Looking back on 2023 & looking ahead to 2024 in ATE

This article is part of issue #3 of our ATE newsletter, EvaluATE.

Henrietta Hughes

Barrister

3PB

With the year gradually drawing to a close and a new year almost upon us, I have reflected upon some interesting and significant cases and developments during 2023, and considered some of those to look out for in 2024 in the road traffic and personal injury arena.

Denzil v Mohammad [2023]

In Denzil v Mohammad [2023], the difference between dishonesty and dishonesty that is fundamental was explored.

In his written and oral evidence, not elsewhere, the claimant asserted that he also suffered a head injury in a road traffic accident. However, injury was not proven and the claimant was found to have been fundamentally dishonest in relation to the primary claim, namely the head injury.

The appellant (claimant) contended there was nothing, or not enough, to prove any dishonesty was fundamental. Mr Justice Freedman concluded there was no scope to find that such a minor and very short-lived injury, not forming part of the pleaded claim, but referred to in written and oral evidence, could be properly characterised or understood as being fundamental or going to the root of the claim.

Ali v HSF Logistics Polska SP Zoo [2023]

The matter of Ali v HSF Logistics Polska SP Zoo [2023] considered the question of whether grounds of illegality and causation are independent of each other.

The claimant’s lack of MOT certificate and evidence of any intention to obtain one meant their credit hire charges claim failed for lack of causation (the first instance judge having rejected the defendant’s illegality defence).

The appellant’s (claimant’s) counsel asserted in his skeleton, “… the judge’s alternative ‘causation’ analysis was just ex turpi causa wearing a different dress”. However, Mr Justice Martin Spencer concluded that the judge had been correct, and that what was really being considered were two different forms of illegality.

Blair v Jaber [2023]

In Blair v Jaber [2023], Recorder Jack, whilst assessing PSLA, noted that:

• The current edition of the Judicial College Guidelines was published in April 2022;
• The JCG does not take future inflation into account; and
• They are just guidelines.

Recorder Jack considered that if there is a change in circumstance since publication – here, a very substantial drop in money since April 2022 – that is a matter to factor in when assessing damages. Here, the JCG was increased by approximately 12%.

I note that the current JCG introduction makes clear though that its figures are based on prices as at September 2021 – a hard copy of the JCG was not available to the Court. Furthermore, whilst this County Court case has attracted a lot of attention, it is also of note that the JCG introduction states that its figures should be increased by the appropriate index for inflation between editions.

Jenkinson v Hertfordshire County Council [2023]

Jenkinson v Hertfordshire County Council [2023] addresses medical treatment and the chain of causation.

The claimant suffered a fracture to his right ankle, and the defendant’s orthopaedic expert opined subsequent surgery was performed negligently. The defendant issued an application to amend their Defence, but it was refused

DJ Vernon considered there was an established rule of law that medical treatment of an injury caused by a defendant’s tort cannot break the chain of causation unless it is such grossly negligent treatment as to be a completely inappropriate response to the injury (the Specific Rule) and that there was no real prospect of the defendant establishing such negligence.

However, Mr Justice Baker concluded the Specific Rule does not exist as a principle of law. Without such constraint, Mr Justice Baker’s judgment was that there was a real prospect on the basis of that expert’s opinion, if accepted at trial, of a finding that the claimant’s initial injury was so badly mistreated that the defendant ought not, in fairness, be considered responsible for the consequences of that mistreatment.

Moreover, in any event, if the Specific Rule does exist as a rule of law, Mr Justice Baker found himself in disagreement with DJ Vernon over whether the defendant had raised a real prospect of success at trial.

And more to come

In addition, 2023 saw amendments to CPR 44.14 (Effect of Qualified One-way Costs Shifting) and the expansion of the fixed recoverable costs regime to encompass significantly more civil claims. 2024 will also see an expansion of fixed costs in respect of clinical negligence claims.

Towards the start of the new year the Supreme Court is expected to hear the appeal of Hassam & Anor v Rabot & Anor [2023]. Moreover, by July there will be the next review of the Personal Injury Discount Rate (dual/multiple). Watch this space…

This article was written for the DAS ATE newsletter, EvaluATE. The newsletter is our regular platform for providing insights to those in the PI and CN industries; you can read the rest of issue 3 at the link below. Don't forget to join our webinar on Wednesday 13th December to hear more from our contributors about the topics raised in this issue.

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