Two Bites Of The Cherry

Avoiding double recovery where there are separate claims in respect of the same injuries

The situation where a Claimant suffers an accident and alleges negligence in his subsequent treatment is not an unusual one. However, how such claims should be dealt with procedurally can be problematic, particularly where the personal injury (PI) claim is resolved in its entirety before the claim for the clinical negligence even commences. Clearly, the Defendant has to guard against double recovery, but are there circumstances in which the claim can be denied in its entirety? That was the question which arose in the recent case of Wright v Bart's Healthcare NHS Trust.1

The facts underpinning the case were straightforward; the Claimant suffered significant injures in an accident at work, he was admitted to hospital where he suffered a sudden and unexpected deterioration in his condition which resulted in paralysis. The Claimant attributed this deterioration to negligent treatment.

It emerged that the Claimant had previously intimated a PI claim which had settled preaction, at a significant discount for contributory negligence. Given the early stage at which the claim was settled, we were told that only a condition and prognosis report had been obtained. The same report had also been served in support of the claim for clinical negligence, and made no attempt to distinguish between the damage caused by the fall, for which the employer would be liable, and the additional injuries referable to the alleged negligence on the part of the Trust. In other words, settlement of the PI claim was reached on the basis of the full loss suffered by the Claimant.

The question therefore arose as to whether, having settled his PI claim for less than the value of the claim, the Claimant could subsequently sue the Trust for the same damages on the ground that the negligence of the Trust was also a cause of his disability.

This issue was had been deliberated in two of House of Lords cases, Jameson2 and Heaton3. Combined, the effect of the authorities was to preclude a Claimant from subsequently bringing a claim against a second tortfeasor having accepted against the first tortfeaser damages which were intended to be in full satisfaction of the claim, even if the sum accepted was less than the sum likely to be awarded at trial, assuming liability was established. The question whether the settlement was intended to represent the full loss would depend upon the construction of...