QUANTUM UPDATE
THE GIBRALTAR INSURANCE INSTITUTE
RHIANNON JONES QC
11 October 2016
Injury
Long v Western Sussex Hospitals NHS Trust [2016] EWHC 0251 (HHJ Collender QC sitting as
a HCJ)
Negligent delay in undertaking exploration and debridement of infected hip following
surgery to repair fracture of the right femoral head. The Claimant was unable to show that
he would have avoided septicaemia or that the outcome would have been significantly
better than it was; the high point of the case was “he could have got to his present state a
few days earlier.” The Claimant failed to establish that the delay had caused him to be
“appreciably worse off.” Claim dismissed.
Fatal Accidents
Knauer v MOJ [2016] UKSC 9
Multiplier for future loss of dependency is to be calculated at the date of trial and not the
date of death. Cookson v Knowles and Grahan v Dodds is no longer good law on the
multiplier issue. The past loss period may need to be discounted to reflect the statistical risk
of premature death and/or the risk that the dependency may have ended or reduced. The
risk of premature death will usually be a modest one.
Mosson v Spousal (London Limited) [2015] EWHC 53 QB (Garnham J)
No basis for an award of probate costs.1
No additional award for loss of intangible benefit of services provided by a spouse which
properly forms part of the bereavement award.2
Jacqueline Ann Smith v (1) Lancashire Teaching Hospitals NHS Trust, (2) Lancashire Care
NHS Foundation Trust (3) Secretary of State for Justice [2016] EWHC 2208 QB Edis J
The fact that the Fatal Accidents Act 1976 section 1A(2)(a) excluded cohabitees from
receiving damages for bereavement did not directly engage, or fall within the ambit of ECHR
1
Paragraph 51.
Paragraph 65-80. Compare Sheppard v CW Dukes & Sons Ltd and others [2015] EWHC 1043 (QB)(HHJ
Robinson sitting as a High Court Judge) damages of £3,000 awarded for loss of intangible benefit of services
that would have been provided by a deceased spouse in an “extremely close” relationship.
2
1
art 8. However, the difference in treatment between cohabitees and those who were
married or in a civil partnership could not be justified and consideration should be given to
reforming the law.
Proportionality
Robshaw v United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB) Foskett J
Negligently mismanaged delivery resulting in significant brain damage with motor
developmental delay, cerebral palsy and learning difficulties. The Judge was referred to the
earlier decision of Ellison v University Hospitals of Morecambe Bay NHS Foundation Trust
[2015] EWHC (QB) in which Warby J rejected the defendant’s argument that damages were
to be assessed by reference to proportionality as a stand alone consideration, i.e. the
defendant would not be liable for the cost of a particular item if the cost of the item was
disproportionately large by comparison to the benefit achieved. Foskett J indicated that he
agreed with the analysis of Warby J in Ellison. He also addressed, in general terms, the
approach to the assessment of damages:
166.
To my mind, in assessing how to provide full compensation for a claimant’s
reasonable needs, the guiding principle is to consider how the identified needs
can reasonably be met by damages-that flows from giving true meaning and
effect to the expression “reasonable needs”. That process involves, in some
instances, the need to look at the overall proportionality of the cost involved,
particularly where the evidence indicates a range of potential costs. But it all
comes down eventually to the court’s evaluation of what is reasonable in all the
circumstances: it is usually possible to resolve most issues in this context by
concluding that solution A is reasonable and, in the particular circumstances,
solution B is not. Where this is not possible an evaluative judgment is called for
based upon an overall appreciation of all the issues in the case including (but
only as one factor) the extent to which the court is of the view that
compensation sought at the top end of any bracket of reasonable cost will, in
the event, be spent fully on the relevant head of claim. If, for example, the
claimant seeks £5,000 for a particular head of claim, which is accepted to be a
reasonable level of compensation, but it is established that £3,000 could
achieve the same beneficial result, I do not see that the court is bound to
choose one end of the range or the other: neither is wrong, but neither is forced
upon the court as the “right” answer unless there is some binding principle that
dictates the choice. It would be open to the court to choose one or other (for
good reason) or to choose some intermediate point on the basis that the
claimant would be unlikely to spend the whole of the £5,000 for the purpose for
which it would be awarded and would adopt a cheaper option or for some other
reason.
167.
I apprehend that parties have been settling cases and the courts have been
deciding cases on this broad approach for many years without doing violence to
the full compensation principle. Inevitably, broad brush judgments are called for
from time to time and, as I have been invited by both parties to do on occasions
in this case (where so many individual items remain in dispute), the court must
simply “take a view.” I will be adopting that broad approach, where
appropriate, when considering certain disputed heads of claim in this case.
2
The issue of proportionality as a stand-alone consideration as between claimant and
defendant was considered by Akenhead J in the non-personal injury setting in Network Rail
Infrastructure v Handy and Others [2013] EWHC (TCC):
43.
In case after case (in negligence), the courts over the years have analysed the
elements or exercises which need to be established or done: the existence of
duty, scope of duty, reasonable foreseeability, remoteness and measure of
damages, linked necessarily by causation considerations. I agree with MooreBick LJ that there is no overarching or separate principle which requires
damages to be reasonable as between claimant and defendant. Otherwise,
one might descend into arguments that it is disproportionately unreasonable, as
between claimant and defendant, that a poor defendant should have to pay to a
better off claimant the full amount of loss otherwise established. The negligent
defendant whose poor driving paralyses a highly successful claimant whose
earnings run into hundreds of thousands of pounds or possibly millions of
pounds every year can, currently, be expected to pay damages for the actual
loss of the particular claimant’s earnings, even if the claimant is, say, a banker
and, if it be the case, banker’s earnings with bonuses are considered to be
extravagantly high: there is no principle that the paralysed banker should not
be compensated for the earnings which he or she can prove would have been
earned but for the accident or that the Court should reduce those damages to
a level which might be considered to be reasonable as between claimant and
defendant.
44.
It is at least theoretically possible that in an appropriate the Court will find that
the scope of the tortious duty did not extend to cover a type of loss which is
likely either to be unconnected with any breach of the duty or which produces a
level of loss which is so far beyond what might be considered reasonable that
the duty should not extend at all to such loss. At the very least, that must be a
rare case, if it ever happens at all, because when considering the scope of duty
it will or will not to a large extent encompass the types of loss which are
reasonably foreseeable and which are otherwise not too remote. What the
Court of Appeal decided was that the loss of revenue was a recoverable head
of loss and it is difficult to see how it could be a totally irrecoverable head of
loss just because the amount was thought by one party to be excessive. This is
partly because it is difficult to establish criteria by which a loss of £5X as
opposed to £X is “excessive” or “unreasonable”. One then gets into a debate as
to whether the Court should or can allow an award of damages at a level which
is not “excessive” or “unreasonable.”
(Emphasis added)
Mitigation of Loss/Reasonableness
Manna v Central Manchester University Hospitals NHS Foundation Trust [2015] EWHC
2279 (QB) Cox J
A severe cerebral palsy case. Cox J considered the approach to the quantification of
damages/mitigation.
3
14.
In relation to expenses already incurred the Claimant and those who act on his
behalf have a duty to take reasonable steps to mitigate his loss. In relation to a
particular choice of treatment, for example, or transport, as arises in this case, the
key is reasonableness. If the choice is unreasonable it will result in injustice to the
Defendant and will not be recoverable. Provided the Claimant’s choice in within the
range of potentially reasonable options open to him, he will have reasonably
mitigated his loss. A Defendant cannot reduce his liability by arguing that the
Claimant should have chosen a cheaper option from within that range.
She held that the family’s decision to purchase a Land Rover Discovery was reasonable.3
General damages
Summers v Bundy [2016] EWCA Civ 126
The Simmons v Castle 4 uplift on general damages for pain, suffering and loss of amenity is
not discretionary and applies in all cases in which the claimant does not have a pre-LASPO
CFA. The judge was bound to award the legally aided Claimant the 10% uplift and no
question of discretion arose.
Loss of earnings and loss of earning capacity
Billett v MOD [2015] EWCA Civ 773
The Claimant former serviceman suffered non-freezing cold injury to his feet when on an
exercise in 2009. He alleged that the MOD was in breach of duty/breach of statutory duty
for failing to provide him with adequate footwear. As a result of his injuries the Claimant
successfully applied for early termination of his military service. Liability was compromised
at 75%.
At the date of trial the Claimant was earning £21,442pa as a lorry driver, the same as he
would but for his injuries but he would be disadvantaged in looking for work if his
employment was terminated.
Edis J awarded damages for loss of earnings/loss of earning capacity adopting the Ogden
approach to the calculation of loss but using adjusted discount factors to reflect the
Claimant’s individual circumstances.
The Court of Appeal held:
(i)
3
4
When considering whether a claimant is disabled for the purpose of an Ogden
calculation of loss of earnings, the focus is on what the claimant cannot do as
opposed to what he can do, and an injury has a “substantial adverse effect” on a
Paragraphs 173-180.
[2012] EWCA Civ 1039.
4
claimant’s ability to perform everyday tasks if its effect is more than
trivial/minor.5
(ii)
The discount factors applicable in an individual case can be adjusted to reflect
the facts of a particular case and are not binding.6
(iii)
Although the Ogden approach will often be a valuable aid to valuing loss of
earning capacity, a Court may prefer to adopt a conventional Smith v
Manchester approach in an individual case.
(iv)
A Smith v Manchester award of £45,000 should be substituted for the trial
Judge’s Ogden based award of £99,062.04.
Murphy v MOD [2016] EWHC (QB) (HHJ Coe sitting as a HCJ)
The Claimant serviceman was injured when he was struck on the head by a heavy roll of
fabric used to create temporary roads. Breach of duty was admitted. The Claimant alleged
that he had developed fibromyalgia as a result of the accident. The Defendant did not
dispute the diagnosis of fibromyalgia but argued that it was not caused by the accident.
The Judge held that the Claimant was disabled within the meaning of the Equality Act 2010,
however his disability was “modest”. 7 In the circumstances any adjustment to the
Claimant’s injured disabled discount factor would have to bring it “quite close” 8 to be
uninjured discount factor and to make such a substantial adjustment to the discount factor
would be “too contrived an exercise.” 9 In the circumstances the Judge preferred to make a
conventional “Smith v Manchester” award of £50,000 in addition to a
multiplier/multiplicand award for the Claimant’s loss of earnings up to his predicted “but
for” retirement date from the army.
Pre-existing conditions
Reaney v University Hospital of North Staffordshire NHS Trust & Another [2015] EWCA Civ
1119
The Claimant suffered non-negligently caused transverse myelitis resulting in T7 paraplegia.
As a result of that condition she would have required care and assistance, increasing over
time from 7 hours per week to 31.5 hours per week from age 75. As a result of the
Defendant’s negligence she developed Grade 4 pressure sores resulting in osteomyelitis, hip
dislocation, serious contractures of the lower limbs and increased lower limb spasticity; her
seating posture was permanently damaged and she was unable to use a standard
5
Paragraph 86-91.
Paragraph 96 and 101
7
Paragraph 207
8
Paragraph 210
9
Paragraph 211
6
5
wheelchair safely. She was left with a large area of vulnerable skin on the sacrum and
buttocks. As a result she required 24 hour care from two carers.
The Judge awarded damages for the full cost of 24 hour carer and the full cost of the
Claimant’s aids and equipment on the basis that her “but for” care needs would have been
met by local authority carers and her family at no cost to the Claimant and that the
Defendant’s negligence had caused the need for 24 hour double up care. The Judge held
that no credit was to be given for the Claimant’s but for care needs and other needs
(physiotherapy, equipment, accommodation etc).
The Court of Appeal held, what was in fact common ground between the parties at the
appeal stage, that,
19.
……if the defendants’ negligence caused Mrs Reaney to have care and other needs
which were substantially of the same kind as her pre-existing needs, then the
damage caused by the negligence was the additional needs. On the other hand, if
the needs caused by the negligence were qualitatively different from her preexisting needs, then those needs were caused in their entirety by the negligence.
The Court of Appeal took the opportunity to consider the decision of Mr Justice EdwardsStuart in Sklair v Haycock [2009] EWHC 3328 (QB). Lord Dyson MR accepted the
Defendant/Appellant’s submission that Sklair was correctly decided as on the facts of that
case the road traffic accident had caused the need for 24 hour care and a care regime which
was qualitatively different from the care which had been required pre-accident.
The Court of Appeal also commented on Foskett J’s reliance on Bailey v MOD [2008] EWCA
Civ 883 that if he was wrong in relation to “but for” causation then he would have awarded
100% of the Claimant’s care and other costs on the basis that the Defendant’s negligence
had materially contributed to the Claimant’s condition which led to the need for 24 hour
care. Lord Dyson held that Bailey had no application on the facts of Reaney as there was no
doubt as to the Claimant’s condition before the Defendant’s negligence occurred and no
doubt as to the injuries she suffered as a result of the negligence.
Accommodation
Manna v Central Manchester University Hospitals NHS Foundation Trust [2015] EWHC
2279 (QB) Cox J
Cox J allowed a second Roberts v Johnstone claim for the purchase of a second home for
the Claimant’s natural father to enable the Claimant to stay overnight with support from
carers. She allowed £250,000 for the purchase price plus £20,000-£70,000 for the
adaptation budget and annual running costs of approximately £10,000.
Soran v St George’s Hospital NHS Foundation Trust [2015] EWHC 3279 (QB) HHJ Wood QC
sitting as a HCJ
6
Negligent delivery resulting in hypoxic brain injury. Liability was admitted. The Claimant
purchased a penthouse flat in a riverside development in Wandsworth using an interim
payment. The Claimant’s accommodation claim was pleaded at £4M. In the run up to trial
the Defendant’s case had been that the Claimant could and should have purchased a
property in a much more modest area of London and that the claim should be value on the
basis of purchasing such a property. Shortly before trial, the Defendant applied for
permission to call evidence that the Claimant’s family should move to Leicester where they
had previously lived and where properties were much cheaper. A provisional report had
been obtained but not disclosed from the Defendant’s accommodation expert.
HHJ Wood QC granted the Defendant’s application. In doing so he commented,
16.
I remain of the view that it is going to be an uphill struggle for the Defendant to
persuade the court that the Soran family, if that is the correct surname, should
move lock, stock and barrel to Leicester where they have not lived for a number of
years, but the court should have, as I have indicated, all options open and available
to it.
Provisional damages
Butler v MOJ [2015] EWHC (QB) (HHJ Coe QC sitting as a Deputy High Court Judge)
Slipping accident at work resulting in an injury to the Claimant’s right foot with neuropathic
and/or mechanical pain in the right foot and inability to weight bear. The Claimant
developed chronic complex regional pain syndrome “CRPS” affecting the right foot/lower
leg with ongoing neuropathic pain Liability was compromised 80% in the Claimant’s favour.
It was common ground that there was a 25% chance of amputation in the future.
Amputation would probably give the Claimant “an average estimated 70% improvement in
his symptoms.” The risk of recurrence of CRPS following amputation was 25%. There was no
evidence specifically addressing the risk of the stump failing to heal or of phantom pain. The
Judge held that there was a 30% risk of an adverse outcome following amputation and
therefore a 7.5% risk of a significant deterioration in his condition [30% x 25% = 7.5%].
The Judge held that amputation itself with a 70% improvement in overall symptoms could
not be described in the context of this case as a serious deterioration. She therefore allowed
25% of the additional general damages for PSLA for an amputation and 25% of the “lower
end” base costs of £120,000 for prosthetics. She made no allowance for care in the event of
a successful amputation. No consideration appears to have been given to the Claimant’s
accommodation or transport needs in the event of a successful amputation. The Judge
made a provisional damages order for the risk of one of the post amputation adverse
outcomes (recurrence of CRPS, phantom pain or failure to heal) to the Claimant’s 60th
birthday.
Interim payments
AC v St George’s NHS Trust [2015] EWHC 3644 (QB) Whipple J
7
Liability was admitted for negligent mismanagement of delivery. The Claimant was 7 years
old, suffered from bilateral cerebral palsy with motor dysfunction, behavioural and
developmental problems. Final prognosis would not be clear for some time.
For the purpose of valuing the accommodation claim at the interim payment stage, the
Defendant argued that the Claimant should rent a property so that the trial judge would be
able to consider the appropriate accommodation model and assess compensation
accordingly. Whipple J rejected the argument on 4 grounds.
(i)
The ‘show-stopper’ argument that the Defendant’s accommodation expert had
been unable to identify a suitable rental property.
(ii)
Vulnerability/uncertainty of a rental arrangement.
(iii)
Absence of any authority for the proposition that a severely injured claimant
should rent as opposed to purchase a property.
(iv)
Absence of evidence to support the Defendant’s speculative suggestion that in
later life the Claimant would or might be cared for in an institutional setting.
Whipple J endorsed the analysis of Popplewell J in Smith v Bailey [2014] EWHC 2569 (QB).
She awarded 90% of her conservative Eeles Stage 1 valuation of the claim.
Sellar-Elliott v Howling [2016] EWHC 443 (QB) Sweeney J
Defendant’s application for permission to appeal from the order of Master Cook that the
Defendant make an interim payment of £100,000.
Breach of duty admitted for negligent failure to accurately report a CT scan which revealed a
suspicious mass later identified as a malignant liver tumour. Causation was denied; the
Defendant’s case was that the tumour was already malignant at the date of the original CT
scan. The Defence pleaded that the issue of causation was the subject of continuing
investigations.
The Claimant served a supportive report from an expert oncologist on the issue of
causation. The Defendant elected to serve no expert evidence on the issue of causation save
for a letter from its expert oncologist which did not address the Claimant’s expert’s
arguments.
Master Cook held, following Smith v Bailey that there was an evidential burden on the
Defendant at the interim payment stage to adduce evidence which would justify the Court
concluding that the Claimant would not succeed in recovering substantial damages. A bare
pleaded assertion, even if verified by a solicitor’s witness statement was not sufficient to
discharge that burden. The Master decided the issue on the basis of the evidence before
him; not on the basis of evidence that might become available in due course.
Sweeney J endorsed Master Cook’s approach and denied permission to appeal. Sweeney J
agreed that following Smith v Bailey the Defendant had to adduce evidence in support of its
position on causation in the same way as the Defendant in Smith had to adduce evidence in
support of its position on contributory negligence; a bare denial/allegation was insufficient
at the interim payment stage.
ZEB v Frimley Health NHS Foundation Trust [2016] EWHC 134 (QB) Garnham J
This was the Claimant’s appeal from the decision of Master Cook dismissing her application
for an interim payment.
8
The claim was for clinical negligence arising from failure to admit the Claimant for further
investigation following her presentation to A&E. She was discharged home when she was
suffering from TB and went on to develop TB meningitis with devastating neurological
consequences. Liability was initially admitted but the Defence was subsequently amended
to allege contributory negligence and novus actus interveniens on the basis that the
Claimant was aware from treatment in Pakistan that there was a working diagnosis of TB
meningitis. Master Cook refused to order the interim payment sought of £175,000 on the
basis that the trial judge might reduce the damages award by anything between 0 and 100%
and/or the Defendant’s causation defence if successful would provide a complete defence
to the claim. Garnham J upheld the Master’s decision.
Life Expectancy
Reaney v University Hospital of North Staffordshire NHS Trust and another [No 2][2014]
EWHC 3016 (QB)
Where the medical experts agreed the Claimant’s predicted life expectancy (in this case to
age 78), to adopt a Table 2 adjusted life multiplier would result in an additional unfair
discount. The Table 28 fixed term multiplier was adopted, endorsing the analysis of Swift J in
Whiten v St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB).
Manna v Central Manchester University Hospitals NHS Foundation Trust [2015] EWHC
2279 (QB) Cox J
Again Table 28 was adopted in a cerebral palsy case adopting the analysis of Swift J in
Whiten and Foskett J in Reaney.
Lost years
Totham v King’s College Hospitals NHS Foundation Trust [2015] EWHC 97 (QB) Laing J
Laing J accepted that she was bound by Croke v Wiseman [1982] 1 WLR 71 to reject a claim
for lost years for a young child but found the reasoning irrational and illogical.
Permission to appeal was granted. The proposed appeal was compromised on the basis that
the Defendant would continue paying periodical payments for loss of earnings until normal
retirement age of 70 if the Claimant lived beyond her agreed life expectancy to age 47.
Robshaw v United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB) Foskett J
Lost years claim again compromised on the basis that the NHSLA would continue to pay
periodical payments for loss of earnings beyond the Claimant’s predicted life expectancy.
Statutory funding
Harman v East Kent Hospitals NHS Foundation Trust [2015] EWHC 1662 (QB) Turner J
9
Once again confirms that a Claimant is entitled to compensation for the commercial cost of
care where the Court accepts that the Claimant will not seek state funding for future care.
The Claimant lacked capacity and his Deputy offered an indemnity to prevent double
recovery.
Disclosure of Insurance Cover
Senior v Roc UK Adventure Centres [2015] EWHC 1447 (QB) HHJ Robinson sitting as a HCJ
The Court had jurisdiction to require the Defendant to provide details as to the extent of its
insurance cover which was required so that the Trial Judge could consider the issue of form
of award as a capped level of indemnity might have a bearing on the availability of and
order for periodical payments.
Procedure
Hayden v Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1962 (QB) Edis J
The Defendant NHS Trust obtained permission to serve a defence in a personal injury claim
brought by an employee which pleaded that the Claimant had exaggerated the
consequences of her accident. They relied upon video surveillance evidence. She had
entered judgment in default in her claim for damages for a back injury arising from a lifting
incident. The proposed Defence was a bespoke solution to a particular problem; Symes v St
George’s Healthcare NHS Trust [2014] EWHC 2505 (QB) applied. The judgment meant that
the claimant was injured in an accident at work which was entirely the fault of the
defendant and that she had suffered some damage as a result of that injury. She was
therefore entitled to recover all the loss which she could show had been caused by the
accident. What loss and damage was caused by the Defendant’s negligence was part of the
exercise of assessing damages.
Wright v Barts Health NHS Trust [2016] EWHC 1834 (QB) Edis J
A sub-contractor was entitled to pursue his claim for clinical negligence concerning the
hospital treatment he received after an accident at work, which he claimed worsened his
injury. Although he had reached a compromise agreement in his claim against the main
contractor, it had not compromised his estimated loss in full. Given that the main contractor
and the hospital were concurrent tortfeasors and the release of one did not release the
other, the hospital remained potentially liable for the additional loss.
This was an application to strike out a clinical negligence claim brought against it by a roofer
who was treated by the hospital after suffering an accident at work. The roofer had been
working as a sub-contractor when he fell through a skylight and sustained a series of spinal
fractures. By the end of his hospital treatment he suffered a complete spinal cord injury and
was paraplegic. He started proceedings against the roofing company for the whole of his
10
loss. The company began negotiations on the basis that he was liable in contributory
negligence as he was the senior supervisor on site involved in the job’s risk assessment. In
the meantime the roofer sent a letter of claim to the hospital trust, claiming that he had
suffered negligent treatment that had caused the outcome of his accident to be much
worse than it should have been. In September 2014 he reached a compromise of his
personal injury claim which included a substantial, but unparticularised, discount for
contributory negligence. He then issued proceedings against the hospital trust, who argued
that the claim against them should be struck out for abuse of process as the roofer had
been compensated in full for his loss by the agreement with the roofing company and there
should be no double recovery.
Edis J held that there was a pre-clinical negligence element of the damaged caused to the
roofer for which only the roofing company was liable. That element included the loss which
occurred after the clinical negligence but which would have occurred anyway. After the
clinical negligence, there was an additional loss which would not have occurred but for the
clinical negligence. Both the hospital trust and the roofing company were liable for that
additional loss as, by causing the injury, the roofing company had exposed the roofer to the
hazard of imperfect medical treatment. However, the roofing company was liable only for
the proportion of the additional loss that remained due after the reduction for the roofer’s
contributory negligence, whereas the hospital trust was liable for all of it. The roofing
company and the hospital trust had each made a contribution to the additional loss by a
different tortious act in breach of different duties to the roofer. They were therefore
concurrent tortfeasors and the release of one concurrent tortfeasor did not have in law the
effect of releasing another. (Heaton v Axa Equity and Law Life Assurance Society Plc [2002]
UKHL 15 applied.) The proper approach to the compromise case was to focus primarily on
the construction of the agreement in its factual context. The test was whether the
agreement represented the full measure of the claimant’s estimated loss (Appleby v Devon
Healthcare NHS Trust [2012] EWHC 4356 (QB) applied.) In the roofer’s case he had not
been fully compensated. Because of the contributory negligence discount, the roofing
company was not liable for the whole of the additional loss. It had neither paid nor
purported to pay the whole loss caused by the hospital. It was therefore impossible to
construe the compromise agreement in its true factual context as providing full
compensation for the loss being claimed against the hospital trust. A settlement with one
concurrent tortfeasor did not release the others unless it was clear that it intended to have
that effect, or unless the payment clearly satisfied the whole claim.
Fraud
Hayward v Zurich Insurance Co Plc [2016] UKSC 48
Insurers who settled a personal injury claim when they suspected fraud by the Claimant
would be entitled to set aside that settlement if they later discovered proof of fraud. When
seeking to set aside a settlement on the basis of fraudulent misrepresentation, insurers did
not have to prove that they settled because they believed that the misrepresentations (in
the instant case, statements made by the Claimant about the extent of his injury) were true;
they merely had to show that they had been influenced by those misrepresentations.
11
Capacity/Court of Protection costs
AB (By his Litigation Friend) v Royal Devon & Exeter NHS Foundation Trust [2016] EWHC
1024
The Court assessed damages in a clinical negligence claim brought by a protected party. It
accepted the submissions of the NHS trust that any lack of capacity on the Claimant’s part
derived from his abuse of illegal drugs, rendering any consequential losses irrecoverable
under the ex turpi causa principle.
The Court clarified the position that where a Claimant lacked capacity for other reasons
than drug abuse, that complication would have been equally unforeseeable but the
Defendant would have had no proper argument for excluding the consequential costs.
RHIANNON JONES QC
Byrom Street Chambers
Manchester
5 October 2016.
12