May 3, 2023 · by gexall · in Civil evidence, Civil Procedure, Clinical Negligence, Part 36
I am grateful to solicitor Bethan Parry from Browne Jacobson for sending me a note of the decision of HHJ Khan in Rix -v- Wall, the details of which are set out below. The note is interesting in that it gives details of the Part 36 offers made, so we know that the claimant failed to beat them and the costs consequences. Also this is an example of a finding of contributory negligence being made in a clinical negligence case.
THE NOTE
David Rix v Patrick Wall – Trial 28/11/2023 – 01/12/2023
Manchester County Court – Claim Number F73YJ730
This is a judgment dated 7 December 2022.
THE FACTS
This was a periodontal dental claim in which breach of duty and causation had been admitted early on and a Part 36 offer of £35,000 made by the Defendant on 17 February 2021, with a subsequent £7000.00 interim being made to the Claimant on 5 May 2021.
The main issues in contention were:
- The degree of contributory negligence by the Claimant in relation to his failure to maintain plaque control and follow oral hygiene instruction:
- At joint meeting both Parties’ experts Mr Gary Simon for the Claimant and Mr James Stafford for the Defendant agreed a figure of 35%,
- The Defendant’s expert subsequently revised his view to 65% following consideration of updated records.
- The Claimant contended the figure for contributory negligence should be reduced from 35% on the basis of causative potency / causative blameworthiness arguments.
- Quantum and specifically the treatment plan for future treatment:
THE EVIDENCE
- The Claimant relied on the evidence of Professor Coulthard, who contended for full clearance of his remaining dentition, including clearance of healthy teeth with dental implants. His original treatment plan required the Claimant to undergo hip bone graft under general aesthetic.
- The Defendant’s primary case based on the evidence of Dr O’Leary was treatment by way of dentures as, it was argued that the Claimant was not a suitable candidate for implant treatment unless he obtained consistent, optimal plaque control and oral hygiene levels, which was not evident from his records. It was argued that this was on balance unlikely to occur due to the Claimant’s longstanding and ongoing noncompliance, In the event the Claimant obtained acceptable levels of oral hygiene, the treatment plan proposed was to maintain and treat remaining healthy teeth and remove only those that had a compromised prognosis and replace with implants.
THE JUDGE’S FINDINGS
HHJ Khan sitting in Manchester County Court found that the Claimant was 35% contributory negligent. He did not consider there were sufficient outstanding records to support an increase to 65%. He considered the issue of causative potency and causative blameworthiness had already been considered by the experts when coming to their figure of 35%, in line with the Defendant’s submissions in closing.
As to quantum, he preferred the evidence of Dr O’Leary and awarded compensation based on the dentures treatment plan. He did not accept the Claimant was suitable for implants and on balance would not be in the future. The Claimant had already undergone implant treatment by the date of trial. Whilst HHJ Khan found that the Claimant was entitled to do so, he found that he was not entitled to do so at the Defendant’s expense.
THE DEFENDANT’S PART 36 OFFER
Total damages awarded with the 35% reduction for contributory negligence was £24,506.52 meaning the Claimant failed to beat the Defendant’s Part 36 offer.
The Claimant’s Bill of Costs is awaited, however the implications of failing to beat the Part 36 means that the Claimant is unlikely to receive any damages once the Defendant’s costs from 10 March 2021 have been offset. Additionally, it was ordered that the Claimant was to return the £7000.00 interim payment that had been paid by the Defendant earlier in proceedings.
WEBINAR ON CONTRIBUTORY NEGLIGENCE: 5th JUNE 2023
On the 5th June 2023 I am giving a webinar on Contributory Negligence: Learning from Recent cases. Booking details are available here.
This webinar looks at the principles relating to contributory negligence and recent cases where these principles have been considered.
Cases to be covered include:
- Taylor -v- Raspin (contributory negligence in a road traffic accident, over-reliance on expert evidence)
- Macdonald -v- MS Amlin (motorcyclist colliding with stationary vehicle)
- Barry -v- Ministry of Defence ( Was there contributory negligence in hearing loss case?)
- Parry -v- Johnson (allegations of contributory negligence against a pedestrian)
- Deller -v- King (vehicle collision)
After looking a recent cases in the webinar looks at the implications for litigators and their clients.
- Pleading contributory negligence
- Where contributory negligence has been established
- Where allegations of contributory negligence have not been successful
- How claimants have responded to allegations of contributory negligence. The importance of witness evidence
- The “reverse allegation of contributory negligence” – using allegations of contributory negligence against the defendant
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Tags: Civil evidence, Clinical negligence, Evidence, Part 36
