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Williams v Devon County Council, Court of Appeal

25 March 2003
The issues

Contributory negligence – Part 36 Payment – incidents of benefits – Compensation Recovery Unit Benefits.

The facts

The Claimant was a Kitchen Manager at a school for which the Authority was responsible. One day as she was carrying a menu board into the school fall she fell over a gym bench placed across the doorway. She suffered an injury to her left shoulder. The Trial Judge found contributory negligence of one third and after assessing damages on a full liability basis, reducing them. Accordingly, the Defendant succeeded on the Part 36 Payment. The full liability figure was £34,587.00. The Judgment was for £23,058.39. Part 36 Payment had been made of £10,000.00 aggregated to a total of £25,699.91 in accordance with the Certificate of Recoverable Benefit. The Judge ordered that the Claimant pay the costs. The Claimant appealed on the issues of contributory negligence and on the basis that she had in reality beaten the Part 36 Payment, in that she had done better at Trial in terms of cash in hand than she would have done, had she accepted the payment. The Court of Appeal gave leave on the basis of a similarity to the pre CPR case of Davies -v- Inman. The Defendant resisted the Appeal on the basis that since Davies -v- Inman the rules had changed and that the sum in Court was expressed to be inclusive of the Compensation Recovery Unit benefits and moreover that the Claimant had exaggerated her case and that the decision of the Judge had recognised this.

The decision

1. The Appeal would be allowed on contributory negligence. The Judge had imposed an unrealistically high standard of care. Nothing had been adduced to suggest that she ought to have known something was across the doorway.

2. Although no longer necessary for the purposes of dealing with the Appeal, the Court would give guidance on the issue of the relationship between Part 36 Payments and benefits. The anomaly arose from the fact that the 1997 Act made no provision for contributory negligence and so the compensator was required to pay the full amount on the Certificate. Where a Certificate was for an amount exceeding any realistic quantification of the relevant head of damage, the amount in the Certificate would impinge on the general damages if the Certificate was taken into account in full for the purposes of the payment.

3. This could not have been Parliament’s intention, as general damages were clearly ring-fenced.

4. The touchstone was that the Claimant was entitled to the full value of his general damages. There was therefore an onus on the compensator to calculate the realistic level of recovery on the part of the Claimant.

Appeal allowed.


This is an unhelpful decision from the point of view of a Defendant. It places an unrealistic burden on the part of a Defendant faced with an exaggerated claim on the part of a Claimant and appears to absolve a Claimant of responsibility with regard to the valuing of his claim. Surely that flies in the face of all we were told the new regime was going to sort out. The Court of Appeal has on previous occasions made it clear that a Defendant is prima facie entitled to accept a claim made by a Claimant at face value. (See Lowndes). A suggestion has been made that the Rules Committee may be interested in the point. Insurers are urged to make appropriate submissions if this proves to be the case.

For further information please contact Mark Fowles at Veitch Penny on markfowles@veitchpenny.co.uk.

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