Fortune v Bevan

[2000] QSC 460

THE SUPREME COURT

OF QUEENSLAND

BRISBANE  No. 6937 OF 2000

BETWEEN:

HERBERT GEORGE FORTUNE

Plaintiff

AND:

PETER CURTISS BEVAN (TRADING AS BEVAN AND GRIFFIN)

Defendant

REASONS FOR JUDGMENT

B.W. Ambrose J.

Delivered the eighth            day of December     2000

CATCHWORDS:     LEGAL PRACTIONERS – NEGLIGENCE – Plaintiff attended defendant practioner for a “$20/20 minute consultation” – whether defendant failed to advise of limitation period – scope of retainer – whether defendant was negligent in failing to confirm oral advice in writing.

Trust Co. of Australia the Perpetual Trustees WA Ltd

& Others (1997) 42 NSWLR 237

Robins v Meadows & Anor  [1991] 2 EGLR 137

R.P. Howard Ltd & Richard Alan Witchell v Woodman Matthews & Co (a firm) [1983] BCLC 117

Vuilic v Blinksky & Others [1983] 2 NSWLR 472

Limitations of Action Act 1974 (Qld)

Counsel:Mr K.D. Dorney QC for the plaintiff

Mr K.N. Wilson for the defendant

Solicitors:Conroy & Conroy Solicitors for the plaintiff

McInnes Wilson Laywers for the defendant

Hearing Dates:           4 December 2000

[1]      At all material times the plaintiff was employed at Mt Isa Mines as an electrician.

[2]      At all material times the defendant practiced as a solicitor from professional offices in Townsville on the corner of Townsville mall and Stokes street.

[3]      On 26 January 1992 the plaintiff suffered an injury to his left heel when he fell from a ladder which he had climbed to perform electrical work on mining equipment underground.

[4]      On 26 November 1992 the plaintiff attended upon the defendant at his professional offices where he discussed with him the injury he had suffered ten months earlier.  At the time of that discussion the plaintiff had returned to work believing that he had substantially recovered from the injury to his heel and that his condition would continue to improve.

[5]      The period of limitation within which the plaintiff could sue Mt Isa Mines expired on 26 January 1995.  By that time the plaintiff realised that he had been left with some disability to his left heel which had not improved as he had expected.

[6]      The plaintiff consulted another firm of solicitors in Mt Isa and on 22 November 1995 a writ issued out of the Supreme Court in Mt Isa.  The three year limitation period of course had expired by that time.  The limitation point was taken by Mt Isa Mines and an application by the plaintiff seeking an extension of the limitation period was unsuccessful.

[7]      On 9 November 1998 the plaintiff issued a writ of summons against the defendant in this action claiming damages in contract and tort in effect for professional negligence.

[8]      The parties have agreed that should the plaintiff succeed in this action his damages should be assessed at $100,000.00 inclusive of interest but exclusive of any apportionment on account of his contributory negligence.

[9]      The only factual issue canvassed upon the trial was the content of the advice which the defendant gave to the plaintiff in the course of a discussion he had with him for about 15 minutes on 26 November 1992.

[10]      The conflict between the evidence given by the plaintiff and that given by the defendant was principally as to whether the defendant advised the plaintiff of the effect of the statute of limitations and that any action which upon further investigation he decided to take against Mt Isa Mines would have to be instituted by 26 January 1995.

[11]      The plaintiff denies that he was ever given this advice.  The defendant says he did give the plaintiff this advice.

[12]      For the plaintiff however, it is contended that even if he fails to prove that he was not given this advice orally nevertheless in the circumstances the defendant was guilty of negligence in failing to record any oral advice in writing and give it to the plaintiff before he left the defendant’s office or post it to him after he left.

[13]      The first question then to determine is whether the plaintiff has shown that more probably than not the defendant failed to advise him that any action he wished to take against the Mt Isa Mines would have to be commenced prior to 26 January 1995.

[14]      On this issue the plaintiff in my view has a very significant hurdle to overcome.  The defendant disclosed a statement / diagram purporting to have been prepared at the time of his discussion with the plaintiff.  This document displays two diagrams demonstrating the position of the plaintiff standing on a ladder working on a machine just prior to his falling from that ladder and indicating the direction in which he and/or the ladder fell.

[15]      This statement / diagram has recorded on it in the defendant’s handwriting three items of advice in these terms –

“suggested he contact WHS to find out whether a crane of such height must have a safety platform?”
“Get back to us or some solicitor”
“NB limitation period three years i.e. L 25/1/95.”

[16]      It was not really in dispute that had the defendant failed in the circumstances to advise the plaintiff  that there was a three year limitation period he would have been negligent.  For the plaintiff it was contended that I should prefer his evidence to that of the defendant and find that the defendant did not make any record in his presence of the matters of advice recorded in the statement which was tendered as Exhibit 5.  I have no doubt that the defendant’s writing on the statement was made with the one pen at approximately the same time.  It was obviously made for the purpose of recording the advice which he gave to the plaintiff.  It was contended however, that I ought to find upon the plaintiff’s evidence that the items of advice recorded on the record made by the defendant were not in fact recorded until after the plaintiff had departed from the defendant’s office.  It was the plaintiff’s case that the notes disclosed by the defendant and tendered by the plaintiff were not made at the time the discussion took place between the plaintiff and the defendant.  The plaintiff conceded that the defendant may have written out the notes after his discussion with the plaintiff; it was contended that perhaps the note was made immediately upon the plaintiff leaving the defendant’s office – perhaps only a minute later.  The point was taken that a possible explanation for the defendant doing such a thing was that it was only then that he realised he had not told the plaintiff about the limitation point as he should have.

[17]      I had the opportunity of evaluating the reliability of both plaintiff and defendant.  It is clear in my view that the plaintiff had a very imperfect recollection of the time and circumstances generally in which the discussions between him and the defendant took place.  The discussion lasted for no more than fifteen minutes and  the first occasion when he had any reason to attempt to recall it was when he made contact with a firm of solicitors in Mt Isa well after the expiration of the period of limitation on 26 January 1995.

[18]      I think it more probable than not that the defendant did record all the matters on Exhibit 5 in the presence of the plaintiff when he provided information concerning his injury and when the defendant gave him the advice recorded on that document.  The onus of course is on the plaintiff to establish negligence on the part of the defendant in failing to advise him that the operation of the Limitations of Action Act 1974 would prevent him taking action after 26 January 1995 and I am not persuaded on his evidence that the defendant did fail to advise him of this fact – as recorded in the defendant’s statement which the plaintiff called for and tendered as part of his case.

[19]      There was a detailed indeed repetitious analysis of the form of the notes taken by the defendant recording the matters discussed etc between him and the plaintiff.  There was no real dispute that the balance of the matters were recorded accurately  and must have been recorded as a consequence of what the plaintiff told the defendant.  Indeed the plaintiff agreed that the record of advice given concerning making contact with the Workplace Health and Safety Department was accurate.  The only items of advice which the plaintiff denied receiving were those relating to getting back to the defendant or some other solicitor after he had obtained information from the Workplace Health and Safety people and that the limitation period would expire on 25 January 1995.

[20]      I find it most improbable that the defendant would have recorded these matters after the plaintiff had paid him for the 15 minute consultation and left the office.

[21]      I should have thought that one of the most important matters in the mind of any experienced solicitor in the defendant’s position was the fact that any action that the plaintiff might seek to take for injury suffered at his work place would have to be commenced within three years of the time of that injury.  The defendant said that when he advised people on similar matters it was his invariable practice to impress upon them as the last piece of advice given that action would have to be commenced should they decide to do so within the limitation period.  I am persuaded on the balance of probabilities that indeed the defendant did give all the advice recorded on Exhibit 5 to the plaintiff prior to the plaintiff leaving the office and indeed that he recorded the matters shown on Exhibit 5 contemporaneously with the discussions, advice etc taking place.

[22]      The second principal head of negligence upon which the plaintiff relies assumes that contrary to his evidence the defendant did advise him on the limitation point.  It is contended for the plaintiff that having regard to his apparent inexperience with legal matters, the defendant was negligent in failing to confirm the oral advice he gave to the plaintiff in writing.  It was said that he ought to have written a letter at some time reminding the plaintiff of the necessity for commencing any action he decided to commence within the limitation period.  It was contended that even if the plaintiff had decided not to bother pursuing any legal action, the defendant would at least have discharged the duty upon him to give him written advice on the limitation point had he sent the plaintiff such a letter.  Indeed it was suggested that at the very least the defendant should have made a photostat copy of the notes that he had taken contemporaneously with his discussion with the plaintiff and given him that photostat so that he might then be able more readily to remember the advice given to him orally. 

[23]      I am satisfied that the short discussion with and advice given to the plaintiff by the defendant was provided pursuant to the then current Queensland Law Society scheme described as a “20/20 consultation” which meant that some person who sought some degree of preliminary expert advice as to whether they had a legal right or problem might for a fee of $20.00 discuss that matter with a solicitor for 20 minutes, who would then give what in essence would be a very preliminary advice.

[24]      I am satisfied that it was the understanding of both plaintiff and defendant that the  service being provided by the defendant to the plaintiff for the payment of a $20.00 fee was the “20/20 consultation”.  I am satisfied that the defendant certainly  proceeded on the basis that that was the “arrangement” under which he gave the very preliminary advice to the plaintiff, and I  accept the evidence of the defendant that the plaintiff as he was leaving the office proffered $20.00 in payment for the advice received without asking the defendant  what the charge was and without the defendant indeed informing the plaintiff of the amount of the charge.

[25]      Although it was contended (without much vigour) that the defendant perhaps could have advised the plaintiff to then issue a writ, it  seems to me that there was not nearly enough material at that stage provided by the plaintiff to the defendant to warrant or even justify the defendant suggesting such a thing to the plaintiff.  In effect the defendant was providing to the plaintiff what was almost a “pro bono” service, the fee for which would hardly cover overheads.  The advice I am satisfied was provided under the scheme then encouraged by Queensland Law Society with a view to encouraging people thinking they may have a “legal problem” to discuss it briefly with solicitors rather than uninformed and untrained members of their family and/or friends.

[26]      Having regard to the brevity of the matters discussed with the plaintiff and the advice given that he obtain further information from the Workplace Health and Safety office just around the corner from the defendant’s office, I take the view that upon payment of the $20.00 for the brief consultation that had taken place with the defendant, the plaintiff did not retain the defendant to do anything for him in connection with the injury he suffered in the course of his employment.  In my view there was no duty or obligation upon the defendant to give any written advice to the plaintiff – or even to give him a photostat copy of the statement and diagram that had been prepared by the defendant (and to some extent the plaintiff) in the course of that brief discussion.

[27]      It emerged clearly from the evidence of the plaintiff and his wife that it was really the idea of the plaintiff’s wife that he visit the defendant in connection with his injury suffered at Mt Isa Mines and that really the plaintiff was not very keen at all to take action against his employer.

[28]      In my view it is most unlikely that the defendant would  have advised the plaintiff that he did not think the plaintiff had much prospect of success in any action he commenced against Mt Isa Mines.  The only information the defendant had obtained from the plaintiff was that the plaintiff stood near the top of a ladder six foot tall and over balanced and that there “were available” ladders between 10 and 12 feet tall.  The plaintiff said that this was a piece of information which lead the defendant to express the view that the plaintiff did not have good prospects of success in any action he took against his employer.  The defendant on the other hand denied expressing any view one way or the other – simply on the basis that he did not have enough information to express any view.  Had the plaintiff returned to him with the information he suggested might be available from Workplace Health and Safety office relating to safety platforms, ladder heights etc and had he then been retained to pursue the interests of the plaintiff undoubtedly he would have obtained copies of any available workers’ compensation claims, reports, forms, accident reports, hospital reports etc.  Although upon this trial the plaintiff said that the ladders between 10 and 12 feet in height were on a different level in the mine and that it might have taken a couple of hours to bring them down to the site of his injury, there was no suggestion to that effect made to the defendant in November 1992.

[29]      To the extent that the plaintiff formed the view that the defendant thought that he did not have good prospects of success in any action he might take against Mt Isa Mines, I think the most likely explanation for this was the defendant’s reaction perceived by the plaintiff when advised that there were other ladders 10 or 12 feet tall “available” to the plaintiff when he used the 6 foot tall ladder from which he fell.

[30]      In my view it is impossible to convert the “$20/20 minute consultation” into a sort of general retainer to act for the plaintiff in the pursuit of any legal remedy which he may have had against Mt Isa Mines with respect to the injury he suffered on 26 January 1992.  On the assumption that there was any sort of “retainer” which resulted from the “$20/20 minute consultation” in my view the retainer terminated when the plaintiff left the defendant’s office paying the $20.00 for the “consultation” he had just finished with the defendant.  In Trust Co of Australia the Perpetual Trustees WA Ltd & Others (1997) 42 NSWLR 237 McLelland CJ In Equity at 247 observed –

“the duty of care owed by a solicitor to his client is to exercise reasonable skill and care.  What is required for the performance of this duty in a particular case depends on the scope of the solicitors retainer, the scope of any additional responsibility assumed by the solicitor and relied on by the client, the nature of the task entrusted to or undertaken by the solicitor, and the circumstances of the case”

[31]      Although reference was made to Robins v Meadows and Anor [1991] 2 EGLR 137 at 138 (col 2 K-L) where it was observed –

“in this context, reference may be made to subpara 1 of the para headed ‘Communications with Clients’ (in appendix C) dealing with professional standards and issued by the Law Society where it is stated inter alia that:
A solicitor should consider whether it is appropriate to confirm in writing the advice given and the instructions received.
There is no such confirmation from the defendants.  It was certainly appropriate, in my judgment, to make such confirmation in writing that what was required was a notice under the Landlord and Tenant Act 1954, in which dates would be crucial and the documents which were before the solicitors did not correlate.”

in my view the retainer in that case was obviously of a quite different kind from any “retainer” constituted by the “$20/20 minute consultation” provided by the defendant to the plaintiff.  I make a similar observation with respect to RP Howard Ltd & Richard Alan Witchell v Woodman Mathews & Co (a firm) [1983] BCLC 117 and with respect to Vuilic v Blinksky & Others [1983] 2 NSWLR 472.

[32]      With reference to the observations of Miles J. in Vuilic at 482 it suffices to say that on the facts of the present case as a consequence of what the defendant had been informed by the plaintiff it would have been quite impossible for the defendant to conclude that the plaintiff did have a cause of action. There was not nearly enough information available even to attempt to advise on the existence of a cause of action much less upon the prospects of success of any cause of action that might exist. That was the very reason why the defendant advised the plaintiff to go off and make further enquiries and come back and see the defendant or some other solicitor should further enquiries indicate a possible breach of duty on the part of Mt Isa Mines.

[33]      In my view it is clear on the evidence that the plaintiff did not rely upon the defendant taking any further steps in connection with the matters discussed on the consultation subsequent to paying the $20.00 consultation fee and leaving the defendant’s office.

[34]      In my view the plaintiff has failed to establish any breach of duty which the defendant owed to him as a consequence of matters he disclosed in the consultation with him on 26 November 1992.

[35]       I dismiss the plaintiff’s claim.

[36]      I give judgment for the defendant.

[37]      I order that the plaintiff pay to the defendant his standard costs of and incidental to the action to be assessed.