Content by Thomas Herbert

We are delighted to be holding our annual in-person half day Clinical Negligence Litigation Conference. This event will be held at NTU Events & Conferencing in the heart of Nottingham with facilities for those with disabilities and car parking nearby. Our expert barristers will share their insights on various issues relating to clinical negligence litigation…

This talk was originally given at our Personal Injury & Clinical Negligence Conference Lincoln 2023 on 21 September 2023.

Expert evidence is central to most complex and/or high-value personal injury, clinical negligence and disease claims. In this talk, Thomas Herbert and Abigail Scott will consider how to best obtain, present and use that evidence throughout the life cycle of a claim. They will also consider common pitfalls and tips for damage limitation when things…

A topic close to my (legal) heart, and one upon which I have been known to speak unprompted at some length, is the correct approach to fact-finding where several possible causes, or causal mechanisms, are suggested for the damage under investigation: a common feature of clinical negligence (and, more widely, personal injury) litigation. This raises…

In Fawcett v TUI UK Ltd [2023] EWHC 400 (KB), Dexter Dias KC, sitting as a Deputy High Court Judge, considered an application by the Claimant to exclude the Defendant’s expert evidence in a personal injury trial. The application was dismissed. Background The Claimant sued the Defendant as administratrix of the estate of her late husband Mr…

Briggs v Drylined Homes Ltd [2023] EWHC 382 (KB) (judgment here) concerned a claim by the widow of Mr Brian Briggs, who died in 2017 after contracting mesothelioma. The Claimant brought a claim against one of her husband’s former employers, Drylined Homes Ltd (“DHL”). DHL had engaged Mr Briggs between approximately 1975 and 1979 to carry out ‘drylining’, namely putting…

To view the recording of this webinar, please click here. Slipping and tripping accidents can happen anywhere. In practice, they largely occur either in premises or on the highway. This ‘back to basics’ webinar considers the legal principles and evidential requirements that apply to claims arising out of such accidents, including duty, breach, the burden and standard…

The law in slipping cases is, in theory, settled and straightforward. One question that often arises in practice, however, is whether the defendant bears an evidential burden of proving that it had in place a proper and adequate system. It is a misconception that say that such a burden always arises in this context. This…

This blog deals with the causation aspects of Thorley v Sandwell & West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB). Philip Godfrey dealt with the factual background and breach of duty aspects of this case in his recent blog. In short, Soole J preferred the evidence of the Defendant’s expert and dismissed the claim on that basis.…

“That the tort of negligence is a mess goes almost without saying.” So said David Ibbetson in How the Romans Did for Us: Ancient Roots of the Tort of Negligence (2003) 26 UNSWLJ 475. As James Plunkett put it in The Duty of Care in Negligence (Hart Publishing, 2018), p. 76:  Since Donoghue v Stevenson…

Show me that you can divide the notes of a song; But first, show me that you can discern Between what can be divided And what cannot. An anonymous musical composition inspired by a classical Sanskrit poem.1 Introduction Two questions that often arise in disease litigation are whether a condition is divisible or indivisible and…

In a case concerning a child or protected party, during the period between its purported acceptance and approval under CPR Part 21, a Part 36 offer is – much like Schrödinger’s cat – in a state of superposition: it is both accepted but not binding (i.e. liable to be withdrawn). The grounds on which such…

In December 2020, HM Assistant Coroner for Inner South London, Philip Barlow, concluded that air pollution contributed to nine-year-old Ella Adoo Kissi-Debrah’s death in 2013. Thomas Herbert’s blog on that decision can be read here. The Assistant Coroner has now issued a Prevention of Future Deaths report dated 20 April 2021, which can be read…

Freedman J’s decision in Mather v Ministry of Defence [2021] EWHC 811 (QB) – which can be read here – is interesting for (at least) two reasons. First, it demonstrates the court’s reluctance to order a preliminary issue trial in a complex and novel claim. Secondly, it foreshadows what promises to be a significant disease trial…

Thomas Herbert’s article on Lambert J’s decision in Toombes v Mitchell [2020] EWHC 3506 (QB), which considered the correct interpretation of section 1 of the Congenital Disabilities (Civil Liability) Act 1976, has been published in the March 2021 edition of the AvMA Lawyers Service Newsletter. To read the newsletter, please click here. Thomas’s article can be found at pages 5-8.

On 4 March 2021, the Court of Justice of the European Union (“the CJEU”) handed down judgment in Commission v UK (Limit Values – Nitrogen Dioxide) [2021] EUECJ C-664/18. The CJEU declared that the UK had breached certain of its obligations under Directive 2008/50 on ambient air quality and cleaner air for Europe, which entered…

Inquests can be destabilising for advocates. Although there are similarities with other work – they take place in a Court (albeit sometimes at unconventional locations), they are presided over by a judicial figure, witnesses appear and are questioned and juries are sometimes empanelled – the process is not, or at least is not supposed to…

Presented by Patrick Limb QC and Thomas Herbert, his talk will address both the general and the particulate. It will range across smelly fertilisers, dirty exhaust fumes, cabin air and ‘neighbourhood exposure’ to pollutants before considering the inquest touching on the death Ella Kissi-Debrah, public v private law challenges and learning points from previous litigation in this arena.…

In Davies v Frimley Health NHS Foundation Trust [2021] EWHC 169 (QB), the High Court considered the question of causation in circumstances where the deceased had suffered from acute pneumococcal meningitis.  Ultimately, HHJ Auerbach, sitting as a Judge of the High Court, concluded that if antibiotics had been commenced by 10.40 on 25 February 2015, there…

This webinar took place on the 25th January 2021. This webinar follows the Supreme Court’s judgment in the FCA Test Case dealing with business interruption claims arising from COVID-19. Following our webinar on 23 October 2020 by Samuel Shelton and Thomas Herbert, the Supreme Court handed down its judgment in the FCA Test Case on 15 January 2021.…

In a judgment handed down on 18 January 2021 in Head v The Culver Heating Co Ltd [2021] EWCA Civ 34, the Court of Appeal unanimously allowed an appeal against the decision of HHJ Melissa Clarke dismissing the Claimant’s ‘lost years’ claim. The judge had dismissed the claim on the basis that the Claimant’s income…

On 16 December 2020, HM Assistant Coroner for Inner South London, Philip Barlow, concluded that “air pollution exposure” was a contributory cause of nine-year-old Ella Adoo Kissi-Debrah’s death in 2013. This is the first time that a coroner has recorded air pollution exposure as a cause of death, and is thought to be the first time that…

The seminal case of Bolton v Stone [1951] AC 850 concerned a Claimant on a residential side road who was hit by a ball struck by a batsman on an adjacent cricket ground. The claim ultimately failed. Some 67 years later, the Claimant in Lewis v Wandsworth London Borough Council was walking along the boundary path of a cricket…

In this article, Thomas Herbert analyses the Supreme Court’s decision in Maughan, which held that the standard of proof for conclusions of suicide and unlawful killing at inquest is the balance of probabilities. To read this article, please click here.

By a majority of three to two, the Supreme Court has held that the standard of proof for findings of suicide and unlawful killing at an inquest is the balance of probabilities: R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46. This is contrary to the general understanding prior to this case…

The Court of Appeal’s decision in Diriye v Bojaj [2020] EWCA Civ 1400 is of significance to all civil practitioners, and credit hire practitioners in particular. It considered (i) the proper pleading of allegations of impecuniosity in credit hire cases, (ii) whether the Royal Mail “Signed For 1st Class” service is caught by the deeming provision…

In his latest article, Thomas Herbert looks at the decision of the Court of Appeal in Diriye v Bojaj [2020] EWCA Civ 1400, which is of significance to all civil practitioners, and credit hire practitioners in particular. To read the article, please click here.

A peer-reviewed study published on 21 October 2020 by academics from the University of Sheffield suggests that workers exposed to diesel fumes or who undertake plumbing, gas fitting, ventilation and welding work may be more likely to suffer from high-grade and high-stage bladder cancers. This finding, albeit from a small-scale study that requires validation, is of…

This webinar took place on the 23rd October 2020. In this webinar Samuel Shelton and Thomas Herbert consider business interruption claims arising from COVID-19, including: If you would like to submit any questions regarding this webinar, please contact the presenters using the details below. If you have any questions about this or any future webinars please email [email protected].

Samuel Shelton and Thomas Herbert have prepared a detailed case note looking at allegations of fundamental dishonestly following the recent decision in Pegg -v- Webb [2020] EWHC 2095 (QB). To read, please click here. To share on LinkedIn, please click here.

In Pegg v (1) Webb (2) Allianz Insurance plc [2020] EWHC 2095 (QB), Martin Spencer J overturned the trial judge’s finding that a personal injury claim arising from a road traffic accident was not fundamentally dishonest. To read the judgment, please click here. Pegg is the latest in a series of decisions where claims have…

Thomas Herbert’s article “Thou Shalt Not Sit With Statisticians”, looking statistics, causation and inquests, has been published in the June 2020 edition of the AvMA Lawyers Service Newsletter. To read the article, please click here. To read the newsletter in full, please click here.

In an article originally published in the delegate pack for our Clinical Negligence Conference, Thomas Herbert outlines ‘Recovering Inquest Costs in Subsequent Civil Proceedings’. To read the article, please click here.

It is well-known that, in principle, the costs of an inquest are recoverable in a subsequent clinical negligence claim. The leading case in this regard, also well-known, is Roach v Home Office [2010] QB 256. Every case, though, will turn on its own facts (there had been no pre-inquest admission of liability in Roach, for example). Moreover, in…

Are Claimants entitled to advocate’s costs when no advocacy has occurred? Thomas Herbert reviews conflicting case law. Click here to view the full article. This article was first published in the May 2018 edition of the Personal Injury Law Journal

Click here to view the Ascertaining the BHR: The End of the Nil-excess Argument? PDF.