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PREMEXTRADVICE

In our latest edition of PremextrAdvice Chris Gutteridge, personal injury barrister at Exchange Chambers reveals how paddling pools and black ice absolutely belong in the same sentence. 

It's been a busy month for PI at the RCJ. Here are my tips for recommended reading from the High Court and Court of Appeal covering everything from paddling pools and black ice to costs budgeting under the amended CPR. 

1. Occupiers' Liability:Tacagni v Cornwall County Council24/4/13, CA

The Claimant fell from a raised pathway to the road below. There was a fence along part of the path but after the fence ended the Claimant left the path and strayed over an area of grass. She fell over the edge and was injured. The trial judge found the local authority in breach of the Occupiers' Liability Act 1957 for failing to erect a fence which would have prevented a fall. The Court of Appeal overturned that finding saying that the local authority need not have anticipated a pedestrian departing from the path and crossing almost five metres of grass towards the drop. The material factor was the degree of care that was to be expected of an ordinary visitor under s.2(3) of the 1957 Act. 

2. Costs budgeting:Murray & Stokes v. Neil Dowlman Architecture Ltd.[2013] EWHC 872 (TCC)

This isn't a PI case but is directly relevant to all PI practitioners getting to grips with the new costs budgeting rules. The applicants applied to revise (or rectify) an approved costs management order made with the respondent to show that the approved budget excluded success fees and after the event insurance premiums. In accordance with the new rules, the parties had exchanged costs budgets and a judge approved the applicants' budget of £82,500. The respondent's solicitor then pointed out that the approved costs budget did not say that it excluded a success fee and the ATE insurance premium and argued that the applicants should not be permitted to recover any sum over and above the approved costs budget. The exclusion was a mistake of drafting on the part of the applicants' solicitors. The court decided that 'in an ordinary case' it would be extremely difficult to persuade a judge that inadequacies or mistakes in preparation of a costs budget should be subsequently revised or rectified. However, the instant case was 'very special' because the respondent had always known about the ATE premium and that the applicants intended to recover a success fee. Further, the applicants had used the wrong pro forma for the costs budget and the correct form contained an express exclusion of success fees and ATE premiums. The judge concluded it was 'not appropriate to penalise a party because it failed to tick a box on a form'. 

3. Breach of duty:Cockbill v. Riley[2013] EWHC 656 (QB)

The teenage Claimant attended a barbeque at the Defendant's house. Another guest brought a paddling pool and filled it in the garden. The children at the party began jumping into the paddling pool but when the Claimant attempt this he landed awkwardly and was catastrophically injured. It was common ground that the Defendant owed a duty of care which extended to keeping an eye on the children's behaviour and if necessary intervening in a reasonable manner, though not so as to spoil the party but it was 'unrealistic' to contend that the use of a paddling pool at a party attended by teenagers created a foreseeable risk of significant injury, or justified a formal risk assessment. 

4. Breach of duty:Smith v. Fordyce[2013] EWCA Civ 320

The Defendant had been driving the Claimant to work in wintery weather. The car skidded on black ice and crashed. The Defendant had not be travelling at an excessive speed, had no reason to anticipate icy road conditions and had skidded on black ice which was not visible and could not have been reasonably foreseen. In those circumstances, the Defendant was not negligent. 

5. Expert evidence on loss of earnings:Turner v. Walsall11/4/2013, QBD

The Claimant, who was from Jersey, had suffered serious brain damage when he was 8 years old. There would be difficulties in quantifying his loss of earnings claim because, amongst other things, the trial judge would need to consider both English and Jersey employment law and statistics which were proving troublesome to obtain. The claimant's representatives requested permission to rely on a report from an employment expert to combat those difficulties but were refused. Globe J. commented, obiter, that permission to rely on employment experts was 'not normally' granted for loss of earnings claims 

@GutteridgeChris