Solicitor negligence claims: Loss of Chance
We deal with all different types of negligence claims against all different types of professionals. You may have heard a certain type of negligence claim referred to as a claim for ‘loss of chance.’
This type of negligence claim can arise in many situations; a solicitor failing to carry out certain searches with your purchase of a development plot, and then you later discover something that prevents you from developing the land – therefore you have lost the chance to develop the plot as intended. A veterinary surgeon fails to perform a C-section on your show dog in time, causing the death of the dog and puppies - you have lost your beloved pet and the chance to sell their puppies. A solicitor fails to recognise an additional potential claim within your action but the limitation period has passed by the time you realise - you have lost the chance to bring that part of the claim.
What is Loss of Chance?
Basically, a ‘loss of chance’ claim arises where you have lost the chance to receive something that you otherwise could have, as a result of the professionals negligent conduct.
The courts have imposed a threshold which they must apply to any claim for loss of chance, before they are able to make a finding that a Claimant did in fact lose out on what they are claiming they have. The Court of Appeal decided in Browning v Bachers [2004] and Feakins v Burstow [2006], that the Claimant must show that, at trial “he had a real and substantial rather than a negligible chance of success“. The courts have viewed “negligible” to mean less than a 10% chance.
This principle was applied in the more recent case of Boyle v Thompsons Solicitors [2012]. The case related to a Claimants claim to the Criminal Injuries Compensation Authority (CICA) following a vicious assault by her former partner.
The CICA made a final award in the sum of £5,150. The Claimant then instructed a solicitor to lodge an appeal on her behalf. The principal issue was the extent to which her Post Traumatic Stress Disorder (“PTSD”) was permanent meaning that she could never work again, and whether the PTSD was caused solely by the assault.
The material in front of the CICA appeal panel included reports from the Claimant’s treating psychiatrist, Dr Tomkinson, which stated that the PTSD was both permanent and the direct result of the assault, and reports from the expert psychologist, Mrs Alison MacLaren, which suggested that the PTSD was not permanent and could not be solely attributed to the assault.
The Claimants appeal was rejected and a week later, the Claimant alleged negligence against the solicitors.
Was there solicitor negligence?
The Claimant alleged that the conflict in the evidence should have been resolved by her solicitor prior to the appeal hearing. She claimed that, but for the Defendant’s negligence, the expert evidence adduced on her behalf at that hearing would have been considerably stronger.
In consequence, she claimed that her prospects of successfully recovering considerably larger sums by way of loss of earnings would have been increased, and that she has suffered a significant loss of a chance.
The court decided that the existence of a later and more favourable report from the psychologist would have had either no effect on the Claimant’s prospects of persuading the Panel that the PTSD was solely due to the assault, or a negligible effect (ie not greater than 10%). They concluded that In the circumstances, even if the solicitor ought to have gone back to the experts for further reports, this would have had no effect on the outcome of the Claimants appeal. Thus the Claimant’s claim for a negligence claim for loss of chance failed.
At Redress Law we have extensive knowledge and experience in dealing with loss of chance claims. We are able to accurately apply the courts approach in these types of claims, providing an early assessment of the case and importantly providing our assessment as to whether the original claim had more than a 10% chance of succeeding. Find out more about solicitor negligence.
