Irving v Hiddleston
| Jurisdiction | Scotland |
| Judgment Date | 23 January 1998 |
| Date | 23 January 1998 |
| Docket Number | No 70 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lord Macfadyen
ContractDamagesPersonal injuriesCompromiseSolatiumAgreement between parties and insurance company sending cheque to agents for pursuer in settlement of that claimWhether acceptance constituted compromiseWhether further damages claimable
The pursuer suffered personal injuries in a road traffic accident caused by fault on the part of the defender. Her agents intimated a claim to the defender's insurers. Discussions followed in the course of which claims were advanced in respect of various heads of loss, includingsolatium and loss of earnings suffered by the pursuer's husband. The defender's insurers made a number of payments, culminating in payments in respect of an agreed amount of solatium and in respect of the pursuer's husband's loss of earnings. These payments were accepted. The pursuer subsequently brought an action in which she made further claims in respect of loss of employability and loss of personal and necessary services under secs 8 and 9 of the Administration of Justice Act 1982. In the circumstances the defender argued that the claim had been compromised and that the pursuer was not entitled to maintain the other claims. The preliminary proof on the question of compromise was thereafter heard before the Lord Ordinary (Macfadyen).
Held (1) that the burden of proving that the defender's liability had been discharged rested on him and the scope of such discharge was a matter to be judged by objective inference from the whole circumstances of the case; (2)that a person injured by a wrongful act had only one claim for damages in respect of the loss, injury and damage suffered and each item of pecuniary loss did not constitute a separate claim; but (3) that it was not impossible for the injured person and wrongdoer, before litigation, to reach agreement on the settlement of certain items of loss, and to implement that partial settlement, without discharging the whole claim; and (4) that although negotiations had begun and were conducted as if aimed at complete settlement of the pursuer's claim and concluded with compensation being paid for each of the heads of damages which were advanced during the currency of negotiations, the sums sent in respect of solatiumwas expressly identified as being that sum and the terms in which that took place were sufficient to outweigh the circumstances that might be regarded as favouring the inference of total discharge and disabled the defender from discharging the burden of proving that the settlement had discharged the pursuer's whole claim; and proof before answerallowed.
Rosemary Irving brought an action of damages in the Court of Session against George Hiddleston in respect of personal injuries sustained by her in a road traffic accident caused by the defender on 23 May 1994. Negligence was admitted.
The cause thereafter called for preliminary proof before the Lord Ordinary (Macfadyen) on the question of whether the claim had been compromised.
Cases referred to:
Crudens Ltd v Tayside Health BoardSC 1979 SC 142
Davies v HunterSC 1934 SC 10
Delaney v StirlingUNK (1893) 20 R 506
Dickson's Trustees v Dickson's Trustees 1930 SLT 226
Dillon v Napier, Shanks & Bell (1893) 30 SLR 685
Dunlop v McGowansSC 1980 SC (HL) 73
Evenoon Ltd v Jackel & Co Ltd 1982 SLT 83
Gatty v Maclaine 1921 SC (HL) 1
Henderson v MacLellanUNK (1886) 13 R 1000
Lyons v AndersonUNK (1886) 13 R 1020
McHarg Houston & McFarlane v Newman [not reported] (Sheriff Court) 1 August 1983
McPhee v Heatherwick 1977 SLT (Sh Ct) 46
McSheehy v MacMillan 1993 SLT (Sh Ct) 10
North British Railway Co v Wood (1891) 18 R (HL) 27
Steven v Broady Norman & Co LtdENR 1928 SC 351
Stevenson v Pontifex & WoodUNK (1887) 15 R 125
Textbook referred to:
Stair, Institutions, I vii 9; I xvii 2
Walker and Walker, Evidence, p 67
At advising, on 23 January 1998, the Lord Ordinary allowed a proof before answer on the question of quantum of damages.
LORD MACFADYENIn this action the pursuer seeks damages from the defender in respect of personal injuries which she claims to have suffered in an accident which occurred on the road from Moniaive to Dumfries on 23 May 1994 when he drove his vehicle into the rear of her car. For the purposes of this action the defender admits the circumstances of the accident, and admits further that it was caused by negligence on his part. Quantum of damages is not, however, the only outstanding issue. The defender's second plea-in-law is to the effect that the pursuer's claim has been compromised, that any liability he may have had to her has accordingly been discharged, and that he should therefore be assoilzied. A preliminary proof was allowed in respect of the parties' respective averments bearing on that plea. I have now heard that preliminary proof.
At the time of the accident the pursuer had the benefit of a policy of insurance with a company called Claims Protection Plan Ltd (CPP) which provided her, at no further cost to her, with the services of solicitors to pursue on her behalf such claims as might be competent to her in consequence of the accident. She completed an accident report form under that policy, and CPP passed the papers to Paul Gebal & Co, solicitors (Gebals). It is convenient to note at this stage that, apparently by mistake, CPP sent two separate letters of instruction to Gebals, and that resulted in the opening by Gebals of two separate files, with separate reference numbers, in respect of the pursuer. There was some duplication of correspondence until the mistake was noticed at about the end of August or beginning of September 1994. In the event, although there were some minor variations in language between corresponding letters in the two series, it does not appear to me that anything of material significance turns on the fact that there were two files instead of one. On receipt of their first instructions from CPP, Gebals on 9 June 1994 intimated the pursuer's claim to the defender and to his insurers, the Eagle Star Insurance Co Ltd (Eagle Star), and advised the pursuer that they had done so. The claim intimated was a claim for loss, injury and damage arising out of the motor vehicle accident on [23 May 1994]. In the letter to the defender they added that full details of the claim would follow, and asked him to pass the letter to his insurers. With the letter to the pursuer they enclosed a medical records mandate form, which incorporated a rudimentary questionnaire, and asked her to complete and return it. They added: If there is anything else to be recovered apart from compensation for injury could you please let us know.
The pursuer completed the mandate, giving her date of birth, her occupation as a shop assistant, and the period of absence from work as 24 May to 1 June (or, in the second version of the form, 31 May) 1994, and identifying her general medical practitioner as Dr Lowry. Gebals then sought a medical report from Dr Lowry. On 16 June, Eagle Star intimated that negligence is not in dispute and sought details of the claim with documentary evidence to support it. On 17 June the pursuer wrote to Mr Moffat, the partner in Gebals who was dealing with g the matter, and advised him that she had had to pay a 75 excess to obtain release of her car from the garage where it had been repaired and wanted to claim that sum back. She also stated that she wanted to claim for her husband's loss of earnings during the period when she had been bedridden. On 4 July Gebals forwarded to Eagle Star the receipt which the pursuer had provided in respect of the excess payment, and stated a claim for 100 in respect of loss of use and inconvenience. They confirmed that they were seeking a medical report on the pursuer's injuries, but asked Eagle Star for an interim payment in respect of the vehicle expenses (see no 19/26 of process which shows that that was the wording of the letter as sent, not vehicle excess as in the copy no 15/15 of process). On 5 July they forwarded Dr Lowry's report, which was dated 21 June, to Eagle Star. On 11 July Eagle Star sent a cheque for 175. Their letter did not expressly identify what it was for, but in the circumstances it is clear (and it is not disputed) that it represented payment in full of the excess and loss of use claims. On 14 July, Gebals passed the cheque to the pursuer (to whom its amount came as a pleasant surprise, since she had not been told that the loss of use claim was to be made), and advised her that having received the medical report they were attempting to negotiate some compensation for her. (Their file contains another letter of the same date, to CPP, the terms of which caused some confusion. It bore to advise them that This action [sic] has settled on a full and final liability basis. Mr Moffat explained in evidence that the purpose of the letter was to enable the pursuer's insurers to reinstate her no claims bonus entitlement. While that explanation fails fully to account for the terms of the letter, in the event I do not consider that anything turns on the point.)
Meanwhile, on 13 and again on 15 July Eagle Star wrote to Gebals saying We are prepared to offer 400 for injury (or in the letter of 15 July for generals). There appears to have been some confusion in reporting those offers to the pursuer. Going by the file numbers, the offer of 13 July was reported by a letter dated 1 September which sought instructions as to whether the offer was acceptable but offered no advice, whereas the offer of 15 July was reported earlier by letter of 24 August which advised that it was on the low side and suggested it should be rejected. That letter of 24 August also contained the sentence: We await hearing from you together with confirmation of any loss of earnings to be included. In her undated reply to the letter of 24 August, the pursuer accepted the advice tendered and rejected the offer. She took the reference to loss of earnings to relate to the claim for her husband's loss...
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