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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: 1995 To: 1995

This page lists 22 cases, and was prepared on 02 April 2018.

 
George Fischer (Great Britain) Ltd v Multi Construction Ltd., Dexion Ltd. (third party) [1998] 61 ConLR 85; [1995] 1 BCLC 260
1995

Judge Hicks QC
Professional Negligence, Damages
The plaintiff contracted with the defendant for the defendant to install equipment on the premises of one of the claimant's subsidiaries. The equipment was to be used by the subsidiary. The equipment was defective and damage was suffered by the subsidiary in consequence. The claimant sought to recover in a breach of contract action the loss caused to its subsidiary. Held: The claim was allowed. The Prudential Assurance case did not bar the action.
Judge Hicks QC said: "Each scheme was criticised by the proponents of the other. Neither had been designed in full detail, so acceptance of either is, to some extent, dependent, first, on a judgment as to the ability of the designer, with the assistance of the specialist knowledge of the relevant manufacturer and a contractor experienced in using the system, to devise suitable detailed treatment of all the potential trouble-spots and, second, on an assessment of the guarantees and bonds offered by the manufacturer and contractor. Since Soladex would be so much the cheaper, and cannot be said to be the more detrimental to the appearance of the buildings - I should have thought, if anything, the reverse - it must clearly be preferred unless the criticisms of its expected effectiveness are, taking the above considerations into account, made good on the balance of probabilities."
1 Citers


 
Whitfield v North Durham Health Authority [1995] 6 Med LR 32; [1995] PIQR 361
1995
CA
Waite LJ
Limitation, Professional Negligence
In 1987, and before the claim was issued in 1992 the claimant had issued a claim which had never been served. She sought to extend the limitation period arguing that she had not acquired the requisite knowledge until later, Held: She had had the requisite knowledge in 1985.
Waite LJ observed that her issue of the claim in 1987 did not necessarily betoken that she had knowledge under section 14(1), saying also: "The court should look to the essence of the matter and enquire how far the plaintiff had knowledge in broad terms of the facts on which it is based" and "In a discretionary jurisdiction where the court is required to have regard to ´all the circumstances of the case' it would clearly be inappropriate to look for hard and fast rules, but counsel were agreed in this court that the section must be read as incorporating one underlying principle. In the process of assessing equity and balancing prejudice which the section enjoins, a party's action or inaction cannot be divorced from the acts or omissions of his legal representative. The principle in that respect is analogous to that applying in cases of striking out for want of prosecution."
Limitation Act 1980 14(1)
1 Citers


 
Delaney v Southmead Health Authority [1995] 6 Med LR 355
1995
CA
As Stuart Smith LJ
Professional Negligence
The plaintiff had sustained a lesion of the brachial plexus after a successful operation to remove her gall bladder. She claimed that this must have been occasioned by hyper abduction of her left arm by the anaesthetist at some point during the administration, overseeing or conclusion of anaesthesia. The anaesthetist gave an explanation of his practice in carrying out anaesthesia which could not have involved hyper abduction of the plaintiff's left arm. The judge accepted his evidence. The injury was therefore one for which the defendant was unable to give an explanation. Held: The patient's appeal failed. The court had been entitled to find that the anaesthetist had exercised all due care in carrying out the procedure even though that left the injury unexplained. In medical negligence cases, where full evidence, including evidence from experts on both sides, has been heard, it is only in a rare case that the maxim res ipsa loquitur will assist the court: "For my part, I am doubtful whether it is of much assistance in medical negligence, at any rate when all the evidence in the case had been adduced. But even if Mr Stembridge is right in saying that at that stage the maxim applies, it is always open to a defendant to rebut a case of res ipsa loquitor either by giving an explanation of what happened which is inconsistent with negligence … or by showing that the defendant exercised all reasonable care."
1 Citers



 
 Zubaida v Hargreaves; CA 1995 - [1995] 1 EGLR 127
 
Allied Maples Group Ltd v Simmons and Simmons [1995] 1 WLR 1602; [1995] 4 All ER 907; [1995] EWCA Civ 17; [1995] NPC 83; 46 Con LR 134; [1996] CLC 153; (1995) 70 P & CR D14; [1955-95] PNLR 701
1995
CA
Stuart-Smith LJ, Hobhouse LJ
Damages, Professional Negligence
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 a real and not a merely speculative chance that the plaintiffs, had they been properly advised, would have successfully re-negotiated with the vendor to obtain proper protection. Held: The judgment was upheld. To avoid an action for damages against solicitors being struck out, the plaintiff must satisfy the court that he had at least a "real" or "substantial" chance that he would have succeeded in the primary action, not merely a speculative chance. The court rejected the proposition that in order to succeed the plaintiff was required to prove on a balance of probabilities that the third party (there another party to a commercial transaction) would have acted so as to confer the relative benefit on the plaintiff. A plaintiff must prove that he has (or had) a real or substantial chance (as opposed to a speculative chance) of that occurring, that chance then being evaluated having regard to how it stands in the spectrum between something that just qualifies as real or substantial on the one hand and near certainty on the other. If a chance having been found to be real or substantial was evaluated at less than 50%, an award of damages would follow. “In many cases the plaintiff’s loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff, as in this case, or independently of it. In such a case, does the plaintiff have to prove on balance of probability, ... that the third party would have acted so as to confer the benefit or avoid the risk to the plaintiff, or can the plaintiff succeed provided he shows that he had a substantial chance rather than a speculative one, the evaluation of the substantial chance being a question of quantification of damages? . . . I have no doubt that ... the second alternative is correct.”
Stuart Smith LJ said: "the plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other. I do not think that it is helpful to seek to lay down in percentage terms what the lower and upper ends of the bracket s
Hobhouse LJ said: "The plaintiffs have satisfied the court that the loss they have suffered is not nominal. They are not obliged to prove more than that they have lost something of substance. This they have done by showing that they had a measurable chance of negotiating significantly better terms. They are entitled to an assessment of their damages.
I agree with Stuart-Smith L.J. that the correct approach is that summarised by Lord Reid in Davies v. Taylor [1974] A.C. 207"
1 Cites

1 Citers

[ Bailii ]
 
De Freitas v O'Brien [1995] EWCA Civ 28; [1995] PIQR 281; [1995] 6 Med LR 108; [1955-95] PNLR 680
2 Feb 1995
CA
Leggatt LJ, Swinton Thomas LJ, Otton LJ
Personal Injury, Professional Negligence
The plaintiff appealed refusal of her claim for damages for personal injury.
[ Bailii ]
 
Defreitas v O'Brien and Another Times, 16 February 1995; Ind Summary, 03 April 1995
16 Feb 1995
CA

Professional Negligence
A small number of doctors can constitute responsible medical opinion.


 
 White and Another v Jones and Another; HL 16-Feb-1995 - Independent, 17 February 1995; Times, 17 February 1995; [1995] 2 AC 207; [1995] UKHL 5; [1995] 1 All ER 691; [1995] 2 WLR 187
 
Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others Appealsz Times, 24 February 1995; Gazette, 22 March 1995; Times, 21 February 1995; [1995] QB 375; [1995] 2 All ER 769
24 Feb 1995
CA
Sir Thomas Bingham MR
Damages, Professional Negligence
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 on sale the plaintiffs obtained substantially less than the sums they had advanced. The relevant question was whether the plaintiffs could include in their damages the difference in the value of the properties between the time of entering into the mortgages and the sale of the properties. Held: Damages payable to a secured lender for a negligent valuation included losses attributable to general market. Discussing liability where two causes contributed to the damages: "the event which the plaintiff alleges to be causative need not be the only or even the main cause of the result complained of: it is enough if it is an effective cause"
Sir Thomas Bingham MR described the valuer's task: "In the absence of special instructions, it is no part of V's duty to advise L on future movements in property prices, whether nationally or locally. The belief among buyers and sellers that prices are likely to move upwards or downwards may have an effect on current prices, and to that extent such belief may be reflected by V in his valuation. But his concern is with current value only. He is not asked to predict what will happen in the future. His valuation is not sought to protect L against future decline in property prices. In no sense is he a guarantor of L's investment decision."
He spoke also as to the measurement of damages: "where a mortgage lender would not, but for the negligent valuation, have entered into the transaction with the borrower he could recover the net loss he had sustained as a result of having done so; that a fall in the market was foreseeable, and since, in such a case, the lender would not have entered into the transaction but for the valuer's negligence and could not escape from it unless and until the borrower defaulted, that negligence was the effective cause of his loss, and a fall in the market was not to be treated as a new intervening cause breaking the link between the valuer's negligence and the damage sustained; accordingly on the assumed facts the mortgagees were entitled to recover damages in respect of the loss they had sustained which was attributable to market fall."
. . And: "In a no-transaction purchase case, it seems clear on English authority that effect will be given to the resti­tutionary principle by awarding the buyer all that he has paid out less what (acting reasonably to cut his losses including selling the property) he has recovered. In no case before [the present case] has any head of foreseeable damage been excluded from the calculation."
. . And: "In no-transaction mortgage lending cases it has been the practice since Baxter v Gapp [1939] 2 AER 752 to award the lender the net loss sustained as a result of entering into the transaction, which may be expressed as the difference between what the lender advanced and what the lender would have advanced if properly advised (which is always nil). Thus related expenses of sale and realisation less sums recovered. ... Should a rise in the market have contributed to [a full recovery] then, as in the successful transaction case, that contribution will not be ignored so as to treat the lender as sustaining a financial loss which in fact he has not sustained. If in such a case a fall in the property market between the date of the transaction and the date of realisation contributes to the lender's overall loss sustained as a result of entering into the transaction, it would seem to us, on a straight forward application of the restitutionary principle, that the lender should be entitled to recover that element of his loss against the negligent party."
. . And :"Where a buyer is claiming damages for negligence in a successful transaction case the diminution in value rule ordinarily provides an adequate measure of the buyers loss. As the cases show, to award, for example, the full cost of repairs will usually lead to over-compensation. This assessment will ordinarily be made as at the date of breach, for there is no other appropriate date. The same rule will usually be applied where the buyer decides to keep the property with knowledge of its defective condition or over-valuation even if, with that knowledge, he would not have bought in the first place. In such a case no account is taken of later fluctuations in the market, for he remains the owner of the property as a result of his own independent decision and not of the negligence of the valuer or surveyor."
1 Cites

1 Citers


 
Johnson v Bingley and Others Times, 28 February 1995
28 Feb 1995
QBD
B A Hytner QC
Legal Professions, Professional Negligence
A breach by a solicitor of the Law Society's 'Guide to Professional Conduct' was not ipso facto negligence. The guide set out what was proper and accepted practice. It was hot however mandatoty to follow it, and the existence of negligence was to be determined in accordance with the principles set out following Donoghue v Stevenson.

 
Aitken and Others v Stewart Wrightson Members Agency Ltd and Others Times, 08 March 1995
8 Mar 1995
ChD

Professional Negligence
A Lloyds Managing agent owed a duty of care to both present and future names who might come to rely upon his advice and actions.

 
Lybert v Warrington Health Authority Times, 17 May 1995
17 May 1995
CA

Professional Negligence
A surgeon warning of risks of failure of sterilisation had to be sure it was given in plain language and before the operation.

 
Lybert v Warrington Health Authority Gazette, 24 May 1995
24 May 1995
CA

Professional Negligence
Warning of risk of failure of sterilisation was insufficiently clear in context.

 
Penn v Bristol and West Building Society and Others Gazette, 13 July 1995; Times, 19 June 1995; [1995] FLR 938
19 Jun 1995
ChD

Legal Professions, Professional Negligence
Solicitors acting for a vendor were liable to the buyers' mortgagees for breach of warranty of authority for vendor. The solicitor was negligent in not having verified the instructions from the wife who was the joint tenant.
1 Cites

1 Citers



 
 Saddington v Colleys Professional Services and Another; CA 22-Jun-1995 - Ind Summary, 17 July 1995; Times, 22 June 1995

 
 Walkin v South Manchester Health Authority; CA 3-Jul-1995 - Times, 03 July 1995; [1995] 1WLR 1543
 
Marc Rich and Co Ag and Others v Bishop Rock Marine Co Ltd and Others Gazette, 06 September 1995; Independent, 18 August 1995; Times, 07 July 1995; [1995] 3 All ER 307; [1995] UKHL 4; [1996] 1 AC 211; [1995] CLC 934; [1995] 2 LLR 299; [1996] ECC 120; [1995] 3 WLR 227; [1995] 2 Lloyd's Rep 299
6 Jul 1995
HL
Lord Steyn, Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson, Lord Lloyd of Berwick
Transport, Professional Negligence, Negligence
A surveyor acting on behalf of the classification society had recommended that after repairs specified by him had been carried out a vessel, the Nicholas H, should be allowed to proceed. It was lost at sea. Held: The marine classification society was not liable in negligence to the owner of a cargo, where it was alleged that damage flowed from a negligent ship survey. A duty of care is imposed only where it was just and reasonable to do so. It was indirect damage, and economic loss. There was no contact between the cargo owners and the classification society. It was not even suggested that the cargo owners knew of the survey, they simply relied on the owners to keep the vessel seaworthy and to look after the cargo.
In relation to a novel category of negligence, the imposition of liability must satisfy a three stage test of foreseeability, proximity and fairness. Lord Steyn said that in the field of negligence, the common law: "develops incrementally on the basis of a consideration of analogous cases where a duty has been recognised or desired."
1 Cites

1 Citers

[ Bailii ]

 
 Mortgage Express Ltd v Bowerman and Partners (A Firm); CA 1-Aug-1995 - Times, 01 August 1995; [1996] 2 All ER 836; [1996] 1 PNLR 62
 
Machin v Adams and others [1995] EWCA Civ 3
13 Sep 1995
CA

Professional Negligence

1 Cites

[ Bailii ]
 
Verity and Another v Lloyds Bank Plc Independent, 19 September 1995
19 Sep 1995
QBD

Banking, Professional Negligence
A bank advising a client on the prudence of a proposed transaction has a duty of care to the client in that advice.

 
Young v Purdy Times, 07 November 1995
7 Nov 1995
CA

Professional Negligence
A solicitor's wrongful termination of a retainer occasioned a loss, but wasn't the actual cause of it.


 
 McCullagh v Lane Fox and Partners Ltd; CA 19-Dec-1995 - Times, 22 December 1995; [1996] 1 EGLR 35; [1995] EWCA Civ 8; [1996] PNLR 205
 
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