Key Point
- This case affirms Allied Maples Group v Simmons v Simmons: loss of chance can be recoverable in cases of negligent professional advice where the chance of a beneficial had the professional adviser not been negligent depends on what others would have done
Facts
- D solicitor failed to advise C, a miner, on the opportunity to make an employment injury claim under a government scheme
- C sued for the loss of chance of successfully making such a claim
Held (Supreme Court)
- D was not liable to C as on a balance of probabilities, even if properly advised C would not have made an honest claim since C had been dishonest about his injury
Lord Briggs
Loss of chance in professional negligence cases
- To the extent (if at all) that the question whether the client would have been better off depends upon what the client would have done upon receipt of competent advice, this must be proved by the claimant upon the balance of probabilities
- To the extent that the supposed beneficial outcome depends upon what others would have done, this depends upon a loss of chance evaluation
Policy justifications
- Sometimes the court makes such a departure where the strict application of the balance of probability test would produce an absurd result
- Where what is lost is a negligence claim with substantial chance of success, it would be absurd to decide the claim on an all or nothing basis, giving nothing if the loss of chance is 49%
- Most claims with evenly balanced prospects of success or failure are turned into money by being settled, rather than pursued to an all or nothing trial
- Sometimes it is simply unfair to visit upon the client the same burden of proving the facts in the underlying (lost) claim as part of his claim against the negligent professional and other times it is simply impractical due to the passage of time and lack of evidence
On the facts
- In this case, it was for C to prove that on a balance of probabilities, C would have made a claim if competently advised
- But the claim must be an honest claim and it was open for the judge to hold that C would not have made an honest claim
Commentary
- In Gregg v Scott, Lord Hoffmann explained the exception in Perry and Allied Maples on the ground that actions of third parties are exceptions to the law of causation since humans are individuals with free will, and that the distinction between acts of the claimant himself (which is assessed on balance of probabilities) and third parties is based on policy
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