The Supreme Court held that a miner who accepted a settlement of his vibration white finger claim on negligent advice had lost a services claim of some value under the special compensation scheme. Later medical evidence of a milder condition was irrelevant, because the scheme would not have reopened the original staging. The solicitors’ appeal was dismissed and the case remitted for the lost chance to be valued.
Mr Thomas Arthur Watkins worked as a miner for British Coal from 1964 until 1985. Exposure to vibratory tools caused vibration white finger (VWF), a form of hand-arm vibration syndrome. After representative litigation established British Coal’s negligence, the Department of Trade and Industry created a 1999 scheme to resolve very large numbers of similar claims quickly and at modest cost. Awards were tariff-based. They covered pain, suffering and loss of amenity, and could also include a services award for help with specified tasks such as gardening, decorating, car washing and car maintenance.
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A claimant completed a work-history questionnaire and underwent a Medical Assessment Process 1 examination. The resulting staging on the Stockholm Workshop Scale determined general damages. A staging of at least 2V or 2Sn late also created a presumption that assistance was needed with identified tasks. The claimant did not have to prove total inability to perform a task. A later MAP 2 examination was confined to co-morbidity: whether some other condition would itself have prevented the tasks, and to what degree. The claims handlers could not challenge or reopen the MAP 1 diagnosis and staging, and the scheme did not provide for a fresh assessment of the underlying disability.
Settlement of Mr Watkins’s claim
In February 1999 Mr Watkins instructed Hugh James Ford Simey Solicitors. His MAP 1 report of 3 February 2000 recorded 3V and 3Sn bilaterally. Under the scheme that staging produced general damages of £9,478 and a presumption in favour of a services award. He and his helpers submitted services questionnaires. After the claims handlers’ initial rejection of the whole claim was successfully challenged, they offered £9,478 in February 2003 in full and final settlement, with nothing for services. Mrs Kinsey of the firm reported the offer and explained what pursuing special damages would involve. On 23 February 2003 Mr Watkins said that he did not wish to continue with special damages because other conditions and operations prevented him from carrying out certain tasks. He accepted the offer, and the firm confirmed acceptance in full and final settlement.
The claim against the solicitors
In 2010 Mr Watkins sued the solicitors. The amended claim alleged that negligent advice had lost him the chance to pursue a services claim, put at £6,126.22 plus interest. He died in January 2014, and his daughter, Mrs Jean Edwards, continued the action for the estate. A single joint expert, the vascular surgeon Mr Tennant, was instructed in the professional-negligence proceedings. Unlike a MAP 2 examination, he was told not to apply the scheme’s presumption. In May 2013 he graded Mr Watkins only 1V and 1Sn, a level he would not expect to cause disability in the relevant tasks, although he also addressed co-morbidity by starting from the original 3V, 3Sn staging.
Mr Recorder Miller found that the claim in negligence was not time-barred, that the letter of 18 February 2003 was negligent, and that appropriate advice would probably have led Mr Watkins to reject the offer and pursue an honest services claim. Those findings were not appealed. The Recorder nevertheless dismissed the claim. Relying on Mr Tennant, he held that the lost claim had no value: faced with those findings, any award would have fallen short of the £9,478 already paid. The Court of Appeal allowed the estate’s appeal, holding that the Recorder should not have determined the value of a scheme claim by after-acquired evidence that the scheme would not have produced.
Why the later report did not remove the loss
Lord Lloyd-Jones, with whom Lady Hale, Lord Reed, Lord Sales and Lord Thomas agreed, dismissed the solicitors’ further appeal. To succeed, the estate had to prove that the lost opportunity was of real and substantial, not merely negligible, value. Only then would its value fall to be assessed as a loss of a chance. The argument concentrated on whether later evidence could be used when valuing the original claim, including the principle that a court which knows what has happened should not speculate. The court concluded that that principle was not relevant on these facts, and that it was unnecessary to decide the wider admissibility questions, because Mr Tennant’s report was not relevant to loss at all.
The lost claim was a claim inside the scheme, not an ordinary personal-injury action. The scheme deliberately used broad presumptions drawn from the MAP 1 staging rather than an individual assessment of disability. There was no mechanism for reopening that staging or reducing the general award, and MAP 2 was limited to co-morbidity. Had the services claim continued, there would have been no examination equivalent to Mr Tennant’s and no departure from Dr Chadha’s staging. Mr Tennant’s opinion might have borne on whether Mr Watkins would honestly have pursued the claim, but the Recorder had already found that he would have done so, and that finding stood. Using the report to reconstruct a different medical result therefore altered the counterfactual in a way the scheme’s own terms did not justify.
The same report, when it applied the scheme’s approach, did not show a worthless claim. Starting from 3V and 3Sn, Mr Tennant assessed disability as complete for the five relevant activities, with co-morbidity from arthritic knees rated moderate except for gardening, where it was severe. Lord Lloyd-Jones therefore could not accept that the services claim had no chance of success. Any services payment would have been a consequence of how the scheme was designed to work, not an uncovenanted windfall to be stripped out by evidence the scheme would never have obtained. The Recorder should have gone on to value the lost opportunity.
Verdict: The Court unanimously dismissed the solicitors’ appeal. The lost opportunity to pursue a services award had value, which still had to be assessed. The Supreme Court did not fix the amount of damages.
