When is a personal injury settlement ‘final’?

29/08/2016

Can you be bound by a personal injury settlement reached by a third party over which you had no control or say? 

Our Personal Injury Department recently acted for a female Claimant making a dependency claim arising from the death of her partner from mesothelioma due to occupational asbestos exposure caused by his former employers.

Her partner died without making a Will. Because they were not married, she was not able to make a claim under the Law Reform (Miscellaneous Provisions) Act 1934 (LRMPA) in respect of the pain, suffering and loss of amenity he suffered before his death.

The adult children of the deceased from his marriage (his wife having pre-deceased him) settled a LRMPA claim on behalf of his estate with the insurers for the negligent employer.

Fatal accidents Act 1976

After instructing Stephen Green, a Partner and personal injury specialist at Pinney Talfourd, our Claimant made a dependency claim under the Fatal Accidents Act 1976 by virtue of her 6 year co-habitation period with the deceased.

The employers insurers made an admission of breach of duty and causation.

However, solicitors for the insurers then sought to withdraw from the admission of liability raising a complete defence to the claim. They relied on the LRMPA settlement with the children of the deceased (who were represented by solicitors) on the basis that it was in ‘full and final settlement’ and maintained that the Claimant therefore lost any entitlement to make a dependency claim.

They were arguing that the Claimant was bound by a settlement reached by a third party over which she had no control or say.

Using case law

We relied on a Court of Appeal decision, Reader and others v Molesworths Bright Clegg (a firm) [2007] 3 All ER 107, which states that once death occurs (provided that the personal injury claim is not concluded) a dependency claim can arise.

Furthermore, it was a matter of construction of the terms to decide whether the settlement disposed not only of the claim of the deceased but also any dependency claim.

With careful analysis of the earlier settlement terms, Stephen Green used the Reader case in his arguments and successfully argued that the Claimant was not bound by these terms.

The claim subsequently settled for a substantial sum.

This case illustrates the importance of ensuring that any settlement terms made by a party involved in asbestos litigation (and potentially certain other types of litigation) expressly exclude making a settlement on behalf of any other potential parties.

MORE INFORMATION

Stephen Green is an Accredited Fellow of APIL and member of the Law Society Personal Injury Panel. He is renowned for his meticulous approach to his cases and has won high level compensation for many victims of mesothelioma and asbestos related disease.

Please contact our Personal Injury Department on 01708 229444  (Upminster or Hornchurch), 01277 211755 (Brentwood office) or 01702 418433 (Leigh-on-Sea).

This article was written by Stephen Green, a Partner and personal injury specialist at Pinney Talfourd Solicitors. Stephen is based in our Hornchurch office. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. The law may have changed since this article was published. This article is based on the law as at August 2016.

29/08/2016

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