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Falkingham v Hoffmans (a firm)

Falkingham v Hoffmans (a firm)

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FALKINGHAM -v- HOFFMANS (A FIRM) [2014] WASCA 140

CORAM: PULLIN JA
BUSS JA
MURPHY JA

HEARD: 15 NOVEMBER 2013 & 24 FEBRUARY 2014

DELIVERED : 1 AUGUST 2014

FILE NO/S: CACV 135 of 2012

BETWEEN: BRENT NIGEL FALKINGHAM
Appellant
AND
HOFFMANS (A FIRM)
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :CURTHOYS DCJ
Citation  :FALKINGHAM -v- HOFFMANS (A FIRM) [2012] WADC 153
File No  :CIV 251 of 2010

Catchwords:

Solicitors' negligence - Solicitors failed to pursue the appellant's common law action against a medical practitioner by commencing proceedings - Action statute barred - Loss of chance - Causation - Value of appellant's lost opportunity - Whether trial judge erred in refusing to find or infer that the appellant would have pursued the lost cause of action against the medical practitioner - Whether trial judge's provisional assessment of the value of the appellant's lost opportunity was erroneous - Whether trial judge's provisional award of damages for loss of earning capacity was erroneous - Adequacy of trial judge's reasons

Legislation:

Civil Liability Act 2002 (WA), s 3, s 5A(1), s 5A(3), s 5C(1), s 5C(3)
Civil Liability Amendment Act 2003 (WA)
District Court of Western Australia Act 1969 (WA), s 79(1)(a)
Supreme Court Act 1935 (WA), s 32

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr B L Nugawela
Respondent: Mr D R Clyne (15 November 2013) & Mr G P Bourhill (24 February 2014)

Solicitors:

Appellant: Havilah Legal
Respondent: Tottle Partners

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

Amer v Consolidated Meat Group Pty Ltd [2002] QSC 345
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Bennett v Carruthers [2010] WASCA 131
Bowen v Tutte (1990) Aust Torts Rep 81-043
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Cohen v Ninkovic [2000] WASCA 169
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dixon v Clement Jones Solicitors [2004] EWCA Civ 1005
Dolman v Penrose (1983) 34 SASR 481
Falkingham v Hoffmans (a firm) [2012] WADC 153
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336
Feletti v Kontoulas [2000] NSWCA 59
Firth v Sutton [2010] NSWCA 90
Golosky v Golosky (unreported, NSW Court of Appeal, 5 October 1993)
Griffin v Kingsmill [2001] Lloyd's Rep PN 716
Hammond Worthington v Da Silva [2006] WASCA 180
Harrison v Bloom Camillin (No 2) [2000] Lloyd's Rep PN 89
Heenan v Di Sisto [2008] NSWCA 25; [2008] Aust Torts Reports 81-941
Hendriks v McGeoch [2008] NSWCA 53; [2008] Aust Torts Reports 81-942
Horne v Cranney [2011] QCA 149
House v The King [1936] HCA 40; (1936) 55 CLR 499
Husher v Husher [1999] HCA 47

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.

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Details

Case: [2014] WASCA 140
Decision Date: 1 AUGUST 2014

CaseChat Overview and Summary

The case involved Falkingham, the appellant, and Hoffmans, a firm of solicitors, before the court. Falkingham alleged negligence on the part of Hoffmans in failing to pursue a common law action against a medical practitioner, which was subsequently found to be statute-barred. The crux of the dispute centred around the loss of a chance to pursue this action and the value of the lost opportunity. Additionally, the case questioned whether the trial judge erred in not finding or inferring that Falkingham would have pursued the lost cause of action against the medical practitioner, and if the judge's provisional assessment of the value of the lost opportunity and the award of damages for loss of earning capacity was erroneous. The adequacy of the trial judge's reasons was also a point of contention.

The primary legal issues the court had to address were whether the trial judge erred in not inferring that Falkingham would have pursued the lost cause of action against the medical practitioner, the correctness of the trial judge's provisional assessment of the value of the lost opportunity, and the accuracy of the provisional award of damages for loss of earning capacity. Furthermore, the court needed to determine whether the trial judge provided adequate reasons for his decisions.

In its reasoning, the court found that the trial judge did not err in concluding that Falkingham would not have pursued the lost cause of action against the medical practitioner. The court held that the judge's reasons were sufficient, and the assessment of the value of the lost opportunity and the award of damages for loss of earning capacity were not erroneous. The court emphasised that the trial judge's assessment was provisional and subject to review if new evidence was presented. The court concluded that the trial judge's reasons were adequate and the decisions were within the range of rational outcomes.

Orders