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Journal of Personal Injury Law December 2017 Table of Contents Articles Liability Duties of Care Between Actors in Supply Chains James Goudkamp 205 Consent, Remoteness and the Prolonged Death of the Chester Exception: Diamond v Royal Devon & Exeter NHS Foundation Trust Fran McDonald 212 Quantum Why Should We and How Do We Support Injured Individuals Back into Work? Andrew Frank 217 Somatoform Disorders and Chronic Pain: A Practitioner’s Guide Daniel Lawson 229 Complex Regional Pain Syndrome Dr Christopher A. Jenner 235 Procedure ADR and Arbitration: The Alternative to Civil Litigation for Personal Injury and Clinical Negligence Claims Andrew Ritchie QC 238 Limitation (Childhood Abuse) (Scotland) Act Kim Leslie 247 Justice, Proportionality and Fixed Costs in Clinical Negligence Geoffrey Simpson-Scott 249 Case and Comment: Liability Dodd v Raebarn Estates Ltd C189 Various Claimants v Barclays Bank Plc C194 Baker v KTM Sportmotorcycle UK Ltd C197 Marsh v Ministry of Justice C201 PT Civil Engineering v Davies C205 Case and Comment: Quantum Damages Thomas V Hugh James Ford Simey Solicitors C210 Blackmore v Department for Communities and Local Government C212 Shaw v Kovac C218 Case and Comment: Procedure Howe v Motor Insurers’ Bureau C223 Blake v Croasdale C226 Vilca v Xstrata Ltd C232 Catalano v Espley-Tyas Development Group Ltd C238 Kupeli v Cyprus Turkish Airlines C242 Redman v Zurich Insurance Plc C247 General Editor Case and Comment Editor Colin Ettinger: Solicitor and Partner with Nigel Tomkins: Legal and Training Irwin Mitchell, London. Past President and Consultant. Consultant with Freeths Senior Fellow of APIL. Member of the Solicitors, Nottingham. Fellow and AC Personal Injury Panel. Specialities: Member of APIL. Specialities: Civil catastrophic injuries and occupational health Litigation, Personal Injury Liability and issues. Health & Safety Law. Editorial Board Mark Harvey: Solicitor and Partner at Hugh John McQuater: Solicitor and Partner at James, Cardiff. Fellow of APIL, member Atherton Godfrey, Doncaster. Fellow and of PEOPIL and UK member of the Board past President of APIL. Member of the Law of AAJ Governors. Specialities: Product Society Personal Injury and Clinical liability, travel and sports law and group Negligence Accreditation Schemes. actions. Specialities: Road Traffic Accidents, Employer's Liability Claims and Clinical Negligence. Dr Julian Fulbrook: Dean of Graduate David Fisher: Catastrophic Injury Claims Studies and Senior Lecturer in Law at LSE. Manager for AXA Commercial Insurances. He holds law degrees from Exeter, Responsible for AXA Commercial’s Neuro Cambridge and Harvard. He was a Wright trauma team that won the PI Team of the Rogers’ Law Scholar at Cambridge; a Year (Defendant) at the 2010 PI Awards. Canon Samuel Barnett Memorial Fellow at Advocates developing a more consensual Harvard Law School; Duke of Edinburgh approach to the handling of injury claims. Scholar at the Inner Temple. Member of Trust Mediation’s Advisory Council. Richard Geraghty: Solicitor and Partner Helen Blundell: Non-practising solicitor at with Irwin Mitchell, London where he is APIL. Consulting editor of APIL’s monthly also the National Practice Development publication, PI Focus. Specialities: Leader for Personal Injury Training and Interventions and judicial reviews on behalf Education. He is legal advisor to the Police of the association, the discount rate; Federation Health & Safety Committee and personal injury related HMRC issues, a member of APIL. Specialities: Serious Mesothelioma Act and related scheme; injury cases including spinal and brain infraction/complaints to European injuries, amputation and fatal claims. Commission. James Goudkamp: Barrister, 7 King's Bench Nathan Tavares: Barrister, Outer Temple Walk London. Fellow of Keble College and Chambers, 222 Strand, London. Member an Associate Professor at Oxford of the Personal Injury Bar Association and University. James holds or has held Professional Negligence Bar. Association positions at Harvard Law School, the Inner Judge of the First Tier Tribunal (Mental Temple, the National University of Health). Specialities: Catastrophic injury, Singapore, the University of Western clinical negligence. Australia, and the University of Wollongong. Speciality: Tort law. Kim Harrison: Principal Lawyer at Slater Brett Dixon Legal and Training Consultant & Gordon in Manchester. She was with Brett Dixon Training Ltd. Fellow and previously a Partner at Pannone LLP prior President of APIL, Member of the Civil to the merger with Slater & Gordon in 2014. Procedure Rule Committee. Specialities: She has published widely and appeared on Civil Litigation, Personal Injury Liability, TV and radio in relation to many of her Health & Safety Law, Civil Procedure and cases. Specialities: Abuse claims, inquest Costs. work, and chest and asbestos disease cases ISSN: 1352-7533 The Journal of Personal Injury Law is published by Thomson Reuters, trading as Sweet & Maxwell. Thomson Reuters is registered in England & Wales, Company No.1679046. Registered Office and address for service: 5 Canada Square, Canary Wharf, London, E14 5AQ. For further information on our products and services, visit http://www.sweetandmaxwell.co.uk. Computerset by Sweet & Maxwell. Printed and bound in Great Britain by Hobbs the Printers Ltd, Totton, Hampshire. No natural forests were destroyed to make this product: only farmed timber was used and replanted. Each article and case commentary in this volume has been allocated keywords from the Legal Taxonomy utilised by Sweet & Maxwell to provide a standardised way of describing legal concepts. These keywords are identical to those used in Westlaw UK and have been used for many years in other publications such as Legal Journals Index. The keywords provide a means of identifying similar concepts in other Sweet & Maxwell publications and online services to which keywords from the Legal Taxonomy have been applied. Keywords follow the Taxonomy logo at the beginning of each item. The index has also been prepared using Sweet & Maxwell’s Legal Taxonomy. Main index entries conform to keywords provided by the Legal Taxonomy except where references to specific documents or non-standard terms (denoted by quotation marks) have been included. Readers may find some minor differences between terms used in the text and those which appear in the index. Please send any suggestions to [email protected]. Copies of articles from the Journal of Personal Injury Law and other articles, cases and related materials can be obtained from DocDel at Sweet & Maxwell’s Yorkshire office. Current rates are: £7.50 + copyright charge + VAT per item for orders by post, DX and email. Fax delivery is guaranteed within 15 minutes of request and is charged at an additional £1.25 per page (£2.35 per page outside the UK). For full details, and how to order, please contact DocDel on: • Tel: 01422 888 019. • Fax: 01422 888 001. • Email: [email protected]. • Go to http://www.sweetandmaxwell.co.uk/our-businesses/docdel.aspx. Please note that all other enquiries should be directed to Customer Support (Email: [email protected]; Tel: 0345 600 9355). Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, or stored in any retrieval system of any nature without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material including permission to reproduce extracts in other published works shall be made to the publishers. Full acknowledgement of author, publisher and source must be given. Thomson Reuters, the Thomson Reuters Logo and Sweet & Maxwell ® are trademarks of Thomson Reuters. © 2017 Thomson Reuters and Contributors. Published in association with the Association of Personal Injury Lawyers. Editorial We have another interesting edition. Our first article “Duties of Care between Actors in Supply Chains” addresses the following scenario: Suppose that Company A requires certain goods for its business but, for one reason or another, it chooses to source them from Company B rather than to fabricate them itself. Company B tortuously injures one of its own Employees. If Employee cannot obtain an affective remedy from Company B for some reason, a claim by Employee against Company A is likely to be confronted with numerous difficulties. This issue has never been considered by an English Court. It has not been the subject of sustained analysis in this country either. This article, written by James Goudkamp fills this gap. An interesting case which was decided earlier in the year, relates to allegedly negligent spinal fusion surgery and the subsequent repair of a large incisional hernia, a fairly rare complication of spinal surgery. The case highlights the well-known difficulty in proving, with hindsight, that strong medical advice would have been refused, had a Claimant been properly consulted. The case is Diamond v Royal Devon and Exeter NHS Foundation Trust1 and Fran McDonald gives a very interesting analysis of this case. There have been many reforms to the court system in recent years and the recent proposals made by Jackson LJ, may result
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