Archive for February, 2010

Cerebral Palsy

Thursday, February 25th, 2010

CEREBRAL PALSY

 

Cerebral palsy is caused by damage to the brain which normally occurs before, during or soon after birth.  It is estimated that one in every 400 children is born with cerebral palsy and the symptoms vary from child to child.  Some children will have mild symptoms whilst others will be profoundly disabled and require lifelong care.  Children with cerebral palsy can often have other related conditions which include epilepsy, learning difficulties, incontinence, impaired vision and/or hearing, difficulties speaking or understanding other people speak, delayed growth, curved spine or drooling.

 

CAUSES

 

Although the symptoms of cerebral palsy are related to the individual’s muscles in one or more parts of the body, the condition is caused by damage or faulty development in a part of the brain which sends messages to the muscles to control movement and co-ordination.  The damage or faulty development in the brain usually occurs as the baby is developing in the womb, during birth or shortly after birth.

 

In most cases, the cause of the damage to the brain is not known.  In many cases, it may be simply a chance error in the way the brain develops.  Genetic facts may also play a part in some cases.  However, some factors are known to increase the risk of developing cerebral palsy.

 

  • Pre-term birth (premature babies). In particular, babies born before 28 weeks development.

 

  • Multiple births, i.e. twins, triplets or more.

 

  • Infections of the pregnant mother such as rubella, chickenpox and toxoplasmosis may be a cause in some cases.

 

  • Severe jaundice in a new born baby can be a cause.

 

  • There is an increased risk of having a child with cerebral palsy in mothers who smoke, drink a lot of alcohol or take drugs such as cocaine.

 

  • Cerebral palsy can also be caused during the birth, for example where medical staff fail to act swiftly to remove a baby with a twisted umbilical cord or there are other complications at birth leading to oxygen starvation. Some cases are caused after birth, for example as a result of meningitis or other brain infections that occur in young babies.

 

Medical negligence can result from failing to monitor the mother or child properly, failing to take account of warning signs such as falling or unhealthy heartbeat or the presence of meconium and disproportionate pain.  Also failing to deliver the baby when required, either naturally, assisted by forceps or by caesarean section.

 

In the case of CJL (child by his mother and litigation friend AJL)  -v- West Midland Strategic Health Authority (2009) it was held that the NHS Trust was liable for the cerebral palsy suffered by a baby as a result of an obstetrician’s failure to intervene quickly enough in its delivery.  It was found that medical assistance should have been called when midwives were unable to confirm foetal wellbeing and that there was evidence indicating that the child’s condition was deteriorating.  The midwives had called for an obstetrician at the correct time and had not breached their duty of care.  The obstetrician however had failed to arrive within the expected timeframe and it was found that if the child had been delivered earlier he would have either suffered no brain damage or only minor brain damage.

 

There are also pre-birth duties a hospital must adhere to as failure to conduct these can lead to an increased risk.  This was highlighted by the case of Stephen Loraine (a child by his mother and litigation friend, Pauline Loraine)  -v-  Wirral University Teaching Hospital NHS Foundation Trust (2008).  Here it was held that the hospital was negligent in its practice when booking in a pregnant patient. The hospital had relied on a patient to report any potential complications and would then only retrieve her files on the earlier pregnancies if it appeared from her report that they might be material.  It was held by the Court that the system in place was flawed and that it exposed the unborn child to an avoidable risk. 

 

The mother had had 4 previous pregnancies and the hospital should have retrieved the records of these and it was held that if it had done so, it would have alerted them to a real danger of obstructive delivery and the management of the mother’s pregnancy would have been affected accordingly and the child would have been born uninjured rather than with cerebral palsy.

 

Therefore although there are many natural factors which sadly mean cerebral palsy is inevitable it is clear that on occasions the condition could have been avoided if the proper medical procedures and management had been followed.

 

If you believe that your own, or a family or family member’s child has suffered cerebral palsy, we would advise you to contact a specialist Clinical Negligence Solicitor.

 

Once the NHS complaints procedure is completed investigations would begin by obtaining a copy of both the child’s and mother’s medical records and subsequently instructing a medical expert to prepare a report dealing with the cause of the cerebral palsy.

 

If it can be establish that the cause of the cerebral palsy was due to negligence on the part of the hospital or doctor, they can arrange therapy and obtain compensation for the child to make their life as comfortable as possible.

 

Gregory Abrams Davidson LLP specialise in obtaining compensation for client’s who have sustained injury as a result of Clinical Negligence. We have many years of experience dealing with claims against hospitals (both NHS and Private), dentists and general practitioners.

 

If you would like to enquire about a potential Clinical Negligence claim, you can contact a member of our Team on 0151 733 3353. Calls can be taken 24 hours a day or alternatively e-mail us at rmalloy@gadllp.co.uk

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Revocation of a Will by subsequent Civil Partnership (or Marriage)

Thursday, February 25th, 2010

Section 18B [1] of the Wills Act 1837 contains new provisions with regard to the revocation of an existing Will by the formation of a Civil Partnership, in the same way that marriage automatically revokes an existing Will, UNLESS, in either Civil Partnership or Marriage cases:

 It appears from the Will:

  • That at the time it was made the Testator (i.e. the Deceased) was expecting to form a civil partnership (or marriage) with a particular person; and
  • That he intended that the Will should not be revoked by the formation of the said civil partnership (or marriage)

The deceased was a successful executive in the music industry with substantial wealth. By a 2002 Will he had left his Estate to friends, family members and 3 Australian Charities. In 2008 however, he had formed a close relationship with the defendant (a much younger man). A new Will was produced by the defendant, though the family alleged in any event that it was a forgery. The new Will was dated August 2008. It read as follows:

 “I the undersigned [Testator] do by the present:

 1 Revoke all former wills and testamentary dispositions heretofore made by me and declare this to be my irrevocable last will and testament

2 Direct that this, my last will and testament shall not be revoked by neither subsequent marriage, civil union partnership nor adoption

3 Declare that my country of domicile is the United Kingdom

4 Give and bequeath to [the Defendant] the entirety of my estate as a sole beneficiary”

The Testator and the Defendant had entered into a Civil Partnership in October of the same year. The new Will would therefore have been automatically revoked UNLESS it complied with S18B above.

 Mr Justice Arnold held that the deceased had not complied with the section because:

  1. The language of the Will must show that the deceased expected to form a particular civil partnership and
  2. Intended that the will would not be revoked by that partnership
  3. By clause 2 of the Will, the deceased had only given a general statement about the effect of a civil partnership upon the Will – not an express indication that a particular partnership was contemplated
  4. Furthermore, no indication was given as to whom the partnership was to be formed with. The defendant was only mentioned in clause 4 of the Will as a beneficiary, not as a particular person to the partnership arrangement.

Conclusion

 There are 4 specific points to be aware of:

  1. Marriage / Civil Partnership AUTOMATICALLY revokes an existing Will, unless the Will in question satisfies S18 of the Wills Act.
  2. Particularly at risk are divorced people who sensibly prepared a Will once divorce proceedings commenced (to protect the children), but who have subsequently met a new partner and intend to remarry – the union through marriage / civil partnership will revoke the former Will
  3. “Death Bed” marriages undertaken through love (but necessarily in haste), may not have considered the implications for any pre-existing Will. The new Spouse / Civil Partner may have been the sole beneficiary under the pre-existing Will, but could find themselves having to share the Estate with relatives of the deceased under the Intestacy Rules, if the Will is deemed revoked
  4. Use a qualified Probate Lawyer at GAD LLP Solicitors! The above will was clearly “home-made” and used poor and ineffective precedents. The “illusionary” saving in legal costs in NOT having a Will professionally drafted paled into insignificance when weighed against the actual costs of litigation that ensued before the Court. Very few of us repair a broken down car – we go to a garage. Fewer still cut their own hair – they go to a stylist. No-one pulls their own teeth out….yet, people insist, without any legal training, to write what is possibly the most important legal document in their entire life and which if wrong (and it will invariable be so!) will cause tremendous heartache and financial ruin for those loved ones that remain. Understanding your current circumstances and future intentions enables the Private Client Department at GAD to tailor your Will to your exact requirements ensuring that the finished document will not fail or be subject to challenge before the Court.

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OFT publishes further follow-up report on internet shopping market

Tuesday, February 23rd, 2010

The OFT has published a report on monitoring the internet shopping market.

This follows its market study into internet shopping (June 2007), which found that both businesses and consumers had a low awareness of online shoppers’ rights, and its follow-up report (March 2008) and the results of a customer survey taken in May 2009.

The new report assesses changes in consumer awareness of rights, business practices and consumer confidence since its market study. The OFT has found that there have been many positive changes in the internet shopping market since its market study and follow up activities. In particular, a greater proportion of websites reviewed appear to comply with consumer legislation and information provision. However, there remains scope for the levels of consumer awareness and confidence to improve.

The OFT considers that its findings support its initial, fairly conservative, estimate of the impact of the internet shopping market study and awareness raising activities. Source: OFT report, 28 January 2010.

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OFT Studying Consumer Contracts

Tuesday, February 23rd, 2010

OFT launches market study into consumer contracts

The OFT has launched a market study, under section 5 of the Enterprise Act 2002, to examine when, how and why consumers have difficulties with contracts. The OFT will be looking at the terms, features or types of contract with which consumers have particular difficulties, including exploring problems that arise both in the small print and upfront terms and the influence of independent advice.

Also, the OFT will be examining why firms use terms which disadvantage consumers, for example, if they are trying to protect themselves from uncertainty or are following the market.

In addition, the OFT will consider how consumers interpret contracts and if this is influenced by behavioural biases or other consumer characteristics. The OFT expects to complete the study in winter 2010. Depending on its findings, the OFT will consider further action, such as providing consumer education, guidance to firms and working with trading standards and sector regulators.

The study follows previous studies into internet shopping and doorstep selling, and comes as the European Commission is proposing new laws for unfair terms in consumer contracts through a new consumer rights directive. The OFT requests responses from the government, businesses and consumer groups and invites submissions from those interested by 31 March 2010. For more information about consumer contracts. Source: OFT press release, 4 February, 2010.

At Gregory Abrams Davidson, we are frequently contacted by clients who have been disadvantaged by the small print and upfront terms of a variety of consumer agreements.

If you feel that you have been unfairly prejudiced as a result of unfair terms in a consumer contract, please contact our Dispute Resolution and Debt Recovery teams are lead by solicitors Martin Shellien and Ciaran Montague. Both are experienced and respected litigation lawyers.

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Insane delusions and poisoned affections?

Friday, February 19th, 2010

Re Ritchie,Ritchie v Joslin [2009]

The classic test for Testamentary Capacity was establish back in 1870 and has stood the test of time ever since! The principles laid down in Banks v Goodfellow [1870-71] state that the Testator (the deceased who made the Will):

  1. Must understand the nature of the act of making a Will and its effect
  2. Must understand the extent of the property of which he is disposing
  3. Must be able to appreciate and comprehend the claims to which he ought to give effect; and
  4. With regard to the 3 above, no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of the property and bring about a disposal of it which, if the mind had been sound, would not have been made

The deceased, Mrs Richie, an elderly lady of 88 years died leaving 4 children (2 boys and 2 girls) together with a substantial Estate of approx £2.5m. By her 1998 Will, Mrs Richie left the majority of her Estate to Charity. None of her 4 children were to receive anything. If the will was held to be invalid, the Estate would pass on Intestacy to the 4 children.

It was common ground between the parties that limbs 1 to 3 of the above test were satisfied. The parties differed however upon whether Mrs Richie was suffering from a mental disorder at the time she made the will and on the effect of any such disorder. It was alleged that Mrs Richie was suffering from irrational delusions. It was alleged, by way of example, that Mrs Richie falsely believed her children had done little or nothing to help her. The solicitor’s attendance notes taken when the Will was prepared supported this and other allegations advanced by Mrs Richie, namely:

  • All her children were well provided for and didn’t need the money
  • The sons had been violent towards her
  • Her daughters did not come near or visit her
  • Her sons were stealing from her

Following detailed evidence, the trial judge accepted that these allegations were not true. Rather than acting inappropriately to their mother who suffered from O.C.D. they had in fact supported her and she had infact been quite dependent upon them.

The central question was whether or not Mrs Richie believed the allegations to be true. If she knew perfectly well that what she was telling the solicitor about her children was untrue, then she could not have been suffering from delusions. However, Mrs Richie’s statements could not be viewed as mere lies – she was suffering from paranoia or an abnormal paranoid disability. The expert medical evidence was accepted that her paranoid personality was a disease of the mind that gave rise to delusion and irrational beliefs. On this basis it was concluded that Mrs Richie did believe that the allegations she made were true.

It therefore remained to be decided whether or not this disease of the mind meant that Mrs Richie’s moral sense, instincts and affections had been perverted by mental disease. Whilst the very experienced probate solicitor and the deceased’s G.P. considered her to have capacity, the judge concluded that the evidence from the solicitor’s notes plainly pointed to the fact that Mrs Richie’s motives in making the Will was to cut out her children, rather than benefit the Charity. There was no rational reason to do this. It was plain therefore that her affections towards her children had been poisoned. She would not have cut them out, but for the deluded beliefs.

It followed therefore that the will was invalid, the Charity lost and the children took the entire Estate equally under the Intestacy rules.

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Contested Wills and the Blight of the Farmer

Tuesday, February 9th, 2010

Challenges to Wills are on the increase by some 200%. The problem? Farmers! Well actually, the problem is the rather tricky legal concept of Proprietory Estoppel. It just seems to be coincidence that Farmers, for some obscure reason, tend to land themselves “in it” on a regular basis.

There is a fundamental concept in English Law of Testamentary Freedom. In essence, you can give your wealth away to anyone you please. Readers of our Blogs may be aware of how legislation has eroded this in the case of certain classes of individual who seek reasonable financial provision (The Inheritance (Provision for Family & Dependants) Act). However, apart from claims under the latter 1975 Act, farmers do like to frequently give assurances of their intentions to leave a farm to a relative, who often works full time (for their entire life) without any remuneration!!! The problem is that when the farmer dies, either a Will or the Intestacy Rules (laid down by Parliament for when you die without a Will) provided for a completely alternative distribution and the “poor” relative receives nothing!

The most recent case upon this point reached the House of Lords only last year. In this case, the “disinherited” relative, who had worked for free, had to establish:

  • That a Representation (or Assurance) had been made to him;
  • That he had relied upon that Representation / Assurance; and
  • That he has suffered detriment in consequence of his (reasonable) reliance on the Representation / assurance.

The farmer and his relative “(lead a difficult life)….committed to …hard and unrelenting physical work…..largely unrelieved by recreation or female company”. What was of great debate before the Court was the fact that there was no “signature event” – the utterances “I am going to leave the farm to you…” were never made.

Rather, the farmer used oblique and allusive terms, over a prolonged period of time, which if examined minutely and in isolation, may appear insignificant, but collectively demonstrated a continuing pattern of conduct. The House of Lords disagreed with the Court of Appeal that the assurances needed to be “clear and unambiguous”. It was reasonable that years of experience enabled the farmer’s utterances and actions to be interpreted by his relative, causing him to form a reasonable view that the farmer was to gift the Farm to him. The clarity sought to establish the assurance was “hugely dependent on context”. The relative could take the assurances at face value and rely upon them.

Clearly, the Law will protect a person who has acted to their detriment in reliance on an assurance, and that the assurance need only be “clear enough” between the parties themselves. Whether this is an unwelcome erosion of a person’s freedom to gift away property on death without restriction or the upholding of justice and fairness to achieve the right decision for an individual who has acted throughout their life to their detriment is a close call.

Consideration of your conduct pre death must be undertaken at the Will writing stage and some genuine “soul searching” and introspective analysis of past and current actions, behaviour and conduct necessary in order to establish whether a relative / friend has been labouring under a perceived assurance from you that they are to inherit a proportion of your assets upon death.

Our advice at Gregory Abrams Davidson is that now is the time to “come clean”. Once a potential “claim” is identified, we can:

  • assist in arranging your affairs to counter it or;
  • organise your affairs to “support it” if in fact you have every intention of honouring the assurance.

Gregory Abrams Davidson LLP specialise in private client. We have many years of experience in wills, trusts, estate planning and elder law.

For advice on preparing your will and planning your estate, please call Ian Sturgess on 0151 733 3353 – calls can be taken 24 hours a day – or e-mail isturgess@gadllp.co.uk.

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NHS failing to implement recommended Down Syndrome test

Monday, February 8th, 2010

About 60,000 people in the U.K. had the genetic condition Down Syndrome and about 1 in every 1000 babies are born with it.

The U.K. National Screening Committee which advises the NHS has commented that all women should be offered what is known as the combined test. This is taken at 11 to 14 weeks of pregnancy and involves the mother having a blood test and an ultrasound scan.

Writing in the AVMA Medical & Legal Journal, Edwina Rawson comments that despite the fact that the combined test is the most accurate and has been identified for National roll out, 70% of NHS Trusts in England still fail to offer the test. As the standard (rather than combined) test carries a higher rate of false positive results this leads to a larger number of mothers being told they have a high risk of having a baby with Downs. A large proportion of these mothers will then undergoing further invasive investigations which can result in miscarriage.

Edwina Rawson comments that introduction of the combined test would not limit these deaths entirely but it would reduce them significantly. The reasons for Trusts not carrying out the combined test appear to be a mixture of lack of funds and a lack of trained stenographers.

A result of the failure to implement the combined testing will lead to an increase of normal babies ( i.e. without Downs) dying each year as a result of false positives and also cases were a diagnosis of Down Syndrome is missed and the mother is denied the chance of terminating the pregnancy.

Gregory Abrams Davidson LLP specialise in obtaining compensation for client’s who have sustained injury as a result of Clinical Negligence. We have many years of experience dealing with claims against hospitals (both NHS and Private), dentists and general practitioners.

If you would like to enquire about a potential Clinical Negligence claim, contact a member of our Team on 0151 733 3353. Calls can be taken 24 hours a day or e-mail us at rmalloy@gadllp.co.uk

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Get It In Writing – Defendant Entitled to Contractual Costs in Small Claims Case

Monday, February 1st, 2010

In Robert Shaw v Nine Regions Limited [2009] EWHC 3553 (QB), the High Court was asked to consider a Recorder’s order that there should be no order as to costs in respect of a small claim.

The defendant submitted that it had a contractual right to its costs, set out in a loan agreement between the parties. The claimant resisted the application for costs on the basis that this was a small claim and the small claim rules should apply in any event. (Under CPR 27.14, only limited costs are recoverable in claims allocated to the small claims track.) The claimant also contended that the contractual term was void and unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) (Regulations).

Roderick Evans J held that, although regulation 5 of the Regulations appeared to apply to the contractual term in question in that it was not individually negotiated, the term was entirely reasonable and it caused no significant imbalance in the parties’ rights and obligations to the detriment of the consumer. Further, (it did not exclude or hinder the claimant’s right to take legal action or exercise any other legal remedyparagraph 1(q), Schedule 2, Regulations). The judge, therefore, awarded the defendant its costs both in the High Court and in the county court below.

It is an interesting case as it is unusual for such costs to be awarded in a small claims case. This decision – which has implications for commercial contracts and is especially noteworthy for our debt recovery clients – helpfully clarifies that it may be possible to obtain costs in a small claims case where the parties make appropriate contractual provision to recover those costs.

Despite the decision in the above case, whenever and wherever possible it is in everyone’s interest to attempt to settle disputes at the pre-litigation stage. However, when this is no longer avoidable, we at Gregory Abrams Davisdon LLP have a determined and experienced team who will go to great lengths to pursue the matter with your best interests in mind.

Should you have any Debt Recovery or other Litigation matters, our Dispute Resolution and Debt Recovery teams are lead by solicitors Martin Shellien and Ciaran Montague. Both are experienced and respected litigation lawyers.

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