Edwards on behalf of estate of late Thomas Arthur Watkins (Respondent) v. Hugh James Ford Simey Solicitors (Appellant) - (20 Nov 2019)

In order to succeed in tort of negligence, it is essential to establish a negligent breach of duty, causation and loss

Civil

In facts of present case, Mr. Thomas Arthur Watkins lived near Tredegar in South Wales. He was employed by the National Coal Board (later British Coal Corporation) (“British Coal”) as a miner from 1964 until 1985. In that employment, he was required to use vibratory tools and as a result of such exposure, in common with very many other miners, Mr Watkins developed Vibration White Finger (“VWF”) which is a form of Hand/Arm Vibration Syndrome (“HAVS”).

The Department for Trade and Industry (“DTI”), which had assumed responsibility for British Coal’s relevant liabilities, set up a scheme in 1999 to provide tariff-based compensation to miners who suffered from VWF as a result of exposure to excessive vibration (“the Scheme”). The Scheme was administered pursuant to a Claims Handling Arrangement (“the CHA”) dated 22 January 1999 and made between the DTI and a group of solicitors’ firms representing claimant miners suffering from VWF. The central objective of the CHA was to enable very large numbers of similar claims to be presented, examined and resolved expeditiously. The Scheme contemplated the making of two main types of compensatory award to miners suffering from VWF, corresponding broadly with general and special damages for personal injuries.

In order to succeed in negligence against Mr Watkins’ former solicitors his estate had to establish a negligent breach of duty, causation and loss. A negligent breach of duty was found by the judge, on the basis that the Appellant’s letter of 18 February 2003 was misleading and deficient in a number of respects and those features were not corrected in the subsequent conversation between Mr Watkins and Mrs Kinsey on 23 February 2003. There has been no appeal against that conclusion. In addition, the judge made a finding that, had Mr Watkins received non-negligent advice, he would have pursued an honest services claim. That claim had already been notified and supporting statements provided. There has been no appeal against that conclusion.

For the claim by Mr Watkins’s estate to succeed, however, it is also necessary to prove loss. There is a legal burden on the estate to prove that, in losing the opportunity to pursue the claim Mr Watkins has lost something of value ie that his claim had a real and substantial rather than merely a negligible prospect of success. It is only if the estate can establish that Mr Watkins’s chances of success in pursuing his service claim were more than negligible that, it is appropriate to go on to evaluate those chances on a loss of chance basis by making a realistic assessment of what would have happened had the original claim been pursued.

It is important not to lose sight of the fact that, Mr Watkins’s original claim was a claim within the Scheme and not one made in the course of conventional civil litigation. It is necessary to consider whether Mr Watkins’s original claim, which was accepted by the judge to be an honest claim, was of more than negligible value within the context of the Scheme.

The Recorder erred in concluding that, Mr Watkins’s services claim could and would have been resolved only in one specific way had Mr Tennant’s report, or its equivalent, been available to IRISC and in concluding that the claim had been shown to have no value given the award already paid. On the contrary, Mr Watkins had lost a claim under the Scheme of some value and the Recorder should have proceeded to assess its value on a loss of opportunity basis. The matter remitted for assessment of the value of the loss of the opportunity to pursue the services claim. Appeal dismissed.

Tags : SCHEME BENEFITS APPLICABILITY