LORD LLOYD-JONES: (with
whom Lady Hale, Lord Reed, Lord Sales and Lord Thomas agree)
1.
Mr Thomas Arthur Watkins lived near Tredegar in South Wales. He was
employed by the National Coal Board (later British Coal Corporation) (“British
Coal”) as a miner from 1964 until 1985. In that employment he was required to
use vibratory tools and as a result of such exposure, in common with very many
other miners, Mr Watkins developed Vibration White Finger (“VWF”) which is a
form of Hand/Arm Vibration Syndrome (“HAVS”). He first experienced the
symptoms, which consist of whitening, stiffness, numbness and tingling of the
fingers of both hands, not later than the early 1980s. After he left the
employment of British Coal in 1985, he worked as a driver of road sweeping
vehicles until he retired in 1997. Shortly after that he was diagnosed with
osteoarthritis in both knees which became increasingly acute. One symptom of
VWF can be a reduction in grip strength and manual dexterity in the fingers. A
common, although not invariable, consequence is that a person suffering from
these conditions becomes unable, without assistance, to carry out routine
domestic tasks such as gardening, do it yourself or car maintenance.
The Scheme
2.
A group of test cases, representative of some 25,000 similar claims,
established that British Coal had been negligent in failing to take reasonable
steps to limit the exposure of employed miners to VWF from the excessive use of
vibratory tools (Armstrong v British Coal Corpn [1998] CLY 975). As a
result, the Department for Trade and Industry (“DTI”), which had assumed
responsibility for British Coal’s relevant liabilities, set up a scheme in 1999
to provide tariff-based compensation to miners who suffered from VWF as a
result of exposure to excessive vibration (“the Scheme”). The Scheme was
administered pursuant to a Claims Handling Arrangement (“the CHA”) dated 22
January 1999 and made between the DTI and a group of solicitors’ firms
representing claimant miners suffering from VWF. The central objective of the
CHA was to enable very large numbers of similar claims to be presented,
examined and resolved expeditiously. The Scheme contemplated the making of two
main types of compensatory award to miners suffering from VWF, corresponding
broadly with general and special damages for personal injuries. The Scheme
provided for compensation to be paid for pain, suffering and loss of amenity
(“General Damages”), and for handicap on the labour market and other financial
losses (“Special Damages”) including past and/or future loss of earnings.
Pursuant to a Services Agreement dated 9 May 2000 the special damages could
include a services award for qualifying miners in respect of the need for
assistance in performing domestic tasks.
3.
Under the Scheme, each claimant was required to complete a questionnaire
on his work history and IRISC, the claims handling organisation which acted on
behalf of the DTI, would then allocate him to a particular occupational group,
depending on his likely exposure to vibration. He would then undergo a medical
examination in accordance with a defined Medical Assessment Process (“MAP”) by
a doctor appointed under the Scheme. The resulting MAP 1 report was in standard
format and was intended to determine whether the claimant suffered from VWF
and, if so, the severity of the condition by reference to the stagings on the
Stockholm Workshop Scale. The “V” score was a measure of the vascular symptoms
and depended largely on reporting from the patient. The extension of blanching
was recorded diagrammatically by the examining doctor. The sensori-neural signs
and symptoms were assessed partly from the claimant’s account and partly by
standardised testing, the results of which were recorded as “Sn” markings. It
was open to a claimant to challenge the findings of the MAP 1 report but there
was no provision for IRISC to do so. Within 56 days of receipt of the MAP 1
report IRISC was obliged to make an offer of compensation or to reject the
claim with reasons.
4.
The Services Agreement of 9 May 2000 was incorporated in the CHA as
Schedule 7(1). It recorded an agreed approach to compensation for services. The
respective medical experts of the parties to the Scheme rejected the idea that
there should be an individual assessment of each claimant’s ability to carry
out particular household tasks. Instead it was agreed that
“an assumption be made that once
the condition had reached a certain level(s) causation it should be presumed
that a man could no longer carry out certain tasks without assistance. The
examining doctor would then merely have to consider whether there were any
other conditions (VWF apart) which of themselves would have prevented the man
from undertaking the task in question thereby rebutting the presumption.”
(Schedule 7.1, paragraph 3.1(ii))
Six tasks were
identified for this purpose: gardening work, window cleaning, do it yourself,
decorating, car washing and car maintenance (Schedule 7.1, paragraph 3.3).
5.
Claims under the Services Agreement were processed in the following way.
The experts produced a matrix identifying in respect of each staging of 2V and
2Sn late, or higher, the tasks for which a claimant would be presumed to
require assistance. Once a claimant had a staging of at least 2V or 2Sn late, a
claimant was entitled to a services award if he had previously performed one of
the identified tasks, but now required assistance to do so as a result of his
VWF. Men at 2V on the scale would be expected to have difficulty with all tasks
except do it yourself and decorating and at 3V would be expected to have
difficulty with decorating. It was further assumed that the condition would not
have deteriorated since cessation of exposure to vibration (Schedule 7.1,
paragraphs 4.1, 4.2). A claimant did not have to show that his condition wholly
disabled or prevented him from carrying out the relevant task. It was enough
that he could no longer carry it out without assistance. The approach left to
be determined when a claimant reached the relevant stages, whether he suffered
from any other conditions which would have prevented him from continuing to
carry out any tasks in any event (“co-morbidity”), and, if so, what that
condition was, when it developed and the extent to which it compromised his ability
to carry out the relevant tasks expressed on a scale of nil, material,
moderate, serious and complete (Schedule 7.1, paragraphs 3.7, 5.1).
6.
Factual evidence concerning a services claim was presented by a simple
questionnaire completed by the claimant. Because it would be impracticable to
investigate individual claims in any detail, the Scheme provided that “broad
assumptions will be made about the average assistance that would be required
for the particular task by the individual at the relevant stage” (Schedule 7.1,
paragraph 6.7). Schedule 7 stated that “practical and other considerations
militate against other than a tariff based approach given the number of claims
and the need for a quick, efficient and inexpensive approach to their
settlement.” (Schedule 7, paragraph 6.2) In addition, a claimant’s most recent
helpers would complete questionnaires. A claimant would then be sent for a
further medical examination (“MAP 2”) which was solely concerned to consider
whether there were any other conditions which, of themselves, would have
prevented the claimant from undertaking the task in question.
7.
A claimant was not usually contacted by IRISC concerning his claim, but
helpers were. This normally consisted of a telephone interview, which might
last 15 minutes, during which the helper would be asked whether he or she had
assisted with the tasks claimed and, if so, when they started to do so. Even
where the helper was out by a few years on dates, the information in the
questionnaire would still be accepted.
8.
On receipt of the questionnaires, IRISC would consider each claim on its
merits, adopting a pragmatic approach. If IRISC did not accept the claim
entirely it had to set out in detail the reasons for rejecting the claim in
whole or part. Compensation was calculated by application of a
multiplier/multiplicand approach and an index-linked tariff was set in respect
of each task according to the particular staging. IRISC could reject a claim
for services in whole or in part if a claimant’s work history after leaving the
mining industry was such as to indicate that his ability to carry out the
relevant tasks was not impaired. However, in order to be entitled to rebut the
presumption that a man with a particular claimant’s stagings could not carry
out the relevant tasks without assistance, IRISC had to discharge the burden of
establishing that the work actually carried out by the claimant was such as to
demonstrate that he could reasonably be expected to carry out all aspects of
the task without assistance. Pending resolution of the services claim, a
claimant was entitled to receive an interim payment in respect of his claim for
general damages and handicap on the labour market.
Mr Watkins’s claim
9.
In February 1999 Mr Watkins instructed Hugh James Ford Simey Solicitors
(“the appellant”) to act for him in relation to a claim under the Scheme. His
claim was notified to the DTI’s claims handlers on 10 February 1999. By
November 1999 Mrs Barbara Kinsey, litigation solicitor within the appellant
firm, had assumed responsibility for many VWF claims, including that of Mr
Watkins, at the appellant’s office in Bargoed and, from 2001, Treharris. On 31
January 2000 Mr Watkins underwent an interview and examination performed in
part by Dr Chadha, a general practitioner appointed under the Scheme, and in
part by an unnamed laboratory technician, to assess whether he was suffering
from VWF and, if so, how his condition should be categorised under the
Stockholm Workshop Scale for its vascular and sensorineural components. This
was referred to as a Medical Assessment Process 1 (“MAP 1”) examination. In a
report dated 3 February 2000 Dr Chadha indicated that Mr Watkins suffered from
VWF with stagings of 3V and 3Sn bilaterally (ie in both hands). Those stagings
were sufficient for Mr Watkins to obtain general damages and to entitle him to
a presumption in his favour that he satisfied the qualifying requirements for a
services award.
10.
Mr Watkins did choose to seek a services award. He and his assistants
completed the necessary questionnaires which were sent to the DTI’s claims
handlers on 23 March 2001. They initially sought to deny Mr Watkins’s entire
claim on the basis that he had not been exposed to excessive vibration while
working for British Coal. The appellant challenged that decision and eventually
the claims handlers were persuaded to accept Mr Watkins’s claim under the
Scheme. As a result of this delay, it was not until 12 February 2003 that the
claims handlers wrote to the appellant, offering Mr Watkins the sum of £9,478
“in full and final settlement of all [Mr Watkins’s] claims arising out of his
exposure to vibration during the course of his employment with the British Coal
Corporation”. £9,478 was the tariff award for general damages to which Mr
Watkins would have been entitled under the Scheme on the basis of the stagings
of 3V and 3Sn bilaterally. The offer made did not include any allowance for a
services award. The appellant wrote to Mr Watkins on 18 February 2003,
reporting the offer which had been received and advising him as to what would
be involved should he wish to proceed with a special damages claim. On 23
February 2003 Mr Watkins spoke by telephone with Mrs Kinsey at the appellant
and told her that “he didn’t want to proceed any further with the special
damages claim as he had other conditions and had had various operations which
in his view prevented him from carrying out certain tasks”. He indicated that
he was quite happy to continue with general damages only and would accept the
offer. Mr Watkins completed a form of acceptance on 24 February 2003 and the
appellant wrote to the claims handlers on 27 February 2003 accepting the offer
in full and final settlement of Mr Watkins’s VWF claim against British Coal.
The professional
negligence proceedings
11.
Nearly five years later, in January 2008, Mr Watkins, having seen a
newspaper advertisement offering assistance to any ex-miner who may have had
his VWF claim settled at an undervalue, instructed fresh solicitors, who issued
proceedings against the appellant on 11 August 2010. By the amended particulars
of claim it is contended that as a result of the appellant’s negligence, Mr
Watkins has lost the opportunity to bring a services claim under the Scheme or
otherwise. That lost opportunity is quantified at £6,126.22 plus interest.
12.
On 22 October 2010, His Honour Judge Hawkesworth QC made an order in
relation to a number of claims against solicitors arising out of the Scheme,
directing that disputes about expert evidence and disclosure be dealt with at a
hearing before him. The six test cases identified in the order did not include
Mr Watkins’s claim. Following a hearing, by order dated 3 May 2011 Judge
Hawkesworth ordered that his directions should apply “to all prospective and
existing claims alleging negligence against solicitors in the context of the
advice given by those solicitors in respect of claims for damages [under the
Scheme]”. He directed that expert evidence should be obtained in the form of a
report by a single joint expert. A schedule to the order set out a standard
form letter of instruction to such a single joint expert in terms approved by
the judge.
13.
That standard form was adopted in the letter dated 21 January 2013 by
which the parties to the present proceedings jointly instructed Mr Tennant, a
consultant vascular surgeon. It stated:
“It is an issue in the proceedings
whether Mr Watkins would, if properly advised, in fact have brought a Services
claim at all. Whether Mr Watkins was, as a result of HAVS, in fact disabled
from carrying out (in whole or in part) the tasks he alleges would have formed
the basis of his Services claim is relevant to that issue. Accordingly, we wish
jointly to instruct you to carry out a medical examination of Mr Watkins and,
on the basis of that examination and your consideration of the documents
referred to below and attached to this letter, to prepare a report stating your
opinion as to whether Mr Watkins is and was at any time from the date of onset
of HAVS symptoms:
(1) Disabled by HAVS as a
matter of fact and, to the extent that he was, unable to carry out (in whole or
in part), without assistance, the tasks which he alleges would have formed the
basis of his Services Claim; and
(2) Suffering from any
co-morbid medical condition which would, in any event, have affected his
ability to carry out those tasks without assistance.
In relation to co-morbidity, could you please express your
opinion as to whether any such co-morbidity was at any time since the date of
onset of HAVS symptoms: nil; minor; moderate; serious; complete (ie would have
prevented the carrying out of the task in any event) …
If, in the course of your medical examination, you conclude
that Mr Watkins does not, in fact, suffer from HAVS, you should report that
opinion in your Report.”
The letter made
clear that the expert was not to apply in Mr Watkins’s favour the presumption
under the Scheme that he could no longer carry out the relevant tasks without
assistance by reason of his VWF staging.
14.
Mr Tennant examined Mr Watkins and, in a report dated 17 May 2013, he
stated:
“Mr Watkins gives a good
description of vasospasm and is graded 1V in this report as the white
discolouration reaches the distal interphalangeal joint. The only abnormality
on testing was of a mild lack of dexterity. As there is no other sensory loss
in a warm environment, in my opinion this amounts only to HAVS grade Sn1. There
is certainly no justification for Sn3 at this examination, and to reach Sn2
would require evidence of reduced sensory perception, which I could not
demonstrate. Grading of 1V, 1Sn would not be expected to produce any disability
in the domains tested below.”
15.
In response to further questions from Mr Watkins’s solicitors, Mr
Tennant confirmed on 23 June 2013 that Mr Watkins met the criteria for the
diagnosis of HAVS. He further stated that it was apparent at interview that the
client had devolved certain tasks to others in the long term.
16.
Mr Watkins died in January 2014 at the age of 72. His daughter, Mrs Jean
Edwards, was appointed to continue the claim on behalf of Mr Watkins’s estate.
17.
The trial of the claim against the appellant took place in the County
Court at Leeds before Mr Recorder Miller in March 2016. The parties had
permission to rely on Mr Tennant’s written evidence at trial but an application
by the appellant, made in advance of trial, for permission to call Mr Tennant
was refused and that order was not appealed. The statements of Mr Watkins were
admitted as hearsay evidence. In a reserved judgment, handed down on 16 May
2016, the judge held that the claim in negligence was not time barred, that the
advice contained in the appellant’s letter dated 18 February 2003 had been
negligent and that if Mr Watkins had received appropriate advice, he would
probably have decided to reject the settlement offer of £9,478 and would have
continued to pursue his services claim. However, the judge also held that Mr
Watkins had suffered no loss and accordingly he dismissed the claim against the
appellant. He observed:
“If, as here, expert or other
evidence which post-dates the settlement or other disposal of the original
claim, establishes beyond any (or any but negligible) doubt that the claim
could and would have been resolved only in one specific way had that evidence
been available to the parties and the tribunal at the time, then the Court in
the professional negligence action has the ‘full facts’ adverted to by Laws LJ
in Whitehead [v Searle [2009] 1 WLR 549, para 20] and should find
accordingly, thereby avoiding an uncovenanted windfall or correcting injustice
to a claimant whose case has turned out to be undoubtedly stronger than had been
previously assumed. In the case of Mr Watkins, I can and should find that his
chose in action has been shown to have had no value given the damages actually
paid to him; another way of putting it is that, as I have found on the ‘full
facts’, his services claim had no chance of success, for the same reason: it is
beyond a peradventure that faced with Mr Tennant’s clinical findings and
conclusions any award would have fallen short of £9,478. It is fanciful to
assume otherwise.”
The judge took that view because on the consultant’s
findings Mr Watkins would only have been offered £1,790 for general damages and
a services claim would not have been possible.
18.
On appeal to the Court of Appeal (Underhill, Irwin and Singh LJJ) the
appeal was allowed: [2018] PNLR 30. The Court of Appeal, influenced by the
decision of the Court of Appeal in Perry v Raleys Solicitors [2017] PNLR 27 (more recently reversed by this Court [2019] 2 WLR 636) held that the trial
judge had been wrong to conduct a trial within a trial to determine the value
of Mr Watkins’s claim against the DTI and to determine the severity of his VWF.
It further held that the judge had been wrong to determine these matters on the
basis of the evidence of Mr Tennant, since that evidence would not have been
available at the time of Mr Watkins’s notional services claim under the Scheme.
Irwin LJ observed (at para 70) that it would be particularly inappropriate to
lose sight of what would have been the outcome under the Scheme by reference to
after-coming evidence which would not have been brought into being at the time.
The Court of Appeal further acknowledged exceptions in the case of fraud and in
cases, such as Whitehead v Searle [2009] 1 WLR 549, where the
consequences of a supervening event were of such a significant or serious scale
that public policy required a departure from normal principles in order to do
justice between the parties. In its view, such circumstances did not exist in
the present case.
19.
The appellant now appeals to this court with the permission of this
court. Although the appellant sought to appeal on 14 (partly overlapping)
grounds, permission was limited to the sole question of whether the prospects
of success of the claim are to be judged as at the date when the claim was lost
or at the date when damages are awarded and it directed that the parties
consider the relevance of the principle in Bwllfa and Merthyr Dare Steam
Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426, namely that
where the court assessing damages has knowledge of what has actually happened
it should not speculate about what might have happened but base itself on what
is now known to have happened. (See McGregor on Damages, 20th ed (2018), para 10-118.).
Although this was the reason why permission to appeal was granted, the Court
has concluded, in the light of the wide-ranging arguments presented to us, that
the Bwllfa principle is not relevant in the particular circumstances of
this case.
20.
On behalf of the appellant, Mr Michael Pooles QC submits that the trial
judge was right to rely on the evidence of Mr Tennant for four reasons.
(1)
In the circumstances of this case, the question whether Mr Watkins had
suffered loss should be determined as at the date of the trial of the claim
against the appellant, applying the Bwllfa principle.
(2)
In a professional negligence claim arising from personal injury
litigation, the issue of loss should be determined as at the date of the trial
of the professional negligence proceedings as it would have been in personal
injury litigation (Golden Strait Corpn v Nippon Yusen Kubishika Kaisha (The
Golden Victory) [2007] 2 AC 353, per Lord Bingham of Cornhill at para 13).
(3)
Even if the issue of loss should be determined at an earlier date, the
Court should in making that determination take account of all of the evidence
available at the trial of the professional negligence proceedings, following
the decisions in Charles v Hugh James Jones & Jenkins [2000] 1 WLR
1278, Dudarec v Andrews [2006] 1 WLR 3002 and Whitehead v Searle,
as this would enable the court to make a more accurate assessment of what the original
personal injury claim was actually worth.
(4)
That evidence was needed in the present case to enable the issue of loss
to be determined “with all the adversarial rigour of a trial” as required by
the Supreme Court in Perry v Raleys Solicitors: [2019] 2 WLR 636, para
19.
21.
On behalf of the respondent, Mr Richard Copnall submits that the court
should assess the prospects of success as at the date when the claim was lost,
on the facts as they were and the evidence available at that time, subject to
the following established exceptions.
(1)
Evidence that would have been available, in the absence of negligence,
at the time the claim was lost will be admissible (Charles; Dudarec v
Andrews [2006] 1 WLR 3002).
(2)
Evidence of the original parties’ attitude to settlement at the time
that the claim was lost will be admissible (Somatra Ltd v Sinclair Roche and
Temperley [2003] 2 Lloyd’s Rep 855).
(3)
Evidence of dishonesty or misconduct will be admissible (Perry; Green
v Collyer-Bristow [1999] Lloyd’s Law Rep PN 798).
(4)
Evidence of any accomplished fact within the meaning of the Bwllfa
principle will be admissible.
Discussion
22.
We are concerned with a claim in the tort of negligence. Although the
claim for breach of contract was time barred, the judge held that, by virtue of
section 14A of the Limitation Act 1980, as inserted by section 1 of the Latent
Damage Act 1986 (Special time limit for negligence actions where facts relevant
to cause of action are not known at date of accrual), the claim in negligence
was not. In order to succeed in negligence against Mr Watkins’ former
solicitors his estate had to establish a negligent breach of duty, causation
and loss. A negligent breach of duty was found by the judge, on the basis that
the appellant’s letter of 18 February 2003 was misleading and deficient in a
number of respects and those features were not corrected in the subsequent
conversation between Mr Watkins and Mrs Kinsey on 23 February 2003. There has
been no appeal against that conclusion. In addition, the judge made a finding that,
had Mr Watkins received non-negligent advice, he would have pursued an honest
services claim. That claim had already been notified and supporting statements
provided. The judge considered that, had Mr Watkins been more fully and
accurately informed as to where he stood and how the scheme operated, he would
probably have instructed Mrs Kinsey to let the services claim and a MAP 2
medical examination proceed. The judge expressly rejected the submission on
behalf of the appellants that, in reality, Mr Watkins had realised that his
evidence in support of the services claim was grossly exaggerated or invented
and, as a result, he had discontinued it for fear of getting into trouble or
losing out financially further down the line. There has been no appeal against
that conclusion. Accordingly, the issue considered by the Supreme Court in Perry
v Raleys Solicitors does not arise in this case and, in my view, that
decision has no direct bearing on the issues which we have to decide.
23.
For the claim by Mr Watkins’s estate to succeed, however, it is also
necessary to prove loss. There is a legal burden on the estate to prove that in
losing the opportunity to pursue the claim Mr Watkins has lost something of
value ie that his claim had a real and substantial rather than merely a
negligible prospect of success. It is only if the estate can establish that Mr
Watkins’s chances of success in pursuing his service claim were more than
negligible that it is appropriate to go on to evaluate those chances on a loss
of chance basis by making a realistic assessment of what would have happened
had the original claim been pursued (Mount v Barker Austin [1998] PNLR 493 per Simon Brown LJ at pp 510D to 511C). In the view of Mr Recorder Miller,
the present claim failed at the first hurdle. On the basis of the evidence of
Mr Tennant the judge considered that Mr Watkins’s chose in action had no value
given the damages actually paid to him. It was clear, in his view, that any
award would have fallen short of the £9,478 which Mr Watkins had already
received under the settlement.
24.
Against this background, the argument before this court has focussed on
the issue of the admissibility in a professional negligence action of
subsequently acquired evidence relating to the value of the original claim, an
issue on which we have heard elaborate submissions. However, it is not
necessary to express a concluded view in relation to these matters because the
evidence contained in Mr Tennant’s report was not relevant to any issue before
the court in the professional negligence proceedings. As a result, the
authorities relied on by the appellant are not relevant in the particular
circumstances of this case.
25.
It is important not to lose sight of the fact that Mr Watkins’s original
claim was a claim within the Scheme and not one made in the course of
conventional civil litigation. It is necessary to consider whether Mr Watkins’s
original claim, which was accepted by the judge to be an honest claim, was of
more than negligible value within the context of the Scheme. When the evidence
of Mr Tennant is considered in this light, it is not the knock-out blow which
the appellant suggests.
26.
The Scheme has been described by Irwin LJ in the Court of Appeal and by
counsel before us as a rough and ready scheme. This is a fair description. It
was intended to provide an efficient and economic system for dealing with a
huge number of claims in a way that was broadly fair. No doubt, it was
considered that the decision not to require a detailed medical assessment of
the level of disability of every claimant for a services award was justified by
the savings in cost. A deliberate decision was taken to deal with services
claims by reference to presumptions derived from the diagnosis and staging
found at MAP 1, as opposed to requiring a precise assessment of the underlying
disability. Medical assessment in the MAP 2 procedure was to be limited to the
issue of co-morbidity. More specifically, there was no provision within the
Scheme whereby the DTI could appeal against a general award, nor did the Scheme
contemplate reopening or reassessing the diagnosis or staging of the condition
or the entitlement to a general award established at MAP 1. Recoverability
under the Scheme, therefore, did not depend on entitlement at common law nor
did it correspond with what might have been the outcome in conventional civil
proceedings. In this case Mr Watkins lost the value of his claim under the
Scheme as it would have been administered in accordance with its terms.
27.
In this regard it is instructive to consider why Judge Hawkesworth QC
made the order in the professional negligence proceedings for further medical
reports. In his judgment of 3 May 2011, he explained that it was common ground
that the claims were for the lost chance to bring a claim under the MAP 2
procedure. On behalf of the claimants it was contended that the scope of the
medical evidence should be a replication of the MAP 2 procedure which was
limited to the issue of comorbidity, while on behalf of the defendants it was
contended, initially at least, that there should be a more comprehensive
medical examination by a consultant specialist which could revisit the original
diagnosis of VWF as well as address the issue of comorbidity. For the claimants
it was submitted that because the MAP 2 examination did not revisit or reopen
the original diagnosis it would not be appropriate for the medical expert in
the professional negligence proceedings to address them. During the hearing,
however, it became clear that counsel for the defendants were not contending
for a medical examination in order to revisit the diagnosis and staging of the
VWF condition, but in order to evaluate the claimants’ case on causation ie in
order to assess whether a claimant’s failure to pursue a services claim arose
from negligent advice or from an inability to assert truthfully that he had
lost the ability to perform those specified activities which would enable him
to bring a claim for a services award. It was said that the extent of
disability was relevant to that issue, while the medical examination in the MAP
1 procedure was predominantly directed at diagnosis and staging of the
condition as opposed to the level of disability.
“Miss Foster [who appeared for
four defendant firms of solicitors] did not seek to say that the fact of a MAP
1 diagnosis and its consequences for the subsequent progression to a services
claim could be called into question. However, the defendants were entitled to
investigate the implied averment that had the claimant been properly advised he
would have made a services claim.” (at para 7)
The judge seems to
have made the order for expert reports on that basis but expressly left open
(at para 9) the question as to the extent to which any findings by an examining
doctor could or could not be taken into account in valuing the loss of a chance
to bring a services claim.
28.
The joint letter of instruction sent to Mr Tennant on 21 January 2015
(set out at para 13, above) reflected this reasoning. As a result, the
instructions and the resulting medical examination and report departed
significantly from those in a MAP 2 procedure. Most significantly, the expert
was not to apply the presumption resulting from the diagnosis and staging at
MAP 1 which applied under the Scheme.
29.
Mr Tennant’s report may have been relevant to the issue of causation in
the claim by Mr Watkins’s estate against his former solicitors. However, the
judge decided that issue in favour of the estate, finding that if Mr Watkins
had received non-negligent advice he would have pursued an honest services
claim. That conclusion has not been challenged on appeal. In my view, Mr
Tennant’s report is not relevant to the issue of loss. We must assume that had
Mr Watkins pursued a services claim the Scheme would have operated in
accordance with its provisions. The conclusion of Dr Chadha that Mr Watkins was
suffering at the level of 3V, 3Sn bilaterally had entitled him, under the
tariffs applied within the Scheme, to an award of general damages of £9,478 and
also created a rebuttable presumption that he did require assistance with the
tasks prescribed under Schedule 7 of CHA. Mr Watkins would have had to undergo
a second medical examination but that would have been limited to assessing
co-morbidity. There would have been no equivalent of Mr Tennant’s report, no
reassessment of the diagnosis or staging found in the MAP 1 procedure and no
reduction of the general award. Entitlement to a services award would have been
decided in accordance with the procedure described at paras 4 - 8 above. The appellant now seeks to add to the counterfactual situation the effect of a
further medical examination and report which would never have been
commissioned. There is no justification for such a modification of the
counterfactual situation and the judge erred in taking it into account when
concluding that the lost claim was of no value.
30.
When Mr Tennant conducted his examination of Mr Watkins and prepared his
report, he acted in accordance with his instructions in expressing his view as
to whether and to what extent Mr Watkins was disabled by HAVS as a matter of
fact and, to the extent he was, unable to carry out without assistance the
tasks which formed the basis of his services claim. His opinion is set out at
para 14 above. However, he then proceeded to set out his opinion on
co-morbidity in accordance with the Scheme by taking as his starting point the
conclusions of Dr Chadha (3V, 3Sn) as in the MAP 1 report and grading disability
for the purpose of a services claim on that basis. In doing so he provided an
insight into the value of the claim which Mr Watkins lost. For each of the five
activities relevant to Mr Watkins’s case (car washing, car maintenance,
gardening, DIY and decorating) his disability is assessed as complete. Mr
Tennant states that on the basis of the MAP 1 report his HAVS would be expected
to produce severe or complete disability in the tested domains. The only
comorbidity to take into account is Mr Watkins’s arthritic knees and this
results in a comorbidity finding of moderate in all of the tested domains other
than gardening where the finding is severe. In these circumstances I am unable
to accept that the services claim had no chance of success and that the claim
lost was of no value.
31.
At the heart of this case lies Mr Pooles’s assertion that Mr Tennant’s
report shows that because of an error Mr Watkins had already been
over-compensated and that a professional negligence claim should reflect his
true entitlement to just compensation and not what would have been an
uncovenanted windfall. However, this overlooks the nature and operation of the
Scheme. The payment of a services award to Mr Watkins would simply have been a
consequence of the way in which the Scheme operated and was intended to
operate. We are not concerned here with a claim in conventional civil
proceedings but with a scheme possessing unusual features. The evidence in
question, the report of Mr Tennant, is simply not relevant when constructing the
counterfactual situation which would have arisen if Mr Watkins’s solicitors had
fulfilled their duty to him.
32.
I consider, therefore, that the Recorder erred in concluding that Mr
Watkins’s services claim could and would have been resolved only in one specific
way had Mr Tennant’s report, or its equivalent, been available to IRISC and in
concluding that the claim had been shown to have no value given the award
already paid. On the contrary, Mr Watkins had lost a claim under the Scheme of
some value and the Recorder should have proceeded to assess its value on a loss
of opportunity basis. I would therefore dismiss the appeal and remit the matter
for assessment of the value of the loss of the opportunity to pursue the
services claim.
