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Dudarec v Andrews & Ors [2006] EWCA Civ 256 (22 March 2006)


Causation: Proceedings were brought against solicitors after a personal injuries action was struck out for want of prosecution under the old procedural rules. Liability was not in issue and in considering the damages for loss of a chance the Defendant solicitors took the same point as had been relied on by the original Defendants, that the Claimant had breached his duty to mitigate his loss in not undergoing an operation. Many years later in the run up to the hearing of a preliminary issue on the point it was discovered that the Claimant was not suffering after all from the problems considered. There is a distinction between facts that were unknowable at the notional trial date and facts that were knowable but undiscovered. The Court should take the latter into account when assessing loss of a chance.