piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Schedules, Counter Schedules and the Gadget Generation

    No self-respecting Schedule of Loss is now complete without a hefty claim for “Assistive Technology” items. The response in most Counter Schedules is that the Claimant is likely to have possessed all or some of the items being claimed in any event. The fact is that UK parents now spend a combined £2.25 billion a year or just under £300 per year per household on technology for their children.   This information comes from research on behalf of E.ON UK, one of the UK’s large energy providers.   http://pressreleases.eon-uk.com/blogs/eonukpressreleases/archive/2014/07/25/2376.aspx   We are truly the “gadget generation” in that today’s children possess an average of 4 gadgets each.   Staggeringly, parents with children aged under 5 spend even more. On average a “techie tot” is given gadgets costing £395 per year. Not surprisingly, it is teenagers aged 15-17 who are the most “plugged-in” typically owning 7 devices each.   The trend continues into adulthood. From age 18, parents of males spend over £717 a year on gadgets for their sons. Females aged 18 and over have just under £1,000 worth of gadgets bought for them by their parents per year.   It will come as no surprise to readers not in these age groups to learn that most (56%) of parents acknowledge using their children's “technology hand-me-downs”. 32% of parents also confessed to not being as “tech-savvy” as their children. Most worryingly of all, 14% of parents admitted that they could not even match their “techie tots” when it comes to knowing their way around the latest gadgets.   Perhaps the Counters Schedulers have a point?

A Head for Heights

  “… I was out in the garden with my stepladder today. Not my real ladder. I don't get on with my real ladder …” I was reminded of this old one liner when reading the latest instalment of the government’s Red Tape Challenge This is the revised guidance issued by the Health and Safety Executive (HSE) on working at height. This is now much simpler and sets out in clear terms what the law requires and the nature of an individual's responsibilities. It should be part of every personal injury lawyer’s tool kit. The new guidance is available free online: http://www.hse.gov.uk/pubns/indg401.pdf More than 1 million British businesses and 10 million workers are estimated to carry out jobs involving some form of working at height every year. The Work at Height Regulations (WAHR) 2005 (SI 2005/735) set out the law as it applies in Great Britain. These regulations have not changed. However key changes to HSE guidance include: Simple advice about the dos and don'ts of working at height. The dispelling of some of the persistent myths about health and safety law (Example – “I am working at height if I’m walking up and down a staircase at work. No, you are not. Work at height does not include walking up and down a permanent staircase in a building”). Targeted advice to help businesses in different sectors manage serious risks sensibly and proportionately. Helping workers to be clearer about their own responsibilities for working safely. The new guidance was produced with the support of various bodies including the British Retail Consortium, and the trade unions. It is also timely. Falls remain one of the biggest causes of serious workplace injury with more than 40 people killed and 4,000 others suffering major injuries every year. For lawyers, the guidance sets out clearly and informatively what employers need to do to protect their employees when they are working at height whilst at the same time making clear what can reasonably expected of employees to take responsibilities for their own safely. The emphasis is less on formal qualifications and more on competence. This means having the necessary skills, knowledge and experience for the work being carried out. Hardly new advice but a valuable reminder nonetheless!  

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  

Warning - Low-Flying Wellies !

When John Major launched the ill-fated “Back-to-Basics” campaign in 1993 he sought to recall an image of Britain:  warm beer, old maids bicycling to church and long shadows on the cricket ground.  With the greatest respect to Sir John I would suggest he missed various other specifically British images, one of which is the noble sport of welly wanging.  I’m confident that the readers of this blog have a clear understanding of the sport, but for those who don’t I set out the rules of play from the World Welly Wanging Association:   Welly wanging is a sport open to all people irrespective of age, sex, race, creed, religion, nationality and colour. And people from Lancashire. The sport shall be a civilised affair. Fair play, good humour and good manners shall be exhibited at all times. No umpire shall be needed. A player’s word and their honour shall be sufficient. Distances shall be measured in yards, feet and inches. None of this European nonsense that is mean for Europeans. The standard welly shall be the Dunlop green, size 9, non steel toe-cap. Competitors shall select whether they use a left or a right welly. No tampering with the welly shall be allowed. Factory finish only. No silicone polish is to be applied. A maximum run-up of 42 paces shall be allowed. This distance was chosen in memory of Douglas Adams, himself a proponent of the sport. The run-up shall end with a straight line of 10 feet in length, that being the width of a standard Yorkshire gate. The welly shall land within the area defined by the straight lines between the Upperthong Gala field and Holme Moss television mast on one side, and on the other by the line between the field and Longley Farm windmill. This playing area is known as the ‘Thong’. There shall be four categories: Men’s and Women’s, and Boys and Girls (u-14’s) The welly shall be projected using any action of the arm or foot for the respective categories. The use of wind assistance is allowed and, indeed, encouraged. Waiting for a suitable gust, however, is limited to one minute. No artificial or man-made wind is to be used. The winners of the two adult categories at the World Championships shall be proclaimed world champion for the forthcoming 12 months, and be awarded a prize as set by the organisers.   Unfortunately it seems that rule 11 may have not been properly appreciated in one event resulting in a case management decision in  CRS Adventures Ltd v Blair Ford (2012).  The Claimant suffered catastrophic spinal injury when wanging a welly at an event organised by CRS Adventures.  The Claimant fell forwards when throwing a boot backwards between his legs.  He applied to adduce expert evidence to demonstrate various “safe” methods of throwing a welly which he suggested CRS should have advised him to adopt (I pause to note that my limited researches into the question of technique suggests that the “between the legs” throw is one of the four common methods adopted by welly wangers).   The Claimant then applied to adduce the experts’ evidence only in so far as that it showed the court the different types of throw that they had researched, but not to adduce their opinions at to the safety of each technique.  The master allowed this evidence, holding that in view of the overriding objective it would be wrong to deprive the Claimant of utilising this evidence when the Defendant would call evidence from a number of witnesses who had also utilised the same method of throw.   The Defendant appealed this decision arguing that the decision had gone back on the earlier decision and allowed the same evidence into proceedings by the back door.  McCombe J held that the court would not interfere with a case management decision as long as the master had made it on correct principles.  Any trial judge was more than capable of telling evidence of fact from evidence of opinion and as the Defendant had evidence from witness regarding the kind of throws used it was right that the Claimant was able to adduce evidence so as to create an equal footing.   What one takes from the case (other than one can find an expert to give evidence on the correct way to throw a welly) is the reaffirmation that judges have a wide discretion in making case management decisions. The court approved Walbrook Trustees (Jersey) Ltd v Fattal [2008] EWCA Civ 427 where Collins LJ observed:   “I do not need to cite authority for the obvious proposition that an appellate court should not interfere with case management decisions by a judge who has applied the correct principles and who has taken into account matters which should be taken into account and left out of account matters which are irrelevant, unless the court is satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge. (my emphasis).