JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ARMET -v- STEPHEN BROWNE [No 2] [2021] WADC 88
CORAM: SHEPHERD DCJ
HEARD: 6-9 OCTOBER & 5 NOVEMBER 2020
DELIVERED : 24 SEPTEMBER 2021
FILE NO/S: CIV 1375 of 2019
BETWEEN: STEPHANE ARMET
Plaintiff
AND
STEPHEN BROWNE
Defendant
Catchwords:
Tort - Negligence - Solicitor's negligence - Causation - Factual causation - Delay in advice regarding termination date for common law election for damages - Consequential compression of time - Whether causative of plaintiff's failure to elect on time
Legislation:
Civil Liability Act 2002 (WA)
Limitation Act 2005 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020 (WA)
Workers' Compensation and Injury Management Regulations 1982 (WA)
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Mr G P Bourhill |
Solicitors:
| Plaintiff | : | Not applicable |
| Defendant | : | Gilchrist Connell |
Case(s) referred to in decision(s):
Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
AVWest Aircraft Pty Ltd as trustee for AVWest Aircraft Trust v Clayton Utz (a firm) [No 2] [2019] WASC 306
Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Carradine Properties Ltd v DJ Freeman & Co [1955-1995] PNLR 219
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Cox v Fellows [2013] NSWCA 206
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Duchess of Argyll v Beuselinck [1972] 2 Lloyd's Rep 172
East Metropolitan Health Services v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147
Falkingham v Hoffmans (a firm) [2014] WASCA 140; (2014) 46 WAR 510
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hawkins v Clayton (1988) 164 CLR 539
Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
J-Corp Pty Ltd v Thompson [2019] WASCA 173
Jennings v Zihali-Kiss, Zilahi-Kiss & M K Tremaine & Company Pty Ltd (1972) 2 SASR 493
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Marsh v Baxter [2015] WASCA 169
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236
Re White; Ex Parte Cunningham [2015] WASC 349
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Rogers v Whitaker (1992) 175 CLR 479
Continue reading Armet v Stephen Browne [No 2]
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Details
- AGLC
- Armet v Stephen Browne [No 2] [2021] WADC 88
- Case
- [2021] WADC 88
- Decision Date
CaseChat Overview and Summary
The case of Armet v Stephen Browne [No 2] involved a dispute between the plaintiff, who was a client, and the defendant, a solicitor, regarding alleged negligence in the context of a common law election for damages. The central issue was whether the defendant's delay in providing advice on the termination date for the plaintiff's election for damages, which resulted in a compressed timeframe, was causative of the plaintiff's failure to elect on time. The court was tasked with determining the legal issues surrounding causation and negligence in this context.
The court needed to decide whether the defendant's negligence, specifically the delay in advising the plaintiff about the termination date, was a necessary condition of, or materially contributed to, the plaintiff's failure to elect on time. This required an analysis of the evidence to establish whether the plaintiff had discharged the burden of proving that the defendant's negligence was a causative factor in his loss.
The court found that the plaintiff had not discharged the burden of proving that the defendant's negligence caused his loss. The plaintiff had multiple reasons for his inability to meet the election deadline, including health issues, financial constraints, and the time involved in treatment. However, the evidence did not support the conclusion that the defendant's negligence was a necessary condition or a material contributor to the plaintiff's failure to elect on time. The plaintiff's decision to wait until after the termination date to see a psychiatrist and complete the required assessments further undermined the causation argument. The court concluded that the plaintiff had fallen short of discharging the burden of proof, and thus, the plaintiff's claim was dismissed.
The final orders of the court were to dismiss the plaintiff's claim, with the court reserving the right to hear arguments regarding costs.
The court needed to decide whether the defendant's negligence, specifically the delay in advising the plaintiff about the termination date, was a necessary condition of, or materially contributed to, the plaintiff's failure to elect on time. This required an analysis of the evidence to establish whether the plaintiff had discharged the burden of proving that the defendant's negligence was a causative factor in his loss.
The court found that the plaintiff had not discharged the burden of proving that the defendant's negligence caused his loss. The plaintiff had multiple reasons for his inability to meet the election deadline, including health issues, financial constraints, and the time involved in treatment. However, the evidence did not support the conclusion that the defendant's negligence was a necessary condition or a material contributor to the plaintiff's failure to elect on time. The plaintiff's decision to wait until after the termination date to see a psychiatrist and complete the required assessments further undermined the causation argument. The court concluded that the plaintiff had fallen short of discharging the burden of proof, and thus, the plaintiff's claim was dismissed.
The final orders of the court were to dismiss the plaintiff's claim, with the court reserving the right to hear arguments regarding costs.
Orders
Orders of the court
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Background
Background to the litigation
The Facts It is convenient to summarise here the facts in respect of the events occurring prior to the termination of the retainer between the parties on 11 May 2016. It is also convenient to make findings of fact in respect of those events in this part. I summarise separately the facts, and my findings of fact, in respect of the tinnitus claim in Part D. On or around 20 November 2015 the plaintiff instructed Perth City Lawyers.[75] [75] The costs agreement with PCL is dated 23 November 2015; the plaintiff signed that retainer and returned it by email on 3 December 2015; ts 187; Exhibits 3 and 4. By the time the plaintiff instructed PCL he was suffering from five injuries: his back, his foot, his neck, his tinnitus and his hair loss. The injuries did not include the psychiatric injury because 'nobody told me I was getting crazy'.[76][76] ts 116. The retainer with PCL ended on 1 February 2016, the day prior to the plaintiff meeting with, and instructing, SBL. Whilst the retainer ended, on the plaintiff's account, on 1 February 2016, PCL continued to write to the plaintiff until 6 February 2016. During the course of the retainer with PCL, Denise Chesworth, solicitor from PCL, provided the plaintiff with detailed advice about his workers' compensation claim and his potential claim at common law against his employer. That advice is contained in letters of 23 November 2015, 29 January 2016 and in an email of 1 February 2016. Subsequent to the termination of PCL's retainer with Mr Armet, Ms Chesworth wrote a further email dated 6 February 2016. The defendant argued that the written correspondence from PCL is significant in this case. The defendant says that that correspondence demonstrates that the plaintiff had received written advice on a number of aspects concerning his election for common law damages including what the termination date signified, when the (initial) termination date was (30 July 2016) and the possibility, if not probability, that an extension of time would be required to the plaintiff's initial termination date. The defendant says that by reason of the advice received from PCL the plaintiff knew and understood these issues at the time he met with Mr Trigg on 2 February 2016 and at the time he was referred to, and saw, Dr Fairhurst on 8 and 12 February 2016 respectively. It is therefore instructive to set out the relevant extracts of the advice contained in the correspondence from PCL. The relevant extract from that letter is: Common Law/Negligence Claim Against your EmployerYou may have potential right to sue your employer at common law for damages, which includes compensation for general damages (pain and suffering and loss of amenities of life), past economic loss, future economic loss, past and future medical expenses, travel expenses and gratuitous services.If you elect to pursue a common law claim employer, you will eventually be required to abandon your workers' compensation entitlements (ie weekly payments, treatment and vocational rehabilitation).Unfortunately there are significant restrictions on the capacity of an injured worker to bring an action for negligence against an employer. Such a claim for damages negligence will only succeed if:(a)Negligence - you have to prove that injury was caused through negligence or fault of your employer. You can demonstrate that the injury was caused through negligence or fault of all employer [sic] such as by failing to provide a safe system of work safe machinery.(b)Threshold - demonstrate your injury has caused significant damages. Significant damages is defined as a minimum of 15% permanent loss of use of your body as a whole or whole person impairment ('WPI'). A medical report from an Approved Medical Specialist (AMS) stating the degree of impairment and election form must be lodged and registered at WorkCover within 12 months of the date you lodged your workers' compensation claim form.Your termination date (latest date you can elect to make a common law claim) will lapse 9 months after either the insurer agrees to accept liability or after an order is made by WorkCover that the insurer accepts liability.An assessment of 15% permanent loss of use mental capacity [sic] is required to establish a 15% WPI.(c)Proceedings are commenced in the District Court within 3 years of the date of injury but only after the Director has given written notice that your medical report and election form have been registered.At this stage it is not possible for us to determine whether you sustained significant injuries (15% WPI). If you wish us to attempt to preserve your right to pursue a negligence claim, we will need to obtain medical report from an Approved Medical Specialist. You will be responsible for the cost of the report which may be recovered from insurer when your claim is finalised … You should be aware that a District Court Judge will revisit the whole person impairment at trial and it may be determined by the Judge that do not meet the threshold to proceed with the claim. In those circumstances you may be subject to an adverse order for costs.
Evidence
Evidence Before The Court
The plaintiff's evidence about causation The plaintiff's evidence in summary was that it was impossible for him to get his whole of person impairment assessment in before the expiry of the termination date. When asked why it was impossible the plaintiff answered: 'Because if it was possible I would have done it'.[434] That is not evidence of the impossibility of his task, but evidence of the plaintiff's belief that the compression of time made his task, in his opinion, impossible.[434] ts 514, closing submissions. The plaintiff gave evidence that there were multiple reasons for his inability to meet his termination date. Firstly, in that period of time, the plaintiff had had other issues he was dealing with, not just trying to get his whole of person impairment assessments in respect of his injuries.[435] [435] ts 241. For example, the plaintiff said that SBL had let his tinnitus conciliation claim 'die' and it had to be re-filed. As a consequence of that, time frames for the conciliation and arbitration were pushed back and that led to the plaintiff dealing with his arbitration for the tinnitus claim in February 2017 when it would otherwise have been listed earlier.[436] [436] ts 251. The second reason for the failure to elect was because at the time, the plaintiff was unwell: he was in physical pain and was experiencing neuropathic pain.[437] He gave evidence that he had been prescribed lorazepam to treat his anxiety and sleep disorder and duloxetine to treat his neuropathic pain and to calm him down.[438] [437] ts 244.[438] ts 242; Exhibit 6. Other than giving evidence of him being unwell, the plaintiff did not give details as to how his health prevented him from taking the steps to make his election on time, or how it delayed or impacted on him being able to take those steps. The third reason for the failure to elect was financial. The plaintiff did not always have the money to pay for: (i)all the necessary medical appointments and expenses including going to the GP and getting a referral to a specialist, the costs of having blood tests, biopsies, MRIs, ultrasounds, audiology appointments;[439] (ii)his prescribed medications;[440] (iii)his plantar fasciitis treatment (21 sessions costing $2,500); and(iv)his special shoes and strapping for his feet.[441] (v)The financial cost of running proceedings appears to have also been a factor, however the plaintiff did not expand on this aspect in any detail.[442] [439] ts 263.[440] ts 264.[441] ts 266.[442] ts 265. The fourth reason was the time involved in having treatment for the plaintiff's plantar fasciitis was a factor. The fifth factor was that during that period the plaintiff was required to attend appointments with other doctors at GIO's insistence. This included going to an appointment with Dr Watson, a neurosurgeon, on 1 November 2016 and having to see Dr Low on 4 February 2017. The plaintiff attended other appointments with Dr Low, however, those appointments were not within the 13 July 2016 to 12 February 2017 period and so I disregard them for the purposes of this analysis.
Decision
Reasons for decision
Conclusion The plaintiff carries the burden of proving that the defendant's negligence was a necessary condition of, or materially contributed to, the plaintiff's failure to elect on time. Said differently, that but for the defendant's negligence, the plaintiff's failure to elect would not have occurred. The plaintiff has failed to discharge the burden of proving that the defendant's negligence caused the plaintiff to lose a reasonable opportunity to make his election on time. The evidence shows that Mr Armet had had all necessary investigations into his tinnitus injury by 8 September 2016 and by 13 September 2016 in respect of his hair loss injury (assuming, for the purposes of this exercise, that it was a compensable injury). The psychiatric injury was not an injury that the defendant knew or ought reasonably to have known about during the period of the retainer and does not comprise part of the assessment of causation (nor of negligence). Even if it did, the fact that Mr Armet took no steps in respect of that injury until eight months after the termination date means that that injury cannot be said to be causative, even in part, of the plaintiff's loss. That the plaintiff may have chosen to wait until he had seen the psychiatrist, eight months after the termination date had passed, before the aggregated whole of person impairment assessment could be completed, was a choice that he made. There is an absence of evidence as to what happened between 5 October 2016 and the termination date in respect of his back, foot and neck injuries; Mr Armet had issued the Forms AMS 1 to Mr Narula in respect of those injuries on 5 October 2016. The silence as to what happened between 5 October and the termination date, the absence of evidence from Mr Narula, the evidence that does exist that the plaintiff did not press Mr Narula, that 'it was not for him to tell Mr Narula what to do and when to do it' lead me, in combination, to conclude that the plaintiff has fallen short of discharging the burden of proof. That is, I am not satisfied on the evidence having regard to the burden of proof that the plaintiff has established that the defendant's neglect caused his loss. I therefore dismiss the plaintiff's claim. Final orders Plaintiff's claim dismissed. I will hear the parties as to costs.
Ratio Decidendi
Legal Principle Established
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