Personal Injury update – Spring 2014

Policy review over asbestos in schools Policy on asbestos management in schools is to be reviewed by the Department for Education after findings from the Committee on Carcinogenicity that children exposed to asbestos may be more vulnerable to development of mesothelioma than adults. Most of Britain’s schools including those in Kent were largely rebuilt in the 1950s, 60s and 70s with heavy asbestos content. These posed no risk after original construction, but as they became damaged in later years (even through actions as commonplace as putting a drawing pin in an asbestos-based board) pupils and teacher have been exposed to potentially lethal asbestos fibres.

Following the 25th anniversary of Hillsborough, the psychiatric harm campaign

MPs and members have been supporting the Association of Personal Injury Lawyer’s (APIL) psychiatric injury campaign in the press following 25 years since the Hillsborough stadium disaster. A letter to regional newspapers highlighted the impact the disaster had on the law for witnesses and family members who suffer mental illness after a tragic event. “Sometimes the death of a loved one can cause trauma which extends beyond grief, and can be as debilitating as any physical injury. Thankfully, events like Hillsborough are few and far between”. Joint press releases with MPs have been issued in support of an Early Day Motion.

One year on civil justice reforms under scrutiny

1 April marked the first anniversary of the Jackson reforms. Many personal injury lawyers were made redundant following a swathe of changes, including the abolition of recoverable success fees and insurance, fixed costs and the banning of referral fees. Those of us lucky to be left with a job have had to grapple with a rather stricter procedural regime. A recent conference of the Civil Justice Council looked at the impact of the first year of the Jackson performs on personal injury and other civil claims.

One consistent theme was overloaded courts and an inconsistent approach to cost budgeting and sanctions by district judges. Many practitioners have complained about a changing climate following the Court of Appeal decision in Mitchell with litigation now becoming more antagonistic due to a new emphasis on procedural compliance and the proliferation of applications for time extensions. Lord Dyson and Lord Justice Jackson were fairly unrepentant, but assured practitioners that more clarity would emerge. Some pressure should also be relieved by an amendment to the rules enabling parties to agree 28 day extensions of time without the need for court applications.

Proposed Medical Innovation Bill

Lord Saatchi’s proposed Medical Innovation Bill aims to address an “increasingly litigious culture” which allegedly puts pressure on doctors to practice defence seemed medicine, thereby stifling much-needed innovation. The bill would provide that it is not negligent for doctors to depart from the existing range of accepted treatments, if the decision is taken “responsibly”.

MoJ to amend work histories legislation

An amendment to primary legislation will restore HM Revenue and Customs’s practice of disclosing the work records of deceased mesothelioma/asbestos victims without the need for a court order. The Ministry of Justice has confirmed that it has secured cross-Government clearance to add an amendment; likely to be in the Deregulation Bill which is currently going through the House of Commons. This is good news for those acting for estates where the claimant died before giving consent for HMRC to disclose the work history.

This follows the earlier good news from the judicial review between HMRC and the Liverpool Coroner, confirming that the Revenue must provide such histories where ordered to do so by a Coroner. However, any legislative amendment will have the wider effect of ensuring all personal representatives are able to obtain the Revenue’s work history without the need to obtain a high court order.

Mesothelioma untraced scheme legislation

The Diffuse Mesothelioma Payment Scheme Regulations 2014 came into force on 6 April. These give effect to the new scheme under the Mesothelioma Act 2014. That Act allows for payment of 80% of normal compensation to mesothelioma asbestos victims unable to trace their negligent employers or their insurers. Inflation may be coming down, but court fees keep on spiralling! From 22 April most court fees for personal injury and other money cases were substantially increased in some cases by more than 80%. The standard application fee has virtually doubled to £155. Such increases raise questions about access to justice in certain cases but are part of a government plan to make the court system “pay for itself”. Report defuses compensation myths Most workers who are ill or injured at work never receive a penny in compensation, revealed a myth-busting joint report launched by APIL and the TUC. The report, “The Compensation Myth”, aims to set the record straight on various common misunderstandings about personal injury.

This content is correct at time of publication