The Practical Lawyer

To what extent can a defendant who causes an accident, be liable if the claimant is injured in a second accident?

Rome II is the EC Reg which lays down rules for deciding which law is applicable when accidents occur abroad. The introduction of Rome II meant a lowering of damages for most UK litigants (because the applicable law under Rome II is more likely to be a foreign jurisdiction where the accident occurred). However, there has been considerable argument about the date from which Rome II came into effect.

The 7th edition of the Ogden tables was published on 10 October. In general terms, the new tables are little more than an adjustment to bring the tables up-to-date since they were last published four years ago (eg higher life expectancies). The real change will come in Ogden 8, which is expected to be published next year; that is likely to contain more radical changes, including tighter guidelines on contingencies other than mortality, and on the definition of 'disabled'.

If a PI award includes payments for providing family care, then it is important to appreciate that family members who provide care should not pay tax or NI. It seems that this exemption is often overlooked by the person operating the payroll for the family (or that person may be unaware that a family connection exists and that they should not be making tax and NI deductions). This is especially likely if the family member has a different surname, which often happens when the parent carer remarries, or step-parents or foster parents provide the care.

Two recent tripping cases:

The pre-action protocol for low-value RTA claims has been amended to emphasise the difference between an open offer, and a Part 36 offer.

The Cancellation of Contract Made in a Consumer's Home or Place of Work Regs 2008 give consumers a 'cooling off' period when they sign a contract at home. In general terms, the Regs apply to a contract made 'during a visit by the trader to the consumer's home or place of work, or to the home of another individual'.

How should the court deal with a loss of earnings claim when earnings have been derived, in whole or in part, by unlawful or illegal means (eg without having paid any tax or NI)?

Whenever a pedestrian attempting to cross the road is struck by a vehicle, the starting point for assessing the apportionment of blame is Baker v Willoughby [1970] AC 467 where the HL contrasted the slow-moving pedestrian, who is unlikely to be a danger to anyone, with the relatively fast-moving motorist who is a potential danger ('it is quite possible that the motorist may be very much more to blame than the pedestrian'). Following that decision the courts have consistently imposed a high burden on car drivers to reflect the fact that a vehicle is considered a 'potentially dangerous weapon'. As was said in Eagle v Chambers [2003] EWCA Civ 1107 'it is rare indeed for pedestrians to be found more responsible than a driver unless the pedestrian suddenly moved into the path of an oncoming vehicle'.

Section 41 Highways Act 1980 requires the maintenance and repair of defects in the fabric of the highway itself. But, the removal of obstructions, or surface-lying materials, has been held not to be within the scope of s41. For instance, if a cyclist skids because of a piece of chewing gum on the road surface, then the LA will not be liable