Tag: Professional Negligence

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

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

Taylor v Somerset Health Authority: 1993

The plaintiff’s husband had suffered a heart attack at work and soon died at the defendant’s hospital. She went to the hospital within an hour and was told of his death by a doctor about 20 minutes after her arrival. She was shocked and distressed. She identified the body at the mortuary. The defendants had been treating him for many months and had negligently failed to diagnose or treat his serious heart disease. It was admitted that she had suffered nervous shock (ie psychiatric illness) as a result of what she had heard and seen at the hospital.
Held: The claim failed. It did not fall within the ‘immediate aftermath’ principle as her husband’s body bore no signs of violent injury. The death was instead the final consequence of negligence by the defendants many months earlier. The ‘immediate aftermath’ extension had been introduced as an exception to the general principle established in accident cases that a plaintiff could only recover damages for psychiatric injury where the accident and the primary injury or death caused by it occurred within his sight or hearing.
Auld J said: ‘There are two notions implicit in this exception cautiously introduced and cautiously continued by the House of Lords. They are of:
(i) an external, traumatic, event caused by the defendant’s breach of duty which immediately causes some person injury or death; and
(ii) a perception by the plaintiff of the event as it happens, normally by his presence at the scene, or exposure to the scene and/or to the primary victim so shortly afterwards that the shock of the event as well as of its consequence is brought home to him.
There was no such event here other than the final consequence of Mr. Taylor’s progressively deteriorating heart condition which the health authority, by its negligence many months before, had failed to arrest. In my judgment, his death at work and the subsequent transference of his body to the hospital where Mrs. Taylor was informed of what had happened and where she saw the body do not constitute such an event.’

Auld J
[1993] 4 Med LR 34, [1993] PIQR P262
England and Wales
Cited by:
Cited – Taylor v A Novo (UK) Ltd CA 18-Mar-2013
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Cited – Paul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .
Cited – Shorter v Surrey and Sussex Healthcare NHS Trust QBD 25-Mar-2015
The claimant saw her sister in undeniably distressing circumstances in hospital. It was suggested that the claimant’s professional background, as a radiographer, gave her an unusual degree of insight into her sister’s medical condition and that, as . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 19 November 2021; Ref: scu.471890

Frost v Wake Smith and Tofields Solicitors: CA 19 Jun 2013

The court was asked whether the Appellant’s solicitor was in breach of duty in failing to render into a legally enforceable form the agreement to which the parties came in the course of a mediation.

Tomlinson Ryder LJJ
[2013] EWCA Civ 772
Bailii
England and Wales

Professional Negligence

Updated: 15 November 2021; Ref: scu.512120

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 necrosis of the epiphysis, involving disability of the hip joint with the virtual certainty that osteoarthritis would later develop. Prior to the intervention of the doctor, he had a 75% chance of a similar result. The court found that there was a 25% chance that if the doctor had not been negligent, that the outcome would have been better, and had awarded damages for that ‘loss of a chance’.
Held: Damages could not be awarded for that 25% chance because the effect of the judge’s finding as to the chances of the condition resulting from the fall being 75% was a finding in law that that would actually have been the result. The relevant factual question about the plaintiff’s condition immediately prior to the negligence was whether his fall from the tree had left sufficient blood vessels intact to keep his left femoral epiphysis alive. The answer to this question of fact answered the hypothetical question: would a vascular necrosis have been avoided if his leg had been treated promptly? The answer to the first question also answered the second question, because the second question is a mirror image of the first. Built into the formulation of the first question was the answer to the second question.

Lord Mackay of Clashfern
[1987] AC 750, [1988] UKHL 1, [1987] 2 All ER 909
Bailii
England and Wales
Citing:
Cited – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .

Cited by:
Cited – 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 – Wardlaw v Dr Farrar CA 27-Nov-2003
The claimant appealed an award of andpound;1,000 damages for the death of his wife for professional negligence. Doctors had differed as to whether the delay complained of had contributed to the death.
Held: It was vital now that medical . .
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 – 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 . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
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 – Nestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Cited – Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Leading Case

Updated: 10 November 2021; Ref: scu.183100

Parker and Another v SJ Berwin and Co and Another: QBD 17 Dec 2008

The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said that the defendants made no progress, the opportunity was lost, and their money wasted. After a dilatory action, the claimants sought permission to amend their particulars out of time to add several new claims.
Held: Some amendments were allowed since they arose from the same facts, and others were rejected as having no prospect of success. However, it was not open to the Claimants to ‘rely on the CCC Films principle in the present case. There is no presumption that their wasted expenditure is recoverable in full. To recover any of that expenditure they must establish that there was a real and substantial chance of the expenditure being recovered, as would be usual in cases of this nature, and as they themselves initially acknowledged and pleaded.’

Hamblen J
[2008] EWHC 3017 (QB)
Bailii
England and Wales
Citing:
Cited – Cobbold v London Borough of Greenwich CA 9-Aug-1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
Cited – Finlan v Winfield ChD 2007
Blackburne J said that when considering an application to amend particulars of claim outside the limitation period: ‘the court should not confine itself to a comparison of the new cause of action with the existing cause of action at the highest . .
Cited – Smith v Henniker-Major and Co CA 22-Jul-2002
The claimant appealed the strike-out of his claim for professional negligence against the respondent solicitors. He claimed that the solicitors had acted in breach of their duty, and he then called a company meeting. Only he attended. He mistakenly . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Independents’ Advantage Insurance Company Ltd v Cook and Another CA 24-Jul-2003
‘The power of the court to strike out a statement of case under CPR 3.4(2)(a) – and the related power to give summary judgment under CPR 24.2 – has an important place in the disposal of claims in accordance with the Civil Procedural Rules. The . .
Not applied – CCC Films (London) Ltd v Impact Quadrant Films Ltd 1984
The claimants purchased a licence to promote three films, but the defendant lost the film prints and CCC could not therefore promote them. After their claim for loss of profit failed in the absence of evidence, they claimed for the expenditure they . .
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 – Law Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
Cited – Cullinane v British ‘Rema’ Manufacturing Co Ltd CA 1954
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which . .
Cited – Anglia Television v Oliver Reed CA 1971
The television company had agreed with the actor defendant for him to appear in a production. He breached the contract. The company sought both loss of profits and for the expense incurred. The issue before the Court of Appeal was whether such . .
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 . .
Cited – L Albert and Son v Armstrong Rubber Co 1949
(United States Court of Appeals, Second Circuit) A purchaser of machines designed to recondition rubber sought damages for breach of contract, namely, the cost of the foundation on which the machines were placed. However, the purchaser did not prove . .
Cited – Filobake Ltd v Rondo Ltd and Another CA 11-May-2005
Unsuitability of baking equipment installation. A claimant in a breach of contract claim has a choice whether to claim loss of profits or wasted expenditure. . .
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’ . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice, Limitation

Updated: 10 November 2021; Ref: scu.278861

Bacciottini and Another v Gotelee and Goldsmith (A Firm): CA 18 Mar 2016

A property subject to a planning condition was purchased by the appellant under the advice of the respondent, who failed to notify him of the existence of a planning condition. The judge had awarded the claimant pounds 250 being the cost of the successful application for the removal of the condition. The claimant sought pounds 100,000, being the difference in value before the application succeeded.
Held: The appeal failed. The later removal of the condition meant that the claimant had not suffered the losses alleged.

David, Lloyd Jones, Underhill LJJ
[2016] EWCA Civ 170, [2016] WLR(D) 152, [2016] 4 WLR 98, [2016] PNLR 22
Bailii, WLRD
England and Wales
Citing:
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Philips v Ward CA 1956
The Plaintiff had relied on a negligent survey to purchase a substantial Elizabethan property and land. The report did not mention that the timbers of the house were badly affected by death watch beetle and worm so that the only course left to him . .
Cited – County Personnel (Employment Agency) Ltd v Alan R Pulver and Co (a Firm) CA 1987
The claimant sought damages after his negligent solicitors had saddled him with a ruinous underlease. They had had to buy themselves out of the lease. The court considered the date at which damages were to be calculated.
Held: The starting . .
Cited – Hussey v Eels CA 1990
Profits made on development were not deductible
The purchasers of a property for a price of 53,250 pounds had relied on a negligent misrepresentation that the property had not been the subject of subsidence. In fact it had. The cost of the required works was 17,000 pounds, which they could not . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Wapshott v Davis Donovan and Co CA 1996
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 . .
Cited – Kennedy v K B Van Emden and Co; Jordan v Gershon Young Finer and Green and Similar CA 27-Mar-1996
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 . .
Cited – Gardner v Marsh and Parsons (a Firm), Dyson CA 2-Dec-1996
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 . .

Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 09 November 2021; Ref: scu.561202

Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another: ChD 11 Nov 2008

The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Held: The defence in fact was that the claimant had both brought the claim too early because no tax liability had yet arisen, and too late because the arrangement had been set up several years before. Any contract breach took place when the breach occurred and that was time barred. In negligence, time ran from the time when any actual damage occurred, and ‘where the client has engaged professionals in connection with a transaction to secure for him some property or rights, and because of the negligence of those professionals, the client acquires less valuable property or rights than he would have done if he had been given correct advice, he suffers damage at the time of the transaction, even if the property or rights are worth no less than he actually paid for them.’ The damage occurred on the purchase of the shares, and the claim was time barred.

Lewison J
[2008] EWHC 2720 (Ch)
Bailii
Taxation of Chargeable Gains Act 1992 164A, Finance Act 1997, Finance Act 1993, Limitation Act 1980
England and Wales
Citing:
Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Watkins and Another v Jones Maidment Wilson (A Firm) CA 4-Mar-2008
The claimants alleged professional negligence by the defendant solicitors in advising them to agree to a postponment of a completion. The defendants raised as a preliminary issue the question of limitation. The claimant said that the limitation . .
Cited – Doncaster Pharmaceuticals Group Ltd and Others v The Bolton Pharmaceutical Company 100 Ltd CA 26-May-2006
Appeals were made against interlocutory injunctions for alleged trade mark infringement.
Held: The court should hesitate about making a final decision for summary judgment without a trial, even where there is no obvious conflict of fact at the . .
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 – Baker v Ollard and Bentley CA 12-May-1982
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 . .
Cited – Knapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – The Royal Brompton Hospital National Health Service Trust v Hammond and Others (No 5) CA 11-Apr-2001
When looking at an application to strike out a claim, the normal ‘balance of probabilities’ standard of proof did not apply. It was the court’s task to assess whether, even if supplemented by evidence at trial, the claimant’s claim was bound to fail . .
Cited – UBAF Ltd v European American Banking Corporation CA 1984
The defendant invited the plaintiff to take part in a syndicated loan. The defendant’s assistant secretary signed a letter to the plaintiff making representations, now claimed to be fraudulent. The defendant succeeded at first instance arguing that . .
Cited – DW Moore and Co Ltd v Ferrier CA 1988
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 . .
Cited – Bell v Peter Browne and Co CA 1990
Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted . .
Cited – Law Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
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 – 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 . .
Cited – R P Howard Ltd and Witchell v Woodman Matthews and Co (a firm) 1983
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 . .
Cited – First National Comercial Bank plc v Humberts CA 27-Jan-1995
The plaintiff loaned money on the basis of a negligent survey by the defendant. The borrower subsequently defaulted, and the lender issued a writ. The defendant said that the claim was time barred.
Held: The court allowed the plaintiff’s . .
Cited – Coulthard, Ashton Shuttleworth, and Dawes v Neville Russell (a Firm) CA 27-Nov-1997
Auditors who were in a position to advise a company’s directors as to the legality of them making loan payments to a shell company which was acquiring there shares had a duty so to advise. The directors of a company sued them for failing to warn . .
Cited – Shore v Sedgwick Financial Services Ltd CA 23-Jul-2008
The claimant said that the defendant had given him negligent advice on pensions, failing to say that he should stay within his occupational scheme. The defendant pleaded limitation.
Held: The claimant suffered damage when he made the transfer . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 09 November 2021; Ref: scu.277737

Goody v Baring: CA 1956

The plaintiff asked the defendant solicitor to act for him in the purchase of a leasehold house. The solicitor was also asked to act for the vendor. The replies he gave, innocently, on behalf of the vendor were inaccurate as to the conditions of the tenancies. The buyer eventually had to repay overcharged rents to the tenants.
Held: The defendant was liable in that he had not questioned the vendor’s answers, but had simply relayed them. In a contract for the sale of land the buyer’s solicitor has a duty to make appropriate enquiries, and where these reveal some encumbrance, to pursue those enquiries. Once contracts have been exchanged, he remains under a duty to request confirmation of the replies given.

[1956] 1 WLR 448, [1956] 2 All ER 11, [1956] Sol Jo 320
England and Wales

Land, Contract, Professional Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.219178

Yianni v Edwin Evans and Sons: ChD 1981

The respondent valuers reported to a building society that a property would be a sufficient security. The purchaser relied on that report to purchase the property, ignoring the advice in the lender’s form to obtain a full survey. The property was found to have suffered severe cracking.
Held: The valuers had a duty of care to the purchasers. They knew that the report would be passed to them, and that they could be expected to rely upon it. There was sufficient proximity to create a duty of care. Since the plaintiffs’ failure to have an independent survey, or to take other steps to discover the true condition of the house, was due to their reliance on the defendants’ valuation, the defendant’s allegation of contributory negligence failed.
Park J said: ‘The defendants’ representative who surveyed and valued 1, Seymour Road noted the type of dwelling house it was; its age, its price and the locality in which it was situated. It was plainly a house at the lower end of the property market. The applicant for a loan would therefore almost certainly be a person of modest means who, for one reason or another, would not be expected to obtain an independent valuation, and who would be certain to rely, as the plaintiffs in fact did, on the defendants’ valuation as communicated to him in the building society’s offer. I am sure that the defendants knew that their valuation would be passed on to the plaintiffs and that the defendants knew that the plaintiffs would rely upon it when they decided to accept the society’s offer.
For these reasons I have come to the conclusion that the defendants owed a duty of care to the plaintiffs because, to use the words of Lord Wilberforce in Anns v. Merton Borough Council [1978] AC 728, 751H, there was a sufficient relationship of proximity such that, in the reasonable contemplation of the defendants, carelessness on their part might be likely to cause damage to the plaintiffs.’

Park J
[1982] QB 438, [1981] 3 WLR 843, [1981] 3 All ER 592
England and Wales
Citing:
Applied – Candler v Crane Christmas and Co CA 15-Dec-1950
Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Anns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .

Cited by:
Cited – Commissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.193349

Saif Ali v Sydney Mitchell and Co (a Firm): HL 1978

Extent of Counsel’s Immunity in Negligence

The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to such pre-trial work as was intimately connected with the conduct of the case in Court as distinct from more remote legal services such as advice (including advice not to go to Court). Barristers have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss. The immunity of barristers from suit could be justified on two other grounds. The analogy of the general immunity from civil liability which attaches to all persons participating in proceedings before a court. Second was the public interest in not permitting decisions to be challenged by collateral proceedings.
Lord Diplock said that a barrister is not liable for an error of judgment ‘unless the error was such as no reasonably well-informed and competent member of that profession could have made.’
He considered the barrister’s overriding duty to the court: ‘The fact that application of the rules that a barrister must observe may in particular cases call for the exercise of finely balanced judgments upon matters about which different members of the profession might take different views, does not in my view provide sufficient reason for granting absolute immunity from liability at common law. No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon. The salvor and the surgeon, like the barrister, may be called upon to make immediate decisions which, if in the result they turn out to have been wrong, may have disastrous consequences. Yet neither salvors nor surgeons are immune from liability for negligent conduct of a salvage or surgical operation; nor does it seem that the absence of absolute immunity from negligence has disabled members of professions other than the law from giving their best services to those to whom they are rendered.’
Lord Wilberforce said: ‘Some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer.’ and ‘In principle, those who undertake to give skilled advice are under a duty to use reasonable care and skill. The immunity as regards litigation is an exception from this and applies only in the area to which it extends. Outside that area, the normal rule must apply.’ and ‘Much if not most of a barrister’s work involves the exercise of judgment – it is in the realm of art not science. Indeed the solicitor normally goes to counsel [for advice] precisely at the point where, as between possible courses, a choice can only be made on the basis of a judgment which is fallible and may turn out to be wrong. Thus in the nature of things, an action against a barrister who acts honestly and carefully is unlikely to succeed.’
Lord Salmon: ‘Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he had been negligent.’ However ‘it can only be the rarest of cases that the law confers any immunity upon a barrister against a claim for negligence in respect of any work he has done out of court.’ and ‘The normal rule applied by the law is that if anyone holding himself out as possessing reasonable competence in his vocation undertakes to advise or settle a document, he owes a duty to advise or settle the document with reasonable competence and care.’

Lord Diplock. Lord Salmon, Lord Wilberforce, Lord Keith of Kinkel
[1980] AC 198, [1978] 3 All ER 1033, [1978] 3 WLR 849, [1978] UKHL 6
Bailii
England and Wales
Citing:
Considered – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .

Cited by:
Cited – Atwell v Perr and Co and Another ChD 27-Jul-1998
Counsel advising during conduct of case has immunity but a wrongful advice on appeal was outside his immunity. Work done before a hearing constituting the formulation of case was within the immunity from suit. . .
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 – Kelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
Cited – The Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006
The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
Cited – Hicks v Russell Jones and Walker (A Firm) ChD 27-Apr-2007
The claimants sought to pursue an action in negligence against their solicitors saying that they had conducted another case negligently, and thereby they had lost their chance in the action, on the basis that the hotel at the centre of the action . .
Cited – Abrahams v Commissioner of the Police for the Metropolis CA 8-Dec-2000
The claimant had been arrested for swearing at a police officer. After her arrest, the claimant made admissions to secure a caution, rather than risk prosecution. She later sought to begin a civil action for damages against the police in the course . .
Cited – Awoyomi v Radford and Another QBD 12-Jul-2007
The claimant sought damages from the defendant barristers who had represented her in criminal proceedings. They had not passed on to her the statement made by the judge in chambers that if she pleaded guilty he would not impose a sentence of . .
Cited – Welsh v Chief Constable of Merseyside Police 1993
On conviction for one offence, the plaintiff asked for two other offences to be taken into consideration. He was bailed pending sentence. He was then arrested for the other offences and wrongfully held in custody. The Crown Prosecution Service had . .
Cited – Williams v Thompson Leatherdale (A Firm) and Another QBD 10-Nov-2008
The claimant sought damages from her legal advisers. They had allowed her to settle an ancillary relief application knowing that the case of White v White had been referred to the House of lords, and the settlement proved to have been on . .
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Cited – Pritchard Joyce and Hinds (A Firm) v Batcup and Another CA 5-May-2009
Standard expected of negligence claim on counsel
The claimant solicitors sought contributory damages from counsel for failing to advise them of the applicable limitation period in an action they were conducting against other solicitors in negligence. Counsel now appealed saying that the judged had . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Leading Case

Updated: 02 November 2021; Ref: scu.181061

Simmons v Pennington and Son: CA 1955

Solicitors Followed Historical Practice

Premises owned by the plaintiff were subject to an obsolete covenant restricting their use to that of a private dwelling house. It had in fact been used continuously for many years, both before and after the plaintiff became owner, for business purposes, without any complaint being made. In 1948 the plaintiff sold the premises by auction to B who paid a deposit. The particulars described the property as a ‘valuable and commanding freehold corner shop premises,’. A special condition stated that the property was subject to the restrictive covenants as to user contained in a deed of 1870 (which restricted the user to that of a private dwelling house), so far as those covenants were subsisting and capable of taking effect. In answering a requisition as to title whether the premises were subject to a restrictive covenant, the defendants acting as solicitors for the plaintiff, replied ‘Yes, see special condition 7. There appear to have been breaches of the covenant as to user but no notice of breach has been served.’ The purchaser took that reply as a repudiation and recovered his deposit. While that action was pending another purchaser offered to buy the premises, but the defendants advised him not to sell pending the trial of the first action. The property was then damaged by fire. The insurance lapsed. He claimed damages from his solicitors for negligence.
Held: His action failed. The defendants having in answering the requisition acted in accordance with the general practice of conveyancers, which had been followed for many years without any ill consequence, they could not be held to have acted negligently or failed to come up to a reasonable standard of care, for they could not reasonably have anticipated the result which had flowed from it. The answer given to the requisition on title by the solicitors’ managing clerk followed the form which the trial judge, Harman J. said had been used in answering such questions ‘from the time of the memory of man, or at all events for a long time.’ The solicitors had acted in accordance with the general practice of conveyancers; no ill consequences had ever been known to flow from an answer to a requisition in this form. Denning L.J. said that now the case had gone adversely to the vendor it was possible to see that a mistake had been made, but he warned against being wise after the event. The test to be applied was whether solicitors in that position had ‘failed to come up to a reasonable standard of care and skill such as is rightfully required of an ordinary prudent solicitor.’ It was impossible to say that these solicitors were guilty of a breach of duty to their client; it was one of those misadventures and misfortunes which sometimes happen in the best conducted businesses.

Lord Denning, Hodson L
[1955] 1 All ER 240, [1955] 1 WLR 183
England and Wales
Citing:
Cited – Fletcher and Son v Jubb, Booth and Helliwel CA 1920
Scrutton LJ said: ‘it would be extremely difficult to define the exact limit by which the skill and diligence which a solicitor undertakes to furnish in the conduct of a case is bounded, or to trace precisely the dividing line between that . .

Cited by:
Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.183165

Haithwaite v Thomson Snell and Passmore (A Firm): QBD 30 Mar 2009

The claimant sought damages from his former solicitors for admitted professional negligence. The court considered the loss suffered in the handling of his claim against a health authority. The solicitors received advice after issuing that the claimant was a patient and therefore required consent to issue proceedings. Having received that consent they were then advised that he was no longer a patient.
Held: The court found that he would have had a 30% chance of establishing negligence against the hospital, and calculated the losses accordingly.

Nicol J
[2009] EWHC 647 (QB), [2009] 15 EG 99, [2009] PNLR 27
Bailii
England and Wales
Citing:
Cited – Mount v Baker Austin CA 18-Feb-1998
The Defendant solicitors had allowed the Plaintiff’s claim to be struck out for want of prosecution. The court considered how to calculate the value of the loss of the chance of pursuing the claim: ‘1. The legal burden lies on the plaintiff to prove . .
Cited – Hanif v Middleweeks (a firm) CA 19-Jul-2000
The client was the co-owner of a nightclub which had been destroyed by fire. The insurers had issued proceedings for a declaration of non-liability, on the ground (among others) that the fire had been started deliberately by Mr Hanif’s co-owner. Mr . .
Cited – Dixon v Clement Jones Solicitors (A Firm) CA 8-Jul-2004
The defendant firm had negligently allowed a claim for damages against a firm of accountants to become statute barred. The defendants said the claim was of no or little value, since the claimant would have proceeded anyway.
Held: The court had . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Sharif and Others v Garrett and Co CA 31-Jul-2001
The applicants sought damages from the defendant solicitors who had failed to prosecute properly a claim for damages. Their building was damaged by fire, but they had not been insured. The action was against the brokers. The court had awarded them . .
Cited – Hatswell v Goldbergs (a firm) CA 2002
The claimant sought damages from his solicitors where his claim for medical negligence was struck out for delay. The High Court declared his claim as of no value.
Held: The underlying claim in medical negligence was made simply impossible by a . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 01 November 2021; Ref: scu.326985

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 extend the limitation period.
Held: Brocklesby was wrongly decided. Section 32 should deprive a defendant of his limitation defence where either he took active steps to conceal his failure, or the failure itself was deliberate and the concealment might not be discovered for sometime. Where the failing was non-deliberate negligence, a failure to disclose was not concealment. Deliberate commission did not require unconscionable behaviour, but was still to be contrasted with behaviour which was accidental, or inadvertent.
Lord Millettt said: ‘As I have explained, in enacting the 1980 Act Parliament substituted ‘deliberate concealment’ for ‘concealed fraud’. This is a different and more appropriate concept. It cannot be assumed that the law remained the same. But reference to the old law explains why Parliament enacted section 32(2) and did not rely on section 32(1)(b) alone to cover the whole ground. With all reference to fraud or conscious impropriety omitted, there was an obvious risk that ‘deliberate concealment’ might be construed in its natural sense as meaning ‘active concealment’ and not as embracing mere non-disclosure. Section 32(2) was therefore enacted to cover cases where active concealment should not be required. But such cases were limited in two respects: first, the defendant must have been guilty of a deliberate commission of a breach of duty; and secondly, the circumstances must make it unlikely that the breach of duty will be discovered for some time.
Given that section 32(2) is (or at least may be) required to cover cases of non-disclosure rather than active concealment, the reason for limiting it to the deliberate commission of a breach of duty becomes clear. It is only where the defendant is aware of his own deliberate wrongdoing that it is appropriate to penalise him for failing to disclose it.
In my opinion, section 32 deprives a defendant of a limitation defence in two situations: (i) where he takes active steps to conceal his own breach of duty after he has become aware of it; and (ii) where he is guilty of deliberate wrongdoing and conceals or fails to disclose it in circumstances where it is unlikely to be discovered for some time. But it does not deprive a defendant of a limitation defence where he is charged with negligence if, being unaware of his error or that he has failed to take proper care, there has been nothing for him to disclose.’
Lord Scott said: ‘If the claimant can show that the defendant knew he was committing a breach of duty, or intended to commit the breach of duty – I can discern no difference between the two formulations; each would constitute, in my opinion, a deliberate commission of the breach – then, if the circumstances are such that the claimant is unlikely to discover for some time that the breach of duty has been committed, the facts involved in the breach are taken to have been deliberately concealed for subsection (1)(b) purposes.
Morritt LJ said, in [Brocklesby v Armitage and Guest (Note) [2002] 1 WLR 598], that in general a person is assumed to know the legal consequences of his actions and that, therefore, if an act has been done intentionally, the actor’s unawareness of its legal consequences would be immaterial and no defence. The premise is, in my opinion, much too wide to constitute a satisfactory approach to construction of a statutory provision such as section 32(2). A person may or may not know that an act of his or an omission to do or say something or other constitutes a breach of tortious or contractual duty. His knowledge or lack of it may well be immaterial to the question whether a cause of action for which he is liable has accrued to the person injured by the act or omission. But that is no reason at all why Parliament, in prescribing the circumstances in which the person injured by the act or omission can escape from a Limitation Act defence, should not distinguish between the case where the actor knows he is committing a breach of duty and the case where he does not. The clear words of section 32(2) – ‘deliberate commission of a breach of duty’ – show that Parliament has made that distinction.
It follows that, in my opinion, the construction of section 32(2) adopted in the Brocklesby case was wrong.’

Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Hobhouse of Woodborough, Lord Millett and Lord Scott of Foscote
Times 07-May-2002, [2002] UKHL 18, [2003] 1 AC 384, [2002] 2 WLR 1107, [2002] 19 EGCS 146, (2002) 81 Con LR 25, [2002] 2 All ER 641, [2002] PNLR 25, [2003] 1 CLC 101, [2002] 19 EGCS 146, 81 Con LR 25, [2003] 1 CLC 101
House of Lords, Bailii
Limitation Act 1980 32(2)
England and Wales
Citing:
Overruled – James Brocklesby v Armitage and Guest (a Firm) CA 9-Jul-1999
A failure by an adviser to make his position clear when he thought he had been negligent, could constitute a ‘deliberate’ act within section 32 even if the defendant’s actions were not motivated by any intention to deceive the claimant: ‘it is not . .
Cited – Beaman v ARTS Ltd CA 1949
The italian plaintiff had left Egland in 1935 leaving certain valuables with the defendants for safe keeping. During the war, the property was released to the authorities as alien property, who, informed by the defemdant that they were of no value, . .
Appeal from – Cave v Robinson Jarvis and Rolf CA 20-Feb-2001
The court was asked as to the meaning of the word ‘deliberate’ as it appeared in section 32(2) of the 1980 Act. . .

Cited by:
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 . .
Cited – Chagos Islanders v Attorney-General and Another CA 22-Jul-2004
The claimants sought leave to appeal against a finding that they had no cause of action for their expulsion from their islands.
Held: ‘Exile without colour of law is forbidden by Magna Carta. That it can amount to a public law wrong is already . .
Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Cited – Polley v Warner Goodman and Streat (A Firm) CA 30-Jun-2003
A cause of action in negligence is complete once the claimant has suffered loss as a result of the negligence, even if the existence of the loss (and indeed of the negligence) is not, and could not be, known to him, and even where that loss is much . .
Cited – Denekamp v Denekamp CA 8-Dec-2005
Appeal against striking out of claim and civil restraint order. . .
Cited – 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 . .
Cited – Burnden Holdings (UK) Ltd v Fielding and Another CA 17-Jun-2016
The company, now in liquidation sought to claim for the alledged misapplication by former directors of its funds in 2007. It now appealed against a summary rejection of its claim as time barred.
Held: The appeal succeeded. Section 21(1)(b) . .
Cited – Siddiqui v University of Oxford QBD 5-Dec-2016
The University applied to have struck out the claim by the claimant for damages alleging negligence in its teaching leading to a lower class degree than he said he should have been awarded.
Held: Strike out on the basis that the claim was . .

Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.170275

Rondel v Worsley: HL 1967

Need for Advocate’s Immunity from Negligence

The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of barristers acting in court. An advocate should remain immune from negligence in respect of his actions in court.
Lord Morris of Borth y Gest said that the immunity extended to the ‘conduct and management of a case in court’ by the advocate. The existence of liability in negligence, and indeed the very possibility of making assertions of liability against a barrister, might tend to undermine the willingness of barristers to carry out their duties to the court. An advocate should not be under pressure unwarrantably to subordinate his duty to the court to his duty to the client. The court re-inforced the undesirability of relitigating issues already decided. Also the ‘cab rank’ rule, imposed upon barristers, an obligation to accept instructions from anyone who wishes to engage their services in an area of the law in which they practised.
Lord Reid applied the immunity to the ‘conduct of litigation’ and being ‘engaged in litigation’. These phrases embodied the work covered in drawing pleadings or conducting subsequent stages in the case, and it would also apply to some cases where litigation was ‘impending’ but not to advisory work ‘where that consideration did not apply’.
Lord Reid continued: ‘Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. And by so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him . . So the issue appears to me to be whether the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable. I would not expect any counsel to be influenced by the possibility of an action being raised against him to such an extent that he would knowingly depart from his duty to the court or to his profession. …

Lord Reid, Lord Morris of Borth-y-Gest, Lord Upjohn, Lord Pearson
[1969] 1 AC 191, [1967] UKHL 5, [1967] 3 All ER 993 HL(E), [1967] 3 WLR 1666
Bailii
England and Wales
Cited by:
Cited – Atwell v Perr and Co and Another ChD 27-Jul-1998
Counsel advising during conduct of case has immunity but a wrongful advice on appeal was outside his immunity. Work done before a hearing constituting the formulation of case was within the immunity from suit. . .
Overruled – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Considered – Saif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Cited – Dutton v Bognor Regis Urban District Council CA 1972
The court considered the liability in negligence of a Council whose inspector had approved a building which later proved defective.
Held: The Council had control of the work and with such control came a responsibility to take care in . .
Cited – Hill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Cited – Kelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
Cited – Van Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
Cited – Van Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
Applied – Rees v Sinclair 1974
(New Zealand Court of Appeal) The court discussed the indemnity given to witnesses: ‘But I cannot narrow the protection to what is done in court: it must be wider than that and include some pre-trial work. Each piece of before-trial work should, . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Leading Case

Updated: 31 October 2021; Ref: scu.181060

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 had failed to prove that it had not caused the injury.
Held: The appeal succeeded. It was for the plaintiff to prove his case, and the court must allow that the Health Service will employ inexperienced doctors. The standard of care to be expected must be looked at relative to the experience of the doctor employed. However, the senior registrar was negligent in failing to recognise the error, and the damage was shown to be of the sort which might be expected to follow.
It was one thing to treat an increase of risk as equivalent to the making of a material contribution where one agent was involved, but quite another where any one of a number of events may equally probably have caused the damage.

Sir Nicolas Browne-Wilkinson V.-C., Mustill and Glidewell L.JJ.
[1988] AC 1074, [1988] 1 All ER 871, [1987] UKHL 11
Bailii
England and Wales
Citing:
Appeal from – Wilsher v Essex Area Health Authority CA 1986
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .
Cited – Bonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
Cited – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
Cited – Thompson v Smiths Shiprepairers (North Shields) Ltd QBD 1984
The test to be applied in determining the time at which an employer’s failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not . .
Cited – Clark v MacLennan 1983
The court considered the judment in McGhee: ‘It seems to me that it follows from McGhee that where there is a situation in which a general duty of care arises and there is a failure to take a precaution, and that very damage occurs against which the . .
Cited – Vyner v Waldenberg Brothers Ltd CA 1946
Vyner was working a circular saw when part of his thumb was cut off. The saw failed in several respects to comply with the Woodworking Machinery Regulations, and in particular the guard was not properly adjusted. The accident happened before the . .
Cited – Wakelin v London and South Western Railway Co HL 1886
The liability of a defendant in negligence must rest in the first place on there being, per Lord Watson) ‘some negligent act or omission on the part of the company or their servants which materially contributed to the injury or death complained of . . .
Cited – Caswell v Powell Duffryn Associated Collieries HL 1939
An action was brought for injuries caused by a breach of statutory of duty.
Held: A breach of statutory duty is regarded as ‘akin to negligence’.
Lord Atkin said that a common sense rather than a philosophical or scientific approach to . .
Appeal from – Wilsher v Essex Area Health Authority CA 1986
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .

Cited by:
Approved – 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 – 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 . .
Appealed to – Wilsher v Essex Area Health Authority CA 1986
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .
Cited – 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 . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
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 – Nestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Cited – St George v The Home Office CA 8-Oct-2008
The claimant was taken into prison. He was known to be subject to epilepsy, with high risks on withdrawal from drugs, but was allocated a high bunk. He had a seizure and fell, suffering head injuries. He sought damages in negligence. The defendant . .
Cited – Environment Agency v Ellis CA 17-Oct-2008
The claimant was injured working for the appellants. The appellants now appealed the finding that they were responsible saying that other factors contributed to the injury, and in particular that he had fallen at home. The claimant said that that . .
Cited – Sanderson v Hull CA 5-Nov-2008
Insufficient proof of cause of infection
The claimant worked as a turkey plucker. She caught an infection (campylobacter enteritis) at work, and the employer now appealed against a finding of liability. The employer said that the only necessary protection was regular washing of hands. The . .
Cited – Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Health Professions

Leading Case

Updated: 31 October 2021; Ref: scu.177399

Wilsher v Essex Area Health Authority: CA 1986

A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his arterial blood oxygen levels would be accurately read on an electronic monitor. A junior doctor mistakenly inserted the catheter into the umbilical vein with the result that the monitor would give a lower reading. Neither he nor the senior registrar appreciated that the X-rays taken showed the catheter in the vein but both realised that there was something wrong with the readings on the monitor. The senior registrar inserted another catheter but into the same vein and other means of monitoring the arterial blood oxygen were also adopted. The following day the second catheter was replaced by one in the artery. Thereafter the monitoring of the arterial blood oxygen levels continued and at times during the following weeks there were periods when the levels were considered too high. The plaintiff developed retrolental fibroplasia, a condition of the eyes, which resulted in blindness. The breach of duty increased the risk of his suffering it. But there were a number of other factors which might have caused the injury.
Held: ‘If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way; and if the first party does conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained.’
Sir Nicolas Browne-Wilkinson V-C dissenting said: ‘To apply the principle in McGhee v National Coal Board [1973] 1 WLR 1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer’s dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuer’s skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz, brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust. In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (eg excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff’s RLF may have been caused by some completely different agent or agents, eg hypercarbia, intraventricular haemorrhage, apnoea or patent ductus arteriosus. In addition to oxygen, each of those conditions has been implicated as a possible cause of RLF. This baby suffered from each of those conditions at various times in the first two months of his life. There is no satisfactory evidence that excess oxygen is more likely than any of those other four candidates to have caused RLF in this baby. To my mind, the occurrence of RLF following a failure to take a necessary precaution to prevent excess oxygen causing RLF provides no evidence and raises no presumption that it was excess oxygen rather than one or more of the four other possible agents which caused or contributed to RLF in this case. The position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.’

Mustill LJ, Sir Nicolas Browne-Wilkinson V-C
[1986] 3 All ER 801, [1987] 2 WLR 425, [1987] QB 730
lip
England and Wales
Citing:
Applied – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – A/S Rendal v Arcos Ltd HL 1937
. .
Cited – Bonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
Cited – McDermid v Nash Dredging and Reclamation Co Ltd HL 2-Jul-1986
The Court explained the duty of an employer towards his employees as regards their safety: ‘an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Secondly, a provision . .
Reviewed – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
Appealed to – 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 – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .

Cited by:
Appeal from – 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 – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Appeal from – 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 – Farraj and Another v King’s Healthcare NHS Trust (KCH) and Another CA 13-Nov-2009
The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
Cited – Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .
Cited – Darnley v Croydon Health Services NHS Trust SC 10-Oct-2018
The claimant had been assaulted. He presented at the defendant hospital with head injuries. Despite his complaints he said he was not treated properly, being told to wait five hours at reception, and went home. Later an ambulance was delayed and he . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Leading Case

Updated: 31 October 2021; Ref: scu.190115

Phelps v Hillingdon London Borough Council: QBD 10 Oct 1997

An educational psychologist has a professional duty of care to a child when asked to assess for that child for dyslexia, even though the report may be for the local authority.
Garland J
Times 10-Oct-1997, [1997] 3 FCR 621, [1998] ELR 38
England and Wales
Citing:
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .

Cited by:
Appeal from – Phelps v Mayor and Burgesses London Borough of Hillingdon CA 4-Nov-1998
The plaintiff claimed damages for the negligent failure of an educational psychologist employed by a local authority to identify that the plaintiff was dyslexic.
Held: An educational psychologist has no duty of care to a child, as opposed to . .
Cited – David Lannigan v Glasgow City Council OHCS 12-Aug-2004
The pursuer said the teachers employed by the defendant had failed to identify that was dyslexic, leading him to suffer damage. The defenders said the claim was time barred, which the pursuer admitted, but then said that the claim ought to go ahead . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.84697

Hopkins v Mackenzie: CA 27 Oct 1994

A loss arising from a solicitor’s failure to pursue a case arose only when the claim was struck out, not earlier when compromised, and even though value already diminished. Accordingly the limitation period began to run from that time.
Hobhouse LJ
Times 03-Nov-1994, Independent 27-Oct-1994, Gazette 07-Dec-1994, [1995] PIQR 43
Limitation Act 1980
England and Wales
Cited by:
Disapproved – Khan v R M Falvey and Co (a Firm) CA 22-Mar-2002
The claimant sought damages from his former solicitors for failing to act to avoid his case being struck out. The second action was itself delayed, and the defendants asserted that the cause of action occurred not when his claim was actually struck . .
Cited – Iqbal v Legal Services Commission CA 10-May-2005
The claimant had been a partner in a firm of solicitors. They came to be suspected by the respondent of overclaiming legal aid payments and sums were withheld. For this and other reasons the practice folded, and the claimant became insolvent. He . .
Cited – Vision Golf Ltd v Weightmans (A Firm) ChD 26-Jul-2005
A lease had been forfeited. The defendant firm of solicitors had negligently failed to apply for relief. They argued that that failure had in fact caused no loss to the claimants, since they would have lost the lease anyway.
Held: The ‘but . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.81467

Warner v Penningtons (A Firm) and Others: CA 10 Mar 2011

In the course of being sued for professional negligence in their handling of a personal injury claim, the defendants sought to allege (inter alia) negligence by an expert who had provided a report. The defendants now appealed against summary judgment in her favour.
Rix, Smith, Keene LJJ
[2011] EWCA Civ 337
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.431730

Darnley v Croydon Health Services NHS Trust: CA 23 Mar 2017

Claimant’s appeal in personal injury litigation based upon alleged negligence by the receptionist in a hospital’s accident and emergency department. The principal issue in the appeal is whether the receptionist (or the health trust acting by the receptionist) owed any tortious duty to provide accurate information to the claimant about waiting times.
Jackson, McCombe, Sales LJJ
[2017] EWCA Civ 151
Bailii
England and Wales
Citing:
Appeal from – Darnley v Croydon Health Services NHS Trust QBD 31-Jul-2015
The claimant sought damages, alleging that the defendant Trust had failed in its treatment of him when he attended Accident and Emergency after being assaulted. The court now considered the issue of liability. The claimant attended with a head . .

Cited by:
Appeal from – Darnley v Croydon Health Services NHS Trust SC 10-Oct-2018
The claimant had been assaulted. He presented at the defendant hospital with head injuries. Despite his complaints he said he was not treated properly, being told to wait five hours at reception, and went home. Later an ambulance was delayed and he . .
Cited – Darnley v Croydon Health Services NHS Trust SC 10-Oct-2018
The claimant had been assaulted. He presented at the defendant hospital with head injuries. Despite his complaints he said he was not treated properly, being told to wait five hours at reception, and went home. Later an ambulance was delayed and he . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.581069

Candler v Crane Christmas and Co: CA 15 Dec 1950

Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as contrasted with fraudulently, made by one person to another though acted on by that other to his detriment, was not actionable in the absence of any contractual or fiduciary relationship between the parties. This principle had not been qualified Donoghue v. Stevenson.
Denning LJ (dissenting) said:’Accountants, in preparing and rendering accounts and reports, owed a duty of care not only to their clients but to any third person to whom they knew that their clients were going to show the accounts and reports when, to the knowledge of the accountants, that person would consider the reports and accounts with a view to the investment of money or taking some other action to his gain or detriment. ‘Let me now be constructive and suggest the circumstance in which I say that a duty to use care in statement does exist apart from a contract in that behalf. First, what person’s are under such duty? My answer is those persons such as accountants, surveyors, valuers and analysts, whose profession and occupation it is to examine books, accounts, and other things, and to make reports on which other people – other than their clients – rely in the ordinary course of business.
Secondly to whom do these professional people owe this duty? I will take accountants but the same reasoning applies to the others. They owe the duty, of course to their employer or clients; and also I think to any third person to whom they themselves show the accounts, or to whom they know their employer is going to show the accounts, so as to induce him to invest money or take some other action on them. But I do not think the duty can be extended still further so to include strangers of whom they have heard nothing and to whom their employer without their knowledge may choose to show their accounts. Once the accountants have handed their accounts to their employer they not, as a rule, responsible for what he does with them without their knowledge or consent. The test of proximity in these cases is, did the accountants know that the accounts were required for submission to the plaintiff and use by him?
Thirdly, to what transactions does the duty of care extend? It extends, I think, only to those transactions for which the accountants knew their accounts were required.’
Asquith LJ illustrated the law excusing liability for negligent miststatement: ‘Singular consequences would follow if the principle laid down in [Donoghue v Stevenson [1932] AC 562] were applied to negligent misrepresentation in every case in which the representee were proximate to the representor. The case has been instanced by Professor Winfield and referred to by my brother Denning of a marine hydrographer who carelessly omits to indicate on his map the existence of a reef. The captain of the Queen Mary, in reliance on the map and having no opportunity to check it by reference to any other map, steers her on the unsuspected rocks, and she becomes a total loss. Is the unfortunate cartographer to be liable to her owners in negligence for some millions of pounds damages? If so, people will, in future, think twice before making maps. Cartography would become an ultra-hazardous occupation.’
Cohen, Asquith, Denning LJJ (Dissenting)
[1951] 2 KB 164, [1951] 1 All ER 426, 36 Digest (Rep 1) 17, [1951] 1 TLR 371
England and Wales
Citing:
Distinguished – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Cited – Le Lievre v Gould CA 6-Feb-1893
Mortgagees of the interest of a builder under a building agreement, advanced money to him from time to time, relying upon certificates given by a surveyor as to stages reached. The surveyor was not appointed by the mortgagees, and there was no . .
Cited – Derry v Peek HL 1-Jul-1889
The House heard an action for damages for deceit or fraudulent misrepresentation.
Held: The court set out the requirements for fraud, saying that fraud is proved when it is shown that a false representation has been made knowingly or without . .

Cited by:
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 – Mutual Life And Citizens’ Assurance Co Ltd And Another v Evatt PC 16-Nov-1971
The plaintiff had been an investor with the defendant. He asked them about an associated company. He was given advice which was incorrect. He claimed damages for negligence.
Held: The company was not itself in the business of giving such . .
Cited – Bank of Credit and Commerce International (Overseas) Limited (In Liquidation); BCCI Holdings (Luxembourg) SA (In Liquidation); Bank of Credit and Commerce International SA (In Liquidation) v Price Waterhouse CA 13-Feb-1998
The special relationship between an auditor and a bank, meant that a duty of care could extend even to a second bank with its own auditors. In determining whether there had been an assumption of responsibility, the the relevant factors would include . .
Approved – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Applied – Yianni v Edwin Evans and Sons ChD 1981
The respondent valuers reported to a building society that a property would be a sufficient security. The purchaser relied on that report to purchase the property, ignoring the advice in the lender’s form to obtain a full survey. The property was . .
Cited – Customs and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
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 – Precis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
Cited – Sutradhar v Natural Environment Research Council HL 5-Jul-2006
Preliminary Report of Risk – No Duty of Care
The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a . .
Cited – McKie v Swindon College QBD 11-Feb-2011
The claimant sought damages after having moved jobs, his former employer wrote to his new one saying that he would not be welcome back on the campus, which would be a substantial part, giving reasons.
Held: The claimant succeeded on liability. . .
Cited – Banca Nazionale Del Lavoro Spa v Playboy Club London Ltd and Others SC 26-Jul-2018
The Playboy casino required a reference for a customer, but asked for this through a third party. The bank was not aware of the agency but gave a good reference for a customer who had never deposited any money with them and nor to whom it had issued . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.179811

Agouman v Leigh Day (A Firm): QBD 16 Jun 2016

The defendant firm of solicitors had acted for the claimant and 30000 others in a claim for personal injuries from the leaking of a tanker. The claim was settled but before damages could be paid, another group obtained orders against the sums received. The result was that the claimant received nothing. She now claimed in professional negligence.
Andrew Smith J
[2016] EWHC 1324 (QB)
Bailii
England and Wales

Updated: 14 July 2021; Ref: scu.565796

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 pregnancy that he was afflicted by haemophilia and so would have undergone a termination. It is agreed that she can recover the additional costs associated with that condition. What is in dispute is whether she can also recover the additional costs associated with A’s autism. The defendant’s position is that such costs are outside the scope of her liability because the service she was providing was only in relation to the risk of haemophilia.
Held: The claim succeeded. The Court of Appeal has decided in Parkinson and Groom that recovery for the costs associated with a disability not directly linked to the negligence is fair where the disabled child would not have been born but for the negligence and where the disability arises out of the normal incidents of conception, intra-uterine development and birth. I can see no good reason to distinguish this case as a matter of principle or policy.
Yip J said: ‘Once it is established that, had the mother been properly advised she would not have wanted to continue with her pregnancy, should it matter why she would have wanted a termination? Why logically should there be a distinction between the parent who did not want any pregnancy and one who did not want this particular pregnancy? In each case, the effect of the doctor’s negligence was to remove the mother’s opportunity to terminate a pregnancy that she would not have wanted to continue. To draw a distinction on the basis of considering the underlying reason why a mother would have wanted to terminate her pregnancy seems unattractive, arbitrary and unfair.’
Yip J
[2017] EWHC 2990 (QB), [2017] WLR(D) 778, [2018] Med LR 161, [2018] PIQR Q4, [2018] 4 WLR 8
Bailii, WLRD
England and Wales
Citing:
Cited – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .
Cited – Hardman v Amin QBD 2001
Henriques J said: ‘McFarlane does not affect the law so far as it relates to the wrongful birth of disabled children.’ . .
Cited – Groom v Selby CA 18-Oct-2001
The defendant negligently failed to discover the claimant’s pregnancy. A severely disabled child was born. The question was as to the responsibility for payment of excess costs of raising a severely disabled child, a claim for economic loss. The . .
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 – 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 . .
Cited – Parkinson v St James and Seacroft University Hospital NHS Trust CA 11-Apr-2001
A mother had undergone a negligent sterilisation, and in due course she gave birth to a disabled child.
Held: The right to bodily integrity is the first and most important of the interests protected by the law of tort. The cases saying that . .
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
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 – 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 . .

Cited by:
Appeal from – Khan v Meadows CA 15-Feb-2019
Appeal from the judgment of Yip J who determined that the costs related to the autism of Adejuwon, the respondent’s son, following his birth may be properly recovered by her and assessed damages in the agreed sum of pounds 9,000,000. Adejuwon . .
At First Instance – Khan v Meadows SC 18-Jun-2021
‘ A woman approaches a general medical practice for testing to establish whether she is a carrier of a hereditary disease. Tests which are inappropriate to answer that question are arranged. A general medical practitioner when informing her of the . .

These lists may be incomplete.
Updated: 01 July 2021; Ref: scu.601106

Manchester Building Society v Grant Thornton UK Llp: ComC 2 May 2018

claim for damages by a building society caused by the admitted negligence of its accountant.
Teare J
[2018] EWHC 963 (Comm), [2019] WLR(D) 49
Bailii, WLRD
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 . .

Cited by:
Appeal from – Manchester Building Society v Grant Thornton UK Llp CA 30-Jan-2019
Liability of an auditor for losses incurred on long term interest rate swap agreements which were entered into in reliance upon negligent accounting advice and which were closed out at a loss when the negligent advice came to light. . .
At ComC – Manchester Building Society v Grant Thornton UK Llp SC 18-Jun-2021
. .

These lists may be incomplete.
Updated: 19 June 2021; Ref: scu.614943

Altus Group (UK) Ltd v Baker Tilly Tax and Advisory Services Llp and Another: ChD 7 Jan 2015

The claimant claims damages for professional negligence on the part of the defendants, who carry on the business of accountants with expertise in the field of taxation, in failing to give advice that would have enabled the claimant to implement a restructuring proposal with a view to mitigating its tax liabilities. The defendants admitted the negligence but denied its causation of loss.
References: [2015] EWHC 12 (Ch), [2015] STC 788, [2015] STI 158
Links: Bailii
Judges: Keyser QC HHJ
Jurisdiction: England and Wales

Last Update: 23 September 2020; Ref: scu.540532

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 that Mr Stubbs was Geoffrey’s solicitor under some sort of general retainer imposing a duty to consider all aspects of his interest generally whenever he was consulted, but that cannot be. There is no such thing as a general retainer in that sense. The expression ‘my solicitor’ is as meaningless as the expression ‘my tailor’ or ‘my bookmaker’ in establishing any general duty apart from that arising out of a particular matter in which his services are retained. The extent of his duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do.
While No doubt the duties owed by a solicitor to his client are high in the sense that he holds himself out as practising a highly skilled and exacting profession. But I think that the court must beware of imposing upon solicitors – or upon professional men in other spheres – duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client’s general interest, take it upon himself to pursue a line of enquiry beyond the strict limits comprehended by his instructions. But that is not the test. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and cases . . demonstrate that the duty is directly related to the confines of the retainer.’ The solicitors accepted ‘a common law duty not to injure their client by failing to do what they had undertaken to do and which, at their invitation, he relied on them to do.’
References: [1979] Ch 384, [1978] 3 All ER 571, [1978] 3 WLR 167, [1955-95] PNLR 95
Judges: Oliver J
Jurisdiction: England and Wales
This case cites:

  • Cited – Candler v Crane Christmas and Co CA 15-Dec-1950 ([1951] 2 KB 164, [1951] 1 All ER 426, 36 Digest (Rep 1) 17, [1951] 1 TLR 371)
    Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
  • Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963 ([1964] AC 465, [1963] 2 All ER 575, , , [1963] UKHL 4, [1963] 1 Lloyds Rep 485, [1963] 3 WLR 101, )
    The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
  • Cited – Griffiths v Evans CA 1953 ([1953] 2 All ER 1364, [1953] 1 WLR 1424)
    The parties disputed the terms on which the solicitor had been engaged, and in particular as to the scope of the duty undertaken by and entrusted to the solicitor as regards advising the client.
    Held: Where there is a dispute between a . .

This case is cited by:

  • Cited – Johnson v Gore Wood and Co (a Firm) CA 12-Nov-1998 (, [1998] EWCA Civ 1763, [1999] BCC 474)
    The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
  • Cited – Brinn and Another v Russell Jones and Walker (A Firm) QBD 12-Dec-2002 (, [2002] EWHC 2727 (QB))
    Police officers had instructed their solicitor to sue in defamation. By their negligence the chance of a claim was lost. They instructed a second firm of solicitors to claim against the first, but this firm also were negligent. The damages fell to . .
  • Cited – Commissioner of Police of the Metropolis v Lennon CA 20-Feb-2004 (, [2004] EWCA Civ 130, Times 25-Feb-04, Gazette 18-Mar-04, [2004] 2 All ER 266)
    The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
    Held: The break between employments had affected his . .
  • Cited – Worby, Worby and Worby v Rosser CA 28-May-1999 (Times 09-Jun-99, Gazette 16-Jun-99, , [1999] EWCA Civ 1520, [2000] PNLR 140)
    Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he . .
  • Cited – John Mowlem Construction Plc v Neil F Jones and Co CA 1-Jul-2004 (, [2004] EWCA Civ 768, Times 27-Aug-04, (2005) 83 BMLR 175)
    The defendant’s solicitors were alleged to have failed to advise their clients when an issue was raised, to notify their professional negligence insurers, with the result that the insurers had been able to repudiate liability.
    Held: In the . .
  • Cited – Precis (521) Plc v William M Mercer Ltd CA 15-Feb-2005 (, [2005] EWCA Civ 114, Times 24-Feb-05, [2005] PNLR 511)
    Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
    Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
  • Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005 (, [2005] EWCA Civ 1302, Times 29-Nov-05, [2006] 1 All ER 571)
    The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
  • Cited – The Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006 (, [2006] EWHC 1462 (Ch))
    The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
  • Cited – Glyn v McGarel-Groves CA 14-Jul-2006 (, [2006] EWCA Civ 998, Times 22-Aug-06)
    The claimant had employed a French veterinary surgeon to treat her horse ‘Anna’. She engaged the defendant English veterinary surgeon to attend the treament and observe. The horse died at the principal negligence of the French vet. The English vet . .
  • Cited – Hicks v Russell Jones and Walker (A Firm) ChD 27-Apr-2007 (, [2007] EWHC 940 (Ch))
    The claimants sought to pursue an action in negligence against their solicitors saying that they had conducted another case negligently, and thereby they had lost their chance in the action, on the basis that the hotel at the centre of the action . .
  • Cited – Associated Newspapers Ltd, Regina (on The Application of) v Rt Hon Lord Justice Leveson Admn 20-Jan-2012 (, [2012] EWHC 57 (Admin))
    The defendant was conducting a public enquiry into the culture, ethics and practices of national newspapers. The claimant and others objected to the admission of anonymous evidence from journalists afraid of career blight. The claimants complained . .
  • Approved – Bown v Gould and Swayne CA 1996 ([1996] 1 PNLR 130)
    Millett LJ commented that if a judge needed assistance with regard to conveyancing practice the proper way was to cite the relevant textbooks. . .
  • Cited – Kandola v Mirza Solicitors Llp ChD 27-Feb-2015 (, [2015] EWHC 460 (Ch))
    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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.190233

Le Lievre v Gould: CA 1893

References: [1893] 1 QB 491, (1893) 9 The Times LR 243, 62 LJQB 353, 68 LT 626, 57 JP 484
Coram: Lord Esher MR, AL Smith LJ, Bowen LJ
Ratio: Mortgagees of the interest of a builder under a building agreement, advanced money to him from time to time, relying upon certificates given by a surveyor as to stages reached. The surveyor was not appointed by the mortgagees, and there was no contract between them. The surveyor was negligent, and his certificates contained untrue statements as to progress, but there was no fraud on his part.
Held: The surveyor owed no duty to the mortgagees to exercise care in giving his certificates, and they could not maintain an action against him by reason of his negligence.
Lord Esher MR said: ‘But can the plaintiffs rely upon negligence in the absence of fraud? The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. What duty is there when there is no relation between the parties by contract? A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them. The case of Heaven v. Pender has no bearing upon the present question. That case established that, under certain circumstances, one man may owe a duty to another even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.’
Bowen LJ said: ‘the law . . does not consider that what a man writes on paper is like a gun or other dangerous instrument’ and also refered to the principle: ‘that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other.’
Smith LJ said: ‘The decision of Heaven -v- Pender was founded upon the principle, that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other. Heaven v. Pender goes no further than this, though it is often cited to support all kinds of untenable propositions.’
This case cites:

  • Distinguished – Heaven v Pender, Trading As West India Graving Dock Company CA ((1883) 11 QBD 503, 52 LJQB 702, 49 LT 357, 47 JP 709)
    The plaintiff was a painter. His employer engaged to repaint a ship, and the defendant erected staging to support the work. The staging collapsed because one of the ropes was singed and weakened, injuring the plaintiff.
    Held: The defendant had . .

(This list may be incomplete)
This case is cited by:

  • Cited – Mutual Life And Citizens’ Assurance Co Ltd And Another v Evatt PC (lip, [1971] 2 WLR 23)
    The plaintiff had been an investor with the defendant. He asked them about an associated company. He was given advice which was incorrect. He claimed damages for negligence.
    Held: The company was not itself in the business of giving such . .
  • Cited – Donoghue (or M’Alister) v Stevenson HL ([1932] AC 562, [1932] SC (HL) 31, [1932] ScLT 317, Hamlyn, [1932] All ER Rep 1, (1932) 101 LJPC 119, (1932) 147 LT 281, [1932] SLT 317, (1932) 48 TLR 494, (1932) 37 Com Cas 350, Bailii, [1932] UKHL 100, [1932] Sol Jo 396, [1932] WN 139, [1932] SC 31, (1933) 4 DLR 337, 533 CA 47)
    The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
  • Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL ([1964] AC 465, [1963] 2 All ER 575, UBC, Bailii, [1963] UKHL 4, [1963] 1 Lloyds Rep 485, [1963] 3 WLR 101, Bailii)
    The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
  • Cited – Candler v Crane Christmas and Co CA ([1951] 2 KB 164, [1951] 1 All ER 426, 36 Digest (Rep 1) 17, [1951] 1 TLR 371)
    Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
  • Cited – Sutradhar v Natural Environment Research Council HL (Bailii, [2006] UKHL 33, Times 07-Jul-06, [2006] 4 All ER 490)
    The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a . .
  • Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD (lip, [1991] 2 WLR 814, [1991] CLY 2671)
    Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
  • Cited – Manners v Whitehead SCS ((1898) 1 F 171, 36 Sc LR 94, 6 SLT 190)
    (Inner House) An innocent misrepresentation does not give rise to damages. To be actionable it must be made fraudulently, but a person to whom a fraudulent representation of the profitability of a business, or a business opportunity, had been made . .
  • Cited – Cramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC (Bailii, [2014] UKSC 9, 2014 SLT 521, [2014] 2 All ER 270, [2014] WLR(D) 64, [2014] 2 WLR 317, WLRD, UKSC 2012/0025, SC Summary, SC)
    The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .

(This list may be incomplete)

Last Update: 18 March 2019
Ref: 181006

Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others Appealsz: CA 24 Feb 1995

References: Times 24-Feb-1995, Gazette 22-Mar-1995, Times 21-Feb-1995, [1995] QB 375, [1995] 2 All ER 769
Coram: Sir Thomas Bingham MR
Ratio: 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.’
This case cites:

(This list may be incomplete)
This case is cited by:

  • Appeal from – South Australia Asset Management Corporation v York Montague Ltd etc HL (Gazette 04-Sep-96, Times 24-Jun-96, [1997] AC 191, [1996] PNLR 455, [1996] 27 EG 125, [1996] 3 WLR 87, Bailii, [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)
    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 . .
  • Cited – Paterson and Another v Humberside County Council QBD (Times 19-Apr-95, [1995] CLY 3661, [1996] Const LJ 64)
    A local authority was liable for nuisance for damage (cracks to house) caused by tree roots once it could be shown that it knew of the soil condition, by virtue of the council’s own warnings to residents of the danger in the area meant that the . .
  • Cited – Helmsley Acceptances Ltd v Hampton CA (Bailii, [2010] EWCA Civ 356)
    The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
    Held: The . .
  • Cited – Downs and Another v Chappell and Another CA (Bailii, [1996] EWCA Civ 1358, [1996] 3 All ER 344, [1996] CLC 1492, [1997] 1 WLR 426)
    The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
    Held: . .

(This list may be incomplete)

Last Update: 31 July 2018
Ref: 78174

Selfe v Ilford and District Hospital Management Committee; 26 Nov 1970

References: Times 26-Nov-1970
Coram: Hinchcliffe J
Ratio:
This case cites:

  • Applied – Thorne v Northern Group Hospital Management Committee (Times 06-Jun-64)
    At common law, ‘as a matter of general principle a hospital is under a duty to take precautions to avoid the possibility of injury, whether self-inflicted or otherwise, occurring to patients who it knows, or ought to know, have a history of mental . .

(This list may be incomplete)
This case is cited by:

  • Cited – Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL (Bailii, [2008] UKHL 74, HL, Times, [2009] HRLR 12, [2009] 1 All ER 1053, [2009] PTSR 469, [2009] UKHRR 480, [2009] 2 WLR 115, (2009) 12 CCL Rep 125, [2009] 1 AC 681, (2009) 105 BMLR 180, [2009] LS Law Medical 40)
    The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
    Held: The Trust’s appeal failed. The fact that . .

(This list may be incomplete)

Last Update: 11-Sep-16
Ref: 278776

Thorne v Northern Group Hospital Management Committee; 6 Jun 1964

References: Times 06-Jun-1964
Coram: Edmund Davis J
Ratio: At common law, ‘as a matter of general principle a hospital is under a duty to take precautions to avoid the possibility of injury, whether self-inflicted or otherwise, occurring to patients who it knows, or ought to know, have a history of mental illness.’
This case is cited by:

(This list may be incomplete)

Last Update: 08-Aug-16
Ref: 278775

Wimpey Construction UK Ltd v D V Poole; 3 May 1984

References: [1984] 2 Ll LR 499, Times 03-May-1984, [1984] CLY 2340
Coram: Webster J
Ratio: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.
This case is cited by:

(This list may be incomplete)

Last Update: 30-Jun-16
Ref: 179751

Stone and Rolls Ltd v Moore Stephens (A Firm); Comc 27 Jul 2007

References: [2007] EWHC 1826 (Comm), [2008] Bus LR 304, (2007) 157 NLJ 1154, [2008] PNLR 4, [2008] 1 BCLC 697
Links: Bailii
Coram: Langley J
The company claimed against its chartered accountants for negligence when acting as auditors. The sole directing mind of the company had used it as a vehicle for substantial frauds. The court was asked ‘whether and if so when can a claim by a company against its auditors infringe the maxim, still familiarly expressed in Latin, that ex turpi causa non oritur actio.’
Held: The company itself were primarily, and not just vicariously, responsible for the fraudulent conduct and that the Hampshire Land principle did not apply. However, ex turpi causa could not prevent a claim founded on fraud that would not have occurred had Moore Stephens properly complied with their ‘very duty’ as auditors of the company.
This case cites:

  • Cited – Re Hampshire Land Company ([1896] 2 Ch 743)
    A company had borrowed from a building society. The borrowing was not properly authorised by resolution. The court was asked whether whether the knowledge of the company secretary common to both the company and the society, as to the irregularity . .

(This list may be incomplete)
This case is cited by:

  • Appeal from – Moore Stephens (A Firm) -v- Stone & Rolls Ltd CA (Bailii, [2008] EWCA Civ 644, [2008] Bus LR 1579, [2008] PNLR 36, [2008] 3 WLR 1146, [2008] 2 Lloyd’s Rep 319, [2008] 2 BCLC 461)
    The company claimed against its accountants for negligence in not discovering the substantial dishonesty of the claimant’s employee, its directing mind and sole shareholder.
    Held: Rimer LJ said that the critical question was whether it was . .
  • At First Instance – Moore Stephens (A Firm) -v- Stone Rolls Ltd (in liquidation) HL (Bailii, [2009] UKHL 39, Times, [2009] 1 AC 1391, [2009] Bus LR 1356, [2009] PNLR 36, [2009] 3 WLR 455)
    The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . .

(This list may be incomplete)
Last Update: 22-Oct-15 Ref: 259323

Popat v- Barnes: QBD 7 Apr 2004

References: Times 05-Jul-2004
Coram: Buckley J
The claimant had been defendant where, after a retrial and two appeals he had eventually been acquitted. He sought to sue his counsel.
Held: Defence counsel should have reconsidered the decision whether or not to seek an alibi direction. Nevertheless, he could not sue his barrister for the choices made in the trial, the decision had been made as a tactical one within the trial.
This case cites:

  • Application for leave to appeal – Popat -v- Barnes CA (Bailii, [2004] EWCA Civ 820)
    The claimant’s allegation of professional negligence against his barrister for the conduct of his criminal trial had been dismissed. He now sought leave to appeal. The decision had been made not to alert the judge to a deficiency in the alibi . .

This case is cited by:

  • Appeal from – Popat -v- Barnes CA (Bailii, [2004] EWCA Civ 820)
    The claimant’s allegation of professional negligence against his barrister for the conduct of his criminal trial had been dismissed. He now sought leave to appeal. The decision had been made not to alert the judge to a deficiency in the alibi . .

D’Orta-Ekenaike v Victoria Legal Aid; 10 Mar 2005

References: [2005] HCA 12, (2005) 223 CLR 1, (2005) 214 ALR 92, (2005) 79 ALJR 755
Links: Austlii
(High Court of Australia) Legal practitioners – Negligence – Immunity from suit – Applicant sought legal assistance from first respondent, a statutory corporation deemed to be a firm of solicitors, in defence of criminal prosecution – First respondent retained second respondent, a barrister, to appear for applicant at committal proceedings – Applicant pleaded guilty at committal proceedings but subsequently pleaded not guilty and stood trial – Evidence of guilty plea led at first trial – Applicant convicted but verdict quashed on appeal and new trial ordered – Applicant acquitted on retrial – Respondents alleged to have been negligent in advising applicant to plead guilty at committal – Advice allegedly tendered at a conference two days prior to committal proceeding and at a further conference on day of committal proceeding – Whether advocate’s immunity available to respondents – Whether advocate’s immunity applied in respect of advice allegedly given in conference.
Legal practitioners – Immunity from suit – Legal Profession Practice Act 1958 (Vic) – Barristers liable for negligence to same extent as solicitor as at 1891 – Extent of solicitor’s liability for negligence in 1891.
Courts – Judicial process – Judicial process as an aspect of government – Nature of the judicial process – The need for finality of judicial determination – Whether advocate’s immunity necessary to ensure finality of judicial process.
Courts – Abuse of process – Whether rules about abuse of process provide sufficient satisfaction of the finality principle – Nature of client’s complaint – Whether distinction exists between civil and criminal proceedings – Whether distinction to be drawn between challenging the final outcome of litigation and challenging an intermediate outcome.
High Court – Whether Giannarelli v Wraith (1988) 165 CLR 543 should be reconsidered – Relevance of statutory changes since Giannarelli v Wraith – Relevance of developments in common law in England and Wales – Relevance of experience in other jurisdictions.
Courts – Practice and procedure – Summary determination of action without trial – Whether claim revealed an arguable cause of action.
This case is cited by:

  • Cited – Jones -v- Kaney SC (135 Con LR 1, [2011] 2 WLR 823, [2011] BLR 283, [2011] 2 AC 398, [2011] 14 EG 95, [2011] 2 All ER 671, Bailii, [2011] UKSC 13, Bailii Summary, SC Summary, SC, UKSC 2010/0034)
    An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
    Held: The . .

Rosenberg v Percival; 5 Apr 2001

References: 205 CLR 434, 75 ALJR 734, [2001] HCA 18
Links: Austlii
Coram: Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ
Austlii High Court of Australia – Negligence – Breach of duty – Surgeon’s duty to warn of material risk in proposed surgery – Identification of the material risk – Meaning of material risk.
Negligence – Causation – Whether failure to warn of a material risk causative of plaintiff’s injury – Whether patient would not have undergone treatment if warned.
Appeal – Appeal by rehearing – Powers of appellate court – Decision dependent on credibility findings – Authority of appellate court to reach conclusions different from trial judge.
Evidence – Credibility of witnesses – Limits of appellate review in respect of findings of fact based on assessment of the credibility of a witness.
Gummow J said that courts should not be too quick to discard the possibility that a medical practitioner was or ought reasonably to have been aware that the particular patient, if warned of the risk, would be likely to attach significance to it, merely because it emerges that the patient did not ask certain kinds of questions.
This case is cited by:

  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Hunter v Hanley; 4 Feb 1955

References: [1955] SLT 213, [1955] ScotCS CSIH_2, 1955 SC 200, [1955-95] PNLR 1
Links: Bailii
Coram: Lord President Clyde
The pursuer had been injured when the hypodermic needle being used by the defender doctor broke in use. The pursuer said that the direction by the judge as to accepted practice for the use of such needles.
Held: The court considered the dangers in establishing simple medical standards to judge medical treatments: ‘In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men . . The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.’
This case is cited by:

  • Cited – Penney and Others -v- East Kent Health Authority CA (Times 25-Nov-99, Gazette 08-Dec-99, [2000] PNLR 323, Bailii, [1999] EWCA Civ 3005)
    A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
  • Adopted – Maynard -v- West Midlands Regional Health Authority HL ([1985] 1 WLR 685, [1985] 1 All ER 635)
    The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Rogers v Whitaker; 19 Nov 1992

References: [1992] HCA 58, (1992) 175 CLR 479
Coram: Mason CJ, Brennan, Dawson, Toohey, Gaudron, McHugh JJ
High Court of Australia – Negligence – Breach of duty – Medical practitioner – Duty to warn of possibility of adverse effect of proposed treatment – Extent of duty.
The patient complained that the doctor when proposing a form of treatment to his left eye had not explained the associated risks. Those risks had become realised. The plaintiff was already blind in the other eye, giving the risk a greater significance than it would otherwise have had. In addition, she had asked anxiously about risks.
Held: Why should the patient’s asking a question make any difference in negligence, if medical opinion determines whether the duty of care requires that the risk should be disclosed? The patient’s desire for the information, even if made known to the doctor, does not alter medical opinion. ‘Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment.’
The court restated the test of the materiality of a risk so as to encompass the situation in which, as the doctor knows or ought to know, the actual patient would be likely to attach greater significance to a risk than the hypothetical reasonable patient might do: ‘a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.’
This case is cited by:

  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others Appeals: CA 24 Feb 1995

References: Times 24-Feb-95, Gazette 22-Mar-95, Times 21-Feb-95, [1995] QB 375
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’
This case cites:

This case is cited by:

  • Appeal from – South Australia Asset Management Corporation -v- York Montague Ltd etc HL (Gazette 04-Sep-96, Times 24-Jun-96, [1997] AC 191, [1996] PNLR 455, [1996] 27 EG 125, [1996] 3 WLR 87, Bailii, [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)
    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 . .
  • Cited – Paterson and Another -v- Humberside County Council QBD (Times 19-Apr-95, [1995] CLY 3661, [1996] Const LJ 64)
    A local authority was liable for nuisance for damage (cracks to house) caused by tree roots once it could be shown that it knew of the soil condition, by virtue of the council’s own warnings to residents of the danger in the area meant that the . .
  • Cited – Helmsley Acceptances Ltd -v- Hampton CA (Bailii, [2010] EWCA Civ 356)
    The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
    Held: The . .