Personal Law Updates

Insurance companies have failed in their attempt to overturn a law in Scotland that allows those diagnosed with pleural plaques and other benign asbestos-related conditions to bring claims for compensation.

A Council worker’s claim that gloves issued by his employer were inadequate to protect him from injury has been upheld by the Court of Appeal.

Steven Threlfall was working for Hull City Council in May 2006 when he sustained a serious cut to his left hand while clearing debris from the garden of a council property. The injury occurred when he picked up a black plastic bag of rubbish, even though he was wearing gloves issued by his employer.

A passenger who suffered serious head injuries in a car accident has been awarded more than £1 million in damages.

David Sutton, 25, was travelling in a Nissan car that was involved in a crash with a BMW, on a B-road between Wallingford and Goring in Oxfordshire. His injuries were so serious that he was airlifted to hospital.

In the past I have written articles about the importance of making Wills till it seems as though I sound like an old Testament Prophet.

Written by Derek Cook, Probate Practitioner.

A recent case confirms that for the purposes of the Leasehold Reform Act 1967, which gives tenants of let houses the right to buy them in appropriate circumstances, a ‘house’ need not be used as a residence in order for the right to buy to be exercised. Also, the legislation governing the right to buy does not require tenants to live in the property.

In the case in point, three terraced houses in London were being used for short-term accommodation by tourists when the tenant, who had a lease over all three properties, applied for the right to buy them.

They promised we wouldn’t like it and they were right. Other than freezing Council Tax, there was precious little to cheer in the Budget other than the hope that it may have the desired effect of reducing the yawning deficit in the public finances: time will tell regarding that.

The risks associated with smoking have been known for half a century and smokers are assumed to accept those risks willingly. However, smokers may not be aware that their habit could reduce the level of damages awarded should they develop a disease affecting the lungs as a result of exposure to toxic compounds (e.g. asbestos) at work and pursue a personal injury claim.

A recent case illustrates how this may occur.

We all have choices in life. We choose whether to marry or live with another person. We choose where to live even if there are constraints placed upon us as to what we can afford. We choose to make compromises in our relationships, in our décor style and as to what our money is spent upon. We choose our children’s names and all our lives have an impact upon those children who like a sponge absorb all that they see, hear and are encouraged to do. There are however times in our lives when some choices are taken from us, such as death, illness, redundancy and divorce.

Professional advisers have, quite rightly, in the past suggested that if you live in a leasehold property it makes sense to consider applying to lengthen the term of your lease. With property prices having recently fallen the cost of doing this has also reduced so there is every reason to consider such action as a "good investment" for the future.

If you live in a house or maisonette it may be possible to purchase the freehold but as Derek Cook from Sydney Mitchell Solicitors explains, there are potential problems as regards lease extensions.

In an environment of rising taxes, knowing what you can do to protect your assets for your family’s future is essential. One way of doing this is to set up a trust, but what is a trust?

A trust arises where assets are transferred by one party (“the settlor”) to other individuals (“the trustees”) to hold for the benefit of others (“the beneficiaries”). The trustees owe a duty of care to the beneficiaries when managing the trust assets.

A recent, bitterly contested ‘big money’ divorce case shows how reluctant the courts are to upset financial settlements on the basis of contingencies and reinforces the point that bad behaviour is not a basis for changing the division of the assets.

It involved, as do so many high profile cases, a man who was successful in the City and his wife. The couple had lived together for five years before they married in 2003, but the marriage broke down in 2005. The couple had one child.

The recent case in which the Court of Appeal ruled that a German heiress was able to rely on a pre-nuptial agreement made with her husband was widely reported as meaning that the traditional view of the courts, that ‘pre-nups’ are little more than persuasive, was shattered.

However, the circumstances of that case were somewhat unusual and the comments of LJ Thorpe, the judge who issued the leading opinion, make interesting reading.

A Court of Appeal decision over a divorced couple's pre-nuptial agreement could pave the way for such agreements to become legally binding in England and Wales.

In a case heard before the Court of Appeal in April 2009 involving Katrin Radmacher, a German heiress, the Court of Appeal has overturned an earlier court decision to award her ex-husband £5.8m of her £100m fortune despite their pre nuptial agreement.

The Government has announced new National Minimum Wage (NMW) rates that will apply from 1 October 2009.

For workers aged 22 and over, the rate will increase from £5.73 to £5.80 an hour. The rate for 18- to 21-year-olds will rise from £4.77 to £4.83 and for 16- and 17-year-olds the rate will increase from £3.53 an hour to £3.57.

The accommodation offset will rise from £4.46 per day to £4.51 from 1 October 2009.

A case currently being heard in the Court of Appeal could affect the financial arrangements of many divorced couples.

A cyclist who had chosen not to wear a safety helmet and who was injured in a collision with a motorcycle has been awarded the full amount of personal injury compensation in the High Court. However, the judge warned other cyclists that compensation may be reduced if not wearing a helmet is considered to be a factor in the seriousness of an injury.

The general rule regarding a person’s funeral is that the executor of the estate has the right to make any necessary arrangements. Where there is no will, the person granted the letters of administration of the estate has the right.

That seems straightforward and it usually is, but not always. A recent case dealt with the funeral arrangements of a man who died intestate. His divorced parents were jointly entitled to administer his estate.

Financial settlements on divorce normally involve making financial provision for any children but, in a recent case, the ex-wife of a wealthy man successfully argued that her love of horses was sufficiently important to her that substantial maintenance should be payable for their upkeep.

Since the changes in inheritance tax brought about by the Finance Act 2006, trusts have been the subject of much debate. Many claimed that the changes would spell the end of trusts but our view is that trusts still have much to offer, particularly in relation to succession planning and the saving of inheritance tax ("IHT").

What is a trust?
A trust arises where assets are transferred by one party to other individuals ("the trustees") to hold for the benefit of others ("the beneficiaries"). A trust can be set up during your lifetime or in your Will.

The Court of Appeal has overturned the High Court's ruling that a boy who suffered brain damage after he was kicked in the head while playing on a bouncy castle should be awarded compensation that could have amounted to £1 million.

Sam Harris, who was 11 years old at the time of the accident, had been playing on a bouncy castle set up in a field behind the home of Catherine and Timothy Perry. The Perrys had hired a bouncy castle and a bungee run for their triplets' birthday party. Sam, who was passing with his father, asked Catherine Perry if he could join in.

Employees, or their dependants, are entitled to claim damages for injury caused by a workplace accident if:

• There was a duty of care owed to the injured person
• That duty was not performed
• It was reasonably foreseeable that harm would result from a failure to discharge the duty of care

In Corr v IBC Vehicles, the House of Lords ruled that the widow of a man who committed suicide six years after he suffered severe head injuries in a workplace accident should be compensated by his former employer.

Whilst anyone can ask their employer for more flexible working arrangements, at the moment only parents and others (such as guardians) who are responsible for looking after children under the age of six years (or 18 years if the child is disabled) and those with caring responsibilities for adult relatives have the legal right to request to work flexible hours, provided they have worked for their employer for 26 weeks continuously before the application is made. The employer is obliged to take the request seriously.