Buying and selling claims – assign of the times?
Simpson v Norfolk & Norwich University Hospital NHS Trust (2011)
The Court of Appeal has now handed down its judgment in this case. The facts of this case were summarised in an earlier case round-up (‘Can you buy a cause of action?’ 20/07/11). Briefly, the issue was whether the Mr Catchpole, who contracted MRSA following admission to hospital, could assign his cause of action against the Trust to someone else, Mrs Simpson. The Claimant’s late husband had also contracted MRSA while being treated at the same Hospital.
The Court of Appeal held that the claim could not be assigned because the Claimant did not have sufficient interest, saying that ‘despite her honourable motives, [the Claimant] does not have an interest in Mr Catchpole’s claim of a kind that the law should or does recognise as sufficient to support an assignment of what would otherwise be a bare right of action and is therefore guilty of wanton and officious intermeddling with the disputes of others.’ While in principle a claim for damages for personal injury is a ‘chose in action’ which is capable of assignment, it will not be in the public interest to allow such an assignment to take place without having a ‘sufficient interest’ in pursuing the claim. Moore-Bick LJ recognised that what would constitute a sufficient interest would depend on the facts and circumstances of each case. However, it was clear that where the Claimant’s principal object was not to obtain a remedy for a legal wrong but rather ‘to pursue an object of a different kind altogether’ (as here, raising awareness of infection control procedures in the Hospital), the assignment would be unlawful.
Comment
This decision will be reassuring for Defendants as it severely curtails the possibility of creating a general market for buying and selling claims. Defendants should still be aware, though, that there are situations in which a Claimant may assign a cause of action legitimately, if the assignee could be seen to have a sufficient interest in pursuing the claim.
A puncture for over-inflated claims
Brighton & Hove Bus & Coach Co Ltd v (1) Sheridan Brooks (2) Merihan Tadrous (3) Nabil Tadrous (2011)
This application was brought by a bus company for contempt of court. The original claim was brought by Mrs Daoud through her litigation friend and daughter against the bus company for damages for personal injury. Mrs Daoud sustained injures when she was knocked over by a bus driven by an employee of the bus company. The claim was originally quantified at several million pounds but was ultimately settled for £40,000. The bus company brought the present claim on the basis that the Defendants had dishonestly misrepresented the extent of Mrs Daoud’s injuries to inflate damages. The bus company relied on video surveillance evidence obtained over a period of more than two years.
The Court held that the first and third Defendants knowingly made false representations to experts and thereby presented a false picture of Mrs Daoud’s limited mobility. They were therefore found to be in contempt of court.
Comment
This decision may act as deterrent to Claimants and their families from exaggerating the extent of their injuries to inflate the value of their claims. This applies not only when giving evidence to the court but also in their dealings with experts. However, it is clear that a finding of contempt of court will only be made in relatively extreme cases where representations made are so exaggerated as to amount to criminality.
From a Defendant’s perspective, the case highlights the need for vigilance against exaggerated claims and the importance of thorough investigation (with the assistance of professional agencies where appropriate).
Door to recovery held open in teacher trip case
Hadlow v Peterborough City Council (2011)
The Claimant was a teacher working in a secure facility for women operated by the local authority. It was the local authority’s policy that no staff member should be left alone with more than two women. On the day in question, the Claimant was due to teach a class of three women in a locked classroom, with a teaching assistant. However, the assistant was running late so the Claimant requested another member of staff to sit in until the assistant arrived.
The women were brought to the classroom (where the Claimant was waiting) by two escorts. Both escorts left immediately and locked the door. When the Claimant realised she was alone with the women, she attempted to get to the door and, in doing so, tripped over a chair and injured herself.
The Court of Appeal upheld the decision made by lower courts that the local authority had created a risk of injury and acted in breach of duty; the Claimant acted reasonably in trying to remedy the local authority’s breach of duty; and, although the injury had not occurred in the most likely way, the risk of physical injury was nonetheless foreseeable.
Comment
This is an interesting and unusual case, however the decision of the Court of Appeal is consistent with established rules about remoteness of damage. As long as some physical injury is reasonably foreseeable as a consequence of the breach of duty, the precise mechanism of damage is immaterial. Here it was foreseeable that the Claimant might come to physical harm being left alone with the three women and that was sufficient to satisfy the test of remoteness.
It serves as a reminder to all public sector bodies and their employees of the importance of following established procedures and guidelines, as even momentary lapses can result in surprising and potentially damaging outcomes.
Assessment of damages – separate awards for separate injuries
Sadler v Filipiak (2011)
The Claimant appealed against a decision which arose from a road traffic accident in which the Defendant admitted liability. The Claimant sustained multiple injuries including a fractured femur requiring surgical intervention, post-traumatic stress disorder, permanent scaring to the face, an eye injury, dislocation of the big toe, injury to the spleen and concussive head injury. Whilst happy with the award for special damages, the Claimant raised objections about the way the award of £32,000 plus interest for general damages had been made; it was contended that there was too much overlap and the overall figure did not reflect the severity or number of the injuries.
The Court of Appeal held that the judge was wrong in the way he assessed general damages. He should have had a separate figure in mind for each injury, added them together and then looked to see if it was a correct overall figure, rather than having a figure in mind and then breaking it down. General damages were increased to £40,000 plus interest (£47,500 before overlap was considered). The Court confirmed that appellate courts will only interfere in exceptional circumstances and where the approach taken in assessing damages is incorrect.
Comment
This case reaffirms the approach that should be taken when assessing damages. Although damages will be reduced nominally for overlap, the Claimant is still correct in detailing loss for each separate injury when assessing general damages.