Personal Injury Brief: latest decisions July 2018
A round up of recent court decisions raising issues relating to the costs consequences of Part 36 in material non-disclosure, breaking the chain of causation, fixed costs for portal claims trumping consent orders, asymptomatic injuries as actionable personal injury claims, and genuine attempts to settle.
Non-disclosure and Part 36 – costs consequences preserved
Tuson v Murphy [22.06.18)
The Court of Appeal has overturned a decision to punish a claimant who had been accused of dishonesty, yet accepted the defendant’s Part 36 offer. The court held the offer made in the knowledge of the claimant’s material non-disclosure did not change the costs consequences.
The claimant did not disclose pertinent information about her employment until her third witness statement, by which time the defendant had knowledge. The claimant admitted that she should have mentioned her employment details earlier but denied that she had been deceitful about her health. She accepted the defendant’s Part 36 offer, which she argued had been made in full knowledge of her non-disclosure and the costs consequences of Part 36. The Court agreed, highlighting the difference between making an offer based on facts which do not change significantly during the period of acceptance. The claimant was ordered to pay just the extra costs by her delayed acceptance of the Part 36 offer, and not for her non-disclosure.
Related item: Fraudulent claimants: no hiding place in a compromise
Chain of causation broken
Clay v Tui UK Ltd [23.05.18)
A judge had not erred in dismissing a claim for damages against a travel company after a holidaymaker fell from a hotel balcony and fractured his skull. The holidaymaker (and his family) had been trapped on the second floor balcony as a result of a defect in the balcony door lock (for which the defendant was liable). However, the attempt to climb over the balcony balustrade onto a neighbouring balcony was so unreasonable in the circumstances that it broke the chain of causation.
The Court of Appeal held it was necessary to weigh “the degree of inconvenience” against the risks taken. The claimant’s actions were sufficiently unreasonable to ‘trump’ the defect with the lock.
Contact: Claire Mulligan
Fixed costs on claims commenced within the Portal, even if settlement order says otherwise
Bratek v Clark-Drain Ltd [30.04.18)
The claimant pursued a claim through the Pre-action Protocol for Low Value Personal Injuries (EL and PL) Claim. Liability was denied and the claim exited the Portal process, settling before trial. The settlement order erroneously referred to the costs being assessed if not agreed – rather than being the subject of fixed recoverable costs pursuant to CPR 45.29. The claimant sought to recover standard costs of approximately £24,000 as opposed to fixed costs of £10,000, arguing that the order took the matter outside the fixed costs regime. The court held that parties cannot contract out of the provisions of CPR 45.29. A claimant’s costs are limited to fixed recoverable costs in cases which start within a low value protocol.
Contact: Heidi Swales
Actionable personal injury
Dryden v Johnson Matthey Plc [21.03.18)
The appellants were exposed to platinum salts whilst working for the respondent in factories making catalytic converters, resulting in platinum salt sensation. The Supreme Court held that the condition qualified as an actionable personal injury, even though the condition was asymptomatic. It was held that personal injury could be regarded as a physical change making the sufferer appreciably worse off in terms of their health or capability, even if that change was hidden and symptomless.
Contact: Philippa Craven
Genuine attempt to settle
JMX (a child) v Norfolk and Norwich Hospitals NHS Foundation Trust [07.02.18)
The High Court rejected the argument that a Part 36 offer to settle a high value clinical negligence claim for 90 per cent of its value was not a genuine offer. The claimant offered to accept 90 per cent of the damages and went on to beat this at trial. The defendant argued that the offer was not a ‘genuine attempt’ to settle the proceedings on the basis the offer was a significant under-evaluation of the litigation risk, and the claimant had not explained his reason for the 10 per cent discount. Both points were dismissed by the judge and the claimant was afforded the costs protection by the offer.
Contact: Christopher Malla