A law firm will have to pay out the full value of a miner’s negligence claim despite later evidence suggesting that the value of the claim had reduced significantly.

The late Thomas Watkins was a miner who suffered from Vibration White Finger (VWF), a debilitating industrial injury brought on by his work.  He applied for compensation via a government compensation scheme (the Scheme) through his solicitors, Hugh James Ford Simey (Hugh James). 

A medical examination, undertaken in accordance with the Scheme rules, showed that Mr Watkins was entitled to general damages and to an additional service award.  The service award made extra payment to victims who were unable to complete certain tasks, such as gardening, DIY or window cleaning.

Hugh James reported the offer to Mr Watkins but used a standard letter which did not set out the detail of his claim in relation to the services award. As a result, Mr Watkins did not pursue the service award and accepted general damages only of £9,478 in full and final settlement in 2003.

Mr Watkins later realised that he had been entitled to the additional services award and started negligence proceedings against Hugh James. After Mr Watkins died in 2014, his daughter continued the claim on behalf of his estate.

In the first court hearing, the judge ruled that Hugh James had been negligent and that their advice to Mr Watkins was ‘misleading or deficient’.  However, a second medical report had been obtained in the conduct of the negligence claim against Hugh James. This report judged his symptoms to be less severe than the earlier report, with the result that he was not entitled to the services award, and in fact had been overcompensated in terms of the general damages. The judge therefore decided that Mr Watkins had suffered no loss and dismissed the claim.

At Appeal, the judges overturned the first court decision.  They ruled that the evidence in the second medical report would not have been available at the time of Mr Watkins’ original claim.  They concluded that Mr Watkins would have been successful had he pursued a services award claim at the time.

Hugh James was given permission to appeal to The Supreme Court, which concluded that the second report was not compliant with the Scheme and would not have been commissioned under its rules.  The judges therefore decided that the second report was not relevant to the professional negligence claim.

The Supreme Court ruled that the estate of Mr Watkins had lost the opportunity to claim as a result of the solicitors’ negligence.  It referred the matter for assessment of his estate’s loss.

This case shows that solicitors cannot rely on evidence which emerges after the event to escape negligence claims,” said James Burgoyne, Director – Claims & Technical, Brunel Professions. “The court reasoned that if the claimant had been correctly advised, he would have honestly pursued the services award and would have received the same. The second medical report would not have been commissioned and would not have altered what would have happened next if the solicitor’s advice had been better. Whilst logically sound, it does lead to the result that the legal world has departed from the real world as the miner has been compensated for a more severe condition than he in fact suffered. A major factor in this decision were the steps of a highly process driven statutory compensation scheme, and this may be a distinguishing factor where the same points are argued in loss of chance claims again in the future.

Reports about the Supreme Court case have been published by Law Society Gazette and Clyde & Co

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