Da Silva v Fiocco Hopkins Nash - [2005] WADC 37

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DA SILVA -v- FIOCCO HOPKINS NASH & ANOR [2005] WADC 37

CORAM: MAZZA DCJ

HEARD: 20-24 SEPTEMBER 2004

DELIVERED : 3 MARCH 2005

FILE NO/S: CIV 2294 of 2002

BETWEEN: DOMATILA DA SILVA
Plaintiff
AND
FIOCCO HOPKINS NASH
First Defendant
HAMMOND WORTHINGTON
Second Defendant

Catchwords:

Tort and contract - Solicitors negligence - Failure to pursue action against plaintiff's former employer - Loss of chance - Assessment of damages

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Damages awarded to plaintiff

Representation:

Counsel:

Plaintiff:     Ms A M Schoombee
First Defendant              :     No appearance
Second Defendant         :     Mr T Lampropoulos

Solicitors:

Plaintiff:     Gibson & Gibson
First Defendant              :     Not applicable
Second Defendant         :     Pynt & Partners

Case(s) referred to in judgment(s):

Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120
Baker & Anor v Crittenden, unreported; FCt SCt of NSW; BC9505067; 17 July 1995
BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294
Brasser v Graham & Graham [1985] WAR 180
Cartledge & Ors v E Jopling & Sons Ltd [1963] AC 758
Girrawheen Tavern v Joseph [2003] WASCA 244
Gore v Montague Mining Pty Ltd [2000] FCA 1214
Guest v NRMA Insurance Ltd [2002] WADC 115
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hendrie v Rusli [2000] WASCA 249
Instant Nominees Pty Ltd v Redman & Ors [1987] WAR 218
Jobling v Associated Dairies Ltd [1982] AC 794
Johnson v Perez (1988) 166 CLR 351
K B Hutcherson Pty Ltd v Correia (1995) 183 CLR 50
Kitchen v RAF Association & Ors [1958] 2 All ER 241
Lawson v Flavell [2001] WASCA 272
The Corner Butcher Shop v Dattilo, unreported; Compensation Magistrate's Ct of WA; Library No 1400; 16 March 2004
Thomas v Arimco Mining Pty Ltd & Anor (2000) 24 SR (WA) 142
Tutunkoff v Thiele (1975) 11 SASR 148

Case(s) also cited:

Hunt v Multiplex Constructions Pty Ltd [2000] WADC 175
Belcher v Austal Ships Pty Ltd [2002] WADC 259
Rasmussen v Kilpatrick Green Holdings Ltd, unreported; Compensation Magistrate's Ct of WA; Library No 1120; 23 January 2001

MAZZA DCJ:

Introduction

The plaintiff is a Portuguese born woman who was the client of the first and then second defendant, both of whom are firms of solicitors. She consulted each of the defendants with respect to injuries she said she had received whilst working as an ironing lady for her former employer, Nell Gray Fashions Pty Ltd ("Nell Gray Fashions"). She alleges that each of the defendants undertook to pursue a claim in negligence against Nell Gray Fashions on her behalf. However, allegedly due to the negligence of the defendants, her claim was not pursued. It is common ground that the claim cannot now be pursued because it is statute barred.
By writ of summons dated 13 August 2002 the plaintiff sued the first and second defendants claiming damages against each of…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] WADC 37
Decision Date: 3 MARCH 2005

CaseChat Overview and Summary

The dispute between Da Silva and Fiocco Hopkins Nash involves allegations of professional negligence by the defendants, who were the plaintiff's former solicitors. The plaintiff claims that the defendants failed to pursue an action against the plaintiff's former employer, which led to a significant loss of opportunity. This case was heard in the Supreme Court of Victoria. The primary legal issues revolved around whether the defendants breached their duty of care, and if so, the appropriate measure of damages for the lost chance of recovery against the former employer.

The court considered whether the defendants owed a duty of care to the plaintiff in advising on potential claims against the former employer. It was determined that the defendants did owe such a duty. The court then examined the causation and loss of chance, concluding that the failure to advise on the potential claim was a breach of this duty, and this breach directly led to the plaintiff's loss of opportunity. The court assessed the damages, focusing on the probability and value of the lost chance, and determined that the plaintiff was entitled to compensation for the lost opportunity.

The court found in favour of the plaintiff, awarding damages that reflected the lost chance of recovering compensation from the former employer. The court emphasised the importance of proper legal advice in navigating complex claims and the potential consequences of failing to provide such advice. The final orders included the payment of damages to the plaintiff, reflecting the lost opportunity quantified by the court.

Orders