Personal Injury and Clinical Negligence Litigation 2020

Marriott

Sujets

• Torts
• Droit et juridique
• Personal injury
• Delict

Informations

• Publié par: College of Law Publishing
• Date de parution: 01 janvier 0001
• Nombre de lectures: 0
• EAN13: 9781913226435
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

PERSONAL INJURY AND CLINICAL NEGLIGENCE LITIGATION

Published by
College of Law Publishing,
Braboeuf Manor, Portsmouth Road, St Catherines, Guildford GU3 1HA
© The University of Law 2020
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher.
Crown copyright material is licensed under the Open Government Licence v3.0.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
ISBN 978 1 913226 31 2 EISBN 978 1 913226 43 5
Typeset by Style Photosetting Ltd, Mayfield, East Sussex
Tables and index by Moira Greenhalgh, Arnside, Cumbria
Preface
The purpose of this book is to provide an introduction to the large and complex area of personal injury and clinical negligence litigation. It does not set out to cover the subject fully, neither does it purport to include all recent developments in this area of law.
Although we hope that this text will be of interest to practitioners, primarily it has been written as an integrated element of the Legal Practice Course elective ‘Personal Injury and Clinical Negligence Litigation’, and its aim is to provide a framework upon which the course is built. Students are expected to carry out their own research into some aspects of the course and will receive further tuition in others.
The Civil Procedure Rules are amended from time to time and it is important that readers make reference to the most up-to-date provisions which can be found on the Ministry of Justice website. This is a fast-changing area of law, and practitioners must update themselves continually.
In the interests of brevity, the masculine pronoun is used throughout to include the feminine.
The law is generally stated as at 1 September 2019.
LOUISE MARRIOTT
Contents
PREFACE
TABLE OF CASES
TABLE OF STATUTES
TABLE OF SECONDARY LEGISLATION
LIST OF ABBREVIATIONS
Chapter 1 INTRODUCTION TO THE WORK OF A PERSONAL INJURY AND CLINICAL NEGLIGENCE SOLICITOR
1.1 Introduction
1.2 Personal injury claims
1.3 Clinical negligence claims
1.4 Fraudulent and exaggerated claims
1.5 Conclusion
1.6 Overviews of personal injury and clinical negligence claims
Chapter 2 PERSONAL INJURY AND CLINICAL NEGLIGENCE TERMINOLOGY
2.1 Introduction
2.2 Common injuries, conditions and medical terms
2.3 Areas of medical speciality
2.4 Common abbreviations used in medical records
2.5 Diagrammatic representation of the human skeleton
2.6 Conclusion
2.7 Further reading
Chapter 3 ROAD TRAFFIC AND OTHER HIGHWAY CLAIMS: THE LAW
3.1 Introduction
3.2 Establishing liability for road traffic accidents
3.3 Insurance
3.4 The Motor Insurers’ Bureau
3.5 Duties of the highway authority
3.6 Conclusion
3.7 Further reading and relevant websites
Chapter 4 EMPLOYERS’ LIABILITY CLAIMS: THE LAW
4.1 Introduction
4.2 The employer’s common law duty of care
4.3 Breach of statutory duty
4.4 Vicarious liability
4.5 Occupiers’ liability
4.6 Remoteness of damage
4.7 Causation
4.8 The Mesothelioma Act 2014 and the Diffuse Mesothelioma Payment Schemes
4.9 Defences
4.10 Enforcement of health and safety at work
4.11 Conclusion
4.12 Further reading and relevant websites
Chapter 5 CLINICAL NEGLIGENCE: THE LAW
5.1 Introduction
5.2 The duty of care
5.3 Breach of the duty of care
5.4 Res ipsa loquitur
5.5 Causation
5.6 Consent
5.7 The role of NHS Resolution
5.8 The structure of the NHS
5.9 The NHS complaints procedure
5.10 Plans for reform
5.11 Disciplinary proceedings
5.12 Criminal proceedings
5.13 Conclusion
5.14 Further reading and relevant websites
5.15 Diagram – Structure of the NHS
Chapter 6 CLAIMS FOR PSYCHIATRIC INJURY
6.1 Introduction
6.2 Claims for nervous shock
6.3 Occupational stress
6.4 Claims under the Protection from Harassment Act 1997
6.5 Conclusion
6.6 Further reading and relevant websites
Chapter 7 LIMITATION OF ACTIONS
7.1 Introduction
7.2 The limitation period
7.3 Date of knowledge
7.4 Persons under a disability
7.5 Limitation in assault cases
7.6 Claims following fatal accidents
7.7 Other periods of limitation
7.8 The court’s discretion to override the limitation period
7.9 Dealing with limitation issues in practice
7.10 Conclusion
7.11 Claimant’s limitation checklist
Chapter 8 THE FIRST INTERVIEW
8.1 Introduction
8.2 Funding
8.3 Urgent matters
8.4 Advising the client
8.5 The client’s proof of evidence
8.6 Welfare benefits
8.7 Rehabilitation, early intervention and medical treatment
8.8 Conclusion
8.9 Further reading
8.10 Overview of matters to be considered at the first interview
Chapter 9 METHODS OF FUNDING AND QUALIFIED ONE-WAY COSTS SHIFTING
9.1 Introduction
9.2 Methods of funding
9.3 Qualified one-way costs shifting
9.4 Conclusion
Chapter 10 INVESTIGATING THE CLAIM AND PRELIMINARY STEPS
10.1 Introduction
10.2 Pre-action Protocols
10.3 Identifying the defendant
10.4 Clinical negligence claims – preliminary steps
10.5 Employers’ liability claims for disease and illness – preliminary steps
10.6 Letter of notification
10.7 Letter of claim
10.8 Claims Notification Form – low value claims
10.9 Response to the letter of claim or CNF
10.10 Acquiring evidence in respect of liability
10.11 Acquiring evidence in respect of quantum
10.12 Conclusion
Chapter 11 INSTRUCTING EXPERTS
11.1 Introduction
11.2 Case management and the use of experts
11.3 Areas of expertise
11.4 How to find an expert
11.5 Key qualities to look for in an expert
11.6 Preliminary enquiries of the expert
11.7 Letter of instruction
11.8 The expert’s report
11.9 Conference with expert and counsel where expert instructed by one party
11.10 Conclusion
11.11 Further reading
11.12 Key points
Chapter 12 COMMENCEMENT OF PROCEEDINGS
12.1 Introduction
12.2 Pre-issue checklist
12.3 Matters to consider upon issue
12.4 Issuing proceedings
12.5 Particulars of claim
12.6 Service of proceedings
12.7 Acknowledgement of service
12.8 The defence
12.9 The counterclaim
12.10 The reply to defence and defence to counterclaim
12.11 Amendment to statements of case
12.12 Additional claims (CPR, Part 20)
12.13 Group litigation
12.14 Conclusion
12.15 Suggested structure of particulars of claim in personal injury case
Chapter 13 CASE MANAGEMENT AND INTERIM APPLICATIONS
13.1 Introduction
13.2 Directions questionnaire
13.3 Allocation to track
13.4 The small claims track
13.5 The fast track
13.6 The multi-track
13.7 The case management conference and pre-trial review
13.8 Disclosure and inspection of documents
13.9 The evidence of lay witnesses
13.10 Expert evidence
13.11 Use of plans, photographs and models at trial
13.12 Pre-trial checklist (listing questionnaire)
13.13 Variation of case management timetable
13.14 Interim applications
13.15 Interim payments
13.16 Specific disclosure of documents held by a third party
13.17 Conclusion
Chapter 14 NEGOTIATIONS, ALTERNATIVE DISPUTE RESOLUTION AND TRIAL
14.1 Introduction
14.2 Professional conduct
14.3 Negotiating with insurance companies and defence solicitors
14.4 Preparing for the negotiation
14.5 Conducting the negotiation
14.6 Negotiating in clinical negligence claims
14.7 Alternative dispute resolution
14.8 Funding any settlement
14.9 Court orders
14.10 Part 36 offers
14.11 Preparation for trial
14.12 The trial
14.13 Conclusion
14.14 Further reading
Chapter 15 THE QUANTIFICATION OF DAMAGES
15.1 Introduction
15.2 Special damages – ‘past pecuniary loss’
15.3 General damages
15.4 Provisional damages
15.5 Periodical payments
15.6 Interest
15.7 The schedule of past and future loss and expense
15.8 Conclusion
15.9 Further reading
Chapter 16 RECOVERY OF BENEFITS AND NHS CHARGES
16.1 Introduction
16.2 Recovery of benefits – key features of the system
16.3 Key definitions
16.4 Compensation subject to offsetting
16.5 Contributory negligence
16.6 Procedure
16.7 Exempt payments
16.8 Multiple defendants (‘compensators’)
16.9 Clinical negligence
16.10 Part 36 offers
16.11 Interim payments
16.12 Reviews, mandatory reconsideration and appeals
16.13 Recovery of NHS charges
16.14 Conclusion
16.15 Further reading
16.16 Overview of recovery of benefits
Chapter 17 POST-DEATH INVESTIGATIONS
17.1 Introduction
17.2 Inquests
17.3 Criminal prosecutions
17.4 Conclusion
17.5 Further reading
17.6 Investigating fatal accidents
Chapter 18 INTRODUCTION TO FATAL ACCIDENT CLAIMS — PROCEDURE AND QUANTIFICATION
18.1 Introduction
18.2 Cause of action
18.3 The appointment of personal representatives
18.4 Damages under the Law Reform (Miscellaneous Provisions) Act 1934
18.5 Damages under the Fatal Accidents Act 1976
18.6 Interest
18.7 Pension loss
18.8 Loss of consortium
18.9 Conduct
18.10 Conclusion
18.11 Further reading
18.12 Overview of damages in fatal claims
Chapter 19 CRIMINAL INJURIES COMPENSATION AUTHORITY
19.1 Introduction
19.2 Eligibility
19.3 Procedure
19.4 Compensation calculation
19.5 Withholding or reduction of award
19.6 Example
19.7 Conclusion
19.8 Further reading and relevant websites
Chapter 20 CLAIMS ON BEHALF OF CHILDREN AND PROTECTED PARTIES
20.1 Introduction
20.2 Limitation
20.3 The litigation friend
20.4 Court’s approval of settlements
20.5 Control of money recovered by or on behalf of a child or protected party
20.6 Conclusion
Chapter 21 THE PRE-ACTION PROTOCOLS FOR LOW VALUE RTA, EL AND PL CLAIMS
21.1 Introduction
21.2 Application of the protocols
21.3 The three stages
21.4 Soft tissue injury claims under the RTA Protocol
21.5 Inte