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

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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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Arnold v Hancock

Details

AGLC: Arnold v Hancock [2006] NSWSC 156
Case: [2006] NSWSC 156
Decision Date: 24 March 2006

CaseChat Overview and Summary

In Arnold v Hancock, the plaintiff, Jason Arnold, was injured while operating a concrete pump. He brought a claim against the owner of the truck, Mrs. Constable, and also against his former solicitors, Hancock Alldis (the defendants), and a barrister, John Dodd, who was instructed by the solicitors (the cross-defendant). The plaintiff alleged that the defendants failed to exercise due care, skill, and diligence, provided inadequate advice, and failed to prosecute a claim for compensation under the Motor Accidents Act. The defendants denied the allegations and claimed that any loss suffered by the plaintiff was due to his own negligence. The court found that the plaintiff was entitled to succeed against Mrs. Constable for negligence, as the spacing of the bars in the grate was not in accordance with the standards applicable, and the failure to adhere to these standards caused the plaintiff's injury. Regarding the defendants' liability, the court found that the solicitor, Mr. Honeyman, had failed to exercise reasonable care, skill, and diligence in providing legal advice to the plaintiff. The court also found that the barrister, Mr. Dodd, had failed to provide adequate advice to the plaintiff. The court assessed the damages the plaintiff would have recovered in Common Law proceedings had they been instituted and come on for trial in February 2000. The court allowed for events that have supervened since February 2000, such as the plaintiff's continuing Workers Compensation rights, and made deductions accordingly. The court also awarded interest on the amount of the verdict which the plaintiff should, but for the defendants' defaults, have received. Finally, the court apportioned the responsibility for the plaintiff's loss between the defendants and the cross-defendant, finding that the defendants were primarily responsible for the plaintiff's loss.

Orders