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Dear v Dorset Ambulance NHS Trust, Bristol County Court, 29 April 2005

5 May 2005
The issues

Compromise Agreement – Whether Subsequent Claim For Personal Injury Compromised By Claimant

The facts

The Claimant claimed that she had suffered injuries as a result of two accidents alleged to have occurred on 9 June 2001 and 23 September 2001 whilst the Claimant was working for the Defendant as an ambulance technician. She sued her former employers, Dorset Ambulance NHS Trust, for negligence and breach of statutory duty.

Prior to issuing these proceedings, on 6 October 2003 the Claimant had issued a claim against the Defendant for injuries sustained at work on 31 October 2000. The claim was settled by way of a Consent Order which expressly only related to that claim on 24 November 2003.

The Claimant first instructed solicitors in relation to the current proceedings on 16 January 2004. At about the same time she had also commenced proceedings in the employment tribunal against the Defendant for unfair dismissal, sex discrimination and unlawful deduction from wages with different lawyers, although she later dropped her claim for sex discrimination. The employment claim arose out of the way in which the Claimant was treated following her return from work following the injuries which were the subject of her current civil action. The evidence in the employment claim therefore partly dealt with the same facts as alleged in the current personal injury proceedings.

The employment tribunal claim came on for hearing on 29 March 2004. At the hearing, the Claimant and the Defendant came to terms. The lawyers agreed the following bespoke compromise agreement:

“The Applicant and Respondent hereby agree to accept the terms set out below without any admission as to liability in full and final settlement of:-

(a)The Applicant’s claims under case number: 3103575/2003; and
(b) All and any other claims howsoever arising which the Applicant may have against the Respondent arising from or in connection with the Applicant’s employment including the termination thereof.”

Following the settlement, the Claimant issued proceedings in respect of the current personal injury claim in the county court. The Defendant applied to strike the claim out, applying Lord Hoffman’s approach to the interpretation of written agreements as set out in I.C.S. Ltd. v. West Bromwich B.S. [1998] 1 WLR 896, at 912-913. The Defendant submitted that the claim had already been compromised by the above agreement, given that:
The factual background meant that the events giving rise to current claim must have been firmly fixed in the parties’ minds on the day the agreement was reached;
The fact that the Claimant now said that she had not intended to compromise her personal injury claim was irrelevant – the agreement should be construed objectively, not subjectively;
The agreement was unambiguous – the plain and natural meaning of paragraph (b) of the agreement was wide enough to include the current personal injury claim;
A reasonable observer with full knowledge of all the facts leading to this particular agreement would have concluded that the parties had intended to compromise the current personal injury claim.

The Defendant also relied on Sheriff v. Klyne Tugs (Lowestoft) Ltd [1999] ICR 1170 and the cases cited therein to argue that the claim was an abuse of process insofar as it related to matters which could have been covered by an award of injury to feelings in the Employment Tribunal – the claim had been comprised prior to the decision in Dunnachie v Kingston Upon Hull City Council [2004] UKHL 36 ruling out such awards in cases of unfair dismissal.

The Claimant sought to show that personal injury claims would not ordinarily be covered by compromise agreements in the employment tribunal unless this was expressly stated. She relied on obiter comments from the House of Lords in BCCI v Ali [2001] UKHL 8. This submission was also supported by the editors of Harvey on Industrial Relations and Employment Law, who citing BCCI, stated that if parties in the employment tribunal intended to comprise personal injury actions, this should be expressly stated in the compromise agreement.

Moreover, it was said on her behalf that personal injury actions were different to employment actions, as such matters would normally be dealt with by insurers.

The decision

The claim had been comprised. BCCI went no further than stating that whether a personal injury action was comprised or not depended on the particular facts leading to the agreement in the individual case, applying the test in I.C.S. Ltd. v. West Bromwich B.S. Given the factual background outlined by the Defendant, there was no reason to exclude personal injury claims from the matters compromised on 29 March 2004. Such claims were plainly “other claims÷arising from or in connection with the Claimant’s employment” and were covered by the words of the compromise agreement.

The claim was therefore struck out.

Comments

Particular thanks to Brent McDonald who prepared this report.

For further information on the above case please contact Mr Brent McDonald at BMcDonald@2tg.co.uk of 2 Temple Gardens or Marie Macfarlane at Veitch Penny Solicitors on mariemacfarlane@veitchpenny.co.uk.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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