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Facts
​​The claim was brought on behalf of Thomas Watkins, a miner formerly employed by the British Coal Corporation. It concerned the development of a common mining injury called Vibration White Finger (“VWF”), which affected Watkins’ ability to perform basic domestic tasks. Due to the frequency of this injury, a governmental scheme was set up to compensate victims efficiently, meaning the Department for Trade and Industry would assume British Coal's negligence. Following a questionnaire on work history aimed at establishing the likelihood of vibration exposure, a medical exam was conducted. This established that Watkins was entitled to both general and special damages (also called a “services claim”). Although Watkins sought both general and special damages, he was only awarded a settlement for general damages for a total of £9,478. Watkins’ solicitors (the appellants) reported the offer to him and informed him of the steps required to obtain special damages if he so wished. Watkins informed the appellants that he did not wish to proceed and was willing to accept the offer. The appellants were negligent in not mentioning that in accepting the offer, Watkins would not be able to receive any of the special damages therefore missing out on a large sum of compensation.

The issue of negligence arose five years later when Watkins viewed an advertisement aimed at ex-miners whose VWF settlements were undervalued. It was established that by not pursuing the special damages compensation, Watkins lost a sum of £6,126.22. Watkins brought proceedings against the solicitors, claiming that he had been given misleading advice on how to obtain special damages, which he would have pursued if given the correct legal counsel.

Following several similar claims, Judge Hawkesworth QC directed that evidence is required in the form of a report by an expert in the field and this 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]”. Mr. Tennant, a consultant vascular surgeon, conducted a medical exam. This found that Watkins, in fact, had no claim for special damages at all. He was merely suffering from a low level of VWF – injuries far less severe than originally established. The consultant found that Watkins should only be entitled to a sum of £1,790 for general damages. In conducting the examination, Mr. Tennant diverged from the instructions provided by the judge by referring back to the original examination done under the Scheme.

Watkins died in January 2014. Mrs. Jean Edwards, Watkins’ daughter, continued the claim on his behalf.

At first instance
The claim was dismissed in the County Court.The trial judge found that the advice which had been given by the solicitor was indeed negligent and concluded that had Mr Watkins been adequately advised, he would have rejected the offer and continued his pursuit for the services claim. Therefore causation was clearly established. However, the court decided that Mr Watkins had not suffered a loss as Mr. Tennant, who had not applied the presumption under the Scheme, opined his symptoms were insufficient to succeed on a services claim. On Mr Tennant’s assessment of his condition, Mr Watkins would have been offered £1,790 for general damages and a services claim would not have been possible.

This decision was appealed. The Court of Appeal allowed the appeal, ruling that the trial judge had erred in considering Mr Tennant’s report. Citing Perry v Raleys Solicitors, which concerned a similar set of facts to Edwards, the court ruled that the chance of Mr Watkins receiving compensation should be calculated as at the date when the claim was lost. Irwin J commented, “It appears to me particularly inappropriate to lose sight of what would have been the outcome of [the compensation scheme], by reference to after-coming evidence which would not have been brought into being at the time”. As such, the case was remitted for rehearing.

In the Supreme Court
Simey Solicitors sought to appeal this decision and the matter went before the UK Supreme Court. The issue was whether the court should have taken account of Mr. Tennant’s medical report when assessing the prospects of a successful negligence claim. In a unanimous decision given through Lloyd-Jones J, the court dismissed the appeal and remitted the case back to the lower courts for assessment of the value of the loss of chance.

The Supreme Court ruled that Mr Tennant’s assessment was not relevant to the case at hand, stating “We are not concerned here with a claim in conventional civil proceedings but with a scheme possessing unusual features”.

The court was satisfied that Mr Watkins’ chances of success should have been judged relative to the likely outcome if he had been properly instructed by his solicitors in the first place. Therefore, evidence that would not have been available at the time (including Mr. Tennant’s report) was not relevant, and the trial judge erred in taking it into account. The Supreme Court reasoned that the judge should have assessed the value of the lost claim on a loss of opportunity basis. Therefore the court dismissed the appeal.

Relevant Legal Principle
The crucial question before the Supreme Court was whether the value of the lost chance was to be judged as at the date when the underlying claim was lost or when the damages were awarded. The appellants relied on the Bwllfa principle, which sets out that when assessing damages, if the Court has knowledge of what actually happened it should not speculate as to what could have happened. The Supreme Court ruled that this principle was irrelevant here as Mr. Tennant’s report was not relevant to the issue of loss. In its judgment, the Supreme Court focused on the nature of “the Scheme”.

In finding in favour of Mr. Watkins, the court essentially gives effect to the long-established principle in tort law that a claimant should be put back to the position they would have been in, but for negligence. But for the negligence of his solicitor, Mr. Watkins’ would have profited from the Scheme. The Supreme Court highlighted the importance of the claim being one made within the Scheme, not one made in normal civil proceedings. A special damages award to Mr. Watkins would have been a natural consequence of how the “rough and ready” Scheme operated and was intended to operate. The “uncovenanted windfall” was justified on the basis that the second medical report was not compliant with the scheme, which is why it was held to not be relevant.

The Supreme Court did not deem it necessary to reach a conclusion on the matter of subsequently acquired evidence due to the nature of the Scheme. They expressly stated that the irrelevance of the authorities relied on by the appellants (such as Bwllfa) was confined to the circumstances of this case. Thus, the principle is limited to the facts of the case and the Bwllfa principle is likely to be relied on in future after-acquired evidence cases.

Comment
This case considers loss of chance as it relates to professional negligence claims. It takes precedent from Perry v Raleys Solicitors. Both cases concern claims made against personal injury firms, where claimants feel they were ill advised as to their entitlement to recover damages and are now seeking to recover those damages which they did not receive as a result of the legal advice given to them. In Perry it was held that the claimant could not succeed in his claim as he had lost nothing of value, this was followed by the court in Edwards, however the Court did award damages to a claimant as he would have received them under his original claim, despite the appellants' findings that new medical reports had shown that the claimant was overcompensated in the first place.

This “uncovenanted windfall” was overlooked by the Supreme Court as simply being an outcome of the nature in which the Scheme operated. The Supreme Court in this case could have prevented making a decision which allows for the overcompensation of claimants simply because they would have been overcompensated in their original claim, however they failed to do so. The purpose of tort damages is to restore a claimant to their original position before loss occurred to them and in that sense a claimant should not be able to benefit from his claim. This decision has been criticised on public policy grounds, as the Supreme Court could have made a decision such that “a professional negligence claim should not become a vehicle for granting windfalls to claimants in cases where it is shown that the original claim, properly pursued, would itself have led to over-compensation”, and in not doing so violates the purpose of tort damages or compensatory justice. Alternatively, it could also be argued that the Supreme Court did not violate the purpose of tort damages in this decision, but simply followed a stricter application of them in restoring the claimant to his position prior to the negligence of the personal injury firm, regardless of whether or not he would have been overcompensated.