This is an application by the defendant in this clinical negligence action. The defendant seeks an order that the claim be struck out… or, in the alternative, that summary judgment be entered for the defendant… 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. (paragraph 1)
C was involved in an accident at work on 30 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 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”) … (paragraph 2)
The claim against CCRL was compromised before proceedings were issued… A Memorandum of Agreement dated 3 September 2014 recorded the agreement. (paragraph 3)
C alleges that the medical outcome would have been very much better had he been competently treated by D in 2011. His solicitors sent a letter of claim to D on 9 April 2014 claiming damages for clinical negligence which, if proved, would render D liable to pay damages to C. The claim against D 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… (paragraph 4)
The claim as advanced to CCRL was for the whole of the loss. (paragraph 5)
The present case concerns concurrent tortfeasors, that is parties who commit separate tortious acts which cause or contribute to the same damage… the rule which provides that the release of one joint tortfeasor (parties jointly and severally liable for the same tortious act) operates as a release for all does not apply to concurrent tortfeasors. (paragraph 15)
The position in this case is that CCRL and D are liable in the same damage, but that damage is only part of the claimant’s loss. There is a pre-clinical negligence element for which only CCRL is liable. That element includes the loss which occurred after the clinical negligence but which would have occurred anyway. CCRL is liable for this, but D is not. After the clinical negligence there is the additional loss which would not have occurred but for the clinical negligence. The hospital is liable for this, as also is CCRL. CCRL is only liable for the proportion of this part of the loss which remains due after the reduction for clinical negligence. The hospital is liable for all of it. It follows that if one action had been initiated against both tortfeasors and if judgment had been given against them both, those judgments would have been in different sums. This is because each made a contribution to that part of the loss by a different tortious act in breach of different duties to the claimant. They are concurrent tortfeasors, not joint tortfeasors. (paragraph 17)
C has not been fully compensated for his loss. CCRL was not liable to compensate C for the whole of the loss for which both tortfeasors were liable because of the contributory negligence discount. D is liable to compensate the claimant for the whole of that loss if his current claim succeeds. D is not liable for the part of the loss which was not caused by the alleged clinical negligence. CCRL has neither paid nor purported to pay the whole loss caused by the hospital… It is… impossible to construe that agreement in its true factual context as providing full compensation for the loss which is claimed against the hospital. The fact is that the settlement did not pay 100% of the loss for which both tortfeasors are said to be liable. (paragraph 19)
C agrees that credit must be given “as appropriate” for the sum received from CCRL. (paragraph 20)
…these applications fail and are dismissed. (paragraph 21)
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