Duvall v Godfrey Virtue and Co (A Firm)
[2001] WASCA 105
•4 APRIL 2001
DUVALL -v- GODFREY VIRTUE & CO (A FIRM) [2001] WASCA 105
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 105 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:161/1997 | 19 MARCH 2001 | |
| Coram: | WALLWORK J MURRAY J ANDERSON J | 4/04/01 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Damages increased from $20,000 to $30,000 | ||
| PDF Version |
| Parties: | DAVID DUVALL GODFREY VIRTUE & CO (A FIRM) |
Catchwords: | Damages Legal practitioner liable for breach of contract and negligence Failure post-trial to act to protect client's interests Writ of fieri facias served on client without prior warning General damages for stress-related illness General damages for loss of creditworthiness and damage to reputation |
Legislation: | Nil |
Case References: | Avenhouse v The Shire of Hornsby [1998] 44 NSWLR 1 Calder v Boyne Smelters Ltd [1991] 1 Qd R 325 Chappel v Hart (1998) 195 CLR 232 Gamser v The Nominal Defendant (1977) 136 CLR 145 Paul v Rendell (1981) 55 ALJR 371 Talbot v Lane (1994) 14 WAR 120 Lloyd v Faraone [1989] WAR 154 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 State Government Insurance Commission v Hitchcock, FCt SCt of WA; Library No 970089; 11 March 1997 Wilson v Peisley (1975) 50 ALJR 207 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : DUVALL -v- GODFREY VIRTUE & CO (A FIRM) [2001] WASCA 105 CORAM : WALLWORK J
- MURRAY J
ANDERSON J
- Appellant (Plaintiff)
AND
GODFREY VIRTUE & CO (A FIRM)
Respondent (Defendant)
Catchwords:
Damages - Legal practitioner liable for breach of contract and negligence - Failure post-trial to act to protect client's interests - Writ of fieri facias served on client without prior warning - General damages for stress-related illness - General damages for loss of creditworthiness and damage to reputation
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Damages increased from $20,000 to $30,000
Representation:
Counsel:
Appellant (Plaintiff) : In person
Respondent (Defendant) : Mr G R Hancy
Solicitors:
Appellant (Plaintiff) : In person
Respondent (Defendant) : Phillips Fox
Case(s) referred to in judgment(s):
Avenhouse v The Shire of Hornsby [1998] 44 NSWLR 1
Calder v Boyne Smelters Ltd [1991] 1 Qd R 325
Chappel v Hart (1998) 195 CLR 232
Gamser v The Nominal Defendant (1977) 136 CLR 145
Paul v Rendell (1981) 55 ALJR 371
Talbot v Lane (1994) 14 WAR 120
Case(s) also cited:
Lloyd v Faraone [1989] WAR 154
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
State Government Insurance Commission v Hitchcock, FCt SCt of WA; Library No 970089; 11 March 1997
Wilson v Peisley (1975) 50 ALJR 207
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment of Murray J and to the orders proposed by his Honour.
2 MURRAY J: The matters at issue in the appeal from a judgment of this Court fall within a short compass, although Mr Duvall, appearing in person and acting for himself, sought again to canvass many issues upon which he failed at trial as well as focusing attention upon issues raised by his grounds of appeal. In presenting the appeal he relied upon a written submission of 41 pages in length. There is much repetition within it and, as it seems to me, he often makes statements of fact which are not the subject of findings by the trial Judge and, so far as I can discern, in many cases not the subject of evidence at trial. In addition, as I have said, Mr Duvall does continue to state as fact matters upon which the findings of the trial Judge went against him. The grounds of appeal do not challenge the findings of the trial Judge. So far as they remain live (eg, ground 6 is not of that character), they do indeed rely upon the findings of the trial Judge and none of the grounds assert that the trial Judge made any error in the fact finding process, or that he should have made findings which he did not. In those circumstances the appellant will understand that this Court is limited to a consideration of the findings of fact made by the trial Judge upon the evidence before him.
3 In that context I note that in connection with the question of the assessment of economic loss caused to the appellant by the findings of breach of contract and negligence made against the respondent, the appellant sought to adduce in evidence before the Full Court an income tax return and assessment for the 1994 financial year and partnership tax returns for the 1992 and 1993 financial years, together with some additional financial records concerned with the operation of his business in 1991.
4 At trial there was discussion with the appellant about what documentation of that type he might wish to tender in evidence. As a result, some tax returns and assessments for the years 1991, 1992 and 1993 were tendered. There had been apparently some difficulties pre-trial with respect to the appellant's capacity to engage in the process of discovery. On 23 February 1996 in the District Court, which was then the court of trial, an order was made that to the extent that discovery was not given by 3 May 1996, the appellant would be precluded from relying upon any such documents at trial. Additional documents were discovered, but were not tendered at trial. The result was, as the trial Judge noted, that there was no evidence of the appellant's business activities or earnings in the period following the event which gave rise to the respondent's
(Page 4)
- liability, the issue and service upon the appellant of a writ of fieri facias in June 1987. The consequence was, as his Honour put it, "There is no basis in the evidence on which any assessment of damages other than one of the most general or broad brush kind could be made."
5 The appellant has sought to remedy the omission, at least in part, by adducing evidence of this kind before the Full Court. Whilst it is open to the court to receive such new evidence, it is well accepted that it will only do so in exceptional circumstances where the interests of justice demand the admission of the evidence. Particularly is that so where, as in this case, the additional evidence is sought to be adduced on a topic debated at trial for the purpose of remedying a defect in the presentation of the appellant's case at trial: Talbot v Lane (1994) 14 WAR 120. In this case I am satisfied that no grounds for the admission of the additional evidence exist and I would not grant leave. I think the position was fully explained to the appellant, both before and at trial, and the issues he raises by the grounds of appeal should, in my opinion, now be determined upon the basis of the evidence led at trial and the findings of the trial Judge thereon.
6 As the trial Judge himself said in his judgment:
"While I have every sympathy for Mr Duvall and appreciate the difficulties which he has faced in representing himself, there is a limit to the advice and assistance which a Judge can provide to a self-litigant in the conduct of his case."
- The limit is certainly marked out by the proposition that the Judge must, of course, be even-handed and fair in his or her dealings with all the litigants at trial, those who are represented by counsel as well as those who are not. While unrepresented litigants may, I think, be advised about particular matters of evidence and procedure which may arise, and while such a litigant may be instructed generally about matters of law with which he or she may not be familiar, some difficulty may be encountered if a Judge makes an effort to acquaint the unrepresented litigant with deficiencies in his or her case and the manner in which they may be remedied.
7 It seems clear to me that the trial Judge in this case made every effort to ensure that the appellant understood matters of difficulty which arose in the presentation of the case and the consequences of failure to remedy deficiencies in the case. His Honour could go no further. Certainly he could not directly advise the appellant upon the presentation of his case and it is, of course, obvious that the court could not itself of its own
(Page 5)
- motion seek to remedy any such deficiencies or enquire whether a remedy might be available.
8 Against that background I turn to a consideration of the nature of the case and the issues raised on the appeal. The respondent is a firm of solicitors. a partner in the firm became the appellant's legal adviser when the firm was retained to act for him in an action for damages for personal injury brought against an hotel after an incident when, while playing pool at the hotel, the appellant fell and suffered a severe compound fracture of his right leg. The action ultimately came to trial in the District Court. Counsel was retained and the trial was held on 7 and 11 November 1986.
9 The appellant was the only witness as to the facts, but after the accident he had made contradictory statements about what had occurred and in his judgment given on 14 November 1986 the trial Judge made it clear that he did not accept the appellant's evidence that the accident happened because he slipped on ice which had been allowed to accumulate on the floor of the hotel. His Honour thought it was more likely that the accident happened in a way which would make it impossible to conclude that there was negligence on the part of the hotel. He dismissed the appellant's action.
10 The appellant sued the respondent, his former solicitors, in negligence or for breach of the implied term of the retainer agreement that the respondent would exercise all reasonable care, skill, diligence and competence as solicitors in the conduct of the appellant's claim. The breach of duty was particularised in a number of ways. In the end it was the finding of the trial Judge that the respondent breached its duty of care so as to cause the appellant injury and loss. His Honour did not find the appellant had made out any of the particulars of breach in relation to the preparation for and the conduct of the trial in any way which could be said to have caused a diminution of the appellant's prospects of success in the action. His Honour's conclusion, therefore, was that the respondent was not liable in damages for the loss of an opportunity to succeed in the action. There was, therefore, no basis upon which he ought to be relieved of the payment of the costs and disbursements awarded to the defendant hotel or the costs and disbursements payable to the respondent for their legal services in that regard.
11 The finding of breach of duty arose in the following way. After being present at the trial on 7 November, his Honour found that the appellant was not notified that it was adjourned to 11 November when the trial Judge would hear the addresses of counsel. That being the case, he
(Page 6)
- was not present at that time to hear the trial Judge reserve his decision to be delivered on 14 November 1986. He first heard that he had lost his action when his wife read a report of it in a newspaper on 15 November 1986. When, probably on 17 November 1986 or shortly thereafter, his solicitor spoke to the appellant, he confirmed that the claim had been dismissed and that the appellant would be liable to pay the hotel's costs and the costs of his own solicitors, including counsel's fee. The appellant was very cross and the trial Judge found that there was no further communication between him and his solicitors, the respondent. He heard nothing about the taxation of the costs to be paid to the hotel or that an order had been made in that regard until a writ of fieri facias was found affixed to the front door of his house some time late in June 1987. The breach of duty which led to that event was clear and it was so held by the trial Judge.
12 The question then was the measure of damages for the breach of duty. It was found that there was no scope to award damages calculated by reference to the amount which the appellant might have recovered had he been successful in the action against the hotel and by reference to costs thrown away (the Judge who dismissed the appellant's claim had provisionally assessed damages for the plaintiff's personal injury in the sum of $17,433.41). It therefore fell to the trial Judge in this action to assess damages by reference to the sum required to compensate the appellant for distress and any injury to his health, including mental stress or injury, subject to questions of remoteness, and to compensate the appellant for any economic loss found to have been caused by the respondent's negligence. Neither party on the appeal contests the correctness of that approach to the question of assessment.
13 There were two heads of damage with which the trial Judge was concerned. The first was that the appellant had suffered financial loss as a result of injury to his creditworthiness and his reputation and personal credibility. As I understand the position, in so far as the trial Judge found this part of the claim to have been made out, it was that upon the hotel obtaining judgment against the appellant for its costs, upon him being pursued for the respondent's professional costs and as well being required to meet medical costs which, upon the failure of the action, he had not recovered, the appellant suddenly found himself with a liability for up to $12,000 which he could not meet and to meet which he could not borrow from financial institutions once enforcement proceedings had been taken against him. He was required ultimately to meet these costs, as I understand it, by periodic payments out of his income and by reducing his
(Page 7)
- personal expenditure in other areas, eg, by ceasing to have his two children educated at private schools.
14 The appellant had supported the claim for general damages under this head by calling an accountant, a Mr Hunt, who gave as his opinion that in the case of a small businessman such as the appellant in 1987, faced with a contingent total liability of about $12,000, "such a contingent liability would have a major effect on his creditworthiness so far as obtaining finance was concerned." The appellant gave evidence from which it was to be inferred that his prior creditworthiness and business reputation was, before this incident, unsullied. Relative to this aspect of the assessment of general damages, the appellant gave evidence that he found it to be a deeply distressing experience that his creditworthiness was destroyed and he had to deal in business with those who appeared to think him a proven bad payer. On top of that the appellant said, and the trial Judge accepted, that he suffered 10 days of "hell" after the service of the fieri facias for fear that he would lose his home.
15 The trial Judge accepted that the appellant was unable to borrow the funds necessary to pay the amount due and in the result, the issue and service of the writ of fieri facias, "probably did have quite a significant impact on his business capacity in the years following, although the evidence before me is quite unspecific about the extent of that impact." His Honour went on to comment that the appellant's earning capacity was in any event "modest", and that the lack of specific evidence of the appellant's business activities or earnings in the period after the writ of fieri facias was issued and served in June 1987, made it impossible to assess damages under this head other than in the most general or "broad brush" way.
16 In the final analysis his Honour concluded that in respect of this aspect of the claim the breach of duty, "caused significant damage to Mr Duvall's creditworthiness and reputation. Such damage is in its very nature incapable of precise estimation or assessment." His Honour allowed the sum of $15,000 under this head.
17 Putting together the appellant's grounds of appeal in relation to this aspect of the award, the appellant claims that it is manifestly low, asserting that, "the impact of this damage to the appellant's personal life contributing significantly as it did to lost opportunities makes this amount manifestly inadequate and ought to be increased." He asserts in the grounds of appeal that the damage was significant over a period of 11 years, presumably until about the middle of 1998, well after the trial
(Page 8)
- which was held in July 1996 and after his Honour's judgment delivered on 18 September 1996.
18 Putting that aspect of the grounds to one side, there was in fact no evidence which would enable the court of trial to measure the effect on the appellant's creditworthiness and reputation over such a period. It is clear on the evidence that the trial Judge was restricted to the broad brush approach to which he referred and in the light of that circumstance I find myself quite unable to conclude that his Honour's assessment of general damages was rendered manifestly, or at all, inadequate so as to justify the interference of this Court, by reference to the assessment of economic loss.
19 The second matter of complaint with the award arises in respect of the appellant's claim that the breach of duty found to have been committed by the respondent caused him emotional distress and indeed, led the appellant to have a breakdown, as he described it, and suffer the onset of a stress-related illness. I have mentioned his Honour's conclusion that such a claim was maintainable in law, but it is clear that his Honour was alive to the need to find that such illness of that character as there was, was caused by the breach of duty found and not by "the ensuing litigation or the ordinary commercial, professional or private incidents of the complainant's life." : Avenhouse v The Shire of Hornsby [1998] 44 NSWLR 1 at 37 - 38 per Sheller JA, with whom Mason P and Priestley JA agreed.
20 The important point to identify is that the court is here concerned to assess the effects of the physical harm, including the mental injury, which resulted from the defendant's breach of duty in the sense that the breach materially contributed to the harm suffered. In that case the totality of the harm suffered will be compensable, despite the fact that there might be other contributing causes of the harm. On the other hand, if the injury suffered was exacerbated by, or in part separately and independently caused by some event apart from the defendant's tort or breach of contract, then the defendant will not be liable to compensate the plaintiff for that harm, but only for the plaintiff's injury to the extent that the defendant's breach of duty made a material contribution thereto: Chappel v Hart (1998) 195 CLR 232 and the cases there cited.
21 In my opinion the trial Judge proceeded in that way. He found that the plaintiff was injured on 10 November 1984 and from 24 January 1985 he pursued his claim for damages until his claim was dismissed on
(Page 9)
- 14 November 1986, nearly two years later. The writ of fieri facias was issued on 10 June 1987 and served shortly thereafter.
22 The appellant said, in giving evidence, no more at any stage than is set out in his statement, which he read as his evidence-in-chief, subject to objections as to admissibility. He said, referring to his solicitor:
"I only know that I don't sleep at night because of the worry this man has caused me. I lie awake thinking what he has done to me and my family. What is loss? Loss is having [my solicitor] destroy my health, my good name and my credibility. He really has destroyed my health. I enclose documents and statements from my doctors."
- He is there speaking, whenever the statement was prepared, at the time when he gave his evidence on 24 July 1996.
23 The appellant tendered in evidence, by consent, a report of a Dr Pitsikas, dated 30 August 1993. The doctor's medical practice had treated the appellant from 10 June 1986 until he moved to Albany. His last appointment was on 30 June 1988. Dr Pitsikas referred to a number of consultations from June 1987 to October of that year, the appellant presenting with symptoms described as "stress-related disorders" and the report adds that the counselling sessions were "to do with depression and personal unrest precipitated by legal problems that he was having." He was referred to a specialist, a Dr Ruse, on 25 August 1987. There were a variety of physical symptoms which, according to Dr Pitsikas, "were put down to stress-related problems by us and by the specialist." Dr Pitsikas did not give oral evidence. He was actually called, by leave, at the hearing of the appeal, but again he was not asked by the appellant to elaborate upon his report in any way.
24 The papers contain a number of reports by a Dr Augustson, an Albany medical practitioner, who advised that since 1988 the appellant had been consulting the doctor for "acute/chronic anxiety" as a result of "an ongoing legal battle." Dr Augustson advised that he had endeavoured to provide the appellant with techniques of stress management and relaxation, but he expressed the opinion that the symptoms would persist to some degree until the legal issue is resolved. There are a number of such reports covering the period from 1989 to 1997, including some made after the trial.
25 However, it is clear that none of these reports were in evidence before the trial Judge. The respondent objected to such evidence being
(Page 10)
- received without the medical practitioners concerned being called for cross-examination, and the evidence was not received. In the end, therefore, it would seem that apart from some concrete expert opinion evidence about stress-related illness in the early stages, there was only the evidence given by the appellant, describing his situation up to the time of trial in the most general terms. Nonetheless, that evidence suggested that the appellant continued to have problems of this kind up to and including the time that he gave his evidence before the trial Judge in 1996.
26 At the hearing of the appeal the appellant sought to tender in evidence a current medical report (undated) from a Dr Carr of Victoria Park, who advises that the appellant has been a patient for over 20 years, and who speaks of the appellant's problems over the last four years since he returned from Albany, attributed to stress and stress-related illnesses. In my opinion this is not a document which may be received in evidence on the appeal.
27 The trial Judge, having regard to the evidence of the appellant and the report of Dr Pitsikas, to which I have referred, found that:
"…the need to seek medical assistance on and after 19 June 1987 for stress was brought on or precipitated by the discovery by Mr Duvall of the writ of fieri facias affixed to his house shortly after it was issued on 10 June 1987. … On the basis of Mr Duvall's evidence and Dr Pitsikas' report my finding is also that the episodes of dizziness on 31 July 1987 and 20 October 1987 were apparently associated with the stress following the issue and service of the writ of fieri facias."
- It seems astonishing that the appellant did not pursue evidence from other doctors, at least Dr Augustson, to bring up to date and project into the future specific medical opinion to support his evidence. The appellant was told at trial that the reports could not be received in evidence because there was no consent to them being tendered without the doctors being called. His case was in that way seriously weakened.
28 Nonetheless, the trial Judge did find that the issue and service of the writ of fieri facias caused the appellant considerable distress and contributed to the onset of stress-related illness. His Honour thought that that stress may have been exacerbated by subsequent legal proceedings, and so to that extent it would not be compensable. For the distress and contribution to the onset of stress-related illness made by the respondent's breach of duty his Honour awarded $5,000.
(Page 11)
29 The appellant claims in the grounds of appeal that the award under that head of damage is too low. I think there is merit in this challenge. Despite the weakness of his case, which was entirely self-inflicted, the appellant did prove, and the trial Judge did find, that the respondent's breach of duty materially contributed to the onset of an illness which was described as stress-related and which clearly produced from time to time a variety of physical symptoms. The sleeplessness and the like were described by the appellant. They were obviously symptoms which were debilitating to a degree and they were apparently, on the evidence of the appellant, continuing even to the time when he gave evidence before the trial Judge in 1996.
30 The difficulty with which his Honour was principally confronted was that there was no evidence to suggest to what degree, if at all, any such illness would continue after his Honour gave judgment. It was therefore past stress and the symptoms derived therefrom for which the appellant was to be compensated. In that context there was no capacity to discern with any precision to what extent the stress and stress-related symptoms were caused by non-compensable events such as the various legal proceedings in which the appellant was engaged.
31 I appreciate that in those circumstances the assessment of reasonable compensation to be provided by the award of general damages overall was a matter which lay very much in his Honour's discretionary judgment and he had the advantage that he presided over the trial, but I am left with the view that having regard to the period of time involved and the nature of the symptoms very generally described by the appellant, for which he sought medical assistance from time to time, and having regard to the findings about causation made by the learned trial Judge, his Honour's assessment of general damages in the sum of $20,000 was too low.
32 In my view, having regard to the limited information available, it would be appropriate to award for the non-pecuniary aspects of the loss flowing from the stress-related illness, which was periodically symptomatic over a period of about 9 years, the sum of $15,000, rather than that made by the trial Judge. I would allow the appeal to the extent necessary to increase the award in total from a sum of $20,000 to the sum of $30,000, to which should be added interest calculated in the manner adopted by the trial Judge. I would invite a minute by counsel quantifying the amount of the final judgment.
(Page 12)
33 ANDERSON J: This appeal is from the amount awarded by the trial Judge (Malcolm CJ) for non-pecuniary loss occasioned by the respondent's professional negligence in failing to act properly for the appellant as his solicitors with respect to the taxation of a party and party bill of costs. The appellant had sued an hotel for damages for a broken leg sustained in a fall. The respondent had acted for the appellant in that case. The appellant's claim against the hotel was dismissed with costs.
34 In his action against the respondent, the appellant made many allegations of breach of duty and/or breach of contract which were unsuccessful. The only breach of duty proved was that particularised in par 4(g) of the statement of claim, namely:
"(g) Failed to advise the Plaintiff that the Defendant had … allowed the party and party legal costs for the Hotel to be taxed without the knowledge or consent of the Plaintiff and subsequently failed to advise or warn the Plaintiff that the Hotel was able to lodge a Writ of Execution against the Plaintiff's goods and land."
35 Malcolm CJ found that the respondent did not tell the appellant that the hotel's bill of costs had been lodged, failed to advise him with respect to that bill, let the bill go to taxation without contesting it, failed to tell the appellant of the outcome of the taxation and failed to tell him what might happen if he did not pay the taxed bill. The consequence of these omissions was that the appellant heard nothing regarding the costs payable to the hotel until a writ of fieri facias was fixed to the front door of his house.
36 The appellant operated a small business and valued his reputation of creditworthiness. The damage alleged to have been caused to that reputation by the issue of the execution process against the appellant is one aspect of the detriment for which he claimed to be compensated. The other was the hurt and distress - the emotional injury - allegedly caused to him by the finding of the writ of fieri facias fixed to his front door. He claimed that the shock of this, accompanied by fears as to what it might mean, including the catastrophic thought that he might lose his home, caused him to suffer compensable distress. There was evidence that this distress manifested itself in stress-related conditions, including sleeplessness, depression and some episodes of dizziness.
(Page 13)
37 Various other physiological symptoms and conditions were found by the learned trial Judge to be unrelated to the breach of duty pleaded in par 4(g).
38 The learned trial Judge dealt with the claim pleaded in par 4(g) as involving the two heads of detriment referred to - firstly, loss of credit and reputation and secondly emotional distress. He allocated damages of $15,000 to the first head and $5,000 to the second. However, this allocation must be taken to be merely a convenient manner of disclosing the reasoning underlying the final judgment for $20,000. The question for this Court is not whether a particular sum making up the award is unreasonably high or unreasonably low, but whether the judgment as a whole - the judgment for $20,000 - is outside the limits of a sound exercise of discretion: Gamser v The Nominal Defendant (1977) 136 CLR 145 at 149 - 150; Paul v Rendell (1981) 55 ALJR 371 at 376 - 377.
39 In Calder v BoyneSmelters Ltd [1991] 1 Qd R 325, Cooper J said at 328:
"[T]he judgment [for damages for personal injury] is a global award to compensate for all the detriments suffered and it is made only once by the payment of one lump sum. Thus, although an assessing judge may allocate particular sums to particular heads of detriment and express them in his reasons, the judgment does not constitute a series of awards under particular heads, nor does it constitute a mere aggregation of the sums separately allocated … It is the allocation of particular sums which discloses the process of reasoning which led to the exercise of judicial discretion which itself is given effect to in the final award in the form of a single lump sum …
What is appealed against is the total sum awarded ie the discretionary judgment as reflected in the lump sum award. Whether the appeal is successful depends upon the answer to one ultimate question. That question is whether the appellant has demonstrated error which has led to an assessment which is outside the limits of what a sound discretionary judgment could reasonably adopt."
40 The assessment was especially difficult because of the difficulty in determining the degree of harm caused to the appellant by the only breaches of duty which he succeeded in proving, namely, those relating to the taxation of costs and the issue and service of the fieri facias. There
(Page 14)
- was no evidence of financial loss. On the subject of creditworthiness, there was very little evidence at all, apart from some rather vague opinion evidence from an accountant, that could assist the Court to evaluate the extent to which the appellant's credit had been or might have been affected by the issue of the execution process. On the subject of emotional harm, there were difficulties in separating out the emotional harm caused by the service of the writ of fieri facias from the emotional harm caused by non-compensable experiences. There was, for example, evidence of a high level of anxiety caused to the appellant by the stress of the litigation as a whole, and the severe shock of unexpectedly losing his case against the hotel; but for these things liability was not established against the respondent and no damages are recoverable for that part of the appellant's suffering which was attributable to them.
41 In my opinion, the overall award of $20,000 for the non-economic effects of the solicitor's failure in this case was comfortably within the limits of a sound exercise of discretion.
42 I would dismiss this appeal.
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