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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Professional Negligence - From: 1980 To: 1984

This page lists 21 cases, and was prepared on 02 April 2018.

 
Ross v Caunters (a firm) [1980] Ch 297
1980
ChD
Sir Robert Megarry V-C
Professional Negligence, Wills and Probate, Damages
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
1 Citers


 
Chatterton v Gerson [1981] QB 432; [1980] 3 WLR 1003; [1981] CLY 2648
1980
QBD
Bristow J
Torts - Other, Professional Negligence
The doctor failed to explain possible consequences of an operation 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.
1 Citers


 
Whitehouse v Jordan [1981] 1 WLR 246; [1980] UKHL 12; [1981] 1 All ER 267
17 Dec 1980
HL
Lord Wilberforce, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Russell of Killowen, Lord Bridge of Harwich
Litigation Practice, Professional Negligence
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge's finding in his favour. Held: In this case most of the evidence at issue was that of expert witnesses, and the court might therefore be more ready to depart from findings of fact by the judge.
Lord Wilberforce said as to expert evidence: "While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating."
1 Cites

1 Citers

[ Bailii ]

 
 Forster v Outred and Co; CA 1981 - [1982] 1 WLR 86

 
 Karpenko v Paroian, Courey, Cohen and Houston; 1981 - (1981) 117 DLR (3d) 383

 
 Milton v Walker and Stanger; 1981 - [1981] 125 SJ 86

 
 JEB Fasteners Ltd v Marks, Bloom and Co; CA 1981 - [1981] 3 All ER 289

 
 Yianni v Edwin Evans and Sons; ChD 1981 - [1982] QB 438; [1981] 3 WLR 843; [1981] 3 All ER 592

 
 Carradine Properties Ltd v DJ Freeman and Co; CA 1982 - [1999] Lloyds Law Rep. P N 483
 
Twomax Ltd v Dickson, McFarlane and Robinson 1982 SC 113; 1983 SLT 98
1982


Professional Negligence, Scotland

1 Citers



 
 Perry v Sidney Phillips and Son; CA 1982 - [1982] 1 WLR 1297; [1982] 3 All ER 705; [1983-84] ANZ Conv R 72
 
Baker v Ollard and Bentley [1982] 126 SJ 593; [1982] CLY 1845; CA Transcript 155 of 1982
12 May 1982
CA
Templeman LJ
Professional Negligence, Limitation
The plaintiff and a Mr and Mrs Bodman agreed to buy a house. The plaintiff intended to live on the first floor and the Bodmans on the ground floor. The solicitor should have advised them to convey the freehold into their joint names and then to grant separate long leases of the first floor to the plaintiff and the ground floor to the Bodmans respectively. Instead he simply had the house conveyed into their joint names on trust for sale. The plaintiff obtained neither security of tenure nor any interest which she could separately dispose of and, when subsequently the Bodmans decided to move out and sell the house by enforcing the trust for sale, she had to expend further money purchasing the freehold. Held. Her cause of action accrued at the time of the original transaction rather than at the later time when the Bodmans decided to enforce the trust for sale. Templeman LJ said: "Damages were suffered on that date because the plaintiff did not receive the long lease and joint tenancy which the solicitors should have secured for her. She secured instead some other different interest. She has suffered damage because she did not get what she should have got." The court did not compare the value of the interest that the claimant in fact received with the amount that she paid for it. The mere fact that "she did not get what she should have got" was sufficient to amount to damage.
1 Cites

1 Citers


 
R P Howard Ltd and Witchell v Woodman Matthews and Co (a firm) [1983] BCLC 117; [1983] QB 117
1983

Staughton J
Landlord and Tenant, Legal Professions, Professional Negligence
The solicitor defendant knew that the company was a family company effectively run by Mr Witchell from whom they received their instructions. The question raised was as to the duty of the solicitor to company and director. Held: There is no necessary legal impediment to a professional adviser owing concurrent duties both to a company and to its members or to its directors. The solicitor owed a duty to exercise all reasonable care and skill in connection with his client's business, the precise nature of his duty would depend inter alia upon the experience of his client and therefore an inexperienced client was entitled to expect a solicitor to take this into consideration in giving advice. The defendant was negligent in omitting to remind the plaintiffs of the need to initiate an application to the County Court in order to obtain the protection of the Landlord and Tenant Act 1954.
Staughton J said: 'In my judgment, in the circumstances of this case, Mr Witchell as well as the company was the client of Mr Mason. That seems to me to reflect the reality of the situation. Mr Mason knew that Mr Witchell … was the company. He probably knew that Mr Witchell derived his livelihood and some profit from the company, and was vitally concerned in its well-being. Mr Witchell had first been his personal friend, and had then come to him in connection with other matters for legal advice, both as the representative of the company and in a personal capacity. When Mr Witchell sought his advice on . . [a matter concerning the company] Mr Mason owed a contractual duty of care both to the company and to Mr Witchell."
1 Citers


 
Ashcroft v Mersey Regional Health Authority [1983] 2 All ER 245
1983
QBD
Kilner Brown J
Professional Negligence
The plaintiff had surgery on her ear. The result was a major injury, and she sued in negligence. Held: The action failed. When alleging negligence in a professional person, the question is whether on a balance of probabilities the plaintiff establishes that the defendant had failed to exercise the appropriate level of care of someone with those special skills in the suituation where those skills were called upon. Where a special skill is claimed, a higher burden of duty lies upn the person exercising it, but the test is applied without a gloss either way.

 
Allied Finance and Investments Ltd v Haddow and Co [1983] NZLR 22
1983

Cooke J
Commonwealth, Legal Professions, Professional Negligence
(New Zealand Court of Appeal) The fact that a certificate is sent by a solicitor to a lender confirming the giving of independent advice and that guarantors had signed the guarantee voluntarily may place a duty of care on the solicitor in relation to the lender.
Cooke J said: "the relationship between two solicitors acting for their respective clients does not normally of itself impose a duty of care on one solicitor to the client of the other. Normally the relationship is not sufficiently proximate. Each solicitor is entitled to expect that the other party will look to his own solicitor for advice and protection."
1 Citers


 
Gartside v Sheffield Young and Ellis [1983] NZLR 37
1983

Cooke J
Professional Negligence, Commonwealth, Wills and Probate
(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: "To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor's professional role in the community. In practice the community relies upon solicitors (or statutory officers with similar functions) tp prepare effective wills."
1 Cites

1 Citers



 
 Boyce v Rendells; CA 1983 - [1983] 268 EG 268
 
Pirelli General Cable Works v Oscar Faber and Partners [1983] 1 All ER 65; [1983] 2 AC 1
2 Jan 1983
HL
Lord Fraser
Limitation, Professional Negligence
The plaintiff asked the defendant consulting engineer to design an extension to their factory in 1969. Not later than in April 1970, cracks developed in the chimney. In 1977 the cause of the damage was discovered. It arose from design faults in the selection of materials. The defect could not have been discovered before 1972. Held: The defendant's appeal was allowed. In cases of physical damage, caused by negligent design or construction of a building, the cause of action occurred when the damage came into existence, whether or not it was discovered or discoverable at that time.
Lord Fraser said: "there is an element of confusion between damage to the plaintiff's body and latent defect in the foundations of a building. Unless the defect is very gross, it may never lead to any damage at all to the building. It would be analogous to a predisposition or natural weakness in the human body which may never develop into disease or injury. The plaintiff's cause of action will not accrue until damage occurs, which will commonly consist of cracks coming into existence as a result of the defect even though the cracks or the defect may be undiscovered or undiscoverable."
1 Cites

1 Citers


 
Edward Wong Finance Co Ltd v Johnson Stokes and Master (1983) 80 LSG 3163; [1984] 2 WLR 1; [1983-84] ANZ Conv R 640; [1984] AC 296; [1983] UKPC 32
1984
PC
Diplock, Elwyn-Jones, Roskill, Brandon of Oakbrook, Brightman LL
Professional Negligence, Legal Professions, Commonwealth
(Hong Kong) The defendant's solicitors completed a mortgage in "Hong Kong style" rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the borrowers subsequently to hand over the executed documents. This allowed a dishonest solicitor for the borrower to abscond with an advance without providing the documents. Held: Even though completion in Hong Kong style was almost universally adopted in Hong Kong and was in accordance with a body of professional opinion there, the defendant's solicitors were liable for negligence because there was an obvious risk which could have been guarded against. Thus, the body of professional opinion, though almost universally held, was not reasonable or responsible. In medical negligence, in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence. Nevertheless, it will very seldom be right for a judge to reach the conclusion that views generally held by a competent medical expert are unreasonable.
1 Citers

[ Bailii ]
 
Wimpey Construction UK Ltd v D V Poole [1984] 2 Ll LR 499; Times, 03 May 1984; [1984] CLY 2340
3 May 1984

Webster J
Professional Negligence
The defendant offered a professional skill, but held itself out as offering such skills to a higher degree than normal. The plaintiff sought to hold it to the high standard proclaimed. Held: The standard of care remained that of the ordinary and competent practitioner, and not the standard vaunted.
1 Citers


 
Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] 1 QB 1012; [1984] 3 All ER 1044
1 Jul 1984
CA
Waller LJ
Damages, Contract, Professional Negligence
A sterilisation operation had been performed negligently and failed and the claimant was born. Held: The birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon's careless failure to clip a fallopian tube effectively. The authority could not expect her to terminate the pregnancy. The mother was entitled to recover damages, including damages for her future loss of earnings, following the birth of a child with congenital abnormalities who required constant medical and parental supervision.
Waller LJ said: "In my view it is trite to say that if a woman becomes pregnant, it is certainly foreseeable that she will have a baby, but in my judgment, having regard to the fact that in a proportion of all births - between one in 200 and one in 400 were the figures given at the trial - congenital abnormalities might arise, makes the risk clearly one that is foreseeable, as the law of negligence understands it."
On a claim in contract the court held that there was no rule of public policy which precluded recovery of damages for pain and suffering and for maintaining the child. The court took a multiplier of 8 for a child 5 years old at the time of the appeal. The total award in respect of pain, suffering and loss of amenities was £13,000.
1 Cites

1 Citers


 
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