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A round-up of key developments and insights relating to artificial intelligence; contribution and indemnity claims to recover costs paid out in injury cases; Functional Neurological Disorder; court-mandated medical testing; the scope of employers’ liability; and release of reverse indemnity undertakings.
AI - the expectations for expert witnesses
Whilst there is currently no specific guidance for expert witnesses on the use of AI, they should always comply with their duties under Part 35.3 of the Civil Procedure Rules (CPR). Expert evidence presented to the court should be the independent product of the expert, an expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise, and an expert witness should state the facts or assumptions on which their opinion is based.
The CPR Part 35 duties make it incumbent upon the expert to check that the information obtained from AI, or from any other research sources, is accurate.
It would be helpful for CPR Part 35 to be updated to include specific guidance for experts on the use of AI. In the meantime, we would suggest that the warnings of Dame Sharp (see here) apply to experts as much as lawyers and that they should bear these in mind, as well as the recent judicial guidance. The Law Society guidance on generative AI states that a solicitor bears the professional responsibility for the factual accuracy of expert reports and so it is important that solicitors seek to regulate the use of AI by their experts.
Contacts: Mark Burton and Fay Waterfield
Related item: AI - the expectations for expert witnesses
When and how public sector organisations can pursue contribution or indemnity claims to recover costs paid out in injury cases
This article explores when and how public sector organisations can pursue contribution or indemnity claims to recover costs paid out in injury cases. It highlights common scenarios where third-party responsibility may arise – whether through contracts or general liability – and outlines the key legal considerations, including time limits, contract terms and early strategic planning. The guide also points to typical sectors where recovery opportunities frequently occur, offering a practical starting point for assessing whether a claim against another party is viable.
Contacts: Carol Dalton and Nicola Dolan
Related item: Top tips for limiting and recovering your outlay in injury claims
Functional Neurological Disorder: a recent case study
Owing to an increased awareness within the medical community and significant media attention, we are seeing a rapid increase in personal injury claims involving Functional Neurological Disorder (FND).
These claims often morph into FND having started as organic orthopaedic or cognitive related injuries. FND is a genuine condition, treated on the NHS and now features in the latest NICE rehabilitation guidelines. However, owing to the subjective nature of the condition and the reliance on self-reporting, it is a condition where credibility should always be tested. Crucially, credibility has to be tested in tandem with a deep analysis of medical causation working alongside a specialist team of experts.
Consequently, in personal injury claims where FND is diagnosed, it is key to seek specialist input from the outset (in both management of FND litigation and from medico-legal experts). This will ultimately ensure the claimant receives the most suitable treatment and the most appropriate litigation approach is taken.
See here for a recent case study.
Related item: Functional Neurological Disorder defence leads to £3.5m insurer saving
Contact: Ben Appleton
What next for court-mandated medical testing following Clarke v Poole?
In recent years we have seen major clinical breakthroughs in early detection and diagnosis of hereditary and genetic diseases.
The case of Clarke v Poole & Others [2024] considered the question of whether a claimant in a serious injury claim can be ordered to undergo screening for serious underlying disease against their personal wishes.
In this article we consider the case and offer some useful points to consider for those who are defending claims involving the complex issue of diagnostic testing.
Related item: What next for court-mandated medical testing following Clarke v Poole?
Contact: Holly Whittick
Scope of employers’ liability: assaults on public property - a recent case
On behalf of the defendant insurer Hiscox, Kennedys recently secured judgment for the defendant in a claim advanced by an employee who suffered an assault while on a break from work and while in a public area.
This case is a useful reinforcement that the common law duty arising from Wilsons & Clyde Coal Company Ltd v English [1938] owed by employers to take reasonable care to protect their employees from reasonably foreseeable risks of injury does not extend to public areas where that employee is not carrying out his workplace duties.
Further that the scope of an employer’s duty to protect against violence against employees can only take effect where there is an existing relationship between the employer and the assailant.
See our article here.
Contacts: Antony French and Stacey Avery
Related item: Scope of employers’ liability: assaults on public property - a recent case
Release of reverse indemnity undertakings
In the Matter of BJB [2024]
In this case the Court of Protection approved an application by BJB’s property and affairs deputy (Deputy) for release from the reverse indemnity undertakings included within the approved damages settlement.
See our article here.
Contact: Mark Burton
Related item: Release of reverse indemnity undertakings