You are right . It is not necessary to admit or prove liability in order to
settle out of court. Out of court settlements occur when one side take the
view that it would be cheaper to settle than run the risk of losing and being
responsible for costs as well as perhaps a bigger financial penalty. So as
Simon says the trust may be pragmatic but they won't necessarily admit
liability because if they did it would be tantamount to saying "if you don't
like this offer then take us to court when you will probably get more".
In my experience the claims are so far beyond the date everything happened
that juniors are rarely still around. It is the consultants who get upset when
the trust says it is going to settle without a fight.
>>> Tony Adams 09/01/05 11:45am >>>
We'll have to agree to disagree on this one.
I've known Trust solicitors to go for settlement simply because it is less
expensive and although the claimant's case is weak, it's not worth the
expense to defend. Whereas the claimant might get £500 or may a couple £K,
the cost of fighting the might run into £10,000s. The level of proof of
whether or not there is a case to answer is much lower that the standard of
proof in a civil case at court.
I think it would be very misleading and damaging for my juniors to think
that when the Trust opts to settle a case that this was because they were
> -----Original Message-----
> From: Accident and Emergency Academic List [mailto:ACAD-AE-
> [log in to unmask]] On Behalf Of Adrian Fogarty
> Sent: 01 September 2005 00:51
> To: [log in to unmask]
> Subject: Re: Sacphoids
> 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"
> 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
> 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.