Mr Hanbury had worked as an insulation engineer for many years. He became unwell in late 2009 and sadly died shortly afterwards in January 2010. The inquest into his death concluded it was a result of industrial disease ( mesothelioma) and his family instructed Hugh James solicitors to pursue a civil claim against his various previous employers, providing them with Mr Hanbury's post mortem report. Despite the original solicitor at Hugh James commenting that the report was "unusually strong" in confirming the levels of asbestos in his lungs, when a later solicitor instructed a medical expert the report was not provided and the expert concluded there was insufficient evidence to show that Mr Hanbury's cancer was due to asbestos exposure. On that basis Hugh James advised his family to abandon the claim, which they did.
This professional negligence claim was brought against Hugh James on discovery of the error. Hugh James eventually conceded that they had been in breach of duty for failing to provide the report or notice that the expert had not considered it but still contended that the underlying claim would have had minimal prospects of success.
Mrs Justice Yip DBE (hearing the matter in the High Court at the RCJ) reviewed the parties' positions and ultimately rejected Hugh James' approach to causation and its quantification of damages. The Court's role was to assess the opportunity lost by the Claimant and, without running a full trial of the original litigation, decide on the likelihood of a successful outcome of that claim.
Hugh James tried to prove that the Claimant would have had to overcome significant obstacles in order to progress the Claimant's personal injury claim. The Court held that if there had been a favourable medical expert report in the first instance, Hugh James would have continued with the claim and even if they would not have done, which was their original contention, other solicitors would have taken it on on a no win no fee basis and been able to obtain appropriate insurance.
There were then further arguments as to whether the claim could have been continued due to uncertainties about where the majority of asbestos exposure occurred amongst Mr Hanbury's multiple previous employers (there were eight proposed Defendants in the underlying action). The risk lay in being able to conclude that at least one of the companies still in existence or which had insurance was responsible so that a recovery was guaranteed. The Court concluded that Counsel was likely to have recommended issuing proceedings and that, whilst not conclusive, the contemporaneous correspondence indicated that the potential employers were considering appropriate apportionment levels between them so would very likely have settled without progressing the claim to trial.
Mrs Justice Yip noted that the correct approach to assessing quantum was to value the claim in full and then apply appropriate discounts based on prospects (noting instead that Hugh James had effectively attempted to apply multiple discounts for the same risk). The total damages claim of £217,256 was reduced by 20% for contributory negligence (Mr Hanbury had been a moderate smoker), 25% for the apportionment risk between employers (discussed above) and a further 20% for the likely figure to be achieved via settlement ie a Claimant will usually discount its claim for settlement (considering the approach adopted at para 85 in Harrison v Bloom Camillin  P.N.L.R.), leaving £104,283 as the damages award for the Claimant's Estate.
The decision provides useful guidance as to how the Court will approach various stages of assessing prospects of a loss of chance claim and how quantum will be calculated, applying percentage reductions to the full value of the underlying claim. The obvious takeaways for insured practitioners are to ensure that experts are provided with all appropriate documentation. Where the breach of duty is established it may be beneficial to adopt a not unrealistic position as to what would have ensued. In this case poor evidence from the Defendant clearly did not impress the Judge although several reductions were made based on the uncertainties Hugh James had raised. Of particular note is the final reduction where it is taken into account that claimants will accept a slightly lower value settlement to avoid trial, a reduction which it appears Hugh James had not actually raised but was introduced by the Judge. This is a useful point to note for reducing insurers' outlay in loss of chance claims if it is likely that breach of duty will be established.
For more information please contact Luke Peddar-Adams, Solictor on 0161 604 1924 or email firstname.lastname@example.org.