CA rejects limitation defence to negligence claim against law firm

Thirlwall: No reason for client to think he may have been wrongly advised

A man who learnt that his lower leg needed amputating seven years after settling his personal injury claim is not prevented by limitation from suing his lawyers for negligence, the Court of Appeal has ruled.

Upholding the decision of Mr Justice Bourne, the court said that even when he received the later diagnosis, Lee Witcomb had no reason to think that he might have been wrongly advised by his lawyers about the nature of the settlement.

“He believed, as a result of what he had been told, that only a lump sum in full and final settlement was possible,” said Lady Justice Thirlwall, giving the unanimous decision of the court. He was not advised about the possibility of provisional damages.

Mr Witcomb, 17 at the time, was injured in a road traffic accident in 2002 caused by the admitted negligence of the other driver. He broke various bones in his leg and foot, and underwent a number of operations.

He settled in December 2009 for £150,000, despite being warned of the risk of under-settlement if is condition later worsened. The possibility of amputation was not mentioned.

He was advised that, other than a trial, a lump sum payment in full and final settlement was the only option available to him. A report from a plastic surgeon was not obtained, notwithstanding advice from a medical expert that such a report was needed.

His condition deteriorated markedly and much more quickly than had been anticipated. In January 2017, a plastic surgeon told him he needed a below-knee amputation of the right leg. It took place in July 2017.

He contacted the defendant and asked whether the claim could be reopened. He was told it could not. He took further legal advice and began proceedings in December 2019 against his solicitors, J Keith Park, based in St Helens, and barrister Peter Gregory, now a circuit judge.

Mr Gregory’s appeal against Bourne J’s decision was compromised immediately before the appeal hearing on undisclosed grounds.

Thirlwall LJ rejected the law firm’s first argument that Mr Witcomb acquired the knowledge required to bring the action when his claim settled in 2009.

This “conflates the risk of under-settlement… of which the claimant was aware, and the certainty of under-settlement as a result of the absence of a claim for provisional damages of which he was unaware,” she said.

“That the claimant knew he was at risk of under-settlement if his injuries were significantly worse than predicted and that he did not know how bad the deterioration would be is nothing to the point.”

She dismissed too the submission that Mr Witcomb should have sought a second legal opinion. He had no reason to do so and there was no reason to expect him to do so, either.

The judge went on: “To require a litigant who has received advice from competent and experienced solicitors and counsel to incur the expense, delay and disruption of a second/third opinion in case the opinions of both solicitor and counsel (which he has no reason to doubt) were flawed would seriously undermine the effective running of personal injury litigation.”

The defendant’s second ground was that Bourne J should have concluded that Mr Witcomb acquired the knowledge required for bringing the action by mid-2016, or late 2016 at latest, when it was obvious that his injuries were much more serious than had been expected, rather than the date in January 2017 when he was first told about amputation. This would mean the action was still out of time.

Thirlwall LJ rejected this too: “The fact that the claimant’s condition worsened significantly and sooner than expected might have made him think that his medical experts had got things wrong, but it did not.

“There was no reason in 2016, any more than there was in 2009, for him to think that he might have been wrongly advised by his lawyers about the nature of the settlement. There was nothing intrinsic to his situation to alert him to the fact that he had received flawed advice…

“He believed, as a result of what he had been told, that only a lump sum in full and final settlement was possible.”

The court dismissed the law firm’s appeal.

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