Personal injury trusts

Personal injury trusts

For most people, a bare trust is the most appropriate type of trust. The injured person retains a large degree of control in a bare trust and the trust is tax neutral. If the person changes their mind later, the bare trust is also easiest to unravel.

Precisely because of the control that a bare trust gives to an injured person, though, some people will want to opt for a different type of trust because they fear what they might do if they had that control. For example, some people may know that they are vulnerable to addiction, suffer from a mental condition such as bi-polar disorder which can lead to extreme highs and lows, or they may just be conscious that they are vulnerable to pressure from family and friends. For these people, a bare trust would generally

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Occupiers’ liability and the threshold test for duty of care (Lillystone v Bradgate)

PI & Clinical Negligence analysis: Upon appeal, the High Court found that a claimant casual footballer paying to play a ‘knockabout’ game at school premises where there were no arrangements in place to retrieve a ball kicked out of play into another part of the defendant’s sports facilities (adjacent sports playing fields) caused his own injury when he climbed a 2.1m gate and severely lacerated his hand. The claimant was a trespasser while climbing the gate between two adjacent parts of the premises where he was not a trespasser. The defendant’s duty of care did not extend to providing any system or facilities to aid ball retrievable, despite the trial judge’s findings that doing nothing and waiting was ‘not what football players would do’. The threshold test imposing a duty of care was not met because the claimant decided to climb the locked gate to gain access to adjacent playing fields. What amounts to ‘reasonable’ safety of visitors under section 2(2) and (5) of the Occupiers’ Liability Act 1957 (OLA 1957) appears to fall firmly within the characteristics equating to a definition of ‘reasonable’ amounting to ‘adequate’, rather than equating to the dictionary definition of reasonable ‘based on or using good judgment and therefore fair and practical’. On the facts and circumstances of this case the sports premises were safe, despite there being no facility for ball retrieval. The danger to the claimant only arose because the claimant decided to take a risk to climb a gate that was an obvious danger. Written by Abigail Holt, barrister at Garden Court Chambers.

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