The High Court found that solicitor Alan Cleland breached his professional duty by failing to issue proceedings before the limitation period expired on a personal injury claim brought for Thomas Purcell. But the court dismissed Purcell’s claim against Cleland and two other defendants, concluding that he had not proved the underlying injury claim would have succeeded. It also found the action against the solicitors was statute barred.
In a judgment delivered on 18 December 2007, Ms Justice Irvine said Cleland had accepted in evidence that he was instructed to issue proceedings over an alleged injury on 28 January 1993. Purcell was a minor at the time. The judge said Cleland should have issued a writ before 26 June 1996, even while investigating the claim or awaiting further instructions. Cleland’s doubts about the claim and difficulties obtaining information did not remove that duty.
The alleged accident happened as Purcell was getting out of his father’s car to retrieve a coat. His case was that his father drove away before his arm was clear of the door, injuring his left elbow. The defendants denied his account. Hospital records admitted in evidence recorded the injury as resulting from a bicycle fall.
The court heard evidence over two days in late November and early December 2007. It refused Purcell’s request for a further adjournment to allow his sister, who was in the United States, to give evidence about taking him to hospital. The judge cited the late notice of the proposed witness, uncertainty about when she could attend and what she would say, and the likelihood that her evidence would not materially affect the case.
The judge preferred the hospital records’ account and found Purcell had given inconsistent descriptions of the accident. She also relied on discrepancies concerning his address and evidence about a later 1997 injury claim. On the balance of probabilities, the court concluded that he had not sustained the elbow injury in the manner alleged and would not have established a bona fide claim against his father’s driving. The judge said that conclusion rested on the merits, and would have been the same even if the hospital records had required formal proof.
The court therefore found no consequential loss from Cleland’s breach and rejected the negligence claim. Separately, it held that the action against the solicitors, issued on 10 April 2003, was brought after the six-year period had expired on 25 June 2002. The judgment records these conclusions; the supplied text does not state a separate formal order or address costs.