Where damages in a professional negligence claim are based on what would have been awarded at an earlier notional trial, questions can arise as to whether information which subsequently becomes known should be taken into account. The recent Court of Appeal decision in Hibbert Pownall Newton (HPN) v Whitehead & McLeish provides guidance. The court also considered whether a duty of care was owed by solicitors to a third party who had not retained the firm.
Paula McLeish gave birth in August 1986 to a son, David, who suffers from spina bifida. She brought a claim against the Health Authority for failing to diagnose the risks. Proceedings were issued in 1989, but in March 1995, when the action had still not been set down for trial, Paula committed suicide. The health authority, who had been responsible for some delay, agreed to an adjournment sine die. Eventually, the father, Eric Whitehead, was substituted as administrator of Paula’s estate and continued the action on behalf of her estate. However, following Paula’s suicide, the future costs of caring for David were no longer losses which Paula would incur, and which the estate could recover from the Health Authority; thus the value of Paula’s claim had been significantly curtailed. In January 1999, a settlement was reached, at a level of £20,000 plus costs.
