Should courts take into account events which take place after the notional date of trial in a claim for damages for professional negligence? James Counsell reports
In Hibbert Pownall & Newton v Whitehead (2008) EWCA Civ, [2008] All ER (D) 60, the Court of Appeal held that a firm of solicitors which was negligent in failing to conclude a mother's claim against a health authority for damages (for the wrongful birth of her son born with spina bifida) before the mother's death by suicide, was not liable to pay damages to the mother's estate for the child's care costs incurred after her death.
This important decision contains some useful reminders to personal injury and professional negligence practitioners of the difficulties of proving loss even when breach of duty is established. Of even more interest, perhaps, are the observations in the judgment of Lord Justice Laws as to the extent to which the court might be prepared to take into account unknown events which postdated the notional date of trial and which serve to reduce or possibly to increase the claimant's losses.
