The independent financial advisor defendant had negligently failed to advise the claimant client about the possibility of taking out an annuity. However, the claimant would not have done so, unless he had been positively advised that he should. The Claimant argued that, had the IFA performed his duty of explaining about annuities, he would in fact have advised that one be taken out.
Held: Such an enquiry was inadmissible. Dyson LJ said: ‘In Bolitho, the claim would have succeeded either if the judge had found that the doctor who negligently failed to attend, would as a matter of fact have intubated if she had attended, or if it would have been negligent not to intubate. It was necessary on the facts of that case to consider what the doctor would have done if she had attended the child. But it does not follow that it is necessary in every case to ask what a defendant would have done if he or she had not been negligent. That question falls to be considered only where it is relevant on the facts of the particular case. In Bolitho it was relevant because the negligence lay in the failure to attend, and there was a causal link between that failure and the injury suffered by the child, because, if the doctor had attended and if she would have intubated, she would thereby have averted the injury. This causal link on the facts of that case was the hypothetical conduct of the defendant herself. In many negligence cases, the question is what would the claimant or some third person have done if the defendant had not been negligent. Usually, the only relevant question in relation to a defendant’s conduct is: what should the defendant have done? It will not often be meaningful to go on to ask what the defendant would have done if he had not been negligent. It is tautologous to say that, if the defendant had not been negligent, he would not have acted negligently.
In my judgment, there is no scope for the application of the Bolitho principle in the present case. The negligence lay in failing to advise on the possibility of an annuity, advice which the judge found would not have led Mr Beary to reject the recommendation of the PMI fund. In such a case, it is meaningless to ask what Mr Jefferies would have done if he had not been negligent. If he had not been negligent, what he should have done and what he would have done are one and the same: ie advise on the possible option of an annuity. I would reject the first ground of appeal’.
Judges:
Keene, Dyson LJJ, Wilson J
Citations:
[2005] EWCA Civ 415
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited by:
Cited – Robbins v London Borough of Bexley CA 17-Oct-2013
The claimant said that his house had been damaged by tree roots for which the appellant was responsible. The trees were 33 metres from the house.
Held: The appeal failed. The immediate cause of the damage was a failure to do something which . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence
Updated: 29 June 2022; Ref: scu.224251