| DAMAGES — Solicitors’ negligence — Loss of claim for clinical negligence — Solicitors negligently failing to prosecute action — Action including claim for damages for future loss — Original claimant dying intestate before claim set down — Action compromised — Deceased’s husband claiming damages against solicitors for professional negligence on behalf of deceased’s estate and in personal capacity — Whether loss asserted by estate irrecoverable — Whether solicitors owing duty of care to husband
Whitehead and another v Hibbert Pownall & Newton (a firm); [2008] WLR (D) 96
CA: Laws, Rix and Rimer LJJ: 4 April 2008
Solicitors who had negligently failed to prosecute a claim for damages for clinical negligence, including a claim for future loss, with the result that the claim had not been set down by the date of the original claimant’s death were not liable for failing to secure for the deceased’s estate what, on the full facts, would have amounted a an uncovenanted windfall. The estate, standing in the deceased’s shoes, could not recover sums referable to a period after her death since she would only have been entitled to recover losses incurred or to be incurred in her lifetime.
The Court of Appeal so held, allowing the appeal of the defendant, Hibbert Pownall & Newton (a firm), and dismissing the cross-appeal of the first claimant, Eric Whitehead (on his own behalf and as administrator of the estate of Paula McLeish, decd), from the decision of Griffith Williams J who, on 9 May 2007, had awarded damages to the first claimant in his capacity as administrator, but had dismissed the claim in his personal capacity having found no duty owed by the defendant to the first claimant personally.
The original action, in respect of which the defendants had been retained to act, had been a claim by the deceased mother for damages against a hospital for professional negligence in failing to diagnose spina bifida in her unborn child, the second claimant, David McLeish, thereby depriving her of the opportunity to have the pregnancy terminated. The mother had died nine years after the birth and before her action had been set down for trial. That action had been compromised. The father had then brought an action for damages for professional negligence against the solicitors, both in his capacity as administrator of the mother’s estate and in his personal capacity.
LAWS LJ said that the law entitled the mother, and following her death the estate, to recover damages against the health authority limited to losses incurred in her lifetime. Had she obtained judgment in the first action while she lived, those losses would have been calculated to include future loss. If she had died shortly after obtaining judgment, then the law would not have required her estate to restore any part of the damages to the health authority; but the estate would have had in its hands a sum by way of damages which, given the events which had happened including the death, exceeded the amount which, given the death, the law of damages would have allowed. The solicitors should not be held liable for failure to secure to the estate what on the full facts amounts to an uncovenanted windfall: see Caparo Industries plc v Dickman [1990] 2 AC 605, 627, Dudarec v Andrews [2006] 1 WLR 3002, para 30, and Charles v Hugh James Jones & Jenkins [2000] 1 WLR 1278, 1290. The court in Charles’s case had left open the question what should be done when, after the date of the notional trial, some entirely new event supervened which if taken into account in the later professional negligence claim would have enlarged or lowered the damages in comparison with the award which the judge would have made in the original action. This further question arose in the present case. In His Lordship’s view the defendant solicitors were not to be held liable for failing to secure to the claimant an uncovenanted benefit: one which, upon an appreciation of all the facts, exceeded what the law would allot to him. In deciding what the damages should be in a professional negligence claim such as this, it was important not to take too narrow a view of the guidance afforded by the principle restitutio in integrum so as to leave out of account events relevant to the ascertainment of just compensation, on the ground only that they have happened since the notional original trial and so were by definition unknowable at that time. The law should not speculate when it knows: see Dudarec’s case [2006] 1 WLR 3002, para 50 and Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426, 431.
RIX LJ delivered a judgment concurring in the result.
RIMER LJ delivered a judgment agreeing with Laws LJ.
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