Fortune v Bevan

[2001] QCA 378

SUPREME COURT OF QUEENSLAND

CITATION:

Fortune v Bevan [2001] QCA 378

PARTIES:

HERBERT GEORGE FORTUNE
(plaintiff/appellant)
v
PETER CURTISS BEVAN (trading as BEVAN AND GRIFFIN)
(defendant/respondent)

FILE NO/S:

Appeal No 157 of 2001
SC No 6937 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 September 2001

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2001

JUDGES:

Davies JA, Williams JA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – SOLICITORS AND CLIENT – DUTIES AND LIABILITIES TO CLIENT – DEALINGS WITH CLIENT – cause of action for personal injury against former employer statute barred by limitation period – whether solicitor liable for breach of contract and duty of care for failure to confirm limitation period after preliminary consultation – extent of solicitor’s obligations at preliminary stage – whether positive obligation to confirm in writing

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE – whether lower standard of care to be applied pursuant to Queensland Law Society $20/20 scheme – whether general retainer existed – whether scope and ambit of solicitor’s duty to client limited by nature of relationship

Workplace Health and Safety Act 1989

Johnson v Perez (1998) 63 ALJR 51, considered
Robins v Meadows [1991] 2 EGLR 137, distinguished
Trust Co. of Australia v. Perpetual Trustee WA Ltd & Ors (1997) 42 NSWLR 237, considered

Vulic v Blinksky & Ors [1983] 2 NSWLR 472, considered

COUNSEL:

J A Griffin QC for the appellant
K N Wilson for the respondent

SOLICITORS:

Conroy & Conroy (Mt Isa) for the appellant
McInnes Wilson for the respondent

1. DAVIES JA: I agree with the reasons for judgment of White J and with the order she proposes.

1. WILLIAMS JA: I have had the advantage of reading the reasons for judgment prepared by White J and I agree with them and with the order she proposes.

1. WHITE J: The appellant appeals against the decision of a judge of the Trial Division dismissing his action against his former solicitor for damages for breach of contract and duty arising out of a failure to advise him adequately or at all about the limitation period which applied to his potential action against his employer.

1. The appellant was employed as an electrician by Mount Isa Mines Limited at Mount Isa.  On 26 January 1992 he was carrying out his duties servicing a crane underground.  To do so he utilised a six foot ladder which would appear to have been of insufficient height to accomplish the task safely.  The ladder toppled over and the appellant sustained a fracture injury to his left heel.  He was away from work on workers’ compensation payments for some five months before he returned to work, believing that his injuries had resolved.  This proved not to be the case and after some pressure from his wife he attended at the professional offices of the respondent in Townsville when they were visiting that city on 26 November 1992.  The respondent had been recommended to the appellant by a close family member.

1. The only factual matters for resolution at trial were what passed between the appellant and respondent at the consultation.  The parties had agreed on all other issues including the liability of the employer and the quantum of damages in the sum of $100,000.  It would appear that the parties impliedly agreed that if the appellant’s account was accepted, the respondent was liable (causation) for the appellant not commencing proceedings in time against his employer.

1. The plaintiff, without objection, tendered a further amended statement of claim on the morning of the trial.  The factual matters alleged against the respondent were that he:

• advised the appellant in consultation that he did not have good prospects of success;

• did not advise the appellant of the three year limitation period in respect of any action he might wish to bring against his employer;

• did not advise that such an action needed to be commenced before 27 January 1995;

• did not advise the appellant that since his injuries involved bones of the foot, arthritis might set in and the appellant should therefore monitor his condition because of the three year limitation period;

• did not advise the appellant to seek further legal and/or medical advice if his injuries failed to resolve satisfactorily during the period of three years;

• did not give this advice at any other time after the consultation.

1. In the alternative, the appellant pleaded that if it was the case that the respondent did give the pleaded advices to the appellant then the respondent assumed a further responsibility to continue to act for him with respect to the matters of the consultation and breached that obligation by failing to communicate with the appellant after the consultation to remind him of the various pieces of advice which he had given and, further, failed to commence legal proceedings to ensure that the appellant’s action did not become statute barred.

1. The factual matters explored at trial were whether the respondent told the appellant that there was a limitation period of three years applicable to any action which he might wish to bring for damages for the injuries suffered by him on  26 January 1992; that such action should be brought before 25 January 1995; whether the respondent told the appellant that he had poor prospects of success; whether, if the respondent did so advise the appellant, he had an obligation to confirm that advice in writing; and finally whether there was a general retainer of the respondent to act in the appellant’s interests.

1. The appellant’s evidence was that the respondent told him that he did not have good prospects of success principally, it seems, because there were other higher ladders available (as the appellant had told the respondent) and that the respondent did not advise him about the three year limitation period, so that if he wanted to bring an action against his employer he should do so by 26 January 1995, nor that he should return to the respondent or see another solicitor if he wanted to commence an action before that date.  He agreed that the respondent advised him to make enquiries of Workplace Health and Safety about the requirements for working platforms around cranes.

1. The respondent had retained in a miscellaneous file a single piece of paper containing notes of the consultation made at the time and a sketch of the accident scene, parts of which the appellant admitted that he had drawn.  The appellant maintained that there was no writing on the piece of paper when he saw it and that he did not see the respondent doing any writing on it in the course of the consultation.

1. All the writing on the paper was said by the respondent to be in his own hand and placed on it at the time of the consultation.  At the top left-hand corner of the sheet of paper appears the appellant’s full name, address, employment and telephone number in Mount Isa.  Then follows the date of the accident, the name of the employer, the nature of the injury and that the appellant was off work for five months on workers’ compensation.  In the middle of the sheet of paper appears the sketch.  To the right of the sketch appear the words “other ladders available 10’ and 12’ ”.

1. The respondent’s evidence was that he tended to write in a circular fashion on a sheet of paper and explained the sequence so that the next piece of information appearing was immediately below the sketch in the right-hand corner: “suggested he contact WH & S [Workplace Health & Safety] to find out whether a crane of such height must have a safety platform?”.  Underneath is written “advice only $20” followed by the respondent’s initials and the date of the consultation.  To the left appears “NB limitation period 3 years, i.e. L 25/1/95” and immediately under is written “get back to us or some solicitor”.  The respondent said he wrote the limitation notation last.  At the bottom of the sheet is the commencement of a sketch which the appellant said he began before the respondent helped him with the sketch which appears in the middle of the sheet of paper.

1. The respondent said that as he gave these various pieces of advice or was given information he wrote them on the sheet of paper.  He said that the final piece of advice, which it was his customary practice to give, and which he gave on this occasion, was a reference to the limitation period because that was a matter of considerable importance.

1. When the appellant left after a consultation of about 15 minutes there was no further communication between them.  The appellant admitted that he made no further workplace health and safety enquiries and approached no other solicitor for the purposes of investigating the possibility of proceedings against his employer until after the expiration of the period of limitation.  As the agreed statement of facts reveals, a writ of summons was issued against Mount Isa Mines Limited on 22 November 1995.  In its defence Mount Isa Mines Limited pleaded the limitation statute.  The appellant sought an extension of the limitation  period which was refused on 15 July 1997 and his action struck out.  Subsequently the present action was commenced.

1. The learned trial judge concluded that the appellant had a very imperfect recollection of the time and circumstances generally in which the discussions between him and the respondent took place.  His Honour concluded that more probably than not the respondent did record all of the matters which he wrote on the piece of paper during the consultation.  Indeed the appellant agreed that he gave the respondent the personal details written on the piece of paper, the details about his injury, time of work and the availability of other ladders.  His Honour concluded that the respondent did give all the advice recorded on the piece of paper to the appellant prior to him leaving the office.  Although initially a ground of appeal that his Honour erred in reaching that conclusion it was abandoned on the hearing of the appeal. 

1. The appellant contended that the learned trial judge erred

• in not finding that the duty of care which was owed by the respondent to the appellant encompassed confirming in writing the advice which he had given him in consultation and in particular that the time within which the appellant could bring an action against his employer was three years expiring on 26 January 1995;

• in concluding that a lower standard was to be applied where advice was given pursuant to the “$20/20” scheme of the Queensland Law Society;

• in not finding that there was a general retainer in existence between the appellant and the respondent such as to require the respondent to follow up in a more positive way such as by issuing legal proceedings in time.

1. On appeal Mr Griffin QC who appeared for the appellant developed a submission raised by Ground 5 of the Grounds of Appeal that the approach to the consultation was negligent in as much as the respondent failed to elicit the information needed for appropriate advice and failed to give specific advice, had that occurred, that the appellant had good prospects of success.  He further developed the submission that it was negligent of the respondent to advise that the appellant should approach the workplace health and safety office for information about safety platforms around cranes because the Workplace Health and Safety Act 1989 did not apply to the employer’s mine site. These matters were not pleaded and not raised against the respondent at trial and may be put aside.

1. The respondent’s evidence was that he believed that he was seeing the appellant under a scheme initiated by the Queensland Law Society whereby a member of the public could obtain a 20 minute consultation from a solicitor for $20.  The respondent was of the opinion that the appellant understood this to be the case also because as they left his office to go into the reception area the appellant handed him $20 without asking about the cost and the respondent wrote a receipt for that amount.  At trial the appellant denied that he was aware of this particular scheme but his Honour noted that at the time of the consultation the understanding of the appellant was that the service was being provided pursuant to this scheme.

1. It is clear from his Honour’s approach and the authorities which he quoted and cited that he applied no less a standard of care to a solicitor acting under such an arrangement than would be imposed on a solicitor acting in what might be described as the usual way.  The reference to the scheme enabled him to determine the parameters of the retainer and assisted him in determining the ambit of the duty owed.  His Honour quoted the following passage from Trust Co. of Australia v Perpetual Trustees WA Ltd & Ors (1997) 42 NSWLR 237 from the judgment of McLelland CJ in Eq at 247

“… 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 solicitor’s 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”.

1. He accepted that the respondent offered no advice about prospects of success to the appellant being unable to do so on the limited information provided by the client   That was why the respondent sent the appellant away to make further enquires.    His Honour rightly concluded that this was in the nature of a preliminary consultation and there was no obligation at that stage to take a detailed statement from the appellant.

1. His Honour sought to explain the appellant’s perception that the respondent thought that he had poor prospects in the following way:

“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” R 9.6

1. Mr Griffin sought to transform this into either advice given by the respondent or that the respondent understood that the appellant did not think that he had good prospects of success and ought to have disabused him of this view.  The passage referred to does not sustain this submission.

1. His Honour concluded that the short consultation could not be converted into a general retainer to act for the appellant in the pursuit of any legal remedy which he might have had against his employer. His Honour concluded that the retainer ended when the appellant left the office after paying the $20.  The appellant himself said that when he left the respondent’s office, as far as he was concerned, that was the end of the matter and that he did not think that the solicitor was going to do anything more for him.

1. On the question whether a solicitor should confirm in writing advice given and the instructions received in consultation, his Honour was referred to Robins v Meadows [1991] 2 EGLR 137 (Eng). In that case the judge observed, after referring to professional standards issued by the Law Society (of England and Wales), that on the facts of the case before him it was appropriate to confirm in writing what was required to give effect to the instructions received. As the learned trial judge noted, the retainer in Robins v Meadows was very different to the present concerning, as it did, the sale of commercial property containing in part leased premises which the vendor, the client, wished to terminate prior to settlement and which involved notices under the relevant legislation.  That the appellant was a worker not experienced in legal matters did not require the respondent to confirm his advice in writing.  There was nothing, in his Honour’s view, to suggest that the appellant did not understand the advice given.

1. His Honour was referred to Vulic v Blinksky [1983] 2 NSWLR 472 (disapproved in Johnson v Perez (1988) 63 ALJR 51 but not on this point) by counsel below for the appellant on the question of whether there was an obligation on the respondent to issue proceedings to protect the appellant. In Vulic the conclusion that the solicitor was so obliged was dependent on findings that the client, an injured worker, instructed the solicitor to advise on and if necessary take such steps as were reasonable to obtain monetary recompense for his injuries. Of that case his Honour concluded at [32]

“… 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 Mount Isa Mines”

1. His Honour concluded that the appellant did not rely on the respondent taking any further steps in connection with the matter.

1. His Honour’s analysis of the ambit of the relationship between the appellant and the respondent was dictated by his acceptance of the respondent’s evidence which was open to him.

1. His Honour did not impermissibly define the standard of care to be applied to the respondent by the fee of $20.  He referred to it as a factor which strongly pointed to the limited nature of their relationship.  He had proper regard to the whole of that relationship and applied the ordinary standards of professional care by a solicitor to a client to those circumstances.  There was no expert evidence called on behalf of the appellant as to whether in the circumstances a prudent solicitor would have written a letter confirming his advice about the limitation period or indeed any other matter raised by the appellant and it cannot be demonstrated that his Honour erred in reaching the conclusion that he did.

1. I would dismiss the appeal.