Supreme Court Considers Loss Of A Chance In Professional Negligence Claim

In Perry v Raleys Solicitors [2019] UKSC 5, the Supreme Court considered a professional negligence claim against a firm of solicitors arising out of advice they had given an individual in connection with his claim against the National Coal Board (later British Coal) for Vibration White Finger (VWF).

Lord Briggs (with whom the rest of the Supreme Court panel agreed) restated the approach to causation which was set down in Allied Maples v Simmons & Simmons (a firm) [1995] 1 WLR 1602, namely that in cases where a claimant alleges that a breach of duty caused him to lose an opportunity: (1) the claimant must prove what he would have done on the balance of probabilities; (2) when looking at what a third party might have done, the court undertakes a loss of a chance analysis.

Background

The respondent, Mr Perry, was a former miner who had developed VWF, a condition which is caused by excessive exposure to the effects of using vibratory tools. The condition causes a reduction in grip strength and loss of manual dexterity in the fingers, leading to an inability to carry out routine domestic tasks without assistance.

Instances of VWF were widespread and a group of test cases established generally that there had been negligence on the part of the National Coal Board in failing to take reasonable steps to limit the exposure of miners to the condition. Following these test cases, the Department for Trade and Industry set up a compensation scheme in 1999 (the Scheme), the central objective of which was to enable a large number of similar claims to be presented, examined, and resolved effectively and proportionately.

Mr Perry retained the solicitors firm, Raleys, to pursue his VWF claim before the Scheme was established. Mr Perry was examined by a medical expert whose conclusions entitled him not only to general damages but also to a presumption in favour of special damages under the Scheme. However, in late 1999 Mr Perry settled his claim for payment of general damages only (in the sum of £11,600) and made no claim for special damages under the Scheme within the required timeframe.

In 2009, Mr Perry brought professional negligence proceedings against Raleys, claiming that by reason of their negligent failure to give him appropriate advice, he had lost the opportunity to claim special damages under the Scheme, which he quantified in the sum of £17,300.17 (plus interest). Raleys initially denied breach of duty and alternatively that any breach would have...