LPC Law Notes Personal Injury and Clinical Negligence Notes
A collection of the best LPC Personal Injury and Clinical Negligence notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Personal Injury and Clinical Negligence notes available in the UK thi...
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ROAD TRAFFIC ACCIDENTS
CASE ANALYSIS
Common law negligence: the claimant will need to show:
Duty of care – one road user to another (Donoghue v Stevenson)
Legal and factual basis
Standard of care – that of the reasonable careful driver (Nettleship v Weston)
Breach of duty such as
Driving too fast
Driving without paying attention
Driving whilst tired
Failure to maintain the vehicle
Relevant criminal convictions? See p. 27
Vehicle maintenance
Poor driving – speeding, dangerous driving, careless driving
Influence of alcohol or drugs
Use of mobile phones
Wearing of seat belts and child restraints
Wearing of safety helmets
Breaches of Highway Code?
Res ipsa loquitur – burden of proof remains on the claimant throughout but applies where
Incident would not have occurred without negligence AND
Whatever inflicted or caused the damage was under the sole management and control of the defendant
Causation
Reasonable foreseeability
Consider contributory negligence – p. 30
Possible parties
Drivers
Passengers
Pedestrians
Driver’s insurer
Driver’s employer (vicarious liability)
Motor Insurers’ Bureau (if defendant is uninsured/unidentified)
Highway Authority (where poor road surface/inadequate)
Early action – liability
Proof of evidence covering all basic facts from driver and other witnesses
Request documents from Defendant and Client (including vehicle’s MOT certificate, photographs of crash site, damaged vehicle etc. and Police Accident Report)
Other witnesses
Advise client on law, procedure and timescales
Case analysis
Visit site – carry out damage assessment by mechanic
Highway Code
Relevant previous convictions?
Is the insurance policy valid?
Strategy for bringing/defending claim and estimate cost (provisioning)
POLICE ACCIDENT REPORTS
See reports in file. BE SPECIFIC ENOUGH about the details in the police accident report.
MOTOR INSURERS’ BUREAU, SS. 151 AND 152 ROAD TRAFFIC ACT 1988
Insurer’s grounds to avoid paying out insurance claims
Insurers normally insert a clause in the insurance contract allowing them to initiate/defend proceedings in the name of the insured – this is called subrogation
Sometimes the defendant will have insurance, but the insurer has grounds to avoid it if:
Defendant has breached the terms, such as
Driving drunk
Failure to disclose previous driving offences OR
The driver of the vehicle was not insured to drive it, such as
Family/friend of policy holder drove, with/without permission
BUT the claimant should NOT be dissuaded from issuing a claim as s, 151 RTA 1998 will oblige the insurance company to pay out on the judgment to the claimant if
notice of the proceedings is given to the insurer before or within 7 days of commencement of the proceedings AND
the driver is identifiable
Under s. 151(4) there is an exception in relation to third parties who were
willing passengers in a vehicle they knew or
had reason to believe had been stolen
Under s. 154, where an accident has resulted in personal injury, all drivers involved must supply details of their insurance to others involved in the accident
It is a criminal offence to refuse or to give false information
The Untraced Drivers Agreement 2003
This applies where:
The death of, or bodily injury to, a person or damage to property of a person has been caused by, or arisen out of, the use of a motor vehicle on a road or other public place in Great Britain AND
The event giving rise to the death, bodily injury or damage to property occurred on or after 14 February 2003 AND
The death, bodily injury or damage to property occurred in circumstances giving rise to liability of a kind which is required to be covered by a policy of insurance
Claimant must make an application in writing to the MIB signed by applicant/solicitor
Must be within 2 years
Must prove negligence
Must have reported event to the police
If he/she/solicitor does not sign, the MIB can refuse to accept it – clause 4(2)
MIB must only make an award if satisfied, on the balance of probabilities, that the damage was caused in such circumstances that the unidentified person would (if he had been identified) have been held liable to pay damages
Where MIB decides to make an award, it shall pay it within 14 days of written confirmation from the claimant that he accepts the award
MIB shall award a sum equivalent to the amount which would have been awarded to the claimant for general and special damages if the claimant had brought successful proceedings against the unidentified person
MIB adopts the same method of calculation of damages as the court – clause 8
Exclusions apply where:
The person suffering death, injury or damage was voluntarily allowing himself to be carried in the vehicle and before the commencement of his journey in the vehicle (or after such commencement if he could reasonably be expected to have alighted from the vehicle) he knew or ought to have known that the vehicle:
Had been stolen or unlawfully taken OR
Was being used without insurance OR
Was being used in the course or furtherance of crime OR
Was being used as a means of escape from or avoidance of lawful apprehension
The property which has been damaged was insured and the applicant has recovered the full amount of his loss from the insurer
The claim is for damages to a vehicle and at the time that vehicle was uninsured
This prevents an applicant benefiting from the 2003 Agreement when his own vehicle was being driven unlawfully
Requirements
Normal limitation periods in the limitation Act 1980 apply
The claimant must have reported event to the police no later than – clause 4.3(c):
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Buy the full version of these notes or essay plans and more in our Personal Injury and Clinical Negligence Notes.
A collection of the best LPC Personal Injury and Clinical Negligence notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Personal Injury and Clinical Negligence notes available in the UK thi...
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