Algar v Gall Standfield and Tiley - [2000] QSC 85

SUPREME COURT OF QUEENSLAND

CITATION: Algar v Gall Standfield & Tiley [2000] QSC 085

PARTIES: ALGAR Ty
v
GALL STANDFIELD & TILEY (a firm)

FILE NO/S: No 819 of 1994

DIVISION: Trail Division

DELIVERED ON: 18 April 2000

DELIVERED AT: Brisbane

HEARING DATE: 28, 29, 30, 31 March & 3, 4 April 2000

JUDGE: Chesterman J

ORDER: Judgment for the defendant with costs to be assessed on the standard basis

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – SOLICITOR AND CLIENT – DUTIES AND LIABILITIES TO CLIENT – EXERCISE OF SKILL – LIABILITY FOR NEGLIGENCE – WHAT CONSTITUTES NEGLIGENCE –

settlement of personal injuries action – whether solicitors negligent – whether solicitors had evidence of brain injury to plaintiff – whether solicitors should have investigated existence and severity of brain injury – whether plaintiff suffered brain damage

Campbell v Gibson & Gibson (1992) 8 SR (WA) 263
Caradine Properties Ltd v D J Freeman ( a firm) (1982) 5 CONST LJ 267
Davy-Chiesman v Davy-Cheisman [1984] FAM 46
Dew v Richardson (1999) QSC
Johnson v Perez (1988) 166 CLR 351
Karpenko v Proian, Courey, Cohan & Houston (1981) 117 DLR (3d) 383
Kitchen v Royal Air Force Association [1958] 1 WLR
McHale v Watson (1966) 115 CLR 199
Malec v J C Hutton Pty Ltd (1990) CLR 638
Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp (a firm) [1979] Ch 384
Mitchell v GIO [1992] 15 MVR 369
Nikolaou v Papasavas, Phillips & Co (1988) 166 CLR 395
Rybak v Senneh Pty Ltd (1997) ANZ CONVR 74
Seamez v McLaughlin [1999] NSWSC 9
Settree v Roberts SC (NSW) 5 June 1981; (1982) 1 NSWLR 649
Studer v Boettcher [1998] NSWSC 524

COUNSEL: D Campbell for the plaintiff
R Mulholland QC with E Morzone for the defendant

SOLICITORS: Baker Johnson Lawyers for the plaintiff
Quinlan Miller & Treston for the defendant

CHESTERMAN J: When he was six years old the plaintiff was hit by a motor cycle as he was crossing the Gold Coast highway with three older children. The plaintiff suffered life threatening internal injuries but was taken quickly to the Southport Hospital where his injuries were repaired surgically. Post operatively he developed an infection at the site of his wounds and he was transferred for further treatment to the Royal Childrens Hospital in Brisbane. After discharge he made an uneventful recovery from the injuries for which he had been treated.

The plaintiff’s mother, Yvonne Knyvett, was advised by a social worker at the Southport hospital when the plaintiff was first admitted to seek legal advice on behalf of her son. Miss Knyvett accordingly went to the Legal Aid office in Southport from which she was referred to the defendant firm of solicitors, which applied for, and was granted legal aid to enable her to claim compensation on behalf of the plaintiff. No proceedings were issued and no determination of liability was made or agreed but in 1988 the motor cyclist’s compulsory third party insurer paid the sum of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] QSC 85
Decision Date: 18 April 2000

CaseChat Overview and Summary

The case of Algar v Gall Standfield and Tiley involved the plaintiff, Algar, suing the defendant solicitors, Gall Standfield and Tiley, for negligence in the settlement of a personal injuries claim. The dispute centred on whether the solicitors were negligent in failing to investigate and adequately address evidence of a brain injury that the plaintiff had sustained. The case was heard in the Supreme Court of Queensland. The plaintiff alleged that the solicitors were aware of the brain injury but failed to investigate its existence and severity, which led to an inadequate settlement of the claim.

The primary legal issues before the court were whether the solicitors had evidence of the plaintiff’s brain injury, and if so, whether they were negligent in not investigating and acting upon that evidence. The court needed to determine whether the solicitors' failure to investigate the brain injury amounted to a breach of their duty of care to the plaintiff, and if this breach caused the plaintiff to suffer a loss. The plaintiff argued that the solicitors should have recognised the significance of the brain injury and sought expert medical evidence to assess its impact on the overall settlement.

The court held that the solicitors did not have evidence of a brain injury to the plaintiff at the time of settlement. The court found that the information provided to the solicitors did not specifically indicate the presence or severity of a brain injury. The court further held that the solicitors were not negligent in failing to investigate an injury that was not evident from the information provided. The court concluded that the plaintiff had not suffered a brain injury, and thus, the solicitors' failure to investigate such an injury did not constitute negligence. Consequently, the court found in favour of the defendant solicitors, ordering judgment in their favour and awarding costs to be assessed on the standard basis.

Orders

Orders of the court

Judgment for the defendant with costs to be assessed on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Algar v Gall Standfield & Tiley [2000] QSC 085
PARTIES:	ALGAR Ty v GALL STANDFIELD & TILEY (a firm)
FILE NO/S:	No 819 of 1994
DIVISION:	Trail Division
DELIVERED ON:	18 April 2000
DELIVERED AT:	Brisbane
HEARING DATE:	28, 29, 30, 31 March & 3, 4 April 2000
JUDGE:	Chesterman J
ORDER:	Judgment for the defendant with costs to be assessed on the standard basis
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – SOLICITOR AND CLIENT – DUTIES AND LIABILITIES TO CLIENT – EXERCISE OF SKILL – LIABILITY FOR NEGLIGENCE – WHAT CONSTITUTES NEGLIGENCE – settlement of personal injuries action – whether solicitors negligent – whether solicitors had evidence of brain injury to plaintiff – whether solicitors should have investigated existence and severity of brain injury – whether plaintiff suffered brain damage Campbell v Gibson & Gibson (1992) 8 SR (WA) 263 Caradine Properties Ltd v D J Freeman ( a firm) (1982) 5 CONST LJ 267 Davy-Chiesman v Davy-Cheisman [1984] FAM 46 Dew v Richardson (1999) QSC Johnson v Perez (1988) 166 CLR 351 Karpenko v Proian, Courey, Cohan & Houston (1981) 117 DLR (3d) 383 Kitchen v Royal Air Force Association [1958] 1 WLR McHale v Watson (1966) 115 CLR 199 Malec v J C Hutton Pty Ltd (1990) CLR 638 Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp (a firm) [1979] Ch 384 Mitchell v GIO [1992] 15 MVR 369 Nikolaou v Papasavas, Phillips & Co (1988) 166 CLR 395 Rybak v Senneh Pty Ltd (1997) ANZ CONVR 74 Seamez v McLaughlin [1999] NSWSC 9 Settree v Roberts SC (NSW) 5 June 1981; (1982) 1 NSWLR 649 Studer v Boettcher [1998] NSWSC 524
COUNSEL:	D Campbell for the plaintiff R Mulholland QC with E Morzone for the defendant
SOLICITORS:	Baker Johnson Lawyers for the plaintiff Quinlan Miller & Treston for the defendant