Lawyers are required to discuss all means of funding with their clients. This information needs to be contained in the client care letter or the engagement letter as you may wish to label it. An electronic template denoting letterhead of your consultancy practice is the best means of informing the client about the present position in their action at all times.
The client must be legally obliged to pay you / us if they “win” (in our case that means achieve the quickest possible pre-action payout) otherwise we have no rights in law to recover the costs of the action from the other side (who up until proceedings are issued will always be a big impersonal and slow.
We do not wish to deal with the following scenario but should the claim be turned down, discontinued etc the client will need to be indemnified.
GENERAL PI LITIGATION PROCEDURES:
– Basic legal Principles (not be to be confused with the realities of life)
– Duty of Care
– Foreseeable Risk or Breach of Duty
– The nature of the duty – a.) Reasonable Practicability b.). Strict liability
– Causation (not be be confused with the cause of the accident)
– Quantum
– Limitation
THE REALITIES OF LIFE
– How did it happen
– Can we prove it?
– Contributory negligence
Apply equally to Liability, Causation and quantum.
Beyond the norm
– Minors (Limitation / Litigation friend / Court approval)
– Deceased (Limitation / Law Reform v Fatal Accidents / Dependency)
– Outside Uk / Ireland -(office based here / Directives / Treaties / Funding / law)
Other Options – CICA, Pneumoconiosis (Workers Compensation) Scheme, MIB, IIDB, DDA.
Duty of Care
Where it might not exist
– Occupier employers reputable contractors – but note non delegable duty of care for employer – Solution – Claim (in our case a pre-action letter) and let them fight it out.
– Date of Knowledge / “state” of knowledge – non tortious exposure / no guilty knowledge eg – industrial injuries with latency etc.
– Vicarious liability -was the person acting in the course of their employment?
– Psychiatric injury – primary or secondary victim?
Foreseeable Risk or Breach of duty:
Common Law
Subject to: Foreseeability / Reasonable practicability
Statute
– The legal requirement will depend on the wording of the legislation.
– Select the right piece of legislation or duty within the legislation.
– If in doubt (plead it all (see letter of claim)
Causation
– Relevant to both accident and disease work. More difficult to establish at the outset of disease work.
– “Straightforward” accidents can become complicated due to medical evidence. Spinal injuries are a good example.
– Note psychological effects of accident / disease – functional overlay, post traumatic stress disorder etc
– Always check medical records and accident book to ensure consistency (can we prove it)
Industrial Diseases –
Important to have knowledge about each condition in order to identify typical “markers.” Need to establish whether the condition is likely to be work related. Considering in particular:
Relationship to work environment (eg – occupational asthma but note WRULD / RSI.
Latency periods – eg HAVS / CTS
Possible other causes – RSI/WRULD/CTS
See the correct medical experts, rely upon them and get to know your medical experts.
Apportionment is an important consideration in disease work consider in particular.
– Negligent / non negligent exposure
– Other contributing factors (e.g. psychological injury / smoking)
– Non recoverable exposure (e.g. asbestos)
QUANTUM
General damages (PAIN, SUFFERING & LOSS OF AMENITY)
Ensure the medical evidence is sufficiently detailed to allow appropriate valuation – Use GUIDELINES / Reported case law.
Special Damages
Covers all losses and expenses provided they are not too remote
Examples:
– Loss of earnings (including primary and secondary work)
– Loss of Partner’s earnings.
– Travel
– Medication
– Pension loss
– Services
– Gym / golf subscriptions etc
– Additional heating and electricity costs
– Loss of enjoyment (eg a horse)
Don’t forget small can be beautiful (eg batteries for tens machine)
Examples of Remoteness
Additional interest arising from mortgage arrears/overdraft following absence from work / loss of income.
Future Loss
Consider: –
Remoteness / speculative claims (eg loss of promotion etc)
Ogden tables (mathematical approach or lump sum)
Pension calculations / Auty
Double recovery
Full and Final Settlement / Provisional Damages
Must be pleaded
Must be risk of serious deterioration or development of further significant condition.
Award at Judge’s discretion.
Mitigation of Loss
Claimant has a duty to:
– Seek appropriate medical treatment
– Obtain alternative employment / redeployment
– Compensation recovery Unit
– Deduction of benefits in appropriate cases.
– When and in what circumstances?
– 5 year limit / settlement of case
– Appeal or review possible.
Ranges of extremes
In even the most straightforward claim it is likely that there will be areas which will be considered by the other side in terms of compensation recovery.
Ensure that the claimant is aware of the problems and the risks arising from any aspects of any claim.
Always give best and worse case scenarios.
Limitation
General Rule: Accidents / Disease 3 years
Accident – Issue of court proceedings 3 years from date of accident.
Disease – 3 years from the date when the claimant knew or ought to have known in all the circumstances that they were suffering from significant symptoms arising from the actions or omissions of a third party.
Questions
What is significant?
When should they have known (subjective / objective test – eg HAVS / deafness)
“May” be suffering
Caused by actions or omissions of a third party.
Note exceptions
Accidents occurring during a flight/carriage by air – Warsaw Convention 2 year limitation period plus limited compensation – strict liability.
CICA 2 years to submit application from the date of assault.
Clinical negligence 3 years
Professional negligence for personal injury 6 years
Points to remember
Always give limitation advice
Always err on the side of caution
Always issue and serve proceedings using the CASE FLOW – In our case – this is where the person elects to continue as a litigant in person or put a direct access barrister on instruction to settle the matter – based on a full and complete set of medical evidence and special damages.
Service of Proceedings – DIRECT ACCESS BARRISTER
Must be served within 4 months of issue
Methods of service
Time limited to serve
Service by email
Always check address / registered office prior to service even after issue
Companies in liquidation / administration.
Service on nominated solicitors
Substituted service
Limitation waiver
Extension of time to serve
Service without medical evidence. / specials.
Limitation as a defence
REALITIES OF LIFE
– Pursuing the claim
– We have to prove everything
– How do we do that?
– Accident book entry (consistent / signed)
– Medical records
– Witness evidence (incident/systems/instructions/complainants etc)
– DWP documentation
– HSE documentation
– Police accident report
– Documents
– Inquest depositions
– Publications
– Minutes of meetings etc
Use Union Safety representatives – Rights under health and safety legislation.
Examples of evidential matters:
Liability: –
Slip / trip (evidence of cause)
System of work (instructions v notices)
Res Ipsa Loquitur (mere occurrence of some accidents can be sufficient to imply negligence
Arguments but no evidence (Pursue to denial / play with realistic offers)
Causation: –
– Aggravation of a pre-existing condition.
– No immediate attendance for medical treatment.
– Large gaps in medical records.
Quantum: –
– Loss of earrings – comparators.
– Promotion – Union Representatives / colleagues / past practice / appraisals
– Services – previous work undertaken
– Loss of enjoyment – hobbies previously enjoyed.
Contributory Negligence
– Burden upon the Defendants
– Common practice / systems condoned etc