February 25, 2019

The respondent, Mr Perry, was a retired miner. By the time he had stopped working, he was suffering from a condition known as Vibration White Finger (VWF). Common symptoms include a reduction in grip strength and manual dexterity, often leading to an inability to carry out routine domestic tasks unaided.

In 1999, the Department for Trade and Industry set up a scheme to provide tariff-based compensation (i.e. based on the severity of the injury) to miners suffering from VWF following exposure to excessive vibration.

The scheme contemplated the making of two main types of compensatory award to such miners, which broadly reflected general and special damages for personal injuries. Pursuant to a Services Agreement dated 9 May 2000, special damages could include a Services Award to qualifying miners.

Mr Perry engaged the appellant law firm, Raleys Solicitors, to pursue a VWF claim in October 1996. His claim fell within the scheme. In October 1997, he was given medical ratings sufficient both for him to obtain general damages and for a Services Award to be presumed. However, Mr Perry settled his claim in November 1999 for the payment of general damages only (£11,600) and made no claim for a Services Award within the specified time. He subsequently made a professional negligence claim against Raleys in February 2009, claiming that the firm’s negligent failure to give him competent legal advice deprived him of the chance to claim a Services Award. His estimated loss was £17,300.17 plus interest.

At trial, Raleys admitted breach of duty, but denied causation of loss. It also alleged that Mr Perry’s claim was time-barred. The judge rejected the limitation defence, but held that Mr Perry had not proved that Raleys’ breach of duty had caused him any loss. The judge dismissed the claim. The Court of Appeal reversed the finding on causation and granted Mr Perry loss of chance damages of £14,556.15 plus interest. Raleys appealed to the Supreme Court, seeking restoration of the first instance order.

The Supreme Court unanimously allowed the appeal and restored the order of the trial judge.

Lord Briggs, giving the sole judgment, said that loss of chance damages have been developed by the courts to deal with difficulties arising from the assessment of counter-factual and future events. In both types of situation, the courts sometimes depart from the ordinary burden on a claimant to prove the facts required for a successful claim on the balance of probabilities (i.e. more likely than not) standard. However, this does not mean that the basic requirement that a negligence claim requires proof that loss has been caused by the breach of duty has been abandoned. The correct approach, following Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 (CA), is to require a claimant to prove what he or she would have done on the balance of probabilities, while what others would have done (if relevant) depends on a loss of chance evaluation. These principles apply equally to negligence claims based on loss of the opportunity to achieve a better outcome in a negotiated transaction and claims, as in this case, based on loss of the chance to bring a legal claim.

Mr Perry therefore needed to prove that, properly advised by Raleys, he would have made a claim to a Services Award under the scheme within time. Further, the judge had been correct to impose the additional requirement of the claim having to be an honest claim.

Lord Briggs said that the facts that Mr Perry had to prove did not raise issues of counter-factuality or futurity that engaged loss of chance principles.

The trial judge had therefore made no legal error in conducting a trial of the issue as to whether Mr Perry would (or could) have brought an honest claim for a Services Award. Further, the judge did not (wrongly) apply a second causation hurdle requiring Mr Perry to prove that his claim would have been successful (not merely honest). In addition, the Court of Appeal had wrongly interfered with the judge’s factual determination; the very stringent test for appellate court interference had not been met. (Perry v Raleys Solicitors [2019] UKSC 5 — 13 February 2019 — to read the judgment in full, click here).