On the contrary, in order to settle a case, whether in court or out of 
court, the claimant must "prove" the case on liability, i.e. the burden is 
on the claimant to show that the defendant has breached their duty of care 
(note that the defendant does not bear the converse burden of "proving" they 
were not negligent). That may not be the same as proof in the scientific 
sense, as in civil law the test is "on the balance of probabilities" i.e. 
greater than 50%. But don't kid yourself that settlement out of court is not 
an admission of liability. Your Trust might try to tell you that but they 
would, wouldn't they! What you may be suggesting, I think, is settlement 
without admission of liability but that only rarely happens these days in 
medical negligence cases, partly because of the influence of medical 
indemnity agencies. The vast majority of out-of-court settlements involve 
admission of liability.

Adrian


----- Original Message ----- 
From: "Tony Adams" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Wednesday, August 31, 2005 10:24 PM
Subject: Re: Sacphoids


Adrian,

As you know, only a small number of claims make it to court, as most are
settled.  Settlement is not an admission of liability, again, as you know.
The cost of fighting the case could outweigh compensating the victim for
'loss'. So, one does not have to "prove" negligence in the current system to
be compensated for pain and suffering.  It is unfortunate that there isn't
an alternative mechanism for those who have thus suffered to be compensated.

With the best will in the world, no clinical test is 100% fool-proof so
there would always be errors.


So, if there is no negligence then there are no damages


Strictly speaking you're right.  But, in practice, for the reasons set out
above, the evidence states that most cases are settled before making it to
court without any admission of negligence.


Tony Adams


-----Original Message-----
From: Accident and Emergency Academic List
[mailto:[log in to unmask]] On Behalf Of Adrian Fogarty
Sent: 31 August 2005 16:01
To: [log in to unmask]
Subject: Re: Sacphoids

I think you're confusing liability, causation and quantum (damages). Pain
and suffering are part of (general) damages, but the claimant can only make
a successful claim for damages if they can prove the case on the issue of
liability, i.e. if they can show that the doctor (or NHS trust) was
negligent, and next if they can prove causation, i.e. that the negligent act
led to the pain and suffering. The precise extent of that pain and suffering
is part of quantum. So, if there is no negligence then there are no damages.

AF