Arnold v Hancock - [2006] NSWSC 156

CITATION: ARNOLD v HANCOCK & ORS [2006] NSWSC 156

HEARING DATE(S): 30.5.05-6.6.05

JUDGMENT DATE :
24 March 2006

JUDGMENT OF: Hulme J at 1

DECISION: Orders deferred

PARTIES: Jason Arnold
Ken Hancock, John Hill practising as Hancock Alldis

FILE NUMBER(S): SC 20397/02

COUNSEL: Plaintiff: W Kearns SC; T Boyd
Defendant: P Maiden
Cross Defendant: M Windsor

SOLICITORS: Plaintiff: Herbert Weller
Defendant: Hunt & Hunt
Cross Defendant: PricewaterhouseCoopers Legal

- 47 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J

Friday, 24 March 2006

20397/02

Jason ARNOLD v Ken HANCOCK, Practising as HANCOCK ALLDIS & ORS

JUDGMENT

1 HULME J: The nature of the case is such that there is virtue in dividing these reasons into sections and, so far as possible, trying to separate various areas of evidence and issues. Comprehensive and watertight division is not possible but the following headings and paragraph references will provide some guide:-

1.	Introduction and the circumstances in which the Plaintiff was injured.	2
2	The Documentary Records and Communications between the Plaintiff and Mr Honeyman – June 1994 to late 1995.	27
3	Legal Fees and Correspondence re Retainer Termination.	69
4	The October 1994 and November 1995 conferences – the Plaintiff.	90
5	The October 1994 and November 1995 conferences – Mr Dodd.	111
6	The October 1994 and November 1995 conferences – Mr Honeyman.	142
7.	Other evidence – Mr Dodd.	159
8	Other evidence – Mr Honeyman.	170
9	The Plaintiff’s Evidence concerning events circa 1996.	181
10	Pre-accident circumstances of the Plaintiff.	189
11	Post-accident circumstances of the Plaintiff.	193
12	The Plaintiff’s Traffic and Custodial History.	209
13	Medical and Other Reports about the Plaintiff.	219
14	Earnings and Earning Capacity.	235
15	1999 and Later Events.	243
16	Expert Legal Reports	244
17	Conclusions.	251
18	Damages if assessed in February 2000	353
19	Damages in 2006	383
20	Apportionment	399

Introduction and the Circumstances in which the Plaintiff was injured.

2 On 6 June 1994 the Plaintiff was employed by an organisation trading under the name Constable Brothers, which carried on a concrete pumping business. On that day he was operating a concrete pump and associated boom mounted on a heavy truck. The operation involved concrete being deposited out of a concrete delivery truck via a chute into a hopper mounted above the pump. At the bottom of the hopper was a pump and just above that there were what was referred to as paddles. These seem to have been the protrusions on an augur which operated on a horizontal axis and kept the concrete in the hopper moving, possibly towards the entrance to the pump.

3 At the top of the hopper was a grate. The particular load of concrete being handled at the time was a relatively dry mix. The Plaintiff stepped from the vicinity of the controls he had been operating onto the grate with a view to shaking the chute so as to dislodge some concrete which had stopped in the chute.

4 In the course of this activity his left leg slipped into the hopper and was so severely injured it had to be amputated above the knee.

5 Some short time later, acting on the Plaintiff’s behalf, the Plaintiff’s father engaged the Defendants, a firm of solicitors. The Plaintiff claims that their retainer was “to act for him generally in relation to his claim for compensation for his serious injuries” including, inter alia, to exercise due care, skill and diligence and to advise and prosecute a claim for compensation under the Motor Accidents Act if appropriate and to initiate action and to undertake enquiries in order to properly discharge their duty to him. Mr Honeyman of that firm and a barrister John Dodd who was instructed by the solicitors gave the Plaintiff advice.

6 The Plaintiff claims that the Defendants failed to exercise due care, skill and diligence, that the advice he was given was, in part inadequate, and in part wrong, that the Defendants failed to prosecute a claim for compensation under the Motor Accidents Act, failed to undertake enquiries and that in consequence no such proceedings were commenced against Mrs Constable the owner of truck and he has suffered loss.

7 The Defendants admit a retainer in the words quoted above but deny the more particular allegations in that regard, deny any fault and also contend that any loss the Plaintiff suffered was caused or contributed to by the Plaintiff’s own negligence, breach of the retainer and breach of fiduciary duty.

8 The Plaintiff has not sued Mr Dodd but the Defendants have, asserting that if there were any negligence on their part, Mr Dodd breached the terms of his retainer by failing to properly advise the Plaintiff or the Defendants and alternatively breached a duty of care and fiduciary duty he is said to have owed the Defendants. The Defendants claim contribution or indemnity under the Law Reform (Miscellaneous Provisions) Act, damages “including contractual damages”, interest and costs

9 Before I turn to the details of the relationship and communications between the parties it is appropriate to say something more about the circumstances and sequelae of the Plaintiff’s accident and of his employment, at least up to the stage where the Defendants’ involvement in the prosecution of the Plaintiff’s claim ceased.

10 The grate was of steel and consisted of parallel bars running in only one direction inside a rectangular frame. The Plaintiff estimated the size of the whole grate to be about 3 feet by 1½ feet, and while my impression from photographs of the grate is that it was longer than 1½ feet on its shorter side, 18 inches is easily long enough to accommodate a person’s boot or shoe. The parallel bars were estimated to be just over 80mm apart except at the ends where the gap, prior to the Plaintiff’s accident, was about 120 to 125 mm. It was through one of these end gaps that the Plaintiff’s leg slipped into the hopper. The Plaintiff was not sure, but the probability is that his falling through the grate occurred after he had done some shaking of the chute. The grate was near a platform on which a person controlling the concrete pumping would normally stand.

11 On 17 May 1994 the Plaintiff had been issued with a learner’s permit to drive a power crane. Mr Constable’s name is recorded on the copy of the permit that was in evidence and this, and the photographs of the truck, concrete pump and boom lead to the conclusion that the permit was obtained with a view to the Plaintiff being legally able to operate equipment of the type wherein he suffered injury. One of the conditions of the permit included an acknowledgment that the Plaintiff had read and had knowledge of the provisions of the regulations which relate to the type of work.

12 In evidence the Plaintiff agreed that incidental to the obtaining of such a permit he had had to read an instruction manual or other document in respect of the work and that that document told him about safety requirements of working a concrete pump. He said he would have read about the receiving hopper on a power pump.

13 He said that he was not aware that he was not to stand on the grate. He denied that Mr Constable had directed him not to walk on it and claimed that Mr Constable had in fact done so himself.

14 Mr Constable said that he was aware that people did, from time to time, stand on grates. He said that he had instructed the Plaintiff that the latter was not to do so. I can find no satisfactory basis for distinguishing between the credibility or reliability of these inconsistent versions and, accordingly, can make no finding as to which account was accurate.

15 There was in evidence a Code of Practice for Pumping Concrete which commenced on 1 March 1994. That document became Exhibit H and contains a clause in the following terms:-

A hinged grill should be provided to prevent access to dangerous moving parts such as feed or agitator mechanisms and value gear. The grill should be constructed of parallel bars, spaced so that it is not possible for a person’s hand to become trapped. Spacing should not exceed 70mm and the distance from the grating to moving parts should be at least 150mm.

Keep hands, arms, legs and feet away from the hopper grate whenever the pump is running. Never remove the hopper grate while the pump is running and never stand or walk on the hopper grate regardless of whether the pump is running or not.”

16 Although in re-examination the Plaintiff seemed to accept, albeit with considerable doubt, that that was a copy of the book kept by his employer prior to the accident, those doubts, some expressed earlier and Mr Constable’s evidence querying whether that book was out, by which I understand available or possessed by him, at the time makes me disinclined to find that the Plaintiff had in fact read it. On the other hand, I accept that the Plaintiff would have read something detailing safety considerations, be that a booklet or whatever manual or book that would have been in the office of his employer prior to the accident.

17 It should also be mentioned that the Plaintiff said that when he stood on the grate the pump wasn’t going and although the paddles had not yet stopped moving in due course they would have in consequence of the pump being stopped. In cross-examination his answers indicate some uncertainty about this. He also claimed that he had moved to “off” a gear lever which controlled the paddles although again he claimed that their stopping would not have been instantaneous. Later he accepted that he may not have turned off the rotating device inside the hopper.

18 He also said that he did not think that when standing on the grate he remained in possession of a hand-held switch that controlled the pump. On the other hand, Mr Constable, who was on site said that he turned off the paddles and retrieved from under the Plaintiff while still injured in the hopper the hand-held switch. In a statement obtained by Mr Honeyman from an investigator, an eye-witness, a Mr Hartmann also claimed to have pressed a button to stop the paddles.

19 Upon the basis that these uninjured people are likely to have better recollections than the then traumatised Plaintiff, I think the probability is that the Plaintiff did not turn the pump off before stepping onto the grate and that Mr Constable did retrieve the hand-held switch from under the Plaintiff’s body. The latter finding leads to the inference that, immediately before falling into the hopper, the Plaintiff had the switch in his hand.

20 The plaintiff agreed that the chute could have been shaken while he was standing on the ground but said that it would have been more than a hassle for it to have been done that way and to do so would have involved him reaching up above his head.

21 There was also evidence that the Plaintiff had assisted Mr Constable in making the grate in use on the day of his accident although Mr Constable said that it followed exactly the pattern of one which had been there previously. Be that as it may, the Plaintiff had plenty of experience with the truck and hopper he was using that day and opportunity to see the size and characteristics of the grate.

22 I do not regard the matters to which I have referred as permitting any other conclusion but that the Plaintiff was entitled to succeed against Mrs Constable in an action for negligence arising from the use and operation of the truck. The grate formed an obvious platform on which to stand to attend to the sort of problem with which the Plaintiff was attempting to deal and, so long as a person’s foot was placed and remained across the bars, a platform on which a person could stand with relative safety. Had the spacing been in accordance with clause 3.17 of the Code of Practice there was probably little danger that even if his foot, no doubt encased in a shoe or work boot, was along the bars, it would slip into the hopper and suffer the serious injury which contact with moving mechanism in there was liable to cause.

23 As it was, the failure to adhere both to the standards applicable, and to what in my view were elementary precautions in making the spaces between the bars narrow enough to preclude entry by a slipping foot were causes of the Plaintiff’s injury for which Mrs Constable was liable. It was not suggested that any narrowing of the spaces of the nature just discussed would have interfered, certainly not interfered significantly, in the concrete pumping operation and in those circumstances, to leave the grate as it was, was negligent.

24 It was faintly argued that, had the Plaintiff proceeded against Mrs Constable in a motor vehicle claim, he would have been held to be guilty of contributory negligence. Attention was drawn to the obviousness of the danger, the warning in the Code of Practice, the Plaintiff’s acknowledgment that he had knowledge of the provisions of the regulations and Mr Constable’s evidence that the Plaintiff had been instructed not to stand on the grate. Having regard to all of this, and notwithstanding the imprecision in a deal of it so far as the current issue is concerned, I think the probability is that the Plaintiff had knowledge that it was regarded as undesirable that he stand on the grate, at least while the paddles were moving. Nevertheless I am satisfied that the Plaintiff was not, and would not have been held to be, guilty of contributory negligence. His actions in standing on the grate should, I think be regarded as those of “inadvertence, inattention or misjudgement” not amounting to contributory negligence – c.f. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310. The physical nature of the grate was such that a grown man could, with a modicum of care, stand on the grate without any likelihood of falling in.

25 Although as the result of the recent decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 a different conclusion might now be reached, there can be no doubt that in 1995 and 2000, the times with which I am principally concerned, the accident would have been regarded as occurring in the course of the “use and operation” of the vehicle – NRMA Insurance Limited v NSW Grain Corporation (1995) 22 MVR 317, Mercantile Mutual Insurance (Aust) Limited v Moulding (1995) 22 MVR 325 and the cases therein cited, and Allianz Australia Insurance Limited v GSF Australia Pty Limited [2003] NSWCA 174 and I am satisfied that had proceedings been instituted at the appropriate time by the Plaintiff against Mrs Constable for negligence he would have succeeded on the issue of liability and, subject to any question of repayment of Workers Compensation and other moneys refundable, have succeeded in obtaining a verdict.

26 It may be convenient to observe that my view of the Plaintiff’s prospects of success on the issue of liability against Mrs Constable echoes that which Mr Dodd said that he formed very early in the piece. Mr Honeyman said that liability was not an issue in the minds of he and Mr Dodd. He certainly can speak for himself in that regard.

The Documentary Records and Communications between the Plaintiff and Mr Honeyman – June 1994 to late 1995

27 Within a week of the accident, viz. on 10 June 1994, the Plaintiff’s father made contact with Mr Honeyman, an employee of the Defendant firm of solicitors. Events that occurred during the ensuing months included the following.

28 On 14 June 1994, Mr Honeyman sent a brief to Mr Dodd inviting “any preliminary comments, advice or suggestions”. Some such advice, particularly as to the obtaining of evidence, was given and implemented. Inter alia, and at least initially at the expense of the Defendant firm, a private investigator was engaged on 4 July. By letter of 11 July the private investigator, MDK and Associates reported. The report included a 39 paragraph statement from the Plaintiff, a report of a recorded interview with a civil engineer and a statement by a crane driver both of whom had been working at the site at the time. The record of the interview and the statement dealt with, inter alia and in moderate detail, the topic of the grate over the hopper, the spacing of the bars in it and the gap at the side of the grate. The report itself directed attention to a statement of the crane driver to the effect, “I suppose if the guarding was satisfactory, there is no way his leg could have gone in”.

29 On 12 July, Mr Honeyman spoke to the Plaintiff. Mr Honeyman’s file note includes the following:-

“(The Plaintiff) said that Brian Rose from MMI had also contacted him just spelling out what would happen in regard to the claim. He indicated to our client that workers comp could be pursued for a maximum of $160,000 plus ongoing expenses or it might be possible for him to start another type of claim. I discussed these possibilities with Jason at some length and indicated that based on the prospect of Common Law claim it was necessary for us to consider each option carefully although we do not have to do this in a hurry.”

30 Mr Honeyman also wrote to the Plaintiff seeking information as to names of doctors etc. and enclosing blank authorities for signature. These were received, and forwarded, monies for reports from the Westmead Hospital and Dr Wong forwarded and reports from these persons received.

31 On 15 September 1994, Mr Honeyman had a conference with the Plaintiff. Mr Honeyman’s file note is in terms:-

“In accord with handwritten notes taken particularly detailing work history. (sic) I indicated to Jason that it may well be that we have two causes of action, being workers compensation and common law for negligence against the employer and that we would discuss this further in conference with John Dodd of Counsel probably early in the new year. I gave him some advice as to how the system worked and indicated that any settlement on a common law claim if applicable would combine his workers compensation matter. If not settled, the matter could take approximately 3 maybe 4 years. Settlement itself or the hearing would depend on his stability in any event and that in turn would only occur once we had a clear economic picture of his future.”

32 Following this Mr Honeyman made further contact with doctors and MMI who apparently were the Workers Compensation insurers of the Plaintiff’s employers. On 5 October 1994 MMI wrote, referring to an entitlement under Section 66 of the Workers’ Compensation Act. The letter enclosed a copy of a statement the Plaintiff had made to an MMI investigator and noted, as indeed an earlier file memo did, that Mr Honeyman was considering a Common Law claim against the CTP insurer of the vehicle, the registration number of which was given. The letter notes that such a claim would need to be made within 6 months of the date of the accident.

33 On 13 October, Mr Honeyman wrote to Mr Dodd referring to the preliminary brief still held, enclosing copies of the MDK & Associates report, the letter of 5 October and a copy of the statement supplied by MMI and seeking a conference “As to outlining the procedures under Section 66 and 67 and to discuss more fully the possibility of a Common Law claim and if so the matters to be attended to in regard thereto”.

34 On 17 October 1994 a conference between the Plaintiff and Messrs Honeyman and Dodd was held when some further documents including a report of Dr Wong of 16 August and a Westmead Hospital report of 10 October were given to counsel. Mr Honeyman’s handwritten notes of the conference include the following:-

“1. Employer Robert Trevor Frederick Constable

3. Income $400-$600/wk pre accident.

4. Max rate $421.60 with 2 children & depend spouse

____

Robert drives one truck.
Darryl Day drives other truck
I think he’s on about $800/wk.

Other Coys: 1 W and D Mobile
2 East Coast
……

35 Mr Honeyman’s file also includes a typed “Memo to File” concerning the conference. That document includes the following:-

would be limited to the difference between his current rate of pay and the work

36 Mr Dodd’s notes of the conference include notes to the following effect. (It is difficult to reproduce the exact form or order of them):-

Economic

More Money

Letter to RTA re missing 3A from employer (Subpoena personnel file)

--------------------------------------------------------------------------------

East Coast Concrete Pumping

Comparables”

37 The Plaintiff, Mr Honeyman and Mr Dodd all gave oral evidence concerning this conference, and a second one between the three of them held in November 1995. The Plaintiff and Mr Honeyman also gave evidence as to conversations which did not involve Mr Dodd. However, I am satisfied that recollections were not all perfect in relation to all of these matters and it is convenient to concentrate initially on what the contemporaneous documents record and matters about which there was no disagreement before turning to the oral evidence.

38 That said, before departing far from the contemporaneous and almost contemporaneous notes of the conference, I draw attention to the differences between the notes of Mr Dodd and Mr Honeyman concerning the topic of earnings of the Plaintiff and others and to those parts of the “Memo to File” which suggest that a number of the components of any verdict in a motor vehicle claim might well not result in any significant sum of money over and above that recoverable in Workers’ Compensation proceedings.

39 Following the conference Mr Honeyman continued with enquiries including to Dr Wong, MMI (as to the name of the Plaintiff’s employer), and the RTA. He made no enquiries of or concerning W & D Mobile, East Coast, Darryl (or Darrell) Day or of Mr Constable as to the earnings that might have been or become available to the Plaintiff.

40 On 25 October 1994, MMI wrote to Mr Honeyman advising that the correct name of their insured was “Constable Bros Concrete Pumping”.

41 On 4 November Mr Honeyman wrote to Mr Dodd enclosing a copy of Dr Wong’s report of 26 October and saying that his recollection was Mr Dodd was to consider various aspect of the claim and discuss further and inviting a response. Handwritten notations on the copy of the letter in Mr Honeyman’s file indicate that Mr Dodd responded.

42 On 15 November 1994, certificates under the Traffic Act and the Motor Accidents Act were sent by Mr Honeyman to Mr Dodd.

43 On 15 December 1994 Mr Dodd provided a formal advice directed primarily to the Plaintiff’s Workers Compensation claim but including the following:-

“The identity of the client’s employer has yet to be established, although I note that the client has a recollection that his employer was Robert Trevor Fredrick Constable t/as Constable Bros Concrete Pumping. I note this is to be checked by reference to the client’ s Group Certificates.

In any event, the owner of the motor vehicle is recorded as Denise Anne Lynne Constable who is presumably not the client’s employer, but may well be a member of a partnership who is indeed the client’s employer.

At this stage I suggest that Motor Accidents Act Claim Form be served on Denise Constable and AMP Insurance. This is a necessary precursor to any Motor Accidents Act litigation.

…

Before any lump sum compensation is accepted, it is essential for the identity of the client’s employer to be properly ascertained to ensure that there is no suggestion of an election under Section 151A.”

44 (AMP Insurance seems to have been the third party insurer of the concrete pumping truck.)

45 On 3 February Mr Honeyman sent a copy of this advice to the Plaintiff.

46 Between February and August 1995 Mr Honeyman had a number of communications with MMI, most relating to settlement of aspects of the Plaintiff’s Workers Compensation claim. On 1 August 1995, Mr Honeyman wrote to MMI accepting an offer from that organisation but noting that at that stage no proceedings had as yet been commenced.

47 Implementation of the settlement took some time. The response to the letter of 1 August came from Messrs Sparke Helmore on 22 August saying that they were now instructed and advising that an Application would need to be filed and served and Terms of Settlement drafted, executed and filed. The Application was filed on 1 September. Terms of Settlement forwarded by Sparke Helmore on 8 September were filed and served on 12 or 13 September. On 13 October Mr Honeyman wrote to Sparke Helmore expressing the Plaintiff’s concern at delay and asking for payment. By letter dated 24 October, Sparke Helmore sent a cheque in the sum of $161,666 broken down as follows:-

· $88,020 in respect of a 90% loss of use of the left leg at or above the knee.

· $6,126 interest on the section 66 amount.

· $65,250 pursuant to section 67 for pain and suffering.

· $2,270 being interest on half the section 67 amount.

48 During the first 9 months of so of 1995 there were also a number of conversations between Mr Honeyman and the Plaintiff. In January 1995 the Plaintiff had received notification from the Department of Veteran’s Affairs advising him of an obligation to pay for treatment provided and on 5 February giving him an estimate of $89,973.38 for future prosthetic costs. That amount was calculated upon the basis of replacement every 2 years – 24 times - at a cost of $2,866 each time, and some costs for maintenance and socks.

49 On 6 February 1995 the Plaintiff rang Mr Honeyman about these letters, enquiring about progress and indicating that he was anxious to obtain some money. Mr Honeyman said that he would take steps to commence a Workers Compensation application for determination and indicated that that those proceedings might take up to six to nine months.

50 In a later call from Mr Honeyman and then a conference in March, the Plaintiff asserted that there was error in the estimate of future prosthetic costs, that in the calculation of the $89,973 the prosthesis costs were discounted, and said that once his claim was completed the cost would be about $15,000 per time. Multiplied by the 24 replacement occasions referred to in the Department’s letter, this indicated a cost, which Mr Honeyman recorded as potentially $300,000.

51 On 11 April and 1 May 1995 the Plaintiff sought updated advice as to progress with MMI. On the latter occasion there was also some discussion concerning custody of the Plaintiff’s children. A memo to file of 25 May indicates the Plaintiff called, received a progress report and “agreed that it would be better to wait a couple of weeks more to see if we can get a bit more money.”

52 A memo of Mr Honeyman of 20 June records 2 conversations with the Plaintiff in one of which the latter was advised that Mr Honeyman thought it would be at least 2 months before anything positive would happen in terms of lump sum payments.

53 A file note of 4 July records that Mr Honeyman again phoned the Plaintiff concerning the negotiations with MMI and that the Plaintiff was willing to wait a further period. On 19 July, the Plaintiff phoned enquiring as to progress. File memos of 28 July and 1 August indicate that the dispute between the Plaintiff and MMI at that stage concerned an amount of $3,000, that Mr Dodd thought it not worth arguing over and that the Plaintiff agreed to accept the lesser amount.

54 On 30 August 1995 Mr Honeyman wrote to the Plaintiff, observing in relation to the Workers Compensation claim, “hopefully the matter can then be resolved without any further delay to you” and “please be assured however that we are, to the best of our own ability, protecting both your interests and attempting to have the matter resolved as quickly as reasonably possible”.

55 It is apparent that during the period the plaintiff was also wishing to spend some of the money he was to receive. File notes of September reflect attempts by the Plaintiff to acquire motor vehicles in advance of receipt of the compensation moneys and Mr Honeyman communicating with 2 car dealers and one credit card provider on the Plaintiff’s behalf. There seem to have been numerous phone calls with the Plaintiff and others in this connection.

56 During this period some attention was also being given to the possible Common Law claim. On 7 April, Mr Honeyman forwarded to the AMP the Plaintiff’s Motor Accident Personal Injury Claim Form, noting that it has not been submitted within the statutory time, and saying that instructions had been obtained on 15 March to complete it. A file note of 30 March indicates that Mr Honeyman had previously spoken to Denise Constable concerning the contents of the Statement of Earnings in that document and one of 4 April refers to a phone call with the Plaintiff in this regard. In the Statement (or Certificate) of Earnings Denise Constable describes the Plaintiff’s duties as “concrete pump linesman – trainee operator” and shows his average weekly earnings to have been $546.00 gross and $426.00 net.

57 In a letter of 30 August 1995 to the Plaintiff, Mr Honeyman enclosed a copy of a letter from the AMP which had been received on 10 August and which sought information additional to that which had been included in the Personal Injury Claim Form. On 31 August Mr Honeyman had a conference with the Plaintiff and advised that he could not take the claim against AMP further without information from the Plaintiff. On that occasion the Plaintiff advised Mr Honeyman of further health consequences of his accident, including the possibility of further operation.

58 Documents also indicate that Mr Dodd was being kept apprised of most matters. On 15 May copies of a letter from MMI of 5 May and an enclosed report from a Dr Ellliott were forwarded to Mr Dodd and on 22 May he apparently gave advice to Mr Honeyman concerning an offer contained in the MMI letter.

59 On 22 June Mr Honeyman again wrote to Mr Dodd seeking advice, apparently provided on 29 June and 28 July.

60 On 26 October 1995 there was a conference which included the Plaintiff Mr Honeyman and a loss assessor engaged on behalf of the AMP. On that occasion Mr Honeyman handed the Plaintiff the MMI cheque. A file memo recording that conference includes the following:-

“Jason advised … that the day before the accident he received a letter from the RTA indicating that he can go straight onto a 3B licence which meant apparently he could drive the truck rather than be the linesman or offsider. He said therefore the pay would be between $900 and $1200 a week gross, rather than what he was receiving.

… I gave (Jason) a brief rundown on the procedure under the Motor Accidents Act and indicated that it may well be that, especially as he has to repay the workers’ comp component if we are successful at Common Law, that a claim may just not be worthwhile and he may be just better off on the workers’ comp benefits scheme especially if we can make an application to increase that if we can show that he is entitled to a bigger income. I said that I would arrange to have him speak with John Dodd and me about that in the next few weeks.

He was to arrange payment of the car today for which we gave an Irrevocable Authority and I pointed out to him that he would have to bill us (sic) for the work outside the Workers’ Comp claim and would also ask that he provide and set aside some moneys in relation to the Common Law claim especially report fees etc and he said that would be fine.”

61 On 27 October 1995 a “Brief to Advise on Quantum” was forwarded to Mr Dodd. In the observations Mr Honeyman remarked:-

“Counsel’s instructing solicitor has arranged a conference with Counsel to generally outline to our client the options now available to him if he is to continue with the CTP claim. We have explained to our client that from any CTP settlement will be deducted the workers’ compensation payment and that it may well be that on the deductibles he would not receive any more for pain and suffering than that already received under the Workers’ Compensation entitlement.

Our client indicates that the day before the accident, he received from the RTA confirmation that he could apply direct for what is known as a 3B licence which apparently would enable him to drive the truck rather than act as linesman or offsider. The effect of this he said would enable him to obtain somewhere between $900 and $1200 per week gross.

We would be obliged if Counsel could consider the figures with a view to advising in conference whether he sees it as of value to continue with the motor accidents claim and generally advising our client in regard to quantum.”

62 In early November 1995, a more detailed request for information was received by Mr Honeyman from investigators acting on behalf of AMP Insurance and apparently forwarded to the Plaintiff.

63 A second conference between the Plaintiff, Mr Honeyman and Mr Dodd was held on 13 November 1995. The Plaintiff thought his girlfriend, Jenny Buck was also present but Messrs Dodd and Honeyman did not agree and I am not persuaded that she was. Mr Dodd’s notes, made partly shortly before this conference and partly during it, make reference to the Workers Compensation lump sum of $161,666 being equivalent to 68.79% of a most extreme case under the Motor Accidents Act. They show a calculation of $234,000 apparently based on an amount of $300 (being $450 less $150) per week and the 5% tables for 40 years less 15% for vicissitudes, and a further calculation resulting in $429,000 derived from a sum of $550 (being $750 net less $200) per week. An arrow indicates some connection between one or both of the figures of $450 and $750 net to amounts of $900 to $1200.

64 There is reference to a “comp” rate of $364 net per week and some calculations showing the result of reducing a figure of $500 by amounts of $200 and $300. For all practical purposes nothing else appears on this document.

65 Mr Honeyman’s file memo relating to the conference says simply:-

“With view to consideration as to whether proceedings in Common Law should be continued having regard to settlement of Workers Compensation matters. Discussed in conference:

1. Need to obtain details as to the availability of work as a driver and rate of pay.

2. Details required of Jason’s earnings.

3. Need to get group certificates of comparable employees with names blocked out from June 1994 to June 1995 in work as an operator. Jason suggested Eastcoast at Glossodia and W & D at Oakville. He says that W & D pay more and that Eastcoast only use a line pump.

4. John pointed out that if Jason redeemed his workers comp for a common law claim he would be out of the Social Security system probably for 5 years until he was about 30.

5. Jason said he still suffers anaemia and a back injury. He was seeing a Doctor at Westmead for anaemia but does not see him anymore.”

66 Mr Honeyman wrote to the Plaintiff on 20 December 1995. In this document, Mr Honeyman refers to the conference and the letter continues:-

“We note also our conference with you and Counsel, John Dodd, …

We confirm that whilst we have commenced proceedings on the common law claim, we are not totally confident yet that the net amount and the benefits to be derived from the claim, if it continues, would outweigh what is already occurring.

As advised to you in conference, any success in the Common Law proceedings would involve a redemption or payback of the workers compensation amount. It would also preclude you from obtaining social security for a substantial period, probably for 5 years or so. Any Common Law claim settlement would also require that any future ongoing medical costs would be borne by you personally.

However, we had indicated that the claim is certainly worth considering further and for that purpose we intend to obtain comparable wage earnings for the two other employers, Eastcoast and W & D, noted by you. We recall that you were to provide to us details of their addresses and phone numbers so that we could pursue this and we would be much obliged if you could please follow this up and advise Nicole of this office as soon as possible.”

67 (In evidence, Mr Honeyman explained that what he meant by “we have commenced proceedings” was that he had sent to the AMP the Plaintiff’s Motor Accident Personal Injury Claim Form.)

68 In the letter Mr Honeyman went on to observe that the motor vehicle insurers were entitled to reasonable information pertaining to the claim and recommended that the Plaintiff provide the information that had been requested by the insurer’s investigator.

Legal Fees and Correspondence re Retainer Termination

69 On 27 October 1995, Mr Honeyman also sent to the Plaintiff an account. The correspondence from this time onwards deals both with the progress or possible progress of the Plaintiff’s motor vehicle claim and payment of the Defendants’ fees.

70 The account was for work described as unrelated to the Application for Determination in the Workers Compensation Commission amounting to $1,650 and a further sum of $2,000 for anticipated disbursements in relation to the motor accident claim. The account included a notation that any disbursements relating to the Workers Compensation claim which were disallowed would be billed separately. (An account for those fees had been sent to Messrs Sparke Helmore on 12 September.) It may be that there was a letter with this account of 27 October. Subsequent correspondence refers to one but there is not such a letter in the copy of the solicitor’s file which was tendered. Also on 9 November 1995, according to a later letter of 19 February 1996, Mr Honeyman wrote to the Plaintiff but no letter of that date appears to be in evidence.

71 In his letter of 20 December 1995, other aspects of which I have quoted above, Mr Honeyman also recorded that the firm’s account of 27 October totalling $3,650 was still outstanding notwithstanding a recollection that the Plaintiff was intending to arrange payment immediately after clearance of the MMI cheque and asked for payment by return.

72 On 12 January 1996, Mr Honeyman wrote again asking the Plaintiff to telephone to discuss the previous letters of 27 October and 20 December.

73 On 15 February 1996 Mr Honeyman spoke to the Plaintiff. The file note recording this conversation reads:-

“Telephone call to Jason.

Finally with some success on 15 February 1996 he confirmed he was still living at William Street, Richmond but that he had received no mail whatever from us. I expressed surprise of this and asked how I could guarantee some mail might be forwarded so that it would be received and we agreed that I would send it to his mother’s address at Bathurst Street within the next day or two. I asked that he keep a note that if nothing had arrived by next Wednesday, 21 February, he was to telephone me so that we can yet make further arrangements.”

74 On 19 February 1996 Mr Honeyman wrote forwarding copies of letters of 27 October, 9 November, 20 December and 12 January. In the letter the Plaintiff was asked to consider all the previous correspondence carefully and, given the period which had intervened, to pay the outstanding account. Mr Honeyman also said:-

“It particularly concerns us that we have been formerly (sic) unable to commence proceedings in regard to the possible Common Law claim until we receive the information requested in our attached letters.”

75 On 28 February Mr Honeyman wrote again asking the Plaintiff to contact him urgently if the Plaintiff was having any difficulties in regard to payment of fees or dealing with the correspondence previously forwarded. Mr Honeyman also said, “your claim is otherwise being jeopardised”.

76 On 5 March Mr Honeyman spoke by telephone to the Plaintiff. According to Mr Honeyman’s file note, the Plaintiff said that he only got the paperwork “yesterday”.

77 On 7 March the Plaintiff, and Mr Honeyman had a further conference. Jenny Buck was present. Mr Honeyman’s file note includes the following:-

“Client appeared to have a vague recollection of matters previously discussed in conference with Counsel so I went through those again. Spelling out income detail the options available in regard to the future carriage of this matter.

I confirmed that it could simply stay as it is and he could stay on the workers compensation system or we could consider formally commencing proceedings and I reminded him of the time limits for commencement of those proceedings and confirmed that from any settlement or order the amount paid for workers compensation moneys would be deducted. I had fears about his handling the monies paid to him when he gave me explanations as to what had happened to him over the last 5 or 6 months. He said he had basically gone feral and gone off the air. He did not offer any further explanation so I did not seek it, although I get the view he may have been mixing with a group of people who had befriended him as a result of his obtaining the money. He said he had lent a substantial amount of the money to “friends” but I shouldn’t worry about that because he had “got it down in writing and it was all legal”. That concerned me a great deal but he appeared not to wish to discuss that any further.

He indicated that he had been to Queensland for some time, had brought a Stingray Corvette car for $28,000. It had blown up on the way back from Queensland and he had it towed to Sydney. He spent about $8,000 getting the motor repaired and also brought (sic) a number of other things. It concerned me and I expressed my concern that if we did commence common law proceedings and he did receive further money, then it was quite likely the same situation would arise again. Whereas at least with the workers compensation proceedings he is in effect protected from himself because he is on the system which would pay expenses and compensation as it falls due. If common law claim is successful and he received a further lump sum, I have fears that it might disappear quite quickly.

He promised certain things as set out in my letter today to him.

78 On 11 March 1996 Mr Honeyman wrote again, saying inter alia:-

“We note that you have not yet completed the questionnaire from the representative of the insurer…

We note you were also to check with the RTA to establish whether it has a record … which confirmed that you could proceed to a 3B truck licence…

We note you also have a copy of our account of 27 October 1995 and have indicated also that you will arrange payment by the 13th inst.

… It will be necessary for us to carry out substantial further work shortly in relation to the possibility of a common law claim and confirm we are unable to do so without receiving funds for the work previously carried out.

We note that if proceedings are to be considered, then it will be necessary to formally commence those this month.

Proceedings would otherwise be out of time.

The Court Rules prevent us from commencing proceedings until we have undertaken all steps to co-operate with the insurer in relation to answering particulars. …”

79 On 20 March, on behalf of the Plaintiff, Jenny Buck faxed to Mr Honeyman answers to most of the 79 questions posed by AMP Insurance’s investigators.

80 On 25 March Mr Honeyman wrote again to the Plaintiff advising of a number of unsuccessful attempts to contact the Plaintiff to obtain answers to some of the questions left unanswered by Ms Buck and advising that those questions seemed to have been reasonably made and important. The letter included the following:-

“We confirm our advice to both of you in conference on 7 March and to Jason previously that the insurer has the right to seek answers to reasonable questions and if these are not provided then we cannot commence proceedings. The Motor Accident Act provides for this quite clearly.

If the proceedings are not commenced by 7 April next you are technically out of time and an explanation has to be given to the Court as to why delay occurred. It is quite possible that they would not be reasonable in which case the proceedings would not be allowed to continue.

You can appreciate the writer is concerned of this possibility and to spell it out very clearly to you the matters as they stand.

The writer has now on a number of occasions requested payment of our account which is now 5 months in arrears.

We note in a conference with you and Jenny on 7 March that you indicated that you would arrange payment by the 13th.

We simply cannot proceed to fund the matter to the extent that has been required especially as a considerable sum has already been paid to you in relation to the workers compensation claim such that you should be in funds to assist with out-of-pocket expenses in relation to this proposed claim and payment of the account in relation to the workers compensation matter previously rendered to you.

We enclose draft Statement of Claim showing particulars. Would you please also carefully check the draft and indicate to us whether you wish any alterations to any part of it. Your advice by urgent return telephone would be appreciated.

It is imperative that you provide us with:-

Unless these are provided we cannot commence proceedings. If we do not commence proceedings within the due time we confirm the risks to your claim as also set out above.”

81 On 15 April Mr Honeyman wrote to investigators acting on behalf of the AMP providing answers to all but about 12 of the 79 questions which had been asked. Apart from changing “to be answered” to “to be advised” the answers supplied to the AMP were for all practical purposes identical with those supplied by Ms Buck.

82 On 26 April 1996 Mr Honeyman had a telephone conversation with Ms Buck. His file note includes the following:-

“(Ms Buck) said that she and Jason separated at around Christmas although they still speak to each other and she has seen him from time to time.

She said that one of our letters she noticed was still in his car unopened about 2 weeks after he picked it up.

I suggested that perhaps part of Jason’s problem is that he didn’t want to come to the reality of what had happened or could not and that any correspondence or approach from me brings the accident back home to him. She said that this could well be the situation…

I said that I had prepared a letter to send to Jason in effect terminating instructions. She said in that regard that Jason was fully appreciative of everything that we had done and that she knew that he was very happy with me and with our firm…

She suggested that she contact him within the next week or so and have a further discussion about his obligations. I said I would agree to this for a week or so…

83 A letter in Exhibit Q seems to be the letter referred to in the phone call. It is in similar terms to one sent on 10 May but bears 2 handwritten lines drawn more or less vertically through it.

84 The letter of 10 May included the following:-

“We regret that we can no longer act for you unless you are in a position to let us have instructions as required.

Unless we hear from you to the contrary within 10 days from today, we intend to formally terminate instructions… We have drafted statement of claim but are unable to formally file it until we obtain your instructions to so do…

In the meantime, we enclose actual account for fees incurred to date and irrespective of whether we continue to act on your behalf, we ask that you let us have payment on or before Friday 24 May next.

We confirm any claim you may have in relation to the Motor Accidents Act may be further prejudiced or jeopardised by your continued failing to provide instructions…”

85 The account enclosed was for a total sum of $6,439 made up of $1,650 “costs pursuant to detailed analysis – 27.10.95”, $964 for disbursements and $3,825 described as:-

“To our costs subsequent (to 27.10.95) as documented by correspondence to you, to insurer’s investigator, including conference with you and investigator, provision of statement, updates with you, insurer and investigator, substantive brief to Counsel, arrangements for conference, attending with you and Counsel Sydney conference, advice to you thereafter, formulating comparable wages, letters to comparable employers, discussions and updates with you and Jenny – 25.5 hours - $150.00 per hour.”

86 In evidence Mr Honeyman conceded that in fact he had not formulated comparable wages, and not written letters to comparable employers and that charges for this work should not have been made.

87 On 18 June 1996 Mr Honeyman wrote again. He noted he had not received any reply or response to his letter of 10 May and observed:-

“Based on our not receiving any reply whatever, I take the formal view that we are not to continue in any way with the claim and I wish to record that with you now formally.”

88 After a somewhat detailed explanation of his stance, in the letter Mr Honeyman also advised:-

“Regrettably if payment is not made, the writer will withdraw from carriage of the matter and enforce (sic) proceedings (for costs) will be commenced.”

89 The letter of 18 June 1996 was returned to sender.

The October 1994 and November 1995 conferences - Plaintiff

90 Asked what advice he was given in the first conference with Counsel, the Plaintiff said “pretty much the same as I was told by Mr Honeyman”. In this answer he was referring to an earlier one to the effect that his first advice from Mr Honeyman was that he was entitled to a Workers Compensation lump sum “or” – the Plaintiff’s word – a motor vehicle accident payout. At that earlier time the Plaintiff told Mr Honeyman to proceed with both.

91 The Plaintiff agreed at that conference Mr Dodd said words to the effect of “Let’s see what we can get under the Workers Compensation Act first”, get things started for a claim under the Motor Accidents Act, and then decide whether to pursue the Motor Accidents Act claim. The Plaintiff understood that there was a possibility of a Motor Accident Act claim after he had received Workers Compensation and that receipt of the compensation first did not stop him bringing a motor accident or negligence claim although he also said that he was told that he couldn’t have both. The Plaintiff was conscious of Mr Dodd also having identified the need to get further information.

92 Still dealing with the October 1994 conference, the Plaintiff said that he had been advised by both Mr Honeyman and counsel that he would be better off to stay with his Workers Compensation and he was given figures “something like $250 to $400, I would have had to pay back $160,000 out roughly”. I have no doubt in this answer the Plaintiff was confusing the first and second conference with Mr Dodd.

93 Asked what was said at the second conference the Plaintiff said that he was advised by both Mr Honeyman and counsel and the advice given was:-

“I was better off to stay with workers comp, because I could lose it. … He had figures written down. … it was more or less – if I went for it and lost it, I would lose everything.”

94 The Plaintiff said he saw the figures written down and identified what were clearly established to be Mr Dodd’s notes to which I have referred above.

95 The Plaintiff said that the 250 and the 400 – he was obviously talking of thousands – may not have been the exact figures but were close. He said he was also advised that he would receive no more for pain and suffering than he had already received. According to the Plaintiff:-

“Mr Dodd said, if I took the matter to a civil court, win or lose, if I won I would have to pay back my lump sum, I would not get my weekly pay or my medical bills, I had already been paid for pain and suffering, so there was none of that, I think because my wages had been covered by workers comp, there was no back pay, I could go for loss of earnings, I am pretty sure.”

96 The Plaintiff said he told the lawyers to look into his wages, that he had just received a letter from the RTA about a 3B truck licence and in a couple of weeks his pay would have gone up to between $900 and $1200 per week. According to the Plaintiff Mr Dodd was somewhat unbelieving about those figures and the Plaintiff told him he could look into it by ringing Robert Constable or a couple of other concrete companies. The Plaintiff said he remembered Mr Dodd asking him about other workers who would be doing the job the Plaintiff would have done if he had a 3B licence and said he provided the names on that day.

97 The Plaintiff agreed that Mr Dodd said to supply Mr Honeyman with details of the persons earning the higher income which the Plaintiff said he could earn with a truck licence so that Mr Honeyman could contact W & D Mobile and East Coast, the employers of these people and get details of their earnings. The Plaintiff understood that the further material from these other employers had to be obtained to ensure that there was a proper basis for making a claim for the larger sum of money.

98 The Plaintiff agreed that the purpose of the second conference with Mr Dodd was to see what could be done to advance the motor accidents claim, what information should be obtained to get the claim under way and if the information was not already available to follow it up. The Plaintiff also understood that a purpose of the conference was to see whether he should stay with his Workers Compensation rights.

99 The Plaintiff denied that during the course of the second conference that Mr Dodd was setting out for the Plaintiff an assessment of parts of the value of his case. The Plaintiff did understand Mr Dodd was trying to make an assessment about whether it was appropriate to bring a motor accidents claim, that Mr Dodd needed information from the Plaintiff to assist in that task and also information from other people. The Plaintiff also understood that at the end of the conference further information had yet to be obtained.

100 Taken during cross-examination to matters in detail, the Plaintiff said he could not recall whether Mr Dodd had told him at this conference that he was entitled to money for pain and suffering. The Plaintiff did recall Mr Dodd saying that if he were to get money for pain and suffering it was about the equivalent of what he had already received from Workers Compensation amount of $161,666.

101 The Plaintiff agreed there was discussion about past loss of income and Mr Dodd saying words to the effect that that was effectively a nil gain. There was a difference but it was a minimal one (between any amount to be awarded at Common Law and pre-award Workers Compensation).

102 The Plaintiff agreed that the next topic discussed was future economic loss and there was discussion about the fact the Plaintiff might have received $450.00 net per week before the accident and that some assumption had to be made about what he might still be able to earn. The Plaintiff did not recall mention of $150 per week in that regard but did recall Mr Dodd saying words to the effect “that leaves you with a net loss of $300 per week”. The Plaintiff agreed that Mr Dodd had said words to the effect:-

"If we take $300 per week for the balance of your working life and apply the formula with a 5 per cent multiplier, and then we reduce that figure by 15 per cent for uncertainties" - what he might have referred to as vicissitudes - "then the approximate figure you could receive for future economic loss, if you are successful in the motor accidents claim, is $234,000"?

103 The Plaintiff agreed that he understood the figure of $234,000 was based on assumptions that he was receiving $450 per week net, and that he could still do some work. He also understood that some reduction had to be made to account for uncertainties of life and that the figure of $234,000 was for his potential future economic loss. The Plaintiff had no recall of Mr Dodd mentioning figures of 20 or 25% for vicissitudes.

104 The Plaintiff also recalled Mr Dodd having referred to an assumption that the Plaintiff could earn $200 per week and on that basis would have a loss of $550 per week after tax. Allowing for vicissitudes, if the Plaintiff was successful in his motor vehicle claim, then the figure for future loss of earnings would be $429,000.

105 The Plaintiff agreed that he understood that when Mr Dodd, made the calculation to reach the figure of $234,000 that was based on, in part, the income the Plaintiff had been receiving or may have been receiving had he continued to work for Constables and that the higher figure of $429,000 was based in part on what the Plaintiff hoped to receive if he could earn what the people at East Coast and W&D were earning. In another answer the Plaintiff agreed that he had understood that the calculations Mr Dodd had made were calculations based on the Plaintiff’s future loss of income.

106 However the Plaintiff would not agree that it was his understanding during that conference that the figures of $234,000 and the second figure of $429,000 were amounts for (only) future loss of income. When asked, “It was the loss of income that you might have received from working in the future?” the Plaintiff replied:-

“Not loss of income, that's what I would have got full stop. You say loss of income and that's not what he said. He said that's what I would get in court full stop. No medical bills, no nothing.”

107 Challenged on that last answer, the Plaintiff was adamant that he was not told that if he succeeded in a motor vehicle claim, an allowance (over and above the $234,000, $429,000 or other amount similarly calculated) would be made for the cost of prostheses and other medical expenses.

108 On the other hand the Plaintiff did understand that if he remained on Workers Compensation the amount of that would vary depending on how much he earned and how many children he had but that he could keep his entitlement to medical expenses.

109 Asked whether he recalled that Mr Dodd had said that if this larger claim for future loss of income can be substantiated or made out, it would be better to pursue a motor accidents claim because you'd be around $200,000 ahead, the Plaintiff said “No”.

110 The Plaintiff gave evidence that during the course of the conference Mr Honeyman did not say much but was agreeing with what Mr Dodd said. Also it was during this conference that the Plaintiff formed the view that Mr Honeyman was not doing his job and had shown a lack of care for the Plaintiff’s motor accident claim.

The October 1994 and November 1995 conferences – Mr Dodd

111 Mr Dodd said that prior to the start of the conference on 17 October 1994, he reviewed the papers he had and, based upon reading in the investigation report about the dimensions of the grate over the hopper, formed the view that, in addition to his Workers Compensation rights, the Plaintiff had a good Common Law cause of action, the only question regarding that claim being whether it was an industrial accident or a motor accident, a distinction which had implications as far as the election provisions in the Workers Compensation Act were concerned. If an industrial accident, acceptance of lump sum compensation precluded a Common Law claim against the employer.

112 During the conference Mr Dodd received personal information about the Plaintiff, his pre-accident activities, employment history and some intentions for the future. Notes and sketches made by Mr Dodd also indicate discussion about the circumstances of the accident and consideration of possibly applicable or analogous regulatory provisions. There was discussion as to the identity of the Plaintiff’s employer, group certificates and Mr Dodd told Mr Honeyman that statutory certificates under ss12 and 36 of the Roads and Traffic Act were needed.

113 Mr Dodd was told that the Plaintiff’s pre-injury usual rate of pay was between $400 and $600 a week but that the Plaintiff had just obtained his 3B licence to drive a truck, which would result in him earning more money, somewhere in the order of $900 to $1,200 a week. A Mr Darryl Day was nominated as the driver of a second truck run by the Plaintiff’s employer.

114 Mr Dodd asked if there was work available from other employers and the Plaintiff told him that the biggest operator in the concrete pumping industry was W & D Mobile, and there was another company called East Coast. Mr Dodd made a note “comparables”, intended to indicate the need to obtain comparable earning figures from those employers.

115 Mr Dodd advised that there should be set in train, firstly, the claim for lump sum benefits under ss66 and 67 of the Workers Compensation Act for the loss of use of his leg and pain and suffering and for interest under that Act. Mr Dodd told the Plaintiff that he had a good Common Law case and that very soon a claim form under the Motor Accidents Act should be filed to set that in train as well, and then they should reassess as the matter progressed with the Workers Compensation claim as to which way to go.

116 Mr Dodd said that either the Plaintiff or Mr Honeyman was to obtain the group certificates from the employer, and that Mr Honeyman was to obtain the sections 12 and 36 certificates. Although the answer was not completely clear, Mr Dodd seemed to say that Mr Honeyman was also to make inquiries about potential earnings from other employers. Under cross-examination Mr Dodd also said that he was not sure whether he had suggested Mr Honeyman make these enquiries, adding that Mr Honeyman was taking notes throughout the conference and that usually the latter would take notes and follow things up.

117 Mr Dodd said that the point of the November 1995 conference was to discuss what needed to be done, and whether to thereafter proceed with a claim under the Motor Accidents Act. At the beginning he told the Plaintiff that "The reason why we are here is now that you've got your Workers Compensation lump sums, to work out which is the best way to go, and whether to bring a motor accidents claim".

118 Prior to the conference commencing Mr Dodd calculated and noted that the $161,666 the Plaintiff had received by way of lump sum Workers compensation payments was equivalent to 68.79% of a most extreme case under the Motor Accidents Act. There was discussion about this, Mr Dodd saying that he considered that the Plaintiff’s non-economic loss in his motor accidents claim would be assessed at about that amount in the order of two-thirds to 70 per cent in the most extreme case. Therefore, there was little difference between what he received and what he could potentially receive in the motor accidents claim for non-economic loss components. Mr Dodd made no calculation of interest on this head of damage because of the statutory provision precluding it.

119 Mr Dodd then said to the Plaintiff that he had received compensation benefits to date and that they would largely contra his entitlement to past economic loss. Later Mr Dodd said that he had told the Plaintiff that there was a nil or minimal gain. It was inconsequential to Mr Dodd, there being nothing that would make a difference in the decision-making that the Plaintiff would eventually have to undertake.

120 Referring to exhibit E, his handwritten notes of this conference, Mr Dodd said that he produced the earning capacity figures in front of the Plaintiff telling the latter that, so far as future economic loss was concerned, his comparable earnings were 450 a week, he had a residual capacity to earn 150, that would lead to a differential of 300 and that on the 5 per cent tables for the 40 years left of his working life, with 15 per cent for vicissitudes, that was equal to $234,000. He also told the Plaintiff that the "standard model deduction for vicissitudes was 15% but over such a long period of 40 years a judge might deduct up to 20 to 25 per cent”.

121 Mr Arnold again raised having obtained his 3B truck licence. Mr Dodd told the Plaintiff that assuming that what he said was correct and that his probable weekly earnings, but for injury, were $900 to $1,200 gross per week, that led to a net figure of $750 per week, less a residual earning capacity of $200 a week gave a differential of $550 and on the same basis of the 5 per cent tables, et cetera, would lead to a future economic loss component of $429,000. Mr Dodd said that during these calculations and remarks he was using a calculator and a Furcer Crestani actuarial reference document containing multiplying factors, tax and interest rates and like information. The $750, according to Mr Dodd corresponded approximately to $1,100 per week gross.

122 Mr Dodd said that he told the Plaintiff that “if we are able to substantiate (those figures) then there would be no question of bringing a Motor Accidents Act claim because for the extra 200,000 if he happened to give something away by way of finalising his entitlement to medical expenses by settling his Motor Accidents claim, then was still a couple of hundred thousand ahead”.

123 Mr Dodd also noted that the Plaintiff’s compensation rate at the time, after tax, was $364 net per week. He also “told Mr Arnold further regarding medical expenses that he had been paid all those to date and they would have to go back to the Workers Comp insurer. And regarding future expenses he would get an allowance for those in the Motor Accidents claim, and once that claim came to an end then he would be on his own”.

124 Mr Dodd said that, although he had not noted the matter he specifically recalled that in response the Plaintiff said "That's no good. If my prosthesis (or leg) gets wet it warps and needs to be replaced and costs $9,000 a time." During the conference the Plaintiff became agitated about this topic.

125 In the conference Mr Dodd told the Plaintiff that if he stayed in the Workers Compensation system he would be entitled to have his medical expenses met when they occurred until he dropped dead. One option was to proceed with his Motor Accidents claim, to bring his rights to an end and get an allowance for any future medical expenses, and another option was to stay in the Workers Compensation system and get his medical expenses met from time to time as they arose.

126 Mr Dodd went on to explain the Plaintiff’s entitlement to weekly compensation payments as he saw them, referring to a gross rate of pay of $500 a week, possible earnings of $200 and $300 a week and the effect to such amounts on compensation, this situation continuing until the Plaintiff turned 66 but also subject to how many wives and children the Plaintiff had.

127 Mr Dodd said that because he still didn't have the comparable earnings details he specifically gave Mr Honeyman a list of inquiries to make, including the Plaintiff’s earnings details from working for Constable Bros, the earnings details of the other employees working as truck drivers for W&D and East Coast, and some information about the availability of such work. He agreed he had heard Mr Honeyman say to Mr Arnold words to the effect, "We'll need the group certificates from your mates. Come back with those and the 3B letters" but added that he, i.e. Mr Dodd “also gave Mr Honeyman the points that I'd mentioned for him to follow up – that is, to make the inquiries direct”. Mr Dodd gave evidence that he had said that when these were obtained, he could fully advise, he anticipated, probably early in the New Year.

128 He did not suggest to Mr Honeyman that he ought to get him material from the supplier of the plaintiff's prosthetic device as, he said, he already had information from the then supplier, the Repatriation Department of the Commonwealth. He said that his recollection was they had actually carried out a calculation of future supply and his recollection was up to $89,000, although he wasn't completely satisfied with the way the figures were calculated. However the figure provided some idea. Later he said that the “$98,000” (sic) wasn’t much at all compared with his Workers Compensation rights (I infer, in respect of medical expenses). Mr Dodd did not detail the basis of his dissatisfaction with the method of calculation.

129 Mr Dodd said that he did not give any information or advice about the quantum of superannuation entitlements because that's very much dependent upon the extent of the economic loss and not knowing what the economic loss was, he couldn't work out the superannuation entitlements. According to Mr Dodd, for practical purposes the allowance for superannuation would be 9 or 10 per cent of the economic loss.

130 Mr Dodd also gave no advice as to potential entitlement to benefits pursuant to Griffiths v Kirkmeyer (1977) 139 CLR 161, there being no indication that there was any need for domestic assistance and also because of the threshold under s72 of the Motor Accidents Act. Nor did Mr Dodd give any information and advice to Mr Arnold about entitlements pursuant to Fox v Wood (1981) 148 CLR 438because they were talking about only 18 months post-injury, he didn't have any Workers Compensation list of payments, the Plaintiff would have been paid his award rate of pay for the first six months and the compensation rate with a wife and two children thereafter and thus the amount would be minimal, particularly compared with the figures for non-economic loss, future economic loss, and future medical expenses. Challenged, Mr Dodd retreated somewhat from the proposition that he did not have information as to the weekly amount of compensation.

131 Mr Dodd did tell the Plaintiff that if he settled his motor vehicle claim then he would be excluded from social security benefits for about five years. Mr Dodd also said that he remembered saying words to Mr Arnold, "You have prospects of a good chance, at least a couple of hundred thousand dollars better” in terms of his economic loss.

132 Mr Dodd denied telling the Plaintiff that if he commenced proceedings to claim Common Law damages and he lost those proceedings, he would lose everything, including his right to ongoing weekly payments of Workers Compensation benefits. Although agreeing that he had told the Plaintiff that his claim was worth in the range of $200,000 to $400,000 regarding future economic loss, Mr Dodd denied saying that was the value of the claim overall. Mr Dodd denied advising Mr Arnold that he would be better off retaining his Workers Compensation rights and did not advise him that he should or should not pursue a motor accidents claim.

133 Mr Dodd said that he didn't even give a preliminary view as to how the matter was to proceed. That is, it was a series of calculations which would then lead to further inquiries and then he could actually express a view. He had given such a range for, for example, the future economic loss.

134 Mr Dodd said that the reason he didn't advise the Plaintiff during the course of that second conference as to why he should or should not pursue a motor accidents claim or stay on Workers Compensation was because he had been asked to advise as to quantum, and simply didn't have the information available to fully advise, so that Mr Arnold could then make an informed decision and give instructions. Mr Dodd said that the missing information was primarily the wage information from other employers and their workers and the availability of such work

135 Mr Dodd said that if the information had come up at a $400,000 figure for future economic loss, then there would be strong advice from him to pursue such a claim but at the lower figure it would be up to the Plaintiff which way he wanted to go.

136 Challenged, Mr Dodd accepted that he could have advised the Plaintiff on the basis of the information he was given but said that that would have resulted in a wide variety of potential outcomes.

137 Mr Dodd said that he could not recall any discussion of the possibility of losing a Common Law case and the Plaintiff having to pay the other side's costs. This was because the possibility of losing wasn't realistic.

138 Asked whether he had directed attention to the topic of how well or badly the Plaintiff was coping with his artificial leg, Mr Dodd said that it was discussed, but he could not recall the detail and had obviously not made a note of it. Mr Dodd said that the Plaintiff raised the problems of it having to be replaced and that when the leg became wet it warped, which meant he couldn't walk probably and therefore it had to get replaced each time. As regard the interaction between the socket and his stump, Mr Dodd said that he could not recall one way or the other.

139 Asked would not the topic of the interaction between the stump and the artificial leg have been significant in terms of his future earning capacity, or his residual earning capacity, Mr Dodd said:-

“Not particularly, in my mind, because anyone with an artificial limb is always thinking about sit-down jobs in any event. That is, you can't say, "Well, you have got an artificial leg, therefore you can walk around, you would be able to do a job that involves walking around", because it's always the case that people have problems with their stump and interaction with the socket.

But in terms of sitting down-type jobs, or working in factories or driving a truck, depending on which foot you are using for what, then as to whether you are having one problem or the other, as far as your stump is concerned, usually doesn't make much of a difference. But we're talking about something that is, if I can put it, down the track. That is, we weren't making any decisions at this stage as opposed to a firm decision to get the information as to which way to go.”

140 Asked whether the question of the real value of future medical expenses was something that needed to be looked at, Mr Dodd said, “Yes, eventually.”

141 After that second conference, Mr Honeyman never contacted Mr Dodd to discuss Mr Arnold's claim.

The October 1994 and November 1995 Conferences – Mr Honeyman

142 Mr Honeyman said that he had only a general recollection of what was discussed at the conference on 17 October 1994, but the thrust was that Mr Dodd went through the figures and time limitations, how to proceed with a Workers Comp claim and the alternatives of a Motor Accidents and employer claim. There was discussion regarding the lodging of a claim form pursuant to the Motor Accidents Act, of the need to show some negligence on behalf of the employer, or on behalf of the owner of the motor vehicle. There a discussion about the benefits that would be received under the Workers Compensation Act including all medical costs, prostheses costs, weekly payments and in respect of the lump sums under the sections of the Act which gave rise to lump sum payments and about how to go about making claims under sections 66 and 67 of the Workers Compensation Act. Mr Dodd particularly made reference to the fact that if he proceeded or if a motor accidents claim was to be considered that he would probably be getting roughly about the same component for general damages as he calculated he would probably get under the ss66 and 67 system for Workers Comp.

143 Mr Honeyman also agreed that at this conference Mr Dodd had advised that the Plaintiff’s economic loss component might not be all that great because he probably would be able to find other work.

144 Originally Mr Honeyman said that he was sure that in this conference the Plaintiff did not advise that he had obtained his 3B licence, or a right to obtain it although later he said that he could not deny this occurred. Nor could he deny that the Plaintiff said that he could have earned $900 to $1,200 per week. Mr Honeyman could not recall whether the Plaintiff gave the name of Darryl Day as a comparable employee or whether the Plaintiff mentioned the name of other organisations that could be inquired of to ascertain earnings of people doing comparable work.

145 Asked his memory of the second conference, Mr Honeyman said that Mr Dodd spoke about the differences between staying on Workers Comp and getting on to a Motor Accidents claim, and when in the course of going through figures and doing comparables, Mr Dodd said to the Plaintiff words to the effect that "If you proceed with a Common Law claim, then there will be an allowance for your medicals, but if you stay on Workers Comp you will be covered until you drop dead, on medicals, so your prostheses, be it that they go up and improve and cost more money over the period of your life, everything will be covered 100 per cent under Workers Comp."

146 Mr Honeyman could not remember any discussion about the Motor Accidents claim not succeeding or what would occur in that eventuality.

147 There was discussion that in the event that he proceeded with and obtained money under the Motor Accident claim, he'd have to repay his Workers Comp and he'd be out of the system for a period of time, Mr Honeyman thought Mr Dodd mentioned about five years or so in this connection so far as an economic component was concerned.

148 According to Mr Honeyman, the Plaintiff “expressed a real concern at that time that he didn't want to be in a position where he'd have to pay out, I think, $9,000 or whatever at a time for a new prosthesis. He did express genuine concern about the possibility that might happen to him”.

149 In cross-examination Mr Honeyman agreed that an account Mr Dodd had given as to the conference in November 1995 was accurate. That account became Exhibit 4 and after reciting conversations dealing with future earnings and the calculation of the sums of the $234,000 and $429,000 figures and the consequences of receipt of income in addition to Workers Compensation, the document recounted the following:-

Dodd: “If you’re successful in a Motor Accidents Act claim, you’ll receive a lump sum for future medical expenses, and then you’re on your own.”

Arnold: “That’s no good, my prosthetic leg costs $9,000 a time. If it gets wet, it warps, and I need to get it replaced.”

370 Allowance for loss of superannuation, pre-verdict loss of earnings and Fox v Wood can be calculated from findings I have made or matters of record such as the Plaintiff’s Workers’ Compensation payments. There is no basis for any Griffiths v Kerkemeyer damages. Out of pocket expenses to the date of assumed hearing will also be a matter of record. (The exhibit setting these out does not detail the extent to which these were before or after February 2000.) Amounts to be paid back are also a matter of record.

371 The allowance likely to have been made in early 2000 for future prostheses or other out-of-pocket expenses is a matter to which I must expressly advert. Exhibit K, the report from the Appliance and Limb Centre makes it apparent that the costs associated with the provision of prostheses has been much greater than would have been apparent in November 1995. The difference in cost between the prostheses supplied in 1995 and 2000, together with the difference in description indicates that the latter reflects a quantum leap in technology. At least to the extent that the higher costs were incurred, they arose first on 8 June 2000 and it was submitted that they should not be allowed in an assessment notionally made in February 2000. However Mr Brown, the author of Exhibit K gave evidence that the newer type of prosthesis had become available in early 1998. Any half-decent preparation of the Plaintiff’s case for trial in 2000 would have involved the obtaining of a report as to likely future costs, probably from the Appliance and Limb Centre, and in this situation it is appropriate to take into account much of the information in Exhibit K for the purposes of determining the damages likely to have been recovered in February 2000. Allowance will have to be made for changes in costs over time but the exhibit provides some indications of these and Mr Brown provided other information in this regard. While I do not believe that all of the post-February 2000 costs should be reflected in the assessment required, in principle, I regard the exhibit as throwing light on the February 2000 assessment.

372 The information that was, or I infer would have been, available in February 2000 is that for the period 31 October 1994 to 8 June 2000 and, subject to the qualifications that follow, that contained in pages 3 and 4 of the report, exhibit K. One qualification relates to costs which it is clear increased between February 2000 and the date of the report, December 2003. The cost of item 3 on the third page should be taken as at February 2000 as $44,742, the cost of the prosthesis supplied on 8 June 2000. Reflecting evidence given by Mr Brown and not challenged, the cost of the other items should be adjusted by 3% per annum. Where a range of figures is given, e.g. “7 – 10 hours”, the mid-point should be used. No allowance should be made for the extended warranty plan.

373 There should not be included in the Plaintiff’s damages any other of the amounts appearing on page 2 of the exhibit, except insofar as the items are reflected on pages 1, 3 or 4 or what follows. As specific items or costs I am not persuaded that they would have been in contemplation in February 2000. On the other hand, as with any mechanical or physical objects, breakages as distinct from usual servicing, occur. In accordance with experience in other fields, I would not anticipate these to be covered by any warranty and some allowance should be made for them. It is known that stumps sometimes change and I would infer that sockets need adjusting in consequence. Labour costs for repairs and maintenance are already included in the report and I would allow another $500 per year on account of “parts”.

374 Implicit in what I have said is rejection of the submission that as Mr Brown’s report was generated in December 2003, the increases in costs did not occur until after the notional date of trial and Mr Brown did not say that as at February 2000 he was aware of the likely future cost of the Plaintiff’s prosthetic needs, I should not assess the Plaintiff’s claim in this regard by reference to the Appliance and Limb Centre report but by reference to the $89,000 odd assessment. The submission ignores the fact that there was plenty of time between the introduction of the advanced limb, as Mr Brown said in late 1997 or early 1998 and early 2000 for these matters to be known and, as I think would have occurred, introduced into evidence in early 2000.

375 I have wondered whether the full spare limb, item 2 on the third page, was not a little extravagant in light of the limited period that use of that item seems to be required. However, the need for or use of the 3 prostheses was explained and I have concluded that the claim is reasonable. I may perhaps add that there was no challenge by the Defendant or Cross-Defendant to the content of the exhibit. Although I do not need to rely on this, having reached my conclusion on other grounds, it may well be that this absence of challenge was tactical as a the Cross-Defendant’s submissions claimed a deduction for the costs set out in the report.

376 I should also add that there was evidence that the Plaintiff does not in fact have a recreational, and perhaps the second, limb referred to on page 3 of Exhibit K. I do not regard that evidence as evidence that would have been available in February 2000 or such as to create doubt on what the Court would then have done. Accordingly, in any calculation of the damages that would have been awarded in 2000, this evidence should be ignored.

377 In light of a submission made in paragraph 119 of the Cross-Defendant’s submissions, I indicate that there should be no discount in the calculation of this component for vicissitudes. The considerations that apply are quite different from those relevant to an assessment of lost earning capacity.

378 In February 2000 the Plaintiff was then 28. His life expectancy, according to the Life Tables at paragraph 10.117 in the Personal Injury Law Manual was then 51 years. An appropriate multiplier, according to paragraph 10.50 of the publication, was 978.4.

379 The Plaintiff’s counsel also made a claim for cost of future treatment at the rate of $50 per week, or approximately $50,000. There is no specific evidence supporting such a claim although Dr Wong’s report of September 2003 indicates that the Plaintiff then complained of back ache and right knee pain and that this may be due to the Plaintiff’s not completely natural gait. September 2003 is not February 2000 but again I would not expect there to have been any substantial difference. I have remarked on the quality of the Plaintiff’s limp which I accept to be genuine. In light of experience both generally and in the work in the Common Law Division, I think that I can take judicial notice of the fact that non-natural gaits have a tendency to cause problems in other parts of the body, particularly the spine and, both on this account and of the situation of the amputated limb, any assessment made in February 2000 should have included some allowance for the cost of future medical treatment. Evidence of when, and how much treatment in this regard should be could have at best have been very imprecise but future treatment could well include operations.

380 The Plaintiff has clearly required other medical or psychiatric treatment since the accident which I am satisfied flows from it. I am satisfied that something should and would have been allowed on this account in February 2000 for the future. The determination of amount is more difficult. Indeed it is impossible to determine with precision. An allowance of a lump sum cushion of $10,000 seems to me appropriate.

381 One matter which arises although not the subject of any express reference by counsel is travelling expenses. Exhibit S records that $24,706.48 was paid by the Workers Compensation insurer on this account. The report, Exhibit K, said that the Plaintiff would have to be in Sydney for attention to the prostheses. He gave his address as Barney’s Point, which seems to be near Gladstone and therefore some substantial distance from Sydney. These matters would lead me to the view that something should have been included in any 2000 verdict for ongoing expenses in this regard. I would anticipate that the parties could agree on an appropriate figure but if not, the nature of the topic is such that I would either allow further evidence or, if necessary, make a decision on such evidence as I have.

382 These findings are, I think, all that are necessary to enable the parties to calculate the damages which, I my view, are what the Plaintiff would have recovered in Common Law proceedings had they been instituted and come on for trial in February 2000.

Damages in 2006

383 It is appropriate to recognise that any Motor Vehicle proceedings may have been settled. However, earlier remarks lead me to the view that the Plaintiff’s entitlement would not have discounted on grounds of doubts about liability. Residual earning capacity is an area which was likely to be contentious but it is also an area where the Plaintiff had a claim higher than I have allowed. No other area justified any appreciable compromise and in these circumstances, the assessment of the Plaintiff’s damages here should proceed on the basis that, in any proceeding he instituted he would on 28 February 2000 have recovered a verdict calculated in accordance with the immediately preceding section of these Reasons.

384 However, in these proceedings allowance has to be made for events which have supervened since February 2000. One is that the Plaintiff’s Workers Compensation rights have and will continue, whereas they would not have had the Plaintiff succeeded in a Common Law action in February 2000. To avoid the Plaintiff being doubly compensated, these rights have to be valued and an appropriate deduction made.

385 To the extent to which payments have been made pursuant to these rights, the determination of the deduction is clear. To the extent to which the rights continue, that is not necessarily so. It was submitted on behalf of the Cross-Defendant that as the Plaintiff was continuing to receive weekly Workers Compensation payments of $457.57 per week, one should take the net portion of this – which was estimated at about $380 per week – multiply this by 1059.2 the multiplier in the 3% tables appropriate to payment until the Plaintiff turned 66, i.e.31 years from the time of trial, discount the result by 15% for vicissitudes and deduct the figure so arrived at from the moneys to which the Plaintiff would otherwise be held entitled. The amount of the deduction was calculated to be $342,121.60.

386 Some elements of this calculation may be accepted. For practical purposes, the Workers Compensation legislation provides that payments for those who are and remain entitled to receive them should continue until age 66. The 3% multiplier for the period contemplated, 31 years, is 1059.2. And harsh though it may seem when the present value of the Plaintiff’s losses is calculated using the 5% tables dictated by Parliament – and therefore a lower multiplier - 3% and a the multiplier of 1059.2 do seem to be those which must be used. (I should add that, correctly I think, no-one suggested that the matter came within the provisions of the Civil Liability Act, which might well have required a 5% multiplier to be used.)

387 However, I have reservations as to the remainder of the figures in the calculation. Firstly, there was evidence that the Plaintiff has children. The amount of Worker’s Compensation payments are liable to be affected by this fact. Hence one would expect that the rate of compensation payable will decrease as the children age. The parties did not address this and should have an opportunity to do so.

388 A question arises whether 15% is an adequate discount for vicissitudes. Putting aside the somewhat inconsistent submission of the Cross-Defendant when addressing the Plaintiff’s entitlement that the discount should be 20-25%, since I have rejected that and decided that that discount should be 15%, the Plaintiff’s entitlement to Workers Compensation is affected by additional factors, including that Constable Brothers or their insurer are entitled to seek to have the compensation payments terminated. They are not parties to these proceedings and not bound by my decisions. While I have reached a conclusion as to the Plaintiff’s residual earning capacity, a different tribunal might take a difference view. Advances in prostheses – Mr Brown referred to one imminent – might alleviate the problems which the Plaintiff has heretofore suffered so as to enable him to do more work than he can on my assessment and to earn at a rate which will affect his weekly compensation entitlement. While I must make a decision upon the basis of the evidence now, the Workers Compensation tribunals are not so limited. In light of these factors, it seems to me that the discount for vicissitudes should be higher than I have allowed in other areas. Although precision is impossible a decision is required and I add 2½ % so as to make the discount in the calculation of this item 17.5%.

389 It was also submitted that there should be deducted from the moneys to which the Plaintiff would otherwise be held entitled a sum reflecting the report as to the Plaintiff’s prostheses and associated needs. The submission was:

“Mr Brown’s allowances equate to $42,190.40 per annum ($811.35 per week). Assuming, (by reference to the life tables) that the Plaintiff has a residual life expectancy of 44 years and discounting at 3% for the whole of that period (1,284.5) and allowing 15% for vicissitudes the further reduction for future medicals should be $885,852.15.”

390 I prefer to deal with the matter this way. For the future, and subject to the remarks that follow, there should be a deduction determined as follows:-

(i) Subject to sub-paragraph (ii), it should cover the same items of equipment, service etc as have been included in the calculation of the corresponding head of damages.

(ii) Only one half, rather than the full amount, of the cost of items 1 and 2 on page 3 of Exhibit K should be brought into account

(iii) Otherwise, the cost of the items should be increased by 3% per complete year from the date of Mr Brown’s report until now.

(iv) In determining the present value, the discount rate used should be 3%.

(v) The Plaintiff’s life expectancy and the corresponding multiplier taken from the same tables as I have referred to previously are 44.4 years and about 1290 respectively.

(v) There should be no discount for vicissitudes (as there should be none when the value of the corresponding component of damages is assessed).

391 The reason I have limited the cost of items 1 and 2 is that, although I regard the supply of them as reasonably required, particularly when viewed as at February 2000, given that the Plaintiff had done without them to the time of trial before me, I am by no means sure that he will in fact enjoy the benefits of both of them throughout the balance of his lifetime. There is also a question whether the requirements of the Workers Compensation Act for the provision of these prostheses in addition to the one he presently has, will be met or, if there is a dispute on the issue, will be found to have been met.

392 It was also submitted that a deduction should be allowed on account of the solicitor/client costs the Plaintiff would have incurred and which, in practical terms, he would have reduced any verdict he received. Mr Honeyman gave evidence that such costs would be likely to have been of the order of $15,000. In principle I agree with the submission. As demonstrated in cross-examination, this amount may well have been less but it also may have been more. In these circumstances, I regard $15,000 as an appropriate allowance to be made.

393 On the other side of the ledger so to speak, the Plaintiff is entitled to interest on the amount of the verdict which he should, and but for the Defendant’s defaults would, have received pursuant to a trial commenced in February 2000. This course was opposed upon a number of grounds. One is that judgment in any such proceedings may not have been brought down for some months. That possibility exists but so does the possibility that the judgment might have been by consent or ex tempore. And if judgment was delayed, then it is probable that various elements of the damages would have been calculated, not by reference to a date in February 2000 but the date of delivery of any reserved judgment or a date closely following. A discount for vicissitudes would not have applied to damages for loss of earning capacity between the hearing and the date of any delayed judgment. Perfection is not possible in the selection of the date when judgment would have been given but it seems to me that the date of trial is as likely a date as any other and provides a reasonable basis for assessment. It also avoids the other complications to which I have referred.

394 A second ground of opposition to an award of interest is that the Plaintiff may have spent any moneys he received and not have used it to earn income. That also may be accepted. However, an award of interest is not merely to replace income that might have been earned but to compensate a Plaintiff for the loss of use of moneys to which he was entitled, the freedom of that use being a benefit however the money be employed. It might, as Priestley JA said in a passage in Tipper v Williams (Unreported, Court of Appeal, 12 May 1993) on which the Cross-Defendant relied have been employed it the purchase of a house rather than to earn taxable income. However, in light of the historical record of how house prices in New South Wales have moved, it could hardly be said that such use would have been of no benefit to the Plaintiff. Priestly JA gave as another example the purchase of shares carrying franked dividends.

395 In that case Clarke JA with whom Meagher JA agreed on the point, thought that any award of interest should have been at a lower than usual rate to reflect the fact that the plaintiff in that case would have had to pay tax on any investment of verdict moneys. It may be that their Honours were influenced by an acceptance of the proposition by opposing counsel and to which Clarke JA referred. However, as Priestly JA pointed out, earning taxable income was not the only way the verdict moneys could have been employed. There is no evidence before me as to what the Plaintiff would have done with any verdict he might have received and I am not persuaded that proper compensation does not lead to interest being awarded at the usual rates. When consideration is given to the possibilities of what the Plaintiff may have done with any verdict moneys - , there is certainly no probability that they, or even, most of them, would have been used so as to make any income earned taxable.

396 And even if one concluded that some of the moneys would have been so used, what conclusion should be reached as to the proportion of the moneys that would have been so employed, or the rate at which income would have been earned, or the rate at which tax would have been payable? The awarding of interest is discretionary. It strikes me that the approach of Clarke and Meagher JJA in Tipper v Williams is contrary to that generally adopted when the issue of the awarding of interest arises – see M.B.P. (S.A.) Proprietary Limited v Gogic (1991) 171 CLR 657 at 666 - but whether that be so or not, as a matter of discretion I am of the view that the Plaintiff’s damages to be awarded by me should include interest at the usual Court rates on the damages he would have been awarded in proceedings in February 2000. That approach best reflects the principal considerations bearing on the payment of interest - that the Plaintiff has been kept out of his money and (perhaps) that the Defendant has had the advantage of the use of it – see Bennett v Jones (1977) 2 NSWLR 355, Metro Meat Industry BD v Williams (1991) 24 NSWLR 54.

397 Although there was no express evidence that the amount of any judgment would have been paid within 28 days, thus avoiding any liability for interest during that period, equally the Plaintiff has not persuaded me that there would have been no such payment. Accordingly interest should be calculated from and including 27 March 2000.

398 Again, I think that I have said enough to enable the calculations incidental to this section of my reasons to be effected. My intention is to publish these reasons and afford the parties the opportunity of carrying out the calculations required. If anything has been omitted, it can be raised. There are also one or two matters to which I have referred that were not canvassed during the course of submissions. The parties should feel free to raise these also, on appropriate notice to opponents. They should feel appropriate to take the same stance in the case of accidental errors if it is thought there are any.

Apportionment

399 Unless it should turn out that the amounts to be deducted exceed those for which the Plaintiff is entitled to credit, the findings I have made lead to the conclusion that the Plaintiff has suffered damage in consequence of negligence of both the Defendants and the Cross-Defendant. Although the Plaintiff has not sued the latter, the claim by the Defendants for contribution means that I must assess their respective responsibilities for the Plaintiff’s loss.

400

By far the greatest responsibility lies on the Defendants because of the duration, and magnitude of Mr Honeyman’s omissions by comparison with what reasonable care required. These defaults were not such as can be laid at counsel’s door. Mr Dodd’s failures may not have occurred at all but for Mr Honeyman’s omissions but be that as it may, they were much more minor in character, lesser departures from the standard of what was reasonable and, while contributing to what occurred, had a significantly lesser part to play. I regard it as just and equitable that the Defendants recover from Mr Dodd, 15% of the damages they must pay the Plaintiff.

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CITATION:	ARNOLD v HANCOCK & ORS [2006] NSWSC 156
HEARING DATE(S):	30.5.05-6.6.05
JUDGMENT DATE :	24 March 2006
JUDGMENT OF:	Hulme J at 1
DECISION:	Orders deferred
PARTIES:	Jason Arnold Ken Hancock, John Hill practising as Hancock Alldis
FILE NUMBER(S):	SC 20397/02
COUNSEL:	Plaintiff: W Kearns SC; T Boyd Defendant: P Maiden Cross Defendant: M Windsor
SOLICITORS:	Plaintiff: Herbert Weller Defendant: Hunt & Hunt Cross Defendant: PricewaterhouseCoopers Legal