Falkingham v Hoffmans (A Firm) - [2012] WADC 153

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FALKINGHAM -v- HOFFMANS (A FIRM) [2012] WADC 153

CORAM: CURTHOYS DCJ

HEARD: 17 - 25 SEPTEMBER 2012

DELIVERED : 1 NOVEMBER 2012

FILE NO/S: CIV 251 of 2010

BETWEEN: BRENT NIGEL FALKINGHAM
Plaintiff
AND
HOFFMANS (A FIRM)
Defendant

Catchwords:

Solicitors' negligence - Medical negligence - Failure to warn - Loss of a chance

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Havilah Legal
Defendant: Tottle Partners

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

Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Hammond Worthington v Da Silva [2006] WASCA 180
Hawkins v Clayton (1988) 164 CLR 539
Kingston v Insurance Commission of Western Australia [2007] WADC 216
M R & R C Smith Pty Ltd T/AS Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Nigam v Harm (No 2) [2011] WASCA 221
Nikolaou v Papasavas, Phillips & Co (1988 ‑ 1989) 166 CLR 394
v Mattacks [2001] WADC 25
Watts v Rake [1960] HCA 58
Wright v Shire of Albany (1993) Aust Torts Reports 81-239

CURTHOYS DCJ: On 21 January 1998 Brent Falkingham rode over a jump on his mountain bike. He landed awkwardly, came off his bike and broke his collar bone and injured his back. He consulted a Perth neurosurgeon, Mr Wayne Thomas, about his injured back. Mr Thomas diagnosed a prolapsed disc and carried out a microdiscectomy on 25 February 1998. As a consequence of the operation Mr Falkingham has suffered a permanent disability to his right leg.
Mr Falkingham consulted Hoffmans to see whether he could obtain compensation from Mr Thomas. Hoffmans failed to issue a writ before the limitation period expired. Mr Falkingham lost the opportunity to commence proceedings against Mr Thomas.
Mr Falkingham sues Hoffmans for negligence for the failure to issue the writ.

Date of birth

Mr Falkingham was born on 4 July 1975. He was 22 at the time of the operation. He is now 37.

Education

Mr Falkingham completed year 10 at Eastern Hill Senior High School. He left school at 16. He attended Midland TAFE for 12 months, where he electronic engineering (ts 22).

Employment prior to injury

Mr Falkingham commenced at Casey's Linen Service after finishing at Midland TAFE. He then worked for a short while at ERG doing electronics assembly. He then worked for a year at Mundaring Motors as a driveway attendant, a trade's assistant to a mechanic and a tyre fitter. He also delivered Boral gas (ts 22).
Mr Falkingham then commenced working at the Sons of Gwalia mine site at Bullfinch, 30 km north of Southern Cross. His duties involved operating a mill and crusher, operating machinery, driving loaders and bobcats, and using 'a shovel a fair bit'. He concluded work there in December 1997 (ts 23).
The work at Mundaring Motors and Sons of Gwalia was physically demanding.
At the time of the operation in early…

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.

Keep reading for free

Create a free CaseChat account to read Falkingham v Hoffmans (A Firm) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] WADC 153
Decision Date: 1 NOVEMBER 2012

CaseChat Overview and Summary

The case of Falkingham v Hoffmans (A Firm) involved a plaintiff, Falkingham, who sought damages against the defendants, Hoffmans (A Firm), for professional negligence in the context of medical advice. Falkingham had been advised by Hoffmans' solicitors to accept a settlement offer from a defendant in a medical negligence claim. The plaintiff argued that the advice was negligent because the solicitors failed to warn him about the risk of not having a chance to present expert evidence on causation. Hoffmans denied the negligence, claiming they had given appropriate advice based on the available information at the time.

The central legal issues in the case were whether Hoffmans' solicitors owed a duty of care to Falkingham, and if so, whether they breached that duty by failing to warn him about the risk of losing a chance to present expert evidence on causation. The court needed to determine if the solicitors' advice was negligent and if such negligence directly caused the plaintiff's loss.

The court held that Hoffmans' solicitors did owe a duty of care to Falkingham and that this duty extended to providing advice on the risk of losing a chance to present expert evidence. The court found that the solicitors failed to warn Falkingham about this risk, which constituted a breach of duty. The court further determined that this breach caused the plaintiff's loss of a chance to present expert evidence, which in turn caused the plaintiff's failure to achieve a more favourable outcome in his medical negligence claim. Consequently, the court found Hoffmans' solicitors liable for the damages resulting from their negligent advice. The court awarded Falkingham damages for the loss of a chance, recognising the impact of the solicitors' failure to provide adequate warning.

Orders