Choosing your words carefully - a lesson for Defenders in personal injury claims

  • Insight

05 November 2018

A recent decision of the court in a road traffic accident claim has emphasised the care needed with the wording of a joint minute where one is being used to reach agreement between the parties. The Court of Session said in its judgment that such joint minutes are to be treated as a contract and therefore enforced as such. 

The accident

The defenders to the action were ASDA and DHL. Both companies were found liable for an accident in which ASDA’s employee, Mr M, hit DHL’s employee, Mr R, while turning right off the A977. Mr R was in the process of over-taking Mr M when the collision happened. Mr R’s vehicle veered off the road, down an embankment and into the pursuers’ garden nearby, spilling thousands of gallons of volatile aviation fuel over the property in the process. The pursuers, a family of three, were unable to stay at the property for two years following the accident and sued the defenders for the costs incurred by them as a result.

The court’s decision

Lord Woolman held that Mr M was negligent in undertaking the right turn, and that Mr R was negligent in undertaking the overtaking manoeuvre. He then apportioned the contribution towards damages as 75% to ASDA and 25% to DHL.

The amount of the damages had been agreed in advance of the court hearing by way of a joint minute of agreement between the parties. The joint minute stated:

‘In the event that the first and second defender, or either of them, is found liable to make reparation to the pursuers, quantum of damages is agreed to the date of proof in the following sums:

i. £75,000 to the first pursuer;
ii. £20,000 to the second pursuer; and
iii. £5000 the third pursuer.’

After Lord Woolman’s finding that the drivers had been negligent, DHL tried to argue that it should only have to pay the first pursuer, and not the second and third pursuers. However, Lord Woolman said that the terms of the joint minute precluded this argument. He held that the joint minute is a contract. Once the defenders were found liable, the condition for payment was met and so payment to all three pursuers had to follow.

This decision is a reminder that any joint minute dealing with quantum must be carefully worded.   If the joint minute contains a condition for payment, and that condition is then met, the defenders will not be able to subsequently argue against making payment.
Our personal injury team has extensive expertise advising on personal injury and fatal accident claims as well as on the negotiation of joint minutes. For more information, contact Sarah Phillips.

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