Gulic v Angelovski

[2018] NSWCA 161

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Gulic v Angelovski [2018] NSWCA 161
Hearing dates:	9 July 2018
Decision date:	27 July 2018
Before:	Beazley P at [1]; McColl JA at [2]; Sackville AJA at [3]
Decision:	1. Appeal dismissed. 2. Appellant to pay the respondent’s costs.
Catchwords:	TORTS – breach of duty by solicitor – assessment of damages – what personal injury damages would have been awarded to the plaintiff as at notional trial date – whether primary judge erred in awarding modest damages for loss of earning capacity
Legislation Cited:	Civil Liability Act 2002 (NSW) 5D, 5E Evidence Act 1995 (NSW), s 140 Motor Accidents Compensation Act 1999 (NSW) ss 126, 128
Cases Cited:	Commonwealth v Elliott [2004] NSWCA 360 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Johnson v Perez (1988) 166 CLR 351; [1988] HCA 64 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117
Category:	Principal judgment
Parties:	Milenko Gulic (Appellant) Lupco Angelovski t/as BJ Murphy Angelovski & Associates (First Respondent) Rocco Ardino t/as Morgan Ardino & Co Solicitors (Second Respondent)
Representation:	Counsel: Mr PW Bates (Appellant) Mr P Braham SC / Ms R Mansted (Respondents)   Solicitors: Margiotta Solicitors & Attorneys (Appellant) Yeldham Price O’Brien Lusk (Respondents)
File Number(s):	2017/127347
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 6 April 2017 Before: Gibb DCJ File Number(s): 2013/263544

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was injured in a motor vehicle accident (MVA) in 2004. In 2013, the appellant commenced proceedings in the District Court against two separate firms of solicitors. Each cause of action was founded on an alleged breach of duty by the solicitors in failing to initiate proceedings within the limitation period against the driver responsible for the MVA.

The primary judge dismissed the appellant’s claim against the first respondent. That decision was not challenged.

The second respondent accepted that it breached the duty of care owed to the appellant by failing to institute proceedings. The sole question was the value of the chance lost by the appellant. To establish his earning capacity prior to the MVA, the appellant sought to rely on a letter purporting to be an offer of employment as a driver. The primary judge found that the letter was a fabrication.

The primary judge awarded the appellant $25,000 in respect of past economic loss on the basis of the respondent’s concession that a trial judge in April 2009 might have awarded this amount.

The primary judge declined to award damages for future economic loss pursuant to s 126 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) or damages for domestic assistance…