if D uninsured) or notify MIB if D unidentified – although cannot
commence court proceedings) ,
Highway Authority (negligence/breach of statutory duty e.g. poor road
surface/inadequate)
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, NB: Separate claimants in the same claim should instruct separate lawyers in case of
potential conflict of interest arising
Legal and 1. Duty of care
Factual basis One road user to another under neighbour principle in Donoghue v Stephenson
Standard of care – To drive to the standard of the ordinary competent driver, and not
Common law lowered if driver is learner driver (Nettleship v Weston)
negligence –
C needs to All road users have a duty of care to avoid causing injury to others whom it may be
show… reasonably anticipated may be injured by their actions or failure to act.
Duty is not so high that it guarantees road users safety (Ahanonu v South East Kent Bus
Company Limited)
Road user = drivers of vehicles, riders of motorbikes/bicycles, passengers, pedestrians,
owners of roadside property (signs and bollards), local highway authority
2. Breach of duty
Taken on the facts of each case individually
Highway Code legislation is consulted
How did the D fail to meet the standard in this case?
e.g. Driving too fast;
Driving without paying attention;
Driving whilst tired;
Failure to maintain vehicle
Parking vehicle where it might be dangerous
Stepping into path of moving vehicle
Road not kept in good repair
Relevant Criminal Convictions: (pg 31)
§ Vehicle maintenance (s40A and s41A RTA 1988)
§ Poor driving
Þ Speeding (adjust driving to prevailing conditions and circumstances –
Highway Code)
Þ Dangerous driving (s2 RTA 1988)
Þ Careless driving (s3 RTA 1988)
§ Influence of alcohol or drugs
Þ S4 – driving or attempting to do so when unfit due to drink/drugs
Þ S5 – alcohol level exceeds prescribed limit
Þ S5A – drives or in charge of vehicle when concentration of controlled
drugs in exceeds of specified limits
§ Use of mobile phones (s41D)
§ Not wearing seat belt or child restraint (s14)
§ Motorcyclist not wearing safety helmet (s16)
Breaches of Highway Code
§ Breach itself does not render person liable to criminal proceedings (indicated in
the code which do result in offence being committed)
§ S38(7) RTA allows all breaches of Code to be relied upon in civil courts to establish
breach of duty
§ Not a presumption of negligence, but one consideration of the court
2
,3. Causation of damage
Did the wrongful act or omission cause the injury and other losses?
e.g. The ‘but for’ test:
But for the breach, the C wouldn’t have sustained the injury/damage they sustained
Barnett v Kensington and Chelsea
Any intervening act? (consider, but generally unusual)
Causation will be disputed where D argues:
§ Cause of injury wasn’t D’s breach of duty but C’s own negligence
§ Accident could not have caused injuries complained of
4. Remoteness
What were the losses to the C and were they reasonably foreseeable, not too remote?
(The Wagon Mound)
This is where pain diary, receipts and invoices etc are needed
5. Consider defences
Either:
Complete defence
OR
Contributory negligence –
Þ C has a duty of care of his own safety and to take reasonable precautions against
risks of injury of which he was aware or ought to have been aware
Þ i.e. the C’s actions (C not wearing seatbelt, C driving too fast for conditions of
road)
Þ Will reduce C’s damages (s1(1) Law Reform (Contributory Negligence) Act 1945) IF
D can prove on balance of probabilities:
a) That C was at fault
b) Fault was causative of injury suffered; and
c) It would be just and equitable for C’s damages to be reduced
NB: Very young children are never held to have been negligent
Examples of reductions:
¨ Driver/passenger not wearing seat belt (Froom v Butcher)
Þ Reduced by 25% if injury wouldn’t have happened at all
Þ Reduced by 15% where injury would’ve been less severe
Þ Courts reluctant to depart from these guidelines (Stanton v Collinson)
¨ Motorcyclist not wearing crash helmet – damages reduced by 15% (O’Connell v
Jackson)
¨ Motorcyclist helmet’s chin strap not fastened – reduced by 10% (Capps v Miller)
¨ Passenger allows himself to be carried in vehicle when he knows driver
driven/shouldn’t be driving –reduced by 20% (Owens v Brimmel)
¨ Suggestion that cyclist not wearing helmet would result in contributory negligence
(Smith v Finch)
**If more than one way of contributing to injuries applies, court will not necessarily just
add the normal % reductions together. (Gleeson v Court)
3
, Con-neg damages reduction will unlikely negatively affect motorist with fully
comprehensive insurance including personal injury cover as insurer will indemnify him for
own injuries irrespective of blame - but pedestrians unlikely to have insurance so will
suffer loss in real terms
*Always consider con-neg with RTA
Burden of Burden of proof rests with the CLAIMANT
Proof
Res ipsa loquitur – *Not common in RTA
- Means facts of case are sufficient proof in themselves
- Applied in circumstances where C is unable to adduce any evidence as to how or
why accident happened but can show:
A. Accident is such that in the ordinary course of events it would not have
occurred without negligence AND
B. Whatever inflicted or caused the damage was under the sole management
and control of the D
- The evidential burden then shifts to the D – in order to avoid liability, the D must
either give an explanation of what happened which is inconsistent with negligence
or where he is unable to give such an explanation, demonstrate that he exercised
all reasonable care
Limitation Three years from date of knowledge
Period
Evidence ¨ Documents
- PAR
- Photos (of location and client’s injuries)
- Site plan
- Client’s proof of evidence
Þ Direction in which he was travelling
Þ Time of day
Þ Details of any passengers
Þ Weather conditions
Þ Speed of travel
Þ Familiarity with car/road
Þ Any witnesses
Þ Make and registration number of all vehicles involved
Þ Who is responsible and why
Þ What happened immediately after incident
Þ What he said to anyone/anyone said to him
Þ Were police called and who attended – if not, why not
Þ Client aware of pending prosecutions
Þ Comprehensively insured? And amount of excess?
Þ Owner of vehicle – details of owner if not
- Map of road
¨ Real evidence
¨ Witnesses
- Trace and interview asap
- Preferably independent
¨ Experts e.g. accident reconstruction
¨ Complete site visit
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