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General liability newsletter - July 2020

Published on 07 August 2020

Welcome to the latest edition of our general liability newsletter, rounding up some of the key cases from the last few months.

This month we look at recent cases and government updates regarding: Ogden tables, fraudulent or exaggerated claims, consent orders, pre action disclosure applications and the vital importance of causation as an ingredient of negligence in addition to breach of duty.

Establishing breach of duty alone is not enough to establish liability: causation is also an essential element

In David Harris v (1) Bartrums Haulage & Storage Ltd (2) Paul Andre Rombough (trading as Par European) (17/04/2020) EWHC 900 (QB) QBD (Sir Robert Francis QC) the Claimant was an LGV driver who worked for the First Defendant. He drove a tractor unit to pick up a trailer which had been parked by the Second Defendant. The trailer was parked on a slight slope and in the process of connecting the tractor unit to the trailer, both ran over the Claimant, causing serious injuries. Investigations showed that the brakes of neither the tractor nor the trailer had been applied at the time.

Claiming against dissolved Companies – applications to restore to the Register are now more likely in historic low value claims

The Court encourages the parties in litigation to engage with each other with a view to resolving differences. Those supposed to be engaging and cooperating sometimes do not. This might be because engagement requires an openness that a party fears will reveal an apparently weak position, or will surrender an apparently strong position. Kevin Cowley v LW Carlisle & Co Ltd [2020] EWCA Civ 227 is an example of how a departure from pragmatism had far-reaching consequences for both parties.

Court of Appeal considers whether to revise the method used to calculate an award for the cost of purchase of alternative accommodation

The Government actuary’s use of negative multipliers for future loss has proved not to be good news for all Claimants.

Not quite the whole story...not quite all the costs

The issue of how to deal with fraudulent or exaggerated claims continues to exercise the courts.

Further court guidance on pre-action disclosure applications

The use of the pre-action disclosure procedure under Part 31 of the Civil Procedure rules is sometimes used as a method for trying to obtain information that might bolster a weak claim, and occasionally cynics have suggested it is sometimes merely used as a means to generate income for the applicant’s solicitors. 

Consent orders – the devil is in the detail

Surprisingly often, consent orders become the subject of later dispute. This probably happens because each party makes assumptions about what is being agreed, and those assumptions do not always coincide. 

Revised Ogden tables published

On 17 July 2020 the Government Actuary Department published a new edition of the Ogden tables, the 8th.