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Supreme Court considers the hot topic of "Loss of Chance" in professional negligence claims

An update on Edwards v Hugh James Ford Simey Solicitors [2019] UKSC 54

Last week the Supreme Court ruled in the case of Edwards on behalf of the Estate of Watkins  v Hugh James Ford Simey ( HJFS) . The question before the court was whether the value of the lost chance in a professional negligence claim was to be judged as at the date when the underlying claim was lost or at the date when damages are awarded in the action for professional negligence. The decision handed down was based on the very specific context in which this claim arose (the VWF miners compensation Scheme) and did not address the question posed directly. The argument before the Supreme Court focussed on the issue of the admissibility in a professional negligence action of subsequently acquired evidence relating to the value of the underlying claim. At the heart of the arguments presented to the Supreme Court lay HJFS's assertion that a subsequently acquired medical report in the professional negligence action suggested that Mr Watkins had already been over-compensated in the underlying claim and that damages awarded in the professional negligence claim should reflect his entitlement to appropriate compensation and not what was described as "an uncovenanted windfall". In this article Laura Segger and Sheona Wood review the decision and its implications.

Facts

Underlying Claim

Mr Watkins was employed by the National Coal Board as a miner from 1964 until 1985. In that employment he was required to use vibratory tools and as a result of such exposure, in common with very many other miners, Mr Watkins developed Vibration White Finger (“VWF”). In February 1999, Mr Watkins instructed HJFS to pursue a claim for general damages and a services award within the DTI compensation scheme covering VWF claims. The DTI Scheme envisaged two types of award to miners corresponding to general and special damages. To qualify for general damages a miner underwent an interview and medical examination to confirm if the miner suffered from VWF and if so to what extent based on a scale. If a miner suffered from VWF above a particular level on the scale a presumption arose that they were entitled to a services award. If a claim for a services award was to be made a further examination took place. Based on the first examination Mr Watkins made a claim for general damages and a services award, but in the event accepted an offer of £9,478, representing general damages only based on the scale .This did not include any allowance for a services award.

Professional negligence claim

Nearly five years later, in January 2008, Mr Watkins, having seen a newspaper advertisement offering assistance to any ex-miner who may have had his VWF claim settled at an undervalue, instructed fresh solicitors, who issued proceedings against HJFS Solicitors on 11 August 2010. He claimed £6,126 plus interest being the value of the services award he said he had lost. A joint medical expert report ( "the joint report") was obtained in 2013, not to re-evaluate the original diagnosis under the DTI Scheme, but on the issue of whether the lost opportunity to pursue the services award arose from negligent advice or the inability to assert honestly the entitlement to a services award. The joint report concluded that Mr Watkins should have been assessed at a much lower place on the scale entitling him to a £1,790 award, so that in fact he had already been over compensated for his VWF.

Mr Watkins subsequently died and the claimant, Mrs Edwards, pursued the professional negligence claim on behalf of her father’s estate.

The First Instance Decision

The County Court found that HJFS letter of advice had several faults and that, but for these faults, Mr Watkins would not have accepted the original  settlement. However, the County Court also concluded that based on the joint report Mr Watkins had not lost anything and so the claim was dismissed.

The Court of Appeal's Decision

Mrs Edwards appealed on the basis that the court should not have taken the joint report into account when assessing the value of the claimant's lost opportunity. Not only was it unavailable when Mr Watkins accepted the original settlement, it was argued that it would not have been created for the purposes of the DTI Scheme as Mr Watkins had a rebuttable presumption in his favour that he was entitled to a services award and that award would be based on the original medical assessment under the DTI Scheme.

The Court of Appeal reversed the trial judge's decision. It found that it had been wrong of the first instance judge to conduct a trial within a trial to determine the value of Mr Watkins’s claim against the DTI, to determine the severity of his VWF and to rely on the joint report, since that would not have been required or available at the time of Mr Watkins’s notional services claim under the DTI scheme.

The Supreme Court's Decision

HJFS appealed. The Permission to Appeal directed that the parties should consider the relevance of the principle as to the extent to which a court should look at the facts in front of it when assessing damages rather than speculating as to the outcome including information available at the date when the claim was undersettled or lost or at the date when damages are awarded.

HJFS submitted that the trial judge was right to rely on the joint report  for four reasons:

  1. In the circumstances of this case, the question whether Mr Watkins had suffered loss should be determined as at the date of the trial of the claim against HJFS.
  2. In a professional negligence claim arising from personal injury litigation, the issue of loss should be determined as at the date of the trial of the professional negligence proceedings as it would have been in personal injury litigation.
  3. Even if the issue of loss should be determined at an earlier date, the court should in making that determination take account of all of the evidence available at the trial of the professional negligence proceedings, as this would enable the court to make a more accurate assessment of what the original personal injury claim was actually worth.
  4. That evidence was needed in the present case (in the form of the joint report) to enable the issue of loss to be determined “with all the adversarial rigour of a trial” as required by the Supreme Court in Perry v Raleys Solicitors (see our earlier article here)

Mrs Edwards submitted that the court should assess the prospects of success as at the date when the claim was lost, on the facts as they were and the evidence available at that time, subject to established exceptions such as:

  • evidence that would have been available, in the absence of negligence, at the time the claim was lost;
  • evidence of the original parties’ attitude to settlement at the time that the claim was lost;
  • evidence of dishonesty or misconduct; and
  • evidence of any accomplished fact.  

Rough and Ready

The only issue before the Supreme Court was the value of the lost opportunity. In accordance with established principles the Supreme Court held that there was a legal burden on the estate to prove that in losing the opportunity to pursue the claim Mr Watkins had lost something of value i.e. that his claim had a real and substantial rather than merely a negligible prospect of success. It is only if the estate can establish that Mr Watkins’s chances of success in pursuing his service claim were more than negligible that it is appropriate to go on to evaluate those chances on a loss of chance basis by making a realistic assessment of what would have happened had the original claim been pursued.

Against this background, the argument before the Supreme Court focussed on the issue of the admissibility in a professional negligence action of subsequently acquired evidence relating to the value of the original claim.

The Supreme Court emphasised the significance of Mr Watkins's original claim being a claim within the DTI scheme, which the Supreme Court agreed was a "rough and ready" scheme, and not one made in the course of conventional civil litigation. The Supreme Court held that the joint report was not relevant to the issue of loss. The Supreme Court found that  the operation of the DTI scheme was one in which the payment of a services award to Mr Watkins would simply have been a consequence of the way In which the scheme operated and was intended to operate. The Supreme Court held that Mr Watkins had indeed lost something of value as he would likely have been awarded compensation for services under the DTI Scheme. The appeal was dismissed and the case remitted for assessment of the value of the loss of the opportunity to pursue the services claim.

Comment

This is the latest in a long line of professional negligence cases to come out of the DTI compensation scheme for VWF.  In the event the Supreme Court did not express a view on the issue of what evidence obtained after the events in question would be admissible in any professional negligence claim and so the current law, which on occasion has allowed evidence obtained subsequently to be relied upon in assessing the lost opportunity eg. Dudarec v Andrews, is preserved. The decision is expressly confined to the facts of this case and most particularly to the operation of the "rough and ready approach" utilised in the operation of the DTI Scheme for VWF under which the joint report would not have been obtained .

Contact

For more information please contact Sheona Wood, Partner Sheona.Wood@dwf.law or Laura Segger, Associate Laura.Segger@dwf.law.

 

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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