Bennett v Minister of Community Welfare

[1991] HCATrans 296

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P23 of 1991

B e t w e e n -

WAYNE KENNETH BENNETT

Appellant

and

MINISTER OF COMMUNITY WELFARE

Respondent

MASON CJ

DEANE J

TOOHEY J

GAUDRON J

MCHUGH J

Bennett 1 22/10/91

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 22 OCTOBER 1991, AT 3.09 PM

Copyright in the High Court of Australia

MR M.D.F. O'SULLIVAN:  May it please the Court, I appear for

the appellant in this matter.	(instructed by Mazza
Mccallum & Robinson)

MR G.T.W. TANNIN:  May it please the Court, I appear for the

respondent. (instructed by Crown Solicitor for

Western Australia)

MASON CJ: Yes, Mr O'Sullivan.

MR O'SULLIVAN:  Thank you, Your Honour. May I mention that

I have provided an outline of my submissions and a

chronology to each of Your Honours and to my

learned friend.

MASON CJ: Yes, we have that.

MR O'SULLIVAN:  And there is also a booklet of our

authorities.

Your Honours, this is an appeal relating to a

claim brought by the appellant against the Minister

for Community Welfare arising out of an injury

which occurred as long ago as 1973 when the

appellant was 16 years of age and a ward of the

State, confined in an institution known as

"Riverbank", which is a detention centre. The

appellant was working in the woodwork shop at

Riverbank operating a bench saw when he cut off the fingers of his left hand.

Your Honour, since 1973 the matter has had, as

Mr Justice Rowland, I think, remarked in the Full

Court, a long sad history, but the relevant facts

can perhaps be briefly stated.

MASON CJ:  We are familiar with the facts, Mr O'Sullivan.

We have read the judgment.

MR O'SULLIVAN:  Thank you, Your Honour. In that case,

Your Honours, could I just mention, in order to

highlight, a couple of significant aspects in

relation to the facts before going on to the

reasons of His Honour the trial judge and the

reasons given by Their Honours in the Full Court.

Firstly, Your Honours, when the appellant

approached the legal assistance scheme run by the

Law Society of Western Australia in 1976 after he

ceased to be a ward of the State, he was referred

to a legal practitioner for advice and the terms of

that referral which may be important in the end are

to be found in the second volume of the appeal book

at page 286. That page is a copy of the

certificate for legal assistance. The legal

practitioner involved was asked, as the certificate

says -

Bennett 2 22/10/91

to interview Wayne Kenneth Bennett in

Fremantle Prison in relation to an offer of

damages or compensation made to him arising

out of an accident in the workshops at

"Riverbank" and advise him in relation thereto

and represent him generally in negotiations if

you consider this advisable or necessary.

The offer of damages or compensation referred to

was an offer of a sum of something in the order of

$6000, being the proceeds of a personal accident

insurance policy which had been taken out

essentially by the Department of Community Welfare

for the benefit of any of its employees or wards

who might be injured. That policy and the amount

is referred to at page 281, which is a letter from

the State Government Insurance Office referring to
the payment out of a sum of money to the Department
of Community Welfare in 1973 pursuant to this
insurance policy.

So there were the terms of the referral for

advice and the offer to which the referral refers,
and a summary of the actual advice given by the

practitioner is to be found in a letter which he

wrote which is in volume three of the appeal book

at page 475, in which the practitioner said this,

in the middle of the page:

After a consideration of the facts I was

of opinion that Bennett a Ward of the State

had been represented fully by the Director

Community Welfare and had received proper

advice from the Director, his Legal guardian.

And then in the last paragraph:

The advice forwarded to Bennett was that in my view he had no claim other than at

workers compensation.

That is, in fact, an erroneous reference to the

payment of moneys under the personal accident
insurance policy.

The Director on Bennett's behalf had received the full amount of Workers Compensation,

namely, $5673 and it was invested.

For completeness I should mention that at page 339 of the appeal book, which is in volume two, there

appears the practitioner's notes of the interview

which he had with Mr Bennett at the time that he

gave the advice.

So, Your Honours, an aspect of the facts which

I wish to simply bring out and which I think is

Bennett 3 22/10/91

brought out by the matters to which I have

referred, is that the referral to the practitioner

under the legal assistance scheme of the appellant

was essentially a referral for advice in relation

to an offer of damages or compromise and such other

general advice as the practitioner thought fit, and
the advice that the practitioner did give was, in
terms of his letter, advice to the effect that the
appellant had no other claim than a claim to the

proceeds of a personal insurance policy.

The evidence of the appellant himself at trial

was that having received that advice from the

practitioner, he took matters no further. At

page 125 in volume one between lines 10 and 20 he

was asked under cross-examination:

I think yesterday we had discussed how you had

been to see Mr Martin whilst you were in

Wooroloo. Correct?---That's correct, yes.

He gave you certain advice, that you didn't

have a cause of action. Right?---Yes.

And then relying on that, you didn't take it

any further?---That's correct.

So the end result was that, of course, the

appellant did not sue, did not pursue a claim in
respect of his personal injuries at law against the

Minister or against anyone, and in due course any claim which he might have had became statute

barred. The date upon which it became statute

barred was either six years from the date of the
accident which was 23 April 1973, or six years from

the date upon which the appellant turned 18 which

was 22 May 1980. The choice of dates arises,

Your Honours, depending on the view you take of the

effect of the provisions of the West Australian

Limitation Act and, in particular, those provisions

which postpone the running of time in the case of

infants. If those provisions apply, then it is six

years from the time that the appellant turned 18. If they do not apply - and they might not because section 47A of the Limitation Act, which deals with

the running of time in suits against the Crown, is

expressed to apply notwithstanding the other

provisions of the Act.

Your Honours, they are the matters of some

significance in relation to the facts that I wished

just briefly to mention. Could I come then to the

trial judge's reasons and say this, that in essence

His Honour the trial judge held, as can be seen

from his reasons which commence at page 12 of the

first appeal book, that even though the appellant

was owed a duty by the respondent to obtain for the

Bennett 4 22/10/91

appellant independent advice as to whether or not

he had a claim for damages arising out of his

accident and even though that duty had been
breached, no claim existed in relation to the

breach because the loss by the appellant of the

right to sue for damages in relation to his

personal injuries had come about as a result of the

advice the appellant had sought for himself through

the legal assistance scheme in 1976 after he ceased

to be a ward of the State, and not as a result of
the breach of duty which His Honour found had

occurred.

MASON CJ:  Now, at what page do you say that is dealt with?

MR O'SULLIVAN: Essentially, Your Honour, that finding is to

be found at pages 24 and 25 of the appeal book. At

page 22 line 32, His Honour said:

There is no evidence that the Director -

that is, the Director of Child Welfare -

sought to obtain for the plaintiff independent

advice. There was therefore a breach of the

duty of care.

And then, in the bottom half of page 22, His Honour

discussed the scope of that duty.	He observed
that:

The precise terms of the duty pleaded were:

"(i) To advise the Plaintiff as to all steps

that had been taken on his behalf;

"(ii) To advise the Plaintiff as to his rights

and entitlements, including a possible cause

of action in negligence;

and at the top of page 23 -

"(iii) To obtain for the Plaintiff independent

legal representation or advice regarding the

Defendant's liability to the Plaintiff or the

Plaintiff's entitlement to compensation or

damages."

And then at line 10 His Honour said:

Whether or not the duty extended to more than making an appointment for the plaintiff with a

solicitor is a matter not requiring

consideration because it is apparent that the

defendant breached the duty as pleaded.

Bennett 22/10/91

Having found the duty and found the breach in those terms, His Honour then looked at the question of

what he called "a causal connection between breach

and loss of chance", a loss of the right to sue,

just above line 30 on page 23 is the heading of

this aspect of His Honour's reasons. Then on

page 24 line 20, His Honour mentioned the issue

which ultimately he resolved against the appellant

and about which we complain. He said:

Thirdly, it was said that because the

plaintiff had received legal advice after the
period of wardship at the end of 1976 he could
not now contend that the director's breach of
duty resulted in the loss of chance - rather
it was the erroneous legal advice which he
then received. For the plaintiff it is argued
that the defendant cannot rely on the bad
advice given by a third party to the plaintiff
to relieve it from the consequences of the

breach of duty.

His Honour then observed at line 30 on page 24:

The act of the plaintiff in seeking and

obtaining legal advice for himself in 1976 was a fresh factor intervening between the initial causal factor constituted by the breach of

duty by the defendant (in failing to obtain

independent advice for the plaintiff) and its

consequence in the harm to the plaintiff

occasioned by the loss of the right to

litigate. It was a new intervening Act (Novus

Actus Interveniens) ..... The question is

whether that Act broke the causal connection
between the defendant's fault and the

plaintiff's harm and replaced it by a new one.

At the top of page 25, His Honour said:

The proper inquiry is to ask whether the

plaintiff's harm (the loss of the right to

sue) would not have occurred but for the

defendant's breach of duty in not obtaining
independent advice for the plaintiff. In my

view the answer must be in the negative.

And, relevantly, at line 25 on that page,

His Honour said:

To find otherwise is to assume that had

the defendant obtained advice for the

plaintiff the advice would necessarily have
been to the effect that he should issue

proceedings. The failure to be given advice

is not combined with or duplicated by positive

advice that he should not do so.

Bennett 6 22/10/91

Now, Your Honours, on that basis then, His Honour found that what he called -

the causal connection between the plaintiff's
harm and the defendant's breach of duty of
care was broken by the act of the plaintiff in

seeking and obtaining independent advice -

in 1976, and therefore the plaintiff's claim

failed.

MASON CJ:  Now, His Honour seems to be treating it there as

a breach of the duty of care.

MR O'SULLIVAN:  Yes, Your Honour.

MASON CJ: Well, what is your submission about that? Is it

a breach of the duty of care or a breach of a

fiduciary duty?

MR O'SULLIVAN:  In my submission, in the end - the matter is

a little confusing, Your Honour, but in my

submission we do not complain that His Honour

treated it as a duty owed at common law and a

breach of that duty. The language that His Honour

used is the language of the common law. His Honour

recognized the claim indeed and described the claim

as a claim brought in negligence. In the very

first line of his reasons on page 12 is a

description of the claim in those terms:

This is a claim by the plaintiff for

damages for negligence in breach of a duty of
care ("the first duty") said to be owed by the

defendant to the plaintiff to ensure that the

plaintiff was given independent legal

representation and advice.

Having described the claim in those terms,
His Honour then went on to examine the question of

whether the Minister, who is the defendant, had

what he called "a vicarious liability" for the acts
and defaults of the Director of Child Welfare.	He
found that there was that vicarious liability.

Page 14 is the beginning of his discussion of that

topic. At page 17 at line 20, he said:

Was the Minister responsible for the actions of the Director?

And at page 18 line 25:

In my opinion the Minister is not excepted

from vicarious liability for the acts and

defaults of the Director.

Bennett 22/10/91

And then, having analysed matters in those terms, he went on to resolve this causation question

albeit, we would submit, wrongly, by reference to

principles of causation in negligence. It is true

that His Honour found that the Director owed a

fiduciary duty to the appellant. That finding is

at page 21 line 24:

It therefore appears to me that the

plaintiff is correct in his contention that

the Director owed a fiduciary duty to him -

but the idea, of course, of vicarious liability for

a breach of fiduciary duty is, with great respect,

a little hard to understand.	The concepts do not
sit well together.	The concept of a fiduciary

relationship, of course, involves the idea that the

fiduciary is entitled to act autonomously, not

under dictation, in the best interests of the

person to whom he owes the duty. The rationale and

idea behind vicarious liability, and there are a

number of ideas but principal among them, or one of

the principal among them, I would submit, is the

idea that ultimate responsibility, ultimate

liability, should reside with the person who has

control of the tortfeasor, or the actor.

TOOHEY J: Mr O'Sullivan, the defendant is the Minister. Is

that right?

MR O'SULLIVAN: Yes, Your Honour.

TOOHEY J: Looking at the amended statement of claim on page

3 of volume one, it pleads that -

The Defendant is and was at all material times a body corporate.

Is that right?

MR O'SULLIVAN:  He was under the Community Welfare Act, not

under the Child Welfare Act, Your Honour, and I

think His Honour made a finding and an observation

that the Community Welfare Act was not relevant to

an assessment of the duty of care arising in favour

of the appellant under the Child Welfare Act, and

under that Act he was not a body corporate, albeit

that the Minister had responsibility for child

welfare under the Child Welfare Act.

TOOHEY J: Well, apparently nothing, it seems, can turn on

the distinction?

MR O'SULLIVAN:  No, the view which I would take, with

respect, is that nothing turns on it.

Your Honours, there is a fundamental confusion of

language, with respect, in His Honour the trial

Bennett(2) 22/10/91

judge's approach to the matter. He speaks of a

time of vicarious liability of the Minister who is sued for the acts and defaults of the Director.

fiduciary duty owed by the Director, but the

And he speaks in common law terms of the claim as

being claim in negligence and of the principles of

causation which apply to resolve that issue.

McHUGH J: There is no doubt that the equitable action of

compensation for breach of an equitable duty still

exists and has been applied in this century on a

number of occasions.

MR O'SULLIVAN:  Yes, Your Honour, and I have not shrunk

entirely from the idea that this case is in truth a

case, albeit, that it was not fought this way, a

case seeking compensation in equity for breach of

fiduciary duty.

McHUGH J:  I raised it on the special leave application.

Even the original injury, it seemed to me, may have

been the subject of such an action which is

basically an action for restitution. It is an

action for compensation as opposed to damages.

What are the time bars for seeing a breach of an

equitable duty in Western Australia?

MR O'SULLIVAN: Perhaps I can come back to that,

Your Honour. I will check it and tell Your Honour.

Your Honours, the idea that His Honour's

analysis of the duty, even though he called it a

fiduciary duty, was really a duty owed at common

law, is further reinforced by the observation that
although he observed that the Director was the
guardian of the appellant and although, of course,
it could be said that the mere relationship of

guardian and ward does not give rise to a common

law duty of care - Harl v Connolly and those cases

that are not on my list of authorities- - this was a

case in which in all the circumstances which

His Honour took into account it could be said, I

think, and justifiably said that His Honour

regarded it as a case in which a common law duty of care had arisen by reason of a special relationship

arising between the Director and the infant.

Having observed that the Director was the ward's

guardian - - -

MASON CJ: But why convert it into a common law duty if its

origin is a breach of a fiduciary duty?

MR O'SULLIVAN:  I do not seek to convert it, Your Honour. I

just seek to interpret what His Honour said.

Bennett(2) 22/10/91

McHUGH J:  I suppose one reason you have to is because of the parties. You have to sheet home liability to

the Minister and you can only do that via a common

law duty.

MR O'SULLIVAN:  Yes, the Child Welfare Act, as His Honour

observed, does exempt the Director from personal liability. His Honour mentions that at page 16,

line 40. His Honour examined the question of

whether the Director was, in truth, what might be

called in administrative law terms a "persona

designata", a person having an independent

discretion. That is at pages 17 and 18:

On behalf of the Crown it was argued that

a true reading of the relationship between the

Director and the Minister showed it to fall

into that special category of cases where the

Minister is not vicariously responsible for the acts of the employees who exercise

"independent discretion" because they hold a

particular public office.

And having regard to the provisions of the Child

Welfare Act which said that the Director was

subject to the directions of the Minister,

His Honour dismissed that, and he certainly should. Then His Honour said - as I have observed, that the

Director was the guardian of the ward - at the top

of page 21, line 12:

It must also be borne in mind that whatever

the common law attaches as a duty to the

statutory office of guardian provided for in

paragraph l0(l)(a) of the Child Welfare Act,

there is the express provision in sub-s. 10(3)

of that Act authorising the Director to take

such action as may be reasonably or probably

necessary for promoting the welfare of a child

whether a ward or not. The word "guardian" is

therefore used in a section in which it is

envisaged that the Director should be able to

so act.

So His Honour has embarked on an inquiry which it

was unnecessary to embark on if he was confining

his thoughts to a duty in terms of a fiduciary

duty. The observation that the Director was the

guardian of the ward was enough for that.

His Honour seemed to be looking for other

circumstances, perhaps giving rise to a

relationship which might be regarded by the common

law as giving rise to the duty of care.

Can I just jump ahead, Your Honours, to say

this then: the primary thrust of our case is that

we accept, with respect, that duty owed to the

Bennett(2) 10 22/10/91

appellant was a duty to be regarded as a duty of

care owed at common law, and that therefore we are

in the realm of common law and the principles of

causation and negligence.

TOOHEY J: Well then, what relevance, if any, does the

Community Welfare Act and/or the Child Welfare Act

have in this case?

MR O'SULLIVAN: Relevance, Your Honour?

TOOHEY J: Yes, because the statement of claim pleads the

existence of the Community Welfare Act, at least

section 5, and then in paragraph 5 speaks of:

the Director of Community Welfare was the

guardian and had the care, management and

control of the person and property of the

Plaintiff.

Does that arise by reason of the age of the plaintiff at the time, or by reason of the fact

that he was committed to the care of the Department

of Community Welfare?

MR O'SULLIVAN:  It arises by reason of the fact that he was

committed. His Honour mentions that at page 15,

line 30:

The plaintiff was committed to the care

of the Department for treatment, discipline

and training pursuant to sub-s.34(a) in the

Child Welfare Act 1947. The consequence of the committal of the plaintiff to the care of

the Department was that he became a "ward".

TOOHEY J: Is it right then, this paragraph 5 of the

statement of claim pleads that the Director was the

guardian of the plaintiff?

MR O'SULLIVAN:

is, Your Honour. In terms of the Child Welfare Act yes, it

TOOHEY J:  Of the Child Welfare Act?

MR O'SULLIVAN: Yes, Your Honour.

TOOHEY J:  How do the two statutes interrelate so far as is

relevant to the position of the plaintiff?

MR O'SULLIVAN:  Your Honour, the two statutes do not, I

think, in essence. It comes back to the comment

which I made to Your Honour before that in the view

I take the Community Welfare Act and the fact that the Minister is a body corporate under that Act has nothing to do with it. The Minister has responsibility for the administration of the Child

Bennett(2) 11 22/10/91

Welfare Act. The Child Welfare Act relevantly

makes a child who is committed a ward, and the

Director under that Act of child welfare a guardian of that ward.

TOOHEY J: That is the term used in the statute, is it?

MR O'SULLIVAN:  In the definition section of the statute,

section 4, it says that children who are committed

are wards, and at page 16 His Honour sets out the

relevant parts of section 10 of the Child Welfare

Act.

TOOHEY J: Yes, I can see that, thank you, Mr O'Sullivan.

DEANE J: Mr O'Sullivan, is there any dispute between the

parties over all of this, that there was a common

law duty of care?

MR O'SULLIVAN:  No, I apprehend not.

MASON CJ: Well, would it not be convenient to approach what

appears to be the grey area between the parties,

that is, this question of the novus actus?

MR O'SULLIVAN:  I respectfully agree, Your Honour, yes. I

have taken Your Honours to what His Honour the

trial judge said in relation to this issue of novus

actus. What we say about that, with respect, the

complaints that we make about His Honour's approach

can be fairly succinctly put and they are these:

firstly and generally, even if the question was

rightly posed by His Honour in "but for" terms, it

is difficult to see how His Honour could have got
the answer that he got in answer adverse to the

appellant by the "but for" question.

At page 25 His Honour certainly asks that

question in the answer against the appellant. At

the top of that page:

The proper inquiry is to ask whether the

plaintiff's harm would not have occurred but
for the defendant's breach of duty in not

obtaining independent advice for the

plaintiff.	In my view the answer must be in
the negative.

With respect, a simple answer to the question,

"Would the harm have occurred in the absence of a

breach of duty by the respondent?" should surely

have been "No". In other words, an answer in

favour of the appellant because - - -

DEANE J: In the next paragraph, His Honour seems to say

that:

Bennett(2) 12 22/10/91

To find otherwise is to assume that had

the defendant obtained advice for the

plaintiff

presumably proper advice -

the advice would necessarily have been to the

effect that he should issue proceedings.

Well now, has not His Honour found that advice that

he should not issue proceedings, was erroneous

advice?

MR O'SULLIVAN:  I think sub silentio, at least, His Honour

has so found.

DEANE J:  I thought he said it in terms that the advice he

received from the barrister was erroneous.

MR O'SULLIVAN:  I do not, with respect, recall, Your Honour,

him actually saying it in terms.

DEANE J: Well you would have read it more carefully than I.

MR O'SULLIVAN:  Mr Justice Roland makes this point relevant

to Your Honour's observation in the Full Court,

that is that it is very difficult perhaps to know

entirely confidently - - -

DEANE J:  If you look at page 24, in the middle of the page,

His Honour did find that the advice, which he did receive, was erroneous, which means the paragraph

on page 25 - - -

MR O'SULLIVAN: Well I think His Honour is referring there

to the argument that it was put, Your Honour,

rather than a finding here.

DEANE J: Oh I see, I follow.

MR O'SULLIVAN: His Honour Mr Justice Roland observed that,

given that this was a referral under the legal

assistance scheme, it was very hard to determine on the evidence whether or not indeed the practitioner

was entirely wrong. One did not know the extent to

which he was fully briefed in relation to the

matter, but having said that I would respectfully

come back to what I said before: I think His Honour

probably has held, although not in terms, that the

advice was bad advice.

Your Honours, in relation to the paragraph

which Your Honour Mr Justice Deane has referred to

on page 25:

To find otherwise is to assume that had

the defendant obtained advice for the

Bennett(2) 13 22/10/91

plaintiff the advice would necessarily have
been to the effect that he should issue

proceedings.

That really points up His Honour's error, with

respect. What His Honour has done there is to

assume against the appellant that the advice which

he should have got at the hands of the respondent

would have been bad advice. He ignores the

possibility that it might have been good advice;

advice to sue.

McHUGH J:  But you had to prove that you would have, on the

probabilities, got good information, did you not.

I mean, what was the nature of the breach here or

of the damage? What was the damage?

MR O'SULLIVAN: Well the damage was the loss of the right to

sue and whatever that was worth, Your Honour, and

the only point I make in relation to that

particular paragraph on page 25 is that there seems

to have been an assumption by His Honour - indeed

it was an assumption by His Honour against the

appellant, that the advice was bad advice or a

refusal by His Honour to draw the assumption the

other way. Now it should not, in my respectful

submission, be assumed against the appellant that

had he been referred to for advice, properly by the

respondent, as His Honour found the respondent was

obliged to do, that advice would have been bad

advice.

McHUGH J:  Was it a case for a loss of a chance of getting correct advice?

MR O'SULLIVAN: Well, that was a fact to take into account

in valuing the lost chance, yes, Your Honour.

McHUGH J: What was the damage your client suffered as a

result as the breach? Let us leave aside the fact

whenever it was. What was the damage that you that you sought independent advice in 1976 or suffered as a result of the Director's breach?

MR O'SULLIVAN:  It was the loss of the chance that he would

have been advised to take proceedings, which

His Honour went on and valued provisionally, taking

into account the contingency in His Honour's view,

properly, that he might not have been advised to

sue.

McHUGH J:  Now, when did that loss of chance arise, within a

reasonable time or what? I will put it another

way: when did the breach occur?

MR O'SULLIVAN: Well, the breach of the duty to advise

occurred during the period of the relationship

Bennett(2) 14 22/10/91

between the appellant and the Director of Child

Welfare, which came to an end two years after he

was committed to the care of the department.

McHUGH J:  Does that mean, to be more specific, that it was

the loss of the chance of suing in that two year

period?

MR O'SULLIVAN:  No, Your Honour, because the damage did not

occur, this being an action in negligence, until
the chance to sue had gone; had expired by reason

of the Limitation Act, which occurred in 1979 or

1980, depending on which view you take.

McHUGH J: Well, is that right? Supposing you had commenced

your action earlier; you were being deprived of the

use of your money, were you not, that you should

have obtained or you might have obtained.

MR O'SULLIVAN: Well, had the action commenced earlier, it

would have been an action for personal injuries,

commenced say in 1978, arising out of the accident

which occurred in 1973. The loss of that right to

take that action, or the loss of a chance to take

that action, did not really occur until the

limitation period expired.

McHUGH J:  I am just having some difficulty with that; I am

not sure that it does not mean that the cause of
the loss of the chance was the statute of

limitation, not anything that the Director had

done.

MR O'SULLIVAN: Well, of course the cause of action in

negligence, arising out of the breach of the duty
of the Director to refer the appellant for advice,

did not arise until damage occurred; until loss was

cited, and that was when the limitation period

expired, in my submission.

TOOHEY J: Because up until that time, had the appellant

sued the respondent, it simply had sued for the

damages for personal injury, is it not?

MR O'SULLIVAN: Yes, Your Honour.

TOOHEY J: To which the Limitation Act would have, at that

point, been no answer.

MR O'SULLIVAN: Yes, Your Honour. Your Honours, can I come

back to criticisms we respectively make of

His Honour the trial judge on causation and his

approach in relation to matters of causation. I

have said firstly that, with respect, it is

difficult to see how His Honour got the answer to

the "but/for" question in terms adverse to the

appellant when, on any view, the appellant, had the

Bennett(2) 15 22/10/91

duty in his favour been performed, would have

received advice and it should not be assumed

against him that the advice - and His Honour did

not assume against him that the advice would be bad

advice in the end, because His Honour provisionally

valued the matter, taking that into account.

More fundamentally in relation to His Honour's approach on the issue of causation could I say

this: this is on the view that it is a case in

negligence and a case involving the principles of
causation in negligence. This is not an

appropriate case in which to simply apply the

"but/for" test. As this Court said in March "On

any view, the issue raised in this case was an

issue of a superceding cause or a novus actus

interveniens" and as a number of Your Honours

commented in March, the "but/for" test in this sort

of case, is simply not a reliable guide.

The proper test applicable in this sort of case and, indeed, perhaps all negligence cases is

to ask whether as a matter of ordinary common sense

and experience the negligent act should be regarded

as a cause of the loss and that involves not only

the application of the "but/for" test, but a value

judgment, as a number of Your Honours said in

March. Had that test been properly applied by

His Honour in this case, then there is no reason, in my submission, in logic or common sense, to

exclude the breach of duty of the respondent as a

cause of the appellant's loss. So His Honour has,

albeit not with the benefit of March, because March

occurred after the judgment in this matter.

GAUDRON J:	Mr O'Sullivan, I have some difficulty with what you are saying, but I think it relates to when was
the breach.  I do not understand why you can
identify the breach in any more precise way than a
continuing breach which endured until such time, at
there was a duty, it was never satisfied and that
least, as the action became statute barred. If
would have taken in a continuing duty well after the act of bad advice, as it were, and the question
would then seem to be not so much whether there was
a nevus actus interveniens, so much as whether
thereby the defendant was discharged from the duty.

MR O'SULLIVAN: Well, Your Honour, this is one of those

cases where there were arguably ~wo events which

might have resulted in the los the appellant.

One was a breach of duty committed by the

respondent or his servants or agents; the other

was the giving of bad advice by the practitioner in

1976.

Bennett(2) 16 22/10/91

GAUDRON J: But if the duty was one that was continuing

until the action was statute barred, then this

whole question is irrelevant because the duty would

have been breached and the damage caused, as it

were, well after the bad advice. I just do not

understand why the time is cut off at some earlier

point.

MR O'SULLIVAN:  I must confess to having regarded it as a

duty which persisted so long as the relationship,
and I think His Honour the trial judge said this,

only so long as the relationship existed.

GAUDRON J: But I would have thought it arose out of the

relationship, but that did not make it co-extensive

with it, so much as a continuing one whilst ever

there was any possibility of their rights being

realized.

MR O'SULLIVAN: Well, of course, if that view is taken,

then, in a sense, the question of the intervening

act falls away.

McHUGH J: That was the sort of thing I was putting to

Mr Parker on a special leave application. It

occurs to me that perhaps what is involved in this
case is the loss of two chances. There was a duty to get advice and there was a breach of that duty,

therefore you lost the chance of getting good

advice which resulted in the loss of a chance of

obtaining damages.

MR O'SULLIVAN: Yes.

TOOHEY J:  The difficulty with putting it that way, perhaps,

Mr O'Sullivan, is that if a month before the limitation period had expired the plaintiff had

sued the defendant for failure to obtain

independent legal advice in relation to the earlier

accident, I suppose the defendant simply would have

said, among other things, "Well, you have suffered

no loss as a result of that advice because you have

still got a month to go in which to issue

proceedings".

MR O'SULLIVAN: Yes, Your Honour. It seems to be - - -

TOOHEY J:  You can imagine there might be other

considerations relating to availability of

witnesses and so on, but putting all that to one

side, there is really no damage in respect of the

failure to obtain independent advice until such
time as by reason of that failure the opportunity

to bring proceedings is lost because of the

operation of the limitation •....	Quite where that
takes you, I am not sure.

Bennett(2) 17 22/10/91

MR O'SULLIVAN:  I have to say, to come back to Your Honour

Justice Gaudron's comment, that I think the trial

judge did view the duty as subsisting only so long

as the relationship subsisted, and no complaint has

been made against that finding, and on that basis

the matter falls to be analyzed somewhat

differently.

GAUDRON J: Well then, the breach occurred when?

MR O'SULLIVAN:  The breach of duty occurred for a period of

some two years.

GAUDRON J: Expiring on?

MR O'SULLIVAN: Expiring when the appellant ceased - - -

GAUDRON J: 1975.

MR O'SULLIVAN: Yes, in 1975, but the damage occurred in

1979 and 1980.

GAUDRON J: But if the breach - I find some difficulty in

thinking that there is some temporal disjunction

between breach and damage. I suppose that is the

case in any novus actus case though, you would say.

McHUGH J: But you have another problem as well, do you not,

if you are limited to three years in that sense,

because it could be said - - -

MR O'SULLIVAN: Six years.

McHUGH J:  I am sorry, I did not mean three, I meant the period that he was in custody.

MR O'SULLIVAN: Yes.

McHUGH J:  Because if the duty only lasted as long as that,

then it might be said that at the end of that

period, although there had been a breach of duty,

he had not suffered any damage.

MR O'SULLIVAN:  I suppose that is right. The question was

what loss was caused by that breach of duty.	That
brings us in to this question, the causation question.

DEANE J:  Mr O'Sullivan, can I divert you on something, and

take you back a little bit?

MR O'SULLIVAN:  Thank you.

DEANE J: This legal assistance scheme; did that involve a

solicitor, or was it a means by which somebody went

direct to someone at the independent bar?

Bennett(2) 18 22/10/91

MR O'SULLIVAN:	In this particular case, it was a means by which he went direct to the independent bar - I am
sorry, Your Honour, I may be misleading - the legal
assistance scheme was administered by the Law
Society. It was administered by a person who was,
in fact, a legal practitioner, a solicitor himself, and he referred the matter to the independent - - -

DEANE J: But there was no one performing the ordinary

function of a solicitor?

MR O'SULLIVAN:  I think that is correct, Your Honour, yes.

DEANE J: Which means that all your client got was a

situation where there was no one he could sue for

bad advice.

MR O'SULLIVAN: Well, yes.

DEANE J: If there had been a solicitor performing the

function properly, the solicitor would have been

liable, presumably, because of the negligent

instructions to Mr Martin?

MR O'SULLIVAN:	I think that is right, Your Honour, yes.
DEANE J:	Is that not relevant to the question of the

intervention of the Law Society scheme?

MR O'SULLIVAN: Well, it is. This is one of those cases

where, with respect, you can take your choice as to

quite a lot of factors and circumstances and - - -

DEANE J:  If looks as if somebody is going to trump you with

a piece of legislation or something, so you had

better - - -

MR O'SULLIVAN:	Yes, well I will leave it to my learned friend to do the trumping later, thank you, your
Honour.  Your Honours, in relation to the causation
issue, we would say the referral for advice in
1976, which came about on the initiative of the
appellant himself, really is causally irrelevant
or, at least, no more than an additional cause of the appellant's ultimate loss. It does not serve
the fact that that advice was given and that the
appellant acted on it, it does not serve to excuse
the respondent the breach of duty of which he was guilty, as the trial judge found.
TOOHEY J:	If it is relevant at all, what is it relevant to,

Mr O'Sullivan, that is the obtaining of the advice

through the scheme? Is it relevant to damages?

MR O'SULLIVAN:  I do not believe it is relevant to damages.

I might really in the ultimate analysis, I think,

say, that it is simply not relevant. It comes

Bennett(2) 19 22/10/91

under consideration in the context of what is

really a remoteness problem, if you like. The

question is: should the taking of advice in 1976 be

regarded as a nevus actus interveniens?

That is a remoteness issue. That has to do

with whether, for reasons of policy, including

foreseeability, or other reasons which might be

categorized as illustrations of what constitute a

novus actus interveniens, the causal link between

the harm and the loss should be regarded as having

been severed. And, Your Honours, if that is the

question which arises in the case, then the
approach which His Honour the trial judge did not

adopt, and Their Honours in the majority in the

Full Court did not adopt and should have adopted,

is the approach illustrated in Mahony v Kruschich

in the passage in paragraph 4 of my outline which I

set out first.

"A negligent tortfeasor does not always avoid

liability for the consequences of a

plaintiff's subsequent injury even if the
subsequent injury is tortiously inflicted. It
depends on whether or not the subsequent tort
and its consequences are themselves properly

to be regarded as foreseeable consequences of

the first tortfeasor's negligence. A line

marking the boundary of the damage for which a

tortfeasor is liable in negligence may be

drawn either because the relevant injury is

not reasonably foreseeable or because the

chain of causation is broken by a nevus actus

interveniens. But it must be possible to draw

such a line clearly before a liability for

damage that would not have occurred but for

the wrongful act or omission of a tortfeasor

and that is reasonably foreseeable by him is

treated as a result of the second tortfeasor's

negligence alone.

Now, Your Honours, the approach illustrated in

that passage manifestly was not adopted by

His Honour the trial judge here nor by
Their Honours in the Full Court in the majority.

The learned trial judge did not examine the 1976

advice in those terms at all. Had he done so then,

in my submission, the conclusion which he would

have come to was that, as I have already said, the

1976 advice was really causally irrelevant in terms

of excusing the respondent for consequence of his

breach of duty as found by the trial judge.

Really, in the ultimate analysis, what my

submission boils down to is this, I think, that the

1976 advice which the appellant sought and received

on his own initiative was, simply, some free advice

Bennett(2) 20 22/10/91

which he obtained which should not be regarded as

excusing the respondent for consequences of his

breach.

Your Honours, in the Full Court Their Honours

in the majority really went down the same path as

the learned trial judge. At 568,

Mr Justice Seaman, who delivered the judgment of

the majority, said in the second last sentence of

his judgment:

In my view his Honour applied the "but for"

test in a practical and commonsense manner as

required by law.

And for the reasons already given, we respectfully

submit, that that is wrong.

Earlier on, on page 568, His Honour

Mr Justice Seaman indicates that he took a view, I

think, of the pleadings and of the way in which the

case was conducted at trial which foreclosed the

appellant's arguments.	He said, on line 19, on
568:

The concession of the appellant's counsel

at the trial which is set out above, quite

apart from the state of the pleadings, is

enough in my view to foreclose an argument at

this stage that the giving of bad advice in

1976 was in the class of act against which the

respondent had a duty to guard or that it was

a foreseeable event •••..

In my view on these facts as emerging

from these pleadings a line can be clearly

drawn between the state of affairs before the

advice on 1976 was given and acted upon and

the state of affairs which then followed.

TOOHEY J: Where is the concession set out above?
MR O'SULLIVAN:	The concession is referred to, Your Honour,

at page 564, line 40:

At trial counsel for the appellant

conceded that in discharge of his duty the

respondent had no obligation to examine the

quality of the independent advice. There has

been no suggestion that the evidence was
permitted to travel outside the particulars,

and in my opinion they clearly marked out the

area of dispute.

If I could paraphrase, in a nutshell the case - - -

,,

Bennett(2) 21 O'SULLIVAN 22/10/91

GAUDRON J: But he was in no position to examine the

independent advice at that stage was he?

MR O'SULLIVAN: That is rig~t.

GAUDRON J:  He was no longer a ward?

MR O'SULLIVAN: That is right, Your Honour, with respect

yes. Your Honour, I think it fair to say that the

trial was conducted on the basis of a concession

along the lines that His Honour Mr Justice Brennan

referred to. The pleadings, perhaps, do go a bit

further, but in the final analysis I think counsel

for the appellant at trial probably said, if I

could put it that way, that the duty of the

respondent was to obtain for the appellant

independent advice, and there was no duty to look

to the quality of that advice to ensure that it was

of a particular quality.

We would, nevertheless, answer

Mr Justice Seaman's point this way, by saying that,

with respect, the complaint we make - the complaint
the appellant made at trial - was not that because

of the respondent's breach of duty, the appellant

was exposed to bad advice which he obtained in 1976

which caused the loss in 1979 or 1980. The point

we make is that because of the respondent's breach

of duty, the appellant was exposed to no advice.

He was not given any advice, and the fact that he went and got advice for himself from another source which might have turned out to be wrong, does not

excuse the respondent's breach of duty.	So the
matter does not turn, with respect, as

Mr Justice Seaman suggested, on any pleading point

or on any concession point. The breach of duty of

a respondent that is unfound was, we would say, a

cause of the loss.

TOOHEY J: Well, if you are right in the way in which you

put the case, and if the appeal were allowed, the

orders sought by the draft notice of appeal are, in
effect, the setting aside of the order of the Full

Court and the setting aside of the order of the

trial judge. But what is it suggested is to

replace those orders?

MR O'SULLIVAN:  Your Honours, the position is that

Their Honours in the majority in the Full Court had not dealt with any question of assessment, any

question of quantum. His Honour

Mr Justice Rowland, who was in the minority, did,

Their Honours in the majority did not, because they

saw it as being unnecessary, having found against

the appellant on the causation issue, found that

the trial judge was right. So in those

Bennett(2) 22 MR O'SULLIVAN, QC 22/10/91

circumstances we would seek that the matter be

remitted to the supreme court to be dealt with.

TOOHEY J: For the assessment of damages for what? For

breach of the duty to provide the plaintiff with

the opportunity of independent advice, is that the

way in which it was put?

MR O'SULLIVAN:	Yes, Your Honour.
McHUGH J:	Do you concede that somehow or other, or

somewhere, there has to be a finding made in your

favour that you, on the probabilities, would have

got advice to sue?

MR O'SULLIVAN:  I think, Your Honour, that the matter is put

in these terms, that what is lost is the chance

that you might have got advice to sue. It is the

chance that needs to be valued and the contingency

that you might not have got such advice is relevant

to the assessment. It is not a question that

arises at the causation stage, it is a question

that arises at the assessment stage.

McHUGH J:  The steps in your case have got to be these, have

they not? First of all, there was a duty to get

advice for the plaintiff. Secondly, if that advice

had been obtained you would probably have been

advised to sue; thirdly, you probably would have

succeeded. Now, as a result of the statute of

limitations,. you have lost the value of whatever

right you should have had, or that you did have.

MR O'SULLIVAN:  I agree with those steps, with respect,

subject to this reservation: that the probability

that you would have been advised to sue is not so

much in issue as the value of the chance that you

would have been advised to sue.

McHUGH J:  It seems to me that it is a very important step,

because if you had properly been advised to sue,

then this whole question of what occurred in 1976

is altogether irrelevant. In other words, if the

Director had carried out his duty, then no question
of an intervening act in 1976 could have arisen.

So it seems odd for the respondent to be saying,

"True it is I did not do what I should have done.

If I had done what I had done you would have

obtained a verdict or compensation, but now you

went and saw somebody and you got some crook

advice, so therefore I am not responsible".

MR O'SULLIVAN: That is certainly how it seems to be turning

out, Your Honour. We would seek to come back to

Mr Justice Toohey's point, that the matter be

remitted.

Bennett(2) 23 MR O'SULLIVAN, QC 22/10/91

TOOHEY J: 

If you can make good the existence of the duty of

care and the breach of the duty, and the question
is one for the assessment of damages, are you then

in the region of Johnson v Perez and that line of

case, which looks at the valuation of what you have

lost?

MR O'SULLIVAN: 

I believe so, yes, and Kitchener v Royal Air

Force. Your Honours, can I mention, in connection

with assessment, that there is also a question, and

I have put it in my outline really out of an

abundance of caution, in relation to the question

of contributory negligence. The learned trial

judge found that the appellant had been careless

for his own safety - this is paragraph 10 and

following of my outline - and then on that basis he reduced the award which he provisionally made by 50

per cent.

GAUDRON J:  He was 16 at the time, was he not?

MR O'SULLIVAN:  He was 16 at the time. The matter was

argued in the Full Court. Mr Justice Rowland held,

or would have held, that there should be no

apportionment against the appellant.

DEANE J:  But need we trouble about that? You have got an

appeal to the Full Court. If it is going back to

that, why should we be bothered.

MR O'SULLIVAN: Yes, that is simply what I was going to say.

Their Honours in the majority had not dealt with

that question. If Your Honours please, unless

there is anything further, they, I think, are my

submissions.

MASON CJ: Thank you, Mr O'Sullivan. Mr Tannin, how long

will your argument take?

MR TANNIN: About half an hour.

MASON CJ:  We will adjourn now, I think, Mr Tannin. We will

resume at 9.45 am tomorrow.

AT 4.25 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 23 OCTOBER 1991

Bennett(2) 24 22/10/91