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Thompson & Ors v Arnold, High Court, 6 August 2007

3 September 2007
The issues

Fatal accident claim – whether a fatal accident claim on behalf of the dependants of the deceased could be brought where a claim for personal injuries had already been settled in the deceased personís lifetime; Read v Great Eastern Railway.

The facts

Wendy Thompson had consulted her GP, who was the Defendant, when she was 31. She had a lump in her left breast. The Defendant diagnosed the lump as benign. It was not. if the diagnosis had been made correctly, the probability was that Wendy Thompsonís life would have been saved. By the time that it was apparent that it was wrong, it was too late. In September 1999, with only a short time to live, Wendy Thompson issued proceedings against the Defendant. The Schedule of Loss annexed to the Particulars of Claim stated that the evidence was that she would die of cancer in the next 12 months and that her claim was for personal injury and consequential losses during her lifetime and funeral expenses. After her death a separate claim would be pursued by her dependants pursuant to the Fatal Accidents Act 1976. Wendy Thompson settled the lifetime action and a Consent Order was made on the 20th January 2000 awarding the Claimant £120,000.00 in full and final settlement of her claim. She died on 10th April 2002. Read v Great Eastern Railway established that, where a Claimant pursued to Judgment or settlement a claim for damages for an injury which subsequently proved fatal, the Claimantís dependants could have no right of action under the Fatal Accidents Act. The Defendant took the point as a preliminary issue. The Claimant argued firstly that the construction of the Fatal Accidents Act adopted in Read and subsequent cases was wrong. Secondly, the Claimant argued that no authority had considered the question of construction since the coming into force of the Human Rights Act 1996 Section 3 which provides ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible withÖconvention rightsî. Thirdly, the Claimant argued that the Defendant should not be permitted to rely upon the settlement made with the deceased in her lifetime because her claim, properly construed did not extend to a claim in respect of the lost years.

The decision

The Court was precluded by authority from considering that Read was wrongly decided. The Claimant had argued a number of times that the construction adopted in Read was apt to defeat an entitlement of the family of the deceased. This was to look at the object of the Act as being to benefit dependants. However, the purpose of the Act was not to ensure that there was a benefit, hitherto un-enjoyed, which was to be conferred upon, for example, the children of the deceased. The focus instead was on ensuring that the Defendant did not escape paying damages which he would, but for the death which he had caused, otherwise be called upon to pay. If the tort feasor was in fact called to pay during the lifetime of the injured victim then the mischief was addressed. The Fatal Accidents Act 1976 referred to wrongful acts such as would ‘if death had not ensuedî have entitled the person injured to maintain an action and recover damages. This was a reference to the rule antedating the 1846 Act, to which the 1976 Act was an eventual successor, that death extinguished a personal cause of action, such as a claim for damages for injury. The construction for which the Claimant contended would have the effect that death would be the circumstance which brought the right of action into play. For death alone to be the qualifying event gave rise to the prospect of double recovery.

Section 3 of the Human Rights Act permitted a reappraisal of the interpretation. For the Court to do so the Court had to be clear that the interpretation offended against Article 6 or Article 8. The argument that it did was based on the argument that the statute conferred a right of action upon dependants which was barred by the operation of the Rule in Read. The Court rejected such a submission. There was no general right barred by an arbitrary Rule. Nor could Article 8 have any relevance. Not to permit a further claim against the Defendant where the Defendant had already satisfied a claim in respect of the same facts during its victimís lifetime was not to show any lack of respect for family or private life.

If the settlement agreement was to be reopened it could only be if the law of mistake permitted it. The Court had had a concern that a claim based upon the inequitable failure of the Defendant to alert the Claimant to a mistake of law which the Claimant had made in the earlier action, coupled with conduct enticing acceptance of offer known to be well below the market value, such that it would be unconscionable to rely upon a settlement based upon it, raised difficult issues for the Court to resolve. However, those issues had been resolved on the particular facts of the case and the Court was satisfied that the conduct of the Defendantís solicitor was not intended to, and did not, mislead the Claimantís solicitor into making or perpetuating her mistake. The mistake made was entirely that of the Claimantís solicitor and her Counsel. It had not been induced by any conduct on behalf of the Defendant. There is no general duty to draw a mistake to the attention of an opponent in litigation because a) there is no duty to advise an opponent; b) the adversarial system assumes that each party will seek its own advice; c) the duty of a solicitor is to his own client, subject to his duties to the Court; and d) a reasonable man would ask in any such case that the solicitor telling another party their mistake ‘whose side are you on?î.

Preliminary point determined against the Claimant.

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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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