swarb.co.uk - law index
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Professional Negligence - From: 1996 To: 1996
This page lists 37 cases, and was prepared on 02 April 2018.
Martin Boston and Co v Roberts [1996] PNLR 45
1996
CA
Simon Brown LJ
Professional Negligence
The appropriate standard against which a defendant patent agent's conduct is to be measured is that of what the reasonably competent patent agent would do having regard to the standards normally adopted in his profession.
1 Citers
Bown v Gould and Swayne; CA 1996 - [1996] 1 PNLR 130
Reeves v Thrings and Long [1996] PNLR 265
1996
CA
Sir Thomas Bingham MR, Simon Brown LJ, Hobhouse LJ
Legal Professions, Professional Negligence
Solicitors were sued for failing to advise their client fully as to the wisdom of the transaction he was entering into. The client was an experienced businessman. Held: The claim failed.
Hobhouse LJ said: "Once Mr Reeves was told what the legal position was, he required no further advice from Mr Sheppard in order to evaluate its implications and commercial significance. Mr Reeves was an experienced businessman and under no disability."
Simon Brown LJ said: "I cannot accept that Mr Sheppard was under any further duty to his client, any duty to advise him upon the commercial implications or importance of the access provision or to warn him against the risks that it might pose for the future development, operation or sale of the hotel. These matters are well within the client's competence to appreciate and evaluate for himself, business considerations rather than legal ones."
Sir Thomas Bingham MR, dissenting, said: "It will always be relevant to consider what the solicitor is asked to do, the nature of the transaction and the standing and experience of the client. Thus on the facts here Mr Sheppard was not retained to advise on the wisdom of offering the price Mr Reeves had informally agreed to pay . . But it was in my view Mr Sheppard's duty to draw Mr Reeves' attention to any pitfall, particularly any hidden pitfall, the contract might contain."
1 Citers
Spargo v North Essex District Health Authority [1996] 7 Med LR 219
1996
QBD
Collins J
Limitation, Professional Negligence
A plaintiff's knowledge that her injury could be attributed to hypoxia, is not knowledge that the injury is attributable to the act or omission alleged to constitute negligence as might be pleaded in a statement of claim and no ordinary plaintiff could be expected to know that a birth injury was attributable to acts or omissions of that sort until advised by an expert.
1 Citers
Joyce v Merton, Sutton and Wandsworth Health Authority [1996] 7 Med L R 1
1996
CA
Hobhouse LJ
Professional Negligence
Hobhouse LJ said: "Thus, a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the plaintiff required that she take that action. The former alternative calls for no explanation since it is simply the factual proof of the causative effect of the original fault. The latter is slightly more sophisticated: it involves the factual situation that the original fault did not itself cause the injury but that this was because there would have been some further fault on the part of the defendants; the plaintiff proves his case by proving that his injuries would have been avoided if proper care had continued to be taken. In the Bolitho case (CA) the plaintiff had to prove that the continuing exercise of proper care would have resulted in his being intubated."
1 Citers
Parry v Clwyd Health Authority [1996] PIQR P1
1996
QBD
Colman J
Personal Injury, Professional Negligence
The court preferred the more objective approach as to looking at when a plaintiff was to be fixed with knowledge of his injury: "If the purpose of section 14(3) is to create deemed or constructive knowledge in circumstances where there is no actual knowledge, it is highly improbable that Parliament intended that the application of that subsection should be qualified by taking into account the very characteristic of the plaintiff by reason of which he failed to appreciate the subsection (1) facts known to him and therefore to acquire actual knowledge. For these reasons it would seem that, as a matter of principle, the criteria relevant for the purpose of applying the reasonableness test under subsection (3) should be exclusively objective."
Limitation Act 1980 14(3)
1 Citers
Craneheath Securities v York Montague; CA 1996 - [1996] 1 EGLR 130
Downs v Chappell; Downs v Stephenson Smart (a Firm) [1997] 1 WLR 426; [1996] 3 All ER 344; [1996] CLY 5689
1996
CA
Hobhouse LJ
Torts - Other, Professional Negligence
The plaintiff purchased a book shop. He claimed that in doing so he had relied upon the accounts prepared and signed off by the respective defendants. Held: The judge had been wrong by testing what would have been the true figures as against those prepared when deciding what the plaintiff would have done. In deceit the plaintiff need only first to establish that there had been a material fraudulent misrepresentation. Had the plaintiff known of the deceit he would not have purchased the business, and therefore damages were to be calculated on that basis. Once he became aware of the misrepresentation, they failed to act upon an offer of purchase, and that was their own act, and damages were adjusted accordingly. Changes in the market were too remote and were not to be awarded. It then fell to decide whether the the torts themselves caused the loss. Since here if the figures had been true, the plaintiffs could have financed the purchase, no windfall was created by the award.
Hobhouse LJ said: "The judge was wrong to ask how they [the representees] would have acted if they had been told the truth. They were never told the truth. They were told lies in order to induce them to enter into the contract. The lies were material and successful . . The judge should have concluded that the plaintiffs had proved their case on causation . ."
1 Cites
1 Citers
Smith v Linskills Gazette, 28 February 1996; Times, 07 February 1996; [1996] 1 WLR 763; [1996] 2 All ER 353
1996
CA
Sir Thomas Bingham, MR
Professional Negligence, Legal Professions, Litigation Practice
The claimant, a convicted burglar took proceedings against his former solicitors. He alleged that the negligence of the solicitor caused his wrongful conviction. Held: The case was dismissed. The claimant was seeking to re-litigate issues which had already been litigated in proceedings in the criminal court in which he had been a participant. The case of Hunter does not lay down an inflexible rule to be applied willy-nilly to all cases which might arguably be said to be within it.
CS Sir Thomas Bingham MR identified: "the affront to any coherent system of justice which must necessarily arise if there subsist two final but inconsistent decisions of courts of competent jurisdiction. Such would, we think, be the case here if there were a subsisting Crown Court decision that Mr Smith was, beyond reasonable doubt, guilty of aggravated burglary and a subsisting civil court decision that if his defence been properly prepared he would and should have been acquitted. No reasonable observer could view this outcome with equanimity. " and "It is, however, plain that the thrust of his case in these proceedings is that if his criminal defence had been handled with proper care he would not, and should not, have been convicted. Thus the soundness or otherwise of his criminal conviction is an issue at the heart of these proceedings. Were he to recover substantial damages, it could only be on the basis that he should not have been convicted . . It is certainly true that in his speech in Hunter's case . . Lord Diplock attached considerable significance to the ulterior purpose which lay behind the proceedings brought by the intending plaintiff in that case. We have no doubt at all but that the existence of such an ulterior motive provides a strong and additional ground for holding proceedings to be an abuse. The question is whether such an ulterior motive is a necessary ingredient of abuse."
1 Cites
1 Citers
Wapshott v Davis Donovan and Co [1996] PNLR 361
1996
CA
Beldam LJ, Hobhouse LJ
Damages, Professional Negligence
The defendant solicitors had negligently in 1986 failed to advise purchasers that there was no good title to part (an extension over an adjoining property) of a leasehold flat which they were buying. The problem came to light in 1988 when they wished to sell. They were unable to do so. In 1990 a property company, which had in the interim acquired the freeholds of both properties, registered the titles; and eventually in 1992 the original purchasers of the flat successfully registered the leasehold title to their flat, which thereby became sellable. The solicitors applied to adduce further evidence in negligence proceedings then current in order to rely on these subsequent events, it being said that the plaintiffs would otherwise be overcompensated. Held: Such subsequent events were "irrelevant" to the issue which had to be determined. Thus the Master assessing the actual value of the lease with a defective title in 1986 could not properly pay regard to events which were taking place in 1992.
Hobhouse LJ emphasised that: "Cases of this kind depend on their own facts."
1 Citers
Goodwill v British Pregnancy Advisory Service Independent, 19 January 1996; Gazette, 07 February 1996; Times, 29 January 1996; [1996] 2 All ER 161; [1996] 1 WLR 1397
19 Jan 1996
CA
Professional Negligence, Health Professions
The doctor executed a vasectomy, and advised the plaintiff that he need no longer take contraceptive precautions. Held: No duty fell on a doctor to advise on the possibility of the failure of a vasectomy toward possible future sexual partners of the subject of the operation. The law could not extend a duty to a possible future partner. That was a tenuous relationship.
1 Citers
Kennedy v K B Van Emden and Co; Jordan v Gershon Young Finer and Green and Similar Gazette, 01 May 1996; Times, 05 April 1996; [1997] 2 EGLR 137
27 Mar 1996
CA
Lord Justice Nourse, Lord Justice Ward and Lord Justice Schiemann
Damages, Professional Negligence, Landlord and Tenant
A solicitor failed in 1983 to advise a purchaser of the fact that premium she was paying on purchasing a leasehold flat was unlawful under the Act, and would be unrecoverable on the sale. Before trial however, in 1989 the law changed and the premium would now be recoverable. Held: It was wrong to assess damages mechanistically, and though the usual rule would be to test the damages at the date of loss, it was right to include an assessment at the date of trial if that gave a better view of the actual loss.
Nourse LJ said: "the damages are to be assessed in the real world. Compensation is a reward for real, not hypothetical, loss. It is not to be made an occasion for recovery in respect of a loss which might have been, but has not been, suffered."
Rent Act 1977 127
1 Cites
1 Citers
South Australia Asset Management Corporation v York Montague Ltd etc; HL 24-Jun-1996 - Gazette, 04 September 1996; Times, 24 June 1996; [1997] AC 191; [1996] PNLR 455; [1996] 27 EG 125; [1996] 3 WLR 87; [1996] UKHL 10; [1996] 3 All ER 365; [1996] 2 EGLR 93; 80 BLR 1; [1996] 5 Bank LR 211; [1996] CLC 1179; [1996] 50 Con LR 153
Hamlin and Another v Edwin Evans (A Firm); CA 15-Jul-1996 - Gazette, 17 July 1996; Times, 15 July 1996; [1996] PNLR 398
Mothew (T/a Stapley and Co) v Bristol and West Building Society Times, 02 August 1996; [1996] EWCA Civ 533; [1998] Ch 1; [1997] 2 WLR 436; [1996] 4 All ER 698
24 Jul 1996
CA
Millett LJ
Professional Negligence, Legal Professions, Equity, Agency
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 to further borrowing when he knew that they were using an overdraft to obtain further funding. The plaintiff claimed in breach of trust. Held: A claim for damages for a solicitor's failure to disclose the existence of a 2nd mortgage must show that damage flowed from the failure alleged.
Millett LJ said: "A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary."
He is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary: "A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty; he puts himself in a position where his duty to one principal may conflict with his duty to another . . This is sometimes described as 'the double employment rule.'" and
"Finally, the fiduciary must take care not to find himself in a position where there is an actual conflict of duty so that he cannot fulfil his obligations to one principal without failing in his obligations to the other . . If he does, he may have no alternative but to cease to act for at least one and preferably both. The fact that he cannot fulfil his obligations to one principal without being in breach of his obligations to the other will not absolve him from liability."
As to breach of the duty: "Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity. Mere incompetence is not enough. A servant who loyally does his incompetent best for his master is not unfaithful and is not guilty of a breach of fiduciary duty."
If the trustee has benefited from the breach, the court will order him to account for it on the application of the beneficiary. Millett LJ described such relief as "primarily restitutionary or restorative rather than compensatory".
1 Citers
[ Bailii ]
Hooper v Young [1996] EWCA Civ 539
26 Jul 1996
CA
Professional Negligence
[ Bailii ]
Mutual Reinsurance Co Ltd v Peat Marwick Mitchell and Co and Another Times, 15 October 1996; [1996] EWCA Civ 704
15 Oct 1996
CA
Company, Professional Negligence
Accountants' appointment as auditors made them officers and protected as such.
[ Bailii ]
McDonald v Tees Health Authority [1996] EWCA Civ 779
21 Oct 1996
CA
Professional Negligence
[ Bailii ]
BFG Bank Ag v Brown and Mumford Limited [1996] EWCA Civ 827
30 Oct 1996
CA
Professional Negligence
The bank sued alleging a negligent valuation by the defendants.
1 Cites
[ Bailii ]
Mortgage Express Limited v S Newman and Co Solicitors Indemnity Fund Limited [1996] EWCA Civ 851
31 Oct 1996
CA
Legal Professions, Professional Negligence
[ Bailii ]
Drivers Jonas (a Firm) v Ralph J Lehmann [1996] EWCA Civ 864
1 Nov 1996
CA
Professional Negligence
[ Bailii ]
Pearce ex parte Pearce v United Bristol Healthcare NHS Trust; CA 4-Nov-1996 - [1996] EWCA Civ 878
A B and others v Tameside and Glossop Health Authority and Trafford Health Authority Gazette, 04 December 1996; Times, 27 November 1996; [1996] EWCA Civ 938; [1996] 35 BMRLR 39
13 Nov 1996
CA
Brooke LJ
Negligence, Professional Negligence, Personal Injury
The choice of the telephone as a means of alerting and re-assuring people, who had received treatment from a health worker later found to be HIV+, was proper. The was no breach of a duty care, even though some people called had suffered distress. ". . . once the defendants had decided to inform their patients at all, they were under a duty to take such steps to inform them as were reasonable, having regard both to the foreseeable risk that some of them might suffer psychiatric injury (or any existing psychiatric injury might be materially aggravated) upon receipt of the information " and "the judge has to perform the familiar role of considering the factual evidence carefully, listening to the expert evidence, and forming a view as to whether in all the circumstances these public health authorities fell below the standards reasonably to be expected of them when they selected their preferred method of communicating the information to the patients."
1 Citers
[ Bailii ]
Nettlefold v Pearson Lowe (a Firm) [1996] EWCA Civ 974
15 Nov 1996
CA
Legal Professions, Professional Negligence
[ Bailii ]
Moore v Thrings and Long [1996] EWCA Civ 973
15 Nov 1996
CA
Employment, Professional Negligence
[ Bailii ]
Southwood v Dibb, Clegg and Beynon [1996] EWCA Civ 990
18 Nov 1996
CA
Professional Negligence
[ Bailii ]
Credit Suisse v Strettons Limited [1996] EWCA Civ 1012
21 Nov 1996
CA
Professional Negligence
[ Bailii ]
Cormack and Anotherr v Washbourne (Formerly T/a Washbourne and Co (a Firm) [1996] EWCA Civ 1074
2 Dec 1996
CA
Professional Negligence
[ Bailii ]
Gardner v Marsh and Parsons (a Firm), Dyson Gazette, 13 December 1996; Times, 02 December 1996; [1996] EWCA Civ 940; [1997] 1 WLR 489
2 Dec 1996
CA
Hirst LJ, Pill LJ
Damages, Professional Negligence
Damages awarded against a surveyor for a negligent survey which had missed certain defects, were not to be reduced for repairs later carried out by the landlord at his own expense. The trial judge decided to award damages reflecting the difference between the value of the property without the defects and its value with them at the date of purchase. Held: (Peter Gibson LJ dissenting) The damages were calculated assuming a hypothetical sale. The issue of the landlord's repairs were res inter alios, and were collateral to the surveyors negligence.
Hirst LJ, after reviewing a number of authorities, described the case "as a straightforward Philips v Ward type of case", and as to the argument that the loss had been avoided, he said: "having regard to intervening events and to the long interval of time, the repairs executed in 1990 were not part of a continuous transaction of which the purchase of the lease as a result of [the surveyors] negligence was the inception. Furthermore, these repairs undertaken by [the landlords] at the plaintiff's insistence were res inter alios acta and therefore collateral to [the surveyor's] negligence."
Pill LJ agreed as to the facts, concluding that "the facts relied upon as affecting the measure of damages are too remote to be taken into consideration . ."
Peter Gibson LJ said: "The law does not permit the plaintiff to recover more than is seen to be his actual loss and the rules of mitigation may deprive the plaintiff of all or part of the damages for loss which otherwise he might have recovered."
if a plaintiff in fact avoids or mitigates his loss he could not recover for the loss thereby avoided even if the steps taken were more than could reasonably be required under the duty to mitigate. He said this at p.508, after reviewing various authorities: "Whilst Philips v Ward establishes that the measure of damages is the price paid less the market value of the property at the date of the breach, even though the cost of repairing the property may be greater or smaller than that, it does not follow that the rules of mitigation can never apply to such a case. That would be contrary to the British Westinghouse principle. Indeed as Mustill LJ pointed out in Hussey v Eels [1990] 2 QB 227, 233, any generalisation that where a loss has crystallised in terms of there being a conventional measure of damages at the date of breach, there can be no mitigation as shown by the Pagnan case [1970] 1 WLR 1306 to be unsound. For my part I cannot see why the advantage accruing from the action of the plaintiff in that case to mitigate his loss, viz. the elimination of the risk to the house by the felling of the poplars, should be left out of account in arriving at the award of damages and there is nothing in Philips v Ward [1956] 1 WLR 471 to compel such a result . . "
He described Hussey v Eels as "an exceptional case turning on its own facts" and said: "The common sense of the situation in the present case is that once the Plaintiffs were aware that they had purchased a structurally defective property of less value than the price they had paid as a result of the Defendants' negligence, they sensibly and promptly took steps to eliminate their loss by procuring the remedying by the freeholder of the defect. That seems to me plainly an act of mitigation resulting in a benefit to the Plaintiffs which eliminated their loss. I repeat what the Judge said, that they have a rectified property worth the equivalent of what they had paid for it without any extra cost to them. The significant point is that this occurred as a result of the pressure applied to the freeholder by the Plaintiffs. To take an example suggested by Mr. Brunner, if the Plaintiffs had sued both the freeholder under the Defective Premises Act 1972 and the Defendants in negligence in the same action they could not expect to recover damages in full from the freeholder as well as damages in full from the Defendants. Once the property had been put in repair at no cost to the Plaintiffs, in my judgment they cannot be allowed to obtain double recovery by an award of damages against the Defendants. To adapt the words of Salmon L.J. in R. Pagnan & Fratelli v Corbisa Industrial Agropacuria Limitada [1970] 1 WLR 1306, 1316, to allow the plaintiffs' claim would be contrary to justice, common sense and the British Westinghouse Electric and Manufacturing Co. Ltd v Underground Electric Railways Co. of London Ltd. [1912] A.C. 673 principle."
1 Cites
1 Citers
[ Bailii ]
Barings Plc and Another v Coopers and Lybrand (A Firm) and Others Times, 06 December 1996; [1997] 1 BCLC 427
6 Dec 1996
CA
Professional Negligence
Whether a duty of care exists from the auditors of a subsidiary, towards its parent company is a triable issue.
1 Cites
1 Citers
O'Driscoll v Dudley Health Authority [1996] EWCA Civ 1196
12 Dec 1996
CA
Professional Negligence
[ Bailii ]
Bristol and West Building Society v Baden Barnes and Groves; QBD 13-Dec-1996 - Unreported, 13 December 1996
Omega Trust Company Limited Banque Finindus Second v Wright Son and Pepper, Barker and Co (a Firm) [1996] EWCA Civ 1233
17 Dec 1996
CA
Professional Negligence
Property valuation.
[ Bailii ]
Arab Bank Plc v John D Wood Commercial Limited; Anthony Saville Browne; Weatherall Green and Smith (a Firm) and Terence Gordon Knight [1996] EWCA Civ 1238
18 Dec 1996
CA
Professional Negligence
[ Bailii ]
Helen Turnbull v South West Surrey Health Authority [1996] EWCA Civ 1274
20 Dec 1996
CA
Professional Negligence, Personal Injury
[ Bailii ]
Clunis v Camden and Islington Health Authority; QBD 27-Dec-1996 - Times, 27 December 1996
National Home Loans Corporation Plc v Giffen Couch and Archer (A Firm) Times, 31 December 1996; Gazette, 15 January 1997
31 Dec 1996
QBD
Legal Professions, Professional Negligence
A solicitor acting for both a borrower and a lender has a duty to tell the lender of his other, lay client's bad payment record.
