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Under-settlement: first VWF Scheme professional negligence case reported

Former miners who had worked for British Coal were offered a tariff-based government compensation scheme from 1999 if they could show they had developed symptoms of vibration white finger (VWF – now more commonly referred to as hand arm vibration syndrome or HAVS).  The scheme was the result of extensive negotiations between ex-miners’ representatives (principally claimant solicitors’ firms) and the DTI, which took over responsibility for British Coal’s liabilities. 


However, the first of many professional negligence claims by disgruntled claimants against the solicitors’ firms who acted for them has just been reported.  The claimant had received compensation under the scheme from a settlement agreed in 2002 when Raleys Solicitors were acting for him.  The settlement followed a medical assessment under the scheme and included sums (according to severity of symptoms, as per the tariff) for general damages and handicap on the labour market.  But a third head of loss for “services” – relating to tasks of gardening, DIY, decorating etc – was abandoned to achieve a quick settlement to allow the claimant to pay for a wedding anniversary holiday as a surprise for his wife.

The claimant subsequently sued Raleys for the loss of the chance to recover the services aspect which he says he should have been advised to pursue, albeit at the cost of delaying the final overall settlement.  The defendant firm argued that, as a matter of causation, he would have failed in that aspect of his claim if it had been pursued in 2002.  The defendant argued at trial that its former client in fact never had been suffering from VWF, that he had presented an untrue claim and that more recent evidence – including his dismal performance in the witness box – showed this. 

But the Judge said: “This claim is not a re-run of the original claim although it appears the Defendants would like it to be.  He agreed that the claimant was a very unimpressive witness and a poor historian.  However, the point was that the government compensation scheme was not rigorous and the claimant had passed the first medical assessment under it in 2000 to show some level of VWF.  The scheme was designed to process huge volumes of these claims quickly and cheaply, and the price which the government paid was that the claims were not scrutinized carefully, so the claimant would have had a good chance of succeeding if a services claim had been pursued.  The Judge assessed this chance at 75% and held that the firm should have advised the claimant to delay the overall settlement to pursue the services claim.  He could still have had his surprise holiday, as the scheme provided for a substantial interim payment (which the claimant was not advised).  So in the professional negligence claim the claimant was awarded 75% of the sum he would have been granted under the scheme if his services claim had succeeded. 

This is encouraging news for claimants in the increasing number of professional negligence under-settlement cases being brought following historic personal injury claims of one sort or another.  But the crucial point is to distinguish between:

(1)  evidence available at the time of the underlying events, and seeing what would have happened at that time; and

(2)  evidence which has subsequently come to light.

The more recent evidence may be illuminating (and has its uses) but it cannot be taken as a reliable guide to how things would have panned out historically.

See: Barnaby v Raleys Solicitors [2013] EW Misc 9 (CC), decision of HHJ Gosnell in Leeds County Court – with leading and junior counsel on each side.

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