Category: Professional Negligence

Crammond v Medway NHS Foundation Trust: QBD 1 Dec 2015

‘the Claimant claims damages for personal injury and other losses arising out of his medical treatment at the Medway Maritime Hospital Gillingham Kent. This is an interesting case which involves some consideration of the relationship between Accident and Emergency Departments and Same Day Treatment Centres.’

Brian Forster QC HHJ
[2015] EWHC 3540 (QB)
Bailii
England and Wales

Personal Injury, Professional Negligence

Updated: 07 January 2022; Ref: scu.556487

O’Connor v The Pennine Acute Hospitals NHS Trust: CA 3 Dec 2015

On 26th September 2005 a consultant surgeon employed by the defendant operated on the claimant to repair a vesicovaginal fistula. Following the operation the claimant suffered numbness, pain and loss of motor function in her left leg, due to an injury to her femoral nerve.
The claimant claimed damages against the defendant NHS trust, alleging that the surgeon had directly injured the femoral nerve during the process of dissecting her sigmoid colon. The judge upheld that claim and awarded damages of andpound;459,758.
The defendant appeals, asserting that the judge was not entitled on the basis of the evidence at trial to find that the surgeon had injured the femoral nerve. The judge ought to have found that this was merely one of two possible, but unlikely, explanations. Accordingly the claimant had not proved her case.
In my view, on a close analysis of the evidence (itself an unusual exercise for the Court of Appeal), the judge was entitled to make the findings of fact that he did. There is no dispute that if the surgeon directly injured the femoral nerve during dissection, that would be negligent.
If my Lords agree, this appeal will be dismissed.

Jackson, McCombe LJJ, Sie Colin Rimer
[2015] EWCA Civ 1244
Bailii
England and Wales

Personal Injury, Professional Negligence

Updated: 07 January 2022; Ref: scu.556458

Solland International Ltd and Others v Clifford Harris and Co: ChD 18 Nov 2015

Appeal from an order striking out the Appellants’ claim for professional negligence against the Respondent and declining to grant the Appellants a retrospective extension of time for filing an allocation questionnaire for the reasons given in his judgment of the same date.

Arnold J
[2015] EWHC 3295 (Ch)
Bailii
England and Wales

Professional Negligence

Updated: 06 January 2022; Ref: scu.554808

Goldsmith Williams Solicitors v E.Surv Ltd: CA 11 Nov 2015

‘The appeal raises what we were told was an important issue as to the scope of the duty of solicitors instructed on behalf of both the proposed mortgagor and mortgagee of property.’

Patten LJ, Sir Stanley Burnton
[2015] EWCA Civ 1147
Bailii
Civil Liability (Contribution) Act 1978
England and Wales

Professional Negligence

Updated: 06 January 2022; Ref: scu.554609

Wellesley Partners Llp v Withers Llp: CA 11 Nov 2015

Appeals by both parties in a professional negligence action, and from the consequent order. The appeals raised issues about the appropriate rule for remoteness of damage where a claimant has concurrent causes of action for pecuniary loss in tort and in contract, and about the application of the ‘loss of a chance’ principle to the assessment of damages.

Longmore, Floyd LJJ, Roth J
[2015] EWCA Civ 1146
Bailii
England and Wales

Professional Negligence

Updated: 06 January 2022; Ref: scu.554614

Wright Hassall Llp v Horton Jr and Another: QBD 22 Dec 2015

The claimant solicitors sought payment from the defendants of fees of pounds 12,700, plus interest which to the date of issue would take the total to pounds 16,367. The defendants’ principal defence was one of set off of a counterclaim for negligence in which they originally sought damages of over pounds 2.8m, now reduced in their re-amended Defence and Counterclaim to pounds 2.57m.

David Cooke HHJ
[2015] EWHC 3716 (QB)
Bailii
England and Wales

Legal Professions, Professional Negligence

Updated: 05 January 2022; Ref: scu.557324

Blakemores Ldp v Scott and Another: CA 7 Oct 2015

The court was asked whether the judge was right to grant summary judgment striking down the first and third appellants’ negligence claims against their solicitors on the grounds that they were issued more than 3 years after they acquired ‘the knowledge required for bringing an action for damages in respect of the relevant damage’ within the meaning of sections 14A(5) and (6) of the Limitation Act 1980.

Moore-Bick, Underhill, Voss LJJ
[2015] EWCA Civ 999
Bailii
England and Wales

Limitation, Professional Negligence

Updated: 04 January 2022; Ref: scu.553110

CB (A Child By Her Mother and Next Friend) v Belfast Health and Social Care Trust: QBNI 6 Jun 2015

CB, brings this action alleging medical negligence in relation to an operation which was performed on 12 November 2007. The purpose of the operation was to burst a cyst on her kidney. At the date of the operation she was one year old having been born in November 2006. The operation was to be performed as a day case. It was not an open procedure. During the course of the operation the plaintiff’s small bowel was perforated and she received a laceration of her bladder. The defendant’s admit liability for these injuries and for the consequences that ensued. After the operation the damage to the plaintiff’s bowel and bladder were not appreciated and she was discharged. That evening, at home, she became extremely unwell with abdominal distension and sepsis caused, as things subsequently transpired, by the leaking of material from her bowel into her abdomen. She was re-admitted to hospital. She was extremely unwell.

Stephens J
[2015] NIQB 44
Bailii
Northern Ireland

Northern Ireland, Professional Negligence, Contract

Updated: 02 January 2022; Ref: scu.549860

FB v Rana and Another: Admn 2 Jun 2015

‘claim for damages for clinical negligence arising out of events which occurred in late September 2003. FB was just over 13 months old at the material time. The First Defendant, was working for an out-of-hours GP cover service, and saw FB at 21:40 on Sunday 28th September. The essence of the case against him is that he failed to take a proper history, to carry out a proper examination of FB, and to heed what he was being told about FB’s condition by WAC. Had these omissions not occurred, it is FB’s case that she should have been referred to hospital at a stage when the administration of antibiotics would have been effective; but in the events which happened, she was not. ‘

Jay J
[2015] EWHC 1536 (Admin)
Bailii
England and Wales

Professional Negligence

Updated: 30 December 2021; Ref: scu.547510

Chinnock v Wasbrough and Another: CA 7 May 2015

Appeal against a decision that (a) the barrister and solicitors who advised the claimant to abandon an earlier clinical negligence claim were not negligent and (b) the claimant’s present proceedings are statute barred.

Longmore, Jackson LJJ, Roth J
[2015] EWCA Civ 441
Bailii
England and Wales

Professional Negligence, Limitation

Updated: 30 December 2021; Ref: scu.546454

Baird v Hastings (Practicing As Hastings and Co, Solicitors): QBNI 7 Aug 2013

The plaintiff claimed against the defendant, as solicitor for the plaintiff, for damages arising from the negligence and breach of contract of the defendant in relation to the conduct of conveyancing transactions

[2013] NIQB 143
Bailii

Northern Ireland, Professional Negligence

Updated: 28 December 2021; Ref: scu.544012

Kandola v Mirza Solicitors Llp: ChD 27 Feb 2015

The claimant alleged professional negligence by the defendant solicitors who had acted for him in the purchase of a property. The deposit paid by the claimant had been lost after being paid to the seller’s solicitors as agents for the vendor. The claimant said that the risks had not been explained.
Held: The claimant was aware of the risks, and had been in direct contact with the sellers and their solicitors.
A solicitor ‘will have fulfilled his duty if he gives an explanation in terms the client reasonably appears to him to be able to understand, and to have understood, even if the client later alleges that he did not in fact understand what was said’

David Cooke HHJ
[2015] EWHC 460 (Ch)
Bailii
England and Wales
Citing:
Cited – Midland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm) ChD 1978
A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact . .
Cited – Bown v Gould and Swayne CA 1996
Millett LJ commented that if a judge needed assistance with regard to conveyancing practice the proper way was to cite the relevant textbooks. . .
Cited – May v Woolcombe Beer and Watts 1999
Expert evidence was admitted in relation to conveyancing matters where there was no answer provided by textbooks. . .
Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .

Cited by:
Cited – Seery v Leathes Prior (A Firm) QBD 24-Jan-2017
The claimant alleged professional negligence against his former solicitors in the settlement of his claim against his former partners.
Held: The claim failed. There had been no clear duty to give the advice the claimant said should have been . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 28 December 2021; Ref: scu.543955

Pearson v Witherspoon: CA 22 Oct 1999

‘A solicitor is guilty of inordinate and inexcusable delay in prosecuting his client’s claim for damages for breach of a commercial contract. Over a period of years there is speculation from time to time about the defendant company’s being in financial difficulties but at other times having overcome them. Long after the trial of the action should have been concluded, a receiver is appointed to the defendant. Nonetheless the plaintiff proceeds to trial. The defendant plays no part in it. After consideration of the written material, damages totalling pounds x are awarded under different heads of claim. The judgment proves to be worthless because the defendant company is insolvent. The plaintiff recovers nothing. So he sues his solicitor claiming damages for his professional negligence. These questions then arise:
1. Is the loss caused by the solicitor’s negligence or by the company’s insolvency? That in turn may lead one to ask what the precise scope of the solicitor’s duty is .
2. The client’s loss being the loss of a chance, how are the chances of establishing liability, quantum and enforcement of the judgment to be assessed – broadly or in as fine a detail as possible?’

[1999] EWCA Civ 3032, [2000] PNLR 110, [2000] Lloyd’s Rep PN 151
Bailii
England and Wales

Professional Negligence

Updated: 28 December 2021; Ref: scu.346271

Welch v Waterworth: CA 22 Jan 2015

Appeal from an order whereby judgment was entered for the claimant against the defendant for andpound;155,000 as damages for negligence on the part of the defendant in a surgical procedure performed by him upon the claimant’s late wife.

McCombe, Beatson LJJ, Sir David Keene
[2015] EWCA Civ 11
Bailii
England and Wales

Professional Negligence, Personal Injury

Updated: 27 December 2021; Ref: scu.541714

Border v Lewisham and Greenwich NHS Trust: CA 21 Jan 2015

Appeal against an order dismissing the claimant’s claim for damages for clinical negligence. Permission to appeal was granted on the issue of the claimant’s consent to a particular medical procedure, namely the insertion of a cannula into her left arm for the purpose of intravenous (‘IV’) access.

Richards, Tomlinson LJJ, Newey J
[2015] EWCA Civ 8
Bailii
England and Wales

Professional Negligence

Updated: 27 December 2021; Ref: scu.541583

Hayes v South East Coast Ambulance Service NHS Foundation Trust: QBD 15 Jan 2015

Claim for damages brought on behalf of the Claimant Mrs Michelle Hayes and her three sons as well as on behalf of the estate of her former husband Mr Paul Hayes.

Coe QC HHJ
[2015] EWHC 18 (QB)
Bailii
Fatal Accidents Act 1976, Law Reform (Miscellaneous Provisions) Act 1934

Personal Injury, Professional Negligence

Updated: 27 December 2021; Ref: scu.541573

Chatterton v Gerson: QBD 1980

The doctor failed to explain possible consequences of an operation both on a first operation, and on a subsequent corrective operation.
Held: The failure to explain the general nature of an operation negatived the patient’s consent. The doctor can be held negligent if the patient demonstrates that he would not have accepted an unexplained risk. The doctor was liable in negligence only if the general nature of the operation was not explained.

Bristow J
[1981] QB 432, [1980] 3 WLR 1003, [1981] CLY 2648
England and Wales
Cited by:
Cited – Afshar v Chester CA 27-May-2002
The surgeon carried out the operation successfully, but the claimant suffered consequential post operative damage. He had not been warned of the risk, and sought damages.
Held: Failure to warn of a risk did not vitiate consent, and any . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Professional Negligence

Updated: 27 December 2021; Ref: scu.182965

Barings Plc and Another v Coopers and Lybrand and Others; etc: ChD 23 Nov 2001

The applicant company employed a trader who, through manipulation of trading systems ran up losses sufficient to bankrupt the company. They sought recovery from the defendant auditors for failing to spot the mis-trading and prevent continuing losses. In a preliminary hearing, the court heard that certain settlements had been agreed between some of the parties, and a stay was sought. The remaining party stated its intention to claim contributions from the defendant parties who had reached settlements. It sought in this hearing certain claims to be struck out as badly pleaded. In particular they said the claim in negligent mis-statement required evidence that the losses suffered arose from use of the statements for the purposes intended. A further defence related to reliance by the auditors on statements made by the directors that all pertinent information had been made available.

Mr. Justice Evans – Lombe
[2001] EWHC Ch 461
Bailii
England and Wales
Citing:
Cited – Galoo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Torts – Other

Updated: 23 December 2021; Ref: scu.167099

Sasea Finance Ltd v KPMG (Formerly KPMG Peat Marwick Mclintock): ChD 10 May 2001

It was complained that the auditors had failed timeously to warn the company of fraud by a senior employee. The appeal concerned an application to strike out heads of claim in an action brought by the company against its auditors for negligence.
Held: Appeal allowed. It was submitted that the auditors’ duty did not extend to the losses claimed because the transactions from which they flowed arose in the normal course of business and were part of the ordinary risks associated with the carrying on of that business. That submission failed. The case was arguable and should be allowed to continue.

[2001] EWHC Ch 423
Bailii
England and Wales
Citing:
Appeal from – Sasea Finance Ltd (In Liquidation) v KPMG (A Firm) ChD 25-Aug-1998
Where an auditor had negligently failed to identify the insolvency of a company and to warn against payment of dividends, the auditor was liable in damages for dividends wrongly paid. . .

Cited by:
Appealed to – Sasea Finance Ltd (In Liquidation) v KPMG (A Firm) ChD 25-Aug-1998
Where an auditor had negligently failed to identify the insolvency of a company and to warn against payment of dividends, the auditor was liable in damages for dividends wrongly paid. . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 23 December 2021; Ref: scu.163016

Kellie and Another v Wheatley and Lloyd Architects Ltd: TCC 3 Jul 2014

Action for damages – building of detached garage with flat rather than pitched roof – unnecessary.

His Honour Judge Keyser QC
[2014] EWHC 2212 (TCC)
Bailii
Cited by:
Main judgment – Kellie and Another v Wheatley and Lloyd Architects Ltd TCC 27-Aug-2014
. .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Construction

Updated: 22 December 2021; Ref: scu.537337

RE and Others v Calderdale and Huddersfield NHS Foundation Trust: QBD 12 Apr 2017

Damages were claimed on behalf of RE after she suffered profound hypoxic ischaemic insult in the moments around her birth at the defendant hospital.

Goss J
[2017] EWHC 824 (QB)
Bailii
England and Wales

Professional Negligence, Personal Injury

Updated: 21 December 2021; Ref: scu.581981

Reaney v University Hospital of North Staffordshire NHS Trust and Another: QBD 19 Sep 2014

The claimant had begun to suffer a condition which would lead to her being confined to a wheelchair. She now claimed damages after developing severe pressure sores and similar. The court was asked to disentangle the related injuries

Foskett J
[2014] EWHC 3016 (QB)
Bailii

Personal Injury, Professional Negligence

Updated: 21 December 2021; Ref: scu.537041

Frank Houlgate Investment Company Ltd v Biggart Baillie Llp: SCS 25 Sep 2014

Extra Division – Inner House – The pursuer alleged that solicitors had failed to identify that a fraudster borrowing money from him was not the same as the owne of the land to be taken in charge by security. In particular the court was asked: ‘ whether the defenders are liable to make reparation to the pursuers because Mr Mair knew that JMC had deceived the pursuers and granted a security in their favour over property in which he had no interest, yet continued to act on behalf of JMC, took no steps to inform the pursuers or their agents of JMC’s admitted fraud, and did nothing to prevent JMC obtaining further funds from the pursuers.’

Lord Menzies
[2014] ScotCS CSIH – 79
Bailii

Scotland, Professional Negligence, Torts – Other

Updated: 21 December 2021; Ref: scu.537043

Hunt and Others v Optima (Cambridge) Ltd and Others: CA 31 Jul 2014

The claimants had bought apartments in a new-build block, developed by the first defendants with other defendants acting as architectural supervisors of the works. They alleged that the building were poorly constructed. The defendant architects said that the sales had been completed long before their certificates were issued and that therefore they were not liable.
Held: The appeal was allowed: ‘the suggested independent tortious duty to take care in the inspection of the property could not in my view have generated in Strutt and Parker a duty to point out at any given time the existence of defects which would, or would if unrectified, prevent the issue of a clean Certificate. It may be that Strutt and Parker undertook contractually with Optima to adhere to a programme of inspections, but it seems to me that to posit additionally a tortious duty periodically to draw attention to defects in construction is simply too great an accretion to graft onto what is at bottom an assumption of responsibility to take care in making statements upon which persons will place reliance.’

Maurice Kay VP CA, Tomlinson, Christopher Clarke LJJ
[2014] EWCA Civ 714
Bailii
England and Wales

Construction, Professional Negligence

Updated: 18 December 2021; Ref: scu.535448

BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel): SC 22 Mar 2017

The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose from risks which it was no part of the adviser’s duty to protect his client against.
Held: The appeal failed. The whole loss was attributable to Mr Gabriel’s misjudgements and reduced the damages to nil. They also held, for largely overlapping reasons, that had there been any recoverable loss, it would have been reduced by 75% for contributory negligence.
‘There was no positive evidence to the effect that, if pounds 200,000 had been spent on developing the property, its value would have been such as to ensure recovery of Mr Gabriel’s loan or, in other words, that the transaction was viable. On the contrary, such evidence as was before the judge suggested that expenditure in such amount would not have increased the value of the property. As Mr Stewart submitted, the judge, in my view wrongly, reversed the burden of proof by finding that the defendants had not persuaded him that no development was possible. That the value of the developed property, by the utilisation of funds of pounds 200,000, would have been such as to ensure recovery of Mr Gabriel’s loan was a matter for Mr Gabriel to allege and to prove.’
Lord Sumption JSC highlighted the distinction drawn by Lord Hoffman in SAAMCO between ‘advice’ cases and ‘information’ cases but acknowledged that such distinction could be confusing. In a case falling within the ‘information’ category a professional adviser would contribute a limited part of the material on which the client will rely in deciding whether to enter a particular transaction but the process of identifying and assessing the other risks would remain with the client. In such circumstances, the adviser is only liable for the financial consequences of the information being wrong and not for all the financial consequences of the claimant entering into the transaction so far as these are greater. The defendant does not become the underwriter of the entire transaction by virtue of having assumed a duty of care in relation to just one element of the decision.
‘The principle laid down in SAAMCO depends for its application on the award of loss which is within the scope of the defendant’s duty, not on the exclusion of loss which is outside it. In a simple case, they may amount to the same thing. It may, for example, be possible in a valuation case to strip out the effect of the fall in the market if that is the only extraneous source of loss. Even there, however, the exercise will be complicated by the common practice of lenders to allow a margin or ‘cushion’ between the loan and the value of the property to allow for contingencies including some adverse market movement. Where the loss arises from a variety of commercial factors which it was for the claimant to identify and assess, it will commonly be difficult or impossible as well as unnecessary to quantify and strip out the financial impact of each one of them. ‘

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Hodge
171 Con LR 46, [2017] UKSC 21, [2017] 2 WLR 1029, [2017] PNLR 23, [2017] WLR(D) 199, [2017] 3 All ER 969, UKSC 2014/0026
Bailii, WLRD, SC, SC Summary Video
England and Wales
Citing:
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Appeal from – Gabriel v Little and Others CA 22-Nov-2013
The claimant sought repayment of sums loaned to the defendant by them under a facility letter supported by a legal charge. The charge had been enforced but the sums realised had been insufficient. . .
Cited – Stapley v Gypsum Mines Ltd HL 25-Jun-1953
Plaintiff to take own responsibility for damage
The question was whether the fault of the deceased’s fellow workman, they both having disobeyed their foreman’s instructions, was to be regarded as having contributed to the accident.
Held: A plaintiff must ‘share in the responsibility for the . .
Cited – Roe v Ministry of Health CA 1954
The plaintiff complained that he had developed a spastic paraplegia following a lumbar puncture.
Held: An inference of negligence was rebutted. However the hospital authority was held to be vicariously liable for the acts or omissions of the . .
Cited – Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) PC 18-Jan-1961
Foreseeability Standard to Establish Negligence
Complaint was made that oil had been discharged into Sydney Harbour causing damage. The court differentiated damage by fire from other types of physical damage to property for the purposes of liability in tort, saying ‘We have come back to the plain . .
Cited – Koch Marine Inc v D’Amica Societa Di Navigazione ARL (The Elena d’Amico) QBD 1980
The ship owners wrongfully repudiated a charterparty in March 1973, 14 months after its inception. The charterers did not hire a substitute but claimed damages for the loss of profits they would have made between January and April 1974, during which . .
Cited – Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others CA 24-Feb-1995
The plaintiffs were mortgagees. The defendants were valuers. The defendants negligently over-valued properties and the plaintiffs then accepted mortgages of the properties. Later the property market collapsed and the various borrowers defaulted and . .
Cited – Sutherland Shire Council v Heyman 4-Jul-1985
(High Court of Australia) The court considered a possible extension of the law of negligence.
Brennan J said: ‘the law should develop novel categories of negligence incrementally and by analogy with established categories. ‘
Dean J said: . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Galoo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
Cited – Banque Bruxelles Lambert Sa v Eagle Star Ins Co Ltd and Others QBD 7-Mar-1994
A negligent valuer was liable for the loss arising from an overvaluation, but the valuer was not liable for that proportion of the lender’s loss on the loan which was attributable to the fall in the market after the valuation date, even though (i) . .
Cited – Baxter v Gapp (FW) and Co Ltd CA 1939
Where there would have been no transaction (loan) but for the valuers’ negligence, it was held that the plaintiff was entitled to recover the actual loss suffered, rather than the difference between the real value of the property at the date of . .
Cited – Swingcastle Ltd v Alastair Gibson HL 1991
A lender made a claim against a surveyor after a negligent survey. the lender would have made no loan at all, there would have been no transaction, if it had known the true position. At first instance and in the Court of Appeal the Claimant’s loss . .
Cited – Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd HL 1991
Banks had made loans against property which the borrower had said was valuable, and, also insurance policies against any shortfall on the realisation of the property. The borrower was a swindler and the property worthless. The insurers relied upon a . .
Cited – Liverpool (Owners) v Ousel (Owners), (The Liverpool No 2) CA 1963
The Ousel and the Liverpool collided in the Port at Liverpool and the Ousel sank. The owners of the Liverpool admitted liability. The Mersey Docks and Harbour Board took the wreck under statutory powers and claimed the expenses of clearing the wreck . .
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Cited – Platform Home Loans Ltd v Oyston Shipways Ltd and others HL 18-Feb-1999
The plaintiffs had lent about 1 million pounds on the security of property negligently valued at 1.5 million pounds. The property was sold for much less than that and the plaintiffs suffered a loss of 680,000 pounds. The judge found that the . .
Limited to the particular facts – Aneco Reinsurance Underwriting Limited (In Liquidation) (a Body Incorporate Under the Laws of Bermuda) v Johnson and Higgins Limited HL 18-Oct-2001
Brokers contracted to obtain re-insurance of risks undertaken by the claimants. They negligently failed to obtain full cover. The question at issue was whether they were liable for the full loss, or whether their duty was limited to obtaining . .
Cited – Haugesund Kommune and Another v Depfa ACS Bank and Another CA 28-Jan-2011
Lawyers had negligently advised that a Norwegian local authority had legal capacity to enter into a loan agreement, when it did not. A local authority’s legal capacity to borrow might fairly be thought fundamental to any decision to lend it money, . .
Cited – Bristol and West Building Society v Fancy and Jackson and similar ChD 1-Jul-1997
The solicitor defendants (and others) had acted for both the lender and the borrower. Under their retainer they were required to notify the lender of any matters which might prejudice its security. The solicitors failed in one case to report that . .
Criticised – Portman Building Society v Bevan Ashford (a firm) CA 2000
The lender alleged negligence in the defendant solicitors.
Held: Otton LJ, delivering the leading judgment, declined to ask himself whether the scope of the solicitor’s duty extended to the lender’s decision or only to the material which the . .
Cited – Haugesund Kommune and Another v Depfa Acs Bank CA 27-May-2010
. .

Cited by:
Cited – Meadows v Khan QBD 23-Nov-2017
Claim for the additional costs of raising the claimant’s son, A, who suffered from both haemophilia and autism. It is admitted that, but for the defendant’s negligence, A would not have been born because his mother would have discovered during her . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 18 December 2021; Ref: scu.581025

Mercer Ltd and Another v Ballinger and Another: CA 17 Jul 2014

The court was asked as to the circumstances in which the court could allow an amendment of pleadings so as to allow an additional claim where the action would otherwise be outside the limitation period.

Dyson L MR, Tomlinson, Briggs LJJ
[2014] EWCA Civ 996, [2014] WLR(D) 335
Bailii, WLRD
Limitation Act 1980 35
England and Wales

Limitation, Professional Negligence

Updated: 17 December 2021; Ref: scu.534418

Grimshaw v Hudson: QBD 25 Feb 2021

Application by the Claimant, supported by the Defendant, for this Court to give approval, pursuant to the inherent jurisdiction of the Court, for a settlement arrived at by the parties in county court negligence proceedings.

Mr Justice Fordham
[2021] EWHC 425 (QB)
Bailii
England and Wales

Professional Negligence, Damages

Updated: 17 December 2021; Ref: scu.670231

The Governor and Company of The Bank of Ireland v Faithful and Gould Ltd: TCC 10 Jul 2014

The bank claimant had successfully recovered a substantial sum from the first defendants, its advisers, after it had lost money in a development. The first defendants now sought a contribution from the second defendant valuers.

Edwards-Stuart J
[2014] EWHC 2217 (TCC)
Bailii
Civil Liability (Contribution) Act 1978

Professional Negligence, Damages

Updated: 16 December 2021; Ref: scu.534087

Gregg v Scott: HL 27 Jan 2005

The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for ten years from 42%, when he first consulted the doctor to 25%. The House asked how should the loss suffered by a patient in this position could be identified.
Held: ‘the appropriate characterisation of a patient’s loss in this type of case must surely be that it comprises the loss of the chance of a favourable outcome, rather than the loss of the outcome itself. Justice so requires, because this matches medical reality. This recognises what in practice a patient had before the doctor’s negligence occurred. It recognises what in practice the patient lost by reason of that negligence. The doctor’s negligence diminished the patient’s prospects of recovery. And this analysis of a patient’s loss accords with the purpose of the legal duty of which the doctor was in breach. In short, the purpose of the duty is to promote the patient’s prospects of recovery by exercising due skill and care in diagnosing and treating the patient’s condition.’ The significant reduction in the prospects of a successful outcome which the negligence caused is a loss for which the appellant is entitled to be compensated. If it is necessary to prove that this loss was caused by a physical injury, the enlargement of the tumour which the negligence caused was such an injury. Lord Hoffmann: ‘[The] law regards the world as in principle bound by laws of causality. Everything has a determinate cause, even if we do not know what it is… The fact that proof is rendered difficult or impossible . . makes no difference. There is no inherent uncertainty about what caused something to happen in the past or about whether something which happened in the past will cause something to happen in the future. Everything is determined by causality. What we lack is knowledge and the law deals with lack of knowledge by the concept of the burden of proof.’
(Dissenting) A change in the law by a wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in our law as to amount to a legislative act, and must be left to Parliament.

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Phillips of Worth Matravers, Baroness Hale of Richmond
[2005] UKHL 2, Times 28-Jan-2005, [2005] 2 AC 176, [2005] 2 WLR 268
Bailii, House of Lords
England and Wales
Citing:
Cited – Chaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
Appeal from – Gregg v Scott CA 29-Oct-2002
The claimant sought damages. He had a lymphoma, but despite his seeking medical assistance, it was not diagnosed early, and his life expectancy was diminished.
Held: In order to claim damages for a reduced life expectancy, the claimant had to . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Hotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
Cited – McWilliams v Sir William Arrol and Co Ltd HL 1962
A steel erector had fallen seventy feet to his death from a steel lattice tower. The employers had not provided a safety harness, but the judge found that he would not have used a security belt even if provided, and that the onus was on the pursuer . .
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Spring v Guardian Assurance Plc and Others HL 7-Jul-1994
The plaintiff, who worked in financial services, complained of the terms of the reference given by his former employer. Having spoken of his behaviour towards members of the team, it went on: ‘his former superior has further stated he is a man of . .
Cited – Barnett v Chelsea and Kensington Hospital Management Committee QBD 1968
The widow of a night watchman who died of arsenic poisoning claimed in negligence after he had attended the defendant’s hospital, but was negligently sent home without adequate treatment.
Held: The court was satisfied that even if the . .
Cited – Davies v Taylor HL 1974
The plaintiff’s husband was killed in a road accident caused by the defendant’s negligence. They were childless. She had deserted him five weeks before his death and thereafter, he learned about her adultery with a fellow employee. He tried to . .
Cited – Mallett v McMonagle HL 1970
The House discussed the role of the court in assessing future losses. Lord Diplock: ‘The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its . .
Cited – Wilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
Cited – Coudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
Cited – Laferriere v Lawson 1991
(Supreme Court of Canada) A doctor negligently failed in 1971 to tell a patient that a biopsy had revealed a lump in her breast to be cancerous. She first learned of the cancer in 1975, when the cancer had spread to other parts of the body and she . .
Cited – Smith v National Health Service Litigation 2001
. .
Cited – Doyle (By Her Mother and Next Friend) v Wallace CA 18-Jun-1998
A court awarding personal injury damages could make allowance for a prospective increase in salary which a claimant might have achieved upon completion of qualifications. In this case an increase was allowed at half up from an administrative pay . .
Cited – Commonwealth of Australia v Amann Aviation Pty Ltd 12-Dec-1991
(High Court of Australia) In a claim for damages for breach of contract, wasted expenditure was claimed and there was a complex dispute as to what the consequences of performing the contract would have been.
Held: The law should not, when . .
Cited – Croke v Wiseman CA 1982
The court considered the calculation of damages for loss of future earnings for a young child. . .
Cited – Langford v Hebran and Another CA 15-Mar-2001
The claimant sought damages for the loss of his chances of pursuing his career as a kick-boxer. The judge considered four different courses of varying success which his career might have taken. He accepted that, whether or not those scenarios had . .
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 – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Kyle v P and J Stormonth Darling WS 1992
Where a loss of opportunity which was the subject of a claim was part of the causal sequence which might or might not have led to the damnum or loss resulting from the injuria, the damnum lay not in the loss of opportunity but in the loss of the eye . .
Cited – Harris v Harris CA 1973
The court considered the award of damages for the loss of the chance of marriage. . .
Cited – Girvan v Inverness Farmers Dairy and Another IHCS 1996
The claimant sought damages. One of the heads of claim that were not in dispute was that the pursuer’s injuries had made it impossible for him to continue as a dedicated clay pigeon shot and had as a result lost the very real prospect of winning . .
Cited – Hughes v McKeown 1985
It was not appropriate to make any reduction in the damages multiplier for future loss of earnings to reflect the possibility that the pursuer might marry and have children. . .
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – Gammell v Wilson; Furness v Massey HL 1982
In each case, the deceased, died as a result of the defendants’ negligence. The parents claimed damages for themselves as dependants under the 1976 Act, and for the estate under the 1934 Act. The claims under the 1976 Act were held to have been . .

Cited by:
Appealed to – Gregg v Scott CA 29-Oct-2002
The claimant sought damages. He had a lymphoma, but despite his seeking medical assistance, it was not diagnosed early, and his life expectancy was diminished.
Held: In order to claim damages for a reduced life expectancy, the claimant had to . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Rothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Cited – Brown v Ministry of Defence CA 10-May-2006
Claim for injury suffered whilst training in Army. The claimant was committed to a career in the Army, and had anticipated promotion. She complained that her loss of pension rights had been calculated at a rate to reflect an average length career. . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Parabola Investments Ltd and Others v Browallia Cal Ltd and Others CA 5-May-2010
The second defendant appealed against the level of damages awarded against him after he was found guilty of a fraud on the claimant, saying that the loss of profits element was unproven.
Held: The appeal failed. Where a claimant’s investment . .
Cited – Ramzan v Brookwide Ltd CA 19-Aug-2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
Cited – Perry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 16 December 2021; Ref: scu.222050

Ampleforth Abbey Trust v Turner and Townsend Project Management Ltd: TCC 27 Jul 2012

The Trustees of the school complained that the contractors had been very slow in completing construction of new accomodation, causing them losses. The formal legal contract was only completed after the works, but it excluded any entitlement to damage for delay. The claimant sought damages from the defendants who had supervised the works, claiming negligence.
Held: ‘(1) TTPM owed to the Trust a duty to exercise reasonable care and skill for the purpose of procuring from Kier an executed building contract.
(2) TTPM was in breach of that duty, in that it failed to exercise sufficient focus on the matters holding up execution of the contract or to exert sufficient pressure on Kier to finalise the contract.
(3) That breach of duty caused the Trust loss, because if TTPM had not been in breach of duty:
(a) the Trust would have taken sufficient steps to ensure that, so far as lay within its power, it procured a contract;
(b) there would have been a real and substantial chance of Kier executing a contract that contained a provision for liquidated damages;
(c) the existence of such a contract would have been a material benefit to the Trust in its dispute with Kier when completion of the H5 works was delayed.
(4) Regarding the quantum of the Trust’s loss:
(a) the probability is that, if there had been a contract in existence, the Trust and Kier would have negotiated a reasonable settlement of their dispute. The value of such a settlement to the Trust, over and above the settlement it negotiated in the absence of a contract, would have been andpound;340,000, taking into account the probable price that the Trust would have had to pay to achieve the execution of the contract.
(b) the Trust is entitled to recover two-thirds of that amount, having regard to the size of the chance that Kier would indeed have signed the contract.
(c) Although the terms of TTPM’s contract with the Trust included a limitation clause, TTPM is not entitled to rely on that clause to limit its liability for damages to the Trust.
(d) Therefore the quantum of damages is andpound;226,603
(5) TTPM is entitled to recover andpound;37,167 for additional fees on its counterclaim.’

Keyser QC HHJ
[2012] EWHC 2137 (TCC), 144 Con LR 115, [2012] TCLR 8
Bailii
England and Wales

Construction, Professional Negligence

Updated: 13 December 2021; Ref: scu.463653

Mortgage Express v Abensons Solicitors (A Firm): ChD 20 Apr 2012

The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation of breach of trust had improperly removed a limitation defence.
Held: The appeal was allowed. The court noted that the claimant may in any event have issued new proceedings in which the fiduciary breach claims were raised, and it would be for another court to consider whether the claims should later be consolidated.

Cooke J
[2012] EWHC 1000 (Ch)
Bailii
Limitation Act 1980 32
England and Wales
Citing:
Cited – Welsh Development Agency v Redpath Dorman Long Ltd CA 4-Apr-1994
A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The . .
Cited – Moody v Cox and Hatt CA 1917
An action was brought for rescission of a contract of sale of a public house and four cottages, with a counterclaim for specific performance. The sellers, Hatt and Cox, were respectively a solicitor and his managing clerk. They were the trustees of . .
Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
Cited – Mortgage Corporation v Alexander Johnson (A Firm) ChD 7-Jul-1999
The rule that in the case of a dispute as to whether a claim was time barred, a fresh action had to be begun to allow the proposition to be tested, did not apply where the delay arose from some deliberate concealment of the cause of action by the . .
Cited – Cave v Robinson Jarvis and Rolf (a Firm) HL 25-Apr-2002
An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should . .
Cited – Leeds and Holbeck Building Society v Arthur and Cole ChD 2001
A claim for breach of fiduciary duty by a solicitor as against his lender client, required that it be found that the solicitor ‘did not disclose matters which he admittedly ought to have done to the claimant, intentionally and consciously, knowing . .
Cited – Seaton and Others v Seddon ChD 23-Mar-2012
The claimants sought damages alleging that royalties were due to them. The defendant solicitors applied to strike out the action as against themselves as an abuse of process. . .
Cited – Williams v Fanshaw Porter and Hazelhurst CA 18-Feb-2004
The claimant alleged that her solicitors had concealed from her the fact that they had entered a consent order which dismissed her claim for medical negligence.
Held: The solicitor had failed to inform the client that her original claim . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Trusts, Litigation Practice, Limitation

Updated: 13 December 2021; Ref: scu.457680

Smith v Tunbridge Wells Health Authority: 1994

The patient was to undergo rectal surgery. He claimed that the doctor had failed to warn him of the risks.
Held: The claimant would have declined the operation if he had been properly advised of the risk of impotence and bladder malfunction, and the claim succeeded.

Morland J
[1994] 5 Med LR 334
England and Wales
Cited by:
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 10 December 2021; Ref: scu.216513

Zarb v Odetoyinbo: QBD 20 Nov 2006

The Claimant claims damages for negligence against her General Practitioner, saying that he failed to make an immediate call to an orthopaedic surgeon, or a same day referral, in respect of the symptoms with which she was presenting to him.

Mr Justice Tugendhat
[2006] EWHC 2880 (QB)
Bailii
England and Wales

Professional Negligence, Personal Injury

Updated: 10 December 2021; Ref: scu.246227