Can causation be contested when liability is admitted?
Facts
In a personal injury claim for two heads of loss (neck and back injury), breach was admitted, and causation was denied. The claimant made two similar, but not identical, Part 36 offers. Both were to accept 90 percent of the claim for damages, and interest to be assessed, on the basis that liability was admitted.
Judgment was entered and damages were awarded.
Issues
First, were the offers genuine attempts to settle? Secondly, did the claimant better them, despite the fact that nothing was awarded for one head of loss (back injury), albeit 100 percent was awarded for the other?
Procedural history
The District Judge held that they were not genuine offers to settle. The Circuit Judge dismissed the appeal, on the basis that the defendant bettered the offers, because liability was limited to damage for only one head of loss.
Discussion
If a Part 36 offer relates to the whole claim, on acceptance the claim will be stayed. If it relates to only part of the claim, on acceptance the claim will be stayed as to that part.
For negligence, a duty of care must be owed, breached, and cause damage of a kind which is recoverable. Then, the court will determine the remedy, if it is not agreed.
In a claim for negligence, denial of causation is a bar to judgment.
Part 36 offers must be interpreted in light of both the particular words used and the pleadings. In the instant case, “primary liability” was admitted. Causation was denied. For two reasons, the offers addressed both liability and causation, and related to both heads of loss.
First, if they were concerned only with liability in the sense of breach, which was already conceded, they could not have been genuine attempts to settle.
Secondly, neither offer referred to a separate head of loss, so “the claim for damages” meant “the claim in its entirety”. A defendant is not merely “liable in tort”. He must be “liable for something”.
Conclusion
Had an offer been accepted, liability would have been admitted for both heads of loss. Then, it would be unarguable that causation in respect of one head of loss had not been proved. There was liability for only one head of loss, so the defendant bettered both offers.
As Asplin LJ concluded (with whom Males and Lewison LJJ agreed):
“In order to avoid the kind of dispute which has arisen here, especially in a low value claim, it is important to make express reference in the Part 36 offer to whether the offer relates to the whole claim or part of it and/or the precise issue to which it relates … In particular, if the issue to be settled is ‘liability’, it would be sensible to make clear whether the defendant is being invited only to admit a breach of duty, or if the admission is intended to go further, what damage the defendant is being invited to accept was caused by the breach of duty.”