A firm who gave alleged ‘flawed advice’ has lost its appeal to dismiss a negligence case by a former client whose leg was amputated more than seven years after his original settlement.
Lee Witcomb is suing J Keith Park Solicitors, his former solicitors and counsel, for negligence after he required a below knee amputation as a result of a road collision some 12 years earlier. He claims to have not received advice on provisional damages before agreeing to a ‘full and final settlement’.
The collision, in July 2002, was caused by the admitted negligence of the driver of the car. Witcomb, then 17, was riding his motorcyle and suffered serious injuries to his right leg and foot including a fractured femur and a compound fracture of his ankle and foot. He was in hospital for six weeks and suffered from PTSD for two and a half years.
At a settlement meeting in December 2009, it was agreed Witcomb would receive £150,000 in a full and final settlement. He received no advice about provisional damages.
In setting out the background, the judgment said: ‘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.’
In January 2017, Witcomb was advised he needed a below knee amputation of the right leg, the first time amputation was mentioned.
He contacted J Keith Park Solicitors and asked if the claim could be reopened as amputation ‘was not factored in the original claim’. He was told he could not but was later advised by one of his doctors to seek further legal advice. He issued proceedings in December 2019, a decade after the settlement meeting.
He was granted permission to pursue his claim by Mr Justice Bourne who said the limitation period began when he realised the extent of his injuries in 2017 and not when his personal injury case was settled in 2009. J Keith Park Solicitors appealed the decision.
Lady Justice Thirlwall said: ‘As the judge found, the claimant was advised that “the only option was a full and final settlement with no protection against future significant deterioration.”
‘He did not know that there was an alternative to that settlement. He did not know about provisional damages. He did not and could not know that he had not been advised about something he knew nothing about. He did not know that the settlement could have protected him against future significant deterioration.’
Highlighting the court’s question as to what Witcomb should have done when he received the firm’s advice at the settlement meeting, the court heard he should have sought a second legal opinion.
The judgment in Lee Witcomb v J Keith Park Solicitors found Witcomb ‘had no reason to seek a second opinion’ as he ‘was being advised by apparently competent and experienced solicitors and counsel whose advice he was entitled to trust. They were not suggesting that a further opinion be obtained’.
It added ‘an excessive burden’ would be placed on the claimant to ‘expect him to question the advice of his lawyers’.
Thirwall said: ‘To require a litigant who has received advice…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.’
Thirwall, who found ‘the advice given was flawed’, added: ‘The underlying particulars of negligence being the failure to obtain a plastic surgeon’s report and the consequential failure to consider provisional damages.
‘The essence of the negligence was the giving of flawed advice (whether by act or omission).’
Dismissing the appeal, Thirwall said: ‘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 might, as the judge observed, have thought there were problems with the legal system which did not, as he had been told, allow for a further application for damages, but it did not follow that there might be problems with the advice he had been given.
‘He believed, as a result of what he had been told, that only a lump sum in full and final settlement was possible.’
