A motorist was injured in an accident and brought a personal injury claim. He later died and his action was wrongly discontinued by his solicitors. His children sought determination of a preliminary issue as to whether they were entitled to bring a claim for dependency and damages against the other driver following the discontinuance and compromise of the deceased’s action.
The Court of Appeal said there was no authority on the issue of whether the claimant’s dependency claim had been extinguished with the discontinuance of the personal injury claim. The Judge held that it had not been. From the moment of death, there were in existence two separate causes of action; the personal injury claim was transferred to the administratrix by operation of law, and the claim for dependency out of the Fatal Accidents Act 1976.
Lady Justice Smith was satisfied that it was clear from Section 1 of the 1976 Act that if, at the moment of the death, an injured claimant had an existing cause of action arising from the wrongful act that caused his injuries and if he died as a result of the same wrongful act, the second cause of action for the benefit if the defendants came into being at that moment. Also, at the moment of death, the existing cause of action was transmitted to his estate.
Reader & Others -v- Molesworths Bright Clegg. Court of Appeal, 5 April 2007, Times Law Reports.
The claimant had been employed by a hospital as a dental senior house officer and had attended the defendant’s premises for career advice from the Post Graduate Dental Dean. She found the interview distressing and suffered a severe migraine. She claimed she requested an ambulance, which was refused, and that her plight had been deliberately ignored.
She brought a personal injury claim. The defendants said that, when they realised that she was suffering, she had been attended to. They obtained summary judgement under Part 24. The claimant’s appeal was dismissed on the basis that the defendant was not her employer and there was no general duty of care owed to her.
The claimant, acting in person, appealed to the Court of Appeal who found in her favour saying that, while the claim was strongly contested, until the claimant had the chance of advancing her case and the evidence was tested it was not possible to say that it had no prospect of being believed.
This decision could be used against us in cases where we are trying to obtain summary judgement against defendants.
Bishara -v- Sheffield Teaching Hospitals NHS Trust. Court of Appeal, 26 March 2007.