Personal injury

first_imgArmed forces – Compensation – Medical treatment Nathalie Lieven QC, Andrew Henshaw (instructed by Treasury Solicitor) for the appellant; Derek Sweeting QC, Jeffrey Jupp, Hugh Lyons (instructed by Lovells) for the respondents. Secretary of State for Defence v (1) Anthony John Ross Duncan (2) Matthew Richard McWilliams: CA (Civ Div) (Lords Justice Keene, Carnwath, Elias): 12 October 2009center_img The appellant secretary of state appealed against a decision of the Upper Tribunal concerning the proper interpretation of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005. The respondent servicemen (D and M) each suffered a fracture of the femur. D’s was caused by a gunshot on active service in Iraq, M’s during basic training. In each case an intramedullary nail was inserted into the leg to stabilise the fracture. In each case the Pensions Appeal Tribunal significantly increased the compensation payable from the level identified by the secretary of state. On appeal by the secretary of state, the Upper Tribunal set aside the decisions of the Pensions Appeal Tribunal and remitted the cases to the first-tier tribunal with directions for rehearing. Held: (1) All relevant evidence actually before the tribunal should be considered when assessing which injuries were caused by service, and what their actual and likely trajectories were. Although in the overwhelming majority of cases the focus would be on the initiating injury, that was not the only injury which was compensatable under the scheme. (2) The tribunal’s objective was to identify the single descriptor most accurately describing the injury from among the categories of injury in the tables in schedule 4 to the 2005 order. In an appropriate case, it would be legitimate to cross-refer to other parts of the scheme when determining the descriptor. It was not legitimate, however, for a decision maker to distort the application of the scheme by identifying an inappropriate comparator on the basis that, looking at the compensation paid for other injuries, he or she did not think that the most appropriate descriptor resulted in adequate compensation. There would in some cases be difficulties in defining whether related injuries should be considered as a single complex injury or two distinct injuries. In making that determination, it would be perfectly proper for the tribunal to have regard to the potential levels of compensation which would result and to compare them with similar sums awarded for other injuries in the same or other tables, provided that that did not involve undue distortion. (3) Injuries that were consequential upon medical treatment should be compensated under the scheme where they flowed from risks which were inherent in carrying out that treatment. However, the immediate consequences of the treatment itself, such as pain and the physical intrusion which necessarily followed any ­surgery and was intrinsic in the cure, would not merit any additional award. The mere application of proper and appropriate medical treatment, ­including surgical intervention, could not of itself constitute an independent injury. Nor could it render more severe the initiating injury, for example, by extending the coverage of a complex injury so as to attract a higher level of award. The Upper Tribunal was wrong to say that the insertion of the intramedullary nail was of itself capable of converting the initial injury in the case of either of the respondents into a more serious one, solely on the ground that it extended the range of the initial injury. Compensation could not be given for negligent medical treatment, which would break the chain of causation, unless it was within the proviso in article 11(a)(iii) for treatment provided while the person sustaining the injury was on military operations outside the UK and in circumstances relating to service where medical facilities were limited. (4) The injury to D was plainly a complex injury, as defined. The bullet wound going through his leg would undoubtedly have affected all or most of the structures identified in the definition. The Upper Tribunal was wrong to treat the insertion of the nail as of itself extending the area of the injury, but that had nothing to do with the definition of complex injury. Where an original injury and a subsequent injury attributable to service were properly to be treated as a single injury, the second injury could, in an appropriate case, change the characterisation of an injury to a complex injury. However, that was likely to be very exceptional because surgery could not of itself constitute a relevant subsequent injury. (5) The Upper Tribunal correctly construed the meaning of an injury ‘covering’ a certain area. (6) The Upper Tribunal was entitled to use the concept of ‘more than trivial’ to describe the point at which compensation would be payable for a restriction or limitation where the descriptor did not identify the degree of limitation or restriction required. (7) Recourse could not be had to table 4, which dealt with physical disorders including infectious diseases, whenever an injury resulted in functional limitations or restrictions. Table 4 was intended to deal only with diseases. If an injury fell within the detailed definition of a particular descriptor, it could not have been the intention of the scheme that more favourable compensation could be awarded by recourse to the far more generalised terms of table 4. (8) The cases were remitted to the first-tier tribunal to reconsider the issue of compensation. Appeal allowed in part.last_img read more

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Slithery customer

first_img Obiter is intrigued as to why it was the snake and not the judge that was deemed to be worthy of rescue, however. Does this say something about the esteem in which the Indian judiciary is held? Obiter is grateful to professor Phil Thomas of Cardiff Law School for sending in a news snippet from the Hindu English language newspaper in India. A four-foot snake slithered into a judge’s chambers last month, and had to be ‘rescued’ by Fire and Rescue Service personnel, it relates. The snake was then safely handed over to Forest Department officials, the report said, and presumably released into the wild to live happily ever after. last_img read more

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Flash back

first_img Oliver Nicholas, PCB Solicitors, Telford The cartoon in Obiter of 29 April shows a camera flashing a van for speeding in relation to www.mybrief.com. The camera appears to be a classic Gatsometer which flashes but takes photos of the rear of the vehicle, not the front as in the cartoon. Even if it were a Truvelo, this would photograph the front of the vehicle but would not utilise a flash. One would assume the ‘excellent result’ was obtained long before the case actually reached the court anyway. I realise I need to get out more.last_img read more

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High volume of complaints against lawyers as LeO launches

first_imgThe new Legal Ombudsman handled nearly 500 complaints on its launch day yesterday, taking its first call two minutes after opening at 8.30am while its chief executive was appearing on Radio 4’s Today programme. Of 497 potential cases, more than 20 are already being investigated, chief ombudsman Adam Sampson (pictured) said last night. He was unable to say how many complaints were about solicitors, but did reveal that barristers and even a notary had been the subject of calls. The total equates to an annual call volume of 130,000, some 30,000 more than anticipated, though the daily volume is expected to level off following the burst of publicity which has accompanied the launch. Sampson gave an insight into the ombudsman’s proactive way of working at a launch event attended by leading legal figures and media at the organisation’s central Birmingham HQ. One caller complained that his solicitor was unable to attend a key court hearing relating to a property as he was on holiday, putting the client’s house at risk, and that calls to the legal firm seeking alternative representation had proved fruitless. A call to the firm by the ombudsman swiftly resolved the matter, Sampson said. Justice minister Jonathan Djanogly gave the government’s seal of approval for the ombudsman in a speech at last night’s event, paying a visit from the Conservative Party conference taking place nearby. Attorney general Dominic Grieve was also present. The ombudsman has assumed responsibility for handling complaints from the Law Society’s Legal Complaints Service, which will run down its existing caseload over the next few months. Meanwhile, it is understood that the Solicitors Regulation Authority is considering moving into the same refurbished office block as the ombudsman, close to Birmingham’s Victoria Square. The Midlands-based SRA wants to consolidate its operations on to one site.last_img read more

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Indian legal services market to stay closed

first_imgThe Indian government has no plans to allow foreign law firms to practise in the country, it said in a statement on Monday. Veerappa Moily, minister of law and justice, said in response to a question in the Indian parliament that ‘at present there is no proposal to allow foreign law firms into the country’. Earlier this year, Moily told The Financial Express that there was ‘no question’ of allowing the UK to bulldoze the country’s more than two million lawyers into accepting foreign competition overnight. On the same day, the president of the Society of Indian Law Firms (SILF) told national newspaper The Hindu that both SILF and the Bar Council of India were ‘totally and unequivocally opposed’ to the entry of foreign law firms from overseas. In December, a Mumbai High Court ruling confirmed that legal advice outside litigation practice is covered by the ban on foreign lawyers set down in the 1961 Advocates Act. A statement on the Indian government’s website read: ‘Dr M Veerappa Moily, minister of law and justice, in the Lok Sabha in a written reply that under section 7 of the Advocates Act 1961, the Bar Council of India is responsible to lay down standards of professional conduct and etiquette for advocates; to safeguard the right, privileges and interests of advocates; to recognise on a reciprocal basis foreign qualification in law obtained outside India for the purpose of admission advocate and to manage; to exercise general supervision and control over state bar councils and invest the funds of the Bar Council. ‘The Bar Council of India, under section 47(2) of the said act, on a reciprocal basis may prescribe the conditions, if any, subject to which foreign qualifications in law obtained by persons other than citizens of India shall be recognized for the purpose of admission as an advocate under this act. The minister further informed the house that at present there is no proposal to allow foreign law firms into the country.’ A number of UK firms have set up alliance or ‘best friend’ offices in India over the last few years.last_img read more

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Interpreter problems ‘unacceptable’ says ministry

first_imgThe Ministry of Justice has criticised the ‘unacceptable’ number of problems in the first weeks of a controversial new contract to run court interpreting services. It has emerged this week that a trial hearing at Leeds Crown Court had to be called off because no one was available to translate for the Czech defendant. The aborted trial is set to cost the court service thousands of pounds in legal fees and other costs. It is one of a litany of cases highlighted by professional interpreters since the MoJ’s exclusive contract with Applied Language Solutions (ALS) began on 1 February. The government has already allowed courts and tribunals to appoint their own interpreters rather than going through ALS’s hub. It has today made its first public censure of its own contractor. An MoJ spokesman said: ‘There have been an unacceptable number of problems in the first weeks of full implementation of the contract and we have asked the contractor to take urgent steps to improve performance. ‘We remain committed to ensuring the rights and needs of those who require interpreters are safeguarded, and are monitoring the system on a daily basis.’ A court worker at Leeds Crown Court confirmed that the Czech national was due to be tried for affray and two counts of possession of a bladed implement in public, but the trial was halted on Wednesday morning. The MoJ says there will be a re-trial in April. It was reported that the judge in the case, Judge Robert Bartfield, warned the aborted trial will cost thousands of pounds and he apologised to the jurors, witnesses and defendant himself whose time was wasted. Czech interpreter Dr Zuzana Windle, a former director of the Professional Interpreters’ Alliance based in Leeds, said she would have been happy to work on the case if ALS had not been involved. However, she added: ‘I am not prepared to subject myself to the degrading prospect of having to pay for an agency assessment and working for ridiculously low rates.’ ALS chief executive Gavin Wheeldon responded to growing criticism earlier this week by increasing mileage rates for staff and offering a £5 incentive to interpreters accepting bookings through an online system. He promised there would be an improvement in the company’s performance, but interpreters are reporting a host of delayed proceedings. A website set up by interpreters has received dozens of anecdotes from people with examples of poor performance. There are claims that non-English speaking defendants are being kept for extra nights in custody because no one is available to translate their case, whilst immigration tribunals are said to have been adjourned due to an absence of interpreters. Labour has called for an urgent inquiry into how the contract with ALS, which was bought by Capita in December, was negotiated. A spokesman said: ‘Tough questions need to be asked. How did this debacle happen? It’s just another example of poorly considered, rushed cuts by a ministry that accepted cuts that go too far and too fast.’last_img read more

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Two go mad in Devon

first_imgSubscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Get your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe now for unlimited access Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletterslast_img read more

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An expensive encore

first_imgGet your free guest access  SIGN UP TODAY Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe now for unlimited access Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGINlast_img read more

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Hansom

first_imgStay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe now for unlimited access Get your free guest access  SIGN UP TODAY Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGINlast_img read more

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Different classes

first_imgTo continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access  SIGN UP TODAY Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited accesslast_img read more

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