Edwards v Hugh James Ford Simey (a firm), Court of Appeal - Civil Division, June 06, 2018, [2018] EWCA Civ 1299

Resolution Date:June 06, 2018
Issuing Organization:Civil Division
Actores:Edwards v Hugh James Ford Simey (a firm)
 
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Case No: B2/2016/2258

Neutral Citation Number: [2018] EWCA Civ 1299

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT AT LEEDS

Mr Recorder Miller

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/06/2018

Before :

LORD JUSTICE UNDERHILL

LORD JUSTICE IRWIN

and

LORD JUSTICE SINGH

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Between :

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Richard Copnall (instructed by Mellor Hargreaves Ltd) for the Appellant

Michael Pooles QC and Matthew Jackson (instructed by DAC Beachcroft) for the Respondent

Hearing date: 19 April 2018

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JudgmentLord Justice Irwin :

Introduction

  1. This case concerns the correct approach to the measure of loss in a claim against solicitors whose former client, following the solicitor's negligent advice, abandoned an incremental claim (a ``services award'') under a scheme to compensate former miners suffering from a condition known as vibration white finger [``VWF''].

  2. The original claimant under the scheme and in this claim, Mr Thomas Watkins, died in 2014. The Appellant is his daughter, who continues the claim on behalf of his estate.

    The Scheme

  3. The Department for Trade and Industry [``DTI''], having assumed responsibility for the liabilities of the National Coal Board/British Coal Corporation, set up a compensation scheme in 1999. The scheme provided standardised, tariff-based compensation to former miners suffering from VWF. A claims handling arrangement [``CHA''] was set up in January 1999 and subsequently amended as required. The CHA was an agreement reached between claimants' solicitors and the claims handling organisation, known as IRISC, who acted on behalf of the DTI. References to the CHA and ``the Scheme'', here and in earlier authority, are synonymous.

  4. The operation of the scheme is significant for the case. It was accurately described in the judgment of this court in Perry v Raleys [2017] EWCA Civ 314, in the following terms:

    ``6. So far as relevant to this case, the Scheme operated as follows:

    i) When making a claim, a claimant had to submit a completed questionnaire concerning his work history. IRISC would then allocate him to a particular occupational group, depending on his likely exposure to vibration. Thereafter he would undergo a medical examination in accordance with a defined Medical Assessment Process (``MAP'') by doctors appointed under the Scheme. The examination and the resulting MAP1 report followed a standard format CHA Schedule 4(2) medical report form. The purpose of the examination was to determine whether the claimant suffered from VWF and, if so, to define the severity of the condition by reference to the stagings of a scale referred to as the Stockholm Workshop Scale. A claimant could challenge the findings of the MAP1 report, but there was no provision for IRISC to do so.

    ii) Within 56 days of receipt of the MAP1 report, IRISC was obliged to make an offer of compensation or to reject the claim with reasons. The Scheme provided for compensation to be paid for pain, suffering and loss of amenity (``General Damages''), handicap on the labour market, and other financial losses (``Special Damages'') including past and/or future loss of earnings.

  5. The Scheme was supplemented by a Services Agreement of 9 May 2000, which came to be incorporated in the CHA as Schedule 7(1). It recorded the agreed approach to compensation for services. The respective medical experts of the parties to the Scheme rejected the idea that there should be an individual assessment of each claimant's ability to carry out particular household tasks. Instead, in the interests of consistency and efficiency, they agreed ``that once the condition had reached a certain level(s) causation should be presumed and that a man could no longer carry out certain tasks without assistance'' [emphasis added]. There were for this purpose 6 tasks, identified at paragraph 3.3 of Schedule 7(1) as follows:

    ``34;(a) gardening work, including planting, heavier garden work, grass cutting, pruning etc, summer and winter;

    (b) window cleaning, summer and winter;

    (c) DIY, normal household repairs including changing fuses, plugs, etc;

    (d) decorating, including paper hanging and painting inside and out;

    (e) car washing summer and winter;

    (f) car maintenance, the basis servicing, changing plugs, points, oil, anti-freeze and other similar tasks.''

  6. The procedure for making a services claim under the Services Agreement was as follows:

    ``i) The experts produced a matrix identifying in respect of each staging of 2V and 2Sn [see definitions in paragraph 12 of this judgment] late, or higher, which tasks a claimant would be presumed to require assistance with.

    ii) Once he had a staging of at least 2V or 2Sn late, a claimant was entitled to a services award if he had previously performed one of the identified tasks, but now required assistance to do so as a result of his VWF. A claimant did not have to show that his condition wholly disabled or prevented him from carrying out the relevant task. It was enough that he could no longer carry it out without assistance: see per Tomlinson LJ in Procter v Raleys [2015] EWCA Civ 400; [2015] PNLR 24 at paragraph 11 (iii).

    iii) Factual evidence concerning the services claim would be presented by means of a simple questionnaire. Since it would be impracticable to investigate individual claims in any detail, the Scheme provided that:

    ``broad assumptions will be made about the average assistance that would be required [emphasis added] for the particular task by the individual at the relevant stage''.

    iv) In addition to the claimant, his current or most recent helper(s) would also complete questionnaires.

    v) A claimant would then be sent for a further medical examination (``MAP2''), which was solely concerned to consider whether there were any other conditions which, of themselves, would have prevented the claimant from undertaking the task in question. [emphasis added]

    vi) A claimant was not usually contacted by IRISC concerning his claim, but the helpers would be. This normally consisted of a telephone interview, which might last 15 minutes, during which the helper would be asked whether he/she had assisted with the tasks claimed and, if so, when they started to do so. Even where the helper was out by a few years on dates, the information in the questionnaire would still be accepted.

    vii) On receipt of the questionnaires, IRISC would consider each claim on its merits, adopting a pragmatic approach. If IRISC did not accept the claim entirely, it had to set out in detail the reasons for rejecting the claim in whole or part.

    viii) The compensation was calculated by application of a multiplier/multiplicand approach, and an index-linked tariff was set in respect of each task according to the particular staging.

    ix) IRISC could reject a claim for services in whole or in part if a claimant's work history after leaving the mining industry was such as to indicate that his ability to carry out the relevant tasks was not impaired. However, in order to be entitled to rebut the presumption that a man with a particular claimant's stagings could not carry out the relevant task without assistance, IRISC had to discharge the burden of establishing that the work actually carried out by the claimant was such as to demonstrate that he could not reasonably be expected to carry out all aspects of the task without assistance.

    x) Pending resolution of the services claim, the claimant was entitled to receive an interim payment in respect of his claim for general damages and handicap on the labour market. By February 2001 the size of the interim payment had increased to 92.5% and by 20 November 2002 an agreement had been reached that it would be 100% of the claim.

  7. Unlike ordinary civil litigation, claims under the Scheme were not subject to a particularly robust process of assessment ...''

    Negligence Claims Arising from Claims under the Scheme

  8. A considerable number of claims have arisen against various firms of solicitors, alleging failures of advice and representation to claimants under the scheme. In 2010, HHJ Hawkesworth QC gave directions in relation to the trial of such claims, and in particular in relation to ``a failure to properly advise the claimants in relation to a services award''. In an unreported Ruling on 3 May 2011, the judge stated that ``these claims are for the lost chance to bring a claim under the MAP 2 procedure''. He then proceeded to deal with argument as to the approach in such claims, as follows:

    ``5. The purpose of the hearing ordered on 22nd October was to deal with two issues: the expert medical evidence, its nature and extent, and disclosure. The issue in relation to the medical evidence appeared to be whether, as the claimants contended, its scope and nature should be a replication of the MAP 2 procedure which involved a medical examination by a GP or equivalent or whether, as the defendants contended, there should be a more comprehensive medical examination by a consultant specialist which could revisit the original diagnosis of VWF, as well as address the issue of comorbidity; the latter being the only issue which was required to be addressed under the MAP 2 medical examination.

  9. The argument addressed on behalf of the claimants was, again put very shortly, that because the MAP 2 examination did not revisit or reopen the original diagnosis it would not be appropriate for the medical expert in these proceedings to address that issue. As Mr Kent put the matter in the course of his submissions, it would be akin to reopening liability where a claim for under-settlement was being advanced in a case where the original defendant had either admitted liability or been found liable by the court.

  10. During the course of submissions, however, it became clear that the defendants were not contending for a...

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