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Claiming Compensation For Loss Of Chance

Following the recent Supreme Court decision in Perry v Raleys Solicitors [2019] UKSC 5 which clarified the law relating to loss of chance, we examine the legal position should an opportunity be thwarted, through the negligence of another person or organisation.  Are damages available if you lose out on a chance?

The answer is yes; however, strict criteria must be met, as was shown in February 2018 where an Oxford University graduate, who claimed “inadequate” teaching cost him the chance of a lucrative career as a solicitor, had his case dismissed.  Faiz Siddiqui, who studied modern history at Brasenose College, argued that his failure to achieve a first-class degree resulted in him being unable to pursue opportunities with top law firms or embark on a career as a tax law barrister.

In reaching his decision, Mr Justice Foskett examined whether the teaching Mr Siddiqui received was adequate and concluded it was.

“None of this evidence supports the conclusion that the teaching of the gobbets paper that year fell below reasonable standards even if under-achievement by an individual (or even group of individuals) can of itself constitute evidence of negligent teaching. Generally speaking, it cannot do so. The matter was put thus by Lord Nicholls of Birkenhead in Phelps v Hillingdon London Borough Council [2001] 2 AC 619, 668, in connection with such an allegation in relation to the teaching of children

“Proof of under-performance by a child is not by itself evidence of negligent teaching. There are many, many reasons for underperformance”.

When can the loss of chance doctrine apply?

Although there is no defined limit on circumstances whereby a claim for a loss of chance can be brought, certain actions lend themselves better than others to the award of such damages.  These include:

Loss of chance claims for professional negligence

Loss of chance claims are often brought in relation to solicitor negligence, whether it be through providing negligent advice or the negligent handling of litigation.  For example, in Thomas v Albutt [2015] EWHC 2187 (Ch), a barrister was found to have been negligent after failing to advise claimants to prepare and serve certain evidence for a hearing.  Damages were awarded for the loss of the chance that, with better evidence, the hearing might have gone in their favour.

Loss of chance in breach of contract

Damages for loss of chance can also be claimed in cases involving a breach of contract on the basis that had the default not occurred, the claimant may have obtained a benefit or avoided loss.

Loss of chance due to general negligence

One of the reasons Mr Siddiqui’s claim failed against Oxford University was because a breach of duty by the defendant could not be established.  As well as establishing a breach of duty, for a loss of chance claim to succeed it must also be proved, on the balance of probabilities, that the defendant owed the claimant a duty of care and they suffered damage because that duty was breached.

Loss of chance due to economic tort and restitution

In McGill v Sports and Entertainment Media Group [2016] EWCA Civ 1063, the claimant football agent negotiated a transfer of a player from one club to another pursuant to an oral agency contract he had with the player.  Prior to the contract completing, the defendant, a rival agency, persuaded the player to breach his oral contract with the claimant, then completed the club transfer on the same terms.  The claimant brought proceedings against multiple defendants, primarily based on economic torts and restitution, claiming the defendant’s actions had cost him £300,00 in loss of commission.

The Court of Appeal reviewed the cases dealing with loss of chance and followed the principles laid out in the two leading judgments of Allied Maples Group Limited v Simmons and Simmons [1995] and Wellesley Partners LLP v Withers [2015] which are:

  • in loss of chance cases which involve the hypothetical acts of a third party, the claimant must prove there was a real, not merely speculative, chance the third party would have acted in a way
  • that would have resulted in a benefit being conferred on the claimant
  • once the above has been established, the claimant must then prove that the defendant’s act or omission caused the loss of chance
  • if causation is established, the loss of chance will be quantified as a percentage of the damages awarded

In McGill, it was held there was a real possibility that the claimant would have successfully negotiated the player’s transfer contract with the club, therefore, his claim for breach was established.

The Supreme Court decision in Perry v Raleys Solicitors

In February 2019, the Supreme Court gave a landmark ruling on loss of chance.  In Perry v Raleys Solicitors, the Claimant, Mr Perry, a former miner, had developed vibration white finger (VWF).  He sought compensation through a government scheme. The scheme provided for general and special damages; special damages could include a Services Award in respect of tasks such as gardening and DIY. Advised by the Respondent solicitors, Mr Perry settled his claim for general damages only.  He subsequently sued Raleys Solicitors on the grounds that their negligent advice had cost him the loss of chance to an award of special damages.

After a two-day trial, which included cross-examination of Mr Perry, his wife and his two sons, the judge in the County Court concluded that Mr Perry had failed to prove that Raleys’ admitted negligent advice had caused him any loss.  Judge Saffman’s main reason for dismissing the claim was that Mr Perry’s lack of credibility as a witness led to the conclusion that he could not have made an honest claim for a Services Award.  For example, Mr Perry’s claim that he was unable to perform certain domestic tasks (gardening, decorating, DIY, car maintenance, car washing and window washing) without assistance was contradicted by medical evidence.  He was also photographed fishing at a time when he claimed he had to give up the sport due to VWF.  Note – social media photographs can provide strong evidence at trial, so when bringing a case, be careful to ensure your evidence is not contradicted by Instagram. 

The Court of Appeal reversed the County Court decision, stating that Judge Saffman wrongly conducted a “trial within a trial” of the question which would have arisen had Mr Perry made a claim for the Services Award, namely whether in fact (after he ceased work as a miner) he needed assistance, due to his VWF, in carrying out the six domestic tasks which he had previously been able to do unaided.  In addition, Mr Perry was wrongly required to prove this fact on the balance of probabilities.  Finally, the Court of Appeal stated Judge Saffman’s assessment that Mr Perry was not a credible witness was incorrect and “irrational”.

The Supreme Court allowed the appeal and reinstated the original County Court judgment.  It held that it was perfectly right that Judge Saffman had evaluated that, if he had been properly advised, would Mr Perry, on the balance of probabilities have pursued a credible claim for loss of ability to perform certain domestic tasks?  The Supreme Court agreed that, on the balance of probabilities, Mr Perry would not have pursued such a claim as evidence showed he had not lost the ability to do most of the stated tasks.  In addition, any impairment suffered by Mr Perry was caused by an unrelated injury, not VWF.

The Supreme Court’s decision takes the law on loss of chance back to the principles set out in Allied Maples stating they were a “sensible, fair and practicable dividing line”.

In addition, the Supreme Court held that in cases of loss of chance, if a Claimant argues they would have pursued a claim, that claim must be an honest one.

“The court simply has no business rewarding dishonest claimants. The extent of dishonest claims for minor personal injuries such as whiplash (which are difficult to disprove) in road traffic accident cases is already such a blot upon civil litigation that Parliament has considered it necessary to intervene to limit that abuse.”

Claiming for loss of chance

Because loss of chance cases often rely on establishing the hypothetical decisions of a third party, causation can be difficult to prove.  Expert legal advice is required from the outset to have a shot at achieving a successful result.  Despite the Supreme Court firmly stating Allied Maples is the correct approach, tensions remain because of the abstract nature of the claim.  The Supreme Court is due to hear another mishandled VWF case in July (Edwards v Hugh James Ford Simey [2018] EWCA Civ 1299).  The focus of this decision is on admissible evidence, especially that which was not available at the proposed original trial date.

We will keep you updated as this complex area of law develops.  But in the meantime, don’t let the chance of obtaining damages pass you by.

Saracens Solicitors is a multi-service law firm based in London.   We have dedicated and highly experienced  litigation team who can advise and represent you on claiming loss of chance damages.  For more information, please call our office on 020 3588 3500.

Do you have any comments to make on this article?  Please feel free to add them to the section below.

 

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