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The Supreme Court provides clarity on causation in professional negligence claims

On 13 February 2019, the Supreme Court (Lord Briggs, Lady Hale, Lord Wilson, Lord Hodge and Lord Lloyd-Jones) handed down judgement in Perry v Raleys Solicitors ([2019] UKSC 5), allowing the appeal by Raleys Solicitors and in so doing restored the decision at first instance of H.H.Judge Saffman.

The judgment is available here.

Background

The claim is typical of a number of professional negligence claims being brought against the Appellant for its conduct of personal injury actions they were assisting miners with who suffered from Vibration White Finger (VWF), a form of Hand Arm Vibration Syndrome (HAVS) resulting from excessive use of vibratory tools. In July 1998, the Court of Appeal upheld a High Court decision finding British Coal negligent in exposing miners to such excessive vibration. The Department for Trade and Industry (having assumed British Coal’s occupational health liabilities in 1999) set up a compensation scheme to provide tariff-based compensation to miners who had been exposed to vibration and who suffered from VWF (“the Scheme”). This resulted in a Claims Handling Arrangement (“CHA”) being set up on 22 January 1999 which set out a protocol for dealing with claims for personal injury, loss of amenity and other damages arising of the development of VWF. On 9 May 2000, the Services Agreement was entered into to deal specifically with claims for compensation for an inability to perform without assistance one or more specified everyday tasks known as Services (gardening, window cleaning, DIY, decorating, car washing, car maintenance). Provided certain conditions were satisfied, the claimant became entitled to a Services Award in accordance with an agreed tariff.

The Respondent was born on 8 October 1950 and left school to become a miner in 1966, as an employee first of the National Coal Board, and then of its successor, the British Coal Corporation. As a result of using vibratory tools he developed VWF. He continued to work in the industry until he took redundancy in 1994. In 1996 he instructed the Appellant to pursue a claim on his behalf for damages as a result of developing this condition. Initially, the claim commenced as a normal personal injury claim. After the CHA came into force, his claim continued under the Scheme. A medical report was obtained which concluded that the Respondent suffered from VWF. On 5 November 1999, the DTI made an offer to settle his claim for £11,600. This sum was for general damages only. There was no compensation for any inability to carry out Services. On 25 November 1999, the Respondent agreed to settle his claim for VWF by accepting the offer of £11,600. If he had proceeded with a claim for a Services Award, the medical expert’s findings would have resulted in a presumption that he could not perform relevant tasks without assistance, although this could have been challenged by the DTI. On 3 February 2009, the Respondent issued proceedings against the Appellant, claiming that he suffered from a loss of opportunity to claim a Services Award quantified in the sum of £17,300.17 plus interest.

At first instance

The matter came to trial in March 2015. Shortly before trial, the Appellant accepted that it negligently failed to advise the Respondent as to the potential for such a claim. The Appellant denied that the Respondent suffered the disability he alleged and that he would/could have made a claim for Services, had he been advised as he should have been by the Respondent. The claim was heard by Judge Saffman in the County Court at Leeds on 30-31 March 2015. The primary issue was whether the breach caused the claimant to settle his claim at an undervalue because, on balance, if properly advised and on the assumption that he was acting honestly he would have acted differently and made a claim for a Services Award. The Judge dismissed the claim. He was not persuaded that the Respondent could not carry out without assistance the relevant tasks which he had done before the onset of VWF, the Judge finding that much of his evidence was at variance with much of the written and extraneous evidence and his explanations were not impressive. The Judge held that had he found in favour of the Respondent on the issue of causation he would have assessed his loss of a chance as 80% of the value of his net claim.

In the Court of Appeal

The Respondent appealed to the Court of Appeal ([2017] EWCA Civ 314; [2017] P.N.L.R. 27) (28 April 2017) on the basis that the Judge erred in: (i) applying the wrong approach to causation and had conducted a trial within a trial; (ii) failing to attach sufficient weight to the high grading of Mr Perry’s VWF by the medical experts; (iii) failing to apply the principle that a claimant did not have to be disabled entirely from carrying out the relevant task; and (iv)-(x) concluding, against the weight of the evidence, that the Respondent did not honestly meet the factual matrix.

The Court of Appeal allowed the appeal on the basis that this was one of those very rare cases in which an appellate court should interfere with the factual findings of the trial judge because the judge erred (i) in law in his approach to the determination of the causation question as he had conducted a trial in a trial; (ii) in imposing on Mr Perry the burden to prove on the balance of probabilities that he needed assistance in carrying out the tasks which he had previously been able to carry out unaided; (iii) in failing to consider, or misunderstanding, relevant evidence; and (iv) in deciding that Mr Perry could not have honestly claimed in 1999 and thereafter that he was unable to perform the relevant tasks without assistance, a decision which could not reasonably be explained or justified.

In the Supreme Court

The Appellant appealed to the Supreme Court on two grounds:

  1. The Court of Appeal erred in their approach to the issue of causation.
  2. The Court of Appeal acted outside the limits of its jurisdiction and improperly substituted their own findings for those of the Judge.

The Supreme Court granted permission on both grounds.

Lord Briggs (with whom Lady Hale, Lord Wilson, Lord Hodge and Lord Lloyd-Jones agreed) gave the judgment of the court and allowed the appeal on both grounds.

With respect to the first ground, Lord Briggs reviewed the authorities concerned with causation in professional negligence claims and revisited the seminal decision of the Court of Appeal in Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 1 WLR 1602. Lord Briggs confirmed that the Claimant must prove on the balance of probabilities that he would have taken the necessary steps required of him to convert the receipt of competent advice into some financial advantage to him. In this case, Mr Perry needed to prove that, if properly advised, he would have made a Services Claim under the Scheme within time. At trial Mr Perry’s counsel (John Greenbourne, who appeared in the appellate courts with Leading Counsel), conceded that it would have had to have been an honest claim. This was not the position adopted on behalf of Mr Perry in the appellate courts but Lord Briggs, relying in part on the decision of Kitchen v RAF Association [1958] 1 WLR 563 and distinguishing cases such as Hanif v Middleweeks (a firm) [2000] 1 Lloyd’s Rep PN 920, held that the concession was rightly and properly made. Judge Saffman was therefore correct to conduct a trial of the question whether Mr Perry would (or could) have brought an honest claim for a Services Award, if given competent advice by Raleys. Whether or not Mr Perry needed assistance, because of problems with his hands, with a task which he had previously carried out unaided was within his own knowledge. This was not an issue that should be considered on the loss of the chance assessment as these matters did not fall within either of those categories of futurity or counter-factuality which have been traditionally inclined the court to adopt a loss of a chance type of assessment. There was no reason in principle or in justice why either party to the negligence proceedings should be deprived of the full benefit of an adversarial trial of that issue.

With respect to the second ground also, the Supreme Court allowed the appeal. Judge Saffman had not gone sufficiently wrong in his determination of the facts to enable the appellate court to intervene. The judge was entitled to reach the findings he had made.

Ben Quiney QC appeared at trial and in the appellate courts on behalf of Raleys (instructed by BLM). James Sharpe was instructed at the stage of permission to appeal to the Supreme Court and in the run up to the hearing.

John Greenbourne appeared at trial and in the appellate courts on behalf of the Respondent (instructed by Mellor Hargreaves and then by Fry Law).



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