Hello, my name's Darren Hackley Green and this is film 11 in a series of 12 films in relation to Tort for the SQE course. Uh This film deals with the subject of personal injury claims. So let's look um at the SQ assessment criteria, we're expected to know in relation to um this area, very general um fizzles of remedies of personal injury uh and death claims I've dealt with fatalities as a separate film, that film 12, the last film in this series. So this um film deals with elements of personal injury. I've incorporated elements as well as jurisdictional or think you need to be aware of. Uh and also elements of different types of claims that provision or damages and periodical payments, all things I think which form part of the uh idea of what you need to be aware of in relation to personal injury claims. Again, specific considerations there in relation to sqe. So in negligence, the aim at the aim of the award of damages is to restore the claimant back to a position they would have been and had uh the accident not occurred very difficult to do that in a lot of circumstances. Certainly Miller had been very seriously injured, but that's the, the core principle there in relation to tort. So you've got full in hazard damage, which you could have in personal injury. They're split into two elements, special damages and general damages, special allies known as past pecuniary losses. In essence, the financial losses um that you can, uh, that you incur prior to the trial incurred up to the date of trial, um losses that you can point out and say, look, th that's my loss of earnings total of 20,000 pounds. That's the damaged items that were in the car when the accident occurred, an abrupt my iphone or whatever it may be past pecuniary losses, then general damages is basically everything else uh incorporates lots of different elements. Um The idea about general damages is they can't be valued or calculated precisely. There are certain formulaic approaches as to how we value them. We'll look at that in a little bit later. Um split into two general car um categories, non pecuniary losses, elements of compensation which incorporates the, the claims, pain, suffering and loss of amenity. So the actual injury itself, other elements included there as well and future pecuniary loss. So although future claims say for loss of earnings, et cetera, et cetera are obviously um set figures in this and you base it on our, I can't work at what was um I was working at before and therefore that is my ongoing loss of earnings claim. It's not treated as a past pecuniary loss because effectively it is yet to be incurred. And there are always factors to bear in mind in that sort of element. So that's still treated as a head of general dowry. It's a future pecuniary loss, right. We'll look at special damages first and looking at various different types of special damages and how they, how they work in in general terms. So, first off is loss of earnings claims. When you're calculating a claim for loss of earnings, you're looking at what's called the net figures, that's net of tax net of national insurance. And ie the sum that claimant would have received on a regular basis. So they would have been paid £2500 net per month. That is the loss of earnings, not the gross figure, which includes the elements of tax and national insurance starting point to work out what the claims, uh, would have received. Of course, is looking at, I mean, average, um, it may be, they're on one set wage is you get paid the same amount every month, no matter what, that's fine. It gets a little bit more complicated when you've got an employee whose, um, hours vary, the varies because of the requirements of the job. So, therefore what you'd look at doing is taking a, a mean average. Normally it'd look like a 13 week period, uh, on the run up to uh the ac accident itself. A and you know, 13 weeks add them together, divide by 13 brings up the mean average and that's the, the uh loss you'd look at that. It's a simplistic way of doing it often that isn't representative of the losses incurred. So it may be worthwhile, taking a greater period of time. That could be the case when there are um factors, seasonal factors relevant to someone's uh employment ie they earn more during the summer months and they do the winter for whatever reason. And, um, if you just set the 30 week period, it gives a bit of a skewed impression of actually what their loss of earnings is. Um, adjustments need to be made in relation to the potential pay increases. Of course. So if you've got an individual who has been injured as a result of the accidents, um, but on a regular basis, they would receive for the employer a 5% pay increase every year. That's what's happened for the past five years. And you don't just base it on the, uh, the past losses at the point of the accident, you have to factor in the fact that there would have been a 5% increase. Therefore, there is that, uh, incremental adjustment which needs to be made as you're moving through and calculating these past loss of earnings, often it can actually end up being quite complicated in relation to what you do. Certainly, it's more complicated when we've got elements of missed promotions or expectation of promotion during the period when the claimant has been off work. And the fact that they maybe that promotional abilities have been uh curtailed by the accidents or alternatively delayed. So there's a delay to, to maybe take a bigger jump up in the uh the salary than because of that promotion they would have had um in some circumstances, the claimant may have only just got their job, they've been in their work two weeks and the accident happens. So you can't base it on a 13 week, um, loss of earnings sort of position because that, that wouldn't tell you what they've been earning. Um, in that case, sometimes you can look at what's called a comparator. You find someone within that job that's in the same role the claimant's doing and utilize them and think. Well, let's look at what they earn over the past 13 weeks and utilize them as the, as if they were the claimant. And based upon that, uh, those sort of factors, lots of different issues, you need to bear in mind when it comes to loss of earnings in how you, how you approach it. The simplicity point, of course, is this, you know what's happened over the past 13 weeks. If they are in regular employ, employment, it gets even more complicated. Of course, if they're self employed, uh, you need to look at accounts tax returns, um you need to look at the thing about the period of time. Has a new business. Is there gonna be a period of growth? Has there been uh a period of leading for a new business? Whatever it may be, any other factors involved there. Um It may be in some circumstances, you need expert evidence from forensic accountants that will look at the nature of the losses incurred. Um The net losses incurred will also bear in mind and factor in the potential for growth of the, the business itself or for the claimants as a self employed plumber or whatever it may be and the potential for growth for that individual. So looking at rather than an employee position, incremental increases in wages, 5% every year, say in line with inflation, which isn't a lot of inflation, but as an idea, um but actually like looking at that sort of uh approach, but from a forensic accountant's point of view, assessing the nature of the evidence that's there and worst case scenario, we do have what's called the annual survey of hours and earnings called Ashy. Um We do utilize that on some occasions in essence what that is, it looks at um where you are and your sex and the job you do and the uh and the basic work you undertake and looks like an average earnings for that role, very generalized, very generalized. And there probably isn't the most concrete evidence you could get if you have an individual, maybe who isn't in work, who was looking to get into work as a certain profession then as she could be utilized. But a better ports of course, is to actually maybe that um, adverts for that individual's local area. What are they advertising for the, as the salary for the role that the claimant was going to look to get those sorts of things. It's more direct evidence of what the claimants are likely to be paid. But as she is at say, a good starting point to look at that in relation to the likely um earning capacity for someone in a particular role. Um clothing and personal effects, often we have situations where someone's involved in an accident and their clo clothes are damaged or their personal items are damaged. It's often the glitch, you know, someone's on the motorbike, they come from the motorbike often when they've been treated, they have to cut the jeans off the jacket off or whatever it may be or I think the bit gruesome, but the items are stained with blood or other um bubbly fluids. So therefore you can recover for, for those items. How it works in relation to personal effects is of course, elements of de that need to be borne in mind. So the idea is you have an accident, you're wearing a pair of Hugo Bos jeans and uh those jeans cost £100. However, you've had them for two years. Ok. So effectively, if you were to replace those jeans with a new pair of Hugo Bos jeans, you would do better than what you had prior to the accident. The, the law doesn't look at it that way you can't do that. The idea is put you back in a position you would have been in had the accident not occurred. So if you get a new pair of Hugo Boss jeans for the two year old pair you had over the time of the accident, you are doing better. You can almost gain a benefit from the accident and we're not allowed to do that. So how we reflect that is an element of betterment. So we reduce the um new value of the jeans um by a certain percentage to reflect the age of the item, not maximum 35%. Really say that example Hugo Boss jeans, you reduce it by 35%. He claims 65 quid for the um is that right? 65 quid. Yeah, for the uh for the jeans, it depends as well. So for example, if the jeans were a week old and it's ok. Of course you can actually have the the cost of the new pay, you really reduce it for um for for betterment because they're only a week old. Um and again, um I gave you the example of two years and the maximum of 35% if they're three months old then maybe betterment should be 15% as opposed to 35%. So it really just reflects, you have to look at the age of the item, the value of the item to replace it. And then you look at this element of betterment to reduce that item by medical care and expenses. Obviously, the claimant can recover, recover for any treatments. Um, they undergo as part of um, the, the injury duty, injuries they sustained in the accidents. It's um prescription costs. If you're outside of Wales, co you get them free in Wales, uh prescription costs in England. Um private care, be aware as well, the availability of free NHS treatment is ignored. So, um if you are injured, you don't, you're not obligated to undertake your um treatment on the NHS. Uh You can go private and recover the costs of that private treatment, elements of mitigation involved there. Of course. So for example, if you've got an NHS appointment for physiotherapy next week and you counsel it, so swap it for a private appointment next week, there may be an argument about why have you gone private when the NHS? He would have done the same job actually, but for free. Um But normally it would be a case of there's a lot of delay to the NHS treatment providing a provision. Um So what would happen is private treatment would be claimed and you don't need to utilize the NHS. There's certainly no obligation for that. We see that a lot with regards to surgery when the individual requires further surgery after the accident, sometime in the future, um claim it on a private basis so the surgery can be undertaken more quickly, the claimant can recover quicker. Uh And that of course, is good for the claimant but also good for the defendant cos it um a quicker recovery lowers down the compensation that they are going to be liable to pay also have care to individuals after uh an accident often uh require care that care is often provided by a relative. Um And therefore, um you can claim for the element of care, lots of things to think about in relation to care you. Um The individual who provides the care cannot claim the care. Ok? So that doesn't work that way. So although there will be a claim for the action that the third parties don't have any rights as a result of the person, you claim the cla the care is claimed by the claimant, the person who has been injured and how it works. They claim that care, the care that's been provided to them. Likelihood is creer by a relative. Um and they hold that sum which is paid for the care on trust for the person who provides the care ie so when the claims is paid the sum of money for the care, the claimant then repays the person who's provided the care to them that's where they hold on trust for the person who provided the care. That's how it works. You have to be very cautious by the way in relation to situations where the person who provides the care is actually the talk fees as well. You can see it say for husband and wife in the car, husband driving, wife in the passenger seat, husband's negligence causes an accident and the wife is injured, the husband provides the care to the wife. So don't forget. Of course, actually, if the wife claims for the care, it's helping trust for the husband, that means the husband is benefiting from his own negligence under his insurance policy, that's not allowed. So, in that situation of the care is provided, no care can be claimed because it's um claimed by the the tort fees of themselves. How do you value it? Then when it's gratuitous care? Um So you can look at the fact that they had a relative um has given up work um in order to care for the claimant, then it's a loss of earnings claim that can be uh that can be claimed. Um If it isn't, it's generally they've done the big takes from time to time off work. So it's appeared a loss of earnings, but also, then it's provided care when they're at home as best as they can. Um Then how the court looks at it is they take the usual uh value of care provided by a professional and they reduce it to somewhere between 20 30% that reflects tax n I traveling costs from workers would have been claimed by the professional, given the care. Um And also effectively that the professional care would have been more efficient than that delivered by the person who does it grater cos they're just a relative. You can also claim for diy gardening and housework services. Basically, you look at what the parties did before the accident. So if uh husband and wife did it on a 5050 basis and they, the wife's doing it on 100% basis. And then of course, the husband can recover arguably 50% of that uh work that's undertaken. Again. It's, it's a bit like care which could hurt us. It may be the fact that you um employ someone to do work instead say, for example, the husband used to do all the diy, the wife used to do all the diy. But now because the, the wife cannot do it anymore and the husband isn't good at that and can't do it. They have to pay someone to decorate the house or fix a plug or whatever it may be. Um That's a, a claim for professional services. So you just need the invoice. Um That's just been provided by the person who's undertaken the service and that is then claimed as part of your, your claim and your schedule of special damages. Assuming of course, it's a past loss. It can, of course, look at future claims for, um, for this sort of loss as well as for any of the losses that we've got here. Any of the losses can incur can be both past and also future traveling costs. Of course, um, if a claimant has been injured, they're gonna have to travel to various appointments for treatment, physiotherapy, hydrotherapy acupuncture or whatever it may be. I just back and forth to the hospital before they're discharged, back and forth to the GP for checkups and all those sort of things. So all chargeable um various ways you can look at it. It's either gonna be a set fee in relation to the taxi fare. So you keep the taxi receipts or if it's mileage because it's your own vehicle or someone else's vehicle. Generally, you look at claiming 45 pence per mile that looks at HMRC Lo employees to claim for business mileage. Um So 45 P per per, per mile up to 10,000 miles per year and 25 P uh thereafter, um often that's negotiable. It's not a set rate. Um in relation to the, the mileage, defendants will often argue it down to midway points. Um Just be aware as well, traveling to um medical legal appointments. So medical legal appointments are appointments with the experts who are going to um prepare a report in relation to that claimant. So an orthopedic surgeon who's going to be preparing a report for a claimant who has been injured. Uh So for an orthopedic injury, then um travel to those appointments aren't an element of special damage. They're an item of cost. So the claimant as part of the costs of the claim and not in your schedule of loss. Um, so that's special damages and you've got general damages as well. So these are some which are not um capable of precise mathematical um calculation divide into various categories. You've got pain suffering and loss of immunity, non pecuniary loss of the injury itself, um financial losses from the day of the trial. Um So there can be various different elements. So for example, uh future loss of earnings, which are some medical dispenses, future care, pension loss. We also have other various heads of general damages, what's called A Smith and Manchester Reward. It's a disadvantage on the open labor market, a loss of consumer employment claim, which is a loss of enjoyment of the job and we look at these separately now. So in relation to your PSL A, so your pain suffering and loss of immunity, be aware of the acronym by the way, um PSL, a very common um acronym to use in relation to general damages. So your injury itself and you may see the acronym uh used as part of um SQ as opposed to the, the, the full wording. So the idea about awarding that um header claimed is I did compensate the claimant for the pain and suffering due to the, uh the, the accident itself. Um that pain and suffering need not be physical uh as well. It can be mental injury or psychological illness as well. So, um or combination of the two, all obviously caused by the defendant's actions. Um Just be aware that's how that works. Damages for loss of immunity, pain, suffering and loss of immunity. You don't tend to see loss of immunity claimed as a separate head of claim unless there's something really particularly unusual about the immunity to make it so um prevalent, it's generally incorporated in the whole element of PSL A as a, as a global um uh sum. Um how, when it's calculated. Um So how do you go about valuing um a claimant's claim for pain, suffering and loss of immunity? Lots of different e uh evidence you bear in mind in relation to that. So look at the claimant's witness statements um that, that um sets out what the claimant went through, going through the limitations, how their life is now, how it was before the accident. Um The medical evidence is also essential, the medical evidence reflects in relation to where we are with regard to diagnosis, which will point you in the right direction. We're looking a minute with regard to valuations on certain injuries um and prognosis. So the prognosis is a period of time it takes for someone to recover but diagnosis and prognosis are essential considerations in relation to how to value a claim for general damages for pain, suffering and loss of immunity. So what are the factors you bear in mind the claimant's life prior to the accident that, that adding really to a loss of amenity claim, what they did and what they now can no longer do. That used to be a um water skier uh as a hobby before the accident. Now they lost a leg and can't do that. Although arguably you can still water ski to you with only one leg. But, um, something that maybe prevents your lessons and enjoyment of what you did before the accident. Uh The pain and suffering associated with the accident itself and the immediate aftermath of the nature of the injuries. Here's a time in hospital, number of nature, um, operations have been undergone the other medical procedures and the treatment that claim had to undergo a lot of treatment is painful, invasive. Uh uh You know, so you need to bear in mind all of those sort of elements cos that could increase the claim for, for general damages at the short term, long term prognosis. Will they recover in full? If not, what's the level of continuing pain, le uh level of continuing disability? How long? So they could continue any risks of future complications with regards to the injury, onset of osteo osteoarthritis, whatever it may be osteoporosis. Uh What has been and will be the effect of the years upon the claimant's life. All factors to bear in mind when you're looking at coming to a value in relation to general damages for pain, suffering and loss of immunity starting point. And we're looking at the injuries, of course, is thinking about it. What type of injury do we have here? Um And how do we, what's the starting point for that type of injury? What we refer to is the JC guidelines, judicial college guidelines. We're up to the 17th edition at the moment that will change as time goes on and these uh these sums are increased accordingly, they never decrease, they all go up in value and how the JC guidelines work is, um set out in chapters and set out with regards to various different injuries to different parts of the body. So it would be uh a chapter for orthopedic injuries, a chapter for brain damage, a chapter for um psychological injury. Let's just take orthopedic injuries. Um And, and I'm making up figures off the top of my head in relation to this, by the way. So say for argument's sake, you put a broken leg, ok? You'd look under the orthopedic section or big injuries, you'd go down to the limb itself. So leg, um and then you'd look at the different type of injuries. Sometimes you keep soft tissue, but no, we've got a fracture here. Look at the nature of the fracture and also uh the injury itself to determine what bracket you're looking at, you, then look at the prognosis period as well and what the, um, the JC guidelines do, it gives you say a different valuation depend on prognosis generally and of course, a diagnosis that type of injury, fracture, non fracture. So, um, say for argument, say, got leg, got fractured leg and then maybe it'll say full recovery within two years and then a bracket of say 5 to, to 8000 pounds. So that's when you fully recover within two years. And by the way, I'm making figures up by the way. So these aren't concrete figures at all just utilizing these just for an example. So full recovery within two years and you've got this bracket and say 5 to to 8000 pounds, what you look at, that's the bracket, it's gonna come in. How do you determine where it falls within that bracket? You look at the circumstances and think about right was a full recovery in two years but involved lots of invasive surgery, complicated treatments, significant impact on their life. So it pushes it up towards the higher end of the bracket. Alternatively, um, fracture for recovery in two years, not no surgery needed recovery period, fairly low, um level treatment required. And then of course, you go down towards the bottom end of the bracket and that's where the skills of the lawyers come in arguing the appropriate valuation for an injury within that bracket itself. And, uh, not only but you have arguments about within that bracket, you also have arguments about whether it's in the bracket of birth or the bracket below. So it goes into terms of like, you know, m, uh, moderate serious significant injuries. So the nature of obviously, again, uh, you, you look at, they, they often in the JC guidelines, a description about the different types, risk of onset of osteoarthritis, osteoporosis. Um, future generation need for future surgery or all factors that may push it into a higher bracket. Um And then you have the argument that when you, you have like, you know, 15 to 20 in relation to where it's going to be a permanent injury. But then, of course, are you looking at if it's permanent? What level of permanence is it in a sense of actually, how bad is it? Is it just something that's gonna have to get on with and they can still walk a bit of pain in the winter and it gets a bit cold, low level or is it significant, you know, they need um, aid and equipment and bathe to, to walk, et cetera, et cetera. And you, then you look at the brackets there as we do, we also have to help us at a, a term called Kemp and Kemp. Uh, and that looks at different types of injuries that have either been ordered by the court and valued by the court or agreed out of settlement, but the out of court but then reported within Kemp and Kemp and that specifies the nature of the claimants. The injury themselves gives a bit of detail and what's helpful as you say, you look under the leg injuries. For example, you find, oh, this individual, same age as your client, same sex as your clients, um same injury and actually same recovery period or that's they got 15,000 pounds. Therefore, that's a representative of what the claimants should get as in relation to this um accident. So you find injuries that are similar to yours or your clients should say and you utilize the that valuation to try and say that's what your client should receive for that accident. Kemp and Kemp as well, obviously has an uplift applied. So for example, you look at a case where, oh, that's what the client received and that's what um the um uh they got maybe they got that in 1990 but now with 2024 when I recall this film, um so what you're looking at is an inflation increase. There's a uh there's a uh a multiplier you apply to increase the sum that was awarded in 1990 to what the equivalent would be nowadays. And that's the figure you'd utilize. So lots of helpful stuff um to for first injury lawyers to help them understand the the value of the claim, another head of generalities is what is called a handicap or a disadvantage on the open labor market. It's commonly known as the Smith and Manchester Reward. Following the case of Smith and Manchester, I would be aware of all of the different um words utilized here or phrases utilized here to describe this Smith and Manchester Reward handicap on the open labor market disadvantage on the open labor market, they're all interchangeable um but they are exactly the same thing. So it's basically where a claimant's able to continue to work after an accident, but there's a risk that they may use their job in the future. And if they do, they're gonna be at a disadvantage to other people who haven't sustained the same injury. And so therefore that, that claimant is at a disadvantage and naturally, and that's the, the what you're looking at to try and compensate in relation to this head of claim. Um How do you do it? Well, you weigh it up in the sense of two elements, you look at the risk factor first is the claimant at the risk of losing their job. And arguably in today's society, the risk is always there. The risk may be more prevalent in certain areas. So if you work in the steel industry and you live in Wales, and it may be your, um, your risk is greater as opposed to maybe if you work for the NHS or a nurse, you work for the NHS where the risk is low that you're going to end up being made redundant by the NHS. We don't need nurses anymore. We got too many nurses, whatever it may be. Um And then if the, uh, you establish the risk, that's the first stage of the test, then you look at, if there is going to be a disadvantage that tends to come to medical evidence, uh, and what the medical evidence supports generally, um, it would be a fairly obvious if someone has a permanent injury, um, say for that would affect the way to do a job, say a nurse has got a permanent back injury. Of course, it's gonna affect the ability to do the job as opposed to arguably, maybe someone who has, I don't know, lost a finger. But um their job is data processing. So that's a computer and in essence, the loss of a finger has no relevance um to, to their role, maybe that, that, that's the fact that will be borne in mind. That's what you're looking at and that element of a disadvantage in relation to valuation of that very, very difficult. There's no set formula or science involved. You're looking at anywhere up to a two year net loss of earnings claim to uh in a lump sum to value that claim for the, the Smith and Manchester Award. The idea behind it, it sort of gives you a sum of money to enable you to go off and then retrain in a different profession. Um, uh, and that's the thought process behind it. So you can then get a job or a period of time when you're off work and when you're looking for work where you're not being successful because of the nature, arguably of your disadvantage. So you need more time off work and before you get a replacement role, that's the thought process behind it and also have claims to loss of conge employment. Uh These used to be, um, back in the day, I think only for those um sort of sexy jobs, you know, firefighters or maybe jobs that have a passion, nurses, et cetera, et cetera, not the case anymore. Uh In any situation, you may have a uh a position where your client really enjoyed the job. And if they know, can no longer do that job, there will be a claim for loss of congenial employment. It could be the effectively your clients um was a self employed plumber and they love the fact that they were self employed could make their own hours do what they like, they can't kneel anymore. So the idea of plumbing is out the window. So now the the job they've found is employed doing something else. Well, self employed you employed, there's the loss of, of the enjoyment. Um Actually you get it with like a lot of the common jobs like nursing and firefighting being a police officer, but there could be elements I've had it in cases where, um, I had a cameraman who could still do his job but could no longer fly due to risk of dvts and therefore lost the lovely per pathetic nature of going to different countries to take his work. That's a loss of employment claim. Um, if it's a claim where the job is really rubbish, in essence, it's repetitive manual or whatever it may be. And there's no element the court can think objectively as to whether there is enjoyment here, but then you won't succeed. Um With regards to the valuation of that lump sum, again, it's based upon sort of case law principles. What cases are similar, you're not really gonna get any more than five K with regards to something like that, anywhere between 2 to 5000 pounds really is a lump sum for a loss of consuming employment play. Of course, the more greater the enjoyment of the job, then of course, the higher the uh the award you may get some examples of where it goes well in excess of that, that the so an argument, a professional footballer who then actually loses the leg. Um You know, so effectively the loss of enjoyment of that role you would say is much more significant than what two and 5000 pounds could justify. There are going to be exceptions, but generally that's the bracket you're looking at. We also have future loss of earnings cos there as a non pecuniary loss for general damages. Um, it looks at, um, the, uh, risk or let's see what the claimant is has as an ongoing loss of earnings. It has it into the future. Um, court determines what the claimant would have earned, had they not been injured at the time the claimant would have already retired or for a specified period. Um, uh, if the claims are expected to recover sufficiently sufficiently to be able to work in the, in the future. So what you look at doing is we actually, it is calculated with like a lump sum method, but it's the calculation that we have to look at and think about when it comes to a future loss of earnings award. We at two elements, multiple accounts and multiplier and that assesses how this works. Um So what we look at and we're looking at these multiple accounts and it's multiplier, multiple accounts is your net um loss for the year. Ok. So, and it can work not just future loss of any care, you know, what's the net loss? But we look at that in a bit. Um But future loss of any, what is the net loss here? So for example, someone who maybe was a firefighter and has now lost both legs, um maybe they earn £40,000 net per year. The loss is 40,000 pounds net per year. You also have to bear in mind what's called a residual earning capacity to work out your multiple accounts often that's where the arguments come in in relation to personal injury with regards to the calculation behind the multiple accounts. So, argument's sake if you, um, have a firefighter who's left lost both their legs, so no longer can earn £40,000 per year in that role. Ok. Starting point. But does it mean that they are unemployable? Ok. They've lost both their legs. Does it mean they can't do any job at all? Could they? For argument's sake? Do uh a I mentioned a data processing job um sat at a desk, yes, massive uh loss uh difference with regard to pay, but also enjoyment in relation to the job. Completely understandable. But then of course, we've got a separate head of claim for that loss of enjoyment. It's a loss of continent employment if that is accepted as an argument that, and of course, claimants are under obligation to mitigate their loss. You know, for example, you can't just simply sit back and say 40,000 pounds per year for sm and I found I don't plan to work again. It's not like a retirement fund. You still have obligations there. If you're capable of doing a job, you should be thinking about undertaking that job. So let's say argument's sake. The um claimants uh as a firefighter, 40 K net and now um can do data processing but 20 K net per year for argument's sake. Plus the residual earning capacity is 20 K. They've still got uh a loss every year of 20,000 pounds difference between that 20 the 40. So that's the residual earning capacity that could be utilized as your multiple accounts. You often get that argument in um in cases for personal injury, for future loss of earnings in simplified ways. So how you work on that, the multiplier is based on the, the period of the likely future loss and depends on the nature of the, uh the period claim. So it's a period of loss of energy. It's, of course, up to the point at which they're likely to retire. And again, that's another argument with regards to what's their likely retirement age. Yep, we can use a statute, a statutory age as a guiding point, but it could be the fact that this individual plan to work way past that for, uh, for whatever reason, what you do is you look at them get special damages, pass losses up to the date of trial. Ok. You know, when you calculate, calculate that you are, you're doing it in advance of the trial, cos you just wait until the trial and then produce what's called your schedule of special ores and say here you go, these are the losses to date. Um, but it is classed as a pass loss, any, anything from the trial onwards that's cast as a future loss. We're looking at these different tables. Um For the multiplier. So we've got multiple accounts which we talk about, which is that net loss per year figure, which is what and then you need to times that by something to bring up what your, your, your loss is going to be. Uh And in relation to that, we look at tables different tables, uh 1 to 34 at facts and figures where you contain these tables. Uh These are based on locality rates in the UK and different tables for males and females. Um Cos obviously, uh progress is women live longer than men. Um, discount takes account of accelerated receipts. The thought process there is say, for example, if you've got someone firefighter, let's say the ar for argument's sake, the firefighter is entitled to 40 K net for the rest of his life. He's never gonna work again. Um And we say, uh he's 40 years old, 4040 that works out, say argument's sake, he's going to retire at age 65. That's another 25 years of work he would have done. You got the 40 K, you don't to be times it by 25 and there is your, is your loss? The thought process is because if you did that, you then get this lump sum of money for that future loss of earnings. But of course, you part of that loss loss in five years time you're getting there, you're not getting it as a sort of ongoing payment every year. So what you do then is you invest that sum of money, but of course, by investing that sum of money, you're gonna get a return on that, which basically means for your future loss of earnings. If we look at that basic calculation, 40 grand times 25 for the remaining years, you're gonna make a profit on, on the injury and what's happening, we're not allowed to do that. So what the multipliers do, they reflect elements of investment and things like that for accelerated receipt. So you get less than that 25 year period, it's reduced. And the idea is you can invest that money and then by investing that money, alternately, the sum you will receive by the time you retire, it's exactly the same as if you'd worked all the way through, um, during the period. That's the, the thought process behind it. Let's have a very quick look rather than going through these, um, elements here at, uh, what these figures, um, look like in, um, reality. I think I've got it. Um, here anyway, I brought it up two seconds. I'm gonna do is have a look at, um, what the, um, facts and figures tables look like with regards to a claim and for future loss of earnings, it could be helpful to, to have a look at that just so you can understand, um, what we have to look at when it comes to valuing these elements. These claims. Here we go. Right. Hopefully you can see that there. So this looks at table one, more to us with peculiar loss for life for males, as I said before, females, males, different, uh, applications. So you do work out sex of the individual before you look at the, uh, the figures in question. Um, this is a simple one. this looks at superior loss for life. Could be elements of maybe medication you get paid. Uh, maybe you're claiming over the counter painkillers at a rate of how you get, how regularly you're taking. Then maybe it's a loss of 250 quid a year that you're having to pay for painkillers because you've got a permanent injury, how it works. And the thing you think about is left hand column age at date of trial. That's the starting point. If you look at what the claimant's age is, say, for argument's sake going down here, I start here at top, at top of here, you've got the discount rate. Ok. So this changes over time, I would say be careful about this because at the minute we're on this one that's highlighted here minus 0.25. So the discount rate is minus 25 0.25%. Um, that's likely to change in the near future. So I'll be very cautious in relation to learning anything that would actually specify that figures for sqe likelihood is by the time your exam comes around, that figure may have changed. But the thing you need to understand is there is a discount rate, you go to the discount rate, you go down that column and across to the age uh at what the client would be at the time of the trial and that will give you your multiplier. So if you look at this highlighted here, the minus tw uh 25 we said about this firefighter. Let's have a look. Um, he, uh, is 40. So I think we said at the time of the trial, we then look at the multiply being 47.63. Now, this loss for life, this isn't a loss of earnings table because of course, that doesn't make sense up until that way past retirement age. Um, this is up until the expected death of the individual. And what this looks at is average life statistics. So when you're like, if you're 40 so I at trial when you're likely to die in essence, so it's saying that your life expectancy is up to about 87.63 years. I I in general terms. Um, so that's the multiplier. So then it times it by that and then that's you, you times that by your multiple count. So for, uh, the, uh, what's it, the over the counter medication that will then give you your future medication claim, that's how it works. So, looking at the age of date of trial cos of course, pass loss up until trial and then we look at the discount rate um down and the age of data chart to try and find the, the multiplier. That's how it works to that to the um slides. No. Um So a bit more detail. So that's you got it there anyway, with regard to what it is, there are other further discounts that may apply to that figure. For example, it's said in a loss of earnings claim, a possibility there are periods when the claimant would not have been earning due to ill health, unrelated to the claim, loss of employment factors taken into account in relation to that are whether the claimant was employed or not at the time of the accident, whether the claimant was disabled or not at the time of the accident. And also they claim it's the level of educational attainment at the time of the accident. Well, all factors may be relevant to a further discount on that multiplier. Ok. So just bear that in mind, those are factors other than mortality and that's what an accelerated receipt. That's what the multiplier takes into account. Admittedly a little bit complex. I accept uh I accept that, but I just need to understand with the basics behind that process, with multiple accounts and your multiplier and just how they the the calculations are undertaking. Not of that, you don't need to look at the specific calculations you won't need to do a calculation and the exams too complex, but you need to understand the core elements and the thought processes how that works in relation to claims for interest. So interest obviously should be included in any claim. Be mindful of special damages carries interest that's called half the short term investment or special account rate and the date of the absence of the date of trial. So interest on special damages only up to the date of trial uh interest on future losses. No interest is incorporated. It's only on past losses. Importantly as well. Just in relation to that, I've seen various textbooks that you've given a set sum for the special damages interest rate that fluctuates often. So when I say it's half the special account rate. That's right. Cos the special account rate will vary. Um quite often it changes a couple of times a year. So just be mindful. Don't think about a figure because that figure is likely to be out of date by the time you sit your exam, think about just half the special account rate for, for special damages. Um with regards to general damages, um that's 2% per annum. That's right. That doesn't fluctuate. So you can, you can remember 2% in relation to that and that's up until the date of trial as well. You can't have um claims for interest on um handicap from the open labor market. If a Manchester claim you dismantled the open labor market claim, all the same thing that doesn't carry interest. And as I said before, losses that haven't yet been incurred to your future losses, um like your future loss of earnings, future care, future medication, painkillers, they don't carry interest either. As per your claims. You also need to reflect and think about how benefits work in relation to these types of um of claims. So often as a result of the accident, someone is obviously off work and can't work and therefore they claim benefits for that. So that's a sum of money that's paid by the government to support them whilst they are unable to undertake their job, they had their job, they had at the time of the accident. What we have is it's operated by the compensation recovery unit crew. Um They are departments of DWP department for work and pensions, they see crew seeks to recover benefits. A claimant has received as a result of injury or disease. Um What you have is pro uh produces what's got a cree certificate which has the a figure on it. That figure could be an ongoing figure. So it could be the fact that you need to look then every two weeks the sum increases, you need to look at um the point at which payment is made. So that's when the uh loss is crystallized, crystallized. I'll look at that in a moment um but it can be ongoing or it can be finite. Then if it's paid for a year and that's it, then they stop being paid because the payment went back to work or whatever it may be. So they won't increase from that sum. The aim of the scheme is to ensure claimant isn't compensated twice how it works. If you imagine a situation, let's just give a uh a basic example. Um Claimant earns £10,000 net per month, say great job, obviously not a lawyer. Uh So 10,000 pounds net per month, uh that's their loss of earnings claim. Yeah, so as we saw earlier, it's net net tax net net nr I 10,000 pounds per month, but they claim benefits, ok? And they get benefits for employment support allowance, whatever it may be say of 2500 pounds a month. So arguably their loss is 7500 pounds because they're already getting 2500 pounds, how it works in practice. Of course, the claimant won't be able to recover 10,000 pounds because then they will have had the 10,000 was the 2500 per month from the government. And that means their losses are more than what they would have had, had they uh stayed in employment how it works is a claimant will still claim 10,000 pounds, but when the defendant agrees and pays that or uh negotiates to pay a certain sum, they will pay the claimants only some due to them 7500 they'll pay the balance to the DWP group for the crew departments for the uh certificate 2500 a month. So that's how it works. The claimant never receives more than what their loss is. And what happens is with that claim, the crew um benefit is deducted, assume it's deductible from the claim that's made. So there's no element of a double recovery or windfall for the claimants. That's how it works. In some situations, you won't have an offset benefit. So you may have a benefit which is provided, but uh it's not offset it as against any claims made by the claimants in that situation. Then what happens is the defendant just has to pay the crew still, the liability is on them to pay the crew. But then the claimant just still gets to some that, that which is their loss cos nothing's offset. We'll look at offset benefits in a moment. Um where a payment is made and say the threat has to settle the, the cruciate to date. That's important for interim payments. You see it in district resolutions and interim payment is a payment made during the course of litigation without the payment manage the finances. The interim payment is made and the cruciate is settled up to date. I say most benefits are paid for various reasons but loss of earnings, incapable of work care or loss of mobility are the, the core fundamental ones that you do tend to see. Um I say the definite can deduct or may deduct some or all of the amount on the cruise certificate. The period of benefits importantly will start from the day after the accident. That's important. That's when it starts and it will end on the day. The compensation payment is paid not the date of settlement. Yeah, because obviously the benefits will keep area. So it's when the defendant gives the claim at the cash, that's when the um uh benefits stop. If you've got a future ongoing benefit or alternatively, five years from the day after the accident. So there's a finite point, no benefits can be claimed after that five year period. So careful about the um how to calculate that. But when it's offset and say, and if it can be offset a off various heads of play, most common, one loss of earnings, if you've got employment support allowance, that's offset against the loss of earnings claim. Like the example I gave you just uh you can't deduct benefits from future losses. General damages, that includes Smith and Manchester rewards. So even if you've got uh employment support allowance, it can't re um be the from the Smith and Manchester Award. Can't take it from loss of pension loss of ability to undertake diy tasks, housekeeping, housekeeping capacity or aids and equipment, but the ones you need to be aware of general care provided, it can be deducted from that travel expenses, loss of mobility can be deducted and loss of earnings is the most common one in relation to crew benefits. So another couple of elements need to be aware of in relation to claims. We look at periodical payments, then we're gonna look at provisional damages. Um where a so periodical payments first, where a lump sum award is difficult to formulate because of an uncertain prognosis. As to the claimant's life expectancy. Sometimes you may have a periodical payments award uh which would include a generally a lump sum and also an ongoing payment. So how it works and what you're looking at here is where you have an argument over life expectancy. So um life expectancy and we have this in, you'll see seen uh fatalities in the next video, next film. Um but where an accident has been very bad accident and it has caused an impact upon uh an individual's uh life expectancy. So they suffered a brain injury and that means they're likely to die sooner than had they not had the injury. Um Then that's a life expectancy issue. So it reduces down period you're going to um survive, but of course, that individual will have um ongoing care needs. Um Every year there's gonna be need for cared or keep going. So what happens is claimant will obtain their own life expectancy report. Defendant will obtain their, their own life expectancy report. Um Defendant Wars report will uh argue down the lower scale claimant will die within five years. Claimant will argue the other side of the scale claimant will survive for another 20 years. Um Then you have a big argument about, well, hang on a second. OK. We've got this um disparity between the survival period of this clients and if we do accept his 20 years, that's uh and if say argument's sake with some of the substantial cases where they've suffered a very bad injury, the their care claim could be 100,000 pounds per year. Uh If we're looking at 100,000 pounds over 20 every year for 20 years, that's a long period of time and a lot of money compared to defendant's evidence where it's 100,000 pounds over five years, much lower sum of money. So how periodical payments work is, in essence, he takes into account the fact that we're not sure what's gonna happen here. We can't negotiate a lump sum because the parties are at polar opposites 20 years ago compared to five years. What we look at is a lump sum payment now and a periodical payments which is awarded. So the idea is that a sum which is agreed and ordered as the uh claimants losses on an annual basis is awarded for every year that they live. So, um if for argument's sake, um So it's, it's 100,000 pounds per year and that's the order that's made and the claim dies within four years. So the defendant's prognosis of five years, max is right. Defendant doesn't overpay and in essence, because it, it, it's at the point of death and the, the losses stop. Um And of course, the in the claimant's um, prognosis in relation to life expectancy was drug. However, of course, if the claimant survives for 25 years, they'll still get that 100,000 pound every year of their life as a periodical payment up until the point they die. So the claimant doesn't lose out by being under compensated and can still claim that care every year. And the defendant reflects on the basis of the fact that well, um we are only paying on a yearly basis, maybe be accurate based upon the survival rate. So sometimes you can have a negotiation between the parties. If one says five years, one says 10, we agree on 7.5 years and we can have a lump sum payments. It's waive areas of doubt and whether it's larger figures involved, then you may have this periodical payments. Uh award. It's the good thing about it. It gives the claimant security to know that they will have that sum of money for their care during the course of their life expectancy no matter what that may be. Uh And of course, it stops, if it's a lump sum payment, it stops the dividend overcompensating the claimant. So it's in their interest and it avoids the claimant being under compensated. It's a lump sum payment as well. Um What the court does, um, specifies the annual amounts awarded and how that's broken down and made up what it's made up of, um, in relation to the, the various periodical elements. So it could be a loss of earnings claim. Obviously, it was based on life life expectancies. It's gonna be a case as well, care, medication equipment, whatever it may be. Um And then that's what, how it is the basis of the court orders and then the payments will cease. Of course. Um during the um once the claimant's life had ended, provisional damages is different elements. Whether the court awards damages or parties agree a settlement on the basis of full and final settlement award. That's the idea behind it. You get a lump sum payment, we move on off, you go, you can't come back to claim uh from the uh from the party who paid you because things have gone awry. Uh or you haven't recovered within prognosis period, given a five year prognosis period, you settle on that basis. It gets to six years. You're still suffering. You can't go back to court. Yeah, you settled on that five years tough. It probably you've got five year prognosis. Um You settled but you're recovering four years. Great. You don't have to pay anything back. It's all right. You settled on the prognosis period that was given um that's the thought process behind it. Um Where the claimant, so where the court is satisfied that there's more than 50% chance of um a claimant suffering some further deterioration in their condition in the future. And the court will award damages on the assumption that that deterioration will occur. And that's how the lump sum payments um occurs. However, there are cases where the deterioration, although a possibility is less than probable falls below that 50% likelihood. But the risk of that deterioration could be significant higher than you deal with. That is basically with um regards to provisional payments award. So you have to plead it with new particulars of claim. That's important, which basically means if you have not yet issued court proceedings, you need to issue what's called part eight proceedings, which you've agreed a settlement on this basis. But you always need the court order in relation to that. Um If you're in litigation, of course, you need to make sure you amend your certificate as a claim to plead a claim for provisional damages, you haven't already done so. So in order for provisional damages is where there's a chance that at some indefinite or indefinite time in the future, the injured person will as a result of the act to which gave rise to the course of action, the tort itself develop some serious disease or suffer some serious deterioration in their physical and mental condition. So what we're looking at chance. So you need chance. Ok. And also serious. Ok. That's important, serious disease, serious deterioration that how it works then is the court will assess uh on a lump sum basis, the damages if that uh event does not occur and then there will be other provisional damages to the right to come back to court if that event, that serious deterioration does happen. So for argument's sake, someone has um suffered a leg injury and there is a 10% risk that they will develop DVT, which will lead to the need for, for amputation. Ok. That's a serious deterioration if they get the DVTs and it leads to amputation. A loss of leg is different from an ongoing um pain in your limb. So therefore, provisional damages would work. You get a, a sum of money on the assumption you don't need the amputation cos you haven't developed the DVT. But if you do develop the DVT and do have your leg amputated, you can go back to court and um ask for the, the matter to be reopened on that basis how the court will look at it. It will assess damages. And the assumption the injured person doesn't develop that condition, identify the condition that's been disregarded. So that amputation risk stipulate a period during which the client may return for further damages. If they develop that condition or suffer the deterioration, that may be an indefinite period. Ok. So that's one thing to to bear in mind or it could be the effectively the um the expert says that if this is gonna happen, it's gonna happen in the next 10 years. Ok? So therefore, the court may set that stipulation at 10 years and anything after that, it does develop, sorry, tough, you know, that's the provisional and edge of the agreement reached. Uh I made an order that relevant documents are kept with the court. The idea is that happens, you go back to court and then you um you, you say reopen the claim on the basis that you've now suffered this additional new claim, new element of loss. And therefore you're gonna have losses that flow from that loss of limb. You're gonna have to need prosthetics care, et cetera, et cetera. Um Generally, courts are slow to make an order for provi provisional damages. Cos generally, finality is better for all the parties, but evidence is very, very important medical evidence in relation to this and this really this chance chance that's important of this seriously deterioration. So it is about, you know, questioning your experts about that and this possibility, what happens? Of course, if you get it over 50% the court will assume there is an amputation gonna happen and therefore what the losses are following that? Of course, if it's below that, then what we're looking at is the provisional damages provision. So also have what you call it like jurisdictional claims. These are accidents and corporate elements of parties who are outside the jurisdiction. Um So the thing you need to be aware of, of course, when you get a case is just looking at those elements is sort of anything different about this case, which means maybe there's something where there's a risk that there's a jurisdictional element. How does that complicate the claim that's being brought? Uh What happens with regards to these types of cases in contractual disputes? Essential for you to check whether the contract contains a jurisdiction clause because that can take precedence over the applicable rules ie the parties within the contract that they've signed. And now there's been a breach of that contract. There's a clause that states jurisdiction will be England and Wales where jurisdiction will be French or whatever it may be. That's the stipulation of the contract. That's what you'll be holden to. That's what you're contracted to and Brexit complicated matters. Uh Now we need permission to serve outside of the jurisdiction and that comes into elements there, there are certain rules with regards to getting permission to serve outside the jurisdiction in relation to jurisdictional claims. Sq assessment criteria says no contract, no tort and how those two are working in injunction. So coral starting point is the defendant must be sued in their local court and that's the court where they're domiciled. So where they live in essence, so that generally in a jurisdictional case, that's where that's in a different jurisdiction. So, uh, if the defendant's, uh, is a corporate body, it should we sue where it has its seat? So it's registered office. Um, so basically an English claimant who wants to sue, say a French defendant has to sue in France, assuming the defendant's domicile their individual or the registered seat for that company. Unless they find an exception to that rule, that's the four basic rule, you have to look at your exceptions around that. And so, for example, if you have looking at a, a company maybe is based in France, that's where R's office is. However, you have done work as a claimant in the UK to England and Wales with a branch um of that French company in England. And um, and it's that branch which you've contracted with a supply or whatever it may be and it's that branch that's breached its contract then, ok, you can sue the branch because the contract is between you and that branch, you can sue them here. There's no jurisdiction and just because they're a French company, the register office in a different um uh jurisdiction. The contract is still between you and that company which is in the uh the jurisdiction. It's different, of course, in the contract, he's, of course with the French um company in a different jurisdiction. You, you can't rely upon that ruling. You can't just find any old branch in the UK and sue them here when there's no connection between you and that company in this jurisdiction, contract cases. So uh jurisdiction is performance of the place of obligation in question. So, unless otherwise agreed. And that basically means unless there's a clause of the contract, the place of performance of the obligation in question is in the case of sale of goods, the place where the goods were delivered or should have been delivered. In the case of provision of services, the place where under the contract, the services were provided or should have been provided. Um There's nothing to stop a claimant for breach of contract, suing the defendant in the state, whether they're, they're domiciled. That's the core element. So that's your choice. Ok. They are residents in France despite the fact that the, um, sale of goods uh, should have been delivered in England. Uh You can sue in France. That's fine. That's the starting point. You imagine you can go off and do that. There are a lot of reasons, of course, why you would want to sue them within our jurisdiction. Generally, the cost rules in relation to this jurisdiction are much more favorable. We can recover our costs if we're successful, lose or pay for the winner's costs. You def you in different jurisdictions, you don't have that. So either way you'd have to pay the cost despite the fact that you may have been successful. Um And that's why a lot of the time bringing a claimant in England and Wales is within uh a claimant's best interests. Uh again, parties to a contract to dispute me into what's called this jurisdiction agreement, which is a clause of the contract. Uh Therefore, they stipulate within that um contract. The um the jurisdiction that is to apply to that case, if it is a case of rising from a breach of that contract. Tort is a little different. So, um jurisdiction in tort cases is confirmed of the courts of the state where the harmful act occurs. So, if the tort occurred in France, then France can claim jurisdiction. That's where you have to bring your claim. OK. So that's the, the starting point like a bit like contracts, you know, we talked about and uh when we looked at domiciling torts in that country, that's where you have to bring the plane. And often, uh I had to do this in practice. Often we have a tort in France. It's a vehicular incident claim that obviously you just go over on holiday and it's with an accident with a, a German driver, right? So we've got a tort, which is in France where we've got a German and we've got someone who's English, you know, and the only connection, French connection is just where that tort occurred. So what we look at, we look at the exceptions as where you can bring the claim in a moment, but the core element which never changes is the case is valued substantive law is based upon the law of where the accident occurred, the accident occurs in France and that determines the elements of substantive law. That means uh Juris uh that means liability, quantum limitation. Those are substantive matters. Basically means no matter what happens when you can claim jurisdiction in this country in England, you are still beholden to the laws where the tort occurred and that can cause a lot of the time complications. A lot of complications with limitation say for argument's sake. Um Spain Spain is a one year limitation period for a road traffic accident taught and that's a risk there isn't it that normally we've got three years, you bring your case in England, but with Spain, your time is ticking very much more quickly. So what's the justification then to bring your case in England and Wales, if the accident was outside the jurisdiction, first off payment has to establish as a real issue. It's reasonable for the court to try. That's the the first uh condition. And then you have to establish one of three elements um to in order to bring your payment in its jurisdiction. The thought process is you can still issue it willy nilly uh for against the French. Um See it's a French um driver within this jurisdiction. However, that's all you can do. OK? Because the core elements here is you need permission to serve outside the jurisdiction so you can issue it. But when you come to serve unless you meet these criteria, you're not gonna get the corps permission. Therefore, you can do nothing with the claim form that you've issued. So you don't need permission to issue, you need permission to take that next step, which is serve that claim form. So example, the grounds where you can obviously um enforce a contract, uh governed by English law is of course, where the, the breach where the uh the where the breach occurred. We looked at that with regards to of course delivery of goods, performance of services, the tort um three elements there where the damage was sustained or will be sustained within the jurisdiction are going back on that in the moment, damage which has been or will be sustained, results from an act committed or likely to be committed within the jurisdiction or the claim is governed by the law of uh England and Wales, when we're looking at the first element, that's the, that's the one which we tend to look to use with regards to jurisdictional claims uh damage sustained within the jurisdiction. Now, common law case law supports the fact that if an individual say has an accident in France, but then has returned back to uh England and continues to suffer pain, suffering and loss of immunity, maybe uh continues to put on medication, continues to have treatment, continues to um take time off work, then that is damage sustained within the jurisdiction. Despite in fact, the accident and the tort occurred in France. The fact that the damage is sustained within the jurisdiction is your ongoing losses or when you're back in England, that is enough for you to be able to claim jurisdiction here. It's always subject though. Uh that sort of four element you think about always subject to what uh arguments around what's called forum, convenience and forum, non convenience. So for forum convenience is basically where the most appropriate court is. So in a situation like this was given, you say France have an accent in France, um you sustain uh injury within jurisdiction. So you've got ongoing losses, pain suffering when you're back in England, you can claim jurisdiction. Here is England the most appropriate court. But in a situation, you've got a liability dispute and you've got three independent witnesses who are all French who all live in France. You think about a situation. Well, you've got claimant defendants in France, three independent witnesses in France. You've got a liability dispute. If you were to bring your claim in England, you're shipping the, the four French people over to give evidence at trial that comes at a cost, logistical arrangements in relation to that travel expenses and so on. Um can be quite difficult when that situation. It's better to have brought your claim in France because they're all there. And if it's a library dispute, that is the right forum for the case. A lot of the time we have these arguments over forum convenience. So from convenience is the right court forum, not a right jurisdiction for non convenience. It's not the appropriate jurisdiction for the relevant reasons there somewhere which is more suitable for that case to be tried. Right. Let's have a look at a question in this area. Then you're instructed on behalf of the claimant who was injured at work. When shrapnel entered into their eyes, some pieces of the shrapnel remain in the eyes and cannot be removed at the moment. They have no loss of sight. But medical evidence confirms it's a 10% possibility that in the future, they will lose the sight in one or both eyes. As the shrapnel may slowly move into the retina blo is 21 years old for citizens have just been issued but not yet served. The parties have not yet discussed settlement of the claim, which of the following best reflects the provi uh position. So a the claimant should plead a claim for provisional damages in the particulars of claim. As there is a chance that at some indefinite time in the future, the claimant will as a result of the Act or a commission which gave her away to the cause of action, develop a serious deterioration in their physical condition in the loss of sight. Thanks. The claimant should issue part a proceedings and plead a claim for provisional damage in in the particular of the claim as there's a chance that at some indefinite time in the future, the claimant will as a result of the act or an issue which gave rise to the court of action, develop a serious deterioration in their physical condition, in their loss of sight. C The claimant should plead a claim for provisional damages in the particulars of the claim as on the balance of probabilities. As so in definite time in the future, the claimant will as a result of the act or omission which gave rise to the cause of action, develop a serious deterioration in their physical condition being the loss of sight. D the court will order that as there is a chance that at some indefinite time in the future, the claimant will as a result of the act or remission, which gave rise to the cause of action, develop a serious condition, deterioration, sorry in their physical condition in a loss of sight. And e the claimant should plead a claim for provisional damages in the particular a claim. As there is a chance that at some indefinite time in the future, the claimant will as a result of the act or remission, which gave rise to the cause of action, develop a deterioration in their physical condition in the loss of sight is the correct answer in relation to this one. So of course, all the elements which you looked at because of provisional damages, um you need to plead it in particular a claim a chance some indefinite time in the future will as a result of act of omission, which gave us a cause of action it up a serious duration in their physical condition. So why were those incorrect or not a single best answer um B mentioned about should issue part aid proceedings. We know that we've um got a case which is in litigation, it's been issued. So when you're looking at part a proceedings, that's when you reach an agreement in relation to provisional damages prior to the issue of proceedings. Therefore, you need to issue this separate part aid proceedings to get that court order for provisional damages. And c refers to on the balance of probabilities. That's not the test here. It's a chance. So if it were on the balance of probabilities, it wouldn't be provisional damages because your lump sum payment would assume that that's the claim if he is gonna go blind and that's what gonna, what's going to happen. So that would be valued um There as a core element of the lump sum. There's no um chance of uh option for provisional damages because that chance isn't there. It's gonna happen on the balance of probabilities. Indeed, the court will order. Um There's no court uh order that they, they will uh the court may order doesn't mean to say you, you may want a provisional damages order, your opponent may agree, the court may not. So it's not a God given right, the fact that the court will definitely order um uh provisional damages in this case also of May. And he mentions a deterioration as opposed to it has to be, of course, a serious deterioration. Uh Thank you very much.
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