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          Perry v Raleys: Supreme Court considers the constituent elements of causation and loss in professional negligence cases

          Yesterday the Supreme Court ruled in the case of Perry v Raleys on the correct approach to deciding a claim for loss of a chance arising from alleged negligently conducted litigation. In this article Laura Segger and Sheona Wood review the way in which the Supreme Court has examined a question of general importance wherever a Court has to value a lost opportunity and in particular the burden of proof which lie on claimants. This decision has provided clarity for insurers and practitioners alike and has significance wider than just in cases of negligently conducted litigation. 

          Date: 14/02/2019

          Facts

          Mr Perry was a retired miner who had developed Vibration White Finger ("VWF") resulting from excessive use of vibratory tools.  Mr Perry took redundancy in 1994 and instructed Raleys Solicitors to pursue a claim which subsequently fell within the DTI compensation scheme covering VWF claims. He was awarded general damages under this said scheme. 

          Mr Perry subsequently issued proceedings against Raleys Solicitors alleging that, as a result of their negligence in failing to advise him of further claims for damages he might make, he had lost the opportunity to claim Special Damages specifically a Services Award (in respect of any assistance required in performing routine domestic tasks). He asserted that he had performed all six tasks (i.e. gardening window cleaning, DIY, decorating, car washing and car maintenance) without assistance before developing VWF and that he had needed assistance with all those tasks thereafter, which had been provided by his two sons and his wife. 

          It was admitted that Raleys failed to advise him of such a possibility but it was denied that he could honestly have claimed such compensation. 

          The First Instance Decision

          The First Instance Judge heard Mr Perry's evidence together with that of his wife and his two sons. He found that Mr Perry did not need any relevant assistance as a result of the condition of his hands. He found that Mr Perry had failed to prove that Raleys' admitted breach of duty had caused him any loss. He explained in his judgment that it was Mr Perry's complete lack of credibility as a witness that had led to his finding that he would not have been able to make an honest claim for a Services Award. It followed that, even if Mr Perry had been advised of the potential claim for assistance under the scheme, he could not have honestly pursued such a claim. 

          The Court of Appeal's Decision

          The Court of Appeal overruled the First Instance Judge's findings in relation to causation, concluded that the Claimant had lost an 80% chance of making a services claim and awarded the Claimant £14,556.15 plus interest at an agreed rate.  The Court of Appeal held, amongst other things, that this was a rare case where the Court of Appeal should interfere with the factual findings of a first instance Judge and that the first instance Court (wrongly) conducted a trial within a trial as to whether the Claimant, on the balance of probabilities, was unable to carry out the relevant tasks without assistance.  

          The Supreme Court's Decision

          The unanimous decision of the Supreme Court was that the First Instance Judge was right to require Mr Perry to prove that, if he was properly advised, he would on the balance of probabilities i.e. more likely than not have made an honest claim for a services award and right therefore to examine in full detail the question of whether he was suffering from an inability to carry out the relevant tasks unaided in 1999. 

          This is because the law on this question has been settled ever since the Court of Appeal in Allied Maples Group Ltd v Simmons and Simmons. The Claimant must prove on the balance of probabilities that had he received proper advice he would have taken the steps that he needed to take to pursue the relevant claim i.e. the Claimant's conduct is to be determined on the balance of probabilities. If he can prove that then the question of whether the claim would have succeeded or whether the defendant for that claim would have paid something in settlement  i.e. the actions of a third party, has to be assessed using lost opportunity principles. 

          Applied to this case Mr Perry's claim was unsuccessful because on the basis of what was known to him at the time he could not have given Raleys instructions that would have led to him being advised that he was entitled to pursue a claim for a services award. The Judge had found on the evidence that Mr Perry was not, in fact, incapable of carrying out the six tasks without assistance. 
          The Supreme Court also found that the Court of Appeal had wrongly interfered in the findings of fact by the First Instance Judge. 

          Raleys appeal was allowed and the First Instance judge's order was restored. 

          Comment

          This decision clarifies that:

          • In cases involving the lost chance doctrine the basic requirement that a negligence claim requires proof of loss is not abandoned. 
          • The issue of whether or not a claimant would have acted in a particular way is to be determined on the balance of probabilities having regard to the evidence available and it is not unfair to subject this evidence whether medical or oral evidence within the Claimant's own knowledge to forensic analysis.  
          • The issue of assessment of the lost opportunity, whether involving the hypothetical acts of third parties or otherwise, is one for the court to determine and it is not appropriate at that juncture to conduct a "trial within a trial". 
          • The case has provided clarity in relation to the standard of proof applied to a Claimant's actions in professional negligence cases in which the underlying facts can be scrutinised forensically.

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