In Wright v Barts Health NHS Trust [2016] EWHC 1834, the Claimant suffered an accident at work sustaining multiple injuries and was admitted to, and treated at, the Defendant Hospital. He is now a T7 motor and sensory complete flaccid ASIA/Frankel A paraplegic. He sought damages from his employers (‘CCRL’): settlement was reached on the basis that the gross value of the claim was about 」2m but that the Claimant would accept 」400,000 in damages on the basis of an 80% discount for contributory negligence.

The Claimant then brought a claim against the Defendant Trust. He alleged a negligent delay in decompression of the epidural haematoma which in turn led to a permanent deterioration in his clinical outcome. He alleged that with prompt treatment, he would, instead of being a Frankel A paraplegic, have been at the good end of the Frankel D range. He would have been ambulant, capable of going up and down stairs, with reasonable bladder and bowel function and some preserved sexual function.

The Defendant, represented by John Whitting QC, applied to strike out the Claimant’s claim on the basis that the claim was an abuse of process since the Claimant had already accepted settlement in another claim for the injuries which formed the subject matter of this action. The Defendant argued that the settlement with CCRL was intended to represent compensation for all of the disabilities arising from the index accident from which the Claimant now suffered. It relied on the judgments in Jameson v CEGB [2000] 1 AC 455 and Heaton & others v Axa Equity & Law Assurance Society plc [2002] UKHL 15.

Edis J. dismissed the application. He found that:

The position in this case is that CCRL and the defendant are liable in the same damage, but that damage is only part of the claimant’s loss. There is a pre-clinical negligence element for which only CCRL is liable. That element includes the loss which occurred after the clinical negligence but which would have occurred anyway. CCRL is liable for this, but the defendant is not. After the clinical negligence there is the additional loss which would not have occurred but for the clinical negligence. The hospital is liable for this, as also is CCRL. CCRL is only liable for the proportion of this part of the loss which remains due after the reduction for clinical negligence. The hospital is liable for all of it. .

It follows that if one action had been initiated against both tortfeasors and if judgment had been given against them both, those judgments would have been in different sums. This is because each made a contribution to that part of the loss by a different tortious act in breach of different duties to the claimant. They are concurrent tortfeasors, not joint tortfeasors. The short answer is that he has not been fully compensated for his loss. CCRL was not liable to compensate the claimant for the whole of the loss for which both tortfeasors were liable because of the contributory negligence discount. The defendant is liable to compensate the claimant for the whole of that loss if his current claim succeeds. The defendant is not liable for the part of the loss which was not caused by the alleged clinical negligence. CCRL has neither paid nor purported to pay the whole loss caused by the hospital (on the assumption that the claim against it succeeds on the merits). It is, it seems to me, impossible to construe that agreement in its true factual context as providing full compensation for the loss which is claimed against the hospital. The fact is that the settlement did not pay 100% of the loss for which both tortfeasors are said to be liable. In fact, on its face, it paid only 20% of that claim as it did of the claim for the rest of the loss. Although I have not accepted that this is an accurate figure, I have accepted that a substantial discount for contributory negligence was allowed in the settlement. That is a sufficient basis for this decision, but I regard the facts of this case as illustrating a general principle which is that a settlement with one concurrent tortfeasor does not release the others unless it is clear that it was intended to have that effect, or unless the payment clearly satisfies the whole claim (which is what happened when the Bank settled Webb’s case referred to above, see [13]).

It is clear that the rule in Heaton was aimed against the avoidance of injustice which would occur if the claimant recovered twice for the same loss. There is no such risk in this case. The claimant agrees that credit must be given “as appropriate” for the sum received from CCRL. It may not be altogether easy to calculate how much credit should be given in these circumstances, but that is not something I have to decide.’