the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

More Political Uncertainty for PI Litigators

Ian Miller’s recent post looking at of what party manifestos might tell us about the way ahead for personal injury lawyers identified a large number of potentially significant and yet radically differing changes ahead. Which actually lay in store for us was, of course, going to be dependent upon which way we voted – and upon which post-election alliances were formed and the compromises that were going to be required to hold them together.   Surprisingly, only a short time after that post was published, we find ourselves in a position in which a much clearer outcome has emerged from that election than appeared likely at the time of Ian’s post. Whilst the Green Party’s proposal to bring back legal aid never really appeared to have much of a chance of being implemented, it did at times appear that a return to one-party government was not a great deal more likely. Nonetheless, that is where we find ourselves.   As a result, one might expect that we would be able to move on from the election better able to plan for the future with a degree of certainty as to what might lie ahead. Despite the relatively conclusive outcome to the election, whether this is in fact the case for personal injury lawyers is however questionable. The “in-out” referendum promised in the Conservative manifesto makes it (still) very difficult to predict what might lie in store – whatever the result and whatever interpretation one might put on the contents of that manifesto.   Opposing views as to which outcome of the referendum might be preferable are beginning to appear in the media - despite the fact that there appears to be very little (or no) suggestion as to what changes might be wrought by the “new settlement” to which the manifesto refers. Insofar as it might affect the business of personal injury litigation, the possibilities seem both endless and potentially very far-reaching, whether we end up with a novel basis of membership of the EU or indeed no membership at all.   The possibilities for change (whether intended or not) are myriad – whether under a “yes” to a novel settlement or a “no”. One can only wonder what might ultimately be the subject of renegotiation or an “opt out”. What, for instance, would be the position in relation in relation to claims arising from road traffic accidents abroad? Would claims arising from package holidays still fall to be dealt with in the same way? Would potentially diverging consumer standards impact upon product liability claims?   It is equally hard to see how any degree of disengagement from the EU would or could permit a status quo to be maintained, even where this might be perceived as a desirable compromise position in relation to a particular areas of law. Were this approach to be tried, it begs the question of what would happen when and if the remaining states revised the current situation. Would it necessitate renewal of the UK’s agreement to the position? Would it leave the UK outwith that agreement? Or would it leave us in some other position entirely?   Equally, were we to see a particularly emphatic “no” vote, could this be perceived as a mandate to “undo” some of the six-pack regulations or other legislation widely perceived as imposing “red tape” upon public bodies and employers? Given the contents of the recent Enterprise and Regulatory Reform Act 2013, it may not be a surprise if this were so.   So many questions – so few answers. Deciding how to vote in any such referendum is going to be challenging for anyone. To what degree it will be possible to make an informed decision about the issues potentially affecting personal injury litigation remains to be seen.   It can only be hoped that potentially significant changes receive the publicity and scrutiny that their significance would merit. Given the apparent lack of appreciation of the significance of the changes wrought by the Enterprise and Regulatory Reform Act 2013 prior to its coming into force, it does not seem to be inappropriately pessimistic to wonder whether this will in fact be the case.   Time, as ever, will no doubt tell…

Costs Budgeting: reforms on their way…

Jackson L.J. delivered a speech on costs budgeting on Wednesday. For many of us engaged in CCMCs who encounter inconsistency, courts overwhelmed by the volume of hearings, unnecessary costs incurred and often the thinly disguised frustration of judges with the process, his conclusion that ‘costs management works’, may come as a surprise. His proposals for reform, including fixed costs in some multi-track cases, may not. In his speech he gave 7 benefits of costs management (see below) but he also dealt with objections and problems and made recommendations. I pick out a few: First, he mentioned the costs of the process in low value multi-track cases which he defined as up to ‘about £50,000’. Leeds District Judges recommended fixed costs for such cases and Jackson L.J. endorsed the recommendation for fixed costs in the lower reaches of the multi-track ‘strongly’. Secondly, the issue of judicial inconsistency, unduly long hearings and micro-management he thought should be dealt with by better compulsory judicial training. Thirdly, the problem of the wide variation in the forms of costs management orders he recommended should be dealt with by a standard form of costs management order. Fourthly, he thought that the time for filing and exchanging budgets should be increased so that they are lodged 14 days before the CCMC although there must be a discretion for the court to specify a different period. Fifthly, he was of the view that Precedent H could be improved but he recognised that solicitors had been developing their IT systems for the purpose of completing Precedent H and therefore he did not want to make successive changes. Sixthly, the problem of delays and backlogs of CCMCs he thought should be tackled by repealing PD 3E which says that courts will generally make a costs management order under rule 3.15 where costs budgets are filed and exchanged. The PD should be replaced with a judicial discretion on whether to make a costs management order and criteria to guide its exercise. Seventhly, he acknowledged the backlog of clinical negligence cases in London and suggested that all London Clinical negligence cases with CCMCs listed between October 2014 and January 2016 be released from costs management and called in for short old-style CMCs. He thought a similar solution might be required in Birmingham and Manchester. Eightly, he addressed the issue of incurred costs and the practice of doing as much work before the CCMC in order to shelter costs within the ‘incurred’ column. He did not think that it was appropriate for judges at detailed assessments to treat absence of ‘comment’ on incurred costs as approval. He suggested powers to comment on incurred costs, summarily assess them or set a global figure for any phase to act as an incentive not to put forward excessive incurred costs. In clinical negligence cases he thought that there was a need to introduce pre-action costs management. Ninthly, Jackson L.J. expressed concern about the increase of court fees introduced in March 2015. He thought they should be disregarded when considering whether a party’s costs are proportionate. These are just some of the areas touched upon in Jackson L.J.’s speech which can be read in full by following my hyperlink. He ended his talk by arguing that Costs Management was in the public interest. He thought that lawyers disliked it because it meant more work and required us to develop new skills. He predicted that within the next 10 years costs management would be accepted as an entirely normal discipline and people would wonder what all the fuss was about. For the time being Costs Budgeting is here to stay – but reform is now overwhelmingly likely to occur and we can expect to hear from the Coulson Committee in due course on what form the new rules are likely to take.   The benefits of Costs Management (refered to above) Both parties to litigation know where they stand financially It encourages early settlement It controls costs from an early stage It focuses attention on costs at the outset It stops CMCs from being formulaic leading to debate about what is really required It is fair to give your opposition notice of what you are claiming It prevents losing parties from being destroyed by costs  

Insurers’ proposals for further reform to the PI sector

The Association of British Insurers' website recently set out its top 10 insurance and savings priorities for the next parliamentary session. The most striking of these for personal injury lawyers is the proposal for “Modernising the civil justice system to get compensation to claimants rather than lawyers.” The ABI fleshes this out by suggesting increasing the small claims track limit for PI claims, considering a reduction in the current 3-year limitation period and using fixed legal fees to address the rise in industrial deafness claims and ensuring people suffering from asbestos related conditions get compensation quicker. Another of the ABI proposals which would also affect the PI sector is a proposal for “Cracking down on the behaviour of Claims Management Companies” by requiring them to comply with a more robust regulatory regime and stopping nuisance calls and texts. Some consider that pressure from the insurance industry played an important role in bringing about some of the reforms which occurred in the last parliament. The themes in the proposals are familiar and are not new. Indeed the last government consulted on some of these matters. However the ABI clearly wants to keep these issues on the agenda and it will be interesting to see what pressure is exerted in the next parliament for further reforms which could have far reaching consequences for PI lawyers and litigants. The whole list can be viewed on the ABI Website

New law - fundamental dishonesty in PI claims

The government brought into force last week a new law preventing claimants from recovering damages for personal injury when they have been fundamentally dishonest, unless it would cause substantial injustice. In the case of Summers v Fairclough Homes Ltd  [2012] UKSC 26 the claimant was injured in an accident at work and claimed more than £800,000 from his employer. Surveillance revealed him to have grossly exaggerated the effect of his injuries. At trial he was found to have fraudulently misstated the extent of his claim but the judge declined to strike out his claim and awarded £88,716. The defendant appealed and the Supreme Court held that it had jurisdiction to strike out the claimant’s statement of case but that it would only be done in exceptional circumstances, not least as the judgment on liability amounted to a possession for the purposes of the ECHR. The claim was not struck out. Section 57 of the Criminal Justice and Courts Act 2015 looks as though it would have changed the outcome of Summers dramatically. Here are some of the ingredients and likely problems: ‘fundamental dishonesty’ - the defendant has to prove on the balance of probabilities that the claimant has been ‘fundamentally dishonest’  - a concept which the courts have been grappling with since its introduction in CPR Part 44.16(1) as an exception to the rules on qualified one way costs shifting. Considerable uncertainty remains as to the difference between ‘dishonesty’ and ‘fundamental dishonesty’. ‘primary claim or a related claim’ – the fundamental dishonesty must be ‘in relation to the primary claim or a related claim’. It will be interesting to see how far the courts will go in construing ‘a related claim’ which is defined at s.57(8) as “a claim for damages in respect of personal injury which is made (a) in connection with the same incident or series of incidents in connection with which the primary claim is made, and (b) by a person other than the person who made the primary claim.” ‘application by the defendant’ - the court cannot dismiss the claim under s.57 unless an application is made by the defendant for its dismissal. ‘substantial injustice’ – the court ‘must dismiss the primary claim’ unless satisfied the claimant would suffer ‘substantial injustice’ if it were dismissed. Again, it is not clear what the difference is between ‘injustice’ and ‘substantial injustice’. How is a judge to decide? Would the depriving a claimant of £88,716 amount to a substantial injustice? It is likely that the courts will want to give very careful thought to the needs of the injured claimant (care, economic etc) and consider how well they will be met in the event that the money is not paid over. What will happen to claims for gratuitous care which a claimant is supposed to hold on trust for the providers of that care? They may have nothing to do with the claimant’s dishonesty and yet might find themselves deprived of thousands of pounds for the hours they have given. I anticipate that a large body of case law will quickly grow up around this section. Recording damages – the court must record the amount of damages it would have awarded the claimant and then deduct them from the amount it would otherwise have awarded the defendant in costs. The dismissal of the claim under s.57 must be taken into account in a sentence handed down in any subsequent criminal proceedings S.57 only applies to claims issued after 13th April 2015. Mr Summers may well have been £88,716 poorer had this section been enacted prior to the issue of his proceedings. It will be interesting to see how often section 57 is pleaded and what the courts make of the concepts of ‘fundamental dishonesty’, ‘substantial injustice’ and ‘related claims’.

Personal Injury and the Party Manifestos

Is there anything in the parties' manifestos which might affect the field of personal injury? Reforms since 2010 include a new fixed costs regime, costs management/budgeting and greatly increased court fees. Civil liability has been removed for breaches of health and safety regulations. But what is being promised for the future? The Conservative Manifesto includes a pledge to reform human rights law. It would scrap the Human Rights Act and introduce a British Bill of Rights. The intention is that this will break the formal link between British Courts and the European Court of Human Rights making the Supreme Court the ultimate arbiter of human rights matters in the UK.  More is said in the section on the European Union: the Bill will remain faithful to the basic principles of human rights but “will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society.” The manifesto also pledges to continue “the £375 million modernisation of our courts system, reducing delay and frustration for the public.” A commitment is also made for an ongoing review of legal aid. The Labour Manifesto takes the opposite view on the Human Rights Act. It states that Labour would protect it and reform rather than walk away from the European Court of Human Rights. The manifesto is silent on what that reform would be. The manifesto also includes a pledge that access to legal representation would not be determined by personal wealth but would remain available to those who need it. The Liberal Democrat Manifesto states that the Liberal Democrats would protect the Human Rights Act and enshrine the UN Convention on the Rights of the Child in UK Law. It specifically states that the Liberal Democrats would take “appropriate action to comply with decisions of the UK courts and the European Court of Human Rights.” The Liberal Democrats have a commitment to introduce a Freedoms Act which would “cut back on the petty over-regulation of everyday life… permitting swimming in open bodies of water.” (Tomlinson v Congleton springs to mind…). They would “carry out an immediate review of civil Legal Aid… and court fees, in consultation with the judiciary…” They would “reverse any recent rises in up-front court fees that make justice unaffordable for many, and instead” spread the fee burden more fairly. They would also retain access to recoverable success fees and insurance premiums in asbestosis claims and where an individual is suing the police. There is also a pledge to support innovation like the provision of “civil justice online” and expansion of ADR. The UKIP Manifesto states that the burden of complying with EU laws on health and safety can be overwhelming for small firms. The manifesto has a commitment to repeal EU Regulations which stifle business growth. As to human rights, UKIP would remove the UK from the jurisdiction of the European Court of Human Rights and make the UK’s Supreme Court the final authority on matters of human rights. It would repeal the Human Rights Act and introduce a UK Bill of Rights which would complement the UN Declaration of Human Rights and “encapsulate all the human and civil rights that UK citizens have acquired under UK law since Magna Carta.” The Green Manifesto states it will “move towards a written constitution with a Bill of Rights” it also has a commitment to keeping the Human Rights Act and retaining the UK’s membership of the ECHR. There is a pledge to “restore the cuts to Legal Aid, costing around £700 million a year” although it is not clear whether this has anything to do with personal injury. It is interesting that none of the political parties have a commitment to reinstate civil liability for breach of health and safety regulations made under the Health and Safety at Work Act 1974.   Trivia Comparative lengths of the manifestos: Conservatives:                 84 pages Labour:                            86 pages Liberal Democrats:          158 pages UKIP:                              76 pages Green:                              84 pages   Commitment requiring more explanation: “Ban high-frequency Mosquito devices which discriminate against young people.” (Liberal Democrats)

Employer not liable for employee killed in air disaster

Yesterday, Mr Justice Coulson delivered an extensive judgment in the case of Cassley and Others v GMP Securities Europe LLP & Sundance Resources Limited [2015] EWHC 722 (QB), in which he dismissed the claim for damages brought by the estate of the Deceased (James Cassley) against his employer (GMP) and its client (Sundance), an Australian mining company, who chartered the ill-fated flight. This case was heard only weeks after the decision in Dusek v Stormharbour Securities LLP [2015] EWHC 37 (QB) in which an employer was found to be liable for the death of its employee on facts that were superficially similar to the present. The judgment is of significance to the developing field of employer liability in negligence for death of and/or injuries caused by third party carriers to its staff when engaged in overseas travel. In particular, the judgment provides guidance as to the standards of care that are expected, and perhaps more significantly not to be expected, from employers. GMP were successfully defended by John Ross QC and Kiril Waite instructed by Berrymans Lace Mawer LLP. In 2010, Sundance had approached GMP, who were the London division of a Canadian investment bank, with a view to retaining their services in raising capital for its mining project in Nabeba, Democratic Republic of Congo. The Deceased was a corporate finance executive employed by GMP. He was invited to join Sundance’s board of directors on a private charter flight from Yaoundé, Cameroon to an airstrip used by the mine project in the Congo. Tragically, the flight never reached its destination. The aircraft struck the side of a mountain ridge some 70km short of the airstrip and all aboard were killed. The claim against GMP was brought both for breach of statutory duty and in negligence at common law, based on the non-delegable duties owed by an employer to its employee. The central allegation in the case was that GMP made no risk assessment and no enquiries into the air carrier chartered for the flight. It was asserted that, had they done so, the results of those enquiries would have led them to conclude that it was not safe for the Deceased to have boarded the flight to the Congo. Moreover it was contended that the risk assessment for this one-off trip ought to have been undertaken by an aviation consultant or auditor who also would have known what enquiries to make.   On the undisputed facts, there had been a last-minute change in the air carrier for the flight to the Congo, which GMP did not know nor could reasonably have been expected to know. Accordingly any risk assessment or enquiries made would have been in respect of the original carrier. The factual matrix was complicated by the fact that prior to the Deceased boarding the flight, Sundance required that GMP sign a confidentiality agreement which included a clause that purported to require that it would indemnify Sundance for any injury or death caused to the Deceased. That agreement was never properly executed and not therefore binding. In closing the Claimants sought to advance a new case on causation based on this agreement, namely that no reasonable employer, who had been asked to sign such an agreement, would have permitted its employee to board the plane. Coulson J found that whilst GMP was in breach of its own internal health and safety policy and had failed to make any enquiries about the flight with Sundance, who were the flight charterer, these failings did not amount to an operative breach of duty. He rejected the contention that a company such as GMP ought to have instructed an aviation consultant from the outset. In his judgment Coulson J gives consideration to the types of enquiries that a reasonable employer should make, such as consulting the FCO website. However on the facts of this case, those enquiries would have made no difference to the outcome. Ultimately the claim against GMP failed on causation. There was no evidence before the court that the original air carrier, which GMP had expected would be used, was anything but safe. Even assuming that GMP had found out about the last minute change in carrier, the results from any enquiries that it could reasonably have been expected to make would have led it to reach the conclusion that the substitute air carrier was a safe carrier choice for this flight. The Claimant's new case on causation based on the confidentiality agreement was also rejected by Coulson J. It was a complete non-sequitur for an employer faced with such a document to simply deny its employee entry on board the flight.  The claim against Sundance also failed on the ground that, although Sundance had assumed a duty of care to the Deceased, it had undertaken reasonable enquiries into the suitability of the substitute carrier it selected for the index flight. Claims against employers whose staff are injured or killed in aviation disasters have become something of a burgeoning area in the arena of employer’s liability. This judgment will provide valuable guidance to those involved in this expanding field of litigation.  

Records of Inquest: the conclusion is... use your boxes correctly and keep it succinct

For those of you practising in coronial law, the Chief Coroner's Guidance No. 17 was published on 30 January 2015. It contains some useful and succinct guidance on short form conclusions and narrative conclusions, including: how and when they should be used (as alternatives or together); the correct approach to the three stages of the conclusion (i.e. fact finding, box 3 of the Record of Inquest and box 4 of the Record of Inquest); standards of proof; and a summary of the 'ingredients' of the common short form conclusions. The guidance is by no means a full and comprehensive review of the law, but it certainly provides clarity and is likely to be a useful reference when dealing with submissions on conclusions.   The guidance can be downloaded at http://judiciary.go.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/coroners-guidance/ 

“ .. Friends, Romans, personal injury lawyers ...!”

Or so Mark Antony might have said if Shakespeare had been around to reflect on the amendments to the CPR which come into effect on 6 April 2015. All the talk is of the changes to Part 36. But what of the new Part 87 which is being introduced as part of the continuing drive to replace Latin terms with simpler English language.   I confess to a fondness for Roman law having been made to study it as a student. I dutifully worked through “ius civile” (law of citizens), ius gentium (law of peoples) and other concepts. I learned about “ferae naturae-propter privilegium” (qualified property in animals) on which some modern legislation such as the Bees Act 1980 is based. Sadly I have not yet had the opportunity in practice to deploy this knowledge or what Justinian had to say about the sale of chariots and other “res corporalis”.   That is not to say that Roman law is irrelevant to personal injury lawyers.   Fairchild v Glenhaven Funeral Services Ltd and others [2002] UKHL 22; [2002] 3 All ER 305; [2003] 1 AC 32 is the seminal authority on indivisible injury in negligence cases. The claimants were negligently exposed to asbestos by multiple employers but were permitted to “leap the evidentiary gap” such that their employers were held jointly and severally liable.   Less well known are the references in Lord Rodger’s judgment to Roman jurisprudence and his observation [at §157] that “in a certain form, problems with unidentifiable wrongdoers had begun to exercise the minds of Roman jurists not later than the first century BC”. Lord Roger comments [at §158] on “D 9 2 51 Julian 86 digesta” written in the second century AD in which Julian discusses the “Lex Aquilia” and [at §159] on the later writer Ulpian in “D 9 2 11 2 Ulpian 18 ad edictum” both of whom considered the situation where a slave was killed by a number of people in such a way that it was impossible to say whose blow had caused his death.   On his way to finding causation proved in Fairchild, Lord Rodger notes [at §160] that “classical Roman jurists of the greatest distinction saw the need for the law to deal specially with the situation where it was impossible to ascertain the identity of the actual killer among a number of wrongdoers”.   The new Part 87 continue the process set in motion by Lord Woolf in June 1996 when he published his review of the civil justice system and writs gave way to claim forms, plaintiffs became claimants (although they remain plaintiffs in other jurisdictions such as Hong Kong) and hearings in camera would hence forth be hearings in private. Now, from 6 April 2015, habeas corpus “ad subjiciendum” becomes habeas corpus “for release”.   In “Beyond the Fringe” the great Peter Cook reflected that “I could have been a Judge but I never had the Latin for the judgin’”.   There is no longer any need for Peter or for others to worry.

Retiring gracefully ... and gradually?

Most personal injury lawyers think a lot about retirement. This can be their own, in my case usually when grappling with costs budgets, but is more likely to be that of the party whose claim they are advancing or opposing. The date of retirement is crucial to the value of a loss of earnings claim.   Most personal injury schedules claim full time working to age 68 or even 70. Most counter schedules contend for retirement at age 65.   However, new research shows the way people view retirement is changing. Nearly two-thirds of people aged over 50 no longer think that working full time and then stopping work altogether is the best way to retire and around half would still like to be in work aged between 65 and 70.   YouGov surveyed more than 2,000 retired and non-retired people aged over 50.   https://yougov.co.uk/news/2014/11/05/concept-gradual-retirement-attracts-non-retired-ad/   The survey showed:   39% of over 50s not currently retired said that working part time or flexible hours before stopping work altogether would be the best way to retire. 48% of those under 65 and not currently retired would still like to be in work between 65 and 70. 36% of retirees say their advice to others would be to “consider switching to flexible or part time work for a period first” before stopping work altogether. 33% of those over 70 and still working said they did so because they enjoyed it.   The survey also suggests that some non-retired people over 50 both in and out of work were ready to learn new skills. Nearly half (47%) said they were interested in attending training courses to learn new or to update existing skills.   There are lessons here for both schedulers and counter schedulers. An absolute retirement age of 65, 68 or even 70 may now be unrepresentative. Gradual retirement is increasingly the trend at least in England and Wales.   In “The Later Years of Thomas Hardy” (Macmillan, 1930), Florence Emily Hardy reports the author’s observation that:   “The value of old age depends upon the person who reaches it. To some men of early performance it is useless. To others, who are late to develop, it just enables them to finish the job”.   I cannot promise still to be working beyond age 70. If I am, I can promise it will not be on costs budgets!  

Holding out for the Heroism Bill

The Social Action, Responsibility and Heroism Bill (dubbed by some the “Sarah Bill”) is being returned to the House of Commons, with amendments, following its final reading in the House of Lords on 6 January 2015. The much-maligned and exceptionally brief Bill seeks to introduce a requirement that courts deciding negligence and/or breach of statutory duty cases and in determining the standard of care give consideration to whether the activity or omission complained of was for the benefit of society, whether the person carrying out the activity demonstrated a “predominantly responsible approach” in protecting a person’s safety or other interests and whether (in emergency situations) the person intervened “heroically”.   Clause 4 in particular makes clear that the Bill is aimed predominantly at personal injury cases, although it will apply to non-personal injury cases. Critics of the Bill have suggested that it is largely being promoted by the Government to further protect employers and to appease the insurance industry. Indeed, the Bill has been criticised on several grounds, mostly as being a mere publicity stunt by the Government but also for its vagueness. The Sarah Bill is designed to afford greater protection to volunteers and employers who might otherwise be deterred from performing worthwhile deeds or organising events due to the risk of finding themselves on the end of a negligence claim. The Bill survived an attempt in December 2014 at the Second Reading to remove most of its (four) clauses. At the Third Reading, clause 3 (the social responsibility clause) was amended such that (in assessing the standard of care) the individual’s approach towards protecting the safety and interest of others must have been “predominantly”, rather “generally”, responsible. Clause 4 was also amended, removing the words “and without regard to the person’s own safety or other interests” to make clear that the clause applies equally to those cases where the person (sorry, hero(ine)) assess  the risks to their own safety or other interests before intervening (as well as those where they did not assess the risks). The amended Bill will be considered by the House of Commons on 2 February 2015. If the Bill is passed, there are potentially difficult questions for the judges on the ground to answer. The Bill is somewhat unhelpfully brief and uses terms which are somewhat “foreign”. The first difficulty is going to be determining when a defendant’s action was “for the benefit of society or any of its members.” The clause has a potentially enormous scope. Employers, particularly in the public sector, are likely going to try to fit themselves under this clause. But even if they do, you may well ask, so what? It is only a factor for the judge to consider and is by no means a defence. There is no indication of what weight, if any, judges will place on this factor. Judges will also have to decide on what is meant under clause 3 by a “predominantly responsible approach” in protecting the safety or other interests of others. Again, the potential scope of the clause is vast. Will it apply, for instance, to all medical professionals? Will it apply to any attempt by an employer to introduce some health and safety measure? And what is the tipping point for an approach to be categorised as “predominantly responsible”? There is potential for a stream of cases on that issue alone, unless of course there is a judicial reluctance to engage with the clause and it goes the way of section 1 of the Compensation Act 2006. It is also questionable how many cases will fall under clause 4 (the heroism clause). But for those that do, what do we mean by acting “heroically”? This is an entirely foreign legal concept and is open to a sliding scale of judicial interpretation.  Are doctors acting “heroically” in emergency situations or will the clause only apply to the volunteer, have-a-go hero(ine) which the Government seems to have intended? The Bill, as is stands, is brief, vague and uses terms to which the legal world is not accustomed. Although cases might throw up interesting questions on how to interpret the Bill, one has to wonder whether it will all be for nought. Chris Grayling MP himself has said, "The bill will not change this overarching legal framework, but it will direct the courts to consider particular factors when considering whether the defendant took reasonable care." If judges do not engage with it or consideration of these particulars factors makes no material difference in practice, will defendants even bother to try to fit their cases under one of the clauses? Much like section 1 of the Compensation Act 2006, it will be judicial appetite that determines how effective the Bill’s clauses become. Given the criticism of the Bill in judicial circles, do not expect that appetite to be very strong.