Eades v Formbys Lawyers - [2011] WADC 125

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: EADES -v- FORMBYS LAWYERS [2011] WADC 125

CORAM: DERRICK DCJ

HEARD: 13-15 JULY 2011

DELIVERED : 15 AUGUST 2011

FILE NO/S: CIV 1156 of 2009

BETWEEN: RICHARD CLIVE EADES
Plaintiff
AND
FORMBYS LAWYERS
Defendant

Catchwords:

Negligence Negligence of solicitor Workers' compensation claim Failure to lodge appeal within time limit Loss of opportunity to appeal

Contract Breach of contract by solicitor Breach of implied term to act with reasonable care and skill Workers' compensation claim Failure to lodge appeal within time limit Loss of opportunity to appeal

Damages Value of loss of opportunity to appeal

Legislation:

Civil Liability Act 2002 (WA)
Civil Liability Act 2002 (NSW)
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Rehabilitation Act 1981 (WA)

Result:

Judgment for the plaintiff
Total damages award $75,000

Representation:

Counsel:

Plaintiff: Ms C F Holyoak-Roberts
Defendant: Mr G P Bourhill

Solicitors:

Plaintiff: Leonard Cohen Legal
Defendant: Tottle Partners

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158; (2007) 34 WAR 109
Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
Carmody v Priestley & Morris Perth Pty Ltd [2005] WASC 120
CDJ v VAJ (No 2) [1998] HCA 67; (1998) 197 CLR 172
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155
Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 215 ALR 418; (2005) 79 ALJR 1104
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 265 ALR 490
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Eades v Moulden Pty Ltd (Unreported, Conciliation and Review Directorate, Application 487/04, 9 August 2004)
Eades v Moulden Pty Ltd (Unreported, Compensation Magistrate's Court, CM 135/04, 20 June 2005)
Eades v Moulden Pty Ltd (Unreported, Compensation Magistrate's Court, CM 135/04, 29 August 2005)
Eades v Moulden Pty Ltd (Unreported, Dispute Resolution Directorate, Application D487/04A, 20 March 2006)
Eades v Moulden Pty Ltd (Unreported, Dispute Resolution Directorate of Western Australia, C15‑2007, 2 March 2007)
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Frost & Sutcliffe v Tuiara [2004] 1 NZLR 782
Gilbert v Shanahan [1998] 3 NZLR 528
Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182
Hammond Worthington v Da Silva [2006] WASCA 180
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473
Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539
Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145
Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1
Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126
Instant Nominees Pty Ltd v Redman [1987] WAR 281
Kitchen v Royal Air Forces Association [1958] 1 WLR 563
Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23
Lunt v New Resource Holdings Pty Ltd (No 3) [2011] WASCA 45
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Mercantile Mutual Insurance (Australia) Ltd v Neilson [2004] WASCA 60; (2004) 28 WAR 206
Mickelberg v R [2004] WASCA 145; (2004) 29 WAR 13
Midland Bank Trust Co Ltd v Hett Stubbs & Kent (a firm) [1979] Ch 384
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Palios Meegan & Nicholson Holdings Pty Ltd v Shore [2010] SASCFC 21; (2010) 108 SASR 31
Phillips v Bisley (Unreported, NSWCA, 18 March 1997)
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [No 2] [2010] WASC 45
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
The State of South Australia v Ellis [2008] WASCA 200; (2008) 37 WAR 1
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Townsend v Roussety & Co (WA) Pty Ltd [2007] WASCA 40; (2007) 33 WAR 321
Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74
Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642
Wood v Apple Introductions (Brisbane) Pty Ltd (in liq) (1990) ANZ ConvR 518
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

DERRICK DCJ: The plaintiff, a 60‑year‑old former shearer, has brought an action against the defendant, a firm of solicitors, claiming damages for alleged negligence and breach of contract. The dispute between the parties has its genesis in an injury suffered by the plaintiff on 30 December 2003.

Non-contentious factual background

It is necessary at the outset to set out in some detail the undisputed factual background to the plaintiff's action.

Events prior to 30 December 2003

Up until December 2003 the plaintiff had spent almost his entire adult life working as a shearer.
For five or so years prior to December 2003 the plaintiff had worked for the one shearing contractor, Moulden Pty Ltd (Moulden). He had been engaged by Moulden during this period on a casual basis. Accordingly, if he did not work he was not paid.
Although Moulden was the only shearing contractor that the plaintiff had worked for during the five or so years prior to December 2003, he had on occasions during this period performed shearing for farmers on his own account. When he sheared for a farmer on his own account he was paid directly by the farmer.
In October 2003 the plaintiff was employed by Moulden as a member of a shearing team. The team was shearing sheep on a farm in the Katanning area that was owned by Ms Christine Day.
There were approximately 300 lambs on Ms Day's farm which were not ready to be shorn during the time that the plaintiff's shearing team was at the farm. The lambs were not going to be ready for shearing until December 2003.
On one of the days that the plaintiff's shearing team was working at Ms Day's farm it was agreed, following a discussion between Ms Day and one or more members of the team, that the plaintiff and Mr Alvin Eades would return to the farm later in the year to shear the lambs. It was understood by all concerned that Ms Day would pay the plaintiff and Mr Eades directly for shearing the lambs.
Towards the end of December 2003 the plaintiff and the other members of his shearing team stopped shearing so that they could have a break over the Christmas period. The plaintiff was due to resume working for Moulden on 5 January 2004.
At some point between 17 December 2003 and 23 December 2003 the plaintiff and Mr Eades returned to Ms Day's farm to shear the lambs. They completed the shearing of the lambs within two or three days. The plaintiff was paid by Ms Day for the work that he had performed in shearing the lambs.

The injury

On 30 December 2003 the plaintiff was at home. He decided to sharpen his shearing combs and cutters so as to be ready to commence shearing for Moulden on 5 January 2004. It was a necessary requirement of his work as a shearer that he attend each day's work with sharp combs and cutters.
To enable him to sharpen his combs and cutters the plaintiff had at his home in his garage a grinding machine, grinding disc and clamp. This equipment had been purchased for the plaintiff at his request by Moulden. Moulden deducted the cost of the equipment from the plaintiff's wages on a gradual basis.
When the grinding disc was not in use it was kept in the clamp. The grinder weighed approximately 41 kg. The total weight of the clamp and disc was approximately 17 kg.
In the process of setting up his equipment so that he could commence sharpening his tools the plaintiff bent down to pick up the grinding disc and clamp. As he picked up the disc and clamp he felt severe pain in his back. It was subsequently ascertained that he had at that point in time suffered a severe injury to his back, specifically a sequestrated disc protrusion at the L4/5 level of his spine (the injury).
As a result of the injury the plaintiff has been unable to return to shearing work. He has been classified as totally and permanently disabled. He is in receipt of a disability support pension from Centrelink.

Application for workers' compensation

On 10 March 2004 the plaintiff made an application for workers' compensation under the Workers' Compensation and Rehabilitation Act 1981 (WA) (the WCR Act). By the application the plaintiff claimed benefits including wages. The application was opposed by Moulden.
On 30 July 2004 the plaintiff's application was heard by a review officer sitting in the Conciliation and Review Directorate at Perth. The plaintiff appeared in person. Moulden was represented by an advocate who was not a legal practitioner. The review hearing was conducted in accordance with the provisions of pt IIIA of the WCR Act.
On 2 August 2004 the review officer dismissed the plaintiff's application.
On 9 August 2004 the review officer published written reasons for his decision: Eades v Moulden Pty Ltd (Unreported, Conciliation and Review Directorate, Application 487/04, 9 August 2004). The review officer found that the plaintiff had not suffered a 'disability' within the meaning of the definition given to that term in s 5 of the WCR Act in that:
1.The injury did not arise out of or in the course of the plaintiff's employment with Moulden: [20];
2.The plaintiff's employment with Moulden did not significantly contribute to the development, aggravation or acceleration of any degenerative disease of the spine which the plaintiff may have been suffering from as at 30 December 2003: [22]; and
3.The plaintiff did not suffer the recurrence, aggravation or acceleration of any pre-existing disease where his employment was a significant contributing factor to that recurrence, aggravation or acceleration [23] [24].
In arriving at these conclusions the review officer made findings of fact that the plaintiff would sharpen his shearing tools at the end of each day's work, that as an experienced shearer the plaintiff was regularly required to sharpen his shearing tools, that if the plaintiff did not regularly sharpen his shearing tools he would be unable to work as a shearer, and that the plaintiff had not been directed by Moulden to sharpen his shearing tools on 30 December 2003: [5], [7], [20].

Plaintiff's engagement of the defendant

On 3 September 2004 the plaintiff met with Mr Steven Wauchope, a solicitor employed by the defendant, at the defendant's office. The principal of the defendant was Mr James Formby.
The plaintiff discussed with Mr Wauchope the possibility of appealing against the review officer's decision to dismiss his application for workers' compensation. Mr Wauchope provided the plaintiff with some advice as to the prospects of the plaintiff successfully appealing against the review officer's decision. Mr Wauchope informed the plaintiff of his estimate of the costs that the defendant would charge for acting for the plaintiff in relation to any appeal. The plaintiff indicated that he would be unable to meet the defendant's costs. The plaintiff and Mr Wauchope agreed that Mr Wauchope would write to the Aboriginal Legal Service (ALS) on the plaintiff's behalf requesting that the ALS provide a grant of aid to fund the costs of the appeal.
On 6 September 2004 the defendant sent a letter to the ALS bearing that date. In its letter the defendant confirmed that it had on 3 September 2004 advised the plaintiff in relation to his 'proposed' appeal against the review officer's decision, and that it had obtained the plaintiff's instructions to 'request your assistance to appeal this decision'. The defendant stated that 'in our opinion [the plaintiff] has a slightly better than even chance of succeeding on appeal to the Compensation Magistrate'. The defendant stated that it estimated that the plaintiff's appeal would cost approximately $4,000 $5,000 inclusive of disbursements.
On 8 September 2004 the time for the filing of an appeal against the review officer's decision expired.
On 23 September 2004 an officer from the ALS rang Mr Wauchope and advised him that that the ALS would provide a grant of aid to the plaintiff to cover the defendant's costs of acting for the plaintiff on the appeal.
On 30 September 2004 the ALS sent a letter to the defendant bearing that date confirming the 'telephone arrangement' that the 'sum of aid' was $1,000 for getting up, $1,000 for representation at the appeal and $1,000 for medical disbursements exclusive of GST. In its letter the ALS also confirmed that the grant of aid was subject to repayment to the ALS 'out of any costs awarded'. The ALS asked the defendant to ensure that the plaintiff signed an irrevocable authority to this effect.

Appeal

On 3 November 2004 the defendant filed at the Compensation Magistrate's Court the plaintiff's Notice of Appeal dated 1 November 2004 (the Notice). By the Notice the plaintiff made an application for leave to appeal out of time against the review officer's decision. The Notice set out the plaintiff's intended grounds of appeal.
On 9 February 2005 the defendant filed the plaintiff's Notice of Amended Grounds of Appeal (the Amended Notice). By the Amended Notice the plaintiff abandoned a number of grounds pleaded in the Notice. The two grounds pleaded in the Amended Notice were directed primarily to the question whether the injury was a 'disability' within the meaning of par (a) of the definition of that term contained in s 5 of the WCR Act, notwithstanding that the injury was suffered while the plaintiff was in the process of attempting to sharpen his shearing equipment at home in preparation for a resumption of his shearing work.
On 21 April 2005 the plaintiff's application for leave to appeal out of time was heard by a compensation magistrate. The plaintiff was represented at the hearing by Mr Wauchope. Moulden was also legally represented.
On 20 June 2005 the compensation magistrate allowed the application for leave to appeal out of time and published written reasons for his decision: Eades v Moulden Pty Ltd (Unreported, Compensation Magistrate's Court, CM 135/04, 20 June 2005). The compensation magistrate extended the time for the filing of the plaintiff's appeal to 9 February 2005. The compensation magistrate also ordered that the Amended Notice stand as the notice of appeal.
On 18 August 2005 the plaintiff's appeal against the review officer's decision was heard by a compensation magistrate. The plaintiff was represented at the hearing of the appeal by Mr Wauchope. Moulden was also represented by a legal practitioner.
On 29 August 2005 the compensation magistrate allowed the plaintiff's appeal. The magistrate published written reasons for her decision: Eades v Moulden Pty Ltd (Unreported, Compensation Magistrate's Court, CM 135/04, 29 August 2005).
The compensation magistrate allowed the appeal on the basis that the review officer had failed to apply the test laid down in the decisions in Henderson v Commissioner of Railways(WA) [1937] HCA 67; (1937) 58 CLR 281 and Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126 for determining if an injury, which has occurred in an interval between periods of work, is sustained in the course of employment: [16] – [21], [25] – [32]. The magistrate remitted the matter to the review officer so that the review officer could determine, in accordance with the law, whether the injury arose out of or in the course of the plaintiff's employment with Moulden. The magistrate ordered that Moulden pay the plaintiff's costs of the appeal, with the exception of costs with respect to the implied and express duties of shearers, to be taxed if not agreed.

Payment of the plaintiff's costs

On 1 September 2005 the defendant sent to Moulden's solicitors the plaintiff's Bill of Costs for the appeal. After some further communications and negotiations between the defendant and Moulden's solicitors, the defendant agreed to accept from Moulden's workers' compensation insurer $5,000 in payment of the plaintiff's costs of the appeal. The defendant also decided, as it was permitted to do, that it would accept this amount as payment by the plaintiff of his costs rather than requesting payment from the ALS pursuant to the grant of aid that the ALS had previously made. The defendant issued a tax invoice to the plaintiff, dated 13 September 2005, in the amount of $5,000 which was paid by the funds received from Moulden.

Grant of aid for second review

On 14 September 2005 the defendant sent a letter to the ALS bearing that date. In its letter the defendant informed the ALS of the outcome of the plaintiff's appeal. It informed the ALS that the plaintiff had been awarded his costs of the appeal on a party/party basis, that Moulden's workers' compensation insurer had paid the plaintiff's costs and that therefore 'we have not needed to have recourse to the grant of aid made to [the plaintiff] in your letter to us dated 30 September 2004'. The defendant also stated:
Given the matter has been remitted for a further Review [the plaintiff] will require representation at that Review which is likely to cover all of those issues raised at the original Review, as well as some further issues [Moulden] is attempting to raise. We anticipate four to five witnesses will be called at the Review and the Review should take most of a day.
On this basis we will be obliged if you will make the original grant of aid available to [the plaintiff] to fund his Review? Depending upon when the Review is listed we will be able to represent [the plaintiff] at the Review, or brief an independent advocate to represent [the plaintiff].
We will be obliged if you will confirm the [ALS] is willing to grant [the plaintiff] $1,000 for the getting up of the Review, $1,000 for representation at the Review and $1,000 for disbursements. We do not anticipate [the plaintiff's] Review will require much by way of disbursements.
By letter dated 19 September 2005 the ALS advised the defendant that it agreed to the allocation of the 'current grant of aid of $1,000 getting up, $1,000 for representation and $1,000 for disbursements (minus expenditure to date) for the purpose of conducting a Review'.

The arbitration

In November 2005 the legislation in this State relating to workers' compensation was amended. One of the changes made to the legislation was that officers formerly referred to as review officers became arbitrators and review hearings became arbitrations.
On 19 December 2005 the arbitrator (that is, the review officer who had initially dealt with the plaintiff's application for workers' compensation) reconsidered the plaintiff's application in accordance with the decision of the compensation magistrate on the appeal. The plaintiff was represented at the arbitration hearing by Mr Wauchope. Moulden was legally represented.
On 9 January 2006 the defendant filed further written submissions on behalf of the plaintiff in accordance with directions made by the arbitrator during the hearing on 19 December 2005.
On 13 January 2006 the defendant sent to the ALS, under cover of a letter bearing that date, its tax invoice for the disbursements that it had incurred 'with respect to [the plaintiff's] appeal'. The invoice was for $55 and related to an account issued by the plaintiff's general practitioner for a report prepared for use at the arbitration hearing. In its letter the defendant stated that if the plaintiff's 'arbitration succeeds we confirm that we may seek party‑party costs from the workers compensation insurer, or alternatively provide you with your account for our work on [the plaintiff's] arbitration limited to $1,000 for getting up and $1,000 for representation as set out in our letter of 19 September 2005'. The reference by the defendant to '19 September 2005' was an error. The reference should have been to '14 September 2005'.

The employment of Mr Widdicombe

In or about February 2006 Mr Wauchope left his employment with the defendant. The defendant employed another solicitor to take Mr Wauchope's place. The solicitor was Mr Geoff Widdicombe.
Within two or three weeks of Mr Widdicombe commencing employment with the defendant, the plaintiff rang the defendant to inquire if the arbitrator had made his decision. The plaintiff was referred to Mr Widdicombe who had taken over responsibility for Mr Wauchope's files. The plaintiff spoke to Mr Widdicombe. He had not previously done so. Mr Widdicombe explained to the plaintiff that he had taken over the plaintiff's file, that the arbitrator had not handed down his decision and that he would contact the plaintiff as soon as the decision had been handed down.

The arbitrator's decision

On 20 March 2006 the arbitrator dismissed the plaintiff's application. The arbitrator published written reasons for his decision: Eades v Moulden Pty Ltd (Unreported, Dispute Resolution Directorate, Application D487/04A, 20 March 2006). In his decision the arbitrator, after referring to the tests laid down in Henderson v Commissioner of Railways and Humphrey Earl v Speechley, found that the plaintiff was not, when he suffered the injury, doing something which he was reasonably required, expected or authorised by Moulden to do in order to carry out his duties on 5 January 2004: [15] [20]. In arriving at this conclusion the arbitrator confirmed the findings that he had made at the review hearing, namely that the plaintiff had not been directed by Moulden to sharpen his shearing equipment on the day in question, that the plaintiff was regularly required to sharpen his tools of trade, and that without regularly sharpened tools the plaintiff would be unable to work as a shearer. The arbitrator also found in arriving at his decision that:
1.The reason the plaintiff sharpened his tools on 30 December 2003 was not because of the work he had previously undertaken for Moulden, but rather because of the work he had undertaken for Ms Day: [17], [18]; and
2.The fact that Moulden had agreed, in effect, to lend the plaintiff money to purchase the grinder, grinding disc and clamp could not be seen as a form of inducement or encouragement by Moulden for the plaintiff to spend his time at the completion of each day sharpening his shearing tools: [19].

Events following the decision on the arbitration

On 22 March 2006 the defendant received from the WorkCover WA Dispute Resolution Directorate (WorkCover) a copy of the Certificate of Outcome for the arbitration and the arbitrator's written reasons.
The Certificate of Outcome was a one page document. At the bottom of the Certificate of Outcome was a heading 'Appeal Rights'. Under the heading 'Appeal Rights' were five dot points. The first of the dot points read, 'A party to a dispute may, with the leave of the Commissioner, appeal against a decision of an arbitrator made under Part XI'. The second dot point read, 'Leave to appeal must be sought within 28 days of the "Date of Decision".' The 'Date of Decision' shown on the Certificate of Outcome was 20 March 2006.
The arbitrator's written reasons for decision ran for nine pages (the reasons were numbered pages 2 10, the Certificate of Outcome being numbered page 1) and consisted of 20 single spaced typed paragraphs. On the last page of the reasons there was an entry which read 'cc: Mr R Eades 7 Pemble St KATANNING WA 6317'. The plaintiff's home address was 7 Pemble Street, Katanning. At the bottom of the last page of the reasons there was a heading 'Appeal Rights'. Under the heading were the same five dot points that appeared under the heading 'Appeal Rights' in the Certificate of Outcome.
The 28‑day time limit within which an application for leave to appeal against the arbitrator's decision had to be made (the appeal period) expired at 4.00 pm on 18 April 2006.
On 23 March 2006 the defendant sent to the plaintiff a letter bearing that date. The letter was in the following terms:
We refer to your recent telephone conversation with Geoff Widdicombe with regard to the Arbitration application decision of the Workcover Directorate.
We enclose a copy of the Certificate of Outcome and a copy of the reasons for the decision from the Arbitrator Mr Brash.
Briefly, Mr Brash has found your injury occurred while lifting grinding equipment used to sharpen your shearing tools. However, Mr Brash has also found your need to sharpen your shearing equipment arose from your work with Days and was not connected with your work, the respondent, Moulden Pty Ltd. Given this, the Workcover Directorate has dismissed your application.
Subject to you being granted leave by the Commissioner, you may appeal the decision of the Arbitrator. However, we consider your chance of overturning the Arbitrators decision is marginal. Therefore, you run a real risk of increasing your legal costs with no benefit to you if the appeal fails.
We would welcome the opportunity to discuss this matter with you further.
Please call Geoff Widdicombe if you have any queries on 9381 4180.
On 24 March 2006 Mr Widdicombe spoke to the plaintiff by telephone. By the time of the conversation the plaintiff had received a copy of the Certificate of Outcome and the arbitrator's reasons for decision.
The conversation between the plaintiff and Mr Widdicombe revolved around the arbitrator's decision. During the conversation the plaintiff told Mr Widdicombe that Ms Day had not asked him to shear her lambs and that he had been told to do this by Moulden. At the end of the conversation the plaintiff and Mr Widdicombe agreed either that the plaintiff would call Mr Widdicombe when he had made a decision as to whether to appeal against the arbitrator's decision or that Mr Widdicombe would call the plaintiff back at a later date to ascertain the plaintiff's decision in relation to this issue.
On or before 29 March 2006 Mr Widdicombe reviewed the plaintiff's file. Having done so, Mr Widdicombe formed the view that the decisions of the review officer, the compensation magistrate on the appeal and the arbitrator did not address the issue of Moulden having given instructions to the plaintiff to shear Ms Day's lambs. Mr Widdicombe considered that if this issue had not previously been canvassed there was a possibility of appealing against the arbitrator's decision on the basis of 'new evidence'.
On 29 March 2006 Mr Widdicombe rang the plaintiff to obtain Ms Day's contact details. Mr Widdicombe told the plaintiff that he needed to ring Ms Day to find out what she had to say about how the plaintiff came to shear the lambs. The plaintiff provided Mr Widdicombe with Ms Day's contact details.
After speaking to the plaintiff Mr Widdicombe rang Ms Day. However, she was unavailable. Mr Widdicombe left a message for Ms Day to call him back.
Ms Day rang Mr Widdicombe on 30 March 2006. She informed Mr Widdicombe of her recollection as to how it came about that the plaintiff sheared the lambs for her. Ms Day's recollection was, in essence, that she discussed the issue with the wool classer who was a member of the shearing team which was at her farm and that the wool classer then told the plaintiff, who was one of the shearers in the team, to come back and shear the lambs at a later date.
Later on 30 March 2006 the plaintiff rang Mr Widdicombe. Mr Widdicombe told the plaintiff what Ms Day had told him. He told the plaintiff that if the plaintiff was to appeal against the arbitrator's decision, the appeal would not be brought on the ground that the decision was wrong but rather on the basis of new evidence because the evidence that the plaintiff was told by Moulden (through the wool classer) to shear the lambs had not previously come to light. He explained to the plaintiff that appeals brought on the basis of new evidence were often harder to win. He said to the plaintiff that the plaintiff's chance of winning any appeal was probably less than 50% and in the vicinity of 35% ‑ 40%. He told the plaintiff that the plaintiff needed to consider the costs of an appeal because the defendant's work in progress amounted to about $15,000. He told the plaintiff that he was not saying that Mr Formby would charge this full sum but that it was up to Mr Formby.
In response to Mr Widdicombe's statements the plaintiff asked Mr Widdicombe to see if he could obtain some money from the ALS to pay for the appeal. Mr Widdicombe agreed to contact the ALS on the plaintiff's behalf.
At the time of his conversation with the plaintiff Mr Widdicombe was under the misapprehension that the plaintiff was a privately paying client. The review of the file that Mr Widdicombe undertook following his conversation with the plaintiff on 24 March 2006 did not reveal to him the ALS's past involvement in the matter.
On 7 April 2006 the defendant sent a letter to the ALS bearing that date. The letter was prepared by Mr Widdicombe. Throughout the letter the defendant referred to the plaintiff as 'our client'.
In its letter under the heading 'Background' the defendant informed the ALS of the arbitrator's decision and stated that 'our client instructs us the small number of lambs he sheared at [Ms Day's] farm would have only had a marginal effect on his equipment'. The defendant also stated that following 'the second review of our client's case, our client instructed us his employer told his colleague and him to shear [Ms Day's] lambs'.
In its letter under the heading 'New Evidence' the defendant stated that 'our client can appeal the second decision of the Arbitrator with the leave of the Commissioner' and that if 'our client seeks leave to appeal, he must file his appeal documents before 25 April 2006'.
In its letter under the heading 'Our Client's Costs' the defendant said the following:
The work completed on our client's matter amounts to $15,381.00. Our client is in a position of not being compensated unless he seeks leave to appeal. Further, our client cannot afford to pay our costs. Given this, our client has asked us to write to your office to apply for aid. Obviously, we understand your office has limited resources and if ALSWA pays our client's costs to date we are willing to discount our bill.
We look forward to your response. Please call Geoff Widdicombe if you have any queries.
The terms of the defendant's letter so far as it related to the issue of costs reflected Mr Widdicombe's lack of knowledge of the arrangements for the payment of the plaintiff's costs that the defendant had previously made with the plaintiff and the ALS.
On 12 April 2006 Mr Widdicombe spoke to Mr Formby about the plaintiff's matter. Mr Widdicombe raised with Mr Formby his concern that the defendant was approximately $8,000 out of pocket, that is, that the defendant had performed on the plaintiff's matter much more work than it had charged or been paid for. Mr Formby, after discussing the matter with Mr Widdicombe, decided that the defendant should not perform any more work for the plaintiff unless it was going to get paid by the plaintiff or some other party for any future work. Mr Formby instructed Mr Widdicombe accordingly.
Later on 12 April 2006 Mr Widdicombe telephoned the plaintiff. During his conversation with the plaintiff Mr Widdicombe told the plaintiff that it was difficult to appeal a decision on the basis of fresh evidence, and that the chance of the plaintiff successfully appealing against the arbitrator's decision was less than 50%. He stated that it would cost the plaintiff about $3,500 $4,000 to appeal against the arbitrator's decision. He stated that the plaintiff had to pay for the cost of the appeal. He said that there was no time to provide the ALS with what it wanted. He stated that another option for the plaintiff was for the plaintiff to do the appeal himself and that to do this the plaintiff would need to swear an affidavit and obtain an affidavit from Ms Day. He informed the plaintiff, based on what the plaintiff and Ms Day had previously told him, that the plaintiff and Ms Day would need to say in their affidavits that the wool classer had told the plaintiff and Mr Eades to return to shear the lambs and that Ms Day did not specifically ask him and Mr Eades to shear the lambs. The plaintiff told Mr Widdicombe that he would talk to his wife and get back to him.
Mr Widdicombe told the plaintiff that there was no time to provide the ALS with what it wanted because at the time he had formed the view that the ALS would, before deciding to grant aid, want an independent opinion in relation to the prospects of the appeal.
After speaking to the plaintiff Mr Widdicombe rang the ALS to follow up the request for a grant of aid made in the defendant's letter dated 7 April 2011. The person he needed to speak to was not available. He left a message for the person to call him back.
At approximately 2.35 pm an employee of the ALS rang Mr Widdicombe. She told Mr Widdicombe that the ALS's costs to date had been $3,000 and that before any further grant of aid would be made the ALS needed advice as to the prospects of success of the appeal, an estimate of the costs of the appeal, and advice as to the benefits that would flow to the plaintiff if the appeal was successful. She explained to Mr Widdicombe that any decision by the ALS to refuse a grant of aid was reviewable. She told Mr Widdicombe that the ALS employee who was responsible for making the ultimate decision in relation to any request made on behalf of the plaintiff for aid was a Mr Edward Cade.
On Thursday 13 April 2006, which was the day before the Easter long weekend, the plaintiff's daughter, Ms Angela Eades, rang Mr Widdicombe. She told Mr Widdicombe that she wanted to know what was 'going on' with the plaintiff's matter because the plaintiff was a little confused. Mr Widdicombe explained to Ms Eades the history of the matter and told her about his recent communications with the plaintiff and Ms Day. He referred to the possibility of appealing against the arbitrator's decision on the basis of new evidence and said that new evidence appeals were hard to win. He told Ms Eades of his recent communications with the ALS.
Also on 13 April 2006 the ALS sent a letter to the defendant bearing that date. The letter was written by Mr Cade and was in the following terms:
Thank you for your letter of 7 April 2006.
We consider your letter to contain two distinct applications for aid. The first relating to costs accrued to date, the second to support a proposed appeal.
With respect to the first application we advise that we are not able to approve applications for aid retrospectively. That is, we are not able to approve your client's application for costs accrued to date beyond the amounts already approved. These amounts are $1,000 getting up, $1,000 for representation and $1,000 for disbursements.
With respect to the second application, we advise that we will require the following to be provided to us before we can consider your client's application:-
1(a)advice as to the prospects of success of the proposed appeal;
(b)the anticipated cost of the proposed appeal; and
(c)the likely benefit that will accrue to your client, if the appeal were successful.
Any decision we make in respect of aid, including the decisions set out in this letter, and also including any later decision we make about an extension or termination of the grant, is reviewable. To have a decision reviewed, a letter needs to be sent to this office marked for the attention of the writer setting out reasons in support of the application for review. The writer will then arrange for the relevant person to review the decision and for you/your client to be advised of the outcome in writing as soon as reasonably possible and in any event within 2 months of the request for review. The time limit for requesting a review is 3 months from the date of the letter advising of the decision.
Please do not hesitate to contact me should you have any queries. We will, of course, assess your client's application promptly once the above requested material is provided to us.
Later on 13 April 2006 the defendant sent to the ALS by facsimile a letter in response to the ALS's letter of that date. The letter was prepared by Mr Widdicombe. In its letter the defendant provided advice to the ALS as to the prospects of success of any appeal by the plaintiff against the arbitrator's decision. In this context the defendant stated that it considered that 'our client's appeal has some merit', that the new evidence that had come to light established that 'our client was acting on instructions from [Moulden]', that it considered that there was merit in 'our client appealing [the arbitrator's] decision based on the argument that he did not previously have to address the issue of who was actually employing him in the past' and that given that fresh evidence appeals are difficult to win 'we would have to objectively say our client's chance of success is less than 50%'. In its letter the defendant also stated that it estimated the cost of appealing the matter to be in the vicinity of $3,500 $4,000, and that the benefit to the plaintiff of succeeding on appeal would be that he would receive weekly benefits. The defendant concluded its letter by asking the ALS to give an answer as to whether it would provide a further grant of aid 'by 18 April 2006'.
At some point between 13 April 2006 and the morning of 18 April 2006 the ALS sent by facsimile a letter to the defendant dated 13 April 2006. It is not clear precisely when the letter was placed on the ALS's facsimile machine. However, it was not received in the defendant's Subiaco office until the morning of Tuesday 18 April 2006, the first working day after the Easter long weekend.
In its letter the ALS advised the defendant that the plaintiff's application for a grant of aid had been assessed and had been refused. The ALS also informed the defendant of the plaintiff's right of reconsideration and review of any decision to refuse aid. The ALS stated that reconsideration of the decision would be by the Director of Legal Services, and that if the plaintiff was dissatisfied with the result of reconsideration he could apply to have an external review committee review the reconsideration.
On 18 April 2006 Mr Widdicombe was working in the defendant's Bunbury office. The ALS's letter was faxed to him in the Bunbury office. Mr Widdicombe read the letter some time around mid morning.
Having received a copy of the ALS's letter, Mr Widdicombe telephoned the plaintiff. He told the plaintiff that the ALS had refused to grant aid to fund an appeal. Mr Widdicombe asked the plaintiff to speak to his family and to get back to him by 11.30 am with his instructions.
At around 11.30 am the plaintiff telephoned Mr Widdicombe. During the conversation the plaintiff offered to pay the defendant's costs of running the appeal at $200 per month. Mr Widdicombe informed the plaintiff that this was not acceptable because the defendant could not 'keep acting as a bank' and could not afford to keep carrying the debt. Mr Widdicombe informed the plaintiff that if he paid $2,000 'up front' the defendant would accept the balance of its costs of conducting the appeal paid at $200 per month. The plaintiff informed Mr Widdicombe that he would speak to his family to see if he could raise the money.
In the mid‑afternoon on 18 April 2006 Mr Widdicombe was telephoned by Mr Cade of the ALS. Mr Cade informed Mr Widdicombe that he had received a message to call the plaintiff. He asked Mr Widdicombe if the defendant had any objection to him speaking to the plaintiff directly. Mr Widdicombe explained the issue of costs in the matter and gave the defendant's approval to Mr Cade contacting the plaintiff directly. Mr Widdicombe said to Mr Cade that if the ALS's decision refusing aid was to be reviewed, this had to be done as soon as possible because the appeal needed to be commenced that day.

At the time of speaking to Mr Cade Mr Widdicombe believed that if the ALS was able to review its decision very quickly, that is, within a few minutes and the review resulted in aid being granted to the plaintiff, it would still be possible for the defendant to lodge an application for leave to appeal on the plaintiff's behalf within the appeal period. He believed that he would be able to arrange for Mr Formby to prepare a notice of appeal and, given that WorkCover was in Shenton Park which was only a short distance from the defendant's Subiaco office, for the notice to be lodged with WorkCover before 4.00 pm.
At about 3.50 pm on 18 April 2006 Ms Eades rang Mr Widdicombe. Ms Eades told Mr Widdicombe that the ALS would not be able to review its decision to refuse to grant aid to the plaintiff until 5.00 pm on that day. Mr Widdicombe told Ms Eades that this would be too late as the time for filing any appeal expired in 11 minutes. He stated that if there was no funding the defendant would not be running any appeal. Mr Widdicombe said to Ms Eades that the plaintiff might be able to seek leave to appeal out of time.
At about 3.55 pm Ms Eades rang Mr Widdicombe again.
At about 5.00 pm on 18 April 2006 Mr Cade telephoned Mr Widdicombe who was still in the defendant's Bunbury office. Mr Cade told Mr Widdicombe that the ALS would pay $2,000 and that the plaintiff would pay $2,000, but that if the plaintiff was unable to pay the $2,000 the ALS would pay the total amount of $4,000 and attempt to recover the $2,000 from the plaintiff and his wife directly. Mr Widdicombe told Mr Cade that he would inform the plaintiff of the ALS's decision. He also told Mr Cade that the plaintiff was now one day out of time for appealing and that it would be necessary to seek leave to appeal out of time.
After speaking to Mr Cade, Mr Widdicombe contacted the plaintiff. He informed the plaintiff of the ALS's decision and said that he would prepare the appeal documents the next day.
On 19 April 2006 Mr Widdicombe was in the defendant's Subiaco office. He worked on the plaintiff's appeal. He undertook some research and prepared documents for the application for leave to appeal.
On 20 April 2006 Mr Widdicombe personally filed with WorkCover a letter from the defendant to the Commissioner of WorkCover (the Commissioner) dated 20 April 2006, and a 'DRD Approved Form 10' application for leave to appeal against the decision of the arbitrator also dated 20 April 2006 (the Application Form). In its letter to the Commissioner, which Mr Widdicombe had prepared, the defendant set out the background to the plaintiff's application. It stated that since the decision of the arbitrator it had become aware of a number of matters one of which was that the 'wool classer instructed [the plaintiff] and another shearer, Alvin Eades, to attend at Ms Day's farm in December [2003] to shear the lambs'. It advised that it was instructed to 'seek leave to appeal against [the arbitrator's] decision and seek leave to adduce fresh evidence' on a number of grounds, specifically:
1.The evidence at the previous hearings related to the issue of whether our client had become injured while lifting grinding equipment. The issue of whether our client was working for the respondent or Ms Day had not been raised;
2.The different reason of [the arbitrator] for deciding this matter meant our client was not able to present the evidence we have since become aware of;
3.The decision of [the arbitrator] leaves our client without an income and continuing to suffer economic harm and prejudice; and
4.The insurer was not paying our client weekly benefits at the time of [the arbitrator's] recent decision and therefore, the insurer will not suffer prejudice by our client being granted leave to appeal.
The defendant stated in its letter that it was not yet able to present the fresh evidence in a form acceptable to WorkCover and that it 'sought the indulgence of the Commissioner' to accept the plaintiff's application for leave to appeal without the requisite supporting documentation. In its letter the defendant stated that it would undertake to file the necessary supporting documents within 14 days.
On 21 April 2006, and again on 24 April 2006, Mr Widdicombe spoke to the plaintiff on the telephone in relation to the circumstances in which he came to shear Ms Day's lambs and the affidavits that would need to be sworn by the plaintiff, Mr Alvin Eades and Ms Day.
On 26 April 2006 the defendant received a letter from the Associate to the Commissioner bearing that date advising that as the plaintiff's application for leave to appeal was filed on 20 April 2006 it was out of time. The defendant's letter dated 20 April 2006 and the Application Form was returned to the defendant under cover of the Associate's letter.
On 28 April 2006 the defendant received a letter from the ALS dated 26 April 2006 in which the ALS confirmed Mr Cade's earlier verbal advice as to the ALS's decision to grant aid to fund the appeal.
Following the receipt of the letter from the Commissioner's Associate Mr Widdicombe continued to take steps to prepare and obtain affidavits from the plaintiff, Mr Eades and Ms Day. He did so because he and Mr Formby had conferred about the possibility of lodging in the Supreme Court an 'appeal to seek leave to appeal out of time'.
After further communications with the plaintiff, Mr Eades and Ms Day about the evidence that they would be able to give, Mr Widdicombe came to the view that the available evidence was not sufficient to 'seek leave to appeal out of time to the Supreme Court'. He discussed the issue with Mr Formby. He and Mr Formby decided that the defendant should send the plaintiff a letter advising him to obtain independent legal advice.
On 19 May 2006 Mr Widdicombe rang the plaintiff. He told the plaintiff that he should obtain independent legal advice and that the defendant would be sending a letter to him to this effect. He told the plaintiff that the appeal documents had been filed out of time, that they had been returned and that the plaintiff was now not able to appeal against the arbitrator's decision. It was clear to Mr Widdicombe that the plaintiff was confused about what he was being told.
Some time after 19 May 2006 the plaintiff consulted another firm of solicitors, Vertannes Georgiou.
On or about 1 November 2006 Vertannes Georgiou sent a letter to the defendant bearing that date. In its letter Vertannes Georgiou asked the defendant if it would consider 'taking on the matter again for [the plaintiff] with a view to making an application to extend the time for the Appeal and proceeding with the Appeal'.
On or about 15 November 2006 the defendant sent a letter to Vertannes Georgiou bearing that date in which it advised that it was prepared 'to appeal WorkCover's decision to the Supreme Court on a pro bono basis' but that it considered 'it best if you continue to advise [the plaintiff] in this matter especially with respect to any offers made by the insurer to settle'.
For reasons that are not apparent from the evidence the defendant did not ultimately institute an appeal to the Supreme Court on the plaintiff's behalf.
On or about 23 January 2007 the plaintiff made an application to the Commissioner for leave to refer a question of law to the Commissioner, namely whether the Commissioner had the power to grant the plaintiff leave to file an application to appeal the arbitrator's decision out of time. Although the plaintiff was by this time represented by Vertannes Georgiou, the application and the papers filed in support of the application were, as a result of some agreement between the defendant and Vertannes Georgiou, prepared by the defendant. The papers filed in support of the application included a Statement of Material Facts, written submissions and affidavits sworn by the plaintiff, Mr Alvin Eades and Ms Day on 2 May 2006, 3 May 2006 and 25 January 2007 respectively. In pars 6 ‑ 10 of her affidavit Ms Day deposed to the following:
6.In October 2003, while the shearing team was shearing my sheep at Hillside Farm it was understood that the shearing team would shear all of my sheep except my lambs following discussion of this by the wool classer and myself. My lambs would not be ready to be shorn until December 2003. I had approximately 300 lambs.
7.I discussed the need for my lambs to be shorn with the wool classer while the team and I were in the shearing shed at Hillside Farm in October 2003. While I was standing near to the wool classer, he called out to [the plaintiff] and another shearer named Alvin Eades saying they had to return to Hillside Farm in December 2003 to shear my lambs and that I will pay them. I recall [the plaintiff] acknowledging the wool classer and saying words to the effect he will return and shear the lambs.
8.Alvin Eades and [the plaintiff] returned to Hillside Farm in December 2003. They sheared 293 lambs between 17 December 2003 and 19 December 2003'.
9.I paid [the plaintiff] and Mr Eades for shearing my lambs.
10.I did not at any time ask [the plaintiff] or Mr Eades to shear my lambs.
The plaintiff and Mr Alvin Eades in their affidavits provided a substantially similar account to that of Ms Day as to how they came to shear Ms Day's lambs in December 2003.
The Commissioner dealt with the plaintiff's application for leave to refer a question of law to him on the papers. On 2 March 2007 the Commissioner dismissed the plaintiff's application: Eades v Moulden Pty Ltd (Unreported, Dispute Resolution Directorate of Western Australia, C15‑2007, 2 March 2007).
On 17 April 2009 the plaintiff commenced his action in this court.

Aspects of the evidence

Before turning to deal with the plaintiff's causes of action it is convenient to make some brief observations about aspects of the evidence given by the plaintiff, Ms Angela Eades and Mr Widdicombe in relation to the issue of the costs arrangements that were made between the plaintiff and the defendant. Ms Eades was called by the plaintiff in support of his case.

The evidence as to the arrangements made with Mr Wauchope

During his evidenceinchief the plaintiff testified that when he first met with Mr Wauchope on 3 September 2004 Mr Wauchope told him that if the plaintiff 'won' the defendant would get paid. He said that Mr Wauchope did not ask him for any money at the first meeting. He said that following his meeting with Mr Wauchope he did not expect to have to pay the defendant any money.
During cross-examination the plaintiff was questioned about pars 15, 16 and 17 of an affidavit that he had sworn on 12 November 2004 in support of his application for leave to appeal out of time against the decision of the review officer. In those paragraphs he had sworn that his appointment with the defendant was on 3 September 2004, that he was advised that he had merit to appeal the review officer's decision although the appeal was out of time, that he was unable to meet the defendant's financial requirements for him to instruct the defendant to commence the appeal and that the defendant offered to write to the ALS to make a funding submission. On questioning, by reference to these paragraphs of his affidavit, the plaintiff initially maintained that during the 3 September meeting Mr Wauchope had never asked for money. However, ultimately on further questioning the plaintiff conceded that 'if it's down in black and white' the contents of the affidavit must be true. He also ultimately conceded that he was not sure and could not remember whether Mr Wauchope had said that the defendant would get its money at the end of the proceedings when the plaintiff received compensation, or words to that effect.
Mr Wauchope was not called to give evidence. Nonetheless, I do not accept the evidence given by the plaintiff during examination‑in‑chief that at his first meeting with Mr Wauchope he was told that if he won the appeal the defendant would get paid. Leaving aside the fact that the plaintiff appeared to resile from his evidence in this regard during cross‑examination, the evidence is inconsistent with not only the defendant's conduct in making the application to the ALS for a grant of aid to appeal the review officer's decision, but also with the terms of the correspondence that passed between the defendant and the ALS. In short, I do not accept that the defendant ever agreed to act for the plaintiff in relation to his workers' compensation matter on the basis that it would only be paid if the plaintiff was successful on his appeal or in relation to his claim generally.

Plaintiff's initial contact with Mr Widdicombe

In relation to his initial contact with Mr Widdicombe the plaintiff gave evidence as follows.
After the arbitrator had dismissed his application he went to the defendant's offices to see Mr Wauchope. However, by this time Mr Wauchope was no longer with the defendant. He therefore met with Mr Widdicombe. He is not sure when this meeting took place. Mr Widdicombe told him that he had taken Mr Wauchope's place and that if the plaintiff could not pay any money for the appeal the defendant could not keep going with the appeal.
He spoke to Mr Widdicombe again by telephone on 12 April 2006. During this conversation Mr Widdicombe said that the defendant wanted money for the appeal and that if he could not pay for the appeal the defendant could not keep going with the appeal. Mr Widdicombe said that he wanted the plaintiff to obtain money from his family. He told Mr Widdicombe that he could not obtain money from his family. Mr Widdicombe therefore went and asked the ALS for the money.
Mr Widdicombe, when he gave evidence, testified that he had never met the plaintiff personally. He said that the first time that he spoke to the plaintiff was prior to 23 March 2006 when the plaintiff had rang the defendant to inquire whether the arbitrator had handed down his decision. He said that the next time that he spoke to the plaintiff was on 24 March 2006, following the handing down by the arbitrator of his decision.
In watching and listening to the plaintiff give his evidence as to the supposed face‑to‑face meeting between he and Mr Widdicombe, I gained the distinct impression that he did not really have any clear recollection of what he was speaking about. Further, Mr Widdicombe kept fairly detailed notes of almost all of his communications with the plaintiff and nowhere in the defendant's file is there any note of, or reference to, a meeting between the plaintiff and Mr Widdicombe. The defendant's letter to the plaintiff dated 23 March 2006, which was prepared by Mr Widdicombe and by which the defendant sent to the plaintiff a copy of the Certificate of Outcome and the arbitrator's reasons for decision, refers only to Mr Widdicombe's 'recent telephone conversation' with the plaintiff. In these circumstances I prefer Mr Widdicombe's evidence to that of the plaintiff's evidence on this point and accordingly find that there was no face to face meeting between the two of them.

Ms Eades' evidence

During her evidence‑in‑chief Ms Eades testified that prior to the expiration of the time for the filing of the plaintiff's application for leave to appeal against the arbitrator's decision she rang Mr Widdicombe to discuss the issue of the defendant requiring funding before proceeding with the plaintiff's appeal. She said that when she spoke to Mr Widdicombe she offered to pay for the appeal 'with our own money' until the ALS funding came through. She said that Mr Widdicombe refused this offer.
In cross-examination Ms Eades refused to accept that the first time that she offered on behalf of her family to pay for the plaintiff's appeal until the ALS funding came through was when she spoke to Mr Widdicombe at about 3.55 pm on 18 April 2006.
During his evidence‑in‑chief Mr Widdicombe testified that when he spoke to Ms Eades at about 3.55 pm on 18 April 2006 she asked him if she could pay the defendant to prepare the appeal documents and file them. He said that he understood that what Ms Eades was saying was, 'We'll worry about the rest of the process of the appeal after that point in time'. He said that he told Ms Eades that four minutes was not enough time to prepare and file the appeal documents and that it was therefore probably best to wait until the ALS had made a decision. He said that this was the first time that Ms Eades had offered to pay any money for the appeal. He rejected during cross‑examination the suggestion that Ms Eades had previously made this offer during her conversation with him on 13 April 2006.
I prefer Mr Widdicombe's evidence in relation to this issue. When Ms Eades gave her evidence she was, perhaps not surprisingly, clearly uncertain as to exactly when she had spoken to Mr Widdicombe, how many times she had spoken to Mr Widdicombe and what topics had been covered during each conversation. Furthermore, Mr Widdicombe's evidence as to when Ms Eades made the offer to pay money to enable the preparation of the appeal documents was consistent with his file notes of his conversations with Ms Eades. Neither his file note of his conversation with Ms Eades on 13 April 2006 nor his file note of the first of the conversations that he had with Ms Eades on 18 April 2006 makes any reference to Ms Eades making an offer to pay for part of the appeal costs. However, Mr Widdicombe's file note of the second of the conversations that he had with Ms Eades on 18 April 2006 reads as follows:
Angela called.
Asked if she pay us to prepare appeal doc so it can be lodged today. We say must be lodged in 4 minutes. Can't prepare it in 4 minutes.
Therefore we will wait until ALS makes a decision.
I therefore find that the first time that Ms Eades offered to pay the defendant to prepare and file the plaintiff's application for leave to appeal against the arbitrator's decision was at approximately 3.55 pm on 18 April 2006.

The plaintiff's negligence action ‑ liability

The issues

The plaintiff's case in negligence is, in essence, that the defendant owed to him a duty of care, that by failing to do one or more of a number of things it breached that duty of care, and that the breach of duty caused him to suffer injury in the form of the loss of an opportunity to make an application for leave to appeal against the decision of the arbitrator. The plaintiff contends that this loss of opportunity resulted in him suffering economic loss in the form of workers' compensation payments that he would otherwise have been entitled to receive from his employer.
The defendant admits, in accordance with established principle, that from the time that it first agreed to act as the plaintiff's solicitor it owed to the plaintiff a duty of care to exercise reasonable care, skill and diligence in performing the work that it was retained to do: Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74, 84; Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1 [146]. However, the defendant denies that it breached its duty of care. The defendant also denies that anything it did or did not do caused the plaintiff to suffer any injury or compensable loss.

The application and operation of the Civil Liability Act 2002 (WA)

Part 1 of the Civil Liability Act 2002 (WA) (the CLA) came into operation on 1 December 2003. Part 1A includes s 5A s 5D.
Section 5A(1) of the CLA provides, so far as is relevant, that pt 1A applies to any claim for damages for harm caused by the fault of a person. Section 3 of the CLA defines 'harm' to include economic loss. Section 3A(1) of the CLA relevantly provides that pt 1A or some provisions of pt 1A do not apply to specified classes of damages.
The plaintiff's alleged loss is 'harm' for the purposes of the CLA. The classes of damages specified in s 3A(1) do not encompass the plaintiff's claim for damages resulting from the alleged negligence of the defendant. The negligent conduct is alleged to have occurred after 1 December 2003. It follows that pt 1A of the CLA applies to the plaintiff's negligence claim.

I note that even if the evidence before me did reveal that the defendant had identified proposed grounds for seeking leave to appeal against the arbitrator's decision I would not, in determining if the plaintiff's loss of the right to apply for leave to appeal was of any value, have decided that I was limited to considering the prospects of only those grounds of appeal. To adopt this approach would, in my view, be inconsistent with the need for me to determine the value of the loss of the opportunity to appeal as at the date of the loss of the right.

Loss of opportunity – some value?

In my opinion it could not sensibly be contended by the plaintiff on any application for leave to appeal against the arbitrator's decision that he was not at the time of suffering the injury in an interval between separate periods of work for Moulden. Therefore it seems to me that the test for determining if the injury did arise out of or in the course of the plaintiff's employment with Moulden within the meaning of the definition of 'disability' contained in s 5 of the WCR Act was, as was made clear by the compensation magistrate in her reasons for decision in allowing the appeal from the review officer's decision, whether the injury was suffered while the plaintiff was doing something which he was reasonably required, expected or authorised to do in order to carry out his actual duties: Henderson v Commissioner of Railways, 294; Humphrey Earl v Speechley, 133; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473; Mercantile Mutual Insurance (Australia) Ltd v Neilson [2004] WASCA 60; (2004) 28 WAR 206 [68], [71].
The determination of the question whether the plaintiff suffered the injury while he was doing something which he was reasonably required, expected or authorised to do in order to carry out his actual duties required the arbitrator to apply a legal definition or test to the facts as he found them. Accordingly, the question for determination involved a question of law.
The findings of the arbitrator were that the plaintiff was regularly required to sharpen his shearing tools and that if the plaintiff did not regularly sharpen his tools he would be unable to work as a shearer.
In light of the arbitrator's findings of fact it is my opinion that if the plaintiff had made an application for leave to appeal against the decision of the arbitrator on the ground that the arbitrator made an error involving a question of law in deciding that the plaintiff was not, when he suffered the injury, doing something that he was reasonably required or expected by Moulden to do, the plaintiff would have had reasonable prospects of obtaining leave to appeal and being ultimately successful on the appeal. The fact that Moulden had not expressly directed the plaintiff to sharpen his tools on the day that he suffered the injury, the fact that the plaintiff needed to sharpen his tools because he had used them in working for Ms Day, and the fact that the interval between when the plaintiff had last worked for Moulden and when he was next due to work for Moulden was significant, were all matters which would no doubt be relevant to the determination of whether the arbitrator had misapplied the test. However, I do not consider that the existence of these facts is sufficient to require the conclusion that the plaintiff would inevitably have been unsuccessful if the application for leave to appeal had been lodged within time. The case is not one, in my view, in which it can be said that the plaintiff had no arguable ground of appeal against the arbitrator's decision.
I think that the new evidence, if accepted, may have marginally increased the prospects of the plaintiff successfully appealing on the ground that I have identified. The evidence revealed that the plaintiff attended at Ms Day's farm to shear the lambs at the direction, or at least request of, the wool classer employed by Moulden. In my view this fact, given that the plaintiff was sharpening the tools he had used at Ms Day's farm when he suffered the injury, marginally increased the likelihood of the plaintiff persuading the Commissioner to the conclusion that he was, at the time of suffering the injury, doing something that he was reasonably required or expected by Moulden to do. I note in this regard that in arriving at his decision the arbitrator, who did not have the benefit of the new evidence, appeared to place considerable emphasis on his finding that the plaintiff 'elected' to work for Ms Day: Eades v Moulden [18].
Apart from the possible ground that I have identified I do not think that the decision of the arbitrator gave rise to any other reasonably arguable grounds of appeal involving a question of law.

Summary

For the reasons stated I am satisfied on the balance of probabilities that the plaintiff's loss of the opportunity to make an application for leave to appeal against the arbitrator's decision was the loss of a right of some value. It was harm within the meaning of s 5C of the CLA.

The plaintiff's action for breach of contract - liability

The plaintiff's case

The plaintiff alleges that there was at all material times a retainer in existence between him and the defendant, that it was an implied term of the retainer that the plaintiff would act with due care, skill and diligence, and that the defendant breached the implied term. The alleged breaches of the contract are the breaches which the plaintiff alleges constituted a breach of the duty of care that the defendant owed to him.

Concurrent liability – general principles

As I have indicated earlier in this judgment, it is now settled that concurrent liabilities in both contract and tort may arise in cases of professional negligence. Prima facie, a plaintiff may sue a solicitor in either contract or tort or both: Astley v Austrust [44]. Where concurrent liability in contract and tort exists, the plaintiff has the right to assert the cause of action that appears to be the most advantageous to him in respect of any particular legal consequence: [44].
Furthermore, where a professional provides a service to a client an implied term of the contract under which the service is supplied, in the absence of an express term to the contrary, is that the professional will exercise reasonable care and skill in providing the service: Astley v Austrust [45] [48]; Carmody v Priestley [93]. The standard of care imported by the implied term is the same as the standard of care imposed by the law of tort: Heydon v NRMA [147].
Unlike the position which exists in an action for negligence, it is not necessary to prove loss or damage in order to make out an action for breach of contract. The action for breach of contract lies on the occurrence of the breach, although if the plaintiff fails to prove loss and damage he or she will be entitled to nominal damages only: Hawkins v Clayton, 583; Astley v Austrust [47] [48].

Findings as to breach

I have already stated my findings as to the retainer or retainers that were in existence between the parties at the material time.
It is not in dispute between the parties that any retainer between them contained an implied term that the defendant would exercise reasonable care, skill and diligence in performing the work that it was retained to do. Nor is it in dispute between the parties that if the defendant breached the duty of care that it owed to the plaintiff the breach or breaches of duty also amounted to a breach of the implied term to exercise reasonable care, skill and diligence. In these circumstances I find, for the reasons that I have stated in concluding that the defendant breached the duty of care that it owed to the plaintiff, that the defendant breached the implied term of the relevant retainer that was in existence between the plaintiff and the defendant at the material time by failing to:
1.expressly inform the plaintiff of the appeal period or the date on which the appeal period expired; and
2.promptly and diligently pursue the plaintiff's application to the ALS for a grant of aid to meet the plaintiff's costs of making an application for leave to appeal against the arbitrator's decision.

Findings as to causation

During the trial the parties did not address in any substantive way the issue of causation in the context of the plaintiff's breach of contract claim. The case proceeded on the basis that if the plaintiff proved the causal element of his negligence action he would also prove causation in his breach of contract claim. The defendant accepted that div 3 of pt 1A of the CLA, which is comprised of s 5C and s 5D, applied to its conduct generally.
In my view s 5C and s 5D of the CLA do apply to the plaintiff's claim in contract. I consider that this is made clear by s 5A(2) of the CLA.
For the reasons that I have stated in dealing with the plaintiff's negligence claim I find that the defendant's breach of contract constituted by its failure to expressly inform the plaintiff of the appeal period or the date on which the appeal period expired did not cause the plaintiff to suffer any injury.
I also find, again for the reasons that I have stated in dealing with the plaintiff's negligence claim, that the defendant's breach of contract constituted by failing to promptly and diligently pursue the plaintiff's application to the ALS for a grant of aid to meet the plaintiff's costs of making an application for leave to appeal against the arbitrator's decision was not a necessary condition of the occurrence of the harm suffered by the plaintiff: CLA s 5C(1)(a). Accordingly, so far as this breach is concerned the question which I must once again determine is whether, in accordance with established principles and despite my conclusion that the defendant's breach of contract was not a necessary condition of the plaintiff suffering the alleged harm, this is an appropriate case to conclude that factual causation is established: CLA s 5C(2).
Given that the implied term imposes a standard of care which is the same as the standard of care imposed by the law of tort, and that the relevant breach of the implied term is the same as the breach of duty of care, I consider that the applicable 'established principles' are the same as the established principles that I have referred to in dealing with the plaintiff's negligence claim: The State of South Australia v Ellis [307]. Neither party advanced an argument to the contrary. It follows, for the reasons that I have stated in dealing with the plaintiff's action in negligence, that I am satisfied that the defendant's breach of contract constituted by its failure to promptly and diligently pursue the plaintiff's application to the ALS for a grant of aid to meet the plaintiff's costs of making an application for leave to appeal against the arbitrator's decision caused the plaintiff to suffer compensable injury in the form of the loss of the opportunity to make the application for leave to appeal.

Assessment of Damages

Although it is clear that there will in many cases be a difference between the measure of damages for negligence and the measure of damages for breach of contract, this is not such a case. The parties agree that the measure of damages in respect of the loss of opportunity to make the application for leave to appeal caused by any breach of duty of care and breach of contract by the defendant will, in the circumstances of the present case, be the same.
The parties have agreed that if the plaintiff had been completely successful on his workers' compensation application the value of the claim to him (that is, the amount after tax that he would have received) is $150,000. It therefore remains for me to assess the damages payable to the plaintiff as a percentage of the agreed sum of $150,000.
I have, in dealing with the issue whether the plaintiff's loss of the right to apply for leave to appeal was a loss of something of value, set out the relevant principles to be applied in determining what the value of the loss was. As I have previously indicated, the defendant's assessment of the plaintiff succeeding on appeal was less than 50% and most probably between 30% and 40%.
It is not my role to attempt to determine if the appeal would have succeeded or not. I am not to conduct a trial within a trial. I must necessarily adopt a broad brush type approach.
Given the history of the plaintiff's matter I do not consider it at all likely that if the plaintiff had made the application for leave to appeal Moulden would have at some point made a settlement offer. In my view if the plaintiff was going to obtain any sum of money as a result of his workers' compensation proceedings he needed to succeed on his appeal.
Doing the best I can, and bearing in mind the matters specified in Nikolaou v Papasavas, I am of the opinion on the evidence before me that the plaintiff's chance (that is, reasonable prospects) of succeeding on the appeal against the arbitrator's decision on the ground that I have identified would have been around 50%. I therefore award the plaintiff damages in the amount of $75,000.
Given that the plaintiff has been compensated for the economic loss that he has suffered by reason of losing the right to make an application for leave to appeal, it is not appropriate to award him nominal damages in respect of the breach of contract constituted by the defendant's failure to expressly inform him of the appeal period or the date on which the appeal period expired.
I will hear the parties in relation to the calculation of interest and in particular as to the date from which interest should be calculated.