03 Personal Injury

i
PERSONAL INJURY AND CLINICAL

NEGLIGENCE LITIGATION
ii Personal Injury and Clinical Negligence Litigation
iii
PERSONAL INJURY AND CLINICAL

NEGLIGENCE LITIGATION
Julie Mardell and Kate Serfozo
iv 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 2014
Julie Mardell and Kate Serfozo have asserted their moral rights
in accordance with ss 77–89 of the Copyright, Designs and Patents Act 1988.
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 v1.0.
British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library.
ISBN 978 1 910019 06 1
Typeset by Style Photosetting Ltd, Mayfield, East Sussex

Printed in Great Britain by Polestar Wheatons, Exeter
v
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, we have used the masculine pronoun throughout to include the feminine.
The law is generally stated as at 1 September 2013.
JULIE MARDELL and KATE SERFOZO
vi Personal Injury and Clinical Negligence Litigation
Contents vii
Contents
PREFACE v
TABLE OF CASES xiii
TABLE OF STATUTES xix
TABLE OF SECONDARY LEGISLATION xxi
LIST OF ABBREVIATIONS xxv
Chapter 1 INTRODUCTION TO THE WORK OF A PERSONAL INJURY AND CLINICAL

NEGLIGENCE SOLICITOR 1
1.1 Introduction 1
1.2 Personal injury claims 3
1.3 Clinical negligence claims 4
1.4 Fraudulent and exaggerated claims 5
1.5 Conclusion 6
1.6 Overviews of personal injury and clinical negligence claims 7
Chapter 2 PERSONAL INJURY AND CLINICAL NEGLIGENCE TERMINOLOGY 9

2.1 Introduction 9
2.2 Common injuries, conditions and medical terms 10
2.3 Areas of medical speciality 15
2.4 Common abbreviations used in medical records 17
2.5 Diagrammatic representation of the human skeleton 23
2.6 Conclusion 24
2.7 Further reading 24
Chapter 3 ROAD TRAFFIC AND OTHER HIGHWAY CLAIMS: THE LAW 25

3.1 Introduction 25
3.2 Establishing liability for road traffic accidents 25
3.3 Insurance 31
3.4 The Motor Insurers’ Bureau 32
3.5 Duties of the highway authority 36
3.6 Conclusion 39
3.7 Further reading and relevant websites 39
Chapter 4 EMPLOYERS’ LIABILITY CLAIMS: THE LAW 41

4.1 Introduction 41
4.2 The employer’s common law duty of care 42
4.3 Breach of statutory duty 45
4.4 Vicarious liability 57
4.5 Occupiers’ liability 58
4.6 Remoteness of damage 59
4.7 Causation 59
4.8 Defences 61
4.9 Enforcement of health and safety at work 63
4.10 Conclusion 66
Chapter 5 CLINICAL NEGLIGENCE: THE LAW 67

5.1 Introduction 67
5.2 The duty of care 68
5.3 Breach of the duty of care 69
5.4 Res ipsa loquitur 70
viii Personal Injury and Clinical Negligence Litigation
5.5 Causation 71
5.6 Consent 74
5.7 The role of the NHS Litigation Authority 77
5.8 The structure of the NHS 77
5.9 The NHS complaints procedure 79
5.10 Plans for reform 82
5.11 Disciplinary proceedings 82
5.12 Criminal proceedings 83
5.13 Conclusion 83
5.15 Diagram – Structure of the NHS 84
5.16 Extract from the NHS constitution 85
Chapter 6 CLAIMS FOR PSYCHIATRIC INJURY 87

6.1 Introduction 87
6.2 Claims for nervous shock 87
6.3 Occupational stress 91
6.4 Claims under the Protection from Harassment Act 1997 96
6.5 Conclusion 97
Chapter 7 LIMITATION OF ACTIONS 99

7.1 Introduction 99
7.2 The limitation period 99
7.3 Date of knowledge 100
7.4 Persons under a disability 105
7.5 Limitation in assault cases 105
7.6 Claims following fatal accidents 106
7.7 Other periods of limitation 107
7.8 The court’s discretion to override the limitation period 107
7.9 Dealing with limitation issues in practice 110
7.10 Conclusion 112
7.11 Claimant’s limitation checklist 113
Chapter 8 THE FIRST INTERVIEW 115

8.1 Introduction 115
8.2 Funding 115
8.3 Urgent matters 116
8.4 Advising the client 117
8.5 The client’s proof of evidence 118
8.6 Welfare benefits 123
8.7 Rehabilitation, early intervention and medical treatment 124
8.8 Conclusion 125
8.10 Overview of matters to be considered at the first interview 126
Chapter 9 METHODS OF FUNDING AND QUALIFIED ONE WAY COSTS SHIFTING 127
9.2 Methods of funding 127
9.3 Qualified one way costs shifting 138
9.4 Conclusion 139
Chapter 10 INVESTIGATING THE CLAIM AND PRELIMINARY STEPS 141

10.2 Pre-action Protocols 142
10.3 Identifying the defendant 143
10.4 Clinical negligence claims – preliminary steps 145
10.5 Employers’ liability claims for disease and illness – preliminary steps 148
10.6 Preliminary notification of the claim 149
Contents ix
10.7 Letter of claim 149

10.8 Claims Notification Form – low value claims 151
10.9 Response to the letter of claim or CNF 152
10.10 Acquiring evidence in respect of liability 152
10.11 Acquiring evidence in respect of quantum 158
10.12 Conclusion 159
Chapter 11 INSTRUCTING EXPERTS 161

11.2 Case management and the use of experts 163
11.3 Areas of expertise 165
11.4 How to find an expert 167
11.5 Key qualities to look for in an expert 168
11.6 Preliminary enquiries of the expert 169
11.7 Letter of instruction 169
11.8 The expert’s report 171
11.9 Conference with expert and counsel where expert instructed by one party 171
11.12 Key points 173
Chapter 12 COMMENCEMENT OF PROCEEDINGS 175

12.2 Pre-issue checklist 176
12.3 Matters to consider upon issue 176
12.4 Issuing proceedings 177
12.5 Particulars of claim 178
12.6 Service of proceedings 179
12.7 Acknowledgement of service 180
12.8 The defence 180
12.9 The counterclaim 181
12.10 The reply to defence and defence to counterclaim 181
12.11 Amendment to statements of case 181
12.12 Additional claims (CPR, Part 20) 182
12.13 Group litigation 184
12.15 Suggested structure of particulars of claim in personal injury case 185
Chapter 13 CASE MANAGEMENT AND INTERIM APPLICATIONS 187

13.2 Directions questionnaire 188
13.3 Allocation to track 188
13.4 The small claims track 189
13.5 The fast track 189
13.6 The multi-track 190
13.7 The case management conference and pre-trial review 190
13.8 Disclosure and inspection of documents 191
13.9 The evidence of lay witnesses 192
13.10 Expert evidence 192
13.11 Use of plans, photographs and models at trial 193
13.12 Pre-trial checklist (listing questionnaire) 193
13.13 Variation of case management timetable 193
13.14 Interim applications 193
13.15 Interim payments 194
13.16 Specific disclosure of documents held by a third party 196
Chapter 14 NEGOTIATIONS, ALTERNATIVE DISPUTE RESOLUTION AND TRIAL 199

x Personal Injury and Clinical Negligence Litigation
14.2 Professional conduct 200

14.3 Negotiating with insurance companies and defence solicitors 200
14.4 Preparing for the negotiation 200
14.5 Conducting the negotiation 202
14.6 Negotiating in clinical negligence claims 203
14.7 Alternative dispute resolution 203
14.8 Funding any settlement 206
14.9 Court orders 206
14.10 Part 36 offers 207
14.11 Preparation for trial 210
14.12 The trial 213
Chapter 15 THE QUANTIFICATION OF DAMAGES 215

15.2 Special damages – ‘past pecuniary loss’ 216
15.3 General damages 226
15.4 Provisional damages 236
15.5 Periodical payments 238
15.6 Interest 241
15.7 The schedule of past and future loss and expense 242
15.8 Conclusion 242
Chapter 16 RECOVERY OF BENEFITS AND NHS CHARGES 245

16.2 Recovery of benefits – key features of the system 246
16.3 Key definitions 246
16.4 Compensation subject to offsetting 247
16.5 Contributory negligence 249
16.6 Procedure 250
16.7 Exempt payments 251
16.8 Multiple defendants (‘compensators’) 252
16.9 Clinical negligence 252
16.12 Appeals system 252
16.13 Recovery of NHS charges 253
16.16 Overview of recovery of benefits 255
Chapter 17 POST-DEATH INVESTIGATIONS 257

17.2 Inquests 257
17.3 Criminal prosecutions 268
17.4 Conclusion 273
17.6 Investigating fatal accidents 274
Chapter 18 INTRODUCTION TO FATAL ACCIDENT CLAIMS — PROCEDURE AND QUANTIFICATION 275

18.2 Cause of action 276
18.3 The appointment of personal representatives 276
18.4 Damages under the Law Reform (Miscellaneous Provisions) Act 1934 277
18.5 Damages under the Fatal Accidents Act 1976 278
18.6 Interest 288
18.7 Pension loss 288
Contents xi
18.8 Establishing the case 288

18.9 Conduct 288
18.12 Overview of damages in fatal claims 289
Chapter 19 CRIMINAL INJURIES COMPENSATION AUTHORITY 291

19.2 Eligibility 292
19.3 Procedure 294
19.4 Compensation calculation 294
19.5 Withholding or reduction of award 296
19.6 Example 297
19.7 Conclusion 298
Chapter 20 CLAIMS ON BEHALF OF CHILDREN AND PROTECTED PARTIES 299

20.2 Limitation 300
20.3 The litigation friend 300
20.4 Court’s approval of settlements 302
20.5 Control of money recovered by or on behalf of a child or protected party 303
20.6 Conclusion 303
Chapter 21 THE PRE-ACTION PROTOCOLS FOR LOW VALUE RTA, EL AND PL CLAIMS 305
21.2 Application of the protocols 305
21.3 The three stages 306
21.5 Fixed costs 308
21.6 Offers to settle 309
21.7 What if a claim exits the Portal? 309
21.8 Conclusion 311
Appendices 313
Appendix 1 EMPLOYERS’ LIABILITY CASE STUDY 315
Appendix 2 PRE-ACTION PROTOCOL FOR PERSONAL INJURY CLAIMS 355
Appendix 3 PRE-ACTION PROTOCOL FOR THE RESOLUTION OF CLINICAL DISPUTES 371
Appendix 4 PRE-ACTION PROTOCOL FOR LOW VALUE PERSONAL INJURY (EMPLOYERS’

LIABILITY AND PUBLIC LIABILITY) CLAIMS 387
Appendix 5 ACTUARIAL TABLES – EXTRACTS 399
INDEX 413
xii Personal Injury and Clinical Negligence Litigation
Table of Cases xiii
Table of Cases
A
A v Hoare [2008] EWHC 1573 (QB) 108
A v Hoare [2008] UKHL 6 102
AC (1) DC (2) TR (3) v Devon County Council [2012] EWHC 796 (QB) 39
AC Billings & Son Ltd v Riden [1968] AC 240 62
Adams v Bracknell Forest BC [2004] UKHL 29 102
Afzal v Chubb Guarding Services Ltd [2002] EWHC 822 5
Ahanonu v South East Kent Bus Company Limited [2008] EWCA Civ 274 26
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 87, 88, 89
Ali v Courtaulds Textiles Limited [1999] Lloyd’s Rep Med 301 101
Allison v London Underground Ltd [2008] EWCA Civ 71 47
Anderson v Newham College of Further Education [2002] EWCA Civ 505 62
Appleton v Medhat Mohammed El Safty [2007] EWHC 631 (QB) 232
Armstrong and Another v First York Ltd [2005] EWCA Civ 277 162
ATM v MS (2002) The Times, 3 July 283
Attorney-General’s Reference (No 2 of 1999) [2000] 2 Cr App R 20 270
Auty v National Coal Board [1985] 1 All ER 930 281, 284
B
Bailey v Ministry of Defence [2008] EWCA Civ 883 72
Ball v Street [2005] EWCA Civ 76 50
Barber v Somerset [2004] UKHL 13 92
Barker v Corus (UK) plc & Others [2006] UKHL 20 60
Barlow v Broxbourne Borough Council [2003] EWHC 50 (QB), [2003] All ER (D) 208 (Jan) 94
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 72
Beahan v Stoneham [2001] LTL, 16 May 241
Beattie v Secretary of State for Social Security [2001] 1 WLR 1404 124
Beesley v New Century Group Ltd [2008] EWHC 3033 (QB) 283
Birkett v Hayes [1982] 2 All ER 70 241
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 69
Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151 69, 74
Bonnington Castings Ltd v Wardlaw [1956] AC 613 59, 95
Booth v Britannia Hotels Ltd [2002] EWCA Civ 529 5
Bradburn v Great Western Railway Co (1874) LR 10 Exch 1 220
Braithwaite v Homerton University Hospitals Foundation Trust [2008] EWHC 353 (QB) 196
Brayson v Wilmot-Breedon [1976] CLY 682 218
Brazier v Dolphin Fairway Ltd [2005] EWCA Civ 84 52
Breeze v Ahmed [2005] EWCA Civ 223 170
Brooks v J & P Coates (UK) Ltd [1984] 1 All ER 702 104
Bruce v Genesis Fast Food Ltd [2003] EWHC 788 254
Buckley v Farrow and Buckley [1997] PIQR Q78 222
Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1 QB 349 281
Bux v Slough Metals Ltd [1974] 1 All ER 262 56
C
Cachia v Faluyi [2001] EWCA Civ 998, [2001] 1 WLR 1966 280
Cain v Francis; McKay v Hamlani [2008] EWCA Civ 1451 109
Cairn-Jones v Tyler [2010] EWCA Civ 1642 108
Capps v Miller [1989] 1 WLR 839 30
Carlton v Fulchers (a Firm) [1997] PNLR 337, CA 110
Casey v Cartwright [2006] EWCA Civ 1280 29
Cassidy v Ministry of Health [1951] 2 KB 343 70
Chan Wai Tong v Li Ping Sum [1985] AC 446 231
Chappell v De Bora’s of Exeter (SCCO, 2004 136
Chatterton v Gerson [1981] QB 432 75
Chester v Afshar [2004] UKHL 41 73
xiv Personal Injury and Clinical Negligence Litigation
Chewings v (1) Williams & (2) Abertawe Bro Morgannwg University NHS Trust [2009] EWHC 2490 (QB) 237
Clenshaw v Tanner [2002] EWCA Civ 1848 219
Clenshaw v Tanner [2002] EWHC 184 (QB) 248
Close v Steel Co of Wales [1962] AC 367 56
Clough v First Choice Holidays and Flights Ltd [2006] EWCA Civ 15 59
Coad v Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189, CA 108
Coates v Jaguar Cars Ltd [2004] EWCA Civ 337 54
Cobham Hire Services Ltd v Eeles [2009] EWCA Civ 204 196
Coddington v International Harvester Co of Great Britain (1969) 113 SJ 265 42
Colledge v Bass Mitchells & Butlers [1988] 1 All ER 536 219
Collett v Smith and Middlesborough Football & Athletics Company (1986) Ltd [2008] EWHC 1962 (QB) 235
Conn v Council and City of Sunderland [2007] EWCA Civ 1492 96
Connor v Surrey County Council [2010] EWCA Civ 286 95
Cookson v Knowles [1979] AC 556 281
Corbin v Penfold Metalizing [2000] Lloyd’s Rep Med 247 101
Corr v IBC Vehicles [2006] EWCA Civ 331 88
Coward v Comex Houlder Diving Ltd, 18 July 1988, CA 282
Cox v Hockenhull [1999] 3 All ER 577 281
Crabtree v Wilson [1993] PIQR Q24 280
Cunningham v Harrison [1973] 3 All ER 463 219
Curi v Colina [1998] EWCA Civ 1326 237
D
D and D v Donald [2001] PIQR Q44 284
Dabinett v Somerset County Council [2006] LTL 20/4/2007 36
Davie v New Merton Board Mills Ltd [1959] AC 604 45
Davies v Health & Safety Executive [2002] EWCA Crim 2949, [2003] IRLR 170 46
Davis v Inman [1999] PIQR Q26 228
Department of Transport, Environment and the Regions v Mott Macdonald Ltd & Others [2006] EWCA Civ 1089 37
Dhaliwal v Personal Representatives of Hunt (Deceased) [1995] PIQR Q56, CA 282
Dickins v O2 plc [2008] EWCA Civ 1144 94, 95
Dimond v Lovell [2000] 2 WLR 1121 226
Dobbie v Medway Health Authority [1994] 1 WLR 1234, CA 104
Doleman v Deakin (1990) The Times, 30 January 287
Dugmore v Swansea NHS Trust [2003] 1 All ER 333 56
Duller v South East Lincs Engineers [1981] CLY 585 218
Dunhill (a protected party by her litigation friend Paul Tasker) v Burgin [2012] EWCA Civ 397 300
Dureau v Evans [1996] PIQR Q18 228
E
E H Humphries (Norton) Ltd, Thistle Hotels v Fire Alarm Fabrication Services Ltd [2006] EWCA Civ 1496 45
Eagle Star Insurance v Department of Social Development (Northern Ireland) (2001) NICE, 12 February 254
Eagle v Chambers [2003] EWCA Civ 1107 30
Eagle v Chambers [2004] EWCA Civ 1033 221, 248
Edwards-Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136 164
Ehrari v Curry & Another [2006] EWCA Civ 120 30
Eyres v Atkinsons Kitchens & Bathrooms [2007] EWCA Civ 365 62
F
Fairchild v Glenhaven Funeral Services Ltd and Others; Fox v Spousal (Midlands) Ltd; Matthews v Associated
Portland Cement Manufacturers (1978) Ltd and Others [2002] UKHL 22, [2002] 3 All ER 305 60
Fairclough Homes Ltd v Summers [2012] UKSC 26 5
Fallon v Beaumont, 16 December 1993, CC (Leeds) 277
Farthing v North East Essex Health Authority [1998] Lloyd’s Rep Med 37, CA 108
Felmai Lawrence v Chief Constable of Staffordshire (2000) The Times, 25 July 241
Fitzgerald v Ford [1996] PIQR Q72 223
Flynn v Leeds City Council, 10 September 2004 156
Forbes v Wandsworth Health Authority [1997] QB 402 103
Foster v Tyne and Wear County Council [1986] 1 All ER 567 231
Franklin v Gramophone Co Ltd [1948] 1 KB 542 56
Fretwell v Willi Betz, 8 March 2001 279
Froom v Butcher [1976] QB 286 30
Fytche v Wincanton Logistics [2003] EWCA Civ 874 52
Table of Cases xv
G
Galli-Atkinson v Seghal [2003] EWCA Civ 697 89
Gammell v Wilson [1982] AC 27 278
Garrett v Camden LBC [2001] EWCA Civ 395 92, 95
General Cleaning Contractors Ltd v Christmas [1953] AC 180 43, 44
Giambrone & Others v JMC Holidays Ltd (formerly t/a Sunworld Holidays Ltd) [2004] EWCA Civ 158 222
Gibbon v Manchester City Council [2010] EWCA Civ 726 210
Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security
[1986] AC 112, [1985] UKHL 7 75, 300
Gleeson v Court [2007] EWHC 2397 (QB) 30
Goad v Butcher & Another [2011] EWCA Civ 158 28
Gold Shipping Navigation Co SA v Lulu Maritime Ltd [2009] EWHC 1365 (Admlty) 111
Goode v Martin [2001] EWCA Civ 1899, [2002] 1 WLR 1828 181
Graham v Dodds [1983] 2 All ER 953 283
Gregg v Scott [2005] UKHL 2 73
Griffiths and Others v British Coal Corporation (QBD, 23 February 1998) 287
Griffiths and Others v British Coal Corporation and the Department of Trade and Industry [2001] 1 WLR 1493, CA 248
H
H and Another v S [2002] EWCA Civ 792, [2003] QB 965 286, 288
Halford v Brookes [1991] 3 All ER 559 100, 107
Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 204
Hammond v West Lancashire Health Authority [1998] Lloyd’s Rep Med 146, CA 108
Harris v Empress Motors [1983] 3 All ER 561 282
Hartley v Sandholme Iron Co Ltd [1975] QB 600 218
Hatton v Sutherland; Barber v Somerset County Council; Jones v Sandwell Metropolitan Borough Council;
Bishop v Baker Refractories Ltd [2002] EWCA Civ 76, [2002] 2 All ER 1 92, 93, 94
Hawkes v Southwark LBC [1998] EWCA Civ 310 53
Heil v Rankin and Another [2000] 2 WLR 1173 229
Henderson v Temple Pier Co Ltd [1998] 1 WLR 1540 104
Hewson v Downs [1970] 1 QB 73 219
Hicks v Wright [1992] 2 All ER 65 277
Hilton International v Martin-Smith [2001] LTL, 12 February 254
Hotson v East Berkshire Health Authority [1987] AC 750 72
Hudson v Ridge Manufacturing Co [1957] 2 QB 348 42
Hughes v Addis [2000] LTL, 23 March 226
Hunt v Severs [1994] 2 All ER 385, HL 222
Hunter v British Coal [1999] QB 89, CA 90
Huntley v Simmons [2010] EWCA Civ 54 162
Hussain v New Taplow Paper Mills Ltd [1988] AC 514 219
I
ICI v Shatwell [1965] AC 656 61
Intel Corporation (UK) Limited v Daw [2007] EWCA Civ 70 94
J
J, K & P v Archbishop of Birmingham & Trustees of the Birmingham Archdiocese of the Roman Catholic Church
[2008] LTL, 21 August 112
Jameson and Another v Central Electricity Generating Board and Another [2000] AC 455 276
Johnson v Ministry of Defence [2012] EWCA Civ 1505 102
Johnstone v NEI International Combustion Limited [2007] UKHL 39 88
K
Kearsley v Klarfeld [2005] EWCA Civ 1510 29
Kew v Bettamix Ltd (formerly Tarmac Roadstone Southern Ltd) & Others [2006] EWCA Civ 1535 103
Kilby v Gawith [2008] WLR (D) 163 136
King (Administratrix of the Estate of Robert Gadd deceased) v Milton Keynes General NHS Trust [2004] LTL 261
Kite and Others (1994) Independent, 9 December 270
Kotke v Saffarini [2005] EWCA Civ 221 279
L
Lane v The Personal Representatives of Deborah Lake (Deceased) [2007] All ER (D) 258 232
xvi Personal Injury and Clinical Negligence Litigation
Latimer v AEC Ltd [1953] AC 643 45

Lee v Nursery Furnishings Ltd [1945] 1 All ER 387 46
Lim Poh Choo v Camden and Islington Area Health Authority [1979] 2 All ER 910 220
Lister and Others v Hesley Hall Ltd [2001] 2 All ER 769 57, 58
Littler v Liverpool Corporation [1968] 2 All ER 343 39
Liverpool Roman Catholic Archdiocesan Trust v Goldberg [2001] Lloyd’s Rep PN 518 168
Locke v (1) Stuart (2) Axa Corporate Solutions Services Ltd [2011] EWHC 399 (QB) 6
London Passenger Transport Board v Upson [1949] AC 1555 26
Longden v British Coal Corporation [1997] 3 WLR 1336 219
Lowther v Chatwin [2003] EWCA Civ 729 248
Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2003] All ER (D) 379 (Jul) 171
Lybert v Warrington HA (1996) 7 Med LR 71 77
M
Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34 96
Manning v King’s College Hospital NHS Trust [2008] EWHC 3008 (QB) 283
Martine Wildake v BAA Ltd [2009] EWCA Civ 1256 5
Massey v Tameside & Glossop Acute Services NHS Trust [2007] EWHC 317 (QB) 222
Mattis v Pollock [2003] EWCA Civ 887 58
McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 All ER 854 220
McCoubrey v Ministry of Defence [2007] EWCA Civ 17 104
McCrae v (1) Chase International Express Ltd (2) Justin Smith [2003] LTL, 14 March 232
McDermid v Nash Dredging & Reclamation Co Ltd [1987] 2 All ER 878 45
McDonnell & Another v Walker [2009] EWCA Civ 1257 108
McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 91
Mehmet v Perry [1977] 2 All ER 529 283
Ministry of Defence v AB and others [2012] UKSC 9 101
Morgan v Lucas Aerospace Ltd [1997] JPIL 4/97, 280–1 44
Morris v Breaveglen [1993] ICR 766, CA 45
Morris v Johnson Matthey & Co Ltd (1967) 112 SJ 32 232
Motor Insurers’ Bureau v Shikell & Others [2011] EWHC 527 (QB) 5
N
Navaei v Navaei, 6 January 1995 287
Naylor v Volex Group Plc [2003] EWCA Civ 222 55
Nettleship v Weston [1971] 2 QB 691 26
Newbury v Bath DHA (1999) 47 BMLR 138 77
Newman v Marshall and Dunlop Tyres Ltd [2001] LTL, 19 June 218
Ng Chun Pui & Others v Le Chuen Tat & Another [1988] RTR 298 28
O
O’Connell v Jackson [1972] 1 QB 270 30
O’Loughlin v Cape Distribution Ltd [2001] EWCA Civ 178, [2001] JPIL 191 284
O’Neill v DSG Retail Ltd [2002] EWCA Civ 1139 53
Ogur v Turkey (2001) 31 EHRR 912 279
Opoku v Tintas [2013] All ER (D) 81 (Jul) 226
Owen v Martin [1992] PIQR Q151 282, 284
Owens v Brimmel [1977] QB 859 30
P
Page v Sheerness Steel Co Ltd; Wells v Wells; Thomas v Brighton Health Authority [1998] 3 WLR 329 233, 235
Page v Smith [1996] AC 155 87, 88
Palfrey v Greater London Council [1985] ICR 437 219
Pankhurst v White [2010] EWHC 311 (QB) 210
Paris v Stepney Borough Council [1951] AC 367 45
Parry v Cleaver [1970] AC 1 219
Pearce v Doncaster MBC [2008] EWCA Civ 1416 103
Petch v Commissioners of Customs and Excise [1993] ICR 789 92
Pirelli v Gaca [2004] EWCA Civ 373 220
Pitman v Southern Electricity Board [1978] 3 All ER 901 39
Powell v Phillips [1972] 3 All ER 864, CA 28
Prendergast v Sam and Dee Ltd (1989) The Times, 14 March 72
Table of Cases xvii
Q
Quinn v Scott [1965] 2 All ER 588 27
R
R (Bentley) v HM Coroner for Avon [2001] EWHC 170 (Admin), [2001] LTL, 23 March 263
R (O’Connor) v HM Coroner for the District of Avon [2009] EWHC 854 (Admin) 266
R (on the application of Anderson and Others) v HM Coroner for Inner North Greater London
[2004] EWHC 2729 (Admin) 266
R (on the application of Neil Sharman) v HM Coroner for Inner London [2005] EWHC 857 (Admin) 266
R (on the application of the Ministry of Defence) v Wiltshire and Swindon Coroner [2005] EWHC 889 266
R v Adomako [1995] 1 AC 171 269
R v Director of Public Prosecutions, ex p Manning and Another [2000] 3 WLR 463 266
R v Gateway Foodmarkets Ltd [1997] 3 All ER 78 64
R v HM Coroner for Derby and South Derbyshire, ex p John Henry Hart Jnr (2000) 164 JP 429 266
R v HM Coroner for Inner London North District, ex p Cohen (1994) 158 JP 644, DC 263
R v HM Coroner for Inner London South District, ex p Douglas-Williams (1998) 162 JP 751 264
R v HM Coroner for the Western District of Somerset & Another, ex parte Middleton [2004] UKHL 10 268
R v Hoare [2008] UKHL 6 105
R v Howe & Son (Engineers) Ltd [1999] 2 All ER 249 65
R v HTM Ltd [2006] EWCA Crim 1156 64
R v Lincolnshire Coroner, ex p Hay (1999) 163 JP 666 264
R v Misra; R v Srivastava [2004] EWCA Crim 2375 269
R v Poplar Coroner, ex p Thomas [1993] 2 WLR 547 259
R v Rollco Screw & Rivet Co Ltd [1999] 2 Cr App R (S) 436 65
R v Southampton University Hospitals NHS Trust [2006] EWCA Crim 2971 269
R v Surrey Coroner, ex p Wright [1997] 2 WLR 16 259
R v Tangerine Confectionery and Veolia [2011] EWCA Crim 2015 64
R v W [2013] EWCA Crim 820 6
Ratcliffe v Plymouth and Torbay Health Authority [1998] PIQR P170 70
Reed v Sunderland Health Authority (1998) The Times, 16 October 228
Regan v Williamson [1976] 1 WLR 305 283
Rialas v Mitchell (1984) The Times, 17 July 223
Richardson v Butcher [2010] EWHC 214 (QB) 27
Rider v Rider [1973] 1 All ER 294 38
Roach v Home Office [2009] EWHC 312 (QB) 261
Roberts v Johnstone [1988] QB 878, [1988] 3 WLR 1247 224, 241
Rose v Plenty [1976] 1 All ER 97 57
Rush v JNR (SMD) Ltd (CA, 11 October 1999) 105
S
Sanderson v Hull [2008] All ER (D) 39 (Nov) 61
Sandhar v The Department of Transport, Environment and the Regions [2004] EWHC 28 (QB) 37
Sarwar v Alam [2001] EWCA Civ 1401 135
Shah v Ul-Haq and Others [2009] EWCA Civ 542 5
Sharman v Sheppard [1989] CLY 1190 288
Sharpe v Southend Health Authority [1997] 8 Med LR 299, 170
Shepherd v Post Office (1995) The Times, 15 June 279
Sherlock v Chester City Council [2004] EWCA Civ 201 62
Sidaway v Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital [1985] AC 871 76
Simmons v Castle [2012] EWCA Civ 1039 229
Simpson v Norwest Holst Southern Ltd [1980] 2 All ER 471 105
Smith v Co-operative Group Ltd & Another [2010] EWCA Civ 725 26
Smith v Crossley Bros (1951) 95 Sol Jo 655 42
Smith v Finch [2009] EWHC 53 (QB) 30
Smith v Leech Brain & Co Ltd [1962] 2 QB 405 59
Smith v Manchester Corporation (1974) 17 KIR 1 230, 231
Smith v Northamptonshire County Council [2008] EWCA Civ 181 50
Smoker v London Fire and Civil Defence Authority [1991] 2 All ER 449 219
Sniezek v Bundy (Letchworth) Ltd (2000) LTL, 7 July 102
Spargo v North Essex District Health Authority [1997] 8 Med LR 125 101
Speed v Thomas Swift & Co [1943] KB 557 43
Spillman v Bradfield Riding Centre [2007] EWHC 89 196
Spittle v Bunney [1988] 1 WLR 847 241
xviii Personal Injury and Clinical Negligence Litigation
St George’s Hospital NHS Trust v S; R v Collins and others, ex p S [1998] 3 All ER 673 75
Stanton v Collinson [2010] EWCA Civ 81 30
Stapley v Gypsum Mines Ltd [1953] AC 663 60
Stark v Post Office [2000] ICR 1013 50
Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419 109
Stephen John Monk v (1) PC Harrington Ltd (2) HTC Plant Ltd (3) Multiplex Constructions Ltd [2008] EWHC 1879 (QB) 91
Stewart and Hubbard v Medway NHS Trust [2004] LTL 261
Stewart v Glaze [2009] EWHC 704 (QB) 26, 162
Stobart v Nottingham Health Authority [1992] 3 Med LR 284 262
Stokes v Guest Keen and Nettlefold Bolts & Nuts Ltd [1968] 1 WLR 1776 44
Stringman v McCardle [1994] 1 WLR 1653 194
Stubbings v Webb [1993] AC 498 105
Sumner v William Henderson & Sons Ltd [1964] 1 QB 450 45
T
Tameside and Glossop Acute Services NHS Trust v Thompstone [2008] EWCA Civ 5 240
Taylor v Novo Ltd [2013] EWCA Civ 194 89
TCD v (1) Harrow Council (2) Worcester County Council (3) Birmingham City Council [2008] EWHC 3048 (QB) 101, 108
Thomas v Kwik Save Stores Ltd (2000) The Times, 27 June 280
Thorn v Powergen [1997] PIQR Q71 231
Tomlinson v Congleton Borough Council and Another [2002] EWCA Civ 309, [2003] 2 WLR 1120 58
U
Usher v Crowder [1994] CLY 1494 226
V
Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 96
Vernon v Bosley [1997] 1 All ER 577 87
W
Wadley v Surrey County Council (2000) The Times, 7 April 241
Walker v Northumberland County Council [1995] 1 All ER 737 13, 92
Walters v North Glamorgan NHS Trust [2002] EWHC 321 (QB), [2002] All ER (D) 65 89
Walton v Kirk [2009] EWHC 703 (QB) 5
West v Shephard [1964] AC 326 227
Wheat v E Lacon & Co Ltd [1966] AC 522 58
Wheatley v Cunningham [1992] PIQR Q100 284
Whiston v London Strategic Health Authority [2010] EWCA Civ 195 103
White v Chief Constable of South Yorkshire [1999] 2 AC 455 87, 90
White v EON and Others [2008] EWCA Civ 1436 103
White v ESAB Group (UK) Ltd [2002] All ER (D) 02 (Jan) 283
Whittle v Bennett [2006] EWCA Civ 1538 29
Wickham v Dwyer (1995) Current Law Weekly, 1 January 146
Widdowson v Newgate Meat Corporation & Others (1997) The Times, 4 December 28
Willbye (by her mother and next friend) v Gibbons [2003] EWCA Civ 372 232
Williams v BOC Gases Ltd [2000] PIQR Q253 220
Williams v Devon County Council [2003] EWCA Civ 365, [2003] All ER (D) 255 (Mar) 249, 252, 254
Williamson v East London and City Health Authority [1998] Lloyd’s Rep Med 6 74
Willson v Ministry of Defence [1991] 1 All ER 638 237
Wilsher v Essex Area Health Authority [1988] AC 1074 68, 70
Wilson v Pringle [1986] 3 WLR 1, CA 75
Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110 44
Wilsons and Clyde Coal Co v English [1938] AC 57 42, 59
Woollard v Fowler [2006] EWHC 90051 (Costs), 12 April 2006 168
Wright (by her litigation friend Karen Fay) v Kevin Sullivan [2005] EWCA Civ 656 167
Y
Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146 90
Young v Post Office [2002] EWCA Civ 661 93
Table of Statutes xix
Table of Statutes
Access to Health Records Act 1990 146 Damages Act 1996 – continued
Administration of Justice Act 1982 278, 279, 280 s 2(2)–(3) 239
s 5 219 s 2(4) 208, 239
Adoption Act 1976 280 s 2(8) 240
s 2(9) 239
Births and Deaths Registration Act 1953 265 s 3 238, 276
Data Protection Act 1998 146, 147, 148, 154
Carriage by Air Act 1961 100, 276
Child Maintenance and Other Payments Act 2008 248 Employers’ Liability (Compulsory Insurance) Act 1969
Civil Evidence Act 1968 64
s 11 157 Employers’ Liability (Defective Equipment) Act 1969 43
Civil Evidence Act 1995 158, 288 s 1(1) 43
Civil Liability (Contribution) Act 1978 107 Enterprise and Regulatory Reform Act 2013 57, 66
s 1(1) 182 s 69 46, 57, 66
Compensation Act 2006 61 Equality Act 2010 234
s 2 80
s 3 61 Family Law Reform Act 1969
Consumer Credit Act 1974 226 s 8(1) 75
Coroners and Justice Act 2009 257, 258, 265, 274 Fatal Accidents Act 1976 106, 179, 195, 238, 251, 275, 276,
s 1 274 277, 278, 279, 280, 286, 287, 288, 289
s 4 260 s 1 276
s 6 260 s 1(3) 279
s 7 264 s 1(4) 279
s 7(2)–(3) 264 s 1(5) 280
s 8 264 s 1A(4) 287
s 9(2) 264 s 2(3) 280
s 10(2) 265 s 3(3) 284
s 14 260 s 3(4) 279
s 48 264 s 3(5) 287
Sch 1 262 s 4 287
Sch 5 Financial Services and Markets Act 2000
para 7(1) 265 s 213 239
Corporate Manslaughter and Corporate Homicide Act 2007
269, 270–3, 273 Health and Safety at Work etc Act 1974 41, 45, 64, 65, 66,
s 1 270 257, 269, 274
s 1(1) 270 s 2 45, 64, 65
s 1(2) 270, 271 s 2(1) 64
s 1(4) 272 s 3 45, 64, 65, 269
s 1(4)(b) 272 s 4 64
s 2(1) 271 s 15 45
s 8(2) 272 s 16 44, 45
s 8(2)(a)–(b) 272 s 40 46
s 11(1) 271 s 47 57
Sch 1 271 Health and Safety Offences Act 2008 65
County Courts Act 1984 179 Health and Social Care Act 2012 78
s 50(5) 194 Health and Social Care (Community Health and Standards)
s 51 179, 236, 237 Act 2003 253
s 52 154 Part 3 253
Courts Act 2003 Highways Act 1980
s 100 239 s 36(2) 36
Courts and Legal Services Act 1990 130 s 36(6)–(7) 36
s 58 130 s 41 39, 121
s 58A 130 s 41(1) 36
s 58AA 131 s 41(1A) 37
s 58 37, 38, 180
Damages Act 1996 s 150 37
s 1(2) 233 s 150(1) 36
s 2 239 Human Rights Act 1998 129, 279
xx Personal Injury and Clinical Negligence Litigation
Law Reform (Contributory Negligence) Act 1945 Occupiers’ Liability Act 1957 – continued
s 1 62 s 2(4)(b) 59
s 1(1) 29 s 2(5) 58
s 4 62
Law Reform (Miscellaneous Provisions) Act 1934 106, 275, Pneumoconiosis etc (Worker’s Compensation) Act 1979
276, 277, 278, 287, 289 248
s 1(2) 276, 278 Powers of Criminal Courts Act 1973
s 1(2)(a)(ii) 278 s 35 251
s 1(2)(c) 278 Protection from Harassment Act 1997 96
Law Reform (Personal Injuries) Act 1948 s 1 96
s 2(4) 221 s 6 96
Legal Aid, Sentencing and Punishment of Offenders Act s 7 96
2012 127, 128, 130
s 10 261 Road Traffic Act 1988 32, 274
s 10(3) 129 s 1 268
s 44 131 s 2 27, 268
s 44(6) 229 s 2B 269
s 45 131 s 3 27
Sch 1, Pt 1 s 3A 268
para 23 128 s 3ZA 268, 269
para 23(5) 128 s 3ZB 269
Limitation Act 1980 35, 99, 108, 112 ss 4–5 27
s 2 100, 105 ss 14–15 27
s 11 99, 100, 107, 109 s 16 28
s 11(1) 105 s 38(7) 28
s 11(4) 99, 106 s 40 27
s 11(5) 106 s 41A 27
s 11(7) 106 s 41D 27
s 11A 107 s 143(1) 30
s 12 99, 100, 107 s 151 31, 144, 177
s 12(1) 106, 107 s 151(4) 32
s 12(2) 106 s 152 31, 32, 144, 177
s 14 100, 105 s 154 32, 33
s 14(1) 101 Road Traffic (NHS Charges) Act 1999 253
s 14(1)(c) 105
s 14(2) 104 Senior Courts Act 1981 179
s 14(3) 102, 104 s 32(5) 194
s 28(6) 105, 300 s 32A 179, 236
s 33 100, 101, 102, 105, 106, 107, 108, 109, 110, 111, 112, s 33 154
113, 300 Social Security Act 1998
s 33(1) 107 Sch 7
s 33(3) 105, 107 paras 148–152 246
s 33(3)(a) 108 Social Security (Recovery of Benefits) Act 1997 124, 219,
s 33(3)(b) 108 246, 248, 254, 278, 288
s 33(3)(c) 108 s 1 246
s 38 99 s 4 250
s 38(2) 105 Sch 1
Part I 251
Maritime Conventions Act 1911 107 Part II 251
Mental Capacity Act 2005 105, 107, 299, 301 Sch 2 246, 247, 248
s 1 300
s 2 299 Unfair Contract Terms Act 1977
Mental Health Act 1983 s 2 59
Pt IV 75
Merchant Shipping Act 1995 107 Water Industry Act 1991 37
Welfare Reform Act 2012 124
NHS Redress Act 2006 82
International legislation
Occupiers’ Liability Act 1957 41, 58 European Convention on Human Rights 280
s 1(1)–(3) 58 Art 2 261, 265, 268
s 2(1) 59 Art 6 181, 182
s 2(2)–(4) 58 Art 6(2) 46
Warsaw Convention 107
Table of Secondary Legislation xxi
Table of Secondary Legislation
Civil Legal Aid (Financial Resources and Payment for Civil Procedure Rules 1998 – continued
Services) Regulations 2013 (SI 2013/480) 128 Part 21 299
Civil Legal Aid (Merits Criteria) Regulations 2013 r 21.2 300
(SI 2013/104) 128 r 21.4 300
Civil Procedure Rules 1998 (SI 1998/3132) 1, 184, 187, 200 r 21.4(3) 301
Part 1 197, 203 r 21.5 301
r 1 2, 149, 159, 163, 184 r 21.6(5) 301
r 1.1 187 r 21.9 302
r 1.1(2)(e) 187 r 21.10 302
r 1.1(2)(f) 187 PD 21 299
r 1.3 187 para 2.2 301
r 1.4 187 para 8.1 303
Part 3 para 10.1 303
r 3.1(f) 112 para 10.2 303
r 3.4(2) 5 Part 22
r 3.4(2)(a) 178 r 22 179
PD 3D 142 r 22.1 158
PD 5 PD 22
para 2.2 178 para 1.4(3) 211
Part 7 311 Part 23 111, 181, 193, 238
r 7.4(1)(b) 111 Part 24
r 7.4(2) 111 r 24.2 178
r 7.5(2) 111 r 24.2(a)(i) 112
r 7.6 111 Part 25
r 7.6(3) 111 r 25.6 194
PD 7A r 25.7 195
para 2.2 177 r 25.7(1) 194
para 2.3 177 r 25.7(4) 195, 196
Part 8 302, 308 r 25.7(5) 195
PD 8B 308 r 25.8 196
Part 16 238 r 25.9 194
r 16.2(c) 177 PD 25B
r 16.3 177 para 1.2 195
r 16.3(3) 178 para 2.1 195
r 16.4 178 para 2.2 195
r 16.4(a) 111 Part 26
r 16.5(c) 178 r 26.2(A) 188
PD 16 178, 238 r 26.3 188
para 4.2 242 r 26.6 188
para 4.4 179 r 26.8(2) 189
para 8.2 179 r 26.10 189
para 14.1 180 Part 28 189
Part 17 r 28.5 193
r 17 181 PD 28
r 17.4 181, 182 para 3.9(4) 165
Part 19 184 Part 29
PD 19B 184 r 29.5 193
Part 20 37, 182 r 29.6 193
r 20.2(1) 182 PD 29
r 20.4 181 para 4.10(4) 165
r 20.5 182 Part 30
r 20.6 183 r 30.1 188
r 20.7 183 Part 31 191
r 20.13 190 r 31.5 191
PD 20 182 r 31.12 191
paras 2.1–2.3 183 r 31.16 154
para 5.3 183, 190 r 31.17 154, 197
xxii Personal Injury and Clinical Negligence Litigation
Civil Procedure Rules 1998 – continued Civil Procedure Rules 1998 – continued
r 31.17(3) 196 Section IIIA 310
Part 32 192 Part 41 237
r 32.4(1) 192 r 41.2 236
r 32.5(2) 192 r 41.5 240
r 32.8 192 r 41.7 240
r 32.9 192 r 41.8 208
PD 32 192 r 41.8(1) 239
Part 33 PD 41 237
r 33.6 193 PD 41B
Part 35 129, 161, 173, 192 para 1 240
r 35.1 163 Part 44
r 35.4 164 r 44.13(1) 138
r 35.4(1) 163 rr 44.13–44.17 138
r 35.4(2) 163 r 44.14 138, 209
r 35.4(3A) 163 r 44.14(1)–(2) 138
r 35.5 162, 164 r 44.15 138
r 35.6 165 r 44.16 138
r 35.7 164, 165 r 44.3B(1)(c) 150
r 35.7(2) 165 r 44.3B(1)(e) 150
r 35.8 165 PD 44 General Rules About Costs
r 35.10(4) 171 paras 12.1–12.7 138
r 35.12(1) 165 para 12.4 138
r 35.12(3) 165 para 19.4 150
r 35.13 164 Part 45 132, 308, 310
PD 35 161 r 45.19 309
para 2 162 r 45.24 310
para 3.1 163 r 45.29J 311
para 3.2 171 r 45.29K 311
para 11.1 164 r 45.29L 311
Protocol for the Instruction of Experts 161, 172 section II 168
para 4.2 163 PD Pre-Action Conduct 140
para 4.3 163 Pre-Action Protocols 2, 142, 150, 159, 200
para 17.6 165 clinical disputes 2, 4, 7, 8, 142, 145, 149, 152, 153, 203,
Part 36 207, 208, 209, 210, 214, 238, 252, 254, 310 205, 371–86
r 36.3(7) 210 Annex B 146
r 36.4 209 Annex C2 152
r 36.5 208 disease and illness 142, 149, 153, 310
r 36.5(3) 208 para 4 148
r 36.5(4) 208 Annex A 149
r 36.5(5–(7)) 208 Annex A1 149
r 36.6 208 employers’ and public liability 2, 142, 143, 152,
r 36.6(1) 208 305–11, 387–98
r 36.6(2)–(5) 209 para 4.1 306
r 36.9 209 para 4.3 306
r 36.9(2) 209 para 5.1 306
r 36.10A 310 para 6.1 306
r 36.10A(2) 310 para 6.3 307
r 36.10A(4)–(5) 310 para 7 308
r 36.14(2) 310 Low Value Employers’ Liability and Public Liability
r 36.14(3)(d) 309 Claims see employers’ and public liability
r 36.14A 310 Low Value Personal Injury Claims in Road Traffic
r 36.14A(2) 310 Accidents see road traffic accidents
r 36.14A(3) 310 personal injury 2, 7, 140, 168, 173, 204, 310, 355–70
r 36.15 209 para 2.6 149
r 36.15(3) 252 para 2.10A 152
r 36.15(6) 252 para 2.14 163
r 36.17(1) 309 para 2.15 168
r 36.17(2) 309 para 3.1 149
r 36.19 309 para 3.15 163
r 36.21 309 para 6.1 149
Section II 309 Annex B 153
Section III 310 Annex C 170
Table of Secondary Legislation xxiii
Civil Procedure Rules 1998 – continued Management of Health and Safety at Work Regulations 1992
Annex D 124, 125, 221 (SI 1992/2051) 46–7
road traffic accidents 1, 2, 152, 305–11 Management of Health and Safety at Work Regulations 1999
para 1.1(14) 306 (SI 1999/3242) 46, 47
para 1.1(18) 306 reg 3 47, 48, 53, 55, 62–3
para 1.2 306 reg 3(6) 47
para 4.1 305 reg 4 47–8
para 4.3 306 reg 5 48
para 4.4 306 reg 6 48, 53
para 5.1 306 reg 7 48
para 7 308 reg 10 48
Conditional Fee Agreements Order 2013 (SI 2013/689) reg 12 48
Art 5 130 reg 13 48
Control of Substances Hazardous to Health Regulations reg 14 49, 63
1994 (SI 1994/3246) 55 reg 16 48
Control of Substances Hazardous to Health Regulations reg 19 48
2002 (SI 2002/2677) 55 reg 21 64
reg 6 55 Manual Handling Operations Regulations 1992
reg 7 55, 56 (SI 1992/2793) 52, 53
regs 8–12 56 reg 2(1) 52
Coroners Allowances, Fees and Expenses Regulations 2013 reg 4 53, 63
(SI 2013/1615) 258 reg 4(1) 53
Coroners (Inquests) Rules 2013 (SI 2013/1616) 258 reg 4(1)(a) 52
r 13 262 reg 4(1)(b) 52
r 17 263 reg 4(1)(b)(ii)–(iii) 53
r 18 263 reg 4(3) 53
r 21 263 reg 5 53
r 22 264 Motor Vehicles (Wearing of Seat Belts) Regulations 1993
r 25(4) 262 (SI 1993/176) 27
Coroners (Investigations) Regulations 2013 (SI 2013/1629)
258 National Health Service (Injury Benefits) Regulations 1974
reg 28 265 (SI 1974/1547) 251
Damages (Variation of Periodical Payments) Order 2005 Personal Protective Equipment at Work Regulations 1992
(SI 2005/841) 240 (SI 1992/2966) 43, 51, 52
Damages-Based Agreements Regulations 2013 reg 4(4) 51
(SI 2013/609) 131 reg 6 52
reg 4 132 reg 7 52
reg 4(1)–(2) 132 reg 7(1) 52
reg 9 52
European Communities (Rights Against Insurers) Provision and Use of Work Equipment Regulations 1992
Regulations 2002 (SI 2002/3061) (SI 1992/2932) 49
reg 3 143 Provision and Use of Work Equipment Regulations 1998
(SI 1998/2306) 43, 49, 51
Health and Safety (Display Screen Equipment) Regulations reg 2 50
1992 (SI 1992/2792) 49 reg 4 50
reg 2 49 reg 5(1)-(2) 50
regs 5–7 49 reg 6(1) 50
Health and Safety (Miscellaneous Amendments) reg 8 50
Regulations 2002 (SI 2002/2174) 53 reg 9 51
reg 11 51
Income Support (General) Regulations 1987 (SI 1987/1967) reg 13 51
reg 41(2) 124 regs 15–17 51
Insurance Companies (Legal Expenses Insurance) reg 19 51
Regulations 1990 (SI 1990/1159) 136 reg 20 51, 63
reg 6 136 regs 21–28 51
reg 6(1) 136
Recovery of Costs Insurance Premiums in Clinical
Lifting Operations and Lifting Equipment Regulations 1998 Negligence Proceedings (No 2) Regulations 2013
(SI 1998/2307) 53 (SI 2013/739)
Local Authority Social Services and National Health Service reg 3 134
Complaints (England) Regulations 2009 (SI 2009/309) 79 reg 3(1) 134
reg 3 81 reg 3(2) 135
xxiv Personal Injury and Clinical Negligence Litigation
Reporting of Injuries, Diseases and Dangerous Occurrences Workplace (Health, Safety and Welfare) Regulations 1992
Regulations 1995 (SI 1995/3163) 153, 155 (SI 1992/3004) 44, 53
Sch 2 154 regs 5–8 53
reg 11 54
Social Security (Recovery of Benefits) (Lump Sum reg 12 54
Payments) Regulations 2008 (SI 2008/1596) 249 regs 20–21 54
Social Security (Recovery of Benefits) Regulations 1997
(SI 1997/2205) 246 EU secondary legislation
reg 2 251 Directive 89/391 (Health and Safety at Work, Framework) 47
Directive (Motor Insurance, 4th) 143
Work at Height Regulations 2005 (SI 2005/735) 54
reg 2(1) 54 Codes and Agreements
reg 4 54 Highway Code 26, 27, 28
reg 5 54 SRA Code of Conduct 2011 127, 130, 137
reg 6 55 Indicative Behaviours 127, 128, 1.15, 1.16, 1.17
reg 7 54, 55 Outcomes 1.6 127
regs 9–13 55 Outcomes 1.13 115, 127
Sch 1 55 Outcomes 5.1 5
Sch 7 55 Outcomes 5.2 5
Uninsured Drivers Agreement 1999 32–4, 144, 177
Untraced Drivers Agreement 2003 34–6, 144, 306
List of Abbreviations xxv
List of Abbreviations
See Chapter 2 for commonly used medical abbreviations.

ACOPs Approved Codes of Practice
ADR alternative dispute resolution
AEI after the event insurance
APIL Association of Personal Injury Lawyers
AvMA Action against Medical Accidents
BEI before the event insurance
CCG clinical commissioning group
CFA conditional fee agreement
CICA Criminal Injuries Compensation Authority
CJA 2009 Coroners and Justice Act 2009
CMCHA 2007 Corporate Manslaughter and Corporate Homicide Act 2007
CNF Claim Notification Form
CNST Clinical Negligence Scheme for Trusts
CPP court proceedings pack
CPR 1998 Civil Procedure Rules 1998
CPS Crown Prosecution Service
CRU Compensation Recovery Unit
CTG cardiotachograph
DBA damages-based agreement
DCNF Defendant Only Claim Notification Form
DPA 1998 Data Protection Act 1998
DWP Department for Work and Pensions
DSE display screen equipment
ECG electrocardiogram
ECHR European Convention on Human Rights
EL employers’ liability
FAA 1976 Fatal Accidents Act 1976
GLO group litigation order
GMC General Medical Council
HSE Health and Safety Executive
HSOA 2008 Health and Safety Offences Act 2008
HSWA 1974 Health and Safety at Work etc Act 1974
LA 1980 Limitation Act 1980
LASPO 2012 Legal Aid, Sentencing and Punishment of Offenders Act 2012
LEI legal expenses insurance
MIB Motor Insurers’ Bureau
MID Motor Insurance Database
NHS National Health Service
NHSLA NHS Litigation Authority
NMC Nursing and Midwifery Council
OLA 1957 Occupiers’ Liability Act 1957
PALS Patient Advice and Liaison Service
PAR police accident report
PD Practice Direction
PHA 1997 Protection from Harassment Act 1997
xxvi Personal Injury and Clinical Negligence Litigation
PL public liability
PPE personal protective equipment
PTSD post-traumatic stress disorder
QOCS qualified one way costs shifting
RIDDOR 1995 Reporting of Injuries, Diseases and Dangerous Occurrences Regulations
1995
RTA road traffic accident
RTA 1988 Road Traffic Act 1988
SSP statutory sick pay
VWF vibration white finger
WRA 2012 Welfare Reform Act 2012
WRULD work-related upper limb disorder
Introduction to the Work of a Personal Injury and Clinical Negligence Solicitor 1
CHAPTER 1
Introduction to the Work of a

Personal Injury and Clinical
Negligence Solicitor
1.1 Introduction 1
1.2 Personal injury claims 3
1.3 Clinical negligence claims 4
1.4 Fraudulent and exaggerated claims 5
1.5 Conclusion 6
1.6 Overviews of personal injury and clinical negligence claims 7
LEARNING OUTCOMES
After reading this chapter you will be able to:
• understand the scope and limitations of this book
• explain the similarities and differences between personal injury claims and clinical
negligence claims
• set out an outline of the main steps in each type of claim
• explain how these claims are viewed from the perspectives of the claimant, the
defendant and their solicitors
• appreciate that solicitors acting for claimants and defendants need to be vigilant in
order to spot fraudulent claims, and understand how the courts might deal with
dishonest litigants.
1.1 INTRODUCTION
The aim of this text is to provide an introduction to personal injury and clinical negligence
litigation. It is assumed, however, that the basic civil litigation procedure has been studied
before. Reference to the Legal Practice Guide, Civil Litigation and the Civil Procedure Rules
1998 (CPR 1998) may be necessary for those unfamiliar with the essential elements of High
Court and county court procedure.
The terms ‘personal injury litigation’ and ‘clinical negligence litigation’ are widely used to
describe claims for compensation for injuries which a client has suffered. This text will not
deal with every type of claim that is encountered in practice, but it should serve as a basic
introduction to a fascinating and rapidly developing area of law.
In practice, many personal injury claims will be based on either public liability, where the
injury is sustained on property which is open to the public, or product liability, where the
injury is caused by products made available to the public. However, in this text, the focus will
be on the following:
(a) Road traffic accident and other highway claims. These are usually the most
straightforward type of personal injury claim. See Chapter 3.
2 Personal Injury and Clinical Negligence Litigation
(b) Employers’ liability claims. This term is used for personal injury claims where the claimant
was injured in the course of his employment and his employer is the defendant. Common
examples of this type of personal injury claim arise where workers slip on the factory floor,
fall from ladders or are caught in moving machinery. More complex cases arise where
workers suffer a disease or injury which manifests itself many years after their exposure
to dust, fibres, gases, fumes or noxious substances within the workplace. See Chapter 4.
(c) Clinical negligence claims, which arise as a result of the negligence of doctors or other
medical professionals, such as nurses, physiotherapists and dentists, or of institutional
health providers, such as NHS Trusts or private hospitals. See Chapter 5.
(d) Claims for psychiatric injury. These may arise in the context of any of the above types of
claim but the law in relation to claims for nervous shock and occupational stress is
complex enough to warrant separate treatment in this text. See Chapter 6.
While the basic litigation procedures for personal injury and clinical negligence claims and
the skills required of the solicitor are similar, there are differences, some of which are
significant. Where the procedure for a clinical negligence claim differs notably from that of a
personal injury claim, specific reference is made in the text.
Where a fatality arises from an accident in one of the above areas, special considerations arise.
These are discussed in Chapter 17.
1.1.1 Causes of action

In most personal injury and clinical negligence cases, the claim is based on negligence.
However, in employers’ liability claims and in claims against the highways authority, there
may also be a claim arising from breaches of statutory duties. Some of the relevant statutory
duties are explored in the text.
In clinical negligence claims against private hospitals and healthcare professionals who have
provided advice and treatment on a private basis, there may be a claim in breach of contract.
These claims lie beyond the scope of this book.
1.1.2 The CPR and the pre-action protocols

In accordance with the overriding objective set out in r 1 of the CPR 1998, personal injury and
clinical negligence solicitors and their clients are required to have regard to the costs involved
in pursuing the case, and to deal with the matter expeditiously and proportionately. This
philosophy is to be adopted from the early days of the dispute, and reference needs to be made
to the relevant pre-action protocol, which sets out the steps to be taken by the parties prior to
the issue of proceedings. The full text of the protocols relevant to personal injury and clinical
negligence claims is set out in Appendices 2 and 3.
In April 2010, the Government introduced a new claims process for low value road traffic
accident personal injury claims valued between £1,000 and £10,000. In July 2013, the upper
financial limit was raised to £25,000 and, in addition, a similar protocol was introduced for
low value employers’ liability and public liability claims. The aim of these new protocols is to
ensure that the process, which includes fixed time periods and fixed recoverable costs,
delivers fair compensation to the claimant as soon as possible whilst keeping costs reasonable
and proportionate. The Protocols, which apply only when certain criteria are fulfilled, are
more prescriptive than other pre-action protocols. Consequently, this process is dealt with in
some detail in Chapter 21, but is mentioned sparingly in the rest of the book. The full text of
the Pre-action Protocol for Low Value Personal Injury (Employers’ Liability and Public
Liability) Claims is set out at Appendix 4.
1.2 PERSONAL INJURY CLAIMS

1.2.1 The claimant’s perspective
The aim of the claimant’s personal injury solicitor is to prove that the defendant was
responsible for the client’s injuries and to obtain the appropriate amount of compensation.
Therefore, there are two essential elements to a personal injury claim: liability and quantum.
This may sound obvious, but it is important that these two elements are paramount in the
solicitor’s mind throughout the case.
Personal injury claims can take time to progress. At the initial interview, it should be
explained to the client how it is anticipated the case will proceed and a realistic timescale
should be given (although this can be difficult) as to when the matter might be settled or reach
trial. The client should be informed of the basic requirements of the relevant pre-action
protocol and the time limits imposed on each side. It is important that the client is kept
informed as the matter proceeds. Regular letters should be sent, updating the client on the
current position. If a proactive approach is taken, this will avoid difficulties in the future.
1.2.1.1 Liability
It is for the claimant to prove his case; the onus will therefore be on the client to persuade the
court that the defendant was in breach of a statutory or common law duty owed to the client.
The claimant has to prove, on a balance of probabilities, that:
(a) the defendant owed him a duty of care and/or there was a relevant statutory duty;
(b) the defendant was in breach of that duty;
(c) the breach caused injury and consequential losses which were reasonably foreseeable.
This is further explored in the context of the various types of personal injury claim dealt with
in this book in Chapters 3, 4 and 6.
1.2.1.2 Quantum
The claimant’s solicitor should have as his aim the maximisation of damages for his client,
and he must take all legitimate steps to achieve that aim. The assessment of damages is dealt
with in Chapter 15 and, where there has been a fatality, in Chapter 18. Most solicitors working
in this area acknowledge that a weariness on the part of the victim himself can set in if months
pass and the claimant perceives that little has been done, or due to anxiety at having to attend
trial. This can result in the client accepting inappropriately low offers rather than instructing
the solicitor to progress the matter to trial. This should be acknowledged as a factor to be
dealt with by the solicitor, and the client’s concerns should be anticipated.
Medical evidence is required by the court to prove the injuries suffered by the client.
Instructing a doctor may appear to be a simple task, but the choice of the appropriate doctor is
significant as the value of the client’s injuries will be based on the medical evidence, including
the reports of the medical experts. The instruction of experts is dealt with in Chapter 11 and a
list of important medical specialities is contained in Chapter 2.
1.2.2 The defendant’s perspective

In many cases the defendant’s personal injury solicitor will be instructed only when
proceedings have been issued against the defendant. At all times prior to this, where the
defendant is insured, the claimant’s solicitor will correspond with the defendant’s insurance
company. Where the insurance company believes that liability will be established, and in
some low value cases where it is not economically viable to defend the claim, it will attempt to
reach a settlement. The vast majority of claims are settled before trial and a substantial
number of these are settled before proceedings are issued.
Many insurance companies require the insured to sign a letter of authority allowing them to
act on the insured’s behalf and to dispose of the case in any way that the defendant’s solicitor
sees fit. This is often a formality, as the terms of the insurance policy will allow the insurance
company and its solicitor to have control of the case. The role of insurers is explored further
at 3.3.
1.3 CLINICAL NEGLIGENCE CLAIMS

1.3.1 The claimant’s perspective
The essential aims in a clinical negligence claim are the same as in a personal injury claim,
namely, to establish liability and maximise damages. However, these are frequently not the
only aims and considerations. The client’s trust in a respected profession has been lost, and
the client will often lack knowledge and understanding as to what has happened to him. It
must be explained to the client that he has to prove his claim, if he is to establish liability. One
of the first distinctions which has to be made between personal injury and clinical negligence
cases is that the issue of liability is normally far more complicated in the latter, and there is a
greater chance that the claimant’s claim will fail at trial (see Chapter 5). However, the law
relating to the quantum of damages is the same in both personal injury and clinical
negligence cases.
The costs involved in a clinical negligence case are usually higher than those incurred in a
personal injury case. The clinical negligence pre-action protocol will have to be complied with,
and the initial investigations prior to commencing the claim will involve the solicitor taking
instructions, obtaining the client’s medical notes, and then instructing an expert to assess the
notes and evidence available. However, it is only then that any preliminary view on liability can
be obtained. Unlike a personal injury case, the victim’s clinical negligence solicitor will never
be able to give a view on liability at the first interview. It will only be when the notes and an
expert’s view are obtained that any advice on liability can be given to the client.
A common concern expressed by clients is how they will continue to be treated by the doctor/
healthcare professional if there is an ongoing ‘doctor/patient’ relationship, and advice and
support in relation to this may be required. In addition, the solicitor will need to establish
whether the client’s sole concern is to pursue a damages claim or if he has other objectives, for
example to complain to the relevant NHS Trust, to report the alleged misconduct of a
healthcare professional to the appropriate regulatory body and to prevent a similar event
occurring in the future. In some cases, for example the death of a child, the client may not
wish to pursue a claim at all but the other options may be hugely important to him. The
options available to the client in such circumstances are set out in Chapter 5.
1.3.2 The defendant’s perspective

The defendant’s clinical negligence solicitor will usually be from a firm instructed by the
defendant’s indemnity insurers. In the case of most NHS bodies, the NHS Litigation Authority
(NHSLA) will choose a solicitor from its panel. The defendant’s solicitor will have the same
basic aims as those of the defendant’s personal injury solicitor. If liability can be refuted then
the case will be vigorously defended; if liability is established, the case will be settled.
However, there are also special factors that the defendant’s clinical negligence solicitor must
consider. One important factor is that the defendant is a professional person and, while
damages will not be paid by him personally, his reputation, and possibly that of his employer
in the case of the NHS, will be brought into question by any admission or finding of
negligence on his part. This is one of the reasons why more clinical negligence claims than
personal injury claims proceed to trial. Establishing liability in a clinical negligence case is not
easy. While the patient may complain that the treatment was unsuccessful, it does not follow
that the doctor was negligent, and the arguments available to the defendant’s solicitor to
refute negligence are wider and more complicated than in a personal injury case.
1.4 FRAUDULENT AND EXAGGERATED CLAIMS

Only the most naive of those acting on behalf of claimants would believe everything every
client tells them to be the truth, the whole truth and nothing but the truth. The
accounts of even the most honest of people will be tainted by one or more of the following:
anger, grief, confusion, a misunderstanding, a sense of indignation, a distorted perspective,
an unconscious tendency to exaggerate and, of course, memory loss. Solicitors should always
test the evidence of their clients and witnesses, not least of all because a story which does not
stack up in the opinion of the solicitor, is likely to be found wanting should the matter be tried
in court.
Solicitors acting for claimants may also encounter individuals whose aim is to make an
entirely fraudulent claim, or whose conscious exaggeration of their injuries is such as to
amount to fraud. Although, as a matter of professional conduct, it is irrelevant whether a
solicitor believes his client’s version of events to be true or not, where a solicitor knows his
client is lying, he should take care not to deceive or mislead the court or to be complicit in
another person deceiving or misleading the court (SRA Code of Conduct 2011, Outcomes 5.1
and 5.2). Moreover, in circumstances where a reasonably competent lawyer would have
realised that the claim was fraudulent and had no reasonable prospect of success, a wasted
costs order may be made against the firm (see Afzal v Chubb Guarding Services Ltd [2002] EWHC
822, where solicitors were not liable to pay wasted costs).
In Shah v Ul-Haq and Others [2009] EWCA Civ 542, the Court of Appeal held that there was no
rule of law which allows the court to deprive a claimant of damages to which he is entitled,
either where he fraudulently attempted to obtain more than his entitlement or where he lied
to support the claim of another claimant. In Fairclough Homes Ltd v Summers [2012] UKSC 26,
the Supreme Court overruled this decision, stating that the court does indeed have
jurisdiction to strike out a claim in such circumstances under CPR, r 3.4(2) for abuse of
process, or under its inherent jurisdiction. However, it went on to say, the sanction was so
extreme, it could barely envisage when it would be appropriate to make such an order, and in
the Fairclough Homes case it declined to do so. In any event, such claimants may be punished in
costs (see Booth v Britannia Hotels Ltd [2002] EWCA Civ 529 and Martine Wildake v BAA Ltd [2009]
EWCA Civ 1256) by receiving a smaller amount in interest, and/or be prosecuted for perjury or
deception offences.
Defendants, and particularly their insurers, are becoming increasingly wise to such matters,
and they are showing a greater inclination to investigate potentially fraudulent claims
thoroughly, including using covert surveillance, and to challenge them in court. An allegation
of fraud must be pleaded, the burden of proof resting with the defendant.
In Walton v Kirk [2009] EWHC 703 (QB), Ms Kirk had claimed damages in excess of £750,000
following a road traffic accident. Liability was admitted by the defendant’s insurers, but they
suspected that her injuries, as set out in various court documents and witness statements,
verified by statements of truth signed by Ms Kirk, were grossly exaggerated. Video
surveillance commissioned by the insurers confirmed their suspicions and, following
disclosure of the video, Ms Kirk accepted a payment in of £25,000. Taking costs into account,
she recovered nothing from the litigation. Perhaps more disconcerting for Ms Kirk, the
insurers applied to commit her for contempt.
In the contempt proceedings, it was held that exaggeration of a claim is not automatic proof of
contempt. What may matter is the degree of exaggeration and/or the circumstances in which
any exaggeration is made. Mrs Kirk was found guilty in relation to just one statement, for
which she was fined £2,500.
However, in Motor Insurers’ Bureau v Shikell & Others [2011] EWHC 527 (QB), James Shikell
claimed in excess of £1.2 million in respect of a head injury suffered in an RTA. The defendant
was granted permission to bring contempt proceedings against Mr Shikell, his father, and a
third man, who had signed a witness statement in support of the claim without reading it, for
contempt, after surveillance revealed that he was an active, sporty man, with no significant
disability. The Shikells were each sentenced to 12 months’ imprisonment, and the third man
was fined £750.
For a fascinating insight into the magnitude of the problem of fraud in relation to RTAs, we
recommend the full judgment in the case of Locke v (1) Stuart (2) Axa Corporate Solutions Services
Ltd [2011] EWHC 399 (QB). This is particularly interesting because the defendant’s insurers
were able to use Facebook to demonstrate a connection between the claimant in this matter
and claimants and defendants in a number of other claims.
Finally, it should be noted that criminal charges may be brought against anyone who
dishonestly makes false representations contrary to s 2 of the Fraud Act 2013. Such charges
may arise when the accident was genuine but the claim has been fraudulently exaggerated (see
R v W [2013] EWCA Crim 820).
1.5 CONCLUSION
Personal injury and clinical negligence litigation is a diverse and expanding area. At its least
complex, it may involve a claim for compensation for minor injuries suffered as a result of a
road traffic accident, or, at the other extreme, it may involve representing a child who is
severely disabled, allegedly as a result of being starved of oxygen at birth.
Overviews of the main steps in a typical personal injury claim and a typical clinical negligence
claim are set out in 1.6 below.
This text aims to provide an introduction to personal injury and clinical negligence litigation,
but reference should also be made to practitioners’ works and original sources. Where
appropriate, reference must be made to the CPR 1998 and pre-action protocols.
1.6 OVERVIEWS OF PERSONAL INJURY AND CLINICAL NEGLIGENCE CLAIMS

1.6.1 Main steps in a typical personal injury claim
Accident
CLAIMANT DEFENDANT
Initial interview – take client’s proof of

evidence and any documentation and/or
photos. Advise as to keeping pain diary and
retaining relevant receipts. From now on
follow PAP.
Carry out initial investigations.
Send letter of claim as soon as sufficient

information is available to substantiate a
realistic claim. Alternatively, where a low
value claim pre-action protocol applies, send
the Claim Notification Form/Defendant Only
Claim Notification Form electronically and
Acknowledge letter of claim within
then follow the pre-action protocol.
21 days of posting of letter.
See Chapter 21.
Conduct investigations into
liability and quantum. Send
substantive response and relevant
If liability denied or no response in documents within 3 months of date
accordance with PAP, conduct further of acknowledgement.
investigations into liability and quantum.
Instruct experts where necessary.
If liability denied, file defence
within 14 days. Alternatively, file
acknowledgement within 14 days
Issue and serve proceedings. and defence within 28 days.
If defended – court will allocate to track.

A case management conference may be
required in multi-track cases.
Directions
Disclosure
Exchange of witness statements
Exchange of expert witnesses’ reports
Listing questionnaire
Pre-trial review
Trial
1.6.2 Main steps in a typical clinical negligence claim against an NHS Trust
Adverse outcome
NHS complaints procedure
CLAIMANT DEFENDANT
Initial interview – take client’s proof of

evidence and any documentation and/or
photos. Advise as to keeping pain diary
and retaining relevant receipts. From now
on follow PAP.
Send the records within 40 days.
Request will prompt an initial
Request medical records from investigation by the Trust and may
hospital. result in notification to NHSLA.
Review records with client and send Acknowledge receipt of letter of

them to expert/s on liability and claim within 14 days of receipt.
causation. Subject to positive expert Conduct further investigations
advice, send letter of claim. into liability, causation and
quantum. Send substantive
response and any further relevant
documents within 4 months of date
If liability denied or no response in
of acknowledgement.
accordance with PAP, conduct further
investigations into liability and
quantum. Instruct further expert(s) and
conference with expert(s) where
necessary. If liability denied, file defence with
14 days. Alternatively, file
acknowledgement with 14 days and
Issue and serve proceedings. defence within 28 days.
If defended – court will allocate to track.

A case management conference may be
required in multi-track cases.
Directions
Disclosure
Exchange of witness statements
Exchange of expert witnesses’ reports
Listing questionnaire
Pre-trial review
Trial
Personal Injury and Clinical Negligence Terminology 9
CHAPTER 2
Personal Injury and Clinical

Negligence Terminology
2.1 Introduction 9
2.2 Common injuries, conditions and medical terms 10
2.3 Areas of medical speciality 15
2.4 Common abbreviations used in medical records 17
2.5 Diagrammatic representation of the human skeleton 23
2.6 Conclusion 24
LEARNING OUTCOMES
• appreciate the importance to the personal injury/clinical negligence solicitor of
acquiring a working knowledge of medical terms and abbreviations, and of
understanding the nature of the most common injuries that arise and the scope of
different types of medical expertise
• know where to find assistance to acquire such information and knowledge.
2.1 INTRODUCTION
A trainee solicitor who enters the personal injury/clinical negligence department of a legal
firm has to cope not only with the pressures of being able to understand fully and advise
accurately on the law, but also with a barrage of unfamiliar medical terms. If a trainee is faced
on his first day with his colleagues referring to claims dealing with work-related upper limb
disorders (WRULD), vibration white finger (VWF), post-traumatic stress disorder (PTSD),
etc, and he is unfamiliar with the terminology, he will obviously be at a disadvantage.
There can be no doubt that proficient solicitors who practise in this area have extensive
medical knowledge and a detailed understanding of the terms used. This knowledge enables
them to comprehend fully clients’ complaints, experts’ reports and medical notes, and also
enables them to explain matters thoroughly to clients. For example, upon receipt of a medical
report obtained following a simple road traffic accident, the solicitor must read the report
carefully and then send it to the client. If the client subsequently contacts his solicitor stating
that he does not understand the terms used in the medical report, it is not acceptable for the
solicitor to say, ‘Neither do I’!
In addition, it is important for the trainee solicitor to have some knowledge of the areas of
medical specialisation, so that appropriate experts can be instructed.
The purpose of this chapter is to assist in the understanding of the terms and abbreviations
commonly found in personal injury/clinical negligence work, and of the main areas of
specialisation. It should be noted, however, that a medical dictionary is an essential
requirement for the personal injury solicitor, and more detailed medical texts may also be of
use.
2.2 COMMON INJURIES, CONDITIONS AND MEDICAL TERMS

2.2.1 Orthopaedic injuries
Orthopaedic (bone) injuries are the most common injuries encountered in a personal injury
claim. They are normally incurred as a result of falling, or from being involved in a road traffic
accident.
The most common terms found in orthopaedic medical reports are as follows:
(a) Arthrodesis – means a joint that has been fused, either because of pre-existing joint
disease or because of injury as a result of trauma to the joint.
(b) Arthroplasty – means that the joint has been reconstructed, often by the use of a joint
implant to replace one or more parts of the components of a joint.
(c) Contusion – means an injury to the skin and the deeper tissues in the surrounding area
which is accompanied by bleeding from damaged blood vessels. The skin, however, is
not broken. The simplest form of contusion is a bruise, developing through to a
contusion accompanied by a large haematoma, which is a collection of blood under the
surface of the skin.
(d) Dislocation – means an injury which results in the bones of a joint being out of alignment
or connection with one another. There is usually associated ligament and soft tissue
damage.
(e) Fracture – means a break in the continuity of a bone.
(f ) Sprain – means an injury in the region of a joint with associated ligament and soft tissue
damage.
(g) Subluxation – a joint which has subluxed has undergone a partial dislocation, and
subluxation is a term which is sometimes used to describe a sprain.
A client who has an orthopaedic injury may also undergo traction, ie a system of weights and
pulleys is used to pull muscle groups, so as to reduce/immobilise fractures and put the bones
back into alignment.
In general, the most common fractures occur to:
(a) The clavicle (collar bone) – these fractures are especially common in children and young
adults, and are almost always due to falls or direct trauma to the point of the shoulder.
Treatment involves wearing a sling until the pain has subsided. Surgical intervention is
very rarely required and is usually indicated only if there is a risk to nearby nerves or
blood vessels.
(b) The surgical neck of the humerus (the long bone stretching from the shoulder to the elbow) – these
fractures are usually treated with a sling; but if badly displaced, are surgically treated
and fixed with metal pins.
(c) The shaft of the humerus – these fractures can occur at any point along the humerus and are
usually treated by immobilising the fracture in a plaster of Paris cast for six to eight
weeks.
(d) The radius (the bone running from the elbow to the base of the thumb) – there are many different
types of radial fracture but the most common is the Colles fracture.
(e) The femur (the thigh bone) – these fractures can occur at any point along the length of the
femur. The most common sites are the neck or the shaft of the femur. Treatment tends
to be surgical. Clients with fractures of the shaft of the femur will be placed in a Thomas
splint, which immobilises the fracture.
(f ) The tibia and fibula – these two bones make up the part of the leg from beneath the knee
to the ankle. Fracture of these two bones can result from direct or indirect trauma.
(g) The pelvis – a number of bones which together form a ring-like structure at the base of the
spine. The pelvis contains the vertebrae of the sacral spine and the hip joints, and
fractures can occur at any point. Fractures to the pelvis are of two main types: first,
isolated fractures of one of the bones which make up the pelvis; and, secondly, double
fractures of the bones which make up the pelvic rim.
2.2.2 Hand injuries

In interpreting medical reports regarding hand injuries, a basic understanding of the
anatomical position of the hand is required.
The functional parts of the hand are the wrist and the fingers. If the wrist is flexed, the hand is
brought forward; if the hand is positioned as if to push someone away, it is said to be
extended. The wrist is described as being ‘pronated’ if the palm of the hand is pointing
towards the floor, and is described as being ‘supinated’ if the hand is positioned to receive
something.
If the hand is made into a fist, the fingers are described as flexed; if the hand is opened out as
if to receive something, the fingers are described as extended.
The fingers are described as the distal half of the hand, and are made up of three joints.
Working from the palm of the hand out towards the end of the fingers, the three joints are the
metacarpo-phalangeal joint (the knuckles), the proximal interphalangeal joint, and the distal
interphalangeal joint, which is the joint nearest to the finger nails. The thumb has the same
number of joints, but appears shorter because it attaches to the hand lower down; 70% of the
function of the hand is provided by the thumb.
2.2.3 Head injuries

The following terms are used in relation to head injuries:
(a) aphasia – the loss of power of speech;
(b) anosmia – the loss of the sense of smell;
(c) cerebral oedema – a swelling of the brain;
(d) closed head injury – a head injury in which there is no open skull fracture;
(e) concussion – instantaneous loss of consciousness due to a blow on the head;
(f )diffuse axonal injury – a brain injury which involves shearing of the brain tissue itself;
(g) dysphasia – a difficulty in understanding language and in self-expression;
(h) extradural haematoma – a blood clot which lies immediately above the brain and its
protective membranes and below the surface of the skull;
(i) Glasgow Coma Scale – a system of assessing neurological function;
(j) hydrocephalus – a condition which arises due to an increase in the amount of cerebro-
spinal fluid within the cranial cavity;
(k) hemiplegia – paralysis of one side of the body;
(l) intracerebral – within the substance of the brain itself;
(m) monoplegia – a paralysis of one limb;
(n) open head injury – a head injury with an associated depressed skull fracture;
(o) subdural haematoma – a blood clot lying in-between the brain and its protective
membranes.
2.2.4 Injuries to the skin

The following terms are used to describe injuries to the skin:
(a) abrasion – occurs when the surface of the skin is rubbed off due to a mechanical injury;
(b) hypertrophy – the overgranulation of scar tissue which can lead to disfigurement;
(c) laceration – a wound to the skin which has jagged, irregular edges.
2.2.5 Whiplash injuries

The term ‘whiplash injury’ is not a medical term at all, but it is one which is used by lawyers
and the general public to describe a whole range of symptoms suffered, in the main, by
someone whose head is thrown forward in a sudden forceful jerk – literally whipped forward –
and back. Medical practitioners may prefer to use the terms ‘cervical sprain’ or
‘hyperextension injuries of the neck’. This type of injury is commonly associated with road
traffic accidents, but it can also result from other accidents (such as tripping and slipping),
sporting activities (such as biking and diving), and assaults.
The cause of the injuries associated with whiplash is the stretching and straining of the soft
tissues – the tendons, ligaments and muscles – supporting the cervical spine (ie in the neck
region). Symptoms can be of widely varying severity, and may include pain and stiffness in the
neck, backache, tingling and numbness in the arms and possibly in the hands, headaches,
dizziness, ringing in the ears, tiredness, inability to concentrate, memory loss, blurred vision,
nausea and reduced libido. Typically, symptoms will not be present immediately after the
accident but will develop over one or two days, and may gradually get worse before they start
to improve. Most people make a full recovery within days or weeks, but where symptoms are
severe, it may take months or even years for them to subside.
As these injuries are to the soft tissues, they cannot be detected by means of an MRI scan, CT
scan or an x-ray, and they are otherwise difficult to diagnose accurately. This means that it is
sometimes difficult to assess whether a claim is spurious or not.
2.2.6 Work-related upper limb disorders

The term ‘repetitive strain injury’ is commonly used by the general public to describe
musculoskeletal problems of the arm and hand associated with repetitive activity, such as
typing or assembly work. However, this term does not accurately reflect the fact that the
condition may not be due to repetitive work and may not be the result of a strain.
Consequently, the term ‘work-related upper limb disorder’ (WRULD) is to be preferred.
WRULDs, which are common across a wide range of occupations, may be caused by repetitive
or forceful activities, including lifting or carrying heavy objects, poor posture and/or carrying
out activities for long periods without adequate breaks. In some cases, a WRULD may be
caused by a single strain or trauma resulting, for example, from carrying a heavy load. In other
cases, problems are caused by vibration, due to the use of tools such as chainsaws, grinders or
drills.
Symptoms include aches, pain, weakness, numbness, tingling, stiffness, swelling and cramp
in the arm and hand, including the fingers, wrist, forearm, elbow, shoulder and neck. In many
instances, rest or adjustments to the working environment (the desk layout or assembly line)
or the way that work is managed will alleviate the symptoms, but in some cases the condition
is permanent.
It may be possible for a precise medical diagnosis to be made, for example, carpal tunnel
syndrome, tenosynovitis or vibration white finger.
Controversy surrounds claims for WRULDs due to the fact that some specific conditions, such
as carpal tunnel syndrome, may be caused by factors not related to the workplace and because
some WRULDs are non-specific (ie, a medical diagnosis is not possible).
2.2.7 Industrial deafness

Industrial deafness claims are brought by those who have suffered hearing loss due to
exposure at work to a high level of noise for a long period of time. For example, employees
working in the steel industry, shipbuilding or other manufacturing industry may suffer from
industrial deafness. Expert medical evidence is required to prove the loss of hearing, and
evidence relating to the employees’ working conditions is also required. Employers should,
for example, have a system of assessing the risk from noise, provide ear protectors and have
clearly marked zones where ear protection must be worn.
2.2.8 Asbestos related conditions

Where people are exposed to asbestos, dust or fibres may be inhaled which can move to the
lungs or to the pleura, which is the membrane surrounding the lungs. Where this occurs, a
number of conditions of varying severity may arise.
Asbestosis is a form of pneumoconiosis, which is a general term applied to any chronic form of
inflammation of the lungs affecting people who are liable to inhale irritating substances or
particles at work. Asbestosis occurs due to the inhalation of mainly blue or brown asbestos
dust, which leads to the development of widespread scarring of the lung tissue and causes
severe breathing difficulties. The main hazard, however, is the potential for the development
of a type of cancer called mesothelioma, which affects the lungs, the pleura or, more rarely,
the ovaries.
Pleural plaques are areas of fibrosis, sometimes partly calcified, on the pleura. Typically, there
are no symptoms, but there is evidence to conclude that individuals who have pleural plaques
have an increased risk of developing mesothelioma.
Where these areas of fibrosis are more widespread, they can prevent the lungs from working
properly and thereby cause difficulties with breathing. This is known as pleural thickening
2.2.9 Occupational asthma

Occupational asthma may develop following exposure to a precipitating factor in the
workplace, for example flour.
Asthma is a breathing disorder characterised by a narrowing of the airways within the lungs.
The main symptom is breathlessness and an associated cough. It is an extremely distressing
condition and, if left untreated, can be fatal.
2.2.10 Occupational dermatitis

Dermatitis is an inflammation of the skin, which is usually caused by direct contact with some
irritating substance.
Occupational dermatitis is the most common of all the occupational diseases.
2.2.11 Occupational stress

Following the case of Walker v Northumberland County Council [1995] 1 All ER 737, in which a
social services officer received compensation for stress induced by his employment (he
suffered a nervous breakdown), a number of occupational stress claims have been brought
before the courts. Careful consideration needs to be given as to whether the particular client
will satisfy the necessary criteria to persuade the court to award damages in these
circumstances. Occupational stress is considered in more detail in Chapter 6.
2.2.12 Post-traumatic stress disorder

Post-traumatic stress disorder (PTSD) has become more prominent in recent years. This
expression refers to a psychological illness in which the claimant suffers from a variety of
symptoms, which may include flashbacks, panic attacks, palpitations, chest pain, nausea,
constipation, diarrhoea, insomnia, eating disorders, extreme fatigue and loss of libido.
It is important that medical evidence is obtained to support the injury, so that the defendants
cannot make the allegation that the claimant has simply been ‘shaken up’. This type of injury
must be considered by the claimant’s solicitor, even if the client concentrates only on his
physical injuries when he is asked at the first interview what injuries he has suffered as a result
of the accident. Post-traumatic stress is considered in more detail in Chapter 6.
2.2.13 Obstetrics
A normal labour and delivery take place in three stages. The first stage refers to the period of
time it takes the cervix to dilate fully to 10 cms, and this is the longest stage of labour. The full
dilation of the cervix is also associated with the rupture of the amnion, which is the tough
fibrous membrane lining the cavity of the womb during pregnancy, containing amniotic fluid
which supports the foetus. The rupture of the amnion is often referred to as ‘the breaking of
the waters’. The second stage of labour is the actual birth of the baby. The third stage is the
delivery of the placenta.
If a baby is deprived of oxygen, it is said to have become ‘hypoxic’. Hypoxia refers to a state
where there is an inadequate supply of oxygen to maintain normal tissue function. If a baby is
deemed to be in danger, it will be intubated and ventilated. This involves the insertion of an
endotracheal tube into the baby’s trachea to facilitate the maintenance of the baby’s airway.
Once a baby is born, it is assessed using the Apgar score. This is a method of assessing a
baby’s condition by giving a score of 0, 1 or 2 to each of five signs: colour, heart rate, muscle
tone, respiratory effort, and response to stimulation. A total score of 10 is the best Apgar
score. If a baby is described as ‘apnoeic’, it means that it is not breathing; ‘bradycardia’ refers
to the fact that the baby’s heart is beating too slowly.
Perinatal mortality refers to the death of a foetus after the 28th week of pregnancy and to the
death of the newborn child during the first week of life.
2.2.14 Cerebral palsy

Cerebral palsy is a general term used by medical practitioners to refer to a set of neurological
conditions occurring in infancy or early childhood which affect movement and coordination.
There are several different types of varying severity, the main ones being:
(a) Spastic cerebral palsy – some of the muscles in the body are tight, stiff and weak, making
control of movement of the affected arm or leg difficult. The degree of spasticity can
vary significantly from case to case, but in the most severe cases the muscles in the
affected limb may become permanently contracted.
(b) Athetoid (dyskinetic) cerebral palsy – characterised by involuntary slow, writhing movements
of the limbs and sometimes sudden muscle spasms. Sufferers have difficulty holding
items or staying in one position.
(c) Ataxic cerebral palsy – problems include difficulty with balance, causing unsteadinesss
when walking, shaky movements of the hands, making writing difficult, and speech
difficulties.
(d) Mixed cerebral palsy – a combination of two or more of the above.
In addition to the above symptoms, there may a lack of coordination of the muscles of the
mouth, causing speech and feeding problems, visual and hearing problems, and epilepsy. The
symptoms often lead others to conclude that the sufferer has learning difficulties, but the
condition does not, of itself, affect intelligence.
In a minority of cases (thought to be about 1:10) cerebral palsy is caused by problems during
labour and birth, such as lack of oxygen or trauma. In the majority of the remaining cases, the
damage arises while the baby is developing in the womb, as a result of genetic problems,
malformations of the brain or maternal infection, such as rubella or toxoplasmosis. Infantile
infections (especially encephalitis or meningitis) can also be causative.
Cerebral palsy is not a progressive condition, but the strains it places upon the body can lead
to further problems in later life. There is no cure, but sufferers can benefit greatly from
physiotherapy, occupational therapy, speech therapy and conductive education.
2.3 AREAS OF MEDICAL SPECIALITY

In dealing with his caseload, the personal injury and clinical negligence lawyer may require
expert evidence to be given by a wide range of medical specialists. The following are amongst
the most common areas of expertise. In order to avoid offending medical experts, it is useful
to remember that consultant surgeons are known as ‘Mr’ ‘Mrs’ or ‘Ms’, rather than ‘Dr’.
(a) Anaesthesia – either renders the patient unconscious (general anaesthesia) or removes
sensation in a specific area (local anaesthesia), thereby enabling surgery or other
procedures to be performed without the patient incurring pain and distress. An
anaesthetist assesses the patient’s fitness to undergo anaesthesia, chooses and
administers the appropriate drugs, monitors the patient during the operation or
procedure, and supervises the recovery period. He also plays a major role in pain
management. A consultant anaesthetist will usually have ‘FRCA’ (Fellow of the Royal
College of Anaesthetists) after his name.
(b) Cardiology – the study of the diseases of the heart. A cardiologist is a physician who
specialises in this branch of medicine. A cardiac surgeon carries out surgical procedures
in relation to the heart. If a cardiac surgeon has also been trained in the field of vascular
surgery (relating to diseases affecting the arteries and veins) and/or thoracic surgery
(relating to diseases inside the thorax – the chest – including the oesophagus and the
diaphragm), he will be a cardiovascular, cardiothoracic or cardiovascular thoracic
surgeon. A consultant cardiologist will usually have ‘MRCP’ or ‘FRCP’ (Membership or
Fellowship of one of the Royal Colleges of Physicians) after his name. A cardiac surgeon
will have ‘FRCS’ (Fellow of the Royal College of Surgeons) after his name.
(c) Dermatology – deals with the diagnosis and treatment of disorders of the skin, such as
eczema, psoriasis, dermatitis and skin infections, and those affecting the hair and nails.
A consultant dermatologist will usually have ‘MRCP’ or ‘FRCP’ after his name.
(d) Geriatric medicine – relates to disorders and diseases associated with old age (usually over
65) and their social consequences. A consultant geriatrician will usually have ‘MRCP’ or
‘FRCP’ after his name.
(e) Gynaecology – deals with the female pelvic and urogenital organs in both the normal and
diseased state. It encompasses aspects of contraception, abortion and in vitro
fertilisation (IVF). Practitioners may also specialise in obstetrics (see below). A
consultant gynaecologist will have ‘MRCOG’ or ‘FRCOG’ (Membership or Fellowship of
the Royal College of Obstetricians and Gynaecologists) after his name.
(f ) Haematology – the study and treatment of blood and blood disorders, such as blood
clotting deficiencies, leukaemia, myeloma, lymphoma, and Hodgkin’s Disease. A
haematologist also deals with blood transfusions and treatments involving warfarin and
heparin. A consultant haematologist will have FRCPath’ (Fellowship of one of the Royal
Colleges of Pathologists) after his name.
(g) Medical oncology – the treatment of cancer. Clinical oncologists are largely concerned
with radiotherapy, whilst medical oncologists deal with the medical management of
those suffering from the disease. They liaise with primary care providers, clinical
oncologists and other health professionals, and providers of palliative care. The
consultant oncologist may have ‘MRCP’ or ‘FRCP’, or ‘FRCR’ (Fellow of the Royal
College of Radiologists) or ‘FRCS’ after his name.
(h) Neurology – the study of the nervous system and its disorders, ie the patient’s nerves,
sensory and motor functions and reflexes, and will cover injuries to the brain, neck and
back, neurodegenerative disorders, epilepsy and multiple sclerosis. A consultant
neurologist will have ‘MRCP’ or ‘FRCP’ after his name. A neurosurgeon operates on the
brain and spine, and deals with trauma and injuries to both, with brain tumours and
haemorrhages, and with spinal nerve problems. A consultant neurosurgeon will have
‘FRCS’ after his name.
(i) Obstetrics – covers pregnancy and birth, and is concerned with the health of the mother
and of the foetus from conception to delivery. The obstetrician will also deal with
sterilisations and infertility, cervical cancer, tumours of the ovaries and endometriosis.
Both doctors and nurses can specialise in obstetrics. A consultant obstetrician will have
‘MRCOG’ or ‘FRCOG’ after his name.
(j) Occupational health – this deals with the effect of work on the individual’s health, both
mental and physical, and the effect of ill-health on the individual’s work. Specialists
identify and treat specific occupational illnesses and diseases, and deal with the
prevention of ill-health caused by chemical, biological, physical and psychological
factors arising in the workplace. The term ‘occupational health’ covers a number of
areas, and therefore there are various specialists, including occupational physicians,
occupational psychologists, occupational health nurses, occupational hygienists,
disability managers, workplace counsellors, health and safety practitioners, and
workplace physiotherapists. The consultant occupational physician will usually have
‘FFOM’ (Fellow of the Faculty of Occupational Medicine) after his name. Others
specialising in this area may have a Diploma in Occupational Medicine (DOccMED).
(k) Ophthalmology – the diagnosis and treatment of disorders of the eye. The consultant
ophthalmologist will usually have ‘FRCOphth’ (Fellow of the Royal College of
Ophthalmologists) after his name.
(l) Orthopaedics – this is concerned with injuries to and disorders of the bones and muscles.
Surgeons who work in this area may specialise in certain parts of the body – the knee,
the hip, the spine etc. The orthopaedic surgeon will have FRCS after his name, possibly
followed by (Orth) and/or (Tr & Orth) signifying his specialism in orthopaedics and
trauma.
(m) Paediatrics – diseases and illness affecting children. A paediatrician may have a sub-
speciality, eg a paediatric neurologist, a paediatric surgeon, etc. The consultant
paediatrician will normally have ‘MRCP’ or ‘FRCP’ after his name, and may have
‘FRCPCH’ (Fellow of the Royal College of Paediatrics and Child Health).
(n) Palliative care – the care of patients suffering from a terminal illness, including pain
control and psychological and spiritual care, and the provision of services either at
home or in a hospital, hospice or day centre. It also encompasses support for the family
of the patient, which continues into the bereavement period.
(o) Pathology – the science of the changes which the body goes through as a result of disease.
A pathologist examines body samples in order to diagnose disease and undertakes post-
mortem examinations in order to determine the cause of death. The consultant
pathologist will have ‘FRCPath’ after his name.
(p) Physiotherapy – the use of exercise, manipulation, and heat in the treatment of disease or
injury, which is often essential in the rehabilitation process. All physiotherapists will
have either ‘MCSP’ (Member of the Chartered Society of Physiotherapy) or ‘FCSP’
(Fellow of the Chartered Society of Physiotherapy) after their names, and must be
registered with the Health Professions Council, the regulatory body for
physiotherapists.
(q) Psychiatry – the branch of medical science which treats mental disorder and disease, and
which helps with the management of individuals with learning disabilities. A
psychiatrist deals with depression, PTSD, drug and substance abuse, schizophrenia, etc.
A consultant psychiatrist will have ‘MRCPsych’ or ‘FRCPsych’ (Member or Fellow of the
Royal Colleges of Psychiatrists) after his name.
(r) Psychology – the scientific study of how people think, how and why they act, react and
interact as they do. It covers memory, rational/irrational thought, intelligence, learning,
personality, perception and emotions. Psychology is used in promoting rehabilitation
and assessing rehabilitation needs following an accident. There are a number of
different branches, including educational psychology (concerned with children’s
learning and development), clinical psychology (concerned with reducing psychological

stress in those suffering from depression, mental illness, brain injuries and the after
effects of trauma), health psychology (concerned with behaviour relating to health,
illness and care) and occupational psychology (relating to how people perform at work).
Psychologists are not medically qualified but rather have a graduate degree in
psychology plus an accredited postgraduate qualification leading to chartered status.
(s) Rheumatology – medical speciality concerned with the study and management of diseases
of the joints and connective tissue, including rheumatoid arthritis, osteoarthritis,
osteoporosis, whiplash and repetitive strain injury. A consultant rheumatologist will
have ‘MRCP’ or ‘FRCP’ after his name.
2.4 COMMON ABBREVIATIONS USED IN MEDICAL RECORDS

AAL Anterior axillary line
ACTH Adrenocorticotrophic hormone
ADH Antidiuretic hormone
AE Air entry
AF Atrial fibrillation
AFB Acid fast bacillus (TB)
AFP Alpha-fetoprotein
AJ Ankle jerk (reflex)
Alk Alkaline (phos = phosphatase)
An Anaemia
ANF Antinuclear factor
Anti-D This gamma globulin must be given by injection to Rhesus negative mother who delivers/
aborts Rhesus positive child/foetus to prevent mother developing antibodies which could
damage a subsequent Rhesus positive baby
Apgar Apgar score: means of recording baby’s condition at and shortly after birth by observing and
‘scoring’ (0, 1 or 2) 5 parameters
AP Anteroposterior
APH Antepartum haemorrhage
ARM Artificial rupture of membranes (labour)
ASO Antistreptolysin O
ATN Acute tubular necrosis
A/V (a) Anteverted
(b) Arterio venous
AXR Abdominal x-ray (plain)
Ba Barium
BD To be given/taken twice a day
BJ Biceps jerk (reflex, see AJ)
BMJ British Medical Journal
BMR Basal metabolic rate
BO Bowels open
BP British Pharmacopoeia
BP Blood pressure
BS (a) Breath sounds
(b) Bowel sounds
(c) Blood sugar
C2H5OH Alcohol
ca Carcinoma/cancer
Ca Calcium
Caps Capsules
CAT scan Computed axial tomograph scan
CBD Common bile duct
cc (a) Carcinoma (cancer)
(b) Cubic centimetre
CCF Congestive cardiac failure

Ch VS Chorionic villus sampling
CI Contraindications
Cl Clubbing (of finger or toe nails)
CLL Chronic lymphocytic leukaemia
CML Chronic myeloid leukaemia
CMV Cytomegalovirus
CN I-XII Cranial nerves 1 – 12
CNS Central nervous system
C/O Complaining of
CO2 Carbon dioxide
COETT Cuffed oral endotracheal tube
COT Cuffed oral tube (an endotracheal tube used for ventilating a patient who cannot breathe
unaided)
CPD Cephalo-pelvic disproportion (baby too large to fit through pelvis)
CSF Cerebro-spinal fluid
CT Computerised tomography
CTG Cardiotocograph (trace during labour of baby’s heart and mother’s contractions)
CVA Cardiovascular accident (stroke)
CVP Central venous pressure
CVS Cardiovascular system
Cx Cervix
CXR Chest x-ray
Cy Cyanosis
DB Decibel
D&C Dilation (cervical) and curettage
DM Diabetes mellitus
DNA Deoxyribonucleic acid (also ‘did not attend’)
DOA Dead on arrival
D&V Diarrhoea and vomiting
DVT Deep venous thrombosis
D/W Discussed with
Dx Diagnosis
ECG Electrocardiography
ECT Electroconvulsive therapy
EDC Expected date of confinement
EDD Expected date of delivery
EEG Electroencephalogram/graph (brain scan)
ENT Ear, nose and throat
ERCP Endoscopic retrograde choledochopancreatico/graphy/scope
ERPC Evacuation of retained products of conception
ESR Erythrocyte sedimentation rate (blood)
ETR Examined through clothes
EtoH Alcohol
ET(T) Endotracheal (tube)
EUA Examined under anaesthesia
FB (a) Finger’s breadth
(b) Foreign body
FBC Full blood count
FBS Foetal blood sampling (a procedure which is carried out during labour to check on the baby’s
condition)
FH Family history
FHH Foetal heart heard
FHHR Foetal heart heard regular
FHR Foetal heart rate
FMF Foetal movements felt
FSE Foetal scalp electrode

FSH Follicle-stimulating hormone
G gram
GA General anaesthesia
GB Gall bladder
GFR Glomerular filtration rate
GI Gastro-intestinal
GIT Gastro-intestinal tract
G6PD Glucose 6 phosphate dehydrogenase
GP General practitioner
GTT Glucose tolerance test (for diabetes)
GU Genito-urinary
GUT Genito-urinary tract
h Hour
Hb Haemoglobin
Hct Haemocrit
HOCM Hypertrophic obstructive cardiomyopathy
HPC History of presenting complaint
HRT Hormone replacement therapy
HS Heart sounds
HVS High vaginal swab
Hx History
ICP Intracranial pressure
ICS Intercostal space
IDA Iron deficiency anaemia
IDDM Insulin dependent diabetes mellitus
Ig Immunoglobulin
IJ Internal jugular vein
IM Intramuscular
ISQ In status quo
IT Intrathecal
ITP Idiopathic thrombocytopenic purpura
ITU Intensive therapy unit
iu International unit
IUCD Intrauterine contraceptive device
IV Intravenous
IVC Inferior vena cava
IVI Intravenous infusion (drip)
IVU Intravenous urography
Ix Investigations
J Jaundice
ºJACCO No jaundice, anaemia, cyanosis, clubbing or oedema
JVP Jugular venous pressure
K+ Potassium
kg Kilogram
KJ Knee jerk (reflex, see AJ)
kPa Kilopascal, approximately 7.5 mmHg
L (a) Litre
(b) Left
LA Local anaesthesia
LBBB Left bundle branch block
LFTs Liver function tests
LH Luteinising hormone
LIF Left iliac fossa
LIH Left inguinal hernia
LMN Lower motor neurone

LMP First day of the last menstrual period
LN Lymph node
LOA Left occiput anterior (position of baby’s head at delivery, see also LOP, ROA, ROP, LOL, ROL,
OA, OP)
LOC Loss of consciousness
LOL Left occipitolateral (see LOA)
LOP Left occiput posterior (see LOA above)
LP Lumbar puncture
LS Letter sent
LSCS Lower segment caesarean section (the ‘normal’ type of caesarean section)
LSKK Liver, spleen and kidneys
LUQ Left upper quadrant
LVF Left ventricular failure
LVH Left ventricular hypertrophy
mane In the morning
mcg Microgram
MCL Mid clavicular line
MCV Mean cell volume
μg Microgram
mg Milligram
mist mixture
mitte 1/12 Supply/give/send/provide
ml Millilitres
mmHg Millimetres of mercury (pressure)
mMol Millimol
MRI Magnetic resonance imaging (=NMRI)
MS Multiple sclerosis
MSU Mid stream urine
N&V Nausea and vomiting
Na Sodium
NaHCO3 Sodium bicarbonate
NAD Nothing abnormal diagnosed/detected
NBM Nil by mouth
ND Notifiable disease
ng Nanogram
NG (a) Naso-gastric
(b) Carcinoma/cancer (neoplastic growth)
NMCS No malignant cells seen
NMR Nuclear magnetic resonance (scan)
noct/nocte At night
NOF Neck of femur
N/S Normal size
NSAID Non-steroidal anti-inflammatory drugs
O2 Oxygen
OA (a) Occipito-anterior (see LOA)
(b) Osteoarthritis
OCP Oral contraceptive pill
OE On examination
OP Occipito-posterior (see LOA)
Orthop. Orthopnoea (breathlessness on lying flat)
P Pulse
P or π Period
PA Posteroanterior
PAN Polyarteritis nodosa
PC Post cibum (after food)

pCO2 Partial pressure of carbon dioxide (normally in blood)
PCV Packed cell volume
PERLA Pupils are equal and react to light and accommodation
PE (a) Pulmonary embolism
(b) Pre eclampsia
PEFR Peak expiratory flow rate
PET Pre-eclamptic toxaemia
pg Picogram
pH Acidity and alkalinity scale. Low is acidic. High is alkaline. pH7 is about neutral
PH Past/previous history
PID (a) Pelvic inflammatory disease
(b) Prolapsed intervertebral disc
PIP Proximal interphalangeal
PL Prolactin
PMH Past/previous medical history
PND Paroxysmal nocturnal dyspnoea
PN (R) Percussion note (resonant)
po Per os (by mouth)
pO2 Partial pressure of oxygen (normally in blood)
POH Past/previous obstetric history
POP Plaster of Paris
PoP Progesterone only pill
PPH Post-partum haemorrhage
pr Per rectum (by the rectum)
prn As required – of eg, pain killers
PRV Polycythaemia rubra vera
PTH Parathyroid hormone
PTT Prothrombin time
PU Peptic ulcer
PV Per vaginam (by the vagina)
QDS To be given/taken 4 times a day
R Right or respiration
RA Rheumatoid arthritis
RBBB Right bundle branch block
RBC Red blood cell (erythrocyte)
RE Rectal examination
Rh Rhesus factor
RIC Raised intracranial pressure
RIF Right iliac fossa
RIH Right inguinal hernia
ROA Right occiput anterior (see LOA)
ROL Right occipito-lateral (see LOA)
ROM Range of movement
ROP Right occiput posterior (see LOA)
RS Respiratory system
RT Radiotherapy
RTA Road traffic accident
RTI Respiratory tract infection
RUQ Right upper quadrant
SB Serum bilirubin
S/B Seen by
SBE Subacute bacterial endocarditis
SC Subcutaneous
S/D Systolic/diastolic (heart and circulation)
SE Side effects
SH Social history
SJ Supinator jerk (reflex: see AJ)
SL Sub linguinal (under the tongue)
SLE Systemic lupus erythematosus
SOA Swelling of ankles
SOB (OE) Shortness of breath
SOS (a) if necessary
(b) see other sheet
SROM Spontaneous rupture of membranes
stat Immediately
Supp Suppositories
SVC Superior vena cava
SVD Spontaneous vaginal delivery
SVT Supraventricular tachycardia
SXR Skull x-ray
Ts and As Tonsils and Adenoids
TCI 2/52 To come in (to be admitted to hospital), in 2 weeks’ time
tds To be given/taken 3 times a day
TGH To go home
THR Total hip replacement
TIA Transient ischaemic attack
TJ Triceps jerk (reflex: see AJ)
TPR Temperature, pulse and respiration
TSH Thyroid stimulating hormone
TTA To take away
TVF Tactile vocal fremitus
TX Transfusion
UC Ulcerative colitis
U&E Urea and electrolytes (biochemical tests)
UG Urogenital
UMN Upper motor neurone
URTI Upper respiratory tract infection
USS Ultra sound scan
UTI Urinary tract infection
VA Visual acuity
VE Vaginal examination
VF Ventricular fibrillation
VT Ventricular tachycardia
V/V Vulva and vagina
VVs Varicose veins
WBC White blood corpuscle/white blood cell count
WCC White blood cell count
WR Wasserman reaction
wt Weight
XR X-ray
2.5 DIAGRAMMATIC REPRESENTATION OF THE HUMAN SKELETON

2.6 CONCLUSION
A basic understanding of the medical terms involved in personal injury and clinical negligence
cases can assist the trainee when reading medical reports, and also provides an insight into
the client’s problems which can often be useful in the negotiation of any settlement.
2.7 FURTHER READING

Kemp and Kemp, The Quantum of Damages (Sweet & Maxwell)
Black’s Medical Dictionary (A & C Black Publishers Ltd)
Dorland’s Medical Abbreviations (W B Saunders Company)
Other appropriate medical textbooks.
Road Traffic and Other Highway Claims: The Law 25
CHAPTER 3
Road Traffic and Other

Highway Claims: The Law
3.1 Introduction 25
3.2 Establishing liability for road traffic accidents 25
3.3 Insurance 31
3.4 The Motor Insurers’ Bureau 32
3.5 Duties of the highway authority 36
3.6 Conclusion 39
LEARNING OUTCOMES
• describe how liability for road traffic accidents may be established
• set out the circumstances in which a claimant might be held to be contributorily
negligent and how damages might be reduced in such circumstances
• explain the role of insurance and insurers in this type of claim
• explain the role of the Motor Insurers Bureau, and the impact of the Uninsured
Drivers Agreement 1999 and the Untraced Drivers Agreement 2003
• set out the statutory duties of highway authorities and the defence under s 58 of the
Highways Act 1980.
3.1 INTRODUCTION
According to the Department of Transport’s statistics bulletin, Road Casualties Great Britain:
Main Results 2012, which is based on accidents reported to the police, 1,754 people were killed
in road traffic accidents in 2012, which is the lowest figure since national records began in
1926. The number of people seriously injured was 23,039 and the overall number of casualties
in road accidents was 195,723. Not surprisingly therefore, road traffic accidents form a large
part of the personal injury lawyer’s casework.
A road user may be liable to an injured person, or to the estate or dependants of a deceased
person, on the basis of common law negligence. A highways authority may be liable to such
people on the basis of negligence and/or breach of statutory duty.
3.2 ESTABLISHING LIABILITY FOR ROAD TRAFFIC ACCIDENTS

3.2.1 The duty of one road user to another
All road users have a duty of care to avoid causing injury to others who it may reasonably be
anticipated may be injured by their actions or failure to act. The term ‘road user’ includes not
only those driving motor vehicles or riding motorbikes or bicycles, but also their passengers,
pedestrians and owners of roadside property, such as signs and bollards, and the highway
itself, which in most cases will be the local highway authority.
Clearly, a driver has a duty to drive carefully so as not to cause injury to his passengers or other
road users, but other examples include the duty of a driver not to park his vehicle where it
might constitute a danger, the duty of a pedestrian not to step into the path of a vehicle, and
the duty of the highway authority to keep the highway in good repair.
This duty of care is well established and, in the majority of cases, will not be in dispute
between the parties.
3.2.2 The standard of care

The standard of care is that of the ordinary skilful driver, and it is not lowered to take account
of the fact that the driver is a learner driver (see Nettleship v Weston [1971] 2 QB 691).
A driver is not entitled to assume that other road users will always exercise reasonable care and
skill, but he is not ‘bound to anticipate folly in all its forms’ (London Passenger Transport Board v
Upson [1949] AC 1555). Neither is the duty so high that it equates to a guarantee of the claimant’s
safety. In Ahanonu v South East Kent Bus Company Limited [2008] EWCA Civ 274, where the claimant
had been trapped between the defendant’s double-decker bus and a metal bollard, the Court of
Appeal reversed the finding that a driver of the bus had been negligent. Lord Justice Laws said
that the judge had imposed a counsel of perfection on the bus driver, thereby distorting the
nature of the driver’s duty, which was no more or less than a duty to take care.
This view was reiterated in Stewart v Glaze [2009] EWHC 704 (QB), where a driver was found
not liable for injuries incurred by the claimant, who had stepped into the path of his car
without warning. The judge commented that it was important to ensure the court was not
guided by ‘20:20 hindsight’. In Smith v Co-operative Group Ltd & Another [2010] EWCA Civ 725,
the Court of Appeal considered the case of a 13-year-old newspaper boy, who had, without
looking, cycled out of a driveway across a pavement and into the path of a lorry. The defendant
lorry driver had braked and swerved but could not avoid hitting the claimant. The defendant
admitted that he had not sounded his horn, but relied on expert evidence that this would not
have prevented the accident from occurring. The judge found against the defendant (although
the claimant was held to be 60% contributory negligent), ignoring the expert evidence, and
instead relying on his own opinion that, if the defendant had sounded his horn when the
claimant was halfway across the pavement, the claimant would have reacted by stopping or
cycling out of the way. In allowing the appeal, the Court of Appeal demonstrated its
unwillingness to impose a standard of driving on motorists which amounts to a counsel of
perfection. It held that the defendant had not been negligent in failing to sound his horn at
the same time as being involved in emergency braking and swerving to avoid a collision.
3.2.3 Breach of duty

Each case must turn on its own facts. It is for the court to decide whether there has been any
breach of the duty to take reasonable care in relation to other road users. When trying to
answer this vital question, personal injury lawyers should consider legislation designed to
regulate the conduct of road users and the Highway Code.
3.2.3.1 Are there any relevant criminal convictions?

Evidence of the defendant being convicted of a relevant criminal offence is of particular
importance to the claimant’s solicitor in order to establish breach of duty. Likewise, a relevant
conviction of the claimant may assist the defendant’s solicitor in negating liability or
establishing contributory negligence. A conviction will be relevant where it relates to how the
accident was caused or to the quantification of damages. So, for example, a defendant who
was driving without insurance at the time of the accident may have been in breach of the
criminal law, but a conviction for this offence will not be relevant for the purposes of civil
proceedings. Convictions arising from the accident should be set out in the police accident
report (see 10.10.3.1). The following issues are some, but by no means all, of the matters for
which you should look out:
(a) Vehicle maintenance:

(i) Under s 40 of the Road Traffic Act 1988 (RTA 1988), it is an offence to use, cause
or permit another to use a motor vehicle on a road when its condition is such that
its use involves a danger of injury to any person.
(ii) Under s 41A of the RTA 1988, a person who uses a motor vehicle, or causes or
permits such a vehicle to be used on a road when the vehicle does not comply with
regulations governing the construction and use of brakes, steering-gear or tyres,
is guilty of an offence. Current regulations relating to tyres specify a minimum
tread depth, prohibit the mix of radial and cross-ply tyres, and require tyres to be
inflated to the correct pressure for the vehicle.
(b) Poor driving. The most important issues of relevance are as follows:
(i) Speeding. Driving at a speed in excess of the limit is not necessarily in itself
sufficient evidence of negligence (Quinn v Scott [1965] 2 All ER 588). Neither will
driving below the speed limit automatically negate liability (Richardson v Butcher
[2010] EWHC 214 (QB)). Under the Highway Code, drivers should adjust their
driving to the prevailing conditions and circumstances. So they must take account
of the weather, available light, road layout, weight of traffic, parked vehicles or
other obstructions, the presence of cyclists and motorcyclists, and the likelihood
of pedestrians, particularly children, crossing the road. A driver who fails to adjust
his speed in appropriate circumstances risks prosecution for dangerous or
careless driving.
(ii) Dangerous driving. Under s 2 of the RTA 1988, it is an offence to drive dangerously
on a road or other public place. For the purposes of this section, a person drives
dangerously if the way he drives falls far below what would be expected of a
competent and careful driver, and it would be obvious to a competent and careful
driver that driving in that way, or driving the vehicle in its current state, would be
dangerous. (For causing death by dangerous driving, careless driving or whilst
under the influence of alcohol, see 17.3.1.)
(iii) Careless driving. Under s 3 of the RTA 1988, it is an offence to drive without due
care and attention. A person will drive in this way if the way he drives falls below
what would be expected of a competent and careful driver.
(c) The influence of alcohol or drugs. Under ss 4 and 5 of the RTA 1988, a person commits an
offence if he drives, attempts to drive, or is in charge of a motor vehicle on a road or
other public place, when he is unfit to do so through drink or drugs (s 4), or after
consuming so much alcohol that the proportion of it in his breath, blood or urine
exceeds the prescribed limit (s 5). The current prescribed limits for alcohol are 35
microgrammes of alcohol in 100 millilitres of breath; 80 milligrammes of alcohol in 100
millilitres of blood; and 107 milligrammes of alcohol in 100 millilitres of urine.
(d) The use of mobile phones. Under s 41D of the RTA 1988, it is an offence to drive or supervise
the driving of a motor vehicle whilst holding a hand-held mobile telephone or other
interactive communication device contrary to the relevant regulations. Although it is
currently not an offence to use a hands-free telephone, should an accident occur whilst
the driver is using such equipment, a prosecution for careless or dangerous driving
might arise.
(e) The wearing of seat belts and child restraints. Under s 14 of the RTA 1988, it is an offence to
drive or ride in a motor vehicle on a road without wearing a seat belt as prescribed by
regulations made by the Secretary of State. In accordance with the Motor Vehicles
(Wearing of Seat Belts) Regulations 1993 (SI 1993/176) (as amended), the driver must
ensure that seat belts are worn, where they are available, by all passengers under the age
of 14. Under s 15 of the RTA 1988, the driver must ensure that children are strapped into
an appropriate child restraint. The current regulations apply only to children who are
both under 1.35 metres in height and under 12 years old.
(f ) The wearing of safety helmets. Under s 16 of the RTA 1988, it is an offence to ride on a
motor cycle without a safety helmet in accordance with the relevant regulations.
Followers of the Sikh religion who are wearing a turban are exempt from this
requirement.
3.2.3.2 Are there any breaches of the Highway Code?

A failure on the part of any road user to observe a provision of the Highway Code does not of
itself render that person liable to criminal proceedings. Some of the rules set out in the Code,
identified by the use of the words ‘must’ or ‘must not’, reflect statutory requirements, the
breach of which amounts to a criminal offence, whilst others, which are in the nature of
guidance, do not. In accordance with s 38(7) of the RTA 1988, all breaches of the Code may be
relied upon in the civil courts to establish breach of duty. However, a breach of the Highway
Code does not create a presumption of negligence but is merely one of the circumstances
which the court will consider when establishing whether a breach of duty has occurred (Powell
v Phillips [1972] 3 All ER 864, CA; Goad v Butcher & Another [2011] EWCA Civ 158).
The personal injury solicitor requires a good knowledge of the Code. Although the printed
version must be used for all legal proceedings, you can access an adapted on-line version at
www.gov.uk/highway-code.
3.2.3.3 Res ipsa loquitur

The maxim res ipsa loquitur is sometimes thought of as a rule of law whereby the burden of
proof shifts from the claimant to the defendant. This is a misunderstanding: it is, in fact, a
rule of evidence, and the burden of proof remains on the claimant throughout. Roughly
translated as ‘the thing speaks for itself ’, the maxim means that the facts of the case are
sufficient proof in themselves. It may be applied in circumstances where the claimant is
unable to adduce any evidence as to how or why the accident happened, but is able to show
that:
(a) the 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 defendant.
In such circumstances, where it appears to be more likely than not that the defendant’s breach
of duty led to the accident, the maxim enables the court to conclude that the claimant has
established a prima facie case against the defendant. It is therefore sometimes said that the
evidential burden shifts to the defendant. In order to avoid liability, the defendant 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.
In Ng Chun Pui & Others v Le Chuen Tat & Another [1988] RTR 298, a coach driven by the first
defendant and owned by the second defendant left the carriageway, crossed a grass verge and
collided with a public bus travelling in the opposite direction. One passenger in the bus was
killed and its driver and other passengers were injured. In the absence of any evidence of any
mechanical defect within the defendant’s coach, the claimants did not offer any evidence as to
how the accident arose but relied on the maxim res ipsa loquitur. However, the court accepted
evidence put on behalf of the defendants that the driver had been obliged to react to another,
untraced vehicle, which had cut in front of him, causing him to brake and swerve, and that
this reaction did not constitute a breach of duty. (Reading the full text of the judgment in this
case may prove useful for furthering comprehension of res ipsa loquitur.)
It is not common for liability in road traffic accidents to be established on the basis of the
maxim res ipsa loquitur, as there will usually be evidence from the claimant, in the form of eye-
witness testimony and/or expert opinion, as to how and why the accident occurred. One case
in which it was successfully used is Widdowson v Newgate Meat Corporation & Others (1997) The
Times, 4 December. The claimant, who was suffering from mental disorder, had been walking
at the side of a dual carriageway just before midnight, when he was hit by a van driven by an
employee of the respondent company. Neither the claimant, who could not be considered a
reliable witness, nor the driver of the van gave evidence. Having heard evidence from a
psychiatrist on behalf of the claimant, the Court of Appeal held that despite the claimant’s
mental illness, he was aware of road safety issues, was not a risk-taker and did not have any
suicidal tendencies. Moreover, it was ‘pure surmise’ that he fell into the van’s path as a result
of losing his balance. Consequently, the defendants had failed to put forward a plausible
explanation.
3.2.4 Vicarious liability

Under the doctrine of vicarious liability, an employer is liable for damage caused by the
negligence of an employee whilst acting in the course of his employment. So, if an employee is
driving whilst carrying out work for his employer and causes a road traffic accident due to his
negligence, the employer will be liable for any resulting personal injury or damage to
property.
You will find a more detailed analysis of vicarious liability at 4.4.
3.2.5 Causation
The claimant will have to prove that the breach of duty caused the loss and damage
complained of. He will have to show that ‘but for’ the defendant’s breach, the injuries would
not have arisen. Causation will be disputed where the defendant argues:
(a) that the cause of the injury was not the defendant’s breach of duty but the claimant’s
own negligence. In Whittle v Bennett [2006] EWCA Civ 1538, a car driven by the
defendant in excess of the speed limit and too close to the car in front, was involved in a
collision with the claimant’s car. Although the defendant’s actions were negligent, the
court held that the accident was caused by the gross negligence of the claimant, who
had been attempting a U-turn manoeuvre on a busy single-carriage ‘A’ road. Courts
frequently find that the negligence of the defendant and the claimant have played a part
in causation, and apportion damages accordingly (see 3.2.6).
(b) that the accident could not have caused the injuries complained of. In recent years, it has
become increasingly common for insurers to defend on this basis in low-velocity impact
claims. This type of accident, where damage to the vehicles may be no more than a
scratch, typically results in whiplash, where there are no visible signs of injury. In some
instances, defendants are going further than disputing the severity of the injuries; they
are making positive allegations that the claimant has fabricated the claim. The Court of
Appeal considered these types of cases in Kearsley v Klarfeld [2005] EWCA Civ 1510 and
Casey v Cartwright [2006] EWCA Civ 1280, and gave guidelines as to how they should be
dealt with. These guidelines are beyond the scope of this book.
3.2.6 Contributory negligence

The claimant has a duty to take 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. His actions or
failure to act might amount to a breach of this duty, and the court may conclude that the
claimant was partly responsible for the accident itself and/or the injury suffered. Section 1(1)
of the Law Reform (Contributory Negligence) Act 1945 states:
Where any person who suffers damage as a result partly of his own fault and partly of the fault of any
other person or persons, … the damages recoverable in respect thereof shall be reduced to such an
extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility
for the damage.
Therefore, the court will reduce the amount of damages payable by the defendant to the
claimant only where the defendant is able to prove, on the balance of probabilities:
(a) that the claimant was at fault;
(b) that the fault was causative of the injury suffered; and
(c) that it would be just and equitable for the claimant’s damages to be reduced.
When determining the extent to which damages will be reduced, the court will apportion
responsibility between the parties by looking at the relative causative potency of what each of
the parties has done and their respective blameworthiness. (You may find it useful to read the
full judgment in Eagle v Chambers [2003] EWCA Civ 1107.)
It would be rare for a court to find a pedestrian more responsible than a driver of a vehicle (and
therefore reduce damages by more than 50%), unless the pedestrian suddenly moved into the
path of the vehicle in circumstances where the driver could not have anticipated such a thing
to happen. The court will consider all the relevant circumstances, including whether the
driver was driving in a manner appropriate for the prevailing conditions, whether he was
aware that pedestrians were about and might step into the road, and the age of the pedestrian.
Children are not expected to exercise the degree of care reasonably expected of an adult. Very
young children will never be held to have been negligent, and those under the age of 12 are
seldom held to be so. However, in the case of Ehrari v Curry & Another [2006] EWCA Civ 120, the
claimant, who was 13 years old at the time of the accident, was held to be 70% to blame for
the accident which had left her brain-damaged. The defendant driver had been travelling at no
more than 20 miles per hour when the claimant stepped into the road without looking.
In the following types of cases, the courts will follow the precedents set in the cases cited:
(a) Where a driver or passenger fails to wear a seat belt, damages will be reduced by 25% in
cases where the injury would not have happened at all, or by 15% where the injuries
would have been less severe (Froom v Butcher [1976] QB 286). From time to time,
defendants attempt to argue that the court should depart from these guidelines, but the
case of Stanton v Collinson [2010] EWCA Civ 81 highlights the court’s reluctance to do so.
In this case, the teenage claimant was a front seat passenger in a car driven by his friend.
Neither the claimant nor the girl sitting on his lap wore a seatbelt, and when the driver
lost control and crashed into an oncoming car the claimant sustained serious brain
damage. In spite of the claimant’s reckless behaviour, the Court of Appeal held that
there was no contributory negligence as the defendant had failed to supply medical
evidence proving the causal link between the claimant’s failure to wear a safety belt and
his injuries.
(b) Where a motor cyclist fails to wear a crash helmet, damages will be reduced by 15%
(O’Connell v Jackson [1972] 1 QB 270) or, where the helmet’s chin strap is not fastened, by
10% (Capps v Miller [1989] 1 WLR 839).
(c) Where a passenger allows himself to be carried in a vehicle when he knows the driver is
drunk and should not be driving, damages will be reduced by 20% (Owens v Brimmel
[1977] QB 859).
(d) Although there is no legal compulsion for a cyclist to wear a helmet, and there has not
been a case where damages have been reduced as a result of a cyclist’s failure to wear a
helmet, in Smith v Finch [2009] EWHC 53 (QB) the judge appeared to suggest that such a
failure would amount to contributory negligence. On the facts of this case, however, the
wearing of a helmet would have made no difference to the injuries sustained by the
claimant.
If the claimant has contributed to his own injuries in more than one way, the court will not
necessarily calculate the overall reduction simply by adding the normal percentage reductions
together. So, in Gleeson v Court [2007] EWHC 2397 (QB), where the claimant had allowed
herself to be driven in a car when she was aware that the driver was drunk (20% reduction) and
had sat in the boot of the hatchback car (25% reduction), the overall reduction was 30%.
The reduction of damages as a result of contributory negligence will be a theoretical, rather
than an actual, disadvantage to the motorist who has the benefit of fully comprehensive
insurance, as his own insurer, being bound to indemnify him for his own injuries irrespective
of blame, will cover any shortfall in damages recovered from the defendant. However, few
pedestrians, particularly children, will have relevant insurance cover, and therefore they will
suffer a loss in real terms from any finding of contributory negligence.
3.3 INSURANCE
3.3.1 Statutory provisions and types of policy
Under s 143(1) of the RTA 1988, any person who drives, or causes or permits another person
to drive a motor vehicle on a road or other public place, must have a policy of insurance which,
at the very least, covers third party risks. The minimum protection afforded by what is
commonly known as a Road Traffic Act policy or third party insurance covers:
(a) the death or bodily injury of a third party;
(b) damage to property belonging to a third party up to £1,000,000; and
(c) any emergency treatment, ie medical or surgical examination or treatment which is
required by those suffering an injury (including a fatal injury) immediately following the
accident.
A common type of policy, known as Third Party Fire & Theft, provides this minimum cover,
plus cover for the policyholder’s own vehicle should it be damaged or destroyed by fire or
stolen. Neither of these types of policies indemnifies the policyholder where his own vehicle
is damaged due to his own negligence, or where nobody was at fault. More importantly,
neither do they cover the policyholder for injuries that he might himself suffer in such
circumstances. It is perhaps little understood by the public at large how common road traffic
accidents are, how devastating the resulting injuries can be, and just how important adequate
financial compensation is for someone suffering long-term disability.
Policies which are commonly known as ‘fully comprehensive’ cover the minimum risks and
damage to the policyholder’s property. They might also cover the injury or death of the
policyholder and legal expenses arising from taking or defending proceedings following an
accident, but terms do vary and should be checked carefully.
3.3.2 Road Traffic Act 1988, ss 151–152

Sometimes, a situation will arise where the defendant was driving a vehicle which was covered
by a policy of insurance at the time of the accident, but the insurer may have grounds to avoid
paying damages to the claimant. This may arise where:
(a) the driver of the vehicle who was responsible for the accident was insured to drive that
vehicle under the terms of the policy, but the insurance company was entitled to cancel
the policy due to a breach of its terms, eg driving whilst under the influence of alcohol,
or failure to disclose a material fact, eg the existence of previous driving convictions or a
medical condition, such as diabetes or epilepsy; or
(b) the driver of the vehicle was not insured to drive the vehicle, eg where a family member
or friend of the policyholder drove the vehicle, with or without the policyholder’s
permission, or a thief drove the vehicle.
In any of the above situations, the claimant should not be dissuaded from issuing a claim
against the driver on the grounds that damages will not be recovered even if judgment is
obtained. Under s 151 of the RTA 1988, the insurance company will be obliged to pay out on
the judgment to the claimant, provided notice of the proceedings is given to the insurer,
under s 152 of the Act, before or within seven days of commencement of the proceedings.
Because it is not always clear at the start of proceedings whether or not any of the above
situations applies, those acting for claimants in road traffic accident cases should always send
out the required notice to the insurer of the vehicle (see 12.3.2).
Under s 151(4), there is an exception in relation to third parties who were willing passengers
in a vehicle they knew or had reason to believe had been stolen.
3.3.3 The insurer’s role in civil proceedings

Although a claimant is able to issue proceedings directly against the negligent driver’s
insurers instead of or in addition to the driver (see 10.3.1.2), many solicitors acting for
claimants will proceed only against the driver. If the claimant succeeds in obtaining judgment
against the defendant driver, the insurer is obliged to pay out. Consequently, in order to
protect their own position, insurers insert a clause into their policies which enables them to
initiate or defend proceedings in the name of the insured. This means that the insurer will
choose which firm of solicitors to use and will give instructions as to how the matter should
be dealt with, including the making and accepting of any offers to settle.
3.3.4 Obtaining insurance details

Where an accident has resulted in personal injury, under s 154 of the RTA 1988, all drivers
involved must supply details of their insurance to others involved in the accident. It is a
criminal offence either to refuse to supply this information, or to supply false information.
In addition, the Motor Insurers’ Bureau (see 3.4) maintains the Motor Insurance Database
(MID), a centralised database of motor insurance policy information of all insured UK
vehicles. Insurers who underwrite motor insurance for vehicles on UK roads are obliged to be
members of the MIB and to submit the policy details of all vehicles to the MID. For a small fee,
those who have suffered injury and/or loss due to a motor accident, or their representatives,
may make an on-line enquiry to obtain information regarding the insurance details of other
vehicles involved (www.askmid.com).
3.4 THE MOTOR INSURERS’ BUREAU

It is not uncommon for individuals to suffer personal injury as the result of the negligence of
an uninsured driver or a driver who cannot be traced. The Motor Insurers’ Bureau (MIB) was
founded in 1946 with the specific purpose of entering into agreements with the Government
to compensate victims of negligent and uninsured drivers. All motor insurers are obliged
under the RTA 1988 to be a member of the MIB and to contribute to the fund from which
compensation is paid. These contributions are funded by the premiums paid by their
policyholders.
The relevant agreements, explanatory notes and application forms may be found on the MIB’s
website at www.mib.org.uk.
3.4.1 The Uninsured Drivers Agreement 1999

The Uninsured Drivers Agreement 1999 (‘the 1999 Agreement’) relates to claims arising from
the negligence or intentional assaults of uninsured drivers who can be identified, where the
incident occurred on or after 1 October 1999. Under the 1999 Agreement, the MIB is obliged
to satisfy any judgment obtained against the defendant which remains unsatisfied, provided
the claimant complies with the requirements of the Agreement. Accordingly, the claimant
must take all reasonable steps to obtain judgment against every person who may be liable,
including any person who may be vicariously liable (clause 14.1(a)).
However, the MIB does not have to wait until judgment is obtained before compensating
victims, and it therefore makes sense to make an application to the MIB prior to the
commencement of proceedings. The application should be made by completing and
returning the MIB’s standard form to the MIB or its nominated solicitors, together with
documents in support (clause 7.1). It is important to note that the application must be signed
by the claimant or his solicitor. If this is not complied with, the MIB can refuse to accept the
application (clause 7.2 of the 1999 Agreement).
Where the MIB accepts that the uninsured driver was negligent, it will try to settle the matter
in order to avoid civil proceedings. Where the MIB declines responsibility to pay
compensation, the injured party has the option of commencing proceedings against the
uninsured driver. The claimant’s solicitors should name the MIB as second defendant, but if
this is not done, the MIB will usually seek to be joined as a party to the proceedings.
The 1999 Agreement sets out a far more complicated set of procedural steps than its
predecessors, and it is widely thought to be in need of amendment. A summary of the main
points is set out below, but those acting for claimants should be aware that this is a minefield
for the unwary. The MIB is more than willing to use minor breaches of the procedural steps to
reject claims, and therefore reference must be made to the detail of the 1999 Agreement itself
and to the associated guidance notes. Where the MIB is a party to the proceedings, it will
receive notification of various stages of the proceedings, court hearings, etc directly from the
court, and the claimant’s solicitor should ask the MIB to waive compliance with some of the
notice requirements. Copies of the relevant documentation and the application form may be
obtained from the MIB website at www.mib.org.uk.
3.4.1.1 Exclusions from the 1999 Agreement

The MIB is not obliged to satisfy compensation claims where (inter alia):
(a) the claim relates to damage to a motor vehicle and at the time of the damage the vehicle
was not insured and the claimant knew or ought to have known that that was the case;
or
(b) the person suffering death, injury or loss was voluntarily allowing himself to be carried
in the vehicle and before the commencement of his journey in the vehicle (or after such
commencement if he could reasonably be expected to have alighted from the vehicle) he
knew or ought to have known that the vehicle:
(i) had been stolen or unlawfully taken,
(ii) was being used without insurance,
(iii) was being used in the furtherance of a crime, or
(iv) was being used as a means of escape from, or avoidance of, lawful apprehension.
3.4.1.2 Obtaining information regarding insurance details

As mentioned in 3.3.4, in accordance with s 154 of the RTA 1988, all drivers involved must
supply details of their insurance to others involved in the accident. Clause 13 of the 1999
Agreement places a requirement on all would-be claimants to make full and timely use of their
rights under s 154. The MIB can avoid its obligations unless the claimant, as soon as
reasonably practicable:
(a) demanded the particulars specified in s 154; and
(b) where there was a refusal to supply the information, complained to a police officer in
respect of the failure; and
(c) used all reasonable endeavours to obtain the name, address and registered keeper of the
vehicle.
3.4.1.3 Notice requirements

Where civil proceedings are issued, the claimant must give the MIB notice in writing that he
has commenced proceedings. This notice must be received by the MIB no later than 14 days
after commencement of proceedings (clause 9.1), together with the following documents (in
so far as they have not already been supplied to the MIB):
(a) the completed application form and supporting documents as required by clause 7.1;
(b) a copy of the sealed claim form;
(c) a copy of any relevant insurance policy covering the claimant;
(d) copies of all relevant correspondence in the possession of the claimant or his solicitor;
(e) a copy of the particulars of claim;
(f ) a copy of all other documents required by the rules of procedure to be served on the
defendant (although it is not necessary to enclose the response pack); and
(g) such other information relevant to the proceedings as the MIB may reasonably require.
The notice and supporting documentation must be served either by facsimile transmission,
or by registered or recorded delivery post to the MIB’s registered office (clause 8.1). Service by
ordinary post and Document Exchange is not allowed.
Clauses 10 and 11 require notification to the MIB in writing within seven days of the
occurrence of the following:
(a) service of proceedings;
(b) filing of a defence;
(c) amendment of particulars of claim;
(d) setting down for trial;
(e) notification of trial date received.
In the event that the claimant intends to enter judgment, the claimant must, not less than 35
days before applying for judgment, give notice in writing to the MIB of his intention so to do
(clause 12).
3.4.1.4 Assignment of judgment and undertakings

In accordance with clause 15 of the 1999 Agreement, the MIB is not obliged to settle the
judgment unless the claimant:
(a) assigns the unsatisfied judgment to the MIB or its nominee. This enables the MIB to
pursue the uninsured driver for the amount paid to the claimant;
(b) undertakes to repay to the MIB any part of the judgment which is set aside, or any
compensation received by the claimant from other sources in respect of the same
incident (clause 17.1).
3.4.2 The Untraced Drivers Agreement 2003

The Untraced Drivers Agreement 2003 (‘the 2003 Agreement’) relates to accidents occurring
on or after 14 February 2003 and requires the MIB to consider applications for compensation
for victims of ‘hit and run’ cases where the owner or driver cannot be traced.
The 2003 Agreement applies where:
(a) the death of, or bodily injury to, a person or damage to property of a person has been
caused by, or arisen out of, the use of a motor vehicle on a road or other public place in
Great Britain; and
(b) the event giving rise to the death, bodily injury or damage to property occurred on or
after 14 February 2003; and
(c) the death, bodily injury or damage to property occurred in circumstances giving rise to
liability of a kind which is required to be covered by a policy of insurance.
Clearly, in this type of incident, where the identity of the person responsible for the accident is
not known, it is not possible to commence civil proceedings. Where a person who has
suffered injury and loss wishes to claim under the 2003 Agreement, he must make an
application in writing to the MIB. If the application is signed by a person who is neither the
applicant nor a solicitor acting on behalf of the applicant, the MIB may refuse to accept the
application (clause 4(2)).
3.4.2.1 Exclusions from the Agreement

The 2003 Agreement does not apply (inter alia) where:
(a) the person suffering death, injury or damage was voluntarily allowing himself to be
carried in the vehicle and before the commencement of his journey in the vehicle (or
after such commencement if he could reasonably be expected to have alighted from the
vehicle) he knew or ought to have known that the vehicle:
(i) had been stolen or unlawfully taken, or
(ii) was being used without insurance, or
(iii) was being used in the course or furtherance of crime, or
(iv) was being used as a means of escape from or avoidance of lawful apprehension;
(b) the property which has been damaged was insured and the applicant has recovered the
full amount of his loss from the insurer;
(c) the claim is for damages to a vehicle and at the time of the incident that vehicle was
uninsured. This prevents an applicant benefitting from the 2003 Agreement when his
own vehicle was being driven unlawfully.
3.4.2.2 Time limit for making an application

As a result of the Supplementary Agreement, which came into force on 1 February 2009, the
normal periods of limitation, as set out in the Limitation Act 1980, now apply (see Chapter 7).
3.4.2.3 Requirements
The applicant, or person acting on behalf of the applicant, must have reported the event to the
police (clause 4(3)(c)):
(a) in the case of claims for death or bodily injury alone, not later than 14 days after the
event occurred; and
(b) in the case of claims for property damage, not later than five days after the event
occurred.
Evidence of the report must be supplied in the form of the crime or incident number, and the
applicant must have co-operated with the police in any investigation they conducted.
3.4.2.4 Investigation of claims

The MIB is under an obligation to make an award only if it is satisfied, on the balance of
probabilities, that the death, bodily injury or damage was caused in such circumstances that
the unidentified person would (had he been identified) have been held liable to pay damages
to the applicant in respect of it.
The MIB shall investigate the claim and reach a decision as to whether it must make an award
to the applicant, and where it decides to make an award, it will determine the amount. Where
the MIB gives notice to the applicant that it has decided to make him an award, it shall pay the
award within 14 days of a written confirmation from the applicant that he accepts the award.
3.4.2.5 Compensation
The MIB shall award a sum equivalent to the amount which it would have awarded to the
applicant for general and special damages if the applicant had brought successful proceedings
to enforce a claim for damages against the unidentified person. In calculating the sum
payable, the MIB shall adopt the same method of calculation as the court would adopt in
calculating damages (clause 8).
It will include in the award a sum representing interest on the compensation payable at a rate
equal to that which a court would award a successful litigant (clause 9).
3.4.2.6 Contribution towards legal costs

In accordance with clause 10, the MIB will make a contribution to the claimant’s costs. In
practice, it will usually include in the award a sum towards the cost of obtaining legal advice,
subject to a minimum of £500 and a maximum of £3,000 (plus VAT and reasonable
disbursements).
3.5 DUTIES OF THE HIGHWAY AUTHORITY

Claims against highway authorities range from those made by pedestrians who have tripped
or slipped on pavements or pathways, to those made by motorists who have been injured in
accidents caused by the poor state of roads. Solicitors acting for claimants injured in road
traffic accidents should always consider the possibility that a highways authority may be liable
to their client in addition to or instead of another road user.
3.5.1 Who is the relevant highway authority?

The local highway authority will be the local county council, metropolitan district council,
unitary authority or, in London, either Transport for London or the relevant London borough
council. The Secretary of State for Transport or, for roads in Wales, the Secretary of State for
Wales, is the highway authority for most motorways and trunk roads.
Section 36(6) of the Highways Act 1980 (HA 1980) requires every council to keep an up-to-
date list of all roads and traffic routes within its area for which it is responsible. Section 36(7)
states that any person may consult the list at the council offices free of charge. Consequently,
if there is any doubt as to whether it is the council who has responsibility or whether the road
is in private ownership and privately maintainable, recourse can be made to the records.
It is common for neighbouring councils to enter into agency agreements, whereby one
council undertakes maintenance of certain highways on behalf of the other. Ultimate
responsibility remains with the statutory highway authority, and legal proceedings should be
issued accordingly.
3.5.2 Duty to maintain the highway

3.5.2.1 Duty under statute and common law
Under s 41(1) of the HA 1980, a highway authority has a duty to maintain (which includes a
duty to repair) any highway which is maintainable at the public expense. Section 36(2) defines
a highway ‘maintainable at public expense’ as:
(a) a highway constructed by a highway authority;
(b) a highway constructed by a council within its own area, or a highway constructed
outside of its area for which it has agreed to be responsible;
(c) a trunk road;
(d) a footpath or bridleway created or diverted by the local authority.
Highway authorities have a similar duty to maintain highways under common law (see Dabinett
v Somerset County Council [2006] LTL 20/4/2007), and breaches of both statutory and common
law duties are commonly pleaded in particulars of claim. Highway authorities also have duties
in common law nuisance and under s 150(1) of the HA 1980 to remove obstructions from the
highway, but these are outside the ambit of this text.
3.5.2.2 Flooding and snow and ice

Is the duty to maintain the highway limited to the surface of the road itself ? In Department of
Transport, Environment and the Regions v Mott Macdonald Ltd & Others [2006] EWCA Civ 1089, the
Court of Appeal considered whether the highway authority was liable to the claimants, who
had all been injured in road accidents caused by a dangerous accumulation of water on the
surface of the highway, due to the longstanding blockage of the drains serving the road. In
overturning the judge’s decision, the Court concluded that the duties of a highway authority
are not confined to the repair and the keeping in repair of the surface of the highway, and that
it is obliged to maintain the drains in good repair. This duty is not limited to the repair of
physical damage to the drains, but extends to the clearance of blockages. However, you should
note that where a statutory authority, such as Thames Water or Severn Trent, has adopted
responsibility for the drains in accordance with an agreement under the Water Industry Act
1991, it will be that authority, rather than the highway authority, which will be responsible for
any accident resulting from a failure to maintain the drains.
Does the highway authority have a duty to prevent or remove the accumulation of snow or ice
on the highway? It appears that there is no such duty under common law (Sandhar v The
Department of Transport, Environment and the Regions [2004] EWHC 28 (QB)). However, s 150 of
the HA 1980 requires authorities to remove any obstruction of the highway resulting from
‘accumulation of snow or from the falling down of banks on the side of the highway, or from
any other cause’. In addition, s 41(1A) requires highway authorities to ensure ‘so far as is
reasonably practicable, that safe passage along a highway is not endangered by snow and ice’,
and this would appear to include the need to undertake preventative gritting as well as
clearing away accumulations of snow and ice. What is reasonably practicable is ultimately a
matter for the courts, but one would expect highway authorities to be able to demonstrate that
they have, at the very least, planned and implemented a winter maintenance plan in
accordance with Well-maintained Highways – Code of Practice for Highway Maintenance Management
(see 3.5.3).
3.5.2.3 The role of contractors

Although the general rule is that employers are not liable for the torts of their independent
contractors, statutory duties are non-delegable. Consequently, a highway authority which
delegates responsibility for the repair and maintenance of a highway, does not escape liability
to a claimant who is injured due to the negligent failure of the contractor to discharge its
responsibilities.
3.5.2.4 The role of statutory undertakers

There are organisations, such as those dealing with gas, electricity, water, cable TV and
telephones, which have apparatus on or under the highway. Such statutory undertakers are
entitled to break up the highway under licences granted by the highway authority. They are, of
course, required to take measures to ensure the highway is safe whilst the works are being
carried out and to make good the highway following the completion of the works.
Nevertheless, the responsibility to ensure that the highway does not pose a danger to road
users remains with the highway authority and, subject to a successful defence under s 58 of
the HA 1980, a claim against it for injuries caused by the dangerous condition of the highway
will be successful. Where there is a possibility that a s 58 defence may be successful, claimants
should commence proceedings against both the highway authority and the statutory
undertaker. Where proceedings are commenced against the highway authority only, those
acting for the authority should consider whether it is appropriate to issue an additional claim
under CPR 20, in order to pass all or part of the blame to the statutory undertaker (see 12.12).
3.5.3 Breach of duty

In order to succeed in a claim against the highways authority, a claimant will have to prove:
(a) that the condition of the highway made it a foreseeable danger to road users; and
(b) the condition of the highway was due to the failure of the highways authority to
maintain it; and
(c) that the damage was caused by the dangerous condition of the highway.
In applying the forseeability test, the danger must be foreseeable to a road user having
reasonable care for his own safety. In Rider v Rider [1973] 1 All ER 294, Sachs LJ concluded
that:
The highway authority must provide not merely for model drivers, but for the normal run of drivers to
be found on their highways, and that includes those who make the mistakes which experience and
common sense teach us are likely to occur.
When considering whether the highway authority has failed to maintain the highway,
reference should be made to the Department of Transport’s Well-maintained Highways – Code of
Practice for Highway Maintenance Management. Although the recommendations set out in the
Code are not mandatory, courts are likely to treat them as relevant considerations when
determining whether a breach has occurred.
Highway authorities are required to carry out safety inspections in order to identify all defects
which are likely to create a danger to road users. Section 9.4 of the Code deals with the safety
inspection regime, the frequency of which is largely determined by the category of the road,
footway or cycle path within the highway network hierarchy. For example, as a starting point,
strategic routes should be inspected once every month, whereas local access roads may be
inspected just once a year. Other factors, such as the volume of traffic use and the number of
accidents, are then taken into account, which may either increase or decrease the frequency of
inspections.
During inspections, all observed defects posing a risk to road users must be recorded and the
appropriate level of risk determined. Category 1 defects represent an immediate hazard or a
risk of short-term structural deterioration, and should be dealt with at the time of inspection,
if reasonably practicable, or, if not, within a maximum of 24 hours. A temporary resolution,
such as warning notices or cordoning off the hazard, may be used, but a permanent repair
should be carried out within 28 days.
3.5.3.1 The statutory defence

Under s 58 of the HA 1980, a highway authority may, in its defence, prove that it had taken
such care as in all the circumstances was reasonably required to ensure that the highway was
not dangerous for traffic. For the purposes of such a defence, the court will attempt to balance
the public and private interests, and will have regard to the following matters:
(a) the character of the highway, and the traffic which was reasonably to be expected to use
it;
(b) the standard of maintenance appropriate for a highway of that character and used by
such traffic;
(c) the state of repair in which a reasonable person would have expected to find the
highway;
(d) whether the highway authority knew, or could reasonably have been expected to know,
that the condition of the part of the highway to which the action relates was likely to
cause danger to users of the highway;
(e) where the highway authority could not reasonably have been expected to repair that part
of the highway before the cause of action arose, what warning notices of its condition
had been displayed.
A highway authority will not necessarily be liable for injuries resulting from an accident which
occurred shortly after a defect in the highway arose, but it will need to provide evidence that
systems of regular inspection and maintenance were in place in order to detect each defect
and repair it within a reasonable time. Where the highways authority had departed from the
frequency of inspections set out in the Code of Practice for that type of highway, it would need
to satisfy the court that the departure was based on proper evidence-based considerations
(see AC (1) DC (2) TR (3) v Devon County Council [2012] EWHC 796 (QB)). If it is able to show that
the frequency of inspections was appropriate for the nature and character of that particular
highway and that, at the time of the last inspection before the accident, the defect was not
present or not considered to be dangerous, it is likely to be successful in its defence. If,
however, it had been aware of the defect but had taken an unreasonable time to effect the
necessary repairs, the defence will not succeed. What is a ‘reasonable time’ will depend on the
nature of the defect and the potential consequences to road users of failing to repair it.
3.5.4 Tripping and slipping cases

Tripping and slipping claims against highway authorities under s 41 of the HA 1980 (and
other land owners) are very common, and they have increased in recent years. They may arise,
for example, as a result of uneven or unstable paving stones, broken or missing kerbstones,
potholes, protruding tree roots, missing manhole covers and highway surfaces which have
become slippery, such as where there is an abundance of moss or wet leaves, or an
accumulation of snow or ice.
As with other claims regarding the highway, the courts have been at pains to point out that
each case should turn on its own facts and that the trial judge should determine whether the
highway is in a dangerous condition. The court in Littler v Liverpool Corporation [1968] 2 All ER
343 gave the following guidance:
The test … is reasonable foreseeability of danger. A length of pavement is only dangerous if, in the
ordinary course of human affairs, danger may reasonably be anticipated from its continued use by the
public who usually pass over it. It is a mistake to isolate and emphasise a particular difference in levels
between flagstones unless that difference is such that a reasonable person who noticed and considered
it would regard it as presenting a real source of danger. Uneven surfaces and differences in level
between flagstones of about an inch may cause a pedestrian … to trip and stumble, but such
characteristics have to be accepted.
When considering the point at which differing levels in a highway become dangerous to
pedestrians, practitioners sometimes do refer to one inch as being the appropriate
measurement. However, claimants have been successful where the difference has been as
little as one-eighth of an inch (Pitman v Southern Electricity Board [1978] 3 All ER 901).
3.6 CONCLUSION
Road traffic accident claims are the most common type of personal injury claims, and they
are, in the main, fairly straightforward. This means that the trainee solicitor or junior solicitor
is likely to be dealing with this type of case when he is first introduced to personal injury
work. It is useful to be aware that many low value claims will be handled, on behalf of
claimants and defendants, by individuals who have no legal qualifications, sometimes with
minimal training and supervision. If the solicitor has a thorough understanding of the legal
principles which govern RTA claims, he will bring clarity to the procedure and will be better
able to bring about the optimum conclusion for his client.
3.7 FURTHER READING AND RELEVANT WEBSITES

Uninsured Drivers Agreement 1999
Untraced Drivers Agreement 2003
www.mib.org.uk
Employers’ Liability Claims: The Law 41
CHAPTER 4
Employers’ Liability Claims:

The Law
4.1 Introduction 41
4.2 The employer’s common law duty of care 42
4.3 Breach of statutory duty 45
4.4 Vicarious liability 57
4.5 Occupiers’ liability 58
4.6 Remoteness of damage 59
4.7 Causation 59
4.8 Defences 61
4.9 Enforcement of health and safety at work 63
4.10 Conclusion 66
LEARNING OUTCOMES
• explain the duty of care owed by an employer to an employee at common law
• explain how an employer may be liable to an employee for breach of statutory duty
• identify breaches of key health and safety regulations
• understand the defences that are likely to be relied upon in a workplace claim
• explain the role of the Health and Safety Executive in enforcing health and safety in
the workplace.
4.1 INTRODUCTION
An employer may be personally liable to an injured employee on the basis of:
(a) common law negligence; and/or
(b) breach of statutory duty, for example under the Health and Safety at Work, etc Act 1974
(HSWA 1974), the Occupiers’ Liability Act 1957 (OLA 1957), or European Directives
covering safety by way of regulations under the HSWA 1974.
The heads of liability are not mutually exclusive. For example, in certain circumstances the
employer may be liable to the injured employee under both heads, while in other
circumstances the employer may be liable only in common law negligence but not otherwise.
The employer may also be vicariously liable to the injured employee where the injury was
caused by a tort (eg, negligence) of another employee who was acting in the course of his
employment. We consider these heads of liability below, together with the defences which are
most likely to be relied upon.
In addition to civil liability, an employer who breaches health and safety regulations may face
a criminal prosecution. This is also considered below, together with the role of the Health and
Safety Executive (HSE) in investigating accidents.
4.2 THE EMPLOYER’S COMMON LAW DUTY OF CARE

An employer is under a duty to take reasonable care of his employees’ health and safety in the
course of their employment. This includes providing health checks (especially if employees
are engaged in hazardous work), equipment to protect employees from injury, and medical
equipment in order to mitigate the effects of any injury.
This duty to take ‘reasonable care’ was explained by Lord Wright in Wilsons and Clyde Coal Co v
English [1938] AC 57 as requiring an employer to exercise due care and skill in four particular
areas, ie to provide:
(a) competent staff;
(b) adequate plant and equipment;
(c) a safe system of work; and
(d) safe premises.
Many of the common law duties are confirmed or strengthened by statute and regulations,
but common law rules are an important indication of how courts are likely to interpret new
regulations. Each of the four areas identified by Lord Wright is discussed in further detail
below.
4.2.1 Competent staff

In many cases the employer will be vicariously liable for the negligence of an employee which
results in injury to a fellow worker. An employer can also be personally liable under its
common law duty. The duty is on the employer to take reasonable care to provide competent
fellow workers. Whether the employer has failed to take reasonable care may depend upon the
knowledge that he has (or ought to have) of the workmate’s incompetence or inexperience,
etc. In Hudson v Ridge Manufacturing Co [1957] 2 QB 348, the employers were held liable for
continuing to employ a man who over a space of four years had habitually engaged in
horseplay such as tripping people up. On the day in question he tripped the claimant, as a
result of which the claimant injured his wrist. The court held that as this potentially
dangerous misbehaviour had been known to the employers for a long time, and as they had
failed to prevent it or remove the source of it, they were liable to the claimant for failing to
take proper care of his safety.
However, in other cases involving practical jokes by fellow workers the employers have been
held not liable on the basis that they could not reasonably have foreseen the behaviour that
caused the injury (Smith v Crossley Bros (1951) 95 Sol Jo 655; Coddington v International Harvester Co
of Great Britain (1969) 113 SJ 265).
4.2.2 Adequate plant and equipment

Accidents may also occur either because no plant or equipment is provided, or because
inadequate equipment is provided. For example, if an employee suffers injuries falling from a
makeshift means of gaining access to high shelves, the employer will be liable if no ladder has
been provided for this purpose.
‘Plant’ simply means anything used in the course of work. It will include everything from large
and complicated machinery (eg, a paper mill) to the most basic equipment (eg, an office
chair). The duty rests on the employer to take reasonable steps to provide adequate
equipment and materials to do the job, and then to maintain that equipment. For example, if
an office swivel chair gives way under an employee, the employer may be liable for failing to
maintain the chair, or for having inadequate provision for maintenance or renewal. The
employer will also be vicariously liable if employees fail to maintain or repair such plant or
equipment.
The duty to maintain plant and equipment in good order is now supplemented by the
Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) (see 4.3.2.3). When
considering whether plant has been adequately maintained, the court will look to current
practice, which will be different according to the type of equipment involved. Depending on
the type of equipment, all or any of the following matters may be relevant, and evidence
should be looked for, both when using the pre-action protocol and at the disclosure stage of
litigation:
(a) inspection and servicing records;
(b) reports of defects, breakdown or poor running;
(c) replacing worn-out parts or equipment;
(d) steps taken to repair or replace equipment shown to be defective.
The frequency and method of inspection or testing that employers should adopt will depend
on the nature of the equipment in question. Items which are subject to stress, such as ropes,
should be inspected and, if necessary, replaced more regularly than items which are subject
simply to ordinary wear and tear, such as floor coverings.
The requirement to provide adequate plant also extends to a duty to make reasonable
provision of safety and protective equipment, eg goggles, safety gloves and shoes. This duty at
common law is now supplemented by the Personal Protective Equipment at Work Regulations
1992 (SI 1992/2966) (see 4.3.2.4).
If an employee is injured as a result of a latent defect in the equipment he is using, he may also
be able to rely on the Employer’s Liability (Defective Equipment) Act 1969, which imposes a
form of strict liability on the employer. Section 1(1) provides:
Where … an employee suffers personal injury in the course of his employment in consequence of a
defect in equipment provided by his employer for the purposes of the employer’s business and the
defect is attributable wholly or partly to the fault of a third party (whether identified or not) the injury
shall be deemed to be also attributable to negligence on the part of the employer.
4.2.3 Safe system of work

The duty to provide a safe system of work is very wide and will be a question of fact to be
considered in each case. It covers such things as:
(a) the physical layout of the plant;
(b) the method by which work is carried out;
(c) the sequence in which work is to be carried out;
(d) the provision of instructions;
(e) the taking of any safety precautions;
(f ) the provision of proper warnings and notices (Speed v Thomas Swift & Co [1943] KB 557).
The employer must take care to see that the system is complied with, bearing in mind the fact
that an employee may become careless after a time, especially if the work is of a repetitive
nature (General Cleaning Contractors Ltd v Christmas [1953] AC 180).
EXAMPLES
In General Cleaning Contractors v Christmas [1953] AC 180, the claimant window cleaner was
instructed by his employers in the sill method of cleaning windows. He was to hold on to
the window sash whilst cleaning. A window closed on his fingers and he fell to the ground.
It was held that the employers were in breach of their duty to provide a safe system of
work, as they should have told the claimant to test the sashes to see if they were loose, and
should have provided him with wedges.
In Morgan v Lucas Aerospace Ltd [1997] JPIL 4/97, 280–1, the claimant was employed in the
defendants’ factory to clean waste swarf (oil contaminated with metal waste) from trays
underneath machinery. He had been given no formal training. Swarf caught in the
machine cut through his heavy-duty glove, causing a gash to the claimant's hand. The
claimant alleged this injury was caused by the defendants’ failure to provide and maintain
a safe system of work. In the first instance, it was held that the defendants were not
absolved from the duty to provide a safe glove merely because it was difficult or expensive
to obtain. If no better glove could be obtained at a reasonable price, the whole system was
unsafe. The defendants appealed. On appeal, it was held that it was not necessary for the
claimant to prove what alternative system of work could be adopted and which would have
been safer. The claimant proved that the defendants allowed an unsafe practice to be
adopted which they ought to have known to be unsafe and which they could have altered.
If the gloves provided were the best available, the obligation of the defendants was to
devise a system which would remove or reduce the risk of injury.
4.2.4 Safe premises

It is accepted that the duty of care extends to the provision of safe premises. The duty applies
not only to premises occupied by the employer, but also to premises occupied by a third party
where the employee is working temporarily (General Cleaning Contractors Ltd v Christmas [1953]
AC 180; Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110). The duty is supplemented by
the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) (see 4.3.2.6).
Slipping and tripping cases are frequent causes of negligence claims at work, as is shown by
the amount of advice and preventative information available to employers from the HSE. The
employer must act reasonably to ensure that floors and means of access are reasonably safe.
4.2.5 The requirement of ‘reasonableness’

It should be remembered that the duty on the employer is not absolute but merely a duty to
take reasonable care. Generally a high standard will be required, but it will vary according to
the circumstances.
The standard of care demanded of an employer was summarised by Swanwick J in Stokes v Guest
Keen and Nettlefold Bolts & Nuts Ltd [1968] 1 WLR 1776:
The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for
the safety of his workers in the light of what he knows or ought to know; where there is a recognised
and general practice which has been followed for a substantial period in similar circumstances without
mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly
bad; but where there is developing knowledge, he must keep abreast of it and not be too slow to apply it
…
Section 16 of the HSWA 1974 authorises Approved Codes of Practice (ACOPs), which set out
guidance as to what is good practice in a particular trade and, as such, are a reflection of
current informed thinking in the health and safety industry. Similarly, Guidance Notes issued
by the HSE, although not binding, will be indicative of whether good working practices were
being followed. It will be difficult for an employer to argue that a risk could not be foreseen
where information was available in documents published by the HSE.
In Stokes, Swanwick J went on to say that an employer:
… must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences
if it does; and he must balance against this the probable effectiveness of the precautions that can be
taken to meet it and the expense and inconvenience they involve.
The employer must take into account the likelihood and potential gravity of an injury. It must
then consider the measures necessary, and the cost involved in taking those measures, to avert
the risk of injury. In Latimer v AEC Ltd [1953] AC 643, the claimant was one of 4,000 employees
at the defendant’s factory. During a night shift, the claimant slipped on the factory floor, the
surface of which had become oily following recent flooding after a thunderstorm. The House
of Lords held that it was reasonable for the defendant to put on the night shift rather than
close the factory until the oily surface had been rendered safe.
The duty of care is owed to each employee individually, and so all the circumstances relevant
to each employee must be taken into account. A good illustration of this is the case of Paris v
Stepney Borough Council [1951] AC 367, in which the employers were held to be negligent for
failing to supply goggles to a one-eyed workman, even though it was not necessary to provide
goggles to fully-sighted workers.
4.2.6 Personal nature of duty

The employer will escape liability only if he shows that both he and the person to whom he
delegated the duty exercised reasonable care in the discharge of that duty (Davie v New Merton
Board Mills Ltd [1959] AC 604). Therefore, the duty is not discharged, for example, merely by
delegating it to an apparently competent manager, if that manager in fact fails to act
competently (Sumner v William Henderson & Sons Ltd [1964] 1 QB 450; McDermid v Nash Dredging &
Reclamation Co Ltd [1987] 2 All ER 878).
An employer can remain liable for the safety of an employee, even while the employee is under
the control of someone else. For example, where a worker on a building site is injured whilst
working on a different building site under the control and instruction of different contractors,
because he had been sent to work for the contractors by his own employer, his employer can
be found liable for failing to ensure that he was properly trained and for failing to maintain a
safe system of work even though the employer had no control over management of that site
(Morris v Breaveglen [1993] ICR 766, CA).
In certain circumstances both an independent contractor and an occupier of a building can
also owe a duty of care to the employee of one of its subcontractors. See E H Humphries (Norton)
Ltd, Thistle Hotels v Fire Alarm Fabrication Services Ltd [2006] EWCA Civ 1496. The judge was
entitled to find in the circumstances that the defendant’s right to supervise the work so as to
ensure that it was carried out safely, imposed on it a duty of care which extended to the
employees of the subcontractor who actually carried out the work. The defendant had been
negligent in failing to obtain from the subcontractor a proper method statement of the work
to be carried out, or a proper risk assessment.
4.3 BREACH OF STATUTORY DUTY

The relationship between an employer and employee is usually closely regulated by statute.
The basic principles are set out below.
Legislation generally falls into one of the following categories:
(a) The HSWA, ss 2 and 3 impose obligations on employers and the self-employed to
ensure, so far as reasonably practicable, the health and safety of their employees and
members of the public who might be affected by their activities.
(b) Regulations (made under the HSWA 1974, s 15, to comply with EU Directives).
In addition, s 16 of the HSWA 1974 authorises Approved Codes of Practice (ACOPs), which set
out what is good practice in a particular trade. Unlike a breach of the 1974 Act or regulations,
a failure to observe an ACOP will not give rise to criminal liability, but it will be admissible in
evidence in criminal proceedings. These Codes will also be admissible in civil proceedings as
evidence of good practice in the trade and, as such, are a reflection of current informed
thinking in the health and safety industry. Similarly, Guidance Notes issued by the HSE,
although not binding, will be indicative of whether good working practices were being
followed.
4.3.1 Civil liability for breach of statutory duty

To be successful in a civil claim based on a breach of statutory duty, the injured employee must
show that:
(a) the breach is actionable in a civil court;
(b) the duty is owed to the claimant by the defendant;
(c) the claimant’s loss is within the mischief of the Act;
(d) the defendant is in breach of the duty;
(e) the breach caused the loss.
4.3.1.1 Is the breach of duty actionable in a civil court?

At present a breach of statutory duty is primarily a crime, but under s 47(2) of the HSWA 1974
it can also give rise to civil liability except where the statute expressly provides otherwise.
However, this is set to change when s 69 of the Enterprise and Regulatory Reform Act 2013
comes into force (see 4.3.3 and 4.3.4 below).
4.3.1.2 Has the defendant breached his statutory duty?

The standard required of the employer to fulfil his statutory duty is a question of construction
of the statute. The common words used are as follows:
(a) ‘Shall’ or ‘shall not’: these words impose an absolute duty (or ‘strict’) obligation to do (or
not to do) the act or thing in question. It is not permissible to argue that it is
impracticable, difficult or even impossible to do it (or not to do it).
(b) ‘So far as reasonably practicable’: when judging whether there has been a breach, the court
will balance the risk against any sacrifice (eg, in terms of time, trouble or money)
required to avoid the risk. In Davies v Health & Safety Executive [2002] EWCA Crim 2949,
[2003] IRLR 170, the court considered s 40 of the Health and Safety at Work, etc Act
1974, which deals with the interpretation of ‘reasonably practicable’. Section 40
imposes on the defendant the burden of proving to the court that it was not reasonably
practicable to do more than was in fact done to satisfy the duty (the reverse burden of
proof ). This was attacked by the defendant as being incompatible with the presumption
of innocence in Article 6(2) of the European Convention for the Protection of Human
Rights and Fundamental Freedoms 1950. On appeal, the Court found that Article 6(2)
was not breached, and confirmed that a defendant who wishes to raise a defence of
reasonable practicability does have the legal burden of calling positive evidence to prove
that it was not possible to have done more to prevent the death or injury. The Court
justified this stance by observing that the defence should not be difficult for a defendant
to prove, as he will have this information to hand, whereas it would be unreasonable to
place this burden on the prosecution.
(c) ‘As far as practicable’: this is a duty stricter than ‘reasonably practicable’ but not an
absolute one. Lord Goddard in Lee v Nursery Furnishings Ltd [1945] 1 All ER 387 described
it as something that is ‘capable of being carried out in action’ or ‘feasible’. Once
something is found to be practicable then it must be done, no matter how inconvenient
or expensive it may be to do it.
4.3.2 Health and safety legislation

It is not possible to set out here all the legislation currently in force; what follows is a
summary of some of the regulations which are most frequently relied on in claims for
personal injury.
4.3.2.1 Management of Health and Safety at Work Regulations 1999

The revised Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) came
into force on 29 December 1999 and replaced the Management of Health and Safety at Work
Regulations 1992. These Regulations implement European Health and Safety Directives
relating to the employer’s obligations in respect of health and safety for workers, and in
relation to minimum health and safety requirements for the workplace as to fire safety.
The main provisions regarding employer’s duties are as follows:
Risk assessment (reg 3)

All employers are required to make a suitable and sufficient assessment of the risks to health and
safety of their employees and persons who are not in their employment but who are affected by
the conduct of their undertaking. Having made an assessment of the health and safety risks, it
is incumbent upon the employer to try to diminish the risks that have been identified. If the
employer has five or more employees, there is a duty to record the risk assessment (reg 3(6)), and
to note any significant findings of the assessment and whether any group of employees is
identified as being especially at risk. The assessment should be made by asking employees how
they carry out their functions, together with taking advice from a relevant health and safety
expert and ergonomists. The assessment should be updated and reviewed regularly.
The duty on employers to carry out a risk assessment is likely to be one of the areas
highlighted by personal injury lawyers to substantiate whether or not the employer has acted
reasonably to provide a safe system of work and to establish the question of foreseeability of
harm in negligence claims. In Allison v London Underground Ltd [2008] EWCA Civ 71, the Court
of Appeal held that the employers were held liable when the claimant, a tube train driver,
suffered an injury as a result of prolonged use of a traction brake controller. In his judgment
Smith LJ asked:
How is the court to approach the question of what the employer ought to have known about the risks
inherent in his own operations? In my view, what he ought to have known is (or should be) closely
linked with the risk assessment which he is obliged to carry out under regulation 3 of the 1999
Regulations. That requires the employer to carry out a suitable and sufficient risk assessment for the
purposes of identifying the measures he needs to take … what the employer ought to have known will
be what he would have known if he had carried out a suitable and sufficient risk assessment.
Smith LJ went on to say:

Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the
employee needs training. Such a risk assessment will provide the basis not only for the training which
the employer must give but also for other aspects of his duty, such as, for example, whether the place of
work is safe or whether work equipment is safe.
Clearly the question of whether an employer has carried out a suitable and sufficient risk
assessment will be a central issue in establishing liability in many cases.
Principles of prevention (reg 4)

According to reg 4, the principles of prevention of risk to be applied are to:
(a) avoid risks;
(b) evaluate the risks which cannot be avoided;
(c) combat the risks at source;
(d) adapt the work to the individual, especially as regards the design of workplaces, choice
of work equipment, and choice of working and production methods, with a view to
alleviating monotonous work and work at a pre-determined rate to reduce their effects
on health;
(e) adapt to technical progress;
(f ) replace the dangerous by the non-dangerous or less dangerous;
(g) develop a coherent overall prevention policy which covers technology, organisation of
work, working conditions, social relationships and the influence of factors relating to
the working environment;
(h) give collective protective measures priority over individual protective measures; and
(i) give appropriate instruction to employees.
Review of health and safety arrangements (reg 5)

Employers must make appropriate arrangements for planning, organisation, control,
monitoring and review of preventative and protective measures.
Health surveillance (reg 6)

Employers are required to have an appropriate policy on risk surveillance, having regard to the
findings of risks identified by the risk assessment. For example, if the risk assessment of
employees showed that there were risks to health from airborne dust, that identified risk
should be kept under review by regular health checks for rises in respiratory problems in
employees.
Health and safety assistance (reg 7)

Employers must appoint competent persons to assist the employer in carrying out compliance
with statutory safety provisions. The Regulations require a safety audit to be carried out by
accredited auditors who are suitably qualified. The audit will identify potential hazards in the
workplace.
Information for employees (reg 10)

Employers must give information which is comprehensible to employees on health and safety
risks and protective measures that should be adopted.
Employers’ duties to ‘outside workers’ (reg 12)

Employers must provide information to ‘outside workers’ relating to hazards and the
protective and preventative measures being taken.
Employee capabilities and health and safety training (reg 13)

Employers must provide adequate health and safety training to employees when first
recruited and subsequently on being exposed to new risks. Such training should be repeated
periodically.
Risk assessment for new or expectant mothers (reg 16)

For the purpose of reg 16, ‘new or expectant mother’ means an employee who is pregnant,
who has given birth within the previous six months or who is breastfeeding. Where the
workforce includes women of child-bearing age and the work is of a kind which could involve
risk to the health and safety of a new or an expectant mother, or of the baby, the risk
assessment required by reg 3 must include an assessment of that risk. If at all possible, the
employee’s working conditions or hours of work should be altered so as to avoid the risk. If it
is not reasonable or possible to avoid the risk by these means, the employer may suspend the
employee from work for so long as is necessary to avoid the risk.
Where a new or an expectant mother works at night and obtains a certificate from a registered
medical practitioner or registered midwife showing it is necessary for her health and safety
that she should not work for any period identified in the certificate, the employer shall
suspend her from work for so long as is necessary for her health and safety.
Protection of young employees (reg 19)

A ‘young person’ means any person who has not attained the age of 18. In relation to young
persons, reg 19 states that employers are under a duty to ensure that young persons are
protected from risks which arise as a consequence of the young persons’ lack of experience, or
absence of awareness of existing or potential risks, or the fact that young persons have not yet
fully matured. Subject to this, employers are not allowed to employ young persons for work
which is beyond their physical or psychological capacity, or involves harmful exposure to
agents which are toxic, carcinogenic, cause heritable genetic damage or harm to an unborn
child, or which in any other way may chronically affect human health. Employers must not
allow young persons to work where they may be involved in harmful exposure to radiation;
nor involve the risk of accidents which it may reasonably be assumed cannot be recognised or
avoided by young persons owing to their insufficient attention to safety, or lack of experience
or training.
Duties of employees (reg 14)

Although the main thrust of the Regulations is to confirm the obligations on employers in
relation to health and safety, there are also obligations on employees, who have a duty to:
(a) use machinery, equipment, dangerous substances or other equipment in accordance
with the training and instructions which have been given to them by their employer; and
(b) inform the employer of anything which the employee considers to represent a danger to
health and safety, or any shortcomings in the employer’s arrangements for health and
safety.
4.3.2.2 Health and Safety (Display Screen Equipment) Regulations 1992 (as amended)
The Health and Safety (Display Screen Equipment) Regulations 1992 (SI 1992/2792) are
applicable to new display screen equipment (DSE) as from 1 January 1993, and to existing
DSE from 1 January 1996. However, the requirement of ongoing risk assessment applies to
both old and new DSE as from 1 January 1993.
The main provisions are as follows:
(a) Employers must make a risk assessment of workstations used by display screen workers
and reduce risks identified (reg 2).
(b) Employers must ensure that display screen workers take adequate breaks, and must
ensure that an appropriate eyesight test is carried out by a competent person (reg 5).
(c) Employers must provide users with adequate health and safety training in the use of any
workstation upon which they may be required to work (reg 6).
(d) Employers must also provide adequate health and safety information to DSE operators,
which should cover such things as information and reminders of how to reduce risks,
such as early reporting of problems and provision of adjustable furniture (reg 7).
The main health problems associated with DSE operation are:
(a) general fatigue caused by poor workstation design;
(b) upper limb disorders, such as peritendonitis or carpal tunnel syndrome. Repetitive
strain injury (RSI) is the most common problem experienced by keyboard users;
(c) eyesight problems, such as temporary fatigue, sore eyes and headaches.
Employers should have, and be able to show that they have, an adequate policy designed to
reduce risks associated with DSE work. The policy should identify hazards, such as visual
fatigue, and action to be taken to reduce risk, such as provision of eyesight tests, screen filters
and training in workstation adjustment.
4.3.2.3 Provision and Use of Work Equipment Regulations 1998 (as amended)
The Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) replace the
Provision of Work Equipment Regulations 1992. The Regulations apply to all types of
machine, appliance, apparatus, tool or installation for use at work (reg 2) in all types of
workplaces. The Regulations are intended to ensure the provision of safe work equipment and
its safe use. The main provisions are as follows:
(a) The employer shall ensure the suitability of work equipment for the purpose for which it
is provided. The equipment must be suitable, by design and construction, for the place
in which it will be used and for the intended purpose (reg 4).
(b) The employer must ensure that the equipment is maintained in an efficient state (reg
5(1)) and, if machinery has a maintenance log, that the log is kept up to date (reg 5(2)).
The wording of reg 5(1) was considered by the Court of Appeal in Stark v Post Office
[2000] ICR 1013. The claim concerned an accident at work, where a postman was
thrown from a bicycle provided by his employer when part of the front brake snapped in
two. It was accepted that the defect to the bicycle would not have been detected by a
rigorous inspection. Nevertheless, the Court found that the form of words used in the
regulation gave rise to a finding of strict liability in relation to the provision of work
equipment.
In Ball v Street [2005] EWCA Civ 76, the Court of Appeal reinforced the view that reg 5(1)
gives rise to liability where injury is caused by machinery that is not in an efficient state
of repair. The claimant was a farmer who was injured when part of a hay bailing machine
fractured and ricocheted into his left eye. The Court found that notwithstanding that
this was a ‘freak accident’, it was only necessary for the claimant to prove that the
equipment failed to work efficiently and that that failure caused the accident. The Court
found that the machine was no longer in good repair, neither was it in an efficient state,
and such failure caused the accident. The imposition of an absolute duty by the
Regulations was designed to render the task of an injured workman easier by simply
requiring him to prove that the mechanism of the machine, that is the significant part of
the machine, failed to work efficiently or was not in good repair and that such failure
caused the accident. In this context ‘efficient’ refers to its state of repair from a health
and safety standpoint and not from that of productivity.
Despite this apparent strict line taken by the courts, there have been examples where
defendants have escaped liability. In Smith v Northamptonshire County Council [2008] EWCA
Civ 181, the appellant local authority appealed against a decision that it was strictly
liable under the Provision and Use of Work Equipment Regulations 1998, reg 5(1), for
failure to maintain an access ramp used by the respondent employee (S) at a person’s
home. S was employed by the local authority as a carer/driver. As part of her duties she
was required to collect a person (C) from her home and take her by minibus to a day
centre. As S was pushing C in a wheelchair down a ramp which led out from C’s house, S
stepped on the edge of the ramp which gave way, causing her to stumble and injure
herself. The ramp had been installed by the NHS some years previously. The Court of
Appeal allowed the appeal on the basis that the duty to maintain could not normally
apply to something which was part of someone else’s property. It could furthermore not
normally apply to something in relation to which access was limited, and in relation to
which, if some maintenance was necessary, consent to carry out the work was required.
S’s appeal to the House of Lords was dismissed. Their Lordships confirmed that control
over the use of equipment is not enough. Control over the equipment must be
demonstrated. This could not be achieved simply from the fact that an employer has
assessed and inspected the piece of equipment in question.
(c) If the work equipment must be assembled and installed correctly in order for it to be
safe to use, the employer must ensure that:
(i) it is inspected after installation and prior to being put into service; or
(ii) it is inspected after assembly at its new location (reg 6(1)).
(d) The employer must ensure that employees have adequate health and safety information,
and, if appropriate, written instruction in the use of equipment (reg 8).
(e) The employer must ensure that anyone using the equipment has had adequate training,
including as to any risks which use may entail and precautions to be adopted (reg 9). In
particular, the ACOP attached to these Regulations states that induction training is
particularly important when young people first enter the workplace.
(f ) Employers must ensure the protection of persons from dangerous parts of machinery in
the following order of precedence (reg 11):
(i) by fixed guards if practicable; but if not
(ii) by other guards or other protection devices if practicable; but if not
(iii) by use of jigs, holders, push-sticks or similar protective devices where practicable;
but if not
(iv) by providing information, instruction, training and supervision as is necessary.
(g) Employers must ensure that where equipment or the substances produced are at a very
high or low temperature, there must be protection to prevent injury to any person (reg
13).
(h) Employers must ensure that, where appropriate, equipment is provided with one or
more easily accessible stop controls, and, where appropriate, emergency stop controls,
and that they are clearly visible and identifiable (regs 15, 16 and 17 respectively).
(i) Employers must ensure that, where appropriate, the equipment is provided with
suitable means to isolate it from all sources of energy. This must be clearly identifiable
and readily accessible. Appropriate measures must be taken to ensure that reconnection
of the energy source to the equipment does not expose any person using the equipment
to any risk (reg 19).
(j) The equipment must be suitably stabilised and suitably lit (regs 20 and 21 respectively).
(k) When maintenance is being carried out, equipment must be shut down if reasonably
practicable (reg 22).
(l) The equipment must be suitably marked with appropriate health and safety information
and warning devices as appropriate (regs 23 and 24).
(m) Due to the rising number of accidents arising out of the use and misuse of forklift
trucks, there are comprehensive regulations relating to the use of mobile work
equipment. The Regulations require employers to ensure that employees are not carried
on mobile equipment unless it is both suitable and incorporates reasonably practicable
safety features (reg 25). They also seek to reduce the risk of equipment rolling over or
overturning by placing on the employer an obligation to increase the stability of the
equipment by making structural alterations if necessary (regs 26–28).
4.3.2.4 Personal Protective Equipment at Work Regulations 1992 (as amended)

The Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966) make provision
for the supply of protective and safety equipment, for example: eye-protectors, respirators,
gloves, clothing for adverse weather conditions, safety footwear, safety hats, high-visibility
jackets, etc.
(a) Employers must ensure that suitable personal protective equipment (PPE) is provided to
employees at risk to their health and safety while at work. Such PPE is not suitable
unless (reg 4(4)):
(i) it is appropriate to the risk involved, the conditions at the place where the
exposure to the risk may occur, and the period for which it is worn;
(ii) it takes account of ergonomic requirements and the health of persons who may
wear it, and of the characteristics of the workstation of each such person.
(b) Before choosing PPE the employer should make an assessment to ensure that it is
suitable and compatible with other work equipment used at the same time (reg 6).
(c) Employers must ensure that PPE is maintained in efficient working order and good
repair (reg 7). The obligation to supply protective equipment relates to identified risks.
The Regulations will not be concerned with risks other than those necessitating
protective equipment, and no absolute duty was intended to be imposed by reg 7(1) in
relation to other risks (see Fytche v Wincanton Logistics [2003] EWCA Civ 874). In Fytche,
the claimant suffered frostbite in the little toe of his right foot because there was a small
hole in his boot where the steel cap met the sole. The steel-capped boots were PPE
within the 1992 Regulations. The Court found that the boots were provided for the
purpose of protecting the employee’s foot from falling objects, and therefore his claim
must fail.
(d) Employers must ensure that where PPE is provided, employees obtain such information,
instruction and training as is adequate to ensure that they know what risks the PPE will
avoid or limit, the purpose of the PPE, and any action they must take to ensure efficient
working of the PPE, and must ensure that this information is available to employees (reg
9).
4.3.2.5 Manual Handling Operations Regulations 1992 (as amended)

The Manual Handling Operations Regulations 1992 (SI 1992/2793), reg 2(1), provides a
definition of ‘manual handling operations’ as any transporting of a load (including the lifting,
carrying and moving thereof ) by hand or bodily force. Over one-quarter of accidents reported
to the HSE involve manual handling. Despite moves toward mechanisation in industry, there
are still many jobs, such as packaging and warehouse work, requiring the day-to-day lifting of
heavy objects. Many claims are brought by health service staff, who may have to lift and carry
heavy patients as part of their everyday duties.
The Regulations make provision as follows:
(a) So far as reasonably practicable, employers must avoid the need for employees to
undertake any manual handling involving risk of injury (reg 4(1)(a)).
(b) If avoidance is not reasonably practicable, employers must make an assessment of
manual handling risks, and try to reduce risk of injury. The assessment should address
the task, the load, the working environment and the individual’s capability (reg 4(1)(b)).
In Brazier v Dolphin Fairway Ltd [2005] EWCA Civ 84, at the time of the alleged injury the
claimant was trying to lift down a wooden 6-feet by 6-feet pallet from a stack of pallets
which was about 6-feet high. That was the system of work at C’s place of employment
and was known to his employers. There was a witness statement on behalf of the
employers so indicating, and also using words to the effect that the pallets were ‘fairly
lightweight’.
The judge dismissed the claim on the basis that there was no evidence as to the weight
of the pallet that was being lifted down. He said: ‘I have no means of knowing how
heavy it was or whether it was heavy enough to give rise to a foreseeable risk of injury.’
He then went on to say that there was evidence that the pallet was roughly 6-feet by 6-
feet: ‘… but I am completely at sea as to the forces and the strains which the claimant
had to undergo. I have no expert engineering evidence which tells me anything about
the forces of the strains.’ The judge took the view that there was no evidence that the
system of work that was being employed was unsafe.
On appeal (granting leave to appeal) the Court of Appeal found that it was arguable that
the judge made an error of principle. Smith LJ put it like this:
There comes a point when one does not need detailed evidence or expert evidence. The judge had
evidence of a man being required to lift down a 6-feet by 6-feet wooden pallet; a pallet which when in
use had to be strong enough to take considerable weight and be used with a fork lift truck. It seems to
me to be arguable that no further evidence was needed to decide that a system which required someone
to bring down such an object from a height of 6-feet would place that person at risk of injury.
(c) If it is not reasonably practicable to avoid manual handling operations which involve risk
of injury, employers must take steps to reduce manual handling to the lowest level
reasonably practicable (reg 4(1)(b)(ii)). In the context of assessing manual handling
risks for the purpose of complying with reg 4, the correct approach is for the employer
to consider the particular task in the context of the particular place of work and the
particular employee who has to perform that task: see O’Neill v DSG Retail Ltd [2002]
EWCA Civ 1139. In this case the employer conceded that it had failed to give adequate
training once it had recognised it was necessary to increase awareness of the risks in
manual handling, and therefore it had failed to reduce the risk of injury ‘to the lowest
level reasonably practicable’ (as required by reg 4(1)(b)(ii)).
(d) Employees must be provided with information on the weight of each load, and the
heaviest side of any load (reg 4(1)(b)(iii)).
Regulation 4 was amended by the Health and Safety (Miscellaneous Amendments)
Regulations 2002 (SI 2002/2174) by the addition of the following paragraph:
(3) In determining for the purposes of this regulation whether manual handling operations at work
involve a risk of injury and in determining the appropriate steps to reduce that risk regard shall
be had in particular to—
(a) the physical suitability of the employee to carry out the operations;
(b) the clothing, footwear or other personal effects he is wearing;
(c) his knowledge and training;
(d) the results of any risk assessment carried out pursuant to regulation 3 of the
Management of Health and Safety at Work Regulations 1999;
(e) whether the employee is within a group of employees identified by that assessment as
being especially at risk; and
(f ) the results of any health surveillance provided pursuant to regulation 6 of the
Management of Health and Safety at Work Regulations 1999.
Employees have a duty to make full use of any system of work provided by the employer to
reduce manual handling risks (reg 5). As to the meaning of ‘so far as reasonably practicable’ in
reg 4(1), see Hawkes v Southwark LBC [1998] EWCA Civ 310. In this case, it was found that the
defendant had not carried out any risk assessment as required under the Regulations. The
judge made it clear that the burden of proving what was ‘reasonably practicable’ lay on the
defendant, and that failure to carry out an assessment did not by itself prove liability, rather it
was the failure to take appropriate steps to reduce risk of injury to the lowest level reasonably
practicable that was at issue. See also the Lifting Operations and Lifting Equipment
Regulations 1998 (SI 1998/2307), which deal with health and safety requirements with
respect to lifting equipment.
4.3.2.6 Workplace (Health, Safety and Welfare) Regulations 1992

The Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) apply to all
workplaces except ships, aircraft and trains, construction sites and mining operations (reg
3). The Regulations are concerned with the way in which the building and the facilities
within it may affect employees.
(a) Workplace equipment, devices and systems must be maintained in efficient working
order and good repair (reg 5).
(b) There must be adequate ventilation (reg 6).
(c) The indoor temperature during working hours must be reasonable, and thermometers
must be provided to enable employees to determine the temperature (reg 7).
(d) Workplaces must have suitable lighting, which, if reasonably practicable, should be
natural light (reg 8).
(e) Workplaces, including furniture, fittings, floors, walls and ceilings, must be kept
sufficiently clean. So far as is reasonably practicable, waste materials must not be
allowed to accumulate (reg 9).
(f ) Every workstation must be arranged so that it is suitable for any person likely to work
there (reg 11).
(g) Every floor or traffic route surface must be suitable for the purpose for which it is used.
In particular, it must have no hole or slope, or be uneven or slippery so as to expose any
person to a risk to his health or safety. So far as reasonably practicable, every floor or
traffic route must be kept free of obstructions or articles which may cause a person to
slip, trip or fall (reg 12). The claim in Coates v Jaguar Cars Ltd [2004] EWCA Civ 337
concerned an accident that occurred as the claimant was going up a number of steps at
the defendant’s factory. The claimant tripped on the third stair, causing him to fall and
break his arm. The claimant contended that this amounted to a breach of reg 12 as, if
there had been a handrail, he would not have fallen. The Court of Appeal held that there
had been no reason to find that the steps posed any real risk provided that those who
had used them used a sufficient degree of care, as had been the case for any other steps
of this nature. The judge at first instance was correct to have dismissed the claim.
(h) Suitable and sufficient sanitary conveniences must be provided at readily accessible
places. They must be adequately lit and ventilated, and kept in a clean and tidy condition
(reg 20).
(i) Suitable and sufficient washing facilities must be provided, including showers if
required by the nature of the work for health reasons (reg 21).
(j) An adequate supply of wholesome drinking water must be provided at the workplace,
which should be readily accessible and conspicuously marked where necessary.
4.3.2.7 Work at Height Regulations 2005

The Work at Height Regulations 2005 (SI 2005/735) impose health and safety requirements
with respect to work at height where there is a risk of a fall liable to cause personal injury. They
contain minimum safety and health requirements for the workplace, including minimum
health and safety requirements at temporary or mobile construction sites.
Meaning of work at height

Working at height is defined in reg 2(1) as:
(a) work in any place, including a place at or below ground level;
(b) obtaining access to or egress from such place while at work, except by a staircase in a permanent
workplace,
where, if measures required by these Regulations were not taken, a person could fall a distance liable to
cause personal injury.
To whom do the Regulations apply?

The Regulations apply to employers, to the self-employed, and to any person under an
employer’s control. This means that the Regulations apply not only to employees working
under their employer’s control, but also to contractors to the extent that they are under the
control of building owners.
Duties relating to the organising and planning of work at height

Every employer is under a duty to ensure that work at height is properly planned, supervised
and carried out in a safe manner, subject to it being reasonably practicable to do so. This duty
includes the selection of work equipment in accordance with reg 7 (reg 4).
Persons undertaking work at height must be competent, or, if being trained, supervised by a
competent person (reg 5).
Requirement for Management Regulations risk assessment

There are prescribed steps to be taken to avoid risk from work at height, including provision
of a risk assessment under reg 3 of the Management Regulations (see 4.3.2.1), which should:
(a) identify whether it is reasonably practicable to carry out the work safely otherwise than
at height; and if not
(b) provide sufficient work equipment for preventing, so far as is reasonably practicable, a
fall occurring and to minimise the distance or consequences should a fall occur (reg 6
and Sch 1).
Duties relating to the selection of work equipment

When selecting work equipment for use in work at height, the person concerned must give
collective protection measures priority over personal protection measures; and must also take
account of:
(a) the working conditions and the risks to the safety of persons at the place where the work
equipment is to be used;
(b) in the case of work equipment for access and egress, the distance to be negotiated;
(c) the distance and consequences of a potential fall;
(d) the duration and frequency of use;
(e) the need for easy and timely evacuation and rescue in an emergency;
(f ) any additional risk posed by the use, installation or removal of that work equipment, or
by evacuation and rescue from it (reg 7).
The Regulations also impose duties for the avoidance of risks from fragile surfaces, falling
objects and danger areas, requiring that such areas are clearly indicated (regs 9–11); and
require the inspection of certain work equipment and of places of work at height (regs 12 and
13 and Sch 7).
4.3.2.8 Control of Substances Hazardous to Health Regulations 2002

The Control of Substances Hazardous to Health Regulations 2002 (SI 2002/2677) came into
force on 21 November 2002 and revoke and replace the 1994 Regulations. They provide a
comprehensive and systematic approach to the control of hazardous substances at work,
which include chemicals, airborne dusts, micro-organisms, biological agents and respiratory
sensitisers.
The main duties on employers are as follows.
(a) To carry out a formal risk assessment

Regulation 6 provides that ‘an employer shall not carry on any work which is liable to expose
any employees to any substance hazardous to health unless he has made a suitable and
sufficient assessment of the risks created by that work to the health of those employees and of
the steps that need to be taken to meet the requirements of these Regulations.’ The assessment
should be reviewed if circumstances change. In Naylor v Volex Group Plc [2003] EWCA Civ 222,
the claimant was exposed to a hazardous substance during her employment with the
defendant, and as a result suffered from industrial asthma. The defendant had carried out a
risk assessment based on standards provided by the HSE which were subsequently withdrawn.
The Court of Appeal held that in those circumstances a new risk assessment should have been
carried out, and that the defendant was therefore in breach of reg 6.
(b) To prevent or control exposure to risks

Regulation 7 sets out the duty that the employer must ensure that the exposure of employees
to hazardous substances is either prevented or, where this is not reasonably practicable,
adequately controlled.
In Dugmore v Swansea NHS Trust [2003] 1 All ER 333, the claimant developed a severe allergy to
latex as a result of wearing surgical gloves. The Court of Appeal held that the defendant should
have provided vinyl gloves and was in breach of its duty to control the claimant’s exposure to
latex under reg 7.
The prevention or adequate control of the exposure to hazardous substances must be secured
by measures other than the provision of personal protective equipment so far as is reasonably
practicable. This means that the employer’s first act should be to control the process or
substance hazardous to health by, for example, closing off the process or machine, or by
providing suitable exhaust ventilation.
(c) To ensure proper use of and to maintain personal protective equipment

Regulation 8 provides that employers must take reasonable steps to ensure that any control
measure or personal protective equipment is used or applied properly.
There is also a duty on every employee to make full and proper use of such equipment, and to
report any defect in it to his employer.
Regulation 9 provides that employers must ensure that any control measure is maintained in
an efficient state, in efficient working order and in good repair. For example, where
respiratory equipment is provided, the employer must ensure that thorough examinations
and tests of that equipment are carried out at suitable intervals.
(d) To monitor exposure of employees

Regulation 10 requires monitoring to ensure the maintenance of adequate control to
substances hazardous to health, or to protect the health of employees. Certain substances and
processes require monitoring at specified intervals, and the results of all monitoring must be
recorded and kept for at least five years. Where the monitoring relates to the personal
exposure of individual employees, the records must be kept for at least 40 years.
(e) To provide health surveillance of employees where necessary

Regulation 11 requires suitable health surveillance where it is appropriate (ie, where a
particular task is known to make employees susceptible to a particular injury or disease).
Medical surveillance is required for certain substances or processes, and a health record must
be kept in respect of each employee under surveillance for at least 40 years.
(f ) To provide information and training to employees regarding hazardous substances

Regulation 12 requires an employer to provide its employee with such information,
instruction and training as is suitable and sufficient for the employee to know the risks to
health created by such exposure, and the precautions which should be taken.
4.3.3 Statutory duty and common law negligence

At present the claimant employee will frequently make a claim both in common law
negligence and for breach of statutory duty. Although the two are distinct causes of action,
they are inevitably linked. It is usually difficult, but not impossible, to show that, if the
employer has complied with regulations, he has nevertheless been negligent. In Bux v Slough
Metals Ltd [1974] 1 All ER 262, the employer was found to have complied with regulations
which required the provision of goggles to its employees and so had complied with its
statutory duty, but it had failed to instruct the employee to wear the goggles and so was in
breach of its common law duty. (See also Franklin v Gramophone Co Ltd [1948] 1 KB 542; Close v
Steel Co of Wales [1962] AC 367.)
Equally, the employer may be liable for breach of statutory duty even though he has not been
negligent. The onus of proof may also be different in the two causes: in negligence the onus is
upon the claimant to show a breach; for breach of statutory duty the onus is often on the
defendant to show that he acted ‘as far as (reasonably) practicable’ (see 4.3.1.2).
However, this is set to change when the Enterprise and Regulatory Reform Act 2013 comes
into force (see 4.3.4 below).
4.3.4 Enterprise and Regulatory Reform Act 2013

When it comes into force, s 69 of the Enterprise and Regulatory Reform Act 2013 will amend
s 47 of the HSWA 1974 to remove civil liability for all breaches of statutory duty which occur
from that date. Evidence of a breach of statutory duty may still be relied on to support a claim
in negligence but will not constitute a cause of action in its own right.
This means that an employee injured during the course of his employment will only be able to
pursue a claim in common law negligence. The concept of ‘strict liability’ will therefore
disappear in employers’ liability claims, and claimants such as Mr Stark the postman in Stark v
Post Office (see 4.3.2.3 above) will no longer be successful.
It is not clear when this new legislation will be brought into force (present estimates are that it
will be sometime between October 2013 and April 2014), but clearly this will have a huge
impact on employers’ liability claims.
4.4 VICARIOUS LIABILITY

4.4.1 Definition
An employer will be vicariously liable for his employee’s torts if committed in the course of his
employment. Therefore, it falls to be established:
(a) whether the tort was committed by an employee; and
(b) whether that employee was acting in the course of (ie, within the scope of ) his
employment.
4.4.2 ‘Course of employment’

The employee must have committed the tort ‘in the course of his employment’, which is less
clear than may first appear. There are many cases on the point, but the nearest to a
formulation of a rule is that the employer will be liable for acts of employees if they perform
an authorised act in an unauthorised way, but will not be liable for acts not sufficiently
connected with authorised acts. This is examined in further detail at 4.4.3 below.
4.4.3 Disobedience of orders by employees

Having established that an employer will be liable for acts of his employees if they are acting
within the course of their employment, it is necessary to examine the situation where the
employee disobeys the orders of his employer in relation to the way he carries out his work. In
Rose v Plenty [1976] 1 All ER 97, a milkman had been told by his employers not to allow
children to help him on his rounds. Subsequently he allowed a child to assist him, and the
child was injured while riding on the milk float due to the milkman’s negligent driving. On
appeal to the Court of Appeal, the employer was found to be vicariously liable. The Court held
that the employee was doing his job but was using a method that his employers had
prohibited. Nonetheless, he was still found to be working within the scope of his employment
as it was performed for the benefit of the defendant’s business.
Contrast the above with Lister and Others v Hesley Hall Ltd [2001] 2 All ER 769. The facts of the
case were that the warden of the school abused boys while they were resident at the school.
The House of Lords held the defendant vicariously liable for the acts of its employee. The
Lords said that the court should not concentrate on the nature of the actual act complained of
(abuse) but on the closeness of the connection between the nature of the employment and the
tort complained of. They found that the defendant employed the warden to care for the
claimants. The abuse took place while he was carrying out the duties required by his
employment. On that basis, the proximity between the employment and the tort complained
of was very close, and therefore the defendant ought to be liable.
The Court of Appeal applied the reasoning in Lister and Others v Hesley Hall Ltd in the subsequent
case of Mattis v Pollock [2003] EWCA Civ 887. There, the claimant was stabbed by a doorman of
a nightclub who was employed by the defendant nightclub owner. The Court found that the
defendant expected the doorman to carry out his duties in an aggressive manner; and where
an employee was expected to use violence while carrying out his duties, the likelihood of
establishing that an act of violence fell within the scope of his employment was greater.
4.5 OCCUPIERS’ LIABILITY

4.5.1 Occupiers’ liability to lawful visitors
The OLA 1957 replaces common law rules concerning the duty owed by an occupier to a
lawful visitor.
Under s 1(1), ‘occupier’ is given the same meaning as at common law (s 1(2)), the test for
which was said by Lord Denning in Wheat v E Lacon & Co Ltd [1966] AC 522 to be, ‘who is in
sufficient control?’.
A ‘visitor’ is a person who would be treated as an invitee or licensee at common law (s 1(2))
and who therefore is a lawful visitor (as opposed to a trespasser). The duty of care extends not
only to the visitor’s person, but also to his property (s 1(3)).
4.5.2 The nature of the duty of care

The common duty of care is a duty to take such care as in all the circumstances of the case is
reasonable to see that the visitor will be reasonably safe in using the premises for the purposes
for which he is invited or permitted by the occupier to be there (s 2(2)).
The common duty of care does not impose on an occupier any obligation to a visitor in respect
of risks willingly accepted as his by the visitor (s 2(5)).
4.5.3 Discharging the duty of care

The duty is to take ‘such care as … in all the circumstances … is reasonable’, taking into
account the degree of care, and of want of care, which would ordinarily be looked for in such a
visitor (s 2(3)). So, for example, an occupier must expect children to be less careful than
adults. A warning may discharge the duty of care if it is enough to enable the visitor to be
reasonably safe (s 2(4)).
In Tomlinson v Congleton Borough Council and Another [2002] EWCA Civ 309, [2003] 2 WLR 1120,
the claimant was injured when diving into a lake despite signs prohibiting swimming and
warning that to do so was dangerous. The defendants argued that the risk of danger was an
obvious one which the claimant had willingly accepted; that they owed the claimant no duty of
care; or if they did, that it had been discharged by the display of warning notices.
The Court of Appeal agreed with the court of first instance and found in favour of the
claimant. The House of Lords overturned the Court of Appeal decision on the basis that it
would be unreasonable to impose a duty to protect people from self-inflicted injuries that they
sustained when voluntarily taking risks in the face of obvious warnings. Even if the local
authority had owed the claimant a duty of care, that duty would not extend to preventing the
claimant from diving or warning him against dangers that were obvious. Their Lordships took
the view that it was not appropriate to find in favour of the claimant and thereby impose a duty
on local authorities to protect those foolish enough to ignore clear warnings. This would be at
the expense of the vast majority of people who might find that they were barred from all
manner of recreational activities on public land, for fear that they might injure themselves and
decide to sue the local authority.
4.5.4 Employing an independent contractor

Where injury is caused to a visitor by a danger due to the faulty execution of any work of
construction, maintenance or repair by an independent contractor employed by the occupier,
the occupier will not be treated by this reason alone as answerable for the danger if in all the
circumstances (s 2(4)(b)):
(a) he had acted reasonably in entrusting the work to an independent contractor; and
(b) he had taken such steps (if any) as he reasonably ought in order to satisfy himself that:
(i) the contractor was competent, and
(ii) that the work had been properly done.
The duty of care under the Act is therefore delegable to an independent contractor. This
should be contrasted with the personal nature of the common duty of care owed to an
employee, which is non-delegable (see Wilsons & Clyde Coal v English [1938] AC 57). (See 4.2.6.)
4.5.5 Exclusion or modification of duty of care

By s 2(1) of the OLA 1957, an occupier may extend, restrict, modify or exclude his duty to any
visitor. However, this must be read subject to s 2 of the Unfair Contract Terms Act 1977, under
which, in the case of business liability:
(a) a person cannot by reference to any contract term, or to a notice given to persons
generally or to particular persons, exclude or restrict his liability for death or personal
injury resulting from negligence;
(b) in the case of other loss or damage, a person cannot so exclude or restrict his liability
for negligence except in so far as the term or notice satisfies the requirement of
reasonableness.
4.6 REMOTENESS OF DAMAGE

The defendant will be liable to the claimant only if it can be proved that it was foreseeable that
the claimant would suffer damage of the kind that the claimant did in fact suffer. The claimant
will generally recover for:
(a) damage which was reasonably foreseeable; or
(b) damage which can be shown to flow as a direct consequence of the breach.
Once damage is established as foreseeable (no matter how small), the claimant can recover for
the full extent of the injury even if this was unforeseeable (Smith v Leech Brain & Co Ltd [1962] 2
QB 405).
4.7 CAUSATION
Whether the claimant can establish causation is a question of fact to be decided by the judge
in each case. The basic test both for common law negligence and breach of statutory duty
is the ‘but for’ test . In Clough v First Choice Holidays and Flights Ltd [2006] EWCA Civ 15, Phillips
LJ said that the term ‘but for’
encapsulates a principle understood by lawyers but applied literally or as if the words embody the
entire principle the words can mislead. The claimant is required to establish a causal link between the
negligence of the defendant and his injuries, or in short, that his injuries were indeed consequent on
the negligence.
The claimant is not required to show that the breach is the sole cause of the loss; it is
sufficient if the breach materially contributed to the loss (Bonnington Castings Ltd v Wardlaw
[1956] AC 613). To determine who caused the accident, the courts apply common sense to the
facts of the case. If a number of people can be shown to have been at fault, that does not
necessarily mean that they all caused the accident; it is a question of looking at the facts and
deciding which factors are too remote and which are not (Stapley v Gypsum Mines Ltd [1953] AC
663).
In most straightforward personal injury claims the issue of causation will be clear. However,
this may not be so in occupational disease cases, where two or more defendants have
negligently exposed an employee to work practices that may prove injurious to health. This
was the situation in the House of Lords’ ruling in Fairchild v Glenhaven Funeral Services Ltd and
Others; Fox v Spousal (Midlands) Ltd; Matthews v Associated Portland Cement Manufacturers (1978) Ltd
and Others [2002] UKHL 22, [2002] 3 All ER 305. Here, during the course of his career with
more than one employer, the claimant had been exposed to asbestos dust which in later years
manifested itself as mesothelioma, for which there is no cure. The House of Lords found that
where there had been employment with more than one employer and:
(a) both employers had a duty to take reasonable care to prevent the claimant from inhaling
asbestos dust; and
(b) both were in breach of that duty; and
(c) the claimant did subsequently suffer from mesothelioma,
then the claimant could recover damages from both former employers. In these
circumstances it was not necessary to satisfy the ‘but for’ causation test. It was enough that
the claimant was able to prove that a defendant had materially increased his risk of injury. In
his speech to the House, Lord Bingham of Cornhill put it like this: ‘… such injustice as may be
involved in imposing liability on a duty breaking employer is heavily outweighed by the
injustice of denying redress to a victim’.
The case of Barker v Corus (UK) plc & Others [2006] UKHL 20 is another House of Lords decision
following hot on the heels of Fairchild v Glenhaven Funeral Services. In Barker v Corus, the House of
Lords concluded that where it was established that a number of employers were liable, on the
basis that they had negligently exposed an employee to asbestos and thereby created a risk of
mesothelioma which did in fact occur, those employers should be liable to the claimant only
to the extent of the share of the risk created by their breach of duty. To understand this case it
is necessary to take a step back to the previous state of the law. Prior to this judgment, if there
were a number of employers all of whom were negligent to some degree, the claimant would
simply sue all of them and claim joint and several liability (ie sue all potential defendants for
100% of the loss and let them apportion the blame between them). This allowed the claimant
to gain damages in full from one defendant in circumstances where the others might be
insolvent or uninsured. Not surprisingly, defendants and their insurers were keen to resist
this.
The facts of the case are as follows. The employer (Corus) appealed against a decision of the
Court of Appeal in respect of its liability for damages for negligently exposing Mr Barker to
asbestos dust, from which he ultimately died, having contracted mesothelioma. During his
career he had worked at three stages where he was exposed to asbestos dust. The first two
episodes were due to breaches of duty by his then employers. However, the third instance
occurred when he was self-employed, and arose due to his failure to take reasonable care for
his own safety.
The Court of Appeal held that the defendant was jointly and severally liable with the first
employer, but subject to a 20% reduction for B’s contributory negligence while he was self-
employed.
The defendant submitted that it should not be liable at all as a matter of causation, since there
had been a period when B, and no one else, had been responsible for his exposure to asbestos
dust; and submitted, amongst other things, that it should be severally liable only according to
the share of the risk created by its breach of duty.
By a majority decision the House of Lords held that a defendant who is found liable under the
Fairchild exception to the usual rule of causation, will be liable only to the extent that it
contributed to the risk.
Fairchild constitutes an exception to the normal principles of causation. In the House of Lords
judgment it was accepted that there may well be instances when the same principle should
be applied to other circumstances. However, those circumstances are likely to be strictly
controlled by the courts.
In Sanderson v Hull [2008] All ER (D) 39 (Nov), the claimant alleged that she had been infected
by the campylobacter bacterium as a result of her employer’s breach of duty during the course
of her employment as a turkey plucker. At first instance the judge held that her case fell within
the Fairchild exception. However, the Court of Appeal disagreed. The Court did not accept that
this was a case where it was impossible for the claimant to show that ‘but for’ negligence on
the part of her employer there would have been no injury. The appeal judges stated that the
conditions set out in Fairchild in respect of mesothelioma cases, which might justify a
relaxation of the test, were not intended to exclude the application of the exception to other
diseases, but an essential element is the impossibility of the claimant satisfying the ‘but for’
test: mere difficulty of proof is not enough.
4.7.1 The Compensation Act 2006

Because of the implications of the House of Lords’ ruling in Barker v Corus, Parliament acted
quickly to negate its effect in the form of s 3 of the Compensation Act 2006, which came into
force on 26 July 2006. The effect of s 3 is that where mesothelioma is contracted as a result of
negligent exposure to asbestos in the course of employment with more than one employer,
the employers will be jointly and severally liable for the damage caused. This means that the
employee can claim compensation in full from any one of the negligent employers, who may
in turn claim against the remaining employers for a contribution according to their share of
the blame.
4.8 DEFENCES
4.8.1 Volenti non fit injuria
Where the defence of volenti non fit injuria applies, if a person engages in an event, being aware
of and accepting the risks inherent in that event, he cannot later complain of, or seek
compensation for, an injury suffered during the event. In order to establish the defence, the
claimant must be shown not only to have perceived the existence of danger, but also to have
appreciated it fully and voluntarily accepted the risk.
In ICI v Shatwell [1965] AC 656, two brothers, both experienced shotfirers, agreed to test
detonators without obeying safety regulations imposed by their employers. Both were injured
when one of the detonators exploded. One of the brothers sued his employer on the basis that
ICI were vicariously liable for injuries caused to him by the negligence of his fellow worker.
The Court held that ICI were not liable. Shatwell had voluntarily consented to a risk of which
he was well aware. The Court went on to say that the defence of volenti non fit injuria should be
available where the employer is not himself in breach of statutory duty and is not vicariously in
breach of any statutory duty through neglect of some person of superior rank to the claimant
and whose commands the claimant is bound to obey, or who has some special and different
duty of care.
It is important to note that in ICI v Shatwell there was no breach of statutory duty by the
employers. The defence is not available to an employer on whom a statutory obligation is
imposed as against liability for his own breach of that obligation.
While volenti non fit injuria may be a defence in theory, in practice it is rarely successful; an
employee will not often consent freely to run the risk of injury with full knowledge of that risk.
The only real defence to a work-based claim will therefore be contributory negligence.
4.8.2 Claimant’s contributory negligence

The contributory negligence of the claimant may sometimes reduce the damages to be
awarded against the defendant. It is for the judge to decide the proportion of responsibility of
the claimant and to reduce the amount of damages accordingly.
The Law Reform (Contributory Negligence) Act 1945, s 1 provides that:
[If ] any person suffers damage as a result partly of his own fault and partly of the fault of any other
person … damages recoverable in respect thereof shall be reduced by such extent as the court thinks
just and equitable having regard to the claimant’s share in responsibility for the damage.
‘Fault’ is defined by s 4 as ‘negligence, breach of statutory duty, or other act or omission which
gives rise to a liability in tort or, apart from this Act, gives rise to the defence of contributory
negligence’.
The question for the court, when considering contributory negligence, is whether the
claimant acted reasonably in taking the risk (AC Billings & Son Ltd v Riden [1968] AC 240).
Whether the claim is in negligence or for breach of statutory duty, there cannot be a finding of
100% contributory negligence (see Anderson v Newham College of Further Education [2002] EWCA
Civ 505).
In assessing the claimant’s conduct, allowance will be made for his working conditions. Mere
inadvertence by the employee will generally not be sufficient for contributory negligence, for
example where the employee is engrossed in his work or is in a hurry to get on with his job.
The relative age and experience of the claimant will also be a relevant consideration for the
court when deciding questions of contributory negligence. Disobedience or reckless
disregard for the employer’s orders are far more likely to give rise to a finding of contributory
negligence.
In Eyres v Atkinsons Kitchens & Bathrooms [2007] EWCA Civ 365, the defendant was the claimant’s
employer. The claimant asserted that the defendant was liable in negligence and/or for breach
of statutory duty because it caused or permitted him to drive when he was too tired after
having worked excessively long hours without a proper break.
At the time of the accident, the claimant was a 20-year-old kitchen fitter employed by the
defendant. Long hours, resulting in good money, were accepted by all the defendant’s
employees to be normal. If the work took them far from their factory base, the fitters,
including the claimant, tended to prefer a long drive back to Bradford and getting home late
rather than staying away overnight. The claimant was held to be 25% to blame for his injuries
because he had not been wearing a seat belt. The court was asked to consider the degree of
culpability of the claimant, as he had, whilst driving, become tired and liable to fall asleep.
The court concluded that the claimant had to bear some further responsibility for the
accident, but went on to say that the claimant was in that predicament because his employer
had put him there. His employer was next to him, fast asleep. His employer was doing nothing
to guard against the very risk of injury from which he ought to have been saving his employee.
Bearing in mind the relative blameworthiness of the parties’ respective faults and their
degrees of responsibility, the judge assessed the claimant’s overall contributory negligence
at 33%.
In Sherlock v Chester City Council [2004] EWCA Civ 201, the claimant was a joiner who lost his
thumb and index finger in an accident when using a circular saw provided by his employer. He
claimed that his employer was both negligent, for failing to carry out an appropriate risk
assessment, and in breach of statutory duty in relation to breaches of reg 3 of the
Management of Health and Safety at Work Regulations 1999, reg 20 of the Provision and Use
of Work Equipment Regulations 1998, and reg 4 of the Manual Handling Operations
Regulations 1992. On appeal to the Court of Appeal, Arden LJ considered whether it was
appropriate for there to be findings of contributory negligence in a breach of statutory duty
case:
There may be some justification for the view [that the findings of contributory negligence are not
appropriate] in cases of momentary inattention by an employee. But where a risk has been consciously
accepted by an employee, it seems to me that different considerations may arise. That is particularly so
where the employee is skilled and the precaution in question is neither esoteric nor one which he could
not take himself … In those circumstances it seems to me that the appellant can properly be required to
bear the greater responsibility. I would assess his responsibility for the accident at 60 per cent.
When considering contributory negligence, it should be remembered that many statutory

duties apply to employees and not employers. For example, the Management of Health and
Safety at Work Regulations 1999, reg 14 places a duty on employees to use equipment in
accordance with training and instructions.
4.9 ENFORCEMENT OF HEALTH AND SAFETY AT WORK

The function of enforcement is carried out by:
(a) the HSE, which deals broadly with industrial working environments;
(b) various specialist agencies appointed on behalf of the HSE (eg, the Hazardous
Installations Directorate);
(c) local authorities, which deal broadly with non-industrial working environments such as
the retail, office, leisure and catering sectors.
4.9.1 Health and safety inspectors

Health and safety inspectors have wide powers to enter premises and carry out investigations.
As a result of an investigation revealing a contravention, an inspector may:
(a) issue an improvement notice requiring any contravention to be remedied;
(b) serve a prohibition notice requiring the contravention to be remedied and fixing a time
after which the activity is prohibited unless remedied;
(c) commence a criminal prosecution (which may give rise to a relevant conviction that can
be used against the employer by the employee in subsequent civil proceedings).
4.9.2 The employer’s duty to report, maintain and implement safety provisions
The following are the principal requirements imposed on an employer:
(a) An employer who employs five or more persons must have written details of his policy in
regard to the organisation, control, monitoring and review of health and safety
measures.
(b) An employer is under a duty to report certain accidents, diseases and dangerous
occurrences to the HSE via its website at www.riddor.gov.uk. This enables the HSE to
consider an investigation of the incident. Only accidents resulting in death or injury
which leads to a worker being unable to work for seven days or more need to be reported
to the HSE. All occurrences which result in a worker being unable to work for three days
or more must be recorded and details of the injuries must be kept in an accident book.
The records must be kept for at least three years.
(c) The employer may (and in certain circumstances must) have a safety representative to
represent the health and safety interests of the employees. Such a representative has
wide powers to investigate potential hazards and dangerous occurrences, and to follow
up complaints made by employees.
(d) In addition to the safety representative, the employer may (and in certain circumstances
must) have a safety committee, the function of which includes:
(i) the studying of accidents and notifiable diseases in order to recommend
corrective measures to management;
(ii) making recommendations on safety training;
(iii) examining reports of the HSE and safety representatives;
(iv) making recommendations on developing/changing safety rules.
(e) Where an employee is injured at work and claims benefit, in certain circumstances the
employer is obliged to complete Form B176 to be sent to the Department of Work and
Pensions.
(f ) Subject to certain exceptions, an employer is required by the Employers’ Liability
(Compulsory Insurance) Act 1969 to take out insurance against liability to his own
employees.
4.9.3 Employers’ liability – enforcement through criminal proceedings

Criminal prosecutions may be brought against both the company and individual directors for
breaches of the HSWA 1974.
Section 2(1) is the key provision of the HSWA 1974. It states that ‘[i]t shall be the duty of every
employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work
of all his employees’.
The Court of Appeal established in R v Gateway Foodmarkets Ltd [1997] 3 All ER 78 that s 2(1) of
the HSWA 1974 imposed a duty of strict liability. This is qualified only by the defence that the
employer has done everything reasonably practicable to ensure that no person’s health and
safety is put at risk. The defendants appealed against their conviction for failing to do
everything reasonable to ensure the safety of their employees. The facts of the case were that a
supermarket manager died after falling down an open lift shaft which he had been trying to
repair. He had entered the room to free the lift, which had become jammed, by hand – a
regular though unauthorised practice of which head office was unaware – but failed to notice
that the trap door had been left open by contractors. The Court dismissed the company’s
appeal and held that s 2(1) of the Act was to be interpreted so as to impose liability in the
event of a failure to ensure safety unless all reasonable precautions had been taken not only by
the company itself, but also by its servants and agents on its behalf.
In R v HTM Ltd [2006] EWCA Crim 1156, the Court reaffirmed that a defendant to a charge
under the ss 2, 3 or 4 of the HSWA 1974, could adduce evidence in support of its case that it
had taken all reasonable steps to eliminate the likelihood of the relevant risk occurring. In a
preparatory hearing, the judge ruled that evidence of foreseeability was admissible as it was
relevant to the case alleged against the defendant, particularly with regard to the reasonable
practicability of its ensuring the health, safety and welfare of its employees, and that the
Management of Health and Safety at Work Regulations 1999, reg 21 did not preclude the
defendant from relying upon any act or default of its employees in its defence. The defendant
was entitled to put before the jury evidence to show that what had happened was purely the
fault of one or both of its employees. If the jury were persuaded that everything had been done
by or on behalf of the defendant to prevent the accident from happening, the defendant would
be entitled to be acquitted: R v Gateway Foodmarkets Ltd applied.
In the case of R v Tangerine Confectionery and Veolia [2011] EWCA Crim 2015, the Court of Appeal
gave further guidance on the relevance of foreseeability in such cases. The appeals involved
two companies which had been convicted of offences under the HSWA 1974. Tangerine
Confectionary had been prosecuted after an employee was killed attempting to unblock a
sweet-making machine. It was convicted of a breach of s 2 of the HSWA 1974 and fined
£300,000. However, it appealed on the basis that the risk of the employee making an
inexplicable decision not to isolate the machine before entering it was not foreseeable and
therefore the employer could not have been expected to guard against it. Veolia, a waste
company, was convicted of breaches of ss 2 and 3 of the HSWA 1974 and fined £225,000,
following an accident in which a worker collecting litter from the roadside was killed when hit
by a car driven by a member of the public. Veolia appealed on the basis that the risk arose from
the negligent driving of a member of the public and was not something over which the
employer had any control. Both appeals were rejected by the Court of Appeal, which held that
foreseeability of risk is relevant but it is only the risk that needs to be foreseeable (such as an
employee being crushed in the arms of a sweet-making machine) and not the mechanics of
the actual events which occurred.
Following concern at the low level of fines being imposed for offences under the HSWA 1974,
the Court of Appeal has given guidance on the factors to be taken into account by courts when
considering the appropriate penalty for this type of offence. In R v Howe & Son (Engineers) Ltd
[1999] 2 All ER 249, the Court stated that the aim of the Act was to ensure safety for
employees and the public, and therefore fines needed to be large enough to convey that
message. In general, they should not be so large as to put the employer out of business. In
determining seriousness, the court should consider:
(a) how far short of the appropriate standard the defendant had been;
(b) that the standard of care was the same for small organisations as for large;
(c) the degree of risk and extent of danger involved; and
(d) the defendant’s resources and the effect of a fine on its business.
Aggravating factors could include:
(a) failure to heed warnings;
(b) deliberate breach of regulations in pursuit of profit or saving money; and
(c) loss of life.
Mitigating factors could include:
(a) early admission of responsibility;
(b) a plea of guilty;
(c) taking action to remedy any breach brought to the company’s notice; and
(d) a good safety record.
The Court further held that it was incumbent upon a defendant seeking to make
representations about its financial position to provide copies of accounts to the court and the
prosecution in good time.
The above guidelines were considered by the Court of Appeal in R v Rollco Screw & Rivet Co Ltd
[1999] 2 Cr App R (S) 436. The defendant company and two of its directors protested that the
length of time given for payment of fines was inappropriate, and that no distinction should be
made between personal and corporate defendants (as there was a risk of double penalty if
directors and shareholders were the same people). On appeal, the Court agreed that a
personal defendant’s period of punishment had to remain within acceptable boundaries; this
was not true of a corporate defendant, as the same sense of anxiety was unlikely and a fine
could be ordered to be payable over a longer period. The level of fines must make it clear that
directors had a personal responsibility; there was a risk of double penalty in smaller
companies where directors were also shareholders and would be the principal losers.
The Health and Safety Offences Act 2008 (HSOA 2008), which came into force on 16 January
2009, was introduced as a result of concern that sentences under the HSWA 1974 were too
lenient. The HSOA 2008 does not create any new offences, but it raises the maximum penalties
available to the courts in respect of many health and safety offences. Previously such offences
were punishable only by fines (maximum £5,000 in the magistrates’ court). Under the HSOA
2008, most offences under the HSWA 1974 (and regulations made under it) will also carry a
sentence of imprisonment for 12 months following prosecution in the magistrates’ court, and
for two years following prosecution in the Crown Court. The maximum fine that may be
imposed in the magistrates’ court increases to £20,000; fines imposed by the Crown Court are
unlimited.
Where an accident results in death and the evidence indicates that a serious criminal offence
other than a health and safety offence may have been committed, the HSE is required to liaise
with the CPS in deciding whether to prosecute. This is dealt with in more detail in Chapter 17.
4.10 CONCLUSION
As stated at the beginning of this chapter, until the Enterprise and Regulatory Reform Act
2013 comes into force, the possible heads of liability of an employer are not mutually
exclusive. When acting for a claimant, it is important for the solicitor to consider all heads of
claim in order to maximise the client’s chances of success. It is necessary to succeed under
only one head for the claimant to be successful overall.
Once s 69 of the Enterprise and Regulatory Reform Act 2013 comes into force, however,
claimants will only be able to bring a claim in negligence, although breaches of statutory duty
will continue to be relevant as evidence of negligence.
Defendants’ solicitors need to be alert to possible arguments of contributory negligence on
the part of the claimant, although there is generally less scope for substantial reductions for
contributory negligence in work-based claims than in road traffic accident claims. It is
important that the solicitors for both sides regularly review the evidence available, including
all relevant health and safety documentation which can often hold the key to establishing
liability and which it is essential to obtain at an early stage.
An example of an employers’ liability case may be found in Appendix 1.

The above is merely an overview of the law as it relates to liability in employer’s liability
claims. For a more detailed consideration of the subject, reference should be made to the
following sources of information:
Redgrave, Hendy and Ford, Redgrave’s Health and Safety (Butterworths).
Munkman, Employer’s Liability (Butterworths).
Tolley’s Health and Safety at Work Handbook (Tolley).
www.hse.gov.uk
www.riddor.gov.uk
Clinical Negligence: The Law 67
CHAPTER 5
Clinical Negligence: The Law

5.1 Introduction 67
5.2 The duty of care 68
5.3 Breach of the duty of care 69
5.4 Res ipsa loquitur 70
5.5 Causation 71
5.6 Consent 74
5.7 The role of the NHS Litigation Authority 77
5.8 The structure of the NHS 77
5.9 The NHS complaints procedure 79
5.10 Plans for reform 82
5.11 Disciplinary proceedings 82
5.12 Criminal proceedings 83
5.13 Conclusion 83
5.15 Diagram – Structure of the NHS 84
5.16 Extract from the NHS constitution 85
LEARNING OUTCOMES
• set out the nature and scope of the duty of care owed by institutional health providers
and individual medical practitioners
• explain how the Bolam test is used to determine whether there has been a breach of
duty
• appreciate that causation is a more complicated issue in clinical negligence cases
than in personal injury cases
• set out the role of the NHS Litigation Authority, the structure of the NHS and the
operation of the NHS complaints procedure.
5.1 INTRODUCTION
Clinical negligence claims arise when a medical practitioner, such as a doctor, nurse, midwife
or dentist, or an institutional health provider, such as an NHS or Foundation Trust or a private
hospital, breaches his or its duty of care to the claimant, who is injured as a result of the
breach. The claimant may seek legal advice following an adverse outcome from medical
treatment, for example an unexpected injury or condition, a worsening of the original
condition, an increased length of stay in hospital, a subsequent unplanned re-admission, a
transfer to the intensive care unit, or perhaps even the death of the patient. However, whereas
in the case of an accident on the highway or in the workplace it is generally a straightforward
matter to establish breach and causation, this is not so in clinical negligence claims. The fact
that the claimant has had an unexpected or disappointing outcome from the medical
treatment he received does not necessarily mean that the healthcare provider failed to act with
reasonable care and skill. Even where a breach can be established, it may not be possible to
show that the breach caused the injury, as the underlying medical condition may have led to
the same outcome for the patient in any event.
From the outset, the claimant’s solicitor will need to manage his client’s expectations with
sympathetic tact and diplomacy. His client may struggle to understand why the case is not as
clear-cut as he had imagined and, in the absence of a very careful explanation, may feel that
the solicitor is simply incompetent. The client may have objectives other than compensation,
such as an explanation as to what went wrong, an apology, the punishment of those
responsible and the assurance that similar mistakes will not happen in the future. These
options should be explored with him and the shortcomings of each option highlighted. For
instance, the NHS complaints procedure will not lead to the payment of compensation. The
NHS complaints procedure and the disciplinary procedures followed by the General Medical
Council and the Nursing and Midwifery Council are dealt with in 5.9 and 5.11 below.
Clinical negligence claims are, in the main, more complex than personal injury claims, and
should therefore be handled only by those solicitors who have the required specialist skills.
For a number of reasons, including the implicit allegations of professional incompetence, the
high levels of compensation awards and the need for NHS bodies in particular to maintain the
confidence and support of the public, claims are frequently defended.
Where a patient has been treated privately and a certain outcome had been anticipated, such
as in the case of cosmetic surgery or dentistry, a claim may be brought for breach of contract.
However, most claims against NHS bodies and private doctors and hospitals are brought
under the tort of negligence. If the claim is to be successful, the claimant must show, on a
balance of probabilities, that the essential elements are proved, ie:
(a) that the medical practitioner or institutional health provider owed him a duty of care;
(b) that the medical practitioner or institutional health provider breached that duty;
(c) that he suffered injury and losses as a result of that breach of duty, which were
reasonably foreseeable.
Each of these three elements is examined in detail below.
5.2 THE DUTY OF CARE

5.2.1 The medical practitioner
It is clear that a doctor, nurse, midwife or other medical practitioner owes a duty of care to his
patients. This is unlikely to be a matter in dispute between the parties. The duty of care owed
by a doctor is wide-ranging but would encompass, for example:
(a) properly assessing the patient’s condition by taking account of the symptoms, the
patient’s views and an examination, where necessary;
(b) working within the limits of personal competence;
(c) keeping professional knowledge and skills up to date;
(d) prescribing drugs or administering treatment only where in possession of adequate
knowledge of the patient’s health and where satisfied that the drugs or treatment are
appropriate for the patient’s needs;
(e) keeping clear, accurate and legible records;
(f ) being readily accessible when on duty;
(g) consulting and taking advice from colleagues, where necessary; and
(h) referring a patient to another practitioner, where this in the patient’s best interests.
5.2.2 The institutional health provider

Where a medical practitioner is an employee of an NHS or Foundation Trust, the institutional
health provider will be vicariously liable for its employees’ breaches of duty. However, the
NHS or Foundation Trust itself owes a duty of care to the patient, and can be sued for
negligence without the claimant having to prove negligence on the part of an individual
medical practitioner. The leading case in this area is Wilsher v Essex Area Health Authority [1988]
AC 1074, in which it was held that an institutional health provider has a duty to provide
services of doctors of sufficient skill and that there was no reason why a health authority could
not be liable for a failure to provide such services.
The duty of care owed by an institutional health provider encompasses, for example:
(a) the provision of staff with the appropriate levels of knowledge, experience and ability;
(b) the provision of adequate instruction, training and supervision of staff;
(c) the provision of equipment which is reasonably suitable for the patient’s needs and is
maintained in good working order;
(d) ensuring that the working conditions within the hospital are not such that they lead to
levels of fatigue or stress which pose a risk to the patient; and
(e) ensuring that appropriate systems are in place for the storage and retrieval of patients’
records.
In respect of private treatment, the doctors and some other healthcare providers will usually
be independent contractors. Where it is their breach of duty which has led to the claim,
vicarious liability is not applicable. A private hospital is vicariously liable for the breaches of
duty of its own employees, such as nurses, and it will also owe a duty to provide appropriate
services and equipment.
5.3 BREACH OF THE DUTY OF CARE

5.3.1 The Bolam test
Some errors made by doctors are clearly in breach of their duty of care, for example where a
swab is left in the patient during an operation, where the wrong limb is amputated or where
an incorrect drug is administered. Such errors are known as ‘never events’ in the NHS and,
when they arise, liability is unlikely to be disputed. However, difficulty arises in cases where a
medical practitioner exercises his professional judgement and decides to take one course of
action rather than another, or perhaps decides not to act at all. In the realms of diagnosis and
treatment, there is scope for genuine differences of opinion, and a doctor will not necessarily
be negligent because the decisions he took did not result in the outcome the patient was
hoping for.
Consequently, in clinical negligence claims, the normal ‘reasonable man’ test is modified. In
order to show a breach of duty, the claimant must show that the doctor has followed a course
of action which is not supported by any reasonable body of medical opinion. This has become
known as the Bolam test after the case of Bolam v Friern Hospital Management Committee [1957] 1
WLR 582, in which it was held that:
The test as to whether there has been negligence or not is not the test of the man on top of the Clapham
omnibus because he has a special skill. The test is the standard of the ordinary skilled man exercising
and professing to have that special skill. A man need not possess the highest expert skill; it is well
established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man
exercising that particular art … A doctor is not guilty of negligence if he has acted in accordance with a
practice accepted as proper by a reasonable body of medical men skilled in that particular art … a
doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a
body of opinion which takes the contrary view.
Thus, if the defendant NHS body can show that the doctor it employed acted in accordance
with a reasonable body of opinion, it will have a defence to the claim. The word ‘reasonable’ is
important, because it is possible that a sizeable group of doctors might hold firm and honest
beliefs which are rejected by their peers, for example because they are outdated or have been
disproved.
This point was addressed when the House of Lords considered the Bolam test in Bolitho v City
and Hackney Health Authority [1997] 3 WLR 1151 (see 5.5.4 for the facts of this case). It held:
The court is not bound to hold that a defendant doctor escapes liability for negligent treatment or
diagnosis just because he leads evidence from a number of medical experts who are genuinely of the
opinion that the defendant's treatment or diagnosis accorded with sound medical practice. … The
court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that
such opinion has a logical basis.
Practitioners sometimes refer to the Bolam test as the 10% rule. It is said that if 10% of the
doctors in the country would have taken the same course of action, and that action has a
logical basis, then it will not be a negligent act.
A number of further clarifications should be noted:
(a) A medical practitioner will be judged in accordance with the reasonable body of opinion
which existed at the time of the alleged negligent act. It would, of course, be inequitable
to consider medical practice which exists at the time of trial, as advances in knowledge
and practice are almost inevitable.
(b) A medical practitioner will normally be judged in accordance with the opinion of
practitioners of the same rank and experience. So the standard of an obstetric senior
registrar is assessed by reference to the opinion of other obstetric senior registrars
rather than that of a consultant obstetrician. However, a doctor has a responsibility to
ensure that he practises within the confines of his own knowledge and experience, and
where he fills a more demanding role, a higher standard of care may be applied. The
position of an inexperienced doctor was considered in Wilsher v Essex Area Health Authority
[1988] AC 1074. The facts of this case were that Dr Wiles, a senior house officer (a
junior rank in the medical hierarchy), was attending to a premature baby in an intensive
care neo-natal unit when he made the mistake of inserting a catheter into a vein instead
of an artery. Dr Wiles asked Dr Kawa, the senior registrar, to check to see that what he
had done was correct, but Dr Kawa failed to notice the mistake. As a result the child was
given excess oxygen which the claimant alleged caused near blindness.
It was held that the standard of care required of those who worked in the intensive care
neo-natal unit was that of the ordinary skilled person exercising and professing to have
that special skill, but that the standard was not to be to be determined by reference to
the rank and status of an individual filling a particular post, but rather to the nature of
the post itself. Because Dr Wiles had elected to perform the duties of a specialised role,
inexperience was no defence to an allegation of negligence.
Glidewell LJ said that an inexperienced doctor who exercised a specialist skill and who
made a mistake would satisfy the necessary standard of care if he had sought the advice
and help of his superior when necessary. In this particular case, Dr Wiles had sought the
advice of Dr Kawa and therefore was not in breach of duty. Although Dr Kawa was in
breach of duty, the claimant was unable to establish causation and the claim failed.
5.4 RES IPSA LOQUITUR

The maxim res ipsa loquitur may be applied in clinical negligence cases in circumstances where
the claimant is unable to adduce any evidence as to how or why the injury has occurred but
asserts that it would not have occurred in the absence of the defendant’s negligence
(see 3.2.3.3).
In Cassidy v Ministry of Health [1951] 2 KB 343, the claimant attended a hospital due to a
problem affecting two fingers on one hand, but following an operation and post-operative
treatment, the whole hand was affected. The court held that he was entitled to rely on the
maxim res ipsa loquitur and that the defendant had failed to explain how the injury could have
occurred without negligence.
The approach to res ipsa loquitur in clinical negligence litigation was reviewed by the Court of
Appeal in Ratcliffe v Plymouth and Torbay Health Authority [1998] PIQR P170. Dismissing the
claimant’s appeal, the Court expressed surprise at the suggestion that courts were having
difficulty in assessing the applicability of the doctrine to cases involving allegations of clinical
negligence, and reviewed the relevant principles in detail.
Lord Justice Brooke made the following points:
(a) The maxim applies where the claimant relies on the happening of the thing itself to
raise the inference of negligence, which is supported by ordinary human experience,
and with no need for expert evidence.
(b) The maxim can be applied in that form to simple situations in the clinical negligence
field (a surgeon cutting off a right foot instead of the left; a swab left in the operation
site; a patient who wakes up in the course of a surgical operation despite a general
anaesthetic).
(c) In practice, in contested clinical negligence cases the evidence of a claimant which
establishes the res is likely to be buttressed by expert evidence to the effect that the
matter complained of does not ordinarily occur in the absence of negligence.
(d) The position may then be reached at the close of the claimant’s case that the judge
would be entitled to infer negligence on the defendant’s part unless the defendant can
then adduce some evidence which discharges the inference.
(e) This evidence may be to the effect that there is a plausible explanation of what may have
happened which does not rely on negligence on the defendant’s part.
(f ) Alternatively, the defendant’s evidence may satisfy the judge on the balance of
probabilities that he did exercise proper care. If the untoward outcome is extremely rare,
or is impossible to explain in the light of the current state of medical knowledge, the
judge will be bound to exercise great care in evaluating the evidence before making such
a finding.
The judgment goes some way in explaining why res ipsa loquitur is not commonly pleaded in
such cases. Whilst it is commonplace for a claimant not to have full knowledge of what had
occurred, particularly if the procedure was an operation carried out under anaesthetic, in
practical terms, few cases are brought to trial without full disclosure of relevant information
being supplied by the defendant, and both sides will rely on expert evidence. Consequently, by
the time the matter comes to trial, most claimants will be able to particularise allegations of
negligence and the trial opens ‘not in the vacuum of available evidence and explanation’ as
sometimes occurs in road traffic accident cases. The court will be able to decide the case on
the evidence which is presented.
5.5 CAUSATION
In a clinical negligence claim, the claimant will argue that, as a result of the negligent
treatment by the doctor or hospital, he suffered an unexpected injury or condition, his pre-
existing injury or condition became worse, he failed to recover from that condition, or the
chances of him recovering diminished. Where a patient has died, his estate or dependants
may argue that the death was caused by negligent treatment.
However, the issue of causation which is likely to be admitted (subject to liability) in personal
injury cases, is likely to be hotly disputed by the defendant in clinical negligence cases. In
personal injury cases, the claimant is normally fit and well prior to the accident, and it is
clearly the accident which caused the injury. In contrast, in clinical negligence cases, the
adverse outcome complained of can arise as a result of many different variables, and it may be
difficult to show that ‘but for’ the breach, this outcome would not have arisen.
Also in contrast with personal injury cases, in clinical negligence cases, the term ‘liability’ is
usually confined to matters relating to breach of duty. ‘Causation’ is dealt with separately and
the evidence of a further medical expert may be required. Consequently, where the defendant
admits liability prior to trial, the claimant’s solicitor should seek confirmation that the
defendant also admits causation.
5.5.1 The ‘but for’ test

The claimant has to satisfy the court, on a balance of probabilities, that, but for the
defendant’s breach of duty, he would not have suffered the injury complained of. If, for
example, a failure to treat a patient has made no difference because he would have died in any
event, his death will not have been caused by negligence.
In Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, three night-
watchmen attended a casualty department complaining of vomiting after drinking tea three
hours previously. The men were sent home with instructions to go to bed, and if necessary to
call their own doctors. They went away but one of them died later that night, and the cause of
death was subsequently found to be arsenic poisoning. In an action brought by the widow, the
defendant was found to be in breach of duty. However, the court found that the deceased
would have died of the poisoning even if he had been treated with all the necessary care.
Therefore, the claimant had failed to establish on the balance of probabilities that the
defendant’s negligence caused the deceased’s death.
The claimant does not have to prove that the defendant’s breach of duty was the sole cause of
the injury. It is enough for him to show that the breach made a material (ie something more
than minimal) contribution towards the injury. In Bailey v Ministry of Defence [2008] EWCA Civ
883, the claimant, who underwent a medical procedure at the defendant’s hospital, was not
properly resuscitated and, due to the subsequent deterioration in her condition, had to
undergo three further procedures shortly after. It was argued on her behalf that she would
have needed only one additional procedure had she been properly resuscitated after the first
operation. As a result of weakness due to the procedures, and the development of pancreatitis,
which was a natural complication not attributable to negligence, the claimant inhaled vomit,
went into cardiac arrest and suffered brain damage. The Court of Appeal upheld the trial
judge’s finding that it was not possible to say whether the weakness had been caused mainly
by the negligence or by the pancreatitis, that each had contributed materially to the overall
weakness, and it was that overall weakness that caused her inability to respond to the vomit
and her subsequent injuries. Consequently, the finding against the defendant was upheld.
It is possible for the court to hold more than one type of healthcare professional jointly
responsible for personal injuries that result from negligence. This is well illustrated in the
case of Prendergast v Sam and Dee Ltd (1989) The Times, 14 March, in which a pharmacist misread
a prescription and gave the claimant a drug which resulted in irreversible brain damage. The
pharmacist was held to be 75% responsible, and the doctor who wrote the prescription was
held to be 25% at fault because his handwriting was illegible.
5.5.2 Causation and loss of a chance

As the claimant must prove causation on a balance of probabilities, the courts have held that a
claimant cannot claim for the loss of a prospect of recovery where the chance of recovery is
less than probable. In Hotson v East Berkshire Health Authority [1987] AC 750, a 13-year-old boy,
was climbing a tree to which a rope was attached when he lost his grip and fell 12 feet to the
ground. He was subsequently taken to hospital, where the staff failed to diagnose a fracture
and sent him home to rest. When he returned to the hospital, the correct diagnosis was made.
As a result of the initial failure to give a correct diagnosis, he was left with a disability of the
hip and a risk of future osteoarthritis. At first instance, the trial judge found that if the health
authority had correctly diagnosed and treated the claimant when he first attended hospital,
there was a high probability (which he assessed at a 75% risk) that his injury would have
followed the same course it had followed. In other words, the doctor’s delay in making the
correct diagnosis had denied the claimant a 25% chance that, if given immediate treatment,
he would have made a complete recovery. Accordingly, the claimant was awarded 25% of the
appropriate damages. The defendant’s appeal to the Court of Appeal was dismissed, but the
House of Lords overturned the decision. The claimant had failed to prove causation as the lost
chances of recovery, being less than 50%, were less than probable.
This approach was confirmed in the case of Gregg v Scott [2005] UKHL 2. The claimant, Mr
Gregg, visited his GP, Dr Scott, because he had discovered a lump under his left arm. Dr Scott
negligently misdiagnosed the lump as a lipoma or benign fatty tumour and therefore as non-
cancerous. Nine months later, the claimant went to a new GP who was more cautious and
referred him on to a specialist. It was then that he discovered that he had cancer of a lymph
gland. By that time the tumour had spread and he had to undergo painful chemotherapy. The
claimant sued Dr Scott, alleging that he should have referred the claimant to hospital and
that, if he had done so, the condition would have been diagnosed earlier and there would have
been a significant likelihood of a cure. Although the claimant could claim for the extra pain
and suffering caused by the defendant, the claimant tried to sue on the basis that he had
suffered a loss due to diminished chances of surviving the cancer. On appeal to the House of
Lords, their Lordships found in favour of the defendant on the basis that the claimant was
unable to prove that his negligence had caused or materially contributed to the injury. It had
not been shown that, on the balance of probabilities, the delay in commencing the claimant’s
treatment had affected the course of his illness or his prospects of survival, which had never
been as good as even. Further, liability for the loss of a chance of a more favourable outcome
should not be introduced into personal injury claims.
5.5.3 Causation and failure to warn

As informed consent is required before any type of medical procedure is performed, it is
essential that a doctor advises his patient of any risk inherent in that procedure (see 5.6.4
below). If the doctor fails to do so and the risk materialises, the court will consider whether or
not the patient would have consented to the operation anyway. If the patient, aware of the risk,
would have so consented, causation cannot be established. However, if the patient would not
have consented, clearly the breach of duty in failing to warn him of the risk caused the loss,
and he will be entitled to damages representing the difference in his current condition and the
condition he would have been in had the operation not been performed.
In Chester v Afshar [2004] UKHL 41, the House of Lords modified conventional causation
principles on policy grounds. Miss Chester suffered from back pain and was referred to Mr
Afsar, a consultant neurosurgeon. He advised surgery but failed to warn her of a small (1–2%)
inherent risk that the operation, no matter how expertly performed, could result in a serious
complication, causing partial paralysis. The operation was performed three days later and the
risk materialised. The operation itself was not performed negligently. The difficulty in this
case was that the claimant was unable to say that she would never have had the operation had
she known of the risk; merely that she would not have had it as soon as she did, as she would
have explored other options first. Moreover, the failure to warn had not increased the risk.
Consequently, the ‘but for’ test could not be satisfied. The House of Lords found in the
claimant’s favour and, in so doing, veered away from conventional causation principles. Their
Lordships justified their ruling on policy grounds, on the basis that the loss arose from the
violation of the patient’s right to make an informed choice due to the failure to warn. Lord
Steyn said:
I have come to the conclusion that, as a result of the surgeon’s failure to warn the patient, she cannot
be said to have given informed consent to the surgery in the full legal sense. Her right of autonomy and
dignity can and ought to be vindicated by a narrow and modest departure from traditional causation
principles. On a broader basis I am glad to have arrived at the conclusion that the claimant is entitled in
law to succeed. This result is in accord with one of the most basic aspirations of the law, namely to right
wrongs. Moreover, the decision announced by the House today reflects the reasonable expectations of
the public in contemporary society.
5.5.4 Causation and failure to attend

In Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151, the House of Lords considered
causation in the context of a doctor’s breach of duty in failing to attend a child. The child
claimant (aged 2 years) who had been treated for croup at St Bartholomew’s Hospital, was
discharged but then readmitted. He suffered episodes of extreme breathing difficulties and,
during one such episode, the nurse called for a doctor to attend. The senior registrar was
dealing with a clinic and was unable to attend, and the senior house officer did not attend
either because the batteries of her pager were flat. The child subsequently suffered cardiac
arrest which led to brain damage. The defendant accepted that the failure to attend the child
was in breach of duty, but it disputed that the failure was causative of any damage. It was
agreed that if the child had been intubated (to create an airway), the child would not have
suffered the cardiac arrest and consequently would not have incurred brain damage. The
senior registrar gave evidence to the effect that she would not have intubated had she
attended. There was a dispute between experts called by the parties as to whether intubation
would have been the appropriate course of action to take in those circumstances, bearing in
mind the risks associated with that procedure. The House of Lords dealt with the case by
taking a two-stage approach:
(a) The court first considered what the doctor would have done if she had attended the
child. This was a fact-finding exercise and the Bolam test was not relevant at this stage.
From the senior registrar’s evidence, it was accepted by the court that she would not
have intubated the child and that the senior house officer would not have done so
without her permission.
(b) The court went on to consider whether the failure to intubate would have been
negligent. At this point the Bolam test was relevant, and the court found that a
reasonable body of medical opinion would support the registrar’s decision not to
intubate.
Consequently, their Lordships found in favour of the defendant.
5.6 CONSENT
The patient’s consent is required by the medical practitioner before any sort of operation is
performed or treatment (such as an injection of drugs or manipulation of a limb)
administered. The consent must be freely given and informed. It need not be in writing,
although, in relation to surgical procedures, it invariably will be, and the patient will be asked
to sign a consent form. However, it should be noted that a signed consent form is evidence
that consent was given but not necessarily that consent was valid, ie freely given by someone
with capacity, following full disclosure of all the relevant facts.
The standard NHS consent forms are drafted widely so as to allow a surgeon to deal with any
procedure that he deems to be necessary, in the patient’s best interests, during the course of
the operation. However, the surgeon would be justified in carrying out such additional
measures only where they were closely related to the initial procedure, or where they became
necessary due to an emergency.
In Williamson v East London and City Health Authority [1998] Lloyd’s Rep Med 6, the claimant
agreed to an operation to replace a leaking silicone breast implant. Immediately prior to the
operation, the surgeon noted that the situation was worse than had originally been thought,
but did not tell the claimant that she intended to carry out a more extensive procedure than
she had initially planned, and no further consent form was signed. A mastectomy was
performed without the patient’s consent and the patient sued the health authority. The court
found that the clinician did not properly or sufficiently inform the claimant of her intention to
increase the scope of the operation, the claimant had not consented to the operation, and
accordingly damages were awarded in respect of the claimant’s pain and suffering.
Where treatment is less risky, oral consent is common. It may also be implied by the very fact
that the patient has consulted the doctor.
If the medical practitioner acts without consent, this may lead to a criminal prosecution for
battery and to civil proceedings under the tort of trespass to the person (or battery in
particular). The basis of these actions is that the interference with the physical integrity of the
patient was intentional. (A consideration of the tort of battery lies beyond the scope of this
book.)
However, where the medical practitioner seeks the consent of the patient and advises him, in
broad terms, of the nature of the operation or treatment, but fails to advise him of all the
associated risks, the consent may not be fully ‘informed’ but it will not be invalidated (see
Chatterton v Gerson [1981] QB 432). This failure to advise fully may lead to civil proceedings in
negligence (see 5.6.4).
Where the patient suffers from a mental incapacity and thereby falls under Pt IV of the Mental
Health Act 1983, his consent is not required for any medical treatment necessary for the
management of his mental disorder. (A consideration of the treatment of those who are
mentally incapacitated also falls outside the scope of this book.)
5.6.1 Emergency treatment

In some instances, for example in emergencies, consent may not be possible. Where
treatment is necessary to save the life or preserve the health of the patient in such
circumstances, a failure to obtain consent will not render the doctor liable in civil or criminal
proceedings. There is no English case specifically on this point, but in Wilson v Pringle [1986] 3
WLR 1, CA (which was about two boys fighting in a school playground), Croom-Johnson LJ
speculated as to what sort of physical contact would be acceptable in the conduct of daily life
and would therefore provide a defence to an action for trespass. He considered the actions of a
surgeon who performs an urgent operation on an unconscious patient brought into hospital,
when that patient could not give consent himself and there were no next of kin to give consent
on his behalf, and held that such action was acceptable in the ordinary conduct of everyday
life and therefore not a battery. Similar thoughts have been expressed obiter in a number of
subsequent cases.
5.6.2 Consent by children

Section 8(1) of the Family Law Reform Act 1969 provides a presumption that a child may give
valid consent for medical treatment at the age of 16. This area of the law was examined closely
in Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security
[1986] AC 112, in which it was held that the important point is the degree of understanding
by the child of what is going to happen.
5.6.3 Refusal of consent

The basic proposition is that an adult of sound mind has the right to autonomy and self-
determination, and therefore can refuse to consent to medical treatment, even where this may
lead to his death. Many of the reported cases deal with women who are in the later stages of
pregnancy, and where the medical practitioners, concerned to protect the foetus as well as the
mother, apply for a declaration from the court that it would be lawful to carry out the required
medical procedure without the mother’s consent. These cases show that the court is not able
to take the interests of a foetus into account. In St George’s Hospital NHS Trust v S; R v Collins and
others, ex p S [1998] 3 All ER 673, the Court of Appeal said:
In our judgment while pregnancy increases the personal responsibilities of a woman it does not
diminish her entitlement to decide whether or not to undergo medical treatment. Although human,
and protected by the law in a number of different ways … an unborn child is not a separate person from
its mother. Its need for medical assistance does not prevail over her rights. She is entitled not to be
forced to submit to an invasion of her body against her will, whether her own life or that of her unborn
child depends on it. Her right is not reduced or diminished merely because her decision to exercise it
may appear morally repugnant. The declaration in this case involved the removal of the baby from
within the body of her mother under physical compulsion. Unless lawfully justified, this constituted an
infringement of the mother's autonomy. Of themselves, the perceived needs of the foetus did not
provide the necessary justification.
In the case of Re MB (An Adult: Medical Treatment) (1997) 38 BMLR 175, a woman who was 40
weeks pregnant and in labour refused to consent to a caesarean section because she had a
phobia about needles and therefore could not consent to anaesthesia. Her life and that of her
unborn child were therefore at risk. The Court of Appeal held that a competent woman could
choose to reject medical intervention, even on irrational grounds, ie where the decision was
so outrageous in its defiance of logic or of morally accepted standards that no sensible person
could have arrived at it. However, in this case, the appellant’s fear of needles had made her
incapable of making a decision in relation to anaesthesia and had therefore rendered her
temporarily incompetent.
5.6.4 Failure to advise of risk

In order that consent to the proposed treatment may be fully informed, the medical
practitioner must, so far as is possible, advise the patient as to the risks involved in treatment
and the likelihood and nature of any side-effects. Where a patient asks a question, the medical
practitioner must answer the question honestly. Clearly, a failure to advise a patient about
sizeable risks will be negligent, whether or not the patient asks a specific question, but what
about where the risks are very small and there is no specific question?
The case of Sidaway v Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital [1985]
AC 871, governs the nature of the obligation placed upon the doctor to tell the patient about
the risks of the proposed operation. The claimant complained of persistent pain in the right
shoulder and left arm. The claimant was admitted to hospital and an operation was carried
out on her back to attempt to free her from pain and discomfort. During the operation the
spinal cord was damaged, which left the claimant severely disabled. The claimant sued the
hospital and the surgeon’s estate. It was not claimed that the operation had been negligently
performed; rather, the claim was based on the failure to warn the claimant of the risk of
damage to a nerve root and the spinal cord.
It was held that if there was a significant risk which would affect the judgement of a
reasonable patient, it was the duty of the doctor to inform the patient of that risk to enable
him to decide which course to adopt. What constitutes a ‘significant risk’ was not precisely
defined, but Lord Bridge referred to a significant risk of grave consequences, for example one
greater than 10%, and Lord Templeman said that a doctor should tell the patient about a
danger which may be ‘special in kind or magnitude or special to the parties’.
The expert evidence produced at trial showed that there was 1% to 2% risk of damage to either
the nerve root or the spinal cord, and that the risk of damage to the spinal cord of the severity
suffered by the claimant was less than 1%. The experts also stated that the judgement of a
surgeon not to frighten his patient by talking about the risk of death or paralysis would be in
accordance with a practice accepted as proper by a responsible body of competent
neurosurgeons.
The House of Lords held that the Bolam test should be applied to disclosure as well as to
treatment and diagnosis (Lord Diplock dissenting; he believed that the patient should be
informed of the risks as a matter of law), and found for the defendant. It is important to note,
however, that the Bolam test has since been modified by Bolitho. The court will consider the
facts of each particular case and, where there is a body of medical opinion which agrees with
the decision not to reveal a slight risk to the patient, will consider whether there is a logical
basis for that decision.
In Newbury v Bath DHA (1999) 47 BMLR 138, it was held that if the claimant was led to believe
that the operation was trivial and risk free, and such was not the case, that advice would be
wrong and negligent within the terms of Sidaway. The judge went on to give examples of
circumstances where the patient was entitled to be told when surgery was not in the
mainstream of treatment:
(a) if it involved a method which was entirely new or relatively untried;
(b) if the method had fallen out of use because it has been shown to be defective and was
not accepted by a responsible body of medical opinion.
It should be noted that in Chester v Afshar (see 5.5.3) the House of Lords found that the surgeon
had been negligent in accordance with the Bolam test. The claimant had specifically asked
about the risks involved in the operation and had not been given a full and honest answer.
Although the House of Lords used the lack of consent to justify a finding in favour of the
claimant, this case is predominantly about the issue of causation and the decision was based
on policy grounds.
In relation to the warning of such risks, see Lybert v Warrington HA (1996) 7 Med LR 71 for
guidance as to the form such warnings should take. In this case, the claimant claimed
damages for failure to advise on the risk of the possibility of failure of a sterilisation operation.
The court held that it was the duty of those running the sterilisation unit to ensure that there
was a proper and effective system for warning patients at some stage. Ideally, the warning
should be given orally and in writing, and could have been given on admission, or before the
patient agreed to sterilisation or before discharge. There was evidence that no warning at all
had in fact been given.
5.7 THE ROLE OF THE NHS LITIGATION AUTHORITY

The NHS Litigation Authority (NHSLA) handles clinical negligence claims against NHS
bodies and administers a risk-pooling scheme, the Clinical Negligence Scheme for Trusts
(CNST), which provides unlimited cover for members of the scheme and their employees
against such claims. (Health professionals who provide advice and treatment on a private
basis and self-employed health professionals, such as GPs, are not covered by the scheme and
must carry their own indemnity insurance.) Membership of the CNST is voluntary, but all
NHS and Foundation Trusts are currently members of the scheme. Members contribute to the
scheme in accordance with the level of risk they pose. For example, hospitals that perform
high-risk procedures, such as obstetrics, have higher levels of contributions than those which
do not.
The NHSLA relies on a panel of solicitors’ firms which are specialised in clinical negligence
litigation to handle defence work on their behalf. Fewer than 2% of cases referred to the
NHSLA are concluded at trial.
The NHSLA Clinical Negligence Reporting Guidelines (5th edn) set out a framework within which
claims managers working for Trusts report cases of alleged clinical negligence to the NHSLA.
In every case where medical records are requested, the Trust should make a preliminary
analysis on the available evidence to assess whether there is a reasonable prospect of a claim
being made. Where there has been a serious adverse event, or where there is a potential claim
of a value of over £250,000, the NHSLA should be informed as soon as possible, usually before
a claim has been issued. The receipt of a letter of claim should be reported within 24 hours.
5.8 THE STRUCTURE OF THE NHS

Solicitors acting for clients who have suffered as a result of poor NHS treatment must acquire
an understanding of the structure of the NHS, and the responsibilities of each body within
that structure, to enable them to determine where complaints should be addressed and the
identity of the appropriate defendant, should proceedings be necessary.
On 1 April 2013, as a result of the implementation of the provisions of the Health and Social
Care Act 2012, fundamental changes were made, the full extent of which is beyond the scope
of this book. However, a basic diagrammatical structure showing the bodies relevant to the
personal injury solicitor is provided at 5.15, and an outline of the responsibilities of those
bodies is as follows:
(a) The Department of Health, under the leadership of the Secretary of State for Health, is
responsible for standards of health and social care and is accountable to Parliament. It
provides strategic leadership to the health and care system, the basis of which is set out
in the NHS Mandate published by the Secretary of State in November 2012.
(b) NHS England (formerly the NHS Commissioning Board) is an independent body which
has a statutory obligation to pursue the objectives found in the NHS Mandate. It is
responsible for improving health outcomes for people in England by driving up the
quality of care, by commissioning specialist services and primary care (GP services,
dental services, pharmacy, and certain aspects of optical services), through the local
area teams, and by allocating resources to, and overseeing the work of, the clinical
commissioning groups (see below).
(c) Clinical commissioning groups (CCGs) are responsible for a substantial part of the NHS
commissioning budget, namely that relating to the provision of secondary care. This
includes planned hospital care, rehabilitative care, urgent and emergency care, most
community health services and mental health and learning disability services. Services
may be commissioned from any provider that meets NHS standards and costs,
including charities and private sector providers.
There are 211 CCGs, overseen by 27 NHS England local area teams (including 10
specialised commissioning hubs responsible for those who have very rare conditions),
which are themselves overseen by four regional offices. All GP practices must belong to
a CCG, and each CCG board must include at least one hospital doctor, a nurse and a
member of the public.
(d) Providers of primary and secondary care. These will be the defendants in civil
proceedings, and complaints about the services provided will usually be made directly
to them, at least in the first instance.
(i) Primary care. This is the first point of contact for most people experiencing health
problems and is delivered by a wide range of independent contractors, such as
GPs, dentists, opticians and pharmacists. It also includes NHS walk-in centres,
NHS 111 and the NHS Direct telephone service.
Those who are not primary care providers (see (ii)–(iv) below) are sometimes
referred to as secondary care providers.
(ii) Hospital care. Hospitals in England are managed by acute trusts, many of which
are NHS Hospital Trusts. However, Foundation Trusts were introduced in 2004
with the aim of decentralising health services and tailoring them to meet the
needs of the local population. They have more financial and operational freedom
than NHS Hospital Trusts, and the aim is that all NHS Trusts, including those
providing community care or mental health services (see below), will have
become Foundation Trusts by 2016.
(iii) Community care services. Care trusts manage integrated services between health
and social care which arise from joint working agreements between the NHS and
local authorities. Services include those provided by district nurses and health
visitors.
(iv) Mental health services. Mental health trusts (the majority of which have
foundation status) oversee the specialist care required by those with mental health
problems, such as severe anxiety or psychotic illness. Services include
counselling, psychological therapies, community and family support and more
specialist care. Services may be provided in partnership with other primary and
secondary care providers and local authorities.
The Care Quality Commission is the independent regulator of all health and social care
services in England. It makes sure that the care provided by hospitals, dentists, ambulances,
care homes and services in people’s own homes and elsewhere meets national standards of
quality and safety by regulating, monitoring and inspecting those services and sharing its
findings with the public.
In March 2013, the Department of Health published the NHS Constitution (the
‘Constitution’), which establishes the principles and values of the NHS in England. It sets out
the rights and responsibilities of patients, public and staff, and the pledges which the NHS is
committed to achieve. Further information is set out in the NHS Constitution Handbook (the
‘Handbook’). The Secretary of State for Health, NHS bodies, private and voluntary sector
providers of NHS services, and local authorities exercising their public health functions are
statutorily obliged to take account of the Constitution. NHS England and clinical
commissioning groups are obliged to promote the Constitution.
For the purposes of the Constitution, rights are legal entitlements protected by law. The legal
basis of each right is set out in the Handbook. Pledges are not legally binding, but rather
express an ambition to improve, going above and beyond what is required by right, and
therefore cannot be guaranteed for everyone all of the time.
5.9 THE NHS COMPLAINTS PROCEDURE

In April 2009, the Government introduced a simplified two-stage process for handling
complaints about NHS services in accordance with the Local Authority Social Services and
National Health Service Complaints (England) Regulations 2009 (SI 2009/309) (‘the
Regulations’). The procedure, which is set out at 5.9.1 applies to complaints concerning all
NHS staff, whether they are GPs, hospital doctors, nursing staff, ambulance crew,
administrators or cleaners. The procedure is not relevant where treatment has not been
funded by the NHS, even where that treatment was provided in an NHS hospital. A complaint
by a patient may encompass any expression of dissatisfaction, from a complaint about the
food or politeness of staff, to one about diagnosis or treatment (ie a clinical complaint), and
may be made orally, in writing or electronically.
The purpose of the complaints procedure is to enable complaints to be dealt with simply and
swiftly, at a local level if at all possible. The Government recognises that speedy resolution of
the complaint to the complainant’s satisfaction may avoid the instigation of civil proceedings,
especially where the adverse outcome has not resulted in particularly serious consequences
for a patient. The rights and pledges set out in the Constitution relating to complaints and
redress are set out at 5.16.
When advising a client about the right to complain in relation to NHS care, and how to go
about it, there are a number of matters for the solicitor to explain:
(a) The complaints procedure does not provide for the payment of compensation to the
complainant, although some NHS Trusts operate a policy of offering limited
compensation, and the proposed NHS Redress Scheme would, in the unlikely event it
were to become operational, provide a formal basis for such payments (see 5.10).
Therefore, particularly in relation to those who have suffered severe injury and
consequential financial loss, the complaints procedure is unlikely to provide a complete
solution in itself.
(b) In spite of (a) above, generally it is advisable to exhaust the complaints procedure before
commencing proceedings. In addition to ensuring that the complainant’s voice does
not go unheard, the complaints procedure will ensure that the matter is investigated
quickly by the relevant NHS body, while events are still fresh in the minds of those
involved. This may provide the claimant’s solicitor with valuable information for civil
proceedings, should they be necessary. In the past, it was common for the complaints
procedure to be suspended as soon as legal proceedings were commenced, or where
there was a stated intention to commence proceedings. This should no longer happen.
(c) An apology, an offer of treatment or other redress is not an admission of negligence
(Compensation Act 2006, s 2).
(d) The purpose of the procedure is to satisfy complaints, rather than apportion blame
amongst staff, and it is separate from disciplinary procedures. A complaint may bring
the shortcomings of individual members of staff to the notice of the management of an
NHS body, which may then consider taking action in accordance with its internal
disciplinary procedures. Negligence amounting to gross misconduct may lead to
dismissal and/or a referral of the matter by the NHS body to an individual’s professional
body. However, a complainant should not assume that this will happen, and he may
wish to seize the initiative and bring the matter to the attention of the appropriate
professional body himself (see 5.11).
(e) There are various sources of information and bodies that will provide assistance
regarding the complaints procedure:
(i) Basic information as to how to complain and how the complaint will be dealt with
may be found on the NHS website (www.nhs.uk).
(ii) Each NHS Trust has its own complaints policy, and this is normally found on the
Trust’s own website. For example, the Surrey and Sussex Healthcare NHS Trust’s
‘Patient Complaints Management Policy and Procedure’ may be found at
www.surreyandsussex.nhs.uk/wp-content/uploads/2013/02/0384complaints.pdf.
(iii) There is a Patient Advice and Liaison Service (PALS) within each Trust, which is
staffed by NHS employees and volunteers. Its role is to provide confidential advice
and assistance to patients, their relatives, visitors to the hospital and staff
members, with the aim of resolving problems and concerns quickly, wherever
possible. It does not investigate formal complaints but it can provide advice as to
the complaints procedure, and it will refer complainants on to the Independent
Complaints Advocacy Service. The website of the National Network of NHS
Patient Advice and Liaison Services may be found at www.pals.nhs.uk, although
some individual PALS have their own websites.
(iv) The Independent Complaints Advocacy Service (ICAS) is an organisation which is
independent of the NHS. Its staff, known as advocates, can assist with all stages of
the complaints procedure, for example writing letters of complaint, contacting
third parties on the complainant’s behalf and attending meetings with him. Its
website may be found at www.seap.org.uk/icas.
(v) The Citizens Advice Bureau and NHS Direct can also provide help and assistance.
The complaints procedure involves two stages, local resolution and, if the complainant
remains dissatisfied, referral to the Health Service Commissioner. However, complaints may
be made to the Care Quality Commission or to the local Clinical Commissioning Group where
appropriate.
5.9.1 Local resolution

Local resolution is seen by the Government and the NHS Executive as the main thrust of the
complaints procedure. Complaints are most likely to be voiced to staff on the spot, and it is
these front-line staff or their departmental managers who are the people best placed to make
the initial response. The aim is to resolve problems and answer concerns of patients and their
families immediately and informally if possible, thereby reducing the need for legal
proceedings and the associated cost to the public purse.
Regulation 3 requires each NHS body to make arrangements for the handling and
consideration of complaints. These arrangements must be such as to ensure that
(a) complaints are dealt with efficiently;
(b) complaints are properly investigated;
(c) complainants are treated with respect and courtesy;
(d) complainants receive, so far as is reasonably practicable—
(i) assistance to enable them to understand the procedure in relation to complaints;
or
(ii) advice on where they may obtain such assistance;
(e) complainants receive a timely and appropriate response;
(f ) complainants are told the outcome of the investigation of their complaint; and
(g) action is taken if necessary in the light of the outcome of a complaint.
Each NHS body must designate a person, known as a ‘responsible person’ to be responsible
for ensuring compliance with the arrangements and, in particular, ensuring that action is
taken if necessary in the light of the outcome of the complaint. This will be the Chief
Executive Officer, although he may authorise others to act on his behalf. Each NHS body must
also designate a person as a ‘complaints manager’, to be responsible for managing the
procedures for handling and considering complaints. The responsible person and the
complaints manager may be the same person.
A complaint should be made within 12 months of the date the matter complained of occurred
or, if later, the date when it came to the notice of the complainant. However, the time limit
shall not apply where the NHS body is satisfied that the complainant had good reasons for not
making the complaint within the time limit and, notwithstanding the delay, it is still possible
to investigate the complaint effectively and fairly.
Unless a complaint is made orally and is resolved to the complainant’s satisfaction not later
than the next working day after the day on which the complaint was made, a complaint must
be dealt with in accordance with the procedures set out in the Regulations. This means that
the NHS body should:
(a) acknowledge the complaint not later than three working days after the day on which it
receives the complaint;
(b) investigate the complaint in a manner appropriate to resolve it speedily and efficiently,
and, during the investigation, keep the complainant informed, as far as reasonably
practicable, as to the progress of the investigation;
(c) as soon as reasonably practicable after completing the investigation, send a response to
the complainant setting out how the complaint has been considered, its conclusions, a
confirmation that it is satisfied that any necessary action has been taken or is proposed
to be taken, and details of the complainant’s right to take his complaint to the Health
Service Commissioner;
(d) provide the response within six months commencing on the day on which the
complaint was received, or such longer period as may be agreed by the NHS body and
the complainant, or set out in writing to the complainant the reasons why this has not
been possible and provide a response as soon as possible thereafter.
Each NHS body must maintain systems for monitoring complaints, and must prepare an
annual report which is made available to any person on request.
5.9.2 The Parliamentary and Health Service Ombudsman and the Public Service
Ombudsman for Wales
The Parliamentary and Health Service Ombudsman (‘the Ombudsman’) deals with
complaints arising in England about the NHS and other government departments and public
organisations (www.ombudsman.org); the Public Service Ombudsman for Wales

(www.ombudsman-wales.org.uk) deals with complaints about public services in Wales. There
are separate ombudsmen for Scotland and Northern Ireland.
The Ombudsman, who is independent of the NHS and the Government, will investigate
complaints where the NHS body has refused to investigate a complaint on the basis that it is
outside the time limit, or where a complaint has been dealt with by NHS complaints
procedure and the complainant is still dissatisfied. Complaints which have not been through
the local resolution process are unlikely to be considered by the Ombudsman. The complaint
should generally be made within one year of the event complained of, although there is
discretion to extend this limit in cases where there is good reason for the delay.
Where the Ombudsman finds in favour of the complainant, in accordance with the Principles
of Remedy, she will recommend that the health authority offers a remedy which will return the
complainant to the position he would have been in had the service provided to him been of
the proper standard, or compensate him appropriately where this is not possible.
The remedies which may be recommended by the Ombudsman include:
(a) an apology, an explanation, and acknowledgment of responsibility;
(b) remedial action, such as reviewing or changing a decision on the service given to the
complainant, revising published material, revising procedures to prevent recurrence of
that particular problem, training or supervising staff, or any combination of these;
(c) financial compensation.
Although the Ombudsman has no power to enforce her recommendations, they are generally
followed.
The Ombudsman publishes annual reports regarding her investigations, which are available
on the website.
5.10 PLANS FOR REFORM

In June 2003, the Chief Medical Officer (CMO) published his recommendations for reform of
the system for handling and responding to clinical negligence claims in a Consultation Paper
entitled Making Amends. The aim of the NHS Redress Act 2006 was to give effect to the
recommendations for an NHS Redress Scheme, which would provide those who had allegedly
suffered harm as a result of the negligence of the NHS with an alternative to legal proceedings.
Although no firm proposals were ever made, it was widely thought that the Scheme initially
would be targeted at straightforward lower value claims, probably up to a value of £20,000. In
the event, although the Scheme was introduced in Wales, it was not introduced in England. It
is now thought that the Scheme will not be implemented in England; instead, the
Government will adopt an approach similar to that for low value RTA, employers’ liability and
public liability claims (see Chapter 21) for low value clinical negligence claims.
5.11 DISCIPLINARY PROCEEDINGS

Those who have been injured or who have lost a loved one as a result of a clinical error may be
keen to see those responsible punished, and the solicitor will need to give advice regarding the
appropriate disciplinary procedures. A detailed consideration of the conduct of the
proceedings lies beyond the scope of this book.
5.11.1 Disciplinary proceedings against doctors

Doctors must be registered with the General Medical Council (GMC) in order to practise
medicine in the UK. The GMC has responsibility for investigating complaints about doctors,
and it can take action if the doctor’s fitness to practise is impaired due to any of the following
grounds:
(a) misconduct;
(b) poor performance;
(c) receipt of a criminal conviction or caution;
(d) physical or mental ill-health;
(e) determination by a regulatory body either in the British Isles or overseas.
The GMC’s procedures are divided into two separate stages: ‘investigation’ and ‘adjudication’.
At the investigation stage, cases are investigated to assess whether the matter is sufficiently
serious to warrant referral for adjudication. The adjudication stage consists of a hearing of
those cases which have been referred to a Fitness to Practise Panel.
A Fitness to Practise Panel may come to any of the following conclusions:
(a) the doctor’s fitness to practise is not impaired and no further action should be taken;
(b) the doctor’s fitness to practise is not impaired but he is required to give an undertaking,
eg to have further training or to work only under supervision;
(b) the doctor’s fitness to practise is not impaired but a warning should be issued;
(c) the doctor’s fitness to practise is impaired and –
(i) conditions should be placed on the doctor’s registration (for example, restricting
the doctor to certain areas of practise or stating that he must be supervised), or
(ii) the doctor’s name should be suspended from the medical register, or
(iii) the doctor’s name should be erased from the medical register.
An appeal may be made by either side within 28 days.
5.11.2 Disciplinary proceedings against nurses and midwives

The Nursing and Midwifery Council (NMC) is the regulatory body for nurses and midwives.
The NMC has a duty to investigate once an allegation has been made against a member to the
effect that his fitness to practise is impaired due to:
(a) misconduct;
(b) lack of competence;
(c) a conviction or caution;
(d) physical or mental ill-health; or
(e) where a different healthcare profession has already determined that he is unfit to
practise.
The sanctions which may be imposed at the end of the procedure are as follows:
(a) the issue of a caution;
(b) the removal of the practitioner from the register for a specified period, after which he
may apply for his name to be restored; or
(c) the removal of the practitioner from the register indefinitely.
5.12 CRIMINAL PROCEEDINGS

The CPS may bring a prosecution for manslaughter against a medical practitioner following
an incidence of gross clinical negligence which results in the death of a patient (see 17.3.3).
5.13 CONCLUSION
Clinical negligence claims are, in the main, more complex than personal injury claims and
should be handled only by those practitioners who have the required specialist skills. The
claimant’s chances of success are less than in personal injury claims, largely due to the
increased difficulties in establishing breach of duty (see the Bolam test) and causation.
The claimant’s solicitor’s job may be made more difficult by his client’s ambivalent attitude
towards taking action against medical practitioners, particularly where a relationship with
those practitioners is on-going. A sound knowledge of the NHS complaints procedure and the
procedures of the relevant disciplinary bodies is required.

The General Medical Council’s website: www.gmc-uk.org
The Care Quality Commission’s website: www.cqc.org.uk
The NHS Mandate: https://www.gov.uk/government/uploads/system/uploads/
attachment_data/file/127193/mandate.pdf.pdf
The NHS Constitution: http://www.nhs.uk/choiceintheNHS/Rightsandpledges/
NHSConstitution/Documents/2013/the-nhs-constitution-for-england-2013.pdf
The Handbook to The NHS Constitution: https://www.gov.uk/government/uploads/system/
uploads/attachment_data/file/152200/dh_132959.pdf.pdf
5.15 DIAGRAM – STRUCTURE OF THE NHS
Secretary of State/Department of Health
oversees
NHS England
oversees
provides funds
4 Regional offices
oversees commissions/
provides funds
27 NHS England local area teams
commissions/ oversees
provides funds
211 Clinical commissioning groups
Secondary care Primary care

NHS hospital trusts GPs
Foundation trusts Pharmacists
Mental health trusts Opticians
Care trusts Dentists
Commercial and voluntary sector Specialist services, such as
provides of services intensive care
caring role caring role
Patients
5.16 EXTRACT FROM THE NHS CONSTITUTION

Complaint and redress:
You have the right to have any complaint you make about NHS services acknowledged within
three working days and to have it properly investigated.
You have the right to discuss the manner in which the complaint is to be handled, and to
know the period within which the investigation is likely to be completed and the response
sent.
You have the right to be kept informed of progress and to know the outcome of any
investigation into your complaint, including an explanation of the conclusions and
confirmation that any action needed in consequence of the complaint has been taken or is
proposed to be taken.
You have the right to take your complaint to the independent Parliamentary and Health
Service Ombudsman or Local Government Ombudsman, if you are not satisfied with the way
your complaint has been dealt with by the NHS.
You have the right to make a claim for judicial review if you think you have been directly
affected by an unlawful act or decision of an NHS body or local authority.
You have the right to compensation where you have been harmed by negligent treatment.
The NHS also commits:
• to ensure that you are treated with courtesy and you receive appropriate support
throughout the handling of a complaint; and that the fact that you have complained will
not adversely affect your future treatment (pledge);
• to ensure that when mistakes happen or if you are harmed while receiving health care
you receive an appropriate explanation and apology, delivered with sensitivity and
recognition of the trauma you have experienced, and know that lessons will be learned
to help avoid a similar incident occurring again (pledge); and
• to ensure that the organisation learns lessons from complaints and claims and uses
these to improve NHS services (pledge).
Claims for Psychiatric Injury 87
CHAPTER 6
Claims for Psychiatric Injury
6.1 Introduction 87
6.2 Claims for nervous shock 87
6.3 Occupational stress 91
6.4 Claims under the Protection from Harassment Act 1997 96
6.5 Conclusion 97
LEARNING OUTCOMES
• explain what is meant by the term ‘nervous shock’
• identify whether a person is a primary or a secondary victim
• understand the control mechanisms that apply to claims brought by secondary
victims
• explain what must be established in order to make a claim for occupational stress.
6.1 INTRODUCTION
Not all accidents result in physical injury. Claims for psychiatric injury or illness have risen
markedly in recent years, and are usually awarded in a claim arising from an accident (so-
called ‘nervous shock ‘claims) or as a consequence of occupational stress. The purpose of this
chapter is to examine some particular issues that arise when dealing with these types of claim.
6.2 CLAIMS FOR NERVOUS SHOCK

There have been a number of high-profile nervous shock cases arising out of disasters such as
Hillsborough, which involved a crush at the Sheffield Wednesday FC stadium in 1989. In the
Hillsborough case, a number of claims were brought against the police by spectators and
relatives of the victims who were present at the stadium or who had seen the disaster
unfolding on the television (Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310).
Other claims were brought by police officers who had been on duty in the stadium and who
were traumatised by what they saw (White v Chief Constable of South Yorkshire [1999] 2 AC 455).
These cases establish certain ‘control mechanisms’ that limit liability for psychiatric injury.
6.2.1 What is nervous shock?

In order to claim for psychiatric injury there must be expert medical evidence that the
claimant has suffered a recognised psychiatric illness which is more than temporary grief,
fright or emotional distress. In recent years the courts have recognised a wide range of
psychiatric injuries, including chronic fatigue syndrome (Page v Smith [1996] AC 155),
pathological grief disorder (Vernon v Bosley [1997] 1 All ER 577) and post-traumatic stress
disorder (PTSD) (Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310). In
establishing whether a claimant has suffered a recognisable psychiatric illness, a medical
expert is likely to refer to two main systems of classification of psychiatric illnesses currently
used in the UK:
(a) the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association,
4th edn (DSM IV); and
(b) The World Health Organisation International Classification of Mental and Behavioural Disorders,
10th edn (ICD-10).
The most common psychiatric illness that arises is PTSD following a life-threatening
experience or exposure to the sudden death of a close relative, the symptoms of which are
listed at 2.2.12.
6.2.2 Primary and secondary victims

In order to bring a claim for negligently inflicted psychiatric illness, a person must fall into
one of two categories established by the House of Lords in Alcock v Chief Constable of South
Yorkshire Police [1992] 1 AC 310. Primary victims will normally be involved in the events as
participants, but it will be relatively rare for a primary victim directly involved in the events not
to suffer any physical injury as well. Secondary victims are normally witnesses of injury caused
to primary victims, and have not suffered physical injury themselves but have suffered
psychologically from what they saw or heard. The key importance of this classification
between primary and secondary victims is that if the claimant can show that he is a primary
victim then he is likely to be treated more favourably by the courts.
6.2.2.1 Primary victims

A primary victim must show that some personal injury (ie, physical injury or psychiatric
injury) was reasonably foreseeable as a result of the defendant’s negligence so as to bring him
within the scope of the defendant’s duty of care. No distinction should be made between a
physical or a psychiatric injury.
The case of Page v Smith [1996] AC 155 was the first time that the House of Lords had
considered a claim brought by a primary victim. The claimant’s car was involved in a collision
with a car driven by the defendant. The collision was not severe and the claimant suffered no
physical injuries, but he claimed damages on the basis that shortly after the accident he
suffered a recurrence of chronic fatigue syndrome from which he had suffered 20 years before.
The House of Lords held that as a participant in the accident he was a primary victim, and
therefore it was not necessary for him to show that the psychiatric harm he suffered was
foreseeable in a person of normal fortitude. It made no difference that the claimant was
predisposed to psychiatric illness – the normal ‘egg-shell skull’ rule applied so that the
defendant had to take his victim as he found him.
In Corr v IBC Vehicles [2006] EWCA Civ 331, the claimant brought proceedings under the Fatal
Accidents Act following the suicide of her husband, who had been badly injured in a factory
accident whilst employed by the defendant. He suffered PTSD which resulted in deep
depression, and some six years after the accident he committed suicide by jumping off the
roof of a multi-storey car park. The Court of Appeal held that the claimant did not need to
establish that at the time of the accident the deceased’s suicide had been reasonably
foreseeable, as the suicide flowed from the psychiatric illness for which the defendant was
admittedly responsible.
In Johnstone v NEI International Combustion Limited [2007] UKHL 39, the House of Lords rejected
claims by workers who had been negligently exposed to asbestos by the defendants and who
had developed clinical depression as a consequence of being told that they had pleural
plaques which indicated a risk of future illness. It was argued on behalf of the claimants that
they should be regarded as primary victims and should therefore be entitled to recover
damages regardless of whether or not psychiatric injury was a foreseeable consequence of the
defendants’ negligence. The House of Lords rejected this argument on the basis that the
illness had been caused by the fear of the possibility of an unfavourable event which had not
actually happened and was therefore not actionable.
6.2.2.2 Secondary victims

A secondary victim must show that it was reasonably foreseeable that a person of reasonable
fortitude would have suffered some psychiatric injury. Foreseeability of psychiatric injury is of
critical importance to secondary victims, as they will normally be outside the scope of persons
who might suffer foreseeable physical injury.
In addition to the test of reasonable fortitude, Alcock v Chief Constable of South Yorkshire Police
[1992] 1 AC 310 established that a secondary victim must satisfy three further control
mechanisms if he is to succeed in a claim for damages for psychiatric injury:
(a) A close tie of love and affection to the immediate victim. In Alcock, the claimants were various
relations of the immediate victims, some of whom had been present at the Hillsborough
football stadium and some of whom had watched the disaster unfold on television. The
House of Lords held that there is a rebuttable presumption of sufficiently close ties
between spouses, parents and children, but that in all other cases the closeness of the tie
had to be proved. One claimant had been present at the ground and witnessed the incident
in which his two brothers were killed, but his claim failed because he did not produce
evidence of a close tie of love and affection to his brothers. However, in a subsequent case,
damages were awarded to the half-brother of one of the Hillsborough victims because the
judge found evidence that he was particularly close to his half brother.
(b) Closeness in time and space to the incident or its aftermath. In Alcock, several claimants were not
present at the ground but went there subsequently to identify the bodies of their
relatives. The earliest had arrived between eight and nine hours after the accident,
which was held by the House of Lords not to be part of the immediate aftermath.
Subsequent decisions have seen a relaxation in the courts’ approach to what constitutes
the immediate aftermath. In Walters v North Glamorgan NHS Trust [2002] EWHC 321 (QB),
[2002] All ER (D) 65, the mother of a baby claimed psychiatric injury as a result of
witnessing her child’s decline and death due to misdiagnosis at the treating hospital.
The period from first onset of injury to death was 36 hours. The claimant issued
proceedings against the hospital for damages. The court found that although clearly not
a primary victim, she could succeed as a secondary victim if her psychiatric injury was
induced by shock as a result of the sudden appreciation by sight or sound of a horrifying
event or its immediate aftermath. The court found that the whole period of 36 hours
could be seen in law as a horrifying event, and the claimant was therefore entitled to
recover damages. In Galli-Atkinson v Seghal [2003] EWCA Civ 697, the claimant appealed
to the Court of Appeal following a decision dismissing her claim for nervous shock. The
facts of the case were such that the claimant was present at the immediate aftermath of a
road traffic accident at which her daughter had died. At that time she was told of the
death of her daughter, but did not see the body until some hours later in the mortuary. It
was only when she viewed the body that the claimant broke down and suffered the
psychiatric condition that formed the basis of her claim. On appeal, the Court found
that, provided events retained sufficient proximity, the subsequent viewing of the body
could be seen as part of the aftermath of the incident, and on that basis the claim could
succeed. In Taylor v Novo Ltd [2013] EWCA Civ 194, the claimant’s mother suffered a
head injury at work which the claimant did not witness. Some three weeks later, the
claimant witnessed her mother die as a result of a pulmonary embolism which was
caused by the original injury. The claimant brought a claim for damages for psychiatric
injury which succeeded at first instance. However, the Court of Appeal reversed the
decision, holding that the lack of physical and temporal connection between the sudden
and unexpected death and the original accident meant that the claim had to fail.
(c) The claimant must suffer ‘nervous shock’ through his own unaided senses. In Alcock, the House of
Lords confirmed that the secondary victim must establish that his illness was induced
by a shock or, in the words of Lord Ackner, ‘the sudden appreciation by sight or sound of
a horrifying event, which violently agitates the mind’. Some of the claimants in Alcock
had watched the events at Hillsborough unfold via live television broadcasts. This was
held to be insufficient to satisfy the test of proximity, because watching the events on
television was not felt to be equivalent to witnessing the events at first hand.
6.2.2.3 Employee victims

In White v Chief Constable of South Yorkshire [1999] 2 AC 455, the claimants were police officers who
were severely traumatised by their duties at the aftermath of the Hillsborough Stadium disaster.
They claimed compensation for their psychiatric injury against the police service. It was
conceded that none of the claimants had been exposed to any personal physical danger, but
their case was that the Chief Constable was vicariously liable for the negligence of the police
officer who caused the catastrophe by admitting the crowd in to the pens. The claimants argued
that by the negligent creation of the horrific situation, the Chief Constable was in breach of his
duty not to expose the claimants to unnecessary risk of injury and was consequently liable for
their injuries. The House of Lords rejected their claims and confirmed that unless employees
can show a risk of physical injury (and therefore fall into the category of primary victims), they
will be treated as secondary victims and subject to the control tests established in Alcock (see
6.2.2.2). Part of the reason for this was undoubtedly public policy – since all the claims for
compensation by relatives of the victims had already been rejected, it could – and did – cause a
public furore if police officers were compensated in less deserving cases. The effect of this
decision is that the Alcock test applies to all psychiatric injury claims where personal injury is not
reasonably foreseeable; employees do not get special consideration.
In Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146, it was established that an employee
who suffered psychiatric illness after seeing a workmate electrocuted close to him could
recover damages against his employer as a primary victim because of the risk to himself of
physical injury. The court decided that the ambit of the regulations was not limited to physical
electrocution. The statute gave protection to employees from kinds of injury which could be
foreseen as likely to occur when the electrical cable or equipment was allowed to become a
source of danger to them. This included mental illness caused to the claimant by the shock of
seeing his workmate electrocuted in circumstances where he was fortunate to escape
electrocution himself.
Contrast the above case with Hunter v British Coal [1999] QB 89, CA. The claimant was a driver
in a coalmine. His vehicle struck a hydrant, causing it to leak. With the help of a workmate, he
tried to stop the flow but failed. He left the scene in search of help. When the claimant was 30
metres away, the hydrant burst, and he was told that someone was injured. On his way back to
the scene, he was told that the workmate who had been helping him had died. The claimant
thought he was responsible and suffered nervous shock and depression. He brought
proceedings for damages against his employers. It was held that a claimant who believes he
has been the cause of another’s death in an accident caused by the defendant’s negligence
could recover damages as a primary victim if he was directly involved as a participant in the
incident. However, a claimant who was not at the scene could not recover damages as a
primary victim merely because he felt responsible for the incident. In this case, the claimant
was not involved in the incident in which the workmate died as he was 30 metres away and
suffered psychiatric injury only on being told of the death some 15 minutes later. Therefore,
there was not sufficient proximity in time and space with the incident. Also, the illness
triggered by the death was not a foreseeable consequence of the defendant’s breach of duty of
care, as it was an abnormal reaction to being told of the workmate’s death, triggered by an
irrational feeling that the claimant was responsible.
6.2.2.4 Professional rescuers

Before White v Chief Constable of South Yorkshire and Others [1999] 2 AC 455 it had been thought
that rescuers were automatically to be treated as primary victims. However, in White the House
of Lords rejected the police officers’ claims for psychiatric injury, stating that there was no
authority for placing rescuers in a special position. The decision was based on two factors:
(a) the problem of applying a definition to delineate the class of rescuers that could claim;
and
(b) the fact that, if the law did allow the claims to succeed, the result would be unacceptable
to the ordinary person, who would think it wrong that police officers should have the right
to compensation for psychiatric injury out of public funds when bereaved relatives did
not. Fairness demanded that the appeal be allowed, and the claims were therefore
dismissed.
A rescuer who is not exposed to danger of physical injury, or who does not believe himself to
have been so exposed, is therefore classified as a secondary victim who must satisfy the control
mechanisms set out in Alcock before he can recover damages for pure psychiatric injury.
In Stephen John Monk v (1) PC Harrington Ltd (2) HTC Plant Ltd (3) Multiplex Constructions Ltd [2008]
EWHC 1879 (QB), the claimant had been working as a self-employed foreman on site during
the construction of Wembley Stadium. While he was working, a temporary platform fell 60
feet onto two fellow workers. One of the men died from his injuries shortly after the accident,
the other suffered a broken leg. Having arrived at the scene of the accident, the claimant tried
to help both men and, specifically, to comfort the man with the broken leg. Thereafter, as a
result of the accident, he began to suffer from symptoms of PTSD, which ultimately caused
him to stop work. The defendant admitted liability for the accident, and the claimant claimed
damages for psychiatric injury on the grounds that his involvement in the accident was such
that he fulfilled the necessary conditions to recover compensation as a rescuer; and even if he
was unable to bring himself within the rescuer category of primary victim, he could
nevertheless establish the necessary proximity to the accident, which he believed he had
caused, in order that he could be regarded as an unwilling participant.
While it was accepted by the court that the claimant had provided significant help and
comfort to the injured men, and that this assistance entitled him to be regarded as a rescuer,
the claimant could not show on the evidence that he had reasonably believed that he was
putting his own safety at risk. He could not therefore establish himself as a primary victim on
the basis of his acts as a rescuer. As for the second ground advanced by the claimant – that he
was a primary victim as an unwilling participant – it was held that he had to show that his
injuries were induced by a genuine belief that he had caused another person’s injury or death,
and there was no reasonable basis for such a belief in this case. Therefore, it was not
reasonably foreseeable that someone in his position would suffer psychiatric injury as a result
of such a belief.
6.2.2.5 Bystanders as victims
A ‘mere bystander’ will be unable to claim damages for pure psychiatric injury as he will be
unable to satisfy control mechanisms for a secondary victim outlined at 6.2.2.2 above. This is
well illustrated by the case of McFarlane v EE Caledonia Ltd [1994] 2 All ER 1, which arose out of
the Piper Alpha oil rig disaster. The claimant had been off duty on a support vessel some 550
metres away when he witnessed the explosions and consequent destruction of the oil rig,
which resulted in the death of 164 men. His claim failed as he was not himself in any danger,
and it had not been shown that it was reasonably foreseeable that a man of ordinary fortitude
would have suffered a psychiatric injury as a result of what he saw.
6.3 OCCUPATIONAL STRESS

6.3.1 The meaning of occupational stress
Stress is a feature of nearly every workplace, and indeed is often seen as desirable to motivate
and encourage people. However, too much pressure can lead to psychological problems and
physical ill-health.
In trying to come to some workable definition of ‘occupational stress’, Hale LJ, in Hatton v
Sutherland; Barber v Somerset County Council; Jones v Sandwell Metropolitan Borough Council; Bishop v
Baker Refractories Ltd [2002] EWCA Civ 76, [2002] 2 All ER 1, referred to three documents
which she said the Court had found particularly helpful:
(a) Stress in the Public Sector – Nurses, Police, Social Workers and Teachers (1988) defines stress as
‘an excess of demands upon an individual in excess of their ability to cope’.
(b) Managing Occupational Stress: a Guide for Managers and Teachers in the School Sector (Education
Service Advisory Committee of the Health and Safety Commission, 1990) defines stress
as ‘a process that can occur when there is an unresolved mismatch between the
perceived pressures of the work situation and an individual’s ability to “cope”’.
(c) The HSE booklet Stress at Work (1995) defines stress as:
The reaction people have to excessive pressures or other types of demand placed upon them. It arises
when they worry that they can’t cope ...
Stress is not the same as ill health. But in some cases, particularly where pressures are intense and
continue for some time, the effect of stress can be more sustained and far more damaging, leading to
longer term psychological problems and physical ill health.
In Hatton v Sutherland, the judge concluded that harmful levels of stress are more likely to occur
in situations where people feel powerless or trapped, and are therefore much more likely to
affect people at junior levels; and, secondly, stress is a psychological phenomenon which can
lead to either physical or mental ill-health, or both.
6.3.2 Duty of care

In Petch v Commissioners of Customs and Excise [1993] ICR 789, it was accepted that the ordinary
principles of employers’ liability applied to claims for psychiatric illness arising from
employment. Although the claim in Petch failed, Colman J, in Walker v Northumberland County
Council [1995] 1 All ER 737, applied the same principles in upholding the claim. In this case,
Mr Walker was a conscientious but overworked manager of a social work area office, with a
heavy and emotionally demanding work-load of child abuse cases. Although he complained
and asked for help and for extra leave, the judge held that his first mental breakdown was not
foreseeable. There was liability, however, when he returned to work with a promise of extra
help, which did not materialise, and he experienced a second breakdown only a few months
later.
Petch and Walker have both been cited with approval by the Court of Appeal in Garrett v Camden
LBC [2001] EWCA Civ 395.
6.3.3 Reasonable foreseeability, breach of duty and causation – the Hatton guidelines
In Hatton v Sutherland [2002] EWCA Civ 76, the Court of Appeal set out guidance for courts to
follow in occupational stress cases which was approved by the House of Lords in Barber v
Somerset [2004] UKHL 13. Hale LJ set out the guidance as follows:
(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness
or injury arising from the stress of doing the work the employee is required to do. The ordinary
principles of employer’s liability apply.
(2) The threshold question is whether this kind of harm to this particular employee was reasonably
foreseeable: this has two components (a) an injury to health (as distinct from occupational
stress) which (b) is attributable to stress at work (as distinct from other factors).
(3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the
individual employee. Because of the nature of mental disorder, it is harder to foresee than
physical injury, but may be easier to foresee in a known individual than in the population at
large. An employer is usually entitled to assume that the employee can withstand the normal
pressures of the job unless he knows of some particular problem or vulnerability.
(4) The test is the same whatever the employment: there are no occupations which should be
regarded as intrinsically dangerous to mental health.
(5) Factors likely to be relevant in answering the threshold question include:

(a) The nature and extent of the work done by the employee. Is the workload much more
than is normal for the particular job? Is the work particularly intellectually or emotionally
demanding for this employee? Are demands being made of this employee unreasonable
when compared with the demands made of others in the same or comparable jobs? Or
are there signs that others doing this job are suffering harmful levels of stress? Is there an
abnormal level of sickness or absenteeism in the same job or the same department?
(b) Signs from the employee of impending harm to health. Has he a particular problem or
vulnerability? Has he already suffered from illness attributable to stress at work? Have
there recently been frequent or prolonged absences which are uncharacteristic of him? Is
there reason to think that these are attributable to stress at work, for example because of
complaints or warnings from him or others?
(6) The employer is generally entitled to take what he is told by his employee at face value, unless he
has good reason to think to the contrary. He does not generally have to make searching
enquiries of the employee or seek permission to make further enquiries of his medical advisers.
(7) To trigger a duty to take steps, the indications of impending harm to health arising from stress
at work must be plain enough for any reasonable employer to realise that he should do
something about it.
(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in
the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of
the harm which may occur, the costs and practicability of preventing it, and the justifications
for running the risk.
(9) The size and scope of the employer's operation, its resources and the demands it faces are
relevant in deciding what is reasonable; these include the interests of other employees and the
need to treat them fairly, for example, in any redistribution of duties.
(10) An employer can only reasonably be expected to take steps which are likely to do some good: the
court is likely to need expert evidence on this.
(11) An employer who offers a confidential advice service, with referral to appropriate counselling or
treatment services, is unlikely to be found in breach of duty.
(12) If the only reasonable and effective step would have been to dismiss or demote the employee,
the employer will not be in breach of duty in allowing a willing employee to continue in the job.
(13) In all cases, therefore, it is necessary to identify the steps which the employer both could and
should have taken before finding him in breach of his duty of care.
(14) The claimant must show that that breach of duty has caused or materially contributed to the
harm suffered. It is not enough to show that occupational stress has caused the harm.
(15) Where the harm suffered has more than one cause, the employer should only pay for that
proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is
truly indivisible. It is for the defendant to raise the question of apportionment.
(16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of
the chance that the claimant would have succumbed to a stress related disorder in any event.
Young v Post Office [2002] EWCA Civ 661 was decided after Hatton v Sutherland and considered
whether it is the responsibility of the claimant to inform the employer if he is unable to cope,
and whether the claimant will be contributorily negligent if he fails to do so. The claimant had
worked for the Post Office for a number of years and had been promoted to workshop
manager. He had no direct line manager, and when a new computer system was introduced he
was expected to familiarise himself with it without formal training. The claimant began to
show signs of stress and eventually suffered a nervous breakdown, and subsequently took four
months off work to recover. Arrangements were made to allow the claimant to return to work
gradually and on a flexible basis. When the claimant returned to work he quickly shouldered
the burden of the management position that had led to his breakdown. Seven weeks later the
claimant was again unable to continue due to stress and left. The defendants contended that
they had done all that they could in offering a less stressful work pattern for the claimant. On
appeal, the Court found for the claimant, as it was plainly foreseeable that there might be a
recurrence if appropriate steps were not taken when the claimant returned to work, and the
employer owed a duty to take such steps. Although the employer had told the claimant that he
could adopt a flexible approach to his work, the reality was that he was a hardworking and
conscientious employee, and it was foreseeable that he would quickly revert to overworking,
and the employer had a duty to ensure that help was on hand. Regarding the allegation of
contributory negligence, the Court found that this was not relevant in this case and would be
unusual but was ‘theoretically possible’.
The High Court decision in Barlow v Broxbourne Borough Council [2003] EWHC 50 (QB), [2003]
All ER (D) 208 (Jan), provides an example of the application of the principles set out by the
Court of Appeal in Hatton v Sutherland. B had initially been employed as a gardener and had
obtained several promotions to become senior operations manager in 1993. B’s claim was
based on two broad grounds: systematic victimisation and ‘general’ bullying. He alleged that
from approximately 1997 he had been deliberately victimised and bullied by senior members
of the council’s staff, which had caused him to suffer emotional distress and psychological
injury. The alleged ‘victimisation’ and ‘bullying’ had included receipt of lengthy letters
detailing B’s non-performance, threats of disciplinary action and, at times, abusive language.
Medical experts for each party were agreed that B had suffered a moderately severe depressive
episode. Consequently, B had been unable to continue working for the council. B argued that
he had been exposed to such stress at work that he had developed a stress-related illness
which had prevented him from remaining in the council’s employ. However, B’s claim failed
on the following grounds:
(a) The actions of the council and its employees did not give rise to a foreseeable risk of
injury. Hale LJ’s guidelines in Hatton v Sutherland applied. In the circumstances, it was
not necessary for the court to consider causation issues.
(b) The council could not have reasonably known or foreseen that the conduct complained
of by B would have caused him harm.
(c) Nothing in B’s behaviour, at the time, had given any cause for concern about the risk of
psychiatric illness.
This judgment assists the defendant by confirming that the alleged incidents of bullying and/
or harassment must be considered in context. In the context of the claimant’s working
environment, the use of bad language (which was not disputed at trial) and the actions of his
line managers in highlighting areas of non-performance, did not amount to victimisation or
bullying.
In Intel Corporation (UK) Limited v Daw [2007] EWCA Civ 70, Pill LJ approved of the guidance in
Hatton but warned courts against following it too slavishly:
A very considerable amount of helpful guidance is given in Hatton. That does not preclude or excuse the
trial judge either from conducting a vigorous fact-finding exercise, as the trial judge in this case did, or
deciding which parts of the guidance are relevant to the particular circumstances. The reference to
counselling services in Hatton does not make such services a panacea by which employers can
discharge their duty of care in all cases. The respondent, a loyal and capable employee, pointed out the
serious management failings which were causing her stress and the failure to take action was that of
management. The consequences of that failure are not avoided by the provision of counsellors who
might have brought home to management that action was required. On the judge’s findings, the
managers knew it was required.
This approach was endorsed by the Court of Appeal in Dickins v O2 plc [2008] EWCA Civ 1144,
when the Court upheld the trial judge’s decision to award the claimant damages for injury
caused by occupational stress.
Ms Dickins’ job involved the preparation of management and regulatory accounts. She found
one particular audit in February 2002 ‘extremely stressful’. She had a short holiday but
returned to work exhausted, and on 11 March 2002 she asked her line manager for a different
and less stressful job. As there were no vacancies available at the time, Ms Dickins was told
that the matter would be reviewed in three months. On 23 April 2002 she requested a six-
month sabbatical. She said she was stressed out, was having a real struggle to get out of bed in
the mornings and to get to work on time because she felt so drained of physical and mental
energy, and she did not know how long she could carry on before being off sick. She was
advised to access O2’s confidential counselling helpline, and was told that her request for a
sabbatical would be considered. On 30 May 2002 Ms Dickins repeated her concerns during
her appraisal and was referred to occupational health, albeit with some delay. Before any
appointment was fixed she suffered a breakdown and never returned to work.
The Court of Appeal upheld the judge’s finding that psychiatric injury was reasonably
foreseeable from 23 April 2002 onwards. There was sufficient indication of impending harm
to health, given the claimant’s description of the seriousness of her symptoms and the
important background context that these problems had not come ‘out of the blue’. The fact
that the claimant had been mentioning difficulties over a period of time was significant, given
that she was usually a conscientious employee.
The Court of Appeal also agreed with the trial judge that the defendant employer was in
breach of duty in not sending her home and in not making an immediate referral to
occupational health.
More recently, in Connor v Surrey County Council [2010] EWCA Civ 286, the claimant, a head
teacher in a primary school, was awarded damages against the defendant local education
authority for its failure to have regard to the effect of its conduct on her health or to give her
the support she needed, which resulted in her suffering severe depression. The defendant
raised in its defence the issue of foreseeability of injury, and argued that there were no signs of
impending harm to the claimant’s health, particularly as she had not been absent from work
prior to her breakdown. However, the judge held that the fact that the claimant had not been
absent from work was irrelevant; the risk was apparent from comments made by the claimant
and others, and action should have been taken to respond to it. The decision at first instance
was upheld by the Court of Appeal.
It seems clear from these recent decisions that, in an appropriate case, it may not be necessary
to show that the claimant has previously suffered a breakdown if his words and actions in the
recent past would alert a reasonable employer to the risk of illness. Furthermore, whereas
Hatton had indicated that an employer who offered a confidential counselling service was
unlikely to be found in breach of duty, the recent cases cast doubt over whether the provision
of such a service will exonerate an employer.
6.3.4 Causation
Having established a breach of duty, it is still necessary to prove that the particular breach of
duty caused the harm. Where there are several different possible causes (as will often be the
case with stress-related illness), the claimant may have difficulty proving that the employer’s
breach of duty was one of them. This will be a particular problem if, as in Garrett v Camden LBC
[2001] EWCA Civ 395, the main cause was a vulnerable personality which the employer knew
nothing about. However, the employee does not have to prove that the breach of duty was the
sole cause of his ill-health: it is enough to show that it made a material contribution (see
Bonnington Castings Ltd v Wardlaw [1956] AC 613). Expert medical evidence will be crucial in
determining causation.
6.3.5 Damages
The Hatton guidelines (see 6.3.3) suggested that an employer found liable for psychiatric
injury caused by occupational stress should pay only for that proportion of the injury caused
by his wrongdoing and not for any part of the injury caused by other factors. However, in
Dickins v O2, the Court of Appeal was critical of the trial judge’s decision to reduce the total
damages by 50% for the other non-tortious factors which had contributed to the claimant’s
illness. In the Court’s view, albeit obiter, the injury was indivisible, and so an employer should
be liable for the whole injury if it is proved that the tort has made more than a minimal
contribution to the injury.
Although further guidance by the Court of Appeal on the whole issue of apportionment can be
expected, for the time being it seems that no reduction should be made for the other stresses
which contributed to a claimant’s illness. A more appropriate route may be for defendants to
argue that particular heads of damage (eg loss of future earnings) should be discounted to
reflect the fact that a claimant might in any event have suffered a breakdown at some time in
the future.
6.4 CLAIMS UNDER THE PROTECTION FROM HARASSMENT ACT 1997

The Protection from Harassment Act 1997 (PHA 1997) provides an alternative course of
action for employees who experience harassment in the workplace caused by a colleague.
Section 1 of the PHA 1997 provides that ‘a person must not pursue a course of conduct: (a)
which amounts to harassment of another, and (b) which he knows or ought to know amounts
to harassment of another’.
Although there is not a specific definition of harassment, the PHA 1997 does stipulate that
references to harassing a person include alarming or causing the person distress; a course of
conduct must involve at least two occasions; and that conduct includes speech (s 7).
In contrast to a claim in common law, under the PHA 1997 a claimant needs only to prove that
he has experienced ‘anxiety’ as a result of the harassment. This is a significantly lower hurdle
than establishing ‘a recognisable psychiatric condition’ required for a successful non-physical
injury claim under established common law principles. In addition, a claimant has six years to
bring a claim, rather than three years (s 6).
In Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34 the House of Lords held that to
succeed under the PHA 1997, a claimant must show that the conduct complained of is
‘oppressive and unacceptable’ as opposed to merely unattractive, unreasonable or regrettable.
The primary focus is on whether the conduct is oppressive and unacceptable, albeit the court
must keep in mind that it must be of an order which ‘would sustain criminal liability’.
In Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 the Court of Appeal allowed the claimant’s
appeal in a harassment at work claim as the trial judge had applied the wrong legal test.
The claimant was an electrician employed by the defendant for two years before she went on
long-term sick leave with depression after which she never returned to work. She alleged that
she was victimised by her supervisor for some two to three months during which her
supervisor had made it clear that she did not like her, had singled her out from other
employees for no reason and had ‘made her life hell’.
The trial judge decided that the claimant’s allegations, even though unchallenged by the
defendant, did not amount to harassment under the PHA 1997. Relying on the Court of
Appeal decision in Conn v Council and City of Sunderland [2007] EWCA Civ 1492 the trial judge
held that this conduct would not justify any criminal prosecution and dismissed the claim.
The claimant’s appeal to the Court of Appeal was allowed. The Court of Appeal agreed that the
conduct must be grave to constitute harassment under the PHA 1997 but the judge had failed
to apply the primary legal test set out by the in House of Lords in Majrowski. Under that
primary test the judge was required to consider whether the conduct had crossed the
boundary from the ‘unattractive and unreasonable’ to conduct which is ‘oppressive and
unacceptable’.
On the undisputed evidence of the claimant, the Court of Appeal held that this was such a case
where the conduct was extraordinary and that boundary had been crossed. The trial judge had
undervalued the evidence. The claimant’s account was of victimisation, demoralisation and
reduction of a substantially reasonable and usually robust woman to a state of clinical
depression. This was, the Court of Appeal felt, to have self-evidently crossed the line into
conduct which is ‘oppressive and unreasonable’.
6.5 CONCLUSION
The main points to bear in mind when bringing a claim for psychiatric injury are as follows:
• To claim damages for nervous shock there must be evidence of a recognised psychiatric
illness.
• It is necessary to identify whether the client is a primary victim (directly involved in the
accident) or a secondary victim (a witness/bystander).
• If the client is a secondary victim, he must satisfy the control mechanisms laid down in
Alcock to establish closeness to the victim and the incident itself.
• There are no special control mechanisms in claims for occupational stress – the
ordinary principles of employers’ liability apply.
• The injury to the individual employee must have been reasonably foreseeable.
• In order to establish a breach of duty, it will be necessary to identify the steps the
employer could and should have taken to prevent harm.
• The provision of a counselling service will not automatically exonerate an employer.

Butterworths Personal Injury Litigation Service
Marshall, Compensation for Stress at Work (Jordans)
Law Commission Consultation Paper, Liability for Psychiatric Illness 1995 (Law Com No 137)
www.hse.gov.uk/stress
Limitation of Actions 99
CHAPTER 7
Limitation of Actions
7.1 Introduction 99
7.2 The limitation period 99
7.3 Date of knowledge 100
7.4 Persons under a disability 105
7.5 Limitation in assault cases 105
7.6 Claims following fatal accidents 106
7.7 Other periods of limitation 107
7.8 The court’s discretion to override the limitation period 107
7.9 Dealing with limitation issues in practice 110
7.10 Conclusion 112
7.11 Claimant’s limitation checklist 113
LEARNING OUTCOMES
• set out the law as it relates to limitation in cases involving a claim for personal injuries
and a claim following a fatal accident
• appreciate that the court may use its discretion to disapply the limitation period, and
set out the factors which it takes into consideration
• apply the law to real-life situations.
7.1 INTRODUCTION
The law relating to limitation is fairly complex and can cause difficulties for the unwary. Each
year, there is a steady flow of case law relevant to this area, partly because clients seek legal
advice far too late, but also because solicitors sometimes breach the duty of care owed to their
clients by failing to ensure that proceedings are issued within the limitation period.
Consequently, one of the first priorities for the claimant’s solicitor will be to identify when the
limitation period ends and, having established this, to mark the file with that date and enter it
into the diary system.
The principal statute dealing with limitation issues is the Limitation Act 1980 (LA 1980).
For the purpose of limitation in a personal injury claim, ‘personal injury’ includes any disease
and any impairment of a person’s physical or mental condition (s 38).
7.2 THE LIMITATION PERIOD

Under ss 11 and 12 of the LA 1980, where a claimant claims damages for negligence, nuisance
or breach of duty, and that claim consists of or includes a claim for personal injuries, the
claimant must normally commence his claim (ie the claim form must be issued, or received by
the court in order to be issued) within three years from:
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured (s 11(4); see 7.3 below).
When calculating the three-year period (generally referred to as the ‘primary’ limitation
period), the day on which the cause of action accrued is excluded (s 2). Therefore, in a simple
road traffic accident case, generally the claimant has three years from the incident (excluding
the date of the incident) in which to commence the claim. If the last date of this period is a
Saturday, Sunday or Bank Holiday, the time is extended until the next day when the courts are
open and the claim can be issued.
Where the three-year period has expired, the claimant is not prohibited from commencing
proceedings, although if he does so, the defendant may seek to have the claim struck out on
the grounds that it is statute barred. However, the claimant may apply to the court for the
limitation to be disapplied under s 33 of the LA 1980 (see 7.8).
7.3 DATE OF KNOWLEDGE

A claimant may work in an environment which exposes him to injurious dust particles such as
asbestos dust or coal dust. It may be many years before an illness or disease manifests itself,
and it may be some time later before the claimant realises what the cause of his illness is.
Similarly, in a clinical negligence context, a patient may be fully aware of his pain and
suffering but assumes that it is entirely due to an underlying illness, rather than due to
negligent advice from or treatment by a doctor. In such circumstances, it is not unusual for a
claimant to issue proceedings many years after the expiry of the three-year limitation period
and to seek to rely on a later date of knowledge under s 14 of the LA 1980. Where he seeks to
do so, the burden of proof rests with the claimant.
7.3.1 Section 14 of the Limitation Act 1980

Section 14 of the LA 1980 defines ‘date of knowledge’ for the purpose of ss 11 and 12 as
follows:
(1) In sections 11 and 12 of this Act references to a person’s date of knowledge are references to the
date on which he first had knowledge of the following facts—
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged
to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the
identity of that person and the additional facts supporting the bringing of an action
against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence,
nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is
in question would reasonably have considered it sufficiently serious to justify his instituting
proceedings for damages against a defendant who did not dispute liability and was able to
satisfy a judgment.
(3) For the purposes of this section a person’s knowledge includes knowledge which he might
reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert
advice which it is reasonable for him to seek;
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only
with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where
appropriate, to act on) that advice.
7.3.2 The meaning of knowledge and the starting of the clock

In Halford v Brookes [1991] 3 All ER 559, it was stated that knowledge does not mean ‘know for
certain and beyond the possibility of contradiction’, but rather ‘know with sufficient
confidence to justify embarking on the preliminaries to issue of proceedings, such as

submitting a claim to the proposed defendant, taking legal advice and other advice and
collecting evidence’.
Consequently, the date of a claimant’s knowledge is the date on which the claimant first knew
enough of the various matters set out in s 14(1) to begin to investigate whether he has a claim
against the defendant. For example, where a specialist told the claimant that he had an
inhaled disease or industrial injury and the only source for this could be his work for the
defendants (Corbin v Penfold Metalizing [2000] Lloyd’s Rep Med 247), or where the claimant was
told by a community worker that his deafness could have been caused by his work in a mill (Ali
v Courtaulds Textiles Limited [1999] Lloyd’s Rep Med 301).
It should be noted that knowledge will be present even though the claimant’s psychological
condition leads to a state of denial. In TCD v (1) Harrow Council (2) Worcester County Council (3)
Birmingham City Council [2008] EWHC 3048 (QB), the clamant sought damages in relation to
child abuse suffered from 1975 and 1981. The fact that her psychological or mental state ‘may
have meant that she was in denial and/or could not face reliving her abuse for the purposes of
the claim’, was not relevant for the purposes of determining her knowledge (although it was
relevant in relation to the exercise of discretion under s 33 – see 7.8).
Although it may be possible to identify a specific date when it is clear that the claimant had
the requisite knowledge, the court may determine that the claimant should have acquired this
knowledge at an earlier date.
7.3.3 Actual and constructive knowledge

Where a claimant wishes to rely on a later date of knowledge, he will seek to fix that date as
being the date when he actually acquired the requisite knowledge. This is known as ‘actual
knowledge’. The defendant, though, may argue that the claimant had actual knowledge of
these matters at an earlier date and/or should have obtained knowledge at an earlier date, and
that the claimant is thereby fixed with ‘constructive knowledge’.
7.3.3.1 Actual knowledge

When considering the question of actual knowledge, claimants will often seek to rely on a
date when they were told that their injury or illness was caused by the defendant’s actions,
usually by a doctor or a solicitor. However, the court may determine that a claimant had actual
knowledge at an earlier date.
In Spargo v North Essex District Health Authority [1997] 8 Med LR 125, the court held that a
subjective test was to be applied, namely ‘What did the claimant know?’ and not ‘What would
a reasonable layman realise?’ The facts of the case were that the claimant had been diagnosed
as suffering from selective brain damage and was compulsorily detained in hospital from
1975 until 1981. The proceedings were not issued until 1993, although the claimant had first
consulted solicitors in 1986. At this time she did not know whether she had a case but felt
clear in her own mind that her suffering was attributable to a mistaken diagnosis. It was held
on appeal that because the claimant was clear in her own mind that a connection existed
between her suffering and the misdiagnosis when she first sought legal advice in 1986, it was
not necessary for the court to enquire further whether a rational lay person would have been
willing to say that he knew of a connection between the suffering and the misdiagnosis
without first obtaining a medical confirmation.
In Ministry of Defence v AB and others [2012] UKSC 9, the Supreme Court looked at limitation as a
preliminary issue in the context of nine conjoined cases. The claimants, all veteran
servicemen, claimed that they had suffered numerous illnesses as a result of exposure to
ionising radiation during nuclear tests carried out by the British Government in the 1950s. At
first instance, it was held that actual and constructive knowledge arose only when each
veteran had been made aware of the Rowland Study in 2007, which was the first credible
scientific evidence that the exposure could cause the illnesses complained of. Although,
applying that test, none of the cases was statute barred, five of the veterans had already
formed a strong belief that exposure to radiation had caused their illnesses, and this was
sufficient to amount to actual knowledge. These cases would have been statute barred had the
court not exercised its discretion under s 33 to disapply the limitation period (see 7.8 below).
The Court of Appeal and the Supreme Court determined that the wrong approach had been
taken in relation to the date of knowledge, and that the discretion to disapply the limitation
period should not be exercised. The claimants had argued that they had not known that their
illnesses were attributable to the acts or omissions of the defendant more than three years
prior to issue of proceedings; they might have believed this to be the case, but the Act required
knowledge. However, the Court of Appeal unanimously and the Supreme Court by a majority
held that a reasonable belief (ie more than a fanciful suggestion) that the defendant was
responsible amounted to knowledge. All that was required was sufficient knowledge to justify
further investigation and commencement of the preliminaries to making a claim.
For the purposes of establishing knowledge, it was irrelevant that the claimants were still not
in a position, after many years of investigation and campaigning, to establish causation.
However this, and the lapse of time, led to the Court determining that time should not be
extended under s 33.
It is possible that a claimant may be fixed with actual knowledge of certain facts even if a
medical expert has advised him that this was not the case. In Sniezek v Bundy (Letchworth) Ltd
(2000) LTL, 7 July, the Court of Appeal ruled that the claimant had the knowledge from the
date when he went to complain to his doctor of severe symptoms but was assured that there
was no link between the illness and his work. The Court decided that the claimant knew that
his severe throat symptoms, which had persisted for five years, were a significant injury, and
that he had always attributed them to his work. The fact that a doctor subsequently advised
him that this was not the case, did not change the fact that he had actual knowledge.
7.3.3.2 Constructive knowledge

Where a claimant is not fixed with actual knowledge, he may be fixed with constructive
knowledge in accordance with s 14(3) of the LA 1980.
In accordance with s 14(3) (see 7.3.1), a claimant cannot argue that he did not have the
requisite knowledge due to his ignorance of the law, or because he failed to make further
enquiries or seek appropriate advice. The test is an objective one: knowledge which would
have been obtained by a reasonable man in the same circumstances as the claimant will be
imputed to the claimant. So, there is an assumption that a reasonable man who had suffered a
significant injury would be sufficiently curious about the cause of the injury that he would
seek expert advice (see Adams v Bracknell Forest BC [2004] UKHL 29), unless there were reasons
why a reasonable man in his position would not have done so (see Johnson v Ministry of Defence
[2012] EWCA Civ 1505).
The objective nature of the test was confirmed by the House of Lords in A v Hoare [2008]
UKHL 6, when it was said that the correct approach was to ask what the claimant knew about
his injury, add any ‘objective’ knowledge which might be imputed to him under s 14(3) and
then ask whether a reasonable person with that knowledge would have considered the injury
sufficiently serious to justify his instituting proceedings. Once the court has determined what
the claimant knew and what he should be treated as having known, the actual claimant drops
out of the picture, and judges should not consider the claimant’s intelligence. Consequently,
the effect of any psychological injuries resulting from the breach of duty upon what the
claimant could reasonably have been expected to do is irrelevant when considering
constructive knowledge. (However, this will be considered by the court when deciding
whether to exercise its discretion under s 33 to disapply the limitation period – see 7.8.)
In Forbes v Wandsworth Health Authority [1997] QB 402, the claimant, who suffered from poor
circulation, underwent surgery for a by-pass operation. This was not a success and a further
by-pass was performed the next day. Unfortunately, the second operation was too late to be
successful and the claimant was told that it was necessary to amputate his leg to prevent
gangrene, to which he agreed. The sole allegation was that the authority had been negligent
not to perform the second operation sooner. The claimant did not seek advice until seven
years after the limitation period had expired. The Court of Appeal held by a majority that the
claimant was deemed to have constructive knowledge as soon as he had time to overcome the
shock of the injury, take stock of his disability and seek advice.
In Kew v Bettamix Ltd ( formerly Tarmac Roadstone Southern Ltd) & Others [2006] EWCA Civ 1535, the
claimant issued proceedings in respect of injuries suffered from his exposure to vibrating
equipment during his employment with the defendants. As early as 1991 the claimant had
experienced numbness in his fingers, but had thought this was due to his age. On 29 March
2000, following a routine occupational health care assessment, he was informed by means of
a letter from an occupational physician that his symptoms might be attributable to his
exposure to vibration at work. The Court held that it was necessary for the claimant to have
sufficient knowledge to make it reasonable for him to seek to acquire further knowledge of
the link between his injury and his prior working conditions. He did not have such knowledge
until 29 March 2000, when he received the physician’s letter. Although he was not told about
the causative link at that time, he knew that there was a real possibility that his working
conditions had caused his symptoms, and a reasonable man would have investigated further.
He was therefore fixed with constructive knowledge at that date.
In Pearce v Doncaster MBC [2008] EWCA Civ 1416, the Court of Appeal considered the
knowledge of a man who claimed damages from the local authority for its failure to take him
into care when he was a child. The claimant’s actual knowledge arose when he saw his care
records, shortly before issuing proceedings. However, constructive knowledge took place
several years earlier, when he had requested his files but had failed to take up the appointment
to view them, even though the authority had offered to pay his train fare.
In Whiston v London Strategic Health Authority [2010] EWCA Civ 195, the claimant suffered from
cerebral palsy caused at the time of his birth, but he was highly intelligent and lived a full life.
The claimant’s mother had told him that he had been delivered by forceps and that he had
been starved of oxygen at birth, but she did not tell him that she thought the junior doctor
attending her may have been at fault until 2005, when she was prompted to do so by a
deterioration in the claimant’s condition. Proceedings were commenced in 2006, when the
claimant was 32 years old, more than 11 years after the expiry of the limitation period.
Although the Court of Appeal accepted that a person who suffers from a disability at birth is
more likely to be accepting of his disability, and therefore less likely to ask questions, than a
person who suffers an injury during adult life, it held that a reasonable man in his position
would have wanted to know more about the circumstances of his birth and would have asked
his mother, particularly as she was a nurse and a trained midwife. Consequently, it concluded
that the claimant had constructive knowledge of the facts which he discovered from his
mother in 2005 no later than when he was in his early 20s, in about 1998.
It is not necessary for the court to specify an exact date when constructive knowledge took
place. In White v EON and Others [2008] EWCA Civ 1436, the claimant claimed damages for
vibration white finger (VWF) caused whilst working for the defendant between 1962 and
1996. He argued that he first had the requisite knowledge in the summer of 2003, when he
saw an advert from a claims company describing the symptoms of VWF. At first instance, the
judge dismissed his claim on the basis that he knew he had a significant injury and it was
reasonable for him to have obtained medical advice which would have led to his linking that
injury to his employment. Consequently, he had constructive knowledge at the end of 1996.
On appeal, the claimant’s argument that it was illogical for the judge to have plucked the end
of 1996 as the date of constructive knowledge, because nothing significant happened at that
point to have led to that knowledge, was dismissed by the Court of Appeal. The Court held
that the end of 1996 was the latest time at which the claimant could be fixed with constructive
knowledge, as the claimant’s symptoms had reached a plateau by that time.
The issue of constructive knowledge of the identity of the defendant was considered in
Henderson v Temple Pier Co Ltd [1998] 1 WLR 1540. In this case, it was held that, where a
claimant instructed solicitors to bring a claim for damages, on the proper construction of
s 14(3) of the LA 1980 the claimant was fixed with constructive knowledge of facts which the
solicitor ought to have acquired.
7.3.4 The injury was ‘significant’

In order to determine whether the claimant was aware that the injury was significant, further
guidance is provided in s 14(2). This states that an injury is significant if the claimant would
reasonably have considered it sufficiently serious to justify instituting proceedings against a
defendant who did not dispute liability and was able to satisfy a judgment.
In McCoubrey v Ministry of Defence [2007] EWCA Civ 17, the Court of Appeal considered the case
of a soldier who, during a training exercise in 1993, had been deafened by a thunderflash
which had been thrown negligently into his trench. The claimant had known almost
immediately that he had suffered the injury, and this had been confirmed by medical
examinations. However, he had continued working in the army without complaint until 2003,
when he was told that he could not accompany his unit to Iraq because of his disability. At that
stage, he became aware of the consequences of the injury, consulted solicitors and issued
proceedings. It was held that time had started to run in 1993, as soon as the claimant had
become aware of his deafness. When determining whether an injury is ‘significant’, the court
should consider the gravity of the injury and not its effect, or perceived effect, on the personal
life or career of the claimant.
If an injury is significant, the fact that the symptoms attributable to it subsequently became
worse is irrelevant for purpose of determining when knowledge took place (see Brooks v J & P
Coates (UK) Ltd [1984] 1 All ER 702). The date of knowledge is not affected by the fact that the
consequences turned out to be more serious than was initially thought.
Moreover, in cases of multiple illnesses arising from the same course of events, time starts to
run as soon as the claimant has knowledge of the first injury that could be said to be
significant, irrespective of whether he might learn of other injuries much later.
7.3.5 Attributable to the act or omission

‘Attributable’ means ‘capable of being attributable to’ and not necessarily ‘caused by’. The
knowledge of the ‘act or omission’ does not necessarily include knowledge that the act or
omission is actionable in law. For example, if the claimant has asthma but does not know that
this is due to his working conditions, time does not start to run. However, if he is aware that
his asthma is capable of being attributed to those working conditions, time starts to run even
though he may not know that his employer may have been to blame.
In Dobbie v Medway Health Authority [1994] 1 WLR 1234, CA, Mrs Dobbie had surgery to remove
a lump in her breast. It was only during the operation that the surgeon took the decision to
perform a mastectomy (removal of the breast), as he believed the lump was cancerous. In fact,
the lump was not cancerous and the mastectomy had been unnecessary. Mrs Dobbie accepted
at the time that the surgeon had acted reasonably and it was her good fortune that the lump was
not cancerous. It was only several years later, when she heard about a similar case, that Mrs
Dobbie took legal advice and commenced proceedings. The Court of Appeal held that she knew
of the removal of her breast and the psychological and physical harm which followed within
months of the operation, and she knew it to be significant. She also knew that her injury was
the result of an act or omission of the health authority and, therefore, time began to run even
though she did not appreciate until later that this act or omission may have been negligent.
7.3.6 The identity of the defendant

In most cases the claimant will know who is responsible for his injuries, but s 14(1)(c) will
assist a claimant where there is a delay in identifying the defendant, eg in the case of a hit and
run motor accident (assuming an application is not made to the Motor Insurers’ Bureau –
see 3.4).
The identity of the defendant may prove problematic in cases involving corporate groups. In
Simpson v Norwest Holst Southern Ltd [1980] 2 All ER 471, the claimant worked on a building site,
and his contract of employment stated that he was employed by Norwest Holst Group.
However, this did not identify his employer because at least four companies made up Norwest
Holst Group, including Norwest Holst Ltd and Norwest Construction Co Ltd, and the
claimant’s payslips stated simply that his employer was ‘Norwest Holst’. In the circumstances,
the Court of Appeal found for the claimant, on the basis that neither the contract nor the
payslips identified the employer, and it was not reasonable to expect the claimant to request
further particulars of the identity of his employer prior to the expiry of his primary limitation
period. For a case on similar facts, see Rush v JNR (SMD) Ltd (CA, 11 October 1999), where it
was held that knowledge of a number of potential defendants was not sufficient knowledge
for the purpose of s 14.
7.4 PERSONS UNDER A DISABILITY

Under s 38(2) of the LA 1980, a person is under a disability while he is an infant (a person who
has not attained the age of 18) or lacks capacity (within the meaning of the Mental Capacity
Act 2005) to conduct legal proceedings.
Under s 28(6), while a person is under a disability, he may bring a claim at any time up to three
years from the date when he ceased to be under a disability. Consequently, where a child is
injured, limitation does not start to run until he reaches his 18th birthday and it expires on
his 21st birthday.
Where a person is disabled within the meaning of the Mental Capacity Act 2005, the start of
the limitation period is delayed only if he was so disabled when the cause of action first
accrued. If the disability comes into existence after that date, time continues to run. However,
under s 33(3) of the LA 1980 (see 7.8) the court will have regard to any period or periods of
disability when it considers its discretion to disapply the limitation period.
7.5 LIMITATION IN ASSAULT CASES

Until January 2008, the limitation period in relation to acts of deliberate assault, including
indecent assault, followed the House of Lords’ decision in the case of Stubbings v Webb [1993]
AC 498, which involved child abuse at a children’s home. The House of Lords held that
deliberate assault did not fall under s 11(1) actions for ‘negligence, nuisance or breach of
duty’ but under s 2, and therefore the correct limitation period was six years from the date of
the cause of action (or the age of 18 in the case of a child) rather than three years. However,
there was no discretion to disapply the period under s 33, which led to unfairness in cases
where the victim had been a child or otherwise vulnerable at the time of the assault and, as a
result, lacked the psychological capacity to bring a claim.
The House of Lords departed from this approach in R v Hoare [2008] UKHL 6, the facts of
which were as follows. In 1988, the claimant had been subjected to a serious sexual assault by
Hoare, who was subsequently convicted of attempted rape and sentenced to life
imprisonment. The claimant had not brought civil proceedings against him within the six-
year limitation period as Hoare did not have the financial means to pay any damages that the
court might award. However, in 2004, whilst on day release from prison, Hoare purchased a
lottery ticket and won over £7 million. When the claimant heard of the defendant’s windfall,
she commenced proceedings against him, seeking to rely on the court’s discretion to
disapply the limitation period under s 33. The House of Lords heard the claimant’s appeal
against the decision that her claim was statute barred, together with four other cases, all
relating to the abuse of children in children’s homes.
Their Lordships held that Stubbings had been wrongly decided, and they extended the meaning
of claims under ‘negligence, nuisance or breach of duty’ to include deliberate assault.
Consequently, the limitation period in assault cases was three years. They remitted the matter
to the judge, for him to reconsider whether the court was able to exercise its discretion under
s 33 to disapply this limitation period (see 7.8).
7.6 CLAIMS FOLLOWING FATAL ACCIDENTS

Claims on behalf of the deceased’s estate and on behalf of his dependants are generally
brought together. Nevertheless, there are slight differences in how limitation is dealt with.
7.6.1 Claims under the Law Reform (Miscellaneous Provisions) Act 1934
Where a claim is brought on behalf of the deceased’s estate, s 11(5) of the LA 1980 provides
that if the injured person died before expiration of the limitation period of three years as set
out in s 11(4), the limitation period is three years from:
(a) the date of death; or
(b) the date of the personal representative’s knowledge,
whichever is the later. If there is more than one personal representative and they have
differing dates of knowledge, time runs from the earliest date of knowledge (s 11(7)).
If the injured person died after the expiry of the primary limitation period under s 11(4)
without commencing proceedings for the personal injuries he had suffered, or if he died
before the expiration of the primary limitation period and his personal representatives failed
to commence proceedings within three years of death or date of later knowledge, the claim is
statute-barred. However, in both instances, the court does have a general discretion to
override the above provisions and disapply the limitation period under s 33 of the LA 1980
(see 7.8).
7.6.2 Claims under the Fatal Accidents Act 1976

In relation to claims brought by the dependants of the deceased, s 12(2) of the LA 1980
provides that if the injured person died before the expiration of the limitation period of three
years as set out in s 11(4), the limitation period is three years from:
(a) the date of death; or
(b) the date of knowledge of the person for whose benefit the claim is brought,
whichever is the later.
Where there is more than one dependant, the limitation period is applied separately to each
one, taking into account the date of knowledge of each dependant. Moreover, if any
dependant is a child, time does not start to run for that dependant until he reaches 18, and the
claim will not become time-barred until he is 21.
If the dependants fail to commence their claim within the three-year limitation period, an
application can be made under s 33 to disapply the limitation period.
Where the injured person failed to commence a personal injury claim within three years of the
cause of action and subsequently died as a result of his injuries, a claim under the FAA 1976
cannot be brought by the dependants. This is because s 12(1) of the LA 1980 provides that a
claim under the FAA 1976 cannot be brought if death occurred when the person injured could
no longer maintain a claim and recover damages in respect of the injury, whether because of a
limitation problem or for any other reason. In other words, the dependants of the deceased
are not in a better position than the deceased would have been. When considering whether a
claim brought by the deceased person would have been time-barred, no account may be made
of the possibility that the court would have exercised its discretion under s 33 to disapply the
limitation period. However, the court may exercise its discretion to disapply the primary
limitation period in respect of the dependants’ action. See s 12(1) of the LA 1980.
7.7 OTHER PERIODS OF LIMITATION

Although in the vast majority of personal injury cases the three-year rule will apply, it is
possible that a special rule applies, for example in regard to claims relating to aircraft under
the Carriage by Air Act 1961 or the Warsaw Convention, or relating to vessels used for
navigation under the Maritime Conventions Act 1911 or the Merchant Shipping Act 1995. In
these cases, the limitation period is generally two years.
The most common form of special rule is in respect of contributions between tortfeasors
under the Civil Liability (Contribution) Act 1978, where no claim to recover a contribution
may be brought after the expiration of two years from the date on which the right accrued.
This is generally the date on which judgment was given against the person who is seeking the
contribution, or the date when he pays or agrees to pay compensation.
7.8 THE COURT’S DISCRETION TO OVERRIDE THE LIMITATION PERIOD

Section 33 of the LA 1980 gives the court a wide and unfettered discretion to disapply the
three-year limitation period. Section 33(1) provides that:
If it appears to the court that it would be equitable to allow an action to proceed having regard to the
degree to which—
(a) the provisions of section 11 or 11A or 12 of this Act prejudice the plaintiff or any person whom
he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person
whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any
specified cause of action to which the action relates.
The onus rests upon the claimant to show why the limitation period should be disapplied
(Halford v Brookes [1991] 3 All ER 559).
Under s 33(3), the court is required to have regard to all the circumstances of the case, and it
will attempt to balance the needs of the parties by seeking to avoid prejudice caused to the
claimant by depriving him of the right to continue with the claim, or prejudice caused to the
defendant by allowing the matter to continue when he has been deprived of the ability to
defend himself.
The court is specifically directed to six factors, which are outlined below:
(a) the length and reasons for the delay on the part of the claimant;
(b) the effect of any delay on the cogency of the evidence;
(c) the conduct of the defendant following the date of the cause of action;
(d) the duration of any disability (within the meaning of the Mental Capacity Act 2005)
suffered by the claimant after the cause of action arose;
(e) the conduct of the claimant after he became aware that he might have a claim against
the defendant;
(f ) the steps taken by the claimant to obtain medical, legal or other expert advice, and the
nature of any advice received.
‘Delay’ in s 33(3)(a) and (b) is the delay since the expiry of the limitation period. However, the
court may consider the overall delay when having regard to all the circumstances of the case.
See McDonnell & Another v Walker [2009] EWCA Civ 1257 and Cairn-Jones v Tyler [2010] EWCA Civ
1642.
Guidance in relation to s 33(3)(a) was provided by the Court of Appeal in Coad v Cornwall and
Isles of Scilly Health Authority [1997] 1 WLR 189, CA. The Court held that it must apply a
subjective test when determining why the claimant had delayed, the length of the delay and
whether the reason was good or bad. There was no requirement for the claimant to provide a
‘reasonable’ explanation.
When considering s 33(3)(b), the extent to which evidence is less cogent, the Court of Appeal
highlighted the importance of written evidence when memories of witnesses are unreliable
due to the lapse of time (see Farthing v North East Essex Health Authority [1998] Lloyd’s Rep Med
37, CA). In 1981, the claimant had had a hysterectomy which was negligently performed, but
proceedings were not issued until 1995. When considering her application under s 33, the
court found that due to the lapse of time a number of the witnesses had died, or had moved
abroad and could recall little of the events in question. However, the Court of Appeal further
found that because there was considerable evidence available in the form of the medical
records and a letter from the surgeon to the claimant’s GP written shortly after the operation,
there would be little need for reliance on memory alone and consequently the appeal should
be allowed.
In TCD v Harrow Council and Others (see 7.3.2), it was argued on behalf of the claimant that she
had been unable to confront some aspects of the abuse to the extent that would be necessary
for the purposes of litigation, and that she had delayed proceedings until her children were
older. Nevertheless, the judge repeated what was said in Hoare (see 7.5), that not everyone who
brings a late claim for damages for sexual abuse, however genuine his or her complaint, can
expect the court to exercise the s 33 discretion favourably. He refused to exercise his
discretion in relation to the claims against two of the authorities on the grounds that the long
delay meant that evidence was not forthcoming and the defendants were therefore severely
prejudiced. (Discretion was not exercised in relation to the third claim due to the weakness of
the claim.)
In relation to s 33(3)(c), where the court is satisfied that the defendants have brought upon
themselves the prejudice that they claim to suffer, that should be taken into account and the
prejudice should be significantly discounted. In the case of Hammond v West Lancashire Health
Authority [1998] Lloyd’s Rep Med 146, CA, the defendants claimed prejudice to their case as
they had destroyed the deceased’s x-rays after three years had elapsed. The Court held that the
destruction of the x-rays was a policy implemented by the defendants, and which had no
regard for the time limits of the LA 1980. Consequently, although the prejudice caused to
their case should still be taken into account, it would be significantly discounted.
These factors are guidelines only, and the court is entitled to take into account any other
matter which it considers to be relevant. For example, the time of notification of the claim to
the defendant is of extreme importance in ascertaining prejudice, although there is no
specific reference to this in s 33. In addition, the court is entitled to consider the ultimate
prospects of the claim being successful. In TCD v Harrow Council and Others (see above), the
judge refused to grant discretion in relation to the case against Worcester County Council on
the grounds that the claim had no realistic prospects of success. (Also see Forbes v Wandsworth
Health Authority at 7.3.3.2).
In the case of Hoare (see 7.5), the House of Lords remitted the matter to the judge to
reconsider the application of s 33 in accordance with the opinions of their Lordships. In A v
Hoare [2008] EWHC 1573 (QB), the parties agreed that the main reason why the claimant had
not commenced proceedings within the limitation period was because the defendant had
been impecunious and, because he had been serving a life sentence, this was unlikely to
change. She had commenced proceedings in 2004, almost 14 years after expiry of the three-
year limitation period, principally because she had learned that the defendant had won £7
million on the lottery. It was also agreed that there was no reported authority on the court
being asked to exercise its discretion under s 33 on the grounds that the defendant was
impecunious. However, the judge determined that this was a relevant factor when considering
the exercise of the discretion to disapply the limitation period. In doing so, he took into
account the fact that the defendant’s own actions were the cause of his impecuniosity. The
judge found in favour of the claimant and exercised his discretion under s 33. (The full
judgment in this case may aid understanding of the application of s 33.)
Where the proceedings are brought against the defendant outside the limitation period as a
result of the negligence of the claimant’s solicitor, and the claim is not allowed to proceed, the
claimant may have a claim against his own solicitor. It has been argued by defendants that the
fact that the claimant has a cast-iron claim against his own solicitor provides an
overwhelming reason why the limitation period should not be disapplied; the claimant will
not be prejudiced because he can pursue an alternative claim against his solicitor (rather than
the defendant). However, although the ability to claim against the solicitor is a factor for the
court to bear in mind, it is not an absolute bar against disapplying the limitation period.
The court considered this issue in Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419.
In this case, solicitors issued proceedings 49 days outside of the limitation period. On appeal,
the court found that the district judge at first instance was wrong to treat the claimant’s good
claim against his own solicitors as justification for refusing to exercise a discretion under s 33.
The better view was that the existence of a claim against his own solicitors was a relevant
factor in weighing the degree of prejudice suffered by the defendant in not being able to rely
on the limitation period as a defence. To that end, it would always be relevant to consider
when the defendant first had notification of the claim. On the facts of the case, the judgment
was set aside and the court exercised its discretion under s 33, as it was unlikely that the
defendants were caused any appreciable prejudice and it was equitable to allow the claim to
continue allowing for all of the circumstances of the case.
However in McDonnell v Walker (see above), the Court of Appeal refused to disapply the
limitation period as the defendant had been forensically disadvantaged by a substantial
period of inexcusable delay.
It has also been argued by defendants that the loss of the limitation defence itself, and the
subsequent requirement to pay damages, is a prejudice which must be taken into account by
the court when considering the exercise of the s 33 discretion. In Cain v Francis; McKay v
Hamlani [2008] EWCA Civ 1451, both road traffic accident claims, the Court of Appeal
considered the so-called ‘windfall defence’, which arises where the defendant has no defence
other than one based on limitation due to the claimant’s solicitors failing to issue proceedings
on time. In each case, the defendant had admitted liability but, in the course of negotiating
damages, the claimant’s solicitors had missed the limitation deadline. In Cain, where there
was a delay of just one day, the judge refused to exercise his discretion; in McKay, the delay was
one year, but the judge exercised his discretion and allowed the case to proceed. In order to
establish a consistency of approach, as opposed to a ‘lottery for litigants’, the Court of Appeal
dealt with both cases together.
The Court of Appeal held that the defendant had a right to a fair opportunity to defend himself
and had a complete procedural defence under s 11, which would remove the obligation for
him to pay damages. However, fairness and justice meant that the obligation to pay damages
should be removed only if the passage of time had significantly damaged the defendant’s
opportunity to defend himself. Parliament could not have intended the financial
consequences for the defendant to be a consideration relevant to the exercise of discretion
under s 33. The important factor is whether the defendant is able to defend himself, and
therefore it would always be important to consider when the defendant was notified of the
claim against him, and whether it was still possible for him to investigate the claim and gather
evidence. This judgment has brought clarity to this area, and is likely to result in the court
exercising its discretion under s 33 in more claims which were issued late but where the
defendant’s ability to defend himself is not prejudiced.
7.9 DEALING WITH LIMITATION ISSUES IN PRACTICE

Failure to issue proceedings within the limitation period is a major source of negligence
claims against solicitors. Although this chapter includes the law and procedure relevant to an
application under s 33 to override the limitation period (see 7.8 above), prevention is better
than cure. It is therefore essential that the claimant’s solicitor establishes a routine of
checking and rechecking the limitation period on the files for which he is responsible. There
may also be many other files for which he is not responsible, but which may pass through his
hands on a regular basis. Such files are often the source of limitation problems, as one
solicitor may assume (wrongly) that the responsibility for checking limitation resides with
someone else, and the date of limitation may go unnoticed. To avoid this, the solicitor should
adopt a routine of checking for limitation on every file in which he is involved.
Needless to say, as the expiry of the limitation period provides the defendant with a
significant, although not always watertight defence, those acting for defendants should
always keep a watchful eye open for limitation issues.
7.9.1 Initial instructions

At the first interview, the claimant’s solicitor should note the date of the cause of action and
calculate the limitation period from this date. This can be verified by checking, for example,
the relevant hospital A&E notes, the employer’s accident report book, or police reports. If he
is satisfied that there is sufficient time for him to investigate the matter and commence
proceedings within the limitation period, he should mark the file with the expiry date and
enter the date into the file management system, to ensure that limitation does not become a
problem at a later stage.
If the limitation period has already expired, the solicitor will need to take account of this fact
when carrying out the risk assessment. Where there appear to be no grounds for relying on a
later date of knowledge or persuading the court to exercise its discretion under s 33, the client
should be advised accordingly. Carlton v Fulchers (a Firm) [1997] PNLR 337, CA, provides a
valuable illustration as to how a solicitor can be found to be negligent due to a failure to be
aware of limitation problems. In this case, even though the claimant did not consult the
solicitor until after the three-year limitation period had expired, the solicitor was held liable
due to his failure to advise of the possibility of an application under s 33.
Where the primary limitation period has expired and there are good arguments relating to
later knowledge and/or s 33, the claimant’s solicitor should issue proceedings without further
delay. He may delay the service of the claim form and follow the procedure as set out in 7.9.2.
In clinical negligence cases, where there is a possibility of public funding, further delays
resulting from applying for such funding must be avoided, and therefore the solicitor should
apply for emergency assistance from the Community Legal Service.
7.9.2 Protective proceedings and standstill agreements

The court does not have the power to extend the limitation period before it has expired, so in
circumstances where the claimant’s solicitor has insufficient time to investigate the matter
and carry out the steps set out in the relevant pre-action protocol before time runs out, the
options available to him to secure his client’s position are:
(a) obtain the defendant’s agreement not to plead a limitation defence;
(b) enter a standstill agreement with the defendant; or

(c) commence protective proceedings.
Obtaining the defendant’s agreement not to plead a limitation defence effectively places the
parties in the position they would be in if proceedings were commenced within the limitation
period. However, as many defendants would not be prepared to enter into such an agreement,
the remaining options are more likely.
Where the parties enter a standstill agreement, the defendant agrees not to rely on a
limitation defence from a specified date, usually the date of the agreement, until he serves
notice on the claimant that he wishes to restart the clock. This has the effect of freezing time
at the specified date. Generally, agreements specify that a month’s notice must be given by the
defendant. The case of Gold Shipping Navigation Co SA v Lulu Maritime Ltd [2009] EWHC 1365
(Admlty), regarding a shipping dispute, demonstrates how important it is to take care when
drawing up such an agreement. In that case, clumsy drafting almost prevented one party from
pursuing its claim.
The claimant’s solicitor may initiate protective proceedings in order to safeguard his client’s
position. The steps which should be taken are as follows:
(a) The claim form should be issued, which will stop the clock for limitation purposes, but
should not be served upon the defendant. Under CPR, r 7.5(2), where it is to be served
within the jurisdiction, it must be served within four months of being issued. This
provides the claimant’s solicitor with some time to investigate the matter and comply
with the protocol. The particulars of claim must be served upon the defendant within 14
days after service of the claim form (CPR, r 7.4(1)(b)), but it too must be served within
four months of the claim form being issued (CPR, r 7.4(2)).
(b) The claimant’s solicitor should contact the defendant and notify him of the situation
without delay. The date when the defendant first became aware of the claim or potential
claim will be a relevant factor if the court is asked to consider whether the time limit
should be disapplied under s 33.
(c) Both parties should then follow the relevant protocol. However, there may not be time
to follow the protocol to the letter, eg there may not be time to allow the defendant three
months to investigate the matter.
(d) Where time allowed for service of the claim form is about to expire, the claimant’s
solicitor should make an interim application to the court for an extension of the time
limit relating to service (CPR, r 7.6). The application must be made in accordance with
Part 23 and supported by evidence. It is vital that this application is made within the
four months allowed for service of the claim form, as the powers of the court to grant an
extension where the application is made after the expiry of this period are limited to
when the court has been unable to serve the claim form, the claimant has taken all
reasonable steps to serve it but has been unable to do so and, in either case, the
application for the extension has been made promptly (CPR, r 7.6(3)).
(e) Where an application is made within the four-month time period, it is likely that the
court will grant an extension of time for the service of the claim form. If so, it will also
make directions in order to manage the case properly.
7.9.3 Commencing proceedings

Rule 16.4(a) of the CPR states that the particulars of claim should include a concise statement
of the facts on which the claimant relies. It therefore follows that where a claim is issued
outside the primary limitation period, the particulars of claim should, where relevant, include
a statement that the claimant relies on a later date of knowledge, and the date should be
specified.
It will be for the claimant to prove the later date of knowledge, and therefore this issue should
be addressed in the witness statements of the claimant and any other witness who can give
evidence on this point.
In practice, where there is a limitation problem and the parties have discussed this prior to
commencement, the claimant’s solicitor will deal with the limitation issue in the particulars
of claim. However, if the matter has not been discussed before issue, some solicitors acting
for claimants will not pre-empt a defence by raising the limitation problem in the particulars
of claim, on the basis that it is not in their client’s interests to do so. If the defendant is not
aware of the existence of the rules relating to limitation, or does not notice that the limitation
period has expired, he may admit the claim.
7.9.4 The defence

The defendant’s solicitor should carefully check each particulars of claim for limitation
problems. Where the claim form was issued outside the primary limitation period, he will
need to address the issue in the defence. Where the claimant has relied on a later date of
knowledge and the defendant seeks to rely on an earlier date of knowledge, whether actual or
constructive, he should give details.
The defendant will have to prove any earlier date of knowledge he seeks to rely on. It is
unlikely that he will be able to call witnesses of his own in this regard; rather, he will be
obliged to extract the necessary information from the claimant and any other witness during
cross-examination.
7.9.5 Dealing with limitation as a preliminary issue

In most cases, the limitation problem will be dealt with as a preliminary issue. The defendant
should consider bringing the issue to a head either by applying for the claim to be stayed
under CPR, r 3.1(f ) or, in a clear case, by applying for summary judgment under CPR,
r 24.2(a)(i). The claimant should respond by giving notice of his intention to ask the court to
exercise its discretion to disapply the limitation period under s 33. Both parties should
address the matter fully in the supporting witness statements. This will enable the court to
consider the matter before trial.
If the defendant does not bring the matter to the court’s attention by making an application,
the claimant’s solicitor should consider doing so by making an application under s 33.
Whilst the courts will normally seek to deal with limitation as a preliminary issue wherever
feasible, there will be circumstances where it is not appropriate to do so. In the case of J, K & P
v Archbishop of Birmingham & Trustees of the Birmingham Archdiocese of the Roman Catholic Church
[2008] LTL, 21 August, which involved the alleged victims of child sexual abuse, the court
held that it was not appropriate due to the large overlap of evidence and the additional stress
on the victims having to give their evidence twice.
7.10 CONCLUSION
Practitioners must be alert to limitation issues and maintain a good working knowledge of the
key sections of the LA 1980. The courts’ interpretation of the statutory provisions,
particularly in relation to actual and constructive knowledge and the discretion to disapply the
limitation period, is something of a moveable feast, and therefore practitioners must keep an
eye out for relevant case law.
Sound case management processes and an exemplary diary system are essential for claimants’
solicitors. There is claimant’s limitation checklist at 7.11 below.
7.11 CLAIMANT’S LIMITATION CHECKLIST

Initial interview – check the limitation date. Has
the limitation period expired?
Yes. Can C rely on a later date of No. Is the limitation period

knowledge or s 33? about to expire?
No. Advise client No. Mark the file/enter

accordingly. into file management
systems to ensure
problems do not arise
Yes. Notify the defendant and in the future.
issue the claim form without
further delay.
Yes:
obtain defendant’s agreement not
to plead limitation defence; or
enter standstill agreement with
defendant; or
commence protective proceedings.
Address the limitation issue in the particulars of claim.

Consider making an application for limitation to be dealt with
as a preliminary issue.
The First Interview 115
CHAPTER 8
The First Interview

8.2 Funding 115
8.3 Urgent matters 116
8.4 Advising the client 117
8.5 The client’s proof of evidence 118
8.6 Welfare benefits 123
8.7 Rehabilitation, early intervention and medical treatment 124
8.8 Conclusion 125
8.10 Overview of matters to be considered at the first interview 126
LEARNING OUTCOMES
• identify the important matters that must be dealt with during the first interview
• identify any urgent action that needs to be taken
• take a proof of evidence.
8.1 INTRODUCTION
The first interview is the cornerstone of the solicitor/client relationship, and it is therefore
worthwhile making the effort to get it right. The Law Society’s Practice Note on initial
interviews, dated 6 October 2011, contains useful guidance on this topic and may be obtained
from The Law Society website. Reference should also be made to Skills for Lawyers, which
deals with how to conduct an interview. The interview will normally last at least an hour. The
client should tell his own story, and the solicitor will often complete a long and detailed
accident questionnaire, prior to drafting a proof of evidence. Detailed preparation at this
stage will save a great deal of time later. The matters that should be considered in preparation
for this first interview are examined below.
You should note that conduct requirements, such as checking for conflicts of interest and
obtaining evidence of identity, are not dealt with in this book, but should be strictly followed.
8.2 FUNDING
Many people are wary of solicitors’ charges, and are reluctant even to approach a solicitor in
order to enquire about making a personal injury or clinical negligence claim. Consequently,
some firms offer a free, fixed fee or reduced cost initial interview, in which they can give
preliminary advice about the viability of the claim and provide information about costs and
funding options.
Should the solicitor be instructed in relation to the matter, in accordance with Outcome 1.13
of the SRA Code of Conduct 2011, he must ensure the client receives, at the time of
engagement, the best information possible about the likely overall cost of the matter. This
includes information about funding options, disbursements which may arise and potential
liability for inter parties costs. Funding is discussed in more detail in Chapter 9.
If an urgent matter, such as a limitation issue, comes to light during the first interview, the
solicitor should bear in mind the question of funding prior to making lengthy or expensive
investigations on the client’s behalf.
8.3 URGENT MATTERS

If an urgent matter comes to light during the first interview, the solicitor should bear in mind
the question of funding prior to making lengthy or expensive investigations on the client’s
behalf, and should consider making an application for emergency public funding if
appropriate.
8.3.1 Limitation
Limitation is discussed in detail in Chapter 7. At the first interview in a personal injury or
clinical negligence claim, it may become apparent that:
(a) the three-year primary limitation period is about to expire (see 7.2). If so, the solicitor
should consider entering into a standstill agreement with the defendant or issuing
protective proceedings immediately (see 7.9.2);
(b) the three-year primary limitation period has recently expired. If so, consideration
should be given to issuing proceedings as soon as possible, including in the claim form
or particulars of claim, a request for a direction that the limitation period should be
disapplied (see 7.8). Thereafter, the solicitor should inform the defendant without delay
that proceedings have been issued, to minimise any claim by the defendant of prejudice
due to the passage of time;
(c) there is a question as to the client’s ‘date of knowledge’ of the injury complained of. The
client should be questioned closely regarding the earliest date on which he realised he
might have a cause of action, and how he came to that conclusion. The client’s medical
records should be obtained without delay in order to confirm the precise date of
knowledge. Proceedings can then be issued as in point (b) above, and thereafter it can
be argued that the limitation period has not yet expired because the client’s date of
knowledge of the injury is within the last three years. If this is not successful, an
application should be made for the court to exercise its discretion and disapply the
limitation period (see 7.8).
Having established when the primary limitation period is due to expire, it is important that
the time limit is recorded separately from the file in a diary system. The file itself may be
similarly marked with the date on which limitation expires. This double recording of the
primary limitation period is good practice, as failure to issue the claim within the limitation
period is a common pitfall, and one which may lead to a negligence claim by the claimant
against his solicitor.
8.3.2 Photographs
In most personal injury cases, persons seeking advice following an accident will do so
relatively soon after the accident occurs. If this is the case, a task, which is often overlooked,
will be to secure photographic evidence.
8.3.2.1 The client

The client may attend the interview with an array of bruises and abrasions (soft tissue
injuries). These will heal or fade relatively quickly, and an important piece of the claimant’s
evidence will be lost. The claimant’s solicitor should therefore ensure that good colour
photographs are taken of the client’s injuries for subsequent disclosure. Such photographs
will form very tangible evidence of the severity of the injuries sustained, when the case comes
to be considered some months or years in the future. In cases where the client may suffer
embarrassment at being photographed, or indeed in any case where a degree of sensitivity is
needed, specialist medical photographers are available, for example at larger teaching
hospitals.
8.3.2.2 The location of the accident

In road traffic cases, it is usually necessary to visit and take photographs of the location of the
accident as soon as possible after the accident, because the layout of the road may change as
time passes and/or the road may appear different depending on whether it is photographed in
summer or in winter, especially if there are lots of trees or vegetation which could obscure a
driver’s view (see 10.9.5).
Where accidents at work are concerned, it is good practice to obtain photographs of any
machinery or equipment involved. Any delay may mean that the equipment involved is
replaced and/or disposed of. Similarly, if the accident involves allegations of a defect in a floor
surface, it would be helpful to obtain photographic evidence of that floor surface before it is
corrected.
8.4 ADVISING THE CLIENT

It is important for the solicitor not to lose sight of the fact that the client has come into his
office seeking some meaningful advice, which he hopes will lead him to a decision as to
whether he has an actionable case against some other party. The client therefore needs to have
the best information available, in a form that he can understand, so that he can make an
informed decision as to what to do next. It is best to set out the strengths and weaknesses of
the case, based on what has been said by the client. The importance of the limitation period
should be explained to the client if this is likely to be an issue. The solicitor should also
explain to the client that it is for him to prove his case by evidence and that anything short of
this is not enough. He should be informed of the basis of his case, and the level of proof
needed by the court to prove it. The client should be left in no doubt that it is his case, to be
proved by his evidence, and that he bears the risk that his case may fail. As such, he should
think seriously prior to instructing his solicitor to issue proceedings. The solicitor should give
an indication as to whether he believes that the case is likely to succeed, but he should make it
clear that the assessment is based on the limited information available at this early stage. In
any event, if the solicitor is considering taking the client’s case but will be paid under a CFA or
a DBA, it will be necessary for the solicitor to conduct an assessment of risk at an early stage in
order to decide whether or not to accept the client’s instructions on that basis.
It may be that the solicitor advising the client will be required to produce to his superiors a
report, from which his superiors will make a risk assessment in relation to whether or not the
client should be accepted on a CFA or DBA basis. The risk assessment report may also
consider such things as whether it is proposed that the client covers his own disbursements,
or whether the firm is prepared to fund them on the client’s behalf. The client is likely to press
for an indication of the likely level of damages that may be recovered. Giving a firm indication
based on inadequate information should be resisted. Instead, the solicitor should explain to
the client why an assessment would be premature at this stage. The solicitor will not be in a
position to assess the value of the claim until medical evidence dealing with diagnosis and
prognosis has been obtained.
One reason for not giving a provisional indication of the likely level of damages is that the
client may be found to have been contributorily negligent. This principle should be explained
to the client, first to try to elicit whether the client has any reason to believe that it will be
relevant to his claim and, secondly, to act as a warning to the client that it is likely that the
opposition will try to allege that he was contributorily negligent.
The client should also be advised that he must prove every head (or type) of loss against his
opponent. Although it is the case that the client is able to claim all he has lost as a direct result
of the accident, he must also be in a position to prove every head of that loss to the court if he
wishes to recover damages in respect of it. It should therefore be explained to the client that
damages are made up of general damages (for pain, suffering and loss of amenity) and special
damages (everything the client has had physically to pay for and other quantifiable losses as a
direct result of the accident). For a detailed analysis of the subject of damages, see Chapter 15.
It will assist greatly, when it comes to proving his losses, if the client has kept a detailed record
or account of his out-of-pocket expenses. To this end, the client should be advised at the first
interview to keep all receipts for expenses incurred as a direct result of the accident, and that
it is his responsibility to do so. Common examples are prescriptions, the cost of items lost or
damaged beyond repair in the accident, and taxi fares to the out-patient or physiotherapy
departments. Similarly, with respect to general damages for pain and suffering, although the
client’s distress may be keen at the first interview, by the time of trial his recollection may have
dimmed, to the extent that he has forgotten many of the minor losses of function he suffered
in the early stages of recovery from his injuries. The client should therefore be advised to keep
a diary if he does not already do so, to record, for example, the fact that he is unable to sleep
due to pain, or is unable to dress himself unaided or to do housework, and to record how long
these disabilities last. Any number of tasks, either recreational or work-related, should be
recorded so that they are not forgotten later when it comes to preparing the client’s witness
statement.
It is particularly important in clinical negligence cases that the client is made aware of the
difficulties in pursuing the claim, and especially that he must establish not only a breach of
duty, but also that the breach was causative of the damage that resulted (rather than the
underlying illness or injury being the root cause of the loss). If the client is paying for the
litigation privately, the high costs involved must be explained to him clearly. The solicitor
should also explain the difficulty in giving a preliminary view on liability without first
obtaining all the client’s medical notes and at least one expert’s views.
8.5 THE CLIENT’S PROOF OF EVIDENCE

Client questionnaires are used frequently in personal injury work. The questionnaires are
designed to elicit certain basic information about the client and the accident. Increasingly,
law firms ‘capture’ these basic data about the client by keying the details into a case
management system. This has the advantage that once ‘captured’, the data are available for
use subsequently throughout the life of the claim.
The client’s proof of evidence should not be confused with the client’s witness statement.
Although they are both statements taken from the client, they serve different functions. The
proof is the ‘rough copy’, which may include irrelevant material and suspicions or ‘versions’
rather than facts provable by the client in court. The witness statement contains only those
matters which the witness can prove, and is disclosed to the opposition at the relevant stage in
the proceedings.
The function of the proof is to obtain the fullest possible detail from the client, and only later
to sift out what is strictly admissible as evidence. The proof can be taken at the end of the first
interview when the client is still present, or from notes made at the time in conjunction with
the questionnaire.
8.5.1 Contents of the proof

The proof should commence with the client’s full name, address, date of birth and National
Insurance number. It should state his occupation and whether he is married. If he was
admitted to hospital, it should state his hospital number. The proof is intended for use by the
client’s solicitor and barrister, and, subsequently, in the preparation of the client’s witness
statement; as such, it should be the fullest possible statement from the client relating to the
incident, the events immediately following the incident and its long-term effects. The client
should begin his narrative at the earliest point in time that he feels to be relevant.
Following the client’s personal details, the proof should next detail the date, time and location
of the incident. It should then follow through chronologically and meticulously:
(a) the events leading up to the incident;
(b) the circumstances of the accident, including a clear explanation of the mechanics of the
accident itself;
(c) what happened immediately after the incident;
(d) why the client feels that the incident was caused by the negligence of some other
person;
(e) what medical treatment was given and injuries incurred; and
(f ) how the client feels that the incident has affected his day-to-day life.
The solicitor should bear in mind that the proof will form the basis of the witness statement,
and that, usually, the witness statement will be ordered to stand as the witness’s evidence-in-
chief at the trial. It is important, therefore, that the proof is detailed in its description of how
the incident actually happened, and the effect the incident has had on the client’s day-to-day
life. All aspects of the client’s life should therefore be considered in the proof. The following
areas should always be covered, including an estimate in weeks or months of how long the
incapacity affected the client’s life, or confirmation that the incapacity is still continuing:
(a) Everyday tasks which he is unable to do for himself, eg dressing, bathing, housework,
shopping, driving. This will be important if a claim is made for loss incurred in
employing someone else to carry out these tasks.
(b) Recreational activities such as sports, hobbies, gardening, DIY in maintaining the home
and the family car. The client’s inability to participate in sports will have an effect on his
loss of amenity claim for general damages. The client should also be asked whether he is
a member of any sports team or club, and about any prizes or trophies he has won as
further evidence of his level of commitment. The inability to carry out jobs of
maintenance around the home will similarly affect his claim for loss of amenity. If the
client gives evidence that DIY is a hobby, details should be obtained of any projects he
has undertaken. This will also affect his special damages claim for the labour element of
the cost of having to employ someone else to fulfil those tasks in the future.
(c) Whether and to what extent the injury has affected his sex life. This area of loss of
amenity should always be broached with the client, as the stress of an accident can often
bring about a degree of sexual dysfunction, even if the injury itself would not
immediately suggest that such was the case.
(d) Specifically, whether the incident will affect the client’s ability to continue with his
employment, and the extent to which he is affected. It may be obvious that the client
will never work again, or will be unable to work in his pre-incident position but will have
to retrain, or that he intends to return to his pre-incident employment but is unsure
whether he will cope. Details should also be obtained as to the client’s position if he
were to be made redundant, and the degree of difficulty he would have in obtaining
similar employment elsewhere because of his injuries.
It is important that all of the above issues are considered and, if relevant, that they are covered
in the proof in some detail, as there is little point in the client and/or his solicitor knowing the
extent to which the incident has ruined the client’s life, if this is not articulated sufficiently to
the court. If a matter is not covered in the client’s witness statement, the chances are the court
will never hear of it; and if the court is not made aware of all relevant matters, the claimant’s
solicitor has not achieved one of his main aims, that of maximising the client’s damages.
Before finishing the proof in personal injury cases, the client should always be asked whether
he has had any pre-existing incident injury which may affect the current case.
The proof should always end with the client’s signature and the date on which it was prepared
so that, if the client dies prior to the conclusion of the case, the proof will still be of use
evidentially.
8.5.2 Proofs in relation to different types of incident

The following types of incident will require the proof to cover certain areas in particular
detail.
8.5.2.1 Road traffic incidents

When taking the proof in the case of a road incident, it is important first to have in mind the
stretch of road in question. A large-scale map of the area in question is invaluable at this stage,
as it will cut short any unproductive argument as to how or where, for example, the road
bends. If the client has difficulty explaining how the incident happened, it can be useful to get
him to draw a sketch of the relative position of the vehicles involved, or to use toy cars to
illustrate what happened. Care should be taken to ensure that the client is entirely clear about
the following matters:
(a) the direction in which he was travelling;
(b) the time of day;
(c) whether there was anyone else in the car with him;
(d) the weather conditions;
(e) the speed of travel;
(f ) familiarity with the car;
(g) familiarity with the road;
(h) whether there were any witnesses;
(i) the make and registration numbers of all vehicles involved;
(j) who he believes to be responsible for the incident and why;
(k) what happened immediately after the incident;
(l) exactly what he said to anyone after the incident;
(m) exactly what anyone said to him, and whether anyone else heard what was said;
(n) whether the police were called and, if not, why not;
(o) if the police were called, which police force and the name of the officer attending;
(p) whether the client is aware of any pending prosecutions (eg, whether he was warned
that he might be prosecuted, or that he might be needed as a witness in the prosecution
of the other driver);
(q) whether he is comprehensively insured and the amount of excess he has to pay on his
own insurance policy (his uninsured loss);
(r) whether he is the owner of the vehicle, and details of the owner if he is not.
If the client wrote anything down at the time of the incident, such as the name and address of
the other driver(s), this should be retained. If he explains what happened, for example by
referring to the offside and nearside of his vehicle, the solicitor should check that he
understands what is meant by those terms. Clients may believe that they have to speak to their
solicitor using words which they would not normally use in everyday speech, and
consequently they may use words that they do not fully understand. For the avoidance of
doubt, the solicitor should check with the client that when referring to a vehicle’s ‘offside’ the
client means the driver’s side, and that ‘nearside’ refers to the side of the vehicle nearest the
gutter.
In road traffic cases, it is vitally important to trace and interview witnesses as soon as
possible. It is unlikely that the witnesses will be known to the client and they may prove
difficult to trace if not contacted immediately, and in any event their memory of the events
will fade quickly and will therefore be of less use evidentially. The question of whether there
are any independent third party witnesses is of central importance, because the case will be
much easier to prove if an independent witness can be found who is prepared to give evidence
to a court that he saw the incident and believes that the cause of the incident was the fault of
the other driver. If the client does not have any details of witnesses, the police accident report
may have statements from witnesses whom the solicitor can contact. The police should be
notified of all incidents involving personal injury, and will prepare a report on the incident
including witness statements (see Chapter 10).
8.5.2.2 Tripping/slipping incidents on public roads and pavements

Tripping and slipping incidents occurring on public roads and pavements are governed by
s 41 of the Highways Act 1980, under which the highway authority (usually the local district
council responsible for the area in which the fall or trip took place) has a duty to maintain the
highway, which includes the pavements used by the public (see 3.5). It is for the claimant to
show that the highway was not reasonably safe. Uneven paving stones or the sites of road
improvements with poor temporary surfaces usually claim the most victims. Local authorities
sometimes contract out such road works to independent contractors, in which case it may be
advisable to sue both the contractor responsible for the safety of the site and the local
authority which delegated the improvement work to them. If the client can show that the
highway was not reasonably safe, the authority must show that it has taken such care as in all
the circumstances was reasonably required to ensure that the highway was not dangerous.
Applying the above rule to the client’s proof, it will be necessary to ask the client:
(a) the time of day;
(b) the weather conditions;
(c) whether he was in a hurry or was running at the time of the incident;
(d) whether he was carrying anything which obscured his view;
(e) whether there was a warning sign to take care and, if so, what the sign said;
(f ) whether there were any witnesses;
(g) what sort of shoes the client was wearing; and
(h) the exact location of the incident.
It will then be necessary to procure photographs of the location without delay, as the local
authority may act quickly to repair the relevant area as soon as it becomes aware of a possible
claim, in order to show that it has taken such care as in all the circumstances was reasonably
required.
8.5.2.3 Incidents at work

The nature of the work process that gave rise to the incident must be thoroughly understood
from the outset if the case is to be dealt with properly. The client should be asked to explain:
(a) his job title;
(b) what that involves in the work process;
(c) the level of training or instruction received;
(d) the level of seniority he held;
(e) the level of supervision over him;
(f ) whether he can recall any written or oral confirmation of his work duties;
(g) a description of his usual duties;
(h) what he was doing on the day in question that gave rise to the incident;
(i) whether anything out of the ordinary occurred that day;
(j) details of other similar incidents known to the claimant;
(k) any representations made by a trade union about the machine or system of work;
(l) any comments made at health and safety meetings;

(m) any witnesses to the incident or the unsafe practice.
Trips and slips make up a large proportion of incidents in the workplace and therefore, in
addition to the above questions, the client should be asked such questions as are relevant from
8.5.2.2 above.
EXAMPLE
John is an instrument artificer employed to work at a chemical plant. Part of his duties is to
check the temperature of certain chemicals stored in large tanks above ground on the site.
On the day of the accident, John climbed to the top of a storage tank and removed the
outer cover. Without warning, John was blown backwards by excess pressure in the tank,
causing him to fall from the tank approximately 4 metres to the ground. Because the
chemical was corrosive on contact with the skin, John suffered burns to his face and
hands, as well as a damaged spine and broken left leg. John tells you that he has done the
same task many times before without incident, but he believes that whoever last checked
that particular tank failed adequately to secure the inner seal, so that when he next
opened the outer seal the sudden change in pressure was like releasing a cork from a
bottle. John tells you that he is usually accompanied by a fellow employee when doing
these checks, as the company’s safety policy requires this. On the day of the incident, his
colleague had telephoned in sick, but the duty manager had not called in anyone else to
take his place. John also tells you that the company used to have a nurse on site to deal
with minor injuries, but when the last nurse ceased to be employed she was not replaced.
John believes that this was because of the expense involved. John also believes that his
burns would not be so severe if he had received first aid more quickly.
In the above example, if, when describing any part of his duties, John becomes unclear, he
should be asked to explain it again, perhaps drawing a sketch to assist his narrative. It is
important that there is no misunderstanding at this stage, as the solicitor will probably use
this information as the basis for his statement of case. In addition, if the solicitor is unsure
from the client’s explanation precisely how the incident happened, it is also likely that a judge
will be similarly confused. It is therefore vitally important that any ambiguity is resolved at
this point. If ambiguity remains, facilities should be sought for a site inspection. Where the
place of work is privately-owned property, and may be a dangerous environment for the
visitor, the solicitor must always seek permission from the employer for a site inspection. The
inspection can be carried out with the claimant’s expert engineer if the accident involves a
piece of machinery.
In the above example, it is necessary to include in the proof John’s suspicions as to:
(a) the cause of the incident;
(b) disregard of safety policy; and
(c) his belief that the burns were worsened by delay in treatment.
All these matters will have to be checked, however, as the chemical engineer who inspects the
plant may conclude that the incident had a completely different cause, possibly involving
contributory negligence by John himself. It may be apparent to the engineer that the tank is
fitted with a large pressure gauge that John should have checked prior to opening the tank.
Similarly, the company safety policy may specify that rubber gloves and a full face mask must
be worn when working with corrosive chemicals, and that the burn time for that particular
chemical is less than 30 seconds, in which case having medical personnel on site would have
made no difference to John’s injuries.
8.5.2.4 Clinical negligence claims

In a clinical negligence claim, the client is likely to be in a more confused or uncertain
position than in a personal injury matter. While a client is normally able to explain, for
example, what occurred during a road traffic incident, he may not understand the treatment
and care he received from a medical practitioner. The terminology will be unfamiliar and, in
the case of alleged negligence during hospital treatment, the client may not be able to recall or
identify the doctors or nurses who treated him.
When obtaining a proof in a clinical negligence case, it is important that every detail is
obtained, such as what exactly was said when the claimant attended at the hospital or when
the client was asked to sign the consent form.
Unless the alleged negligent act arises out of an illness not previously suffered by the client,
full details of any previous medical problems should be obtained. Other matters contained in
the proof could be as follows:
(a) the symptoms which led the client to seek medical advice;
(b) the information given by the client to the doctor;
(c) any questions asked by the doctor (eg, where the client went to his GP complaining of
headaches, whether the doctor asked the client if he had hit his head or whether the
client had been sick – questions which would lead a competent GP to suspect a severe
head injury);
(d) whether the client was given details of a diagnosis at that time;
(e) what form of treatment was prescribed;
(f ) whether the treatment was explained to the client, and whether he was warned of any
potential risks and the likely consequences of not receiving treatment;
(g) the name of the doctor who treated the client and his status;
(h) whether the client was receiving treatment from different doctors;
(i) whether the client asked for a second opinion;
(j) whether any witnesses were present at the consultation;
(k) any previous medical problems which could have affected the client;
(l) whether the client has complained to the hospital/doctor;
(m) whether the client has received any reply or relevant correspondence;
(n) whether an apology has been received.
This should be followed by details of the injury in the normal fashion.
In certain cases, it can be useful to ask what prompted the client to contact a solicitor. In some
cases, the client is advised by other medical professionals to seek legal advice as they believe
that a mistake may have been made.
EXAMPLE
A client injures his leg playing football and attends at the local A&E department. The
department is busy and, although the client is sent for an x-ray, the house officer fails to
spot the fracture and discharges the client immediately. The client is in considerable pain
for a number of weeks and eventually visits his GP, who refers him back to the hospital for
another x-ray. In such circumstances, the client may be told that in fact the leg is fractured
and that it was missed when the client first attended. Such information is clearly of
assistance in assessing liability.
8.6 WELFARE BENEFITS

It will be necessary to advise the client of the welfare benefits he may be entitled to receive
because of the incident. It may be months or years before the claim is settled, and if the client
is unfit for work, he may experience financial difficulties and feel pressured into accepting the
first offer of compensation from the defendant. The solicitor should give the client general
advice on the types of benefits that may be available to him in view of his inability or
decreased capacity to work, and to assist with the costs of mobility issues, household tasks
and child care requirements.
The law relating to state welfare benefits is complex and subject to frequent amendment. In
particular, the Welfare Reform Act 2012 (WRA 2012) is bringing in sweeping reforms over the
next few years. Details of the benefits which may be available are beyond the scope of this
book. If the solicitor is not fully familiar with the current situation regarding available
benefits, and the firm does not have a welfare rights adviser, he should give only general
advice and tell the client to contact Jobcentre Plus (an agency of the Department for Work and
Pensions (DWP)) for further information. The client must act quickly when seeking benefits,
as it is not always possible to back-date them.
The client should be advised that where he does qualify for benefits, if his claim is successful
there may be some recoupment under the Social Security (Recovery of Benefits) Act 1997.
This area is considered in detail in Chapter 16.
Lastly, when considering eligibility for benefits, it is necessary to have regard to whether the
receipt of compensation will take the claimant out of financial eligibility for means-tested
benefits. In Beattie v Secretary of State for Social Security [2001] 1 WLR 1404, Charles Beattie was
injured in a road traffic accident and rendered quadriplegic. He sued by his litigation friend
and Court of Protection receiver, Stephen Beattie. The claimant appealed a decision of the
Social Security Commissioner that he was not entitled to income support because payments
‘falling to be treated as income’ under a structured settlement took him beyond the limit on
income for the purpose of claiming income support. This issue was appealed because
guidance from the Public Trust Office suggested that, as long as the compensation was held
on trust and payments were made on a discretionary basis and were not used to fund items
that would normally be paid for using benefits, then those payments would not affect benefit
entitlement. In Beattie the court ruled that the agreement, as part of the structured settlement,
to make regular payments for a fixed number of years was in fact an annuity and was therefore
‘capital treated as income’ under reg 41(2) of the Income Support (General) Regulations 1987
(SI 1987/1967). The essential difference in this case is that the compensation was paid to the
Court of Protection, which would hold the money for the benefit of the patient, rather than
simply held on discretionary trust.
8.7 REHABILITATION, EARLY INTERVENTION AND MEDICAL TREATMENT

It has long been recognised that a claimant’s long-term prognosis can be dramatically
improved by the intervention of rehabilitative treatment at the earliest possible opportunity.
Examples of such early treatment include surgery, physiotherapy, counselling, occupational
therapy, speech therapy and also adaptations to the claimant’s home to make his life easier.
The problem in the past was that many claimants were not able to find the funds to pay for the
necessary treatment until after their claims for damages for personal injuries were settled.
However, over time, insurance companies began to see the clear benefits of early intervention
for themselves, even if liability had not yet been determined. Extra sessions of physiotherapy,
for example, might speed up the claimant’s recovery rate to enable him to return to work
earlier than otherwise expected, if he was expected to return to work at all, and this might
result in a smaller claim for damages.
The Rehabilitation Code (the ‘Code’), which was drafted as a collaborative effort between
insurers and personal injury lawyers, was first introduced in 1999 and updated to its current
form in 2007. It can be found at the back of this book as Annex D to the Pre-action Protocol for
Personal Injury Claims (Appendix 2). Its aim, as set out in the introduction to the Code, is to
promote the use of rehabilitation and early intervention in the claims process so that the
injured person makes the best and quickest possible medical, social and psychological
recovery. The Code is designed to apply whatever the severity of the injury suffered by the
client.
The Code provides a framework within which all those involved in the claim can work together
to ensure that the claimant’s needs are assessed at an early stage and appropriate treatment
provided as a matter of priority. Both claimants’ solicitors and insurers are required to
consider whether rehabilitation is appropriate and, if so, to raise the matter with the other
party. It should be noted that the provisions of the Code are not mandatory and that the aims
of the Code might be achieved by means of an alternative framework agreed between the
parties.
For the details of the provisions of the Code, you are referred to the Code itself. Further
assistance can be found in APIL’s Practice guide to rehabilitation, 2nd edn (2008).
8.8 CONCLUSION
If the first interview is handled correctly, it should save the solicitor a great deal of time in the
future. As personal injury litigation is ‘front loaded’, much of the essential work is covered
during or shortly after the first interview. If essential matters have been missed, old ground
will need to be covered again, which will lead to delay and upset for the client, and may allow
the opposition to gain the advantage. An overview of matters to be considered is set out below
at 8.10.
8.9 FURTHER READING

The Law Society Initial Interviews Practice Note, 6 October 2011
APIL Practice guide to rehabilitation, 2nd edn (2018)
8.10 OVERVIEW OF MATTERS TO BE CONSIDERED AT THE FIRST INTERVIEW
Accident
Free initial interview CFA
Trade union funding DBA

Funding
Pre-existing insurance cover After the event insurance
Private fee paying Public funding
Client’s proof/questionnaire
Photos of
Urgent considerations Limitation issues
injuries/locus
Financial concerns/
Rehabilitation welfare benefits
Advising the client
Personal injury Clinical negligence
Take proof of evidence. May be Take proof of evidence. Explain

able to give some advice on to client that view on liability
liability at this stage if case is cannot be given until notes
straightforward but will need to obtained and preliminary view
make further investigations. obtained from expert. Explain
Explain next steps to client. fully next steps.
Investigations
Methods of Funding and Qualified One Way Costs Shifting 127
CHAPTER 9
Methods of Funding and

Qualified One Way Costs
Shifting
9.2 Methods of funding 127
9.3 Qualified one way costs shifting 138
9.4 Conclusion 139
LEARNING OUTCOMES
• describe the methods of funding available to a client
• explain how a conditional fee agreement operates
• explain how a damages-based agreement operates
• understand how qualified one way costs shifting works.
9.1 INTRODUCTION
The ways in which personal injury and clinical negligence claims may be funded and costs
recovered by both sides have undergone many changes following the Legal Aid, Sentencing
and Punishment of Offenders Act 2012 (LASPO 2012), which came into operation on 1 April
2013. The so-called ‘big bang’ introduced a new method of funding in the form of damages-
based agreements (DBAs) and placed restrictions on the recovery of costs by prohibiting in all
but a few cases the recovery of success fees and insurance premiums, applying a new system of
qualified one way costs shifting (QOCS). This chapter aims to summarise the methods of
funding that are now available and to describe how the new regime of QOCS will be applied.
9.2 METHODS OF FUNDING

9.2.1 Advising the client – the Code of Conduct
The SRA Code of Conduct 2011 (the ‘Code’) sets out several ‘Outcomes’, which relate to how a
solicitor should advise a client about costs and funding his claim. In particular, Outcome 1.6
requires that you only enter into fee agreements with your client that are legal, and which you
consider are suitable for the client's needs and take account of the client's best interests.
Outcome 1.13 provides that a solicitor must ensure that a client receives the best possible
information about the likely overall cost of his matter, both at the outset and as the matter
progresses. The Code also sets out a number of ‘Indicative Behaviours’ (IBs) which, if
followed, indicate that a solicitor has complied with the Code. These IBs include:
(a) warning about any other payments for which the client may be responsible (IB 1.15);
(b) discussing how the client will pay, including whether public funding may be available,
whether the client has insurance that might cover the fees, and whether the fees may be
paid by someone else such as a trade union (IB 1.16);
(c) where acting for a client under a fee arrangement governed by statute, such as a
conditional fee or a damages-based agreement, giving the client all relevant
information relating to that arrangement (IB 1.17).
Solicitors should therefore bear in mind these Outcomes and IBs when advising on the
funding options outlined below.
9.2.2 Public funding

9.2.2.1 Is legal aid still available?
The majority of personal injury and clinical negligence cases are now outside the scope of
public funding, with the exception of:
(a) claims involving neurological injury to a child resulting in severe disability, which arises
during pregnancy, childbirth, or in the eight week postnatal period; and
(b) cases which the Director of Legal Aid Casework determines to be ‘exceptional’ on the
basis that to deny legal aid would be a breach of the individual’s human rights.
The detail of how to apply for legal aid in such cases is beyond the scope of this book and so
what follows is a brief summary.
9.2.2.2 Funding in clinical negligence cases

LASPO 2012 removed all claims for damages for clinical negligence from the scope of civil
legal aid, with one exception: clinical negligence during pregnancy, child birth or the
postnatal period (eight weeks), which causes a child to suffer severe disability due to a
neurological injury.
The conditions which must be met are set out in LASPO 2012, Sch 1, Pt 1, para 23. They are
that:
(a) clinical negligence caused a neurological injury to the individual (V) and, as a result of
the neurological injury, V is severely disabled; and
(b) the clinical negligence occurred:
(i) while V was in his or her mother’s womb; or
(ii) during or after V’s birth but before the end of the following period:
• if V was born before the beginning of the 37th week of pregnancy, the period of
eight weeks beginning with the first day of what would have been that week; or
• if V was born during or after the 37th week of pregnancy, the period of eight
weeks beginning with the day of V’s birth.
Paragraph 23(5) provides that ‘disabled’ means ‘physical or mentally disabled’ and defines
‘birth’ as ‘the moment when an individual first has a life separate from his or her mother’.
The most common scenario is likely to be obstetric negligence where mismanagement of a
mother’s labour leads to deprivation of oxygen to the baby resulting in brain injury.
Alternatively it could be that a serious illness (eg meningitis) is not diagnosed in the early
weeks of a baby’s life either by a GP or hospital staff.
In addition to falling within the scope of claims described above, it will be necessary for the
client to satisfy both financial criteria (under the Civil Legal Aid (Financial Resources and
Payment for Services) Regulations 2013 (SI 2013/480)) and merits criteria which are contained
in the Civil Legal Aid (Merits Criteria) Regulations 2013 (SI 2013/104). There are essentially
two levels of funding which may be granted – Investigative Help and Full Representation.
Investigative Help
Investigative Help will be granted only where the prospects of success on a claim are not clear
and substantial work needs to be undertaken before the prospects of success can be
determined accurately. Certificates limited to Investigative Help will be subject to a limitation

that the certificate covers only the obtaining of medical notes and records, obtaining one
medical report per specialism, complying with all steps under the clinical disputes pre-action
protocol, considering relevant evidence with counsel or an external solicitor with higher court
advocacy rights and experts if necessary, and thereafter obtaining counsel’s opinion, up to
and including settling proceedings if counsel so advises.
Investigative Help may be refused if it is more appropriate for the client to pursue the NHS
complaints procedure than litigation.
Criteria for granting of Full Representation

To qualify for full representation, both the ‘cost–benefit’ criteria and the ‘merits’ criteria must
be met. In terms of merits, the prospects of success must not be ‘poor’ or ‘borderline’ but
must be at least ‘moderate’ (50–60%). The cost–benefit criteria which relate to likely costs
versus likely damages are as follows:
(a) 1:1 – for cases with 80% or more prospects of success, the likely damages must at least
break even with and should exceed the likely cost in cases with very good prospects of
success.
(b) 1:2 – for 60–80% prospects of success, ie the prospects of success are good, likely
damages must be at least twice the likely cost.
(c) 1:4 – for cases with 50–60% prospects of success, ie the prospects of success are
moderate, likely damages must be at least four times the likely cost.
If the prospect of success and the cost–benefit criteria set out above are satisfied, the solicitor
should make an application for Full Representation after the investigative stage. The
certificate will then be issued, and will normally be limited to all steps up to and including
exchange of statements and reports and CPR Part 35 questioning of experts, and thereafter
obtaining counsel’s opinion or the opinion of an external solicitor with higher court advocacy
rights.
In the event that the claimant wishes to proceed to full trial, the cost–benefit criteria above are
reapplied to the case; if the criteria are satisfied then application can be made once again to
amend the scope of the Full Representation certificate to cover the cost of trial.
9.2.2.3 ‘Exceptional funding’

If a case falls outside the scope of legal aid, funding may still be provided if the case is deemed
‘exceptional’.
Section 10(3) of LASPO 2012 sets out the test for determination of exceptional funding as
follows:
(3) For the purposes of subsection (2), an exceptional case determination is a determination—
(a) that it is necessary to make the services available to the individual under this Part because
failure to do so would be a breach of—
(i) the individual’s Convention rights (within the meaning of the Human Rights Act
1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable
EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard
to any risk that failure to do so would be such a breach
The Lord Chancellor has issued guidance for both inquest and non-inquest cases which would
otherwise not qualify for legal aid. Inquest cases are discussed further in Chapter 17. As for
non-inquest cases, the guidance makes it clear that the overarching question is ‘whether the
withholding of legal aid would make the assertion of the claim practically impossible or lead
to an obvious unfairness in proceedings’. This threshold is very high.
The same means criteria apply to legal aid under the exceptional funding scheme as to general
cases, and it will only be available to those claimants of qualifying means who do not have any
form of alternative funding, such as before the event (BTE) insurance, and are unable to
secure a conditional fee agreement (CFA) or a DBA. The type of claim that is most likely to
succeed in an application for exceptional funding is a clinical negligence claim of moderate to
high value where the claimant has failed to find a solicitor to accept it as a CFA or a DBA
because its merits appear to be moderate rather than good. All clinical negligence claims
require medical expert evidence on breach of duty, causation and quantum and involve
complex issues of law. It may therefore be possible to assert that the claimant could not
represent himself and should therefore qualify for exceptional funding.
9.2.3 Conditional fee agreements

The decline in legal aid has led to a huge increase in CFAs. Under s 58 of the Courts and Legal
Services Act 1990 (CLSA 1990), a solicitor and client can agree that the client will have to pay
his own solicitor’s costs only in certain agreed circumstances or conditions, the condition
usually being that the client wins his case (hence ‘conditional fee agreement’).
Conditional fee agreements have undergone important changes following LASPO 2012, and
so what follows is a summary of the position that is in force since those changes came into
operation on 1 April 2013. The Law Society has issued a new model CFA, together with a
guidance note that should be followed when drafting a CFA.
9.2.3.1 Formal requirements

A CFA is enforceable only if it meets the requirements of ss 58 and 58A of the CLSA 1990,
which provide that a CFA:
(a) must be in writing;
(b) must state the percentage success fee to be applied (up to a maximum of 100%); and
(c) may not be used in family and criminal proceedings.
The CFA must be signed by the client and by the legal representative.
There are no statutory requirements regarding information to be given to the client over and
above the requirements of the SRA Code of Conduct 2011 (see 9.2 above). Any breaches of the
Code will be a professional conduct issue and therefore a matter for the SRA to deal with, but
it will not render the CFA unlawful/unenforceable. However, a breach of the CLSA 1990 will
render a CFA unenforceable and will prevent the solicitor from recovering any costs.
9.2.3.2 The success fee

If the claim is successful, the solicitor will normally expect to receive an enhanced fee to
reflect his ‘success’. The enhancement on the fee is a percentage increase on the solicitor’s
normal fee and not a percentage of damages. The percentage increase on the solicitor’s fee is
agreed in writing between the client and the solicitor prior to the litigation, and will take into
account a number of factors discussed below (see 9.2.5), including the likelihood of winning
the case.
The success fee can be up to 100% of the basic fee. However, for CFAs entered into from 1
April 2013, art 5 of the Conditional Fee Agreements Order 2013 (SI 2013/689) imposes a cap
on the recoverable success fee in personal injury and clinical negligence claims of 25% of
general damages and past losses less any benefits recoupable by the Compensation Recovery
Unit (see Chapter 16). This means that the success fee cannot be taken from damages for
future losses, such as future care costs. This new requirement does not apply if the claim to
which the CFA relates is for damages in respect of diffuse mesothelioma.
9.2.3.3 Recovery of the success fee

Prior to 1 April 2013, if the client won his case and the opponent was ordered to pay his costs,
these would include the success fee to the extent that it was ‘reasonable’. However, for CFAs
entered into from that date (except for those that relate to claims for mesothelioma), s 44 of
LASPO 2012 provides that the success fee may no longer be claimed from the other side and
so will now be paid by the client out of his damages. As success fees are no longer recoverable
as part of costs, the requirement to notify your opponent that you have entered into a CFA (or
taken out after the event insurance (AEI)) has gone.
9.2.3.4 Conditional fees and counsel

Where there is a CFA between client and solicitor, counsel’s fees are usually dealt with in one
of two ways:
(a) The solicitor enters into a separate CFA with the barrister, in which case:
(i) if the client wins the case, the barrister’s basic fee will be recovered as a
disbursement from the opponent. The solicitor will pay the barrister’s ‘uplift’
agreed in the barrister’s CFA, but will have regard to this expense when agreeing
his own fee ‘uplift’ with the client;
(ii) if the client loses the case, he will owe the barrister nothing.
(b) There is no CFA between the barrister and the solicitor, in which case:
(i) if the client wins the case and has been paying the barrister’s fees on account (ie,
up front), there will be no extra success fee to pay, and the barrister’s fees can be
recovered from the opponent as before;
(ii) if the client wins the case and has not been paying the barrister’s fees on account,
the solicitor will recover that disbursement from the opponent. Because of this
greater outlay by the solicitor (and greater financial loss to the firm in the event
that the client loses), the solicitor will charge an extra success fee in the event that
the client wins;
(iii) if the client loses the case and has not been paying the barrister’s fees on account,
the solicitor is liable to pay them, and will not be able to pass this loss on to the
client.
9.2.4 Damages-based agreements

Damages-based agreements (DBAs) were introduced as a method of funding for civil
litigation by s 45 of LASPO 2012. Under a DBA, solicitors are not paid if they lose a case but
may take a percentage of the damages recovered for their client as their fee if the case is
successful. DBAs differ from CFAs because, under a DBA, the payment received by the lawyer
is calculated as a percentage of the damages awarded to the client, rather than as an uplift on
the lawyer’s base costs.
In order to be enforceable, the DBA must comply with s 58AA of the CLSA 1990 and the
Damages-Based Agreements Regulations 2013 (SI 2013/609) (DBA Regulations 2013). In
summary, to be enforceable the DBA must:
(a) be in writing;
(b) specify:
(i) the claim or proceedings or parts of them to which the agreement relates;
(ii) the circumstances in which the representative’s payment, expenses and costs, or
part of them, are payable; and
(iii) the reason for setting the amount of the payment at the level agreed; and
(c) not provide for a payment above an amount which, including VAT, is equal to 25% of the
combined sums awarded for general damages for pain, suffering and loss of amenity
(PSLA) and past pecuniary losses.
9.2.4.1 How do DBAs work?

Costs are recoverable on what is known as the ‘Ontario model’, since the regime is based on
the system that operates in Ontario, Canada. Regulation 4 of the DBA Regulations 2013
states:
(1) … a damages-based agreement must not require an amount to be paid by the client other than—
(a) the payment, net of—
(i) any costs (including fixed costs under Part 45 of the Civil Procedure Rules 1998);
and
(ii) where relevant, any sum in respect of disbursements incurred by the
representative in respect of counsel’s fees that have been paid or are payable by
another party to the proceedings by agreement or order; and
(b) any expenses incurred by the representative, net of any amount which has been paid or is
payable by another party to the proceedings by agreement or order.
In other words, the claimant’s recoverable costs will be assessed in the conventional way, ie
how many hours were reasonably spent on the case, what is a reasonable rate for those hours,
etc. If the fee agreed with the lawyer is higher than the figure arrived at through that exercise,
the claimant will have to pay the shortfall out of the damages.
EXAMPLE 1
The claimant (C) has entered into a DBA with his solicitor which provides for a
contingency fee of 25% and is awarded damages of £100,000. C owes the solicitor
£25,000.
If the costs recoverable from the defendant are assessed at £15,000, then C has to pay his
solicitor the excess £10,000 out of his damages – ie, C receives £90,000 of the damages.
Accordingly, the existence of a DBA will not increase the amount of the defendant’s costs
liability. It may, however, decrease the defendant’s costs liability. The indemnity principle
applies to DBAs, so that the claimant cannot recover more in costs than he is liable to pay his
own lawyer. Therefore, if the agreed contingency fee is lower than the figure arrived at
through a traditional costs assessment, the defendant will only have to pay the lower amount.
EXAMPLE 2
Continuing the scenario in Example 1 above, if the assessed costs are £30,000 then the
defendant only has to pay the lower contingency fee figure of £25,000 due to the
indemnity principle, and there is nothing further for C to pay his lawyer.
9.2.4.2 The 25 % cap

Regulation 4(2) of the DBA Regulations 2013 provides that:
(2) In a claim for personal injuries—
(a) the only sums recovered by the client from which the payment shall be met are—
(i) general damages for pain, suffering and loss of amenity; and
(ii) damages for pecuniary loss other than future pecuniary loss, net of any sums
recoverable by the Compensation Recovery Unit of the Department for Work and
Pensions; and
(b) … a damages-based agreement must not provide for a payment above an amount which,
including VAT, is equal to 25% of the combined sums in paragraph (2)(a)(i) and (ii) which
are ultimately recovered by the client.
EXAMPLE 3
Mr Brown enters into a DBA with his solicitor which provides for a contingency fee of 25%.
Mr Brown is awarded £70,000 damages for PSLA, £30,000 for past loss of earnings and
£400,000 for future loss of earnings. The contingency fee will be £25,000 (25% of the
combined sums for PSLA and past loss of earnings). The £400,000 awarded to Mr Brown
for future losses cannot be touched.
The 25% cap will apply only to claims or proceedings at first instance, not to appeals.
9.2.5 Risk assessment for CFAs and DBAs

In order to decide:
(a) whether to take a potential claim on at all on a CFA or DBA basis; and
(b) once the decision has been made to accept the client’s case on that basis, what is the
appropriate level of fee to apply to the agreement,
it will be necessary for the claimant’s solicitor to undertake assessment of the risk of the
potential claim in every case.
The method of risk assessment adopted will differ from one firm to another, with some
adopting paper-based systems and others utilising computer software to capture basic
information and assist in speeding up the risk assessment process. Whichever method is
used, the underlying principles are the same.
Principles of risk assessment

The Oxford English Dictionary defines ‘risk’ as ‘the chance or possibility of loss or bad
consequence’. If a solicitors’ firm accepts a case on a ‘no win, no fee’ basis, it exposes itself to
the risk of loss in not getting paid for the work it has done on behalf of the client. However,
this is only half of the equation. There is equally the chance of a successful outcome. So risk
assessment can be seen as the process of balancing the risk of losing against the chance of
winning. That is easy enough to say, but rather more difficult to quantify objectively in a way
that gives predictable and workable results. Nevertheless, this is exactly what a personal injury
practitioner has to do when deciding whether or not to take a case on a CFA or DBA basis.
Practice of risk assessment

In practice, the skill of the personal injury practitioner will be in his ability to spot the factors
relevant to risk and then go on to assess the severity of that risk. The majority of firms make
use of a checklist for this purpose, which may be paper- or electronically based.
The factors relevant to risk (or hazards) will include anything that could harm the claim. The
risk will be the percentage chance that the factor will actually occur.
Common risk factors will include:
(a) The facts: is the client a credible witness and are there any other witnesses who will
confirm his version?
(b) Liability: will the client be able to show that there was a relevant duty of care and that this
duty has been breached?
(c) Causation: will the client be able to show that the injuries sustained are causally linked to
the accident?
(d) Limitation: are there any issues due to limitation of claims or delay (ie ‘stale’ evidence)?
(e) The potential defendant: is the opponent a ‘viable’ source of damages – does he carry
insurance or have funds to meet a damages claim, and have insurance details been
confirmed?
(f ) Loss and damage: can the losses sustained be proved by way of medical and other forms of
evidence?
The second stage in the risk assessment is to assess the chance of each of the above risk
factors actually occurring and harming the viability of the case. To do this, each factor needs
to be categorised or ‘scored’ in some way. This can be done by giving each factor a percentage,
or a score between 1 and 10 or, more simply still, by assessing it as a high, medium or low risk.
Based on the result (or score) from the above assessment, a risk assessment co-ordinator
(usually a partner in the firm) will judge whether to accept the case on a conditional fee basis
and, if so, on what level of success fee. In the event that he is unable to do so, because of
insufficient information being available, he will pass the file back to the case worker for
further investigation, for example obtaining witness statements or contacting the police for
clarification of key issues.
In the event that the claim is accepted on a CFA or DBA basis, it is essential to record the
reasoning behind the decision and the reason for the success fee claimed, as this will be
needed in the event that the claim is successful and either the client (or the opponent in the
case of a CFA entered into prior to 1 April 2013) wishes to challenge the level of the success
fee.
9.2.6 After the event insurance

The client’s potential liability to pay the other side’s costs and disbursements and his own
disbursements can be insured against by what is often referred to as ‘after the event’ insurance
(AEI). The risk of having to pay the other side’s costs has greatly diminished following the
introduction of qualified one way costs shifting (see 9.3 below) but nevertheless there may
still be potential costs that an unsuccessful client may be liable to pay.
As the name suggests, AEI is taken out only once the need for the legal action has become
apparent but before the proceedings have commenced. Here, the insurance is not against the
risk of litigation but merely against the risk of having to pay the other side’s costs and
disbursements should the litigation fail, and it can cover the cost of the party’s own
disbursements as well. This type of insurance can be obtained alongside a CFA, a DBA or on
its own. If necessary, many AEI insurers will arrange a loan to the client to fund both the
disbursements and the cost of the AEI premium. If he wins, the interest on the loan is not
recoverable from his opponent but is usually deducted from the damages recovered.
9.2.6.1 Can the premium be recovered?

As with success fees, for AEI policies entered into before 1 April 2013 the AEI premium for
insuring against liability to pay the other side’s costs and disbursements is recoverable from
the loser provided it is reasonable. However, for policies entered into after 1 April 2013, the
premium will not be recoverable from the other side. Again, mesothelioma claims are
exempted from this new rule.
Clinical negligence proceedings are also treated as a special category. Regulation 3 of the
Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No 2) Regulations
2013 (SI 2013/739) states:
(1) A costs order made in favour of a party to clinical negligence proceedings who has taken out a
costs insurance policy may include provision requiring the payment of an amount in respect of
all or part of the premium of that policy if—
(a) the financial value of the claim for damages in respect of clinical negligence is more than
£1,000; and
(b) the costs insurance policy insures against the risk of incurring a liability to pay for an
expert report or reports relating to liability or causation in respect of clinical negligence
(or against that risk and other risks).
(2) The amount of the premium that may be required to be paid under the costs order shall not
exceed that part of the premium which relates to the risk of incurring liability to pay for an
expert report or reports relating to liability or causation in respect of clinical negligence in
connection with the proceedings.
Therefore, in clinical negligence cases, a party may recover the cost of an AEI premium taken
out to cover the risk of having to pay for his own or the other side’s costs in relation to
obtaining expert evidence on liability and causation (but not quantum). The reasoning behind
this exception to the normal rules is that clinical negligence claimants should not be deterred
from pursuing their case by the unusually heavy burden of expert evidence required in such
cases.
9.2.6.2 Staged AEI premiums

There are many different types of AEI policy, and it is important to shop around to find one
that is appropriate for a client’s particular case. One popular form of AEI is where the
premiums are ‘staged’.
The way this works is as follows: with traditional AEI insurance, the underwriter considers the
level of risk of the claimant losing and sets a premium accordingly. In so doing, he bears in
mind that the majority of claims are settled either pre- or post-issue, but long before trial.
Another big tranche of claims will fight on at least until directions are complied with (so that
each side has had the benefit of full disclosure from the opposition) and will then settle before
being set down for trial. Only a small number of claims will go on to trial. By staging
premiums at these trigger points (pre-issue, on setting down for trial, commencement of
trial), the insurer can set a lower premium earlier on (accurately reflecting the risk) and an
appropriately larger premium only for those cases that do not settle at an early stage. Clearly, a
claim which does not settle until trial has a much greater prospect of going to trial, and is
therefore much more likely actually to fail on liability and land the insurer with a big bill for
the other side’s costs. Hence the nearer the claim is to trial, the higher the AEI premium
should be.
9.2.7 Legal expenses insurance

The client may have legal expenses insurance (known as ‘before the event’ or ‘BTE’ insurance)
as a part of either his home or motor insurance policy, or as an extra service from his credit
card provider, or as an extra for which he has paid an additional premium. This is something
that the client may either be unaware of or have forgotten, and it is therefore important that
this is considered at the first interview.
Where the client has the benefit of a BTE insurance policy, the presumption is that he will use
it rather than take out additional insurance in the form of an AEI policy. There is no need to
enter into a CFA or DBA because BTE insurance generally covers both sides’ costs. However,
the level and type of cover available under the BTE policy should be checked to make sure it is
suitable. Many BTE policies have a limit of indemnity of £25,000, which may not be sufficient
to cover the larger multi-track cases. If the cover is insufficient then it may well be reasonable
to enter into a CFA or DBA and to take out AEI instead.
In Sarwar v Alam [2001] EWCA Civ 1401, the claimant had taken out an AEI policy when there
was the opportunity to benefit from an existing legal expenses insurance policy or BTE
insurance. In the costs-only proceedings, the issue was whether the AEI premium was
recoverable. The Court of Appeal gave guidance that although a solicitor is not obliged to
embark on a ‘treasure hunt’ in relation to pre-existing insurance, a solicitor should develop a
practice of sending a standard letter requesting sight of:
(a) any relevant motor insurance policy;
(b) any household insurance policy;
(c) any stand-alone BTE insurance policy belonging to the client and/or any spouse or
partner living in the same household, and, if possible, their driver (if they are an injured
passenger), in advance of the first interview.
A decision then needs to be made about whether any legal expenses insurance policy is
satisfactory. The Court emphasised that the decision related to small road traffic accident
claims with a quantum of £5,000 or less and that enquiries should be proportionate. (See also
Kilby v Gawith [2008] WLR (D) 163.)
As with union-funded work (see 9.2.8 below), the insurer may have nominated firms of
solicitors who must be instructed to undertake the insured’s claim. If the insured is free to
instruct the solicitor of his choice, it is usual for the insurer to require the solicitor to report to
it regularly on the progress of the case. In terms of confidentiality, it is essential for the
solicitor to explain to the client at the outset that a term of the insurance is that the insurer has
the right to receive reports on the viability of the case and whether or not it is worthwhile to
continue with it. The progress of the case can be slowed down considerably by the obligation
on the solicitor to report back to the insurer to seek approval (and therefore funding) to
continue with the claim to the next stage.
9.2.7.1 Choice of solicitor under legal expenses insurance policies

The Insurance Companies (Legal Expenses Insurance) Regulations 1990 (SI 1990/1159) give
effect to Directive 87/344/EEC. The Regulations cover, amongst other things, BTE insurance
cover in respect of road traffic accidents. Regulation 6 of the 1990 Regulations specifies:
6. Freedom to choose a lawyer
(1) Where under a legal expenses insurance contract recourse is had to a lawyer … to defend,
represent or serve the interests of the insured in any enquiry or proceedings, the insured shall be
free to choose that lawyer (or other person). (emphasis added)
The interpretation given to the term ‘enquiry or proceedings’ will determine whether or not
the insured person does have freedom to choose his lawyer. Some insurance companies
providing legal expenses insurance (LEI) cover put a narrow interpretation on it, saying that
only when there are actual court proceedings is there any freedom for the policy holder to
choose. The insurer will often prefer to refer the insured’s claim to its panel of solicitors only,
effectively concentrating the bulk of claims to so-called ‘panel firms’. Not all LEI providers
operate panels of preferred solicitors but many do, citing quality assurance and consistency of
claims handling as the rationale for insisting on operating panels to which to channel claims.
Non-panel firms see this as damaging to their position, as they may be forced to advise clients
that they should avail themselves of pre-existing LEI cover rather than take up the non-panel
solicitors’ offer to work on the basis of a CFA or DBA. The non-panel solicitors will often take
the view that the wording of reg 6(1) of the 1990 Regulations should be given a wide
interpretation, and ‘enquiry or proceedings’ will encompass the work undertaken at pre-issue
stage under the pre-action protocol. Their justification for this is due to the ‘front loading’ of
litigation, where much of the work and advice is, of necessity, conducted before the issue of
proceedings.
A case which illustrates many of the points outlined above is Chappell v De Bora’s of Exeter (SCCO,
2004). This is a Supreme Court Costs Office case in which the costs claim of a non-panel local
firm of solicitors was allowed despite the existence of pre-existing LEI. The facts briefly are as
follows. The claimant’s claim was in respect of the personal injuries she suffered when she fell
down some steps at the defendant’s shop in Exeter. The claimant, who lived near Exeter,
instructed solicitors in Exeter. They entered into a CFA with a success fee of 71%. They also
arranged a policy of AEI and corresponded with DAS, the legal expenses insurers with whom
the claimant had an existing BTE insurance policy. DAS said that, under the terms of her
policy with them, the claimant was obliged to instruct solicitors who were on their panel for
any work which had to be done before the issue of proceedings, although she was entitled to
instruct the solicitors of her choice for the purpose of the proceedings themselves should
proceedings be necessary. The claimant’s solicitors (who were not on the DAS panel)
undertook the usual pre-proceedings work, including sending the letter of claim, taking
witness evidence and obtaining two medical reports. The defendant’s solicitors eventually
offered to settle the matter for £31,156 plus costs. This offer was accepted, but the issue of
costs could not be agreed and, following detailed assessment, the defendant was given
permission to appeal on the issue of whether it was reasonable for the claimant to enter into a
CFA with a success fee and AEI with the solicitors of her choice, when BTE insurance was
available but the claimant’s chosen solicitors were not on the BTE insurers’ panel.
The defendant’s counsel submitted that the onus was on the claimant to show why it was
reasonable, on the standard basis, that the more expensive route of proceedings under a CFA
with AEI should have been adopted. He submitted that solicitors on the DAS panel up and
down the country conducted very many cases no less serious and complex than the present
case on a regular basis. He accepted what the Master of the Rolls had said in Sarwar v Alam (see
9.2.7 above).
In this case we are concerned only with a relatively small personal injury claim in a road traffic
accident. We are not concerned with claims which look as if they will exceed about £5,000, and we are
not concerned with any other type of BTE claim. We have no doubt that, if a claimant possesses pre-
existing BTE cover which appears to be satisfactory for a claim of that size, then in the ordinary course
of things that claimant should be referred to the relevant BTE insurers.
The claimant’s counsel submitted that this was not a straightforward case and that the
amount of the damages, in excess of £31,000, reflected those complexities. It had been
reasonable for the claimant to go to solicitors in Exeter to handle her case rather than to
solicitors in Bristol or Salisbury. He submitted that the costs which the district judge had
allowed were proportionate in relation to a multi-track case of this nature. The judge
concluded that it was reasonable in a case of this kind for the claimant to instruct the
solicitors of her choice in Exeter rather than DAS panel solicitors, the nearest of whom would
have been many miles away from where she lived. Accordingly, he dismissed the appeal in so
far as it related to the claimant’s choice of solicitor.
9.2.8 Trade unions

If the client has had an accident at work and belongs to a trade union, he may be entitled to
receive free access to legal advice as part of his membership. This is something of which the
client may not be aware initially, and the solicitor should therefore cover this point at the first
interview.
If the client is entitled to advice through his union, the union may have its own legal
department or nominated solicitors whom it always uses. If this is the case, the solicitor first
consulted by the client is unlikely to be instructed, but should nevertheless advise the client to
seek advice from his union on this point. The advantage to the client, if he is able to procure
the support of union funding, is that, provided he has paid his membership fees to the union,
he will have the full financial support of the union behind him. His solicitor will still have to
convince the union as to the merits of the case, and will also be obliged to report on the case
prior to proceeding with it. However, the claimant will not have to worry that part of his
damages may be taken away to pay his legal expenses, as would be the case if he were funded
either through public funding or via a CFA or DBA.
9.2.9 Private fee-paying clients

Some clients will have no alternative but to fund their cases privately, or may choose to do so
in any event. In such circumstances the solicitor is required under the Code of Conduct to
explain to the client fully his liability for costs and disbursements. The solicitor should give
the best information on costs that he can, including likely disbursements and the hourly rate
that the solicitor proposes to charge (as to which see 9.2.1 above and Legal Foundations,
Professional Conduct).
9.3 QUALIFIED ONE WAY COSTS SHIFTING

On 1 April 2013, ‘qualified one way costs shifting’ (QOCS) was introduced for personal injury
and clinical negligence claims. This means that although a defendant will still generally be
ordered to pay the costs of a successful claimant, subject to certain exceptions, a defendant
will not recover his own costs if he successfully defends the claim. The new rules are
contained in CPR, rr 44.13–44.17 and PD 44 General Rules About Costs, paras 12.1–12.7.
9.3.1 When will QOCS apply?

Rule 44.13(1) provides that QOCS applies to proceedings which include a claim for damages:
(a) for personal injuries;
(b) under the Fatal Accidents Act 1976; or
(c) which arises out of death or personal injury and survives for the benefit of an estate by
virtue of s 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934.
It also applies where a person brings a counterclaim or an additional claim for such damages.
9.3.2 How does it work?

Rule 44.14 sets out the basic rule that:
(1) … orders for costs made against a claimant may be enforced without the permission of the court
but only to the extent that the aggregate amount in money terms of such orders does not exceed
the aggregate amount in money terms of any orders for damages and interest made in favour of
the claimant.
(2) Orders for costs made against a claimant may only be enforced after the proceedings have been
concluded and the costs have been assessed or agreed.
Rule 44.14 does permit costs orders to be made and enforced against claimants, but only to
the extent that those costs do not exceed the total damages the claimant recovers. Therefore
the effect is that a claimant who loses (and so has no damages against which an order for costs
can be enforced) will not have to pay the defendant’s costs. However, it does not preclude a
successful claimant being deprived of all or part of his costs, or ordered to pay the defendant’s
costs, in other circumstances. Enforcement of any such costs order cannot take place until
after the conclusion of the proceedings. The intention is to enable costs orders to be made in
the usual way against a claimant who fails to beat a Part 36 offer, loses an application or fails
to comply with court orders and directions.
9.3.3 Exceptions when QOCS will not apply

Rules 44.15 and 44.16 set out the exceptions:
(a) The claim is found on the balance of probabilities to be ‘fundamentally dishonest’. PD Costs, para
12.4 provides that the court will normally direct that allegations of fundamental
dishonesty will be determined at trial. The intention is that sham accidents and other
totally dishonest claims will lose the protection of QOCS.
(b) The claim is struck out as disclosing no reasonable grounds for bringing the proceedings, or as an abuse
of process, or for conduct likely to obstruct the just disposal of the proceedings.
(c) The proceedings include a claim which is made for the financial benefit of a person other than the
claimant. PD Costs gives examples of such claims as subrogated claims for damages for
the repair of a motor vehicle in an RTA or for credit hire of a replacement vehicle where
the beneficiary of the claim is the claimant’s insurer. The intention here is to prevent
insurers persuading a lay claimant to make a claim for a minor personal injury and to
include the claim for repairs or car hire, thereby enabling the insurer to obtain the
benefit of QOCS. In such a case, the rules expressly give the court the power to make a
costs order against a person other than the claimant, ie generally the injured claimant
will retain the QOCS protection for the injury element of the claim.
It is expected that there will be some satellite litigation with regard to the interpretation of
these new rules.
9.4 CONCLUSION
Personal injury lawyers are facing challenging times following the implementation of these
new rules on costs and funding, and it will take time before we can assess their true impact.
The introduction of QOCS was aimed at counter-balancing the impact on personal injury
claimants of the decision to abolish recoverability of CFA success fees and, in particular, ATE
insurance premiums. The intention behind QOCS is to make ATE insurance unnecessary for
personal injury actions, since the claimant will not be liable for the defendant’s costs if the
claim fails. It is not clear how effective this will be in practice, however, for the following
reasons:
(a) The fact that the claimant can lose the QOCS protection where the defendant has made
a Part 36 offer means that the claimant will potentially be back on risk for costs
whenever a Part 36 offer is made, though only up to the amount of the claimant’s
damages. If ATE cover is available in respect of this risk, and is taken out, the premium
will not be recoverable.
(b) ATE is also taken out, normally, to cover own disbursements as well as adverse costs.
The government has carved out from the reforms the cost of ATE premiums to cover
expert reports on liability and causation in clinical negligence cases, but the cost of ATE
cover in respect of other disbursements will not be recoverable.
Not surprisingly, there was a significant increase in the number of CFAs and AEI policies
entered into immediately before 1 April 2013. So far the profession has not shown any
enthusiasm for DBAs.
Investigating the Claim and Preliminary Steps 141
CHAPTER 10
Investigating the Claim and

Preliminary Steps

10.2 Pre-action Protocols 142
10.3 Identifying the defendant 143
10.4 Clinical negligence claims – preliminary steps 145
10.5 Employers’ liability claims for disease and illness – preliminary steps 148
10.6 Preliminary notification of the claim 149
10.7 Letter of claim 149
10.8 Claims Notification Form – low value claims 151
10.9 Response to the letter of claim or CNF 152
10.10 Acquiring evidence in respect of liability 152
10.11 Acquiring evidence in respect of quantum 158
LEARNING OUTCOMES
• set out the main requirements of the pre-action protocols for personal injury claims,
disease and illness claims, and clinical disputes, and the Practice Direction on pre-
action conduct
• identify the appropriate defendant in personal injury and clinical negligence cases
• set out the preliminary steps in such cases
• draft an appropriate letter of claim on behalf of the claimant
• respond appropriately on behalf of the defendant
• appreciate the different types of evidence which may be available and understand
how to go about collecting such evidence.
10.1 INTRODUCTION
During the first interview, the claimant’s solicitor will have taken a proof of evidence from his
client, who may have been able to supply additional evidence, such as documents or
photographs. However, in all but the most straightforward low value personal injury cases,
further information will be required before the claimant’s solicitor is able to send either the
Claim Notification Form (CNF) in a case falling within the scope of one of the low value pre-
action protocols, or a letter of claim in all other cases. In all cases where liability is not
accepted by the proposed defendant, full investigations must be made before proceedings are
issued.
The defendant may contact his solicitor immediately after the incident which has given rise to
the potential claim, but in many cases the defendant’s solicitor or the defendant’s insurer’s
solicitor will become involved only after the letter of claim or the CNF has been received. In
any event, the defendant’s solicitor must also make full investigations and, where a claim is to
be defended, gather evidence in support of his client’s case.
Solicitors acting for both parties should be keen to gather evidence quickly, while events are
fresh in the minds of clients and witnesses, and before real and documentary evidence is
repaired, misplaced or destroyed. In this chapter, the investigations that should be made will
be outlined. This chapter will also deal with the procedural steps that must be taken before
proceedings are issued. In this regard, the parties and their solicitors are guided by the
relevant pre-action protocols (PAPs).
10.2 PRE-ACTION PROTOCOLS

Solicitors dealing with personal injury and clinical negligence claims must be familiar with
the PAPs relating to these claims and the associated Practice Direction. There are a number of
protocols, and it is important to ensure that the correct one is consulted for each individual
claim. The protocols considered in this book are as follows:
(a) PAP for Personal Injury Claims. This is the correct protocol to use for road traffic
accident, tripping and slipping, and employers’ liability claims (except those resulting
in disease or illness) with a value of less than the fast track limit of £25,000 (and which
do not fall under the PAP for Disease and Illness Claims, the PAP for Low Value Personal
Injury Claims in Road Traffic Accidents or the PAP for Low Value Personal Injury
(Employers’ Liability and Public Liability) Claims – see (b), (d) and (e) below). However,
in higher-value, multi-track cases, the court will expect the parties to be bound by the
spirit of the PAP and to comply with it as far as possible. If one or both parties consider
that the PAP is not appropriate to their case, the court will expect an explanation as to
why it has not been followed. This PAP is set out in full in Appendix 2.
(b) PAP for Disease and Illness Claims. This is the correct protocol to use for all personal
injury claims where the injury takes the form of an illness or disease, eg mesothelioma,
asthma or dermatitis, which arises through working in or occupying premises or using
products (and which do not fall under the PAP for Low Value Personal Injury
(Employers’ Liability and Public Liability) Claims). These claims are likely to be complex
and therefore unsuitable for fast track procedures, even where the value is less than
£25,000. This PAP is not reproduced in this book, but may be found on the Ministry of
Justice website. (CPR, PD 3D, which gives further assistance in relation to
mesothelioma claims, is beyond the scope of this book.)
(c) PAP for the Resolution of Clinical Disputes. This is the correct protocol to use where the
claim relates to injuries resulting from healthcare and medical treatment. The PAP
recognises that it is in the interests of everyone involved – patients, healthcare
professionals and providers – that patients’ concerns, complaints and claims are dealt
with quickly, efficiently and professionally, and that the patient/clinician relationship is
preserved if at all possible, not least because the patient may need further treatment.
This PAP is set out in full in Appendix 3.
(d) PAP for Low Value Personal Injury Claims in Road Traffic Accidents. This is the correct
protocol to use where a claim for general and special damages for personal injury
resulting from an RTA (excluding damage to the vehicle and hire costs) is valued at no
more than £25,000, the value for pain, suffering and loss of amenity exceeds £1,000,
and the CNF was sent on or after 31 July 2013. (The previous version of this PAP, dealing
with claims of up to £10,000, shall continue to have effect in respect of any claim where
the CNF was sent before 31 July 2013.) There are exclusions, set out in para 4.5 of the
PAP, such as where the claimant or defendant is either a personal representative of a
deceased person or is a protected party (for protected party, see Chapter 20).
Claims commenced under this PAP may cease to be governed by it in a number of
circumstances, such as where the defendant defends the claim or admits negligence but
alleges contributory negligence (other than simple failure to wear a safety belt). The PAP
is not reproduced in this book, but the main elements of the PAP and the associated
practice direction are set out in Chapter 21.
(e) PAP for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims. This
is the correct protocol to use where damages for personal injury in an employers’ liability
or public liability claim are valued at no more than £25,000 and the accident occurred on
or after 31 July 2013 or, in a disease claim, no letter of claim was sent before 31 July 2013
(although there are exclusions – see para 4.3 of the PAP). As in (d) above, there are
circumstances where claims commenced under this PAP may cease to be governed by it.
This PAP is set out in full in Appendix 4 and is covered in more depth in Chapter 21.
In addition to these protocols, there is a Practice Direction on pre-action conduct (‘PD Pre-
action Conduct’) which describes the conduct the court will normally expect of the
prospective parties prior to the start of the proceedings.
The PAPs deal with such matters as the letter of claim and the defendant’s response, but
before the claimant’s solicitor can think about writing the letter of claim, he will need to
investigate the matter further and ensure that he has identified the correct defendant.
10.3 IDENTIFYING THE DEFENDANT

One of the first issues for the claimant’s solicitor to deal with is the identification of the
defendant and, in many cases, this will be straightforward. However, this question should
always be addressed carefully by the claimant’s solicitor, as sometimes the issue may not be as
simple as it appears, and it is crucial to issue proceedings within the primary limitation period
against the correct defendant.
Generally, there is little point in pursuing a claim against a defendant unless he is insured, or
has the means with which to pay the judgment sum. It is important to note that, for the
purposes of the two PAPs for low value claims, the CNF will be sent to the insurer and it will be
necessary, therefore, to make a reasonable attempt to identify the insurer. The means of doing
so are set out at 10.3.1 and 10.3.2 below.
10.3.1 Road traffic incidents and other highway claims

In a road traffic accident claim, it is necessary to establish not only the name of the driver of
the vehicle and his insurance position, but also the name of the owner of the vehicle and of his
insurer. Under the Fourth EU Motor Insurance Directive, it is a requirement that the insurer of
a vehicle must be readily identifiable from the vehicle registration number. Therefore, when
trying to trace the owner and insurer of a vehicle involved in a road traffic accident, if the
claimant has taken down the registration of the other driver’s vehicle, the solicitor should be
able to trace the insurance details. The UK insurance industry has met this requirement by
introducing the Motor Insurance Database (MID), which provides details of all vehicles and
their associated insurance policies. Individual firms of solicitors can apply for a licence to
operate the MID system, allowing them almost instant access to insurance details of third
parties, accessed by means of the vehicle registration mark.
10.3.1.1 Driving in the course of employment

Frequently, the driver may be using a vehicle owned and insured by his employer. In such
cases, the claim would normally be issued against the employer (or vehicle operator in the
case of commercial vehicles). If it is unclear whether or not the driver was acting within the
course of employment, it is usual to sue both the driver and the employer. Similarly, if
protective proceedings are necessary to avoid the claim being statute-barred under the LA
1980 (see 7.9.2), and there is insufficient time to investigate the issue of vicarious liability
properly, the claim should be issued against both driver and employer.
10.3.1.2 Insured drivers – naming the insurer as defendant

Under reg 3 of the European Communities (Rights against Insurers) Regulations 2002 (SI
2002/3061), where a claimant has an action in tort against an insured person arising out of an
accident, he has a direct right of action in the courts against the driver’s insurer. This means
that he can issue proceedings against the insurer alone, or in addition to the driver. How this
is dealt with in practice varies. Some solicitors acting for claimants always issue proceedings
directly against insurers where they are able to do so; some never do so. On a practical level, it
is unlikely to make any measurable difference to how the proceedings are conducted or to the
final outcome. Where a driver is insured, it will be the insurance company and its solicitors
who will determine how the proceedings are conducted, and it will be the insurance company
who will pay up, should liability be established, whether or not it is named as a defendant.
Under the terms of the policy, the driver will be obliged to cooperate with the insurer in
defending the matter, including giving evidence at trial if necessary, whether or not he is
named as a defendant.
10.3.1.3 Invalid insurance – Road Traffic Act 1988, ss 151 and 152
Sometimes, a situation will arise where a vehicle was covered by a policy of insurance at the
time of the accident, but the policy did not cover the driver or the insurer has grounds to void
the policy. The claimant should not be dissuaded from commencing proceeding against the
driver on the grounds that he may be impecunious, as the insurance company will be obliged
to pay out on the judgment to the claimant, provided the correct notice is given (see 3.3
and 12.3.4).
10.3.1.4 Uninsured drivers

Where the accident is caused by an uninsured driver, an application should be made to the
Motor Insurers’ Bureau (MIB) under the Uninsured Drivers’ Agreement 1999 (see 3.4). If the
MIB declines liability, proceedings should be commenced against the driver, as first
defendant, and the MIB, as second defendant. If the driver is found to be liable, the MIB must
satisfy the judgment, provided the claimant has followed the steps set out in the Agreement.
10.3.1.5 Untraced drivers

Where the accident is caused by a ‘hit and run’ driver who cannot be traced, it will not be
possible to commence court proceedings. Instead, an application should be made to the MIB
on behalf of the injured party under the Untraced Drivers Agreement 2003. This scheme is
considered in 3.4.
10.3.1.6 Highway authorities, statutory undertakers and other owners of the highway
Where there are indications that the actions or omissions of a highway authority, statutory
undertaker or some other owner of the highway have caused or contributed to the claimant’s
accident, enquiries may be made of the local council in order to identify who that body is.
Every council is obliged to keep and allow access to records detailing the ownership of
highway land within its area (see 3.5.1); and it will also have information about any activities
of statutory undertakers on highway land, as the council operates a licensing system (see
3.5.2.4). Whilst highway authorities and statutory undertakers will always have public liability
insurance, other owners of the highway may not.
10.3.2 Employers’ liability claims

If an incident occurs at work, notwithstanding that the incident was caused by another
employee or someone acting as agent for the employer, provided that person was acting in the
course of employment, it is usual to sue the employer only (see 4.4). (Although the defendant
will generally be the employer, a claim may also be made against the occupier of the premises,
or against the person with control of the premises if different from the employer. This lies
beyond the scope of this book.) All employers should have appropriate insurance, although a
minority of rogue employers may not, and the claimant’s solicitor should carry out a database
search through the Employers’ Liability Tracing Office in order to establish the identity of the
insurer.
10.3.3 Cases involving negligence of doctors and medical staff

10.3.3.1 Claims arising out of NHS hospital treatment
If the claim arises out of treatment in a hospital by an employee of the NHS, the relevant NHS
Trust or Foundation Trust is named as the defendant. It is not appropriate to sue individual
doctors or nurses in the direct employment of the Trust.
In order to identify the name and address of the relevant Trust, a search can be made on the
NHS website (www.nhs.uk) by typing in the name of the hospital.
The National Health Service Litigation Authority (NHSLA) is responsible for handling all
clinical negligence claims against NHS bodies and their employees, who are indemnified
under the Clinical Negligence Scheme for Trusts. The NHSLA has a panel of firms of
solicitors to deal with such claims on its behalf (see 5.7).
10.3.3.2 General practitioners

General practitioners (GPs) are almost always self-employed, and they contract their services
to the NHS. A GP is liable for his own acts and for the acts of his employees. General
practitioners often operate in partnerships, and in such cases, the claim may be issued against
the individual GP concerned or against the partnership. General practitioners will carry
indemnity insurance from an organisation such as the Medical Defence Union or the Medical
Protection Society.
10.3.3.3 Private hospitals and clinics

If the claim arises out of treatment in a private hospital or clinic, the decision as to who should
be named as the defendant will depend upon the basis of the claim. The doctors and some
other healthcare providers will usually be independent contractors. Where it is their breach of
duty which has led to the claim, the claim should be issued against them as individuals, as
vicarious liability is not applicable. They will be indemnified by their own medical defence
organisations.
The hospital or clinic will employ the staff who run and administer it, and this will usually
include nursing staff. If the claim arises out of the actions of employees, the hospital or clinic
should be named as defendant. It will carry its own insurance. The hospital or clinic will
advise the claimant’s solicitor as to the position of individuals who are employed or who
otherwise use their premises.
10.3.3.4 Private treatment from dentists

A dentist treating private patients is not under any statutory or professional requirement to
have insurance cover in respect of professional negligence – although the majority are
insured.
10.4 CLINICAL NEGLIGENCE CLAIMS – PRELIMINARY STEPS

The PAP for the Resolution of Clinical Disputes assumes that the patient’s medical records
will be provided to him by the health care provider before the letter of claim is sent. It may also
be necessary for the claimant’s solicitor to instruct an expert to look at the records and advise
as to liability and/or causation prior to the letter of claim.
10.4.1 Obtaining medical records

The claimant’s solicitor should obtain a copy of his client’s records from his GP and from the
hospital where he was treated, in order to build up a full picture of his client’s health prior to
the incident and of the treatment he received. The GP’s records should contain notes of
symptoms, medication and treatment, referrals to hospital, reports back from hospital
doctors and referrals to other professionals such as occupational therapists, physiotherapists
or community nurses. The hospital records will contain details of the client’s admission, his
consents to treatment, x-rays, photographs, print-outs from monitoring equipment, nursing
records and comments made by the doctors who were treating him.
The claimant’s solicitor should ensure that he obtains all the notes, not just those which are
supplied and marked relevant to the matter in hand, as background history may be highly
relevant. In Wickham v Dwyer (1995) Current Law Weekly, 1 January, the court held that it was for
the expert to determine whether or not there was any information of any irrelevance
contained within the notes, and therefore it was fair to allow the solicitors and experts access
to the full notes.
Until all records have been traced and disclosed, the solicitor will not be in a position to
instruct an expert to review the evidence and form a view on liability and/or causation. Early
and full disclosure is the key to successful clinical negligence litigation as, without this, it may
be impossible for the claimant and his solicitor to know exactly what happened.
10.4.1.1 Client’s authority

The solicitor must obtain from his client a signed authority permitting the solicitor to make
an application to the relevant doctor(s)/hospital for copies of the client’s records. Although a
short letter addressed to the solicitor and signed by the client will suffice, many practitioners
use the form of consent for release of health records produced by The Law Society and
the BMA.
The aim of the form is to demonstrate that the patient’s informed consent to the release of the
records has been obtained. It requires the solicitor to sign and confirm that he needs the
records for a legitimate purpose, and it also makes it clear to the client that, in giving his
consent, he understands that the defendant may also gain access to all of the client’s health
records.
10.4.1.2 Right of access to medical records

Records of living individuals
The Data Protection Act 1998 (DPA 1998) gives the right to living individuals to access their
personal health records. For the purposes of the Act, ‘records’ may be handwritten or in a
computerised form, and will include imaging records, such as x-rays, photographs and print-
outs from monitoring equipment.
Records of deceased individuals

The Access to Health Records Act 1990 governs access to the health records of individuals
who have died. Access may be requested only by a personal representative or a person who
may have a claim arising out of the death.
10.4.1.3 Procedure for obtaining access to medical records

At Annex B of the PAP for the Resolution of Clinical Disputes, there is a Protocol for Obtaining
Hospital Medical Records, which contains a specimen application form for use when making
a request for copies of a client’s medical records. Most healthcare providers have an
application form which is based on that found in the PAP. The request should contain enough
information to allow the data controller to identify the data subject (the individual) and to
locate the information requested.
Where it is the solicitor who is making the request, the client’s consent should be supplied. In
addition, the solicitor would normally be expected to give an undertaking to be responsible
for the reasonable charges incurred in supplying copies of the records to him. The maximum
charge for supplying copies is £50, which is for copying and posting the records only and
should not result in a profit for the record holder. No fee is chargeable where the request is for
access merely to inspect the health records.
The DPA 1998 allows the record holder 40 days from the date of the request to supply the
information requested, although the Department of Health’s policy is to comply with the
request promptly and, in any event, within 21 days.
10.4.1.4 The content of medical records

The following list summarises the type of information the solicitor might expect to be
supplied to him in response to a request for records or notes. The exact contents of the
records or notes will vary from case to case and the following list is not exhaustive, but it is
intended as a general guideline to the type of information which the solicitor can expect to
receive:
(a) Admission details/record sheet. These should give the date and the time of admission, the
record number, the name of the ward and the name of the consultant in charge of the
case.
(b) In-patient notes. These include casualty notes (where appropriate), personal details of the
patient, a detailed history of the patient and of the initial examination, daily progress
and record notes, discharge notes, a copy of the letter to the GP giving details of the
patient’s treatment and a general report to the GP.
(c) Nursing records. Nursing records are detailed notes made by nursing staff including
temperature charts, vital signs, test results, results of all investigations carried out, and
details of drugs prescribed and taken.
(d) Letters of referral. These include referrals from GPs, responses to GPs following
consultation or complaint of a missed appointment, and comments on the patient’s
demeanour and attitude.
(e) Records of x-rays. These include other films taken. Copies of the x-rays and films
themselves are not supplied automatically (only the record of the fact that the x-ray was
carried out) and copies of the films will have to be obtained separately.
(f ) Anaesthetic details. These are details of the examination of the patient prior to an
operation, a record of the drugs administered during pre-medication and during the
operation itself.
(g) Patient consent forms. These forms show what treatments the patient consented to have
performed on him.
(h) Internal enquiry reports. Where an internal enquiry has been held and the dominant
purpose of that enquiry was not in contemplation of litigation, the enquiry notes will be
discoverable.
(i) Obstetric cases. The following documents should also be supplied:
(i) progress of labour cards;
(ii) cardiotachograph (CTG) traces showing foetal contractions;
(iii) partogram (showing labour in chart form);
(iv) ante-natal records;
(v) neo-natal records;
(vi) paediatric notes.
10.4.1.5 General practitioner notes

Information kept by a GP may be in paper or electronic form. Records will include the doctor’s
own notes, and may include reports of any investigations requested by him, letters of referral
to hospitals or consultants and any responses, letters from hospital regarding out-patient
clinic attendances and treatment, and in-patient discharge summaries.
The GP’s records will be relevant in many cases where there is no potential claim against the
GP. In such cases, when making a request for records, the claimant’s solicitor should inform
the GP that he is not a potential claimant. In all cases, the GP should be asked to preserve the
original records, so that they are not inadvertently destroyed or microfiched before the trial.
10.4.1.6 Examining the records

The solicitor should ensure (as far as possible) that the notes or records supplied to him are
complete and are in chronological order, which will show the pattern of the disease or
problem and its treatment, and may also highlight missing documents or records. Where the
claimant’s solicitor suspects that a document or documents may be missing, or where
documents have been badly copied or are otherwise illegible, he should raise the issue with
the records holder, since an incomplete set of records may distort the overall picture and thus
give a false impression of the claim. It may be necessary to make an appointment with the GP
or hospital to inspect the original documents. It is also helpful for the solicitor to go through
the records with the client to ensure that the treatment shown on the records accords with the
client’s recollection of what actually occurred. The records should be supplied to the solicitor
and not direct to the expert, so that the solicitor has an opportunity to check them through
before instructing the expert to prepare his report.
10.4.1.7 The defendant Trust

Where the potential defendant is an NHS Trust or other member of the Clinical Negligence
Scheme for Trusts, a request for medical records will prompt an initial inquiry by the Trust.
Where this inquiry suggests that there has been a serious adverse event, or if there is a
potential claim of a value of over £250,000, the Trust will notify the NHSLA, which may
instruct solicitors from its panel to act on behalf of the Trust (see 5.7). In such a case, the
defendant will be legally represented from an early stage.
10.4.2 Instructing an expert on liability and/or causation

In clinical negligence cases, it will be necessary to instruct one or more medical experts to
consider the claimant’s medical records and provide an opinion on matters relating to breach
of duty and causation. Frequently, it will be appropriate to do this before the letter of claim is
sent. In due course, other medical experts will deal with issues relating to quantum. Expert
evidence is dealt with in Chapter 11.
10.5 EMPLOYERS’ LIABILITY CLAIMS FOR DISEASE AND ILLNESS –

PRELIMINARY STEPS
Disease and illness claims are very difficult to establish, particularly the so-called ‘long-tail’
claims, where the illness or disease manifests itself many years after exposure to the causative
substance or working conditions (see 4.7). It will not be possible for the claimant’s solicitor to
assess whether there is a claim with a reasonable chance of success until he has seen the
medical notes held by his client’s GP and has obtained his occupational records from the
potential defendant, who will be either the claimant’s current employer or a former employer.
These notes will enable the claimant’s solicitor to draw up a chronology of events and map
the progress of the disease. He may need a medical expert to advise as to causation before the
letter of claim is sent.
Records should be obtained from the GP, as discussed in 10.4.
10.5.1 Obtaining occupational records

In accordance with para 4 of the PAP for Disease and Illness Claims, the claimant’s solicitor
should write to the potential defendant, the client’s employer or former employer, requesting
his occupational records, including health and personnel records, before the letter of claim is
sent. The DPA 1998 applies. Sufficient information should be given in the letter of request to
alert the potential defendant or his insurer to the fact that a potential disease claim is being
investigated. A specimen letter and request form to be used for this purpose is set out at
Annexes A and A1 of the Protocol.
Records should be provided within a maximum of 40 days of the request, free of charge. The
Protocol suggests that as a matter of good practice, the potential defendant should also
disclose any product data documents which the claimant has requested which may resolve a
causation issue. Where documents are not provided within 40 days and no information is
forthcoming from the defendant to explain the reasons for the delay, the claimant should
apply to the court for an order for pre-action disclosure (see 10.10.2).
The claimant’s solicitor should also seek to obtain relevant occupational records held by other
bodies or individuals who have employed the claimant in the past.
10.6 PRELIMINARY NOTIFICATION OF THE CLAIM

In many instances, the potential defendant will be aware of the possibility of a claim before
the letter of claim is sent. Where this is not the case, the claimant’s solicitor may wish to give
the potential defendant early notification before he is in possession of sufficient information
to enable him to send the letter of claim. In accordance with the para 2.6 of the PAP for
Personal Injury Claims, this will not start the clock ticking for the purposes of the time limit
set for the defendant’s response.
10.7 LETTER OF CLAIM

10.7.1 Purpose
The letter of claim should be sent to the proposed defendant, although a copy should be also
sent to the insurer, where known, in personal injury cases. The principal function of the letter
of claim is to notify the defendant of the proposed claim and, where the insurer’s details are
not yet known, to request that a copy is forwarded to the insurer, thus ensuring that the
insurer is involved at the earliest possible date.
10.7.2 When should it be sent?

10.7.2.1 Personal injury claims
The PAP for Personal Injury Claims states that the letter of claim should be sent ‘immediately
sufficient information is available to substantiate a realistic claim and before issues of
quantum are addressed in detail’ (para 3.1). The PAP for disease and illness claims has similar
wording (para 6.1).
In practice, this means that before the letter of claim is sent, sufficient investigative work
must be carried out in order to satisfy the claimant’s solicitor that there is a reasonable
prospect of the claim being successful. However, bearing in mind the overriding objective set
out in r 1 of the CPR, particularly the issue of proportionality, and the fact that the defendant
might admit liability, the claimant’s solicitor does not need to investigate every part of his
client’s case before the letter of claim is sent to the defendant. At this stage, he should avoid
expensive disbursements, such as those associated with instructing experts, if possible,
although this will depend on the nature of each individual case.
In occupational disease and illness claims, the claimant’s solicitor will need to obtain
occupational and medical records, and obtain an expert’s opinion on those records prior to
the letter being sent (see 10.4.2).
10.7.2.2 Clinical negligence claims

The PAP for the Resolution of Clinical Claims states that as soon as the patient and his adviser
decide that there are grounds for a claim, the letter should be sent ‘as soon as practicable’. It
will not be possible for the claimant’s solicitor to assess whether or not there are grounds for a
claim until his client’s medical records have been obtained and analysed by a medical expert.
The letter of claim should be sent after the medical expert has confirmed that liability and
causation can be established. Any letter of claim sent to an NHS Trust or Independent Sector
Treatment Centre should be copied to the NHS Litigation Authority.
10.7.3 What should it contain?

The precise wording contained in the three pre-action protocols differs, and therefore
reference to the relevant protocol should be made in order to determine precisely what the
letter of claim should contain in each type of case. The specimen letters of claim which are set
out in the Appendices of each of the pre-action protocols are also useful. However, the
following should be included:
(a) a clear summary of the facts on which the claim is based;
(b) the main allegations of negligence/breach of statutory duty (and an outline of the causal
link where this is likely to be in dispute);
(c) an indication of the nature of all of the injuries that have been sustained, including
current condition and prognosis where relevant; and
(d) an indication of other financial losses.
The letter should contain enough information to enable the defendant, his insurer or his
solicitor to investigate the proposed claim and put a broad valuation on the claim. However,
the claimant’s solicitor should not attempt to quantify damages at this stage as, in most cases,
he will not have investigated quantum in any detail.
The letter of claim does not have the same status as a statement of case and therefore the
claimant will not be held to the content of the letter. Nevertheless, the claimant’s solicitor
should be as accurate as possible, in order to avoid credibility issues should the matter go to
trial.
Depending upon the nature and circumstances of each individual case, the following matters
may also be relevant:
(a) In person injury cases only, two copies of the letter should be sent to the defendant, and
the letter should contain a request to the defendant to pass one copy on to his insurers.
Where the insurer’s details are already known, this will not be necessary and a copy of
the letter should be forwarded directly to the insurers.
(b) In most clinical negligence claims, medical reports will have already been obtained from
the proposed defendant; and in occupational disease and illness claims, occupational
records and possibly product data information will have been obtained. However, where
there may be further relevant information and in all other cases, the letter should
contain a request for the early disclosure of relevant documents which the claimant
anticipates are in the defendant’s possession. Upon notifying the claimant of his denial
of the claim, a defendant should disclose any documents he holds that are material to
the issues. However, it is best practice for the claimant’s solicitor to assist him by
identifying in the letter of claim those which he believes are material (see 10.10.1).
(c) Where the claimant has entered into a funding arrangement (ie a CFA or an AEI policy)
prior to sending a letter of claim, details should be given in the letter of claim. CPR,
r 44.3B(1)(c) and (e) states that a party may not recover any additional liability (ie the
success fee or insurance premium) for any period in the proceedings during which he
failed to provide information about a funding arrangement. In accordance with para
19.4 of the Costs Practice Direction, where the funding arrangement is a CFA, the
claimant must supply details of the date of the agreement and the claim or claims to
which it relates. Where it is an insurance policy, the details are the name and address of
the insurer, the policy number, the date of the policy, the claim or claims to which it
relates, the level of cover provided by the insurance, whether the insurance premiums
are staged, and, if so, the points at which an increased premium is payable. The letter
should not give details of the success fee (unless fixed by law) or the cost of the
insurance premium as this would give some indication to the defendant as to how the
claimant’s solicitors perceive the strength of the claim. Form N251 may be used to
provide the required information (see 9.2.2.6 and 12.3.2).
(d) In RTA cases where the claimant was treated in hospital, the letter of claim should set
out the name and address of the hospital and his hospital number, where available.
(e) In occupational disease and illness claims and the more complex clinical negligence
claims, the letter should include or enclose a chronology of events.
(f ) In occupational disease and illness claims, particularly where the claimant had several
employers and the disease has a long latency period, the letter should include or enclose
details of the claimant’s employment history.
(g) In EL claims, the letter should include a request for information relating to the
claimant’s earnings, for quantum purposes.
(h) In a clinical negligence claim, the letter should refer to any documents, including
medical records, which the claimant considers to be relevant and, if possible, enclose
copies of those which are not already in the possession of the potential defendant.
(i) In an occupational disease or illness claim, the letter should refer to any relevant
documents, including health records not already in the potential defendant’s
possession. Copies of these records should not be enclosed with the letter of claim.
Instead, the defendant should be invited to nominate an insurance manager or a
solicitor to whom the documents may be supplied upon receipt of the defendant’s
response.
(j) In the majority of cases, witness statements and the reports of experts would not be
disclosed at this stage. However, where the claimant’s solicitor feels that such evidence
demonstrates a very strong case on liability, he may decide to disclose it with the letter
of claim, as this may lead to an admission of liability by the defendant.
(k) The claimant’s solicitor may make an offer to settle in the letter of claim, by setting out
what his client would be willing to accept in full and final settlement of the matter.
However, in many cases, a detailed investigation into quantum will not have been
undertaken by the claimant’s solicitor and therefore an offer should not be made.
See Document 2 of the Case Study in Appendix 1 for an example of a letter of claim.
10.8 CLAIMS NOTIFICATION FORM – LOW VALUE CLAIMS

Where a claim falls under one of the low value claims PAPs (see 10.2 above and Chapter 21),
the claimant’s solicitor commences the process by completing and sending the Claim
Notification Form (CNF) to the defendant’s insurer electronically through the Portal at
www.claimsportal.org.uk and, in the case of employers’ liability (EL) or public liability (PL)
claims, sending the Defendant Only CNF (DCNF) to the defendant electronically through the
Portal. In EL or PL cases where it is not possible to serve the defendant electronically, and in
RTA cases, the DCNF should be sent to the defendant by first class post at the same time as
sending the CNF to the insurer, or as soon as practicable thereafter.
All boxes in the CNF and DCNF which are marked as mandatory must be completed, and a
reasonable attempt made to complete those boxes which are not marked as mandatory. The
statement of truth in the CNF must be signed by the claimant or the claimant’s legal
representative where the client has authorised him to do so and the representative can provide
written evidence of that authorisation. Where the claimant is a child, the statement of truth
may be signed by the parent or guardian. On the electronically completed CNF, the person
may enter his name in the signature box to satisfy this requirement.
10.9 RESPONSE TO THE LETTER OF CLAIM OR CNF

10.9.1 Personal injury claims
In personal injury claims where the claim does not fall under one of the new low value
protocols, the defendant has 21 calendar days of the date of the posting of the letter of claim
to send a preliminary response to the claimant. In this letter, the defendant should identify
his insurer, if any, and highlight any significant omissions from the letter of claim. If there is
no reply from the defendant or his insurer within that period, the claimant is entitled to issue
proceedings.
The defendant has three months from the date of acknowledging the claim to investigate the
matter and provide a substantive response. Where the claim is denied, reasons for the denial
and any alternative versions of events should be set out. Any documents material to the issues
(which are not privileged) should be enclosed. The individual pre-action protocols give
further information as to what information should be included.
See Document 3 of the Case Study in Appendix 1 for an example of a defendant’s letter
denying liability.
10.9.2 Clinical negligence claims

In clinical negligence claims, the defendant has less time to respond. The letter of claim must
be acknowledged within 14 days of receipt and the person dealing with the matter should be
identified. Where the claim is denied, full reasons for the denial should be provided within
four months of the letter of claim. A template for the letter of response is at Annex C2 of the
PAP for the resolution of clinical disputes (see Appendix 4).
As an internal matter, where the defendant is a member of the NHSLA’s Clinical Negligence
Scheme for Trusts, it must notify the NHSLA within 24 hours of receipt of a letter of claim.
The NHSLA may appoint solicitors from its panel to deal with the potential claim at this stage,
where the complexity of the issues and the likely value of the claim warrant it.
10.9.3 Low value claims

Where one of the low value pre-action protocols applies, the insurer must send to the
claimant’s solicitor an electronic acknowledgement of the CNF the day after its receipt. It
must then complete the ‘Insurer Response’ section of the CNF and send it to the claimant
within 15 business days of the acknowledgment in the case of RTAs and 30 days in the case of
EL and PL cases. Where the defendant denies liability, he must give brief reasons.
If the insurer fails to respond within this time limit, denies liability, alleges contributor
negligence (other than failure to wear a seatbelt in a RTA) or states that the information in the
CNF is inadequate, the claim exits the low value PAP and continues in accordance with the
relevant non-low value PAP. In accordance with para 2.10A of the PAP for Personal Injury
Claims, where this happens, the CNF can be used as a letter of claim, unless the defendant
notifies the claimant that there is inadequate information on the CNF. The insurer/defendant
then has 30 days from the date of acknowledgment of the claim to investigate the matter and
serve a full response on the claimant.
10.10 ACQUIRING EVIDENCE IN RESPECT OF LIABILITY

Although the claimant’s solicitor will have obtained sufficient evidence to justify the dispatch
of the CNF or letter of claim, where the defendant denies liability, he will need to obtain
further evidence in order to ensure that liability can be proved at trial, if need be.
10.10.1 Documents held by the defendant

The claimant’s solicitor will have no difficulties in obtaining documents which are in the
possession of his client, or documents to which the public have access. However, many of the
documents which will give real insight into the causes of the accident will be in the possession
of the proposed defendant.
The pre-action protocols are designed to encourage parties to have an open-handed approach
to litigation, and this requires each party to allow the other to see relevant documents at an
early stage. In clinical negligence claims and in occupational disease and illness claims, the
relevant pre-action protocols envisage that the claimant will obtain medical records or
occupational health records prior to the sending of the letter of claim (see 10.4 and 10.5). In
all other cases, where the defendant denies liability, he should enclose with his letter of reply
copies of all documents in his possession which are material to the issues between the parties
and which would be likely to be ordered to be disclosed by the court, either on an application
for pre-action disclosure or on disclosure during proceedings. In clinical negligence and
occupational disease and illness claims, the defendant should disclose any relevant
documents he has not yet disclosed.
10.10.1.1 Documents relevant to personal injury claims

Annex B to the PAP for personal injury claims contains lists of documents which are likely to
be in the defendant’s possession in various types of claim, and in the letter of claim the
claimant’s solicitor should set out which documents he requires, should liability not be
admitted. However, Annex B does not provide an exhaustive list of what the defendant may
have and there might be other relevant documents, including, for example, minutes of
meetings, memorandums between in-house departments or individuals, and reports. With
experience, the personal injury solicitor will obtain an understanding of the types of
documents which might be available in certain circumstances, but the claimant’s solicitor
should always listen carefully to what his client and other witnesses have to say, as they may
know of the existence of documentation without understanding its relevance.
It is important to remember that, for the purpose of disclosure, the term ‘document’ is not
restricted to written documents but includes anything in which information of any
description is recorded. It therefore includes audiotapes, videotapes, photographs and
electronic documents such as e-mails. Footage from CCTV cameras is becoming increasingly
available, and in workplace claims, it is possible that the employer had installed a CCTV
camera in, for example, a factory, warehouse or supermarket, which has captured images of
the accident.
10.10.1.2 Documents relevant to employer liability claims

A list of documents which the defendant employer may be expected to have following an
accident at work are set out in Annex B to the PAP for personal injury claims. However, the
following documents may require an explanation:
(a) The Accident Book. Under the Reporting of Injuries, Diseases and Dangerous Occurrences
Regulations 1995 (RIDDOR 1995) (SI 1995/3163), employers are required to keep an
accident book of an approved type where details of all accidents that occur on the
premises must be recorded. The claimant’s solicitor should not only ask the employer
for a copy of the relevant page from the accident book, but should also consider whether
the book itself should be inspected for evidence of similar incidents in the past.
See Document 4 of the Case Study in Appendix 1 for an example of a report from an
employer’s accident book.
(b) RIDDOR report to the HSE. Employers are required to report certain classes of injury or
disease sustained by people at work and specified dangerous occurrences. The RIDDOR
1995 require the responsible person (ie the safety officer/manager) to inform the HSE as
soon as possible of the incident, and to follow it up with written confirmation within 10
days. The defendant should retain a copy of the report in its files.
The reportable occurrences include:
(i) the death of any person;

(ii) any person suffering a specified major injury;
(iii) any person suffering an injury which is not major but which results in him being
away from work or unable to do the full range of his normal duties for more than
seven days;
(iv) any person suffering from a work related disease;
(v) where there has been a dangerous occurrence. Dangerous occurrences are listed
in Sch 2 to RIDDOR 1995 and include such things as dangerous occurrences
involving overhead electric lines, biological agents and radiation generators, as
well as occurrences in mines, at quarries, on the railways and at off-shore
installations.
See Document 5 of the Case Study in Appendix 1 for an example of a report to the HSE –
RIDDDR.
10.10.2 Application for pre-action disclosure and inspection

Where the claimant’s solicitor believes the proposed defendant has relevant documentation
which he has not disclosed in compliance with the protocol, and he has failed to respond to
written requests to do so, an application for disclosure prior to the start of proceedings should
be made under s 33 of the Senior Courts Act 1981 or s 52 of the County Courts Act 1984. The
application must be supported by appropriate evidence, and the procedure is the same in both
the High Court and county court. Under r 31.16, the court may make an order for disclosure
only where:
(a) the respondent is likely to be a party to subsequent proceedings;
(b) the applicant is also likely to be a party to the proceedings;
(c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule
31.16, would extend to the documents or classes of documents of which the applicant seeks
disclosure; and
(d) disclosure before proceedings have started is desirable in order to—
(i) dispose fairly of the anticipated proceedings; or
(ii) assist the dispute to be resolved without proceedings; or
(iii) save costs.
An order under r 31.16 will specify the documents or class of documents which the
respondent must disclose and require him, when making such disclosure, to specify any of
those documents which he no longer has, or which he claims the right or duty to withhold
from inspection. The order may also specify the time and place for disclosure and inspection
to take place.
10.10.3 Documents held by third parties

Relevant documents may also be held by third parties. In some instances, for example where
documents are held by the police or the HSE, the claimant’s solicitor will generally be able to
obtain copies, although he may be frustrated by the delay. Where documents contain the
claimant’s personal data, for example, occupational records held by someone other than
the proposed defendant, he is entitled to see them under the DPA 1998.
In other cases, where a third party holds documents and it is under no statutory obligation to
disclose them, the claimant’s solicitor should make a polite request, offering to pay all the
reasonable costs associated with providing access to or copies of the documents. If the third
party refuses to cooperate, generally the claimant’s solicitor cannot apply to the court for an
order of disclosure and inspection until proceedings have commenced (see CPR, r 31.17). The
court does have an equitable power to make a pre-action order for disclosure against third
parties, but this will be exercised only in rare circumstances, a consideration of which lies
beyond the scope of this book.
10.10.3.1 Documents relevant to RTAs – the police accident report

In the case of a road traffic incident, it may be useful to obtain a copy of the police accident
report (PAR), if one exists. Some police forces use different terminology, eg ‘collision report’.
The following should be borne in mind:
(a) The PAR will contain statements from the parties and a sketch plan, as well as the police
officer’s comments on the condition of the vehicles, the road surface, the weather
conditions and details of any criminal proceedings that have been commenced as a
result of the accident. It may also include photographs and witness statements. Some
PARs contain more useful information than others and, bearing in mind that a fee will
be payable, it may be advisable to ask what the PAR does contain before seeking to
obtain a copy.
(b) In order to obtain a copy of the PAR, the solicitor should contact the accident records
department at the police force headquarters for the area in which the accident occurred
(not the police officer assigned to the case). The letter should include details of the date,
time and place of the accident, the registration numbers of the vehicles and the full
names of those involved.
(c) The PAR will not be released until the conclusion of any criminal investigation and
proceedings. If the defendant is convicted of an offence which is relevant to the issue of
negligence, it is likely that he (or more likely his insurers) will want to settle the
proceedings, and therefore it will not be necessary to obtain a copy of the PAR.
(d) A fee is payable for the PAR. The amount of the fee varies, depending upon the relevant
police force, the length and nature of the report and the type of accident. In the case of
an accident involving serious injury or death, the report is much more extensive than the
standard PAR and will usually contain a large number of photographs. To give you some
idea of the charges involved, a tariff of the charges made by Surrey Police can be found at
http://www.surrey.police.uk/about-us/additional-services/charge-rates, and includes
£86.00 for a copy of a PAR of up to 30 pages, £3.70 for any additional pages, and
£369.50 for a report following a fatal accident. The solicitor should ensure that funds
are available to cover the fee.
(e) On payment of a further fee, the police officer who prepared the PAR may be
interviewed, in the presence of a senior officer. (If the matter goes to trial, police
officers will give evidence in civil proceedings, but they must be witness summonsed
and a further fee will be payable.)
(f ) If there is no PAR, it is still possible to obtain copies of police notebooks and witness
statements on payment of a fee. Because reports may be destroyed (in some cases after
as little as one year), a request for a report should be made promptly, notwithstanding
that the report will not actually be released until the conclusion of criminal
investigations.
10.10.3.2 Documents relevant to work-based claims – HSE reports

Health and Safety Executive reports are the equivalent of police reports in the field of
industrial incidents. Generally, the same rules apply as with police reports, although, due to
lack of resources, a report may only be available in the case of very serious injury or death.
The HSE officer responsible for the factory or workplace concerned should be approached
with a request for a copy of his report. As with the PAR, the HSE report will not be available
until after any criminal prosecution has been dealt with. If the HSE is unwilling to provide a
copy of its report voluntarily, it may be necessary to wait until after proceedings have been
commenced and then make an application for non-party disclosure.
The HSE will also have other relevant documentation, such as the RIDDOR and
correspondence with the defendant regarding the incident. However, the defendant should
have a copy of these documents in its own files and may possibly have a copy of the HSE
report. All these documents should be disclosed to the claimant with other relevant
documents it holds.
10.10.4 Real evidence

Real evidence is a material object, such as a piece of machinery, an article of personal
protective clothing, etc, which is relevant to the issues of the case. Where it is practicable for
the item to be produced at court, the claimant’s solicitor should take appropriate steps to
obtain the item, instruct an expert to examine it where necessary, and then put it into safe-
keeping until it is required. If it is impracticable for an item (eg a large piece of machinery) to
be produced at court, photographs should be taken.
10.10.5 Photographs and sketch plans of the location of the accident

In road traffic cases, it is usually necessary to produce photographs and sketch plans of the
location of the accident for two reasons. First, the layout of the road may change between the
date of accident and the date of trial, and/or the road may appear different depending on
whether it is photographed in summer or in winter, especially if there are lots of trees or
vegetation which could obscure a driver’s view. Secondly, it may be necessary to try to show
the location from the perspective of the car drivers at the time. An aerial view or plan of a road
junction will do nothing, for example, to prove to a court how badly the approach of a vehicle
was obscured by trees and bushes or roadside property. The solicitor should not lose sight of
the fact that he must be able to prove to the court what could or could not be seen from a
particular vantage point. It is open to the court to visit the site of the accident, but this may
not be practicable, and in any event, it would take an inordinate amount of time. The solicitor
should always visit the site if possible, in order to get a feel for the case.
Police accident reports (see 10.10.3.1) often contain good quality photographs which can be
purchased on payment of an extra fee per print, and which may prove helpful in showing not
only the severity and location of the damage to each vehicle, but also the final position on the
road in which the vehicles were immediately following the accident. This evidence may
assume significance at a later date, or may contradict the oral evidence of the witnesses. It is,
however, important to read the PAR closely, as it will confirm whether or not the vehicles were
moved from their original resting position prior to the taking of the photographs.
In road traffic cases, the photographer should mark on a plan the precise location from which
each photograph was taken and the direction in which the camera was pointing.
Site visits in non-road traffic cases are no less important. For example, in a case where the
client has tripped on a broken pavement, it is not uncommon for the local authority, upon
receiving intimation of a possible claim, to send a team of operatives to mend the offending
paving stone. It is therefore vitally important to secure good quality photographs of the
pavement, etc as soon as possible, usually on the same day that the client is interviewed.
Photographs must contain some indication of scale, and it is therefore necessary to place an
item, such as a ruler, within the photograph.
In modern times, the availability of mobile telephones with inbuilt cameras means that
claimants or their friends or family members may have taken relevant photographs of the site
at or about the time of the accident. Whilst such photographs may have some use, particularly
in low-value cases, it is not good practice to entrust the taking of photographs to the client,
who may underestimate the importance of the task and forget about it until it is too late.
Photographs taken by the client may be out of focus, underexposed or otherwise taken in a
manner which will not help the client’s case. A good example of this can be found in Flynn v
Leeds City Council, 10 September 2004, where the claimant was injured when she tripped on the
edge of an uneven paving stone. She claimed that the discrepancy between the heights of the
paving stones was over an inch and that the pavement was therefore dangerous to pedestrians.
Photographs of the paving stones, with the alleged discrepancy highlighted by the presence of
a 50 pence piece and a ruler, had been taken by the claimant’s partner, who happened to be a
litigation solicitor. The defendant claimed that these photographs appeared to have been
‘massaged slightly’. The judge did not feel that anything sinister was being suggested, but he
accepted that the 50 pence piece appeared to be leaning at an angle and that there may have
been some slight excavation of material between the paving stones. The claimant failed to
prove that the discrepancy between the paving stones was a dangerous one and the judge
found in favour of the defendant.
10.10.6 Evidence of criminal convictions

If the proposed defendant is charged with a criminal offence in relation to the incident which
caused the injury to the claimant, ideally the claimant’s solicitor should attend the
proceedings to note the evidence. The date of the proceedings may be obtained from the
police or the HSE, as appropriate.
Any resulting conviction of the defendant which is relevant to the issues in civil proceedings
(ie relevant when seeking to prove or disprove negligence or breach of statutory duty) may be
referred to in the civil proceedings (Civil Evidence Act 1968, s 11). In an RTA claim, for
example, a conviction for speeding or dangerous driving arising out of the incident itself is a
relevant conviction. However, a conviction for driving without insurance at the time of the
accident, or a previous conviction for driving with excess alcohol in the blood, is not a relevant
conviction, as it does not prove that the defendant was negligent at the time of the accident.
For the purposes of the civil proceedings, the defendant will be taken to have committed the
offence ‘unless the contrary is proved’. The defendant may seek to argue that he should not
have been convicted, but if he does so, the burden of proving this on the balance of
probabilities will pass to him. In most cases where there is a relevant conviction, the
defendant will seek to settle the matter.
Where a claimant is convicted for failing to wear a safety belt or a safety helmet, the
conviction is relevant to the issue of damages as it indicates contributory negligence.
Should the matter go to trial, the party seeking to rely on the conviction will need to produce a
certificate from the convicting court in order to prove the conviction.
10.10.7 Evidence of lay witnesses

Witnesses should be contacted and interviewed by the claimant’s solicitor as soon as possible.
The defendant’s solicitor, in the normal course of events, will be instructed at a later date than
the claimant’s solicitor, but he too should contact and interview witnesses without delay.
Where a witness is not interviewed at an early stage, his memory of the events may fade or he
may become untraceable. If the claimant was injured at work and the witness is a fellow
employee of the claimant, he may be concerned about his employer’s reaction and become
increasingly reluctant to speak to the claimant’s solicitor. Witnesses to road incidents are
often initially enthusiastic, but later decide that they have little to gain and would rather not
get involved. For this reason, the solicitor should not delay in contacting the witness and
obtaining a proof of evidence, or at the very least a letter confirming what he saw and/or heard
and that he is prepared to make a statement to that effect.
In a straightforward case, it may not be necessary to interview the witness. If his letter of
response is sufficiently clear, a proof can be prepared from it and from any questionnaire he
may also have been sent. A copy of the proof should be forwarded for approval and signature
by the witness. This should be accompanied by a stamped addressed envelope and covering
letter, requesting the witness to read the proof carefully and make any amendments or
additions that he feels to be necessary before signing and dating the document for return in
the envelope provided. The witness is a volunteer to the client’s cause and should be thanked
accordingly for the time and trouble he has taken on the client’s behalf.
The proof of evidence, once converted into a formal witness statement and exchanged with
the other side, will form the basis of the witness’s evidence to be relied on at trial and will
stand as his evidence-in-chief. Furthermore, the statement may have to be used at the trial
under the Civil Evidence Act 1995 if the witness subsequently becomes unavailable.
Consequently, it should contain all the relevant evidence the witness can give and, needless to
say, it should be the truth. In accordance with r 22.1 of the CPR, the witness statement must
conclude with a statement of truth, and this must be signed by the witness himself.
In an EL case, it may be advisable for the claimant’s solicitor to obtain statements from
individuals, such as shop stewards or co-workers, who, although they may not have seen the
accident, may know of other similar accidents in the past, or be able to give background
information on policy changes that may have taken place within the organisation. In road
incident or tripping cases, people living or working adjacent to the location of the incident
may be able to give useful information relating to similar incidents that have happened in the
past, and even as to the identities of past claimants in similar incidents, or information on
how long the defect has been in existence.
10.10.8 Expert evidence

Almost all cases will involve some expert evidence. There may be a requirement for non-
medical experts, such as engineers or RTA reconstruction experts, but most experts will be
from the medical field. In clinical injury cases, experts will be required in respect of liability,
causation and quantum. In most personal injury cases, the evidence of a medical expert will
relate to quantum rather than liability, although there will be some cases where a medical
opinion in relation to causation will be required, for example where the claimant has suffered
a disease or illness. Consequently, the claimant’s solicitor will not normally seek to obtain a
report from a medical expert until he is satisfied that the claimant has a strong case on
liability, or liability has been admitted by the defendant. See Chapter 11 for a detailed
consideration of the role of experts.
10.11 ACQUIRING EVIDENCE IN RESPECT OF QUANTUM

10.11.1 Evidence of lost earnings
The client’s loss of earnings is likely to form a significant part of his claim for special
damages. See Chapter 13 for a detailed consideration of this point.
10.11.1.1 Obtaining details from employers

In an EL claim against the claimant’s current employer, a request for details of the claimant’s
earnings should be set out in the letter of claim. In other cases, the claimant’s solicitor should
write to the client’s employer to ask for details of earnings for 13 weeks prior to the incident
and for a copy of the client’s contract of employment. The loss of earnings details should be
set out to show weekly earnings (both gross and net) so as to reveal a pattern over 13 weeks.
10.11.1.2 Self-employed clients

Documentary evidence in the form of the client’s previous year’s trading accounts (or longer if
appropriate) should be obtained if possible, together with other evidence of contracts or
offers of work that had to be turned down as a result of the incident. The client’s accountant,
business associates and colleagues in the same area of work should be approached to assist in
this.
10.11.1.3 Unemployed clients

Even if the client is unemployed, evidence should be obtained of his last employer and of the
likelihood of his obtaining suitable work which he could have undertaken but for the accident,
as evidence of earning capacity. Colleagues in the same area of business and employment
agencies should be approached for evidence of availability of work within the client’s
specialism and the level of possible earnings.
10.11.2 Evidence of other special damages

During the first interview with his client, the claimant’s solicitor should ask him to keep
details of any articles damaged in the accident, repair costs, private medical treatment,
journeys to hospital, parking tickets, etc which have resulted from the accident, and to retain
any relevant quotes, invoices, receipts or tickets. Where the defendant admits liability, or
where the court finds in favour of the claimant, many of these items will be admitted by the
defendant, provided evidence is produced.
10.11.3 Evidence of pain, suffering and loss of amenity

10.11.3.1 Medical records
It may be necessary to obtain copies of the claimant’s medical records from his GP and/or
from a hospital where he was treated (see 10.4.1) in order to prove the extent of the claimant’s
suffering and, if necessary, disprove that any pre-existing condition contributed to the injuries
suffered by the claimant.
10.11.3.2 Medical experts

Medical experts provide crucial evidence for the assessment of general damages for pain,
suffering and loss of amenity. In a fairly straightforward case, one medical expert of an
appropriate specialisation will be able to deal with all aspects of liability and quantum in his
report. In more complex cases, such as where the claimant has suffered major brain trauma,
several experts might be required, including, for example, a neurologist, a neuropsychologist,
an occupational therapist, and an expert on the need for care and general support.
10.11.3.3 Lay witnesses

The claimant’s own testimony is important. During the first interview, the claimant’s solicitor
should ask his client to keep a pain diary. The claimant should set out the extent of his
suffering and its effect on his life in his witness statement.
The evidence of members of the claimant’s family, friends and work colleagues may also
provide a valuable insight into the impact of the accident.
10.11.3.4 Photographs
Photographs of the injuries immediately after the accident, during the various stages of
recovery and as at the date of trial, where they are continuing, are also very useful.
10.12 CONCLUSION
The claimant’s solicitor is obliged, under the overriding objective found in r 1 of the CPR and
under the pre-action protocols, to be fully prepared before proceedings are commenced.
Once proceedings have been issued, the court will actively manage the case and will require
the parties to deal with each step of the proceedings in accordance with the timetable it lays
down in the order for directions. Where a solicitor fails to prepare adequately prior to issue
and consequently is unable to comply with the directions within the specified time limits, the
court may impose cost penalties.
The essential element when gathering evidence at the preliminary stage is to act quickly. A
failure to act on the client’s instructions as soon as they are received can have disastrous
consequences for the subsequent conduct of the litigation. In extreme cases, this may
seriously prejudice the client’s chances of success and can amount to negligence on the part of
the solicitor.
Instructing Experts 161
CHAPTER 11
Instructing Experts

11.2 Case management and the use of experts 163
11.3 Areas of expertise 165
11.4 How to find an expert 167
11.5 Key qualities to look for in an expert 168
11.6 Preliminary enquiries of the expert 169
11.7 Letter of instruction 169
11.8 The expert’s report 171
11.9 Conference with expert and counsel where expert instructed by one party 171
11.12 Key points 173
LEARNING OUTCOMES
• understand the role of experts in personal injury and clinical negligence cases
• appreciate the different types of expert who might be instructed
• explain the expert’s overriding duty to the court and the court’s case management
powers in relation to experts
• write a letter of instruction to an expert.
11.1 INTRODUCTION
In almost every personal injury or clinical negligence case, the claimant’s solicitor will
instruct at least one medical expert. Commonly, an expert will prepare a report on the
claimant’s injuries for quantum purposes, which is often referred to as a report on condition
and prognosis. In clinical negligence and disease and illness claims, medical evidence will not
only be required in order to assist the court in assessing damages, but will also be necessary in
order to prove liability and/or causation. Indeed, the claimant’s solicitor may be unable to
understand precisely what happened to the claimant, and therefore advise him in relation to
the claim, until such evidence has been obtained. In some personal injury cases, other types
of experts, such as accident reconstruction experts or engineers, may be required for liability
purposes.
The purpose of this chapter is to examine the role of experts and the matters that must be
considered when instructing an expert in a personal injury or clinical negligence case.
With regard to the procedural law, the practitioner must have a sound grasp of CPR Part 35
and the accompanying Practice Direction, which govern the use of experts in civil trials. In
addition, the Protocol for the Instruction of Experts to give Evidence in Civil Claims (the
‘Protocol’) provides guidance on the interpretation of and compliance with Part 35 and PD 35
in the interests of good practice.
11.1.1 Who is an expert?

An expert is an individual with a high level of skill, knowledge and experience in a particular
area which is outside the knowledge of the court. The expert will be permitted to give his
opinion when the court would otherwise be unable properly to understand the factual
evidence which has been placed before it and requires the expert’s assistance in order to
determine a matter of dispute between the parties. This evidence should be presented in a
clear and concise way so that the court can use the information to reach its own conclusions.
The court is not obliged to accept the evidence of an expert. In Armstrong and Another v First York
Ltd [2005] EWCA Civ 277, the Court of Appeal held that the trial judge had been entitled to
reject the evidence of a forensic motor vehicle engineer who had been jointly instructed by the
parties. The two claimants had allegedly sustained neck and spinal injuries when their car had
been hit by a bus owned by the defendant. The expert’s evidence was that there had been
insufficient force generated by the impact to cause the injuries claimed. Although the trial
judge found that the expert’s evidence had been flawless, this could not be reconciled with his
belief that the claimants were credible and honest witnesses. Consequently, he was entitled to
find that there must have been a flaw in the expert’s evidence, even though he had not been
able to identify that flaw. In the Court of Appeal case of Huntley v Simmons [2010] EWCA Civ 54
Waller LJ stated that:
the evidence of experts is important evidence but it is nevertheless only evidence which the judge must
assess with all other evidence. Ultimately issues of fact and assessment are for the judge. Of course if
there is no evidence to contradict the evidence of experts it will need very good reason for the judge not
to accept it and he must not take on the role of expert so as to, in effect, give evidence himself. So far as
Joint Statements are concerned parties can agree the evidence but (as happened in this case) it can be
agreed that the joint statements can be put in evidence without the need to call the two experts simply
because they do not disagree; but either party is entitled to make clear that the opinion expressed in
the joint statement is simply evidence that must be assessed as part of all the evidence.
In Stewart v Glaze [2009] EWHC 704 (QB), the judge said that although the expert could be of
considerable assistance, it was the primary factual evidence which was of the greatest
importance, and that expert evidence should not be elevated into a fixed framework or
formula against which the defendant’s actions were to be judged rigidly with mathematical
precision.
11.1.2 The expert’s overriding duty to the court

Rule 35.5 of the CPR states that it is the duty of experts to help the court on matters within
their expertise, and that this duty overrides any obligation to the person from whom experts
have received instructions or by whom they are paid.
Paragraph 2 of PD 35 gives the following guidance as to the nature of that duty:
2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures
of litigation.
2.2 Experts should assist the court by providing objective, unbiased opinion on matters within their
expertise, and should not assume the role of an advocate.
2.3 Experts should consider all material facts, including those which might detract from their
opinions.
2.4 Experts should make it clear:
(a) when a question or issue falls outside their expertise; and
(b) when they are not able to reach a definite opinion, for example because they have
insufficient information.
2.5 If, after producing a report, an expert changes his view on any material matter, such change of
view should be communicated to all the parties without delay, and when appropriate to the
court.
Paragraph 4.2 of the Protocol provides that experts are under an obligation to assist the court
in dealing with cases in accordance with the overriding objective set out in r 1 of the CPR.
However, it goes on to state that the overriding objective does not impose on experts any duty
to act as mediators between the parties or require them to trespass on the role of the court in
deciding facts.
Paragraph 4.3 of the Protocol offers a test for independence as being, ‘Would the expert
express the same opinion if given the same instructions by an opposing party?’, and goes on
to say that experts should not take it upon themselves to promote the point of view of the
party instructing them or engage in the role of advocates.
In accordance with para 3.1 of PD 35, the expert’s report should be addressed to the court and
not to the party from whom the expert has received instructions.
11.2 CASE MANAGEMENT AND THE USE OF EXPERTS

11.2.1 General principles
Rule 35.1 states that expert evidence should be ‘restricted to that which is reasonably required
to resolve the proceedings’, and solicitors should be mindful that the court’s permission is
required before a party may call an expert or put in evidence an expert’s report (CPR,
r 35.4(1)). In determining whether a party should be entitled to use an expert, the court will
be governed by the overriding objective found in r 1 of the CPR, in particular ensuring that the
parties are on an equal footing, saving expense and dealing with the case in ways which are
proportionate.
The following should be noted:
(a) Generally, permission will be sought in the directions questionnaire. When permission
is sought, parties must provide an estimate of the costs of the proposed expert evidence
and identify the field in which expert evidence is required, the issues the expert will
address and, where practicable, the name of the proposed expert (CPR, r 35.4(2)).
Where permission is granted, it shall be in relation only to the expert named or the field
identified, and the issues which may be addressed may also be specified. Where a claim
has been allocated to the small claims track or the fast track, permission will normally
be given for evidence from only one expert on a particular issue (CPR, r 35.4(3A)). If
necessary, further directions relating to the use of experts may be given on listing or
upon the application of a party.
(b) Usually, the claimant’s solicitor will be obliged to instruct an expert before permission is
given by the court for the use of that expert. In clinical negligence and disease and illness
claims, it will be necessary for the claimant’s solicitor to instruct an expert in order to
advise in relation to liability and/or causation before the letter of claim is sent and, in
almost all cases, a medical report will be attached to the particulars of claim. This is well
understood by the court, and there is unlikely to be a problem in obtaining permission
for the use of such an expert. Solicitors instructed by both claimants and defendants
should give careful consideration as to whether it is necessary to instruct any other
expert prior to permission being given. The court may decide that expert evidence is not
required at all, or may determine that a single joint expert should be used. The client
should be informed of the risks of instructing an expert before permission has been
given, ie that he may not be permitted to use the expert’s evidence and costs relating to
that expert will not be recoverable even where the client is successful in the claim.
(c) The PAP for Personal Injury Claims encourages the joint selection of experts, mostly
medical experts for quantum purposes but also experts dealing with liability, where
appropriate (PAP, para 2.14). In accordance with para 3.15, before a party instructs an
expert, he must provide his opponent with a list of one or more experts whom he
considers to be suitable for the case. In many cases, the claimant’s solicitor will do this
in the letter of claim and three names are usually supplied. The defendant then has 14
days within which to communicate any objections he has to any expert appearing on the
list, and the claimant’s solicitor is thereby able to select a mutually acceptable expert.
The expert is instructed only by the claimant’s solicitor (and in this respect, joint
selection differs from joint instruction as envisaged by CPR, r 35.7 – see (d) below), but
there is a presumption in fast track cases that the defendant will not be permitted to
instruct his own expert in relation to that issue. Where the defendant objects to all the
experts suggested by the claimant, he may instruct his own expert. However, if the
matter proceeds, the court will consider whether the defendant acted reasonably in this
regard.
In Edwards-Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136, the claimant, Mr Edwards-
Tubb, brought a claim arising out of a fall at work in October 2005. His employer, JD
Wetherspoon, accepted liability. The issue related to damages and causation.
The claimant in the pre-action letter of claim gave notice to the defendant of three
medical experts he wished to instruct. The defendant raised no objection and the
claimant obtained a report from one of those experts, Mr Jackson. It was accepted that
this was not a joint instruction and the report would remain privileged unless and until
disclosed.
Proceedings were issued close to limitation. Shortly before service, the claimant
disclosed a medical report from a Mr Khan, who was not originally nominated. The
defendant sought an order that disclosure of the original report by Mr Jackson should be
made a condition of the permission which the claimant needed to rely on Mr Khan.
The main issue before the Court of Appeal was whether the Court’s power to impose a
condition on the permission granted to rely on a particular expert could be utilised to
require the disclosure of another expert report. The Court concluded that, before the
claimant could rely on the second expert report, he should disclose the findings of the
first expert report.
The Court was mindful of the duty under CPR, r 35.4 to discourage ‘expert shopping’. In
the circumstances of the case, expert A had been instructed for the purposes of the
litigation. A factor which held significant weight for the Court of Appeal was that the
parties had embarked upon the pre-action protocol procedure of co-operation in the
selection of experts. This is not something which is generally undertaken under the pre-
action protocol for the resolution of clinical disputes, and it remains to be seen whether
the Court would impose such a condition upon a request for leave to rely upon a
particular expert where there has been no pre-action discussion in relation to the
instruction of experts.
(d) Where the parties wish to submit expert evidence on a particular issue, the court has the
power, under CPR, r 35.7, to direct that a single joint expert be used. See 11.2.2 below.
(e) A party will be entitled to use the report or call the expert at trial only if the report has
been disclosed to the other parties to the action in accordance with CPR, r 35.13.
(f ) At trial, expert evidence is to be given by means of a written report unless the court gives
permission for the expert to give oral evidence. In small claims and fast track cases,
permission will be given for an expert to attend a hearing only if it is necessary in the
interests of justice (CPR, r 35.5).
(g) In accordance with para 11.1 of PD 35, at any stage in the proceedings the court may
direct that some or all of the experts from like disciplines shall give their evidence
concurrently. This is known as hot-tubbing and may include, for example, the judge
inviting the experts, in turn, to give their views, or the judge questioning one witness
and then asking the other witness to comment on the answers given.
11.2.2 The single joint expert

A ‘single joint expert’ is defined in CPR, r 35.2(2) as an expert instructed to prepare a report
for the court on behalf of two or more parties (including the claimant) to the proceedings.
Under CPR, r 35.7, where two or more parties wish to submit expert evidence on a particular
issue, the court may direct that the evidence on that issue be given by a single joint expert. In
fast track cases, the court is likely to direct that a single joint expert be used unless there is
good reason not to do so (PD 28, para 3.9(4)). Similar wording is used in PD 29, para 4.10(4)
in relation to multi-track cases, but the insertion of the words ‘on any appropriate issue’
reflects the reality that there will be more issues in a multi-track case which will not be
suitable for a single joint expert to determine. Single joint experts are more likely to be used to
determine issues in relation to quantum than issues relating to liability or causation. In
clinical negligence and illness and disease cases, it is recognised that single joint experts are
less likely to be acceptable to the parties, and the pre-action protocols state that the courts are
less prescriptive as to the use of experts in these types of claim.
Where the parties are unable to agree who the single joint expert should be, the court may
select an expert from a list provided by the parties, or direct how the expert should be
selected (CPR, 35.7(2)). Paragraph 17.6 of the Protocol requires parties to try to agree
instructions to single joint experts, but allows for each party to give instructions in default of
such an agreement. Where each party gives instructions to the expert, he should supply a
copy of those instructions to the other side (CPR, r 35.8). Unless the court otherwise directs,
the instructing parties are jointly and severably liable for the expert’s fees and expenses.
11.2.3 Directions relating to the use of experts

In fast track cases, standard directions given on allocation in relation to expert evidence will
order the use of the written report of a single joint expert or, where permission is given for the
parties to use their own experts, order the disclosure of experts’ reports by way of
simultaneous exchange (usually within 14 weeks of allocation). Where the reports are not
agreed, a discussion between the experts in accordance with CPR, r 35.12(1) and the
preparation of a report under r 35.12(3) (PD 28, para 3.9) are required. In addition, the court
may direct that a party put written questions to an expert instructed by another party or to a
single joint expert about his report (CPR, r 35.6). Bearing in mind the tight timetable between
allocation and trial (30 weeks), little time will be available for these steps.
Directions in multi-track cases are tailored to the requirements of each individual case and are
likely to be more complex. Where the parties are permitted to use their own experts on any
issue, typical directions will include:
(a) exchange of reports, either simultaneously or sequentially;
(b) the service of written questions to the experts and the service of answers;
(c) the agreement of expert reports where possible;
(d) where agreement is not possible, a without prejudice meetings between the experts in
order to try to resolve the matters upon which they are unable to agree, and the
subsequent filing of a report setting out the points upon which they agree and disagree;
(e) permission for the experts to give oral evidence at trial or that the reports shall stand as
evidence.
The time allowed for each step outlined above will be dependent upon the complexities of the
individual case and, in some cases, the availability of the experts themselves.
11.3 AREAS OF EXPERTISE

The number and variety of experts available to prepare reports are often surprising to those
unfamiliar with this area. The following are examples of experts who provide reports.
11.3.1 Medical experts

Medical experts are usually required in order to assist the court in relation to the assessment
of damages. In other words, they will report on the condition and prognosis of the claimant
and the cost of living with the particular injury suffered by the claimant. In a simple, low-value
case, a report from a general practitioner may be sufficient, but in a complex, high-value case,
experts in several areas of medical expertise may be required. The types of medical experts
who may assist in this regard are numerous, but may include doctors of various specialities,
occupational therapists, behavioural therapists, speech therapists and physiotherapists.
In clinical negligence cases, it will be necessary to instruct an expert to advise in relation to
liability and possibly causation. A consultant should be instructed with expertise in the same
speciality as the doctor who is alleged to have been negligent.
A list of the most common areas of medical expertise can be found at 2.3.
11.3.2 Other experts

In road traffic accidents, the following types of experts may be helpful in order to establish
liability:
(a) accident investigators to reconstruct the events leading up to the road traffic accident;
(b) mechanical engineers to examine the vehicles involved in the accident, to identify
damage or to investigate if any mechanical defects were present in the vehicle.
In employers’ liability cases, the following types of experts may be helpful to establish
liability:
(a) general consulting engineers to provide reports on machinery, systems of work,
slipping accidents;
(b) mining engineers;
(c) ergonomics experts;
(d) bio-engineers;
(e) pharmacologists.
When dealing with quantum, in addition to doctors of the appropriate speciality, the
following experts may be useful in relation to condition and prognosis and the costs of living
with a particular injury:
(a) occupational therapists;
(b) behavioural therapists;
(c) speech therapists;
(d) physiotherapists;
(e) employment consultants.
When dealing with quantum, the following experts may be useful in relation to financial loss
and the investment of damages:
(a) employment consultants;
(b) accountants;
(c) actuaries.
11.3.3 Specific experts

The following types of experts warrant further attention.
11.3.3.1 Accident reconstruction experts

In more serious RTA claims, an accident reconstruction expert may be required. If the
claimant’s solicitor is instructed immediately following the accident, the accident
reconstruction expert should be contacted without delay and requested to attend the scene of
the accident in order to examine any skid marks, etc. It may also be appropriate for the expert
to examine the vehicles involved in the accident, and the claimant’s solicitor should take
appropriate steps to ensure that the vehicles are not disposed of or repaired prior to the expert
carrying out his examination. The evidence of tachographs will be particularly useful. The
reconstruction expert will want to see the PAR and any associated reports prepared by the
police, such as a police reconstruction report, and proofs of evidence from anyone involved in
the accident or anyone who witnessed the accident. He will then be in a position to provide
an opinion as to the cause of the accident.
11.3.3.2 Consulting engineers

Many personal injury claims involve machinery or systems of work (especially EL claims), and
in such cases it may be thought appropriate for a consulting engineer to be instructed to
prepare a report on the machinery involved or the system of work undertaken.
EXAMPLE
A client is injured while driving a fork-lift truck and alleges that the steering wheel failed to
respond while he was driving it. It is part of the client’s case that the employer failed
adequately to maintain the fork-lift truck. If the truck has not been modified prior to the
solicitor being instructed, a consulting engineer may be instructed to examine the vehicle
and its maintenance records. The solicitor will therefore obtain an expert’s view as to
whether the appropriate system of maintenance was adopted and attempt to identify the
cause of the accident.
The expert will need to inspect the machinery, and the permission of the proposed defendants
(who are normally the claimant’s employers in such cases) is required. If this is not granted
then it will be necessary to apply to court for an order for preservation and inspection.
Where both parties are given permission to instruct their own experts, it is common for them
to attend the scene of the accident at the same time in order to conduct a joint inspection.
This has the advantage of saving costs and time, as the engineers can agree on measurements
and technical details.
11.3.3.3 Clinical case managers

In certain high-value/severe injury cases, a clinical case manager may be appointed to
consider the claimant’s appropriate care regime. In Wright (by her litigation friend Karen Fay) v
Kevin Sullivan [2005] EWCA Civ 656, it was held that the clinical case manager would owe a
duty to the claimant to work in his best interests and should not be jointly appointed. The
evidence given by such a witness is evidence of fact and not expert opinion.
11.4 HOW TO FIND AN EXPERT

It is vital that the solicitor responsible instructs the correct person to provide expert evidence
in the case. Many firms will have their own in-house directory of experts, which should be
referred to in the first instance. Frequently, other fee-earners will have inserted comments
about the expert alongside the entry in the directory. Information such as how well the expert
gave evidence in court, can be extremely useful. If an in-house directory of experts is not
available or is inappropriate then other sources can be used.
The following sources may also be of use:
(a) The Association of Personal Injury Lawyers. This organisation provides information to
members on appropriate experts.
(b) Action against Medical Accidents (AvMA)
(c) The Academy of Expert Witnesses.
(d) The Society of Expert Witnesses.
(e) Expert Witness Institute.
(f ) The New Law Journal and Solicitor’s Journal regularly issue expert witness supplements
which carry advertisements from experts who are prepared to provide reports for the
purposes of litigation.
(g) Many professional institutes also prepare a directory of expert witnesses.
(h) The Medico-Legal Society publishes reports which may reveal the name of a suitable
expert.
11.4.1 The use of medical agencies

Increasingly, solicitors rely on medical agencies to source suitable experts to write reports.
The rise in popularity of medical agencies has come about due to the growth of large personal
injury practices which accept claims from clients anywhere in England and Wales. It is
necessary to find a medical expert (or better still a choice of experts in the same specialism)
who is sufficiently local to the home of the client. Without the assistance of a national agency
to co-ordinate this search, this would represent something of a headache for the claimant’s
solicitor.
Medical agencies are able to provide a choice of experts local to the client, and they will send
copies of the CVs of those experts direct to the solicitor, together with an indication of the
waiting time for preparation of the report. Subject to the arrangement they have with the
instructing solicitor, they may also attempt to agree the choice of expert with the defendant
insurer direct, obtain the client’s medical records, arrange the medical appointment for the
client and forward the subsequent report direct to the solicitor. The agency will charge a fee
for this service which, if reasonable, will be allowed as part of the disbursements incurred on
the claim at assessment of costs stage.
In the case of Woollard v Fowler [2006] EWHC 90051 (Costs), 12 April 2006, the court held that
it was entirely proper that a payment made by a solicitor to such an agency should be treated
as a disbursement under the fixed costs regime in section II of Part 45 of the CPR 1998, and
therefore as recoverable in full from the losing party.
The PAP for personal injury claims states that where a claimant wishes to use a medical
agency, the defendant’s prior consent should be sought and, if the defendant so requests, the
medical agency should provide in advance the names of the doctors whom they are
considering instructing (para 2.15).
11.5 KEY QUALITIES TO LOOK FOR IN AN EXPERT

A number of key qualities must be looked for when selecting an expert:
(a) Is the individual appropriately qualified to deal with the matter and does he have the
relevant practical experience in the area? If not, the court is unlikely to consider him to
be an expert.
(b) Can the expert be regarded as impartial? In Liverpool Roman Catholic Archdiocesan Trust v
Goldberg [2001] Lloyd’s Rep PN 518, the evidence of an expert was disregarded due to his
close relationship with the defendant.
(c) Is the expert usually instructed on behalf of defendants when you are instructed by a
claimant, or vice versa? Although all experts have an overriding duty to the court and
should give the same evidence in a particular case no matter who is instructing them, it
is unwise to instruct an expert who has an impressive record of appearing against the
type of client you are representing.
(d) Does the expert have sufficient time to deal with the case properly? A good expert will
refuse instructions when he has insufficient time, but this will not always happen.
Whether the case is a personal injury or clinical negligence claim, the expert will have to
spend considerable time on the matter, either examining the papers or the claimant, or
inspecting a vehicle, a piece of machinery or the scene of the accident.
(e) Can the expert provide a clear and comprehensive report?

(f ) Does the expert have experience in litigation of this type? Does he prepare reports and
attend at trial regularly to give evidence? Only a small percentage of cases proceed to
trial, and thus an expert may claim to have been involved in, say, 200 cases but may have
given evidence in only a few of them (especially as, in the fast track, expert evidence is
normally given in written form). It cannot be assumed that the case will settle and,
however good the written report might be, convincing oral testimony (where allowed by
the court) and the ability to withstand tough cross-examination are essential. The
expert’s general reputation should be checked with his colleagues who practise in the
same area.
11.6 PRELIMINARY ENQUIRIES OF THE EXPERT

Once a party has decided to instruct an expert in relation to any issue in a case and an
appropriate expert has been identified, the solicitor should approach the expert with a
number of preliminary enquiries, in order to establish whether he is willing and able to act in
relation to the matter. Some health practitioners may be reluctant to provide reports for
claimants in clinical negligence cases, and their views on this must be obtained. Even if the
expert has been used by the solicitor before, it is good practice to send a preliminary letter to
establish whether the proposed expert has any personal or professional connection with
others who may be involved in the case, such as one of the parties, a health professional who is
alleged to have been negligent or experts instructed by another party. Even though experts
have an overriding duty to the court, it is preferable to avoid any possibility of bias or
allegations of bias.
The preliminary letter to the expert might usefully cover the following matters:
(a) request confirmation that the expert deals with the appropriate speciality and has the
necessary qualifications and experience;
(b) request confirmation that he is willing to accept instructions to provide a report and,
where time is an important consideration, details of when the report will be available;
(c) request confirmation that the expert is prepared to carry out any necessary post-initial
report work, such as attending conference with counsel and attending experts’
meetings;
(d) request confirmation that he would be willing to provide oral evidence to support his
written report, if required;
(e) inform the expert of the identity of the potential defendant and, in a clinical negligence
claim, the name of any health professional who is alleged to have been negligent;
(f ) obtain details of the expert’s charging rate and/or to explain that the client has the
benefit of public funding; and
(g) confirm on whose behalf the solicitor is acting (but without giving any view on liability).
(h) where the expert is a medical expert and relevant medical records have been obtained,
confirm that this is the case (however, they must not be forwarded to the expert at this
stage);
If the expert is prepared to act in response to an initial letter of enquiry then a full letter of
instruction should be sent.
11.7 LETTER OF INSTRUCTION

The nature of the letter of instruction to a medical expert will, of course, be determined by
what it is the expert is required to do.
11.7.1 Instructing medical experts in relation to quantum

Generally, in an RTA claim or an EL claim not involving illness or disease, the only medical
expert instructed will be required to examine the claimant in order to provide a condition and
prognosis report for quantum purposes. Medical experts will also be required for quantum
purposes in clinical negligence and disease and illness claims. The specimen letter of
instruction to a medical expert which is set out at Annex C to the PAP for personal injury
claims (see Appendix 2) is suitable for this purpose.
It may be necessary to provide the expert with copies of the claimant’s medical records where
they relate to the injuries sustained and/or the treatment received by the claimant as a result of
the defendant’s negligence, or where there is a pre-existing condition which may have an
impact on the assessment of damages.
The heading of the letter should contain: the client’s full name, address, date of birth, date of
the accident, his telephone number and, if considered appropriate, details of the hospital
where the client was treated. It is important that the letter of instruction makes it clear on
whose behalf the solicitor is acting and whether the notice of appointment should be sent
directly to the claimant or via his solicitor.
Where a defendant is given permission to instruct an expert to examine the claimant and
provide a report on condition and prognosis, specific questions included in the letter of
instruction may require the expert to comment, for example, on the reasonableness of the
special damages claim, ie did the client reasonably need assistance with gardening and, if so,
for how long?
11.7.2 Instructing medical experts in relation to liability and causation

In clinical negligence and disease and illness claims, it will be necessary to instruct a medical
expert of an appropriate speciality to advise in relation to liability and/or causation. These
experts may not need to examine the claimant and their expert opinion will be primarily based
on the claimant’s medical records, copies of which should be enclosed. The letter of
instruction may include the following matters:
(a) a chronology of the events/factual resumé to which the expert can refer. A concise
overview of the events should be available for the expert to consider;
(b) a brief explanation of the relevant standard of care, with reference to the Bolam test as
modified by Bolitho (see 5.3). In the case of Sharpe v Southend Health Authority [1997] 8
Med LR 299, the Court of Appeal stated that an expert in a clinical negligence case
should make it clear in his report whether the approach adopted by the defendant was in
accordance with a responsible body of medical practitioners, even if he himself would
have adopted a different approach. If it is not known that the expert is aware of this
point, then this must also be mentioned in the letter of instruction;
(c) a reminder that it will be necessary to establish a causational link between the identified
negligence and injury;
(d) an offer for the expert to meet the claimant if he so wishes. This may not be necessary
but the facility should be made available;
(e) the date by which the report is needed;
(f ) who is responsible for the fee;
(g) a request that the expert consider whether all relevant notes have been disclosed and, if
not, what further notes should be obtained;
(h) a request that the expert advise as to whether any other type of expert evidence is
required in addition to his own;
(i) a request that the expert make reference to medical publications to support his case.
The expert should be asked to refer to texts and authoritative works that were
available at the time of the incident (see Breeze v Ahmed [2005] EWCA Civ 223);
(j) specific questions that the expert is required to answer;

(k) a reminder that the expert may be required to attend a conference with counsel at the
appropriate time;
(l) a reminder as to how the doctor should structure the report.
The medical notes must not be sent to the expert without first being checked by the solicitor
to ensure that they are complete and in order. Identical ring binders should be prepared, with
copies of paginated medical notes included, in date order, indexed and divided into relevant
sections. A ring binder of notes should be prepared for each expert, counsel and the solicitor.
11.8 THE EXPERT’S REPORT

Practice Direction 35, para 3.2 states that an expert’s report must:
(1) give details of the expert’s qualifications;
(2) give details of any literature or other material which the expert has relied on in making the
report;
(3) contain a statement setting out the substance of all facts and instructions given to the expert which
are material to the opinions expressed in the report or upon which those opinions are based;
(4) make clear which of the facts stated in the report are within the expert’s own knowledge;
(5) say who carried out any examination, measurement, test or experiment which the expert has
used for the report, give the qualifications of that person, and say whether or not the test or
experiment has been carried out under the expert’s supervision;
(6) where there is a range of opinion on the matters dealt with in the report –
(a) summarise the range of opinion, and
(b) give reasons for his own opinion;
(7) contain a summary of the conclusions reached;
(8) if the expert is not able to give his opinion without qualification, state the qualification; and
(9) contain a statement that the expert –
(a) understands his duty to the court, and has complied with that duty; and
(b) is aware of the requirements of Part 35, this practice direction and the Protocol for
Instruction of Experts to give Evidence in Civil Claims.
In relation to the requirement for a statement of the substance of the instructions given to the
expert, it should be noted that r 35.10(4) specifically states that the instructions are not
privileged. However, the court will not normally allow cross-examination of the expert on the
instructions, unless it believes the statement is inaccurate (see also Lucas v Barking, Havering
and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2003] All ER (D) 379 (Jul)).
Once an expert’s report has been received, it should be read (and understood) by the solicitor
and sent to the client for his approval. It should then be disclosed to the other party in
accordance with the order for directions.
A specimen medical report can be found at Appendix 1(7).
11.9 CONFERENCE WITH EXPERT AND COUNSEL WHERE EXPERT

INSTRUCTED BY ONE PARTY
11.9.1 The initial conference prior to proceedings being issued
11.9.1.1 Personal injury
An initial conference prior to proceedings being issued is not normally necessary in personal
injury cases, but consideration should be given to this approach if the claimant is resistant to
the solicitor’s advice that the claim is likely to fail, or if the matter is unusually complicated.
11.9.1.2 Clinical negligence and illness and disease claims

In clinical negligence and illness and disease cases, because the issues involved are likely to be
complex, it may be appropriate to arrange a conference with the expert, counsel and the client
after the initial medical report on liability and/or causation has been provided. This will
provide an opportunity to examine all the issues in full, to test the expert’s evidence and
ensure that he is the appropriate person to be instructed, and to determine whether
proceedings should be issued. An initial conference at this stage is also appropriate when the
medical report is unfavourable and it appears that the claim should not proceed.
The conference also provides a valuable opportunity to satisfy the client that every possibility
has been investigated, that he is not being sidelined by the legal process and that there is no
medical conspiracy against him.
Consideration should be given to instructing counsel to produce a written advice following
the conference, to ensure that all matters have been dealt with. During the conference, a
detailed note should be taken of matters covered. This note should be sent to all the experts
who attended the conference to confirm that it accurately records the views they expressed.
If the case is going to proceed, the next stage is the drafting of the letter of claim which is to be
sent to the potential defendant.
11.9.2 Conference with counsel after proceedings issued

11.9.2.1 Personal injury
In the vast majority of personal injury cases, proceedings will be issued without the need for a
conference with counsel, and many low-value cases proceed to trial without such a
conference. In more complex personal injury cases, the solicitor and counsel will want to be
sure that the expert has studied all the papers sent to him, has understood the facts of the
case, and that he has excellent communication skills. These and other matters can be assessed
at a conference.
11.9.2.2 Clinical negligence

In addition to the conference prior to the issue of proceedings in a clinical negligence case, it
is common to have a further conference after the exchange of lay witness statements to check
whether all the experts can still support the case. A further conference is normally arranged
prior to the trial to review matters.
11.10 CONCLUSION
The role that the expert has in a personal injury or clinical negligence case is a significant one.
The importance of the selection of the correct individual cannot be overestimated. The key
points are summarised below at 11.12.
11.11 FURTHER READING

Pre-action Protocol for Personal Injury Claims
Pre-action Protocol for the Resolution of Clinical Disputes
Protocol for the Instruction of Experts to Give Evidence in Civil Claims
11.12 KEY POINTS
Will be restricted to that which is necessary,

and permission of the court is always
Expert evidence
required either to call an expert or to use an
expert’s report.
In-house directory.
How to find an expert Recommendation.
Organisations: APIL/AvMA.
Important to pick the correct expert –

Qualities of an expert
experience, time, cost and availability.
Note: CPR 1998, Part 35. Joint instruction/

selection – obligations under personal
Who instructs?
injury PAP. See example letter of
instruction.
More complex. Report on liability, report on

Clinical negligence causation/report on quantum. Need to be of
correct speciality and status.
Reports need to contain certain specified

CPR 1998 requirements
points. See Part 35 and relevant PDs.
Commencement of Proceedings 175
CHAPTER 12
Commencement of
Proceedings

12.2 Pre-issue checklist 176
12.3 Matters to consider upon issue 176
12.4 Issuing proceedings 177
12.5 Particulars of claim 178
12.6 Service of proceedings 179
12.7 Acknowledgement of service 180
12.8 The defence 180
12.9 The counterclaim 181
12.10 The reply to defence and defence to counterclaim 181
12.11 Amendment to statements of case 181
12.12 Additional claims (CPR, Part 20) 182
12.13 Group litigation 184
12.15 Suggested structure of particulars of claim in personal injury case 185
LEARNING OUTCOMES
• set out the main matters to be considered before and upon the issue of proceedings
• explain where and how proceedings are issued
• draft appropriate Particulars of Claim and Defence
• explain what additional claims are and how such claims are made.
12.1 INTRODUCTION
Where the defendant has denied liability, or where he has failed to respond within the time
limits set out in the relevant pre-action protocol (see 10.2), the claimant is entitled to
commence proceedings by issuing and serving the claim form.
It is usually to the claimant’s advantage to begin proceedings early for the following reasons:
(a) To avoid problems with the limitation period. In personal injury litigation, proceedings
must normally be commenced within three years of the accident occurring (see Chapter
7). Ongoing negotiations with the proposed defendant/defendant’s insurers do not have
the automatic effect of extending the limitation period, and in any event, negotiations
may continue after proceedings have been commenced.
(b) To avoid further delay in so-called ‘long-tail’ occupational disease and illness claims,
and in some clinical negligence claims where claimants will be relying on a later date of
knowledge in order to overcome limitation problems. Claimants may have suffered
from poor health for many years, and it is important that their claims are progressed
with expedition.
(c) To exert pressure on the defendant/defendant’s insurers to act in relation to the claim.
In personal injury cases, it will often precipitate the defendant’s file moving from the
insurance company claims department to the insurer’s nominated solicitors, who may
be more willing to negotiate.
(d) In practice, judgment usually carries entitlement to interest and costs. A settlement
achieved prior to the commencement of proceedings does not carry such an entitlement
(although the claimant’s solicitor will always include in any such settlement an element
in respect of interest and costs). After proceedings have been issued, if there is any
argument by the defendant as to how much of the claimant’s costs he should pay on
settlement, the claimant’s solicitor can have his costs assessed by the court.
(e) Commencing proceedings enables the claimant to apply to the court for an interim
payment in the event that a voluntary payment cannot be negotiated.
12.2 PRE-ISSUE CHECKLIST

Unless the limitation period is about to expire (in which case see 7.9.2), proceedings should
not be commenced until the claimant’s solicitor is satisfied that:
(a) the period allowed by the relevant pre-action protocol for the defendant to respond to
the letter of claim (or the CNF/DCNF in a case falling under one of the low value
protocols) has expired and either the defendant has not responded or the defendant has
denied liability;
(b) a full investigation of the matter has been conducted and the claimant’s solicitor is in
possession of all relevant evidence in relation to liability and quantum;
(c) a re-evaluation of the risk assessment has been carried out which takes into account the
defendant’s response to the letter of claim, the documents supplied by him and other
evidence obtained following the dispatch of the letter of claim. Where the risk
assessment indicates that the claim is unlikely to succeed, the claimant’s solicitor
should not issue proceedings but should try to settle the matter, if at all possible;
(d) the requirements of the relevant pre-action protocol have been complied with. In
particular, an approach has been made to the proposed defendant with the aim of
settling the matter without the need for litigation;
(e) the claimant’s solicitor is ready to process the claim once proceedings have started, in
accordance with the directions and the associated timetable which will be set out by the
court on allocation. The court will actively manage the claim and, in fast track cases in
particular, there will be limited time to prepare for each stage of the proceedings. The
court will not be best pleased if the claimant’s solicitor is unable to keep to the timetable
due to inadequate preparation prior to issue;
(f ) where the client has before the event insurance (BEI) or after the event insurance (AEI),
the insurer has given permission for proceedings to be commenced;
(g) the claimant understands the situation and has given his instructions for the matter to
proceed.
12.3 MATTERS TO CONSIDER UPON ISSUE

Additional steps must be taken in certain circumstances before, at the time of, or shortly
following the issue of proceedings. The claimant’s solicitor needs to be suitably organised
before proceedings are issued, as the consequences of failing to carry out the required steps
may be severe.
12.3.1 Medical report and schedule of past and future loss and expense
A medical report and a schedule setting out past and future loss and expense should be served
with the particulars of claim. Medical experts can be extremely busy and there may be a
lengthy delay in obtaining an appointment for the claimant. Schedules in relation to
substantial claims may be complex and cannot be put together overnight. Bearing in mind the
fact that the particulars of claim must be served within 14 days of service of the claim form,
the claimant’s solicitor should be wary of issuing proceedings until these documents are
available.
12.3.2 Notice in road traffic cases: Road Traffic Act 1988, ss 151 and 152
In RTA claims, where the claimant is entitled to require an insurance company to settle the
judgment under s 151 of the Road Traffic Act 1988 (see 3.3.2 and 10.3.1.3), the claimant must
give the insurer notification of the claim under s 152, either before or within seven days of the
commencement of the claim. It makes sense to give this notification as soon as possible,
although some solicitors may choose to wait until commencement and then serve the notice
on the insurers with a copy of the claim form and particulars of claim. There is no prescribed
form for the notice.
12.3.3 Notice to MIB: Uninsured Drivers Agreement 1999

Where proceedings are being commenced against an uninsured driver and the claimant seeks
to enforce the judgment against the MIB in accordance with the Uninsured Drivers Agreement
1999, the claimant is required to give the MIB notice in writing that he has commenced
proceedings. This notice, together with the completed application form and documents in
support, must be received by the MIB no later than 14 days after commencement of
proceedings. Service must be either by facsimile transmission, or by registered or recorded
delivery post to the MIB’s registered office. (See 3.4.1.3.) In practice, proceedings should
name the MIB as second defendant and the claimant should seek confirmation from the MIB
that notice requirements may be dispensed with.
12.4 ISSUING PROCEEDINGS

12.4.1 Where to issue
All tort proceedings can be issued in the county court. Proceedings which include a claim for
damages for personal injury can be commenced in the High Court only where the total claim
is worth at least £50,000 unless an enactment requires it to be commenced in the High Court
(CPR, PD 7A, paras 2.2 and 2.3).
When calculating the value of the claim for commencement purposes, the claimant must
disregard interest and costs, any possible counterclaim or finding of contributory negligence
which may be made against him, and any recoupment of benefits by the Compensation
Recovery Unit (CPR, r 16.3(6)).
The procedure for issuing proceedings is dealt with in Civil Litigation, but it is worth saying
here that all designated money claims which are to be commenced in the county court must
be issued in the Northampton County Court by sending the claim form to the County Court
Money Claims Centre in Salford.
12.4.2 Claim form – statements of value

In accordance with CPR, r 16.2(c), where the claimant is making a claim for money, the claim
form must contain a statement of value in accordance with CPR, r 16.3. This will be used to
determine the amount of the court fee to be paid by the claimant upon issue of proceedings,
and will assist the court to allocate the matter to the appropriate track.
As it will not be possible to state a precise amount, but it should be possible to give an
approximation of how much is likely to be received, the statement would be that the claimant
expects to recover:
(a) not more than £10,000;
(b) more than £10,000 but not more than £25,000; or
(c) more than £25,000.

See Document 9 of the Case Study in Appendix 1 for an example of a claim form.
If a claim is to be issued in the High Court, it must state that the claimant reasonably expects
to recover £50,000 or more; or must state that some other enactment provides that the claim
may be commenced in the High Court and specify that enactment (CPR, r 16.3(5)(c)).
In a claim for personal injuries, the claimant must state on the claim form whether the
amount which he reasonably expects to recover in general damages for pain, suffering and
loss of amenity is either not more than £1,000 or more than £1,000 (CPR, r 16.3(3)). This is to
enable the court to allocate the claim to the correct track should a defence be filed (see 13.3).
12.5 PARTICULARS OF CLAIM

The particulars of claim must be contained in or served with the claim form, or be served on
the defendant by the claimant within 14 days after service of the claim form. In any event,
particulars of claim must be served on the defendant no later than the latest time for serving a
claim form (ie, within four months after date of issue of the claim form).
It is vital that the particulars of claim are drafted carefully. They should set out the basis of the
claim clearly, accurately and comprehensively. If they do not do this, the worst case scenario is
that the claim will be struck out for failing to disclose reasonable grounds for bringing the
claim (CPR, r 3.4(2)(a)) or summary judgment will be given against the claimant (CPR,
r 24.2). At the very least, the claimant’s solicitor will give an impression of sloppiness or
incompetence.
12.5.1 Structure and content of the particulars of claim

The formalities set out in PD 5, para 2.2 and the main principles of drafting are discussed in
Civil Litigation. A suggested structure for particulars of claim in a personal injury case can be
found at 12.15 below, and an example is included in the case study at Appendix 1(10).
Particulars of claim in clinical negligence cases and in more complex personal injury cases are
generally drafted by counsel.
Rule 16.4 of the CPR and PD 16 deal with the contents of the particulars of claim. The
particulars must include, inter alia:
(a) a concise statement of the facts on which the claimant relies. When drafting, it is useful
to remember that the claimant will need to prove that the defendant owed him a duty of
care and/or there was a statutory duty, that this duty was breached by the defendant, and
that this caused injury and loss which was reasonably foreseeable. As far as is reasonably
possible, the particulars should deal with these elements in separate, consecutively
numbered paragraphs, with one allegation in each paragraph and in a chronological
order.
Although the CPR allow references to evidence and statutory provisions, the particulars
should deal with the ‘bare bones’ of the claim, and it is therefore preferable not to
include these details unless the information is specifically required. Four examples of
where evidence or statutory provisions should be set out are as follows:
(i) Where the claimant wishes to rely on the evidence of a medical expert, a medical
report should be attached to the particulars (see (e) below).
(ii) Where the claimant alleges breach of statutory duty, such as in an employer’s
liability case, the relevant statutory provisions should be set out.
(iii) Where the claimant relies on a criminal conviction of the defendant (see (b)
below).
(iv) Where the claimant is seeking an order for provisional damages (see (g) below);
(b) where the claimant is relying on a relevant conviction of the defendant, the nature of the
conviction, the date of conviction, the name of the convicting court and the issue in the
claim to which it relates;
(c) where the claimant is relying on a later date of knowledge for the purposes of limitation
(see Chapter 7), details of the date of knowledge (PD 16, para 8.2);
(d) for the purposes of assessing damages, the claimant’s date of birth and brief details of
his injuries. The main points of the medical report can be summarised for this purpose
but, especially in a high-value claim, it is important to ensure that all the relevant
information is included, ie the immediate impact of the accident, the duration of any
stay in hospital, the number and nature of any operations or other treatments,
continuing pain and disability, the practical effects on the claimant’s life, disability in
the labour market, loss of congenial employment, etc;
(e) if the claimant wishes to rely on the evidence of a medical expert, a report detailing the
injuries, which must be served with or attached to the particulars of claim;
(f ) details of past and future expenses and losses, which should be provided in a schedule
attached to the particulars;
(g) if the claimant is seeking provisional damages, a statement to that effect and his
grounds for claiming them. Further guidance as to what must be set out is found in PD
16, para. 4.4, namely:
(i) that the claimant is seeking the award under either s 32A of the Senior Courts Act
1981, or s 51 of the County Courts Act,
(ii) that there is a chance that at some future time he will develop some serious
disease or suffer some serious deterioration in his physical or mental condition,
and
(iii) the disease or type of deterioration in respect of which an application may be
made at a future date;
(h) where the claim relates to a fatal accident, a statement by the claimant covering:
(i) the fact that it is brought under the FAA 1976,
(ii) the dependants on whose behalf the claim is made,
(iii) the date of birth of each dependant, and
(iv) details of the nature of the dependency claim;
(i) where the claimant seeks interest, this must be pleaded by reference to the Senior Courts
Act 1981 or the County Courts Act 1984, depending on whether the claim is to be issued
in the High Court or the county court. The amount of interest which may be claimed, and
the period for which it may be claimed, differs in relation to special damages and
damages for pain, suffering and loss of amenity (see 15.6). Consequently, where the
amount sought is considerable or the calculation of damages complex, the plea for
interest may be set out in detail. However, it is common practice, particularly in low value
claims, to claim interest at such rates and for such periods as the court thinks fit.
The particulars of claim and the schedule of special damages must also contain a statement of
truth, ie that the claimant (and if the claimant is acting as a litigation friend, the litigation
friend) believes that the facts stated in the document are true. This may be signed by the
claimant (or litigation friend), or by the solicitor on his behalf (CPR, r 22).
See Document 10 of the Case Study in Appendix 1 for an example of Particulars of Claim,
Document 7 for an example of a medical report and Document 11 for a Schedule of Loss.
12.6 SERVICE OF PROCEEDINGS

After the claim form has been issued, it must be served within four months after the date of
issue. This may be extended, however, with leave of the court. If the claim form is to be served
out of the jurisdiction, the period is six months.
See Civil Litigation for the rules governing the service of court documents.
12.7 ACKNOWLEDGEMENT OF SERVICE

The defendant may respond to the claim by:
(a) defending the claim; or
(b) admitting the claim; or
(c) acknowledging service of the claim form.
If the defendant makes no response to the claim, the claimant may enter default judgment.
Where the defendant is unable to file a defence in time, he may gain extra time by
acknowledging service. The time for acknowledgement of service is 14 days from the service
of the claim form, unless the claim form indicates that the particulars of claim are to follow
separately, in which case the defendant does not have to acknowledge service until 14 days
after service of those particulars of claim. The acknowledgement of service form must be
signed by the defendant or his legal representative, and must include an address for service
for the defendant which must be within the jurisdiction.
On receipt of such an acknowledgement of service, the court must notify the claimant in
writing of this.
12.8 THE DEFENCE

The defendant must file a defence within 14 days of service of the particulars of claim, or,
if the defendant has filed an acknowledgement of service, within 28 days after service of the
particulars of claim.
The parties may agree an extension of time for filing of the defence of up to 28 days. The
defendant must give the court written notice of any such agreement.
12.8.1 Contents of the defence

The defence must deal with every allegation set out in the particulars of claim by admitting,
denying or not admitting (neither admitting nor denying) each allegation. This will be an
easier task if the particulars have dealt with one allegation per paragraph.
The following should also be noted.
(a) Where allegations are denied, the defendant must give reasons for that denial and,
where relevant, give his own version of the facts. If the defendant disputes the
claimant’s statement of value, he must give reasons for doing so and, if possible, give his
own estimate of value.
(b) The defence should make clear the defendant’s version of the facts, in so far as it is
different from that stated in the claim.
(c) Where the defendant wishes to rely on the fact that he took all reasonable care or on a
statutory defence, such as s 58 of the Highways Act 1980, he should say so.
(d) Where the defendant claims that the claimant was himself negligent, and therefore
contributed to the accident or increased the severity of his injuries, the particulars of the
claimant’s negligence should be set out in the defence.
(e) The defendant should give details of the expiry period of any limitation period on which
he wishes to rely (PD 16, para 14.1).
(f ) If the claimant has attached a medical report to his particulars of claim, the defendant
should state whether he admits, denies or does not admit the matters contained in it,
and give reasons for any matters he denies. For example, the defendant may claim that
the claimant has failed to mitigate loss, that the injuries were not caused by the alleged
negligence but rather by some pre-existing condition, or that the claimant has
fraudulently made or exaggerated the claim. If the defendant has obtained his own
medical report on the claimant, he should attach it to the defence.
(g) If the claimant has attached a schedule of past and future expenses and losses to his
particulars of claim, the defendant must include with his defence a counter-schedule
stating which items he agrees, disputes, or neither agrees nor disputes but has no
knowledge of. If items are disputed, an alternative figure must be supplied.
(h) The defence must contain a statement that the defendant, or, if the defendant is
conducting proceedings with a litigation friend, the litigation friend, believes the facts
stated in it are true. The statement of truth may be signed either by the defendant (or
litigation friend), or by his legal adviser.
(i) Unless the defendant has already acknowledged service, the defendant must give an
address for service which is within the jurisdiction.
12.9 THE COUNTERCLAIM

If a defendant wishes to make a counterclaim against a claimant, he should file his
counterclaim with his defence (CPR, r 20.4). Provided the counterclaim is filed at the same
time as the defence, the defendant will not need permission of the court to make the
counterclaim. Generally, the counterclaim will form part of the same document as the defence
and will follow on from the defence.
12.10 THE REPLY TO DEFENCE AND DEFENCE TO COUNTERCLAIM

The claimant may file a reply to the defence, but if he does not do so, he will not be deemed to
admit the matters raised in the defence. The reply must respond to any matters in the defence
which have not been dealt with in the particulars of the claim, and must contain a statement
of truth.
The claimant may file a reply and a certificate of reply when he files his directions
questionnaire (see 13.2). If he does serve a reply, he must also serve it on all other parties.
Where there is a counterclaim and the claimant disputes the counterclaim, he must file a
defence to it within the usual 14-day period. This will be way of a reply to the defence and a
defence to the counterclaim. If the claimant does not file a defence to the counterclaim, the
defendant will be entitled to enter judgment in respect of the counterclaim.
The particulars of claim, defence and reply are said to be the statements of case. No
subsequent statements of case may be filed without the court’s leave.
12.11 AMENDMENT TO STATEMENTS OF CASE

Sometimes, the claimant’s solicitor may need to amend the particulars of claim. Where this
arises before the particulars have been served on the defendant, the amendments may be
made without the court’s permission. On occasion, the defence may highlight a need for an
amendment, for example the need to add a further defendant, or even to pursue a different
defendant. Amendments may be made at any time after service, provided the defendant gives
his written consent. Where consent is not forthcoming, the permission of the court must be
sought (see CPR, rr 17 and 23).
In Goode v Martin [2001] EWCA Civ 1899, [2002] 1 WLR 1828, the claimant sought permission
to amend her statement of claim after the expiry of the limitation period. The amendment
consisted of a response to the defendant’s version of events and no new facts were being
introduced. The claimant also argued that if the amendment could not be allowed under a
conventional approach to r 17.4, a less conventional approach should be adopted to comply
with Article 6 of the European Convention on Human Rights.
The court found that because the claimant’s new cause of action arose out of the same facts
that were in issue in the original claim, she should be allowed to add to her claim the
alternative plea proposed. The Court of Appeal agreed with the claimant that to prevent the
claimant from putting her alternative case before the court would impose an impediment on
her access to the court that would have to be justified. It was possible to interpret r 17.4 in
such a way as to allow the claimant’s amendment, and that should be done to comply with
Article 6 of the Convention.
12.12 ADDITIONAL CLAIMS (CPR, PART 20)

CPR, Part 20 and PD 20 deal with counterclaims by the defendant against the claimant (see
12.9) and other additional claims, namely counterclaims against the claimant and some other
person, and claims by the defendant against any person (whether or not already a party) for
contribution or indemnity or some other remedy (CPR, r 20.2(1)). Where an additional claim
involves an individual or body who was not already a party to the proceedings, the claim is
commonly known as ‘third party proceedings’.
In accordance with s 1(1) of the Civil Liability (Contribution) Act 1978, ‘any person liable in
respect of any damage suffered by another person may recover contribution from any other
person liable in respect of the same damage (whether jointly with him or otherwise)’.
The ‘contribution’ which a defendant may seek from a third party may be either:
(a) an indemnity – this arises though a contractual relationship between the defendant and
the third party (such as where a product supplied by the defendant to the claimant
causes injury to the claimant, but was manufactured and supplied to the defendant by
the third party), or a statutory obligation placed on the third party (such as where a gas
company fails to reinstate a road properly and the claimant, who was injured in a road
traffic accident caused by defects in the road surface, brings proceedings against the
local highway authority). The claimant has a cause of action against the defendant, but
the court may order the third party to recompense the defendant in respect of the full
amount of the damages he is ordered to pay the claimant. The important point to note is
that an indemnity does not exonerate the defendant; the defendant remains liable to the
claimant. Consequently, if the third party were to become insolvent, the claimant would
be able to recover the judgment sum from the defendant; or
(b) a contribution – this arises where either or both of two parties, the defendant and the
third party, have been negligent or in breach of contract or of statutory duty (such as in a
road traffic accident where the claimant, who was a passenger in Car A, issues
proceeding against the defendant, the driver of Car B, but the defendant alleges that the
driver of Car A, the third party, was fully or partially responsible for the accident). In
such a case, the defendant seeks a contribution which may be equal to or less than the
claimant’s loss.
It is common for defendants to claim both an indemnity and a contribution in the alternative.
12.12.1 Making an ‘additional claim’

Where a defendant wishes to make a counterclaim against someone other than the claimant,
or where he wishes to claim an indemnity or a contribution from someone else in respect of
the damages which he may be ordered to pay to the claimant, his solicitor should take the
appropriate steps set out in CPR, Part 20 and PD 20 to ensure that the court is able to
apportion blame and liability to pay compensation. The appropriate steps for each type of
claim are as follows:
(a) a defendant who wishes to seek damages (ie counterclaim) against someone who is not
already a party to the proceedings. He must apply to the court for an order that that
person be added as an additional party. The application may be made without notice
unless the court orders otherwise (CPR, r 20.5);
(b) a defendant who wishes to seek a contribution or an indemnity from a co-defendant.

Once he has filed his acknowledgement of service or defence, the defendant may
proceed with his additional claim against the co-defendant by filing a notice stating the
nature and grounds of his claim and serving it upon the co-defendant. Provided he
serves the notice with his defence, he will not require the court’s permission.
Otherwise, he must seek leave (CPR, r 20.6);
(c) a defendant who wishes to seek a contribution or an indemnity in respect of the
claimant’s losses from someone who is not already a party to the proceedings
(commonly known as ‘third party proceedings’). The defendant must issue an
additional claim and serve it on the third party, together with particulars of claim, the
forms for defending and admitting the claim and acknowledging service, a copy of the
statements of case which have been served in the main claim, and any other document
the court directs. Provided the claim is issued before or at the same time as the defence
is filed, the court’s permission is not required. Otherwise, leave will be necessary (CPR,
r 20.7);
(d) where an additional claim has been made against a third party, when that third party
wishes to seek a contribution or an indemnity from someone else, whether or not
already a party. Where a new party is introduced, the procedure is the same as in (b)
above.
12.12.2 Obtaining permission to issue an additional claim

Where permission is required for an additional claim, an application notice must be filed and
served. together with a copy of the proposed additional claim and a witness statement setting
out the matters contained in PD 20, paras 2.1 to 2.3, namely:
(a) the stage the proceedings have reached;
(b) the nature of the additional claim to be made, or details of the question or issue which
needs to be decided;
(c) a summary of the facts on which the additional claim in based;
(d) the name and address of the proposed additional party;
(e) where there has been a delay, an explanation for the delay. The court will be concerned
to ensure that the late introduction of an additional party will not cause prejudice to any
existing party; and
(f ) a timetable of the proceedings to date.
12.12.3 Case management in relation to an additional claim

The court will be keen to ensure that counterclaims and other additional claims are managed
in the most convenient and effective manner. Where the defendant to an additional claim files
a defence, a case management hearing will take place to enable the court to consider the
future conduct of the proceedings. In accordance with PD 20, para 5.3, the court may treat the
hearing as a summary judgment hearing, order that the Part 20 proceedings be dismissed
and/or make appropriate directions.
12.12.4 Example of an additional claim

Carol was injured in a road traffic accident when her car was hit by a vehicle driven by Darren.
Darren had failed to stop at a junction. Carol (the claimant) issued proceedings in negligence
against Darren (the defendant). The day before the accident, Darren had taken his car to be
serviced by Tyrone, who had fitted new brake pads. Darren alleges that when he tried to apply
his brakes they failed to work, and this was the cause of the accident. Darren makes an
additional claim against Tyrone (the third party). Tyrone alleges that the brakes failed because
the brake pads he fitted to Darren’s car, which were purchased from Fab-Brakes Limited, were
defective. Tyrone makes an additional claim against Fab-Brakes Limited (the fourth party).
12.13 GROUP LITIGATION

Engaging in group litigation is time-consuming, difficult and (therefore) costly. Group
litigation results when there are a number of prospective claimants who have a common
interest or common defendant arising out of a common incident. An example of group
litigation is that brought by a number of families following the drowning of 51 passengers of
the pleasure boat Marchioness, which sank after being hit by the dredger Bowbelle on the Thames
in 1989.
The relevant rule of the CPR 1998 governing group litigation can be found at Part 19, with its
accompanying PD 19B. Part 19 provides for the making of a group litigation order (GLO) at
the request of the parties where there are, or are likely to be, a number of similar claims. The
aim of the GLO is to ‘steer’ the group litigation by ensuring that the case is managed to suit
the needs of multi-party litigation.
The GLO seeks to ensure that all cases that are eligible to join the group do so and are then all
treated in like manner to ensure consistency of result. The GLO must include specific
directions for the maintenance of a group register, specify the GLO issues, and appoint a
particular court and particular judge to oversee the case management process. By giving one
court/judge ‘ownership’ of the management process, the case can be more effectively
managed than if all potential claimants were allowed to issue and deal with their case at any
court of their choosing. The managing judge appointed to the group litigation will quickly
amass specialist knowledge in relation to that particular group litigation, and will therefore be
able to deal with matters as they arise more quickly and effectively.
The details of group litigation are beyond the scope of this book but recourse should be had,
as a starting point, to PD 19B and to The Law Society’s Multi-party Action Information
Service.
12.14 CONCLUSION
Generally, it is in the claimant’s interests for proceedings to be commenced as early as
possible. Nevertheless, the claimant’s solicitor should ensure that the matter has been
investigated as thoroughly as possible, and that all preliminary steps to protect the client’s
position and to comply with the overriding objective set out in r 1 and the relevant pre-action
protocol are complied with prior to issue of proceedings.
Practitioners require a good working knowledge of the rules which govern whether the
proceedings should be commenced in the county court or High Court, and where and how
they should be issued. A sound understanding of what should be contained in the Particulars
of Claim and the Defence, and competent drafting skills are essential.
12.15 SUGGESTED STRUCTURE OF PARTICULARS OF CLAIM IN PERSONAL

INJURY CASE
Court inserts case number
IN THE HIGH COURT OF JUSTICE ETC
Parties
PARTICULARS OF CLAIM
• Describe parties to establish duty of care if necessary
• Succinctly describe what happened
• Allege breach of statutory duty/duty of care
PARTICULARS OF BREACH OF STATUTORY DUTY

Where relevant, set out the breaches with specific reference to the
relevant statutory provisions. Be as comprehensive as possible.
PARTICULARS OF NEGLIGENCE
Set out what the defendant did or did not do which constitutes negligence.
Be as specific as possible. Where you have set out breaches of statutory
duty, state here ‘The Claimant repeats the allegations of breach of statutory
duty as allegations of negligence’, then particularise negligence.
• Criminal conviction (if relevant) – nature of conviction, date of conviction, name of
convicting court and the issue in the claim to which it relates
• Allege injury and loss caused
PARTICULARS OF INJURY
• Date of birth
• Summary of injuries, treatment and continuing effect on
claimant
• Weakening in labour market (Smith v Manchester)
• Refer to attached medical report(s)
PARTICULARS OF LOSS
• Refer to attached schedule
• Claim for interest
• Remedies sought (the prayer)
AND THE CLAIMANT CLAIMS
• Statement of truth
• Ending
Case Management and Interim Applications 187
CHAPTER 13
Case Management and

Interim Applications

13.2 Directions questionnaire 188
13.3 Allocation to track 188
13.4 The small claims track 189
13.5 The fast track 189
13.6 The multi-track 190
13.7 The case management conference and pre-trial review 190
13.8 Disclosure and inspection of documents 191
13.9 The evidence of lay witnesses 192
13.10 Expert evidence 192
13.11 Use of plans, photographs and models at trial 193
13.12 Pre-trial checklist (listing questionnaire) 193
13.13 Variation of case management timetable 193
13.14 Interim applications 193
13.16 Specific disclosure of documents held by a third party 196
LEARNING OUTCOMES
• explain why and how and upon what criteria claims are allocated to the appropriate
track, and the court’s role in managing cases
• set out the standard directions together with the timeframe for fast track cases, and
explain how directions are dealt with in multi-track cases
• explain what an interim payment is, the grounds and procedure for obtaining an
interim payment, and how the amount of an interim payment is determined.
13.1 INTRODUCTION
Case management is one of the key elements of the CPR 1998. The overriding objective of the
Rules, as set out in CPR, r 1.1, is to enable the court to deal with cases justly and at
proportionate cost. In accordance with CPR, r 1.4, the court must further the overriding
objective by actively managing cases, and r 1.3 requires solicitors and their clients to assist the
court in furthering the overriding objective. Dealing with cases justly and at proportionate
cost includes allotting to each case an appropriate share of the court’s resources (r 1.1(2)(e)),
which, in the first instance, requires the court to ensure that cases are dealt with in the
appropriate court and are allocated to the appropriate track. It also means that the court will
enforce compliance with rules, practice directions and orders (r 1.1(2)(f )), and it has various
sanctions at its disposal in order to enable it to do so.
The bulk of the activities which require active management by the court arise in the period
between the filing of the defence and trial, or earlier settlement. During this period, the case
is allocated to the appropriate track and the parties receive from the court a set of directions,
setting out a number of steps which must be taken within specified time limits. The aim of
these directions is to encourage settlement and, where this is not possible, ensure the matter
is properly prepared for trial.
This chapter contains a brief account of some of the main issues relating to case management
and interim applications which are relevant to personal injury and clinical negligence cases.
See Civil Litigation for a more in-depth consideration of this area.
13.2 DIRECTIONS QUESTIONNAIRE

Where a claim is defended, upon receipt of the defence, the court will make a provisional
decision regarding the appropriate track for the case and will serve on the parties a notice of
the proposed allocation (CPR, r 26.3). The factors relevant to allocation are set out at 13.3
below.
The notice of the proposed allocation requires each party to complete the relevant directions
questionnaire (N180 for small track cases; N181 for fast track and multi-track cases), return it
to the court office stated in the notice and serve copies on all other parties by the date
specified on the notice. Parties are advised as to where the directions questionnaire may be
obtained, unless a party is not legally represented, in which case a copy of the questionnaire
will be enclosed with the notice.
Where a case is suitable for allocation to the fast track or multi-track, parties are also required
to file proposed or agreed directions (see 13.5 and 13.6 below).
See Document 14 of the Case Study at Appendix 1 for an example of a directions questionnaire.
13.2.1 Stay to allow settlement of case

A party returning his directions questionnaire may request a stay of up to one month while the
parties try to settle the case. Where all parties request a stay, or where the court, of its own
initiative, considers such a stay would be appropriate, the court will direct a stay for one
month. The court may also extend the period of the stay until such a date or such a period
as it considers appropriate. If proceedings are settled during the stay, the claimant must
inform the court.
13.2.2 Transfer of proceedings between courts

The court has the power to transfer cases between the High Court and the county courts and
within district registries of the High Court (CPR, r 30.1). It may do so of its own volition, or
upon application by a party to the proceedings. Where the matter has been commenced in the
county court and a party believes that it is suitable for trial in the High Court or vice versa, it
should set out its reasons in the directions questionnaire.
The court may transfer designated money claims issued in the Northampton County Court
(see 12.4.1) to the claimant’s preferred court or the defendant’s home court as appropriate
(CPR, r 26.2(A)). Parties should set out in the directions questionnaire the court in which they
would like the matter to be dealt with, and should reach an agreement on this point, if
possible.
13.3 ALLOCATION TO TRACK

In accordance with CPR, r 26.6, personal injury and clinical negligence claims are allocated to
the appropriate track within a three-tier system largely in accordance with the value of the
claim as a whole and the value of the claim for damages for ‘personal injuries’ suffered, ie that
part of the damages which relates to pain, suffering and loss of amenity.
The small claims track is the normal track where:

(a) the value of the claim as a whole is not more than £10,000; and
(b) the value of any claim for damages for personal injuries is not more than £1,000.
The fast track is the normal track for any claim for which the small claims track is not the
normal track and which has a value of not more than £25,000. However, such a case will be
allocated to the fast track only if the court considers that:
(a) the trial is likely to last for no longer than one day; and
(b) oral expert evidence at trial will be limited to one expert per party in relation to a
maximum of two expert fields.
The multi-track is the normal track for any claim for which the small claims track or the fast
track is not the normal track.
Once the court has allocated a claim to a track, it will notify all parties, and it will also serve
them with copies of the allocation questionnaire provided by all other parties and a copy of
any further information provided by a party about his case.
Factors taken into account

When allocating a case, the court may take into account the following factors (CPR, r 26.8(1)):
(a) the financial value of the claim (or amount in dispute if different);
(b) the nature of remedy sought;
(c) the likely complexity of the facts, law or evidence;
(d) the number of parties or likely parties;
(e) the value of any counterclaim or other claim and the complexity of any matters relating
to it;
(f ) the amount of oral evidence that may be required;
(g) the importance of the claim to persons who are not parties to the proceedings;
(h) the views expressed by the parties;
(i) the circumstances of the parties.
When assessing the value of the claim for the purposes of track allocation, the court will
disregard any amounts not in dispute, interest, costs and any possible finding of contributory
negligence which may be made against the claimant (CPR, r 26.8(2)).
If the statements of case are later amended and it becomes clear that the case has been
allocated to an inappropriate track, the court may subsequently re-allocate a claim to a
different track (CPR, r 26.10).
13.4 THE SMALL CLAIMS TRACK

The small claims track has been specifically designed to enable individuals to pursue or
defend a claim without the need to instruct solicitors. A consideration of the procedure for
these claims is beyond the scope of this book.
13.5 THE FAST TRACK

Case management of cases allocated to the fast track (see CPR Part 28) will generally be by
directions given at allocation and, later, on the filing of the pre-trial checklists (listing
questionnaires). The court will seek to give directions without the need for a hearing wherever
possible, and sanctions will be imposed upon parties or their legal representatives whose
default makes a hearing necessary.
Generally, the court will give standard directions for the management of the case, based on
what is set out below, which will not be more than 30 weeks from allocation to trial. Although
the parties may seek to agree directions, they are unlikely to be approved if they are not based
on the following:
Disclosure 4 weeks
Exchange of witness statements 10 weeks
Exchange of experts’ reports 14 weeks
Pre-trial checklists, listing questionnaires sent out by court 20 weeks
Pre-trial checklists, listing questionnaires filed by parties 22 weeks
Trial 30 weeks
When giving directions relating to the trial, the court may fix a trial date but would more
usually set a ‘trial period’, a three-week period within which the trial will take place.
13.6 THE MULTI-TRACK

Where the value of the claim is more than £25,000, or where other factors make it unsuitable
for the fast track, the claim will be allocated to the multi-track (see CPR Part 29). Claims will
range from those which are just above the financial limit and which are fairly straightforward,
to those of high value where the issues, evidence and law are extremely complex, and the court
will adopt a flexible approach in order to manage the claim in accordance with its needs.
When allocating a case to the multi-track, the court will either:
(a) use the information contained in the directions questionnaires and any draft directions
submitted by the parties in order to give directions for case management and set a
timetable; or
(b) fix a case management conference or a pre-trial review, or both, when it will hear from
the parties and then give such directions relating to management of the case as it thinks
fit.
In accordance with CPR, r 29.1(2), when drafting case management directions, both the parties
and the court should take as their starting point any relevant model directions and standard
directions, which can be found online at www.justice.gov.uk/courts/procedure-rules/civil, and
adapt them as appropriate to the circumstances of the particular case.
13.7 THE CASE MANAGEMENT CONFERENCE AND PRE-TRIAL REVIEW

Where the court decides that directions cannot be given without hearing directly from the
parties, it may, at any time after the filing of the defence, fix a date for a case management
conference and/or, after the return of the directions questionnaires, set a date for a pre-trial
review. Where a party is legally represented, any case management conference or pre-trial
review called by the court must be attended by a legal representative who is familiar with the
case and has the authority to take decisions regarding the management of the case. It is
therefore important that the solicitors have obtained their client’s instructions regarding all
matters which are likely to be dealt with at the hearing. The court will expect the parties to be
in a position to deal with all outstanding matters regarding the conduct of the case, and to
reach an agreement regarding these matters wherever possible. It is increasingly common for
case management conferences to be conducted over the telephone.
13.7.1 Case management in relation to an additional claim

Where the defendant to an additional claim (see 12.12) files a defence, a case management
hearing will take place to enable the court to consider the future conduct of the proceedings
and give appropriate directions. It is obliged to ensure, in so far as it is practicable, that the
original claim and all additional claims are managed together (CPR, r 20.13). In accordance
with PD 20, para 5.3, at the hearing the court may:
(a) treat the hearing as a summary judgment hearing;

(b) order that the additional claim be dismissed;
(c) give directions about the way any claim, question or issue set out in or arising from the
additional claim should be dealt with;
(d) give directions as to the part, if any, the additional defendant will take at the trial of the
claim;
(e) give directions about the extent to which the additional defendant is to be bound by any
judgment or decision to be made in the claim.
Paragraph 7 of PD 20 sets out how parties should be described in the proceedings when there
are additional claims. In summary, the claimant and defendants in the original claim should
be referred to as such, and additional parties should be referred to as ‘Third Party’ or ‘Fourth
Party’, depending on the order in which they were joined to the proceedings.
13.8 DISCLOSURE AND INSPECTION OF DOCUMENTS

Recent changes to the rules relating to disclosure and inspection of documents in multi-track
cases require parties to file and serve a disclosure report, which includes an estimate of the
costs associated with the disclosure process. However, it should be noted that where a multi-
track claim includes a claim for personal injuries, it is exempt from this requirement.
Consequently, parties are not required to give more than standard disclosure in fast track and
multi-track cases unless the court directs otherwise (see CPR, r 31.5).
Standard disclosure means that a party is required to disclose only:
(a) the documents on which he relies;
(b) the documents which could adversely affect his own case, adversely affect another’s case
or support another party’s case; and
(c) all documents which he is required to disclose by any Practice Direction.
The court may dispense with or limit standard disclosure, and the parties can agree in writing
to dispense with or limit any part of standard disclosure. The duty of standard disclosure
continues throughout the proceedings, and if a document comes to a party’s notice at any
time, that party must immediately notify every other party. Privileged documents, however,
should not be disclosed.
13.8.1 Procedure
Each party must make and serve a list of documents, which must identify the documents ‘in a
convenient order and manner as concisely as possible’. The list must indicate documents
which are no longer in the parties’ control and state what has happened to those documents.
The list must include a disclosure statement by the party:
(a) setting out the extent of the search made to locate the documents;
(b) certifying that he understands the duty of disclosure and that, to the best of his
knowledge, he has carried out that duty.
13.8.2 Specific disclosure

Where a party believes that the other party has failed to carry out his duty of disclosure and
inspection under CPR Part 31, he may apply for an order for specific disclosure under CPR,
r 31.12. An order for specific disclosure can require a party to disclose specified
documents or classes of documents, or carry out a search for specified documents and
disclose any documents located as a result of that search.
An application for specific disclosure must be supported by evidence. The court will order
specific disclosure only if necessary to dispose fairly of the claim or save costs.
For applications for an order for pre-action disclosure, see 10.10.2.
13.9 THE EVIDENCE OF LAY WITNESSES

As part of its management powers, the court will decide the issues on which it requires
evidence, the nature of that evidence and the way in which the evidence should be placed
before the court (see CPR Part 32).
Facts should normally be proved at the trial by oral evidence of witnesses, and at any other
hearing by the written evidence of witnesses. The court may allow a witness to give evidence
by any means, which includes by means of a video link.
13.9.1 Procedure
According to CPR, r 32.4(1): ‘A witness statement is a written statement signed by a person
which contains the evidence which that person would be allowed to give orally.’ A witness
statement must comply with the requirements set out in PD 32 (CPR, r 32.8).
The court will normally give directions that each party serve the witness statements of the oral
evidence on which he intends to rely at the trial. The directions usually envisage that
simultaneous exchange will take place, but that court may give directions as to the order in
which such witness statements are to be served and whether or not the statements are to be
filed.
If a witness statement has been served and a party wishes to rely on that evidence at trial, the
party must call the witness to give oral evidence unless the court otherwise orders.
13.9.2 Statements to stand as evidence-in-chief

Where a witness is called to give oral evidence, his statement shall stand as evidence-in-chief,
unless the court orders otherwise (CPR, r 32.5(2)).
The witness giving the oral evidence may amplify the witness statement, and give evidence in
relation to new matters that have arisen since the statement was served. However, he may do
this only if the court considers there is a good reason not to confine his evidence to the
contents of the statement that has been served.
Evidence in proceedings other than at the trial should be by witness statement, unless the
court or a particular Practice Direction otherwise directs.
13.9.3 Witness summary

Where a party is required to serve a witness statement and he is unable to obtain such a
statement, for example because the witness refuses to communicate with the party’s solicitor,
he may apply to the court for permission to serve only a witness summary instead (CPR,
r 32.9). This application should be made without notice. The witness summary is a summary
of the evidence which would otherwise go into a witness statement, or, if the evidence is not
known, matters about which the party serving the witness summary will question the witness.
Where a witness statement or a witness summary is not served, the party will not be able to
call that witness to give oral evidence unless the court allows it.
13.10 EXPERT EVIDENCE

The duties of experts in relation to court proceedings and the directions which the courts are
likely to make are dealt with in Part 35 of the CPR (see Chapter 11 generally and 11.2 for case
management and the use of experts).
13.11 USE OF PLANS, PHOTOGRAPHS AND MODELS AT TRIAL

Where a party wishes to use evidence such as plans, photographs or models, or other
evidence:
(a) which is not contained in a witness statement, affidavit or expert’s report;
(b) which is not given orally at trial;
(c) which has already been disclosed in relation to hearsay evidence;
the party wishing to use the evidence must disclose his intention to do so not later than the
latest date for serving witness statements (CPR, r 33.6).
If the evidence forms part of expert evidence, it must be disclosed when the expert’s report is
itself served on the other party. Having disclosed such evidence, the party must give every
other party an opportunity to inspect it and agree its admission without further proof.
13.12 PRE-TRIAL CHECKLIST (LISTING QUESTIONNAIRE)

In accordance with the order for directions, the court will send each party a listing
questionnaire to complete and return to the court by the date specified in the notice of
allocation (CPR, r 28.5 (fast track); CPR, r 29.6 (multi-track)). The date specified for filing a
listing questionnaire is not more than eight weeks before the trial date.
If a party fails to file a completed listing questionnaire within the time limit, or fails to give all
of the information, or the court thinks it is necessary, the court may fix a listing hearing or
give such other directions as it thinks appropriate.
On receipt of the parties’ listing questionnaires, the court may decide to hold a pre-trial
review, or cancel a pre-trial review if it has already decided to hold one, having regard to the
circumstances of the case.
Using the information given in the listing questionnaires or at the pre-trial review or listing
hearing, the court will set a timetable for the trial, including confirming or fixing the trial date
and setting out any further steps that need to be taken by the parties prior to the trial.
The court will give each party at least three weeks’ notice of the trial date. Only in exceptional
circumstances will the notice period be shorter than this.
13.13 VARIATION OF CASE MANAGEMENT TIMETABLE

The parties may agree in writing to extend the dates for the carrying out of any steps set out in
the directions subject to CPR, r 29.5. This states that if a party wishes to vary any of the dates
which the court has fixed for:
(a) the case management conference;
(b) the pre-trial review;
(c) the return of listing questionnaires;
(d) the trial;
he may do so only with leave of the court. The parties should not agree to make any other
variations to the timetable which would make it impossible for them to comply with the time
limits set for the above steps.
13.14 INTERIM APPLICATIONS

Interim applications are applications which are made by either party between the issue of
proceedings and trial. The general rules governing such applications are set out in CPR Part
23, but practitioners should be aware that some types of application are governed by specific
rules. For a detailed consideration of interim applications, see Civil Litigation. This text will
deal with the following types of application:
(a) interim payments;

(b) specific disclosure – see 13.7.2 above; and
(c) specific disclosure against a non-party.
13.15 INTERIM PAYMENTS

An interim payment is a payment made to the claimant, prior to the conclusion of the matter,
in partial settlement of the claim. It is defined as ‘a payment on account of any damages, debt
or other sum (excluding costs) which that party may be held liable to pay to or for the benefit
of another party to the proceedings if a final judgment or order of the court in the proceedings
is given or made in favour of that other party’ (Senior Courts Act 1981, s 32(5) and County
Courts Act 1984, s 50(5)).
In a multi-track case where liability has been admitted or proven, or where the claimant can
demonstrate a strong case on liability, an interim payment will assist in mitigating the effects
of financial hardship caused by the often lengthy period between the accident and the
determination of the claim. Interim payments are particularly important where the claimant
has suffered catastrophic injuries or disablement and requires access to a substantial sum of
money in order to pay for accommodation and/or a care regime.
An interim payment cannot be made in a small claims track case and, whilst not forbidden in
a fast track case, will be rarely made due both to the value of the claim and to the relatively
short period of time from issue of proceedings to trial. For interim payments in cases falling
under one of the low value pre-action protocols, see 21.4.
Where the grounds for making an order are satisfied, the court has a discretionary power to
order that the defendant make an interim payment under r 25.6 of the CPR. The order may
specify that such payment be made by instalments, and more than one order may be made
during the lifetime of a claim. Where the claimant is a child or a protected party (see Chapter
20), the payment will usually be made to the Court of Protection.
In accordance with CPR, r 25.9, where an interim payment has been made either voluntarily or
pursuant to a court order, unless the defendant agrees, this shall not be disclosed to the trial
judge until all questions of liability and quantum have been decided.
13.15.1 Grounds for making the order

In accordance with CPR, r 25.7(1), the court may order an interim payment only if:
(a) the defendant admits liability; or
(b) the claimant has a judgment for damages to be assessed; or
(c) if the matter were to proceed to trial, the claimant would obtain judgment for a
substantial amount of money.
The court will take into account the defendant’s ability to pay the interim payment before
making an order.
In a claim where there are two or more defendants, the court may make an order for interim
payment against any of them if it is satisfied that, if the claim went to trial, the claimant would
obtain judgment for substantial damages against at least one of the defendants although it
cannot determine which. It will do so only where all the defendants are either insured or they
are a public body, or liability will be met by the MIB.
Although a claimant will normally set out in his application why the interim payment is
required, he is not obliged to show that there is a need for the payment. In Stringman v McCardle
[1994] 1 WLR 1653, Stuart-Smith LJ said: ‘It should be noted that the plaintiff does not have
to demonstrate any particular need over and above the general need that a plaintiff has to be
paid his or her damages as soon as reasonably may be done.’
13.15.2 Procedure
Before making an application to the court for an interim payment, the claimant’s solicitor
should contact the defendant’s solicitor and request that the defendant make a voluntary
interim payment. The defendant may be amenable to such a request; if the payment is to fund
treatment or rehabilitation costs, this may reduce the final award of damages and interest
payments will be reduced. However, where the claimant is a child or protected party, the
permission of the court is required before an interim payment is made (PD 25B, para 1.2).
A claimant may not seek an interim payment until after the time for acknowledging service
has expired.
The application should be made using Form N244 and must be supported by evidence.
Although the evidence may be set out on the application form itself, generally it will be set out
in a witness statement. Paragraph 2.1 of PD25B states that the evidence must deal with the
following:
(1) the sum of money sought by way of an interim payment,
(2) the items or matters in respect of which the interim payment is sought,
(3) the sum of money for which final judgment is likely to be given,
(4) the reasons for believing that the conditions set out in rule 25.7 are satisfied,
(5) any other relevant matters,
(6) in claims for personal injuries, details of special damages and past and future loss, and
(7) in a claim under the Fatal Accidents Act 1976, details of the person(s) on whose behalf the claim
is made and the nature of the claim.
Paragraph 2.2 of PD 25B states that any documents in support of the application should be
exhibited, including, in personal injuries claims, the medical report(s).
The application notice and witness statement in support must be served on the defendant (the
respondent) at least 14 days before the return date for the application. If the defendant wishes
to rely on a witness statement in response to the application, he must file and serve a copy of
that witness statement at least seven days before the hearing; and if the claimant (the
applicant) wishes to file a further witness statement in reply, he must do so at least three days
before the hearing.
Where the claimant has been in receipt of recoverable benefits which will fall to be repaid by
the defendant to the Compensation Recovery Unit (CRU) (see Chapter 16), the defendant
should obtain a certificate of recoverable benefits and file this with the court.
13.15.3 The amount of the interim payment

When dealing with an application for an interim payment, the court will seek to avoid making
an overpayment which may lead to the claimant having to repay money to the defendant (see
13.15.4). In accordance with CPR, r 25.7(4) and (5), the amount of the interim payment must
not exceed a reasonable proportion of the likely amount of the final judgment, taking into
account contributory negligence and any relevant set-off or counterclaim.
Where there is a large discrepancy between what the claimant and the defendant believe will
be ultimately awarded, the court will first look at the amount of special damages which have
already accrued and the amount of special damages which will arise prior to the date of trial.
There can be a large degree of certainty as to the likely amount of damages to be awarded in
this respect. The court will then attempt to determine what the court is likely to award in
respect of pain, suffering and loss of amenity, etc, and future loss of earnings and costs of
care, which is much more speculative.
Defendants have sought to limit the size of interim payments by arguing:
(a) that allowing substantial interim payments to cover the cost of purchasing new
accommodation and/or an expensive care regime, in circumstances where the
defendant argues that the accommodation or care regime is excessive for the claimant’s
needs, distorts the ‘level playing field’ against defendants. When quantum is ultimately
considered by the court, it is considerably harder for the defendants to argue this point
when the accommodation has already been purchased and the care regime is up and
running, and where expert witnesses are able to give evidence as to how the claimant’s
needs are being met. In Spillman v Bradfield Riding Centre [2007] EWHC 89, the claimant, a
minor, suffered serious head injuries when she was kicked by a horse at the defendant’s
riding school. The application for an interim payment to fund special care and to enable
her parents to purchase a larger house, which they argued was necessary for her benefit,
was rejected at first instance. At appeal, the defendant unsuccessfully argued that if
the interim payment was ordered in the amount sought by the claimant, the head of
damage would become self-fulfilling as, at the date of trial, the claimant would have
benefitted from the accommodation and care to which the defendants argued she was
not entitled;
(b) that allowing a substantial interim payment may prevent the court at trial from awarding
periodical payments (see 15.5) because there will be insufficient damages left to be
paid. This argument is particularly relevant to cases where the claimant’s life expectancy
has been reduced significantly. Where it is likely that the final judgment would involve
an order for periodical payments to be made, the court has to consider what is the ‘likely
amount’ for the purposes of CPR, r 25.7(4). In Braithwaite v Homerton University Hospitals
Foundation Trust [2008] EWHC 353 (QB), the court held that the amount of the final
judgment was the capital sum plus a periodical sum payable during the life of the
claimant. Consequently, the court must be confident that the amount of the proposed
interim payment is not in excess of the capital sum ultimately awarded at trial.
There is no rule as to what constitutes a ‘reasonable proportion’, but decided cases appear to
suggest that the courts will order a maximum of 75% of the likely final award of damages.
For guidance in cases where an interim payment is sought and where the final judgment is
likely to include a periodical payment order, see the Court of Appeal’s judgment in Cobham Hire
Services Ltd v Eeles [2009] EWCA Civ 204.
It should be noted that where recoverable benefits have been received by the claimant, he will
receive the interim payment net of the amount of the benefits. The defendant will pay an
amount equal to the recoverable benefits to the CRU.
13.15.4 Repayment and variation

In accordance with r 25.8 of the CPR, where a defendant has made an interim payment either
voluntarily or pursuant to an order, the court may order that all or part of that sum be repaid
by the claimant, or that the defendant be reimbursed by another defendant.
In addition, where a defendant makes an interim payment which it transpires exceeds his
liability under the final judgment, the court may award interest on the overpaid amount from
the date the interim payment was made.
13.16 SPECIFIC DISCLOSURE OF DOCUMENTS HELD BY A THIRD PARTY

Once proceedings have been commenced, the court may make an order for specific disclosure
of documents against a non-party under CPR, r 31.17(3), only where:
(a) the documents of which disclosure is sought are likely to support the case of the
applicant or adversely affect the case of one or other of the parties to the proceedings;
and
(b) disclosure is necessary to dispose fairly of the claim or save costs.
The application must be supported by appropriate evidence. An order under r 31.17 will
specify the documents or class of documents which must be disclosed, and require the
respondent to make disclosure or specify any of those documents which are no longer in his
possession or for which he claims the right or duty to withhold from inspection. The order
may specify a time and place for such disclosure and inspection.
13.17 CONCLUSION
When proceedings are defended, upon completion of the directions questionnaires, the case
will be allocated to the appropriate track, and may be transferred from the court of issue to
another court where appropriate. The court will then actively manage the matter in
accordance with the overriding objective set out in CPR, r 1, and will require the parties and
their solicitors to co-operate fully in achieving that objective. The parties will be expected to
do their best to settle the matter as soon as possible and without the need for a court hearing.
Directions will be issued as are appropriate for the track to which the case has been allocated,
and practitioners must do all they can to ensure that steps are taken within the specified time
limits.
Solicitors acting for claimants and defendants may make interim applications to the court in
relation to diverse issues such as time extensions, specific disclosure and interim payments,
either where agreement cannot be reached between the parties or where the CPR require the
court’s involvement. Where possible, such applications should be made at the time of case
management conferences, pre-trial reviews or at the same time as other applications, in order
to save court time and costs.
Sound case management systems and procedures are essential, as judges are increasingly
intolerant of avoidable delays and mistakes which lead to unnecessary applications.
Negotiations, Alternative Dispute Resolution and Trial 199
CHAPTER 14
Negotiations, Alternative
Dispute Resolution and Trial

14.2 Professional conduct 200
14.3 Negotiating with insurance companies and defence solicitors 200
14.4 Preparing for the negotiation 200
14.5 Conducting the negotiation 202
14.6 Negotiating in clinical negligence claims 203
14.7 Alternative dispute resolution 203
14.8 Funding any settlement 206
14.9 Court orders 206
14.11 Preparation for trial 210
14.12 The trial 213
LEARNING OUTCOMES
• understand how to prepare for and conduct a negotiation on behalf of the client
• draw up an appropriate consent order
• draft a Part 36 offer including provisional damages or periodical payments
• identify steps necessary to prepare a case for trial.
14.1 INTRODUCTION
Over 90% of personal injury claims and many clinical negligence claims settle without trial. It
is usually the case that the solicitor’s skill in arguing his client’s claim with the other side’s
representative, rather than his ability to argue the case at trial, will determine the level of
damages. For this reason, the personal injury solicitor is more likely to become a skilled
negotiator than a trial advocate.
In order to avoid a potential negligence claim, it is imperative that the claimant solicitor is
absolutely sure that the client’s medical prognosis is clear prior to proceeding to settle the
claim, or to advising the client that it is appropriate to settle the claim. In this regard the
solicitor will rely heavily on the medical report and the prognosis for recovery contained
within it. It should be stressed to the client that the prognosis is only an estimate, and if the
client does not feel that he has recovered then the solicitor cannot advise the client to settle
his claim prematurely. It should be pointed out to the client that the compensation offered by
the defendant is a ‘once and for all payment’, and he therefore cannot (normally) return at a
future date to obtain further compensation if the prognosis for recovery should prove to be
incorrect.
This chapter aims to summarise the main factors to take into account when negotiating, and
considers other methods of alternative dispute resolution (ADR) which may be used in
personal injury and clinical negligence cases (including cases within the low value protocols).
Inevitably there will be cases which are not capable of settlement and which must proceed to
trial, in which case it is vital to prepare properly as a poorly presented case will not impress a
judge. The steps that should be taken to prepare the case for trial are also explained below.
(but note that, for cases which are proceeding within the low value protocols, different
procedures apply and reference should instead be made to Chapter 21)
14.2 PROFESSIONAL CONDUCT

As a matter of conduct, a solicitor does not have ostensible authority to settle a client’s claim
until after proceedings have been issued. It is imperative for the solicitor to seek the client’s
specific instructions prior to settling a claim. For example, even if the client instructs his
solicitor that he can settle his claim as long as the client receives at least £1,000, the solicitor
should, when negotiating with the defence, stipulate that any agreement is ‘subject to his
client’s instructions’. In this way, if the client should change his mind (which he may do at any
time), the solicitor will not have committed the client to the settlement irrevocably. A solicitor
acting for the defendant must be careful not to exceed any authority he has been given to
settle by his insurance client.
Negotiations should always be entered into on an expressly ‘without prejudice’ basis. When
talking to an insurer in person or on the telephone, it is advisable for the solicitor to preface
anything he says by stating expressly at the outset that the entire conversation is without
prejudice to his client’s claim.
14.3 NEGOTIATING WITH INSURANCE COMPANIES AND DEFENCE

SOLICITORS
Claims can be settled by agreement being reached between the parties at any stage. The pre-
action protocols encourage early disclosure of information to facilitate this. Claimant
solicitors have in the past considered that defendant insurers will not make reasonable offers
for settlement prior to issue of proceedings. For this reason, many claimant solicitors have
tended to issue proceedings first and negotiate second. This strategy is not encouraged by the
CPR 1998. The pre-action protocols require that attempts be made to settle disputes. For a
detailed consideration of the protocols, see Chapter 10. If the claim is being funded by a CFA,
there is also the further requirement to disclose to the insurer that the matter is being funded
in this way and the identity of any AEI insurer; it is not necessary to give any further details. In
particular, it is not required or desirable to disclose the level of the success fee, as this would
give the insurer a good indication of how confident the claimant’s solicitor was about winning
the case at trial.
When negotiating with the defendant’s insurer or its solicitor, a firm approach should be
taken by the claimant’s solicitor. He must be alert to the fact that the insurer is in business to
make money for its shareholders, and its employees are employed to ensure that as little
money as possible is paid out in damages. Therefore, the claimant’s solicitor should not delay
in issuing proceedings, after the pre-action protocol has been complied with if the defendant
has failed or refused to make an acceptable response. Failure to do so is likely to be a failure to
act in the best interests of the client.
14.4 PREPARING FOR THE NEGOTIATION

Prior to any negotiation, the solicitor should first familiarise himself with the file, noting
specifically any matters likely to increase the level of damages, such as the risk of
osteoarthritis or permanent scarring. There is a risk that the solicitor will fail to remember the
file adequately because he may be running many very similar claims at any one time. When
reviewing the file it is good practice to build up a profile of the severity of the injuries by
reading the medical reports and client’s statement. Matters relevant to each head of loss
should be noted, so that the solicitor has a list of areas of loss without having to make
reference to the specifics of the claim itself.
EXAMPLE
Client A is aged 56. She suffered injuries to her left shoulder and abrasions to both arms
and legs when she tripped over a loose paving stone in her local high street. She is a keen
gardener and likes to attend aerobics once a week, and enjoys walking her dog in the
countryside near her home. Her husband took early retirement due to ill-health and is not
able to assist her much, but he has been driving her to the doctor and to physiotherapy,
and has been helping her bathe and dress herself. Day-to-day cleaning of the house and
gardening has been undertaken by friends and relations.
The profile in such a case would be:
General damages claim:
(a) female aged 56, therefore likely to take some time for injuries to mend, danger of
osteoarthritis revealed in medical report;
(b) report revealed split fracture to the clavicle (collar bone) together with a tear to the
latissimus dorsi (muscle beneath the shoulder) and associated soft tissue damage;
(c) medical intervention involved substantial and uncomfortable strapping to render
the injury immobile followed by light physiotherapy. Physiotherapy continued for 20
weeks;
(d) reasonably fit, unable to undertake pastimes such as aerobics and walking in
countryside for X weeks.
Special damages:
(a) clothes and personal items lost or damaged in the accident;
(b) mileage claim for travel to and from hospital/physiotherapy;
(c) prescription charges;
(d) daily care necessary;
(e) husband unable to care on his own due to his own ill-health;
(f ) cleaning of house and garden maintenance undertaken by others.
Having built up such a profile, the next stage is for the solicitor to become familiar with the
likely level of damages to be awarded in such a claim. Such familiarity comes with experience.
The method of approach to calculation of damages is considered in detail in Chapter 15.
In addition to reviewing quantum, the solicitor must ensure he has a good grasp of the facts of
the accident and the evidence supporting the case on liability. The solicitor must undertake a
thorough review of all pleadings, witness statements and other documents disclosed, and
consideration should be given to possible arguments of contributory negligence.
The client should be aware that any form of litigation carries with it a certain amount of risk
that the claim will fail because the evidence may not come up to proof at trial. Because of this
‘litigation risk’, it is likely that the defence solicitor will seek some reduction in damages
because the claimant is being spared the upset and risk of failure at trial.
If acting for the defendant, the solicitor must obtain a certificate of recoverable benefit from
the DWP before making any offer in settlement so that any relevant benefits can be taken into
account.
14.5 CONDUCTING THE NEGOTIATION

The technique of negotiation is contained in Skills for Lawyers. When conducting
negotiations, it is worth bearing in mind the following:
(a) Settlement should not be entered into prematurely. If proceedings are never issued and
the defendant’s insurers make clear that they do not contest the case, argument will
centre on quantum, and it will be fairly safe to negotiate. If, however, the matter is
contested, it is unwise to negotiate prior to disclosure of each side’s evidence. For this
reason, many solicitors believe that settlement should not be contemplated prior to the
exchange of witness evidence. Once the solicitor has considered the evidence, he can
then assist the client to make an informed decision as to whether he should accept a
settlement.
(b) The solicitor must never negotiate when unprepared. The file must be considered
thoroughly prior to proceeding with negotiations. If the solicitor receives a surprise
telephone call from a defendant insurer seeking a settlement, it is better for the solicitor
to call back later, after having considered the case afresh.
(c) The defence should be invited to put forward its settlement figure with supporting
argument as to why that figure is correct. Comments should be kept to a minimum and
further negotiations postponed while the offer is considered. This is easiest to do if
negotiating over the telephone, as negotiation can be cut short and re-established later
with minimum difficulty. The telephone has the added advantage that the person
making an offer cannot see the reaction of the recipient of the call, and will be unable to
gauge how well or how badly the offer is received. The claimant’s solicitor should never
disclose his valuation of the claim first in negotiations, and should not reveal any
figures until he believes the defendant is putting forward a realistic amount.
(d) The defence opening offer is unlikely to be the best it is prepared to come up with. All
offers must, however, be put to the client. A solicitor has a duty to act in the best
interests of his client, and this includes obtaining the best possible settlement figure.
(e) An offer by the defence to pay the claimant’s costs to date should not sway the solicitor
into advising his client to accept an offer. If the defence is offering to settle, it is
effectively admitting (albeit without prejudice) that there is merit in the claim, and it
would normally be obliged to pay the claimant’s reasonable costs if the case went to
trial.
(f ) Often the solicitor has specific instructions to try to settle the case on the client’s
behalf. In such circumstances, he may seek confirmation that a settlement will be
agreed as long as the client will receive at least £x. If this is the case, the solicitor must be
careful not to jump at the first offer simply because it will secure for the client the
minimum that he requires and will usually also secure payment of the solicitor’s costs.
(g) Consideration of the defendant’s offer should not be rushed. Any attempt to force an
agreement quickly should be regarded as spurious. The defence would not have made an
offer if it was happy to take the case to trial. Therefore, regardless of whether a time
limit is placed on the offer, it is likely that unless fresh evidence comes to light
strengthening the defence case, an offer once made will remain open. By making an
offer at all the defence is saying that it would far rather pay than fight.
(h) When negotiating, defendant insurers will often offer to ‘split the difference’ if
agreement cannot be reached on a particular head of loss. This is a favourite tactic that
the claimant solicitor should consider carefully before accepting. On the face of it, it
may appear to be a generous offer, bringing negotiations to a speedy conclusion. On
closer scrutiny, it may be a ploy which results in the loss of a substantial portion of the
client’s legitimate expectation in a particular head of damages.
14.6 NEGOTIATING IN CLINICAL NEGLIGENCE CLAIMS

When considering negotiation in the context of clinical negligence claims, the following
additional points should be borne in mind.
(a) In many cases, the NHS complaints procedure will already have been put to use, and
there may therefore be greater clarity as regards the issues of the claim.
(b) It is unlikely that any negotiations with a view to settlement will be made prior to full
recourse to the clinical disputes PAP. Only after both sides have had access to full
disclosure and expert opinion will it be possible for any meaningful negotiation to take
place.
(c) In straightforward claims of low value, negotiating tactics as outlined above may be
appropriate. In relation to more complex claims, it is more likely that there would be a
meeting of the parties’ solicitors, with or without experts, to try to narrow as many
issues as possible. In appropriate cases, counsel for both sides may be asked to discuss
the case informally to try to narrow areas in dispute.
14.7 ALTERNATIVE DISPUTE RESOLUTION

The use of ADR is likely to become more important in the resolution of disputes, as the
overriding objective (stated in Part 1 of the CPR 1998) encourages its prompt use as a way of
furthering the overriding objective and to aid prompt settlement. Most disputes are capable of
resolution either by discussion and negotiation, or by trial on the issues. The rules encourage
the use of alternatives to litigation as a first resort and of litigation as a last resort. Civil
Litigation explains ADR in detail.
14.7.1 Different types of ADR

All of the methods of ADR are mechanisms which aim to bring the parties together to obtain a
consensual agreement rather than a ruling which is forced upon them. The main types of ADR
available today are as follows.
14.7.1.1 Mediation
In mediation, a neutral third party is chosen by the parties as their intermediary (mediator).
The mediator is likely to meet the opposing parties separately to try to establish some
common ground before finally bringing the parties together to try to reach an agreement.
14.7.1.2 Conciliation
Conciliation is a similar process to mediation. However, the conciliator is likely to take a more
interventionist approach by taking a more central role. He will often consider the case as put
forward by both sides, and then suggest terms of settlement which he feels to be most
appropriate.
14.7.1.3 The mini-trial

The format and content of a mini-trial is much more like a trial. It will be chaired by a neutral
mediator who will sit with a representative from each party.
14.7.2 Case management conference

At the case management conference/pre-trial review, the parties will be told to confirm
whether the question of ADR has been considered and also to confirm, if it has not, why this
is the case.
When considering the conduct of the parties, the judge is entitled to consider the parties’
unreasonable refusal to use ADR, as this is central to the ethos of how to deal with disputes in
accordance with Part 1 of the CPR 1998. Where ADR has been refused, or where a party has
later failed to co-operate with ADR, the court is entitled to take that into account when
considering what costs order to make, or whether to make any costs order at all.
14.7.3 ADR and personal injury claims

Use of the pre-action protocol will ensure that the parties are better able to obtain a greater
depth of knowledge about the case against them than in the past. Full use of pre-action
disclosure, and preliminary disclosure of key documents, will enable each side to obtain a far
better view of the issues of the case in relation to liability, and will therefore allow them to
make a far better and earlier assessment of their client’s case.
At the stage where the parties complete their directions questionnaire, they will be asked
whether they would like their proceedings to be stayed while they try to settle the case by way
of ADR.
Because the court is very likely to ask whether the parties are interested in attempting ADR,
and whether the possibility of ADR has been discussed with the client prior to any case
management conference, it follows that the solicitor will need to ask his client at an early stage
whether he would be interested in pursuing the matter by way of ADR, and must explain to the
client what this will entail.
In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, the Trust refused to refer the
matter to mediation as it was of the steadfast view that there had been no negligence and
therefore referral to ADR would increase costs and delay. The claim was dismissed by the
court. When the court came to consider the question of costs, it stated that when deciding
whether a successful party had acted unreasonably in refusing to agree to ADR, the court
should bear in mind the advantages of ADR over the court process and have regard to all of the
circumstances of the particular case. The following factors were found to be of relevance:
(a) the nature of the dispute;
(b) the merits of the case;
(c) the extent to which other settlement methods had been attempted;
(d) whether the costs of ADR would be disproportionately high;
(e) whether any delay in setting up and attending the ADR would have been prejudicial;
(f ) whether the ADR had a reasonable prospect of success.
14.7.4 The timing of ADR

It is likely that in complicated cases ADR will not be appropriate until such time as statements
of case and disclosure of documents by both sides have been dealt with. Only then will ADR be
a practical alternative to a trial. It is therefore likely that parties in cases which were initially
felt to be unsuitable for ADR may find that ADR is a possibility once the case is at the case
management conference stage.
14.7.5 Procedure following failed ADR

Where the parties have attempted ADR and this has failed to produce a settlement, the parties
are likely to wish to fall back on their original court proceedings or intended court
proceedings.
At this stage, if proceedings have already been issued, the solicitor for the claimant will need
to apply promptly for further directions in the case so that the matter may proceed swiftly to
trial.
However, although ADR may fail to produce a settlement, it may produce a degree of
information about the other side’s case which prior to ADR had not been clear. If this is so, it
may be that an offer to settle or payment should be considered by either party or both parties.
14.7.6 ADR in clinical negligence cases

Although the majority of clinical negligence claims do settle, due to their relative complexity
they often do so at a very late stage. The NHSLA, which handles large clinical negligence
claims, encourages the use of ADR, and the Clinical Disputes Forum has also produced a
guide on the use of mediation in clinical negligence disputes.
The guidance aims to:
(a) ensure that the use of ADR is considered by clients and solicitors at key points in clinical
negligence claims;
(b) require solicitors to report to their regional office at various stages in the litigation,
explaining why ADR has not been pursued if appropriate;
(c) explain the approach regional offices should take in deciding whether to limit a
certificate to work necessary to progress ADR;
(d) help the parties set up mediation.
14.7.6.1 When should ADR be considered in clinical negligence claims?

The parties should keep the possibilities of ADR in mind at all times. However, at the outset of
litigation ADR is not likely to be appropriate until the PAP for use in clinical negligence claims
has been complied with, because the client and his solicitor are unlikely to have information
available to enter into a fair settlement of the claim.
Once the clinical negligence PAP has been complied with, solicitors should consider with
their clients the use of ADR at the following stages:
(a) prior to issue of proceedings;
(b) before and immediately after a case management conference;
(c) before and immediately after pre-trial review;
(d) whenever the other side offers ADR;
(e) whenever the new parties are specifically asked to consider ADR by the court.
If at any of the above points it is decided by the client or solicitor not to pursue ADR, the
reason for that decision should be recorded on the solicitor’s file.
14.7.6.2 Cases where ADR may not be appropriate

The following types of claims may not be suitable for ADR:
(a) where essential basic information (such as relevant medical records, key expert
evidence on liability and causation) is not available;
(b) where there is no clear prognosis for the condition of the client and time is needed to
see how the client progresses before settlement can be considered;
(c) ADR is unnecessary as all parties are already negotiating effectively;
(d) proceedings need to be issued urgently in order for the claim to be within the relevant
limitation period;
(e) the claim includes a future cost of care claim and information is needed as to quantum
before any settlement can be discussed;
(f ) the case is a ‘test case’ and requires a ruling from a court in order to lay down a
precedent for future claims;
(g) ADR would not be a cost-effective way of dealing with the claim because there is no
reason to believe that the claim will be resolved more quickly or cheaply by using it.
14.7.7 NHS complaints procedure

The complaints procedure (which is dealt with in detail in Chapter 5) is designed specifically
to provide an explanation to patients in cases where they have felt sufficiently concerned
about the healthcare received to make a complaint. The procedure is not designed or able to
give compensation to patients. It is useful if the only or main issue at stake is for an
explanation or an apology to be obtained, or simply to find more information to help the
patient to come to terms with an event, or to help him decide whether he should take further
action and, if so, what form this should take.
14.7.8 Mediation
Mediation may be appropriate in some cases where the parties agree. This may be seen as
particularly useful when there are allegations of clinical negligence, as ADR will be conducted
in private, and this is something which is likely to appeal to medical practitioners who may
not wish the allegations to be made public and reportable, as would be the case if the matter
were to proceed in open court to a trial.
14.8 FUNDING ANY SETTLEMENT

In nearly all personal injury cases, there will not be a problem with the financing of any
settlement, as the defendant will have been required to be insured in respect of the potential
liability and a commercial insurer will normally meet any settlement.
In clinical negligence cases too, the defendant will normally not have a problem with the
financing of any settlement but the administration of the settlement can be rather more
complicated in certain cases. The NHSLA administers the Existing Liability Scheme and
Clinical Negligence Scheme for Trusts (CNST). The CNST came into being as a result of
concern over the financing of damages claims, and the object of the scheme is to protect NHS
Trusts and improve the quality of risk management. The CNST is not an insurance scheme but
a mutual fund.
The administration of any settlement is normally of little concern to claimant solicitors, but
many practitioners become frustrated by the delays which can arise with insurance companies
in personal injury cases and also the NHSLA, as they operate a system whereby certain levels
of claims have to be given specific approval.
14.9 COURT ORDERS

It is good practice to obtain a court order formally stating the terms of the settlement. A
settlement on behalf of a minor should always be contained in a court order (see Chapter 20).
The court will charge a fee for sealing the consent order.
14.9.1 Advantages of obtaining a court order

The advantages of obtaining an order are:
(a) payment of interest and costs can be dealt with specifically;
(b) if the amount stated in the order is not paid, the order can be enforced in the same way
as any other judgment;
(c) if costs cannot be agreed, they can be assessed by the court if there is provision in the
order;
(d) if the client has legal aid funding, he will need an order for legal aid assessment.
The order should contain a provision that the claim be stayed rather than dismissed, and the
stay should contain provision for a return to court in the event that the terms of the stay are
not complied with.
14.9.2 Drawing up the consent order

The procedure for drawing up a consent order is:
(a) it must be drawn up in the agreed terms;
(b) it must be expressed as being ‘by consent’;
(c) it must be signed by solicitors or counsel for the parties;
(d) it must be presented to the court for entry and sealing.
An order takes effect from the date given, unless the court orders otherwise. An order for
payment of money (including costs) must be complied with within 14 days, unless the order
or any rule of the CPR specifies otherwise. When drafting a consent order, the guiding
principle is that the order shows where the money is to come from to satisfy the order and
where that money will go.
EXAMPLE
In a case where a settlement is achieved by which the defendant agrees to pay £3,000 plus
costs to be assessed if not agreed, the order should state:
(a) that the claim is stayed on payment of £3,000;
(b) that the £3,000 is to be paid by the defendant within a given timescale (usually 14
days);
(c) where the money is to go (in this case to the claimant). In a case involving a minor
the money will usually be ordered to be invested by the court;
(d) who is to bear the costs. If this has been agreed, the figures should be stated with a time
limit for payment. Usually, the provision will be for costs to be assessed if not agreed;
(e) whether legal aid assessment is needed; and
(f ) liberty to apply – which simply allows the parties to return to the court if there is
subsequently a disagreement as to what the terms of the order mean or because the
terms have not been complied with.
If there had been an interim payment in the above example, this should also be reflected in the
terms of the order. The order should state that the amount agreed in full and final settlement
takes into account the interim payment, specifying the amount and the date it was given, or
the date of the court order so ordering it to be paid. An example of a consent order may be
found at Appendix 1.
14.10 PART 36 OFFERS

If negotiations do not result in a settlement, consideration should be given to making a Part
36 offer in order to place the opponent under some pressure as to costs. For a detailed
discussion of the form, content and costs consequences of Part 36 offers, you should refer to
Civil Litigation.
In personal injury cases, in addition to the above basic requirements as to content, further
information must be set out in the offer if the claim involves future pecuniary loss, provisional
damages or the deduction of State benefits. That information is summarised below.
14.10.1 Special provisions applicable to Part 36 offers and personal injury claims for
future pecuniary loss
It is possible to make an offer to settle a claim involving future pecuniary loss either by way of
a lump sum, or by way of periodical payments or a combination of both (see Chapter 15). To
be treated as a Part 36 offer with all the costs consequences that follow, the offer must
explicitly set out the amounts which relate to the lump sum and periodical payments, and the
duration of the periodical payments. If the offer is accepted, in addition to serving a notice of
acceptance, the claimant must apply to the court for an order for an award of damages in the
form of periodical payments. This must be done within seven days of the date of acceptance.
Rule 36.5 provides as follows:
(3) A Part 36 offer may contain an offer to pay, or an offer to accept—
(a) the whole or part of the damages for future pecuniary loss in the form of—
(i) a lump sum; or
(ii) periodical payments; or
(iii) both a lump sum and periodical payments;
(b) the whole or part of any other damages in the form of a lump sum.
(4) A Part 36 offer to which this rule applies—
(a) must state the amount of any offer to pay the whole or part of any damages in the form of
a lump sum;
(b) may state—
(i) what part of the lump sum, if any, relates to damages for future pecuniary loss;
and
(ii) what part relates to other damages to be accepted in the form of a lump sum;
(c) must state what part of the offer relates to damages for future pecuniary loss to be paid or
accepted in the form of periodical payments and must specify—
(i) the amount and duration of the periodical payments;
(ii) the amount of any payments for substantial capital purchases and when they are
to be made; and
(iii) that each amount is to vary by reference to the retail prices index (or to some other
named index, or that it is not to vary by reference to any index); and
(d) must state either that any damages which take the form of periodical payments will be
funded in a way which ensures that the continuity of payment is reasonably secure in
accordance with section 2(4) of the Damages Act 1996 or how such damages are to be
paid and how the continuity of their payment is to be secured.
(5) Rule 36.4 applies to the extent that a Part 36 offer by a defendant under this rule includes an
offer to pay all or part of any damages in the form of a lump sum.
(6) Where the offeror makes a Part 36 offer to which this rule applies and which offers to pay or to
accept damages in the form of both a lump sum and periodical payments, the offeree may only
give notice of acceptance of the offer as a whole.
(7) If the offeree accepts a Part 36 offer which includes payment of any part of the damages in the
form of periodical payments, the claimant must, within 7 days of the date of acceptance, apply
to the court for an order for an award of damages in the form of periodical payments under rule
41.8.
14.10.2 Special provisions applicable to Part 36 offers and provisional damages

If the claim is for provisional damages (see Chapter 15), an offer to settle must specify
whether or not the offeror is offering to agree to the making of an award for provisional
damages. If he is, the offer must state
(a) the damages offered;
(b) the conditions to trigger a further claim;
(c) the period within which such further claim may be made.
Once the offer is accepted, the claimant must, within seven days, apply to the court for an
order.
Rule 36.6 provides:
(1) An offeror may make a Part 36 offer in respect of a claim which includes a claim for provisional
damages.
(2) Where he does so, the Part 36 offer must specify whether or not the offeror is proposing that the
settlement shall include an award of provisional damages.
(3) Where the offeror is offering to agree to the making of an award of provisional damages the Part
36 offer must also state—
(a) that the sum offered is in satisfaction of the claim for damages on the assumption that
the injured person will not develop the disease or suffer the type of deterioration
specified in the offer;
(b) that the offer is subject to the condition that the claimant must make any claim for
further damages within a limited period; and
(c) what that period is.
(4) Rule 36.4 applies to the extent that a Part 36 offer by a defendant includes an offer to agree to
the making of an award of provisional damages.
(5) If the offeree accepts the Part 36 offer, the claimant must, within 7 days of the date of
acceptance, apply to the court for an order for an award of provisional damages under rule 41.2.
14.10.3 Compensation recovery and Part 36 offers – deduction of benefits

A Part 36 offer in a personal injury claim may state that the offer is made without regard to any
liability for recoverable benefits, ie it is a net offer and the compensator will pay benefits in
addition.
Alternatively, the offer should state that it is intended to include any deductible CRU benefits.
According to r 36.15, the offer must state:
(a) the amount of gross compensation before CRU benefits are offset;
(b) the name of any deductible benefit;
(c) the amount of any deductible benefit by which the gross amount is reduced; and
(d) the net amount after deduction.
Remember, when calculating what benefits can be offset, that specific benefits can be offset
only against certain heads of claim and must not exceed the amount claimed under that head.
Where it is agreed or alleged that the claimant was contributorily negligent, the damages from
which benefits can be offset must be net of the deduction for contributory negligence.
For the purpose of establishing whether the claimant has failed to beat a Part 36 offer, the
sums to be considered are those after deduction of the deductible benefits. In other words,
the court will look at what sum the claimant was offered net of benefits and what sum he
recovered net of benefits.
Where the claimant accepts a Part 36 offer out of time and the CRU repayment has increased,
the court may direct that the additional benefits should be deducted from the net offer.
14.10.4 QOCS and Part 36

CPR, r 44.14 allows a costs order to be made against a claimant who fails to beat a defendant’s
offer to settle. The usual order will require the claimant to pay the defendant’s costs from the
end of the relevant offer period. However, the claimant’s liability for the defendant’s costs in
these circumstances will be capped at the level of damages and interest recovered by the
claimant (see 9.3.2). After the event insurance may be available to cover this risk but any
insurance premium will not be recoverable.
14.10.5 Keeping offers under review

Under r 36.9, an offer is accepted when written notice is served. An offeree may accept a Part
36 offer at any time, whether or not the offeree has subsequently made a different offer, unless
the offeror has served notice of withdrawal (r 36.9(2)).
In Gibbon v Manchester City Council [2010] EWCA Civ 726, the claimant brought a personal injury
claim against Manchester City Council after she tripped and injured herself in a playground.
The Council admitted liability and the claimant made a Part 36 offer of £2,500 which was
rejected. The defendant made various low Part 36 offers culminating in a final Part 36 offer of
£2,500. The claimant rejected it so the defendant accepted the claimant’s earlier Part 36 offer
of £2,500 instead. The claimant’s Part 36 offer was never formally withdrawn.
The judge at first instance held that because the claimant’s offer was not formally withdrawn
under CPR, r 36.3(7), the offer had been open for acceptance by the Council. The Court of
Appeal has now upheld this decision and confirmed that CPR, Part 36 does not acknowledge
implied withdrawals or rejections of offers. To remove the possibility of acceptance, an offer
must be formally withdrawn. The Court of Appeal also set guidelines as to what a valid notice
of withdrawal should contain. It was held that a notice must clearly identify which offer it
relates to (this will include a reference to the date and terms of the offer), together with
explicit wording stating that the offer is withdrawn.
Parties must therefore retain a record of all Part 36 offers and keep them under review. If new
evidence comes to light that means that a Part 36 offer made some time previously is now too
high (or, if a claimant’s offer, too low), it should be withdrawn in writing so that it is no longer
capable of acceptance. A new Part 36 offer can be served at the same time as the notice to
withdraw the previous offer. However, in Pankhurst v White [2010] EWHC 311 (QB) the
claimant in a personal injury case made a Part 36 offer which was almost immediately rejected
by the defendant. Following success in respect of liability in the course of a split trial, the
claimant wrote to the defendant stating that he would no longer be prepared to accept the Part
36 offer he had previously made but would continue to rely on it on the question of costs.
MacDuff J held that the offer continued to be relevant for the purposes of costs assessment. It
had not been ‘withdrawn’ within the meaning of Part 36, because no court would have ordered
that it could be accepted (the only method available for accepting a Part 36 offer outside of the
21 day period after which it has been made) following the judgment on liability. The impact
was that the effect of the offer for the purposes of costs applied from the date 21 days after it
was made up until the making of a Part 36 offer by the defendant nearly two years after the
judgment on liability.
14.11 PREPARATION FOR TRIAL

14.11.1 Outstanding orders
Once it becomes apparent that the case will proceed to trial as no satisfactory Part 36 offer has
been received, the claimant’s solicitor should undertake a thorough stocktaking of the file to
ensure that all directions or other orders of the court have been complied with. Any
outstanding matters in the claimant’s own file should be attended to without further delay,
and any outstanding matters for the defendant to attend to should be chased by issuing an
interim application for judgment in default of compliance with the direction/other order if
necessary.
14.11.2 Experts
Experts’ reports will usually have been exchanged in accordance with directions. Provision of
joint experts and agreed expert evidence is dealt with in Chapter 11.
14.11.3 Use of counsel

The solicitor may not have instructed counsel before this stage if the claim has been
straightforward. If the case has been complex, as is likely in a clinical negligence case, counsel
will probably have been involved at an early stage, from drafting documents to advising on
evidence. It is usual for the barrister who drafted the statements of case also to be briefed for
the trial. As counsel will be handling the witnesses at trial, it may be thought to be appropriate
to send the witness statements to counsel for approval before exchange to ensure that an
important area concerning the conduct of the case at trial is not overlooked. It may be more
cost-efficient to brief counsel for the trial than for the solicitor himself to attend. However,
with trial on the fast track limited to one day, and with fixed costs of trial, it may be that many
more solicitor-advocates will undertake the advocacy of this type of claim.
If the case involves complex elements, such as clinical negligence, catastrophic injuries, or
difficult questions of fact or law, consideration should be given to whether it would be
appropriate to instruct leading counsel; junior counsel will usually advise the solicitor if he
thinks that this would be appropriate. The solicitor should advise the client accordingly of the
extra cost involved and, if the client is funded by legal aid, seek authority to instruct leading
counsel. The client should also be advised that if leading counsel is instructed, and this is
disallowed on assessment, the cost will ultimately be borne by the client in the form of the
statutory charge on the client’s damages.
14.11.4 Narrowing the issues

When preparing for trial the solicitor should ask himself, ‘What do I have to prove?’ A review
should be made of the case file to ascertain areas of agreement which are no longer in issue.
One useful device may be a list comprising two columns: the left-hand column listing the
facts which have to be proved (eg, that the claimant was driving the car; that an accident
occurred; the date of the accident; the place of the accident; an itemised list of the losses, etc);
and the right-hand column indicating whether the fact is admitted by the opponent.
Admissions will normally be found in the statements of case or in open correspondence.
14.11.5 Schedule of special damages

Note that CPR, PD 22, para 1.4(3) requires that a statement of truth is included in a schedule
or counter-schedule of expenses and losses, and in any amendments to such a schedule or
counter-schedule, whether or not the schedule is contained in a statement of case.
The claimant’s solicitor must check that the schedule of special damages is up to date, and if
necessary, serve an updated schedule of special damages. Ideally, this should be the final
schedule (although it may have to be revised again if there is a significant delay before the
trial), the purpose of which is to identify the areas of agreement and disagreement between
the parties. With this in mind, the following format could be usefully employed (the figures
are merely for illustration):
Item of claim Claimant’s figure Defendant’s figure Discrepancy
Purchase of £350 £350 Nil
wheelchair
Loss of future £50,000 (multiplicand = £32,000 (multiplicand = £18,000
earnings £5,000, multiplier = 10) £4,000, multiplier = 8)
The defendant’s solicitor should be sent the updated schedule of special damages, with a
covering letter requesting that he agrees it or specifies the items he is not prepared to agree,
and giving a time limit for the reply. It should be pointed out that if he fails to reply, the
claimant’s solicitors will have to issue a witness summons for any persons necessary to prove
the amounts claimed, and the claimant will ask for the costs of this exercise be paid by the
defendant in any event.
In clinical negligence claims, where special damages claims are likely to involve substantial
amounts of money, it is more likely that the defence will seek to query items claimed as special
damages. For this reason the directions will normally require that the defendant also provide a
counter-schedule of special damages itemising the areas of disagreement.
14.11.6 Trial bundles

In both the High Court and the county court, bundles of documents upon which the parties
intend to rely must be lodged within the appropriate time, for use by the trial judge.
The bundle must be paginated and indexed. The medical records must be complete and in
good order to enable medical experts to study them easily. X-rays or scans included in the
bundle should be clearly identified. Scans may be several feet long and should be
professionally copied if possible. The index to the trial bundle is normally agreed with the
defendant.
The quality of preparation of bundles varies enormously, and this can have serious
implications for the client’s case if preparation is not undertaken properly. Although there are
rules governing the content of the bundles, there is very little guidance on how the documents
should be presented. When preparing the bundle the aim should be to enable whoever is
conducting the trial to turn to any document at any time with the minimum of fuss or delay,
and that all others concerned with the case can do likewise. The more documents there are in
the bundle, the more difficult this task becomes. In a straightforward road traffic claim, there
will be few documents and, as such, the bundle should be relatively easy to prepare. In serious
cases involving multiple injuries or in clinical negligence cases, however, the documents are
likely to extend to many hundreds of pages. In such cases, it is even more important that the
court is not hindered by trying to find documents that should be readily to hand. Poor
preparation of the case will not impress the judge, neither will it go unnoticed. Documents
will need to be split into a number of smaller bundles which are easier to handle. Using
colour-coded lever arch files is often a good method, with a separate file for each class of
document. As a matter of courtesy, if counsel has been instructed, the solicitor may wish to
send the proposed index to the core bundle of documents to counsel in advance of the trial, so
that counsel has the opportunity to ask for further items to be included if necessary.
14.11.7 Use of visual aids

Plans, photographs and models can be of enormous value at the trial as an aid to clarity,
thereby shortening the length of the trial (avoiding long testimony of a witness) and saving
costs. A judge may more readily understand the testimony of a witness if that witness is
allowed to refer to a plan or photograph. Medical experts can often supply good quality colour
diagrams, anatomical illustrations or models to make their testimony more comprehensible.
In clinical negligence cases, it is worth the extra time and effort to find good visual aids. A
judge is unlikely to have in-depth medical knowledge, and attempts to help the judge fully
comprehend the circumstances giving rise to the alleged negligence are likely to be gratefully
received.
Visual aids must be disclosed to the opponent in advance. No plan, photograph or model will
be receivable in evidence at trial unless the party wishing to use the evidence discloses it no
later than the latest date for serving witness statements.
A video-recording is more useful than photographs in the case of ‘movement’. Two common
examples are:
(a) a video-recording of an industrial process;
(b) a video-recording showing the difficulties of the claimant in coping with his injuries (a
‘day in the life’). Although the claimant should call, in addition to his own evidence,
members of his family or friends to give evidence as to how he manages with his injuries
(evidence of his bodily and mental condition before and after the accident), a video film
(eg, showing the medical assistance required, such as physiotherapy or even surgery)
may illustrate the situation more graphically.
If the photographs or other visual aids are agreed, they are admissible in the absence of the
maker. If the aids are not agreed, the maker must be called to prove their authenticity.
The solicitor should ensure at the trial that there are enough copies of photographs for the use
of the judge, advocates and witnesses.
14.12 THE TRIAL

14.12.1 The morning of the trial
The solicitor should arrive early to ensure that he has time:
(a) to check with the clerk to the court that the court has the trial bundles, and place a
bundle in the witness-box;
(b) to ensure that counsel has arrived and consider any last-minute questions he may have;
(c) to meet the client on his arrival and attempt to put him at his ease;
(d) to introduce counsel to the client (if they have not already met in conference);
(e) to ensure that an interview room is reserved for the pre-trial conference with counsel.
14.12.2 Advice to clients and witnesses

The case will often turn on how well or how badly the witnesses give their evidence, and how
they are perceived by the judge. The client and other witnesses should be reminded that they
will not be able to take their statements into the witness-box. The solicitor should run
through the procedure to be adopted when giving oral evidence with the witnesses, as follows:
(a) explain the procedure on taking the oath, and whether the client wishes to affirm;
(b) remind the witness that all responses should be addressed to the judge regardless of
who asked the question; and
(c) that the judge must be addressed in the appropriate manner; and
(d) go through the order in which the witnesses will be examined.
Each witness’s statement will normally stand as evidence-in-chief, in which case the witness’s
evidence will move to being cross-examined almost immediately.
It is important to allay the client’s fears about giving oral evidence. The solicitor should advise
the client to speak slowly and directly to the judge, just as if there was no one else in the room.
The judge will be writing notes, and therefore the witness should watch the judge’s pen and
resume speaking only when the judge has finished writing.
It is unlikely that the client and lay witnesses will have given evidence before. They should be
advised that if they do not understand the question they should say so, and to take their
evidence slowly, answer only the question put to them and not to engage in questioning
opposing counsel or offer unsolicited opinions of their own. It is up to the solicitor to keep his
witnesses in check and ensure that they do not embarrass the client or harm his case.
14.12.3 Conduct of the trial

Counsel (if instructed) will have the conduct of the trial, and the solicitor’s function will be to
sit behind counsel and take full notes of evidence. For the purpose of costing, a note should be
made of the start time, any adjournments and the time the trial finishes. The questions asked
by counsel should be noted, as well as the responses given, as counsel will not be able to make
any notes himself while on his feet.
14.12.4 Order of evidence

Although evidence is usually given by the claimant first, followed by the defence, in clinical
negligence cases all witnesses of fact may be called first, followed by witnesses giving
evidence of opinion. This is because the facts themselves are often complex and it assists the
judge greatly if the facts are laid out clearly by hearing evidence from the witnesses of fact for
the claimant, followed directly by those of the defence. The object is to clarify the areas of
disagreement so that experts can concentrate their efforts there, and shorten the length of
trial. However, the parties must apply to the trial judge on the first day of the trial to use this
procedure, as the order of evidence in the judge’s court will be decided by the individual judge
as a matter of discretion.
14.12.5 Judgment
The solicitor should take a careful note of the judgment delivered by the judge at the end of the
case, as it may be crucial if the client decides to appeal.
Counsel must be made aware of any specific orders which may be necessary. In addition,
counsel must be informed about any Part 36 offers which may have a bearing on costs.
The solicitor should also check the pre-trial orders to see if costs were reserved in any interim
proceedings, and if so, that this is brought to the attention of the judge so that a costs order
can be made in relation to that application.
The judgment should be fully explained to the client, which can be undertaken by counsel.
14.12.6 The order

Following trial in the county court, the court will draw up the order, which should be checked
carefully to ensure that it reflects the judge’s decision, as mistakes are sometimes made by the
court staff.
14.13 CONCLUSION
Most cases settle, and taking a case to trial will be the exception rather than the rule in
personal injury litigation. The court, as we have seen, actively encourages parties to negotiate
and attempt to settle at every opportunity. Nevertheless, every case must be approached from
the standpoint that it will go to trial, and must be prepared accordingly. It is important to keep
a case under review as the case progresses. In particular, any Part 36 offers should be kept
under review and, if necessary, withdrawn if further evidence comes to light which alters your
views of quantum and /or liability.

Civil Court Practice (the Green Book) (Butterworths)
Civil Procedure (the White Book) (Sweet & Maxwell)
Skills for Lawyers (CLP)
The Quantification of Damages 215
CHAPTER 15
The Quantification of Damages

15.2 Special damages – ‘past pecuniary loss’ 216
15.3 General damages 226
15.4 Provisional damages 236
15.5 Periodical payments 238
15.6 Interest 241
15.7 The schedule of past and future loss and expense 242
15.8 Conclusion 242
LEARNING OUTCOMES
• explain what special damages are and how the main items of loss are calculated
• explain what general damages for pain, suffering and loss of amenity are, and how
such damages are quantified
• explain what general damages for future financial loss are and how they are
calculated
• draft a schedule of past and future expenses and losses
• set out and apply the law in relation to provisional damages
• explain the court’s power to make an order for periodical payments and set out the
procedure for obtaining such an order
• set out how interest is calculated in personal injury and clinical negligence claims.
15.1 INTRODUCTION
In November 2012, a teenage girl left paralysed following a road traffic accident was awarded
a lump sum plus annual payments thought to total over £23 million over her lifetime, in what
is believed to be the highest personal injury award in England and Wales. Of course, the vast
majority of claims are settled or determined for considerably smaller amounts, most within
the fast track limit of £25,000.
The aim of the claimant’s solicitor is to establish liability against the defendant and to achieve
the highest possible level of damages for his client (without falsifying or exaggerating the
claim). The primary aim of the defendant’s solicitor is to defeat the claimant’s claim.
However, if he cannot prevent his client being found liable for the claimant’s injuries and loss,
his fallback position is to minimise the level of damages his client is obliged to pay. It
therefore follows that the task of valuing the claimant’s losses is just as important to those
representing defendants as it is to those representing claimants. Although the claimant and
defendant will usually only be interested in the final amount of the award, the personal injury
solicitor must fully understand the various heads of damages which the court can order, to
ensure that he can achieve the best possible result for his client. However, even the most
experienced personal injury lawyer will be able to quantify the damages only approximately,
and therefore solicitors should take care to manage their client’s expectations. It is a wise
claimant’s solicitor who gives his client a slightly lower assessment of the likely damages, and
a wise defendant’s solicitor who gives his client a slightly higher assessment.
In negligence, the aim of the award of damages is to restore the claimant to the position that
he was in prior to the accident. Of course, it is impossible to take away the pain and suffering
associated with a personal injury, particularly as, in many cases, there will be lasting physical
and/or psychological disability. The award of monetary compensation is the only remedy
available to the court and, particularly in cases of catastrophic injury, claimants and their
families will cope better with the physical, mental, social and financial consequences of the
injuries where appropriate monetary compensation is received.
In most cases, the claimant will receive a lump sum award in full and final settlement of his
claim, which means he will not be able to return to court at a later date to seek additional
compensation (see provisional damages and periodical payments at 15.4 and 15.5 below for
exceptions to this rule). It is therefore important that the claimant’s solicitor is thorough in
his investigations to identify all losses. Where the case is determined at trial, damages are
assessed as at the date of the trial (or, in ‘split trials’, at a later hearing), and therefore detailed
and up-to-date evidence, such as an updated loss of earnings calculation and medical report,
should be provided to the court. Most claims are settled through negotiation, but it is equally
important for the claimant’s solicitor to have detailed and up-to-date evidence available
whenever quantum is discussed with the defendant’s solicitor.
15.1.1 Heads of damage

The following heads of damage can be claimed in personal injury and clinical negligence
cases:
(a) Special damages (also known as past pecuniary loss). These are the financial losses
which the claimant has incurred prior to trial, and they are capable of fairly precise
calculation.
(b) General damages. These are damages that cannot be calculated precisely and therefore
require the application of certain formulaic approaches plus a little educated guesswork.
They can be split into two categories:
(i) Non-pecuniary loss. This is the element of the compensation award that does not
reflect financial losses at all but rather reflects the claimant’s pain, suffering and
loss of amenity.
(ii) Future pecuniary loss. Although this element of the compensation reflects
financial losses, such as future loss of earnings or the cost of the care which the
claimant will require, it cannot be calculated precisely as it is impossible to say with
precision, for example, how long the claimant will live, what he would have earned
had he not been injured or how much his care requirements will cost in future years.
Terminology may create problems for the unwary, as some practitioners use the term special
damages’ when referring to all items of pecuniary loss, both past and future, and the term
‘general damages’ is used routinely in case reporting to mean pain, suffering and loss of
amenity only. It goes without saying that, when negotiating a settlement, solicitors must be
precise about the nature of the damages to which they are referring. In this text, we shall give
the terminology its traditional meaning as set out in (a) and (b) above.
The distinction between special damages and the two heads of general damages is significant
not only in the method of calculation, but also with regard to the level of interest awarded by
the court (see 15.6).
15.2 SPECIAL DAMAGES – ‘PAST PECUNIARY LOSS’

Special damages are the items of financial loss incurred by the claimant between the date of
the accident and the date of trial which can be specifically calculated.
The main heads of special damages are:

(a) loss of earnings;
(b) clothing and personal effects;
(c) cost of medical care and expenses;
(d) cost of care and quasi-nursing services;
(e) cost of DIY, gardening and housework services;
(f ) cost of aids and appliances;
(g) cost of alternative and/or adapted accommodation;
(h) transport costs.
In RTA cases, there may also be:
(i) cost of repairs to or replacement of the claimant’s vehicle;
(j) vehicle recovery and storage charges;
(k) loss of use of a motor vehicle or hire of a substitute vehicle;
(l) loss of a no claims bonus and wasted road fund licence.
You should note that some of the above heads will also be relevant to any general damages
claim for future pecuniary loss.
15.2.1 Loss of earnings up to the date of the trial

In most cases, there will be a claim for loss of earnings up to the date of trial. The claimant is
entitled to recover his net loss of earnings, ie what he would have earned after tax, National
Insurance and contractual pension payments.
In many cases, where the claimant was in regular employment, it will be reasonably
straightforward to determine precisely how much the claimant has lost. In other cases, the
calculation will not be so precise. For example, where the claimant’s pre-accident wages
varied markedly from week to week, or where there has been a fairly lengthy period of time
between the accident and trial and the claimant argues that he would have been promoted to a
more lucrative position had he still been working.
15.2.1.1 Calculating loss of earnings

The starting point in the calculation is to determine the claimant’s average net wage for
the period immediately prior to the accident. The common approach is to obtain, from the
claimant’s wage slips or bank statements or from his employer, details of his earnings for the
13-week period prior to the accident. Where that 13-week period is not representative of
the claimant’s average pre-accident wage, a longer period, for example six months, should be
considered. Whatever period is looked at, appropriate adjustments should be made to take
account of any overtime, bonus payments, benefits such as company cars or commission that
the claimant would have earned had he been at work. Further adjustments should be made to
take account of any pay increase, promotion, or further benefits which the claimant would
have obtained during the period from the date of the action to trial.
In some cases, such as where the claimant had obtained a job immediately prior to the
accident and a clear pattern of pre-accident wages cannot be provided, or where there has
been a lengthy period between the date of the accident and the assessment of damages, it may
be useful to obtain details of a comparative earner. This involves identifying someone who
was in a similar post and earning a similar salary to the claimant immediately prior to the
accident, and determining what his earnings pattern had been and, where appropriate,
tracking his career progression and salary increases during the period up to trial. Clearly, it
would be most useful if the comparative earner is employed by the claimant’s employer, but
where this is not possible, a comparative earner from a similar business or organisation can be
used.
Some claimants have more complex employment histories, such as where they worked on
short-term contracts or were self-employed. In such circumstances, more detailed enquiries
must be made in order to provide evidence of income lost before the trial. Self-employed
claimants should be asked to supply copies of their accounts and/or tax returns for the year
prior to the accident, or a longer period if one year’s figures are not representative. This
information may be difficult to obtain, leaving scope for those representing defendants to
argue that losses have been exaggerated. It may be necessary to obtain a report from an
accountant (the term ‘forensic accountant’ is often used for those who specialise in this area).
In an attempt to establish details of how much the claimant would have earned between the
accident and trial in cases where an erratic employment history is presented, reference can be
made to the Annual Survey of Hours and Earnings produced by the Office for National
Statistics, which is a statistical analysis of earnings throughout the country. The Survey can
provide details of average earnings for particular industries or occupations on a national or
regional basis, and can be useful in attempting to persuade the defendant to accept that the
claimant would have received a particular wage.
It is possible for an accident victim who was, prior to the accident, receiving earnings from a
lawful source but failing to pay tax or National Insurance, to bring a claim for past and future
loss of earnings (although adjustments will have to be made to the past and future loss of
earnings calculation) (see Newman v Marshall and Dunlop Tyres Ltd [2001] LTL, 19 June and Duller
v South East Lincs Engineers [1981] CLY 585).
Very few employees receive no income whatsoever while absent from work, and so the
calculation of the claimant’s lost earnings is not simply a case of multiplying the net weekly
loss by the number of weeks’ absence. Such an approach would place the claimant in a better
financial position than he would have been in had the accident not occurred. A detailed
examination of what income the claimant received while absent from work is required, as
certain types of income have to be credited in calculating the net loss figure.
15.2.1.2 Items which must be accounted for in the calculation

The following are the most common items which must be accounted for in the net loss of
earnings figure (for both past and future loss of earnings calculations), ie these amounts must
be deducted from the net salary in order to calculate the total loss of earnings:
(a) Tax refunds received due to absence from work as a result of the accident. A claimant who is an
employee will generally pay income tax on the Pay As You Earn (PAYE) system. To a
certain extent this system is a payment of tax in advance, as it assumes that the
claimant’s earnings will continue throughout the whole of the forthcoming year. In the
event of the claimant’s absence from work, he may then have paid too much tax. In this
case, the claimant may receive a tax rebate via his employer. An amount equivalent to
the whole of the rebate has to be given credit for in the calculation of wage loss (Hartley v
Sandholme Iron Co Ltd [1975] QB 600). Occasionally, instead of a ‘cash-in-hand’ tax rebate,
the claimant may receive a tax credit against future tax liability, so that on his return to
work he pays no tax for a period (a ‘tax holiday’). A sum equivalent to this tax credit also
has to be given credit for in the calculation of the wage loss (Brayson v Wilmot-Breedon
[1976] CLY 682).
(b) Sums paid to the claimant by his employer. Whether sums equivalent to such payments fall to
be deducted from the damages depends on the basis of the payment and the identity of
the tortfeasor.
The following are the most common situations:
(i) The sum is paid under a legal obligation (eg, under the claimant’s contract of
employment) and is not refundable by the claimant to his employer. An amount
equivalent to the whole of the payment should be deducted from the damages.
(ii) The sum is paid under a legal obligation (eg, under the contract of employment)
and must be repaid by the claimant to his employer out of any damages the
claimant receives from the defendant. Such a payment is effectively a loan and, as
such, is not deducted when assessing the damages.
(iii) The sum is paid ex gratia by the employer who is not the tortfeasor. Such a payment
is effectively a ‘charitable’ payment and is not to be deducted when assessing the
damages (Cunningham v Harrison [1973] 3 All ER 463).
(iv) The sum is paid ex gratia by the employer who is the tortfeasor. An amount
equivalent to the whole of the payment may (in certain circumstances) be
deducted from the damages (Hussain v New Taplow Paper Mills Ltd [1988] AC 514).
(v) The claimant receives statutory sick pay (SSP) from his employer. This is not a
recoverable benefit to the DWP (see Chapter 16), and therefore an amount
equivalent to the whole payment should be deducted (the contract of employment
may need to be examined in case the employer is entitled to claw back the SSP in
some way). See also Palfrey v Greater London Council [1985] ICR 437.
(c) Any saving to an injured person attributable to his maintenance wholly or partly at public expense.
This would apply where the claimant was, for example, admitted into an NHS hospital, a
nursing home or other institution. The savings must be calculated and set off against
any claim for income lost as a result of the injuries (Administration of Justice Act 1982, s
5). In practice, this deduction is overlooked because in most cases the sums saved are de
minimis. (While in hospital the claimant will generally have to meet the same household
expenses such as rent, mortgage and council tax; any saving will usually be only in
regard to the cost of food. This saving is then so small as to be ignored.)
(d) Redundancy payments. An equivalent amount is to be deducted in full from the damages
calculation when redundancy occurs as a result of the injury caused by the accident
(Colledge v Bass Mitchells & Butlers [1988] 1 All ER 536).
(e) Benefits outside the ambit of the Social Security (Recovery of Benefits) Act 1997. A sum equivalent
to certain benefits received by the claimant as a result of the accident will be deducted
from the judgment sum or negotiated settlement by the defendant and paid directly to
the Compensation Recovery Unit (see Chapter 16). However, when calculating the
award, benefits which are not subject to offsetting are potentially deductible. In Clenshaw
v Tanner [2002] EWCA Civ 1848, the Court of Appeal held that as the claimant was not
required to reimburse the local authority for receipt of housing benefit, if he was
allowed to recover for loss of earnings in full, he would be overcompensated to the
extent of the housing benefit. Consequently, the housing benefit payments were
deducted from the loss of earnings award. It therefore follows that, potentially, other
benefits, such as council tax benefit, child tax credit, working tax credit, motability
payments, etc are deductible.
15.2.1.3 Items which are not accounted for

The following items are the most common payments to be left out of account in assessing an
award for loss of past (and future) earnings:
(a) State retirement pension. The State retirement pension is ignored in assessing an award for
loss of past and future earnings (Hewson v Downs [1970] 1 QB 73).
(b) Pensions received. The general rule is that if the claimant receives a pension, this cannot be
set against the claim for loss of earnings. However, if there is a separate claim for loss of
pension rights, for example since the claimant is unable to work he will receive less
pension in the future, any pension he does receive may be offset against the claim for
loss of pension rights (Parry v Cleaver [1970] AC 1; Smoker v London Fire and Civil Defence
Authority [1991] 2 All ER 449; Longden v British Coal Corporation [1997] 3 WLR 1336.
(c) Insurance moneys. Where a claimant has taken out an insurance policy specifically to cover
him against the risk of sustaining personal injuries, or where such cover is an incidental’
benefit to other types of insurance, such as motor insurance, he may receive a payment
as a result of injuries caused by the defendant’s negligence. In such cases, the payment
is usually a fixed sum according to the type of injury; for example, in the event of a loss
of a specified limb, the insurance company will pay the insured the sum of £5,000.
The claimant need not give credit for moneys received under such a policy against the
damages payable by the defendant, provided he paid for or contributed to the policy
premiums. The justification is that the defendant should not benefit from the fact that
the claimant had the foresight to take out the cover and pay the premium (Bradburn v
Great Western Railway Co (1874) LR 10 Exch 1; McCamley v Cammell Laird Shipbuilders Ltd
[1990] 1 All ER 854). Where the claimant does not pay for or contribute to the policy, as
where the employer sets up a non-contributory group personal accident insurance
policy, credit must be given (see Pirelli v Gaca [2004] EWCA Civ 373).
In cases where credit does not have to be given to the defendant, the terms of the
insurance policy should be checked carefully. There will often be a provision
(particularly in motor insurance) which obliges a policyholder to reimburse the
insurance company for any sum it paid to him under the policy in respect of a loss for
which he receives compensation from a third party. In such a case, the claimant will not
receive any financial benefit from commencing proceedings, but the insurance
company may insist on commencing and conducting proceedings in his name.
(d) Charitable payments. If money is received by the claimant as a charitable payment (even if
it is on an informal basis such as the proceeds of a collection taken among his friends)
then the claimant is not required to give credit for such payment against the damages
received. The justification is that as a matter of policy, people should not be discouraged
from making such payments to the victims of accidents. However, the exact
circumstances and sources of the ex gratia payment must be considered. In Williams v
BOC Gases Ltd [2000] PIQR Q253, the Court of Appeal held that where an employer (who
was the tortfeasor) made an ex gratia payment on termination of the claimant’s
employment on the basis that it was to be treated as an advance against any damages
that might be awarded in respect of any claim the claimant had against the employer,
credit had to be given for that amount in a subsequent personal injury claim.
15.2.2 Clothing and personal effects

Where the claimant has been injured as a result of an accident, there may be damage to items
of clothing and other personal effects, such as mobile telephones, laptop computers, watches,
etc. Where such items are damaged beyond repair, the claimant is entitled to claim their pre-
accident value, and appropriate documentary evidence (such as receipts or valuations) should
be provided. Solicitors acting for defendants will be keen to ensure that items have not been
overvalued by the claimant and that discounts are given in respect of items which were not
brand-new at the time of the accident. This type of loss does not arise in clinical negligence
cases.
15.2.3 Cost of medical care and expenses

The claimant is entitled to recover all medical expenses reasonably incurred as a result of the
defendant’s breach of duty, for example prescriptions, over-the-counter drugs, and private
medical care and treatment. However, where the claimant has been treated as an in-patient,
only the cost of the medical care may be claimed; he cannot claim for the ‘hotel’ element
included in the cost of staying in hospital, for example the proportion of the fees that relate to
the provision of meals, heating and lighting (Lim Poh Choo v Camden and Islington Area Health
Authority [1979] 2 All ER 910).
Treatment may be in relation to essential matters (such as a colostomy), non-emergency, non-

life threatening matters (such as dealing with bed sores), or incidental treatments (such as
IVF, required, for example, where a claimant is unable to father a child naturally due to a
spinal cord injury). The courts will allow the costs of numerous types of therapeutic care, such
as psychiatric assistance, physiotherapy and occupational therapy, and may allow the cost of
alternative medical treatments, such as acupuncture. The availability of free NHS treatment is
ignored (Law Reform (Personal Injuries) Act 1948, s 2(4); see also Eagle v Chambers [2004]
EWCA Civ 1033), although a claimant cannot be treated free under the NHS and then claim
for private treatment.
In cases where there are long waiting lists under the NHS, if the claimant does not himself
raise the matter, the claimant’s solicitor should suggest that the client undergo private
medical treatment in an attempt to speed the recovery period. Indeed, where the claimant has
a strong case on liability, the defendant’s solicitors may well suggest this, as prompt treatment
may reduce the level of damages ultimately payable by the defendant. Reference should be
made to the Rehabilitation Code (Annex D to the PAP for Personal Injury Claims; see
Appendix 2), which requires the parties to co-operate in order to assess and provide for the
claimant’s rehabilitation needs.
EXAMPLE
A 10-year-old girl is injured and has to undergo major abdominal surgery at the local
hospital, which leaves her with a large surgical incision. As part of her general damages
award she will claim for pain and suffering relating to the scarring. It is also likely that she
will claim that she will suffer psychological problems in relation to the embarrassment of
wearing swimming costumes throughout her teenage years and perhaps in later life. In
such a case, the claimant should undergo specialist plastic surgery in an attempt to reduce
the significance of the scarring and the potential psychological problems, which, in turn,
will reduce the level of damages that the defendant will pay.
Future private medical care may also be claimed as part of the future pecuniary loss head of
general damages (see 15.3.5), provided it is reasonably likely to be incurred.
15.2.4 Cost of care and quasi-nursing services

In cases where the claimant is seriously injured, the cost of providing care and quasi-nursing
services may form a substantial part of both the special damages claim for past pecuniary
losses and the general damages claim for future pecuniary losses (see 15.3.5). The cost of
such services may also form part of the special damages claim where injuries have been less
severe. In most cases, at least some of the care will have been provided gratuitously, by a
member of the claimant’s family or a close friend. As with medical care and expenses, the
claimant is under no obligation to use care services provided by the NHS.
15.2.4.1 Professional care

Where care services are provided on a commercial basis, they can be recovered from the
defendant provided they are reasonable in amount and are reasonably incurred as a result of
the injuries. The claimant will bear the burden of proving that he needed or will need the level
of care provided.
15.2.4.2 Gratuitous care

In relation to gratuitous care, the carer is unable to make a claim against the defendant due to
the general principle that a third party cannot claim in respect of losses he has incurred as a
result of the claimant’s injuries. However, the claimant may recover the value of care services
provided to him on a gratuitous basis, so long as such services were rendered necessary by the
negligence of the defendant. In other words, the care provided must be over and above that
which the claimant would have normally received from the carer. So, for example, where a
mother is severely injured and her child slightly injured in a road traffic accident as a result of
the defendant’s negligence, it is not possible for the child to claim damages for the care
element from the defendant, as the mother would normally provide such care. The
appropriate course is for the mother to include, as part of her damages claim, the costs of the
care of the child which she can no longer provide herself (see Buckley v Farrow and Buckley
[1997] PIQR Q78).
The value of gratuitous services may be claimed by the claimant irrespective of whether the
third party has been put to actual expense in providing those services, for example by
incurring loss of earnings, and it is unnecessary for there to be any agreement between the
claimant and the third party as to reimbursement for the services.
Initially, courts were reluctant to award damages for the cost of gratuitous care except in the
most serious cases. However, in Giambrone & Others v JMC Holidays Ltd ( formerly t/a Sunworld
Holidays Ltd) [2004] EWCA Civ 158, holiday makers who had developed gastro-enteritis at the
defendant’s hotel, which persisted for more than 14 days, were able to recover for gratuitous
care provided by family members once they had returned home. The Court of Appeal rejected
the defendant’s argument that an award for the value of such services should be made only in
serious cases or where the claimant could point to a demonstrable financial expense in
providing the necessary care. Consequently, claimants’ solicitors should always include a
claim for gratuitous care when it has been provided.
As has already been said, the claim for the value of the services is made by the claimant, not by
the third party, as it is the claimant’s loss (his need for the services) which is being
compensated. However, although it is the claimant who obtains the award for the value of the
services, the damages are held by him in trust for the carer. Therefore, where the carer is also
the defendant (eg, where a wife is injured as a result of her husband’s negligent driving and the
husband provides quasi-nursing services to her), the claimant cannot recover the value of
those services from the defendant/carer, as the claimant would have to repay the damages to
the defendant/carer (Hunt v Severs [1994] 2 All ER 385, HL).
15.2.4.3 The valuation of gratuitous care

In the case of professional services, the claimant is entitled to the reasonable fee payable for
those services; but in the case of gratuitous care where no fee is incurred, the valuation may be
more problematical. Each case will be assessed on its own facts.
Where the relative or spouse has given up work in order to look after the claimant, and has
thereby incurred loss of earnings, the lost earnings will be recoverable, provided they were
reasonably incurred.
Where there is no loss of income by the third party, the court will normally take account of
what it would cost to employ professional help. In this regard, there has been a recent
tendency to favour the standard hourly rate paid at spinal point 8 of the National Joint Council
for Local Government Services table. This rate, currently £6.84 per hour, which represents the
earnings of home care workers, may be weighted to take account of location and also whether
care is provided during the night or in extremely difficult circumstances. (See Massey v
Tameside & Glossop Acute Services NHS Trust [2007] EWHC 317 (QB), where the court found that
the flat rate at spinal point 8 did not adequately recompense a mother who provided
particularly demanding services during the night and at weekends to her claimant son.) In
addition, the court will normally apply a discount of somewhere between 20 and 30%, to
reflect the absence of tax and National Insurance deductions, travelling costs to and from
work, the profit element associated with commercial care services and the fact that
professional carers might be more efficient.
If the claimant seeks a rate in excess of the commercial rate, he has the onus of proving the
higher value (Rialas v Mitchell (1984) The Times, 17 July, where the claimant justified care at
home which was approximately twice the cost of care in an institution) (see also Fitzgerald v
Ford [1996] PIQR Q72).
15.2.5 Cost of DIY, gardening and housework services

The claimant is entitled to recover from the defendant the reasonable costs of obtaining DIY,
gardening and housework services which he used to provide for himself but has been unable
to do as a result of the accident. The services may be provided commercially or gratuitously,
and there may be a claim for past loss under special damages and/or a general damages claim
for future loss.
15.2.6 Costs of aids and appliances

The claimant may require specific aids or equipment to enable him to cope better with his
disabilities. Such items will result in one-off payments, and where this expense has been
incurred before the trial, it will form part of the claim for special damages. However, such
items may be required at regular intervals after trial and throughout the claimant’s life, and
therefore the replacement cost must be included within any future loss calculation.
The types of aids and appliances which a claimant may require are too numerous to list here,
but the following are a few examples:
(a) adaptations to the family car to allow the claimant to drive;
(b) wheelchairs (defendants may argue that these can be provided free by the State, in
which case claimant’s solicitors should argue that these would not be suitable);
(c) special beds;
(d) incontinence pads;
(e) odour control in the house due to incontinence;
(f ) hoists, to assist in moving the claimant in and out of bed;
(g) tilting chairs;
(h) exercise equipment, such as stationary cycles;
(i) therapy balls, to help with mobility.
15.2.7 Cost of alternative accommodation and/or adaptations

Where a disabled claimant is living at home, it is possible that the accommodation he had
prior to the accident is no longer suitable. It may require alterations and adaptations, such as
the installation of ramps for a wheelchair or a hoist for access to the bath, alterations to the
internal layout of the premises to facilitate access to bedrooms and bathrooms, or the creation
of extra storage space to accommodate wheelchairs and other aids or appliances. It may be
necessary to create accommodation for a resident nurse or carer. Where such alterations and
adaptations do not add value to the accommodation, the cost may be recovered in full from
the defendant. If the expense has been incurred prior to trial, it will form part of the special
damages calculation. If not, it will form part of the future loss calculation.
Some alterations, such as an extension, may be expensive, but they will add value to the
accommodation and, in such cases, the added value must be accounted for in the claim
for damages.
In some circumstances, the claimant’s existing home may be incapable of adaptation and it is
not unreasonable for him to move to more suitable accommodation. Provided that
accommodation is reasonable for his needs, he will be entitled to purchase a home which is
more expensive than his previous one. Clearly, the claimant will incur expenses in the move
which are recoverable from the defendant. However, if he were entitled to recover from the
defendant the purchase price of the more expensive new property less the proceeds from the
sale of his previous home, he would be overcompensated. He would benefit from a more
expensive house than perhaps he would otherwise have been able to buy, and the capital value
of the property would remain intact on his death and represent a windfall to his estate.
In such circumstances, the solution developed by the courts is to say that the loss is not a
straightforward capital loss, ie the cost of buying a larger house less the proceeds from the
sale of the previous house, but rather the loss of the net income which that capital sum would
have earned had it been invested. This lost income is not calculated by reference to a normal
commercial rate of interest but in accordance with the rate set by the Court of Appeal in Roberts
v Johnstone [1988] 3 WLR 1247. The rate of 2.5% per annum represents the real rate of return
on a risk-free investment.
The loss to the claimant is calculated as follows:
• Past loss: extra capital outlay x 2.5% (rate of return) x number of years of loss
• Future loss: extra capital outlay x 2.5% x whole life multiplier (obtained from the Ogden
tables) – see 15.3.4.2
• In either case, add any cost of conversion less any enhancement value
EXAMPLE
The claimant, Abdul, was 39 at the time of the trial and has, as a result of catastrophic
injuries, been confined to a wheelchair. Prior to the accident, he had lived in a third-floor
flat, which was wholly unsuitable for his needs following the accident. Consequently, a
year before the trial, he sold his former flat for £200,000 and moved to a bungalow, which
he purchased for £300,000. The bungalow was more or less suitable for his needs, but a
number of adaptations were required, including alterations to the bathroom and the
installation of a ramp to the front door, which cost a further £15,000. In addition, an
extension was built, costing £55,000, in order to accommodate a full-time carer. The
extension has added £60,000 to the value of the bungalow. The other adaptations have
not altered the valuation in any way.
Cost of replacement accommodation: £300,000
LESS: value of current house: £200,000
Capital difference £100,000
@2.5% of £100,000 £2,500
Past loss - £2,500 x 1 £2,500
Future loss - Multiplier (Table 1, Pecuniary loss for
life, male; aged 39 at trial) = 26.86
£2,500 x 26.86 £67,150
ADD conversion costs £70,000
£137,150
LESS increase in value £60,000
Future loss £77,150
Total loss claimable: £79,650
15.2.8 Travelling costs

The claimant is entitled to claim reasonable travelling costs, whether by private car or other
transport, such as buses, trains and taxis, which have arisen as a result of the accident. The
costs of travelling to hospitals, doctors, physiotherapists, etc are all claimable. Although the
cost of travelling to a medical expert for the purposes of the litigation is more properly
claimed as legal costs rather than as damages, it is common to see them in the claim for
special damages.
Where the claimant uses his own vehicle, there is usually a dispute between the parties
regarding the reasonable amount payable for mileage. Claimants may seek to rely on the
amount HM Revenue and Customs allows employees to claim for business mileage before tax
is charged – currently 45p per mile for up to 10,000 miles per year and 25p per mile for any
additional miles. The defendant may seek to rely on figures based on running costs, such as
those provided by the AA and the RAC. For example, the 2013 AA rates for petrol vehicles
range from 23.30p to 38.50p, depending on the purchase price of the car when new (see
www.theaa.com).
In many cases, family members and friends will incur additional travelling expenses, for
example by visiting the claimant whilst he is in hospital. The claimant is able to claim such
expenses as part of his loss (because he has a need for the visit), but it will be necessary to
prove that they were reasonably incurred as a result of his injuries. Consequently, only those
expenses which exceed what the family member or friend would have ordinarily spent on
visiting the claimant can be recovered.
EXAMPLE
The claimant, Peter, lived with his girlfriend, Sally, prior to the accident. Ordinarily, Sally
would not have incurred any expense in seeing him, so all travelling expenses associated
with visiting him in hospital can be claimed. On the other hand, if she had lived several
miles away from Peter, a claim could be made only in respect of the costs which were over
and above the normal travelling costs. If the hospital is further away than Peter’s house, or
she visits him more frequently than she would have otherwise done, a claim should be
made for the additional expense.
Where there is a claim for future travelling costs, these can be calculated by means of a
multiplicand and multiplier (see 15.3.4). A claim for parking charges should also be made
where appropriate.
15.2.9 Repairs to or replacement of the claimant’s vehicle; recovery

and storage costs
Where the claimant’s vehicle is damaged beyond repair, he is entitled to claim its pre-accident
value, less any salvage price obtained. Where the vehicle has been repaired, he is entitled to
the reasonable costs of the repairs. The claimant will also be able to claim any reasonable
costs incurred in recovering the vehicle from the accident site and storage costs prior to repair
or disposal. As the claimant is under an obligation to mitigate his losses, he should not allow
his vehicle to languish in storage facilities for too long or he may find he is unable to recover
all of the associated charges.
15.2.10 Loss of use of a motor vehicle or hire of substitute vehicle

Where the claimant’s vehicle is damaged and is off the road for a number of weeks while being
repaired, the claimant may claim damages for the ‘loss of use’ of his vehicle. A weekly amount
should be claimed, and this will reflect the level of inconvenience and hardship incurred by
the claimant’s having to rely on other means of transport. Special damages claims for loss of
use of a motor vehicle have decreased in recent years, as the claimant is more likely to hire a
substitute vehicle and claim the associated costs. However, such claims are still relevant where
the claimant is no longer able to drive, and in such cases there might also be a general
damages claim for the future loss of use of a motor vehicle.
Although it is clear that car hire charges incurred while the claimant’s vehicle is being repaired
can be claimed, the claimant must show that he has acted reasonably. The defendant should
challenge the claim where the claimant has hired a more expensive type of vehicle than that
involved in the accident, or has continued to hire a vehicle after his own vehicle has been
repaired. Also, if the hire car is hired at the more expensive daily rate rather than at the
cheaper weekly rate, then the defendant should argue that only the weekly rate should be
recovered, although the claimant may be able to show a good reason for using the daily rate
(see Usher v Crowder [1994] CLY 1494).
In certain circumstances, the claimant may use a vehicle supplied by a ‘credit hire’ company,
but for any such agreement to be enforceable, it must comply with the Consumer Credit Act
1974 (or be exempt), the hire charges should be at the ‘market rate’ (Dimond v Lovell [2000] 2
WLR 1121) and the period of hire should be reasonable (Opoku v Tintas [2013] All ER (D) 81
(Jul)).
Where a claim for hire charges is made, generally, a claim for loss of use will not be made as
the claimant has not been without a vehicle.
15.2.11 No-claims bonus and wasted road fund licence

Under the terms of an insurance policy, a no-claims bonus (NCB) will entitle the policyholder
to a discount on his annual premiums where he has not made any claims under the policy for
a specified period. Where there is a NCB of five years or more, the policyholder may be
entitled to a discount of as much as 60% to 75% and, as premiums are becoming increasingly
expensive, the loss of the NCB may represent a significant monetary loss to the claimant. The
claimant will lose the NCB where, as a result of his being involved in an accident, the
insurance company has to make payments to either the claimant or a third party under the
terms of the policy, and is unable to recoup such losses from anyone else. As it is a NCB and
not a no-fault bonus, it is immaterial whether the claimant was at fault or not. Where the
claimant has lost his NCB, or is at risk of doing so, the loss should be included in the claim for
damages. If, ultimately, the claimant’s insurer is able to recover all its losses from the
defendant (or more usually the defendant’s insurer), the NCB will not be lost and the
defendant’s solicitor should ensure that the claim for the NCB is withdrawn.
The claimant is entitled to claim for any wasted road fund licence, although he is expected to
mitigate his loss by obtaining a refund for any full months remaining on the licence.
15.2.12 Evidence of items of special damages

It is for the claimant to prove all items of special damages, and details should be set out in the
appropriate witness statement(s). Where damaged items are capable of repair or services are
required, the claimant should obtain two or three estimates in order to demonstrate that the
costs incurred are reasonable. A decision to use a more expensive service provider should be
explained in full. The claimant should be reminded at the outset of the case that he should
retain documentary evidence (such as receipts, estimates and valuations) wherever possible.
Defendants’ solicitors should challenge items that cannot be supported by appropriate
evidence. Where there is no documentary evidence, it is open to the claimant to attempt to
prove the loss by his own oral testimony at trial, but see Hughes v Addis [2000] LTL, 23 March,
where the Court of Appeal upheld the judge’s decision not to allow petrol costs where no
receipts were supplied.
15.3 GENERAL DAMAGES

General damages are those which are not capable of precise mathematical calculation. They
may be divided into:
(a) pain, suffering and loss of amenity (sometimes known as non-pecuniary loss); and
(b) financial losses incurred from the date of trial (or date of assessment of damages) for as
long as court deems the losses will continue into the future (sometimes known as future
pecuniary loss).
The main heads of general damages are:

(a) pain, suffering and loss of amenity;
(b) handicap in the labour market;
(c) loss of congenial employment;
(d) future loss of earnings;
(e) future cost of medical expenses and care/non-medical care and aids and appliances;
(f ) lost pension.
15.3.1 Pain, suffering and loss of amenity

15.3.1.1 Damages for pain and suffering
Awards of damages under this head are designed to compensate the claimant for the pain and
suffering attributable to any physical injury and psychological illness caused by the
defendant’s actions, from the moment of the accident to the date of trial, when damages are
assessed, and, where appropriate, future pain and suffering.
The award is made on the basis of a subjective test, ie a consideration of the pain and suffering
of this particular claimant. If there is no evidence that the claimant actually experienced pain,
such as where he has never regained consciousness following an accident, then no award will
be made.
15.3.1.2 Damages for loss of amenity

Strictly speaking, there is a separate head of damages known as ‘loss of amenity’, but
compensation for this loss is usually included with compensation for pain and suffering. This
element is designed to compensate the claimant for the loss of enjoyment of life which has
resulted from the accident. Examples under this head include interference with the claimant’s
sex life, or the loss or impairment of his enjoyment of holidays, sports, hobbies and other
pursuits.
The award for loss of amenity is based on an objective test (in contrast to pain and suffering),
and thus may be awarded irrespective of whether the claimant is personally aware of his loss,
for example if he is unconscious (West v Shephard [1964] AC 326).
Although the test is primarily objective, it does have subjective overtones in so far as the court
will have regard to the claimant’s former lifestyle. This may be particularly pertinent where
the claimant was formerly a very active person (eg a keen sportsman) and can no longer
pursue his sport. Although his pain and suffering may be the same as that of another person
with a similar disability, his loss of amenity may be greater and, as such, the total award for
pain and suffering and loss of amenity may be greater.
Damages for loss of congenial employment (see 15.3.3) may also be argued under this head,
but increasingly, the courts are making separate reference to these types of damages.
15.3.1.3 Quantification of damages for pain, suffering and loss of amenity

There is no minimum award which must be made for pain, suffering and loss of amenity
(however, only exceptionally would an injury not be worth, for example, £500 or £750);
neither is there any maximum.
The award is incapable of precise mathematical calculation. The solicitor’s first step is to
examine the claimant’s witness statement and the medical report in order to identify details
of the following:
(a) The claimant’s life prior to the accident. This will be relevant to the loss of amenity
claim.
(b) The pain and suffering associated with the accident itself and the immediate aftermath.
What were the injuries? How did the claimant react? Was he taken to hospital by
ambulance?
(c) Any periods of time the claimant was in hospital, and the number and nature of any
operations or other medical procedures he had to undergo.
(d) The short-term/long-term prognosis. Will the claimant recover in full? If not, what will
his continuing pain/disabilities be, and how long will they continue?
(e) Is there a risk of any future degeneration (eg, osteoporosis)?
(f ) What has been/will be the effect of the injuries on the claimant’s lifestyle?
In attempting to value the claim, courts will refer to the awards made in comparable cases, so
the solicitor’s next step is to carry out the relevant research. As no two cases are exactly alike (for
example, there may be differences in relation to the sex and age of the claimant, the injuries
suffered and the effect on the claimant’s life), this is not as straightforward as it might appear.
A useful starting point is the Judicial College’s Guidelines for the Assessment of General Damages in
Personal Injury Cases, currently in its 11th edition, which was published in September 2012. The
Guidelines are commonly used by personal injury lawyers and judges to obtain a ball-park
figure for the claimant’s injuries. (An on-line version of the Guidelines can be found on Lawtel
Personal Injury.) The Guidelines are based on an analysis of previous judgments and provide an
easy reference to broad categories of injuries, such as head injuries, psychiatric damages,
injuries affecting the senses, injuries to internal organs, etc. These categories are further
divided, so, for example, the section on orthopaedic injuries is divided into neck injuries,
back injuries, shoulder injuries, etc. Finally, each of these sub-categories is divided into
severe, serious, moderate and minor classifications, with an indication of what each of these
types of injuries are worth.
If you are familiar with the older versions of the Guidelines published by the Judicial Studies
Board, you should note that in the 11th edition values have increased across the board,
averaging at a rate of 9%, and that there are additional chapters on Injuries Resulting In
Death, Chronic Pain, and Minor Injuries.
In addition, it is crucial to note that the 11th edition does not take account of the 10% uplift in
general damages resulting from the revised decision of the Court of Appeal in the case of
Simmons v Castle (see below), which was published in October 2012. A 12th edition of the
Guidelines, which will reflect the uplift, is expected to be published in the autumn of 2013, but
until such time as it is published the values in the 11th edition should be increased
accordingly.
You should not base your assessment of the claimant’s losses solely on the Guidelines but rather
should make reference to specific comparable cases. The importance of comparable cases was
stressed by the Court of Appeal in Dureau v Evans [1996] PIQR Q18, when it commented on the
limited assistance provided by the Guidelines in relation to claimants who have suffered
multiple injuries. Similarly, in Reed v Sunderland Health Authority (1998) The Times, 16 October, it
was held that while the Guidelines were an important source of information, they did not have
the force of law, and the Court of Appeal is unlikely to overturn a decision if the Guidelines are
not followed precisely (see Davis v Inman [1999] PIQR Q26).
Traditionally, solicitors looking for comparable cases would use specialist sources, such as:
(a) Kemp and Kemp, The Quantum of Damages (Sweet & Maxwell);
(b) Butterworths Personal Injury Service;
(c) Personal Injuries and Quantum Reports (Sweet & Maxwell);
(d) Current Law (Sweet & Maxwell);
(e) Personal and Medical Injuries Law Letter (IBC).
However, increasingly, solicitors are using on-line services, such as Butterworth’s PI or Lawtel
(which includes access to Kemp and Kemp), to identify comparable cases.
Once a comparable case has been found, the relevant figure is that relating to pain, suffering
and loss of amenity. Remember the difficulties associated with terminology. Frequently, the
case reports will helpfully set out a figure for pain, suffering and loss of amenity, but
sometimes they will refer to ‘general damages’. If it is clear from the facts of the case that
there are no future losses, or alternatively a figure for future losses appears, it is safe to
assume that the term ‘general damages’ is the award for pain, suffering and loss of amenity. If
it is unsafe to make such an assumption, further investigations will need to be made.
There will be differences between the claimant’s situation and the circumstances of the
claimants in the comparable case so, once the relevant figure in the comparable case has been
identified, adjustments will need to be made in order to take account of the following matters:
(a) Sex – for example, traditionally, female claimants have received more for facial scarring
than male claimants. This seems to be based on the assumption that a woman’s
appearance is of greater importance than that of a man and that women suffer more as a
result of disfigurement. Although the Judicial College has maintained the gender
differences in the 11th edition, it acknowledges that it is doubtful whether gender itself
can be a proper or lawful factor to take into account. In her Foreword to the Guidelines,
The Rt Hon Dame Janet Smith DBE suggests that judges should put the matter of gender
out of their minds when assessing damages, and should state that they have done so
when giving judgment.
(b) Age of the victim – in cases of permanent disability, younger victims tend to get more
compensation than older victims as the young will suffer longer. On the other hand,
some injuries will have a more severe impact on an older claimant than on a younger
one.
(c) Loss of amenity – this is heavily influenced by whether the victim had a previously active
lifestyle.
(d) Limb injuries – injuries to dominant limbs attract higher awards than injuries to non-
dominant limbs.
(e) Inflation – previous awards must be inflated to present-day values. The inflation table in
Kemp and Kemp, The Quantum of Damages, can be used for that purpose although on-line
sources, such as the one on Lawtel PI, provide both original and inflated figures in their
quantum reports. Lawtel also has an on-line calculator which is very easy to use.
(f ) 2000 uplift – in the case of Heil v Rankin and Another [2000] 2 WLR 1173, the Court of
Appeal considered the level of damages for pain and suffering, concluded that they were
too low, and stated that there should be staged increases for all future cases where the
value of awards for pain and suffering was in excess of £10,000. Consequently, when
seeking to rely on a pre-March 2000 case in excess of £10,000, a conversion table (such
as that found in Quantum 2/2000, 18 April 2000 (Sweet & Maxwell)), must be used to
update the award, which will then need to be inflated to present-day values. The inflated
figures provided in Lawtel’s quantum reports take account of Heil v Rankin, and their on-
line calculator will do this automatically, where relevant. The latest edition of the JSB
Guidelines also takes the increases into account.
(g) 2013 uplift – following the Court of Appeal’s revised decision in Simmons v Castle [2012]
EWCA Civ 1039, in order to mitigate the effects of the reforms to the civil litigation
costs regime, a 10% uplift is to be applied for damages for pain, suffering and loss of
amenity in all cases where judgment is given after 1 April 2013, except where the
claimant has entered into a CFA before that date (LASPO 2012, s 44(6)). The idea is that
this increase will be used by the claimant to pay for any success fee owed to his solicitor,
as this will no longer be recoverable from a losing defendant. Lawtel’s updated figures
take account of this uplift. The 11th edition of the Guidelines does not, but the next
edition will provide two sets of figures, one set with the uplift and one set without.
When carrying out the research relating to a client who has sustained multiple injuries, it is
extremely unlikely that a comparable case will be found. The accepted approach is to identify
the most serious injury, find a comparable award for that injury and then take account of
awards made for the other injuries. It will not normally be appropriate simply to bolt the
separate awards together, as the court will seek to compensate the claimant for the totality of
his pain and suffering, and some discount will be required in recognition of this.
15.3.1.4 Damages where there are pre-existing injuries or conditions

One of the arguments that the defendant may use to bar or limit recovery of loss for pain and
suffering is that the whole or part of the claimant’s injuries or disabilities is due to a pre-
existing condition.
The egg-shell skull rule, which states that the defendant ‘must take the victim as he finds
him’, means that a defendant will not escape liability in situations where the claimant had pre-
existing injuries which made him more vulnerable to further injury. However, it does not
mean that the defendant will be liable for the full extent of any injuries or disabilities suffered
by the claimant. Rather, the defendant will be liable for the full extent of the aggravation or
exacerbation of the claimant’s pre-existing conditions. Where the defendant is able to show that
the claimant would eventually have suffered similar symptoms in any event, damages will be
restricted to those arising during the acceleration period, ie the period of time by which the
symptoms have been brought forward by reason of the defendant’s negligence.
EXAMPLE
Samantha suffered from a degenerative condition of the spine prior to her involvement in
a RTA caused by the defendant’s negligence. The defendant argues that this condition
would eventually have generated the symptoms of which Samantha is now complaining,
and that his actions have merely accelerated her disabilities. The defendant is able to
prove that, but for his actions, her symptoms would have developed in five years' time in
any event. The court will apply the ‘acceleration period‘ approach and the defendant will
be liable only for a five-year period for injury, loss and damage.
15.3.1.5 Evidence
Although the medical evidence will be the primary matter to which the court will have regard
in determining the award for pain, suffering and loss of amenity, the claimant will also give
evidence of his injuries at trial. It is important that details are contained within the client’s
witness statement. It is surprising how many clients forget the exact details of the difficulties
they had immediately post-accident or post-operation, and it is good practice for the
claimant’s solicitor to suggest that a diary is kept by the client, detailing the pain and practical
difficulties that were suffered. It may also be helpful to obtain evidence from others, such as
the claimant’s spouse and family members, or his employer, as to the effect of the injuries on
the claimant.
15.3.2 Handicap in the labour market

The purpose of this award is to compensate the claimant for the potential difficulties he may
face in obtaining another job, should he lose his current job, as a result of his injuries. For the
court to award such damages, the claimant should have suffered a ‘weakening’ of his
competitive position in the open labour market. In practice, this is referred to as a Smith v
Manchester claim (see Smith v Manchester Corporation (1974) 17 KIR 1).
In deciding whether this type of award is appropriate, the court will:
(a) consider whether there is a ‘substantial’ or ‘real’ risk that the claimant will lose his
present job at some time before the estimated end of his working life; and if there is
(b) assess and quantify the present value of the loss which the claimant will suffer if that
risk materialises. In doing so, the court will have regard to the degree of risk, the time
when it is likely to materialise and the factors, both favourable and unfavourable, which
may affect the claimant’s chance of getting another job at all or an equally well-paid job.
When seeking to establish whether there is a risk that the claimant will lose his job, the courts
have given the words ‘substantial’ or ‘real’ a liberal interpretation, so that what is required to
be shown is that the risk is ‘real’ rather than ‘speculative’. The risk might lie in the nature of
the injuries themselves, which might make it impossible for the claimant to continue in that
line of work. If this is the case, the matter should be addressed in the medical report, and the
claimant may also give evidence in his witness statement. Alternatively, the risk might lie in
matters that have nothing to do with the injuries, such as business restructuring. The client’s
trade union will have details of any redundancies that have been made by the employer in
recent years, and it may also be able to provide information about the employer’s future plans,
of which the client may not have been aware. If the client does not belong to a trade union,
evidence should be obtained from the client’s workmates or managers. (If the defendant is the
claimant’s employer, such information should be obtained from the defendant’s insurers or
solicitor.) The solicitor representing the defendant must obtain clear evidence concerning the
claimant’s job security in an attempt to refute the Smith v Manchester claim.
Once the first test has been satisfied, the court will attempt to quantify the risk and calculate
the appropriate damages. The court has to anticipate what would be the claimant’s chances of
getting an equally well-paid job if he was forced onto the labour market. This head of damages
is notoriously hard to quantify as the court will consider each individual case on its own facts,
but a common approach is to award between zero to two years’ net loss of earnings as at the
date of trial. However, the Court of Appeal in Foster v Tyne and Wear County Council [1986] 1 All
ER 567 stated that there was no ‘conventional’ figure for damages under this head, and
awarded a sum equivalent to four years’ net salary.
Examples of cases where a Smith v Manchester award may be considered appropriate include the
following:
(a) The claimant has returned to work after the accident and thus he has no continuing loss
of earnings claim. However, there is a risk that he will lose his job in the future and will
have difficulty in obtaining a job as well paid due to his injuries. A Smith v Manchester
award will be claimed.
(b) The claimant has returned to work and is earning, say, 20% less than he did prior to the
accident. As a result, he will have a continuing partial loss of earnings claim that could
be calculated by using the multiplier/multiplicand approach (see 15.3.4). In addition,
the court is satisfied that he will lose his job and will have difficulty in obtaining another
equally well-paid job due to his injuries. A Smith v Manchester award will be claimed.
(c) The claimant is still absent from work at the time of the trial as a result of the injuries
suffered in the accident, but he expects to return to his job in a few years when he has
recovered further. The medical evidence suggests that, should he lose his job, he may
still have problems in obtaining equally well-paid work due to his injuries. In these
circumstances, a Smith v Manchester award will be claimed.
This type of award is not normally appropriate where the claimant will never be able to return
to work, as he will be compensated by his claim for future lost earnings. However, the number
of cases where the claimant is unable to work at all in the future will be small.
A Smith v Manchester award should normally be claimed in the particulars of claim (Chan Wai
Tong v Li Ping Sum [1985] AC 446). However, the Court of Appeal, in Thorn v Powergen [1997]
PIQR Q71, upheld a decision allowing a Smith v Manchester award in a case where it had not
been claimed specifically but was found by the trial judge to be implied due to the nature of
the injuries revealed by the medical evidence.
Evidence must be obtained concerning the claimant’s future job prospects, including any
skills he possesses (eg, a labourer of 50 years of age with no qualifications will find it difficult
to retrain if he loses his job), the prospects of the industry in which the claimant works and
any unusual local problems that may be relevant to the claimant. It may be necessary to
instruct an employment consultant to provide information about these matters, or to obtain
relevant information from other sources, for example the Annual Survey of Hours and
Earnings. The expert would consider the client’s injuries and personal qualifications, and
analyse employment statistics and local press advertisements in order to report on the
severity of the handicap on the labour market. In other cases, the trial judge will be aware of
the employment situation in his area and be able to formulate the appropriate award.
Any evidence relating to handicap on the labour market claim must be included within the
medical report and the witness statements for exchange.
15.3.3 Loss of congenial employment

The concept of compensating the claimant for a loss of job satisfaction has been accepted by
the courts for some time. In Morris v Johnson Matthey & Co Ltd (1967) 112 SJ 32, a precious metal
worker, aged 52, sustained a serious injury to his left hand, which left him incapable of
continuing his craft. His employers found him alternative employment as a storeman, which
he described as ‘at times rather boring’. Edmund-Davies LJ stated:
the joy of the craftsman in his craft is beyond price. But the court has to give some monetary value to
the loss of craft. The court should give consideration to the fact that a craftsman had to replace his craft
with humdrum work.
Traditionally, the award was incorporated within the award for pain, suffering and loss of
amenity, but it is now well established that the court will normally make a separate award
under this heading. Generally, those who received such awards were deprived of jobs which
have a vocational element or where a period of training is required, such as firemen, nurses,
members of the armed forces, dancers, actors, and craftsmen such as carpenters. Those
employed in repetitive manual work, such as factory workers, are unlikely to be able to
convince a court that they found their job rewarding. However, claimants’ solicitors should
listen carefully to what their clients have to say on this point, as courts will judge each case on
its facts. In McCrae v (1) Chase International Express Ltd (2) Justin Smith [2003] LTL, 14 March, the
Court of Appeal overturned an award made to a motor-cycle courier on the basis that it was
not satisfied with the evidence in support of the claim, but said that that an award might
otherwise have been appropriate. In Lane v The Personal Representatives of Deborah Lake (Deceased)
[2007] All ER (D) 258, the defendant tried to argue that this award should be reserved for
policemen, firemen, etc, but this was rejected by the judge on the basis that such an award
‘should be confined to those who truly have suffered a loss under this head and not be
awarded merely by reference to the type of employment nor automatically as an extra’.
Awards tend to be in the range of £5,000 to £10,000. In Willbye (by her mother and next friend) v
Gibbons [2003] EWCA Civ 372, the Court of Appeal reduced an award of £15,000 which had
been made to a girl who had been 12 years old at the time of the accident and who had wanted
to become a nursery nurse. It said that it was important to keep this head of damages in
proportion and reduced the award to £5,000. Nevertheless, higher awards will be made in
appropriate circumstances. The highest award so far was made in Appleton v Medhat Mohammed
El Safty [2007] EWHC 631 (QB), to a footballer who had been playing for West Bromwich
Albion before clinical negligence cut short his career. The Court of Appeal found the facts of
this case to be exceptional and awarded £25,000.
Any evidence relating to a loss of congenial employment claim must be included within the
witness statements for exchange. In particular, the claimant must give full details of the
nature of his previous employment, any training or qualifications required, his career
progression, etc, so that the loss of job satisfaction can be proved.
15.3.4 Future loss of earnings

Damages for loss of earnings after the date of trial will be assessed as general damages. The
court will need to determine what the claimant would have earned, had he not been injured,
up to the time he would have ordinarily retired or for a specified period, if he is expected to
recover sufficiently to be able to work in the future. Even the most straightforward case will
require the court to tackle uncertainty, and the more complex the case, the more ‘crystal ball
gazing’ will be required.
Under the conventional method of calculating future loss of earnings, a lump sum award will
be calculated using a multiplier and a multiplicand. The object is to assess the amount of
money which can be invested today which will represent a fund which should last for precisely
the period of the lost earnings. In other words, the capital sum is invested, the claimant
periodically draws out from the fund what he would have earned throughout the period of
loss, and the fund gradually decreases until it is exhausted at the very end of the period of loss.
That is, at least, the theory.
15.3.4.1 The multiplicand

The multiplicand is the figure which represents the claimant’s annual loss, so where a
claimant is not able to work at all, it will be the net annual earnings that he would have
received had he not been injured. Where the claimant is able to work but will earn less than his
pre-accident salary, the multiplicand is the difference between the two net annual earnings.
The items to be included or ignored in the calculation of the multiplicand are the same as for
pre-trial earnings, as identified at 15.2.1.
15.3.4.2 The multiplier

The multiplier is based on the period of likely future loss. This will depend on the facts of the
case. For example, in the case of a male claimant who will never work again, the period of loss
will normally extend until his likely retirement age (normally 60 or 65). The period of loss is
taken from the date of trial, as pre-trial losses will be claimed as special damages.
The period of loss is then converted into a multiplier. Following the House of Lords’ decision
in the joint appeals of Page v Sheerness Steel Co Ltd; Wells v Wells; Thomas v Brighton Health Authority
[1998] 3 WLR 329, it can now be assumed that the starting point when attempting to identify
the multiplier is to use the Government’s actuarial tables (the Ogden Tables; see Appendix 5).
The current version of the Ogden Tables, the 7th edition, was published in August 2011.
The multipliers in Tables 1 to 26 are based on mortality rates for the United Kingdom, with
different tables for males and females, and a discount to take account of accelerated receipt (ie
the claimant will receive a lump sum which he can invest).
In order to find the appropriate multiplier, the solicitor will;
(a) identify the correct table from Tables 3 to 14 by using the claimant’s sex and anticipated
retirement age had it not been for the accident;
(b) find the claimant’s age at the date of trial along the left-hand vertical column;
(c) find the correct discount rate along the top horizontal line. In 2001, the Lord
Chancellor set the ‘discount rate’ that should be referred to when using the Ogden
Tables at 2.5%, which is said to represent the real rate of return (ie, after tax and making
allowance for inflation) calculated over the appropriate period of time. The Ministry of
Justice is currently considering whether the rate should be changed. It is open to the
courts under s 1(2) of the Damages Act 1996 to adopt a different rate if there are
exceptional circumstances;
(d) identify the appropriate multiplier, which can be found where the relevant vertical and
horizontal columns meet;
(e) consider whether further discounts are appropriate to take account of other ‘risks and
vicissitudes of life’, such as the possibility that there would be periods when the
claimant would not have been earning due to ill-health or loss of employment. The
factors which are to be taken into account are as follows:
(i) whether the claimant was employed or not at the time of the accident. Employed
includes being self-employed or being on a government training scheme;
(ii) whether the claimant was disabled or not at the time of the accident. A claimant is
disabled if he has an illness or a disability which has or is expected to last for over
a year or is a progressive illness, satisfies the Equality Act 2010 definition that the
impact of the disability substantially limits his ability to carry out normal day-to-
day activities, and his condition affects either the kind or the amount of paid work
he can do;
(iii) the claimant’s level of educational attainment at the time of the accident. There
are three levels: degree or equivalent and higher, GCSE grades A to C up to A levels
and equivalent, and below GCSE grade C or CSE grade 1 or no qualifications.
Section B of the Ogden Tables gives further information regarding these discounts and
how they should be applied (see Appendix 5).
15.3.4.3 The calculation
In order to determine the amount for future loss of earnings, the multiplicand is multiplied by
the amended multiplier.
EXAMPLE
Simon was 43 when the accident occurred and 45 at trial. He was employed as a
labourer prior to the accident, earning £20,000 per annum. He was not disabled, had no
qualifications and was due to retire 65.
(a) As he is male and his retirement age is 65, the correct table is Table 9;
(b) Using his age at trial, 45, and the 2.5% rate of return, a multiplier of 15.27 is
identified.
(c) Account for risks other than mortality, ie for Simon being employed, not disabled
and having no qualifications. Table A is the correct table as Simon is male, would
have retired at 65, and was not disabled. Identify the correct age bracket on the left
hand side (45–49) and, across the top, identify the correct column. This is the third
column (headed O), as he was employed but without qualifications. The correct
discount figure is 0.86.
(d) The amended multiplier is 15.27 x 0.86 = 13.13
(e) The future loss of earnings 13.13 x £20,000 = £262,600
15.3.4.4 Career progression and loss of earnings

In cases where the period of loss will continue for many years into the future, it is particularly
important to ensure that account is taken of likely periodic changes to the claimant’s income.
The claimant will want to point to anticipated career progressions where, for example, he was
a junior doctor, a trainee solicitor or a junior officer in the armed forces. In such cases, the
court will either:
(a) determine an average multiplicand, based upon the likely earnings throughout the
period of loss, which will then be applied to the full period of the loss; or
(b) use stepped multiplicands for each stage of the claimant’s career. Generally, this will
result in a lower multiplicand at the beginning and possibly at the very end of the period
of loss, with one or more higher multiplicands to represent the likely career progression
that would have been followed.
In Collett v Smith and Middlesborough Football & Athletics Company (1986) Ltd [2008] EWHC 1962
(QB), the court was required to assess damages in relation to a young man whose promising
football career had been cut short, at the age of 18, as a result of a negligent tackle. In assessing
damages for future loss of earnings at £3,854,328, the court was obliged to make decisions on
such issues as the level at which he would have played football and at what remuneration, how
long he would have played for, whether his career would have otherwise have been cut short by
injury and whether he would have gone on to work as a coach or manager.
The amount of ‘crystal ball gazing’ which the court will of necessity have to undertake in this
exercise is increased in cases where the claimant was a child at the time of the accident. If the
child is old enough to have attended school, taken a few exams and shown some interest in
one career or another, it might be possible to anticipate a likely career progression. With a
younger child, this will be much more difficult. The court will take into account the following
evidence, where available:
(a) the nature of the employment of the claimant’s parents and siblings;
(b) any qualifications obtained so far;
(c) evidence from the claimant’s former teachers, club leaders, sports trainers, etc
regarding the claimant’s abilities and personality;
(d) neuropsychological evidence of the claimant’s pre-accident IQ;
(e) the claimant’s own evidence and personality, as demonstrated in the witness-box.
15.3.4.5 Evidence
The importance of expert evidence in such a case is vital. Medical evidence can provide an
indication as to what work the claimant will be capable of undertaking, both at present and in
the future. This, together with evidence of the claimant’s employment prospects, will assist
the court in determining what will happen to the claimant in the future, which, while often
appearing unsatisfactory to many clients, is usually the approach that the court will take.
15.3.5 Future cost of medical expenses, care and quasi-nursing services, and
aids and appliances
In cases of catastrophic injury, it is possible that the claim for the cost of future care and quasi-
nursing services will exceed the claim for future loss of earnings. This is because the need for
care will often continue beyond the claimant’s normal retirement age, plus the fact that
specialist care is extremely expensive. It must be remembered that the cost and type of care
may change in the future. For example, a severely injured child’s costs of care will increase as
he becomes older because it is unlikely that his parents will be able to look after him when
they are elderly and, as such, increased professional help will be required.
The calculation for the future cost of care is carried out in the same way as set out in 15.3.4.
However, when identifying the multiplier, the correct table will be either Table 1 or Table 2,
depending upon whether the claimant is male or female. In addition, following the House of
Lords’ decision in Page v Sheerness Steel Co Ltd; Wells v Wells; Thomas v Brighton Health Authority (see
15.3.4.2), it is not appropriate to discount whole life multipliers.
The cost of medical expenses and aids and appliances may also be dealt with using a
multiplier from Tables 1 or 2 and a multiplicand where a continuing need can be
demonstrated. For example, the claimant may include the cost of a wheelchair as part of his
special damages claim. That wheelchair will not last the claimant for the rest of his life, and
therefore the replacement cost will need to be annualised. So, where the cost of a wheelchair
is £1,000 and it would have a life span of five years, the multiplicand would be £200.
Generally, the annual cost of items relevant to the same period of loss are added together to
produce one multiplicand.
Alternatively, the claimant may require an operation which will not need to be repeated, or an
appliance which will not need to be replaced. In such cases, a one-off payment should be
included in the claim.
15.3.6 Loss of pension

In more serious cases, where the claimant does not return to work or returns on a lower wage,
consideration must be given to a claim for lost pension. The claimant’s pension is normally
based upon his period of service with the company and the salary that he would have earned at
retirement age. Reference should be made to specialist texts on this subject.
15.4 PROVISIONAL DAMAGES

15.4.1 The problem which provisional damages are intended to solve
When the court awards damages or the parties agree a settlement, it will be on the basis of a
full and final settlement of the claim. Consequently, the normal rule is that the claimant is
unable to return to court to ask for a further award to be made, even where his condition has
seriously deteriorated.
This being the case, the claimant’s solicitor should ensure that the claimant is properly
compensated, by ensuring that expert medical evidence deals with any deterioration that is
likely to arise in the future. Where the court is satisfied that the claimant is more than 50%
likely to suffer a specified deterioration in his condition, the court will award damages on the
basis that the deterioration will occur and a provisional damages order is not appropriate. The
problem lies in cases where the deterioration, although possible, is less than probable.
EXAMPLE
Fred is injured. At the time of the trial he has no loss of sight, but there is a 10% possibility
that in the future he will lose the sight in one eye. Bearing in mind that quantum for pain
and suffering and loss of amenity for the total loss of sight in one eye is approximately
£30,000, how does the judge award damages to Fred?
If the judge awards £3,000 (10% of £30,000) and Fred does lose the sight in his eye in the
future, Fred will be under-compensated by £27,000 but cannot return to court for more
damages. If Fred does not lose the sight in his eye in the future, Fred is unjustly enriched
by £3,000 and the defendant cannot recover the excess damages.
Provisional damages are aimed at solving the above problem by providing an exception to the
basic rule. In certain limited circumstances the claimant can be compensated for his injuries
with the proviso that if a specific condition occurs in the future, he will be allowed to return to
court so that further damages may be awarded.
15.4.2 The statutory provisions

Rule 41.2 of the CPR states that the court may make an order for provisional damages,
provided the claim is included in the particulars of claim and the court is satisfied that s 32A
of the Senior Courts Act 1981 or s 51 of the County Courts Act 1984 applies.
In accordance with s 32A of the Senior Courts Act 1981, an order for provisional damages may
be made where there is:
a chance that at some definite or indefinite time in the future the injured person will, as a result of the
act or omission which gave rise to the cause of action, develop some serious disease or suffer some
serious deterioration in his physical or mental condition.
A similar provision is found in s 51 of the County Courts Act 1984.

If the court considers that there is a suitable case for provisional damages (see CPR, Part 41
and PD 41), it will:
(a) assess damages on the assumption that the injured person will not develop the disease
or suffer the deterioration in his condition;
(b) identify the disease or deterioration that has been disregarded;
(c) stipulate a period (which may be indefinite) during which the claimant may return to
court for further damages if he develops the disease or suffers the deterioration;
(d) make an order that relevant documents are to be kept by the court.
If the claimant subsequently suffers the specified disease or deterioration within the specified
time frame, he may apply to the court for further damages. The order will set out with
precision the circumstances which must arise before the claimant is allowed to return to
court, as it will wish to avoid a situation where there is a subsequent dispute as to whether the
proper circumstances had arisen.
15.4.2.1 ‘Chance’
The expression ‘chance’ is not defined in the legislation. It clearly indicates something less than
a probability, ie less than 50% likelihood, and in Curi v Colina [1998] EWCA Civ 1326, the Court
of Appeal said there had to be a ‘possibility but no more than a possibility’. However, it must be
measurable rather than merely fanciful (Willson v Ministry of Defence [1991] 1 All ER 638, where
it was held that the possibility that the claimant would incur further injury from a fall as a result
of an ankle injury was not evidence of ‘serious deterioration’ as it might not ever happen).
In order to be measurable, the chance should be expressed in terms of a percentage figure.
The courts have been prepared to make an order for provisional damages where the likelihood
of deterioration has been expressed in terms of single figure percentages, but an award should
not be made where the risk is de minimis. In Chewings v (1) Williams & (2) Abertawe Bro Morgannwg
University NHS Trust [2009] EWHC 2490 (QB), the claimant sought provisional damages,
reserving the right to claim further damages should he suffer a below the knee amputation of
his right leg. One of the issues for the court to determine was whether the risk of amputation
was more than fanciful. In allowing the award, the court held that the chance of amputation
was more than fanciful and, although it was difficult to ascribe a precise percentage to it, if it
were necessary to do so, it would be about 2%.
If there is doubt as to whether the case is appropriate for a provisional damages claim then
advice from a solicitor or barrister with expertise in this area should be sought.
15.4.2.2 ‘Serious deterioration’

‘Serious deterioration’ is not defined in the legislation. In Willson, it was held that ‘serious
deterioration’ meant:
(a) a clear and severable risk of deterioration (not merely the natural progression of the
injury); and
(b) something beyond ordinary deterioration.
On the facts of Willson, the court held that the chance of arthritis was merely a natural
progression of the injury and was not a suitable case for provisional damages. The most
common examples of conditions in which provisional damages have been awarded in practice
are where there is the chance of the claimant suffering from epilepsy, or from a disease such
as cancer or asbestosis as a result of exposure to a dangerous substance.
15.4.3 Procedural approach

The claim for provisional damages must be included in the particulars of claim, and if the
possibility of provisional damages emerges after these documents have been served, the
documents must be amended. Part 16 of the CPR 1998 and the accompanying Practice
Direction set out the necessary information which must be included.
The court will be slow to make an order for provisional damages, on the basis that finality is
better for all parties. Evidence is therefore very important, and the medical report should
address the issues with precision. In particular, it should set out the nature of the
deterioration, the chance of deterioration by means of a percentage figure and an anticipated
time frame.
The only basis for an award of provisional damages is a court order. Any application by
consent for an award of provisional damages should follow the procedure set out in Part 23 of
the CPR 1998.
If the specified disease or deterioration occurs within the specified period, the claimant must
give at least 28 days’ written notice to the defendant of his intention to apply for further
damages.
It is possible to apply to extend the period of time for claiming further damages, and a medical
report should be filed in support of such an application. Such an application must be made
within the original time limit.
15.4.4 The claimant’s and defendant’s perspectives

Even where the claimant’s claim falls within the realm of provisional damages, the claimant
may not want to pursue this option, preferring instead that the claim is satisfied once and for
all by the award of a lump sum. The defendant will also usually prefer the matter to be dealt
with by one lump sum award, and will therefore be prepared to negotiate an additional
amount to take account of the risk of deterioration in an attempt to persuade the claimant to
abandon his claim for provisional damages.
The claimant’s solicitor must advise his client of the implications of each option, preferably in
writing, and obtain his instructions, again preferably in writing. The claimant must appreciate
that if he chooses to accept a lump sum in full and final settlement, he will not be able to
return to court to ask for additional compensation should his condition deteriorate, no matter
how serious the deterioration is. Alternatively, if the court makes an order for provisional
damages, he will be able to return to court only if the specified deterioration occurs within the
specified time limit.
Solicitors must ensure that they preserve their own files for the appropriate length of time.
15.4.5 Provisional damages and the Fatal Accidents Act 1976

Section 3 of the Damages Act 1996 allows an application to the court under the FAA 1976
where a person is awarded provisional damages and subsequently dies.
15.4.6 Provisional damages and Part 36 of the CPR

Where there is a claim for provisional damages and the defendant makes a Part 36 offer, the
offer notice must specify whether or not the settlement includes the making of a provisional
damages award (see 14.10.2).
15.5 PERIODICAL PAYMENTS

15.5.1 The problems which periodical payments are intended to solve
The assessment of damages, particularly in relation to future pecuniary loss, depends upon
matters which are uncertain and unpredictable. Consequently, a lump sum payment may
result in the following:
(a) over-compensation, leading to unfairness to the defendant. A claimant may die early
and his beneficiaries be unjustly enriched;
(b) under-compensation, leading to a lack of financial security for the claimant. Where a
claimant will be dependent on care for many years, the money may run out;
(c) a lack of prudence on the part of the claimant or his family. Few have experience of
managing large sums of money, and inappropriate spending or unwise investment may
dissipate the fund;
(d) a lack of flexibility. The general rule is that the claimant cannot return to court if his
condition deteriorates (unless there is an order for provisional damages, see 15.4
above).
These problems will be less severe where the court orders periodical payments to be made.
Here, the court will assess the annual needs of the claimant in order to calculate the amount of
the periodic payments; the payments rise in accordance with inflation and are paid, free of
tax, to the end of claimant’s life. In addition, the management and administration involved in
the investment of damages is transferred from the claimant to the defendant, but as the
payments must be secure, the continuity of the payments is guaranteed.
15.5.2 The statutory provisions

15.5.2.1 The court’s power to make an order for periodical payments
Under s 2 of the Damages Act 1996 (as amended by s 100 of the Courts Act 2003), where an
order for damages includes an amount for future pecuniary loss in respect of personal injury,
the court must consider whether an order for periodical payments is appropriate. Where there
is a claim for damages in respect of future pecuniary loss, such as the future loss of earnings
or the future costs of care, the court can order that the damages wholly or partly take the form
of periodical payments, and it can do so without obtaining the consent of the parties.
The court can make an order for periodic payments in respect of other damages, such as past
pecuniary loss and pain, suffering and loss of amenity, only where both parties consent
(s 2(2)).
Under s 2(3), the court can make such an order only where it is satisfied that the continuity of
payment is reasonably secure. Section 2(4) states that a payment is ‘reasonably secure’ where:
(a) it is protected by a guarantee given under s 6 of or the Schedule to the Act;
(b) it is protected by a scheme under s 213 of the Financial Services and Markets Act 2000;
or
(c) the source of payment is a government or health service body.
Where none of the above applies, a defendant may be able to prove that payment is reasonably
secure by purchasing a life annuity for the claimant’s benefit, which would be protected by the
Financial Services Compensation Scheme or by some other means.
15.5.2.2 The order

Under CPR, r 41.8(1), where the court awards damages in the form of periodical payments, it
must specify:
(a) the annual amount awarded, how each payment is to be made during the year and at what
intervals;
(b) the amount awarded for future—
(i) loss of earnings and other income; and
(ii) care and medical costs and other recurring or capital costs;
(c) that the claimant's annual future pecuniary losses, as assessed by the court, are to be paid for
the duration of the claimant's life, or such other period as the court orders; and
(d) that the amount of the payments shall vary annually by reference to the retail prices index,
unless the court orders otherwise under section 2(9) of the 1996 Act.
15.5.2.3 Indexation
Under s 2(8) of the Damages Act 1996, the payments will rise by reference to the Retail Price
Index (RPI), although s 2(9) allows for s 2(8) to be disapplied. There has been much
controversy as to whether the RPI is the appropriate index as it is based on prices, which
historically have not risen as sharply as wages. In the provision of care services, it has been
wages that have been driving the cost up, and it is therefore argued that the Aggregate Annual
Survey of Hours and Earnings (ASHE 6115) is the appropriate index to use. In Tameside and
Glossop Acute Services NHS Trust v Thompstone [2008] EWCA Civ 5, the Court of Appeal settled this
debate by endorsing the use of ASHE 6115.
15.5.2.4 Variation
In accordance with the Damages (Variation of Periodical Payments) Order 2005 (SI 2005/841),
where the court is satisfied that, at some time in the future, the claimant will:
(a) as a result of the act or omission which gave rise to the cause of action, develop some
serious disease or suffer some serious deterioration; or
(b) enjoy some significant improvement in his physical or mental condition, where that
condition had been adversely affected as a result of that act or omission;
the court can include in an order for periodical payments an order that they may be varied.
The consent of the parties is not required. The wording is similar to that used for provisional
damages (see 15.4), and it is thought that the courts will apply the same strict criteria before
including a provision for variation in a periodical payments order.
15.5.3 Procedural approach

In accordance with CPR, r 41.5, the party should address whether or not it considers
periodical payments to be appropriate in its statement of case and set out the particulars of
the circumstances it relies on. If a statement of case does not address the matter at all, or does
not set out sufficient particulars, the court may order the party to rectify the situation.
The power to make an order for periodical payments must be exercised in accordance with
CPR, r 41.7, which states that when considering whether to make such an order, the court
must have regard to ‘all the circumstances of the case and in particular the form of award
which best meets the claimant’s needs, having regard to the factors set out in the practice
direction’. The relevant Practice Direction, PD 41B, para 1, states that these factors include:
(1) the scale of the annual payments taking into account any deductions for contributory
negligence;
(2) the form of the award preferred by the claimant including
(a) the reasons for the claimant’s preference; and
(b) the nature of any financial advice received by the claimant when considering the form of
the award; and
(3) the form of the award preferred by the defendant including the reasons for the defendant’s
preference.
Although the court must have regard to the wishes of the parties, ultimately it must decide
what order best meets the claimant’s needs, and this may not necessarily coincide with what
the claimant prefers. The claimant’s solicitor must instruct an independent financial adviser
to report on the form of order which he considers is in the best interests of the claimant.
However, in the Tameside case (see 15.5.2.3), the Court of Appeal stated that it was able to have
regard to the defendant’s preferences without the need for the defendant to call evidence on
this point. It went on to say that only in rare cases would it be appropriate for the defendant to
call expert evidence in order to seek to demonstrate that the form of order preferred by the
claimant would not best meet his needs.
15.5.4 The claimant’s and defendant’s perspectives

Generally speaking, claimants are not keen on the idea of periodical payments, preferring all
damages to be paid as a lump sum. This gives them more control over their finances, and may
be particularly important to the claimant who is keen to provide for his family in the event of
his death. Defendants differ in their approach, and some may be deterred by the need to
manage the fund on behalf of the claimant. However, where cases involve large claims for the
cost of future care, defendants will usually prefer periodical payments, because they will assist
with cash-flow and will prevent large over-payments where the claimant dies early.
15.6 INTEREST
A claim for interest should be included in the court proceedings. In the majority of personal
injury cases, the court will award interest (simple, not compound) in addition to the basic
damages. The purpose of an interest award is to compensate the claimant for having to wait to
receive his compensation. Interest in a personal injury claim is generally awarded in
accordance with the following guidelines:
(a) Special damages carry interest at half the short-term investment/special account rate
from the date of the accident to the date of trial. For the seven years prior to February
2009, the special account rate remained at 6%. It has since been reduced three times to
its current rate of 0.5%. In Roberts v Johnstone [1989] QB 878, it was held that damages for
unpaid past services of care and attendance should be awarded in a similar manner to
any other items of special damages.
It should also be noted that following the case of Wadley v Surrey County Council (2000) The
Times, 7 April, the House of Lords confirmed that when calculating interest on special
damages, the court should disregard deductible State benefits; interest is claimed on
the gross amount.
(b) Damages for pain and suffering and loss of amenity carry interest from date of service of
proceedings to the date of trial at 2% per annum, following the case of Felmai Lawrence v
Chief Constable of Staffordshire (2000) The Times, 25 July.
(c) Damages for future losses carry no interest (as, by definition, the losses have not yet
been incurred).
(d) General damages for a handicap on the labour market carry no interest.
It should be noted that these are general guidelines, but the court does have a discretion to
depart from them in exceptional cases. In Kemp and Kemp, The Quantum of Damages, it is
argued that while the general approach for special damages stated above is appropriate for
regular losses between the accident and trial (eg, weekly wage loss), it is not satisfactory
where the claimant had incurred a large, one-off item of expenditure shortly after the
accident. In such circumstances, he would be under-compensated by the application of the
normal interest rule, and therefore, it is argued, interest should be awarded at the full rate on
such items.
Interest is awarded to mitigate the effects of delay. However, if the delay is the fault of the
claimant, this may be a ‘special reason’ not to award full interest (Birkett v Hayes [1982] 2 All
ER 70). This point was raised in the case of Beahan v Stoneham [2001] LTL, 16 May, where an
appeal from an assessment of damages in a claim for personal injuries was allowed in part
where the trial judge failed to reduce interest on damages. The matter concerned a case where
there was a significant delay in proceeding with the claim (see also Spittle v Bunney [1988] 1
WLR 847). The court held that the judiciary should be more ready to mark their disapproval of
delay in this matter.
15.6.1 Calculation of interest

The calculation of interest on general damages should not present any problem. However, the
calculation of interest on special damages can be more difficult. Traditionally, solicitors used
the Nelson–Jones table, which is printed annually in the Law Society's Gazette. However,
on-line calculators are quicker and easier to use.
The inclusion of interest on the settlement of a case must not be forgotten by the claimant’s
solicitor.
15.7 THE SCHEDULE OF PAST AND FUTURE LOSS AND EXPENSE

In accordance with PD 16, para 4.2, the claimant must attach to his particulars of claim a
schedule setting out details of any past and future expenses and losses (see 12.5.1 and
Appendix 1(11)). Where the defendant disputes the information contained in the schedule,
he should serve a counter-schedule. Both the schedule and the counter-schedule should be
revised for the trial.
15.8 CONCLUSION
Subject to liability being established, the aim of the claimant’s solicitor is to recover the
highest possible award of damages on behalf of his client (without falsifying or exaggerating
the claim), and the aim of the defendant’s solicitor is to minimise the award. Both require an
in-depth understanding of the rules which govern what may be recovered under the heads of
special damages for pecuniary losses incurred up to the date of the trial or earlier settlement,
and general damages for non-pecuniary loss and future pecuniary loss.
The claimant’s solicitor should make thorough enquiries of his client to ensure that all
pecuniary losses and expenses are included in the schedule of loss, as the client may not
appreciate the true cost of his losses and expenditure thus far or the possible financial
implications stretching out into the future. The schedule should be updated as required as the
matter progresses. The defendant’s solicitor should not be afraid to challenge the inclusion of
items of loss or the amounts claimed where it is appropriate to do so.
General damages for pain, suffering and loss of amenity, and for handicap in the labour
market and loss of congenial employment, are not capable of precise mathematical
calculation. Nevertheless, the courts have adopted an approach to quantifying these heads of
damage which aims to ensure, in so far as possible, that comparable cases receive comparable
amounts in damages. The starting point for practitioners when calculating an appropriate
award for pain, suffering and loss of amenity is the Guidelines for the Assessment of General Damages
in Personal Injury Cases, but research of reported cases involving similar injuries will also be
necessary.
Future pecuniary losses, such as the loss of earnings or the cost of care, are calculated by
means of a multiplicand, a figure representing the claimant’s annual loss, and a multiplier, a
figure which is based on a best guess of how long the incapacity will continue into the future
and is found by reference to the Ogden Tables.
In the vast majority of cases, lump sum damages are awarded in full and final settlement of
the claim, which means that the award cannot be changed in the event that the claimant
makes a substantial recovery or suffers an unexpected deterioration. However, an exception
to this rule exists where the court makes an order for provisional damages, enabling the
claimant to return to court to seek a further award of damages in the event that a specified
condition or deterioration occurs within a specified time period. A further exception arises
where the court makes an order for periodical payments, where an annual sum is paid to the
claimant in accordance with his needs, usually in addition to lump sum damages. Such
payments may be increased, decreased or stopped on the application of either party, where
the claimant’s needs have changed.
Proceedings should always include a claim for interest, as this may be a considerable amount,
but practitioners should be aware that different rules apply to different heads of damage and
that there is no interest on future losses.

Ogden Tables (6th edn)
Judicial Studies Board, Guidelines for the Assessment of General Damages in Personal Injury Cases (OUP)
Recovery of Benefits and NHS Charges 245
CHAPTER 16
Recovery of Benefits and

NHS Charges

16.2 Recovery of benefits – key features of the system 246
16.3 Key definitions 246
16.4 Compensation subject to offsetting 247
16.5 Contributory negligence 249
16.6 Procedure 250
16.7 Exempt payments 251
16.8 Multiple defendants (‘compensators’) 252
16.9 Clinical negligence 252
16.12 Appeals system 252
16.13 Recovery of NHS charges 253
16.16 Overview of recovery of benefits 255
LEARNING OUTCOMES
• explain how the Compensation Recovery Unit (CRU) recovers benefits paid to a
claimant as a result of an accident or disease
• explain how the cost of NHS treatment provided to a claimant as a result of an
accident or disease is recovered from a defendant who is found liable
• identify which benefits may be set off against each head of damage by way of ‘like for
like’ offsetting
• describe the steps that each party must take in order to comply with the CRU system.
16.1 INTRODUCTION
Where a claimant has received State benefits as a result of an accident or disease and is
subsequently awarded compensation, the Department for Work and Pensions (DWP) will seek
to recover those benefits from the defendant (or his insurer) via a system operated by the
Compensation Recovery Unit (CRU). The CRU is also responsible for collecting from a
defendant the cost of any NHS treatment that a claimant has received following an accident.
The purpose of this chapter is to explain how these systems of recovery operate and how they
may affect a compensation payment.
16.2 RECOVERY OF BENEFITS – KEY FEATURES OF THE SYSTEM

The legislation on the recovery scheme is predominantly contained in the Social Security
(Recovery of Benefits) Act 1997 (‘the 1997 Act’). The key features of the scheme are as
follows:
(a) No person should be compensated twice in respect of the same accident or disease.
(b) A defendant cannot make a compensation payment (other than an exempt payment)
without first applying to the CRU for a Certificate. The defendant (or ‘compensator’)
must pay to the DWP an amount equal to the total amount of the recoverable benefits on
the Certificate when he pays compensation to the claimant.
(c) In some circumstances it may be possible for the compensator to deduct some or all of
the amount he has had to repay to the DWP from the compensation award (a practice
known as ‘offsetting’; see 16.4).
(d) The compensator is responsible for repayment of all relevant benefits paid to the injured
person, regardless of whether he is able to offset the full amount out of that person’s
damages. However, recovery of a lump sum paid cannot exceed the amount of
compensation paid.
The main regulations relevant to the scheme are found in the Social Security (Recovery of
Benefits) Regulations 1997 (SI 1997/2205), as amended by paras 148–152 of Sch 7 to the
Social Security Act 1998.
16.3 KEY DEFINITIONS

There are several key definitions in the 1997 Act:
16.3.1 The meaning of ‘compensation payment’

A compensation payment is a payment made by a person (whether on his own behalf or not)
to or in respect of any other person in consequence of any accident, injury or disease suffered
by the other (s 1 of the 1997 Act). This is a very wide definition and is designed to cover
payments made by the defendant or his insurer.
16.3.2 The meaning of ‘compensator’

The compensator means the person, company or agent who is paying the compensation,
usually an insurance company, on behalf of the insured.
16.3.3 The meaning of ‘recoverable benefit’

A recoverable benefit is any listed benefit which has been or is likely to be paid in respect of an
accident, injury or disease (s 1 of the 1997 Act).
‘Recoverable benefits’ are listed in Sch 2 to the 1997 Act and are reproduced at 16.4.2.
16.3.4 The meaning of ‘relevant period’

Recovery of benefits can occur only in respect of losses during what the 1997 Act terms ‘the
relevant period’.
The relevant period begins on:
(a) the day following an accident or injury; or
(b) in the case of a disease, the date on which a listed benefit was first claimed in
consequence of the disease.
The relevant period ends on:
(a) the day a compensation payment is made in final discharge of a claim; or
(b) the date five years after the relevant period begins, whichever comes first.
16.4 COMPENSATION SUBJECT TO OFFSETTING

16.4.1 Heads of damage subject to offsetting
Offsetting of recoverable benefits is allowed only against specified areas of loss. The three
specified areas subject to offsetting are:
(a) compensation for loss of earnings;
(b) compensation for cost of care; and
(c) compensation for loss of mobility.
Scope for offsetting is further limited by the fact that it is only allowed on a ‘like-for-like’ basis
(see below at 16.4.2).
Therefore, the overall effect of the legislation is that, in relation to benefits:
(a) it allows offsetting only against certain items of special damage; and
(b) it ensures that general damages for pain suffering and loss of amenity, loss of congenial
employment, handicap on the labour market and all future losses are protected from
offsetting.
The position in relation to lump sums, however, is different (see below at 16.4.3).
16.4.2 ‘Like-for-like’ offsetting

Having established that only special damages can be the subject of offsetting, Sch 2 to the
1997 Act further safeguards special damages as it allows only ‘like-for-like’ offsetting. This
means that only benefits which closely correspond to the relevant head of loss can be set
against damages awarded in respect of that head of loss, as set out in the table below. For
example, you will see that attendance allowance can be recouped only from compensation for
cost of care, and not from compensation for loss of earnings.
EXAMPLE
A claimant agrees to accept compensation totalling £100,000 which is broken down as
follows: £40,000 for pain, suffering and loss of amenity (PSLA), £30,000 for loss of
earnings, and £30,000 for the cost of care.
The Certificate shows that the claimant has received incapacity benefit totalling £5,000,
income support totalling £10,000 and attendance allowance amounting to £10,000.
The compensator (the defendant’s insurer) may not offset any of the benefits against the
PSLA element of the award, but may offset the incapacity benefit and income support
against the loss of earnings award. He therefore deducts a total of £15,000 from the loss of
earnings sum, leaving £15,000 to be paid to the claimant.
Similarly the compensator may offset the £10,000 attendance allowance against the
damages for cost of care, leaving £20,000 to be paid to the claimant.
The claimant has settled his claim for £100,000 but following offsetting he receives
£75,000 (he has already received the remaining £25,000 in benefits so double
compensation is avoided).
In addition to paying the claimant £75,000, the compensator must now pay £25,000 to the
DWP, representing the amount of recoverable benefits.
If compensation for cost of care is less than the amount actually paid out in listed benefits
during the relevant period, the claimant will receive nothing in respect of that head of loss;
however, any excess in benefits for cost of care which has not so far been offset, cannot be
offset against any other head of compensation. In this instance, the burden of paying off the
excess falls on the compensator (usually the insurance company) and will be refunded to the
DWP, so that the State will always achieve 100% recovery, the only question being how much
will be out of compensation, and how much will be paid by the compensator.
Table to illustrate like-for-like offsetting

Head of compensation Benefit
1. Compensation for earnings Disability Pension
lost during relevant period Employment and Support Allowance
Incapacity Benefit
Income Support
Industrial Injuries Disablement Benefit
Invalidity Pension and Allowance
Jobseeker’s Allowance
Reduced Earnings Allowance
Severe Disablement Allowance
Sickness Benefit
Unemployability Supplement
Unemployment Benefit
Universal Credit
2. Compensation for cost of care Attendance Allowance
incurred during the relevant Care Component of Disability Living Allowance
period Disablement Pension increase for Constant
Attendance Allowance
Exceptionally Severe Disablement Allowance
Living Component of Personal Independence
Payment
3. Compensation for loss of Mobility Allowance
mobility during the relevant Mobility Component of Disability Living Allowance
period Mobility Component of Personal Independence
Component
The DWP Leaflet Z1 provides further details of damages that do and do not fall within Sch 2
(see also case law such as Clenshaw v Tanner [2002] EWHC 184 (QB), dealing with housing
benefit, and Lowther v Chatwin [2003] EWCA Civ 729), and see also Eagle v Chambers [2004]
EWCA Civ 1033 concerning benefits and the claimant’s duty to mitigate.
In the case of Griffiths and Others v British Coal Corporation and the Department of Trade and Industry
[2001] 1 WLR 1493, it was held that an award of interest on damages for past loss of earnings
fell within the expression ‘compensation for earnings lost’ in Sch 2 to the 1997 Act and was
therefore subject to reduction on account of payments by the defendant to the DWP. In the same
case, it was also held that any compensation for services in the nature of care, gratuitously
rendered, fell within the term ‘compensation for cost of care incurred during the relevant
period’, and allowed the defendant to set off the benefits paid against the damages.
16.4.3 Lump sum payments

The Child Maintenance and Other Payments Act 2008 introduced changes to the Social
Security (Recovery of Benefits) Act 1997, which provides for the recovery of lump sum
payments. The lump sum payments covered by the scheme include:
(a) lump sum payments made under the Pneumoconiosis etc (Worker’s Compensation) Act
1979; and
(b) payments under the 2008 Diffuse Mesothelioma Scheme to people who have contracted
diffuse mesothelioma as a result of asbestos exposure in the UK.
In contrast to the system applied to benefits (see 16.4.2 above), under the provisions of the
Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008 the
compensator can deduct any amount in respect of a lump sum from any part of the
compensation award. However, lump sum payments must be offset against damages for pain
and suffering first. Furthermore, if the amount of compensation is less than the lump sum
payment, the CRU can only recover an amount up to the equivalent of the gross compensation
award. The compensator is liable to repay lump sum payments before repaying recoverable
benefits.
EXAMPLE
An award of compensation totalling £60,000 is agreed and broken down as follows:
£15,000 for pain, suffering and loss of amenity (PSLA), £25,000 in respect of loss of
earnings and £20,000 in respect of loss of mobility.
The CRU certificate lists lump sums totalling £20,000, Income Support totalling £15,000,
and Disability Living Allowance (Mobility Component) totalling £10,000.
The compensator must offset the £20,000 lump sum payment from the PSLA first, which
would leave an outstanding balance of £5,000. He may then offset from any of the
remaining heads of damage, ie the compensator may offset the outstanding balance of
£5,000 plus the £15,000 Income Support from the loss of earnings head of damage and
the £10,000 DLA (Mobility) from the loss of mobility head of damage.
The claimant has settled his claim for a total of £60,000. Following offsetting, he receives
£15,000 from the compensator in addition to the £45,000 he has already received from the
state benefits system. Double compensation is thereby avoided.
The compensator pays £15,000 to the claimant and £45,000 to the CRU representing the
amount of recoverable benefits and lump sums.
16.5 CONTRIBUTORY NEGLIGENCE

Since ‘compensation payment’ is defined as the sum falling to be paid to the claimant, it
follows that the relevant sum from which benefits can be deducted is that which is paid to the
claimant after any deduction for the claimant’s contributory negligence. However, the
compensator remains liable to pay the full amount of any benefits listed on the certificate
regardless of contributory negligence (Williams v Devon County Council [2003] EWCA Civ 365).
This may have the result after trial that the compensator has to pay a total sum in excess of
that which the court has awarded by way of damages.
EXAMPLE
Assume that on a full liability basis the claimant’s damages are valued at £10,000 for pain,
suffering and loss of amenity (PSLA) and £10,000 for loss of earnings (LE), and that the
certificate of recoverable benefit shows that he has received £7,500 in incapacity benefit.
If the claimant is 25% contributorily negligent, the calculation is as follows:
Total damages awarded £15,000 (£7,500 PSLA plus £7,500 LE)
Benefits deducted £7,500 (from LE award)
Defendant pays claimant £7,500
Defendant repays benefits to CRU £7,500
If the Claimant is 50% contributorily negligent, the calculation is as follows:
Total damages awarded £10,000 (£5,000 PSLA plus £5,000 LE)
Benefits deducted £5,000 (from LE award)
Defendant pays claimant £5,000

Defendant repays benefits to CRU £7,500
In this second calculation, as a result of the finding of 50% contributory negligence, the
amount of recoverable benefits now exceeds the sum awarded for the relevant head of
damage (LE) against which they can be deducted. However, the defendant must still repay
the full amount of benefits to the CRU.
16.6 PROCEDURE
16.6.1 Notifying the CRU
(a) Section 4 of the 1997 Act requires the compensator to inform the CRU not later than 14
days after receiving the claim.
The notification is made on Form CRU 1 which is sent to the CRU. The information
required by the compensator to complete Form CRU 1 includes:
(i) the full name and address of the claimant;
(ii) (if known) the date of birth and National Insurance number of that person;
(iii) the date of the accident or injury (or in the case of disease, the date of diagnosis);
(iv) the nature of the accident, injury or disease (as alleged by the claimant);
(v) (if known) the name and address of the claimant’s employer and his payroll
number at the relevant time;
(vi) the name and address of any NHS hospital the claimant has attended as a result of
the accident.
(b) On receipt of Form CRU 1, the CRU will send Form CRU 4 to the defendant. This has a
two-fold function:
(i) it acknowledges receipt of the notification of claim; and
(ii) the compensator should retain it safely on the file as it will be needed later to
obtain the Certificate (ie, the details of the benefit paid or to be paid to the
claimant).
(c) The claim then progresses to the settlement stage.
(d) When ready to make an offer of compensation, the compensator submits Form CRU 4
to obtain a Certificate.
(e) The CRU acknowledges receipt of Form CRU 4 (within 14 days).
(f ) The CRU sends the Certificate to the compensator. A copy will also be sent to the
claimant’s solicitor. The compensator will then settle the compensation claim and pay
the relevant amount to the CRU within 14 days of the settlement. The compensator will
also complete and send to the CRU Form CRU 102 detailing the outcome of the claim.
Despite the requirement that the CRU be informed of the claim within 14 days of notification
of the claim, this is sometimes overlooked by insurance companies. If proceedings are issued
and the insurer instructs solicitors, Form CRU 1 should be completed immediately, if this has
not already been done. In such circumstances, it may be appropriate for the address of the
compensator given on Form CRU 1 to be care of the solicitors, to ensure that the Certificate is
forwarded to the solicitors, who are likely to make the compensation payment to the
claimant.
When the matter is lodged with the CRU, the claimant’s solicitor will be notified and a Form
CRU 4R will also be sent to the claimant’s representative, which can be used to obtain benefit
information (the claimant’s solicitor can also obtain benefit details by writing to the DWP). It
is important that, prior to negotiating any settlement or accepting any payment into court, the
claimant himself examines the benefit details to ensure that they are correct. It is therefore
essential to send a copy of the CRU certificate to the client.
16.6.2 The Certificate

The provision central to the whole system is that no compensation is to be paid until the
defendant has obtained a Certificate setting out the recoverable benefits and lump sums. If
compensation is paid without obtaining a Certificate, the CRU can still take steps against the
defendant to recover the benefits.
The defendant obtains the Certificate by completing and returning Form CRU 4 to the CRU.
The defendant must ensure that all the information required by Forms CRU 1 and CRU 4 is
given, after which the CRU will acknowledge the form in writing and send the Certificate to
the defendant and a copy to the claimant.
The Certificate details:
(a) the amount of relevant benefits paid or likely to be paid by a specified date;
(b) the details of any continuing benefit;
(c) the amount of each recoverable lump sum;
(d) the amount to be repaid in the event of a compensation payment being made;
(e) the date the certificate ceases to be valid.
An example of a Certificate may be found at Appendix 1(16).
16.7 EXEMPT PAYMENTS

Schedule 1, Pt 1 to the 1997 Act and reg 2 of the Social Security (Recovery of Benefits)
Regulations 1997, list the payments which are exempt from offsetting under the Act. These
include payments by or under the following:
(a) the FAA 1976;
(b) Criminal Injuries Compensation Authority payments;
(c) vaccine damage payments;
(d) the Macfarlane Trust (established partly under funds from the Secretary of State to the
Haemophilia Society) the Eileen Trust and the trust established for persons suffering
from variant Creutzfeld-Jakob disease;
(e) British Coal, in accordance with the NCB Pneumoconiosis Compensation Scheme;
(f ) cases of hearing loss, where the loss is less than 50db in one or both ears;
(g) the National Health Service (Injury Benefits) Regulations 1974 (SI 1974/1547) and
subsequent amendments;
(h) criminal court compensation orders, s 35 of the Powers of Criminal Courts Act 1973;
(i) certain trust funds (in particular ‘disaster funds’, where more than half of the fund is
raised by public subscription);
(j) certain private insurance contracts between the victim and his insurer entered into
before the contract;
(k) any redundancy payment already accounted for in the assessment of damages;
(l) any amount which is referable to costs;
(m) any contractual amount paid to an employee by an employer in respect of incapacity for
work (eg, occupational sick pay);
(n) any small payment, as defined in Pt II of Sch 1 to the Social Security (Recovery of
Benefits) Act 1997. There are currently no small payment exceptions;
(o) payment made from the Skipton Fund for the benefit of certain persons suffering from
hepatitis C;
(p) payments made from the London Bombings Relief Charitable Fund established for the
benefit of victims, families or dependants of victims of the terrorist attacks carried out
in London on 7 July 2005.
16.8 MULTIPLE DEFENDANTS (‘COMPENSATORS’)

In certain cases, the claimant will sue two or more defendants, and as such, all defendants are
jointly and severally liable to reimburse the CRU. However, in practice, it is usual for a sharing
agreement to be made as between defendants, whereby the defendants reach an agreement as
to how they are to pay the claimant and the CRU.
16.9 CLINICAL NEGLIGENCE

The rules relating to the recovery of benefit apply to clinical negligence claims. Due to their
complexity, especially with regard to causation, the CRU has set up a specialist group to deal
with the claims, and makes a special request that compensators inform the CRU about
clinical negligence claims as soon as the pre-action correspondence is received.
16.10 PART 36 OFFERS

A party who wishes to make a Part 36 offer must first apply for a Certificate of Recoverable
Benefit (see 16.6.2) from the CRU.
Rule 36.15(3) requires a defendant who makes an offer to state whether or not the offer is
intended to include any deductible benefits.
Rule 36.15(6) requires the offer to state:
(a) the amount of the gross compensation;
(b) the name and amount of any deductible benefit by which that gross amount is reduced;
and
(c) the net amount of compensation after the reduction.
Although Part 36 does not spell it out, guidance from case law suggests that the offer should
therefore particularise the various heads of damage and indicate the amount of benefits to be
deducted against each head (Williams v Devon County Council [2003] EWCA Civ 365).

It should be noted that if an interim payment is made, the compensator is liable to repay any
relevant recoverable benefits at that stage. Therefore a Certificate of Recoverable Benefit (see
16.6.2) should be obtained before any voluntary payment or hearing of an application for an
interim payment takes place.
16.12 APPEALS SYSTEM

An appeal may be made on the grounds that:
(a) any amount, rate or period in the Certificate is incorrect;
(b) the Certificate shows benefits or lump sums not paid in consequence of the accident,
injury or disease;
(c) benefits and or lump sums listed have not been paid to the injured person;
(d) the compensation payment made was not as a consequence of the accident, injury or
disease.
An appeal can be made only after final settlement of the compensation claim and payment of
the recoverable benefits has been made. The basic time limit for the appeal is one month from
the date on which the compensator makes the full payment of recoverable benefits; it is dealt
with by an independent tribunal administered by the Appeals Service.
An appeal can be made by:
(a) the person who applied for the certificate, ie, the compensator; or
(b) the injured person whose compensation payment has been reduced.
There is a less formal procedure that can be adopted, known as a ‘review’. This can be
requested at any time, and as a result the CRU will look at the matter again and clear the
benefits that are listed as recoverable.
16.13 RECOVERY OF NHS CHARGES

The CRU operates a similar recovery scheme on behalf of the Government in respect of the
cost of NHS treatment given as a result of an accident. Initially the scheme applied only to
road traffic accidents, but this was expanded to include all types of accident as from 29
January 2007. The main details of the scheme are as follows.
16.13.1 Key features of the scheme

The legislation is contained in the Road Traffic (NHS Charges) Act 1999 (‘the 1999 Act’) and
the Health and Social Care (Community Health and Standards) Act 2003 (‘the 2003 Act’). The
purpose of this legislation is to provide a national administration system, the aim of which is
to ensure that costs of treatment are, in fact, recovered in as many cases as is possible.
The 1999 Act allows for recovery of NHS treatment charges as a result of a road traffic accident
which occurs on or after 5 April 1999. This includes MIB cases. It allows for NHS charges to be
calculated according to a tariff. The tariff allows for:
(a) a set fee for patients treated in A&E departments or out-patient clinics (the fee will be
the same regardless of the number of out-patient appointments);
(b) a daily rate for patients admitted to hospital.
Part 3 of the 2003 Act makes provision for an expanded scheme to recover the costs of
providing treatment to an injured person where that person has made a successful personal
injury compensation claim against a third party. This allows recovery of NHS hospital costs in
all cases where personal injury compensation is paid, not just following road traffic accidents,
but also, for example, following accidents at work. It applies to all accidents which occur on or
after 29 January 2007.
The expanded scheme builds on the existing scheme introduced by the 1999 Act. In addition,
the 2003 Act allows the recovery of NHS ambulance service costs for the first time. The
scheme applies to injuries only; diseases are excluded from the scheme, unless the disease in
question has been contracted as a direct result of an injury that falls within the scope of the
scheme. Costs of treatment given by general practitioners in the primary care setting are also
not included in the scheme.
16.13.2 Procedure
In many ways, the NHS costs recovery scheme mirrors the benefit recovery scheme
considered above. However, unlike the benefit recovery scheme, the NHS costs recovery
scheme will not affect the amount of damages recovered by the claimant, and if the injury
occurs on or after 29 January 2007, the 2003 Act makes provision to take into account
contributory negligence, eg a finding of 25% contributory negligence will reduce the NHS
charges by 25%.
The procedure to follow is as follows:
(a) The compensator will apply to the CRU in the usual way by completing Form CRU 1, and
must ensure that the form contains the name and address of the hospital where
treatment was provided.
(b) The CRU will send Form CRU 4 to the compensator to acknowledge receipt of Form
CRU 1.
(c) The case progresses to the settlement stage.
(d) When ready to make an offer to the claimant, the compensator submits Form CRU 4.
(e) The CRU will provide a Certificate of NHS Charges at the same time as the Certificate of
Recoverable Benefit. The Certificate of NHS Charges will specify the name of the NHS
Trust or Health Board where the treatment took place, the number of days’ admission,
the appropriate NHS treatment and ambulance charges.
(f ) The compensator must pay to the CRU the amount shown on the Certificate of NHS
Charges within 14 days of making the compensation payment.
The appeal and review procedures for NHS costs recovery are designed to mirror the appeal
and review provisions governing benefit recovery under the Social Security (Recovery of
Benefits) Act 1997, as to which, see 16.12 above.
16.14 CONCLUSION
Solicitors should exercise care when dealing with this area, to ensure that it is clear whether
any offer put forward is net or gross of benefits, and that the benefit figures are correct. In
Hilton International v Martin-Smith [2001] LTL, 12 February, it was held that where a party made
an error of judgement (in this case, in relation to the amount stated on the Certificate), it did
not follow that the court would permit that party to escape its consequences. Similarly,
solicitors acting for defendants also need to ensure that benefits listed as recoverable benefits
are as a consequence of the accident (see Eagle Star Insurance v Department of Social Development
(Northern Ireland) (only persuasive) (2001) NICE, 12 February). See also Williams v Devon County
Council [2003] EWCA Civ 365, [2003] All ER (D) 255 (Mar), concerning details to be included
on a Part 36 notice; and Bruce v Genesis Fast Food Ltd [2003] EWHC 788, concerning whether
defendants are entitled to take the benefit of any reduction in recoverable benefits when an
appeal takes place.
An overview of the recovery of benefits system is set out at 16.16 below.

DWP Leaflet Z1, Recovery of benefits and or lump sums and NHS charges
16.16 OVERVIEW OF RECOVERY OF BENEFITS
Claimant is injured and informs the defendant of the potential claim
Defendant informs his insurance company of the claim; insurance company sends
CRU 1 to CRU
Claim is investigated etc – liability and quantum issues
Will the case be settled or will it proceed to trial?
Settled Trial
The compensator will submit CRU 4 The defendant may lose at trial so
and obtain details of the benefits and must still obtain the relevant benefit
or lump sums paid to the claimant information by submitting CRU 4
The compensator will examine the If claimant If defendant

special damages obtained by the wins at trial wins at trial –
claimant and the certificate of no payment
recoverable benefit from the CRU. For will be made to
example, there is a loss of earnings claimant
claim of £10,000 and the claimant has
received incapacity benefit of £1,000.
The compensator will make a Defendant
payment of £9,000 in respect of the notifies CRU of
loss of earnings claim to the claimant outcome by
submitting
CRU 102. No
Compensator will pay compensation benefits are
payment to the claimant recovered
Compensator pays the amount

deducted from the compensation
payment to the CRU (in our example
£1,000) and submits CRU 102
Post-death Investigations 257
CHAPTER 17
Post-death Investigations

17.2 Inquests 257
17.3 Criminal prosecutions 268
17.4 Conclusion 273
17.6 Investigating fatal accidents 274
LEARNING OUTCOMES
• explain the purpose of an inquest
• take appropriate steps to prepare to represent a client at an inquest
• understand the procedure involved and verdicts that may be given at an inquest
• advise on the possible criminal prosecutions that might follow a fatal accident.
17.1 INTRODUCTION
The personal injury/clinical negligence solicitor must, on occasion, advise either the family of
an accident victim who has died, or the person who it is claimed is responsible for the death.
There are two main processes in which the solicitor may become involved:
(a) the coroner’s inquest; and
(b) a criminal prosecution for:
(i) manslaughter (corporate or individual);
(ii) death by dangerous or careless driving; or
(iii) offences under the HSWA 1974.
Although each process has its own purpose, post-death investigations offer an important
opportunity to gain evidence on liability for the civil claim, and we consider both processes
below.
17.2 INQUESTS
17.2.1 The Coroners and Justice Act 2009
There has been pressure for many years for reform of the coroner system. This has largely
been due to a series of high-profile disasters, such as Hillsborough in 1989, where the
coroner’s verdict at the inquest into the deaths of the 96 victims was simply ‘accidental death’,
which meant that no one has ever properly been held to account. After years of campaigning
by the Hillsborough families, those verdicts were eventually quashed by the High Court in
December 2012 and new inquests into the Hillsborough deaths will take place in 2014.
In the 1990s, coroners came under further, intense public scrutiny for their actions. For
example, there were many concerns raised over the coroner in the Marchioness disaster, who
ordered the hands of the victims to be cut off for identification purposes. Then there was the
Shipman case, where the faking of patients’ death certificates brought home the
shortcomings of the death certification process.
The Shipman Inquiry (2003) and the Fundamental Review of Death Certification and
Investigation (2003) found the level of service provided to bereaved people was inconsistent;
family and friends were not always involved in coroners’ investigations; there was a lack of
leadership and training for coroners; and there was insufficient medical knowledge in the
system as a whole.
After years of consultation, the Coroners and Justice Act 2009 (CJA 2009) finally came into
force on 25 July 2013, together with three new sets of rules which regulate the day-to-day
conduct of inquests:
• Coroners (Inquests) Rules 2013 (SI 2013/1616) (the ‘Inquests Rules’);
• Coroners (Investigations) Regulations 2013 (SI 2013/1629) (the ‘Investigations
Regulations’); and
• Coroners Allowances, Fees and Expenses Regulations 2013 (SI 2013/1615) (the
‘Expenses Regulations’).
The CJA 2009 introduces a national coroner service for England and Wales, headed by a new
Chief Coroner, HHJ Peter Thornton QC. The intention behind the CJA 2009 is to improve the
experience of bereaved people coming into contact with the coroner system, giving them
rights of appeal against coroners’ decisions and setting out the general standards of service
they can expect to receive. It is hoped that the new system will be simpler and quicker and will
result in a coroner service that meets both the interests of bereaved families and the wider
public interest in terms of the quality and effectiveness of investigations. The system also aims
to ensure that the knowledge gained from death investigation is applied for the prevention of
avoidable death and injury in the future.
17.2.2 What is an inquest?

An inquest is a fact-finding inquiry to establish:
• who has died; and
• how, when and where the death occurred.
It is important to understand that the purpose of an inquest is not to establish any matter of
liability or blame. Although it receives evidence from witnesses, an inquest does not have
prosecution and defence teams, like a criminal trial; the coroner and all those with ‘proper
interests’ simply seek the answers to the above questions.
An inquest is usually opened soon after a death to record that a death has occurred, to identify
the deceased, and to enable the coroner to issue the authority for the burial or cremation to
take place without any unnecessary delay. It will then be adjourned until any other
investigations and any inquiries instigated by the coroner have been completed. It will usually
take an average of 27 weeks to conclude this work, but some cases can take longer than this if
the inquiries prove to be complicated. The inquest will then be resumed and concluded.
Under the old system, it could sometimes take years before an inquest was held, but r 8 of the
Inquests Rules now states that a coroner must complete an inquest within six months of the
date on which the coroner is made aware of the death, or as soon as is reasonably practicable
after that date.
Sometimes, the coroner may hold one or more hearings before the inquest itself, known as
pre-inquest hearings (or pre-inquest reviews), where the scope of the inquest and any matters
of concern, including about the arrangements for the hearing, can be considered. The coroner
usually invites the properly interested persons and/or their legal representatives to the pre-
inquest hearing, where they have the opportunity to make representations to the coroner.
17.2.3 Personnel involved at an inquest

17.2.3.1 The coroner
The coroner is responsible for the inquest procedure, and although appointed by the local
government body responsible for the area where the coroner sits (subject to the consent of the
Chief Coroner and the Lord Chancellor), he is an independent judicial officer. To be eligible
for appointment as a coroner, a person must now have possessed a relevant legal qualification
(barrister/solicitor) for a period of five years. A number of coroners are qualified both as
doctors and solicitors/barristers, although this is not a strict requirement of obtaining the
post. Those who are legally qualified only normally have significant knowledge of medical
matters.
In certain cases, the coroner may sit with an ‘assessor’, who is a person with specialist
knowledge of the matters being considered, for example a consultant anaesthetist in a case
where a patient died due to an airway not being maintained. However, the assessor must
remain under the control of the coroner and cannot give expert evidence (see R v Surrey Coroner,
ex p Wright [1997] 2 WLR 16).
17.2.3.2 The coroner’s officer

The coroner is assisted by the coroner’s officer, who is usually a serving or ex-police officer
and is often the first person with whom the personal injury solicitor will communicate about
the case. The coroner’s officer will obtain evidence relating to the accident, or liaise with the
police if they are carrying out investigations. His role is important to the solicitor, as he can
provide information regarding the investigations which are being carried out and details of
the incident, and may provide details of any witnesses the coroner intends to call.
The coroner’s officer will notify the relevant parties and/or their solicitors of the inquest date.
17.2.3.3 The assistant coroner

There is one senior coroner for each coroner area, assisted by one or more assistant coroners,
who normally stand in when the senior coroner is absent. An assistant coroner will have the
same qualifications as a senior coroner but will usually be part time and paid a fee for sitting
rather than a salary.
17.2.4 Circumstances which lead to an inquest

The circumstances in which a coroner will become involved in a death are set down in s 1 of
the CJA 2009.
If the senior coroner is informed that a dead body is within his jurisdiction (it is the fact that
there is a body in his jurisdiction and not where the death occurred that is important), the
coroner must as soon as practicable conduct an investigation into the person’s death, if the
coroner has reason to suspect that a person has died:
(a) a violent or unnatural death; or
(b) where the cause of death is unknown; or
(c) while in custody or otherwise in state detention.
A violent death is normally regarded as one where an injury has occurred, and will normally be
apparent, for example when a factory operative falls into machinery and dies.
An unnatural death is not legally defined and it will be a question for the coroner to decide.
Certain coroners believe that the phrase should be given its ‘ordinary meaning’.
The coroner decides whether the death is natural or unnatural at his discretion, and this
decision may need to be challenged. For example, in R v Poplar Coroner, ex p Thomas [1993] 2
WLR 547, a woman died following an asthma attack after there had been a considerable delay
in an ambulance reaching her. There was evidence that if she had reached hospital earlier, she
might have survived. Was this an unnatural death? The Court of Appeal overturned the
decision of the Divisional Court that it was an unnatural death and stated that ‘unnatural’ was
an ordinary word, the meaning of which should be left to the coroner (unless his decision was
unreasonable). If a solicitor believes that the death was unnatural, the coroner’s officer must
be contacted immediately and informed of the solicitor’s interest.
Normally, the police, the GP or the hospital will contact the coroner’s officer and inform the
coroner of the death. However, on occasion, the relatives of the deceased will contact the
coroner’s officer, for instance if they believe that there has been an act of clinical negligence.
Once the coroner has been informed of the death, the coroner’s officer will make preliminary
enquiries, and the coroner may then require a post-mortem examination to be made.
Section 6 of the CJA 2009 provides that a senior coroner who conducts an investigation into a
person’s death must (as part of the investigation) hold an inquest into the death. However, s 4
of the CJA 2009 provides an exception to this rule where a post-mortem examination reveals
the cause of death before the inquest begins and the coroner thinks that it is not necessary to
continue the investigation. This power to discontinue cannot be used where the deceased
died a violent or unnatural death or died in custody. A senior coroner who discontinues an
investigation into a death under s 4 must, if requested to do so in writing by an interested
person, give to that person as soon as practicable a written explanation as to why the
investigation was discontinued.
17.2.5 Post-mortem examinations

Although no absolute obligation is placed upon the coroner, usually he will request that a
post-mortem takes place.
Section 14 of the CJA 2009 states that where it is alleged that the death was caused wholly or
partly by clinical negligence of a medical practitioner, that practitioner:
(a) must not make, or assist at, an examination under this section of the body; but
(b) is entitled to be represented at such an examination.
The coroner must inform the relatives of the deceased, the GP and the hospital (if the
deceased died in hospital) of the arrangements for the post-mortem. These are normally
referred to as the ‘interested parties’ and they may be represented at the post-mortem by a
doctor.
The post-mortem report is vital evidence, and an immediate request should be made to the
coroner for a copy. The report may contain evidence which will assist in establishing civil
liability. For example, if the death resulted from a road traffic accident, the pathologist will
give a detailed description of the injuries, and photographs will be taken of the body. The
pathologist’s investigations in respect of this may be vital in indicating the events which
occurred prior to the accident, for example whether the deceased was wearing a seat belt. In
fatal accident at work cases, the pathologist’s report may also be of use in identifying whether
the cause of the death resulted from exposure to dangerous materials at work, such as coal
dust or asbestos.
If acting for the defendant, the post-mortem may reveal whether there are any intervening
illnesses from which the deceased may have died. This may then be used in negotiations, in an
attempt to reduce the multiplier in the dependency calculation (see Chapter 18). In addition,
in a road traffic case, it is important to check the blood alcohol levels to see if the deceased
had been drinking at the time of the accident. Such evidence may provide important
arguments regarding liability and quantum.
17.2.6 Funding representation at the inquest

The Lord Chancellor has issued guidance on Exceptional Funding for Inquests under s 10 of
LASPO 2012. This provides that it may still be possible for a solicitor (with an appropriate
contract) to provide assistance to a member of the deceased family under the Legal Help
scheme for the initial preparations for an inquest. Legal Help can cover all of the preparatory
work associated with the inquest, which may include preparing written submissions to the
coroner. Legal Help can also fund someone to attend the inquest as a ‘Mackenzie Friend’, to
offer informal advice in court, provided that the coroner gives permission.
Funding for representation at an inquest is not generally available because an inquest is a
relatively informal inquisitorial process, rather than an adversarial one. There are two grounds
for granting legal aid exceptionally for representation at an inquest:
(a) it is required by Article 2 of the ECHR; or
(b) where the Director makes a ‘wider public interest determination’ in relation to the
individual and the inquest.
Article 2 inquests are dealt with below at 17.2.17. A ‘wider public interest determination’ is a
determination that, in the particular circumstances of the case, the provision of advocacy for
the individual for the purposes of the inquest is likely to produce significant benefits for a
class of person, other than the applicant and members of the applicant’s family. In the context
of an inquest, the most likely wider public benefits are the identification of dangerous
practices, systematic failings or other findings that identify significant risks to the life, health
or safety of other persons.
In general, applicants for legal aid must satisfy the eligibility limits as set out in regulations.
However, there is a discretion to waive the financial eligibility limits relating to inquests if, in
all the circumstances, it would not be reasonable to expect the family to bear the full costs of
legal assistance at the inquest. Whether this is reasonable will depend in particular on the
history of the case and the nature of the allegations to be raised against agents of the state, the
applicant’s assessed disposable income and capital, other financial resources of the family,
and the estimated costs of providing representation.
As legal aid is only available in exceptional cases, all possible alternative sources of finance
should be considered (eg, in a fatal road traffic accident, the deceased’s legal expenses
insurance may cover the cost of representation for the estate). Immediate enquiries must be
made in respect of any claim on any insurance policy and, if appropriate, prior authorisation
should be obtained from the insurer. Enquiries should also be made as to whether a trade
union will fund representation at the inquest, or whether any pro bono service may be able to
provide assistance.
Interestingly, in the case of King (Administratrix of the Estate of Robert Gadd deceased) v Milton Keynes
General NHS Trust [2004] LTL, 4 June, it was held that when assessing the costs of civil
proceedings, the court did have jurisdiction to award the costs of attending at an inquest if the
material purpose was to obtain information or evidence for use in civil proceedings. Similarly,
in Stewart and Hubbard v Medway NHS Trust [2004] LTL, 20 September, the cost of counsel
attending an inquest in a clinical negligence case was held to be recoverable. More recently, in
Roach v Home Office [2009] EWHC 312 (QB), it was held that the costs of attendance at an
inquest by both solicitor and counsel were recoverable as costs incidental to subsequent civil
proceedings.
If there is a possibility of a clinical negligence claim being brought, any doctor who is required
to give evidence will be represented by the NHSLA solicitors or his defence union. Similarly,
in a personal injury case, if a civil claim is likely to follow as a result of the death, the employer
(eg, in a factory accident) or the driver of the other vehicle (in a road traffic accident) will be
represented by solicitors instructed by their respective insurers.
17.2.7 Preparation for the hearing

Rule 13 of the Inquests Rules provides that, where an interested person asks for disclosure of
a document, the coroner must provide that document as soon as is reasonably practicable.
This includes post-mortem examination reports, any other report provided to the coroner
during the course of the investigation and any other document the coroner considers relevant
to the investigation.
In some cases, the coroner may hold a ‘pre-inquest review’ to allow the parties and the
coroner to consider matters prior to the actual inquest. The coroner may summarise the
evidence that he proposes to call and give the parties the opportunity to suggest any other
witnesses that they may wish to call.
Normally, statements will be taken from the proposed witnesses by the coroner’s officer or
police, and it can be of considerable advantage if these can be obtained beforehand.
It is also important to make enquiries of such bodies as the police, trade union or HSE, which
may be able to provide general background information. The more information that is
obtained prior to the hearing the better.
When the pathologist gives evidence, he will undoubtedly use medical language, and it is
important that the solicitor is able to understand the evidence which is given. Thus, research
should be carried out prior to the inquest, so as to become familiar with the potential medical
terms that may be used. Consideration should also be given to making a request that blood
and tissue samples taken at the post-mortem are preserved, as they may provide important
information
In a clinical negligence case, the deceased’s medical records should be obtained (see Stobart v
Nottingham Health Authority [1992] 3 Med LR 284). Once received, they should be placed in an
ordered, paginated file, and legible copies made. If the solicitor is instructed by an insurance
company on behalf of the deceased’s estate, in-depth research should be carried out into the
nature of the illness, the usual treatment which is prescribed for the illness, and the usual
consequences of and recovery time for the illness. This research will include relevant medical
literature, and copies should be taken of any appropriate material. Medical school libraries are
generally very helpful with this form of research, and can provide assistance and copying
facilities. Research may reveal whether the treatment fell below the level which can be
expected and required of the medical staff.
In addition, a solicitor may seek assistance from an expert who can advise him on how to
examine any medical experts giving evidence on behalf of the doctor. Informed examination
will test a witness’s evidence, and may be useful if civil proceedings are later issued. It is
important for the claimant’s solicitor to make such detailed preparation, because solicitors
acting for a doctor will be experienced in this field and have access to a wide range of sources,
including many experts.
17.2.8 Procedure at the inquest

The inquest is formally opened without any significant evidence being given, and the
formalities are carried out by the coroner sitting alone (who, for example, will take initial
evidence, evidence of identification of the body, issue an order for disposal of the body and
adjourn until a more suitable time). Evidence will be called concerning the death at the
resumed full hearing, with legal representatives for both sides attending. If appropriate, a jury
(see 17.2.9) will also be in attendance at that time.
Schedule 1 to the CJA 2009 sets out several situations in which a coroner may suspend an
investigation and inquest into a death. These relate to when it is likely that certain criminal
proceedings will be brought (eg, murder, manslaughter or death by careless or dangerous
driving). Rule 25(4) of the Inquests Rules states that a coroner must adjourn an inquest and
notify the Director of Public Prosecutions if, during the course of an inquest, it appears to the
coroner that the death of the deceased is likely to have been due to a homicide offence and
that a person may be charged in relation to that offence.
In such a case, the claimant’s solicitor should attend the criminal proceedings and take notes
of the trial (see below), as useful evidence may be obtained which can assist in identifying any
civil liability for the death.
The majority of evidence at the resumed inquest will usually be given orally by witnesses on
oath, but the coroner has power to admit documentary evidence if he believes that the
evidence is unlikely to be disputed. However, it is possible to object to such a decision, and a
solicitor should do this where he believes that a witness should be called to answer questions
(see also R (Bentley) v HM Coroner for Avon [2001] EWHC 170 (Admin), [2001] LTL, 23 March).
Rules 17 and 18 of the Inquests Rules provide that a coroner may direct that evidence is to be
given by video link or from behind a screen when it is in the interests of justice or national
security to do so.
The actual order of calling the witnesses lies entirely within the discretion of the coroner.
However, it is often the pathologist who is the first substantive witness to give evidence. The
coroner will normally then examine each witness so that the evidence is heard in the same
order as the events leading to the death occurred. The solicitor should make careful notes, as
these witnesses may need to be contacted in relation to a potential civil claim. If the witness
does not give evidence in accordance with his previous written statement to the coroner, and
the interested party is not aware of this, then the coroner must deal with this point (see R v HM
Coroner for Inner London North District, ex p Cohen (1994) 158 JP 644, DC). Once the coroner has
dealt with the witness, each interested party (or his legal representatives) will be allowed to
question him. A witness is examined by his own representative last (Inquests Rules, r 21).
An ‘interested person’ entitled to examine witnesses at an inquest includes:
(a) a spouse, civil partner, partner, parent, child, brother, sister, grandparent, grandchild,
child of a brother or sister, stepfather, stepmother, half-brother or half-sister;
(b) a personal representative;
(c) a medical examiner exercising functions in relation to the death of the deceased;
(d) any beneficiary under a policy of insurance issued on the life of the deceased;
(e) the insurer who issued such a policy of insurance;
(f ) any person whose act or omission, or that of his agent or servant, may, in the opinion of
the coroner, have caused, or contributed to, the death of the deceased, or whose
employee or agent may have done so;
(g) any person appointed by a trade union to which the deceased belonged at the time of his
death, if the death of the deceased may have been caused by an injury received in the
course of his employment or by an industrial disease;
(h) a person appointed by, or a representative of, an enforcing authority, or any person
appointed by a government department to attend the inquest;
(i) the chief officer of police;
(j) any other person that the senior coroner thinks has a sufficient interest.
The questioning of witnesses at the inquest can be a difficult matter as the strict purpose of
the inquest is limited to finding:
(a) who the deceased was;
(b) how, when and where the deceased came by his death;
(c) the particulars required by the Registration Acts to be registered concerning the death.
The Divisional Court has repeatedly reaffirmed that these are the only matters with which the
coroner’s court is concerned, and the coroner will wish to concentrate on these fundamental
points. However, there can be no doubt that many solicitors attend the inquest with a slightly
wider agenda, that of trying to identify who was liable for the death and to examine the
evidence surrounding the case. Much will depend upon the individual coroner as to the types
of questions which are allowed, but the coroner will always limit questions concerned with
civil liability.
To prevent the inquest apportioning blame, r 22 of the Inquests Rules specifically provides
that a witness is not obliged to answer any questions tending to incriminate himself. The
witness may be called to the witness box and asked merely to give his name and address. On
occasion, no further questions will be put to him. However, practice varies widely on this
point, and in R v Lincolnshire Coroner, ex p Hay (1999) 163 JP 666, it was held that the privilege
against self-incrimination did not give the witness complete immunity against further
questioning. The privilege against self-incrimination is against criminal proceedings (and not
civil proceedings), and this should be borne in mind when the coroner is deciding if the
witness is entitled to claim self-incrimination. The solicitor may have to remind the coroner
about this point. If the coroner allows the witness to be questioned, it is for the witness’s
representative to make the objection if a question is put which might lead to self-
incrimination. If the witness answers the question, he will waive the privilege.
17.2.9 Juries
Section 7 of the CJA 2009 sets out the circumstances in which a senior coroner is required to
hold an inquest into a death with a jury. It also gives the coroner the power to decide to hold
an inquest with a jury in any case where he thinks there is sufficient reason.
The general rule is that an inquest must be held without a jury. Subsections (2) and (3) set out
the exceptions to this rule. A jury must be summoned where:
(a) the deceased died while in custody or otherwise in state detention, and the death was
violent or unnatural, or of unknown cause;
(b) where the death was as a result of an act or omission of a police officer or member of a
service police force (defined in s 48) in the purported execution of his duties; or
(c) where the death was caused by an accident, poisoning or disease which must be
reported to a government department or inspector. This includes, for example, certain
deaths at work.
Although a jury is not required in any other case, the coroner will be able to summon one in
any case where he believes there is sufficient reason for doing so.
Section 8 of the CJA 2009 provides that the jury must consist of between seven and 11 people.
The senior coroner calls people to attend for jury service by issuing a summons stating the
time that they are needed and the place that they must attend. At the outset, the coroner will
require jury members to swear they will make a true determination according to the evidence.
A jury will initially be directed by the senior coroner to reach a unanimous determination or
finding. If the coroner thinks that the jury have deliberated for a reasonable time without
reaching a unanimous verdict, under s 9(2) of the CJA 2009, he may accept a determination or
finding on which the minority consists of no more than two persons. The jury spokesperson
should announce publicly how many agreed. If there is no agreement by the required number
of jurors, the coroner may discharge the jury and summon a completely new jury and the case
will be heard again.
17.2.10 Summing up and directions to the jury

If a jury are present, the coroner will sum up the evidence to the jury after the witnesses have
given evidence and will direct the jury on points of law. In R v HM Coroner for Inner London South
District, ex p Douglas-Williams (1998) 162 JP 751, it was held that, in complex cases, it would be
good practice for the coroner to prepare a written statement of matters which the law requires
in relation to possible verdicts. If such a policy is followed, a solicitor should ask to inspect the
statement prior to summing up. If no jury are present, the coroner normally sums up by
means of a revision of the evidence and states his conclusions.
17.2.11 Reports to prevent future deaths

Sometimes an inquest will show that something could be done to prevent other deaths. If so,
at the end of the inquest, the coroner is now under a duty to draw this to the attention of any
person or organisation that may have the power to take action under para 7(1) of Sch 5 to the
2009 CJA and r 28 of the Investigations Regulations, which states that any report must be sent
to the Chief Coroner and every interested person who the coroner believes should receive it.
Anyone who receives such a report must send the coroner a written response. These reports
(which were previously referred to as rule 43 reports), and the responses to them, are copied
to all interested persons and to the Lord Chancellor. A summary of the reports is published
twice a year by the Ministry of Justice.
17.2.12 Determinations and findings

Under the CJA 2009, the old terminology of ‘inquisition’ and ‘verdict’ has gone. Section 10 of
the CJA 2009 requires the coroner – or the jury, where there is one – to make a ‘determination’
at the end of the inquest as to who the deceased was, and how, when and where the deceased
came by his death. This is broadly equivalent to the requirements under the old rules. In an
investigation where Article 2 of the ECHR is engaged, the coroner must also include a
determination, or direct a jury to include a determination, as to the circumstances of the
death.
Section 10(1)(b) also requires the coroner or jury to make a ‘finding’ at the end of the inquest
about the details required for registration of the death. This will normally be, for example, a
short finding, such as accident or misadventure, suicide, industrial disease, natural causes,
drug related. Where no clear cause of death has been established, the finding will be known as
‘open’. Increasingly, coroners make use of ‘narrative’ findings in which they sum up (usually
in a few sentences) how the person came to die.
Section 10(2) makes clear that a determination may not be worded in such a way as to appear
to determine any question of criminal liability of any named person or to determine any
question of civil liability.
A Record of an Inquest (the ‘Record’) is completed by the coroner at the end of the inquest,
which is signed by the coroner and jury members who concur with it. The form requires five
matters to be dealt with:
(a) the name of the deceased;
(b) the medical cause of death;
(c) how, when and where (and where Article 2 applies, in what circumstances the deceased
came by his death);
(d) the conclusion of the jury/coroner as to the death; and
(e) the particulars required by the Births and Deaths Registration Act 1953.
The standard Record form gives a list of suggested conclusions, of which the most significant
in personal injury/clinical negligence cases are:
(a) accident or misadventure (the courts have taken the view that any distinction between
the two words is undesirable);
(b) alcohol/drug related;
(c) industrial disease;
(d) lawful/unlawful killing;
(e) natural causes;
(f ) open;
(g) road traffic collision;

(h) stillbirth;
(i) suicide.
The following points should be noted in relation to possible conclusions:
(a) Accident/accidental death. Even if such a verdict is given, it does not mean that a civil
case cannot be brought.
(b) An open conclusion means simply that there is insufficient evidence to reach a
conclusion.
(c) Suicide or unlawful killing. The standard of proof required for a suicide or unlawful
killing conclusion to be returned is that of ‘beyond reasonable doubt’. See R (on the
application of Neil Sharman) v HM Coroner for Inner London [2005] EWHC 857 (Admin),
concerning the returning of a verdict of unlawful killing; and R (on the application
of Anderson and Others) v HM Coroner for Inner North Greater London [2004] EWHC 2729
(Admin).
All other conclusions require a burden of proof based on the balance of probabilities.
In R (O’Connor) v HM Coroner for the District of Avon [2009] EWHC 854 (Admin), it was held
that a coroner’s verdict of unlawful killing predicated a finding equivalent to that
required for a conviction of at least manslaughter in a criminal trial, and that insanity, if
properly raised in the evidence, had to be disproved to the criminal standard to sustain a
verdict of unlawful killing.
The Divisional Court has made it clear that the coroner’s court does not decide the
responsibility for the death. Therefore, conclusions in the coroner’s court are framed so as not
to identify any individual as being responsible (see also R v HM Coroner for Derby and South
Derbyshire, ex p John Henry Hart Jnr (2000) 164 JP 429 and R v Director of Public Prosecutions, ex p
Manning and Another [2000] 3 WLR 463).
17.2.13 Transcripts
At the conclusion of the inquest, the coroner’s officer will collect any documents or copy
statements which were used during the hearing. A copy of the transcript of the case may be
obtained on payment of a fee. (See also R (on the application of the Ministry of Defence) v Wiltshire
and Swindon Coroner [2005] EWHC 889.)
17.2.14 Representing the family

The inquest can be difficult for lay persons to understand. Lay persons will be unfamiliar with
the role of the coroner and may expect that the purpose of the inquest is not to establish how
the deceased died but to establish fault. Because of potential problems with lack of advance
disclosure of evidence, the family of the deceased may not be aware what evidence will be
given and may be upset by the evidence disclosed at the inquest.
The procedure that the coroner will follow during the inquest must be explained to the family
of the deceased. It will be necessary to discuss the evidence with them and, in particular, to
discuss the conclusion. The verdict should be explained thoroughly, and the deceased’s family
should be reminded that the purpose of the inquest and the conclusion is not to apportion
blame but to establish by what means the deceased came by his death.
17.2.15 Representing the potential defendant

17.2.15.1 Clinical negligence cases
Requesting records and taking statements
The solicitor for the health authority or NHS Trust should obtain all relevant records, and
obtain statements from any medical and nursing staff who have been called by the coroner to
give evidence at the inquest.
The solicitor should help the staff by reviewing their statements prior to submission to the
coroner. He should ensure that the statements contain only relevant facts and do not offer any
opinion which the witness is not competent to give. For example, a house officer should not
give an opinion on whether specific parts of the treatment contributed to the death but should
restrict his statement to the facts alone.
If it appears from the statements that disciplinary action might be taken against a member of
the medical staff (eg, because a mistake in treatment has been made), that person should be
advised to seek his own representation from his defence organisation as his interests will
conflict with those of the hospital.
The solicitor should advise the medical and nursing staff that the original records will be
available at the inquest, and that they are permitted to refer to these.
Purpose, form and limits of inquest

The solicitor should advise the medical and nursing staff about the purpose and form of an
inquest, and encourage an attitude of openness and co-operation at the inquest.
Expert evidence
The solicitor may consider obtaining a specialist opinion on the issues arising at the inquest
from a hospital consultant (but not from a consultant who is directly involved in the case).
17.2.15.2 Personal injury cases

In a personal injury case, as soon as the solicitor is instructed, he will make contact with the
insured and attempt to investigate the matter further. This will normally involve attending at
the insured’s premises, if the accident was work-based, or at the scene of the accident with the
insured, in the case of a road traffic accident. The defendant’s solicitor will be under strict
instructions from the insurer to formulate a view on liability and attempt to find out as much
as possible about the deceased, so that some idea can be obtained about quantum. In a road
traffic accident, the inquest will provide early access to the police investigation report (which
may have involved a partial reconstruction), and useful information, such as whether a seat
belt was worn, may become apparent. In the case of an industrial accident, the solicitor
investigating the case will normally be concerned with the system of work used or the
employment history of the deceased. This may be particularly useful in asbestosis claims,
where it may become apparent that the deceased’s main exposure to asbestos was during his
employment with another employer.
17.2.16 Publicity at the inquest

There is often publicity attached to inquests. Reporters may request an interview with the key
witnesses and, in particular, the family. The appropriate advice to witnesses is at the
discretion of the solicitors acting for the parties. Usually, the solicitor representing the
hospital or doctors will decline to say anything to the press, to avoid saying anything
amounting to an admission in subsequent proceedings, or which may be upsetting to the
family. The solicitor should also advise the doctors and nursing staff not to make any
comments to the media. In some cases, it may be appropriate, from a public relations point of
view, for the hospital to issue a brief statement offering sympathy to the family following the
death of the deceased.
If the family wishes to express its anger in a more public forum, the press is usually happy to
provide this opportunity. If there are any concerns to which the inquest gave rise, these could
be expressed to the press. It is important, however, that the family’s solicitor does not get
carried away on the tide of emotion and risk slandering any of the individuals concerned.
17.2.17 ‘Article 2’ inquests

Where employees of the state potentially bear responsibility for loss of life (whether by their
actions or omissions), the right to life in Article 2 of the ECHR may be engaged. For Article 2
to be engaged, there must be reasonable grounds for thinking that the death may have
resulted from a wrongful act on behalf of the state. An example might be a death in custody,
either in prison or under police detention, or a death which occurs in an NHS hospital.
In such a case, the state is under an obligation to initiate an effective public investigation by an
independent body. The House of Lords (now Supreme Court) ruled that, while a criminal
investigation and prosecution may not discharge this obligation, an inquest is likely to do so.
The inquest must, however, determine not only the identity of the deceased and when, where
and how the death occurred, but also in what circumstances (see R v HM Coroner for the Western
District of Somerset & Another, ex parte Middleton [2004] UKHL 10). The limited ambit of a
‘standard’ inquest will not satisfy the obligation on the state.
Whether this more detailed form of inquest will be required will depend on the precise
circumstances of the particular case. Only those inquests that are concerned with a possible
breach of Article 2 by an agent of the state have this wider scope; other types of inquest may be
more limited.
17.3 CRIMINAL PROSECUTIONS

Where an accident results in a fatality, a criminal prosecution of those thought to be
responsible will often follow. The procedure adopted in the magistrates’ courts and Crown
Court for such a prosecution is dealt with in Criminal Litigation.
If such a prosecution occurs, the claimant’s solicitor should attend at court to obtain details of
the circumstances of the accident and take notes of the evidence. If a conviction is obtained,
this will be very useful for the civil proceedings, and in these circumstances the relevant
insurance company will often settle any claim.
Many insurance policies provide for the cost of defending such criminal charges, and the
insurance company will nominate solicitors to act on the insured’s behalf. The defendant’s
insurers will use the proceedings to establish a view on civil, as well as criminal liability
17.3.1 Criminal prosecution following a fatal road traffic accident

The four offences which may be prosecuted now following a fatal road traffic accident are as
follows:
(a) Causing death by dangerous driving (RTA 1988, s 1). Under s 2 of the RTA 1988, a person is
to be regarded as driving dangerously if the standard of driving falls ‘far below what
would be expected of a competent and careful driver and it would be obvious to a
competent and careful driver that driving in that way would be dangerous’. The
Sentencing Guidelines Council has issued a definitive guideline on sentencing (the
‘Guideline’) which gives examples of driving behaviour likely to result in this charge.
They include aggressive driving, racing or competitive driving, speeding, and using a
hand-held mobile phone when the driver was avoidably and dangerously distracted by
that use.
The maximum penalty in the Crown Court is 14 years’ imprisonment with a minimum
disqualification of two years.
(b) Causing death by careless driving when under the influence of drink or drugs, or having
failed without reasonable excuse either to provide a specimen for analysis or to permit
the analysis of a blood sample (RTA 1988, s 3A).
According to s 3ZA of the RTA 1988, careless driving is driving that ‘falls below what
would be expected of a competent and careful driver’. In comparison with dangerous
driving, the level of culpability in the actual manner of driving is lower, but that
culpability is increased by the fact that the driver has driven after consuming drugs or
alcohol.
The maximum penalty in the Crown Court is 14 years’ imprisonment with a minimum
disqualification of two years.
(c) Causing death by careless or inconsiderate driving (RTA 1988, s 2B). Careless driving is
described in (b) above. Under s 3ZA of the RTA 1988, a person is to be regarded as
driving without reasonable consideration for other persons, ‘only if those persons are
inconvenienced by his driving’. Examples of careless driving given in the Guideline
include overtaking on the inside, emerging from a side road into the path of another
vehicle, and tuning a car radio. Examples of inconsiderate driving include flashing of
lights to force drivers in front to give way and driving with undipped headlights.
The maximum penalty for this offence is five years’ imprisonment with a minimum of
12 months’ disqualification.
(d) Causing death by driving: unlicensed, disqualified or uninsured drivers (RTA 1988, s 3ZB). This
charge is likely to be prosecuted alongside one of the more serious offences outlined in
(a) to (c) above, and is self-explanatory. It carries a maximum penalty of two years’
imprisonment with a minimum disqualification of 12 months.
17.3.2 Criminal prosecution following an accident at work

Following a fatal accident at work, the HSE may bring a prosecution under the HSWA 1974
(see 4.9). It is also possible for an individual (such as a director of a company) to be
prosecuted for gross negligence manslaughter.
Where the evidence indicates that a serious criminal offence other than a health and safety
offence may have been committed, the HSE is required to liaise with the CPS in deciding
whether to prosecute. Health and safety offences are usually prosecuted by the HSE, or by the
local authority responsible for enforcement. The CPS may also prosecute health and safety
offences, but usually does so only when prosecuting other serious criminal offences, such as
manslaughter, arising out of the same circumstances.
There is also the possibility that the CPS could now bring a prosecution against an employer
for corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act
2007, which is discussed in more detail below (see 17.3.4).
17.3.3 Criminal prosecution following clinical negligence

The CPS may bring a prosecution for manslaughter against an individual (such as a doctor or
nurse) following a clinical negligence incident which results in the death of a patient. Such a
charge will be on the basis that the breach of duty committed was so great as to constitute
gross negligence and therefore merits criminal sanctions rather than just a duty to
compensate the victim (see R v Adomako [1995] 1 AC 171).
Over the years, a number of doctors have been convicted of manslaughter by gross negligence.
In 2003, two senior house officers were so convicted following the death of a man who had
been placed in their post-operative care. Following a routine knee operation at Southampton
University Hospital, the patient contracted an infection and subsequently died of toxic shock
syndrome. The doctors had failed to deal with the clear signs of serious illness, take
appropriate blood samples, administer antibiotics or consult senior colleagues. Their appeal
against a suspended sentence of 18 months each was dismissed by the Court of Appeal (R v
Misra; R v Srivastava [2004] EWCA Crim 2375).
Following their conviction, the CPS also instigated criminal proceedings against the NHS
Trust (R v Southampton University Hospitals NHS Trust [2006] EWCA Crim 2971) for its failure to
discharge its duty under s 3 of the HSWA 1974. This section requires an employer to conduct
his undertakings in such a way as to ensure, so far is reasonably practical, that persons not in
his employment and who may be affected (in this instance a patient) are not exposed to risks
to their health and safety. The Trust had failed to provide enough junior doctors in the Trauma
and Orthopaedic Department, and had failed to implement systems for the adequate
supervision of staff by consultants. The Trust pleaded guilty, and the initial fine of £100,000
was reduced on appeal to £40,000 on the grounds that the judge had not taken account of the
early guilty plea and that the public would suffer as a result of a large fine.
It is also now possible that an NHS Trust, Foundation Trust or health authority could be
prosecuted for corporate manslaughter (see 17.3.4 below).
17.3.4 Corporate Manslaughter and Corporate Homicide Act 2007

17.3.4.1 The background
The Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) came into
force on 6 August 2008 in response to problems applying the existing offence of manslaughter
by gross negligence to organisations rather than to individuals. The main problem under
existing criminal law is that, in order for a company or other organisation to be guilty of gross
negligence manslaughter, it is necessary for a senior individual (the ‘controlling mind’), who
can be said to embody the company, to be guilty of the offence. This is sometimes referred to
as the ‘identification doctrine’.
The matter was examined in Attorney-General’s Reference (No 2 of 1999) [2000] 2 Cr App R 207,
which concerned a train collision at Southall in 1997 in which seven passengers died and 151
were injured. Great Western Trains was prosecuted for manslaughter on the basis that it had
allowed the train to be operated with two important safety devices switched off, as a result of
which the driver of the train had failed to notice a warning signal. The company was acquitted
as there was no human being with whom the company could be identified. On a reference by
the Attorney-General, the Court of Appeal stated that the identification doctrine remained
the only basis in common law for corporate liability in gross negligence manslaughter.
As a result of the identification doctrine there have been very few successful prosecutions for
corporate manslaughter. The only successful prosecutions have been of small, owner-
managed companies, where it was not difficult to pinpoint a senior individual who effectively
ran the company, such as in Kite and Others (1994) Independent, 9 December, where four
teenagers drowned while canoeing during an adventure holiday.
The failures of the law led to a sustained campaign for reform, which finally resulted in the
offence of corporate manslaughter being introduced by the CMCHA 2007. The new offence is
intended to work in conjunction with other forms of accountability, such as gross negligence
manslaughter for individuals and other health and safety legislation.
17.3.4.2 The offence

Section 1 of the CMCHA 2007 states:
(1) An organisation to which this section applies is guilty of an offence if the way in which its
activities are managed or organised—
(a) causes a person’s death; and
(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the
deceased.
(2) An organisation is guilty of an offence … only if the way in which its activities are managed or
organised by its senior management is a substantial element in the breach referred to in
subsection (1).
To prove the offence, therefore, the CPS must prove:

(a) the defendant is a qualifying organisation;
(b) the organisation causes a person’s death;
(c) there was a relevant duty of care owed by the organisation to the deceased;
(d) there was a gross breach of that duty; and

(e) a substantial element of that breach was in the way those activities were managed or
organised by senior management; and
(f ) that the defendant does not fall within one of the exemptions for prosecution under the
Act.
Therefore the court will have to consider how the fatal activity was managed, or organised,
throughout the organisation, including any systems and processes for managing safety and
how these were operated in practice. A substantial part of the failure within the organisation
must have been at a senior level.
Meaning of ‘organisation’
Section 1(2) states the offence applies to the following bodies:
(a) a corporation;
(b) a department or other body listed in Sch 1;
(c) a police force; and
(d) a partnership, or trade union or employer’s association that is an employer.
Crown immunity has been a long-established legal doctrine that means that Crown bodies
(such as government departments) cannot be prosecuted. Section 11(1) now allows
prosecutions under the Act to apply to such bodies. Schedule 1 sets out a list of government
departments to which the offence applies.
The Act will also apply to a wide range of statutory public bodies which are not part of the
Crown, including local authorities and NHS bodies.
Causation
It will not be necessary for the management failure to have been the sole cause of death. The
prosecution will need to show that ‘but for’ the management failure (including the substantial
element attributable to senior management), the death would not have occurred. The law
does not, however, recognise very remote causes, and in some circumstances the existence of
an intervening event may mean that the management failure is not considered to have caused
the death.
Relevant duty of care

Section 2(1) requires that the relevant duty of care is to be one that is owed under the law of
negligence. The Act does not create new duties in addition to those already owed in the civil
law of negligence.
The duty must be a relevant one for the offence. Relevant duties are set out in s 2(1) of the Act
and include:
(a) employer and occupier duties;
(b) duties owed in connection with:
(i) supplying goods and services (whether or not for consideration),
(ii) construction and maintenance work (note that simply because there is a statutory
duty to perform an act, this does not create a relevant duty of care; thus although a
highways authority has a duty to maintain and repair roads (HA 1980, s 41), the
failure to do so does not give rise to a duty of care to a motorist in negligence.
However a negligent repair would do so),
(iii) other activities on a commercial basis, and
(iv) using or keeping plant, vehicles or other things.
Gross breach
Once a relevant duty of care has been established, any breach must fall far below what could
reasonably be expected of the organisation in the circumstances (s 1(4)(b)).
This is a matter for the jury to decide, and s 8 sets out factors for the jury to consider. Section
8(2) states that the jury must consider whether health and safety legislation was breached and,
if so:
(a) how serious the breach was (s 8(2)(a)); and
(b) how much of a risk of death it posed (s 8(2)(b)).
Meaning of ‘senior management’

The term ‘senior management’ is defined in s 1(4) to mean those persons who play a significant
role in the management of the whole of, or a substantial part of, the organisation’s activities.
This covers both those in the direct chain of management and those in, for example, strategic
or regulatory compliance roles.
Neither ‘significant’ nor ‘substantial’ is defined, but the former is likely to be limited to those
whose involvement is influential, and will not include those who simply carry out the activity.
Whether the activity in question is itself a ‘substantial’ part of the company’s activities will be
of great importance in determining if the offence applies, especially where a company has
multiple businesses or is a national organisation with regional managers. The test of senior
management is wider than the former ‘controlling mind’, which effectively restricted the
offence to actions of directors. A regional manager would probably count, but this may itself
depend on the number of regions, the number of higher tiers of management, the diversity of
the organisation’s activities and his own job description.
Exemptions
Corporate manslaughter will not apply to certain public and government functions where
there exist wider questions of public policy. So, for example, the Act exempts the military, the
police and the emergency services when conducting certain activities, including dealing with
emergencies, terrorism and violent disorder.
17.3.4.3 Punishment for corporate manslaughter and health and safety offences causing death
The Sentencing Council issued the Definitive Guideline on Corporate Manslaughter and
Health and Safety Offences which cause death (the ‘Guideline’) in February 2010. It sets out
the key principles relevant to assessing the seriousness of such offences and the factors that
should be taken into account in deciding on an appropriate sentence. The Guideline applies
only to organisations which commit serious health and safety offences. It does not apply to
individuals.
The possible sentencing options for such offences are:
(a) Unlimited fine. The Guideline states that fines must be punitive and sufficient to have an
impact on the defendant and that the appropriate fine for the offence of corporate
manslaughter will seldom be less than £500,000. For health and safety offences causing
death, the appropriate fine will usually be at least £100,000.
(b) Publicity order. This is available only for offences of corporate manslaughter. A publicity
order may require publication of:
(i) the fact of the conviction;
(ii) specified particulars of the offence;
(iii) the amount of any fine; and
(iv) the terms of any remedial order (see (c) below).
The Guideline states that a publicity order should ordinarily be imposed in a case of
corporate manslaughter. The order should specify the place where the public
announcement is to be made (for example, a newspaper or a website) and consideration
should also be given to the size of any notice or advertisement required.
(c) Remedial order. A remedial order can be made for both corporate manslaughter and
health and safety offences. The guideline points out that a defendant ought, by the time
of the sentencing, to have remedied any dangerous practices, and if it has not will be
deprived of significant mitigation. Nevertheless, if it still appears to be necessary, a
judge may make a remedial order requiring a defendant to address the cause of the
accident. The order should be sufficiently specific to make it enforceable.
17.3.4.4 Corporate manslaughter convictions
So far there have only been three successful prosecutions for corporate manslaughter. The
first company to be convicted under the CMCHA 2007 was Cotswold Geotechnical Holdings
Ltd, which was fined £385,000 in February 2011 following the death of an employee who was
crushed to death when the sides of an excavated pit collapsed as he was collecting samples.
Although the fine was less than the suggested starting-point fine of £500,000 (see 17.3.4.3),
the court took account of the fact that the company was in financial difficulties, and the fine
was in fact 116% of the company’s turnover.
The second conviction was in May 2012 against JMW Farms, based in Northern Ireland. This
was the first corporate manslaughter conviction in Northern Ireland. The company was
convicted under the CMCHA 2007 following the death of its employee, Robert Wilson, on 15
November 2010. Mr Wilson, who was 45 years old, was working at a farm, when he was
crushed by a large metal bin, which had fallen from the raised forks of a forklift. The vehicle
was being driven by one of the company’s directors, Mark Wright. The bin had not been
properly attached to the forklift. JMW Farms was fined £187,500 plus £13,000 costs.
In July 2012, Lion Steel Equipment Ltd became the third company in the UK to be convicted of
corporate manslaughter and was fined £480,000 and ordered to pay prosecution costs of
£84,000. The case followed the death of an employee who suffered fatal injuries when he fell
through a fragile roof at its site in Hyde, Cheshire in May 2008. The company admitted the
offence, part way through the trial, on the basis that all charges against its directors would be
dropped (three men had been charged with gross negligence manslaughter and health and
safety charges).
Lion Steel is the largest of the three organisations so far convicted of the offence (it has over
100 employees), but it is still nothing like the size of the businesses that were probably the real
targets of the changes in the law four years ago, and a healthcare organisation is yet to be
prosecuted.
17.4 CONCLUSION
Inquests and criminal prosecutions are important processes which may be used to gather
evidence at an early stage, and the outcome of a criminal prosecution may be extremely
influential in establishing liability in a civil claim for compensation. From a personal injury
solicitor’s point of view, this can be very demanding work, as the client is likely to make
considerable demands of the solicitor, both professionally and emotionally. A summary of the
main points is set out below at 17.6.

Matthews, Jervis on Coroners (Sweet & Maxwell) and the cumulative supplement
Cooper, Inquests (Hart Publishing)
Farlin & Smail (eds), Corporate Liability: Work Related Deaths and Prosecutions (Bloomsbury
Professional)
17.6 INVESTIGATING FATAL ACCIDENTS
Criminal prosecution Coroner’s inquest

(a) Health and Safety at
Work, etc Act 1974
(b) Manslaughter
(c) Road Traffic Act 1988
(d) Corporate manslaughter
Conviction may be relied on as

evidence of negligence in later
civil claim
Coroner involved if Coroners and Justice Act 2009,

s 1 applies, including:
(a) violent or unnatural death;
(b) sudden death of which cause unknown;
(c) death in prison
Purpose of inquest:
(a) who deceased was;
(b) how, when and where the deceased came
by his death;
(c) particulars required by the Registration Acts
Other matters:
Post-mortem
Obtain evidence/medical notes
Contact coroner’s office
Explain role of inquest to client
Determination:
Purpose not to express blame or determine criminal
or civil liability
Introduction to Fatal Accident Claims — Procedure and Quantification 275
CHAPTER 18
Introduction to Fatal
Accident Claims — Procedure
and Quantification

18.2 Cause of action 276
18.3 The appointment of personal representatives 276
18.4 Damages under the Law Reform (Miscellaneous Provisions) Act 1934 277
18.5 Damages under the Fatal Accidents Act 1976 278
18.6 Interest 288
18.7 Pension loss 288
18.8 Establishing the case 288
18.9 Conduct 288
18.12 Overview of damages in fatal claims 289
LEARNING OUTCOMES
• understand the causes of action available to the estate and dependants of the
deceased after a fatal accident
• identify who may claim as a dependant of the deceased
• advise on the heads of damage which may be claimed by the estate of the deceased
• calculate the amount of a dependency claim
• identify who may claim bereavement damages and the amount of those damages.
18.1 INTRODUCTION
This chapter sets out the basic principles involved in assessing damages in personal injury and
clinical negligence cases where the victim has died before trial.
There are two main causes of action in such circumstances:
(a) the Law Reform (Miscellaneous Provisions) Act 1934 (LR(MP)A 1934), which allows a
claim for the benefit of the deceased’s estate; and
(b) the Fatal Accidents Act 1976 (FAA 1976), which allows a claim for the benefit of the
dependants and those entitled to an award of bereavement damages.
It will be assumed that the death occurred on or after 1 January 1983, as the above Acts were
amended substantially relating to deaths after that date. While the Acts provide two separate
causes of action, they are commonly brought together. The methods of valuing damages
which may be claimed under each Act are considered below.
In certain cases, specific statutes provide for recompense for the deceased’s family, such as
the Carriage by Air Act 1961 in cases of death arising out of civil aviation accidents. These are
not dealt with in this text.
18.2 CAUSE OF ACTION

The LR(MP)A 1934 provides (for the benefit of the deceased’s estate) for the continuation of
the cause of action to which the deceased was entitled the instant before he died (LR(MP)A
1934, s 1(2)). It does not create a separate cause of action.
The FAA 1976 does create a separate cause of action for the dependants (and those entitled to
the award of bereavement damages), but it is based on the pre-condition that the deceased,
had he lived, would have been able to sue successfully (FAA 1976, s 1).
Three things follow from this, namely:
(a) if the deceased had no cause of action then the estate and the dependants have no cause
of action;
(b) any defence that could have been used against the deceased can be used against the
estate and the dependants;
(c) if the deceased was contributorily negligent then the damages of the estate and the
dependants are reduced accordingly.
EXAMPLE 1
Tom is driving his car when it collides with a car driven by Sharon. Tom dies as a result of
his injuries. He is survived by his widow, Elaine, and his son, Christopher. The accident is
entirely the fault of Tom. As a result, neither Tom’s estate, nor Elaine or Christopher has
any right of action against Sharon.
EXAMPLE 2
Lucy is killed in an accident at work. She is survived by her husband, Michael, and
daughter, Patricia. Lucy and her employers are equally to blame for the accident. Although
Lucy’s estate, Michael and Patricia may claim against the employers, the damages
awarded to each will be reduced by 50%.
In the case of Jameson and Another v Central Electricity Generating Board and Another [2000] AC 455,
the House of Lords held that in a case where the second co-defendant had paid a
compensation payment to the injured person when he was still alive (on a less than full
liability basis), this did prevent the dependants bringing a claim under FAA 1976 against the
first co-defendant (who was a concurrent tortfeasor) and did amount to a settlement of claim.
Pleadings may be amended to plead a fatal accident claim if the deceased dies during the
course of proceedings which were commenced in his name when he was alive. However, once
judgment is given or a claim is settled by a living claimant, there can be no subsequent claim
by dependants. If there is a possibility that a claimant might die of his injuries during the
course of proceedings, a claim for provisional damages should be made (see 15.4). Section 3
of the Damages Act 1996 makes it clear that a provisional damages award does not bar a claim
under the FAA 1976, although the award will be taken into account in assessing damages
payable to the dependants under the 1976 Act.
18.3 THE APPOINTMENT OF PERSONAL REPRESENTATIVES

Fatal accident claims are normally representative actions. This means that the personal
representative normally brings a claim simultaneously on behalf of the estate under the
LR(MP)A 1934 and on behalf of the dependants under the FAA 1976. The grant of probate or
letters of administration should therefore be obtained before the claim is commenced.
18.4 DAMAGES UNDER THE LAW REFORM (MISCELLANEOUS

PROVISIONS) ACT 1934
Generally, the damages awarded to the estate under the LR(MP)A 1934 are based on the losses
for which the deceased could have claimed at the instant before he died. In essence, the estate
inherits the deceased’s right to sue in respect of the death. Any head of damages that is
duplicated between the LR(MP)A 1934 and the FAA 1976 is recoverable only once.
The following heads of damages may be appropriate.
18.4.1 Pain, suffering and loss of amenity (PSLA)

The 11th edition of the Guidelines for the Assessment of General Damages in Personal Injury Cases now
contains a new Chapter 1, which allows for an element of PSLA for the period between injury
and death. There are four brackets:
(A) Full Awareness – £15,000 to £17,000
Severe burns and lung damage coupled with full awareness initially then fluctuating
consciousness for 4 to 5 weeks and intrusive treatment.
(B) Followed by Unconsciousness – £7,500 to £10.000
Severe burns and lung damage causing excruciating pain but followed by
unconsciousness after 3 hours and death two weeks later; or very severe chest and
extensive orthopaedic injuries from which recovery was being made, but complications
supervened.
(C) Immediate Unconsciousness/Death after Six Weeks – £6,000
Immediate unconsciousness after injury, and death occurring after six weeks.
(D) Immediate Unconsciousness/Death within One Week – £1,000 to £2,000
Immediate unconsciousness, or unconsciousness following very shortly after injury,
and death occurring within a week.
Previously, there was no guidance in this area, with parties having to search for authorities in
each case, and defendants often argued that there could really be no pain with immediate
unconsciousness, so reaching a conclusion that no PSLA award should be made. For example,
in Hicks v Wright [1992] 2 All ER 65, no damages under this head were awarded to victims of
the Hillsborough disaster for the short period of terror and pain they experienced before
death. It would seem likely that if those cases were being valued today they would be awarded
something for PSLA.
Chapter 1 does not apply, for example, to cases relating to asbestos exposure or other cancer
claims where reference will continue to be made to the awards for those underlying
conditions.
Although the above brackets are a useful starting point, every case will be unique and so the
amount of the award for pain, suffering and loss of amenity will depend upon the actual level
of pain and the length of time over which the pain was experienced. Reference should
therefore still be made to case law in order to obtain a more accurate valuation. For example,
in Fallon v Beaumont, 16 December 1993, CC (Leeds), a 22-year-old man was involved in a high-
speed road accident, during which the car in which he was a passenger exploded and burst
into flames. He was trapped in the burning car until the emergency services arrived, and was
conscious throughout. He died 30 days later. He would have had significant insight into the
gravity of his situation and an award of £10,000 (the equivalent of about £16,000 at today’s
values) was made for pain and suffering.
18.4.2 Loss of income

The estate is entitled to claim the lost net earnings of the deceased from the time of the
accident until death, calculated in the same way as for a living claimant (see 15.2.1). No claim
can be made for loss of income in respect of any period after that person’s death (LR(MP)A
1934, s 1(2)(a)(ii), as amended by the Administration of Justice Act 1982).
18.4.3 Funeral expenses

Funeral expenses are specifically provided for in s 1(2)(c) of the LR(MP)A 1934. The expenses
may be claimed provided they are:
(a) reasonable; and
(b) incurred by the estate.
What is ‘reasonable’ will depend on the individual circumstances of the case, including the
social standing and racial origin of the deceased. In Gammell v Wilson [1982] AC 27, the court
drew a distinction between the cost of the funeral service and a headstone (which was
allowed), and the cost of a wake and a memorial to the deceased (which was not allowed).
If the expenses are incurred by a dependant of the deceased rather than by the deceased’s
estate, the dependant may claim the expenses as part of the fatal accidents claim.
On a practical note, it is important to obtain receipts in order to prove all the expenses
incurred. Many insurers are amenable to making an immediate interim payment in relation to
the funeral expenses, in order to relieve the dependants of some of the immediate expenses
and to prevent interest accruing on those expenses.
18.4.4 Value of services rendered by third parties

Services rendered by third parties may include, for example: nursing services rendered by a
relative to the deceased up to the time of death; expenses incurred by a third party in assisting
in bringing the deceased’s body home from abroad; or the costs incurred by relatives in
visiting the hospital. The quantum is the proper and reasonable cost of supplying the need.
(For the general principles involved, see Chapter 15.)
18.4.5 Other losses

Other losses may include, for example, damage to chattels, such as the car the deceased was
driving at the time of the incident, or the clothing which he was wearing.
18.4.6 Distribution of damages

Damages under the LR(MP)A 1934 pass to the deceased’s estate, and from there to the
deceased’s beneficiaries according to the deceased’s will or the rules of intestacy.
Damages under the LR(MP)A 1934 are, in appropriate cases (eg, where there was a long
interval between the accident and the death, and the deceased had been in receipt of
recoverable benefits), subject to the Social Security (Recovery of Benefits) Act 1997 (see
Chapter 16), but are not subject to any other losses or gains to the estate, such as the receipt of
insurance money (LR(MP)A 1934, s 1(2)).
18.4.7 Conclusion
In the case of instantaneous death, damages under the LR(MP)A 1934 will normally be
limited to damages for funeral expenses and damage to chattels. Where there is a period of
survival, the damages may be more extensive but will normally still be severely curtailed by the
inability of the estate to claim the lost future income of the deceased.
18.5 DAMAGES UNDER THE FATAL ACCIDENTS ACT 1976

In general terms, there are three possible heads of damages, namely:
(a) a dependency claim for the financial losses suffered by the dependants of the deceased;
(b) an award of bereavement damages; and
(c) a claim for the funeral expenses, if paid by the dependants.
18.5.1 Loss of dependency

To succeed in a dependency claim, the claimant
(a) must be a dependant as defined by the FAA 1976; and
(b) must have had a reasonable expectation of financial benefit from the deceased.
18.5.1.1 The statutory meaning of ‘dependant’

‘Dependant’ is defined in s 1(3) of the FAA 1976 as follows:
(a) the wife or husband or former wife or husband of the deceased;
(aa) the civil partner or former civil partner of the deceased;
(b) any person who:
(i) was living with the deceased in the same household immediately before the date of the
death; and
(ii) had been living with the deceased in the same household for at least two years before that
date; and
(iii) was living during the whole of that period as the husband or wife or civil partner of the
deceased;
(c) any parent or other ascendant of the deceased;
(d) any person who was treated by the deceased as his parent;
(e) any child or other descendant of the deceased;
(f ) any person (not being a child of the deceased) who, in the case of any marriage to which the
deceased was at any time a party, was treated by the deceased as a child of the family in relation
to that marriage;
(fa) any person (not being a child of the deceased) who, in the case of any civil partnership in which
the deceased was at any time a civil partner, was treated by the deceased as a child of the family
in relation to that civil partnership;
(g) any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.
The requirement to come within the statutory definition of ‘dependant’ has resulted in
adverse judicial comment (see Shepherd v Post Office (1995) The Times, 15 June), and the
introduction of the cohabitee as a possible claimant ((b) above) by the Administration of
Justice Act 1982 was controversial.
In Fretwell v Willi Betz, 8 March 2001, the definition of a ‘dependant’ was challenged, by virtue
of the Human Rights Act 1998. The case was settled without any admission as regards the
claimant’s status as a ‘dependant’ (the argument concerned a child of the girlfriend who was
living with the deceased prior to the accident), but it does illustrate the possibility of using the
Human Rights Act 1998 to challenge the narrow statutory definition of a ‘dependant’ (see
also Ogur v Turkey (2001) 31 EHRR 912).
The requirement to have been living together for two years prior to the death should be noted,
and evidence should be obtained on this point if it is anticipated that the defendant will
challenge this (see Kotke v Saffarini [2005] EWCA Civ 221). The FAA 1976 contains a provision
that the cohabitee’s lack of enforceable right to support is to be taken into account (FAA 1976,
s 3(4)). This may mean that a cohabitee will receive less compensation than a lawful spouse,
as the court may use a lower multiplier in determining the dependency claim. For example, a
multiplier of 13 was used for a cohabiting couple, instead of 15 which would have been used if
they were married.
18.5.1.2 Further provisions with regard to the meaning of ‘dependant’

Section 1(4) of the FAA 1976 (as amended by the Administration of Justice Act 1982) provides:
… former wife or husband … includes a reference to a person whose marriage to the deceased has been
annulled or declared void as well as a person whose marriage to the deceased has been dissolved.
Section 1(5) of the FAA 1976 (as amended by the Administration of Justice Act 1982) provides:
(a) any relationship by affinity shall be treated as a relationship by consanguinity, any relationship
of the half blood as a relationship of the whole blood, and the stepchild of any person as his
child;
(b) an illegitimate person shall be treated as the legitimate child of his mother and reputed father.
Thus, for example, the stepbrother of the deceased is treated as his true brother; the uncle of a
wife is treated as the husband’s uncle.
The Adoption Act 1976 provides that, generally, an adopted child is treated as the natural
child of the adopters.
18.5.1.3 Identifying the dependants

It is important to identify all prospective dependants, as s 2(3) of the FAA 1976 provides that
‘not more than one action shall lie’ and, as a result, only one claim will be brought. A
defendant is entitled to full particulars of all those on whose behalf the claim is being
brought. In practice, the particulars of the dependants are set out in the court documentation
and generally include details of:
(a) the age of the dependants;
(b) their relationship with the deceased;
(c) the nature of the dependency (eg, the dependant was a minor son wholly supported by
the deceased father who was the family breadwinner and who had good promotion
prospects).
In the case of Cachia v Faluyi [2001] EWCA Civ 998, [2001] 1 WLR 1966, the Court of Appeal
held that it was possible to interpret s 2(3) of the FAA 1976 under the ECHR, so as to prevent a
dependent child’s claim from becoming statute-barred for limitation purposes.
On occasions, the defendants will argue that a claimant is not a true ‘dependant’ under the
FAA 1976, and this is often resolved by the court ordering a trial of the point as a preliminary
issue.
18.5.1.4 The requirement of ‘financial loss’

It is not sufficient that the claimant merely satisfies the statutory meaning of ‘dependant’. It
must be shown in addition that there is a reasonable likelihood that the claimant has or will
suffer financial loss as a result of the death of the deceased. In the case of Thomas v Kwik Save
Stores Ltd (2000) The Times, 27 June, the Court of Appeal reaffirmed the principle that, when
awarding damages under the FAA 1976, the court was concerned with the financial loss and
not the emotional dependency of the claimant on the deceased.
In many cases, the dependants will have a clear and immediate financial loss. For example,
where a husband was maintaining his wife and children before his death, the fact that they
will suffer financial loss as a result of the husband’s death is obvious. In addition to the loss of
the deceased’s earnings, consideration should be given to whether the dependents have lost
any fringe benefits to which he was entitled, such as a company car.
The loss may still be regarded as ‘financial’ even if there was no expenditure by the deceased,
provided the support can be quantified in monetary terms (eg, where the deceased’s elderly
mother was allowed to live rent-free in the deceased’s house before his death, the mother
would be able to claim a quantifiable financial loss). If the deceased regularly did DIY,
gardening or other jobs around the house, the dependants can claim for the loss of those
gratuitous services. In Crabtree v Wilson [1993] PIQR Q24 the court valued the deceased’s work
around the home at £1,500 per annum.
In the case of Cox v Hockenhull [1999] 3 All ER 577, the Court of Appeal held that the important
point in assessing the dependency was to identify the loss the claimant has suffered as a result
of a death. In that case, the deceased’s income had been certain State benefits which she and
her husband had relied upon. The Court allowed the husband’s claim for dependency on the
basis that he was dependent on certain benefits that had been received prior to the death and
which he no longer obtained after his wife was killed in a road traffic accident.
18.5.1.5 The loss must be as a result of a personal family relationship with the deceased
If the loss to the dependant is, in reality, a loss attributable to a business relationship with the
deceased, the claim for loss of dependency will fail (Burgess v Florence Nightingale Hospital for
Gentlewomen [1955] 1 QB 349).
EXAMPLE
Tom is killed in a car accident as a result of the negligent driving of Keith. Tom is survived
by his widow, Sally, and his 6-month-old son, Brian. Tom was the sole financial support of
Sally and Brian. Tom worked in business with his brother, Joe. As a result of Tom’s death,
the business fails and Joe suffers heavy financial losses. Tom’s married sister, Edwina, is
very upset at the news of her brother’s death.
Sally and Brian may claim as defined dependants who suffer financial losses as a result of a
family relationship with Tom.
Joe cannot claim because, although he is a defined dependant, his financial losses are as a
result of a business relationship with Tom.
Edwina cannot claim because, although she is a defined dependant, she has suffered no
financial losses (merely grief and sorrow).
18.5.2 Assessing loss of dependency – the traditional method

The award for loss of dependency is ascertained by a multiplicand and multiplier system. The
multiplicand is the net annual loss of the dependants; the multiplier is based on the number
of years’ loss of dependency (ie, the length of time that the claimant would have been
dependent on the deceased).
18.5.2.1 The multiplicand – the net annual loss to the dependants

The deceased wage earner
The starting point is to calculate the amount of the deceased’s earnings and deduct the
estimated amount representing the sum that would have been spent by the deceased on his
own personal and living expenses. The remaining balance will be the dependency
multiplicand.
The deceased’s net annual earnings must be calculated as at the date of the trial (Cookson v
Knowles [1979] AC 556). No allowance is made for inflation (Auty v National Coal Board [1985] 1
All ER 930), but the deceased’s future earning capacity (eg, as result of promotion) must be
taken into account. For example, a trainee doctor may have been earning a relatively modest
income at the date of death, but his earnings would clearly have increased substantially on
qualifying and again on becoming a consultant. Evidence will be needed in support of this,
and the best evidence may be from a comparative employee or employees who have gone, or
who are going through, the same career structure as the deceased would have done. This
evidence could be obtained, for example, from the deceased’s trade union or employer.
Conversely, there may be evidence of likely loss of earning capacity, for example because of
redundancy.
Calculating the dependency figure

There are two approaches that the courts have considered:
(a) The ‘old’ system for calculating the dependency figure is to add up all the financial
benefits received by the dependants from the deceased. It is necessary to produce a list
of the items which contributed to the annual value of dependency and for the claimant
to provide documentary evidence, bills, etc for the year prior to the death. A proportion
is then deducted for the deceased’s own expenses. For example, the following items
have been considered: How much housekeeping money was paid to the wife? How
much was spent on the deceased’s food? How much was spent on the food for the rest of
the family? Who paid how much for the children’s shoes, etc? This type of calculation is
very difficult and in practice is rarely attempted.
(b) The customary modern practice, which was established in the case of Harris v Empress
Motors [1983] 3 All ER 561, is to deduct a percentage from the net income figure to
represent what the deceased would have spent exclusively on himself. Conventional
percentages are adopted. Where the family unit was husband and wife, the usual figure
is one-third. Where the family unit was husband, wife and children, the usual figure is
one-quarter. However, it is important to note that each case must be judged on its own
facts. The court is willing to depart from the conventional figures where there is
evidence that they are inappropriate (Owen v Martin [1992] PIQR Q151), for example
where the deceased was particularly frugal or a spendthrift. In such circumstances, less
or more than the conventional figure should be deducted (see also Coward v Comex
Houlder Diving Ltd, 18 July 1988, CA and Dhaliwal v Personal Representatives of Hunt (Deceased)
[1995] PIQR Q56, CA).
Furthermore, it is quite possible that different multiplicands may have to be selected
according to different times in the period of dependency. Had he lived, the deceased’s
financial affairs would not have remained constant throughout his life. Similarly, therefore,
the multiplicand will not remain constant either. For example, in the case of a husband with
wife and children, 75% of the husband’s earnings may be the appropriate initial multiplicand
while his children are likely to be dependent. However, from the point where the children can
be expected to become independent the multiplicand may be merely two-thirds of the
husband’s earnings (see also Coward v Comex Houlder Diving Ltd, above).
Frequently, both husband and wife would have been earning at the time of death, and in such
circumstances the approach adopted is to calculate the dependency as two-thirds or three-
quarters (as the case may be) of the total joint net income, less the continuing earnings of the
surviving spouse.
EXAMPLE
Mike and Susan both earn £50,000 pa net. They have no children. Mike dies in an
accident at work. Two-thirds of their joint income is approximately £66,600 (£100,000 x
66%), but Susan’s earnings of £50,000 must be deducted to calculate her dependency
claim. Susan’s annual loss of dependency is therefore £16,000.
Services rendered by the deceased

The deceased may have been contributing to the support of the family not only in terms of a
percentage of his earnings, but also by rendering services to the family free of charge.
Examples of such services include:
(a) DIY jobs (eg, painting the house annually);
(b) vegetable gardening (therefore saving on grocery bills);
(c) nursing services to a sick member of the family;
(d) contributions to childcare.
On the deceased’s death, such free services will be lost. The family will have to pay for the
services (eg, by employing a decorator) and thus incur a loss. The value of these services can
add considerably to the multiplicand. Evidence must be obtained, for example by quotations
from the appropriate source.
In Beesley v New Century Group Ltd [2008] EWHC 3033 (QB), the claimant’s husband had died
from malignant mesothelioma as a result of his employment with the defendant company.
The court made an award of damages for loss of ‘intangible benefits’ in respect of the extra
value to be attached to help such as domestic services provided by a husband. The court held
that there were considerable advantages in having jobs around the house and garden done by a
husband in his own time and at his own convenience, rather than having to employ a
professional. Accordingly, it awarded the claimant £2,000. See also Manning v King’s College
Hospital NHS Trust [2008] EWHC 3008 (QB), in which similar sums were awarded to the
husband and children of the deceased for the loss of personal attention of a wife and mother,
‘in recognition that what is lost goes beyond the material’.
The deceased non-wage earner

Where the deceased was a wage earner, the valuation of the multiplicand in the dependency
claim is predominantly based on a proportion of the deceased’s earnings (see above). This is so
whether the deceased was male or female (eg, whether husband, father, wife or mother). It is
not uncommon, however, that the deceased was not in paid employment. In this case, the
value of the services rendered to the family becomes the vital issue. For example, if the
deceased was the wife and mother of the family, and was not a wage earner at the date of her
death, the services rendered by her to the family might be quantified in the terms of employing
a housekeeper to provide the same services. In Regan v Williamson [1976] 1 WLR 305, Watkins J
said that in this context ‘the word “services” [has] been too narrowly construed. It should at
least include an acknowledgement that a wife and mother does not work to set hours, and, still
less, to rule’. Accordingly, a value in excess of a housekeeper was awarded in that case. In
Mehmet v Perry [1977] 2 All ER 529, the claimant widower, on the death of his wife, reasonably
gave up his job in order to look after his young children. The starting point for the value of the
services of the deceased wife was taken as the husband’s loss of earnings.
Claims by parents, if children unmarried

A claim can be made by a parent (who is often unemployed or ill) who was dependent on the
support from his unmarried child. When the court considers this type of case, it will have
regard to the fact that the child may have married and the financial assistance provided by the
child may have ceased.
18.5.2.2 The multiplier – the period of loss
Having calculated the multiplicand, the other side of the equation is to calculate the number
of years’ loss of dependency.
Commencement of period of loss

The starting point for the number of years’ loss is the date of death (not the date of trial:
Graham v Dodds [1983] 2 All ER 953; White v ESAB Group (UK) Ltd [2002] All ER (D) 02 (Jan) and
ATM v MS (2002) The Times, 3 July). However, see the 7th edition of the Ogden Tables for
further commentary on this point.
End of the period of loss

In the case of a deceased wage earner, prima facie the number of years’ loss will extend to the
end of the deceased’s working life (ie, usually up to what would have been the deceased’s
retiring age). Direct evidence should be called on this point. It must be remembered that
certain items of loss, such as the claim for the cost of DIY, may extend beyond retirement age,
as the deceased would not necessarily have stopped doing DIY when he retired from work.
However, each case will turn upon its own facts, and the period of dependency may end before
or after what would have been the normal date of the deceased’s retirement. For example,
where the deceased was a professional person, he might have been expected to work and
support his dependants beyond normal retirement age. Equally, if the deceased would have
enjoyed a pension, it may be argued that he would have continued to provide for his
dependants beyond normal retirement age (although evidence would be needed to
substantiate this: Auty v National Coal Board [1985] 1 All ER 930; see Chapter 15).
Conversely, the period of dependency may stop before what would have been the normally
expected retirement age of the deceased. For example, if the deceased was already in a poor
state of health, he may not have been expected to work until normal retirement age, and the
financial support for the dependants would therefore have ended earlier. Similarly, if the
dependant himself is in a poor state of health and has a short life-expectancy, the period of
dependency will be shorter.
Effect of likely divorce or remarriage

Where there is a claim by a widow as dependant, the likelihood that the marriage would have
ended in divorce may be taken into account in assessing the period of dependency. In Owen v
Martin [1992] PIQR Q151, the judge adopted a multiplier of 15, but the Court of Appeal
reduced this to 11 on the basis that the widow’s attitude towards her marriage vows, as shown
by her personal history, led the court to believe that the marriage might not have lasted the
whole of the natural life of the deceased. The court should take this approach only provided
there is some evidence of likelihood of divorce (Wheatley v Cunningham [1992] PIQR Q100). See
also D and D v Donald [2001] PIQR Q44, concerning an extra-marital affair. In O’Loughlin v Cape
Distribution Ltd [2001] EWCA Civ 178, [2001] JPIL 191, the court confirmed that there was no
prescribed method by which damages for loss of dependency had to be identified. The key
factor was showing economic loss. However, the widow’s prospects of remarriage or actual
remarriage are to be ignored (FAA 1976, s 3(3)). Therefore, the period of the widow’s
dependency on her deceased husband is calculated without regard to the fact that she is or
may be financially supported by a new husband.
Conversion of the period of loss to a multiplier

Once the number of years’ loss of dependency has been ascertained, this is then converted to
a multiplier using the Ogden Tables (see Chapter 15) .
18.5.2.3 The multiplication

Having established the appropriate multiplicand and the overall multiplier, one method of
calculating the award for loss of dependency is as follows:
(a) Pre-trial losses – calculate the actual number of years’ loss from the date of death until
the trial and apply to the multiplicand (or multiplicands).The resulting amount(s) will
be treated as special damages and will attract interest.
(b) Future losses – deduct the number of pre-trial years from the overall multiplier and
apply the balance of the multiplier to the multiplicand (or multiplicands).
EXAMPLE
Tom Brown is killed in a road traffic accident. At the time of his death, Tom was 30 years
old. Tom has left a widow, Lucy, aged 29, and twin boys, Mark and James, aged 9. Tom was
a DIY enthusiast, and performed many decorating and maintenance tasks in the family
home. The value of the services to the family was £750 per year. Prior to the accident, Tom
was in good health and was expected to work until he was 65. His net annual earnings at
trial have been calculated as £10,000. The case comes to trial three years after the
accident.
A simplified schedule of loss for the above example is set out below:
Tom Brown’s date of birth January 1981
Date of accident/death January 2011
Date of schedule/trial January 2014
1. BEREAVEMENT DAMAGES £12,980.50
2. FUNERAL EXPENSES £1,390.50
3. PAST LOSSES
Past loss of earnings to date of schedule
Net pre-accident wage £10,000 pa
Reduction for deceased’s own needs: 25% so initial multiplicand = £7,500
1 January 2011 to 1 January 2014 (3 years) 3 x £7,500 = £ 22,500
Other services to family per annum (eg, gardening, housework, DIY)
3 × £750 = £2,250
TOTAL PAST LOSS OF DEPENDENCY £24,750.50
4. FUTURE LOSSES
Future loss of dependency – earnings
Annual rate of £7,500
Multiplier based on Tom Brown retiring at 65 = 19.84 (22.84 – 3)
£7,500 x 19.84 = £148,800
Future non-financial dependency – gardening, DIY etc
Annual rate of £750
Multiplier of 26.60 (29.60 – 3)
£750 x 26.60 = £19,950
TOTAL FUTURE LOSS OF DEPENDENCY £168,750
SUMMARY
Pre-trial loss £24,750
Future loss £168,750
Bereavement damages £12,980
Funeral expenses £1,390
TOTAL £207,870
In addition, interest is claimed on the pre-trial loss to the date of trial at half the short-term
rate, and on bereavement damages and funeral expenses at the full short-term investment
account rate.
The significant factors in the calculation are as follows:
(a) The length of loss of earnings dependency is likely to be based on Tom’s age of 30
and his retirement age of 65, that is a period of 35 years. This is likely to produce an
overall multiplier of 22.84 using table 9 of the Ogden Tables (see Appendix 5).
(b) There is a separate multiplicand based on the value of the services. The length of
this dependency would be longer than the earnings dependency, on the assumption
that Tom would have continued to provide these services throughout his lifetime
Using table 1 of the Ogden Tables this produces a multiplier of 29.60.
(c) In practice the multipliers may be further reduced to take account of contingencies
other than mortality (see Chapter 15).
(d) Three years have elapsed from the date of death to the date of this schedule. These
three years must be deducted from the overall multipliers which are calculated from
the date of death (not the date of trial as in straightforward personal injury cases).
Losses in this period are treated as special damages and will attract interest.
(e) The calculation may be split into various sub-calculations to reflect, for example,
that for the first nine years after the accident (but for his death) Tom would have
been supporting a wife and children (therefore he might have been expected to
spend one-quarter of his net earnings on his own maintenance), but for the
remaining 26 years of his working life (after the children became independent) he
would have been supporting only a wife (and therefore he might be expected to
spend one-third of his net earnings on his own maintenance). Another reason for
splitting the calculation may be to reflect any increased earnings because of
promotion.
The above example is given merely to illustrate the general principles of quantifying a claim. It
will be appreciated that, in practice, it will be rare that a person’s working and family life can
be predicted with such certainty, and other methods of calculating the loss of dependency (eg,
nil discount tables issued by the Government’s Actuary’s Department) have been advocated.
It should also be remembered that different multipliers must be applied to items that would
not have ceased at the age of 65. Detailed instructions need to be obtained from the client on
this point. In practice, therefore, the facts of a particular case are usually such as to defy
precise mathematical calculation. The assessment of dependency damages is a difficult
matter, and the court has to anticipate what would have occurred in the future. To assist the
court, as much evidence as possible should be obtained.
18.5.3 Apportionment of the dependency

Whenever there is more than one dependant under the FAA 1976, the court must apportion
the damages between them. Where a claim is made by a surviving spouse and child, the
court’s approach is often to assess the claim for dependency of the widow alone, and then to
apportion a small amount (‘pocket money’) to the child. This approach may be justified on
the basis that:
(a) the surviving spouse will be expected to provide for the child out of her damages;
(b) compared to the surviving spouse, the period of dependency of the child will often be
short (ending probably between the ages of 16 to 21 depending on whether the child is
expected to go on to higher education); and
(c) it avoids repeated applications to the court for the release of invested funds for the
benefit of the child.
However, the court is keen to protect the child’s interest, and this approach may not be
followed in every case. For example, if the surviving spouse is a known spendthrift and cannot
be trusted to provide for the child, the court may assess the claims of the surviving spouse and
child separately (see H and Another v S [2002] EWCA Civ 792, [2003] QB 965, concerning the
protection of any damages for child dependants).
Where the claim involves a minor dependant (or any other protected party), the court’s
approval of any settlement should be sought, as it will be necessary to satisfy the court that the
child’s interests are protected.
18.5.4 Bereavement
18.5.4.1 The claimants
The claim for bereavement is open only to a limited class (not just ‘dependants’ generally: see
18.5.1.1). The possible claimants are:
(a) the spouse of the deceased; or
(b) the parents of a legitimate unmarried deceased minor;
(c) the mother of an illegitimate unmarried deceased minor.
It should be noted that a cohabitee is excluded from the definition, despite the fact that a
cohabitee can pursue a dependency claim, as noted above. Furthermore, a child is not entitled
to the award of bereavement on the death of his parent; and in a case where both parents can
claim, the damages are divided equally between them (FAA 1976, s 1A(4)). However, in Navaei
v Navaei, 6 January 1995, the mother was negligent, and this resulted in the death of her
daughter. The father claimed all of the bereavement damages and stated that they should not
be shared with the mother. He argued that if he were to be paid only half of the damages, the
mother/tortfeasor would be benefiting contrary to public policy. The court held that in
bringing a claim under the FAA 1976, a claimant is under a duty to act on behalf of all
dependants and the father was allowed only half the damages.
In the case of Griffiths and Others v British Coal Corporation (QBD, 23 February 1998), it was held
that the FAA 1976 did not require an apportionment of damages for bereavement where there
were two causes of death (in this case, smoking and exposure to mine dust), and therefore the
claimant recovered the full statutory sum.
The claim for the bereavement award by parents depends on the deceased being a minor at the
date of death, not at the date of the accident (Doleman v Deakin (1990) The Times, 30 January).
18.5.4.2 The amount of the bereavement award

The award is a fixed amount of £12,980. Many people have criticised the level of award. In
certain cases, especially those with a media interest, defendants have offered a figure higher
than the statutory minimum, so as to avoid allegations by the press that they have
undervalued a life. Once entitlement is established, defendants are often amenable to paying
this part of the claim early by way of an interim payment.
18.5.5 Funeral expenses

Funeral expenses may be claimed if reasonable and paid by a dependant (FAA 1976, s 3(5)).
The question of reasonableness will be a decision on the facts of each case. Reference should
be made to previous case law in circumstances where the client puts forward an unusual
claim, so as to determine whether the court will regard the claim as reasonable or otherwise.
If the funeral expenses are paid by the estate then they are claimed as part of a LR(MP)A 1934
claim (see 18.4.3). Clearly, funeral expenses cannot be claimed under both the LR(MP)A 1934
and the FAA 1976.
18.5.6 Disregarding benefits

Section 4 of the FAA 1976 provides:
In assessing damages in respect of a person’s death in an action under this Act, benefits which have
accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be
disregarded.
For example, if a dependant receives insurance money as a result of the deceased’s death, the
dependant does not have to give credit for that money against the FAA 1976 damages.
Similarly, if damages awarded to the estate under a LR(MP)A 1934 claim end up in the hands
of a dependant by reason of the deceased’s will or rules of intestacy, those damages do not
necessarily reduce any FAA 1976 damages which may be awarded to that dependant.
See also H and Another v S [2002] EWCA Civ 792, [2003] QB 965, concerning support now
being given by a surviving parent who was unlikely to have supported the children if the death
had not occurred.
18.5.7 Recoupment and offsetting of benefits

Any payment made in consequence of a claim under the FAA 1976 is not subject to
recoupment under the Social Security (Recovery of Benefits) Act 1997 (see Chapter 16).
18.6 INTEREST
Interest on the bereavement damages may be awarded at the full short-term investment rate
(Sharman v Sheppard [1989] CLY 1190) from the date of death. Interest on funeral expenses is
usually awarded at the full rate from the date that they were paid.
The remaining pecuniary losses to the date of the trial are treated as special damages in a fatal
injury claim, and therefore are often awarded interest at half the short-term investment rate,
although it is arguable that interest can be awarded at the full rate in certain circumstances
(see 15.6). Future pecuniary loss attracts no interest.
18.7 PENSION LOSS

Investigations should be made as to whether there will be a reduced pension fund available to
the deceased’s dependants due to the early death, and this should be included within the
claim if appropriate (see also 15.3.6).
18.8 ESTABLISHING THE CASE

A fatal accident case will be dealt with in essentially the same way as any other personal injury
or clinical negligence claim. Evidence is needed to establish liability and the highest level of
damages. The claimant’s solicitor must remember to obtain a signed proof of evidence or
statement from a client as soon as possible in every case, as this will be of considerable
assistance if the client dies either due to the injuries sustained in the accident or otherwise. If
the solicitor has failed to take this precaution he will make proving the case more difficult.
Under the Civil Evidence Act 1995, the client’s statement or proof can now be put before the
court, and it should be regarded by the court as important evidence.
It should also be remembered that the inquest and/or any criminal prosecution will be an
important source of information (see Chapter 17), and as much information as possible
should be obtained.
18.9 CONDUCT
To avoid conflicts of interest arising, it is good practice to ensure that none of the dependants
who could be to blame in whole or part for the accident that resulted in the death are
appointed as personal representatives.
The conduct of a fatal accident claim clearly requires sympathy and diplomacy on the part of
the solicitor. There are frequently conflicts of personality between the dependants and
personal representatives, and this is compounded by the fact that only one claim can be
brought in respect of the fatal accident. If, after the fatal accident, it comes to light that the
deceased had more than one dependent family, it can be anticipated that any interviews with
the deceased’s wife may be difficult!
18.10 CONCLUSION
Acting on behalf of the relatives in a fatal accident claim requires the personal injury/clinical
negligence solicitor to have tact, sympathy and a detailed understanding of the law involved.
It should be appreciated that each case will be dealt with on its own facts, and only broad
principles have been established by the case law in this area. In fatal accident cases the court is
required to anticipate what would have occurred in the future, which will be different in every
case. An overview of damages which may be claimed in fatal cases is set out at 18.12 below.

18.12 OVERVIEW OF DAMAGES IN FATAL CLAIMS
THE ESTATE THE DEPENDANTS
LR(MP)A 1934 FAA 1976
Pain, Suffering and Loss of Amenity Bereavement

If there was a period of survival
Was deceased conscious? £12,980

Spouse/parent?
Loss of Income Dependency

Up to date of death Who are the dependants?
Nature of dependency, eg wages/
diy/childcare?
Services/Care provided Multiplicand

Up to date of death Husband and wife
Husband, wife and children ¾
Damages to personal items Multiplier

Eg car, clothing, jewellery Assess at date of death
Split between pre- and post-trial
Funeral expenses Funeral expenses

If not claimed under FAA If not claimed under LR(MP)A
Criminal Injuries Compensation Authority 291
CHAPTER 19
Criminal Injuries
Compensation Authority

19.2 Eligibility 292
19.3 Procedure 294
19.4 Compensation calculation 294
19.5 Withholding or reduction of award 296
19.6 Example 297
19.7 Conclusion 298
LEARNING OUTCOMES
• set out the criteria for eligibility to make a claim under the Criminal Injuries
Compensation Scheme 2013, and the relevant procedure
• explain how compensation is calculated
• explain when compensation may be withheld or reduced.
19.1 INTRODUCTION
Those who have suffered injury as a result of acts of violence may be unable to take civil
proceedings to recover damages, because those responsible are either unknown or have
insufficient means to pay compensation. However, blameless victims of crimes of violence in
Great Britain who have suffered injuries and associated loss can apply for compensation from
a government-funded scheme known as the Criminal injuries Compensation Scheme 2012
(the ‘Scheme’), which is administered by the Criminal Injuries Compensation Authority
(CICA). The Scheme is relevant for applications received on or after 27 November 2012.
The types of payment which may be available under the Scheme are:
(a) injury payments, which are calculated by reference to a tariff (see 19.4.1);
(b) loss of earnings payments (see 19.4.2);
(c) special expenses payments in respect of injury-related requirements which are not
available free of charge from any other source (see 19.4.3); and
(d) various payments relating to fatal injuries, which are beyond the scope of this book.
The maximum award payable in relation to one incident, before any reduction (see 19.5), is
£500,000, which may fall short of the actual losses suffered by the applicant. However, the
Scheme is not designed to provide full financial recompense, but rather to provide some
compensation, where there would not otherwise be any, out of the public purse and in
recognition of public sympathy for the victim. It is for this reason that the victim must be
‘blameless’ (see 19.5 below).
The Scheme is both comprehensive and complex and consequently only the basics are dealt
with here. For more information, you can find the Scheme, the 2008 Scheme (relevant for
applications received prior to 27 November 2012), the application forms and the Guide to the
2012 Compensation Scheme (the ‘Guide’) on the CICA website at www.cica.gov.uk.
It should be noted that CICA will not cover the costs of making an application under the
Scheme and therefore the client will need to fund the matter himself should he want a
solicitor to deal with the application on his behalf. The client should be advised that free
independent advice and help to make the application may be available from Victim Support,
Citizens Advice, law centres or welfare rights organisations.
19.2 ELIGIBILITY
In order to be eligible for compensation under the Scheme, an applicant must show that he
has sustained a criminal injury which is directly attributable to his being a direct victim of a
crime of violence committed in a ‘relevant place’ (para 4). In the vast majority of cases, and for
the purposes of this book, ‘relevant place’ means Great Britain (para 8), but it also covers, for
example, British-controlled aircraft and Her Majesty’s ships (see Annex C of the Schedule).
Compensation may also be paid to those who have sustained an injury while taking an
exceptional and justified risk in order to remedy or prevent a crime (para 5), to those who have
sustained a mental injury as a result of witnessing or being involved in the immediate
aftermath of an incident in which a loved one is injured (para 6), or to a qualifying relative of a
victim who died as a result of a crime of violence (para 7), but these matters are beyond the
scope of this book.
19.2.1 What is a crime of violence?

There is no legal definition of what amounts to a ‘crime of violence’, but types of crimes of
violence which may lead to a payment are set out in Annex B of the Scheme. The following are
included, provided the perpetrator acts intentionally or recklessly:
(a) a physical attack;
(b) any other act or omission of a violent nature which causes physical injury to a person, eg
withholding something that another person needs to stay alive;
(c) a threat against a person, causing fear of immediate violence in circumstances which
would cause a person of reasonable firmness to be put in such fear;
(d) a sexual assault to which a person did not in fact consent; or
(e) arson or fire-raising.
However, a crime of violence will not be considered to have been committed for the purposes
of the Scheme if an injury:
(a) resulted from suicide or attempted suicide, unless the suicidal person acted with intent
to cause injury to another person;
(b) resulted from the use of a vehicle, unless the vehicle was used with intent to cause injury
to a person;
(c) resulted from an animal attack, unless the animal was used with intent to cause injury to
a person;
(d) was sustained in the usual course of sporting or other activity to which a person
consented by taking part in the activity; or
(e) was sustained in utero as a result of harmful substances willingly ingested by the mother
during pregnancy, with intent to cause, or being reckless as to, injury to the foetus.
19.2.2 Residency and nationality

The applicant must meet one of the following residency requirements (paras 10–13):
(a) ordinarily resident in the UK on the date of the incident;

(b) a British citizen;
(c) a close relative of a British citizen;
(d) a national of a Member State of the European Union (EU) or the European Economic
Area (EEA);
(e) a family member of an EU/EEA national who has the right to be in the UK;
(f ) a national of a State party to the Council of Europe Convention on the Compensation of
Victims of Violent Crimes (CETS No 116, 1983);
(g) a member of Her Majesty’s armed forces, or an accompanying close relative of an armed
forces member;
(h) someone identified as a potential victim of human trafficking on or before the date of
the application; or
(i) someone who made an application for asylum to remain in the UK on or before the date
of the application for an award.
19.2.3 Matters which may prevent eligibility

It is not necessary for the assailant to have been convicted of an offence in connection with the
injury (para 9), and in some cases, the applicant will not know the identity of the offender.
However, the following matters will prevent eligibility being established (in relation to
accidents happening after 1 October 1979 only):
(a) the applicant has already applied for compensation for the same criminal injury under
this or any other Criminal Injuries Compensation Scheme (para 18);
(b) the applicant and the person who caused the injury were adults living together as
members of the same family at the time and will continue to do so (para 20); or
(c) the person who injured the applicant could benefit from the award as a result of a
continuing link between that person and the applicant (para 21).
19.2.4 Time limit

Applications should be made as soon as reasonably practicable and, where the applicant was
18 or over at the date of the incident causing the injury, it must be made within two years of
the date of the incident (para 87).
Where the applicant was under 18 at the time of the incident, it is advisable that an application
is made on his behalf as soon as possible, as it may be more difficult to provide the relevant
evidence at a later stage. However, the following time limits apply:
(a) If the incident was reported to the police before the applicant turned 18, but no
application was made on his behalf, the claim must be made before the applicant
reaches 20.
(b) If the incident took place before the applicant reached 18 but was not reported at the
time, an application may be made up to two years of the date when the incident was first
reported to the police.
In both of the above instances, an application will not be accepted unless the claims officer is
satisfied that the evidence presented in support of the application means that it can be
determined without further extensive enquiries (para 88).
In relation to applicants of any age, in exceptional circumstances, ie where the circumstances
of the injury meant that the application could not reasonably have been made within the time
limit, CICA may extend the time limit provided it can make a decision without further
extensive enquiries (para 89). CICA does not normally consider the applicant’s lack of
knowledge of the Scheme to be an ‘exceptional reason’.
19.3 PROCEDURE
Applications must be made by filling in CICA’s application form and submitting it online at
www.justice.gov.uk/victims-and-witnesses/cica/apply-online or by supplying the relevant
details over the telephone. Initially, a regional casework team will handle the application but,
once CICA has all the relevant evidence, a claims officer will be assigned to the claim and he
will determine the matter on the balance of probabilities.
At all times, the applicant must comply with his obligations as set out in paras 91 and 92 of the
Scheme. In other words, he must comply with any direction or condition imposed by the
claims officer, assist the claims officer as far as reasonably practicable, and provide all
information and evidence relevant to the application.
The onus is on the applicant to prove that he is eligible for a payment, and therefore evidence
that the applicant meets the residency requirements and basic medical evidence of the injury
suffered must be provided. The applicant must also provide signed consent for the release of
all records relevant to the application to CICA. These might include:
(a) evidence the applicant gave to the police about the incident. CICA will obtain
confirmation from the police that the incident was reported to them and that the
applicant’s behaviour was not a contributory factor;
(b) criminal records;
(c) medical records; and
(d) where loss of earnings and/or special expenses payments are being claimed,
information from the Department for Work and Pensions and/or HM Revenue and
Customs.
CICA may require further medical evidence, in which case the applicant will be required to
meet the costs of providing initial medical evidence up to maximum of £50. If further medical
evidence is required, such as where injuries are complex, the application involves a claim for
mental illness, or where there may be pre-existing conditions, the applicant will be required
to see his existing doctor or an expert arranged by CICA, and the costs of will be met by CICA.
If the applicant wishes to provide his own medical evidence, CICA will cover the cost only if it
relies on the evidence to determine the claim.
19.4 COMPENSATION CALCULATION

Compensation is based on a tariff award for the injuries suffered and, where relevant,
compensation for lost earnings and/or special expenses. The minimum award that can be
made is £1,000 and the maximum award that may be made in respect of one application is
£500,000, before any deductions are made (para 31).
19.4.1 The injury payment (paras 32–41)

In order to determine whether compensation is payable for a certain injury and to calculate
the amount due, the claims officer will consult the Tariff of Injuries set out in Annex E of the
Scheme. This list sets out descriptions of approximately 400 different types of injuries and, in
relation to each one, specifies both the level of seriousness – by means of a figure from 1
(being the least serious) to 20 – and the associated fixed amount of compensation. A Level 1
injury is valued at £1,000 and a Level 20 injury is valued at £250,000. Part A of the tariff shows
the amount payable in respect of physical and mental injuries. (Part B, which shows the
amount payable in respect of fatal injuries, and injuries resulting from sexual and physical
abuse, is beyond the scope of this book.)
The following should be noted:
(a) Compensation is not payable under the Scheme unless the injury appears in Appendix
3, although where an injury does not appear in the list, but is of an equivalent
seriousness to an injury which does appear, CICA may refer the matter to the Secretary
of State for consideration for inclusion.
(b) Where an applicant is eligible for an injury payment in respect of an injury requiring an
operation, no separate payment will be made in respect of scarring arising from that
operation (para 35).
(c) Where an applicant’s injury includes the acceleration or exacerbation of an existing
condition, the payment will only compensate for the degree of acceleration or
exacerbation, will be calculated by reference to such tariff injuries as the claims officer
considers appropriate, and will not be paid at all unless the relevant payment is £1,000
or more (para 36).
In order to calculate the total tariff award where there are two or more injuries, the three most
serious injuries must be identified and the associated tariffs added together as follows:
(a) 100% of the tariff for the highest rated injury; plus
(b) 30% of the tariff for the second highest injury; plus, where relevant
(c) 15% of the tariff for the third highest injury.
No compensation is payable in respect of any additional injuries (para 37).
19.4.2 Compensation for lost earnings (paras 42–49)

Where an applicant is entitled to a tariff payment and has been unable to work or may be
prevented from working in the future as a direct result of the injury, he may also be entitled to
be compensated for lost earnings provided he satisfies the following conditions (para 43):
(a) He must be unable to do any paid work or have a very limited capacity to do such work,
ie he can work only a few hours of paid work per week. Where the applicant has capacity
to do paid work, but the type of work he is able to do is limited as a result of his injuries,
a loss of earnings payment will not be made.
(b) He must be able to demonstrate that he was in work at the time of the accident, or show
that he had either an established work history, or a good reason for not having such a
work history, for the three years immediately prior to the accident. A good reason may
be that he was in full time education, or that he was unable to work due to his age or
caring responsibilities.
Payments for loss of earnings are made at a fixed weekly rate, which is the rate of Statutory
Sick Pay (SSP) in force at the date when a decision is made regarding the application (currently
£86.70). No such compensation is payable for the first 28 weeks following the date of the
accident, and therefore the period to which a loss of earnings payment will relate begins on
the first day of the 29th week (para 44).
A loss of earnings payment may relate to earnings lost before an application is determined
(past loss of earnings) and any losses which may continue after the determination (future loss
of earnings).
A loss of earnings payment in respect of past loss of earnings will be calculated by multiplying
the weekly rate of SSP at the date of determination by the number of weeks from the beginning
of week 29, treating part weeks as full weeks, and ending on the day the application is
determined (para 47).
Payment for future loss of earnings will be calculated by:
(a) multiplying the weekly rate of SSP at the date of determination by the number of weeks
of the period of entitlement. That period begins on the day after the date on which the
application is determined and ends when the applicant is no longer incapable of
working, or he reaches retirement age or, where the criminal injury has resulted in a life
expectancy below the state pension age, the expected end of the applicant’s life
(para 48);
(b) discounting the payment so calculated in accordance with the Tables in Annex F, which
set out:
(i) multipliers to be applied to account for the accelerated receipt of payments, which
are found by reference to the number of years of future loss (Table A);
(ii) discount factors to be applied to a lump sum in respect of loss which starts at a
future date, which are also found by reference to the number of years of future loss
(Table B); and
(iii) assumptions in relation to life expectancy, which are calculated by reference to the
applicant’s age at the date of determination (or death in the case of fatality)
(Table C).
19.4.3 Compensation for special expenses (paras 50–56)

Compensation may be paid for special expenses incurred as a result of the injury from the
date of the injury, but only where the applicant is eligible for an injury payment and has lost
earnings or earnings capacity for longer than 28 weeks.
A special expenses payment will only be made in relation to expenses of the types listed in
para 52, such as the applicant’s own property or equipment used as a physical aid which was
damaged in the incident, NHS prescriptions and dentists or optician’s charges, special
equipment such as wheelchairs or specially-adapted vehicles, the costs of adaptations to the
applicant’s home, and costs arising from the administration of the applicant’s affairs due to
his lack of mental capacity, provided the following conditions apply (para 51):
(a) they were/will be necessarily incurred by the applicant on or after the date of the injury
as a direct result of the criminal injury giving rise to the injury payment;
(b) provision, or similar provision, is not available free of charge from another source; and
(c) the cost is reasonable.
Where the need for special equipment is likely to continue, a claims officer will:
(a) assess the cost of replacement, taking into account the number of likely replacements;
(b) deduct the amount for which the applicant’s existing equipment could be sold on each
occasion; and
(c) apply an appropriate discount factor in accordance with Table B of Annex F to take
account of the fact that a lump sum will be paid in respect of loss which will arise in the
future.
Where the need for any other special expenses of a type specified in para 52 is likely to
continue, a claims officer will assess the annual cost of the expense and apply the relevant
Tables in Annex F (para 53).
A special expenses payment may be withheld or reduced to take account of the receipt of, or
entitlement to, social security benefits or insurance payments (paras 54–56), the details of
which are beyond the scope of this book.
19.5 WITHHOLDING OR REDUCTION OF AWARD

The Scheme is funded by the Government on the basis that the public are sympathetic to
innocent victims of crime and wish to see them supported. Consequently, compensation may
be refused or discounted in respect of applications by those who may be seen as morally
undeserving of support. In addition, the Scheme must be protected from fraudulent claims
and applicants should not be permitted to be over-compensated.
Compensation may be withheld or reduced in the following circumstances:
(a) where the applicant has failed to report the incident to the police, or has thereafter
failed to co-operate with the police or with the CICA (paras 22–24). Generally, the
applicant must make a formal report to the police immediately following the incident,
and this must be done by the applicant in person, unless his injuries prevent him from
doing so. Co-operation with the police includes making a statement, attending identity
procedures and giving evidence in court, if required. Co-operation with the CICA
includes supplying complete and truthful information, and attending independent
medical examinations, if required;
(b) where the applicant behaved inappropriately either before, or during or after the
incident (para 25). This will include where the applicant’s consumption of alcohol or
illegal drugs caused him to act aggressively or to provoke the attack, where he
voluntarily took part in a fight, where he threw the first punch, or where his use of
abusive language or gestures led to the incident. However, this does not include where
intoxication through alcohol or drugs made the applicant more vulnerable to becoming
a victim of a crime of violence. So an applicant who was sexually assaulted whilst
intoxicated may still be eligible to receive a full award;
(c) where the applicant has unspent criminal convictions (para 26). Annex D sets out how
CICA will determine what effect an unspent criminal conviction will have in respect of
the withdrawal or reduction of an award. However, in general terms, an unspent
conviction which attracted a custodial or community sentence will result in the
withdrawal of the award, whilst a lesser sentence (other than endorsements, penalty
points or fines resulting from motoring offences) will result in a reduction in the
amount of the award;
(d) where the applicant’s character, other than in relation to an unspent conviction, makes
it appropriate (para 27). CICA will consider evidence relating to involvement with illegal
drugs or other crimes, tax evasion or benefit fraud, anti-social behaviour orders and
cautions or reprimands;
(e) where the applicant receives or is awarded criminal injuries compensation or a similar
payment, receives an order for damages from a civil court, agrees the settlement of a
damages claim, or receives a compensation order or offer made during criminal
proceedings (para 85); or
(f ) in relation to payments for special expenses only, where the applicant has received State
benefits or insurance payments in respect of the injury (paras 54–56 – see 19.4.3).
19.6 EXAMPLE
Last year, Jacob was attacked in Birmingham city centre as he made his way home from work.
He was punched to the ground and kicked repeatedly by assailants who have not been
identified. He suffered a depressed fracture of the skull, for which he required surgery, his jaw
was dislocated and a front tooth was knocked out. The tooth has been replaced, but his other
injuries are continuing to cause him significant difficulties. In addition, he has completely
lost his sense of smell. Jacob was unable to work for 40 weeks, but he has now returned to his
previous job as a shop assistant. His salary throughout the period when he was unable to work
would have been £250 per week, but Jacob received only statutory sick pay of £86.70 per week
during this period.
Tariff for injuries: depressed fracture of skull requiring operation = £4,600 (Level A6);
dislocated jaw causing continuing significant disability = £3,500 (Level A5); loss of one front
tooth = £1,500 (Level A2); total loss of smell = £11,000 (Level A8). Only the three most serious
injuries may be considered.
Calculation: 100% of £11,000 (loss of smell) = £11,000; 30% of £4,600 (fractured skull) =
£1,380; 15% of £3,500 (dislocated jaw) = £525.
Total for injury = £12,905.
Lost salary: Nothing for first 28 weeks. Thereafter, 12 weeks at the SSP rate of £86.70 per week
= £1,040.40. The SSP he has already received is not deductible.
Total payment: £12,905 + £1,040.40 = £13,945.40.
19.7 CONCLUSION
Generally, those who have suffered injury as a result of an act of violence are unable to take
civil proceedings against the perpetrator as their attacker is unlikely to have the financial
means to pay damages. Where such a situation exists, and it is not possible to hold another
individual or body, such as an employer, responsible for the perpetrator’s actions, the
Criminal Injuries Compensation Scheme may provide compensation to the victim.
As the costs associated with making an application are not recoverable by the applicant, the
solicitor should advise him that free assistance may be available elsewhere. However, if the
client instructs the solicitor to make the application on his behalf, the solicitor should ensure
that he falls within the criteria set out in the Scheme rules and that the procedure for making a
claim is followed correctly.
Compensation for injuries suffered is based on a tariff which sets out a comprehensive list of
injuries of varying seriousness. Where such an award is made and the victim is unable to work
for more than 28 weeks, past and future loss of earnings from the 29th week may also be
awarded, as may items of special expense. The total claim cannot exceed £500,000.
Awards may be withheld or reduced as a result of the applicant’s conduct before, during or
after the incident.

Criminal Injuries Compensation Scheme 2012 and A Guide to the Criminal Injuries
Compensation Scheme 2012 (Criminal Injuries Compensation Authority)
www.justice.gov.uk/guidance/compensation-schemes/cica/index.htm
Claims on Behalf of Children and Protected Parties 299
CHAPTER 20
Claims on Behalf of Children

and Protected Parties

20.2 Limitation 300
20.3 The litigation friend 300
20.4 Court’s approval of settlements 302
20.5 Control of money recovered by or on behalf of a child or protected party 303
20.6 Conclusion 303
LEARNING OUTCOMES
• identify a child and a protected party
• understand who might act as a litigation friend, what their duties are, how they are
appointed and when their appointment ceases
• appreciate the court’s role in sanctioning settlements involving children and
protected parties
• set out how the money recovered on behalf of a child or protected party will be dealt
with.
20.1 INTRODUCTION
The Civil Procedure Rules (CPR), Part 21 and PD 21 set out special provisions relating to
proceedings brought or defended by children and protected parties, ie those who lack the
mental capacity to conduct proceedings on their own behalf. Many of these provisions apply
equally to children and protected parties, for example:
(a) proceedings will usually be conducted on behalf of the child or protected party by a
litigation friend (see 20.3);
(b) the court must approve any settlement of a claim made on behalf of a child or protected
party (see 20.4); and
(c) the court will direct how damages recovered on behalf of a child or protected party will
be dealt with (see 20.5).
20.1.1 Who is a child/protected party?

A child is a person who is not yet 18 years old.
A protected party is a person who lacks capacity, within the meaning of the Mental Capacity
Act 2005, to conduct proceedings. In accordance with s 2 of the 2005 Act, a person lacks
capacity in relation to a matter if at the material time he is unable to make a decision for
himself in relation to the matter because of an impairment of, or a disturbance in the
functioning of, the mind or brain. It is irrelevant whether the impairment or disturbance is
permanent or temporary and a person’s age or appearance, or his condition or an aspect of his
behaviour, which might lead others to make unjustified assumptions about his capacity, are
not of themselves sufficient to establish incapacity.
The principles to be applied when dealing with questions of capacity are set out in s 1 of the
2005 Act as follows:
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help
him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise
decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity
must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for
which it is needed can be as effectively achieved in a way that is less restrictive of the person’s
rights and freedom of action.
The case of Dunhill (a protected party by her litigation friend Paul Tasker) v Burgin [2012] EWCA Civ
397 illustrates how important it is for practitioners to consider whether a party to the
proceedings might lack capacity to deal with them. The claimant was an adult woman who
had been injured as a result of a road traffic accident, and the modest claim bought on her
behalf was settled in the sum of £12,500. Although it was known that she had suffered brain
damage, it appears that none of the legal advisers gave any thought as to whether or not she
had the capacity to deal with the litigation. Consequently, a litigation friend was not
appointed and the court was not asked to approve the settlement. Several years later (when it
was realised that a more realistic valuation of the claim might exceed £2,000,000), the Court
of Appeal determined that an application made on the claimant’s behalf to set aside the
settlement, on the grounds of her lack of capacity to manage her affairs at that time and the
absence of court approval, should succeed.
20.2 LIMITATION
Under s 28(6) of the Limitation Act 1980, where a person under a disability (ie a child or an
individual lacking mental capacity) has a cause of action, the three year limitation period does
not start to run until he ceases to be under a disability.
For a child who is not also a protected party, this is when he reaches his 18th birthday, which
means that he has until his 21st birthday to commence proceedings.
For a protected party, provided he was incapacitated at the time when the cause of action
accrued, disability ceases if and when he regains mental capacity. Where mental incapacity
arises after the limitation period has commenced, it will not prevent time from continuing to
run. However, an application may be made under s 33 of the LA 1980 to disapply the
limitation period (see 7.8).
20.3 THE LITIGATION FRIEND

A protected party may not conduct proceedings without a litigation friend, and a child must
have a litigation friend unless the court orders otherwise (CPR, r 21.2). The court will make an
order permitting a child to conduct litigation without a litigation friend only where it is
satisfied that the child has sufficient maturity and understanding to deal with the proceedings
(Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7).
20.3.1 Who may be the litigation friend?

In accordance with CPR, r 21.4, the following individuals may be a litigation friend:
(a) in the case of a protected party, a deputy appointed by the Court of Protection under the
Mental Capacity Act 2005 with power to conduct proceedings on the protected party’s
behalf;
(b) in all other cases, someone who:
(i) can fairly and competently conduct proceedings on behalf of the child or
protected party,
(ii) has no interests adverse to that of the child or protected party (eg, if a child is
injured in a road traffic accident while a passenger in a car being driven by his
father, the mother should act as litigation friend as the father may become a
defendant in the proceedings), and
(iii) where the child or protected party is a claimant, undertakes to pay any costs which
the child or protected party may be ordered to pay in relation to the proceedings,
subject to any right he may have to be repaid from the assets of the child or
protected party.
This is the case whether the litigation friend is appointed without a court order or with a court
order (see CPR, r 21.6(5)).
In circumstances where there is no one suitable and willing to act as the litigation friend, the
Official Solicitor will so act subject to his costs being covered.
20.3.2 How is a litigation friend appointed?

A court order will be required where a party to the proceedings other than the child or
protected party applies for a litigation friend to be appointed, or where a new litigation friend
is to be substituted for an existing one.
In other cases, a person who wishes to be appointed must follow the procedure set out in CPR,
r 21.5:
(a) A deputy appointed by the Court of Protection with power to conduct proceedings on a
protected party’s behalf must file an official copy of the order of the Court of Protection
which confers his power to act.
(b) Any other person must file a certificate of suitability stating he satisfies the conditions
specified in r 21.4(3).
This must be done at the time the claim is made if he acts for a claimant, and at the time he
first takes a step in the proceedings if he acts for a defendant.
Practice Direction 21, para 2.2 requires the certificate of suitability to be set out in Form
N235. The person seeking appointment must state:
(a) that he consents to act;
(b) that he knows or believes that the claimant/defendant is a child/lacks capacity to
conduct the proceedings;
(c) in the case of a protected party, the grounds of his belief and, if his belief is based upon
medical opinion or the opinion of another suitably qualified expert, attach any relevant
document to the certificate;
(d) that he can fairly and competently conduct proceedings on behalf of the child or
protected party and has no interest adverse to that of the child or protected party; and
(e) where the child or protected party is a claimant, that he undertakes to pay any costs
which the child or protected party may be ordered to pay in relation to the proceedings,
subject to any right he may have to be repaid from the assets of the child or protected
party.
The certificate of suitability must be verified by a statement of truth.
20.3.3 When does the litigation friend’s appointment cease

In accordance with CPR, r 21.9, when a child who is not a protected party reaches the age of
18, the litigation friend’s appointment ceases. Where a protected party regains capacity to
deal with the proceedings himself, the litigation friend’s appointment continues until it is
ended by court order.
Within 28 days after the cessation of the appointment, the child or protected party must serve
on other parties and file at court a notice stating that the appointment of his litigation friend
has ceased, giving his address for service, and stating whether or not he intends to carry on
the proceedings. If he fails to do so, on application, the court may strike out his claim or
defence.
Where litigation is continuing, the title of the proceedings should be amended in order to
reflect the change in the claimant’s circumstances, eg ‘A B (formerly a child but now of full
age)’.
20.4 COURT’S APPROVAL OF SETTLEMENTS

Where a claim involves a child or a protected party, under CPR, r 21.10 no settlement,
compromise or payment (including any voluntary interim payment) and no acceptance of
money paid into court shall be valid without the court’s approval. This approval is necessary to
ensure that the claim is not settled for less than it is worth and that the award is invested
appropriately or, where there are future pecuniary losses, periodical payments are considered.
Moreover, if such approval to a settlement is not obtained, a child claimant upon reaching 18,
or a protected party upon regaining capacity, may issue proceedings against the defendant or,
alternatively, issue proceedings against the litigation friend for negligently dealing with his
claim.
If an agreement is made between the parties prior to proceedings being issued and the sole
purpose of issuing proceedings is to obtain the court’s approval, the solicitor must follow the
procedure set out in Part 8 of the CPR, and a specific request must be included with the claim
form for approval of the settlement. In addition, a draft consent order must be provided to the
court using Practice Form N292.
20.4.1 The approval hearing

The aim of the hearing is to ensure that the settlement agreed is a reasonable one and is in the
best interests of the child or protected party. At the hearing, the court will wish to have made
available a number of documents, including the following:
(a) the birth certificate of the child or protected party (certainly details of the age and
occupation, if any);
(b) where proceedings have been commenced, the statements of case and other documents
already on the court file;
(c) evidence on liability (information as to whether liability is in dispute or the extent to
which the defendant admits liability) and documents such as the PAR, inquest report
and details of any prosecutions brought;
(d) an up-to-date calculation of past and future losses (with supporting documentation);
(e) an up-to-date medical report or reports;
(f ) the litigation friend’s certificate of suitability;
(g) the litigation friend’s approval of the settlement;
(h) an interest calculation to date;
(i) Court Funds Office Form 320 (request for investment);
(j) a copy of an opinion on the merits of the agreed settlement given by counsel or a
solicitor (while the case is a simple one).
20.5 CONTROL OF MONEY RECOVERED BY OR ON BEHALF OF A CHILD OR

PROTECTED PARTY
The court will make directions as to how money recovered by or on behalf of a child or
protected party should be dealt with, which may include (PD 21, para 8.1) that:
(a) the money be paid into court for investment;
(b) certain sums be paid direct to the child or protected beneficiary, his litigation friend or
his legal representative for the immediate benefit of the child or protected beneficiary
or for expenses incurred on his behalf; and
(c) the application in respect of the investment of the money be transferred to a local
district registry.
20.5.1 Children
Where the case has been concluded by settlement, the court will forward to the Court Funds
Office a request for investment decision and the Public Trustee’s investment managers will
make the appropriate investment.
Where the matter has been concluded at trial, unless the amount is small (in which case it will
be paid to the litigation friend to be placed in a building society account or similar for the
benefit of the child), the court will direct that the money be paid into court and placed into the
special investment account until further investment directions can be given by the court.
The court may appoint the Official Solicitor to be a guardian of the child’s estate. Those with
parental responsibility must agree, unless the court decides that their agreement can be
dispensed with.
When the child reaches 18, any money invested in court must be paid out to him.
20.5.2 Protected parties

Before directions are made in a case involving a protected party, the court must determine
whether the protected party is a protected beneficiary, ie he lacks the capacity to manage and
control the money he has received. Where he is judged to be a protected beneficiary, the Court
of Protection has jurisdiction to make decisions about how to deal with money recovered in
his best interests. The Court of Protection is entitled to make charges for the administration
of funds, and provision must be made for such charges in any settlement reached (PD 21, para
10.1).
Where the sum to be administered on behalf of the protected beneficiary is less than £30,000,
it may be retained in court and invested on his behalf. If it is £30,000 or more, unless the person
with authority as an attorney under a registered enduring power of attorney, the donee of a
lasting power of attorney, or the deputy appointed by the Court of Protection has been
appointed to administer or manage the protected beneficiary’s financial affairs, the court will
direct the litigation friend to apply to the Court of Protection for the appointment of a deputy,
after which the fund will be dealt with as directed by the Court of Protection (PD 21, para 10.2).
20.6 CONCLUSION
This chapter merely outlines the most important issues which need to be considered when
dealing with a claim involving a child or a protected party. It does not include everything that
must be considered, for example the issue of the costs which may be recovered by the
claimant’s solicitor in these matters. The court always requires solicitors to deal with personal
injury and clinical negligence claims competently and professionally, but it will be less
tolerant of inadequacies in the services provided when dealing with claims involving children
and protected parties. It is therefore incumbent on solicitors to ensure that they are familiar
with the relevant issues and the court rules which govern them.
The Pre-Action Protocols for Low Value RTA, EL and PL Claims 305
CHAPTER 21
The Pre-Action Protocols

for Low Value RTA, EL and PL
Claims

21.2 Application of the protocols 305
21.3 The three stages 306
21.5 Fixed costs 308
21.6 Offers to settle 309
21.7 What if a claim exits the Portal? 309
21.8 Conclusion 311
LEARNING OUTCOMES
• appreciate when the RTA or EL/PL Protocol for low value claims applies
• understand how to commence a claim through the Claims Portal
• describe the further stages that a claim may go through once commenced
• identify the fixed costs that may be claimed at the end of each stage
• understand how to make an offer to settle under the RTA or EL/PL Protocols
• understand what happens to a case which exits the Portal.
21.1 INTRODUCTION
On 31 July 2013, two new Pre-Action Protocols for Low Value Personal Injury Claims in Road
Traffic Accidents (the ‘RTA Protocol’) and Employers’ Liability and Public Liability Claims
(the ‘EL/PL Protocol’) came into force, extending the previous Protocol which had been in
force for RTAs from £10,000 to £25,000 and introducing a new procedure for EL or PL claims
valued at up to £25,000. Solicitors who are instructed to act in RTA, EL or PL cases need to
understand how to run these so called ‘Portal’ claims and so must be familiar with the
Protocols, Practice Direction 8B, and the accompanying regime of fixed costs which are
outlined in this chapter.
21.2 APPLICATION OF THE PROTOCOLS

21.2.1 When will the RTA Protocol apply?
Paragraph 4.1 of the RTA Protocol states that it will apply where:
(a) a claim for damages arises from a road traffic accident where the Claim Notification
Form (CNF) is submitted on or after 31 July 2013;
(b) the claim includes damages in respect of personal injury;
(c) the claimant values the claim at no more than the ‘Protocol Upper Limit’ (see below);
and
(d) if proceedings were started, the small claims track would not be the normal track for
that claim.
The ‘Protocol Upper Limit’ is defined in para 1.2 as:
(a) £25,000 where the accident occurred on or after 31 July 2013; or
(b) £10,000 where the accident occurred on or after 30 April 2010 and before 31 July 2013.
The value is on a full liability basis including pecuniary losses but excluding interest.
Paragraph 4.3 states that a claim may include vehicle related damages, but these are excluded
for the purposes of valuing the claim.
‘Vehicle related damages’ are defined as damages for the pre-accident value of the car, vehicle
repair, insurance excess and vehicle hire (para 1.1(18)). ‘Pecuniary losses’ are defined as past
and future expenses and losses (para 1.1(14)).
Paragraph 4.4 sets out a number of claims to which the RTA Protocol will not apply including:
(a) claims made to the MIB under the Untraced Drivers Agreement 2003; and
(b) where the claimant or defendant acts as the personal representative of a deceased
person or is a protected party.
21.2.2 When will the EL/PL Protocol apply?
Paragraph 4.1 of the EL/PL Protocol states that it applies where:
(a) either:
(i) the claim arises from an accident occurring on or after 31 July 2013; or
(ii) in a disease claim, no letter of claim has been sent to the defendant before 31 July
2013;
(b) the claim includes damages in respect of personal injury;
(c) the claimant values the claim at not more than £25,000 on a full liability basis including
pecuniary losses but excluding interest (‘the upper limit’); and
(d) if proceedings were started, the small claims track would not be the normal track for
that claim.
Paragraph 4.3 sets out claims to which the EL/PL Protocol will not apply, most notably:
(a) claims where the claimant or defendant is the personal representative of a deceased
person or a protected party;
(b) claims arising out of the harm, abuse or neglect of a child/protected party;
(c) mesothelioma claims; and
(d) disease claims where there is more than one employer defendant.
21.3 THE THREE STAGES

Both the RTA and the EL/PL Protocols set out a three-stage process. Stages 1 and 2 are pre-
litigation. The court becomes involved only at Stage 3. A summary of each stage follows.
21.3.1 Stage 1
(a) To begin the process, the claimant must complete and send the Claim Notification
Form (CNF) to the defendant’s insurer. It must be sent electronically via
www.claimsportal.org.uk.
(b) At the same time, the Defendant Only CNF must be sent to the defendant by first class
post. This is the only exception to para 5.1 of both Protocols, which provides that all
information sent to a party must be sent electronically.
There are further detailed provisions to follow in para 6.1 of the EL/PL Protocol where
the identity of the insurer is not known or there is no insurance. It is sometimes difficult
to establish the identity of insurers in EL/PL claims (due to the passage of time that
sometimes elapses before claims are brought), but para 6.1(3) states that the claimant
must make a reasonable attempt to identify the insurer and, in an EL claim, must carry
out a database search through the Employers’ Liability Tracing Office.
(c) The insurer must send to the claimant an electronic acknowledgement the day after
receipt of the CNF.
(d) The insurer must complete the ‘Insurer Response’ section of the CNF and send it to the
claimant within:
(i) 15 days for an RTA claim;
(ii) 30 days for an EL claim;
(iii) 40 days for a PL claim.
(e) If the insurer admits liability, the insurer must pay the Stage 1 fixed costs (see below)
within 10 days of receiving the Stage 2 settlement pack (see Stage 2 below).
(f ) If the insurer does not respond, denies liability, alleges contributory negligence (other
than failure to wear a seatbelt in an RTA case) or asserts that the information in the CNF
is inadequate, then the claim exits the Protocol and the claimant may continue the claim
under the existing procedure.
(g) Both Protocols provide that, before the end of Stage 1, the insurer must apply to the
CRU for a certificate of recoverable benefits.
21.3.2 Stage 2
Liability having been admitted, the process now turns to valuation of the claim and
settlement.
(a) In an EL claim, the defendant must within 20 days of the admission of liability provide
earnings details to verify the claimant’s loss of earnings. Under both Protocols, the
claimant now obtains a medical report. There is no time limit for doing this.
(b) When ready to value the claim, the claimant sends the Stage 2 settlement pack to the
insurer. This includes:
(i) the medical report(s);
(ii) any medical records or photographs served with medical reports;
(iii) evidence of all special damages claimed;
(iv) receipts for disbursements (eg the cost of the medical report);
(v) any witness statements; and
(vi) an offer of settlement.
Non-medical reports are not expected to be required as part of the Stage 2 pack, but may
be obtained where reasonably required to value the claim. In most cases, witness
statements, whether from the claimant or otherwise, will not be required as part of the
Stage 2 pack, but they may be provided where reasonably required to value the claim.
(c) The insurer must respond within 15 days by accepting the offer or making a counter-
offer (the ‘initial consideration period’).
(d) If the claim is not settled, there follows a 20-day negotiation period (the ‘negotiation
period’).
(e) Both the initial period and the negotiation period may be extended by agreement.
(f ) An offer to settle by either party will automatically include an agreement to pay Stage 2
fixed costs and disbursements. In some cases, additional advice may be obtained from
counsel or a specialist lawyer to assist in valuing any claim over £10,000, recoverable as a
disbursement, but this should not be the norm.
(g) If the insurer does not respond to the Stage 2 settlement pack, the claim exits the RTA or
the EL/PL Protocol.
(h) If the insurer responds but the claim is not settled, the claimant’s solicitor prepares a
court proceedings pack (CPP) and sends it to the insurer or its nominated solicitor to
check for accuracy. The pack includes both parties’ comments on disputed heads of
damage and both parties’ final offers. The insurer has five days to check the pack.
(i) In addition, except where the claimant is a child, the insurer must pay to the claimant its
final offer of damages (net of any CRU benefits and interim payments already made)
plus Stage 1 and 2 fixed costs and disbursements within 15 days of receiving the CPP.
21.3.3 Stage 3
(a) The claimant issues proceedings under CPR, Part 8 in accordance with Practice
Direction 8B.
(b) The defendant must acknowledge service within 14 days.
(c) It is assumed that the final assessment of damages will be a paper exercise which neither
party will attend. However, either party may request an oral hearing.
(d) The court will notify both parties of the date when a district judge will assess damages.

Paragraph 7 of both the RTA Protocol and the EL/PL Protocol set out identical procedures for
obtaining an interim payment at Stage 2. The claimant must send to the defendant an interim
settlement pack (ISP), medical reports and evidence of pecuniary losses and disbursements.
Where the claimant seeks an interim payment of £1,000, the defendant must pay £1,000
within 10 days of receiving the ISP. If the interim payment sought is greater than £1,000, the
defendant may offer less than is requested but must pay at least £1,000 to the claimant within
15 days of receiving the ISP.
21.5 FIXED COSTS

The fixed costs regime in the amended CPR, Part 45 provides for fixed costs to be paid at the
end of each stage of the RTA and EL/PL Protocols. The costs are set out in Tables 6 and 6A as
follows:
TABLE 6
Fixed costs in relation to the RTA Protocol
Where the value of the claim for damages Where the value of the claim for damages
is not more than £10,000 is more than £10,000, but not more than
£25,000
Stage 1 fixed costs £200 Stage 1 fixed costs £200
Stage 3 Type A fixed costs £250 Stage 3 Type A fixed costs £250
Stage 3 Type B fixed costs £250 Stage 3 Type B fixed costs £250
Stage 3 Type C fixed costs £150 Stage 3 Type C fixed costs £150
TABLE 6A
Fixed costs in relation to the EL/PL Protocol
Where the value of the claim for damages Where the value of the claim for damages
is not more than £10,000 is more than £10,000, but not more than
£25,000
Stage 3 Type A fixed costs £250 Stage 3 Type A fixed costs £250
Stage 3 Type B fixed costs £250 Stage 3 Type B fixed costs £250
Stage 3 Type C fixed costs £150 Stage 3 Type C fixed costs £150
Type A, B and C fixed costs?

Type A fixed costs are the legal representative’s Stage 3 costs for a paper hearing and under
both Protocols are £250.00.
Type B
Type B costs are additional advocate’s costs for conducting an oral Stage 3 hearing and are
also £250 for RTA cases and the same for EL/PL Protocol cases, giving a total fee of £500 for an
oral Stage 3 hearing in all portals.
Type C
Type C fixed costs are the costs for the advice on the amount of damages where the claimant is
a child and are £150 in both Protocols.
All fixed costs at all stages are exclusive of VAT, and a further allowance may be made for
disbursements such as medical reports and court fees under CPR, r 45.19.
21.6 OFFERS TO SETTLE

If settlement is not reached in a Portal claim, both parties must state their final offer in the
CPP prior to the claim being issued. Section II of CPR, Part 36 is a new section regulating such
offers to settle where the parties have followed the RTA or EL/PL Protocols and the claim has
proceeded to a hearing at Stage 3.
21.6.1 Form and content of offer

Under CPR, r 36.17(1), an offer to settle under these provisions is called a ‘Protocol offer’.
Rule 36.17(2) provides that, to be valid, a Protocol offer must:
(a) be set out in the CPP; and
(b) contain the final total amount of the offer from both parties.
Rule 36.18 provides that the offer is deemed to be made on the first business day after the CPP
is sent to the defendant. Under CPR, r 36.19, the offer is treated as being exclusive of all
interest.
21.6.2 Costs consequences following judgment

As usual, the court will not know the amount of any Protocol offer until the claim has been
decided. Rule 36.21 sets out three possible outcomes of the Stage 3 hearing, together with the
costs consequences of each outcome:
(a) Claimant is awarded damages less than or equal to the defendants offer. The court will order the
claimant to pay the defendant’s Stage 3 fixed costs and interest on those costs.
(b) Claimant is awarded more than the defendant’s offer but less than the claimant’s offer. The court will
order the defendant to pay the claimant’s fixed costs .
(c) Claimant is awarded equal to or more than the claimant’s own offer. The court will order the
defendant to pay interest on the whole of the damages at a rate not exceeding 10% above
base rate for some or all of the period starting with the date on which the offer was
made. In addition, the defendant will be ordered to pay the claimant’s fixed costs,
interest on those costs at a rate not exceeding 10% above base rate and an additional
10% of the amount awarded (pursuant to CPR, r 36.14(3)(d)).
21.7 WHAT IF A CLAIM EXITS THE PORTAL?

Claims which are started in the Portal may exit the process, for instance because an allegation
of contributory negligence is made, or one party fails to follow the relevant Protocol. Claims
which no longer continue under the Protocols cannot subsequently re-enter the process.
Where this happens, the Protocols provide that the claims will proceed under the relevant pre-
action protocol (PAP). Both the Personal Injury PAP and the Disease and Illness Claims PAP
provide that in such a case the CNF will serve as the letter of claim.
21.7.1 Fixed costs apply to claims which exit the Portal

Section IIIA of CPR, Part 45 now contains a new, secondary fixed costs scheme which applies
to all claims which exit the RTA or the EL/PL Protocol except for disease claims, the costs of
which will be payable on the usual standard basis after they exit the Portal. The detail of these
fixed costs is not set out here but may be found in CPR, Part 45. They increase depending on
the stage the claim reaches before settlement and are slightly more generous than the fixed
costs which apply to claims which stay in the Portal.
21.7.2 Costs consequences of Part 36 offers after a claim exits the Portal
Two new provisions have been added to CPR, Part 36 to cover the costs consequences of
acceptance of a Part 36 offer or a protocol offer after a claim has left the Portal (CPR,
r 36.10A), and the costs consequences for a claimant who obtains a judgment less
advantageous than an offer made by the defendant after exiting the portal (CPR, r 36.14A).
The rules are complex but in summary they provide as follows:
CPR, r 36.10A - costs consequences of acceptance

(a) Where a Part 36 offer is accepted within the relevant period, the claimant (C) is entitled
to fixed costs as set out in Section IIIA of CPR, Part 45. The level of those costs will
depend upon the stage the case has reached at the date on which the notice of
acceptance is served (CPR, r 36.10A(2)).
(b) Where C accepts a Part 36 offer after the relevant period, C will be entitled to the fixed
costs applicable at the date on which the relevant period expired, but C will be liable for
the defendant’s (D’s) costs from the date of expiry of the relevant period to the date of
acceptance (CPR, r 36.10A(4)).
(c) Where a protocol offer is made and is subsequently accepted after a claim exits the
portal:
(i) C is entitled to Stage 1 and 2 fixed costs; and
(ii) C is liable for D’s costs from the date on which the protocol offer is deemed to be
made until the date of acceptance (CPR, r 36.10A(5)).
CPR, r 36.14A – costs consequences following judgment

(a) Where C fails to obtain a judgment more advantageous than D’s Part 36 offer and a split
order for costs is made pursuant to CPR, r 36.14 (2) after a claim has exited the Portal:
(i) C will be entitled to fixed costs for the stage applicable at the date on which the
relevant period expired; and
(ii) C will be liable for D’s costs from the date on which the relevant period expired to
the date of judgment (CPR, r 36.14A(2)).
(b) Where C fails to obtain a judgment more advantageous than D’s protocol offer:
(i) C is entitled to Stage 1 and 2 fixed costs; and
(ii) C is liable to pay D’s costs from the date on which the protocol offer is deemed to
be made until the date of judgment (CPR, r 36.14A(3)).
In all cases, where an order for costs is made in favour of a defendant under either CPR,
r 36.10A or CPR, r 36.14A, the amount of those costs will not exceed the fixed costs set out in
the tables in Section III of CPR, Part 45.
21.7.3 Claimants who unreasonably fail to follow the Protocols

In order to prevent a claimant from trying to circumvent the rules and deliberately exiting the
protocol in order to secure higher costs, CPR, r 45.24 provides as follows:
(1) This rule applies where the claimant –

(a) does not comply with the process set out in the relevant Protocol; or
(b) elects not to continue with that process,
and starts proceedings under Part 7.
(2) Where a judgment is given in favour of the claimant but –
(a) the court determines that the defendant did not proceed with the process set out in the
relevant Protocol because the claimant provided insufficient information on the Claim
Notification Form;
(b) the court considers that the claimant acted unreasonably –
(i) by discontinuing the process set out in the relevant Protocol and starting
proceedings under Part 7;
(ii) by valuing the claim at more than £25,000, so that the claimant did not need to
comply with the relevant Protocol; or
(iii) except for paragraph (2)(a), in any other way that caused the process in the
relevant Protocol to be discontinued; or
(c) the claimant did not comply with the relevant Protocol at all despite the claim falling
within the scope of the relevant Protocol,
the court may order the defendant to pay no more than the fixed costs in rule 45.18 together
with the disbursements allowed in accordance with rule 45.19.
21.7.4 ‘Escaping’ fixed costs

CPR, r 45.29J provides that ‘if it considers that there are exceptional circumstances making it
appropriate to do so the court will consider a claim for an amount of costs (excluding
disbursements) which is greater than the fixed recoverable costs …’. There is no definition of
what will be deemed ‘exceptional’, but the sorts of cases which will qualify are likely to be rare.
If the court is persuaded that exceptional circumstances exist, it will assess the costs.
However, the applicant should beware: if the assessed costs are less than 20% greater than the
fixed costs, then the court will only allow the lower of assessed costs and fixed recoverable
costs and may order that the applicant pay the costs of the assessment (CPR, r 45.29K and
CPR, r 45.29L).
21.8 CONCLUSION
The extension of Portal claims to all RTA, EL and PL claims up to £25,000 and the reduction in
costs that can now be claimed has been controversial. Many have suggested that, whilst the
Portal might work for RTAs which are on the whole relatively straightforward, the complexity
in the law relating to employers’ liability and public liability claims make them unsuitable for
such a process. The figures suggest that approximately one-third of RTA claims exit the Portal
as a result of allegations of contributory negligence. Although only time will tell, many
practitioners believe that the figure for claims exiting the EL/PL Portal is likely to be much
higher.
313
Appendices
Employers’ Liability Case Study 315
APPENDIX 1
Employers’ Liability Case Study
INTRODUCTION
The following case study is illustrative of the low-value personal injury cases which form the
bulk of the personal injury lawyer’s caseload. The documentation charts the basic procedural
steps, from instruction, through commencement of proceedings, to settlement. It does not
cover all eventualities and not all documents which would be relevant to the case have been
provided. Please note that as the accident occurred before 31 July 2013, the Pre-action
Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims does
not apply. However, if it had been applicable, the only difference to the procedure and case
documents set out in this case study would be that:
• Goodlaw would carry out a search to discover the name and address of the defendant’s
insurer.
• A Claim Notification Form (CNF) would be sent to the defendant’s insurer and a
Defendant Only Claim Form to the defendant via the Portal instead of the Letter of
Claim at Document 2.
• Once the defendant had indicated its intention to defend the matter, the claim would
fall out of the protocol procedure and the CNF would stand as the Letter of Claim.
The claim proceeds as follows:
1 The claimant, Neil Worthing, instructs a firm of solicitors, Goodlaw, in relation to an
injury he has suffered whilst in the employment of Guildshire Engineering Limited. A
proof of evidence is taken (Document 1). The matter is funded by means of a CFA
backed up by an AEI policy.
2 A letter of claim is sent (Document 2).
3 Guildshire Engineering Limited is covered by BTE insurance. The insurer instructs
Winter Wood & Co, to act on its behalf. A letter of denial is sent (Document 3) together
with relevant documents, including the accident report (Document 4) and the RIDDOR
report (Document 5).
4 In accordance with the PAP for personal injury claims, the claimant’s solicitors write to
the defendant’s solicitors with the aim of appointing a jointly selected medical expert
(Document 6). They provide three names.
5 The defendant does not raise any objection to those named, one is instructed and a
medical report is obtained (Document 7).
6 Following receipt of the medical report, the assistant solicitor acting for the claimant
conducts research into what the claimant would be entitled to in respect of general
damages for pain, suffering and loss of amenity, and he sends a memo to his principal
solicitor setting out his findings (Document 8).
7 A claim form is issued (Document 9) in the Northampton County Court (through the
County Court Money Claims Centre), and served with the particulars of claim
(Document 10), the Schedule of Past and Future Expenses and Losses (Document 11)
and the medical report.
8 The defendant’s solicitors notify the Compensation Recovery Unit (CRU) of the claim by
means of Form CRU 1 (Document 12).
9 The defence is filed (Document 13). The case is provisionally allocated to the fast track
and is transferred to the Christlethorpe County Court.
10 Directions questionnaires are completed by both sides (Document 14).

11 Directions are given (Document 15).
12 Following disclosure of witness statements, solicitors for the parties discuss a possible
settlement, and the claimant subsequently indicates to his solicitors that he wants to
settle. The defendant’s solicitors have already obtained a CRU certificate of repayable
benefits (CRU100) for this purpose, which shows that there are no recoverable benefits.
The CRU also sends a copy of CRU100 to the claimant’s solicitors (Document 16). The
assistant solicitor acting for the claimant sends a memo to his principal (Document 17).
13 The defendant’s solicitors send a Part 36 offer letter to the claimant’s solicitors
(Document 18). The assistant solicitor acting for the claimant consults his client and
contacts the defendant’s solicitors, asking them for an improved offer. He notes this in a
memo to his principal (Document 19).
14 The claimant’s solicitors write to the defendant’s solicitors accepting the updated offer
(Document 20) and enclosing a draft consent order (Document 21).
DOCUMENT 1 – PROOF OF EVIDENCE

I, Neil Matthew Worthing, of 22 Elstead House, Griffin Road, Christlethorpe, Guildshire
GU48 1XX will say:
1. My date of birth is 14 December 1991 and I am 21 years old. My National Insurance
number is WK987999X. I am single and I have lived in rented accommodation at the
above address since 11 June 2012.
2. I am currently a full-time student at Queen Margaret’s College, Guildshire, where I am
studying law. This is the final year of my degree course. Throughout my years of study, I
have taken temporary jobs during the summer breaks in order to help fund my studies.
3. In June 2013, after the end of term, I was able to get a temporary contract with
Guildshire Engineering Limited (GEL) at their factory at 77 Blizzard Lane,
Christlethorpe, Guildshire, GU59 2YZ. They manufacture metal tools for industrial use.
I was to work on their production line as a process engineer. The contract was to run for
10 weeks from Monday 10 June to Friday 16 August and my take home pay was £275 per
week.
4. When I arrived at the factory on 10 June, I was shown where I was to work by the
foreman, Tony Benson. He gave me a short demonstration on how to use the
machinery, gave me some written health and safety information, and told me that the
Health and Safety Representative would talk to me when he came back from holiday the
following Monday. Everything went very well the first week until the last day.
5. On Friday 14 June 2013, at about 2.30pm, Tony asked me to help Jerry Packman, another
process engineer, to move several boxes of widgets from one part of the factory to
another. We were to use two metal trolleys, which had handles on each end, to transport
the boxes. He told us the boxes were heavy, so we were to move each box between us and
keep our backs straight when we were doing it. He said we were to put only four boxes
on each trolley. Jerry was mucking about when Tony was talking to us, and Tony told
him to listen and behave himself. Jerry is great fun and a bit of a practical joker, but he
seems to be in trouble quite a lot.
6. We stacked the first trolley with four boxes and then I pushed it about three feet further
forward. The boxes were heavy so it took considerable effort on my part to move the
trolley. Jerry then moved the second trolley to about a foot behind the first one, and we
stacked that with four boxes. There was only one box left, so we decided to put this box
on the second trolley. Once the fifth box was loaded, Jerry tried to move the trolley, but
it wouldn’t budge at all. It looked quite funny as Jerry is quite small and skinny. I was
standing to the side of the first trolley with my left hand on the handle. I told Jerry to
stop being such a weed and to push harder. Suddenly, the trolley he was pushing shot
forward and the thumb of my left hand was caught between the handles of the two
trolleys. It was excruciatingly painful.
7. I immediately went to see the first aider, Alison Jacobs, who examined my thumb and
said she thought it might be broken. My hand was already swelling up, and I was in great
pain and very distressed. As I am left handed, I was worried about being able to write.
Also I was concerned about my ability to play the piano, which is my great passion. I
perform as a pianist in the restaurant at the Swan Lake Hotel on Tuesday, Thursday, and
Friday evenings from 7pm to 11pm, for which I am paid £80 each Tuesday and Thursday
evening and £100 each Friday evening.
8. As I was unable to drive, Alison Jacobs drove me to the A&E department at Guildshire
Hospital. By the time we arrived, the pain and swelling in my thumb had increased. My
left thumb was x-rayed, which confirmed that it had been fractured. A plaster cast was
applied to my thumb up to my elbow and I was given a sling. I wore this plaster for two
weeks and then a splint for a further two weeks.
9. Obviously I could not go to work. On Wednesday 19 June, I received a call from Tony
Benson. He sounded quite cross. He said that the accident had been due to me mucking
about with Jerry and that I hadn’t carried out his instructions. He said that he would
send me two weeks’ wages, which was more than generous and that my services were no
longer needed.
10. A few days later, I received a cheque from GEL for two weeks’ wages, £550. Because of
the injury, I was incapable of working for about four weeks, but when I had recovered
enough to work, I was unable to find another job for what remained of the summer
break. In addition, I lost money due to being unable to play the piano at the Swan Lake
Hotel for a period of eight weeks. Luckily, they took me back once I was able to play
again. I did not claim benefits as I did not think I would be entitled to any.
11. I was unable to cook or clean, or do anything much after the accident. Consequently, my
mother came and stayed with me for two weeks to look after me. She doesn’t work, so
she didn’t lose any money, but it was very inconvenient for her and quite embarrassing
for me.
12. I had a course of five physiotherapy treatments at Guildshire Hospital. I incurred
travelling expenses attending these physiotherapy treatments. I travelled in my own car
to the hospital, which is a round trip of 10 miles from my flat.
13. I was then advised to continue with a course of exercises at home. I still do these
exercises on a daily basis as I still have restricted movement in my thumb. It continues
to give me pain, especially in cold weather, or if I knock or catch it accidentally.
Sometimes, it locks when I am trying to grip with my left hand. I can play the piano, but
it does hurt towards the end of the four-hour period when I am playing at the hotel. It
also hurts when I have been writing for a while, which obviously I have to do at college.
14. Jerry rang me a few weeks after the accident to apologise and to ask how I was. He told
me that he had never received any information or training regarding stacking boxes or
moving trolleys, and that GEL had recently had foam placed over the metal handles of
all the trolleys in the factory.
Signed Neil Worthing 2 September 2013

DOCUMENT 2 – LETTER OF CLAIM

Goodlaw Solicitors
4 College Road, Christlethorpe, Guildshire GU1 4DZ
DX 3214 GUILDSHIRE; Tel: 01483 606060; Fax: 01483 606099
Guildshire Engineering Limited
77 Blizzard Lane,
Christlethorpe,
Guildshire
GU59 2YZ
Our ref : BB/WORTH/13/426
Date: 13 September 2013
Dear Sirs,
OUR CLIENT: Mr Neil Worthing
ADDRESS: 22 Elstead House, Griffin Road, Christlethorpe, GU48 1XX
ACCIDENT DATE: 14 June 2013
WORKS NUMBER: GEL 4520
We are instructed by Mr Worthing to claim damages for injuries he sustained in an accident at
work that occurred on 14 June 2013 at your factory at the above address.
Kindly confirm the identity of your insurers. Please note that the insurers will need to see this
letter as soon as possible, and it may affect your insurance cover and/or the conduct of any
subsequent legal proceedings if you do not send this letter to them.
The circumstances of the accident are:
Our client and another of your employees, Mr Packman, were transporting boxes of widgets
from one part of the factory to another on two metal trolleys. Mr Packman pushed his trolley
with force and our client suffered injuries when his thumb was trapped between the handles
of the two trolleys.
The reason why we are alleging fault is:
The accident was caused by the negligence of you, your servants or agents and/or was in
breach of your statutory duty to our client because you:
1. failed to make a proper risk assessment in relation to the moving of the trolleys contrary
to reg 3(1) of the Management of the Health and Safety at Work Regulations 1999 (the
‘Management Regulations’) and reg 4(1)(b)(i) of the Manual Handling Operations
Regulations 1992 (the ‘Manual Handling Regulations’);
2. failed to provide information to your employees on health and safety risks and
protective measures contrary to reg 10 of the Management Regulations and reg 8 of the
Provision and Use of Work Equipment Regulations 1998 (the ‘Work Equipment
Regulations’);
3. failed to provide adequate health and safety training to your employees contrary to reg
13 of the Management Regulations and reg 9 of the Work Equipment Regulations;
4. failed to ensure the suitability of the trolleys for the purpose for which they were
provided contrary to reg 4 of the Work Equipment Regulations. It is our understanding
that, since the accident, you have improved the suitability of the trolleys by putting foam
on the metal handles;
5. failed to ensure that your employees received proper information and training on
how to handle loads correctly in the process of moving loaded trolleys contrary to reg
4(1)(b)(ii) of the Manual Handling Regulations;
6. failed to take appropriate steps to reduce the risk of injury to our client arising out of
undertaking the operation set out above to the lowest practicable level contrary to reg
4(1)(b)(ii) of the Manual Handling Regulations;
7. failed to provide competent fellow workers. Our client informs us that Mr Packman was
well known to his colleagues and to you as a practical joker. It was as a direct result of Mr
Packman’s inappropriate behaviour that the injury to our client arose.
The above matters should not be taken as a comprehensive list of allegations of fault. We
reserve the right to include any further allegations of fault as are appropriate once we have
received a substantive response to this letter and when any further necessary investigations
which may be required have been concluded.
Injuries and losses.
As a result of your negligence/breach of statutory duty our client has suffered personal injuries
which consist of a fractured thumb. He lost 8 weeks' salary from his employment with you and
8 weeks' salary from his work as a professional piano player at the Swan Lake Hotel. He has
also incurred miscellaneous expenses relating to travelling to hospital for physiotherapy and
the provision of care gratuitously provided by his mother for a two-week period immediately
following the accident.
Disclosure of documents.
Unless liability is admitted in full we expect you to disclose all relevant documents in
accordance with the protocol. At this stage of our enquiries we consider that the documents
contained in the standard disclosure list for workplace claims and sections A, B and D of that
list to apply. Please confirm that the originals of all relevant documents will be preserved.
Should you fail to provide the disclosure requested above, in so far as that it is required by the
protocol, please be aware that we will make the appropriate application to the court to ensure
disclosure is complied with. Should this be necessary, we reserve the right to draw the
contents of this letter to the attention of the court in relation to the question of costs.
Details of earnings.
We understand that our client was contracted to work for you for a period of 10 weeks, that he
had been working for you for only four and a half days when the accident arose and,
consequently, he has lost 9 weeks of employment. We further understand that he has received
a payment of £550 from you in recompense for both the week that he worked and one more
week. Hence, he has lost earnings equivalent to 8 weeks’ work. Could you please confirm that
this is the case and provide details of:
(1) the agreed weekly gross and net earnings for the 10-week period;
(2) any other financial benefits he would have been entitled to had he not been injured, for
example, loss of overtime, shift allowance, bonus, commission and pension or other
benefits; and
(3) any sick pay paid to our client during his absence from work, including company sick
pay, statutory sick pay and tax refunds. If any payments of company sick pay have been
made, please state whether these are refundable or not.
Alternative Dispute Resolution (ADR).
Our client would prefer to try to resolve this matter without the need for litigation. We
consider the appropriate method of ADR to be negotiation. We hope that you will comply with
your obligations under the pre-action protocol. If you fail to do so, we reserve the right to refer
the court to the contents of this letter when seeking orders on case management that may be
necessary due to your failure to negotiate.
Timetable of pre-action protocol.
We consider that this letter commences the timetable applicable under the pre-action
protocol for personal injury claims. We therefore request acknowledgement of this letter from
you or your insurers by 14 October 2013 and a decision on liability by 13 January 2014 at the
latest. A copy of this letter is enclosed for your insurers.
We look forward to hearing from you or your insurers in response to this letter of claim in
accordance with the pre-action protocol.
Yours faithfully
Goodlaw Solicitors
DOCUMENT 3 – LETTER OF DENIAL

Winter Wood & Co Solicitors Rembrandt House,
Lee Lane, Brampton
Guildshire, GU7 8TU
DX 26438 GUILDSHIRE
Tel: 01483 432143
Fax: 01483 432156
Goodlaw Solicitors
DX 3214 GUILDSHIRE
Our ref: NG/GELTD/13/A48
Your ref: BB/WORTH/13/426
Date: 8/11/2013
Dear Sirs
YOUR CLIENT: Mr Neil Worthing
OUR CLIENT: Guildshire Engineering Limited
We act for Guildshire Engineering Limited in relation to the above mentioned matter and
refer to your letter of 13 September 2013.
Our client disputes liability in this matter.
Although it is accepted that Mr Worthing did suffer an injury on 14 June at our client’s
premises, the causes of the accident are disputed.
• Our client carried out risk assessments as required by Regulation 3 of the Management
of Health and Safety at Work Regulations in relation to all activities conducted in their
premises. A copy of the pre and post-accident risk assessments are attached. You will
note that trolleys are dealt with in paragraph 14.10 of both documents and that no
specific risks are identified. There are no risks associated with pushing a trolley
provided the person doing the pushing behaves sensibly. It is our client’s contention
that Mr Worthing was not behaving sensibly at the time of the accident.
• Mr Worthing was provided with appropriate health and safety information and training,
both generally and in relation to manual handling. The foreman, Mr Benson, gave him
written information on all relevant matters on the first day of Mr Worthing’s
employment with our client and he also gave specific instructions as to how the boxes of
widgets should be moved. In particular he told Mr Worthing that no more than four
boxes should be placed on a trolley at one time, which your client chose to ignore. Mr
Benson did not give instructions or training on how to push the trolley as this is a matter
of common sense.
• The trolleys were, at the time of the alleged accident, suitable in every respect for their
intended purpose. Whilst it is true that our client has since placed foam on the handles
of the trolleys, this in no way an acceptance that they were previously unsuitable. These
adaptations had been discussed prior to the alleged accident not due to safety issues but
because the handles are thin and uncomfortable to push. It is unreasonable to suggest
that all hard surfaces in a factory should be covered in foam.
• Our client strongly disputes the allegations that it failed to provide competent fellow
workers. Our client provides training to each individual employee in accordance with its
legal obligations and insists on the highest levels of behaviour and discipline from its
staff. It is our understanding that the extra box of widgets was placed on the trolley at Mr
Worthing’s suggestion and that it was his inappropriate behaviour which caused his
injury.
In addition to the risk assessment mentioned above, we enclose the following documents:
• Copy of your client’s contract of employment. Please note the requirement for
employees to read the health and safety information and the standards of behaviour
required by all employees at all times.
• Copies of all health and safety documents supplied to your client
• Accident book entry
• First aider report
• RIDDOR report to the HSE
• Earnings information
There are no further relevant documents to disclose.
Mr Worthing was dismissed by our client due to his unreasonable behaviour.
This was an unfortunate accident for which we have every sympathy with your client.
Nevertheless, we have no offers to make to settle this matter as we do not consider that our
client was either negligent or in breach of statutory duty.
Please note that, should you wish to continue with this matter, we are instructed to accept
service of proceedings on our client’s behalf.
Yours faithfully,
Winter Wood & Co
DOCUMENT 4 – ACCIDENT REPORT

EMPLOYEE ACCIDENT REPORT
Report number (consecutive)
1. About the person who had the accident
Name NEIL MATTHEW WORTHING

Address 22 ELSTEAD HOUSE, GRIFFIN ROAD, CHRISTLETHORPE,
GUILDSHIRE GU48 1XX
Position PROCESS ENGINEER
2. About you, the individual filling in this record
If you did not have the accident, write your name and position
Name ALISON JACOBS Position SECRETARY AND FIRST AIDER
3. Details of the accident
When it happened. Date 14/06/13 Time 2.45pm (approx)
Where it happened. State location Factory floor
How did the accident happen? Give the cause if possible.

Mr Worthing and
another process engineer were using two trolleys to transport
components from one part of the factory to another when the
thumb of Mr Worthing’s left hand became trapped between two
handles of the two trolleys.
If the person who had the accident suffered an injury, give details Crushed left
thumb - fractured
Signed by Alison Jacobs Dated 14/06/13
4. For the employer only
Complete this box if the accident is reportable under the Reporting of Injuries, Diseases
and Dangerous Occurrences Regulations 1995 (RIDDOR).
How was it reported? On-line, electronically
Signed by Alison Jacobs Dated 14/06/13

DOCUMENT 5 – RIDDOR
DOCUMENT 6 – LETTER PROPOSING MEDICAL EXPERT

Goodlaw Solicitors
4 College Road, Christlethorpe, Guildshire, GU1 4DZ
Winter Wood & Co Solicitors
DX 26438 GUILDSHIRE
Our ref: BB/WORTH/13/426
Your ref: NG/GELTD/13/A48
Date: 18 November 2013
Dear Sirs,
YOUR CLIENT: Guildshire Engineering Limited
Thank you for your letter dated 8 November.
In accordance with the pre-action protocol, we write to inform you of our intention to instruct
one of the following consultant orthopaedic surgeons to examine our client and prepare a
report for these proceedings:
1. Mr G D Cookson, MB ChB, FRCS (Tr & Orth), Crown House, Victoria Drive, Sandford,
Storeshire, SS56 6YP.
2. Mr R B Alimi, MB ChB, FRCS (Orth), BSc (Hons), Hampton Hospital, Hampton,
Hillshire HS1 89P.
3. Mrs F Field, MB ChB, FRCS (Orth) FRCS (Ed), The Shambles, Greenway, Heston,
Scarshire SS35 1QW.
If you have any objections to any of the above, please let us know before 6 December.
Yours faithfully,
Goodlaw Solicitors
DOCUMENT 7 – MEDICAL REPORT

Mr G D Cookson MB ChB, FRCS (Tr & Orth),
Consultant Orthopaedic Surgeon
Crown House, Victoria Drive, Sandford, Storeshire, SS56 6YP
Tel: 01354 787878; Fax: 01358 675675
Our ref: GDC/13/23/WORTHING
10 January 2014
This Medical Report is addressed to the Court
1. Qualifications
1.1 I am a consultant Orthopaedic and Trauma Surgeon with over 35 years' experience in
this field. I became a consultant in 1985. My full CV is attached to this report.
2. Instructions
2.1 This medical report was produced on the instructions of Goodlaw Solicitors set out in
their letter dated 7 December 2013. I was requested to examine their client, Mr Neil
Worthing, who had been injured in an accident at work. The injury was said to be a
fracture of the left thumb.
2.2 I interviewed and examined Mr Worthing at Crown House on 7 January 2014. I was also
provided with photocopies of his medical records from his GP and from the A&E
Department at Guildshire Hospital.
3. History
3.1 Mr Worthing is a 22-year-old law student. He is single and lives in rented
accommodation with other students. He is left handed.
3.2 Last summer, he was working at a factory owned by Guildshire Engineering Limited on
a temporary basis. On 14 June 2013, he was moving boxes of metal components, when
his thumb was trapped between the metal handles of two trolleys. He said that the
trolleys had been pushed together with some force.
3.3 Immediately after the accident, he was seen by the First Aider at the workplace, who
examined his hand and took him to the A&E department at Guildshire Hospital. An
examination and x-ray revealed a fracture of the left thumb and, on the advice of the on-
call orthopaedic registrar, a POP was applied to the thumb up to the elbow. He was
advised to take painkillers and was discharged with a sling. He had difficulty sleeping
for the first week and took Nurofen tablets regularly for the first two weeks. He returned
to the Fracture Clinic at Guildshire Hospital two weeks after the accident when the
plaster was changed to a thumb spika. He was then bandaged for a further two weeks.
Mr Worthing subsequently underwent a course of 5 physiotherapy treatments at the
hospital.
3.4 Mr Worthing tells me he was unable to work for one month, by which time he had lost
his temporary position at the factory. He was unable to find alternative employment for
the remainder of the summer vacation. He was unable to play the piano to the standard
required by the hotel for a period of 8 weeks.
4. Previous medical history
Mr Worthing is a fit and healthy young man. There is nothing in his medical records
which could have any bearing at all on the current injury.
5. Present condition
Mr Worthing told me that he is still experiencing pain across the back of the metacarpo-
phalangeal joint of his left thumb and that the joint often felt stiff. He said that it would
sometimes lock, especially if he was holding objects tightly, and on occasions he would
drop them. Writing or playing the piano for long periods of time would cause pain and
discomfort. Mr Worthing has to do both of these activities on a regular basis as he is a
student and plays the piano at a hotel several evenings a week on a commercial basis. He
can drive without difficulty. His sleep is not disturbed unless he has been playing the
piano at the hotel. On those occasions, he sometimes has to take pain killers in order to
get a good night’s sleep.
6. On examination
The left thumb was not swollen, bruised or discoloured. However, there was light
tenderness over the dorsal aspect of the MCP joint. Ligaments and tendons to the
thumb appeared to be intact. Resisted movements of the MCP and IP joints of the
thumb were possible without pain. He felt, however, that he could not bend the left
thumb as well as the right thumb. The grip and pinch grip of the left hand appeared to
be normal.
7. Diagnosis and opinion
7.1 Undisplaced avulsion fracture base of proximal phalanx radial side left thumb with
bruising to IP joint.
7.2 In my opinion, an injury of this nature would have prevented Mr Worthing from working
for one month following the accident and from playing the piano competently for a
period of two months following the accident.
7.3 Mr Worthing appears to have made a good but not complete recovery from the injury.
There appears to be some slight stiffness of the MCP joint of the left thumb with
tenderness over the dorsal aspect but resisted movements are pain free. Gripping
appears to cause some pain and discomfort, the thumb occasionally ‘locks’ and he
sometimes drops objects.
7.4 On a balance of probabilities, I believe that his symptoms will gradually settle over a
period of 18 months from the accident. He will not develop osteoarthritic changes in his
left thumb, IP or MCP joints as a result of the injury sustained on 14 June 2013 and his
ability to work and pursue leisure activities will not be disadvantaged as a result of these
injuries 18 months post-accident.
8. Declaration
8.1 I understand that my overriding duty is to the court, both in preparing reports and in
giving oral evidence.
8.2 I have set out in my report what I understand from those instructing me to be the
questions in respect of which my opinion as an expert is required.
8.3 I have done my best, in preparing this report, to be accurate and complete. I have
mentioned all matters which I regard as relevant to the opinions I have expressed. All of
the matters on which I have expressed an opinion lie within my field of expertise.
8.4 I have drawn to the attention of the court all matters, of which I am aware, which might
adversely affect my opinion.
8.5 Wherever I have no personal knowledge, I have indicated the source of factual
information.
8.6 I have not included anything in this report which has been suggested to me by anyone,
including the lawyers instructing me, without forming my own independent view of the
matter.
8.7 Where, in my view, there is a range of reasonable opinion, I have indicated the extent of
that range in the report.
8.8 At the time of signing the report I consider it to be complete and accurate. I will notify
those instructing me if, for any reason, I subsequently consider that the report requires
any correction or qualification.
8.9 I understand that this report will be the evidence that I will give under oath, subject to
any correction or qualification I may make before swearing to its veracity.
8.10 I have attached to this report a summary of my instructions. [not reproduced]

I believe that the facts I have stated in the report are true and that the opinions I have
expressed are correct.
Signed G D Cookson Dated 13/01/14
DOCUMENT 8 – MEMORANDUM RE DAMAGES

From: Ravinder Omar, Assistant Solicitor, Goodlaw
Sent: 24/01/14
To: Belinda Braithwaite, Principal Solicitor, Goodlaw
Subject: Neil Worthing case – general damages
Hi Belinda,
I have now had the chance to read through the medical report provided by Mr Cookson and, as
you have requested, I have researched the general damages position.
With regard to the Guidelines, although we are dealing with a fracture of the thumb on the
dominant hand here, I do not believe the injury is serious enough to fall under (x) moderate
injury to the thumb, which suggests an award of up to £9,000. Instead, I suggest the injury
falls within heading (y) Severe Dislocation of the Thumb, indicating an award of between
£2,800 to £4,800. However, the Defendant may argue it falls within heading (z) Minor Injuries
to the Thumb – a fracture which has recovered in six months except for residual stiffness and
some discomfort – indicating an award in the region of up to £2,800. Suggest we argue client’s
injury is more serious than this – continuing pain from writing/playing the piano and still
dropping things.
I looked up similar injuries in Kemp and on Lawtel PI but there isn’t really anything that is
completely on a par with the client’s injuries:
• Pearson v Snax 24 Ltd [2006] – older lady dislocated middle joint of right thumb, also a
laceration. Looks as if right hand is dominant hand (though it doesn’t say!). This seems
to be a more serious injury as she was left with constant stiffness, a loss of grip and 50%
flexion of the interphalangeal joint – injury permanent and she had also suffered from
minor arthritis. PSLA £4,500 (£5,760 RPI).
• Jones v Manchester City Council [2004] – lady – soft tissue strain to dominant right
thumb. Satisfactory recovery after 18 months but permanent minor loss of function
with intermittent swelling and aching, slight loss of grip strength. Injury less serious
than Mr W’s but some permanent loss of function. PSLA £3,500 (£4,685 RPI).
• Lawrence v Scott Ltd [1998] – older male – crush injury to dominant thumb, fracture of
terminal phalanx of thumb – similar sort of injury. No significant pain after 6 months,
permanent slight deformity, minor scarring, continuing cold intolerance. Couldn’t do
DIY for 10 weeks or swimming for 6 mths. PSLA £2,500 (£3,913 RPI).
• Moore v Johnstone [1987] – older male fractured interphalangeal joint of non-dominant
thumb. Left with slight loss of grip in left hand. Small amount of discomfort
experienced when practising hobby or archery. Difficulty in picking up small
components and operating certain types of lathes. Similar type of injury, but to non-
dominant thumb. However, damages also cover concussion to head. PSLA £2,300
(£5,842 RPI).
Suggest we aim for top end of heading (y) – £4,800. Do you agree?
Ravi
PS: Almost forgot - neither the Guidelines figures nor the awards take account of the 10%
uplift following Simmons v Castle – so we shall need to increase them accordingly.
DOCUMENT 9 – CLAIM FORM

DOCUMENT 10 – PARTICULARS OF CLAIM

Claim No: N 14 123
IN THE NORTHAMPTON COUNTY COURT
BETWEEN
MR NEIL MATTHEW WORTHING Claimant
and
GUILDSHIRE ENGINEERING LIMITED Defendant
PARTICULARS OF CLAIM
1. The Defendant is a manufacturer of industrial tools. At all material times, the Claimant
was employed by the Defendant as a process engineer at their factory at 77, Blizzard
Lane, Christlethorpe, Guildshire, Surrey GU59 2YZ.
2. At all times, the provisions of the Management of Health and Safety at Work
Regulations 1999 (“the Management Regulations”), the Manual Handling Operations
Regulations 1992 (the ‘Manual Handling Regulations’) and the Provision and Use of
Work Equipment Regulations 1998 (“the Work Equipment Regulations”) applied.
3. On 14 June 2013, at approximately 2.45pm, whilst acting in the course of his
employment, the Claimant and a co-worker Mr Jeremy Packman, were in the process of
moving boxes of widgets from one part of the factory to another. They were
transporting the boxes on two trolleys both of which had metal handles on each side.
The Claimant was standing at the side of the first trolley, with his left hand on the
handle, when the second trolley was pushed forward by Mr Packman with force, causing
it to slam into the first trolley. The Claimant’s left thumb was trapped between the
handles of the two trolleys.
4. The accident was caused or contributed to by the negligence and/or breach of statutory
duty of the Defendant, its servants or agents acting in the course of their employment.
PARTICULARS OF BREACH OF STATUTORY DUTY

The Defendant, its servants or agents, were in breach of its statutory duty in that they:
(a) failed to make a suitable and sufficient assessment of the risks to health and safety
of their employees in relation to the moving of the trolleys contrary to reg 3(1)
of the Management Regulations and reg 4(1)(b)(i) of the Manual Handling
Regulations;
(b) failed to provide information to the Claimant and/or Mr Packman on health and
safety risks and protective measures that should be adopted contrary to reg 10 of
the Management Regulations and, specifically, failed to provide information and
instruction in the use of equipment, namely the trolleys, contrary to reg 8 of the
Work Equipment Regulations;
(c) failed to provide adequate health and safety training to the Claimant and/or Mr
Packman contrary to reg 13 of the Management Regulations and, specifically,
failed to provide adequate training in the use of equipment contrary to reg 9 of the
Work Equipment Regulations;
(d) failed to ensure the suitability of work equipment, namely trolleys, for the
purpose for which they were provided contrary to reg 4 of the Work Equipment
Regulations. The handles of the trolleys should have been covered with foam or an
alternative appropriate material in order to minimize the risk of injury to

employees;
(e) failed to ensure that the Claimant and/or Mr Packman received proper
information and training on how to handle loads correctly in the process of
moving loaded trolleys contrary to reg 4(1)(b)(ii) of the Manual Handling
Regulations;
(f ) failed to take appropriate steps to reduce the risk of injury to the Claimant arising
out of undertaking the operation set out above to the lowest practicable level
contrary to reg 4(1)(b)(ii) of the Manual Handling Regulations.
The Claimant repeats the allegations of breach of statutory duty as allegations of
negligence and further alleges the Defendant was negligent in that it:
(a) failed to provide a safe system of work in that the Claimant was not given adequate
information, instruction and training in relation to manual handling and health
and safety matters;
(b) failed to provide safe or adequate plant in that the trolleys were not reasonably
safe as the handles were not covered with foam or an alternative appropriate
material;
(c) failed to provide the Claimant with competent fellow workers. The Defendant was
aware that Mr Packman was prone to practical jokes and horseplay within the
workplace;
(d) exposed the Claimant to a foreseeable risk of injury.
5. By reason of the matters aforesaid the Claimant has suffered pain and injury and
sustained loss and damage.
PARTICULARS OF INJURY
The Claimant, who was born on 14 December 1991, suffered a fracture to his left thumb. He
has made a good but not complete recovery and continues to suffer from some joint stiffness
and tenderness. It is anticipated that he will make a full recovery within 18 months of the
accident. Further details of the Claimant’s injuries and prognosis are provided in the attached
medical report of Mr GD Cookson, Consultant Orthopaedic Surgeon, dated 10 January 2014.
PARTICULARS OF PAST AND FUTURE EXPENSES AND LOSSES

See Schedule attached.
6. The Claimant claims interest on damages pursuant to Section 69 of the County Courts
Act 1984 at such rates and for such periods as the Court shall think fit.
AND the Claimant seeks:

(a) Damages; and
(b) Interest pursuant to paragraph 6.
DATED this 7th day of February 2014 SIGNED Goodlaw Solicitors

STATEMENT OF TRUTH
I believe that the facts stated in these Particulars of Claim are true.
Signed: Neil Worthing

Full name: Neil Matthew Worthing, Claimant
Dated: 7th February 2014
The Claimant’s solicitors are Goodlaw Solicitors of 4 College Road, Christlethorpe,
Guildshire, GU1 4DZ, where they will accept service of proceedings on behalf of the Claimant.
To: the Defendant
To: the Court Manager
DOCUMENT 11 – SCHEDULE OF LOSS

Claim No: N 14 123
BETWEEN
and
SCHEDULE OF PAST AND FUTURE EXPENSES AND LOSSES
The Claimant (d.o.b 14 December 1991) was employed by the Defendant and injured at the
Defendant’s premises on 14 June 2013, when his left thumb was trapped between the metal
handles of two trolleys. He suffered a fracture of the left thumb. His hand and arm were placed
in a plaster of paris casing for two weeks and his thumb was bandaged for two weeks
thereafter. He underwent five physiotherapy treatments, was unable to work for the remaining
nine weeks of his contract with the Defendant, or play the piano at the Swan Lake Hotel for
eight weeks.
Loss of earnings
Guildshire Engineering Ltd
Pre-accident weekly net wage = £275
9 weeks @ £275 £2,475
Less received from employers £275
Net loss of earnings £2,200
Swan Lake Hotel
Pre-accident weekly net wage = £260
8 weeks @ £260 £2,080
Total net loss of earnings £4,280
Travelling expenses
Journeys to and from hospital/outpatients
5 x trips (10 miles @ 45p per mile £4.50 per trip) £22.50
Car parking 5 x £2 £10
Total £32.50
Cost of care
4 hours per day for 14 days @ £7 per hour £392
TOTAL £4,704.50
STATEMENT OF TRUTH
I believe the facts stated in this schedule are true
Signed: Neil Worthing
Dated this 7th day of February 2014
DOCUMENT 12 – FORM CRU 1

DOCUMENT 13 – DEFENCE
Claim No: N 14 123
BETWEEN
and
DEFENCE
1. Paragraphs 1 and 2 of the Particulars of Claim are admitted.

2. As to Paragraph 3, save that it is admitted that the Claimant suffered some accidental
injury on 14 June 2013 at the Defendant’s premises, the Defendant is unable to admit or
deny the remaining allegations and requires the Claimant to prove them.
3. It is denied that the Defendant, its servant or agent, was negligent or in breach of
statutory duty as alleged in paragraph 4 or at all.
4 As to the Particulars of Breach of Statutory Duty in Paragraph 4:
(i) 4(a) is denied. A suitable and sufficient risk assessment was carried out on 27
April 2012, a copy of which is attached to this Defence;
(ii) 4(b) and (c) are denied. The Claimant and Mr Packman were provided with
appropriate health and safety information and training both generally and in
relation to manual handling, orally and in writing. A copy of the written
information relevant to this matter is attached to this Defence. In the
circumstances, it was not reasonable for the Defendant to provide instructions on
how to push a trolley, that being a matter of common sense;
(iii) 4(d) is denied. The trolleys were suitable for the purpose for which they were
provided;
(iv) 4(e) is denied. Paragraph 4(ii) above is repeated. The Claimant received specific
instructions not to place more than 4 boxes of widgets on each trolley.
(v) 4(f ) is denied. Paragraphs 4(i) to (iv) above are repeated.
As to the Particulars of Negligence in Paragraph 4:
(vi) 4(a) is denied. Paragraphs 4(i) to (iv) above are repeated.
(vii) (b) is denied. Paragraph 4(iii) above is repeated.
(viii) It is admitted that the Defendant was aware of Mr Packman’s nature as stated in
4(c), but it is denied that the Defendant failed to provide the Claimant with
competent fellow workers. 4(ii) above is repeated. The health and safety
information and training provided to all employees, including Mr Packman,
included clear instructions that practical jokes and horseplay on the Defendant’s
premises would not be tolerated, and that any such incidents that did arise would
lead to investigation and disciplinary action where appropriate. To the
Defendant’s knowledge, no incidents of horseplay had taken place on the
Defendant’s premises for at least two years prior to this incident.
(ix) 4(d) is denied. Paragraphs 4(i) to (viii) are repeated.
Consequently, all appropriate steps were taken to reduce the risk of injury to the
Claimant.
5. Further or in the alternative, the Defendant will rely upon the defence of reasonable
practicability .
6. Further or in the alternative, if, which is not admitted, the Claimant’s thumb became
trapped between the handles of the trolleys as alleged and this was caused wholly or
partly by any inappropriate behaviour on the part of Mr Packman, which is denied, Mr
Packman was acting contrary to instructions given to him by the Defendant and was
therefore not acting in the course of his employment.
7. Further or in the alternative, if, which is not admitted, the Claimant’s thumb became
trapped between the handles of the trolleys as alleged, the accident was wholly caused
or alternatively materially contributed to by his own negligence.
The Claimant:
(a) stacked the second trolley with five boxes instead of four as instructed;
(b) engaged in horseplay with Mr Packman and encouraged him to behave
irresponsibly;
(c) failed to exercise reasonable care for his own safety.
8. The Defendant denies that any pain, injury, loss or damage alleged in Paragraph 4 was
caused by any breach of statutory duty and/or negligence by the Defendant as alleged or
at all. The Defendant is not in a position to agree or dispute the contents of the attached
medical report of Mr Cookson or the alleged losses and expenses set out in the attached
Schedule. Consequently, the Defendant puts the Claimant to strict proof in relation to
all damages claimed.
DATED this 18th day of February 2014 SIGNED Winter Wood & Co
STATEMENT OF TRUTH
The Defendant believes that the facts stated in this Defence are true.
I am duly authorised by the Defendant to sign this statement.
Full name: Jacob Hudson
Signed: J Hudson Position held: Managing Director
18th February 2014
The Defendant’s solicitors are Winter Wood & Co, Rembrandt House, Lee Lane, Brampton,
Guildshire, GU7 8TU where they will accept service of proceedings on behalf of the
Defendant.
To: The Claimant
To: The Court Manager
(Note to readers – the attachments referred to in this Defence are not reproduced)
DOCUMENT 14 – DIRECTIONS QUESTIONNAIRE

DOCUMENT 15 – ORDER FOR DIRECTIONS

To: the Claimant’s In the
Solictor CHRISTLETHORPE
Goodlaw Solicitors County Court
4 College Road Claim N 14 123
Christlethorpe Number
Guildshire
GU1 4DZ Claimant Mr Neil Matthew Worthing
(including ref )
Defendant Guildshire Engineering

(including ref ) Limited
Date 21/04/14
Warning: you must comply with the terms imposed upon you by this order otherwise your
case is liable to be struck out or some other sanction imposed. If you cannot comply you are
expected to make formal application to the court before any deadline imposed upon you
expires.
On 21 April 2014, DISTRICT JUDGE BILLINGHURST, sitting in the Christlethorpe County
Court, considered the papers in the case and ordered that:
1. This case is allocated to the fast track
2. (a) Standard disclosure by lists between the parties by 4:00pm on 26 May 2014 and
CPR 31.21 shall apply in the event of default.
(b) Inspection of documents by 4:00pm on 9 June 2014
3. (a) Statements of witnesses as to fact to be exchanged by 4:00pm on 7 July 2014
(b) Witness statements shall stand as evidence in chief.
(c) Evidence shall not be permitted at trial from a witness whose evidence has not
been served in accordance with this order.
4. (a) The Claimant is permitted to rely on the written report of Mr G D Cookson.
(b) The Defendant shall raise any questions of the said expert in writing by 4:00pm on
21 July 2014 which shall be responded to by 4:00pm on 16 August 2014.
5. (a) The Claimant shall serve an updated schedule of damages by 4:00pm on 25
August 2014 and the Defendant shall serve any counter schedule by 4:00pm on 1
September 2014 both incorporating an estimate of the general range of damages.
(b) Within 7 days of the exchange of schedules the parties shall communicate and
shall agree subject to liability the range of general damages and the extent to
which the general damages are agreed and shall agree a case summary setting out
the extent of agreement and of disagreement giving reasons for the disagreement.
6. The parties shall file a Listing Questionnaire by 4:00pm on 29 September 2014 together
with the case summary directed at 5(b) above.
7. (a) The matter be listed for trial before a District Judge in a 3 week trial window
commencing 3 November 2014 with an estimated length of hearing of 3 hours.
(b) The Claimant shall lodge the trial bundle by no later than 5 days prior to the date
of trial.
Dated 21 April 2014
The court office at CHRISTLETHORPE County Court is open between 10am and 4pm Monday
to Friday. When corresponding with the court, please address forms or letters to the Court
Manager and quote the claim number. Tel: 01483 123123 Fax: 01483 123345.
DOCUMENT 16 – CRU CERTIFICATE
DWP Department for Work CRU Compensation Recovery Unit

and Pensions
DX68560 Durham House
Washington 4 Washington
Tyne & Wear
NE38 7SF
Tel.: 0191-2252377
Fax.: 0191-2252366
Typetalk:-1800101912252377
Our Ref: NLB – 416

Your Ref: BB/WORTH/13/426
Date : 04/07/2014
Below is a copy of the Certificate of Recoverable Benefits sent to Winter Wood & Co.
Please note: This is for information only – no payment is required from you
CRU101
Certificate of Recoverable Benefits

Date of issue: 04/07/2014
Your ref: NG/GELTD/13/A48 Our ref: NBL – 416
Injured person: NEIL M WORTHING
This certificate shows the amount due to the Department for Work and Pensions (DWP), as a
result of an accident or injury which occurred on 14/06/2013 to the person named above and
is issued in response to your request for a Certificate of Recoverable Benefits which was
received on 01/07/2014.
The amount due is NIL. No recoverable benefits have been paid.
This Certificate is valid until 02/01/2015.
Authorized by S Peters Compensation Recovery Unit
On behalf of the Secretary of State
Issue No. 19988776 CRU100

DOCUMENT 17 – MEMORANDUM RE OFFER

From: Ravinder Omar, Assistant Solicitor, Goodlaw
Sent: 11/07/14
Subject: Neil Worthing case – settlement
Hi Belinda
Just to let you know that the witness statements came in last week. Jerry Packman, the guy
who was loading the trolleys with Mr W, confirms that it was Mr W who suggested putting the
extra box onto the second trolley. He also says that it was Mr W who started messing about
with the trolleys, that Mr W pushed his trolley at Mr P’s trolley first and then stood about
laughing as Mr P tried to push his trolley. That’s when the accident happened. In addition,
contrary to what he told our client, he is now saying that he did have H&S/manual handling
training.
I discussed this with Rosie Smith at Winter Wood on Friday. I said that they couldn’t avoid
liability. Just handing over H&S info to Mr W isn’t sufficient instruction and training,
particularly as he has never worked in a factory before. They haven’t got any evidence to back
up their statement that the foam on the handles was sorted out before the accident and Mr
Packman was messing about too. She more or less said she agreed and that she would be
talking to her client about making a Part 36 offer on a 25% contrib. basis and taking into
account the 10% uplift resulting from Simmons v Castle. She said that she had already
obtained a certificate from the CRU and that there are no repayable benefits. (There are NHS
charges of £627, which relate to the treatment our client received at hospital, but the
defendant has to pay that.)
She was unhappy about our claim for gratuitous care, saying that the number of hours claimed
and the amount per hour are unreasonable. She didn’t like our mileage rates either but I don’t
think they’ll quibble over a few pounds.
I couldn’t get hold of Mr W until this morning. He admitted that Mr P’s account was accurate.
He is keen to settle and understands that the defendant will want to knock a bit off for
contributory negligence. I told him we would wait and see what they offered and then we
would talk again.
What do you think?
Ravi
DOCUMENT 18 – PART 36 OFFER LETTER

Winter Wood & Co Solicitors Rembrandt House,
Lee Lane, Brampton
Guildshire, GU7 8TU
DX 26438 GUILDSHIRE
Tel: 01483 432143
Fax: 01483 432156
Goodlaw Solicitors
DX 3214 GUILDSHIRE
Our ref: NG/GELTD/13/A48
Date: 14 July 2014
Dear Sirs
YOUR CLIENT: Mr Neil Worthing
OUR CLIENT: Guildshire Engineering Limited
PART 36 OFFER – without prejudice save as to costs
We are instructed by our client to put forward the following offer which is made without
prejudice save as to costs pursuant to Part 36 of the Civil Procedure Rules 1998:
1. Our client agrees to pay your client the sum of £5,600 inclusive of interest in full and
final settlement of all claims your client has or may have against our client in this matter.
2. Our client agrees in addition to pay your client’s reasonable costs, including costs that
have been incurred up to 21 days after the date you receive this letter, as agreed or, if not
agreed within 14 days, to be assessed by detailed assessment.
3. This offer is open for acceptance for 21 days from the date you receive this letter.
We await hearing from you.
Yours faithfully,
Winter Wood & Co

DOCUMENT 19 – MEMORANDUM RE PART 36 OFFER

From: Ravinder Omar, Assistant Solicitor Goodlaw
Sent: 17/07/2014
Subject: Neil Worthing
Hi Belinda
I telephoned Mr W to inform him of the offer. I talked him through the options and advised
him that I thought it was reasonable but perhaps a little on the low side. We agreed that I
would speak to the defendant’s solicitors to see if I can get them to improve their offer but if
not, he wanted to accept their offer.
I then spoke to Saul Edozie at Winter Wood & Co. His offer was based on generals of £3,250
and 25% contributory negligence. He also wanted a reduction in our claim for gratuitous care.
After some negotiation he agreed to increase the offer to £6,225 which I accepted on Mr W’s
behalf. I will send a consent order to finalise the matter.
I rang Mr W to tell him the good news – he is delighted!
Ravi
DOCUMENT 20 – ACCEPTANCE LETTER

Goodlaw Solicitors
4 College Road, Christlethorpe, Guildshire, GU1 4DZ
Winter Wood & Co Solicitors
DX 26438 GUILDSHIRE
Your ref: NG/GELTD/13/A48
Our ref : BB/WORTH/13/426
Date: 18 July 2014
Dear Sirs,
ADDRESS: 22 Elstead House, Griffin Road, Guildshire, GU48 1XX
Further to our telephone conversation with Mr Edozie we confirm that our client is prepared
to accept your offer of £6,225 in full and final settlement of his claim plus our costs to be
assessed if not agreed. Please sign and return the enclosed consent order which we will then
file at court.
Yours faithfully
Goodlaw Solicitors
DOCUMENT 21 – DRAFT CONSENT ORDER

Claim No: N 14 123
IN THE CHRISTLETHORPE COUNTY COURT
BETWEEN
and
CONSENT ORDER
Upon the parties agreeing to settle this matter
AND BY CONSENT
IT IS ORDERED THAT
1. The Defendant pay the Claimant the sum of £6,225 by 4pm on Monday 11 August 2014;
2. Upon payment, claim N 14 123 be stayed;
3. The Defendant pay the Claimant’s costs of this matter to be assessed on the standard
basis if not agreed.
4. Liberty to apply.
We consent to the terms We consent to the terms
of this order. of this order.
Goodlaw Solicitors Winter Wood & Co Solicitors
Dated 25 July 2014 Dated 25 July 2014
Pre-action Protocol for Personal Injury Claims 355
APPENDIX 2
Pre-action Protocol for Personal Injury Claims
Contents
1 Introduction
2 Notes of guidance
3 The protocol
4 Rehabilitation
5 Resolution of issues
Annexes
A Letter of claim
B Pre-action personal injury protocol standard disclosure lists
C Letter of instruction to medical expert
D The 2007 rehabilitation code
1 Introduction
1.1 Lord Woolf in his final Access to Justice Report of July 1996 recommended the
development of pre-action protocols:
To build on and increase the benefits of early but well informed settlement which genuinely satisfy
both parties to dispute.
1.2 The aims of pre-action protocols are:
• more pre-action contact between the parties
• better and earlier exchange of information
• better pre-action investigation by both sides
• to put the parties in a position where they may be able to settle cases fairly and
early without litigation
• to enable proceedings to run to the court’s timetable and efficiently, if litigation
does become necessary
• to promote the provision of medical or rehabilitation treatment (not just in high
value cases) to address the needs of the claimant
1.3 The concept of protocols is relevant to a range of initiatives for good litigation and
pre-litigation practice, especially:
• predictability in the time needed for steps pre-proceedings
• standardisation of relevant information, including documents to be disclosed.
1.4 The Courts will be able to treat the standards set in protocols as the normal reasonable
approach to pre-action conduct. If proceedings are issued, it will be for the court to
decide whether non-compliance with a protocol should merit adverse consequences.
Guidance on the court’s likely approach will be given from time to time in practice
directions.
1.5 If the court has to consider the question of compliance after proceedings have begun, it
will not be concerned with minor infringements, e.g. failure by a short period to provide
relevant information. One minor breach will not exempt the ‘innocent’ party from
following the protocol. The court will look at the effect of non-compliance on the other
party when deciding whether to impose sanctions.
2 Notes of Guidance
2.1 The protocol has been kept deliberately simple to promote ease of use and general
acceptability. The notes of guidance which follows relate particularly to issues which
arose during the piloting of the protocol.
Scope of the protocol

2.2 This protocol is intended to apply to all claims which include a claim for personal injury
(except those claims covered by the Clinical Disputes and Disease and Illness Protocols)
and to the entirety of those claims: not only to the personal injury element of a claim
which also includes, for instance, property damage.
2.3 This protocol is primarily designed for those road traffic, tripping and slipping and
accident at work cases which include an element of personal injury with a value of less
than the fast track limit and which are likely to be allocated to that track. This is because
time will be of the essence, after proceedings are issued, especially for the defendant, if
a case is to be ready for trial within 30 weeks of allocation. Also, proportionality of work
and costs to the value of what is in dispute is particularly important in lower value
claims. For some claims within the value ‘scope’ of the fast track some flexibility in the
timescale of the protocol may be necessary, see also paragraph 3.8.
2.4 However, the ‘cards on the table’ approach advocated by the protocol is equally
appropriate to higher value claims. The spirit, if not the letter of the protocol, should
still be followed for multi-track type claims. In accordance with the sense of the civil
justice reforms, the court will expect to see the spirit of reasonable pre-action behaviour
applied in all cases, regardless of the existence of a specific protocol. In particular with
regard to personal injury cases with a value of more than the fast track limit, to avoid the
necessity of proceedings parties are expected to comply with the protocol as far as
possible e.g. in respect of letters before action, exchanging information and documents
and agreeing experts.
2.5 The timetable and the arrangements for disclosing documents and obtaining expert
evidence may need to be varied to suit the circumstances of the case. Where one or both
parties consider the detail of the protocol is not appropriate to the case, and
proceedings are subsequently issued, the court will expect an explanation as to why the
protocol has not been followed, or has been varied.
Early notification
2.6 The claimant’s legal representative may wish to notify the defendant and/or his insurer
as soon as they know a claim is likely to be made, but before they are able to send a
detailed letter of claim, particularly for instance, when the defendant has no or limited
knowledge of the incident giving rise to the claim or where the claimant is incurring
significant expenditure as a result of the accident which he hopes the defendant might
pay for, in whole or in part. If the claimant’s representative chooses to do this, it will not
start the timetable for responding.
The letter of claim

2.7 The specimen letter of claim at Annex A will usually be sent to the individual defendant.
In practice, he/she may have no personal financial interest in the financial outcome of
the claim/dispute because he/she is insured. Court imposed sanctions for non-
compliance with the protocol may be ineffective against an insured. This is why the
protocol emphasises the importance of passing the letter of claim to the insurer and the
possibility that the insurance cover might be affected. If an insurer receives the letter of
claim only after some delay by the insured, it would not be unreasonable for the insurer
to ask the claimant for additional time to respond.
2.8 In road traffic cases, the letter of claim should always contain the name and address of
the hospital where the claimant was treated and, where available, the claimant’s
hospital reference number.
2.9 The priority at letter of claim stage is for the claimant to provide sufficient information
for the defendant to assess liability. Sufficient information should also be provided to
enable the defendant to estimate the likely size of the claim.
2.10 Once the claimant has sent the letter of claim no further investigation on liability should
normally be carried out until a response is received from the defendant indicating
whether liability is disputed.
2.10AWhere a claim no longer continues under the Pre-Action Protocol for Low Value
Personal Injury Claims in Road Traffic Accidents or the Pre-Action Protocol for Low
Value Personal Injury (Employers’ Liability and Public Liability) Claims the Claim
Notification Form (‘CNF’) completed by the claimant under that Protocol can be used as
the letter of claim under this Protocol unless the defendant has notified the claimant
that there is inadequate information in the CNF.
Reasons for early issue

2.11 The protocol recommends that a defendant be given three months to investigate and
respond to a claim before proceedings are issued. This may not always be possible,
particularly where a claimant only consults a solicitor close to the end of any relevant
limitation period. In these circumstances, the claimant’s solicitor should give as much
notice of the intention to issue proceedings as is practicable and the parties should
consider whether the court might be invited to extend time for service of the claimant’s
supporting documents and for service of any defence, or alternatively, to stay the
proceedings while the recommended steps in the protocol are followed.
Status of letters of claim and response

2.12 Letters of claim and response are not intended to have the same status as a statement of
case in proceedings. Matters may come to light as a result of investigation after the letter
of claim has been sent, or after the defendant has responded, particularly if disclosure
of documents takes place outside the recommended three-month period. These
circumstances could mean that the ‘pleaded’ case of one or both parties is presented
slightly differently than in the letter of claim and response. It would not be consistent
with the spirit of the protocol for a party to ‘take a point’ on this in the proceedings,
provided that there was no obvious intention by the party who changed their position to
mislead the other party.
Disclosure of documents
2.13 The aim of the early disclosure of documents by the defendant is not to encourage
‘fishing expeditions’ by the claimant, but to promote an early exchange of relevant
information to help in clarifying or resolving issues in dispute. The claimant’s solicitor
can assist by identifying in the letter of claim or in a subsequent letter the particular
categories of documents which they consider are relevant.
Experts
2.14 The protocol encourages joint selection of, and access to, experts. The report produced
is not a joint report for the purposes of CPR Part 35. Most frequently this will apply to
the medical expert, but on occasions also to liability experts, e.g. engineers. The
protocol promotes the practice of the claimant obtaining a medical report, disclosing it
to the defendant who then asks questions and/or agrees it and does not obtain his own
report. The Protocol provides for nomination of the expert by the claimant in personal
injury claims because of the early stage of the proceedings and the particular nature of
such claims. If proceedings have to be issued, a medical report must be attached to

these proceedings. However, if necessary after proceedings have commenced and with
the permission of the court, the parties may obtain further expert reports. It would be
for the court to decide whether the costs of more than one expert’s report should be
recoverable.
2.15 Some solicitors choose to obtain medical reports through medical agencies, rather than
directly from a specific doctor or hospital. The defendant’s prior consent to the action
should be sought and, if the defendant so requests, the agency should be asked to
provide in advance the names of the doctor(s) whom they are considering instructing.
Alternative dispute resolution

2.16 The parties should consider whether some form of alternative dispute resolution
procedure would be more suitable than litigation, and if so, endeavour to agree which
form to adopt. Both the Claimant and Defendant may be required by the Court to
provide evidence that alternative means of resolving their dispute were considered. The
Courts take the view that litigation should be a last resort, and that claims should not be
issued prematurely when a settlement is still actively being explored. Parties are warned
that if the protocol is not followed (including this paragraph) then the Court must have
regard to such conduct when determining costs.
2.17 It is not practicable in this protocol to address in detail how the parties might decide
which method to adopt to resolve their particular dispute. However, summarised below
are some of the options for resolving disputes without litigation:
• Discussion and negotiation.
• Early neutral evaluation by an independent third party (for example, a lawyer
experienced in the field of personal injury or an individual experienced in the
subject matter of the claim).
• Mediation – a form of facilitated negotiation assisted by an independent neutral
party.
2.18 The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS
Direct Information Leaflet 23 (www.clsdirect.org.uk/legalhelp/leaflet23.jsp), which
lists a number of organisations that provide alternative dispute resolution services.
2.19 It is expressly recognised that no party can or should be forced to mediate or enter into
any form of ADR.
Stocktake
2.20 Where a claim is not resolved when the protocol has been followed, the parties might
wish to carry out a ‘stocktake’ of the issues in dispute, and the evidence that the court is
likely to need to decide those issues, before proceedings are started. Where the
defendant is insured and the pre-action steps have been conducted by the insurer, the
insurer would normally be expected to nominate solicitors to act in the proceedings and
the claimant’s solicitor is recommended to invite the insurer to nominate solicitors to
act in the proceedings and do so 7–14 days before the intended issue date.
3 The protocol
Letter of claim
3.1 Subject to paragraph 2.10A the claimant shall send to the proposed defendant two
copies of a letter of claim, immediately sufficient information is available to
substantiate a realistic claim and before issues of quantum are addressed in detail. One
copy of the letter is for the defendant, the second for passing on to his insurers.
3.2 The letter shall contain a clear summary of the facts on which the claim is based
together with an indication of the nature of any injuries suffered and of any financial
loss incurred. In cases of road traffic accidents, the letter should provide the name and
address of the hospital where treatment has been obtained and the claimant’s hospital
reference number. Where the case is funded by a conditional fee agreement (or
collective conditional fee agreement), notification should be given of the existence of
the agreement and where appropriate, that there is a success fee and/or insurance
premium, although not the level of the success fee or premium.
3.3 Solicitors are recommended to use a standard format for such a letter – an example is at
Annex A: this can be amended to suit the particular case.
3.4 The letter should ask for details of the insurer and that a copy should be sent by the
proposed defendant to the insurer where appropriate. If the insurer is known, a copy
shall be sent directly to the insurer. Details of the claimant’s National Insurance number
and date of birth should be supplied to the defendant’s insurer once the defendant has
responded to the letter of claim and confirmed the identity of the insurer. This
information should not be supplied in the letter of claim.
3.5 Sufficient information should be given in order to enable the defendant’s insurer/
solicitor to commence investigations and at least put a broad valuation on the ‘risk’.
3.6 The defendant should reply within 21 calendar days of the date of posting of the letter
identifying the insurer (if any) and, if necessary, identifying specifically any significant
omissions from the letter of claim. If there has been no reply by the defendant or insurer
within 21 days, the claimant will be entitled to issue proceedings.
3.7 The defendant(’s insurers) will have a maximum of three months from the date of
acknowledgment of the claim to investigate. No later than the end of that period the
defendant (insurer) shall reply, stating whether liability is denied and, if so, giving
reasons for their denial of liability including any alternative version of events relied
upon.
3.8 Where the accident occurred outside England and Wales and/or where the defendant is
outside the jurisdiction, the time periods of 21 days and three months should normally
be extended up to 42 days and six months.
3.9 Where the claimant’s investigation indicates that the value of the claim has increased to
more than £15,000 since the letter of claim, the claimant should notify the defendant as
soon as possible.
Documents
3.10 If the defendant denies liability, he should enclose with the letter of reply, documents in
his possession which are material to the issues between the parties, and which would be
likely to be ordered to be disclosed by the court, either on an application for pre-action
disclosure, or on disclosure during proceedings.
3.11 Attached at Annex B are specimen, but non-exhaustive, lists of documents likely to be
material in different types of claim. Where the claimant’s investigation of the case is
well advanced, the letter of claim could indicate which classes of documents are
considered relevant for early disclosure. Alternatively these could be identified at a later
stage.
3.12 Where the defendant admits primary liability, but alleges contributory negligence by
the claimant, the defendant should give reasons supporting those allegations and
disclose those documents from Annex B which are relevant to the issues in dispute. The
claimant should respond to the allegations of contributory negligence before
proceedings are issued.
3.13 No charge will be made for providing copy documents under the Protocol.
Special damages
3.14 The claimant will send to the defendant as soon as practicable a Schedule of Special
Damages with supporting documents, particularly where the defendant has admitted
liability.
Experts
3.15 Before any party instructs an expert he should give the other party a list of the name(s)
of one or more experts in the relevant speciality whom he considers are suitable to
instruct.
3.16 Where a medical expert is to be instructed the claimant’s solicitor will organise access to
relevant medical records – see specimen letter of instruction at Annex C.
3.17 Within 14 days the other party may indicate an objection to one or more of the named
experts. The first party should then instruct a mutually acceptable expert (which is not
the same as a joint expert). It must be emphasised that if the Claimant nominates an
expert in the original letter of claim, the defendant has 14 days to object to one or more
of the named experts after expiration of the period of 21 days within which he has to
reply to the letter of claim, as set out in paragraph 3.6.
3.18 If the second party objects to all the listed experts, the parties may then instruct experts
of their own choice. It would be for the court to decide subsequently, if proceedings are
issued, whether either party had acted unreasonably.
3.19 If the second party does not object to an expert nominated, he shall not be entitled to
rely on his own expert evidence within that particular speciality unless:
(a) the first party agrees,
(b) the court so directs, or
(c) the first party’s expert report has been amended and the first party is not prepared
to disclose the original report.
3.20 Either party may send to an agreed expert written questions on the report, relevant to
the issues, via the first party’s solicitors. The expert should send answers to the
questions separately and directly to each party.
3.21 The cost of a report from an agreed expert will usually be paid by the instructing first
party: the costs of the expert replying to questions will usually be borne by the party
which asks the questions.
4 Rehabilitation
4.1 The claimant or the defendant or both shall consider as early as possible whether the
claimant has reasonable needs that could be met by rehabilitation treatment or other
measures.
4.2 The parties shall consider, in such cases, how those needs might be addressed. The
Rehabilitation Code (which is attached at Annex D) may be helpful in considering how
to identify the claimant’s needs and how to address the cost of providing for those
needs.
4.3 The time limit set out in paragraph 3.7 of this Protocol shall not be shortened, except by
consent to allow these issues to be addressed.
4.4 The provision of any report obtained for the purposes of assessment of provision of a
party’s rehabilitation needs shall not be used in any litigation arising out of the accident,
the subject of the claim, save by consent and shall in any event be exempt from the
provisions of paragraphs 3.15 to 3.21 inclusive of this protocol.
5 Resolution of issues
5.1 Where the defendant admits liability in whole or in part, before proceedings are issued,
any medical reports obtained under this protocol on which a party relies should be
disclosed to the other party. The claimant should delay issuing proceedings for 21 days
from disclosure of the report (unless such delay would cause his claim to become time-
barred), to enable the parties to consider whether the claim is capable of settlement.
5.2 The Civil Procedure Rules Part 36 permit claimants and defendants to make offers to
settle pre-proceedings. Parties should always consider before issuing if it is appropriate
to make Part 36 Offer. If such an offer is made, the party making the offer must always
supply sufficient evidence and/or information to enable the offer to be properly
considered.
5.3 Where the defendant has admitted liability, the claimant should send to the defendant
schedules of special damages and loss at least 21 days before proceedings are issued
(unless that would cause the claimant’s claim to become time-barred).
ANNEX A
Letter of claim
To
Defendant
Dear Sirs
Re: Claimant’s full name
Claimant’s full address
Claimant’s Clock or Works Number
Claimant’s Employer (name and address)
We are instructed by the above named to claim damages in connection with an accident at
work/road traffic accident/tripping accident on day of (year) at
(place of accident which must be sufficiently detailed to establish location)
Please confirm the identity of your insurers. Please note that the insurers will need to see this
letter as soon as possible and it may affect your insurance cover and/or the conduct of any
subsequent legal proceedings if you do not send this letter to them.
The circumstances of the accident are:
(brief outline)
The reason why we are alleging fault is:
(simple explanation e.g. defective machine, broken ground)
A description of our clients’ injuries is as follows:
(brief outline)
(In cases of road traffic accidents)
Our client (state hospital reference number) received treatment for the injuries at name and
address of hospital).
Our client is still suffering from the effects of his/her injury. We invite you to participate with
us in addressing his/her immediate needs by use of rehabilitation.
He is employed as (occupation) and has had the following time off work (dates of absence).
His approximate weekly income is (insert if known).
If you are our client’s employers, please provide us with the usual earnings details which will
enable us to calculate his financial loss.
We are obtaining a police report and will let you have a copy of the same upon your
undertaking to meet half the fee.
We have also sent a letter of claim to (name and address) and a copy of that letter is attached.
We understand their insurers are (name, address and claims number if known).
At this stage of our enquiries we would expect the documents contained in parts (insert
appropriate parts of standard disclosure list) to be relevant to this action.
Please note that we have entered into a conditional fee agreement with our client dated
in relation to this claim which provides for a success fee within the meaning of section
58(2) of the Courts and Legal Services Act 1990. Our client has taken out an insurance policy
with [name of insurance company] of [address of insurance company] to which section 29 of
the Access Justice Act 1999 applies. The policy number is and the policy is dated
. Where the funding arrangement is an insurance policy, the party must state the name
and address of the insurer, the policy number and the date of the policy, and must identify the
claim or claims to which it relates (including Part 20 claims if any).
A copy of this letter is attached for you to send to your insurers. Finally we expect an
acknowledgment of this letter within 21 days by yourselves or your insurers.
Yours faithfully
ANNEX B
Pre-action personal injury protocol standard disclosure lists
Fast track disclosure
RTA Cases
Section A
In all cases where liability is at issue—
(i) Documents identifying nature, extent and location of damage to defendant’s vehicle
where there is any dispute about point of impact.
(ii) MOT certificate where relevant.
(iii) Maintenance records where vehicle defect is alleged or it is alleged by defendant that
there was an unforeseen defect which caused or contributed to the accident.
Section B
Accident involving commercial vehicle as defendant—
(i) Tachograph charts or entry from individual control book.
(ii) Maintenance and repair records required for operators’ licence where vehicle defect is
alleged or it is alleged by defendant that there was an unforeseen defect which caused or
contributed to the accident.
Section C
Cases against local authorities where highway design defect is alleged.
(i) Documents produced to comply with Section 39 of the Road Traffic Act 1988 in respect
of the duty designed to promote road safety to include studies into road accidents in the
relevant area and documents relating to measures recommended to prevent accidents in
the relevant area.
Highway tripping claims

Documents from Highway Authority for a period of 12 months prior to the accident—
(i) Records of inspection for the relevant stretch of highway.
(ii) Maintenance records including records of independent contractors working in relevant

area.
(iii) Records of the minutes of Highway Authority meetings where maintenance or repair
policy has been discussed or decided.
(iv) Records of complaints about the state of highways.
(v) Records of other accidents which have occurred on the relevant stretch of highway.
Workplace claims
(i) Accident book entry.
(ii) First aider report.
(iii) Surgery record.
(iv) Foreman/supervisor accident report.
(v) Safety representatives accident report.
(vi) RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations)
report to HSE.
(vii) Other communications between defendants and HSE.
(viii) Minutes of Health and Safety Committee meeting(s) where accident/matter considered.
(ix) Report to DSS.
(x) Documents listed above relative to any previous accident/matter identified by the
claimant and relied upon as proof of negligence.
(xi) Earnings information where defendant is employer.
Documents produced to comply with requirements of the Management of Health and Safety
at Work Regulations 1992—
(i) Pre-accident Risk Assessment required by Regulation 3.
(ii) Post-accident Re-Assessment required by Regulation 3.
(iii) Accident Investigation Report prepared in implementing the requirements of
Regulations 4, 6 and 9.
(iv) Health Surveillance Records in appropriate cases required by Regulation 5.
(v) Information provided to employees under Regulation 8.
(vi) Documents relating to the employees health and safety training required by
Regulation 11.
Workplace claims – disclosure where specific regulations apply

Section A – Workplace (Health Safety and Welfare) Regulations 1992
(i) Repair and maintenance records required by Regulation 5.
(ii) Housekeeping records to comply with the requirements of Regulation 9.
(iii) Hazard warning signs or notices to comply with Regulation 17 (Traffic Routes).
Section B – Provision and Use of Work Equipment Regulations 1998

(i) Manufacturers’ specifications and instructions in respect of relevant work equipment
establishing its suitability to comply with Regulation 5.
(ii) Maintenance log/maintenance records required to comply with Regulation 6.
(iii) Documents providing information and instructions to employees to comply with
Regulation 8.
(iv) Documents provided to the employee in respect of training for use to comply with
Regulation 9.
(v) Any notice, sign or document relied upon as a defence to alleged breaches of
Regulations 14 to 18 dealing with controls and control systems.
(vi) Instruction/training documents issued to comply with the requirements of regulation

22 insofar as it deals with maintenance operations where the machinery is not shut
down.
(vii) Copies of markings required to comply with Regulation 23.
(viii) Copies of warnings required to comply with Regulation 24.
Section C – Personal Protective Equipment at Work Regulations 1992

(i) Documents relating to the assessment of the Personal Protective Equipment to comply
with Regulation 6.
(ii) Documents relating to the maintenance and replacement of Personal Protective
Equipment to comply with Regulation 7.
(iii) Record of maintenance procedures for Personal Protective Equipment to comply with
Regulation 7.
(iv) Records of tests and examinations of Personal Protective Equipment to comply with
Regulation 7.
(v) Documents providing information, instruction and training in relation to the Personal
Protective Equipment to comply with Regulation 9.
(vi) Instructions for use of Personal Protective Equipment to include the manufacturers’
instructions to comply with Regulation 10.
Section D – Manual Handling Operations Regulations 1992

(i) Manual Handling Risk Assessment carried out to comply with the requirements of
Regulation 4(1)(b)(i).
(ii) Re-assessment carried out post-accident to comply with requirements of Regulation
4(1)(b)(i).
(iii) Documents showing the information provided to the employee to give general
indications related to the load and precise indications on the weight of the load and the
heaviest side of the load if the centre of gravity was not positioned centrally to comply
with Regulation 4(1)(b)(iii).
(iv) Documents relating to training in respect of manual handling operations and training
records.
Section E – Health and Safety (Display Screen Equipment) Regulations 1992

(i) Analysis of work stations to assess and reduce risks carried out to comply with the
requirements of Regulation 2.
(ii) Re-assessment of analysis of work stations to assess and reduce risks following
development of symptoms by the claimant.
(iii) Documents detailing the provision of training including training records to comply with
the requirements of Regulation 6.
(iv) Documents providing information to employees to comply with the requirements of
Regulation 7.
Section F – Control of Substances Hazardous to Health Regulations 1999

(i) Risk assessment carried out to comply with the requirements of Regulation 6.
(ii) Reviewed risk assessment carried out to comply with the requirements of Regulation 6.
(iii) Copy labels from containers used for storage handling and disposal of carcinogenics to
comply with the requirements of Regulation 7(2A)(h).
(iv) Warning signs identifying designation of areas and installations which may be
contaminated by carcinogenics to comply with the requirements of Regulation
7(2A)(h).
(v) Documents relating to the assessment of the Personal Protective Equipment to comply
with Regulation 7(3A).
(vi) Documents relating to the maintenance and replacement of Personal Protective
Equipment to comply with Regulation 7(3A).
(vii) Record of maintenance procedures for Personal Protective Equipment to comply with
Regulation 7(3A).
(viii) Records of tests and examinations of Personal Protective Equipment to comply with
Regulation 7(3A).
(ix) Documents providing information, instruction and training in relation to the Personal
Protective Equipment to comply with Regulation 7(3A).
(x) Instructions for use of Personal Protective Equipment to include the manufacturers’
instructions to comply with Regulation 7(3A).
(xi) Air monitoring records for substances assigned a maximum exposure limit or
occupational exposure standard to comply with the requirements of Regulation 7.
(xii) Maintenance examination and test of control measures records to comply with
Regulation 9.
(xiii) Monitoring records to comply with the requirements of Regulation 10.
(xiv) Health surveillance records to comply with the requirements of Regulation 11.
(xv) Documents detailing information, instruction and training including training records
for employees to comply with the requirements of Regulation 12.
(xvi) Labels and Health and Safety data sheets supplied to the employers to comply with the
CHIP Regulations.
Section G – Construction (Design and Management) (Amendment) Regulations 2000

(i) Notification of a project form (HSE F10) to comply with the requirements of
Regulation 7.
(ii) Health and Safety Plan to comply with requirements of Regulation 15.
(iii) Health and Safety file to comply with the requirements of Regulations 12 and 14.
(iv) Information and training records provided to comply with the requirements of
Regulation 17.
(v) Records of advice from and views of persons at work to comply with the requirements of
Regulation 18.
Section H – Pressure Systems and Transportable Gas Containers Regulations 1989

(i) Information and specimen markings provided to comply with the requirements of
Regulation 5.
(ii) Written statements specifying the safe operating limits of a system to comply with the
(iii) Copy of the written scheme of examination required to comply with the requirements of
Regulation 8.
(iv) Examination records required to comply with the requirements of Regulation 9.
(v) Instructions provided for the use of operator to comply with Regulation 11.
(vi) Records kept to comply with the requirements of Regulation 13.
(vii) Records kept to comply with the requirements of Regulation 22.
Section I – Lifting Operations and Lifting Equipment Regulations 1998

(i) Record kept to comply with the requirements of Regulation 6.
Section J – The Noise at Work Regulations 1989

(i) Any risk assessment records required to comply with the requirements of Regulations 4
and 5.
(ii) Manufacturers’ literature in respect of all ear protection made available to claimant to
comply with the requirements of Regulation 8.
(iii) All documents provided to the employee for the provision of information to comply
with Regulation 11.
Section K – Construction (Head Protection) Regulations 1989

(i) Pre-accident assessment of head protection required to comply with Regulation 3(4).
(ii) Post-accident re-assessment required to comply with Regulation 3(5).
Section L – The Construction (General Provisions) Regulations 1961

(i) Report prepared following inspections and examinations of excavations etc. to comply
with the requirements of Regulation 9.
Section M – Gas Containers Regulations 1989

(i) Information and specimen markings provided to comply with the requirements of
Regulation 5.
(ii) Written statements specifying the safe operating limits of a system to comply with the
(iii) Copy of the written scheme of examination required to comply with the requirements of
Regulation 8.
(iv) Examination records required to comply with the requirements of Regulation 9.
(v) Instructions provided for the use of operator to comply with Regulation 11.
ANNEX C
Letter of Instruction to Medical Expert
Dear Sir,
Re: (Name and Address)
D.O.B. –
Telephone No. –
Date of Accident –
We are acting for the above named in connection with injuries received in an accident which
occurred on the above date. The main injuries appear to have been (main injuries).
We should be obliged if you would examine our Client and let us have a full and detailed report
dealing with any relevant pre-accident medical history, the injuries sustained, treatment
received and present condition, dealing in particular with the capacity for work and giving a
prognosis.
It is central to our assessment of the extent of our Client’s injuries to establish the extent and
duration of any continuing disability. Accordingly, in the prognosis section we would ask you
to specifically comment on any areas of continuing complaint or disability or impact on daily
living. If there is such continuing disability you should comment upon the level of suffering or
inconvenience caused and, if you are able, give your view as to when or if the complaint or
disability is likely to resolve.
Please send our Client an appointment direct for this purpose. Should you be able to offer a
cancellation appointment please contact our Client direct. We confirm we will be responsible
for your reasonable fees.
We are obtaining the notes and records from our Client’s GP and Hospitals attended and will
forward them to you when they are to hand/or please request the GP and Hospital records
direct and advise that any invoice for the provision of these records should be forwarded to us.
In order to comply with Court Rules we would be grateful if you would insert above your
signature a statement that the contents are true to the best of your knowledge and belief.
In order to avoid further correspondence we can confirm that on the evidence we have there is
no reason to suspect we may be pursuing a claim against the hospital or its staff.
We look forward to receiving your report within _______ weeks. If you will not be able to
prepare your report within this period please telephone us upon receipt of these instructions.
When acknowledging these instructions it would assist if you could give an estimate as to the
likely time scale for the provision of your report and also an indication as to your fee.
Yours faithfully
ANNEX D
The 2007 Rehabilitation Code
Introduction
The aim of this code is to promote the use of rehabilitation and early intervention in the
compensation process so that the injured person makes the best and quickest possible
medical, social and psychological recovery. This objective applies whatever the severity of the
injuries sustained by the claimant. The Code is designed to ensure that the claimantís need
for rehabilitation is assessed and addressed as a priority, and that the process of so doing is
pursued on a collaborative basis by the claimantís lawyer and the compensator.
Therefore, in every case, where rehabilitation is likely to be of benefit, the earliest possible
notification to the compensator of the claim and of the need for rehabilitation will be
expected.
1. Introduction
1.1 The purpose of the personal injury claims process is to put the individual back into the
same position as he or she would have been in, had the accident not occurred, insofar as
money can achieve that objective. The purpose of the rehabilitation code is to provide a
framework within which the claimant’s health, quality of life and ability to work are
restored as far as possible before, or simultaneously with, the process of assessing
compensation.
1.2 Although the Code is recognised by the Personal Injury Pre-Action Protocol, its
provisions are not mandatory. It is recognised that the aims of the Code can be achieved
without strict adherence to the terms of the Code, and therefore it is open to the parties
to agree an alternative framework to achieve the early rehabilitation of the claimant.
1.3 However, the Code provides a useful framework within which claimant’s lawyers and
the compensator can work together to ensure that the needs of injured claimants are
assessed at an early stage.
1.4 In any case where agreement on liability is not reached it is open to the parties to agree
that the Code will in any event operate, and the question of delay pending resolution of
liability should be balanced with the interests of the injured party. However, unless so
agreed, the Code does not apply in the absence of liability or prior to agreement on
liability being reached.
1.5 In this code the expression “the compensator” shall include any loss adjuster, solicitor
or other person acting on behalf of the compensator.
2. The claimant’s solicitor

2.1 It should be the duty of every claimant’s solicitor to consider, from the earliest
practicable stage, and in consultation with the claimant, the claimant’s family, and
where appropriate the claimant’s treating physician(s), whether it is likely or possible
that early intervention, rehabilitation or medical treatment would improve their present
and/or long term physical and mental well being. This duty is ongoing throughout the
life of the case but is of most importance in the early stages.
2.2 The claimant’s solicitors will in any event be aware of their responsibilities under
section 4 of the Pre-Action Protocol for Personal Injury Claims.
2.3 It shall be the duty of a claimant’s solicitor to consider, with the claimant and/or the
claimant’s family, whether there is an immediate need for aids, adaptations,
adjustments to employment to enable the claimant to keep his/her existing job, obtain
suitable alternative employment with the same employer or retrain for new
employment, or other matters that would seek to alleviate problems caused by
disability, and then to communicate with the compensators as soon as practicable about
any such rehabilitation needs, with a view to putting this Code into effect.
2.4 It shall not be the responsibility of the solicitor to decide on the need for treatment or
rehabilitation or to arrange such matters without appropriate medical or professional
advice.
2.5 It is the intention of this Code that the claimant’s solicitor will work with the
compensator to address these rehabilitation needs and that the assessment and delivery
of rehabilitation needs shall be a collaborative process.
2.6 It must be recognised that the compensator will need to receive from the claimants’
solicitors sufficient information for the compensator to make a proper decision about
the need for intervention, rehabilitation or treatment. To this extent the claimant’s
solicitor must comply with the requirements of the Pre-Action Protocol to provide the
compensator with full and adequate details of the injuries sustained by the claimant, the
nature and extent of any or any likely continuing disability and any suggestions that may
have already have been made concerning the rehabilitation and/or early intervention.
2.7 There is no requirement under the Pre-Action Protocol, or under this code, for the
claimant’s solicitor to have obtained a full medical report. It is recognised that many
cases will be identified for consideration under this code before medical evidence has
actually been commissioned or obtained.
3. The Compensator
3.1 It shall be the duty of the compensator, from the earliest practicable stage in any
appropriate case, to consider whether it is likely that the claimant will benefit in the
immediate, medium or longer term from further medical treatment, rehabilitation or
early intervention. This duty is ongoing throughout the life of the case but is most
important in the early stages.
3.2 If the compensator considers that a particular claim might be suitable for intervention,
rehabilitation or treatment, the compensator will communicate this to the claimant’s
solicitor as soon as practicable.
3.3 On receipt of such communication, the claimant’s solicitor will immediately discuss
these issues with the claimant and/or the claimant’s family pursuant to his duty set out
above.
3.4 Where a request to consider rehabilitation has been communicated by the claimant’s
solicitor to the compensator, it will usually be expected that the compensator will
respond to such request within 21 days.
3.5 Nothing in this or any other code of practice shall in any way modify the obligations of
the compensator under the Protocol to investigate claims rapidly and in any event
within 3 months (except where time is extended by the claimant’s solicitor) from the
date of the formal claim letter. It is recognised that, although the rehabilitation
assessment can be done even where liability investigations are outstanding, it is
essential that such investigations proceed with the appropriate speed.
4. Assessment
4.1 Unless the need for intervention, rehabilitation or treatment has already been identified
by medical reports obtained and disclosed by either side, the need for and extent of such
intervention, rehabilitation or treatment will be considered by means of an assessment
by an appropriately qualified person.
4.2 An assessment of rehabilitation needs may be carried out by any person or organisation
suitably qualified, experienced and skilled to carry out the task. The claimant’s solicitor
and the compensator should endeavour to agree on the person or organisation to be
chosen.
4.3 No solicitor or compensator may insist on the assessment being carried out by a
particular person or organisation if [on reasonable grounds] the other party objects,
such objection to be raised within 21 days from the date of notification of the suggested
assessor.
4.4 The assessment may be carried out by a person or organisation which has a direct
business connection with the solicitor or compensator, only if the other party agrees.
The solicitor or compensator will be expected to reveal to the other party the existence
of and nature of such a business connection.
5. The Assessment Process

5.1 Where possible, the agency to be instructed to provide the assessment should be agreed
between the claimant’s solicitor and the compensator. The method of providing
instructions to that agency will be agreed between the solicitor and the compensator.
5.2 The assessment agency will be asked to carry out the assessment in a way that is
appropriate to the needs of the case and, in a simple case, may include, by prior
appointment, a telephone interview but in more serious cases will probably involve a
face to face discussion with the claimant. The report will normally cover the following
headings:
1. The Injuries sustained by the claimant.
2. The current disability/incapacity arising from those Injuries. Where relevant to
the overall picture of the claimant’s needs, any other medical conditions not
arising from the accident should also be separately annotated.
3. The claimant’s domestic circumstances (including mobility accommodation and
employment) where relevant.
4. The injuries/disability in respect of which early intervention or early rehabilitation
is suggested.
5. The type of intervention or treatment envisaged.
6. The likely cost.
7. The likely outcome of such intervention or treatment.
5.3 The report should not deal with issues relating to legal liability and should therefore not
contain a detailed account of the accident circumstances.
5.4 In most cases it will be expected that the assessment will take place within 14 days from
the date of the letter of referral to the assessment agency.
5.5 It must be remembered that the compensator will usually only consider such
rehabilitation to deal with the effects of the injuries that have been caused in the
relevant accident and will normally not be expected to fund treatment for conditions
which do not directly relate to the accident unless the effect of such conditions has been
exacerbated by the injuries sustained in the accident.
6. The Assessment Report

6.1 The report agency will, on completion of the report, send copies onto both the
claimant’s solicitor and compensator simultaneously. Both parties will have the right to
raise questions on the report, disclosing such correspondence to the other party.
6.2 It is recognised that for this assessment report to be of benefit to the parties, it should
be prepared and used wholly outside the litigation process. Neither side can therefore,
unless they agree in writing, rely on its contents in any subsequent litigation.
6.3 The report, any correspondence related to it and any notes created by the assessing
agency to prepare it, will be covered by legal privilege and will not be disclosed in any
legal proceedings unless the parties agree. Any notes or documents created in
connection with the assessment process will not be disclosed in any litigation, and any
person involved in the preparation of the report or involved in the assessment process,
shall not be a compellable witness at Court. This principle is also set out in paragraph
4.4 of the Pre-Action Protocol.
6.4 The provision in paragraph 6.3 above as to treating the report etc as outside the
litigation process is limited to the assessment report and any notes relating to it. Any
notes and reports created during the subsequent case management process will be
covered by the usual principle in relation to disclosure of documents and medical
records relating to the claimant.
6.5 The compensator will pay for the report within 28 days of receipt.
6.6 This code intends that the parties will continue to work together to ensure that the
rehabilitation which has been recommended proceeds smoothly and that any further
rehabilitation needs are also assessed.
7. Recommendations
7.1 When the assessment report is disclosed to the compensator, the compensator will be
under a duty to consider the recommendations made and the extent to which funds will
be made available to implement all or some of the recommendations. The compensator
will not be required to pay for intervention treatment that is unreasonable in nature,
content or cost or where adequate and timely provision is otherwise available. The
claimant will be under no obligation to undergo intervention, medical or investigation
treatment that is unreasonable in all the circumstances of the case.
7.2 The compensator will normally be expected to respond to the claimant’s solicitor within
21 days from the date upon which the assessment report is disclosed as to the extent to
which the recommendations have been accepted and rehabilitation treatment would be
funded and will be expected to justify, within that same timescale, any refusal to meet
the cost of recommended rehabilitation.
7.3 If funds are provided by the compensator to the claimant to enable specific
intervention, rehabilitation or treatment to occur, the compensator warrants that they
will not, in any legal proceedings connected with the claim, dispute the reasonableness
of that treatment, nor the agreed costs, provided of course that the claimant has had the
recommended treatment. The compensator will not, should the claim fail or be later
discontinued, or any element of contributory negligence be assessed or agreed, seek to
recover from the claimant any funds that they have made available pursuant to this
Code.
Pre-action Protocol for the Resolution of Clinical Disputes 371
APPENDIX 3
Pre-action Protocol for the Resolution of Clinical Disputes
Contents
Executive Summary
1 Why this protocol?
2 The aims of the protocol
3 The protocol
4 Experts
5 Alternative dispute resolution
Annexes
A Illustrative flowchart
B Medical negligence and personal injury claims
C Templates for letters of claim and response
D Lord Woolf ’s recommendations
E How to contact the Forum
Executive Summary
1 The Clinical Disputes Forum is a multi-disciplinary body which was formed in 1997, as
a result of Lord Woolf ’s ‘Access to Justice’ inquiry. One of the aims of the Forum is to
find less adversarial and more cost effective ways of resolving disputes about healthcare
and medical treatment. The names and addresses of the Chairman and Secretary of the
Forum can be found at Annex E.
2 This protocol is the Forum’s first major initiative. It has been drawn up carefully,
including extensive consultations with most of the key stakeholders in the medico-legal
system.
3 The protocol—
• encourages a climate of openness when something has ‘gone wrong’ with a
patient’s treatment or the patient is dissatisfied with that treatment and/or the
outcome. This reflects the new and developing requirements for clinical
governance within healthcare;
• provides general guidance on how this more open culture might be achieved
when disputes arise;
• recommends a timed sequence of steps for patients and healthcare providers, and
their advisers, to follow when a dispute arises. This should facilitate and speed up
exchanging relevant information and increase the prospects that disputes can be
resolved without resort to legal action.
4 This protocol has been prepared by a working party of the Clinical Disputes Forum. It
has the support of the Lord Chancellor’s Department, the Department of Health and
NHS Executive, the Law Society, the Legal Aid Board and many other key organisations.
1 Why this Protocol?

Mistrust in healthcare disputes
1.1 The number of complaints and claims against hospitals, GPs, dentists and private
healthcare providers is growing as patients become more prepared to question the
treatment they are given, to seek explanations of what happened, and to seek
appropriate redress. Patients may require further treatment, an apology, assurances

about future action, or compensation. These trends are unlikely to change. The
Patients’ Charter encourages patients to have high expectations, and a revised NHS
Complaints Procedure was implemented in 1996. The civil justice reforms and new
Rules of Court should make litigation quicker, more user friendly and less expensive.
1.2 It is clearly in the interests of patients, healthcare professionals and providers that
patients’ concerns, complaints and claims arising from their treatment are resolved as
quickly, efficiently and professionally as possible. A climate of mistrust and lack of
openness can seriously damage the patient/clinician relationship, unnecessarily
prolong disputes (especially litigation), and reduce the resources available for treating
patients. It may also cause additional work for, and lower the morale of, healthcare
professionals.
1.3 At present there is often mistrust by both sides. This can mean that patients fail to raise
their concerns with the healthcare provider as early as possible. Sometimes patients
may pursue a complaint or claim which has little merit, due to a lack of sufficient
information and understanding. It can also mean that patients become reluctant, once
advice has been taken on a potential claim, to disclose sufficient information to enable
the provider to investigate that claim efficiently and, where appropriate, resolve it.
1.4 On the side of the healthcare provider this mistrust can be shown in a reluctance to be
honest with patients, a failure to provide prompt clear explanations, especially of
adverse outcomes (whether or not there may have been negligence) and a tendency to
‘close ranks’ once a claim is made.
What needs to change

1.5 If that mistrust is to be removed, and a more co-operative culture is to develop—
• healthcare professionals and providers need to adopt a constructive approach to
complaints and claims. They should accept that concerned patients are entitled to
an explanation and an apology, if warranted, and to appropriate redress in the
event of negligence. An overly defensive approach is not in the long-term interest
of their main goal: patient care;
• patients should recognise that unintended and/or unfortunate consequences of
medical treatment can only be rectified if they are brought to the attention of the
healthcare provider as soon as possible.
1.6 A protocol which sets out ‘ground rules’ for the handling of disputes at their early stages
should, if it is to be subscribed to, and followed—
• encourage greater openness between the parties;
• encourage parties to find the most appropriate way of resolving the particular
dispute;
• reduce delay and costs;
• reduce the need for litigation.
Why this protocol now?

1.7 Lord Woolf in his Access to Justice Report in July 1996, concluded that major causes of
costs and delay in medical negligence litigation occur at the pre-action stage. He
recommended that patients and their advisers, and healthcare providers, should work
more closely together to try to resolve disputes co-operatively, rather than proceed to
litigation. He specifically recommended a pre-action protocol for medical negligence
cases.
1.8 A fuller summary of Lord Woolf ’s recommendations is at Annex D.
Where the protocol fits in

1.9 Protocols serve the needs of litigation and pre-litigation practice, especially—
• predictability in the time needed for steps pre-proceedings;
• standardisation of relevant information, including records and documents to be
disclosed.
1.10 Building upon Lord Woolf ’s recommendations, the Lord Chancellor’s Department is
now promoting the adoption of protocols in specific areas, including medical
negligence.
1.11 It is recognised that contexts differ significantly. For example, patients tend to have an
ongoing relationship with a GP, more so than with a hospital; clinical staff in the
National Health Service are often employees, while those in the private sector may be
contractors; providing records quickly may be relatively easy for GPs and dentists, but
can be a complicated procedure in a large multi-department hospital. The protocol
which follows is intended to be sufficiently broadly based, and flexible, to apply to all
aspects of the health service: primary and secondary; public and private sectors.
Enforcement of the protocol and sanctions

1.12 The civil justice reforms will be implemented in April 1999. One new set of Court Rules
and procedures is replacing the existing rules for both the High Court and county
courts. This and the personal injury protocol are being published with the Rules,
Practice Directions and key court forms. The courts will be able to treat the standards
set in protocols as the normal reasonable approach to pre-action conduct.
1.13 If proceedings are issued it will be for the court to decide whether non-compliance with
a protocol should merit sanctions. Guidance on the court’s likely approach will be given
from time to time in practice directions.
1.14 If the court has to consider the question of compliance after proceedings have begun it
will not be concerned with minor infringements, eg, failure by a short period to provide
relevant information. One minor breach will not entitle the ‘innocent’ party to abandon
following the protocol. The court will look at the effect of non-compliance on the other
party when deciding whether to impose sanctions.
2 The aims of the Protocol

2.1 The general aims of the protocol are—
• to maintain/restore the patient/healthcare provider relationship;
• to resolve as many disputes as possible without litigation.
2.2 The specific objectives are—
Openness
• to encourage early communication of the perceived problem between patients and
healthcare providers;
• to encourage patients to voice any concerns or dissatisfaction with their treatment
as soon as practicable;
• to encourage healthcare providers to develop systems of early reporting and
investigation for serious adverse treatment outcomes and to provide full and
prompt explanations to dissatisfied patients;
• to ensure that sufficient information is disclosed by both parties to enable each to
understand the other’s perspective and case, and to encourage early resolution.
Timeliness
• to provide an early opportunity for healthcare providers to identify cases where an
investigation is required and to carry out that investigation promptly;
• to encourage primary and private healthcare providers to involve their defence

organisations or insurers at an early stage;
• to ensure that all relevant medical records are provided to patients or their
appointed representatives on request, to a realistic timetable by any healthcare
provider;
• to ensure that relevant records which are not in healthcare providers’ possession
are made available to them by patients and their advisers at an appropriate stage;
• where a resolution is not achievable to lay the ground to enable litigation to
proceed on a reasonable timetable, at a reasonable and proportionate cost and to
limit the matters in contention;
• to discourage the prolonged pursuit of unmeritorious claims and the prolonged
defence of meritorious claims.
Awareness of options
• to ensure that patients and healthcare providers are made aware of the available options
to pursue and resolve disputes and what each might involve.
2.3 This protocol does not attempt to be prescriptive about a number of related clinical
governance issues which will have a bearing on healthcare providers’ ability to meet the
standards within the protocol. Good clinical governance requires the following to be
considered—
(a) Clinical risk management: the protocol does not provide any detailed guidance to
healthcare providers on clinical risk management or the adoption of risk
management systems and procedures. This must be a matter for the NHS
Executive, the National Health Service Litigation Authority, individual trusts and
providers, including GPs, dentists and the private sector. However, effective co-
ordinated, focused clinical risk management strategies and procedures can help
in managing risk and in the early identification and investigation of adverse
outcomes.
(b) Adverse outcome reporting: the protocol does not provide any detailed guidance
on which adverse outcomes should trigger an investigation. However, healthcare
providers should have in place procedures for such investigations, including
recording of statements of key witnesses. These procedures should also cover
when and how to inform patients that an adverse outcome has occurred.
(c) The professional’s duty to report: the protocol does not recommend changes to
the codes of conduct of professionals in healthcare, or attempt to impose a
specific duty on those professionals to report known adverse outcomes or
untoward incidents. Lord Woolf in his final report suggested that the professional
bodies might consider this. The General Medical Council is preparing guidance to
doctors about their duty to report adverse incidents and to co-operate with
inquiries.
3 The Protocol
3.1 This protocol is not a comprehensive code governing all the steps in clinical disputes.
Rather it attempts to set out a code of good practice which parties should follow when
litigation might be a possibility.
3.2 The commitments section of the protocol summarises the guiding principles which
healthcare providers and patients and their advisers are invited to endorse when dealing
with patient dissatisfaction with treatment and its outcome, and with potential
complaints and claims.
3.3 The steps section sets out in a more prescriptive form, a recommended sequence of
actions to be followed if litigation is a prospect.
Good practice commitments

3.4 Healthcare providers should—
(i) ensure that key staff, including claims and litigation managers, are appropriately
trained and have some knowledge of healthcare law, and of complaints
procedures and civil litigation practice and procedure;
(ii) develop an approach to clinical governance that ensures that clinical practice is
delivered to commonly accepted standards and that this is routinely monitored
through a system of clinical audit and clinical risk management (particularly
adverse outcome investigation);
(iii) set up adverse outcome reporting systems in all specialties to record and
investigate unexpected serious adverse outcomes as soon as possible. Such
systems can enable evidence to be gathered quickly, which makes it easier to
provide an accurate explanation of what happened and to defend or settle any
subsequent claims;
(iv) use the results of adverse incidents and complaints positively as a guide to how to
improve services to patients in the future;
(v) ensure that patients receive clear and comprehensible information in an
accessible form about how to raise their concerns or complaints;
(vi) establish efficient and effective systems of recording and storing patient records,
notes, diagnostic reports and x-rays, and to retain these in accordance with
Department of Health guidance (currently for a minimum of eight years in the
case of adults, and all obstetric and paediatric notes for children until they reach
the age of 25);
(vii) advise patients of a serious adverse outcome and provide on request to the patient
or the patient’s representative an oral or written explanation of what happened,
information on further steps open to the patient, including where appropriate an
offer of future treatment to rectify the problem, an apology, changes in procedure
which will benefit patients and/or compensation.
3.5 Patients and their advisers should—
(i) report any concerns and dissatisfaction to the healthcare provider as soon as is
reasonable to enable that provider to offer clinical advice where possible, to advise
the patient if anything has gone wrong and take appropriate action;
(ii) consider the full range of options available following an adverse outcome with
which a patient is dissatisfied, including a request for an explanation, a meeting, a
complaint, and other appropriate dispute resolution methods (including
mediation) and negotiation, not only litigation;
(iii) inform the healthcare provider when the patient is satisfied that the matter has
been concluded: legal advisers should notify the provider when they are no longer
acting for the patient, particularly if proceedings have not started.
Protocol steps
3.6 The steps of this protocol which follow have been kept deliberately simple. An
illustration of the likely sequence of events in a number of healthcare situations is at
Annex A.
Obtaining the health records

3.7 Any request for records by the patient or their adviser should—
• provide sufficient information to alert the healthcare provider where an adverse
outcome has been serious or had serious consequences;
• be as specific as possible about the records which are required.
3.8 Requests for copies of the patient’s clinical records should be made using the Law
Society and Department of Health approved standard forms (enclosed at Annex B),
adapted as necessary.
3.9 The copy records should be provided within 40 days of the request and for a cost not
exceeding the charges permissible under the Access to Health Records Act 1990
(currently a maximum of £10 plus photocopying and postage).
3.10 In the rare circumstances that the healthcare provider is in difficulty in complying with
the request within 40 days, the problem should be explained quickly and details given of
what is being done to resolve it.
3.11 It will not be practicable for healthcare providers to investigate in detail each case when
records are requested. But healthcare providers should adopt a policy on which cases
will be investigated (see paragraph 3.5 on clinical governance and adverse outcome
reporting).
3.12 If the healthcare provider fails to provide the health records within 40 days, the patient
or their adviser can then apply to the court for an order for pre-action disclosure. The
new Civil Procedure Rules should make pre-action applications to the court easier. The
court will also have the power to impose costs sanctions for unreasonable delay in
providing records.
3.13 If either the patient or the healthcare provider considers additional health records are
required from a third party, in the first instance these should be requested by or
through the patient. Third party healthcare providers are expected to co-operate. The
Civil Procedure Rules will enable patients and healthcare providers to apply to the court
for pre-action disclosure by third parties.
Letter of claim
3.14 Annex C1 to this protocol provides a template for the recommended contents of a letter
of claim: the level of detail will need to be varied to suit the particular circumstances.
3.15 If, following the receipt and analysis of the records, and the receipt of any further advice
(including from experts if necessary – see Section 4), the patient/adviser decides that
there are grounds for a claim, they should then send, as soon as practicable, to the
healthcare provider/potential defendant, a letter of claim. Any letter of claim sent to an
NHS Trust or Independent Sector Treatment Centre should be copied to the National
Health Service Litigation Authority.
3.16 This letter should contain a clear summary of the facts on which the claim is based,
including the alleged adverse outcome, and the main allegations of negligence. It
should also describe the patient’s injuries, and present condition and prognosis. The
financial loss incurred by the plaintiff should be outlined with an indication of the
heads of damage to be claimed and the scale of the loss, unless this is impracticable.
3.17 In more complex cases a chronology of the relevant events should be provided,
particularly if the patient has been treated by a number of different healthcare providers.
3.18 The letter of claim should refer to any relevant documents, including health records,
and if possible enclose copies of any of those which will not already be in the potential
defendant’s possession, eg any relevant general practitioner records if the plaintiff ’s
claim is against a hospital.
3.19 Sufficient information must be given to enable the healthcare provider defendant to
commence investigations and to put an initial valuation on the claim.
3.20 Letters of claim are not intended to have the same formal status as a pleading, nor
should any sanctions necessarily apply if the letter of claim and any subsequent
statement of claim in the proceedings differ.
3.21 Proceedings should not be issued until after three months from the letter of claim,
unless there is a limitation problem and/or the patient’s position needs to be protected
by early issue.
3.22 The patient or their adviser may want to make an offer to settle the claim at this early
stage by putting forward an amount of compensation which would be satisfactory
(possibly including any costs incurred to date). If an offer to settle is made, generally
this should be supported by a medical report which deals with the injuries, condition
and prognosis, and by a schedule of loss and supporting documentation. The level of
detail necessary will depend on the value of the claim. Medical reports may not be
necessary where there is no significant continuing injury, and a detailed schedule may
not be necessary in a low value case. The Civil Procedure Rules are expected to set out
the legal and procedural requirements for making offers to settle.
The response
3.23 Attached at Annex C2 is a template for the suggested contents of the letter of response.
3.24 The healthcare provider should acknowledge the letter of claim within 14 days of
receipt and should identify who will be dealing with the matter.
3.25 The healthcare provider should, within four months of the letter of claim, provide a
reasoned answer—
• if the claim is admitted the healthcare provider should say so in clear terms;
• if only part of the claim is admitted the healthcare provider should make clear
which issues of breach of duty and/or causation are admitted and which are denied
and why;
• if it is intended that any admissions will be binding;
• if the claim is denied, this should include specific comments on the allegations of
negligence, and if a synopsis or chronology of relevant events has been provided
and is disputed, the healthcare provider’s version of those events;
• where additional documents are relied upon, eg an internal protocol, copies
should be provided.
3.26 If the patient has made an offer to settle, the healthcare provider should respond to that
offer in the response letter, preferably with reasons. The provider may make its own
offer to settle at this stage, either as a counter-offer to the patient’s, or of its own accord,
but should accompany any offer by any supporting medical evidence, and/or by any
other evidence in relation to the value of the claim which is in the healthcare provider’s
possession.
3.27 If the parties reach agreement on liability, but time is needed to resolve the value of the
claim, they should aim to agree a reasonable period.
4 Experts
4.1 In clinical negligence disputes expert opinions may be needed—
• on breach of duty and causation;
• on the patient’s condition and prognosis;
• to assist in valuing aspects of the claim.
4.2 The civil justice reforms and the new Civil Procedure Rules will encourage economy in
the use of experts and a less adversarial expert culture. It is recognised that in clinical
negligence disputes, the parties and their advisers will require flexibility in their
approach to expert evidence. Decisions on whether experts might be instructed jointly,
and on whether reports might be disclosed sequentially or by exchange, should rest with
the parties and their advisers. Sharing expert evidence may be appropriate on issues
relating to the value of the claim. However, this protocol does not attempt to be
prescriptive on issues in relation to expert evidence.
4.3 Obtaining expert evidence will often be an expensive step and may take time, especially
in specialised areas of medicine where there are limited numbers of suitable experts.
Patients and healthcare providers, and their advisers, will therefore need to consider
carefully how best to obtain any necessary expert help quickly and cost-effectively.
Assistance with locating a suitable expert is available from a number of sources.
5 Alternative dispute resolution

5.1 The parties should consider whether some form of alternative dispute resolution
procedure would be more suitable than litigation, and if so, endeavour to agree which
form to adopt. Both the Claimant and Defendant may be required by the Court to
provide evidence that alternative means of resolving their dispute were considered. The
Courts take the view that litigation should be a last resort, and that claims should not be
issued prematurely when a settlement is still actively being explored. Parties are warned
that if the protocol is not followed (including this paragraph) then the Court must have
regard to such conduct when determining costs.
5.2 It is not practicable in this protocol to address in detail how the parties might decide
which method to adopt to resolve their particular dispute. However, summarised below
are some of the options for resolving disputes without litigation:
• Discussion and negotiation. Parties should bear in mind that carefully planned
face-to-face meetings may be particularly helpful in exploring further treatment
for the patient, in reaching understandings about what happened, and on both
parties’ positions, in narrowing the issues in dispute and, if the timing is right, in
helping to settle the whole matter especially if the patient wants an apology,
explanation, or assurances about how other patients will be affected.
• Early neutral evaluation by an independent third party (for example, a lawyer
experienced in the field of clinical negligence or an individual experienced in the
subject matter of the claim).
• Mediation – a form of facilitated negotiation assisted by an independent neutral
party. The Clinical Disputes Forum has published a Guide to Mediation which will
assist – available on the Clinical Disputes Forum website at
www.clinicaldisputesforum.org.uk.
• The NHS Complaints Procedure is designed to provide patients with an
explanation of what happened and an apology if appropriate. It is not designed to
provide compensation for cases of negligence. However, patients might choose to
use the procedure if their only, or main, goal is to obtain an explanation, or to
obtain more information to help them decide what other action might be
appropriate.
5.3 The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS
Direct Information Leaflet 23 (www.clsdirect.org.uk/legalhelp/leaflet23.jsp), which
lists a number of organisations that provide alternative dispute resolution services.
5.4 It is expressly recognised that no party can or should be forced to mediate or enter into
any form of ADR.
ANNEX A
Illustrative Flowchart
Patient (P) Healthcare Provider (HCP)

Initial Stages
Patient suffers adverse

outcome and discusses it
with healthcare provider
Patient dissatisfied and asks for Professional reports outcome

a written explanation to clinical director
Patient still dissatisfied, Medical director/complaints

consults solicitor. Options team investigate – obtain
discussed records/interview staff and
provide explanation
Protocol Stages
Solicitor requests records Investigations continue/records

provided
40 days
Solicitor instructs expert who HCP instructs solicitors and

advises potential breach of takes advice from in-house
duty 3 months expert who advises no breach
of duty, claim refuted
Solicitor/patient prepares letter

of claim – send to HCP
Proceedings issued and

served
ANNEX B
Medical Negligence and Personal Injury Claims
Protocol for Obtaining Hospital Medical Records
(Revised Edition (June 1998); Civil Litigation Committee, The Law Society)
Application on Behalf of a Patient for Hospital Medical Records for Use When
Court Proceedings are Contemplated
Purpose of the forms

This application form and response forms have been prepared by a working party of the Law
Society’s Civil Litigation Committee and approved by the Department of Health for use in
NHS and Trust hospitals.
The purpose of the forms is to standardise and streamline the disclosure of medical records to
a patient’s solicitors, who are investigating pursuing a personal injury claim against a third
party, or a medical negligence claim against the hospital to which the application is addressed
and/or other hospitals or general practitioners.
Use of the forms

Use of the forms is entirely voluntary and does not prejudice any party’s right under the Access
to Health Records Act 1990, the Data Protection Act 1984, or ss 33 and 34 of the Senior
Courts Act 1981. However, it is the Department of Health policy that patients be permitted to
see what has been written about them, and that healthcare providers should make
arrangements to allow patients to see all their records, not only those covered by the Access to
Health Records Act 1990. The aim of the forms is to save time and costs for all concerned for
the benefit of the patient and the hospital and in the interests of justice. Use of the forms
should make it unnecessary in most cases for there to be exchanges of letters or other
enquiries. If there is any unusual matter not covered by the form, the patient’s solicitor may
write a separate letter at the outset.
Charges for records

The Access to Health Records Act 1990 prescribes a maximum fee of £10. Photocopying and
postage costs can be charged in addition. No other charges may be made.
The NHS Executive guidance makes it clear to healthcare providers that ‘it is a perfectly proper
use’ of the 1990 Act to request records in that framework for the purpose of potential or actual
litigation, whether against a third party or against the hospital or trust.
The 1990 Act does not permit differential rates of charges to be levied if the application is
made by the patient, or by a solicitor on his or her behalf, or whether the response to the
application is made by the healthcare provider directly (the medical records manager or a
claims manager) or by a solicitor.
The NHS Executive guidance recommends that the same practice should be followed with
regard to charges when the records are provided under a voluntary agreement as under the
1990 Act, except that in those circumstances the £10 access fee will not be appropriate.
The NHS Executive also advises—
• that the cost of photocopying may include ‘the cost of staff time in making copies’ and
the costs of running the copier (but not costs of locating and sifting records);
• that the common practice of setting a standard rate for an application or charging an
administration fee is not acceptable because there will be cases when this fails to
comply with the 1990 Act.
Records: what might be included

X-rays and test results form part of the patient’s records. Additional charges for copying x-rays
are permissible. If there are large numbers of x-rays, the records officer should check with the
patient/solicitor before arranging copying.
Reports on an ‘adverse incident’ and reports on the patient made for risk management and
audit purposes may form part of the records and be disclosable: the exception will be any
specific record or report made solely or mainly in connection with an actual or potential
claim.
Records: quality standards

When copying records healthcare providers should ensure—
1 All documents are legible, and complete, if necessary by photocopying at less than
100% size.
2 Documents larger than A4 in the original, eg ITU charts, should be reproduced in A3, or
reduced to A4 where this retains readability.
3 Documents are only copied on one side of paper, unless the original is two sided.
4 Documents should not be unnecessarily shuffled or bound and holes should not be
made in the copied papers.
Enquiries/further information
Any enquiries about the forms should be made initially to the solicitors making the request.
Comments on the use and content of the forms should be made to the Secretary, Civil
Litigation Committee, The Law Society, 113 Chancery Lane, London WC2A 1PL, telephone
(020) 7320 5739, or to the NHS Management Executive, Quarry House, Quarry Hill, Leeds
LS2 7UE.
The Law Society
May 1998
Application on Behalf of a Patient for Hospital Medical Records for Use when
Court Proceedings are Contemplated
This should be completed as fully as possible

Insert TO: Medical Records Officer Hospital
Hospital
Name
and
Address
1
(a) Full name of patient (including previous surnames)
(b) Address now
(c) Address at start of treatment
(d) Date of birth (and death, if applicable)
(e) Hospital ref no if available
(f) N.I. number, if available
2 This application is made because the patient is considering
(a) a claim against your hospital as detailed in para 7 overleaf YES/NO
(b) pursuing an action against someone else YES/NO
3 Department(s) where treatment was received
4 Name(s) of consultant(s) at your hospital in charge of the treatment
5 Whether treatment at your hospital was private or NHS, wholly or in part
6 A description of the treatment received, with approximate dates
7 If the answer to Q2(a) is ‘Yes’ details of
(a) the likely nature of the claim
(b) grounds for the claim
(c) approximate dates of the events involved
8 If the answer to Q2(b) is ‘Yes’ insert
(a) the names of the proposed defendants
(b) whether legal proceedings yet begun YES/NO
(c) if appropriate, details of the claim and action number
9 We confirm we will pay reasonable copying charges
10 We request prior details of
(a) photocopying and administration charges for medical records YES/NO
(b) number of and cost of copying x-ray and scan films YES/NO
11 Any other relevant information, particular requirements, or any
particular documents not required (eg copies of computerised records)
Signature of Solicitor
Name
Address
Ref
Telephone number
Fax number
Please print name beneath each signature.

Signature by child over 12 but under
18 years also requires signature by parent
Signature of patient
Signature of parent or next friend if appropriate
Signature of personal representative where patient has died
First Response to Application for Hospital Records
NAME OF PATIENT
Our ref
Your ref
1 Date of receipt of patient’s application
2 We intend that copy medical records will be dispatched within 6 weeks of YES/NO
that date
3 We require pre-payment of photocopying charges YES/NO
4 If estimate of photocopying charges requested or pre-payment required £ /notified to you
the amount will be
5 The cost of x-ray and scan films will be £ /notified to you
6 If there is any problem, we shall write to you within those 6 weeks YES/NO
7 Any other information
Please address further correspondence to
Signed
Direct telephone number
Direct fax number
Dated
Second Response Enclosing Patient’s Hospital Medical Records

Address Our Ref
Your Ref
1 NAME OF PATIENT:
We confirm that the enclosed copy medical records are all those within
the control of the hospital, relevant to the application which you have
made to the best of our knowledge and belief, subject to paras 2–5 below YES/NO
2 Details of any other documents which have not yet been located
3 Date by when it is expected that these will be supplied
4 Details of any records which we are not producing
5 The reasons for not doing so
6 An invoice for copying and administration charges is attached YES/NO
Signed
Date
ANNEX C
Templates for Letters of Claim and Response
C1 Letter of claim
Essential Contents
1 Client’s name, address, date of birth, etc
2 Dates of allegedly negligent treatment
3 Events giving rise to the claim:
• an outline of what happened, including details of other relevant treatments to the
client by other healthcare providers.
4 Allegation of negligence and causal link with injuries:
• an outline of the allegations or a more detailed list in a complex case;
• an outline of the causal link between allegations and the injuries complained of.
5 The Client’s injuries, condition and future prognosis
6 Request for clinical records (if not previously provided)
• use the Law Society form if appropriate or adapt;
• specify the records required;
• if other records are held by other providers, and may be relevant, say so;
• state what investigations have been carried out to date, eg information from client
and witnesses, any complaint and the outcome, if any clinical records have been
seen or expert’s advice obtained.
7 The likely value of the claim
• an outline of the main heads of damage, or, in straightforward cases, the details of
loss.
Optional information
What investigations have been carried out
An offer to settle without supporting evidence
Suggestions for obtaining expert evidence
Suggestions for meetings, negotiations, discussion or mediation
Possible enclosures
Chronology
Clinical records request form and client’s authorisation
Expert report(s)
Schedules of loss and supporting evidence
C2 Letter of response
Essential Contents
1 Provide requested records and invoice for copying:
• explain if records are incomplete or extensive records are held and ask for further
instructions;
• request additional records from third parties.
2 Comments on events and/or chronology:
• if events are disputed or the healthcare provider has further information or
documents on which they wish to rely, these should be provided, eg internal
protocol;
• details of any further information needed from the patient or a third party should
be provided.
3 If breach of duty and causation are accepted:
• suggestions might be made for resolving the claim and/or requests for further
information;
• a response should be made to any offer to settle.
4 If breach of duty and/or causation are denied:
• a bare denial will not be sufficient. If the healthcare provider has other
explanations for what happened, these should be given at least in outline;
• suggestions might be made for the next steps, eg further investigations, obtaining
expert evidence, meetings/negotiations or mediation, or an invitation to issue
proceedings.
Optional Matters
An offer to settle if the patient has not made one, or a counter offer to the patient’s with
supporting evidence
Possible Enclosures
Clinical records
Annotated chronology
Expert reports
ANNEX D
Lord Woolf’s Recommendations
1 Lord Woolf in his Access to Justice Report in July 1996, following a detailed review of the
problems of medical negligence claims, identified that one of the major sources of costs
and delay is at the pre-litigation stage because—
(a) Inadequate incident reporting and record keeping in hospitals, and mobility of
staff, make it difficult to establish facts, often several years after the event.
(b) Claimants must incur the cost of an expert in order to establish whether they have
a viable claim.
(c) There is often a long delay before a claim is made.
(d) Defendants do not have sufficient resources to carry out a full investigation of
every incident, and do not consider it worthwhile to start an investigation as soon
as they receive a request for records, because many cases do not proceed beyond
that stage.
(e) Patients often give the defendant little or no notice of a firm intention to pursue a
claim. Consequently, many incidents are not investigated by the defendants until
after proceedings have started.
(f ) Doctors and other clinical staff are traditionally reluctant to admit negligence or
apologise to, or negotiate with, claimants for fear of damage to their professional
reputations or career prospects.
2 Lord Woolf acknowledged that under the present arrangements healthcare providers,
faced with possible medical negligence claims, have a number of practical problems to
contend with—
(a) Difficulties of finding patients’ records and tracing former staff, which can be
exacerbated by late notification and by the health-care provider’s own failure to
identify adverse incidents.
(b) The healthcare provider may have only treated the patient for a limited time or for
a specific complaint: the patient’s previous history may be relevant but the records
may be in the possession of one of several other healthcare providers.
(c) The large number of potential claims do not proceed beyond the stage of a request
for medical records, or an explanation; and that it is difficult for healthcare
providers to investigate fully every case whenever a patient asks to see the records.
ANNEX E
How to Contact the Forum
The Clinical Disputes Forum
Chairman
Dr Alastair Scotland
Medical Director and Chief Officer
National Clinical Assessment Authority
9th Floor, Market Towers
London
SW8 5NQ
Telephone: (020) 7273 0850
Secretary
Sarah Leigh
c/o Margaret Dangoor
3 Clydesdale Gardens
Richmond
Surrey TW10 5EG
Telephone: (020) 8408 1012
Pre-action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims 387
APPENDIX 4
Pre-action Protocol for Low Value Personal Injury

(Employers’ Liability and Public Liability) Claims
SECTION I - INTRODUCTION
Definitions
1.1 In this Protocol—
(1) ‘admission of liability’ means the defendant admits that—
(a) the breach of duty occurred;
(b) the defendant thereby caused some loss to the claimant, the nature and extent of
which is not admitted; and
(c) the defendant has no accrued defence to the claim under the Limitation Act 1980;
(2) ‘bank holiday’ means a bank holiday under the Banking and Financial Dealings Act
1971;
(3) ‘business day’ means any day except Saturday, Sunday, a bank holiday, Good Friday or
Christmas Day;
(4) ‘certificate of recoverable benefits’ has the same meaning as in rule 36.15(1)(e)(i) of the
Civil Procedure Rules 1998.
(5) ‘child’ means a person under 18;
(6) ‘claim’ means a claim, prior to the start of proceedings, for payment of damages under
the process set out in this Protocol;
(7) ‘claimant’ means a person starting a claim under this Protocol; unless the context
indicated that it means the claimant’s legal representative;
(8) ‘clinical negligence’ has the same meaning as in section 58C of the Courts and Legal
Services Act 1990;
(9) ‘CNF’ means a Claim Notification Form;
(10) ‘deductible amount’ has the same meaning as in rule 36.15(1)(d) of the Civil Procedure
Rules 1998;
(11) ‘defendant’ includes, where the context indicates, the defendant’s insurer or legal
representative;
(12) ‘disease claim’ means a claim within sub-paragraph (14)(b);
(13) ‘employee’ has the meaning given to it by section 2(1) of the Employers’ Liability
(Compulsory Insurance) Act 1969;
(14) ‘employers’ liability claim’ means a claim by an employee against their employer for
damages arising from—
(a) a bodily injury sustained by the employee in the course of employment; or
(b) a disease that the claimant is alleged to have contracted as a consequence of the
employer’s breach of statutory or common law duties of care in the course of the
employee’s employment, other than a physical or psychological injury caused by
an accident or other single event;
(15) ‘legal representative’ has the same meaning as in rule 2.3(1) of the Civil Procedure Rules
1998;
(16) ‘medical expert’ means a person who is—
(a) registered with the General Medical Council;
(b) registered with the General Dental Council; or
(c) a Psychologist or Physiotherapist registered with the Health Professions Council;

(17) ‘pecuniary losses’ means past and future expenses and losses; and
(18) ‘public liability claim’—
(a) means a claim for damages for personal injuries arising out of a breach of a
statutory or common law duty of care made against—
(i) a person other than the claimant’s employer; or
(ii) the claimant’s employer in respect of matters arising other than in the
course the claimant’s employment; but
(b) does not include a claim for damages arising from a disease that the claimant is
alleged to have contracted as a consequence of breach of statutory or common law
duties of care, other than a physical or psychological injury caused by an accident
or other single event;
(19) ‘Type C fixed costs’ has the same meaning as in rule 45.18(2) of the Civil Procedure
Rules 1998; and
(20) ‘vulnerable adult’ has the same meaning as in paragraph 3(5) of Schedule 1 to the Legal
Aid, Sentencing and Punishment of Offenders Act 2012
1.2 A reference to a rule or practice direction, unless otherwise defined, is a reference to a rule in
the Civil Procedure Rules 1998 (‘CPR’) or a practice direction supplementing them.
1.3 Subject to paragraph 1.4 the standard forms used in the process set out in this Protocol are
available from Her Majesty’s Courts and Tribunals Service (‘HMCTS’) website at
www.justice.gov.uk/forms/hmcts—
(1) Claim Notification Form (‘Form EL1’, ‘Form ELD1’ and ‘Form PL1’– which are referred
to in this Protocol as ‘the CNF’);
(2) Defendant Only Claim Notification Form (‘Form EL2’, ‘Form ELD2’ and ‘Form PL2’);
(3) Medical Report Form (‘Form EPL3’);
(4) Interim Settlement Pack Form (‘Form EPL4’);
(5) Stage 2 Settlement Pack Form (‘Form EPL5’);
(6) Court Proceedings Pack (Part A) Form (‘Form EPL6’); and
(7) Court Proceedings Pack (Part B) Form (‘Form EPL7’).
1.4 The information required in Form EPL3 may be provided in a different format to that set out in
that Form.
Preamble
2.1 This Protocol describes the behaviour the court expects of the parties prior to the start of
proceedings where a claimant claims damages valued at no more than £25,000 in an
employers’ liability claim or in a public liability claim.
The Civil Procedure Rules 1998 enable the court to impose costs sanctions where this
Protocol is not followed.
Aims
3.1 The aim of this Protocol is to ensure that—
(1) the defendant pays damages and costs using the process set out in the Protocol without
the need for the claimant to start proceedings;
(2) damages are paid within a reasonable time; and
(3) the claimant’s legal representative receives the fixed costs at
each appropriate stage.
Scope
4.1 This Protocol applies where—
(1) either—
(a) the claim arises from an accident occurring on or after 31 July 2013; or
(b) in a disease claim, no letter of claim has been sent to the defendant before 31 July
2013;
(2) the claim includes damages in respect of personal injury;
(3) the claimant values the claim at not more than £25,000 on a full liability basis including
pecuniary losses but excluding interest (‘the upper limit’); and
(4) if proceedings were started the small claims track would not be the normal track for that
claim.
(Rule 26.6 provides that the small claims track is not the normal track where the value of any
claim for damages for personal injuries (defined as compensation for pain, suffering and loss
of amenity) is more than £1,000.)
4.2 This Protocol ceases to apply to a claim where, at any stage, the claimant notifies the
defendant that the claim has now been revalued at more than the upper limit.
4.3 This Protocol does not apply to a claim—
(1) where the claimant or defendant acts as personal representative of a deceased person;
(2) where the claimant or defendant is a protected party as defined in rule 21.1(2);
(3) in the case of a public liability claim, where the defendant is an individual (‘individual’
does not include a defendant who is sued in their business capacity or in their capacity
as an office holder);
(4) where the claimant is bankrupt;
(5) where the defendant is insolvent and there is no identifiable insurer;
(6) in the case of a disease claim, where there is more than one employer defendant;
(7) for personal injury arising from an accident or alleged breach of duty occurring outside
England and Wales;
(8) for damages in relation to harm, abuse or neglect of or by children or vulnerable adults;
(9) which includes a claim for clinical negligence;
(10) for mesothelioma;
(11) for damages arising out of a road traffic accident (as defined in paragraph 1.1(16) of the
Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents).
4.4 The fixed costs in rule 45.18 apply in relation to a claimant only where a claimant has a legal
representative.
SECTION II – GENERAL PROVISIONS
Communication between the parties

5.1 Subject to paragraphs 6.1 and 6.2, where the Protocol requires information to be sent to a
party it must be sent via www.claimsportal.org.uk (or any other Portal address that may be
prescribed from time to time). The claimant will give an e-mail address for contact in the
Claim Notification Form (“CNF”). All written communications not required by the Protocol
must be sent by e-mail.
5.2 Where the claimant has sent the CNF to the wrong defendant, the claimant may, in this
circumstance only, resend the relevant form to the correct defendant.
The period in paragraph 6.12 starts from the date that the form was sent to the correct
defendant.
Time periods
5.3 A reference to a fixed number of days is a reference to business days as defined in paragraph
1.1(3).
5.4 Where a party should respond within a fixed number of days, the period for response starts
the first business day after the information was sent to that party.
5.5 All time periods, except those stated in—
(1) paragraph 6.11 (response);
(2) paragraph 7.34 (the further consideration period),
may be varied by agreement between the parties.
5.6 Where this Protocol requires the defendant to pay an amount within a fixed number of days
the claimant must receive the cheque or the transfer of the amount from the defendant before
the end of the period specified in the relevant provision.
Limitation period
5.7 Where compliance with this Protocol is not possible before the expiry of the limitation period
the claimant may start proceedings and apply to the court for an order to stay (i.e. suspend)
the proceedings while the parties take steps to follow this Protocol.
Where proceedings are started in a case to which this paragraph applies the claimant should
use the procedure set out under Part 8 in accordance with Practice Direction 8B (“the Stage 3
Procedure”).
5.8 Where the parties are then unable to reach a settlement at the end of Stage 2 of this Protocol
the claimant must, in order to proceed to Stage 3, apply to lift the stay and request directions
in the existing proceedings.
Claimant’s reasonable belief of the value of the claim

5.9 Where the claimant reasonably believes that the claim is valued at between £1,000 and
£25,000 but it subsequently becomes apparent that the value of the claim is less than £1,000,
the claimant is entitled to the Stage 1 and (where relevant) the Stage 2 fixed costs.
Claimants without a legal representative

5.10 Where the claimant does not have a legal representative, on receipt of the CNF the defendant
must explain—
(1) the period within which a response is required; and
(2) that the claimant may obtain independent legal advice.
Discontinuing the Protocol process

5.11 Claims which no longer continue under this Protocol cannot subsequently re-enter the
process.
SECTION III – THE STAGES OF THE PROCESS
Stage 1
Completion of the Claim Notification Form
6.1 (1) The claimant must complete and send—
(a) the CNF to the defendant’s insurer, if known; and
(b) the Defendant Only Claim Notification Form (“Defendant Only CNF”) to the
defendant,
but the requirement to send the form to the defendant may be ignored in a disease claim
where the CNF has been sent to the insurer and the defendant has been dissolved, is
insolvent or has ceased to trade.
(2) If—
(a) the insurer’s identity is not known; or
(b) the defendant is known not to hold insurance cover,

the CNF must be sent to the defendant’s registered office or principal place of
business and no Defendant Only CNF is required.
(3) Where the insurer’s identity is not known, the claimant must make a reasonable attempt
to identify the insurer and, in an employers’ liability claim, the claimant must have
carried out a database search through the Employers’ Liability Tracing Office.
(4) In a disease claim, the CNF should be sent to the insurer identified as the insurer last on
risk for the employer for the material period of employment.
6.2 If the CNF or Defendant Only CNF cannot be sent to the defendant via the prescribed Portal
address, it must be sent via first class post; and this must be done, in a case where the CNF is
sent to the insurer, at the same time or as soon as practicable after the CNF is sent.
6.3 All boxes in the CNF that are marked as mandatory must be completed before it is sent.
The claimant must make a reasonable attempt to complete those boxes that are not marked as
mandatory.
6.4 Where the claimant is a child, this must be noted in the relevant section of the CNF.
6.5 The statement of truth in the CNF must be signed either by the claimant or by the claimant’s
legal representative where the claimant has authorised the legal representative to do so and
the legal representative can produce written evidence of that authorisation. Where the
claimant is a child the statement of truth may be signed by the parent or guardian.
On the electronically completed CNF the person may enter their name in the signature box to
satisfy this requirement.
Rehabilitation
6.6 The claimant must set out details of rehabilitation in the CNF. The parties should at all stages
consider the Rehabilitation Code which may be found at: http://www.judiciary.gov.uk/about-
the-judiciary/advisory-bodies/cjc/pre-action-protocols
Failure to complete the Claim Notification Form

6.7 Where the defendant considers that inadequate mandatory information has been provided in
the CNF that shall be a valid reason for the defendant to decide that the claim should no
longer continue under this Protocol.
6.8 Rule 45.24(2) sets out the sanctions available to the court where it considers that the claimant
provided inadequate information in the CNF.
Response
6.9 The defendant must send to the claimant an electronic acknowledgment the next day after
receipt of the CNF.
6.10 If the claimant has sent the CNF to the defendant in accordance with paragraph 6.1(2)—
(a) the defendant must send to the claimant an electronic acknowledgment the next day
after receipt of the CNF and send the CNF to the insurer at the same time and advise the
claimant that they have done so;
(b) the insurer must send to the claimant an electronic acknowledgment the next day after
its receipt by the insurer;
and
(c) the claimant must then submit the CNF to the insurer via the Portal as soon as possible
and, in any event, within 30 days of the day upon which the claimant first sent it to the
defendant.
6.11 The defendant must complete the ‘Response’ section of the CNF (“the CNF response”) and
send it to the claimant—
(a) in the case of an employers’ liability claim, within 30 days of the step taken pursuant to
paragraph 6.1; and
(b) in the case of a public liability claim, within 40 days of the step taken pursuant to
paragraph 6.1.
Application for a certificate of recoverable benefits

6.12 The defendant must, before the end of Stage 1, apply to the Compensation Recovery Unit
(CRU) for a certificate of recoverable benefits.
Contributory Negligence, liability not admitted or failure to respond

6.13 The claim will no longer continue under this Protocol where the defendant, within the
relevant period in paragraph 6.11 —
(1) makes an admission of liability but alleges contributory negligence;
(2) does not complete and send the CNF response;
(3) does not admit liability; or
(4) notifies the claimant that the defendant considers that—
(a) there is inadequate mandatory information in the CNF; or
(b) if proceedings were issued, the small claims track would be the normal track for
that claim.
6.14 Where the defendant does not admit liability the defendant must give brief reasons in the CNF
response.
6.15 Where paragraph 6.13 applies the claim will proceed under the relevant Pre-Action Protocol
and the CNF will serve as the letter of claim (except where the claim no longer continues
under this Protocol because the CNF contained inadequate information). Time will be treated
as running under the relevant Pre-Action Protocol from the date the form of acknowledgment
is served under paragraph 6.9 or 6.10.
(For admissions made in the course of the process under this Protocol, see rule 14.1B.)
(Paragraph 2.10A of the Pre-Action Protocol on Personal Injury and paragraph 6.10A of the
Pre-Action Protocol for Disease and Illness Claims provide that the CNF can be used as the
letter of claim except where the claim no longer continues under this Protocol because the
CNF contained inadequate information.)
Stage 1 fixed costs

6.16 Except where the claimant is a child, where liability is admitted the defendant must pay the
Stage 1 fixed costs in rule 45.18 within 10 days after receiving the Stage 2 Settlement Pack.
6.17 Where the defendant fails to pay the Stage 1 fixed costs within the period specified in
paragraph 6.16 the claimant may give written notice that the claim will no longer continue
under this Protocol. Unless the claimant’s notice is sent to the defendant within 10 days after
the expiry of the period in paragraph 6.16 the claim will continue under this Protocol.
Stage 2
Medical reports
7.1 The claimant should obtain a medical report, if one has not already been obtained.
7.2 It is expected that most claimants will obtain a medical report from one expert but additional
medical reports may be obtained from other experts where the injuries require reports from
more than one medical discipline.
7.3 The claimant must check the factual accuracy of any medical report before it is sent to the
defendant. There will be no further opportunity for the claimant to challenge the factual
accuracy of a medical report after it has been sent to the defendant.
7.4 (1) The medical expert should identify within the report—
(a) the medical records that have been reviewed; and

(b) the medical records considered relevant to the claim.
(2) The claimant must disclose with any medical report sent to the defendant any medical
records which the expert considers relevant.
7.5 Any relevant photograph(s) of the claimant’s injuries upon which the claimant intends to rely
should also be disclosed with the medical report.
Subsequent medical reports

7.6 A subsequent medical report from an expert who has already reported must be justified. A
report may be justified where—
(1) the first medical report recommends that further time is required before a prognosis of
the claimant’s injuries can be determined; or
(2) the claimant is receiving continuing treatment; or
(3) the claimant has not recovered as expected in the original prognosis.
Non-medical reports
7.7 (1) In most cases, a report from a non-medical expert will not be required, but a report may
be obtained where it is reasonably required to value the claim.
(2) Paragraph 7.2 applies to non-medical expert reports as it applies to expert medical
reports.
Specialist legal advice

7.8 In most cases under this Protocol, it is expected that the claimant’s legal representative will be
able to value the claim. In some cases with a value of more than £10,000, an additional advice
from a specialist solicitor or from counsel may be justified where it is reasonably required to
value the claim.
Details of loss of earnings

7.9 In an employers’ liability claim, the defendant must, within 20 days of the date of admission
of liability, provide earnings details to verify the claimant’s loss of earnings, if any.
Witness Statements
7.10 In most cases, witness statements, whether from the claimant or otherwise, will not be
required. One or more statements may, however, be provided where reasonably required to
value the claim.
Stay of process
7.11 Where the claimant needs to obtain a subsequent medical report or a report from a non-
medical expert the parties should agree to stay the process in this Protocol for a suitable
period. The claimant may then request an interim payment in accordance with paragraphs
7.12 to 7.20.
Request for an interim payment

7.12 Where the claimant requests an interim payment of £1,000, the defendant should make an
interim payment to the claimant in accordance with paragraph 7.17.
7.13 The claimant must send to the defendant the Interim Settlement Pack and initial medical
reports (including any recommendation that a subsequent medical report is justified) in order
to request the interim payment.
7.14 The claimant must also send evidence of pecuniary losses and disbursements. This will assist
the defendant in considering whether to make an offer to settle the claim.
7.15 Where an interim payment of more than £1,000 is requested the claimant must specify in the
Interim Settlement Pack the amount requested, the heads of damage which are the subject of
the request and the reasons for the request.
7.16 Unless the parties agree otherwise—
(a) the interim payment of £1,000 is only in relation to general damages; and
(b) where more than £1,000 is requested by the claimant, the amount in excess of £1,000 is
only in relation to pecuniary losses.
Interim payment of £1,000

7.17 (1) Where paragraph 7.12 applies the defendant must pay £1,000 within 10 days of
receiving the Interim Settlement Pack.
(2) Sub-paragraph (1) does not apply in a claim in respect of a disease to which the
Pneumoconiosis etc. (Workers' Compensation) Act 1979 applies unless there is a valid
CRU certificate showing no deduction for recoverable lump sum payments.
Interim payment of more than £1,000

7.18 Subject to paragraphs 7.19 and 7.21, where the claimant has requested an interim payment of
more than £1,000 the defendant must pay—
(1) the full amount requested less any deductible amount which is payable to the CRU;
(2) the amount of £1,000; or
(3) some other amount of more than £1,000 but less than the amount requested by the
claimant,
within 15 days of receiving the Interim Settlement Pack.
7.19 Where a payment is made under paragraphs 7.18(2) or (3) the defendant must briefly explain
in the Interim Settlement Pack why the full amount requested by the claimant is not agreed.
7.20 Where the claim is valued at more than £10,000, the claimant may use the procedure at
paragraphs 7.12 to 7.19 to request more than one interim payment.
7.21 Nothing in this Protocol is intended to affect the provisions contained in the Rehabilitation
Code.
Application for a certificate of recoverable benefits

7.22 Paragraph 7.23 applies where the defendant agrees to make a payment in accordance with
paragraph 7.18(1) or (3) but does not yet have a certificate of recoverable benefits or does not
have one that will remain in force for at least 10 days from the date of receiving the Interim
Settlement Pack.
7.23 The defendant should apply for a certificate of recoverable benefits as soon as possible, notify
the claimant that it has done so and must make the interim payment under paragraph 7.18(1)
or (3) no more than 30 days from the date of receiving the Interim Settlement Pack.
Request for an interim payment where the claimant is a child

7.24 The interim payment provisions in this Protocol do not apply where the claimant is a child.
Where the claimant is a child and an interim payment is reasonably required proceedings
must be started under Part 7 of the CPR and an application for an interim payment can be
made within those proceedings.
(Rule 21.10 provides that no payment, which relates to a claim by a child, is valid without the
approval of the court.)
7.25 Paragraph 7.24 does not prevent a defendant from making a payment direct to a treatment
provider.
Interim payment – supplementary provisions

7.26 Where the defendant does not comply with paragraphs 7.17 or 7.18 the claimant may start
proceedings under Part 7 of the CPR and apply to the court for an interim payment in those
proceedings.
7.27 Where the defendant does comply with paragraph 7.18(2) or (3) but the claimant is not
content with the amount paid, the claimant may still start proceedings.
However, the court will order the defendant to pay no more than the Stage 2 fixed costs where
the court awards an interim payment of no more than the amount offered by the defendant or
the court makes no award.
7.28 Where paragraph 7.26 or 7.27 applies the claimant must give notice to the defendant that the
claim will no longer continue under this Protocol.
Unless the claimant’s notice is sent to the defendant within 10 days after the expiry of the
period in paragraphs 7.17, 7.18 or 7.23 as appropriate, the claim will continue under this
Protocol.
Costs of expert medical and non-medical reports and specialist legal advice
obtained
7.29 (1) Where the claimant obtains more than one expert report or an advice from a specialist
solicitor or counsel—
(a) the defendant at the end of Stage 2 may refuse to pay; or
(b) the court at Stage 3 may refuse to allow,
the costs of any report or advice not reasonably required.
(2) Therefore, where the claimant obtains more than one expert report or obtains an advice
from a specialist solicitor or counsel—
(a) the claimant should explain in the Stage 2 Settlement Pack why they obtained a
further report or such advice; and
(b) if relevant, the defendant should in the Stage 2 Settlement Pack
identify the report or reports or advice for which they will not pay and explain why they
will not pay for that report or reports or advice.
Submitting the Stage 2 Settlement Pack to the defendant
7.30 The Stage 2 Settlement Pack must comprise—
(1) the Stage 2 Settlement Pack Form;
(2) a medical report or reports;
(3) evidence of pecuniary losses;
(4) evidence of disbursements (for example the cost of any medical report);
(5) any non-medical expert report;
(6) any medical records/photographs served with medical reports; and
(7) any witness statements.
7.31 The claimant should send the Stage 2 Settlement Pack to the defendant within 15 days of the
claimant approving —
(1) the final medical report and agreeing to rely on the prognosis in that report; or
(2) any non-medical expert report,
whichever is later.
Consideration of claim
7.32 There is a 35 day period for consideration of the Stage 2 Settlement Pack by the defendant
(“the total consideration period”).
This comprises a period of up to 15 days for the defendant to consider the Stage 2 Settlement
Pack (“the initial consideration period”) and make an offer. The remainder of the total
consideration period (“the negotiation period”) is for any further negotiation between the
parties.
7.33 The total consideration period can be extended by the parties agreeing to extend either the
initial consideration period or the negotiation period or both.
7.34 Where a party makes an offer 5 days or less before the end of the total consideration period
(including any extension to this period under paragraph 7.32), there will be a further period of
5 days after the end of the total consideration period for the relevant party to consider that
offer. During this period (“the further consideration period”) no further offers can be made by
either party.
Defendant accepts offer or makes counter-offer

7.35 Within the initial consideration period (or any extension agreed under paragraph 7.33) the
defendant must either accept the offer made by the claimant on the Stage 2 Settlement Pack
Form or make a counter-offer using that form.
7.36 The claim will no longer continue under this Protocol where the defendant gives notice to the
claimant within the initial consideration period (or any extension agreed under paragraph
7.33) that the defendant—
(a) considers that, if proceedings were started, the small claims track would be the normal
track for that claim; or
(b) withdraws the admission of causation as defined in paragraph 1.1(1)(b).
7.37 Where the defendant does not respond within the initial consideration period (or any
extension agreed under paragraph 7.33), the claim will no longer continue under this Protocol
and the claimant may start proceedings under Part 7 of the CPR.
7.38 When making a counter-offer the defendant must propose an amount for each head of
damage and may, in addition, make an offer that is higher than the total of the amounts
proposed for all heads of damage. The defendant must also explain in the counter-offer why a
particular head of damage has been reduced. The explanation will assist the claimant when
negotiating a settlement and will allow both parties to focus on those areas of the claim that
remain in dispute.
7.39 Where the defendant has obtained a certificate of recoverable benefits from the CRU the
counter offer must state the name and amount of any deductible amount.
7.40 On receipt of a counter-offer from the defendant the claimant has until the end of the total
consideration period or the further consideration period to accept or decline the counter
offer.
7.41 Any offer to settle made at any stage by either party will automatically include, and cannot
exclude—
(1) the Stage 1 and Stage 2 fixed costs in rule 45.18;
(2) an agreement in principle to pay a sum equal to the Type C fixed costs of an additional
advice on quantum of damages where such advice is justified under paragraph 7.8;
(3) an agreement in principle to pay relevant disbursements allowed in accordance with
rule 45.19; or
(4) where applicable, any success fee in accordance with rule 45.31(1) (as it was in force
immediately before 1 April 2013).
7.42 Where there is a dispute about whether an additional advice on quantum of damages is
justified or about the amount or validity of any disbursement, the parties may use the
procedure set out in rule 46.14.
(Rule 46.14 provides that where the parties to a dispute have a written agreement on all issues
but have failed to agree the amount of the costs, they may start proceedings under that rule so
that the court can determine the amount of those costs.)
Withdrawal of offer after the consideration period

7.43 Where a party withdraws an offer made in the Stage 2 Settlement Pack Form after the total
consideration period or further consideration period, the claim will no longer continue under
this Protocol and the claimant may start proceedings under Part 7 of the CPR.
Settlement
7.44 Except where the claimant is a child or paragraphs 7.46 and 7.47 apply, the defendant must
pay—
(1) the agreed damages less any—
(a) deductible amount which is payable to the CRU; and
(b) previous interim payment;
(2) any unpaid Stage 1 fixed costs in rule 45.18;
(3) the Stage 2 fixed costs in rule 45.18;
(4) where an additional advice on quantum of damages is justified under paragraph 7.8, a
sum equal to the Type C fixed costs to cover the cost of that advice;
(5) the relevant disbursements allowed in accordance with rule 45.19; and
(6) where applicable, any success fee in accordance with rule 45.31(1) (as it was in force
immediately before 1 April 2013),
within 10 days of the parties agreeing a settlement.
(Rule 21.10 provides that the approval of the court is required where, before proceedings are
started, a claim is made by a child and a settlement is reached. The provisions in paragraph
6.1 of Practice Direction 8B set out what must be filed with the court when an application is
made to approve a settlement.)
7.45 Where the parties agree a settlement for a greater sum than the defendant had offered during
the total consideration period or further consideration period and after the Court Proceedings
Pack has been sent to the defendant but before proceedings are issued under Stage 3,
(1) paragraph 7.44 applies; and
(2) the defendant must also pay the fixed late settlement costs in rule 45.23A.
Application for certificate of recoverable benefits

7.46 Paragraph 7.47 applies where, at the date of the acceptance of an offer in the Stage 2
Settlement Pack, the defendant does not have a certificate of recoverable benefits that will
remain in force for at least 10 days.
7.47 The defendant should apply for a fresh certificate of recoverable benefits as soon as possible,
notify the claimant that it has done so and must pay the amounts set out in paragraph 7.44
within 30 days of the end of the relevant period in paragraphs 7.32 to 7.34.
Failure to reach agreement - general

7.48 Where the parties do not reach an agreement on the damages to be paid within the periods
specified in paragraphs 7.32 to 7.34, the claimant must send to the defendant the Court
Proceedings Pack (Part A and Part B) Form which must contain—
(a) in Part A, the final schedule of the claimant’s losses and the defendant’s responses
comprising only the figures specified during the periods in paragraphs 7.32 to 7.34,
together with supporting comments and evidence from both parties on any disputed
heads of damage; and
(b) in Part B, the final offer and counter offer from the Stage 2 Settlement Pack Form.
7.49 Comments in the Court Proceedings Pack (Part A) Form must not raise anything that has not
been raised in the Stage 2 Settlement Pack Form.
7.50 The defendant should then check that the Court Proceedings Pack (Part A and Part B) Form
complies with paragraphs 7.48 to 7.49. If the defendant considers that the Court Proceedings
Pack (Part A and Part B) Form does not comply it must be returned to the claimant within 5
days with an explanation as to why it does not comply.
7.51 Where the defendant intends to nominate a legal representative to accept service the name
and address of the legal representative should be provided in the Court Proceedings Pack (Part
A) Form.
7.52 Where the defendant fails to return the Court Proceedings Pack (Part A and Part B) Form
within the period in paragraph 7.50, the claimant should assume that the defendant has no
further comment to make.
Non-settlement payment by the defendant at the end of Stage 2

7.53 Except where the claimant is a child the defendant must pay to the claimant—
(1) the final offer of damages made by the defendant in the Court Proceedings Pack (Part A
and Part B) Form less any—
(a) deductible amount which is payable to the CRU; and
(b) previous interim payment(s);
(2) any unpaid Stage 1 fixed costs in rule 45.18;
(3) the Stage 2 fixed costs in rule 45.18; and
(4) the disbursements in rule 45.19(2) that have been agreed.
7.54 Where the amount of a disbursement is not agreed the defendant must pay such amount for
the disbursement as the defendant considers reasonable.
7.55 Subject to paragraphs 7.56 and 7.57 the defendant must pay the amounts in paragraph 7.53
and 7.54 within 15 days of receiving the Court Proceedings Pack (Part A and Part B) Form from
the claimant.
7.56 Paragraph 7.57 applies where the defendant is required to make the payments in paragraph
7.53 but does not have a certificate of recoverable benefits that remains in force for at least 10
days.
7.57 The defendant should apply for a fresh certificate of recoverable benefits as soon as possible,
notify the claimant that it has done so and must pay the amounts set out in paragraph 7.53
within 30 days of receiving the Court Proceedings Pack (Part A and Part B) Form from the
claimant.
7.58 Where the defendant does not comply with paragraphs 7.54 or 7.56 the claimant may give
written notice that the claim will no longer continue under this Protocol and start proceedings
under Part 7 of the CPR.
General provisions
7.59 Where the claimant gives notice to the defendant that the claim is unsuitable for this Protocol
(for example, because there are complex issues of fact or law or where claimants contemplate
applying for a Group Litigation Order) then the claim will no longer continue under this
Protocol.
However, where the court considers that the claimant acted unreasonably in giving such
notice it will award no more than the fixed costs in rule 45.18.
STAGE 3
Stage 3 Procedure
8.1 The Stage 3 Procedure is set out in Practice Direction 8B.
Actuarial Tables – Introduction 399
APPENDIX 5
Actuarial Tables – Extracts
SECTION B: CONTINGENCIES OTHER THAN MORTALITY
26. As stated in paragraph 19, the tables for loss of earnings (Tables 3 to 14) take no account of risks other than mortality.
This section shows how the multipliers in these tables may be reduced to take account of these risks.
27. Tables of factors to be applied to the existing multipliers were first introduced in the Second Edition of the Ogden
Tables. These factors were based on work commissioned by the Institute of Actuaries and carried out by Professor S
Haberman and Mrs D S F Bloomfield (Work time lost to sickness, unemployment and stoppages: measurement and
application (1990), Journal of the Institute of Actuaries 117, 533-595). Although there was some debate within the
actuarial profession about the details of the work, and in particular about the scope for developing it further, the findings
were broadly accepted and were adopted by the Government Actuary and the other actuaries who were members of the
Working Party when the Second Edition of the Tables was published and remained unchanged until the 6th edition.
28. Some related work was published in 2002 by Lewis, McNabb and Wass (Methods of calculating damages for loss
of future earnings, Journal of Personal Injury Law, 2002 Number 2). For the publication of the 6th Edition of the Ogden
Tables, the Ogden Working Party was involved in further research into the impact of contingencies other than mortality
carried out by Professor Richard Verrall, Professor Steven Haberman and Mr Zoltan Butt of City University, London and,
in a separate exercise, by Dr Victoria Wass of Cardiff University. Their findings were combined to produce the tables of
factors given in section B of the 6th edition and repeated here.
29. The Haberman and Bloomfield paper relied on data from the Labour Force Surveys for 1973, 1977, 1981 and
1985 and English Life Tables No. 14 (1980-82). The Labour Force Survey (LFS) was originally designed to produce a
periodic cross-sectional snapshot of the working age population and collects information on an extensive range of socio-
economic and labour force characteristics. Since the winter of 1992/3, the LFS has been carried out on a quarterly basis,
with respondents being included in the survey over 5 successive quarters. The research of Professor Verrall et al and Dr
Wass used data from the Labour Force Surveys conducted from 1998 to 2003 to estimate the probabilities of movement
of males and females between different states of economic activity, dependent on age, sex, employment activity and
level of disability. These probabilities permit the calculation of the expected periods in employment until retirement
age, dependent on the initial starting state of economic activity, disability and educational attainment. These can then be
discounted at the same discount rate that is used for obtaining the relevant multiplier from Tables 3 to 14, in order to give
a multiplier which takes into account only those periods the claimant would be expected, on average, to be in work. These
discounted working life expectancy multipliers can be compared to those obtained assuming the person remained in work
throughout, to obtain reduction factors which give the expected proportion of time to retirement age which will be spent
in employment.
30. The factors described in subsequent paragraphs are for use in calculating loss of earnings up to retirement age. The
research work did not investigate the impact of contingencies other than mortality on the value of future pension rights.
Some reduction to the multiplier for loss of pension would often be appropriate when a reduction is being applied for
loss of earnings. This may be a smaller reduction than in the case of loss of earnings because the ill-health contingency
(as opposed to the unemployment contingency) may give rise to significant ill-health retirement pension rights. A bigger
reduction may be necessary in cases where there is significant doubt whether pension rights would have continued to
accrue (to the extent not already allowed for in the post-retirement multiplier) or in cases where there may be doubt over
the ability of the pension fund to pay promised benefits. In the case of a defined contribution pension scheme, loss of
pension rights may be allowed for simply by increasing the future earnings loss (adjusted for contingencies other than
mortality) by the percentage of earnings which the employer contributions to the scheme represent.
31. The methodology proposed in paragraphs 33 to 42 describes one method for dealing with contingencies other than
mortality. If this methodology is followed, in many cases it will be appropriate to increase or reduce the discount in the
tables to take account of the nature of a particular claimant’s disabilities. It should be noted that the methodology does
not take into account the pre-accident employment history. The methodology also provides for the possibility of valuing
more appropriately the possible mitigation of loss of earnings in cases where the claimant is employed after the accident
or is considered capable of being employed. This will in many cases enable a more accurate assessment to be made of the
mitigation of loss. However, there may be some cases when the Smith v Manchester Corporation or Blamire approach
remains applicable or otherwise where a precise mathematical approach is inapplicable.
32. The suggestions which follow are intended as a ‘ready reckoner’ which provides an initial adjustment to the multipliers
according to the employment status, disability status and educational attainment of the claimant when calculating awards
for loss of earnings and for any mitigation of this loss in respect of potential future post-injury earnings. Such a ready
reckoner cannot take into account all circumstances and it may be appropriate to argue for higher or lower adjustments in
particular cases. In particular, it can be difficult to place a value on the possible mitigating income when considering the
potential range of disabilities and their effect on post work capability, even within the interpretation of disability set out
in paragraph 35. However, the methodology does offer a framework for consideration of a range of possible figures with
the maximum being effectively provided by the post injury multiplier assuming the claimant was not disabled and the
minimum being the case where there is no realistic prospect of post injury employment.
14
The deduction for contingencies other than mortality

33. Under this method, multipliers for loss of earnings obtained from Tables 3 to 14 are multiplied by factors to allow for
the risk of periods of non-employment and absence from the workforce because of sickness.
34. The research by Professor Verrall et al and Dr Wass referred to in paragraphs 28 and 29 demonstrated that the key
issues affecting a person’s future working life are employment status, disability status and educational attainment.
35. The definitions of employed/not employed, disabled/not disabled and educational attainment used in this analysis
and which should be used for determining which factors to apply to the multipliers to allow for contingencies other than
mortality are as follows:
Employed Those who at the time of the accident are employed, self-employed or on a government training
scheme
Not employed All others (including those temporarily out of work, full-time students and unpaid family
workers)
Disabled A person is classified as being disabled if all three of the following conditions in relation to the ill-
health or disability are met:
(i) has an illness or a disability which has or is expected to last for over a year or is a progressive
illness
(ii) satisfies the Equality Act 2010 definition that the impact of the disability substantially limits
the person’s ability to carry out normal day-to-day activities
(iii) their condition affects either the kind or the amount of paid work they can do
Not disabled All others
Normal day-to-day activities are those which are carried out by most people on a daily basis, and we are interested
in disabilities/health problems which have a substantial adverse effect on respondent’s ability to carry out these
activities.
There are several ways in which a disability or health problem may affect the respondent’s day to day activities:
Mobility – for example, unable to travel short journeys as a passenger in a car, unable to walk other than at a slow pace
or with jerky movements, difficulty in negotiating stairs, unable to use one or more forms of public transport, unable
to go out of doors unaccompanied.
Manual dexterity – for example, loss of functioning in one or both hands, inability to use a knife and fork at the same
time, or difficulty in pressing buttons on a keyboard
Physical co-ordination – for example, the inability to feed or dress oneself; or to pour liquid from one vessel to
another except with unusual slowness or concentration.
Problems with bowel/bladder control – for example, frequent or regular loss of control of the bladder or bowel.
Occasional bedwetting is not considered a disability.
Ability to lift, carry or otherwise move everyday objects (for example, books, kettles, light furniture) – for example,
inability to pick up a weight with one hand but not the other, or to carry a tray steadily.
Speech – for example, unable to communicate (clearly) orally with others, taking significantly longer to say things.
A minor stutter, difficulty in speaking in front of an audience, or inability to speak a foreign language would not be
considered impairments.
Hearing – for example, not being able to hear without the use of a hearing aid, the inability to understand speech
under normal conditions or over the telephone.
Eyesight – for example, while wearing spectacles or contact lenses – being unable to pass the standard driving
eyesight test, total inability to distinguish colours (excluding ordinary red/green colour blindness), or inability to read
newsprint.
Memory or ability to concentrate, learn or understand – for example, intermittent loss of consciousness or confused
behaviour, inability to remember names of family or friends, unable to write a cheque without assistance, or an
inability to follow a recipe.
15
Perception of risk of physical danger – for example, reckless behaviour putting oneself or others at risk, mobility to
cross the road safely. This excludes (significant) fear of heights or underestimating risk of dangerous hobbies.
Three levels of educational attainment are defined for the purposes of the tables as follows:
D Degree or equivalent or higher
GE-A GCSE grades A to C up to A levels or equivalents
O Below GCSE C or CSE 1 or equivalent or no qualifications
The following table gives a more detailed breakdown of the allocation of various types of educational qualification
to each of the three categories above and are based on the allocations used in the research by Professor Verrall et al
and Dr Wass.
Categories of highest educational attainment
D GE-A O
Degree or equivalent GCSE grades A to C Below GCSE C or
or higher up to A levels CSE 1 or equivalent
or equivalent or no qualifications
Any degree (first or higher) A or AS level or equivalent CSE below grade 1
Other higher education qualification O level, GCSE grade A-C GCSE below grade C
below degree level or equivalent
Diploma in higher education
NVQ level 4 or 5 NVQ level 2 or 3 NVQ level 1 or equivalent
HNC/HND, BTEC higher etc BTEC/SCOTVEC first or general BTEC first or general certificate
diploma
OND/ONC, BTEC/SCOTVEC SCOTVEC modules or equivalent
national
RSA higher diploma RSA diploma, advanced diploma RSA other
or certificate
Teaching, GNVQ intermediate or advanced GNVQ/ GVSQ foundation level
Nursing etc
City and Guilds craft or City and Guilds other
advanced craft
SCE higher or equivalent Trade YT/ YTP certificate
apprenticeship
Scottish 6th year certificate (CSYS) Other qualifications
No qualification
Don’t know
Note: “educational attainment” is used here as a proxy for skill level, so that those in professional occupations such
as law, accountancy, nursing etc who do not have a degree ought to be treated as if they do have one.
36. The research also considered the extent to which a person’s future working life expectancy is affected by individual
circumstances such as occupation and industrial sector, geographical region and education. The researchers concluded that
the most significant consideration was the highest level of education achieved by the claimant and that, if this was allowed
for, the effect of the other factors was relatively small. As a result, the Working Party decided to propose adjustment
factors which allow for employment status, disability status and educational attainment only. This is a change from earlier
editions of the Ogden Tables where adjustments were made for types of occupation and for geographical region.
37. A separate assessment is made for (a) the value of earnings the claimant would have received if the injury had not
been suffered and (b) the value of the claimant’s earnings (if any) taking account of the injuries sustained. The risk of non-
employment is significantly higher post-injury due to the impairment. The loss is arrived at by deducting (b) from (a).
16
38. In order to calculate the value of the earnings the claimant would have received, if the injury had not been suffered,
the claimant’s employment status and the disability status need to be determined as at the date of the accident (or the onset
of the medical condition) giving rise to the claim, so that the correct table can be applied. For the calculation of future
loss of earnings (based on actual pre-accident earnings and also future employment prospects), Tables A and C should be
used for claimants who were not disabled at the time of the accident, and Tables B and D should be used for those with a
pre-existing disability. In all of these tables the three left hand columns are for those who were employed at the time of the
accident and the three right hand columns are for those who were not.
39. In order to calculate the value of the actual earnings that a claimant is likely to receive in the future (i.e. after
settlement or trial), the employment status and the disability status need to be determined as at the date of settlement or
trial. For claimants with a work-affecting disability at that point in time, Tables B and D should be used. The three left
hand columns will apply in respect of claimants actually in employment at date of settlement or trial and the three right
hand columns will apply in respect of those who remain non-employed at that point in time.
40. The factors in Tables A to D allow for the interruption of employment for bringing up children and caring for other
dependants.
41. In the case of those who at the date of the accident have not yet reached the age at which it is likely they would have
started work, the relevant factor will be chosen based on a number of assessments of the claimant’s likely employment
had the injury not occurred. The relevant factor from the tables would be chosen on the basis of the level of education the
claimant would have been expected to have attained, the age at which it is likely the claimant would have started work,
together with an assessment as to whether the claimant would have become employed or not. The work multiplier will
also have to be discounted for early receipt using the appropriate factor from Table 27 for the number of years between the
claimant’s age at the date of trial and the age at which it is likely that he/she would have started work.
42. Tables A to D include factors up to age 54 only. For older ages the reduction factors increase towards 1 at retirement
age for those who are employed and fall towards 0 for those who are not employed. However, where the claimant is older
than 54, it is anticipated that the likely future course of employment status will be particularly dependent on individual
circumstances, so that the use of factors based on averages would not be appropriate. Hence reduction factors are not
provided for these older ages.
Table A
Loss of Earnings to pension Age 65 (Males – Not disabled)
Age at date Employed Not employed
of trial D GE-A O D GE-A O
16-19 0.90 0.85 0.85 0.82
20-24 0.92 0.92 0.87 0.89 0.88 0.83
25-29 0.93 0.92 0.89 0.89 0.88 0.82
30-34 0.92 0.91 0.89 0.87 0.86 0.81
35-39 0.90 0.90 0.89 0.85 0.84 0.80
40-44 0.88 0.88 0.88 0.82 0.81 0.78
45-49 0.86 0.86 0.86 0.77 0.77 0.74
50 0.83 0.83 0.83 0.72 0.72 0.70
51 0.82 0.82 0.82 0.70 0.70 0.68
52 0.81 0.81 0.81 0.67 0.67 0.66
53 0.80 0.80 0.80 0.63 0.63 0.63
54 0.79 0.79 0.79 0.59 0.59 0.59
17
Table B
Loss of Earnings to pension Age 65 (Males – Disabled)
16-19 0.55 0.32 0.49 0.25
20-24 0.61 0.55 0.38 0.53 0.46 0.24
25-29 0.60 0.54 0.42 0.48 0.41 0.24
30-34 0.59 0.52 0.40 0.43 0.34 0.23
35-39 0.58 0.48 0.39 0.38 0.28 0.20
40-44 0.57 0.48 0.39 0.33 0.23 0.15
45-49 0.55 0.48 0.39 0.26 0.20 0.11
50 0.53 0.49 0.40 0.24 0.18 0.10
51 0.53 0.49 0.41 0.23 0.17 0.09
52 0.54 0.49 0.41 0.22 0.16 0.08
53 0.54 0.49 0.42 0.21 0.15 0.07
54 0.54 0.50 0.43 0.20 0.14 0.06
Table C
Loss of Earnings to Pension Age 60 (Females – Not disabled)
16-19 0.81 0.64 0.77 0.59
20-24 0.89 0.82 0.68 0.84 0.76 0.60
25-29 0.89 0.84 0.72 0.83 0.75 0.61
30-34 0.89 0.85 0.75 0.81 0.75 0.63
35-39 0.89 0.86 0.78 0.80 0.74 0.63
40-44 0.89 0.86 0.80 0.78 0.72 0.60
45-49 0.87 0.85 0.81 0.72 0.64 0.52
50 0.86 0.84 0.81 0.64 0.55 0.43
51 0.85 0.84 0.81 0.60 0.51 0.40
52 0.84 0.84 0.81 0.56 0.46 0.36
53 0.83 0.83 0.81 0.50 0.41 0.32
54 0.83 0.83 0.82 0.44 0.35 0.27
18
Table D
Loss of Earnings to Pension Age 60 (Females – Disabled)
16-19 0.43 0.25 0.35 0.19
20-24 0.64 0.44 0.25 0.58 0.33 0.17
25-29 0.63 0.45 0.25 0.50 0.32 0.16
30-34 0.62 0.46 0.30 0.44 0.31 0.15
35-39 0.61 0.48 0.34 0.42 0.28 0.14
40-44 0.60 0.51 0.38 0.38 0.23 0.13
45-49 0.60 0.54 0.42 0.28 0.18 0.11
50 0.60 0.56 0.47 0.23 0.15 0.10
51 0.61 0.58 0.49 0.21 0.14 0.09
52 0.61 0.60 0.51 0.20 0.13 0.08
53 0.62 0.62 0.54 0.18 0.11 0.07
54 0.63 0.66 0.57 0.16 0.09 0.06
The factors in Tables A to D will need to be reviewed if the discount rate changes.
Different pension ages

43. The factors in the preceding tables assume retirement at age 65 for males and age 60 for females. It is not possible to
calculate expected working life times assuming alternative retirement ages from the LFS data, since the employment data
in the LFS are collected only for the working population, assumed aged between 16 and 64 for males and between 16 and
59 for females. Where the retirement age is different from age 65 for males or age 60 for females, it is suggested that this
should be ignored and the reduction factor and the adjustments thereto be taken from the above tables for the age of the
claimant as at the date of trial with no adjustment i.e. assume that the retirement age is age 65 for males and age 60 for
females. However, if the retirement age is close to the age at the date of trial, then it may be more appropriate to take into
account the circumstances of the individual case.
44. It should be noted that the reduction factors in Tables A, B, C and D are based on data for the period 1998 to 2003.
Whilst the reduction factors and adjustments allow for the age-specific probabilities of moving into, or out of, employment
over future working life time, based on data for the period 1998-2003, the methodology assumes that these probabilities
remain constant over time; there is no allowance for changes in these age-specific probabilities beyond this period. It is
also assumed that there will be no change in disability status or educational achievement after the date of the accident.
Future changes in the probabilities of moving into, and out of, employment are especially difficult to predict with any
certainty. It is the intention that the factors should be reassessed from time to time as new data become available.
SECTION C: SUMMARY OF PERSONAL INJURY APPLICATIONS
45. To use the tables the guidance below should be followed:
(1) Choose the table relating to the appropriate sex of the claimant and period of loss or expense (e.g. loss for
life, or loss of earnings to a set retirement age). Where loss of earnings is concerned, and none of the tables is
relevant because the claimant’s expected age of retirement differs from that assumed in the tables, the procedure
in paragraphs 13 to 16 of the explanatory notes should be followed.
(2) Choose the appropriate discount column (currently 2½%).
(3) In that column find the appropriate figure for the claimant’s age at trial (“the basic multiplier”).
19
Table 1 Multipliers for pecuniary loss for life (males)

Age at Multiplier calculated with allowance for projected mortality from the 2008-based population projections Age at
date of and rate of return of date of
trial trial
–2.0% –1.5% –1.0% –0.5% 0.0% 0.5% 1.0% 1.5% 2.0% 2.5% 3.0%
0 264.76 195.32 147.14 113.22 88.96 71.35 58.34 48.60 41.17 35.41 30.89 0
1 259.11 191.95 145.15 112.06 88.31 71.00 58.18 48.54 41.18 35.46 30.96 1
2 252.28 187.68 142.46 110.35 87.22 70.30 57.73 48.24 40.98 35.33 30.87 2
3 245.58 183.46 139.78 108.64 86.12 69.58 57.26 47.94 40.78 35.19 30.78 3
4 239.02 179.29 137.12 106.93 85.01 68.86 56.78 47.62 40.56 35.05 30.68 4
5 232.59 175.19 134.48 105.22 83.89 68.12 56.30 47.29 40.34 34.90 30.58 5
6 226.29 171.15 131.87 103.52 82.78 67.39 55.80 46.96 40.12 34.75 30.47 6
7 220.14 167.18 129.29 101.83 81.66 66.65 55.31 46.63 39.89 34.59 30.36 7
8 214.13 163.28 126.74 100.15 80.55 65.90 54.80 46.28 39.65 34.42 30.24 8
9 208.23 159.43 124.21 98.48 79.43 65.15 54.29 45.93 39.41 34.25 30.13 9
10 202.47 155.64 121.71 96.81 78.31 64.39 53.78 45.58 39.16 34.08 30.00 10
11 196.83 151.92 119.23 95.15 77.19 63.63 53.25 45.22 38.91 33.90 29.87 11
12 191.33 148.26 116.79 93.50 76.07 62.86 52.72 44.85 38.65 33.72 29.74 12
13 185.95 144.67 114.37 91.87 74.96 62.09 52.19 44.47 38.39 33.53 29.61 13
14 180.69 141.14 111.98 90.24 73.84 61.32 51.65 44.10 38.12 33.34 29.47 14
15 175.56 137.67 109.62 88.63 72.73 60.55 51.11 43.71 37.84 33.14 29.32 15
16 170.55 134.27 107.30 87.02 71.61 59.77 50.56 43.32 37.57 32.94 29.17 16
17 165.66 130.93 105.00 85.44 70.51 58.99 50.01 42.93 37.28 32.73 29.02 17
18 160.89 127.66 102.74 83.86 69.41 58.22 49.46 42.53 37.00 32.52 28.87 18
19 156.25 124.45 100.52 82.31 68.31 57.44 48.91 42.14 36.71 32.31 28.71 19
20 151.72 121.31 98.32 80.76 67.22 56.66 48.35 41.73 36.41 32.10 28.55 20
21 147.28 118.22 96.15 79.23 66.13 55.88 47.78 41.32 36.11 31.87 28.39 21
22 142.94 115.17 94.00 77.70 65.04 55.09 47.21 40.90 35.81 31.64 28.22 22
23 138.69 112.17 91.87 76.18 63.94 54.30 46.63 40.48 35.49 31.41 28.04 23
24 134.54 109.22 89.77 74.67 62.85 53.51 46.05 40.05 35.17 31.17 27.86 24
25 130.49 106.33 87.69 73.17 61.76 52.71 45.46 39.61 34.85 30.92 27.67 25
26 126.54 103.50 85.65 71.69 60.68 51.91 44.87 39.17 34.51 30.67 27.48 26
27 122.69 100.72 83.63 70.22 59.59 51.11 44.28 38.73 34.18 30.42 27.28 27
28 118.90 97.98 81.63 68.74 58.51 50.30 43.67 38.27 33.83 30.15 27.08 28
29 115.20 95.28 79.64 67.28 57.42 49.49 43.06 37.81 33.48 29.88 26.87 29
30 111.59 92.63 77.69 65.83 56.34 48.68 42.45 37.34 33.12 29.60 26.65 30
31 108.09 90.04 75.78 64.40 55.27 47.87 41.83 36.87 32.76 29.32 26.44 31
32 104.68 87.52 73.89 62.99 54.20 47.06 41.22 36.40 32.39 29.04 26.21 32
33 101.36 85.04 72.04 61.60 53.15 46.26 40.60 35.92 32.02 28.75 25.99 33
34 98.10 82.61 70.21 60.21 52.09 45.45 39.98 35.44 31.65 28.46 25.75 34
35 94.92 80.21 68.39 58.83 51.03 44.63 39.35 34.95 31.26 28.15 25.51 35
36 91.82 77.86 66.60 57.46 49.98 43.82 38.71 34.45 30.87 27.84 25.27 36
37 88.78 75.55 64.83 56.10 48.93 43.00 38.07 33.95 30.47 27.53 25.01 37
38 85.81 73.27 63.08 54.74 47.87 42.18 37.42 33.44 30.06 27.20 24.75 38
39 82.89 71.03 61.35 53.39 46.82 41.35 36.77 32.91 29.65 26.86 24.48 39
40 80.05 68.83 59.63 52.05 45.76 40.51 36.11 32.39 29.22 26.52 24.20 40
41 77.27 66.67 57.94 50.72 44.71 39.68 35.44 31.85 28.79 26.17 23.91 41
42 74.56 64.55 56.28 49.41 43.67 38.84 34.77 31.31 28.35 25.81 23.62 42
43 71.92 62.47 54.63 48.10 42.62 38.01 34.10 30.76 27.91 25.45 23.32 43
44 69.34 60.43 53.01 46.81 41.59 37.17 33.42 30.21 27.45 25.08 23.01 44
45 66.82 58.43 51.41 45.52 40.55 36.33 32.73 29.65 26.99 24.70 22.69 45
46 64.36 56.46 49.83 44.25 39.52 35.49 32.05 29.08 26.53 24.31 22.37 46
47 61.96 54.53 48.28 42.99 38.49 34.65 31.35 28.51 26.05 23.91 22.04 47
48 59.63 52.64 46.74 41.74 37.47 33.81 30.66 27.94 25.57 23.51 21.70 48
49 57.35 50.79 45.24 40.50 36.45 32.97 29.97 27.36 25.09 23.10 21.36 49
50 55.14 48.99 43.76 39.29 35.45 32.14 29.27 26.78 24.60 22.69 21.01 50
51 52.99 47.23 42.31 38.09 34.45 31.31 28.58 26.19 24.11 22.27 20.65 51
52 50.90 45.51 40.89 36.91 33.47 30.48 27.88 25.61 23.61 21.85 20.29 52
53 48.87 43.83 39.49 35.74 32.49 29.67 27.19 25.02 23.11 21.42 19.92 53
54 46.90 42.19 38.12 34.60 31.53 28.85 26.50 24.43 22.61 20.99 19.55 54
55 44.99 40.60 36.79 33.47 30.58 28.04 25.81 23.85 22.11 20.56 19.18 55
56 43.15 39.04 35.48 32.37 29.64 27.25 25.13 23.26 21.60 20.12 18.80 56
57 41.35 37.53 34.19 31.28 28.71 26.45 24.45 22.67 21.09 19.68 18.42 57
58 39.59 36.04 32.93 30.19 27.78 25.65 23.76 22.08 20.58 19.23 18.02 58
59 37.87 34.57 31.67 29.11 26.85 24.85 23.07 21.47 20.05 18.77 17.62 59
60 36.17 33.12 30.42 28.04 25.92 24.04 22.36 20.86 19.51 18.30 17.20 60
61 34.52 31.69 29.19 26.97 25.00 23.23 21.65 20.24 18.96 17.81 16.77 61
62 32.91 30.30 27.98 25.92 24.08 22.43 20.95 19.62 18.41 17.33 16.34 62
63 31.36 28.95 26.80 24.89 23.17 21.63 20.25 19.00 17.86 16.84 15.90 63
64 29.85 27.63 25.65 23.88 22.28 20.85 19.55 18.38 17.31 16.35 15.47 64
65 28.40 26.37 24.54 22.90 21.42 20.08 18.87 17.77 16.77 15.86 15.03 65
66 27.02 25.14 23.46 21.94 20.57 19.33 18.20 17.17 16.24 15.38 14.60 66
67 25.68 23.96 22.41 21.01 19.74 18.59 17.54 16.58 15.70 14.90 14.16 67
68 24.38 22.81 21.39 20.10 18.93 17.86 16.88 15.99 15.17 14.42 13.73 68
69 23.13 21.69 20.39 19.21 18.12 17.14 16.23 15.40 14.64 13.93 13.29 69
continued
34
Table 1 Multipliers for pecuniary loss for life (males) continued

trial trial
–2.0% –1.5% –1.0% –0.5% 0.0% 0.5% 1.0% 1.5% 2.0% 2.5% 3.0%
70 21.91 20.60 19.41 18.32 17.32 16.41 15.58 14.81 14.10 13.44 12.84 70
71 20.70 19.52 18.43 17.44 16.53 15.69 14.92 14.21 13.55 12.94 12.38 71
72 19.52 18.44 17.46 16.56 15.72 14.96 14.25 13.60 12.99 12.43 11.91 72
73 18.34 17.38 16.49 15.67 14.92 14.22 13.57 12.97 12.42 11.90 11.42 73
74 17.18 16.32 15.52 14.79 14.10 13.47 12.89 12.34 11.83 11.36 10.92 74
75 16.04 15.27 14.56 13.90 13.29 12.72 12.19 11.70 11.24 10.81 10.40 75
76 14.93 14.25 13.62 13.03 12.48 11.97 11.50 11.05 10.64 10.25 9.88 76
77 13.86 13.26 12.70 12.18 11.70 11.24 10.82 10.42 10.05 9.69 9.36 77
78 12.83 12.31 11.82 11.36 10.93 10.53 10.15 9.79 9.46 9.15 8.85 78
79 11.86 11.40 10.97 10.57 10.19 9.84 9.50 9.19 8.89 8.61 8.34 79
80 10.94 10.55 10.17 9.82 9.49 9.18 8.88 8.60 8.34 8.09 7.85 80
81 10.10 9.75 9.43 9.12 8.83 8.56 8.30 8.05 7.82 7.60 7.38 81
82 9.33 9.03 8.74 8.47 8.22 7.98 7.75 7.53 7.33 7.13 6.94 82
83 8.62 8.36 8.11 7.88 7.65 7.44 7.24 7.05 6.87 6.69 6.53 83
84 7.97 7.74 7.53 7.32 7.13 6.94 6.76 6.59 6.43 6.28 6.13 84
85 7.36 7.16 6.98 6.80 6.63 6.47 6.31 6.16 6.02 5.88 5.75 85
86 6.79 6.62 6.46 6.31 6.16 6.02 5.88 5.75 5.62 5.50 5.39 86
87 6.25 6.11 5.97 5.83 5.71 5.58 5.46 5.35 5.24 5.14 5.04 87
88 5.74 5.62 5.50 5.38 5.27 5.16 5.06 4.96 4.87 4.78 4.69 88
89 5.26 5.15 5.05 4.95 4.86 4.76 4.68 4.59 4.51 4.43 4.35 89
90 4.81 4.72 4.64 4.55 4.47 4.39 4.31 4.24 4.17 4.10 4.03 90
91 4.40 4.32 4.25 4.17 4.10 4.04 3.97 3.91 3.85 3.79 3.73 91
92 4.01 3.94 3.88 3.82 3.76 3.70 3.65 3.59 3.54 3.49 3.44 92
93 3.65 3.59 3.54 3.49 3.44 3.39 3.34 3.30 3.25 3.21 3.17 93
94 3.33 3.29 3.24 3.20 3.16 3.11 3.07 3.03 2.99 2.96 2.92 94
95 3.06 3.02 2.98 2.94 2.91 2.87 2.84 2.80 2.77 2.74 2.71 95
96 2.83 2.79 2.76 2.72 2.69 2.66 2.63 2.60 2.57 2.54 2.52 96
97 2.62 2.59 2.56 2.53 2.50 2.48 2.45 2.42 2.40 2.37 2.35 97
98 2.44 2.41 2.38 2.36 2.34 2.31 2.29 2.27 2.24 2.22 2.20 98
99 2.27 2.25 2.22 2.20 2.18 2.16 2.14 2.12 2.10 2.08 2.06 99
100 2.11 2.09 2.07 2.06 2.04 2.02 2.00 1.98 1.97 1.95 1.93 100
35
Table 2 Multipliers for pecuniary loss for life (females)

trial trial
–2.0% –1.5% –1.0% –0.5% 0.0% 0.5% 1.0% 1.5% 2.0% 2.5% 3.0%
0 285.20 208.39 155.57 118.70 92.57 73.74 59.95 49.69 41.92 35.94 31.26 0
1 279.01 204.72 153.41 117.45 91.86 73.36 59.76 49.62 41.91 35.97 31.32 1
2 271.81 200.28 150.65 115.73 90.77 72.67 59.33 49.34 41.73 35.86 31.24 2
3 264.75 195.89 147.91 114.00 89.68 71.97 58.88 49.05 41.55 35.73 31.16 3
4 257.83 191.56 145.19 112.28 88.58 71.27 58.43 48.75 41.35 35.60 31.08 4
5 251.06 187.30 142.49 110.56 87.49 70.56 57.97 48.45 41.15 35.47 30.99 5
6 244.43 183.11 139.83 108.85 86.38 69.85 57.50 48.14 40.95 35.34 30.89 6
7 237.94 178.98 137.18 107.15 85.28 69.13 57.03 47.83 40.74 35.19 30.80 7
8 231.59 174.92 134.57 105.46 84.18 68.40 56.55 47.51 40.52 35.05 30.70 8
9 225.38 170.93 131.98 103.77 83.07 67.67 56.06 47.18 40.30 34.90 30.60 9
10 219.31 167.00 129.43 102.10 81.97 66.94 55.57 46.85 40.08 34.75 30.49 10
11 213.37 163.14 126.90 100.43 80.86 66.20 55.07 46.52 39.85 34.59 30.38 11
12 207.57 159.34 124.40 98.78 79.76 65.46 54.57 46.18 39.62 34.42 30.27 12
13 201.89 155.60 121.92 97.13 78.65 64.71 54.07 45.83 39.38 34.26 30.15 13
14 196.33 151.93 119.48 95.49 77.55 63.96 53.55 45.47 39.13 34.09 30.03 14
15 190.91 148.32 117.06 93.86 76.44 63.21 53.03 45.12 38.88 33.91 29.90 15
16 185.61 144.77 114.67 92.25 75.34 62.45 52.51 44.75 38.62 33.73 29.77 16
17 180.42 141.28 112.31 90.64 74.24 61.70 51.99 44.38 38.37 33.55 29.64 17
18 175.36 137.86 109.98 89.05 73.14 60.94 51.46 44.01 38.10 33.36 29.51 18
19 170.42 134.50 107.68 87.46 72.05 60.17 50.92 43.63 37.83 33.16 29.37 19
20 165.60 131.20 105.42 85.89 70.96 59.41 50.38 43.25 37.56 32.97 29.22 20
21 160.88 127.95 103.17 84.33 69.86 58.64 49.84 42.86 37.28 32.76 29.08 21
22 156.26 124.76 100.95 82.78 68.77 57.86 49.28 42.47 36.99 32.56 28.92 22
23 151.72 121.60 98.74 81.22 67.67 57.08 48.72 42.06 36.70 32.34 28.76 23
24 147.29 118.50 96.56 79.68 66.57 56.29 48.16 41.65 36.40 32.12 28.60 24
25 142.97 115.46 94.41 78.15 65.48 55.50 47.58 41.23 36.09 31.89 28.43 25
26 138.74 112.47 92.28 76.63 64.38 54.71 47.01 40.81 35.78 31.66 28.26 26
27 134.61 109.53 90.18 75.12 63.29 53.92 46.43 40.38 35.46 31.42 28.08 27
28 130.57 106.65 88.11 73.62 62.20 53.12 45.84 39.95 35.14 31.18 27.90 28
29 126.63 103.81 86.05 72.13 61.11 52.32 45.25 39.51 34.81 30.93 27.71 29
30 122.78 101.02 84.03 70.65 60.02 51.52 44.65 39.06 34.47 30.68 27.51 30
31 119.02 98.29 82.03 69.18 58.94 50.71 44.05 38.61 34.13 30.41 27.31 31
32 115.34 95.60 80.06 67.72 57.86 49.90 43.44 38.15 33.78 30.15 27.11 32
33 111.75 92.97 78.11 66.27 56.77 49.09 42.83 37.68 33.42 29.87 26.89 33
34 108.24 90.37 76.18 64.83 55.69 48.27 42.21 37.21 33.06 29.59 26.67 34
35 104.80 87.81 74.27 63.40 54.61 47.45 41.58 36.73 32.69 29.31 26.45 35
36 101.45 85.31 72.39 61.98 53.53 46.63 40.95 36.24 32.31 29.01 26.22 36
37 98.17 82.84 70.53 60.57 52.46 45.81 40.31 35.75 31.93 28.71 25.98 37
38 94.97 80.42 68.69 59.17 51.38 44.98 39.67 35.25 31.54 28.40 25.74 38
39 91.83 78.04 66.88 57.78 50.31 44.15 39.03 34.74 31.14 28.09 25.48 39
40 88.77 75.71 65.08 56.39 49.24 43.31 38.37 34.23 30.73 27.76 25.23 40
41 85.78 73.41 63.31 55.02 48.17 42.48 37.71 33.71 30.32 27.43 24.96 41
42 82.86 71.16 61.56 53.66 47.10 41.64 37.05 33.18 29.90 27.09 24.69 42
43 80.01 68.94 59.84 52.31 46.04 40.80 36.38 32.65 29.47 26.75 24.41 43
44 77.23 66.77 58.14 50.97 44.98 39.95 35.71 32.11 29.03 26.39 24.12 44
45 74.52 64.65 56.46 49.64 43.93 39.11 35.03 31.56 28.59 26.03 23.82 45
46 71.87 62.56 54.81 48.32 42.87 38.27 34.35 31.01 28.14 25.67 23.52 46
47 69.28 60.51 53.17 47.02 41.83 37.42 33.67 30.45 27.69 25.29 23.21 47
48 66.77 58.50 51.57 45.73 40.79 36.58 32.98 29.89 27.23 24.91 22.90 48
49 64.32 56.54 50.00 44.46 39.76 35.74 32.30 29.33 26.76 24.53 22.58 49
50 61.93 54.62 48.44 43.20 38.73 34.90 31.61 28.76 26.29 24.14 22.25 50
51 59.60 52.73 46.91 41.95 37.71 34.06 30.91 28.19 25.81 23.74 21.92 51
52 57.33 50.88 45.40 40.71 36.69 33.22 30.22 27.61 25.33 23.33 21.57 52
53 55.11 49.07 43.92 39.49 35.68 32.38 29.52 27.02 24.84 22.92 21.22 53
54 52.96 47.30 42.46 38.28 34.68 31.55 28.82 26.44 24.34 22.50 20.87 54
55 50.86 45.57 41.02 37.09 33.68 30.71 28.12 25.84 23.84 22.07 20.51 55
56 48.83 43.88 39.61 35.91 32.69 29.88 27.42 25.25 23.34 21.64 20.14 56
57 46.84 42.22 38.23 34.75 31.71 29.05 26.72 24.65 22.83 21.21 19.76 57
58 44.89 40.60 36.86 33.59 30.74 28.22 26.01 24.05 22.31 20.76 19.37 58
59 42.99 38.99 35.50 32.44 29.76 27.39 25.29 23.43 21.78 20.30 18.98 59
60 41.12 37.41 34.16 31.30 28.78 26.55 24.57 22.81 21.24 19.83 18.57 60
61 39.30 35.86 32.83 30.16 27.80 25.70 23.84 22.18 20.69 19.35 18.15 61
62 37.52 34.33 31.52 29.03 26.83 24.86 23.11 21.54 20.13 18.86 17.72 62
63 35.79 32.84 30.24 27.92 25.86 24.02 22.38 20.90 19.57 18.37 17.28 63
64 34.11 31.39 28.98 26.83 24.91 23.19 21.65 20.26 19.01 17.87 16.84 64
65 32.50 29.99 27.76 25.77 23.98 22.38 20.93 19.63 18.45 17.38 16.40 65
66 30.94 28.64 26.58 24.73 23.07 21.58 20.23 19.00 17.89 16.88 15.96 66
67 29.44 27.32 25.43 23.72 22.18 20.78 19.52 18.38 17.34 16.39 15.52 67
68 27.99 26.05 24.30 22.72 21.29 20.00 18.83 17.76 16.78 15.89 15.07 68
69 26.57 24.80 23.19 21.74 20.42 19.22 18.13 17.13 16.22 15.39 14.62 69
continued
36
Table 2 Multipliers for pecuniary loss for life (females) continued

trial trial
–2.0% –1.5% –1.0% –0.5% 0.0% 0.5% 1.0% 1.5% 2.0% 2.5% 3.0%
70 25.19 23.57 22.10 20.76 19.55 18.44 17.43 16.50 15.65 14.87 14.15 70
71 23.83 22.35 21.01 19.79 18.67 17.65 16.72 15.86 15.07 14.35 13.68 71
72 22.47 21.14 19.92 18.81 17.79 16.85 16.00 15.20 14.48 13.80 13.18 72
73 21.13 19.93 18.83 17.82 16.89 16.04 15.25 14.53 13.86 13.24 12.66 73
74 19.80 18.72 17.73 16.82 15.99 15.21 14.50 13.84 13.23 12.66 12.13 74
75 18.48 17.53 16.64 15.83 15.08 14.38 13.74 13.14 12.58 12.06 11.58 75
76 17.20 16.35 15.57 14.84 14.17 13.55 12.97 12.43 11.92 11.45 11.01 76
77 15.95 15.21 14.51 13.87 13.28 12.72 12.20 11.72 11.27 10.84 10.45 77
78 14.75 14.10 13.50 12.93 12.40 11.91 11.45 11.02 10.62 10.24 9.88 78
79 13.62 13.05 12.52 12.03 11.56 11.13 10.72 10.34 9.98 9.64 9.32 79
80 12.56 12.07 11.61 11.17 10.77 10.38 10.02 9.69 9.37 9.07 8.78 80
81 11.58 11.15 10.75 10.37 10.02 9.68 9.36 9.06 8.78 8.51 8.26 81
82 10.67 10.30 9.95 9.62 9.31 9.02 8.74 8.48 8.23 7.99 7.76 82
83 9.83 9.51 9.21 8.92 8.65 8.39 8.15 7.92 7.70 7.49 7.29 83
84 9.06 8.78 8.52 8.27 8.03 7.81 7.59 7.39 7.19 7.01 6.83 84
85 8.34 8.10 7.87 7.65 7.45 7.25 7.06 6.88 6.71 6.55 6.40 85
86 7.66 7.45 7.25 7.07 6.89 6.72 6.56 6.40 6.25 6.11 5.97 86
87 7.01 6.84 6.67 6.51 6.36 6.21 6.07 5.93 5.80 5.68 5.56 87
88 6.41 6.26 6.11 5.98 5.85 5.72 5.60 5.48 5.37 5.26 5.16 88
89 5.84 5.71 5.59 5.47 5.36 5.25 5.15 5.05 4.95 4.86 4.77 89
90 5.31 5.20 5.10 5.00 4.90 4.81 4.72 4.64 4.55 4.47 4.40 90
91 4.82 4.73 4.64 4.55 4.47 4.40 4.32 4.25 4.18 4.11 4.04 91
92 4.37 4.29 4.22 4.15 4.08 4.01 3.95 3.89 3.83 3.77 3.71 92
93 3.97 3.90 3.84 3.78 3.72 3.67 3.61 3.56 3.51 3.46 3.41 93
94 3.62 3.56 3.51 3.46 3.41 3.36 3.31 3.27 3.22 3.18 3.14 94
95 3.32 3.27 3.23 3.18 3.14 3.10 3.06 3.02 2.98 2.94 2.91 95
96 3.06 3.02 2.98 2.94 2.91 2.87 2.84 2.80 2.77 2.74 2.71 96
97 2.84 2.80 2.77 2.74 2.70 2.67 2.64 2.61 2.58 2.56 2.53 97
98 2.64 2.61 2.58 2.55 2.52 2.49 2.47 2.44 2.42 2.39 2.37 98
99 2.45 2.42 2.40 2.37 2.35 2.32 2.30 2.28 2.26 2.23 2.21 99
100 2.27 2.25 2.22 2.20 2.18 2.16 2.14 2.12 2.10 2.08 2.06 100
37
Table 7 Multipliers for loss of earnings to pension age 60 (males)

trial trial
–2.0% –1.5% –1.0% –0.5% 0.0% 0.5% 1.0% 1.5% 2.0% 2.5% 3.0%
16 69.28 61.13 54.18 48.26 43.18 38.81 35.03 31.77 28.93 26.46 24.29 16
17 66.90 59.22 52.65 47.02 42.18 38.00 34.38 31.24 28.50 26.11 24.01 17
18 64.58 57.34 51.13 45.79 41.18 37.19 33.73 30.71 28.07 25.75 23.72 18
19 62.30 55.49 49.63 44.57 40.19 36.38 33.06 30.17 27.62 25.39 23.42 19
20 60.08 53.68 48.15 43.36 39.20 35.57 32.40 29.62 27.17 25.02 23.11 20
21 57.90 51.89 46.68 42.15 38.21 34.75 31.72 29.06 26.71 24.64 22.80 21
22 55.76 50.13 45.23 40.95 37.21 33.93 31.04 28.50 26.25 24.25 22.47 22
23 53.66 48.40 43.79 39.76 36.22 33.11 30.36 27.93 25.77 23.85 22.14 23
24 51.61 46.69 42.37 38.57 35.23 32.28 29.66 27.35 25.28 23.44 21.80 24
25 49.60 45.01 40.96 37.40 34.24 31.45 28.97 26.76 24.79 23.02 21.44 25
26 47.64 43.35 39.57 36.22 33.25 30.61 28.26 26.16 24.28 22.59 21.08 26
27 45.71 41.72 38.19 35.06 32.27 29.77 27.55 25.56 23.77 22.16 20.71 27
28 43.82 40.12 36.83 33.90 31.28 28.93 26.83 24.94 23.24 21.71 20.32 28
29 41.97 38.54 35.48 32.74 30.29 28.09 26.10 24.32 22.70 21.25 19.92 29
30 40.15 36.99 34.14 31.59 29.30 27.24 25.37 23.69 22.16 20.78 19.52 30
31 38.38 35.46 32.83 30.46 28.32 26.39 24.64 23.05 21.61 20.29 19.10 31
32 36.65 33.96 31.53 29.33 27.34 25.53 23.89 22.40 21.04 19.80 18.67 32
33 34.96 32.48 30.24 28.21 26.36 24.68 23.15 21.75 20.47 19.30 18.23 33
34 33.30 31.03 28.97 27.09 25.38 23.82 22.39 21.09 19.89 18.79 17.78 34
35 31.67 29.60 27.71 25.98 24.40 22.96 21.63 20.42 19.30 18.27 17.32 35
36 30.07 28.19 26.46 24.88 23.43 22.09 20.87 19.74 18.69 17.73 16.84 36
37 28.51 26.80 25.23 23.78 22.45 21.22 20.09 19.04 18.08 17.18 16.35 37
38 26.98 25.43 24.01 22.69 21.48 20.35 19.31 18.34 17.45 16.61 15.84 38
39 25.48 24.08 22.80 21.60 20.50 19.47 18.52 17.63 16.81 16.04 15.32 39
40 24.00 22.76 21.60 20.52 19.52 18.59 17.72 16.91 16.15 15.44 14.78 40
41 22.56 21.45 20.41 19.45 18.54 17.70 16.91 16.17 15.48 14.84 14.23 41
42 21.15 20.16 19.24 18.38 17.57 16.81 16.10 15.43 14.80 14.21 13.66 42
43 19.76 18.90 18.08 17.31 16.59 15.92 15.28 14.68 14.11 13.58 13.07 43
44 18.41 17.65 16.93 16.26 15.62 15.02 14.45 13.91 13.41 12.93 12.47 44
45 17.08 16.42 15.79 15.20 14.64 14.12 13.61 13.14 12.69 12.26 11.85 45
46 15.78 15.21 14.67 14.16 13.67 13.21 12.77 12.35 11.95 11.58 11.22 46
47 14.50 14.02 13.56 13.12 12.70 12.30 11.92 11.55 11.21 10.88 10.56 47
48 13.26 12.85 12.46 12.08 11.73 11.38 11.06 10.75 10.45 10.16 9.89 48
49 12.03 11.69 11.37 11.05 10.75 10.47 10.19 9.93 9.67 9.43 9.19 49
50 10.83 10.56 10.29 10.03 9.78 9.55 9.32 9.10 8.88 8.68 8.48 50
51 9.66 9.44 9.22 9.01 8.81 8.62 8.43 8.25 8.08 7.91 7.75 51
52 8.51 8.34 8.17 8.00 7.84 7.69 7.54 7.40 7.26 7.12 6.99 52
53 7.38 7.25 7.12 7.00 6.87 6.76 6.64 6.53 6.42 6.32 6.21 53
54 6.27 6.18 6.08 5.99 5.90 5.82 5.73 5.65 5.57 5.49 5.41 54
55 5.18 5.12 5.05 4.99 4.93 4.87 4.81 4.75 4.69 4.64 4.58 55
56 4.12 4.07 4.03 3.99 3.95 3.91 3.87 3.84 3.80 3.76 3.73 56
57 3.06 3.04 3.02 2.99 2.97 2.95 2.93 2.91 2.89 2.86 2.84 57
58 2.03 2.02 2.01 2.00 1.99 1.98 1.97 1.96 1.95 1.94 1.93 58
59 1.01 1.00 1.00 1.00 1.00 0.99 0.99 0.99 0.99 0.98 0.98 59
42
Table 8 Multipliers for loss of earnings to pension age 60 (females)

trial trial
–2.0% –1.5% –1.0% –0.5% 0.0% 0.5% 1.0% 1.5% 2.0% 2.5% 3.0%
16 70.04 61.77 54.73 48.72 43.57 39.14 35.32 32.02 29.14 26.64 24.45 16
17 67.65 59.85 53.18 47.48 42.57 38.33 34.67 31.49 28.72 26.29 24.17 17
18 65.30 57.96 51.66 46.24 41.57 37.52 34.01 30.96 28.28 25.94 23.88 18
19 63.01 56.10 50.15 45.02 40.57 36.71 33.35 30.41 27.84 25.58 23.59 19
20 60.76 54.27 48.66 43.80 39.57 35.90 32.68 29.87 27.39 25.21 23.28 20
21 58.56 52.46 47.18 42.58 38.58 35.08 32.01 29.31 26.93 24.83 22.97 21
22 56.40 50.69 45.71 41.37 37.58 34.25 31.32 28.74 26.46 24.44 22.64 22
23 54.29 48.94 44.26 40.17 36.58 33.42 30.64 28.17 25.98 24.04 22.31 23
24 52.21 47.21 42.83 38.98 35.58 32.59 29.94 27.59 25.50 23.63 21.97 24
25 50.18 45.51 41.41 37.79 34.59 31.75 29.24 27.00 25.00 23.21 21.61 25
26 48.19 43.84 40.00 36.60 33.59 30.91 28.53 26.40 24.49 22.78 21.25 26
27 46.24 42.20 38.61 35.43 32.59 30.07 27.81 25.79 23.98 22.34 20.87 27
28 44.33 40.58 37.24 34.26 31.60 29.22 27.09 25.17 23.45 21.89 20.49 28
29 42.46 38.98 35.87 33.09 30.60 28.37 26.36 24.55 22.91 21.43 20.09 29
30 40.63 37.41 34.53 31.94 29.61 27.51 25.62 23.91 22.37 20.96 19.69 30
31 38.83 35.86 33.19 30.79 28.62 26.65 24.88 23.27 21.81 20.48 19.27 31
32 37.08 34.34 31.87 29.64 27.62 25.79 24.13 22.62 21.24 19.98 18.83 32
33 35.35 32.84 30.57 28.50 26.63 24.93 23.37 21.96 20.66 19.48 18.39 33
34 33.67 31.37 29.28 27.37 25.64 24.06 22.61 21.29 20.07 18.96 17.93 34
35 32.01 29.91 28.00 26.25 24.65 23.18 21.84 20.60 19.47 18.43 17.46 35
36 30.40 28.48 26.73 25.13 23.66 22.30 21.06 19.91 18.86 17.88 16.98 36
37 28.81 27.08 25.48 24.02 22.67 21.42 20.28 19.21 18.23 17.32 16.48 37
38 27.26 25.69 24.24 22.91 21.68 20.54 19.48 18.50 17.60 16.75 15.97 38
39 25.73 24.32 23.02 21.81 20.69 19.65 18.68 17.78 16.95 16.17 15.44 39
40 24.24 22.98 21.81 20.72 19.70 18.76 17.88 17.05 16.29 15.57 14.90 40
41 22.78 21.66 20.61 19.63 18.71 17.86 17.06 16.31 15.61 14.96 14.34 41
42 21.35 20.35 19.42 18.55 17.73 16.96 16.24 15.56 14.93 14.33 13.77 42
43 19.95 19.07 18.24 17.47 16.74 16.05 15.41 14.80 14.23 13.69 13.18 43
44 18.58 17.81 17.08 16.40 15.75 15.15 14.57 14.03 13.52 13.03 12.57 44
45 17.24 16.57 15.93 15.33 14.77 14.23 13.73 13.25 12.79 12.36 11.95 45
46 15.92 15.34 14.80 14.28 13.79 13.32 12.87 12.45 12.05 11.67 11.30 46
47 14.63 14.14 13.67 13.23 12.80 12.40 12.01 11.65 11.30 10.96 10.64 47
48 13.37 12.95 12.56 12.18 11.82 11.48 11.15 10.83 10.53 10.24 9.96 48
49 12.13 11.79 11.46 11.14 10.84 10.55 10.27 10.00 9.75 9.50 9.26 49
50 10.92 10.64 10.37 10.11 9.86 9.62 9.39 9.17 8.95 8.74 8.54 50
51 9.73 9.51 9.29 9.08 8.88 8.69 8.50 8.31 8.14 7.97 7.80 51
52 8.57 8.39 8.22 8.06 7.90 7.75 7.60 7.45 7.31 7.17 7.04 52
53 7.43 7.30 7.17 7.04 6.92 6.80 6.68 6.57 6.46 6.36 6.25 53
54 6.31 6.21 6.12 6.03 5.94 5.85 5.76 5.68 5.60 5.52 5.44 54
55 5.21 5.14 5.08 5.02 4.95 4.89 4.83 4.77 4.72 4.66 4.61 55
56 4.13 4.09 4.05 4.01 3.97 3.93 3.89 3.85 3.82 3.78 3.74 56
57 3.07 3.05 3.03 3.00 2.98 2.96 2.94 2.92 2.89 2.87 2.85 57
58 2.03 2.02 2.01 2.00 1.99 1.98 1.97 1.96 1.95 1.94 1.93 58
59 1.01 1.01 1.00 1.00 1.00 1.00 0.99 0.99 0.99 0.99 0.98 59
43
Table 9 Multipliers for loss of earnings to pension age 65 (males)

trial trial
–2.0% –1.5% –1.0% –0.5% 0.0% 0.5% 1.0% 1.5% 2.0% 2.5% 3.0%
16 81.11 70.46 61.56 54.09 47.80 42.47 37.95 34.08 30.77 27.92 25.46 16
17 78.49 68.41 59.95 52.82 46.80 41.68 37.32 33.59 30.38 27.61 25.21 17
18 75.93 66.39 58.35 51.56 45.80 40.89 36.69 33.09 29.98 27.29 24.96 18
19 73.42 64.40 56.78 50.31 44.80 40.10 36.06 32.58 29.58 26.97 24.70 19
20 70.97 62.45 55.22 49.07 43.81 39.30 35.42 32.07 29.16 26.64 24.43 20
21 68.57 60.53 53.68 47.83 42.82 38.50 34.78 31.55 28.74 26.30 24.15 21
22 66.21 58.63 52.16 46.60 41.82 37.70 34.13 31.02 28.31 25.95 23.87 22
23 63.90 56.77 50.65 45.38 40.83 36.89 33.47 30.49 27.88 25.59 23.57 23
24 61.64 54.93 49.15 44.16 39.84 36.08 32.81 29.94 27.43 25.22 23.27 24
25 59.43 53.12 47.68 42.95 38.85 35.27 32.14 29.39 26.98 24.85 22.96 25
26 57.26 51.35 46.22 41.75 37.86 34.45 31.46 28.84 26.52 24.47 22.65 26
27 55.14 49.60 44.77 40.56 36.87 33.63 30.78 28.27 26.05 24.07 22.32 27
28 53.06 47.87 43.34 39.37 35.88 32.81 30.10 27.70 25.57 23.67 21.98 28
29 51.02 46.17 41.92 38.18 34.89 31.98 29.40 27.11 25.08 23.26 21.63 29
30 49.03 44.50 40.52 37.01 33.90 31.15 28.70 26.52 24.58 22.84 21.28 30
31 47.08 42.86 39.14 35.84 32.92 30.32 28.00 25.93 24.07 22.41 20.91 31
32 45.17 41.25 37.78 34.69 31.94 29.49 27.29 25.33 23.56 21.97 20.54 32
33 43.31 39.67 36.43 33.54 30.96 28.65 26.58 24.72 23.04 21.53 20.16 33
34 41.48 38.11 35.10 32.40 29.99 27.81 25.86 24.10 22.51 21.07 19.77 34
35 39.69 36.57 33.78 31.27 29.01 26.97 25.14 23.48 21.97 20.60 19.36 35
36 37.94 35.06 32.47 30.14 28.03 26.13 24.41 22.84 21.42 20.13 18.95 36
37 36.22 33.57 31.18 29.02 27.06 25.28 23.67 22.20 20.86 19.64 18.52 37
38 34.54 32.11 29.90 27.90 26.08 24.43 22.92 21.55 20.29 19.13 18.08 38
39 32.89 30.66 28.64 26.79 25.11 23.57 22.17 20.88 19.70 18.62 17.62 39
40 31.27 29.24 27.38 25.69 24.13 22.71 21.41 20.21 19.11 18.09 17.16 40
41 29.69 27.84 26.14 24.59 23.16 21.85 20.64 19.53 18.50 17.55 16.68 41
42 28.14 26.46 24.92 23.50 22.19 20.98 19.87 18.84 17.88 17.00 16.18 42
43 26.62 25.10 23.70 22.41 21.22 20.11 19.09 18.14 17.26 16.44 15.68 43
44 25.13 23.77 22.50 21.33 20.25 19.24 18.30 17.43 16.62 15.86 15.16 44
45 23.68 22.45 21.32 20.26 19.28 18.36 17.51 16.71 15.97 15.27 14.62 45
46 22.25 21.16 20.14 19.19 18.31 17.48 16.71 15.98 15.30 14.67 14.07 46
47 20.86 19.89 18.98 18.14 17.34 16.60 15.90 15.24 14.63 14.05 13.50 47
48 19.49 18.64 17.84 17.08 16.38 15.71 15.09 14.50 13.94 13.42 12.92 48
49 18.15 17.41 16.70 16.04 15.41 14.82 14.27 13.74 13.24 12.77 12.33 49
50 16.85 16.20 15.58 15.00 14.46 13.94 13.44 12.98 12.53 12.11 11.71 50
51 15.57 15.01 14.48 13.98 13.50 13.04 12.61 12.20 11.81 11.44 11.09 51
52 14.32 13.84 13.39 12.95 12.54 12.15 11.77 11.42 11.08 10.75 10.44 52
53 13.09 12.69 12.30 11.94 11.59 11.25 10.93 10.62 10.33 10.05 9.78 53
54 11.89 11.56 11.24 10.93 10.63 10.35 10.08 9.82 9.57 9.33 9.10 54
55 10.71 10.44 10.18 9.92 9.68 9.45 9.22 9.00 8.79 8.59 8.40 55
56 9.56 9.34 9.13 8.93 8.73 8.54 8.35 8.17 8.00 7.84 7.67 56
57 8.43 8.26 8.09 7.93 7.77 7.62 7.47 7.33 7.19 7.06 6.93 57
58 7.32 7.19 7.06 6.94 6.82 6.70 6.59 6.48 6.37 6.26 6.16 58
59 6.22 6.13 6.03 5.94 5.85 5.77 5.68 5.60 5.52 5.45 5.37 59
60 5.14 5.08 5.01 4.95 4.89 4.83 4.77 4.71 4.66 4.60 4.55 60
61 4.09 4.04 4.00 3.96 3.92 3.89 3.85 3.81 3.77 3.74 3.70 61
62 3.04 3.02 3.00 2.98 2.95 2.93 2.91 2.89 2.87 2.85 2.83 62
63 2.02 2.01 2.00 1.99 1.98 1.97 1.96 1.95 1.94 1.93 1.92 63
64 1.00 1.00 1.00 1.00 0.99 0.99 0.99 0.99 0.98 0.98 0.98 64
44
Table 10 Multipliers for loss of earnings to pension age 65 (females)

trial trial
–2.0% –1.5% –1.0% –0.5% 0.0% 0.5% 1.0% 1.5% 2.0% 2.5% 3.0%
16 82.26 71.41 62.34 54.74 48.34 42.93 38.33 34.41 31.05 28.16 25.66 16
17 79.62 69.34 60.72 53.47 47.34 42.14 37.71 33.91 30.66 27.85 25.41 17
18 77.03 67.31 59.12 52.20 46.34 41.35 37.08 33.42 30.26 27.53 25.16 18
19 74.50 65.30 57.53 50.95 45.34 40.55 36.45 32.91 29.86 27.21 24.91 19
20 72.02 63.33 55.96 49.70 44.34 39.75 35.81 32.40 29.45 26.88 24.64 20
21 69.59 61.39 54.41 48.45 43.34 38.95 35.16 31.88 29.03 26.54 24.37 21
22 67.20 59.48 52.87 47.21 42.34 38.15 34.51 31.35 28.60 26.20 24.08 22
23 64.87 57.59 51.35 45.98 41.35 37.33 33.85 30.82 28.16 25.84 23.79 23
24 62.58 55.73 49.84 44.75 40.35 36.52 33.19 30.27 27.72 25.47 23.49 24
25 60.34 53.91 48.35 43.53 39.35 35.70 32.51 29.72 27.27 25.10 23.19 25
26 58.14 52.11 46.87 42.32 38.35 34.88 31.84 29.16 26.80 24.72 22.87 26
27 55.99 50.33 45.41 41.11 37.35 34.05 31.15 28.60 26.33 24.33 22.54 27
28 53.88 48.59 43.96 39.91 36.36 33.23 30.46 28.02 25.85 23.93 22.21 28
29 51.82 46.87 42.53 38.72 35.36 32.39 29.77 27.44 25.36 23.51 21.86 29
30 49.80 45.18 41.12 37.53 34.36 31.56 29.06 26.84 24.87 23.09 21.51 30
31 47.82 43.52 39.72 36.35 33.37 30.72 28.35 26.25 24.36 22.66 21.14 31
32 45.88 41.88 38.33 35.18 32.38 29.87 27.64 25.64 23.84 22.22 20.77 32
33 43.98 40.27 36.96 34.01 31.38 29.03 26.92 25.02 23.31 21.77 20.38 33
34 42.12 38.68 35.60 32.85 30.39 28.18 26.19 24.39 22.78 21.31 19.98 34
35 40.30 37.11 34.26 31.70 29.40 27.32 25.45 23.76 22.23 20.84 19.57 35
36 38.51 35.58 32.93 30.56 28.41 26.47 24.71 23.12 21.67 20.35 19.15 36
37 36.76 34.06 31.62 29.42 27.42 25.61 23.96 22.47 21.10 19.86 18.72 37
38 35.05 32.57 30.32 28.28 26.43 24.74 23.21 21.81 20.52 19.35 18.28 38
39 33.38 31.10 29.04 27.16 25.44 23.88 22.44 21.14 19.93 18.83 17.82 39
40 31.73 29.66 27.76 26.04 24.45 23.00 21.68 20.46 19.33 18.30 17.35 40
41 30.12 28.24 26.51 24.92 23.47 22.13 20.90 19.77 18.72 17.76 16.86 41
42 28.55 26.84 25.26 23.81 22.48 21.25 20.12 19.07 18.10 17.20 16.37 42
43 27.01 25.46 24.03 22.71 21.50 20.37 19.33 18.36 17.46 16.63 15.85 43
44 25.49 24.10 22.81 21.62 20.51 19.48 18.53 17.64 16.82 16.05 15.33 44
45 24.02 22.77 21.61 20.53 19.53 18.60 17.73 16.92 16.16 15.45 14.79 45
46 22.57 21.46 20.42 19.45 18.55 17.71 16.92 16.18 15.49 14.84 14.23 46
47 21.15 20.17 19.24 18.38 17.57 16.81 16.10 15.43 14.81 14.22 13.66 47
48 19.77 18.90 18.08 17.31 16.59 15.92 15.28 14.68 14.11 13.58 13.08 48
49 18.41 17.65 16.93 16.26 15.62 15.02 14.45 13.91 13.41 12.93 12.47 49
50 17.08 16.42 15.80 15.21 14.65 14.12 13.62 13.14 12.69 12.26 11.85 50
51 15.78 15.21 14.67 14.16 13.67 13.21 12.77 12.35 11.96 11.58 11.22 51
52 14.51 14.02 13.56 13.12 12.70 12.30 11.92 11.56 11.21 10.88 10.56 52
53 13.26 12.85 12.46 12.09 11.73 11.39 11.06 10.75 10.45 10.17 9.89 53
54 12.04 11.70 11.37 11.06 10.76 10.47 10.20 9.93 9.68 9.43 9.20 54
55 10.84 10.56 10.30 10.04 9.79 9.55 9.32 9.10 8.89 8.68 8.49 55
56 9.67 9.44 9.23 9.02 8.82 8.63 8.44 8.26 8.09 7.92 7.75 56
57 8.52 8.34 8.17 8.01 7.85 7.70 7.55 7.40 7.26 7.13 7.00 57
58 7.39 7.25 7.13 7.00 6.88 6.76 6.65 6.53 6.43 6.32 6.22 58
59 6.28 6.18 6.09 5.99 5.91 5.82 5.73 5.65 5.57 5.49 5.41 59
60 5.19 5.12 5.05 4.99 4.93 4.87 4.81 4.75 4.69 4.64 4.58 60
61 4.11 4.07 4.03 3.99 3.95 3.91 3.87 3.84 3.80 3.76 3.73 61
62 3.06 3.04 3.02 2.99 2.97 2.95 2.93 2.91 2.88 2.86 2.84 62
63 2.03 2.02 2.01 2.00 1.99 1.98 1.97 1.96 1.95 1.94 1.93 63
64 1.01 1.00 1.00 1.00 1.00 0.99 0.99 0.99 0.99 0.98 0.98 64
45
Index 413
Index
abbreviations bereavement claims

in medical records 17–22 amount of award 287
abrasion 11 claimants 287
accidental death Bolam test 69–70, 74, 76, 170
inquest finding 266 breach of statutory duty
see also fatal accidents civil liability 46
accidents at work see work-based claims common law negligence and 56–7
acknowledgment of service 180 health and safety see health and safety at work
acting for claimant legislation 45
clinical negligence claims 4 standard 46
personal injury claims 3 young workers 48–9
acting for defendant bullying 94
clinical negligence 266–7 bundle of documents
clinical negligence claims 4 trial bundle 212
coroner’s court 266–7 bystanders
personal injury claims 3–4, 267 psychiatric illness 91
actuarial tables 233, 284, 399–412
additional claims cardiology 15
case management 183, 190–1 care costs
contribution 182 future costs 235–6
example 183 recoupment of benefits 247, 248
indemnity 182 specialist equipment 235–6
meaning 182 value of third party services 221–3, 278
permission to issue 183 carpel tunnel syndrome 12
procedure 182–3 case management 187–93
after the event insurance (ATE) 134 additional claims 183, 190–1
clinical negligence claims 134–5 ADR consideration 203–4
notice of funding 150–1 allocation to track 188–9
recoverability of premium 134–5 conference 190
staged premiums 135 directions questionnaire 163, 181, 188, 190, 204
alternative dispute resolution disclosure 191–2
case management and 203–4 fast track 189–90
clinical negligence claims 205 group litigation 184
conciliation 203 inspection of documents 191–2
failure of 204 interim applications 193–4
funding the settlement 206 interim payments 194–6
mediation 203, 206 specific disclosure 191–2, 196–7
mini-trial 203 interim payment 194–6
negotiation see negotiation listing questionnaire 190, 193
NHS complaints procedure 206 multi-track 189, 190
personal injury claims 204 offers to settle see Part 36 offers
procedure following failure 204 pre-trial review 190
timing 204 small claims track 189
anaesthesia 15 stay to allow for settlement 188
anosmia 11 timetable, variation 193
Apgar score 14 transfer between courts 188
aphasia 11 witness evidence 192
appeals causation
recoupment of benefits 252–3 ‘but for’ test 72
arthrodesis 10 clinical negligence claims 71–4
arthroplasty 10 health and safety at work 59–61
asbestosis 13, 60 road traffic cases 29
assistant coroner 259 work-based claims 59–61
asthma, occupational 13 causes of action 2
causing death by dangerous driving 268
benefits see recoupment of benefits; welfare cerebral oedema 11
benefits cerebral palsy 14
charitable payments 220 clinical negligence claims – continued

children Full Representation 129
consent by 75 Investigative Help 128–9
criminal injuries compensation claimants 299–300 refusal 129
as dependants 286 identification of defendant
Gillick competence 75 GPs 145
limitation periods and 105 NHS treatment 145
seat belts 27 private dental treatment 145
settlements see settlements, for children private hospitals 145
Claims Notification Form 141, 151, 306–7 letter of claim 149–50
acknowledgement 152, 307 letter of claim response 152
as letter of claim 152, 310 liability 4, 68–77
clavicle 10 causation 71–4
clawback of benefits see recoupment of benefits see also duty of care
clinical case manager 167 loss of chance 72–3
clinical negligence claims 2, 67–8 loss of prospect of recovery 72–3
acting for claimant 4 mediation 206
acting for defendant 4, 266–7 medical records, obtaining see obtaining
advising the client 118 records
after the event insurance 134–5 negotiation 203
alternative dispute resolution 205 NHS complaints procedure 68, 206
timing 205 obtaining records 145–8
unsuitable claims 205 client’s authority 146
Bolam test 69–70, 74, 76, 170 content 147
breach of duty of care 69–70 data protection and 146
causation 71–4 deceased individuals 146
‘but for’ test 72 general practitioner notes 147–8
failure to attend 74 health professionals 147–8
failure to warn 73, 76–7 hospital records 147
loss of chance and 72–3 living individuals 146
res ipsa loquitur 70–1 procedure 146–7
cause of action 2 right of access 146
claimant’s solicitor 68 overview flowchart 8
consent 74–7 pre-action protocol 142, 145
children 75 text 371–86
emergency treatment 75 private treatment 68, 69, 145
Gillick competence 75 proof of evidence 123
refusal 75–6 qualified one way costs shifting 138–9
contractual relationship 69 recoupment of benefits 252
coroner’s court res ipsa loquitur 70–1
acting for potential defendant 266–7 standard of care 70
expert evidence 267 warning of risks 73, 76–7
purpose, form and limits of inquest 267 Clinical Negligence Scheme for Trusts (CNST) 145, 148,
records 266–7 206
statements 266–7 closed head injury 11
criminal prosecutions 83, 269–70 Colles fracture 10
doctor/patient relationship 4 commencement of proceedings
duty of care disclosure see disclosure
doctor 68 early commencement 175–6
health authority 68–9 future loss and expenses 176–7
institutional health provider 68–9 issue of proceedings see issue of proceedings
medical practitioner 68 matters to consider 176–7
expert witnesses 158 medical reports 176–7
conference after proceedings 172 offers to settle see Part 36 offers
conference before proceedings 172 pre-issue checklist 176
finding 168 preparation for trial see preparation for trial
instructing 148 road traffic accidents
on liability and/or causation 148 notice of claim 177
failure to attend 74 notice to MIB 177
failure to warn 73, 76–7 see also pre-action protocols
first interview 118 Compensation Act 2006 61
funding 128–9 Compensation Recovery Unit 245, 250
exceptional funding 129–30 see also recoupment of benefits
Index 415
compensator coroner’s court – continued

meaning 246 Record of an Inquest 265–6
multiple defendants 252 refusal of inquest 260
complaints procedure report to prevent future deaths 265
NHS see NHS complaints procedure self-incrimination privilege 264
conciliation 203 summation 264–5
concussion 11 transcripts 266
conditional fee agreements verdicts 265
after the event insurance (ATE) 134 witnesses
recoverability of premium 134–5 examination 263
staged premiums 135 power to call 263
counsel 131 statements from 263
formal requirements 130 see also inquests
information for client 130 Coroners and Justice Act 2009 257–8
notice of funding 150–1 Corporate Manslaughter and Corporate Homicide Act 2007
risk assessment 133–4 270–3
success fee 130 causation 271
cap 130 convictions 273
recovery 131 duty of care 271
consent order exemptions 272
drawing up 207 gross breach of duty 272
consent to medical procedure offence 270–2
children 75 punishment 272–3
clinical negligence claims 74–7 senior management, meaning 272
emergency treatment 75 costs
Gillick competence 75 fixed see fixed costs
refusal 75–6 NHS costs recovery 253–4
contributory negligence costs of care
recoupment of benefits 249–50 future costs 235–6
road traffic cases 29–31 recoupment of benefits 247, 248
work-based claims 62–3 specialist equipment 235–6
control of substances hazardous to health 55–6 value of third party services 221–3, 278
contusion 10 counsel
coroner’s court conditional fee agreements 131
acting for family 266 costs of use 211
acting for potential defendant 266–7 instructions 210–11
apportionment of blame 264 counterclaim 181
assistant coroner 259 defence 181
circumstances for inquest 259–60 see also additional claims
coroner 259 county court order 214
Coroners and Justice Act 2009 257–8 court orders
coroner’s officer 259 advantages of obtaining 206
criteria for inquest 259–60 county court order 214
determination 265–6 drawing up consent order 207
evidence at inquest 262 interim payments 194
expert advice 262 periodical payments 239
findings 265–6 provisional damages 236–7
accidental death 266 settlements 206–7
open conclusion 266 criminal injuries compensation
suicide 266 child claimants 299
unlawful killing 266 approval hearing 302
funding representation 261 approval of settlements 302
GP notification of death 260 child definition 299–300
human rights and 268 control of money recovered 303
inquisition 265 directions 303
juries 264 investment of damages 303
medical records 262 limitation 300
personnel 259 litigation friend 300–2
post-mortem examinations 260 proceedings 302
pre-inquest review 262 compensation calculation 294–6
preparation for hearing 262 crimes of violence 292
procedure 262–4 eligibility 292–3
publicity at inquest 267 matters preventing 293
criminal injuries compensation – continued defendant – continued

example 297 identification 143–5
lost earnings 295–6 clinical negligence claims 145
nationality 292–3 employers’ liability 144
procedure 294 road traffic accidents 143–4
protected parties see child claimants work-based claims 144
reduction of award 296–7 dependants
residency 292–3 children 286
special expenses 296 identification 280
tariff award 294–5 meaning 279
time limit 293 see also fatal accidents; loss of dependency
victims of crime 291–2 dermatitis, occupational 13
withholding of award 296–7 dermatology 15
Criminal Injuries Compensation Authority 291–4 Diagnostic and Statistical Manual of Mental Disorders of
criminal prosecutions the American Psychiatric Association 88
clinical negligence cases 269–70 diffuse axonal injury 11
doctors 83 directions
fatal road accidents 268–9 expert witnesses 165
work-based injuries 64–6, 269 fast track 189–90
directions questionnaire 163, 181, 188, 190, 204
damages disciplinary proceedings (NHS)
actuarial tables 233–4, 284, 399–412 doctors
assessment at date of trial 217–20 fitness to practice procedures 82–3
distribution 278 referral to Fitness to Practice Panel 83
Fatal Accidents Act 1976 278–88 nurses 83
general see general damages Nursing and Midwifery Council 83
interest 240–1, 288 disclosure
loss of earnings see loss of earnings evidence 154
multiplicand 233, 281–3 inspection of documents 191–2
multiplier 233, 283–4 inspection of property 154
Ogden Tables 233, 284, 399–412 list of documents 191
provisional see provisional damages medical records see medical records
quantification see quantification of damages pre-action 145–6, 154
schedule of loss 211, 285–6 specific 191–2, 196–7
special see special damages disease and illness claims
see also individual types medical records 148
damages-based agreements (DBAs) 131 occupational records 148–9
cap 132–3 pre-action protocol 142
meaning 132 preliminary steps 148–9
risk assessment 133–4 dislocation 10
dangerous driving, causing death by 268 display screens 49
data protection doctors
health records 146 disciplinary proceedings see disciplinary proceedings
date of knowledge 116 (NHS)
act or omission 104–5 duty of care 68
actual knowledge 101–2 see also general practitioners
attributable to act or omission 104–5 dysphasia 11
constructive knowledge 102–4
identity of defendant 105 egg-shell skull rule 230
Limitation Act 1980 100 employers’ liability cases 2
significant injury 104 cause of action 2
starting the clock 100–1 Claims Notification Form 151, 306–7
deafness, industrial 12–13 acknowledgement 152, 307
defence 180 as letter of claim 152, 310
contents 180–1 disease claims see disease and illness claims
counterclaim 181 fixed costs 308–9
reply to 181 claims exiting Portal 310
defendant ‘escaping’ 311
acting for identification of defendant 144
clinical negligence claims 4, 266–7 offers to settle 309
coroner’s court 266–7 claims exiting Portal 310
personal injury claims 3–4, 267 Portal 305
post-mortem examinations 260 claims exiting 309–11
Index 417
employers’ liability cases – continued expert witnesses – continued

pre-action protocol 2, 143, 305–8 accident reconstruction experts 158, 166–7
costs consequences following judgment 309 areas of expertise 165–7
failure to follow 310–11 case management 163–5
fixed costs 308–9 clinical case manager 167
interim payment 308 clinical negligence cases 158, 168
offers to settle 309 conference after proceedings 172
Stage 1 306–7 conference before proceedings 172
Stage 2 307–8 instructing 148
Stage 3 308 on liability and/or causation 148
text 387–98 conferences
when applicable 306 after proceedings issued 172
see also work-based claims before proceedings issued 171–2
employment details consulting engineers 158, 167
from employer 158 directions 165
self-employed clients 158 duty to court 162–3
unemployed clients 158–9 employers’ liability cases 166
enforcement exchange of reports 210
criminal proceedings 64–6, 268–73 experts 158, 162
employers’ liability 64–6 finding 167–8
health and safety at work 63–6 medical agencies 168
evidence instruction protocol 161
accident book 153 joint selection 164–5
coroner’s court 262 key points 173
criminal convictions 157 letter of instruction 169–71
documents held by defendant 152–3 medical
documents held by third parties 154–6 liability and causation 170–1
employer liability claims 153–4 quantum 170
expert see expert witnesses medical experts 165–6
general damages 158–9 personal injury claims 158
health and safety report 153–4, 155–6 accident reconstruction experts 158, 166–7
inspection 154 conference after proceedings 172
lay witnesses 157–8, 159 conference before proceedings 171
location of accident 117, 156–7 consulting engineer 158, 167
loss of earnings 158 instructions 169–70
medical records see medical records joint selection/instruction 164–5
models 193, 212 preliminary enquiries of 169
occupational records 148–9 protocol for instruction of 161
oral evidence at trial 192 qualities of 168–9
order of, at trial 213–14 quantum 166
pain, suffering and loss of amenity 159 reports 171
personal injury claims 153 exchange 210
photographs 116–17, 159, 193, 212–13 use of 171
plans 193, 212 written 164
police accident report 155 road traffic accidents 166
pre-action disclosure 154 selection, joint 164–5
proof of evidence 118 single joint expert 164–5
clinical negligence claims 123 types 165–7
content 118–20 extradural haematoma 11
incidents at work 121–2
road traffic incidents 120–1 fact finding
tripping/slipping incidents 121 access to documents 145–6
quantum, in respect of 158–9 defendant see defendant
real 156 disclosure see disclosure
RIDDOR report to HSE 153–4, 155–6 employment details 158
site visits 117 expert evidence see expert witnesses
sketch plans 156–7 road traffic cases see road traffic cases
special damages 159 witnesses see witnesses
trial bundle 212 see also evidence; preliminary steps
video-recordings 212 fast track 189–90
visual aids 212–13 directions 189–90
witness statements 192 listing questionnaire 190
expert witnesses 158, 192 trial date fixing 190
fatal accidents first interview – continued

accidental death finding 266 incidents at work 121–2
benefits and road traffic incidents 120–1
disregarding benefits 287–8 tripping/slipping incidents 121
recoupment and offsetting 288 questionnaire use 115
bereavement 287 rehabilitation 124–5
cause of action 275–6 solicitor/client relationship 115
conduct 288 urgent matters 116–17
conflict of interest 288 Fitness to Practice Panel 83
criminal prosecutions 268–73 fixed costs
damages 277–88 claims exiting low-value Portal 310
distribution 278 employers’ liability cases 308–9
Fatal Accidents Act 1976 278–88 ‘escaping’ 311
interest 288 public liability claims 308–9
overview 289 road traffic accidents 308–9
provisional 238 flooding
schedule of loss 285–6 highway authorities and 37
see also individual types fracture 10
dependants fraudulent claims 5–6
apportionment of dependency 286 Full Representation
children 286 criteria for grant 129
identification 280 funding
meaning 279 advising client 127–8
establishing case 288 after the event insurance (ATE) 134–5
flowchart 274 clinical negligence cases 128–9
funeral expenses 278, 287 conditional fees see conditional fee agreements
legislation 275 exceptional funding 129–30
limitation periods 106–7 first interview 115–16
loss of dependency 279–81 free initial interview 115
loss of income 277–8 fixed costs
multiplicand 281–3 employers’ liability cases 308–9
multiplier 283–4 public liability claims 308–9
Ogden Tables 284 road traffic accidents 308–9
pension loss 288 Full Representation 129
personal representative appointment 276 information to client 115
provisional damages 238 inquest representation 261
schedule of loss 285–6 Investigative Help 128–9
value of services of third party 278 legal expenses insurance 135–6
in workplace 269 choice of solicitor 136–7
see also post-death actions methods 127–38
femur 10 NHS costs recovery 253–4
fibula 10 notice of funding 150–1
fire safety 47 private fee-paying clients 137–8
first interview public funding 128–30
advising the client availability 128
clinical negligence 118 qualified one way costs shifting 138–9
personal injury 117–18 refusal 129
welfare benefits see welfare benefits risk assessment 133–4
client’s story 115 SRA Code of Conduct 127–8, 130
clinical negligence claims trade unions 137
advising the client 118 funding the settlement
proof of evidence 123 clinical negligence cases 206
early intervention 124–5 insurers 206
free 115 personal injury cases 206
funding 115–16 funeral expenses 278, 287
free 115
see also funding general damages
limitation issues 110, 116 career progression 234–5
medical treatment requirement 124–5 evidence 158–9, 230, 235
overview flowchart 126 future costs of care 235–6
proof of evidence 118 future loss of earnings 233–5
clinical negligence claims 123 handicap in labour market 230–2
content 118–20 heads of 216, 227
Index 419
general damages – continued health and safety at work – continued

interest 240, 241 plant, adequate 42–3
loss of amenity 159, 227–30, 277 prevention principles 47–8
loss of congenial employment 232–3 prosecutions for fatal accidents 269
loss of earnings 234–5 reasonableness requirement 44–5
loss of pension 236 remoteness of damage 59
multiplicand 233 review of arrangements 48
multiplier 233–4 risk assessment 47
Ogden Tables 233 safe premises 44
pain and suffering 159, 227–30, 277 safe system of working 43–4
pre-existing injuries or conditions 230 safety audit 48
quantification 158–9, 216 seriousness factors 65
specialist equipment 235–6 substances hazardous to health 55–6
General Medical Council training 48
disciplinary proceedings 82–3 volenti non fit injuria 61–2
see also Fitness to Practice Panel work at height 54–5
general practitioners work equipment, provision and use 49–51
identification of defendant 145 workplace 53–4
medical notes 147–8 young workers 48–9
notification of death to coroner 260 see also work-based claims
see also disciplinary proceedings (NHS) Health and Safety Executive
geriatric medicine 15 health and safety report 153–4
Gillick competence 75 height, work at 54–5
Glasgow Coma Scale 11 hemiplegia 11
group litigation 184 highway authorities
gynaecology 15 breach of duty 37–8
statutory defence 38–9
haematology 15 to motorists 36
haematoma to pedestrians 36, 39
extradural 11 cause of action against 2
subdural 11 duties 36–9
hand injuries 11 flooding 37
handicap in labour market gritting the highway 37
general damages 230–2 identifying defendant 144
harassment 96–7 liability 25
hazardous substances, control of 55–6 maintenance of highway
head injuries 11 contractors 37
health authorities duty 36
duty of care 68–9 failure to maintain 38
health and safety at work flooding 37
accident books 153 snow and ice 37
assistance 48 statutory undertakers 37
breach of statutory duty see breach of statutory duty state of highway 36
causation 59–61 statutory duty 36
competent staff 42 tripping/slipping claims 36, 39
criminal proceedings 64–6, 269 Highway Code
display screen regulations 49 breaches of 28
duties of employees 49 solicitor knowledge required 28
duty to report 63–4 human rights
enforcement 63–6 coroner’s courts 268
fire safety 47 humerus 10
health surveillance 48 hydrocephalus 11
heights 54–5 hypertrophy 11
information for employees 48
inspectors 63 identification of defendant see defendant,
legislation 46–56 identification
management 46–9 independent contractors
manual handling 52–3 occupier’s liability 59
mitigating factors 65 industrial deafness 12–13
new or expectant mothers 48–9 industrial disease see disease and illness claims
‘outside’ workers 48 initial instruction
personal duty of care 45 limitation periods noted 110
personal protective equipment 51–2 initial interview see first interview
inquests issue of proceedings – continued

apportionment of blame 264 filing 180
Article 2 inquests 268 matters to consider 176–7
Coroners and Justice Act 2009 257–8 particulars of claim 178–9, 185
criteria for 259–60 pre-issue checklist 176
evidence at 262 reply to defence 181
expert advice 262 service of proceedings 179–80
funding representation 261 statement of value 177–8
human rights and 268
meaning 258 jargon see medical terminology
preparation for hearing 262 Jobcentre Plus 124
procedure 262–4 judgment 214
publicity 267 juries
refusal of 260 coroner’s court 264
summation by coroner 264–5
transcripts 266 laceration 11
unnatural death 259 Legal Aid, Sentencing and Punishment of Offenders Act
violent death 259 2012 127
see also coroner’s court legal expenses insurance 135–6
inquisition 265 choice of solicitor 136–7
inspection of documents 191–2 letter of claim
insurance clinical negligence claims 149–50
after the event insurance (ATE) 134 contents 150–1
before the event 135–6 notification of CFA or AEI funding 150–1
legal expenses insurance 135–6 personal injury claims 149, 150
choice of solicitor 136–7 preliminary notification 149
motor vehicles see motor insurance purpose 149
recoverability of premiums 134–5 response 152
staged premiums 135 road traffic cases 151
insurance moneys 220 time of sending 149–50
interest liability
calculation 242 breach of duty 26
fatal accident damages 288 breach of statutory duty 26–8
general damages 240, 241 clinical negligence claims 68–77
pain and suffering 240, 241 breach of duty 69–70
special damages 240, 241 ‘but for’ test 72
interim payment 194–6 duty of care 68–9
amount 195–6 loss of chance of more favourable outcome 72–3
employers’ liability cases 308 loss of prospect of recovery 72–3
form 195 standard of care 70
grounds for order 194 common law 25
procedure 195 Compensation Act 2006 61
public liability claims 308 duty of care 25–6
recoupment of benefits 252 to passengers 27
repayment 196 to road users 25–6
road traffic accidents 308 work-based claims 42–5
timing of application 195 occupational stress see occupational stress
variation 196 occupiers’ see occupiers’ liability
International Classification of Mental and Behavioural psychiatric illness see psychiatric illness claims
Disorders (World Health Organisation) 88 res ipsa loquitur 28–9, 70–1
intracerebral 11 road traffic accidents
Investigative Help 128–9 breach of duty 26–9
issue of proceedings duty of care 25–6
additional claims duty of highway authority 36–9
case management 183 duty to passengers 27
example 183 maintenance of highway 38–9
meaning 182 seat belts 27
permission to issue 183 standard of care 26
choice of court 177 vicarious see vicarious liability
counterclaim 181 work-based claims
defence 180 adequate plant and equipment 42–3
contents 180–1 breach of statutory duty see breach of statutory duty
extension of time 180 causation 59–61
Index 421
liability – continued loss of dependency – continued

competent staff 42 Ogden Tables 284
duty of care 42–5 parental claims 283
personal duty of care 45 period of loss 283–4
reasonableness requirement 44–5 personal family relationship 281
remoteness of damage 59 loss of earnings
safe premises 44 charitable payments 220
safe system of working 43–4 comparative earner 217
limitation 99 criminal injuries compensation 295–6
aircraft 107 employer payments 218–19
assault cases 105–6 evidence
avoiding problems of 110 acquisition of 158
claimant’s checklist 113 employees 158
commencing proceedings 111–12 self-employed clients 158
contributions between tortfeasors 107 unemployed clients 158–9
date of knowledge 100, 116 fatal accidents 277–8
act or omission 104–5 future earnings see loss of future earnings
actual knowledge 101–2 insurance moneys and 220
constructive knowledge 102–4 net loss of earnings 218–19
identity of defendant 105 exclusions 219–20
Limitation Act 1980 100 pensions 219
significant injury 104–5 recoupment of benefits 219, 247, 248
starting the clock 100–1 redundancy payments 219
defence solicitor 112 state retirement pension 219
discretion to override 107–10 tax refunds 218
fatal accidents 106–7 to date of trial 217–20
first interview and 116 unusual employment histories 218
initial instructions 110 loss of future earnings 233–5
key dates 116 career progression 234–5
limitation period 99–100 evidence 235
negligence claims 105–6 multiplicand 233
NHS complaints multiplier 233–4
local resolution 80–1 Ogden Tables 233
Ombudsman 81–2 periodical payments 239
persons under disability 105 loss of mobility compensation
as preliminary issue 112 recoupment of benefits 247, 248
protective proceedings 110–11 loss of prospect of recovery
shipping 107 clinical negligence 72–3
listing questionnaire 193
fast track 190 Management of Health and Safety at Work Regulations
litigation friend 1999 46–9
appointment 301 Managing Occupational Stress; a Guide for Managers and
cessation 302 Teachers in the School Sector 92
persons eligible 300–1 manslaughter
location of accident corporate, 2007 Act 270–3
photographic evidence 117, 156–7 criminal proceedings against doctors 83
sketch plan 156–7 manual handling 52–3
loss of amenity 159, 227–30 means-tested benefits see welfare benefits
fatal injuries and 277 mediation 203
quantification of damages 159, 227–30 clinical negligence cases 206
loss of congenial employment 232–3 medical expenses
loss of dependency care and quasi-nursing services 221–3
apportionment 286 prior to trial 220–1
assessment of 281–6 special damages 220–1
child dependants 286 medical practitioner see doctors
deceased wage earner 281 medical records
financial loss requirement 280–1 abbreviations in 17–22
identification of dependants 280 access to 77, 145–8
meaning of dependant 279 client’s authority 146
multiplicand 281–3 content 147
multiplication 284–6 data protection 146
multiplier 283–4 deceased individuals 146
net annual loss 281–3 disease and illness claims 148
medical records – continued medical terminology – continued

examination 148 sprain 10
general practitioner notes 147–8 subdural haematoma 11
health professionals 147–8 subluxation 10
hospital records 147 tenosynovitis 12
living individuals 146 Thomas splint 10
medical notes 147 tibia 10
obtaining, procedure 146–7 traction 10
requesting 146–7 upper limb disorders 12
in trial bundle 212 vibration white finger 12
use in coroner’s court 262 whiplash 12
medical reports work-related upper limb disorders 12
commencement of proceedings 176–7 mesothelioma 13, 60
medical specialities 15–17 mini-trial 203
medical terminology mobile phones
abbreviations in medical records 17–22 road accidents and 27
abrasion 11 models 193, 212
anosmia 11 monoplegia 11
aphasia 11 motor insurance
arthrodesis 10 insurers role in proceedings 32
arthroplasty 10 invalid 144
asbestosis 13, 60 obtaining details 32, 33
carpel tunnel syndrome 12 statutory provisions 31
cerebral oedema 11 types of policies 31
cerebral palsy 14 Motor Insurers’ Bureau 32, 177
clavicle 10 see also road traffic cases; Uninsured Drivers Agreement
closed head injury 11 1999; Untraced Drivers Agreement 2003
Colles fracture 10 multi-track 189, 190
concussion 11 multiplicand 233
contusion 10 loss of dependency 281–3
diffuse axonal injury 11 multipliers 233–4
dislocation 10 loss of dependency 283–4
dysphasia 11
extradural haematoma 11 negotiation 199–203
femur 10 case profile 200–1
fibula 10 clinical negligence claims 203
fracture 10 conduct of 202
Glasgow Coma Scale 11 defence solicitors 200
hand injuries 11 insurance companies 200
head injuries 11 preparation 200–1
hemiplegia 11 professional conduct 200
humerus 10 ‘without prejudice’ basis 200
hydrocephalus 11 see also alternative dispute resolution
hypertrophy 11 nervous breakdown 13
industrial deafness 12–13 see also occupational stress
intracerebral 11 nervous shock see psychiatric illness claims
laceration 11 neurology 15
mesothelioma 13, 60 neutral mediator 203
monoplegia 11 NHS
obstetrics 14 costs recovery 253–4
occupational asthma 13 structure 77–9, 84
occupational dermatitis 13 NHS complaints procedure 78–82, 206
occupational stress 13 access to medical records 77
open head injury 11 clinical negligence claim and 68
orthopaedic injuries 10–11 complaints-handling bodies 80
pelvis 10–11 criminal proceedings 83
plaster of Paris 10 disciplinary proceedings see disciplinary proceedings
pneumoconiosis 13 (NHS)
post-traumatic stress disorder 13 identification of defendant 145
radius 10 local resolution 80–1
repetitive strain 12 time limits 81
skeleton, representation of 23 Ombudsman
skin injuries 11 role 81–2
Index 423
NHS complaints procedure – continued Part 36 offers – continued

time limits 82 qualified one way costs shifting 209
rights 85 recoupment of benefits 209, 252
NHS Litigation Authority 4, 145, 206 review 209–10
role 77 road traffic accidents 309
NHS Redress Scheme particulars of claim 178–9, 185
extent of scheme 82 passengers
NHS Redress Act 2006 82 duty to 25, 27, 30
non means-tested benefits see welfare benefits seat belts 27, 30
nurses, disciplinary proceedings see disciplinary pathology 16
proceedings (NHS) pelvis 10–11
Nursing and Midwifery Council pensions
disciplinary proceedings 83 fatal accidents 288
general damages for loss 236
obstetrics 14, 16 reduction of fund 288
occupational asthma 13 state retirement pension 219
occupational dermatitis 13 periodical payments
occupational health claimant’s perspective 241
medical speciality 16 defendant’s perspective 241
occupational stress 13 indexation 240
bullying 94 order 239
causation 95 powers of court 239
damages 95–6 problems intended to solve 238–9
duty of care 92 procedural approach 240
foreseeability test 92–5 statutory provisions 239–40
meaning 91–2 variation 240
publications 92 personal injury claims
victimisation 94 acting for claimant 3
occupiers’ liability acting for defendant 3–4, 267
duty of care 58–9 advising the client 117–18
discharge of 58 alternative dispute resolution 204
exclusion 59 cause of action 2
modification 59 Civil Procedure Rules and 2
nature of 58 coroner’s court 267
independent contractors 59 documents held by defendant 153
non-visitor see trespasser evidence
trespasser 58 documents held by defendant 153
visitor 58 photographs etc 153
offers to settle see Part 36 offers expert witnesses 158
Ogden Tables 233, 284, 399–412 accident reconstruction experts 158, 166–7
oncology 15 conference after proceedings 172
open head injury 11 conference before proceedings 171
ophthalmology 16 consulting engineer 158, 167
orthopaedic injuries finding 168
terminology 10–11 instructions 169–70
orthopaedics 16 joint selection/instruction 164–5
first interview 117–18
paediatrics 16 letter of claim 149, 150
pain and suffering response 152
fatal injuries and 277 liability 3
general damages 159, 227–30 NHS costs recovery 253–4
interest payments 240, 241 overview flowchart 7
quantification of damages 159, 227–30 Part 36 offers 207–8
palliative care 16 pre-action protocol 142
Parliamentary and Health Service Ombudsman 81–2 text 355–70
Part 36 offers 207 psychiatric injury 2
acceptance 209–10 qualified one way costs shifting 138–9
claims exiting low-value Portal 310 quantum 3
contents 207 rehabilitation 124–5, 367–70
employers’ liability cases 309 response to letter of claim 152
future pecuniary loss 207–8 personal protective equipment
provisional damages 208–9, 238 health and safety at work 51–2
public liability claims 309 personal representatives 276
persons under disability proof of evidence 118

limitation periods and 105 clinical negligence claims 123
photographs content 118–20
of client 116–17 incidents at work 121–2
evidence 116–17, 193, 212–13 road traffic incidents 120–1
of injuries immediately after accident 159 tripping/slipping incidents 121
location of accident 117 protected parties
site visits 117 criminal injuries compensation claimants
physiotherapy 16 299–303
plans provisional damages
use in court 193, 212 approach of court 237–8
plaster of Paris 10 ‘chance’ 236–7
pneumoconiosis 13 claim in court documents 236
police accident reports 155 claimant’s perspective 238
post-death actions consequences of claim 238–9
post-mortem examinations 260 court order 236–7
prosecutions defendant’s perspective 238
causing death by dangerous driving 268 deterioration 236
corporate manslaughter 270–3 fatal accidents 238
health and safety breaches 269 Part 36 payment notice 238
manslaughter 269 problems intended to solve 236
see also coroner’s court; fatal accidents; inquests serious deterioration 237
post-mortem examinations statutory provisions 236–7
independent pathologist 260 psychiatric illness claims 87–97
interested parties 260 bystanders 91
preservation of samples 262 close ties of love and affection 89
report as evidence 260 DSM IV 88
post-traumatic stress disorder 13, 88 employee victims 90
pre-action protocols 142–3 ICD-10 88
clinical disputes 142, 145 immediate aftermath 89
text 371–86 nervous shock 87–91
disease and illness claims 142 post-traumatic stress disorder 13, 88
employers’ liability 2, 143, 305–8 primary victims 88
text 387–98 rescuers 90–1
failure to follow 310–11 secondary victims 88, 89–90
personal injury claims 142 third parties 88, 89–90
text 355–70 unaided senses 89–90
practice directions 142 psychiatric injury 2
public liability 2, 143, 305–8 psychiatry 16
text 387–98 psychology 16–17
road traffic accidents 2, 142, 305–8 public liability claims 1
see also individual claims Claims Notification Form 151, 306–7
pre-trial review 190 acknowledgement 152, 307
ADR consideration 203 as letter of claim 152, 310
preliminary issues fixed costs 308–9
limitation as 112 claims exiting Portal 310
preliminary steps ‘escaping’ 311
documents offers to settle 309
employer liability claims 153–4 claims exiting Portal 310
personal injury claims 153 Portal 305
evidence see evidence claims exiting 309–11
identification of defendant see defendant, identification pre-action protocol 2, 143, 305–8
letter of claim see letter of claim costs consequences following judgment 309
obtaining medical records see medical records failure to follow 310–11
preparation for trial fixed costs 308–9
experts’ reports 210 interim payment 308
morning of trial 213 offers to settle 309
narrowing the issues 211 Stage 1 306–7
outstanding orders 210 Stage 2 307–8
schedule of special damages 211 Stage 3 308
trial bundle 212 text 387–98
use of counsel 210–11 when applicable 306
professional conduct 200 Public Service Ombudsman for Wales 81–2
Index 425
qualified one way costs shifting 138 road traffic accidents

applicability 138 criminal prosecutions 268–9
exceptions 138–9 fatal 268–9
meaning 138 notice of claim 177
Part 36 offers and 209 whiplash injuries 12
quantification of damages road traffic cases 1
acquiring evidence 158–9 alcohol and drugs 27
general damages 159 breach of duty 26–9
loss of earnings 158–9 breach of Highway Code 28
pain, suffering and loss of amenity 159 breach of statutory duty 26–8
special damages 158–9 careless driving 27
financial losses 216 causation 29
general see general damages causing death by dangerous driving 268
heads of damage 216 child restraints 27
restoration of status quo 216 Claims Notification Form 151, 306–7
schedule of past and future loss and expense 242 contributory negligence 29–31
special see special damages dangerous driving 27
driving in course of employment 143
radius 10 duty of care 25–6
recoupment of benefits duty of highway authority 36–9
appeals 252–3 duty to passengers 27
certificate of recoverable benefit 251 fixed costs 308–9
clinical negligence 252 claims exiting Portal 310
compensation payments ‘escaping’ 311
meaning 246 highway authorities see highway authorities
subject to offsetting 247–9 identification of defendant 143–4
Compensation Recovery Unit 245 insurance
compensator insurers role in proceedings 32
meaning 246 obtaining details 32, 33
multiple defendants 252 statutory provisions 31
contributory negligence 249–50 types of policy 31
costs of care 247, 248 see also Motor Insurers’ Bureau
exempt payments 251 insurer as defendant 143–4
fatal accidents 288 invalid insurance 144
interim payments 252 judgment 34
legislation 246 letter of claim 152
like-for-like 247–8 low value claims 142
loss of earnings 247, 248 maintenance of highway 38–9
loss of mobility 247, 248 mobile phone use 27
lump sum payments 248–9 Motor Insurers’ Bureau 32, 177
multiple defendants 252 NHS costs recovery 253–4
notification to DWP 250 notice 177
overview flowchart 255 of proceedings 177
Part 36 offers 252 service 33–4
recoverable benefit supporting documentation 34
certificate of 251 to MIB 177
heads of damage 247 offers to settle 309
meaning 246 claims exiting Portal 310
relevant period, meaning 246 photographic evidence 117
see also welfare benefits police accident report 155
redundancy payments 219 poor driving 27
rehabilitation 124–5 Portal 305
Code 367–70 claims exiting 309–11
repetitive strain 12 pre-action protocol 2, 142, 305–8
reply to defence 181 costs consequences following judgment 309
res ipsa loquitur 28–9, 70–1 failure to follow 310–11
rescuers fixed costs 308–9
psychiatric illness claims 90–1 interim payments 308
rheumatology 17 offers to settle 309
risk assessment Stage 1 306–7
conditional fee agreements 133–4 Stage 2 307–8
damages-based agreements 133–4 Stage 3 308
health and safety at work 47 when applicable 305–6
road traffic cases – continued special damages – continued

proof of evidence 120–1 DIY, gardening and housework services 223
res ipsa loquitur 28–9 evidence of 158–9, 226
safety helmets 28, 30 gratuitous care 221–2
seat belts 27 heads of 216, 217
speeding 27 interest 240, 241
standard of care 26 loss of earnings, to trial 217–20
Uninsured Drivers Agreement 1999 32–4, 144, 177 medical expenses prior to trial 220–1
judgment 34 past pecuniary loss 216–17
notice of proceedings 33–4 schedule of 211
obtaining insurance information 33 travelling costs 224–5
procedure 33–4 vehicles
service of notice 33–4 adaptation 223
supporting documentation 34 hire of substitute 225–6
untraced drivers 144 loss of use 225–6
Untraced Drivers Agreement 2003 34–6, 144 no claims bonus loss 226
compensation calculation 35–6 recovery and storage costs 225
contribution to legal costs 36 repairs or replacement 225
exclusions 35 wasted road fund licence 226
interest 36 sprain 10
investigations 35 statement of value 177–8
requirements 35 statements of case
time limits for applications 35 amendments 181–2
vehicle maintenance 27 counterclaim 181
vicarious liability 29 defence 181
particulars of claim 178–9, 185
safe premises 44 reply to defence 181
safe system of working 43–4 statements of value 177–8
safety audit 48 statutory undertakers
see also health and safety at work identifying defendant 144
safety helmets 30 maintenance of highway 37
motor cycles 28 stay to allow for settlement 188
seat belts stress see occupational stress
children 27 Stress at Work (Health and Safety Executive) 92
passengers 27, 30 Stress in the Public Sector - Nurses, Police, Social Workers and
service of proceedings 179–80 Teachers 92
settlements subdural haematoma 11
for children subluxation 10
approval of court 302 success fee 130
approval hearing 302 cap 130
court settlement procedure 302 recovery 131
directions 303 suicide 266
investment of damages 303
court directions 303 tenosynovitis 12
court orders 206 third parties
funding 206 value of services rendered 221–3, 278
protected parties special damages 221–3
approval of court 302 Thomas splint 10
approval hearing 302 tibia 10
court settlement procedure 302 traction 10
directions 303 trade unions
investment of damages 303 funding by 137
site visits 117 transcripts
skin injuries 11 inquests 266
slipping see tripping/slipping claims transfer between courts 188
small claims track 189, 190 trespasser
special damages occupier’s liability 58
adaptations trial
accommodation 223–4 advice to clients 213
vehicles 223 advice to witnesses 213
aids and appliances 223 conduct of 213
alternative accommodation 223–4 judgment 214
clothing and personal effects 220 morning of trial 213
Index 427
trial – continued witness statements – continued

order of evidence 213–14 statement of truth 158
preparation see preparation for trial witness summary 192
trial bundle 212 witnesses
tripping/slipping claims advice before trial 213
duty of highway authorities 36, 39 case management and 192
proof of evidence 121 coroner’s court 263
oral evidence 192
Uninsured Drivers Agreement 1999 32–4, 144, 177 procedure 192
judgment 34 proofing witnesses 157–8
notice of proceedings 33–4 written evidence see witness statements
obtaining insurance information 33 work-based claims 2
procedure 33–4 accident book 153
service of notice 33–4 adequate plant and equipment 42–3
supporting documentation 34 breach of statutory duty 45–57
unlawful killing 266 see also breach of statutory duty; health and safety at
Untraced Drivers Agreement 2003 34–6, 144 work
compensation calculation 35–6 case study 315–53
contribution to legal costs 36 causation 59–61
exclusions 35 competent staff 42
investigations 35 documents held by defendant 153–4
requirements 35 accident book 153
time-limit for application 35 RIDDOR report to HSE 153–4, 155–6
upper limb disorders 12 documents held by third parties 155–6
urgent matters duty of care 42–5
first interview 116–17 employers’ liability see employers’ liability cases
fatal accidents 269
vibration white finger 12 harassment 96–7
vicarious liability health and safety see health and safety at work
course of employment 57 identification of defendant 144
definition 57 liability 41–59
disobedience of orders 57–8 occupational stress see occupational stress
road traffic cases 29 occupiers’ liability see occupiers’ liability
victimisation 94 personal duty of care 45
victims proof of evidence 121–2
criminal injuries compensation 291–2 psychiatric illness 90
psychiatric illness 88–91 reasonableness requirement 44–5
visual aids 212–13 remoteness of damage 59
volenti non fit injuria 61–2 safe premises 44
safe system of working 43–4
welfare benefits vicarious liability see vicarious liability
advising client on 123–4 volenti non fit injuria 61–2
eligibility for benefits 124 work-related stress see occupational stress
fatal accidents and 288 work-related upper limb disorders 12
recoupment see recoupment of benefits
whiplash injuries 12 young workers
witness statements 157–8, 192 health and safety at work 48–9

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i

PERSONAL INJURY AND CLINICAL

PERSONAL INJURY AND CLINICAL

© The University of Law 2014

British Library Cataloguing-in-Publication Data

ISBN 978 1 910019 06 1

Typeset by Style Photosetting Ltd, Mayfield, East Sussex

TABLE OF CASES xiii

TABLE OF STATUTES xix

TABLE OF SECONDARY LEGISLATION xxi

LIST OF ABBREVIATIONS xxv

Chapter 1 INTRODUCTION TO THE WORK OF A PERSONAL INJURY AND CLINICAL

Chapter 2 PERSONAL INJURY AND CLINICAL NEGLIGENCE TERMINOLOGY 9

Chapter 3 ROAD TRAFFIC AND OTHER HIGHWAY CLAIMS: THE LAW 25

Chapter 4 EMPLOYERS’ LIABILITY CLAIMS: THE LAW 41

Chapter 5 CLINICAL NEGLIGENCE: THE LAW 67

Chapter 6 CLAIMS FOR PSYCHIATRIC INJURY 87

Chapter 7 LIMITATION OF ACTIONS 99

Chapter 8 THE FIRST INTERVIEW 115

Chapter 10 INVESTIGATING THE CLAIM AND PRELIMINARY STEPS 141

10.7 Letter of claim 149

Chapter 11 INSTRUCTING EXPERTS 161

Chapter 12 COMMENCEMENT OF PROCEEDINGS 175

Chapter 13 CASE MANAGEMENT AND INTERIM APPLICATIONS 187

Chapter 14 NEGOTIATIONS, ALTERNATIVE DISPUTE RESOLUTION AND TRIAL 199

14.2 Professional conduct 200

Chapter 15 THE QUANTIFICATION OF DAMAGES 215

Chapter 16 RECOVERY OF BENEFITS AND NHS CHARGES 245

Chapter 17 POST-DEATH INVESTIGATIONS 257

Chapter 18 INTRODUCTION TO FATAL ACCIDENT CLAIMS — PROCEDURE AND QUANTIFICATION 275

18.8 Establishing the case 288

Chapter 19 CRIMINAL INJURIES COMPENSATION AUTHORITY 291

Chapter 20 CLAIMS ON BEHALF OF CHILDREN AND PROTECTED PARTIES 299

Appendix 2 PRE-ACTION PROTOCOL FOR PERSONAL INJURY CLAIMS 355

Appendix 3 PRE-ACTION PROTOCOL FOR THE RESOLUTION OF CLINICAL DISPUTES 371

Appendix 4 PRE-ACTION PROTOCOL FOR LOW VALUE PERSONAL INJURY (EMPLOYERS’

Appendix 5 ACTUARIAL TABLES – EXTRACTS 399

Latimer v AEC Ltd [1953] AC 643 45

Table of Secondary Legislation

See Chapter 2 for commonly used medical abbreviations.

Introduction to the Work of a

1.1.1 Causes of action

1.1.2 The CPR and the pre-action protocols

1.2 PERSONAL INJURY CLAIMS

1.2.2 The defendant’s perspective

1.3 CLINICAL NEGLIGENCE CLAIMS

1.3.2 The defendant’s perspective

1.4 FRAUDULENT AND EXAGGERATED CLAIMS

1.6 OVERVIEWS OF PERSONAL INJURY AND CLINICAL NEGLIGENCE CLAIMS

Initial interview – take client’s proof of

Carry out initial investigations.

Send letter of claim as soon as sufficient

If defended – court will allocate to track.

NHS complaints procedure

Initial interview – take client’s proof of

Review records with client and send Acknowledge receipt of letter of

If defended – court will allocate to track.

Personal Injury and Clinical

2.2 COMMON INJURIES, CONDITIONS AND MEDICAL TERMS

2.2.2 Hand injuries