249 / 328
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 (<r), to evaluate his loss of his chose in
action was to estimate the risk of his success or
failure and, allowing for all contingencies, the sum
was £1,000. Judgment for the plaintiff accordingly.
(Yardley
v.
Coombes,
Solicitors' Journal,
July
1963, page 575.)
THE REGISTRY
Register A
SOLICITOR'S old established and attractive practice for
immediate sale in large midland town, with or without
residential accommodation. Enquiries and particulars in
confidence to Box No. Azc>3.
Register B
DUBLIN solicitors desire to acquire old established solicitor's
business. Enquiries to Box 6271.
LADY solicitor, B.A., 4 years general experience, available
October. Interview. Box 6272.
Register C
WILL any person having information about a Will of Peter
Carron late of Headford, in the County of Galway, Veterinary
Surgeon, who died on the 3rd July, 1963, please communicate
with :
Bennett Thompson
&
Co., Solicitors, 12 Molcsworth
Street, Dublin.
IN THE ESTATE OF :
Patrick Mullally, late of Ballywalter,
Mullinahone, Co. Tipperary, Farmer, deceased, who died,
on the I4th August, 1962. Will any Solicitor or other person
having custody of or any information as to a Will of the
above deceased please communicate with the undersigned :
J. J. O'Shee, Murphy
&
Co., Solicitors, New Quay, Clonmel.
Register D
FOR SALE :
"The Irish Justice Of The Peace", by James
O'Connor, 1911 edition. Box DIOI.