The Practical Lawyer

To what extent should a claimant who exaggerates the extent of the claim be punished in costs? (a recent CA decision makes it clear that exaggeration can be an important factor, but it is not the only consideration for the court. Indeed, the fact that the claimant has exaggerated the case does not alter the fact that Part 36 gives the defendant a remedy against exaggerated claims.

It is well known that the courts have a discretion to extend the limitation period in personal injury cases (s33 Limitation Act 1980).

Section 33(3) sets out a statutory checklist of matters that the court should take into account when considering ‘all the circumstances of the case’ in exercising its discretion. In practice, the single most important factor of the balancing exercise will be whether the defendant is prejudiced in its ability to defend the action.

For some time, defendants have argued that the mere loss of the limitation defence (if the court exercises discretion in favour of the claimant) is of itself an element of ‘prejudice’. However, that argument was firmly rebuffed by the CA in ?Cain [2008] where it was said:

The general rule is that a patient has to give consent to any invasive medical treatment. But, recent guidance makes it clear that ‘informed consent’ has moved on from being a simple obligation to advise of the most frequently occurring risks, in accordance with the general standards of medical practitioners at the time. Now, a patient should be more actively involved in the consent process.

When involved in a claim for spinal cord injury, consider whether there should also be a claim for the cost of assisted reproduction.

If there is likely to be a delay in assessing damages, then the claimant should try to get money up front as an interim payment. Given the very low level of interest currently awarded on specials, the claimant will probably be better off having the use of the money and investing it at a higher rate.

A small claim by an infant will be treated as a small claim for infant approval purposes – even though infant approvals cannot be allocated to the small-claims track.

It is widely accepted that, to respond to emergency calls, police and other emergency services may have to contravene Regs laid down by RTA 1988, so they can arrive at the scene of an emergency call as quickly as possible, provided they respond in a manner that does not endanger other road users.

A Smith v Manchester award is designed to cover an ongoing disadvantage in seeking employment in the labour market as a result of the residual disability resulting from an injury.

It is important to note, however, that the sixth edition of the Ogden tables allows a far more scientific method of assessing the financial consequences of disadvantage on the labour market. That approach is underpinned by statistical research showing that people with a disability spend a far greater proportion of time out of work. Using that approach leads to a far higher award under this head of damage than would previously have been awarded under Smith. Accordingly, if a claimant can establish that the injury has caused them to become disabled, then they should claim the difference between projected earnings for a non-disabled individual and those of a disabled individual (which are likely to be significant over the course of a lengthy working life).

Two recent cases on credit hire that are worth noting:

Intervention: intervention is where the defendant’s insurer offers the claimant a ‘free’ car while their own is off the road, rather than the claimant using a hire vehicle. The claimants were offered ‘free’ cars without any details of price rates being given.

There is an updated personal injury interest calculation table in [2009] LSG 1 October 17.