the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

New CPR 3.9 - Ending the "culture of toleration of delay and non-compliance with court orders" and a "different justice"?

Tomorrow as the last working day before April, shall mark the end of an era. Not a particularly long era. But all of fourteen years of the Civil Procedure Rules as we have known them. From the 1st April 2013, the CPR will be significantly altered for every civil litigant. Most pertinently, the Overriding Objective will now include specific reference to undertaking litigation at proportionate cost, and ensuring compliance with (interlocutory) orders of the court. In the latter vein, CPR 3.9 “Relief from Sanctions” is being entirely reformed. Gone will be the checklist, oft-treated as a checklist by judges, to be replaced by a much broader discretion as to whether to grant relief, with the judge specifically referred to the need for litigation to be conducted efficiently and at proportionate cost, and to enforce compliance with rules, practice directions and orders.  Lord Dyson, the Master of the Rolls in a speech last week to District Judges at their annual seminar reminded us that the change to CPR 3.9 in reflecting the new Overriding Objective was to simplify the rule for when relief from sanctions should be granted. The removal of the checklist was something, he argued, would improve the clarity of decision making and decrease the scope of ‘satellite litigation’ – presumably referring to appeals for failing to consider appropriately all aspects of the former checklist. Lord Dyson argued that when considering applications for relief, for too long the courts have (albeit understandingly) erred on allowing the principle of individual justice to trump any real consideration of the effect that this may have on the system of justice or upon other court users. He quotes Lord Justice Jackson in Mannion v Ginty [2012] EWCA Civ 1667 at [18] as referring to “a culture of toleration of delay and non-compliance with court orders” in the civil justice system. It is suggested that the changes to CPR 3.9 will end this culture (which the CPR itself was designed to curtail). The Master of the Rolls suggests that the more robust future attitude to rule-compliance and relief from sanction, is intended to ensure justice is done. However, the new CPR defines a different acknowledgement and achievement of justice. He states that parties can no longer expect indulgence if they fail to comply with procedural obligations, and that efficiency, proportionality and consideration of other litigants and court resources are to constitute new cornerstones to this ‘different justice’.  

Personal Health Budgets and Heads of Loss - Assistance Animals?

The Times today carried an article entitled “NHS will cough up for music lessons and manicures.” It was referring to the three year trial of personal health budgets, whereby people in the NHS Continuing Care programme are able to determine themselves, how best to spend the money allocated to them.    Their budgets are of course typically spent on many items one routinely sees in schedules of loss, namely: carers, mobility aids, domestic assistance and medical expenses. However, the article makes reference to less usual expenses, such as manicures, hairdressing, musical instruments, theatre trips, craft materials and cooking utensils. The article mentions one woman with depression, using some of her budget to learn dress-making; another with multiple sclerosis, having used theirs to purchase a cat and reflexology sessions; and another with chronic lung disease, using theirs for singing lessons.   It is clear that such disperate, diverse and unusual uses for the personal health budgets were greatly therapeutic to the individual patients. However they are rarely seen claimed for in domestic personal injury cases.   Particularly, the use of “assistance animals” is something which is not always appreciated in the UK (beyond guide and hearing dogs), as it is in other parts of the world. Certainly in the USA they are medically recommended by physicians to help temper the symptoms of a range of physical and psychological illnesses. The author has had some experience of observing a case in the US Federal Court in May of this year, involving a woman with depression allegedly caused following a personal injury, who had a rather fine Airedale terrier who was trained to demand attention when it sensed his mistress was feeling low, thus distracting her from her condition. She described the dog as being essential to her health and wellbeing and hinted that he had prevented several suicide attempts. Should personal health budgets become the norm, the range of expenditures is likely to broaden away from the more conventional expenses associated with long term care. This will undoubtedly affect the range of heads of loss litigators are likely to come to have to consider. Should “assistance animals” become to be more recognised as an effective non-medical means of mitigating the symptoms of injuries (probably more commonly psychological), lawyers can expect to increasingly come across claims for the same. Perhaps in time, it will be necessary to have Ogden Tables for the life expectancy of different types or breeds of animals, or suggested actuarial tables relating to the cost of their keep.       NB, these cats are NOT assistance / service animals  

"Of course I'm sure: I remember it like it was yesterday" - Vagaries of Recollection and the Problem with Witness Evidence

The scenario is common during any trial: two witnesses give evidence who were both present at a particular event but whose recollection about what was said or what they saw is so completely at odds one wonders whether they witnessed the same thing.  Whether it is a dispute between a claimant and a doctor about what was said during a consultation, the drivers of two cars that have collided about who was positioned where on the road or two parties to an oral contract who disagree about its terms, the difference in evidence is usually equally stark.   Often the judge will accept one of their versions of events completely and reject the other.  The oral evidence of the preferred witness may be repeated verbatim in the judgment, treated as though it is as accurate as CCTV footage or a secret recording of the event.   Ask yourself this question: on an ordinary day when nothing particularly good or bad has happened to make it remarkable, what do you remember of the details of the many small incidents that occurred?  What do you honestly remember of what you saw as you walked down the high street, who served you in the supermarket, whether anyone was mopping the floor in the veg aisle, where precisely you crossed the road, what was said by you or the salesman when you discussed your new kitchen, which gear you were in as you drove towards a particular set of traffic lights, or precisely what the doctor told you or you said to him during a GP visit that seemed routine at the time.  The honest answer is almost always somewhere between "nothing" and "not much".  We remember the general gist and some of the main points of any day or particular conversation, but often little of the detail.    The adversarial system is such that witnesses are encouraged to put forward a positive recollection about all the surrounding facts of the day in question and, if they are honest and say that they don't remember everything clearly, they are at risk of being found unreliable.  It is not good enough for a driver to say that if something untoward had occurred before a child ran out into her path she would have noticed it because she was paying attention.  It is not good enough for a doctor to say that of course the advice was given because it is what she always says when dealing with that particular problem.  Unless the witness professes to have an actual recollection of what they in fact saw or said, they are at risk of being found to be "an unreliable historian".  "Not remembering" whether any life guards were present around the swimming pool gradually becomes a positive recollection that no life guards were there at the time.  The favourite refrain of many a judge in road traffic cases is "well she was there to be seen: if you were paying attention you would have seen her".  Maybe, maybe not.  The brain might well process a child on the pavement, but unless she was doing something odd, why would that have stuck in the memory?  As I drive along my road I might register vaguely that there are people about on the pavement.  But unless they are doing something unusual, my attention will note nothing more than that.  Are not these witnesses in fact the truthful and reliable ones?     Take, for example, a case in which a claimant professes to have a clear recollection about whether any cleaning crews were present in a huge supermarket superstore.  Of course the clear recollection is that not a single cleaner was there to be seen.  Really?  Who can honestly say that they notice the workers, officials and cleaners present in any shop, transport hub or leisure premises when they are going about their business and focussing on their day.  Uniforms blend into the background.  But this evidence is often accepted as accurate.  I do not place the blame on the witness who clearly believe their recollection iss true.  My concern is about the judges who accept it as so.      In a different but related context the New Jersey Supreme Court in the US has recently raised concerns about the reliability of eye witness identifications and handed down new guidelines for testing them.  It is notable that the Court places at the centre of its analysis scientific research into the reliability of eye witness evidence.  In a unanimous opinion, the court said (http://www.judiciary.state.nj.us/opinions/supreme/A808StatevLarryHenderson.pdf): "We find that the scientific evidence considered at the remand hearing is reliable.  That evidence offers convincing proof that the current test for evaluating the trustworthiness of eyewitness identifications should be revised. Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country. "We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control."   If scientific studies show that basic eye witness recognition of the perpetrator of a crime has a high incidence of unreliability it is difficult to see why recollection of other small facts and details in less dramatic cases should be any better.  One cannot help but think that justice would be well served if more judges were prepared to recognise the reality of the vagaries of memory, rather than simply picking the witness they like best and accepting absolutely all they say as being completely accurate.  That said, as much of my job involves catching witnesses out on small slips so that I can call the totality of their evidence unreliable, I'm at risk of putting myself out of a job...

Holidays of a lifetime!

Good news for schedulers! There is now empirical support for all those additional holiday costs claims.   A survey of 3,000 people by Teletext Holidays (published on 22 February 2011) reveals that we will go on 121 holidays over our life times. The average Briton  goes on 2 holidays every year from the age of 18. The types of holiday and destination vary. We tend to travel to party capitals for holidays with groups of friends before settling down to romantic breaks with a partner and what the survery describes as “fun-filled” holidays with the family.  Each holiday is likely to cost an average of nearly £860 per person with another £533 for spending money making a total of £2,784 per year or more than £168,452 over the average adult life time.  The survey also contains some  useful information for counterschedulers. On average, our holiday life times come to an end at the age of 78.5 so multipliers for holidays costs claims can be discounted to at least that age.   The survey reveals that our choice of detinations change as we get older. Teenagers head to London, Blackpool or Brighton for their  first holidays after leaving school although Newquay appears to be fast closing the gap.  Ibiza is still the choice for those in their early twenties with 60% (or at least 60% of those on Teletext Holidays) identifying “a good nightlife” as the most important factor in holidays at this stage.   For romance we head for the Caribbean, Paris or Rome having been to Amsterdam for our stag and hen weekends.  Family life sees us holiday in Florida but second place still goes to Blackpool followed by Majorca and the Costa Del Sol. In retirement, assuming we will still have one, we will unnwind in Australia, the Caribbean or by going on a cruise. Worryingly, the survey says nothing about the middle aged. Perhaps those whose children have grown up but have not yet retired are just too weary to plan a holiday!   For those who like lists (or just don’t like planning holidays) the survey helpfully includes a suggested “Holiday Timeline”:     Post-school holiday – Newquay Gap Year travelling – Australia Holiday with friends during your early twenties – Ibiza Holiday with boyfriend / girlfriend – Caribbean Stag / Hen weekend – Amsterdam Honeymoon – Maldives Holiday with young children – Florida Holiday with teenagers – Florida Retirement holiday – Australia   So get packing!

Adverse medical events still go unrecorded

The 2010 Dr Foster’s Hospital Guide published on 28 November 2010 confirms that many adverse medical events still go unrecorded. Now in its tenth year, the Guide is a joint venture with the Department of Health and provides a valuable public service by researching and analysing the data recorded by NHS hospital trusts in England in relation to adverse medical events.   This years Guide shows amongst other things that 62,800 adverse medical events were reported in hospitals in England in the period between April 2009 and March 2010. More concerning is the Guide’s conclusion that some trusts are still not accurately recording the true number of adverse medical events. For example, nine trusts recorded no instances of at least one type of adverse event. Some of the more eye catching statistics from this year’s Guide include the fact that over 13,000 women were recorded as having experienced obstetric tears (with an unassisted delivery) and nearly 10,000 patients were recorded as having suffered from an accidental puncture or laceration.   For practitioners, the Guide also helpfully sets out the two different ways of measuring mortality. Hospital Standardised Mortality Ratios (HSMRs) look at deaths across all admissions to hospital. A more relevant measure, however, certainly if a claim involves a death during or after a surgical procedure, is Deaths After Surgery which is concerned specifically with deaths among patients who have surgery and medical complications. As the Guide makes clear, this measure which is widely used in the USA is a new indicator for the UK. Clearly both measures should now be requested when making inquiries of trusts.    The good news is that most trusts have shown improvements in patient safety. All hospital trusts in England now using the World Health Organisation’s Safer Surgery Checklist and all but three trusts are now compliant with the National Patient Safety Agency alerts. This being the season for annual awards, the Dr Foster Hospital Trust of the Year award went to East Kent Hospitals University NHS Foundation Trust which was also the Foundation Trust of the Year. The full 2010 Guide can be downloaded at www.drfosterhealth.co.uk