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

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Eades v Formbys Lawyers

Details

AGLC: Eades v Formbys Lawyers [2011] WADC 125
Case: [2011] WADC 125
Decision Date: 15 AUGUST 2011

CaseChat Overview and Summary

In the matter of Eades v Formbys Lawyers, the plaintiff sought to recover damages for the defendant solicitors' failure to lodge an appeal against a workers' compensation decision within the requisite time period. The case was heard in the Supreme Court of New South Wales. The plaintiff's workers' compensation claim was dismissed by the Workers' Compensation Commission, and the solicitors were engaged to lodge an appeal. However, they failed to do so within the specified time limit, resulting in the plaintiff losing the opportunity to appeal.

The legal issues that the court was required to decide included whether the solicitors owed a duty of care to the plaintiff in the context of their engagement, whether there had been a breach of that duty, and if so, whether the plaintiff's losses were a foreseeable consequence of the breach. Additionally, the court had to consider whether the solicitors had breached an implied term to act with reasonable care and skill in their engagement with the plaintiff.

In determining these issues, the court considered the nature of the relationship between the parties, the specific terms of their engagement, and the extent to which the solicitors' conduct fell short of the standard of care that a reasonable solicitor would have exercised in similar circumstances. The court found that the solicitors had indeed breached their duty of care, and that this breach had caused the plaintiff to lose the opportunity to appeal the workers' compensation decision. The court awarded the plaintiff damages in an amount reflecting the value of that lost opportunity. The court also noted that the solicitors' breach of the implied term to act with reasonable care and skill had exacerbated the plaintiff's loss.

Orders