A bankrupt labourer (aged 30) after the bankruptcy order issued a writ against a doctor who had treated him for back pain before the bankruptcy order, claiming damages for negligence, including damages for pain and suffering as well as damages for loss of earnings.
Held: An action for damages for personal injuries arising from negligence, brought by a bankrupt was a hybrid claim. It involved claims which were both of a personal and a proprietorial nature, and as such the claim vested in the trustee in bankruptcy. Any part of it could only remain with the bankrupt if it fell within an established exemption. Damages relating to any personal cause of action would be held by the trustee in trust for the bankrupt.
Aldous LJ said: ‘The authorities are only consistent with the conclusion that the trustee is entitled to the damages for past and future loss of earnings and is not entitled to the damages for pain and suffering. As there is a single cause of action, it vested in the trustee. There is in my view nothing in that conclusion which imposes practical difficulties with which the law cannot deal. The trustee as constructive trustee would have to account to the bankrupt for the property which he obtained inadvertently or by arrangement in an action which vested in him for the benefit of the creditors. The idea that the cause of action should vest in the bankrupt would not be acceptable and compulsory joinder of both could lead to difficulties when the claim for loss of earnings was small compared with the potential costs of the litigation. In such a case the trustee, if the cause of action vested in him, would have to consider carefully his duty to the bankrupt and would probably, if requested, assign the cause of action to him’.
Judges:
Aldous LJ, Kennedy and Mantell LJJ
Citations:
Times 11-Jan-2000, Gazette 07-Jan-2000, [2000] Ch 352, [2000] 1 All ER 193, [2000] 2 WLR 755
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Mulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
Cited – Khan v Trident Safeguards Ltd and others CA 19-May-2004
The claimant had ben made bankrupt. The defendant argued that his claim vested in the trustee.
Held: A discrimination claim was hybrid in nature rather than purely personal, and so it vested in the trustee. However the real issue was the . .
Cited – Simpson v Norfolk and Norwich University Hospital NHS Trust CA 12-Oct-2011
The court was asked whether it was possible to assign as a chose in action a cause of action in tort for damages for personal injury, and if so under what circumstances it was possible.
Held: The appeal was dismissed. The claimant did not have . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Insolvency
Updated: 11 May 2022; Ref: scu.84474