Casualty And Healthcare News - March 2015

Welcome to the first edition of the Casualty and Healthcare newsletter for 2015. In this issue we have included a selection of the latest case law and market developments and have explored their likely impact.

We are fast approaching the two year anniversary of the Jackson Reforms which is still making for very interesting times. There has been much judicial jostling with many of the new concepts and things have only just started to settle down. Views are mixed but Claimant lawyers seem to be largely unhappy; we leave it to you to decide whether this is a good thing or not!

UK CITIZENSHIP COMES

Two recent cases highlight the issue of mental capacity within litigation

Passing UK Citizenship test not an indication of mental capacity

Ali v Caton [2014] EWCA Civ 1313

Background

The Claimant claimed damages following a road traffic accident in which he was seriously injured.

The medical evidence was that the the Claimant has a significant cognitive deficit, yet he still managed to pass the UK Citizenship test. The Defendant submitted that this showed the Claimant had therefore exaggerated his injuries or was a malingerer.

The Court found that despite the medical evidence the Claimant had passed the UK Citizenship test without help, by learning the answer to the questions. It was found that the Claimant still lacked capacity for the purposes of the Mental Capacity Act 2005. As a consequence of this, the Claimant was found to need ongoing care and support for the rest of his life and had no residual earning capacity.

The Appeal

The Defendant appealed on the following grounds

The Judge had failed to consider the implications of the Claimant passing the Test and had placed weight on medical evidence that was unreliable as a result. The Judge had failed to properly apply the provisions of the Mental Capacity Act 2005, particularly sections 1 - 3. It was submitted that the Claimant had capacity to manage his own affairs. The Claimant was thought capable of some profitable employment and therefore had a residual earning capacity. Findings

The Court of Appeal dismissed the Appeal and found the following:

The Claimant had passed the Test unaided. The medical evidence did not suggest it was impossible for the Claimant to pass the test, just unlikely. Moreover the test had to be considered in the wider context of all the evidence as a whole, which indicated the Claimant did suffer from a cognitive defect. The question of whether a person has capacity is...