Claimant pays indemnity costs after failing to beat Part 36 offer

Outer Temple Chambers' barrister James Aldridge represented the Defendant in an employer's liability claims case involving a shoulder injury sustained by the Claimant, an airport baggage handler, in the course of lifting a heavy bag from a conveyor.

The key issues in the case related to contributory negligence, medical causation, and indemnity costs after a Part 36 offer.

The Claimant initially claimed about £180,000 on the grounds that the injury had forced him into premature retirement.

The Court found that the Claimant contributed to his accident to the extent of one third by failing to seek the assistance of other workers in the vicinity once he had identified that the bag was likely to be heavy.

In relation to causation, after hearing medical evidence from both sides, the Court found that the physical effects of the accident lasted but a few months. It was found that the accident highlighted the fact that the Claimant had pre-exiting degenerative changes in his shoulders which meant that it was unwise for him to continue on the heaviest of duties. Thereafter, because of disagreements between the Claimant and his employers about his working conditions, the Claimant claimed that he suffered stress. The Court found that it was the stress and the Claimant's unhappiness with his working conditions, rather than the index accident, which caused him later to take early retirement. Damages were confined to the few months immediately after the accident and amounted to some £3,500 after taking 1/3rd off for contributory negligence.

The Defendant had made a Part 36 offer of £10,000 in late 2007. The Claimant responded with a Part 36 offer of some £97,000. The Court ordered that the Claimant should pay the Defendant's costs on the indemnity basis from the date of expiry of the Defendant's Part 36 offer together with interest on those costs at 1.5% over base rate. The Court awarded indemnity costs on the grounds that the Claimant's failure to do better than the Defendant's Part 36 offer fell outside the norm in terms of the great disparity between the amount claimed and the amount recovered and the weakness of the Claimant's evidence on causation.