Multiple Defendants:Who to sue?

LINDA JACOBS & CATRIONA STIRLING17 JUNE 2015

Introduction

• Potential legal liability of multiple defendants

• Practical and procedural issues:• analysis of facts/merits• costs• discontinuance• settlement

Multiple Tortfeasors?

There are numerous examples of potential multiple tortfeasors:

• two cars crash injuring a passenger in one car

• a cyclist is injured in a RTA. As a result he fractures his wrist. He undergoes a surgical repair and the surgeon negligently severs a nerve resulting in a permanent disability

Multiple Tortfeasors?

• An employee at work suffers stress resulting in a psychatric injury due to an excessive workload and a private medical laboratory wrongly reporting that he had hepatitis

• A child falls off a school bus as the driver maneuvers off before she is safely on the pavement. Her GP belatedly sends her to hospital where she suffers a cardiac arrest. The doctor on call wrongly stops resuscitation

Legal Liability

• Basic rule: all persons are entitled to sue and are liable to be sued in negligence and for breach of statutory duty

• But: do you need to sue all potential defendants?

Liability of Joint Tortfeasors

• Defendants are deemed to be joint tortfeasors where the cause of action against each of them is the same

• i.e. the damage is the same and the same evidence would support an action against each tortfeasor, individually

Liability of Joint Tortfeasors

• The Koursk [1924], p 140 • "Persons are said to be joint

tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design … but mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be concerted action to a common end."

Liability of Joint Tortfeasors

• In Fish & Fish v Sea Shepherd UK [2013]EWCA Civ 544 the Court of Appeal held that a "common end" could be established through a tacit agreement and that it was unnecessary to prove an intention to commit a tort. It was sufficient for the parties to combine to secure the doing of acts that in the event proved to be tortious.

Liability of Joint Tortfeasors

Chandler v Cape PLc [2012] EWCA Civ 525• Asbestosis• No insurance• The Court of Appeal held that in

appropriate circumstances the law could impose on a parent company responsibility for the health and safety of its subsidiary’s employees

GPs

• GPs are often partners under the Partnership Act 1890• They are jointly and severally liable for

wrongful acts or omissions of any partner acting “in the ordinary course of the business of the firm” (ss 10 & 12)

Several Tortfeasors

• Several potential tortfeasors causing different damage

• Can occur in PI & clinical negligence claims

• Often extremely complex legally, factually and medically

Several Tortfeasors

• Intervening Acts & Breaking the Chain of Causation

• Indivisible injury: if the chain of causation is not broken, any tortfeasor at common law will be liable to compensate the injured part for the whole of the damage caused

Several Tortfeasors

• Divisible Injury: where each tortfeasor has caused a distinct injury, or the damage can be logically apportioned, the liability of each tortfeasor is likely to be limited

• BUT – it can be difficult to prove which tortfeasor caused what damage

Several Tortfeasors

• When will the chain of causation be broken?

• Courts have struggled to define the characteristics of an act that breaks the chain of causation

• A number of tests have been used

Several Tortfeasors

• PI Context: test of reasonable foreseeability

• Where a subsequent act or omission (including the claimant or 3rd party) was reasonably foreseeable at the date of the initial injury, the original tortfeasors liability will not be limited by that act or omission (see Smith v Leech Brain)

Several Tortfeasors

• Clinical Negligence Context: only gross negligence will break the chain of causation (Webb v Barclays Bank [2001])

Vicarious Liability

• Vicarious liability is an exception to the requirement for proof of a personal breach of duty

• Most common in the employment context

Vicarious Liability

• The boundaries of vicarious liability were extended in Various Claimants v Catholic Welfare Society [2012]

• Was the employee acting in the “course of his employment” when the tort was committed?

Vicarious Liability

• Two Stage Test:• Stage 1: was the relationship between

D and the tortfeasor capable of giving rise to vicarious liability? (from “employment” to “akin to employment”)

• Stage 2: was the connection that links the relationship between D and the tortfeasor and the act/omission of the tortfeasor sufficiently close (causal connection)?

Non-Delegable Duties

• Woodland v Essex County Council [2013]

• Wider test based on an antecedent relationship

• A relationship were D assumed responsibly for individuals in a “vulnerable position”

Non-Delegable Duties

Criteria: • 1. C is a patient/child/especially

vulnerable or dependent

• 2. Antecedent relationship between C&D

• 3. C has no control over how D performs the obligations

Non-Delegable Duties

• 4. D had delegated to a 3rd party some function which is an integral part of the positive duty which he has assumed towards C

• 5. 3rd party was negligent in the performance of the function delegated by D

Non-Delegable Duties

• A non-delegable duty is a personal duty owed to C by D

• It is a duty that extends beyond being careful to ensuring the careful performance of work delegated to others

Non-Delegable Duties

Impact of Woodland in clinical negligence claims• Useful in establishing a non-delegable

duty of care• Private hospitals providing services on

the waiting list intuitive• Hopefully avoid need to consider

contractual position of service agreements

• Who to sue?

• Balancing practical and procedural considerations with substantive legal analysis

• Maximise chances of recovering damages

• Minimise risk of adverse costs orders

Key themes • Start early (if you can..)

• Identify a Foundation Defendant

• Maximise prospects of success damages but -

• Be cautious and realistic about joinder of additional defendants

Merit in multiple defendant cases

• 60% chance of winning against one Defendant

• But if you sue two at 60% chance of success• chances of winning against

at least one improve• risks of losing against at

least one increase

• Q of who to sue will probably depend on scale of claim

• assess claims individually first

• all aspects you would consider in a single D case

• then look at overlap

• build an overview analysis

ASSESSMENT AND ANALYSIS

DEVELOPING YOUR ANALYSIS

• Alternative claims• Building on a

Foundation Claim/ Defendant

Practical considerations re joinder of additional

defendants

a practical example

Personal injury aggravated by medical treatment

COSTS RISKS

Co defendant costs orders

Costs orders on discontinuance

Co-Defendant Costs Orders (CDCOs)

Sanderson & Bullock orders

Grounds for making CDCOs

• Alternative/independent claims

• Reasonableness

• Merit - sustainable claim?

• Conduct - blaming each other?

Discontinuing

I’ve started so I must finish...

DISCONTINUANCE COSTS

• r 38.6 orders are automatic

• and very difficult to displace

• unforeseen change of circs + unreasonable conduct by D

• Avoid late

discontinuance

• Be cautious and realistic about joinder

• Minimise costs exposure

• Be alive to the need to settle all party costs before you accept a settlement

Discontinuance practice points

Settlement

• Consult r 36.15 before accepting an offer that does not include all Ds

• Multiple Ds = multiplied delays

• Negotiating advantages for early settlement:– Spread settlement– Avoidance of multi D action costs risks

Protection against costs

• Pre-action correspondence• Consider how you can limit

costs exposure• Leave a deliberate paper

trail• Record your

reasons/decision• Use counsel

QOCS

• Post April 2013 regime

• QOCS = shield against costs when C loses

• QOCS = cap against costs when C recovers damages

• Q - will a successful D in a multiple D case be able to recover costs up to cap of damages a QOCs protected C is paid by an unsuccessful D?

Thank you

Linda Jacobs Catriona Stirlinglj@cloisters.com cs@cloisters.com

0207 827 4004 0207 827 4089