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Published 2 April 2019
This decision restates the law as most professional negligence lawyers had understood it to be. There is no new law in the decision. The Supreme Court has corrected what was a misapplication of well understood principles by Lady Justice Gloster in the Court of Appeal. Had her view of the world prevailed then the hurdle of causation would effectively have been removed for Claimants making claims against professionals.
Mr Perry claimed he had been negligently advised and had under settled his industrial disease claim for compensation for Vibration White Finger (VWF) against British Coal. Mr Perry had received his general damages but had not pursued a claim for “services” as defined in the claims handling scheme agreed with British Coal. The claims handling scheme provided that once diagnosed with VWF at a particular level there was a rebuttable presumption that Mr Perry might need assistance with certain ordinary services tasks. By not pursuing the additional compensation for the services tasks Mr Perry had lost the chance to do so and he blamed his solicitor.
The evidence from Mr Perry and his family that he suffered significant manual disability was at odds with the contemporaneous medical and other records. The uncomfortable truth was that notwithstanding his apparent diagnosis of VWF Mr Perry suffered no functional disability and was still well able to carry out any and all of the services tasks. This is the conclusion reached by the trial judge after hearing the evidence.
The trial judge, who wrote what the Supreme Court described as “a detailed and lucid judgment”, found that Mr Perry was not a credible witness. Mr Perry could perform the services tasks now and at the relevant time and could not therefore have made an honest claim for compensation. The Court of Appeal decided that the trial Judge had erred in allowing a trial within a trial by questioning Mr Perry about his ability to carry out the services tasks. In doing so the Court said that the Judge had asked himself the wrong question in relation to causation. The Court of Appeal failed to understand that in the context of causation the questions were highly relevant to whether the Claimant would have made a claim for services compensation assuming that he acted honestly. That is a question of causation.
The Supreme Court conducted a careful review of the authorities on loss of chance and concluded that the trial Judge had asked himself the correct questions and had reached the right answer. Fundamentally the assessment of the loss of a chance only arises once the court has satisfied itself on the balance of probability that the claimant would have taken the action or made the claim that he asserts he would have taken or brought. The Claimant still has to give evidence to show that he would have made the claim if properly advised and if acting in good faith or honestly.
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