Thompson v Arnold
| Jurisdiction | England & Wales |
| Judge | Mr Justice Langstaff |
| Judgment Date | 06 August 2007 |
| Neutral Citation | [2007] EWHC 1875 (QB) |
| Docket Number | Case No: 5MA06066 |
| Court | Queen's Bench Division |
| Date | 06 August 2007 |
[2007] EWHC 1875 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon. Mr Justice Langstaff
Case No: 5MA06066
(In the Manchester District Registry)
Mr Patrick Lawrence Q.C. (instructed by Irwin Mitchell) for the Claimants
Mr Adrian Hopkins Q.C. (instructed by Berrymans Lace Mawer) for the Defendant
Hearing dates: 5 th,6 th,7 th and 8 th June 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON MR JUSTICE LANGSTAFF
Mr Justice Langstaff
In its current consultation paper, CP9/07 “The Law on Damages” the Government invites comments on the inter relationship between claims under the Fatal Accidents Acts 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 as amended by the Administration of Justice Act 1982, amongst other matters. The paper apparently considers that claims for damages for mesothelioma merit special consideration. This case illustrates the problems of policy to which the inter-relationship between those Acts gives rise, and may demonstrate many features in common with claims for mesothelioma. As with such claims, by the time Mrs Wendy Thompson discovered that she had a cause of action against her former medical advisor, she was already terminally ill. Her life span (as is the case in mesothelioma) was predicted to be short. This was, and sadly, accurate.
When she was 31, Wendy Thompson consulted her General Practitioner (the defendant). She had a lump in her left breast. The defendant diagnosed the lump as benign. It was not. If the diagnosis had been correctly made, the probability is that Mrs Thompson's life would have been saved.
By the time it became apparent that it was both wrong, and negligently made, it was too late.
In September 1999 with only what was predicted a short time to live, Wendy Thompson issued proceedings against the defendant. Her solicitors were Jones Maidment Wilson.
It ought to have been well known by any reasonably proficient personal injury practitioner that case law ( Read v Great Eastern Railway (1868) LR 3 QB 555) had established well over a hundred years before that where a claimant pursued to judgment or settlement a claim for damages for an injury which subsequently proved fatal their dependants could have no right of action under the Fatal Accidents Act 1976. It was well recognised that Read had been followed or recognised at appellate level since then. Despite this, the Schedule of loss and damage annexed to the particulars of claim of September 1999 stated
“The claimant is married with two young daughters. The evidence suggests that she will die of cancer sometime in the next 12 months. Her claim is for personal injury and consequential losses during her lifetime and funeral expenses. After her death, a separate claim will be pursued by her dependants pursuant to the FAA 1976”.
Acting with the advice of Olivia Scates of Jones Maidment Wilson, and counsel instructed by her, the claimant first obtained judgment in default of defence (liability was not at this stage in issue, if it ever had been) and then proceeded to settle the lifetime action. A consent order to that effect was made on the 20 th January 2000. In its material part it provided:—
“The claimant accepts the sum of £120,000 in full and final satisfaction of her claim.”
Wendy Thompson died on 10 April 2002.
Miss Scates and counsel both appear to have been unaware that a Fatal Accident Act claim cannot consistent with existent authority be brought where the deceased has already been awarded, or has agreed, damages for his or her injury. This is all the more surprising because pause for thought might have led them to wonder how a claim for those who had not been injured directly by a tort could succeed after death, in addition to a claim by the injured party herself, when such a claim could not do so in life, and might have given them pause to consider whether there was any fetter upon a defendant being called to pay damages twice, in two separate actions, for one single incident with the possibility of overlap between the two awards.
It is to the credit of Miss Scates that in accord with the professionalism one would hope to see, she frankly admitted in the current action that she had made this mistake.
Undeterred, the claimants (the husband and two daughters of the deceased) brought a claim (on 7 April 2005) under the Fatal Accidents Act against the defendant. The claims as first advanced also included one pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the estate of the deceased: that has since been abandoned.
The preliminary issue has been taken, in those proceedings, by the defendant that the claim under the Fatal Accidents Act cannot be brought since Wendy Thompson settled her claim for damages in her lifetime. This judgment determines that preliminary issue.
The Issues
Mr Patrick Lawrence Q.C. for the claimant makes three central contentions. First, he asserts that the construction of the Fatal Accidents Act adopted in Read and subsequent cases is wrong. He recognises that this argument is not open to him directly before this court, since higher authority precludes it. However, he secondly submits that no authority has considered the question of construction since the coming into force of the Human Rights Act 1996, Section 3 which provides:
“So far as it is possible to do so, primary legislation and subordinate legalisation must be read and given effect in a way which is compatible with…convention rights”
In the light of this, Mr Lawrence Q.C. submits that the court has a duty to interpret the Fatal Accidents Act 1976 so as to secure the rights which are guaranteed by Articles 6 and 8 of the European Convention. So far as Article 6 is concerned, the effect of Read is to exclude a right of dependents to have tried a claim for damages for the loss of a dependency which they would otherwise have been able to enjoy. So far as Article 8 is concerned, the purpose of a dependency claim is to relieve financial deprivations which occurred to the family as a consequence of the death. To avoid these, and the strains imposed upon family life in consequence, is to show the respect for family life which the Article requires.
The third argument which Mr Lawrence Q.C. advances is that the defendant should not be permitted in the present action to rely upon the settlement made by the deceased in her lifetime. He contended that Wendy Thompson's “claim”, properly construed, did not extend to a claim in respect of the lost years. Accordingly, as I understand his argument, either the settlement, being incomplete, could be re-opened so that the lost years' claim could be advanced, or it subsisted with the effect that her dependents were not precluded from claiming under the Fatal Accidents Act after her death. He raised this point in his written skeleton argument (see paragraphs 43–57) but did not energetically stress it in oral argument. Rather, he relied (on the footing that the court found against his construction argument) upon cases when claims for rectification, made upon the basis that a document did not reflect the common intention of the parties, could not be pursued because one party had prior to execution of the document realised the mistake, but did not enlighten the other party. The mistake was thus unilateral, not mutual. He pointed out that in some circumstances one party to a contract who realised that the other party had made a mistake might not be able to take advantage of it. The court would prevent it. Although in Riverlate Properties Limited v Paul [1975] Ch 133 Russell LJ. had said (for the court) that a degree of sharp practice was required for this to happen, in Thomas Bates Limited v Wyndham's Limited (Lingerie) Limited [1981] 1 WLR 505, Buckley LJ. said (515G – 516C) that that reference to sharp practice was obiter. He added:—
“Undoubtedly I think in any such case the conduct of the defendant must be such to make it inequitable that he should be allowed to object to the rectification of the document. If this necessarily implies some measure of “sharp practice” so be it; but for my part I think that the doctrine is one which depends more upon the equity of the position. The graver the character of the conduct involved, no doubt the heavier the burden of proof may be; but, in my view, the conduct must be such as to affect the conscience of the party who has suppressed the fact that he has recognised the presence of a mistake.”
He went on to say that for the doctrine to apply it must be shown:
“first: that one party A erroneously believed that the document sought to be rectified contained a particular term or provision, or possibly did not contain a particular term or provision, which, mistakenly, it did contain; secondly, that the other party B was aware of the omission or the inclusion and that it was due to a mistake on the part of A: thirdly that B has omitted to draw the mistake to the notice of A. And I think there must be a fourth element involved, namely, that the mistake must be one calculated to benefit B. If these requirements are satisfied, the court may regard it as inequitable to allow B to...
To continue reading
Request your trial
-
Morrissey v Health Service Executive
...of the deceased.” 15.8 In a decision of the Queen's Bench Division of the High Court of England and Wales, Thompson v. Arnold [2007] EWHC 1875 (QB), Langstaff J. helpfully sets out the differences between a personal injuries claim taken by an individual who has suffered a shortened life ex......
-
JR (a Protected Party by his Mother and Litigation Friend JR) v Sheffield Teaching Hospitals NHS Foundation Trust
...(QB); [2012] Med LR 297Robshaw v United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB); [2015] Med LR 339Thompson v Arnold [2007] EWHC 1875 (QB); [2008] PIQR P1Wooding v Torbay District Council [1992] CLY 1558Wright v British Railway Board [1983] 2 AC 773; [1983] 3 WLR 211; [1983] 2 ......