Loss of Chance claims and the admissibility of “new” evidence

19 February 2020

The Supreme Court case of Edwards (on behalf of the estate of the late Thomas Arthur Watkins) v Hugh James Ford Simey (A Firm) [2019] UKSC 54 provides useful insight in professional negligence cases as to how the Courts approach the relevance of “new” evidence i.e. evidence which was not available at the time of the underlying matter, in loss of chance cases.


Mr Thomas Arthur Watkins was employed by the National Coal Board (later British Coal Corporation) and as a result of using vibratory tools he developed Vibration White Finger (“VWF”).

In 1999, a scheme was set up by the Department for Trade and Industry in order to compensate miners who suffered from VWF (the “DTI Scheme”). Mr Watkin’s instructed Hugh James Ford Simey (the “Appellant”) to assist him with his claim for compensation under the DTI Scheme.

The DTI Scheme used a staging system in order to determine the level of award a claimant was entitled to and this consisted of two main types of compensatory award:

  1. General damages for pain and suffering and loss of amenity; and
  2. Special damages for handicap on the labour market and other financial losses, including past and/or future loss of earnings. This also included a services award for qualifying Claimants who required assistance in performing domestic tasks such as car washing, car maintenance, gardening, DIY and decorating.

Mr Watkins was made an offer of £9,478 under the DTI Scheme for general damages, but this did not include any allowances for a services award. On advice from the Appellant Mr Watkins accepted the offer in full and final settlement of his VWF Claim against British Coal.

The claim

Mr Watkins issued a claim against the Appellant in August 2010 on the basis that as a result of its negligence he had lost the opportunity to bring a services claim under the DTI Scheme or otherwise and so had settled his claim at an undervalue. The lost opportunity was quantified at £6,126.22 plus interest.

Numerous other claims were brought against solicitors arising out of the DTI Scheme. Following a direction on six test cases which also applied to all other prospective and existing claims (including Mr Watkins), Mr Watkins and the Appellant obtained a report from a single joint expert who was asked to comment on whether Mr Watkins was unable to carry out the relevant tasks without assistance, which would have formed the basis of a services claim, and if he was suffering from any co-morbid medical conditions which would have affected his ability to carry out those tasks without assistance. The result of the report was that Mr Watkins’ VWF diagnosis/staging was much lower than was previously found when he accepted the settlement offer.

At first instance, the Court found that although the Appellant had been negligent, in light of the new expert’s evidence, Mr Watkins had in fact suffered no loss and any award would have fallen short of the £9,478 which Mr Watkins had already received under the settlement. The claim was therefore dismissed. Mr Watkins appealed to the Court of Appeal.

The Court of Appeal held that the trial judge had been wrong to conduct a trial within a trial to determine the value of Mr Watkins’ claim and that he had been wrong to rely on evidence from a new expert since that evidence would not have been available at the time the DTI Scheme was in place.  Accordingly, the trial judge’s decision was reversed.

Supreme Court

Permission to appeal to the Supreme Court was limited to the question of whether the new expert report could be used in the professional negligence claim or whether the case had to be decided on the basis of information and facts as they were when the underlying claim was undervalued.

In a unanimous decision, the Supreme Court dismissed the appeal.

As part of the appeal, the parties were asked to consider the principle in Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426 (“the Bwllfa principle”), which set out the principle that “with the light before him, why should he shut his eyes and grope in the dark?.” In essence this is the principle that when the Court assessing damages has knowledge of what actually happened it should not speculate about what might have happened.

The Appellant argued that the Bwllfa principle entitled the trial judge to rely on the expert report when considering whether Mr Watkins had suffered any loss as a result of the Appellant's negligence. The Supreme Court disagreed and confirmed that:

  • Had Mr Watkins pursued a services award under the DTI Scheme, he would not have gone through a reassessment of his diagnosis or staging (as he had to do with the new expert) and there would have been no deduction of the general damages award he received.
  • The trial judge had erred in taking the new expert’s examination and report into account when concluding that the lost claim was of no value.
  • Mr Watkin’s original claim was made within the DTI Scheme; it was not a conventional civil claim and recoverability under the DTI Scheme did not rely on entitlement at common law


It is clear that the Supreme Court’s decision is specific to the facts of this case, in particular given that Mr Watkins’ claim was made under the DTI scheme.

However, this decision shows that the court is unlikely to accept subsequently obtained evidence which would not have been available at the time of the underlying claim when determining what could have happened “but for” the negligence. This is potentially helpful to Claimants particularly if this principle is applied widely by the Courts.

Further information

For further information, please contact Jemma Brimblecombe or any member of the Professional Negligence team.

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