Gillespie v Doyle

[2003] QCA 237

SUPREME COURT OF QUEENSLAND

CITATION:	Gillespie v Doyle [2003] QCA 237
PARTIES:	GERARD JOHN GILLESPIE (plaintiff/appellant) v TERENCE DOYLE (defendant/respondent)
FILE NO/S:	Appeal No 7990 of 2002 DC No 78 of 1994
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	6 June 2003
DELIVERED AT:	Brisbane
HEARING DATE:	23 May 2003
JUDGES:	McMurdo P, 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 with costs
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – SOLICITOR AND CLIENT – RETAINER – IN GENERAL – where respondent solicitor retained to make application for legal aid on appellant’s behalf with respect to a claim of negligence against appellant’s employer – whether retainer extended to commencing proceedings against employer before expiration of limitation period – whether there was any prospect of success in the underlying action against the employer at the relevant time
COUNSEL:	A D Stobie for the appellant G Gibson QC for the respondent
SOLICITORS:	McNamara & Associates for the appellant Sparke Helmore for the respondent

1. MCMURDO P:  I agree with Williams JA that, for the reasons he gives, the appeal should be dismissed with costs.

1. WILLIAMS JA:  The appellant brought a claim for damages for negligence against the respondent who was at the relevant time a solicitor and partner in a firm which practiced at Booval.  After a hearing in the District Court the action was dismissed.  The learned trial judge concluded that the respondent was retained only to make an application for legal aid, and the retainer did not extend to commencing proceedings against the appellant’s employer at the relevant time claiming damages for negligence.   It followed that the respondent was not negligent in failing to see that proceedings were commenced before the expiration of the limitation period.  The learned trial judge went further and concluded that the appellant had failed to demonstrate that there was any prospect of success in the underlying action against the employer at the relevant time.  Nevertheless damages were assessed by the judge in the amount (agreed to by counsel on the hearing of the appeal) of $118,285.99. 

1. The first ground of appeal is that the learned trial judge erred in law and in fact in finding that the retainer was limited to lodging an application for legal aid on behalf of the appellant.  The greatest difficulty facing the appellant is that the finding in question is one of fact based largely on resolving credibility issues between a number of witnesses.

1. The appellant, who had sustained serious injuries to his right lower leg and foot in a motorcycle accident on 11 October 1980, developed an ulcer on his right foot allegedly from wearing boots supplied by his employer Golden Cockerel Pty Ltd in about November 1987.  Despite surgical and medical treatment that ulcer did not heal and the appellant was unable to resume employment for a considerable period of time.

1. In October 1988 whilst living at Riverview the appellant and his wife made an appointment (either because of a sign on a street corner or because of an entry in the phone book) with the respondent’s firm on 13 October 1988.  Neither the appellant nor his wife had had prior dealings with the firm.  No fee was paid in relation to the consultation or any retainer. 

1. The appellant and his wife were interviewed by an employed solicitor who made detailed notes of the consultation.

1. There was a dispute as to what was said but the learned trial judge accepted the evidence of the solicitor, largely based on the contemporaneous diary note he made.  On 1 November 1988 a formal application for legal aid was lodged and by document dated 2 November 1988 the respondent was notified that legal aid was refused.  The ground stated for refusal was that “insufficient information has been provided to enable this office to make a determination”. 

1. There was disputed evidence as to whether that decision was communicated to the appellant.  I will return to that issue.  However it is clear that the appellant made no endeavour to contact the respondent from 13 October 1988 until a date in 1994.

1. Both the appellant and his wife gave evidence that on leaving the solicitor’s office they were told not to contact the firm, as the firm would contact them when it had a response to the legal aid application.  That was put forward as the explanation for not contacting the solicitors for some six years.  The solicitor who interviewed them denied making that statement and there was no specific finding on the point.  That however is in no way decisive.  Whatever the client believed the terms of the retainer to be one would expect the client to contact the solicitor if there was no communication for some months.

1. The learned trial judge found that when the appellant “left the solicitor’s office he was aware he had applied for legal aid to get counsel’s opinion and that they were waiting to ascertain the result of the legal aid application”.  There was also a finding that the solicitor explained the limitation period and warned the appellant of the need to commence an action within three years, that is by September 1990.  There was also a finding that on parting the solicitor told the appellant that legal aid would write either confirming or denying legal aid.

1. For some unexplained reason the letter from legal aid was addressed to the appellant at a former address.  The appellant denied receiving the letter and there was in consequence no finding that such letter was in fact received.

1. At all material times the appellant lived at 12 Kevin Street, Riverview.  There had been a fire in the office of the respondent in October 1989 and some records (relevantly for the present purposes, postage books) had been lost.  However the appellant’s file remained intact.  That file contained copies of three letters purportedly sent to the appellant.  The first was dated 25 November 1988 and was in terms:  “Re:  Personal injuries claim –  We refer to the above matter and would be pleased if you could make an appointment to see Mr Doyle of this office.”  The second was dated 12 May 1989 and was in terms: 

“Re:  Personal Injuries claim

We refer to correspondence dated 25 November 1988 and note that we have not heard anything further from you.

Please contact our office and advise whether you wish us to take any further action on your behalf.”

1. Finally there was a letter of 22 January 1990 in these terms:

“Re:  Gillespie – Personal Injuries claim

We refer to your previous attendance at our office.  We note that you have not provided us with any further instruction.  Notwithstanding our correspondence to you dated the 12^th day of May last.

Please note that you have three years from the date of the accident in which to institute proceedings if you are alleging negligence.  If you do not commence proceedings within that time you will lose your right to commence proceedings thereafter”.

1. The copies of the first two letters show that when initially typed no street number was included in the address, but they show the number 12 inserted manually.  The appellant denied receiving any of the letters.  The learned trial judge noted that the mail book after October 1989 showed the letter of January 1990 was sent out on 23 January 1990, and there was no record of it having been returned.  The learned trial judge concluded that the appellant “received at least one and more than likely two of the letters”.  Given the previous paragraphs of the reasons it is obvious the reference is to the letters of 25 November 1988 and 22 January 1990.  The learned trial judge then went on to conclude that having “found the letter in 1990 was sent to the right address it is difficult to sustain the allegation that the plaintiff was not advised of the three year limitation period”.

1. All the findings of fact were clearly supported by the evidence and in many instances were dependent upon resolving issues of credibility as between the appellant and his wife on the one hand and the solicitors on the other.

1. In submissions to this court counsel for the appellant contended that a more general retainer should be more readily inferred where the client is relatively unskilled or poorly educated.  That is always a relevant consideration, but such an inference cannot be drawn where it is contrary to facts established by evidence. 

1. The learned trial judge also placed some weight on evidence that in 1994, when another legal issue arose, the appellant and his wife went to another solicitor rather than going back to the respondent.  That was said to be inconsistent with the appellant believing or recognising that the appellant was still acting in the appellant’s claim for personal injuries.

1. In all the circumstances it was clearly open on the evidence for the learned trial judge to find that the respondent did not hold a general retainer to progress a claim for damages for personal injury against the relevant employer.  The finding that the respondent was never instructed to act on behalf of the plaintiff to investigate or prosecute a claim against Golden Cockerel was clearly open, as was a finding that the engagement was limited to submitting an application for legal aid to the Legal Aid Office. 

1. Given the clear findings of fact, supported as they are by the evidence, the challenge to the finding that the retainer was limited cannot be sustained.  The finding there was no negligence must also stand.

1. After working for Golden Cockerel for a period the appellant obtained a position in the hanging dock where his duties involved removing hens from the cages of delivery trucks and securing them in a stirrup set up as they entered the factory.  The appellant, according to the evidence, told the foreman that he had had his big toe amputated and in consequence he may not be as quick as fellow workers.  As with all employees he was issued with a uniform consisting of a shirt, pants, rubber boots and gloves.  He understood that the purpose of wearing the boots was to prevent slipping in the wet conditions of the hanging dock.  The initial pair of boots he was provided with were “unsatisfactory” in that the right boot was “a little tight”; as a result he cut a slit in the top of the boot.  He wore those boots from May 1987 until November 1987 when the soles wore down and he was issued with a new pair of boots.  The new boots “felt different” but “didn’t feel uncomfortable”; he didn’t have to cut a slit in them.  Within a week of wearing the new boots he noticed a blister on his foot which ultimately turned into the ulcer referred to previously.

1. The appellant alleged that Golden Cockerel was negligent in providing him with inadequate protective footwear, failing to inform him that he should inform his employer if the boots did not fit him properly, failing to take all reasonable steps to ensure that the boots which it provided were suitable for and fitted his feet, and in failing to provide him with a reasonably safe place in which to work.  On the material led at the trial the learned trial judge concluded that there was “no evidence that the footwear was not suitable to be worn by an employee without the disability suffered by the plaintiff.”  A finding was made that it was not established by the evidence that the “footwear was unsuitable”.  The learned trial judge also concluded that there was “no evidence that the bacteria that infected his foot came from chickens”.

1. All of that led to a finding that negligence was not established against Golden Cockerel.  That finding was not seriously challenged on appeal, and was clearly made on evidence before the court.

1. The real challenge on appeal was to the conclusion that the evidence did not establish breach of statutory duty resulting in injury to the appellant.  The appellant relied on clause 7 of Rule 10 of the Meat Industry Safety Rules. 

1. The reasoning of the learned trial judge is to the effect that there was no evidence that the footwear supplied to the appellant was not suitable or not designed for safety in the use to be made of it.  There was also no evidence that the footwear was not maintained in safe and serviceable condition.  The mere fact that the appellant suffered a blister whilst wearing the footwear does not demonstrate that the footwear provided was not used safely and competently.

1. In the circumstances the submissions of the appellant do not establish that the learned trial judge erred in reaching the conclusion there was no breach of statutory duty. 

1. It follows that the appeal should be dismissed with costs.

1. WHITE J:  I have read the reasons for judgment of Williams JA and agree with his Honour for the reasons which he gives that the appeal should be dismissed.