No benefit of hindsight in professional negligence claims

The Court of Appeal confirmed the proper approach to the measure of loss in a claim for “loss of chance” was that the courts could only use the benefit of hindsight in exceptional circumstances.

Background

The original claimant, Mr Watkins (who died in 2014), worked as a coal miner between 1964 and 1985. As a result of exposure to vibratory tools, he developed a condition known as vibration white finger (VWF) and, as such, was entitled to claim compensation for the condition under a scheme set up by the Department of Trade and Industry.

The claimant instructed the defendant solicitor in 2001 to make a claim for compensation under the scheme. The initial medical report of Mr Chadha, a general practitioner, confirmed that the claimant suffered from VWF and - as well as general damages - was entitled to special damages in respect of any assistance he received to carry out services, such as DIY and gardening (the services claim).

The claimant confirmed to the defendant solicitor that he did not want to include a services claim, as the friends who had helped him by carrying out the services were not willing to provide evidence in support of his claim. Accordingly, the defendant did not pursue a services claim and the matter settled for general damages only in February 2003.

In 2008 the claimant instructed a new firm of solicitors to instigate a professional negligence claim against the defendant, alleging that they had failed to properly advise him in respect of the services claim and, accordingly, he had been deprived of the chance to recover certain damages as a result of the defendant’s negligence.

First instance

The Recorder held that the defendant’s failure to consider the services claim, first of all, did not amount to a breach of duty and, secondly, had no chance of success.

The Recorder took into account expert medical evidence from Mr Tennant, a vascular surgeon, which had not (and could not have) been available at the time of the settlement in 2003. Mr Tennant examined the claimant in May 2013 and his report questioned the original medical evidence of Mr Chadha. Mr Tennant concluded that Mr Chadha had mistakenly assessed the VWF at a higher scale than it, in fact, was and that the claimant was never entitled to make a services claim under the scheme as his condition was such that he did not require assistance.

The claimant appealed.

Appeal

The key issue to be determined by the Court of Appeal was whether the Recorder had erred in taking into account the evidence of Mr Tennant, which only became available after the notional trial date.

On appeal, the Court of Appeal held that the subsequent medical evidence was not relevant, as the judge would not have known about it at the original trial, thus the appeal was allowed and the case remitted for a rehearing.

Irwin LJ commented that a trial within a trial should be avoided and that the prospects in the initial trial, and not the hypothetical situation, should be assessed. Starting with the general principle in professional negligence cases that the claimant should be put in the position he would have been had the negligent act not been committed, the Court of Appeal held that the subsequent medical evidence was not relevant as the judge would not have known about it at the original trial. The value of what the claimant had lost should be assessed as at the original trial.

Comment

It is clear from this decision that damages should be assessed based on the evidence available at the material time, and not on the basis of “after-coming evidence” as noted by Irwin LJ.

The Court of Appeal did not establish a precise threshold to determine whether an event, which could not have been known, and would not have been known, at the notional trial may be relied upon to alter the outcome. However, as this judgment makes it clear, any such threshold would be a high one - which was not met here.

This case provides a useful reminder in professional negligence cases against solicitors that the value of what was lost at the time of the alleged negligence is what will be assessed, not what can be shown by relying on “after-coming” evidence.
Hindsight after all is a wonderful thing.

Related item: Court of Appeal rules on extent of solicitors’ duty to challenge their clients’ instructions