Still no benefit of hindsight in professional negligence claims
Edwards on behalf of the estate of the late Thomas Arthur Watkins v Hugh James Ford Simey Solicitors [20.11.19]
This article was co-authored by Jennifer Chapman, solicitor apprentice, Manchester
Counter-intuitively, the Supreme Court has (in principle) allowed a claimant to recover damages in circumstances where as a matter of application of established common law there was no underlying loss - and in fact the claimant had already been over-compensated.
The background of this case was set out in our article analysing the Court of Appeal decision. In brief, the original claimant, Mr Watkins (who died in 2014), worked as a coal miner and as a result of exposure to vibratory tools, developed a condition known as vibration white finger. As such, he was entitled to claim compensation for the condition under a scheme set up by the Department of Trade and Industry.
Mr Watkins instructed the defendant solicitors in 2001 to make a claim for compensation under the scheme and advised the defendant solicitors that he did not want to include a services claim. Accordingly, the matter settled for general damages only in February 2003.
In 2008 Mr Watkins instructed a new firm of solicitors to instigate a professional negligence claim against the defendant firm, alleging that it had failed to advise him properly in respect of the services claim and, accordingly, he had been deprived of the chance to recover an additional sum to compensate him.
The Recorder held that the defendant’s advice on the services claim was negligent, but that no loss had been suffered. This was on the basis of expert evidence obtained for the purposes of the negligence claim which concluded that the claimant had already been over‑compensated by the scheme based on his medical findings on examination.
The claimant appealed.
Court of Appeal
The key issue to be determined by the Court of Appeal was whether the Recorder had erred in taking into account the expert medical evidence, which only became available after the notional date of assessment of the claimant’s claim under the compensation scheme.
The Court of Appeal held that Recorder was wrong to take this into account, as it would not have been considered when assessing the award under the scheme.
The defendant appealed.
On appeal, the Supreme Court held that to bring a successful claim, the claimant must prove that something of value has been lost. Therefore it must be proven that the services claim had a real and substantial prospect of success, rather than a negligible prospect of success. It was established that if the claimant had received non-negligent advice, he would have pursued an honest services claim.
It was held that:
- The evidence of the expert should not be considered, as it did not exist at the time of the original claim, and evidence of that nature would not have been considered when assessing entitlement under the Compensation Scheme.
- The claimant had lost a claim under the scheme of some value and that the Recorder should have assessed losses on the basis of the same “rough and ready” approach as would have been adopted under the scheme and applied any loss of chance deductions to that figure.
The appeal was therefore unanimously dismissed, with the loss of opportunity to be remitted for assessment.
The Supreme Court confirmed the Court of Appeal’s decision that damages should be based on the evidence available at the material time, even in circumstances where on the evidence available now, the claimant had not settled the underlying claim for anything less than he would have been entitled to at common law (and in fact he had been over-compensated based on those principles). The Court should not consider additional information which was not known at the time of the original claim.
In defending these claims, it seems that one of the only defences available will be the 15 year limitation longstop (of course, absent any standstill agreement having been entered into).
Defendants will still be able to raise issues surrounding co-morbidity, but only to the extent they would have been considered under the DTI Compensation Scheme.
The Court commented that the claimant’s services claim could (and would) have been pursued honestly. It remains open for defendant firms to argue where appropriate that a services claim would have been dishonest (see our review of Perry v Raleys), but the availability of evidence to enable such a defence to be pleaded is likely to be limited to a very small number of cases, each turning on their own individual facts.
In future, the above principle is likely to be applicable to other professional negligence claims arising from broad brush compensation schemes or loss of chance claims where subsequent evidence comes to light, such as a loss of chance claim arising out of an employment tribunal where there are later regulatory proceedings against the individual. Related items: