The Gazette 1961 - 64
Order against solicitor to pay costs reversed The case reported at page 14 of the last issue of the GAZETTE under the above heading is that of Abraham v. Jutson, and the full judgment in the case will be found in (1963) 2. All England Reports at page 402. Solicitor—negligence Before 1956 the plaintiff, a lorry driver aged thirty-three had been treated for a tubercular condition. In January, 1956, he had a fall from a lorry on to his right shoulder or elbow which caused him pain so that he could not drive, and in February he was dismissed from his employment. In March, he started work with new employers and, on 2.6th March, 1956, whilst getting into the cab of a lorry, he fell on to his right shoulder. The pain prevented him from working and from September to December, 1956, he was in hospital with a tuber cular right shoulder, and had to have an arthrodesis of the joint. While he was in hospital, his father consulted the defendant, a solicitor, who was instructed to bring an action against the March employers for negligence. The claim was an allegation that the employers had been negligent in the maintenance of the lorry, with the result that the grab-handle which the plaintiff had used to get into the cab of the lorry, had come away in his hand causing him to fall. The defendant's managing clerks dealt with the matter but, notwithstanding a denial of liability by the employers, did not issue a writ within three years of the accident. The plaintiff brought an action for damages against the defendant, alleging professional negligence. During the course of the trial negligence was admitted. Edmund Davies, J., said that, following Kitchen v. Royal Air Force Association (1958) I W.L.R. 563, there were three questions which had to be answered in assessing damages, (a) Were there grounds for thinking that the plaintiff ought to have succeeded in establishing that his fall in March, 1956, was caused by the negligence of his employers, their servants or agents ? (b) If it was thought that he had more than an outside change of winning that action, what damages might he reasonably have expected to recover ? (i) Bearing in mind the plaintiff's chances of success, what damages ought to be awarded against the defendant, or, in other words, how should the plaintiff's prospects of success in the action be evaluated ? As regards question (a) the evidence was conflicting as to the condition and maintenance of the lorry, but it was at least thirteen years old. It was impossible to be satisfied that the plaintiff would have been successful, but he had a fair chance of success. Question (&) was more difficult, and the physical consequences of the
accident at most aggravated a latent tuberculosis The evidence was inconclusive, but the plaintiff was not bound to fail in establishing that the second fall was the cause of his tubercular shoulder, and the trial judge might have had to consider the effect of both accidents. There had been no signs of tuberculosis since December, 1956, and his present, partial disability was caused by the arthrodesis of his shoulder which prevented him from raising his arm more than sixty degrees. He had been fit and could have worked since the middle of 1957. If the plaintiff had had a total victory, he could have reasonably expected damages of £3,000. As regards question (
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