Dudarec v Andrews & Ors

In a professional negligence claim for the loss of an admitted-liability personal injury action, the court ordinarily assesses on the balance of probabilities the damages which the original court would have awarded. It should not discount individual heads of damage merely because the notional judge might have evaluated substantially the same evidence differently.

Evidence subsequently establishing facts which were ascertainable at the notional trial should be given full effect. Hindsight should replace speculation where it permits a more accurate assessment of the claimant’s actual loss. The treatment of wholly new and previously unknowable matters remains fact-sensitive.

The claimant was injured in a road traffic accident in 1982. Liability was admitted, but his solicitors allowed the personal injury proceedings to be struck out for want of prosecution in 1996. He subsequently sued those solicitors, who admitted liability, for the value of the damages thereby lost.

For many years medical advisers believed that the claimant had a traumatic carotid aneurysm which restricted his work and might require surgery. A scan obtained in 2004 established that he had no aneurysm and needed no operation. Simon J tried a preliminary issue concerning mitigation and discounted the lost earnings claim by 40% to reflect the chance that the claimant’s refusal of surgery would have been held unreasonable at a notional trial in 1996.

The appeal concerned the proper assessment of a lost chance where liability in the original action was certain, the use of subsequently obtained medical evidence, and whether any mitigation discount was permissible.

1. Appeal allowed. The preliminary issue was unsuitable because mitigation could not satisfactorily be separated from the other matters affecting the assessment of lost earnings in a loss-of-chance claim. Simon J’s broad discount left unresolved whether it applied to past or future earnings and risked producing an unfair result.

2. Where the claimant had a 100% chance of establishing liability against the original tortfeasor, the court ordinarily had to determine on the balance of probabilities the damages which would have been awarded at the notional trial. Per Sedley LJ and Smith LJ, it was generally impermissible to discount a head of damage merely because the notional judge might have reached a different conclusion on substantially the same evidence. A separate assessment of chances might nevertheless be necessary where significant evidential gaps prevented the actual court from determining a quantum issue directly.

3. The medical evidence obtained in 2004 was capable of being available at the notional trial in 1996 and had to be given full effect. The approach in Charles v Hugh James Jones & Jenkins [2000] 1 WLR 1278 was applied. Courts should use subsequently available facts to obtain a more accurate assessment rather than speculate about matters which have become known. The position concerning entirely new matters which were both unknown and unknowable at the notional trial did not require determination.

4. The accurate medical evidence showed that the claimant had needed no surgery. His refusal of an operation was reasonable. The negligent solicitors could not rely on their own failure to bring the original action to trial to accelerate the date on which the claimant should be treated as knowing his true condition.

5. The 40% discount was set aside. For earnings between 1982 and August 2004, the claimant was to be treated, for causation purposes, as having the diagnosed aneurysm and no deduction was to be made for failure to mitigate by refusing surgery. From August 2004 the supposed aneurysm could not support a claim for continuing loss of earnings, although loss attributable to other injuries or consequences remained open for determination at the damages assessment.

1. Court of Appeal (Civil Division): The appeal was allowed. The 40% discount was set aside and replaced by a direction that no mitigation deduction concerning surgery should be made from earnings loss between 1982 and August 2004.

2. Queen’s Bench Division: Simon J determined a preliminary issue on 15 February 2005 and applied a 40% discount to the claimant’s loss of earnings to reflect the chance that his refusal of surgery would have been held unreasonable.