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Professional Negligence - From: 1985 To: 1989

This page lists 20 cases, and was prepared on 02 April 2018.


 
 Maynard v West Midlands Regional Health Authority; HL 1985 - [1985] 1 WLR 685; [1985] 1 All ER 635

 
 Wilsher v Essex Area Health Authority; CA 1986 - [1986] 3 All ER 801; [1987] 2 WLR 425
 
Thake v Maurice [1986] 2 WLR 337; [1986] QB 644; [1986] 1 All ER 497
1986
CA
Nourse LJ
Damages, Professional Negligence
A vasectomy was performed. The husband was told that contraception precautions were not necessary but a child was born. The claim was brought in contract and in tort. The first instance court found no reason why public policy prevented the recovery of expenses arising from the birth of a healthy child, and awarded damages in respect of the expenses of the birth and the mother's loss of wages but refused damages for the pain and distress of labour holding that these were off set by the joy occasioned by the birth. It also awarded damages in an agreed sum for the child's upkeep to its seventeenth birthday. Held: Damages should be awarded for pain and suffering "per the majority" in tort rather than contract. The joy of having the child could be set off against the time, trouble and care in the upbringing of the child but not against prenatal pain and distress. For the latter, damages should be awarded.
Nourse LJ said: "Valuable too are the observations of Lord Denning MR in Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners [1975] 1 WLR 1095 . . Lord Denning thought, and I respectfully agree with him, that a professional man is not usually regarded as warranting that he will achieve the desired result. Indeed, it seems that that would not fit well with the universal warranty of reasonable care and skill, which tends to affirm the inexactness of the science which is professed. I do not intend to go beyond the case of a doctor. Of all sciences medicine is one of the least exact. In my view a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms. The defendant did not do that in the present case."
1 Cites

1 Citers


 
Hyde v Thameside Area Health Authority [1986] PN 26
1986
CA
Lord Denning MR
Professional Negligence

1 Citers



 
 Predeth v Castle Phillips Finance Co Ltd; 1986 - [1986] 2 EGLR 144

 
 Wilsher v Essex Area Health Authority; HL 24-Jul-1986 - [1988] AC 1074; [1988] 1 All ER 871; [1987] UKHL 11
 
Robertson v Nottingham Health Authority [1987] 8 Med LR 1
1987
CA
Brooke LJ
Professional Negligence
Brooke LJ held that "the only rule that this court has to apply in the present case is that if a patient is injured by reason of a negligent breakdown in the systems for communicating material information to the clinicians responsible for her care, she is not to be denied redress merely because no identifiable person or persons are to blame.", but went on to say that: "Although it is customary to say that a health authority is vicariously liable for breach of duty if its responsible servants or agents fail to set up a safe system of operation in relation to what are essentially management as opposed to clinical matters, this formulation may tend to cloud the fact that in any event it has a non-delegable duty to establish a proper system of care just as much as it has a duty to engage competent staff and a duty to provide proper and safe equipment and safe premises (compare Wilsher v Essex AHA [1987] QB 747 per Sir Nicolas Browne-Wilkinson at p 778 A-D and Glidewell LJ, agreeing on this point, at p775 B-C).
A health authority owes its patient a duty to provide her with a reasonable regime of care at its hospital (Gold v Essex County Council [1942] 2 KB 293 per Lord Greene MR at pp 302 and 304; and per Goddard LJ at p 309; Roe v Minister of Health [1954] 2 QB 66 per Denning LJ at p72, applying what he said in Cassidy v Ministry of Health [1951] 2 KB 343 at pp 359-365, and per Morris LJ at pp 88-89). For examples of analogous cases within a master-servant relationship where an employer was held liable for a systems failure see McDermid v North Dredging and Reclamation Company Ltd [1987] AC 906, per Lord Hailsham of St Marylebone at pp 910F-G and 911F-G and per Lord Brandon at pp 918G-H and 919B-D; and Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 per Lord Wright at pp 81-84. By a reasonable regime of care we mean a regime of a standard that can reasonably be expected of a hospital of the size and type in question – in the present case a large teaching centre of excellence."
1 Citers


 
Governors of the Hospital of Sick Children v McLaughlin and Harvey plc (1987) Con LR 25
1987


Professional Negligence

1 Citers


 
County Personnel (Employment Agency) v Pulver (Alan R) and Co [1987] 1 All ER 289
1987
CA

Professional Negligence, Damages
The parties were negotiating for an under-lease. The lease provided for rent to increase along with rent reviews under the head lease. The solicitors failed to ascertain the rent under the head lease, to advise his client to have the property valued, or to explain the unusual clause. The rent was reviewd to an uneconomic rent, and the client sued his solicitor for negligence. He appealed dismissal of his claim. Held: The solicitor was negligent. In exercising reasonable professional judgement he should have alerted his client to the consequences of the unusual clause. As to damages, the court was not restricted to the diminution in value. The plaintiff was entitled also to the costs of surrender and possibly to the cost of a lease whch would be saleable.
1 Citers



 
 Redman v Allied Irish Bank; 1987 - [1987] 2 FTLR 264
 
D W Moore and Co Ltd v Ferrier [1988] 1 WLR 267; [1988] 1 All ER 400
1988
CA
Neill LJ, Bingham LJ
Professional Negligence, Damages, Limitation
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied that the action was out of time. Held: The purpose of the covenant was to protect the plaintiff's goodwill. That goodwill was damaged as soon as the agreements were executed, since the company lost its protection immediately. The action was out of time and failed. the cause of action against the solicitors accrued when the contract was entered into: "[S]o long as there was any risk that one of the first plaintiff's two directors might leave . . to establish a competing business, there must necessarily have been a depressive effect on the value of the first plaintiff's business." Whether any action later arose went as to quantification of the damage, and did not go as to the existence of the cause of action: "it is a question of fact in each case whether actual damage has been suffered."
Bingham LJ said: "On the plaintiffs' case, which for the purposes of this issue may be assumed to be wholly correct, the covenants against competition were intended, and said by the defendants, to be effective but were in truth wholly ineffective. It seems to me clear beyond argument that from the moment of executing each agreement the plaintiffs suffered damage because instead of receiving a potentially valuable chose in action they received one that was valueless."
1 Cites

1 Citers


 
Whiteoak v Walker (1988) 4 BCC 122
1988
ChD
Terence Cullen QC
Professional Negligence
The articles of association of a private company provided for shares to be valued by the auditor. The plaintiff transferred shares at a price fixed by the auditor, and subsequently alleged that the valuation was negligently made. One of the issues between the parties was whether the requisite standard of skill and care was that of a reasonably competent chartered accountant who professed specialist skills in valuing unquoted shares ("the specialist standard") or that of a reasonably competent chartered accountant in general practice acting as an auditor who has agreed to a request to undertake the valuation task ("the auditor standard"). Held: In favour of the latter, the choice facing the members of the company, when agreeing to the terms of the articles of association, was between opting for the specialist skills of a share valuer and the special knowledge of the company’s affairs that the auditor would have. As they were seeking a fair result, as to which a specialist share valuer would not have a special advantage over their own auditor, they intended the auditor to apply his skills and not the skills of a specialist share valuer.
1 Citers


 
Clarke v Bruce Lance and Co [1988] 1 All ER 364; [1988] 1 WLR 881; [1989] ANZ Conv R 25; (1988) 85 LSG 37
1988
CA
Balcombe LJ
Professional Negligence, Wills and Probate
The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the solicitors handled. In 1978 the solicitors were retained by the testator to act on his behalf in drawing up a variation to the lease to include an option to purchase in favour of the lessee at a fixed price. The testator died in 1981. By that time the value of the service station had increased substantially. The plaintiff brought an action against the solicitors claiming damages for negligence, contending that the solicitors had breached the duty they owed to the testator, and to the plaintiff beneficiary knowing that his interest would be affected, and to advise the testator that the fixed price option was an uncommercial transaction.Held: A solicitor had no duty of care to a beneficiary when arranging a transaction subsequent to the will which would adversely affect the value of the gifted property.
Balcombe LJ said: "If the defendants were under a liability to a potential beneficiary of the property, it cannot have been to the plaintiff alone. As a matter of logic, the plaintiff, at the time of the grant of the option, was in no different a position vis-a-vis the defendants than anyone to whom the testator might have given the property during his lifetime, or to whom it might pass under his will or intestacy. So if the defendants owed a duty to anyone other than their client, the testator, it must have been to the whole of this indeterminate class of potential donees or beneficiaries. It would indeed have exposed them to a liability in an indeterminate amount for an indeterminate time to an indeterminate class." He rejected that argument.
. . And "Far from the interests of the testator and the plaintiff marching hand in hand, there was an obvious conflict of interest. Supposing the defendants had warned the testator that the option he wished to grant Hoare was improvident from the point of view of the persons who might ultimately become entitled to the property after the testator's death, then in the context of the fact that the option formed but one term of a larger transaction (the deed of variation) into which the testator wished to enter, he might well have instructed the defendants to go ahead in any event. But if they owed a duty of care to the plaintiff, they would have been bound to try and dissuade him: an intolerable position for any solicitor."
1 Cites

1 Citers


 
Al-Kandari v J R Brown and Co [1988] 1 QB 665; [1988] EWCA Civ 13; [1988] 1 All ER 833
1988
CA
Donaldson L MR, Dillon LJ, Bingham LJ
Professional Negligence, Legal Professions
A solicitor had undertaken to look after certain passports, but failed to do so. The husband had twice previously kidnapped his children whose custody was an issue before the court. Once the husband regained the passports, he again fled with the children. Held: The court should be prepared to find a duty of care on the part of someone who undertook to act in a particular capacity to the plaintiff and to the court as custodian of the plaintiff's children's passports, notwithstanding that the solicitor also owed a conflicting professional duty of care to his client. He had accepted a duty to act as an independent custodian of the passport subject to the direction of the court and the joint directions of the parties, and in that capacity owed the opposing party a duty to take reasonable care to keep the passport in his possession (save as the opposing party might otherwise agree) and to inform it if for any reason it ceases to be in his possession.
1 Cites

1 Citers

[ Bailii ]
 
DW Moore and Co Ltd v Ferrier [1988] 1 WLR 267; (1988) 1 All ER 400
1988
CA
Neill LJ, Bingham LJ, Kerr LJ
Professional Negligence, Limitation
A solicitor was instructed to prepare an agreement providing for the introduction of a new working director into an insurance broking business carried on by a company. His instructions called for the new director to enter into a restrictive covenant which would take effect on his leaving the business. Through careless drafting the covenant was ineffective. The agreement (entered into in 1971 and renewed with the same defect in 1975) continued until 1980 when, on the director's departure from the business, the covenant was found to be defective. The company issued a writ against the solicitors in 1985. The appellant plaintiff argued that a defective covenant or similar legal document was a mere defect or weakness, that only ripened into relevant damage when the client actively and unsuccessfully sought to rely upon it. Held. The plaintiff's argument and appeal was rejected. The measure of damages was the measure sometimes loosely referred to as the contract or warranty measure. Had the solicitor done his job properly the plaintiffs would have obtained the benefit of an effective restraint of trade covenant. As it was, they received a worthless covenant. They suffered damage when the transaction was entered into. The limitation period ran from the date of a negligently drafted contract. However, each such case depended upon its own facts.
Bingham LJ said that if the liability is for the difference between what the plaintiff got and what he would have got if the defendant had done what he was supposed to have done, it may be relatively easy, to infer that the plaintiff has suffered some immediate damage, simply because he did not get what he should have got and: "On the plaintiffs' case, which for purposes of this issue may be assumed to be wholly correct, the covenants against competition were intended, and said by the defendants, to be effective but were in truth wholly ineffective. It seems to me clear beyond argument that from the moment of executing each agreement the plaintiffs suffered damage because instead of receiving a potentially valuable chose in action they received one that was valueless." and
"If, in a contractual claim for negligence, the court would have awarded other than nominal damages, I do not see how it can be said that an action in tort based on the same negligence would have been bound to fail for want of any damage as an essential ingredient of the cause of action."
Neill LJ said: "In the present case the judge rightly rejected the notion that where a solicitor gives negligent advice, damage is presumed to occur at the time when the advice is acted upon. I am satisfied that there is no such presumption. It is a question of fact in each case whether actual damage has been established." and
"The plaintiffs suffered damage 'because [they] did not get what [they] should have got.' The plaintiffs' rights under the two agreements were demonstrably less valuable than they would have been had adequate restrictive covenants been included." He continued: "it is a question of fact in each case whether actual damage has been suffered."
1 Cites

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 Hotson v East Berkshire Health Authority; HL 2-Jul-1988 - [1987] AC 750; [1988] UKHL 1; [1987] 2 All ER 909
 
Caparo Industries plc v Dickman [1988] BCLC 387; Times, 5 August 1988
5 Aug 1988
QBD
Sir Neil Lawson
Company, Professional Negligence
The plaintiff complained that they had suffered losses after purchasing shares in a company, relying upon statements made in the accounts by the auditors (third defendants). Held: The claim failed. Whilst auditors might owe statutory duties to shareholders as a class, there was no common law duty to individual shareholders such as would enable an individual shareholder to recover damages for loss sustained by him in acting in reliance upon the audited accounts.
1 Citers


 
Minton v Kenburgh Investments (Northern) Ltd (In Liquidation) Times, 13 November 1998
13 Nov 1988
QBD

Professional Negligence

1 Citers


 
Caparo Industries plc v Dickman [1989] QB 653
1989
CA
Bingham LJ, O'Connor LJ
Professional Negligence, Company
The plaintiffs had purchased shares in a company, relying upon accounts prepared by the second defendant auditors. They appealed against a decision that the auditors did not owe them a duty in negligence, not being shareholders. Held: The appeal succeeded (O'Connor LJ dissenting). Whilst there was no relationship between an auditor and a potential investor sufficiently proximate to give rise to a duty of care at common law, there was such a relationship with individual shareholders, so that an individual shareholder who suffered loss by acting in reliance on negligently prepared accounts, whether by selling or retaining his shares or by purchasing additional shares, was entitled to recover in tort.
Bingham LJ said that in considering whether or not a duty of care of particular scope was incumbent upon a defendant it was material to take into consideration whether it was just and reasonable that it should be so.
1 Cites

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 Smith v Eric S Bush, a firm etc; HL 20-Apr-1989 - [1989] 2 WLR 790; [1990] 1 AC 831; [1989] 17 EG 68; [1989] 2 All ER 514; [1990] UKHL 1
 
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