12 days of Christmas updated for modern times

From Mashable 24/12/13:

It was all going so well until “1 creepy elf on a shelf”. 

What’s that all about?

Personal Injury Compensation Claims – be aware of the time limits or risk losing out

Guest PostIn the UK, there is a general time limit of three years in which a personal injury claim for compensation must be made. If proceedings are not started in a court within this time frame, then the case becomes statute-barred and cannot be pursued.

Usually, the three year timeline starts either from the date of the accident or from the date that the person becomes aware that the injury is linked to the original incident. This is referred to as ‘the date of knowledge’. This ‘date of knowledge’ can be extremely useful for cases that involve exposure to a toxic substance, such as asbestos which may not reveal itself until decades later.

However, there are some variations about when the time limitation is set. For example, in fatal cases, the three year limitation begins from the date of death or from the date the death was linked to the original incident, be it an accident or exposure to a toxic substance. In addition, if a person dies part way through making a claim for compensation, the three year deadline begins from their date of death, enabling their family to continue with the claim if they wish to.

There are special rules too for children and for people being treated under the Mental Health Act (1983). In such cases, the time limit does not begin until their ‘legal incapacity’ is removed. For a child, this is at eighteen years old and for a patient being treated under the Mental Health Act, the date of their discharge. The three year time limit still applies. Therefore rather than having three years from the date of the accident in which to pursue a claim the law states that a ‘child’ has three years from the date of their eighteenth birthday, that being the age of maturity, in which to bring a claim. Their claim, therefore, must have either settled or court proceedings have been issued before the child/adult reaches the age of twenty one. This rule gives the parents or guardians of the injured child a choice, at the time of the accident, as to whether to pursue a claim immediately (and have any compensation awarded to the child placed in a court fund until the child reaches the age of eighteen) or to wait until the child reaches the age of maturity and let them make their own decision as to whether to pursue a claim for compensation for the injuries they sustained as a child.

A peculiar anomaly to this is if an accident occurs on an aircraft. The limitation period in this instance is only two years from the date of the accident.

In order to minimise the risk of your claim being prevented in law from being made due to the statute of limitation it is advisable to seek legal advice from an expert personal injury solicitor as soon as possible after the accident. Similarly, if a child has been injured it would be beneficial for the parents or guardians to talk through the options with a solicitor who specialises in child injury claims so that they are clear about what action they need to take.

For those who have had the misfortune to be in an accident or have been exposed to a toxic substance, it is also a good idea to seek legal advice at the earliest opportunity. In this way the injured party can avoid the risk of becoming statute-barred and have the best chance of making a successful claim for compensation.

Close Thornton Solicitors have a team specialising in personal injury claims. For further information, please contact Shaun Burke on 01325 466461 or email shaun.burke@close-thornton.co.uk

How to Budget for a Court Case

Guest Post

On the 1st of August 2013, High Court judge Master McCloud cut to the root of the issue regarding budgeting for civil litigation with these words.

“Budgeting is something which all solicitors by now ought to know is intended to be integral to the process from the start, and it ought not to be especially onerous to prepare a final budget for a CMC (Case Management Conference) even at relatively short notice if proper planning has been done.

The court must now, as part of dealing with cases justly, ensure that cases are dealt with at proportionate cost and so as to ensure compliance with rules, orders and practice direction. The stricter approach under the Jackson reforms have been central to this judgment.”

Following the new funding rules implemented by Lord Justice Jackson on the 1st of April 2013, civil procedures follow new guidelines and requirements regarding funding.

These new guidelines and procedures essentially state that:

1. Each party involved in civil litigation needs to prepare a costs budget for the case in a standardised form, which includes estimated future litigation costs.

2. Before (or during) the first case management conference, the court will review and approve the costs budgets submitted by both parties.

3. As the case progresses, the court will ensure that both parties comply with the agreed upon costs budgets.

Given that over five months passed between the implementation of the new funding laws and Master McCloud’s statement, it’s far from shocking that Master McCloud is taking such as strict and straightforward approach to their endorsement.

The majority of lawyers have been aware of these laws since 2010, or at least their coming. The lawyers for Andrew Mitchell MP – the former chief whip whose libel case against News Group Newspapers stalled due to a budgeting issue – learned the importance of complying with the laws the hard way.

While leave was granted in this case and the lawyers eventually filed a costs budget for the case, the notable issue makes it clear that the court system is taking a strict and focused approach to budgeting and costs management. This approach is being used already in the Technology and Construction Court and Mercantile Courts.

One of the major objectives of the reforms was to control the large increase in the cost of litigation. Uncertainty regarding costs, particularly the total fees a client in any court case could end up paying, was also an issue. The new rules require that costs are reasonable compared to a claim, making it significantly simpler for potential litigants to prepare a realistic budget for their cases.

As budgets are agreed upon early in the case – in some cases, six weeks before the first case management conference – clients can enter their cases knowing, to a far greater degree than before, what their potential costs may be. Both parties benefit from this and are able to enjoy a greater level of confidence regarding their case.

With these laws now almost nine months old and Master McCloud’s statement over five months old, it’s very unlikely that solicitors should expect a degree of flexibility if the rules are broken. When followed and enforced properly, these laws give both clients a heightened level of confidence and clarity regarding case budgeting.

This article was written by Vannin Capital. Visit their website to learn more about legal funding options in the UK.

Goodwill to all: charity volunteer assaulted over Christmas greeting

From Las Vegas CBS Central 17/12/13:

A Salvation Army bell ringer claims she was assaulted by a woman for saying “Happy Holidays” instead of “Merry Christmas” outside of a Walmart.

Kristina Vindiola was ringing a bell outside of a Phoenix-area Walmart when she said “Happy Holidays” instead of “Merry Christmas” to a woman.

“The lady looked at me,” Vindiola explained to KNXV. “I thought she was going to put money in the kettle. She came up to me and said, ‘Do you believe in God?’ And she says, ‘You’re supposed to say Merry Christmas,’ and that’s when she hit me.”

What the woman did next caught Vindiola by surprise. She told KNXV that the woman hit her in the arm and proceeded to go inside the store to shop. Vindiola told a manager who called the police.

The surveillance video didn’t have enough evidence for Phoenix police to arrest the woman accused in the assault. However, Vindiola said she plans to take legal action.

As a non-American, I’ve always found the expression ‘Happy Holidays’ to be a little odd.  But, come on: punching someone because they used that phrase is a touch OTT – even in America.  

Why is it the original values behind celebrating Christmas seem to grow scarcer (and more alien to the modern world) as each year passes?

Festive Makeovers and Choosing Christmas Trees

Law Actually has been given its annual festive makeover today. I made a conscious decision to try and keep the design at the minimalist end of the spectrum, steering well clear of my usual tendency to use a hotchpotch of ill-suited colours and elements.

Quite where it ranks in the all-time list of Law Actually headers is anyone’s guess but it’ll do.

The house decorations are proving more of a headache. Rather unwisely, we decided to head out to B&Q* yesterday evening to pick up our Christmas tree. It was dark, blowing a gale and bucketing it down – hardly conducive to picking the perfect tree.

In all the circumstances, I thought we’d done a pretty good job of selecting a nice looking and well-proportioned specimen. Having successfully manhandled it in and out of the car, we duly plonked the tree in the shed overnight (without a bucket of water I might add – it, like us, was wet enough already).

Anyhow, I had quite a shock this afternoon when I took it out of the shed to erect the fine-needled beast in all its glory.

As Christmas trees go, it’s been blessed with looks only its mother could love. Darkness, wind and rain aside, I’m still rather bemused how we managed to overlook the fact its trunk is about as straight as quasimodo’s back.

Still, it’s got character, I suppose.

We haven’t had chance to decorate it yet – that delight awaits us later on this week.

Just like every other year, I had to look online to remind myself of the recommended method for trimming a Christmas tree’s trunk to aid optimal water absorption.

It seems that 90 degrees is the generally favoured approach. Although some recommend cutting the trunk at a shallow angle for maximum surface area, angled cuts seem to have fallen rather out of vogue.

So there you go.

^{*Other DIY and hardware stores are available. Consult your yellow pages the Internet. :p}

Victim of tragic paddling pool horseplay stunt has claim dismissed

From the Huffington Post 06/12/13:

A student who was left tetraplegic after horseplay in a paddling pool has lost his damages claim against one of the UK's leading drama schools, which he said was to blame for the accident.

Andrew Risk had reached the last day of his second year of a scenic arts degree at Rose Bruford College in Sidcup, south east London, when he took a long run at a large paddling pool filled with water to a depth of about two-and-a-half feet and dived in, hitting his head on the ground.

Mr Risk, 25, […] suffered immediate loss of sensation, was unable to move, and had to be supported by fellow students to enable him to breathe until he could be taken to hospital.

Now in a wheelchair and needing 24-hour care, he claimed his injury in June 2009 was caused by a breach of duty of care or negligence on the part of the college, which denied liability.

Today, Mr Justice Jay said that Mr Risk had not succeeded and, even if he had, he would have found him 75% to blame for the accident. [In short] the college did not owe a particular duty to protect the claimant from the risk he took.

On the facts of the case, [the college] did not assume responsibility for Mr Risk's safety and his accident was not reasonably foreseeable.

Cases like this are always difficult. Indeed, as Mr Justice Jay noted:

"On a human level, I regret the conclusion that I have reached, but to my mind the legal principles are clear and the weight of authority overwhelming."

Utterly tragic.

One question, though: have you ever known a claimant’s surname to be more apt?

High Court Judge Blasted After Comments on Marriage

From the London Evening Standard 09/12/13:

A high Court judge who said people wanting children should get married had his comments dismissed today as “patronising irrelevance”.

Labour MP Graham Stringer said the comments by Sir Paul Coleridge were not helpful for young people thinking about how to plan their lives.

His attack came after Sir Paul said people had “no right to have children” but only “responsibilities”.

The truth hurts, but it doesn’t do to shy away from it.

Mr Stringer said people should not automatically equate marriage with stability and added: “Telling young people whether they should marry or not doesn’t help — it’s patronising irrelevance.”

Granted, marriage isn’t a panacea, but the statistics speak for themselves. And whilst children can be successfully brought up in family units of all shapes and sizes, I think there’s still a lot to be said for the conventional structure.

But regardless of your views on marriage or how best to bring up children, anything which gets potential parents to stop and think for an extra second about all that’s entailed in parenthood can be no bad thing.

Sir Paul made his comments after the Marriage Foundation think-tank published research suggesting children born out of wedlock were twice as likely to suffer a family break-up.

And official figures show the proportion of children born to unmarried mothers in England and Wales reached a record 47.5 per cent last year.

Sir Paul was reported as saying: “There is this idea out there that it doesn’t make any difference whether you cohabit or marry. No it doesn’t — except that one tends to last and the other tends not to last.”

He went on: “If your relationship is not stable enough to cope with children you should not have them. You have a responsibility — you have no right to have children, you only have responsibilities if you have them.”

Well said that man.

‘Spike Away’ vest turns commuters into hazardous porcupines

From the Huffington Post 04/12/13:

Sick of your face being shmooshed into someone's armpit? Your head being used as a book rest? Feeling violated before you've even got into work?

Err, yes, yes and yes.  On a daily basis.

Cramped commuters of the world rejoice, a young designer has come up with the perfect solution.

Siew Ming Cheng has evidently had enough of rush hour on the Singapore subway.

Those space-invading commuters have brushed up against, knocked and pushed her one too many times, and now the young creative is declaring war on space snatchers with special body armour: the Spike Away vest.

Explaining her idea she said: "A quick brainstorming leads to a everyday situation. Trains are usually crowded during peak hours. Everybody will push each other to try and get onto the train.

"How can I protect my personal space? The idea was then conceived. 'What if I wear a vest that is full of spikes?'"

Yikes. That really could have someone’s eye out!  Just look at the reaction of the chap on the left. Pictures really do tell a thousand words.

Plus, wouldn’t it make it tricky to wear back-pack or other shoulder bag?

Quirky though it is, I fear the Spike Away vest may never make it past the ‘proof of concept’ stage. Every time it’s used, the wearer is potentially inviting dozens of personal injury claims being brought against them, not to mention the risk of being dragged off the train or bus head first and given a thorough beating.  Have you seen some of the people travelling on the tube?!?

And whilst it might help to encourage some people to keep their distance, the vest doesn’t appear to offer much protection from opportunistic gropers on the prowl.  ‘Bum grazing’, as I’ve heard it called, is rife on on the underground!

Why law schools should teach humility

Because otherwise they might churn out graduates capable off this type of nauseating display of pomposity.

I’m assuming it’s a law student in private accommodation. Please don’t tell me it’s a trainee solicitor!

The full, painful text is as follows:

Dear Neighbours,

My name is [blank] and I live in Flat [blank] on the [blank] floor of [blank]. As Saturday is St Andrew’s Day, I will be throwing a small party at my place to celebrate the day with friends. My guests are expected to arrive soon after 20:00 and leave before midnight. I will do my best to keep the noise levels down, but, as accommodating to everyone’s idea of what noise levels should be during a party is not always possible, I apologise in advance for any disruption that may be caused.

If any problem arises during that time (or if you think I should be kicked out of the block straight away), please do not hesitate to:

(a) Contact me directly on [blank] as I will do my best to solve it immediately.

(b) (i) As people expected to turn up are lawyers-to-be and trainee solicitors, I suggest you don’t try calling the police, since they probably know the law better than you.

(ii) If you are a lawyer, please refer to section (a) above.

Knowing many of you are going away for Christmas, I would also like to seize the opportunity and wish you a very Merry Christmas, full of love, family memories and understanding (noisy neighbours included).

Thank you in advance for your cooperation.

Best Regards

[Blank]

Seize the opportunity and wish them a merry Christmas?  I bet the neighbours in question want to seize him or her by the neck!  (Something tells me it was a male who wrote this – and probably a male with ‘small man syndrome’.)

The clincher for me, though, was the capitalised R in “Best Regards”.

Found here.

PCSO takes a tumble and sues

From the Metro 29/11/13:

A police community support officer (PCSO) is suing the owner of a derelict school building after she tripped and injured her knee while responding to a report of a break-in.

Pauline Harrison, 53, […] sent a letter to landowner Lightflask Ltd alleging that the firm failed to display warning signs outside the property […].

She says she suffered ‘soft tissue damage’ to her right knee when she fell over the 3ft high wooden fence in 2009 and is also claiming for a £14 prescription and £102 physiotherapy charge.

That’s not a prescription for spectacles, right? Just kidding. But perhaps the biggest question in all this is exactly how a person is able to fall over a 3 foot high fence in the first place. That’s quite an achievement.

Merseyside Police said they did not approve of the claim but that it was a private matter for the individual.

A spokesman for Lightflask Ltd has warned that this could set a dangerous precedent.

‘I don’t think people expect to be sued by somebody working in the police who claims injury in the course of their duties,’ he said.

People rarely expect to be sued, period. But it happens. Whether it should routinely happen in these types of situations brings public policy considerations into play.

‘Surely the nature of the job carries inherent risks and one obviously grows concerned that in this case the claimant is a community support officer and there must be a worry that these support officers may not be trained to the level of a regular officer.

Actually, I’m not sure that’s the point at all. The main point of the story, I think, isn’t so much that it involves a PCSO rather than a fully-fledged PC, but rather that this highlights the fact our emergency services are being increasingly litigious. But how concerned should we be about police officers regularly bringing claims against landowners from slip and trip injuries obtained whilst carrying out their routine duties? How many of these types of claims are succeeding? Is the law sufficiently sophisticated to properly consider the circumstances in which these injuries are occurring so as to give rise to a just result?

The police (and that includes PCSOs) are there to protect the public and enforce law and order. Like all emergency services, they are charged with responding to emergency calls in dangerous and difficult circumstances. Being in the line of danger unfortunately goes with the territory.

What’s more, it’s reasonable to expect police officers, including PCSOs, to be sure-footed, observant and capable of exercising common sense. But the scope of that expectation is necessarily affected by the prevailing circumstances in which that officer finds themselves. Clearly it’s vital for any claim brought by a member of the emergency services relating to an injury suffered whilst on duty to be assessed in the full and proper context in which it occurred. This means keeping the circumstances of their coming onto the land in question very much top of mind.

However, I think the law is already flexible enough to manage these difficult situations. Whilst landowners generally owe people who come onto their property (invited or otherwise) a duty of care to protect them from personal injury, that protection is subject to the rigours of the legal test for negligence. That test essentially considers whether a duty of care is owed to the claimant in the circumstances, whether that duty was breached, whether there was a causal connection between that breach occurring and the injury complained of, and whether the foreseeability of that injury occurring as a result of the breach was too remote.

In point of fact, in Higgs v Foster [2004] EWCA Civ 843, where a police officer in pursuit of a suspected criminal fell into an uncovered inspection pit at night, it was held that the landowner owed no duty of care to trespassers in the circumstances. This was because the landowner did not know, nor did they have reasonable grounds for believing, that a trespasser would enter his premises and come into the vicinity of the pit.

What’s more, in Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231, it was held that the duty owed to trespassers must be determined by reference to the circumstances at the time the alleged breach of duty resulted in the injury to the trespasser. For instance, injuries flowing from a police officer forcing his way onto property in hot pursuit of a suspected criminal might be treated very differently to injuries suffered by the same officer who carefully made his way onto open land, uninhibited by walls or fences, to carry out routine enquiries. Potentially, applying the requisite legal tests for negligence claims in both of these different scenarios could give two very different results. Put simply, the law is readily able to take proper account of the context in which claims arise.

So maybe these fears of claim-happy cops is nothing more than media scaremongering after all.

‘I think the public seem to be at risk of being on the receiving end of litigation every time an officer does his or her duty and more so if that officer is not full-time or has not received the level of training commensurate with the role.’

I don’t know the full facts here, but it seems strange to suggest that a greater level of training would have prevented this; I’m not sure that ‘climb carefully over 3 foot high fences rather than fall over them’ is a lesson offered at Hendon Police College.

Earlier this year, PC Kelly Jones dropped a compensation claim that she was seeking from a Norfolk garage after she tripped on a kerb.

I covered the original story on Law Actually; let’s overlook the fact I hadn’t subsequently heard the claim had been dropped.

Ahem.

Stupid article headline of the week goes to…

… the Guardian.
I understand the need for the media to come up with provocative, inflammatory headlines to drive readership, but when it crosses over into stupidity, it rankles a bit.

Yes, there are key human rights issues involved in deciding whether or not to let people smoke on hospital premises.  Yes, there might even be some limited merit to the argument that the short-term benefits of an occasional fag in stressful situations might somewhat mitigate the long term adverse effects.

But let’s not kid ourselves: the consequences to smokers’ health and, more perhaps more importantly, the very real harm caused by passive smoking (yes – even outside), far outweigh those considerations.

Sometimes people need more stick than carrot when it comes to helping themselves. I think this is one of those occasions.