Avoiding double recovery where there are separate claims in respect of the same injuries
The situation where a Claimant suffers an accident and alleges negligence in his subsequent treatment is not an unusual one. However, how such claims should be dealt with procedurally can be problematic, particularly where the personal injury (PI) claim is resolved in its entirety before the claim for the clinical negligence even commences. Clearly, the Defendant has to guard against double recovery, but are there circumstances in which the claim can be denied in its entirety? That was the question which arose in the recent case of Wright v Bart's Healthcare NHS Trust.1
The facts underpinning the case were straightforward; the Claimant suffered significant injures in an accident at work, he was admitted to hospital where he suffered a sudden and unexpected deterioration in his condition which resulted in paralysis. The Claimant attributed this deterioration to negligent treatment.
It emerged that the Claimant had previously intimated a PI claim which had settled preaction, at a significant discount for contributory negligence. Given the early stage at which the claim was settled, we were told that only a condition and prognosis report had been obtained. The same report had also been served in support of the claim for clinical negligence, and made no attempt to distinguish between the damage caused by the fall, for which the employer would be liable, and the additional injuries referable to the alleged negligence on the part of the Trust. In other words, settlement of the PI claim was reached on the basis of the full loss suffered by the Claimant.
The question therefore arose as to whether, having settled his PI claim for less than the value of the claim, the Claimant could subsequently sue the Trust for the same damages on the ground that the negligence of the Trust was also a cause of his disability.
This issue was had been deliberated in two of House of Lords cases, Jameson2 and Heaton3. Combined, the effect of the authorities was to preclude a Claimant from subsequently bringing a claim against a second tortfeasor having accepted against the first tortfeaser damages which were intended to be in full satisfaction of the claim, even if the sum accepted was less than the sum likely to be awarded at trial, assuming liability was established. The question whether the settlement was intended to represent the full loss would depend upon the construction of the compromise agreement and the facts surrounding the case itself.
In the present case, it seemed to us to be invidious for the Claimant to effectively make good his shortfall against the Trust, in circumstances where the only evidence relied described the full loss. We therefore applied to strike out the claim on the basis that the proceedings amounted to an abuse of process, the claim having already been settled by the payment of damages in the PI claim. This provoked service of a witness statement by the Claimant's solicitors in which it was confirmed for the first time that, in addition to the condition and prognosis report, a care report had also been obtained, and a without prejudice Schedule of Loss prepared in readiness for the JSM. Again, both documents set out the full loss suffered by the Claimant and made no attempt to limit the losses to those referable to the PI claim only.
The statement also set out, again for the first time, the circumstances surrounding the settlement of the PI claim, which enabled the Court to find that on the facts of the particular case the Claimant did not, at the time at which he settled the PI claim, intend that settlement to represent the full value of the claim, and the application failed. The key feature appeared to have been the fact that a discount for contributory negligence had been applied, and it was this fact, rather than the fact that the case involved consecutive, rather than concurrent tortfeasors, which proved decisive. Thus, Mr Justice Edis followed the earlier decision of Appleby4 (ex tempore judgement), which again involved a case of consecutive tortfeasors where the initial settlement (in this case, involving an RTA) was again substantially discounted for contributory negligence.
This latest decision does not mean that the argument has been lost, but it does mean that the facts of the case will have to be scrutinised closely, and full details of the earlier settlement obtained before the merits of an application can be fully evaluated.
Footnotes
1. [2016] EWHC 1834 (QB)
2. Jameson v CEGB [2000] 1 AC 455
3. Heaton & others v Axa Equity & Law Assurance Society plc [2002] UKHL 15.
4. Appleby v Northern Devon Healthcare NHS Trust [2012] EWHC 4356 (QB
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