Personal injury law

By Simon Allen, Russell, Jones & Walker, Sheffield

Infant settlements in negligenceGriffin v Kingsmill, (2001) Court of Appeal, Lords Justice Stuart Smith, Kay and Schiemann, 8 June The Appeal Court found in favour of the claimant in her appeal against the decision of Mr Justice Buckley in the High Court arising out of the alleged negligent advice of both solicitors and counsel in relation to her personal injury claim.The 12-year-old child had been severely injured when she was in a collision as a pedestrian with a car driven by the original defendant.

Her solicitors and counsel, from whom they sought advice, took the view that there was 'not any reasonable prospect of establishing any liability on the part of any driver for this accident'.

They accepted a sum of 50,000 by way of 'a nuisance value' offer in settlement of the case which, it was agreed, was worth at least 500,000, though Lord Justice Stuart Smith maintained that it was worth 1 million.

The claimant's appeal was on the basis that the settlement was too low and the advice negligently given both by the solicitors and counsel.The Appeal Court considered the facts of the accident in detail and looked to the approach of Lord Diplock in Saif Ali v Sidney Mitchell & Company [1980] AC 198 when he stated 'no matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turns out to have been errors of judgement, unless the error was such as no reasonably well-informed and competent member of that profession could have made'.

His Lordship in the instant case held that this was a simple case in which the advice could be given after careful consideration.

The strengths and weaknesses of the conflicting accounts needed to be evaluated.

He found no valid reason why counsel questioned the reliability of a key witness to the accident, and dismissed the arguments that the claimant was privately funded and the failure of the police to prosecute as irrelevant to the advice on the prospects of success.Importantly, no support was to be gleaned from the fact that Master Turner, an experienced personal injury practitioner, approved the settlement.

The master had not seen a number of the important documents, including the police report, but in any event 'a judge or a master approving a settlement is greatly influenced by the view of solicitors and counsel, whereas in this case they were known to be experienced.'His Lordship found that the claimant should succeed on the basis of 80% of the full valuation of the claim.

Lord Justice Kay considered counsel for the third defendant's argument that this decision could have far-reaching consequences for the Bar in discouraging their giving robust advice.

This was dismissed.Leave has been given to appeal to the House of Lords.The case is of interest because many claimant solicitors will undoubtedly believe that, having obtained an experienced personal injury counsel's advice and then having obtained the approval of the court, they are protected from any allegation of a negligent under-settlement of an infant case.Clearly, from this decision, no such protection is available and the responsibility is still on the solicitor to ensure that the advice given is considered and properly evaluated.

There is no safety net.