Wright J v Barts Health NHS Trust

JurisdictionEngland & Wales
JudgeMr. Justice Edis
Judgment Date26 July 2016
Neutral Citation[2016] EWHC 1834 (QB)
Docket NumberCase No: HQ14C04881
CourtQueen's Bench Division
Date26 July 2016

[2016] EWHC 1834 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Edis

Case No: HQ14C04881

Between:
Stephen William Wright
Claimant
and
Barts Health NHS Trust
Defendant

Frank Burton QC (instructed by Stewarts Law LLP) for the Claimant

John Whitting QC (instructed by Clyde & Co) for the Defendant

Hearing dates: 6 th July 2016

Judgment Approved

Mr. Justice Edis
1

This is an application by the defendant in this clinical negligence action. The defendant seeks an order that the claim be struck out under CPR 3.4 or, in the alternative, that summary judgment be entered for the defendant under CPR 24. It is submitted that the claim is an abuse of process because the claimant has already accepted settlement in another claim for the injuries which form the subject matter of this action. Alternatively, it is submitted that the settlement operates to extinguish the loss and therefore as a defence to the claim.

2

The facts in outline explain how the issue arises. The claimant was involved in an accident at work on 30 th November 2011 when he fell through a skylight. He sustained multiple injuries, including a series of fractures at different levels of the spine as well as in the hip and pelvis. He was taken to the defendant's hospital for treatment. At the end of his treatment he had suffered a complete spinal cord injury at T7 level and was Frankel A paraplegic, that is to say he has no feeling or movement below the level of his injury, is wheelchair dependent and has no control over his bladder and bowels. A claim for the whole of loss was made against County Contract Roofing Limited ("CCRL") and was set out in a Schedule at rather more than £3m. CCRL did not employ the claimant but had sub-contracted work to him or to a company of which he is a controlling mind.

3

The claim against CCRL was compromised before proceedings were issued by an agreement negotiated between the legal teams at a without prejudice meeting. A Memorandum of Agreement dated 3 rd September 2014 recorded the agreement.

4

The claimant alleges that the medical outcome would have been very much better had he been competently treated by the defendant in 2011. His solicitors sent a letter of claim to the defendant on 9 th April 2014 claiming damages for clinical negligence which, if proved, would render the defendant liable to pay damages to the claimant. The claim against the defendant was being advanced before the claim against CCRL was settled. It was contended that negligent treatment at the hospital had caused the outcome to have been very much worse than it should have been. This would not relieve CCRL of liability for the whole loss unless the negligence of the hospital was such as to break the chain of causation between the fall and the final outcome. It is uncommon for cases of this kind to be resolved on that basis, perhaps because, sadly, imperfect medical treatment is a hazard of life. By causing injury which requires treatment a tortfeasor exposes the victim to that hazard. This view is supported by Clerk & Lindsell 21 st Edition at 2–119 and in Webb v. Barclays Bank and Portsmouth Hospitals NHS Trust [2001] EWCA Civ 1141 at [55] cited with approval a passage from the 18 th Edition of that work which suggested that medical treatment would only break the chain of causation if it were "so grossly negligent as to be a completely inappropriate response to the injury inflicted by the defendant." No-one in this litigation has ever suggested that the negligence of the defendant was as bad as that. Whether or not CCRL ever sought to make such a suggestion in negotiations, I consider it highly unlikely that the claimant's advisers would have attached any real weight to it, and that if CCRL's advisers had advanced it at all they would have done so without any real confidence that it would ever succeed.

5

It is quite plain that the claim as advanced to CCRL was for the whole of the loss. The Schedule said that, and it was supported by evidence from Mr. B.P. Gardner, Consultant in Spinal Cord Injuries, which described the condition of the claimant as it was in December 2012. The care claim was supported by evidence from Maggie Sargent dated 9 th November 2013. This report described the care needs of the claimant in his condition as it was at that date. No effort was made to identify within the loss caused by the accident any element which may have been avoided by better medical treatment. This was a proper way of advancing the claim. If negligence could be established against the hospital it would also be liable for the loss to the extent that it was attributable to that negligence. This means that the part of the loss which occurred after the negligence would be divided into two parts: (1) that which would have occurred even if the treatment had been careful, and (2) the additional loss suffered over and above the first part. Both the hospital and CCRL would be liable for this additional loss.

6

To the extent that CCRL was able to establish contributory negligence its liability would be reduced. That defence is not available to the hospital.

7

Mr. John Whitting QC, who appears for the defendant, submits that the compromise of the claim against CCRL renders it an abuse of process to proceed against the hospital because the claimant has already been compensated for his loss. Alternatively, that compromise operates as a defence to the claim because the claimant cannot now prove any loss. Pleadings in the case are long since closed and the matter is listed for trial in January 201The substantive defence which is the basis of the claim for summary judgment is not actually pleaded. Mr. Frank Burton QC, who appears for the claimant, does not take any technical point and resists the applications on the merits. He submits that the compromise did not in fact compensate the claimant for the whole of the loss for which he says the defendant is liable.

The compromise

8

The claimant operated as Steve Wright Contractors Limited and had been engaged by CCRL to carry out roofing work as a sub-contractor. CCRL had sub-contracted the whole of the work and had no presence on site. The nature of the relationship was such that an issue existed as to the extent of CCRL's duty to the claimant and also as to contributory negligence because the claimant was, in effect, the senior roofer on site and owed duties to workers whom he had engaged to assist him, and to himself. He was reviewing work done by others under his supervision when the accident occurred. There was an inadequacy in the risk assessment for the work and the method statement, but the claimant himself had been consulted about the risk assessment at the start of the works. A letter dated 8 th March 2013 on behalf of CCRL rejected the claim on these grounds: he was not an employee and the accident was all his fault. Contributory negligence was conceded in a without prejudice letter from the claimant's solicitors dated 14 th February 2014. A Part 36 Offer was made on 22 nd April 2014 by the claimant offering to accept 40% of the full value of the claim which was accompanied by another Part 36 Offer to accept £1.2m.

9

At a joint settlement meeting on 3 rd September 2014 agreement was reached whereby CCRL agreed to pay £400,000 plus £150,000 costs in full and final settlement of the claimants claim against it. The written Memorandum of Agreement recorded that this settlement was reached on the basis of a reduction of 80% for contributory negligence. I was told by Mr. Burton, who negotiated the agreement on behalf of the claimant, that actually the discount reflected risks as to liability and also a concern of the claimant that the claim against CCRL was causing family tension because an issue arose as to who was at fault for the unsafe system, and the claimant's son had been involved in some discussions with CCRL before the accident. I suggested to him that the written term affirming that the contributory negligence discount was 80% was not true, and he agreed. A discount of 80% in a case of this kind would be very high to an extent that it is an unrealistic apportionment of liability. It is far more likely that the claim would fail altogether if the claimant...

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1 firm's commentaries
  • Two Bites Of The Cherry
    • United Kingdom
    • Mondaq UK
    • 12 September 2016
    ...closely, and full details of the earlier settlement obtained before the merits of an application can be fully evaluated. Footnotes [2016] EWHC 1834 (QB) Jameson v CEGB [2000] 1 AC 455 Heaton & others v Axa Equity & Law Assurance Society plc [2002] UKHL 15. Appleby v Northern Devon H......

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