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Personal injury

Informed consent – damages?

Suppose a doctor fails to obtain a patient’s informed consent to an operation; are damages recoverable for that failure to obtain consent (irrespective of any damages for pain, suffering, loss of amenity, and financial losses)?  

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Res ipsa – clinical negligence

Res ipsa loquitor means ‘the thing speaks for itself’. In the PI world it has been applied to a wide range of cases, including objects falling from buildings, malfunctioning machines, collapsing cranes, and stones in buns.

The requirements for res ipsa to apply are:  

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Discrimination – civil courts

Most discrimination claims are heard in the ET (because they arise out of employment situations). But, discrimination claims against service providers, Ls, education establishments and associations are brought in the civil courts (county or High Court).  

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RTA insurance – fraud

Can an RTA insurer avoid liability to a third party because of fraud by the policy holder? The answer is ‘yes’ according to the CA’s interpretation of RTA 1988 in EUI [2012] and Sahin [2016]. In those cases it was held that the compensatory guarantee of RTA 1988 can even be circumvented by contractual exclusions and restrictions in cover.  

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Discount rate – next change

The discount rate was set at 2.5% in 2001, and remained at that level until it was lowered to -0.75% in February 2017. Because of complaints by the insurance industry, the Lord Chancellor is to change the approach that is taken when setting the discount rate.  

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Vicarious liability – independent contractor

The question of vicarious liability for the deliberate actions of an independent contractor has recently been considered in the context of claims against a doctor who carried out medical examinations for a bank.

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Defective premises – disrepair?

Under Defective Premises Act 1972, L owes a duty of care if there are defects in the state of the premises. But, this duty only arises if L has an obligation to maintain or repair the premises, or if L has a right (express or implied) to enter the premises to carry out maintenance or repair.

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Law reform – probate fees

The damages that can be claimed under the Law Reform (Miscellaneous Provisions) Act 1934 are limited.

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Credit hire – impecuniosity

An ‘impecunious’ claimant has to be treated differently from a ‘pecunious’ claimant. The test of impecuniosity is, however, somewhat vague. In Lagden [2003] it was said to depend on whether or not the claimant had the ‘choice’ to go into the open market and hire at ordinary credit hire rates.

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Discount rate – change

The change in the discount rate from 2.5% to -0.75% will vastly increase the pay-outs in serious injury cases. For instance, a 25-year-old with a moderate brain injury awarded £100,000 for life would previously have been awarded £3.1m, but with the change to the Ogden rate this would now be £8m. Similarly:

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