Supreme Court tackles the tricky issue of loss of chance cases

In Perry v Raleys Solicitors [2019] UKSC 5, the Supreme Court has overturned the Court of Appeal and provided some useful guidance for parties engaged in professional negligence claims involving the loss of a chance.

The background to this case stretches back several decades.  Mr Perry was a miner who was affected by Vibration White Finger (“VWF”) from working in coal mines.  A scheme was set up in 1999 to provide compensation to those affected by VWF, which made provision for general damages and special damages; the latter of which could include what was termed a ‘Services Award’. 

Mr Perry settled his claim for general damages in November 1999 with the assistance of Raleys Solicitors (“Raleys”).  No claim was made for a Services Award and the time for doing so passed. 

Fast forward nearly ten years and Mr Perry issued a professional negligence claim against Raleys.  He alleged that Raleys had been negligent in failing to advise him of the possibility of making a Services Award claim, which he quantified at around £17,000 plus interest.  Mr Perry’s case was that, of the six routine domestic tasks (such as gardening and window cleaning) against which a claim for a Services Award was assessed, he was no longer able to undertake those tasks without assistance as a consequence of his VWF, and he had received assistance with those tasks from others, entitling him to a Services Award.

Breach of duty was ultimately admitted by Raleys shortly before trial, such that the main battle was around whether Raleys negligence had caused any loss to Mr Perry.

At first instance, the trial judge found in favour of Raleys, holding that Mr Perry could not have made an honest claim for a Services Award on the basis that his VWF had not caused him any significant disability in performing any of the six routine domestic tasks without assistance against which a Services Award was assessed.  In what the Supreme Court later described as a “detailed and lucid reserved judgment” the trial judge had explained 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”.

The Court of Appeal reversed the first instance decision.  In particular, it considered that the judge was wrong to conduct a trial within a trial of whether Mr Perry needed assistance with the six domestic tasks as a result of his VWF and wrongly imposed the burden on Mr Perry to prove that on the balance of probabilities.

In a unanimous Supreme Court judgment, handed down on 13 February 2019 by Lord Briggs, the Supreme Court overturned the Court of Appeal’s decision.  It held that it was not wrong in law or principle for the judge to have conducted a trial of whether Mr Perry could have brought an honest claim for a Services Award had Raleys not been negligent.  The burden of proving that, on the balance of probabilities, fell on Mr Perry.  The Supreme Court also noted that simple facts relevant to whether Mr Perry could have brought an honest claim if competently advised “do not in themselves fall within either of those categories of futurity or counter-factuality which have traditionally inclined the court to adopt a loss of a chance type of assessment”. 

Whilst relatively fact specific, the Supreme Court’s judgment provides a useful analysis of the law on loss of chance cases.  The Supreme Court approved of Allied Maples (Allied Maples Group Ltd -v- Simmons & Simmons (a firm) [1995] 1 WLR 1602), the leading case on loss of chance claims, and referred to the dividing line between those matters which the claimant must prove on balance and those which are better assessed on a loss of chance approach.  Mr Perry had failed, on the balance of probabilities, to satisfy the first of these.  

A copy of the Supreme Court’s judgment can be found here

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