Getting a Second Bite of the Clinical Negligence Cherry

Mr Justice Edis allowed the claimant in Wright -v- Barts Health NHS Trust [2016] EWHC 1834 (QB) to pursue his claim against the defendant in relation to the hospital treatment he received despite having already settled the claim with the party responsible for the initial injury.

Mr Wright was working as a sub-contractor for a roofing company in November 2011 when he fell through a skylight. He sustained multiple fractures requiring hospital treatment. Unfortunately he suffered a complete spinal cord injury and was rendered paraplegic.

In April 2014 Mr Wright sent a letter of claim alleging that the defendant had provided negligent treatment which resulted in a much worse outcome than it otherwise should have been.

However, as the negligence by the defendant was not so grossly negligent as to break the chain of causation, Mr Wright pursued the roofing company for the whole of his loss. No effort was made to identify within the loss caused by the accident any element which may have been avoided by better medical treatment.

However, if the hospital had caused additional loss by way of negligent treatment, then they would also be liable for this loss in addition to the roofing company.

The claim against the roofing company was compromised. The hospital therefore applied for strike out of the claim or summary judgment.

The defendant hospital argued that it the claim against them was an abuse of process in circumstances where Mr Wright had already been compensated for his loss. Alternatively that compromise operated as a defence to the claim because the claimant could not now prove any loss.

In support of their application the defendant relied upon Jameson v. CEGB [2000] 1 AC 455. It was held in Jameson that where a claim for mesothelioma was settled against one tortfeasor, the claim against other tortfeasors was discharged and the claimant was barred from a subsequent claim against one of them.

However, Mr Justice Edis was of the opinion that this judgment was explained by Lord Bingham in Heaton and others v. AXA Equity and Law Life Assurance Society plc and another [2002] 2 AC 329.  He considered Heaton was clear authority for the rule that settlement against a joint tortfeasor may release all other tortfeasors but such release would not apply where a concurrent tortfeasor is concerned.

Lord Bingham held in Heaton: “While it is just that [a claimant] should be precluded from recovering substantial damages against [a concurrent tortfeasor] in a case where he has accepted a sum representing the full measure of his estimated loss, it is unjust that [the claimant] should be so precluded where he has not.”

The claimant relied upon Webb v. Barclays Bank Plc, Portsmouth Hospitals NHS Trust [2001] EWCA Civ 1141 and Appleby v. Northern Devon Healthcare NHS Trust [2012] EWHC 4356 (QB). In Appleby Mr Justice Nelson held the test to be applied in considering the claim against the hospital wass whether the compromise agreement represented the full measure of the claimant’s estimated loss.

Mr Justice Edis was in some difficulty finding that pursuing the hospital amounted to an abuse of process. He held: “A collateral attack on a compromise is not an abuse of process. A collateral attack even on a judgment in civil proceedings is not necessarily an abuse of process… an assertion that substantial sums remain due from the defendant to the claimant does not mean that the claimant settled his claim against [the roofing company] for too little.”

He decided that the real argument was that the compromise operated as a defence to the claim because the claimant has been fully compensated. However, he considered that he had not been fully compensated. The roofing company was not liable to compensate the claimant for the whole of the loss for which both tortfeasors were liable because of the contributory negligence discount but the hospital was liable to compensate the claimant for the whole of that loss if his current claim succeeded. The roofing company had not paid the whole loss caused by the hospital’s negligence.

He concluded by saying:

“I regard the facts of this case as illustrating a general principle which is that a settlement with one concurrent tortfeasor does not release the others unless it is clear that it was intended to have that effect, or unless the payment clearly satisfies the whole claim …

It is clear that the rule in Heaton was aimed against the avoidance of injustice which would occur if the claimant recovered twice for the same loss. There is no such risk in this case. The claimant agrees that credit must be given “as appropriate” for the sum received from [the roofing company].”