Claims involving dental injury and damage to teeth.
This is a case summary of a dental injury claim we have successfully concluded.
The Claimant was eating a bowl of muesli purchased from her local supermarket. There was no warning on the packaging that shell may be present in the muesli. However, as she was eating, she bit on a piece of hard shell (which she believed was from a hazelnut) which broke her upper rear left molar tooth. She swallowed both shell and tooth before realising what had occurred. The Claimant initially wrote to the supermarket herself. She also obtained a statement from her husband who was present at the time of the incident confirming that she was eating the cereal when she broke her tooth.
The Defendant denied liability so she instructed Slee Blackwell Solicitors to pursue a compensation claim on a no win – no fee basis. A letter of claim was sent to the supermarket. This was acknowledged by the supermarket’s Claims Handling Agents, again denying liability. They stated that the Claimant had no evidence to prove that the damage to her tooth was caused by a hard shell contained in their muesli. In response we disclosed her husband’s witness statement. Furthermore, given the Defendant’s comments regarding product specification we sought disclosure of all documentation in relation to inspections carried out at the time of production to ensure that no nut shells were present in the muesli. The supermarket provided disclosure, including a hazard analysis study of the cereal and the product specification for roasted hazelnuts. We noted that under the same product order it specifically mentioned nut shell and specified that one shell per 25 grams of hazelnuts was the permitted amount.
The Claimant’s dental records were requested from her dentist as well as details of treatment costs. The Claimant provided disclosure of those records which included a report confirming the pre-accident condition of the tooth and the subsequent damage suffered. Unfortunately as a consequence of the accident the Claimant’s tooth deteriorated and led to her suffering infections. As a result she decided to have the tooth removed. Due to the fact that the tooth was so fragile the dentist advised that a crown was not possible and that implants were the only option.
Following receipt of disclosure, the supermarket’s representatives referred the matter to the manufacturers of the muesli. The manufacturer wanted to conduct a full product traceability. Details of the ‘best before’ date on the product was provided as requested by them. The manufacturer also denied liability and provided disclosure in relation to the hazelnut kernels used in the cereal. The manufacturer denied responsibility on the basis that they adopt a strict and thorough process for detection of contaminants and that quality control of the product is inspected to a high standard on several occasions throughout the production process to remove contaminants.
Further submissions were put to the supermarket and various offers to settle were made by the Claimant. However their insurers simply confirmed that liability remained in dispute; the supermarket took the view that if anyone was responsible it was the manufacturer and the manufacturer took the view that there was no evidence that the product was defective.
Given the stance on liability a medico-legal report was obtained from an independent dental expert confirming that on the balance of probabilities the Claimant’s injuries were consistent with her account of what had happened. We sent the medical report to the insurers of both the supermarket and the manufacturer making a further offer to settle. Both Defendants rejected the offer and continued to deny liability. As there were concerns regarding the evidential burden on the Claimant in showing that the tooth was broken as a result of a nut or foreign object in the cereal further evidence was sought from the dental expert in relation to the condition of the Claimant’s tooth and whether or not there was any constitutional abnormality or fragility which would have caused the tooth to fracture when it wouldn’t normally do so.
In the meantime court proceedings were issued against the supermarket. The Defence raised issues about the accident circumstances and causation. It also specifically denied negligence/breach of duty. It remained our view that the supermarket was strictly liable for failing to provide the Claimant with goods that were of satisfactory quality. The Claimant made a further offer to settle her claim, but it wasn’t accepted and the court proceedings progressed. Directions Questionnaires and draft directions were exchanged. The supermarket wanted to join the manufacturer into the claim.
A Case Management Conference took place at which the Defendant was given a deadline to make an application to join the manufacturer into proceedings. The court also imposed a timetable for the conduct of the claim – including a trial window early in 2017.
No application was made by the Defendant to join the manufacturer into the case and shortly after the Conference the Defendant accepted the Claimant’s offer that had been made months earlier. The claimant therefore finally received compensation for her damaged tooth. It would have been better for all concerned if the Defendant had accepted responsibility at the outset and settled the claim without the need for significant legal costs to be incurred.
The case illustrates the importance for adopting a resolute approach to injury cases and the need to fight tenaciously throughout. It is not unusual for defendants to deny liability even when they think they might ultimately be held legally responsible. They often hope that by defending the claimant will grow disheartened and give up their claim.