Scrolling Pages With Ratings

	There was a very bad decision last week in the Court of Appeal.
Posted By : Bill On 13/06/2017 13:45:00
The trial judge, wrongly, had found against a drunk pedestrian, even though he decided that “at that point in the road an ordinary prudent motorcyclist would have been travelling at a slower speed than 30 mph. The defendant should have been braking earlier so as to be travelling at no more than 20 mph by the time that he first saw the claimant in the act of crossing the road.”. Also, “on the balance of probabilities the collision would not have occurred had Mr Gavigan’s speed been 20 mph and not 30 mph.”. The Court of Appeal upheld the decision, even though a significant part of it was that the judge, wrongly, decided that the claimant’s conduct amounted to a novus actus interveniens. The trial judge had decided that it was not reasonably to be foreseen that the claimant would, when the defendant was 10 metres away, run out into the road towards him, because the claimant had given no indication of any intention to cross the road and his progress down the pavement indicated the opposite. There was nothing in the way in which he conducted himself that indicated that he was or might be drunk or disturbed. The Court of Appeal said that the action of the claimant was not a commonplace (as when cars or motorcycles emerge from side roads - Lang v LTE). They did then add, though, that, “in one sense any sort of foolishness is foreseeable. As is well known, some people do silly or absurd things; or deliberately take risks.”. So; the defendant, a learner, was going 50% faster than he should have been, and he hit a pedestrian who ran out, whom he would have missed had he been going slower. And the claimant loses, in the Court of Appeal!

	Teamwork and why it's so important
Posted By : Bill On 03/06/2017 15:30:00
I've been preaching about teamwork during my entire time in silk – 25 years – and I had a good example recently. I met a family who are thoroughly dissatisfied with their solicitor, brain injury case manager, and deputy – would I take on their case? Sadly, unless the solicitor feels that he and I can work as an effective team, the result will be poor. I know it seems obvious, but it applies also to all who are involved in rehabilitation and litigation following catastrophic brain injury. That’s why selection of the team is so important, and why I always like to be involved if possible.

	Interesting judgment today in the Court of Protection for catastrophic injury lawyers
Posted By : Bill On 31/05/2017 15:30:00
There’s an interesting judgment today in the Court of Protection for catastrophic injury lawyers. Mr Justice Charles has made a decision which means that, where the claimant lacks capacity to decide on his accommodation and care package, the Court of Protection must be asked to make a welfare order. This means that in severe injury claims, the claimant’s lawyers must make every effort to make sure that the claimant is enabled to have capacity to decide where he or she wants to live, and what sort of support package they want. “This case concerns an individual SRK who was severely injured in a road traffic accident. The effects of those injuries are that (a) he lacks capacity to make decisions on the regime of care, treatment and support that he should receive (SRK's care regime), and (b) applying the approach in Cheshire West (see Surrey County Council v P and others; Cheshire West and Chester Council v P and another [2014] UKSC 19, [2014] AC 896), SRK's care regime creates, on an objective assessment, a deprivation of liberty. SRK was awarded substantial damages that were paid to his property and affairs deputy. He lives at a property that has been bought and adapted for him. His regime of care and support there is provided by private sector providers. The damages funded that purchase and adaptation and fund that regime of care. The issue is whether this situation on the ground is a deprivation of liberty that has to be authorised by the Court of Protection by it making a welfare order. The test that the COP would apply in making such an order is whether SRK's care regime is the least restrictive available option to best promote his best interests. The same test applies to the decision makers on the ground. It is common ground that at present SRK's care regime satisfies that test.If the COP makes such a welfare order it will include provisions concerning when and how it is to be reviewed. It is likely that SRK's regime of care and support will always create an objective deprivation of liberty and that he will never have capacity to make decisions about it. However, from time to time issue are likely to arise on what changes should be made to that regime to ensure that it remains the least restrictive available option.I have concluded that a welfare order is needed.”

	Unusual case
Posted By : Bill On 21/09/2016 09:15:00
I had an experience recently which I haven’t had for ages; a case listed for trial settled within three weeks of the trial date. That really is so unusual nowadays, and has been for years. It made me wonder why they would do that, and the only explanation I can think of is that the defence hoped that the pressure would get to the claimant, or his lawyers, and that we would collapse. Instead of that, they had to ignominiously accept our Part 36 offer, made quite some time previously. That sort of behaviour has a real effect on costs, and doesn't show the legal system in a very good light.

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