NEWS / Affiliate / Facts after the event come too late

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03 JAN 2020

FACTS AFTER THE EVENT COME TOO LATE

James Burgoyne of Brunel Professions considers a recent ruling in relation to loss of chance claims

Loss of chance claims are regularly made against professionals. These are claims where the claimant asserts that but for negligence or breach of contract on the part of the professional they would have acted in a certain way, such that that they would have avoided a loss or derived a benefit.

Loss of chance claims present difficulties in that they deal with hypothetical situations rather than historical events. They not only consider an initial situation which didn’t happen (if the professional had not been negligent) but what would have happened next. The “what would have happened next” can involve a number of alleged further chapters, with claimants asserting a chain of events leading to their favoured outcome.

English law has evolved a 2 stage test to try to deal with these situations, if a breach on the part of a professional has been established.

The claimant must show on the balance of probabilities that if the professional’s breach had not occurred they would have acted in a certain way.

The court will then decide what the probable outcome would have been, which often involves the actions of third parties. If the latter, the court will assign a probability to this outcome, and any financial damages awarded will be reduced to this same percentage. In other words, if it was 75% likely that the next event would have occurred, the claimant will receive 75% of their lost opportunity.

The discussion of loss of chance claims can be confusing as there are two percentages being discussed, in relation to the different limbs of the test. In terms of the first limb of the test, the claimant has to establish that they were more than 50% likely to have acted. In terms of the second limb of the test, the court is considering the probability of what would have happened next.

2019 saw two cases decided which have added further dimensions to this consideration, including the surprising result that additional evidence regarding what would have happened but coming after the event is not to be taken into account. When grappling with possibilities and suppositions it is perhaps surprising that an actual hard fact is not to be included, and when perhaps that fact would come as a relief in the intellectual challenge of “what ifs”.

The case of Perry v Raleys emphasised that the first limb of the test was all or nothing, and that if the claimant could not satisfy it then their claim had failed at the first hurdle. The case also emphasised that the claimant must have been able to honestly proceed in the way they declare, which is very relevant to lost opportunity in personal injury claims. The requirement that the claimant’s stated course of action be honest is not however confined to personal injury claims.

This case was followed by Edwards v Hugh James Ford Simey, which considered the admissibility of evidence which had arisen or been obtained after the original events.

The context of this question was as follows. The claimant was a miner who suffered from Vibration White Finger, and who made a claim under a statutory compensation scheme. He was medically assessed at the time, and his condition confirmed. Two awards were available under the scheme but due to the advice from his solicitors, the miner only claimed one of these awards, which he received. He subsequently brought a claim against the solicitors for the missed opportunity to claim the second award.

As part of the consideration of this loss of chance claim, the miner underwent a second medical examination. The second report did not agree in all respects with the first. On the basis of the second report, the miner was not eligible for the second award, and had been overcompensated in relation to the first award.

The question for the court was therefore whether to take into account the medical report regarding the miner’s actual condition which had been obtained in the loss of chance claim, but which was not available at the time of personal injury claim, and which would not have been commissioned under the statutory compensation scheme.

This case went all the way to the Supreme Court, which finally decided that the later evidence was not to be included in deciding the case. The court proceeded on the basis that but for the solicitor’s negligence, the claimant would have honestly made a claim for the second award, and would have received the same under the scheme. The second medical report would never have been commissioned and the results of it would not have been known. As such, it would not have affected what would have happened next, if the solicitor’s advice had been better.

Whilst logically sound, this does lead to the situation that the miner has been compensated for a more severe condition than he has actually suffered, and it does appear that the legal world has diverged from the real world.

This case will come as a disappointment to professionals. The practical reality of loss of chance claims from the professional’s perspective is often painful, and there is frequently a feeling that claimant’s assertions of the direction events would have taken are fanciful and self serving. Tangible evidence of the wider situation would usually be welcomed, and it seems counter intuitive to be disregarding it, even if it arises after the original facts which give rise to the claim.

One sliver of comfort is that the context of Edwards v Hugh James Ford Simey was a statutory compensation scheme, with claims handling and award allocation deliberately process driven. The Supreme Court expressly took this into account in reaching its decision.

As such, whilst a precedent has been set by this case, it may be hoped that in other cases against professionals, distinctions can be made.

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James  Burgoyne

James Burgoyne

Director - Claims & Technical

James joined Brunel in 2009 and heads up the Technical and Claims Department. As well as representing Brunel on the ACE PII panel, he writes occasional pieces for us on insurance, risk and associated topics.

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