Civil litigation brief

Acting for an injured claimant who, it is clear, is likely to die as a result of the defendant's negligence poses very specific problems. The recent case of Thompson v Arnold [2007] EWHC 1875 (QB) provides an object lesson.

Thompson was a clinical negligence claim where a GP wrongly diagnosed a lump in a patient's left breast as benign when it was not. It was thus claimed that if the diagnosis had been made promptly, then the patient would have been saved.

The patient consulted solicitors and issued proceedings. The schedule of loss annexed to the particulars of claim stated that it was likely that the sufferer would die in the next 12 months and that the claim was for her personal injury losses during her lifetime. It went on to state: 'After her death, a separate claim will be pursued by her dependants pursuant to the The Fatal Accidents Act 1976'.

Agreement was reached in relation to the personal injury claim and a consent order was filed which recorded that the claimant accepted £120,000 in settlement of her claim. The patient then died two years later.

Unfortunately, for the dependants, existing authority makes it clear that a fatal accident claim cannot be made where the deceased has already been awarded or agreed damages for the injury.

For this reason, a trial of a preliminary issue took place before Mr Justice Langstaff. That issue being whether it was possible for the fatal accident action to be brought when the deceased had settled the personal injury action in her lifetime.

The arguments

The claimant's principal argument was that the older authorities on this matter were decided prior to the coming into force of the Human Rights Act 1998. The court had a duty to interpret the Fatal Accidents Act 1976 so as to protect the rights guaranteed by Arts 6 and 8 of the European Convention on Human Rights. Another argument was that the defendant should not be allowed to rely upon settlement in the current case because it did not include a claim in relation to the lost years; the mistake was a unilateral one (made by the claimant's solicitors and counsel) and the defendant should not be allowed to rely upon it.

The judge observed that the present rules allowed a soon-to-be deceased claimant to deal with this problem by issuing proceedings and obtaining an interim payment and then (after death) the dependants bringing an action under the Fatal Accidents Act 1976. (Just such an approach was advocated by a district judge giving directions in the case, but had not been taken upon by the claimant's solicitor).

The defendant appreciated that the claimant had brought a claim for personal injuries but failed to make a claim for the 'lost years' or to take steps which would preserve the position after death. They were also anxious that the matter be settled before the claimant fully appreciated the errors and omissions that had been made. After some negotiating and wrangling settlement was reached at £120,000.

No human rights breach

The judge rejected the argument that the Human Rights Act 1998 impacted upon the principle that a second action could not be brought. Entitlement to compensation is conferred by the wording of the Act, whereas otherwise there would be none. Since it was part of the definition of the right that it should only exist where the victim has not himself brought a claim to termination within his own lifetime, the effect of the construction does not bar access to an existing right.

Similarly Art 8 could not be brought into play. Not to permit a further claim against a defendant where that defendant has already satisfied a claim in relation to the same facts during the victim's lifetime did not, in the judge's view, show any lack of respect for private or family life.

Limitation Act

Section 12 of the Limitation Act 1980 states:

'(1) An action under the Fatal Accidents Act 1976 shall not be brought if the death occurred when the person injured could no longer maintain an action and recover damages in respect of any injury (whether because of a time limit in this Act or in any other Act, or for any other reason.

'Where any such action by the injured person would have been barred by the time limit in s11 of this Act, no account shall be taken of the possibility of that that time limit being over ridden under s33 of this Act.'

Once the living claimant had settled her claim she could not longer maintain an action to recover damages in respect of the injury she had suffered. This came within the phrase 'any other reason'. This was a wide phrase and extended beyond time limits. The grain of the legislation was that an action by dependants could be brought for the loss of their dependency if there has been no determination (by settlement or judgment) of the claim of the injured victim prior to death.

Mistakes of law

The claimant pursued an argument that there was an inequitable failure of the defendant to alert the claimant to the mistake of law which the claimant had made in the earlier action.

This failure, coupled with conduct enticing acceptance of an offer known to be below the market value, made it unconscionable (the claimant argued) for the defendant to rely upon the settlement.

The judge rejected this argument on the facts. The conduct of the defendant was not intended to, and did not, mislead the claimant into making or perpetuating her mistake.

The judge accepted the law, as set out by Nelson J in Thames Trains Limited v Michael Adams [2006] EWHC 3291 (QB): 'There is no general duty upon one party to litigation or potential litigation to point out the mistakes of another party or its legal advisors.'

Each case must be judged on its own facts. In the current case the mistake which was made was entirely the fault of the claimant's solicitor and counsel. This mistake was not induced by any conduct on the part of the defendant.

Further during the course of the action, the solicitors for the deceased claimant were attempting to take advantage of perceived mistakes by the defendant's solicitors. This would have led the judge to conclude, had he found the defendant's conduct unconscionable, that the claimant should be declined relief.

Lessons to be learned

The first lesson here is obvious. It is a matter of decided law that if an injured person settles an action in his lifetime then an action cannot be brought under the Fatal Accidents Act 1976. It is not possible to mention a fatal accident claim in one set of proceedings, settle that action, and then issue another action after death.

The principles put forward by the judge are hardly new. As long ago as 1972 (Murray v Shuter [1972] 1 Lloyds Rep 6) the court adjourned a personal injury action so that the dependants could claim under the Act when the victim died.

The House of Lords reiterated the principle that when the deceased had settled a claim then it was impossible for the dependants to bring another action in Jameson v Central Electricity Generating Board [2000] 1 AC 455. The dependants attempted to bring an action against a different defendant to that the deceased had settled with, however it was held that the earlier settlement meant that the deceased would not have had the right to bring an action at the date of his death.

Solace for the dependants

• Once proceedings are issued as a personal injury action they can be amended to allow a claim under the Fatal Accidents Act (see Booker v Associated Ports [1995] PIQR p375).
• Section 3 of the Damages Act 1996 states that a provisional damages award does not bar a claim under the Fatal Accidents Act 1976, although the earlier award will be taken into account in assessing damages payable to the dependants under the 1976 Act.

We may all, I think, be grateful for the confirmation that litigators do not owe a duty of care to their opponents. It is appropriate to stay quiet if your opponent appears to have made a major mistake, however it is important that no positive steps are taken to mislead.