Da Silva v Fiocco Hopkins Nash

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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

  1. 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.

  2. By writ of summons dated 13 August 2002 the plaintiff sued the first and second defendants claiming damages against each of…

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Details
Case
[2005] WADC 37
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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