Click here to download this Case Note by David Juckes.
HHJ Grimshaw has given summary judgment in a case brought for Fatal Accidents Act 1976 damages arising from mitral valve replacement surgery. The Deceased had settled with a manufacturer involved in the components of his replacement during his lifetime. His widow then sought to sue the hospital for failures in his care. It was held that this was impermissible under section 1(1) of the FAA and following Thompson v Arnold [2007] EWHC 1875 (QB).
Background
Mr Ritchie underwent heart valve replacement surgery at the Defendant’s hospital in March 2015. In 2018, he fell ill, suffering unpleasant and increasingly debilitating symptoms and a deterioration in his sight. He underwent re-do mitral valve surgery in July 2021 but suffered an intra-operative aortic dissection, leading to a brain injury.
Samples from Mr Ritchie’s old synthetic annuloplasty ring grew mycobacterium chimaera. Subsequent investigations revealed that this likely stemmed from a contaminated heater cooler unit used by the Defendant during the first procedure.
Mr Ritchie instructed solicitors and brought a product liability claim against the manufacturer of the heater cooler unit. This was one of several such claims against the same manufacturer. The parties commenced negotiations. In May 2022 Mr Ritchie’s solicitors served a Schedule of Loss which valued the claim at £346,963. The Schedule included sums for future care on the assumption that Mr Ritchie, then 77, would live only for a further year. There was a ‘lost years’ claim on the basis that his life expectancy had been reduced by 7 years.
In August 2022 Mr Ritchie and the manufacturer settled the claim for £250,000. The settlement agreement included the following wording:
“This agreement is in full and final settlement of (…) all and/or any actions, claims, (…) that Mr Ritchie, may have or hereafter can, shall or may have against [the Company] (…) in respect of any monies, damages, losses, liabilities, interest, costs, or any other relief of whatever nature and however arising, directly or indirectly, arising out of or connected with the infection, the Claim or the underlying facts relating to the infection or the Claim including without limiting the generality of the forgoing any claim under the Law Reform (Miscellaneous Provisions) Act 1934, the Fatal Accidents Act 1976 or otherwise (…)”
In October 2022 Mr Ritchie died. An inquest was held in October 2023. After the inquest, Mr Ritchie’s solicitors now acting for his widow, wrote to the Defendant alleging deficiencies in the care provided by the hospital including a delay in diagnosis. The Defendant responded by requesting the settlement agreement, following which it argued that the agreement with the manufacturer was a full and final settlement which had fixed the measure of the loss and the Claimant could bring no further claim.
The Claimant issued proceedings seeking a bereavement award and financial dependency. In response the Defendant issued an application for strike out or summary judgment.
The case came before HHJ Grimshaw in the County Court. The Defendant argued that Mr Ritchie had already pursued a claim to settlement for his injury and the fact that it later proved to be fatal did not create a right of action, per Thompson v Arnold. The settlement agreement was full and final and the losses allegedly caused by the Defendant fell within the losses that the Deceased alleged were caused by the Company and upon which his claims were advanced. As such, Jameson & Anr v Central Electricity Generating Board [2000] 1 A.C. 455 and Generating Board [2000] 1 A.C. 455 and Heaton and Others v AXA Equity & Law Assurance Society Plc and Others [2002] 2 AC 329 applied. The Claimant could not advance a further claim.
The Claimant argued that, insofar as Thompson and its predecessor case Read v Great Eastern Rly (1868) LR 3 QB 555 applied, they were wrongly decided. In any event the settlement was not reached utilising the traditional approach of pleadings and expert evidence, but instead, a broad-brush approach was taken. There had been no Counter Schedule of Loss or any detailed discussions as to quantum. If there was any doubt that there was even a £1 shortfall in the Deceased’s recovery of damages below full satisfaction of his claim, that was enough for him to have been able to bring a further claim during his lifetime against the Defendant under s.1(a) of the Fatal Accidents Act 1976, and thus the Claimant could pursue her claim.
The Decision
HHJ Grimshaw carefully considered the judgment of Langstaff J in Thompson, including paragraph 5 where Langstaff J stated, “it ought to have been well known by any reasonably proficient personal injury practitioner that case law (Read v Great Eastern Railway (1868) LR 3 QB 555) had established well over a hundred years before that where a claimant pursued to judgment or settlement a claim for damages for an injury which subsequently proved fatal their dependants could have no right of action under the Fatal Accidents Act 1976.” He also considered the judgment of the House of Lords in Jameson which set out the bounds of the inquiry a court may make into whether a settlement against another tortfeasor brought to an end his cause of action against others. The question was whether the sum received was intended to be in full satisfaction of the tort. He noted the gloss placed by the subsequent case of Heaton in which Lord Rodger noted that, “the proper question is whether, when construed against the appropriate matrix of fact, the terms of the settlement show that the parties intended that the agreed sum should be in full satisfaction of the wrong done to the claimant.”
Having reviewed the authorities, the judge held that Thompson applied and was binding. He noted that personal injury practitioners knew that where their client was dying, advice ought to be provided as to whether the claim is better dealt with in life or after death. A choice had to be made. Settlement against one tortfeasor did not, of course, automatically release the Defendant from liability. The Court should not, however, embark on a detailed inquiry to calculate whether it would have awarded the same at trial. The first claim had clearly included a lost years element and the agreement itself excluded any further claim under the FAA or Law Reform Act. This indicated that the Deceased had been aware that no further claim could be advanced against the company once he had died and that the agreement was intended to cover all losses. Whilst the settlement sum was lower than the Schedule of Loss, settlements did require a degree of compromise on both sides and this did not mean that Mr Ritchie had not received full satisfaction.
Accordingly the judge held that Mr Ritchie had already received full satisfaction for his claim during his lifetime. The claim did not fall within s.1(1) of the FAA. The Claimant could not bring a claim for further losses.
HHJ Grimshaw then considered whether to strike out the action or give summary judgment. He noted that the Claimant’s statement of case disclosed a cause of action recognised in law and a reasonable ground for bringing the claim if her case about full satisfaction was correct. The issue was not a deficiency with the pleading. He had found that Mr Ritchie had received full satisfaction and thus an essential element of the cause of action was missing. In the premises the more appropriate route was to enter summary judgment.
Comments
This case is a useful reminder to claimant practitioners of the potential risks that come when consulting with a client whose life expectancy may have been affected by a personal injury. Thompson remains binding. A client who has settled their claim will no longer be entitled to maintain an action and therefore any dependency claim will fail the requirements in section 1 (1) of the FAA. Whilst this appears a straightforward point of practice, complications can arise where, as in this case, there may be multiple tortfeasors or it becomes apparent only late that another party may have borne partial responsibility for the injuries.
Care is therefore required when drafting settlement agreements in cases where there may be multiple tortfeasors, particularly where a dependency claim is intended to be brought. Specialist advice should be sought in complex situations.
The comments of the judge on the principles of strike out versus summary judgment may well be worth considering. The judge declined to strike out the case: he held that the pleadings disclosed a valid cause of action. He instead gave summary judgment on the basis that an evidential ingredient for the cause of action was missing. It is difficult to see how this squares with the various cases in which strike out has been granted on the basis that the claimant lacks expert evidence to support their case
Where it is suspected that a claimant lacks expert evidence, defendants will frequently issue strike out applications on the basis that the pleadings disclose no reasonable grounds for bringing the claim, following Pantelli v Corporate City Developments. By seeking a strike out under this ground, the defendant is able to bypass QOCS and recover costs under CPR 44.15(a). By contrast, summary judgment brings no such advantage, a matter which the judge commented upon in this case. Advisers for claimants who are facing a strike-out application on the grounds of lack of expert evidence could adopt the points made the judge in this case. Whilst summary judgment would still be granted, their client would at least be protected from a costs judgment.
David Juckes
Hailsham Chambers
This Case Note is available to download as a PDF below.
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