Perry (Respondent) v Raleys Solicitors (Appellant)

Cite as:[2019] UKSC 5
Hand-down Date:February 13, 2019
 
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Hilary Term [2019] UKSC 5 On appeal from: [2017] EWCA Civ 314

JUDGMENT

Perry (Respondent) v Raleys Solicitors (Appellant) before

Lady Hale, President Lord Wilson

Lord Hodge Lord Lloyd-Jones Lord Briggs JUDGMENT GIVEN ON 13 February 2019 Heard on 27 November 2018 Appellant Respondent Michael Pooles QC

Jonathan Watt-Pringle QC John Greenbourne (Instructed by Fry Law) Ben Quiney QC

(Instructed by Berrymans Lace Mawer LLP

(Manchester))

LORD BRIGGS: (with whom Lady Hale, Lord Wilson, Lord Hodge and Lord Lloyd-Jones agree)

Introduction

  1. The respondent Mr Frank Perry is a retired miner. Like very many of his colleagues he had, by the time he ceased working underground in 1994, been afflicted with a condition known as Vibration White Finger ("VWF") , which is a particular type of a wider species of condition affecting the hand and the upper limbs collectively known as Hand-Arm Vibration Syndrome ("HAVS"), caused by excessive exposure to the effects of using vibratory tools. One symptom of these conditions can be a reduction in grip strength and manual dexterity in the fingers. A common although not invariable consequence is that the sufferer from these conditions becomes unable, without assistance, to carry out routine domestic tasks such as gardening, DIY or car maintenance.

  2. A group of test cases, representative of some 25,000 similar claims, established that there had been negligence on the part of the National Coal Board, later British Coal, in failing to take reasonable steps to limit the exposure of employed miners to VWF from the excessive use of vibratory tools: see Armstrong v British Coal Corpn [1998] EWCA Civ1359 [1998] CLY 975. As a result, the Department for Trade and Industry (which had by then assumed responsibility for British Coal's relevant liabilities) set up a scheme ("the Scheme") in 1999 to provide tariff-based compensation to miners who had been exposed to excessive vibration and had therefore suffered from VWF. The Scheme was administered pursuant to a Claims Handling Arrangement ("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, having a common originating cause in British Coal's systemic negligence, to be presented, examined and resolved both effectively and at proportionate cost.

  3. 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. Pursuant to a Services Agreement dated 9 May 2000, the special damages could include a Services Award to qualifying miners. This depended upon the claimant establishing what has come to be known as "the factual matrix", namely:

    i) That before he developed VWF he undertook one or more of six routine domestic tasks ("the six tasks"), without assistance;

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    ii) That he could no longer undertake those tasks without assistance by reason of his VWF; and iii) That he had received the necessary assistance with those tasks from others.

    The six tasks may be summarised as:

    1) Gardening

    2) Window cleaning

    3) DIY

    4) Decorating

    5) Car washing

    6) Car maintenance

  4. Qualification for a general damages award required the claimant miner to undertake a medical interview and examination designed to establish, against an internationally recognised scale, the severity of his VWF. Those shown to be sufferers at certain high levels of severity were then also entitled to a rebuttable presumption, in their favour, that they satisfied the qualifying requirements for a Services Award, but they were required nonetheless to demonstrate, by completion of a standard form questionnaire, which of the six tasks they had undertaken without assistance before developing the VWF, and which of the tasks they were no longer able to undertake without assistance. The Scheme provided for a relatively lighttouch system of checking claims for Services Awards by the claims handlers, which included questionnaires to be filled in by those assisting the claimant in performing the six tasks and short telephone interviews, usually with one or more of the assistants, rather than with the claimant himself. Compensation was then payable to qualifying claimants in accordance with a detailed index-linked tariff.

  5. Proportionate deductions from the tariff amounts were also liable to be made if the claimant's reduced ability to perform the six tasks unaided was caused in part by other contributory medical conditions. For this purpose, claimants were required

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    to undertake a further medical examination for the purpose of the assessment of comorbidity, as it was described. Again, the amount of the reductions (if any) from the full Services Award was determined in accordance with a tariff based upon the medical examiner's certification of relevant co-morbid conditions on a scale ranging between nil, material, moderate, serious and complete.

    Mr Perry's claim

  6. Mr Perry retained the appellant solicitors firm Raleys to pursue a VWF claim on his behalf in October 1996, before the setting up of the Scheme. Following the making of the CHA, his claim continued under the Scheme. In October 1997 Professor Kester reported, after an interview and examination of Mr Perry, that he suffered from VWF, with ratings (or "stagings" in the jargon of the Scheme) of "3V" and "3Sn" bilaterally (that is, in both hands). Those stagings were sufficient both for Mr Perry to obtain general damages and to have entitled him to a presumption in his favour, of the type described above, in the event that he chose to seek a Services Award.

  7. In the event however, Mr Perry settled his claim in November 1999 for payment of general damages only, in the sum of £11,600, and made no claim for a Services Award within the available time-frame. Much later, in February 2009, he issued professional negligence proceedings against Raleys, claiming that by reason of their negligent failure to give him appropriate advice, he had lost the opportunity to claim a Services Award, in respect of all of the six tasks, which he quantified in the sum of £17,300.17 plus interest. He asserted that he had performed all the six tasks without assistance before developing VWF, and that he had needed assistance with all those tasks thereafter, which had been provided by his two sons and his wife.

  8. In response, Raleys denied a breach of duty and separately denied that any breach (if proved) would have caused Mr Perry any loss. They alleged also that Mr Perry's claim against them was statute barred. Breach of duty was admitted shortly before the trial. The trial judge, Judge Saffman, rejected the limitation defence on its merits.

  9. After a two-day trial, which included cross-examination of Mr Perry, his wife and his two sons, the judge concluded that Mr Perry had failed to prove that Raleys' admitted negligent advice had caused him any loss. This was because, in summary, the judge found that the VWF from which Mr Perry was suffering when he settled his claim had not caused him any significant disability in performing any of the six tasks without assistance, sufficient to have enabled him to make an honest claim for a Services Award. He therefore dismissed Mr Perry's claim with costs.

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  10. In his detailed and lucid reserved judgment (circulated to the parties within ten days of the trial) Judge Saffman explained that it was Mr Perry's complete lack of credibility as a witness that had led to his finding that he would not have been able to make an honest claim for a Services Award. His evidence that he was unable to perform the six domestic tasks without assistance was undermined by his medical records, which showed that he had made no complaint of lack of manual dexterity at the relevant time, by evidence (including photographs) of him engaging in fishing at a time when he said he had given it up due to his manual disability, and by his failure to offer any credible explanation of those disparities between his case and that evidence, when cross-examined about them at length. The judge found that the evidence from his family lacked sufficient credibility to rescue Mr Perry from his difficulties, and that the medical evidence, while supportive of his case, was insufficient to swing the balance in Mr Perry's favour.

  11. The judge nonetheless thought it appropriate to assist by setting out the findings which he would have made as to the quantum of Mr Perry's claim, if he had been wrong in rejecting his case on causation. He did so, no doubt, with a view to minimising the risk that an expensive re-trial would be necessary if an appellate court concluded that causation had been established. A main plank in Raleys' defence had been that, even if Mr Perry was to a significant extent incapacitated in performing the six domestic tasks without assistance at the relevant time, this was the result of a chronic back problem, rather than VWF. A single joint medical expert, Mr Tennant, had advised that in his view the contribution made to Mr Perry's relevant disability by back troubles lay between moderate and mild, on the comorbidity scale adopted by the Scheme. On the assumption that he had been wrong in his primary finding that Mr Perry was not hindered by VWF in performing the six tasks unaided, he held that he would not depart from Mr Tennant's co-morbidity assessment. Finally, and again on the same assumption that he had been wrong about causation, the judge assessed the prospects of success in a Services Award claim, after being discounted by co-morbidity in accordance with the Scheme's tariff, at 80%.

  12. On Mr Perry's appeal the Court of Appeal reversed the trial judge on causation, and concluded that his alternative findings as to quantum were sufficiently reliable to make it unnecessary to direct a...

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