Hamze v Bradstreet
[2007] NSWDC 54
•5 April 2007
CITATION: Hamze v Bradstreet [2007] NSWDC 54 HEARING DATE(S): 27, 28 June, 20 July, 6-7 December 2006
JUDGMENT DATE:
5 April 2007JURISDICTION: Civil JUDGMENT OF: Rein SC DCJ DECISION: See [134]. CATCHWORDS: Plaintiff injured in work accident - common law proceedings not commenced before 27 November 2001, at which time legislative changes significantly increased difficulty of recovery - issue of what legal advice was given and whether sufficient - causation - assessment of loss of chance LEGISLATION CITED: Workers Compensation Act 1987, ss 66, 67, 151A, 151B, 151G and 151H
Civil Liability Act 2002, s 5DCASES CITED: Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER 907
Argyropoulos v Layton (2002) 36 MVR 432; [2002] NSWCA 183
Bechara v Jawhar [2007] NSWCA 25
Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
Cheney v Duncan (2001) 34 MVR 28; [2001] NSWCA 197
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Feletti v Kontoulas [2000] NSWCA 59
Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355
Johnson v Perez (1988) 166 CLR 351
Kitchen v Royal Air Forces Association [1958] 2 All ER 241; [1958] 1 WLR 563
KT v PLG [2006] NSWSC 919
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5
Nikolaou v Papasavas Phillips & Co (No 2) (1989) 166 CLR 394
Phillips v Bisley (unreported, NSWCA, 18/03/1997, BC9700720)
Roberts v Cashman [2000] NSWSC 770
Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18
Walmsley v Cosentino [2001] NSWCA 403
Westcoast Clothing Co Pty Ltd v Freehill, Hollingdale & Page (a firm) (1999) Aust Torts Reports 81-518
Wilson v Rigg (2002) 36 MVR 451; [2002] NSWCA 246PARTIES: Fawaz Hamze (Plaintiff)
Michael E Bradstreet (Defendant)FILE NUMBER(S): 1991/05 COUNSEL: Mr D Kennedy SC; Mr A Porthouse (Plaintiff)
Mr J Downing (Defendant)
JUDGMENT
1 The plaintiff, who was born on 29 September 1965, was injured on 23 August 1999 in an accident at work whilst employed by Sydney Slitting Company (“SSC”). The plaintiff brings this suit against his former solicitor, Mr Michael Bradstreet, who, he says, breached a duty of care owed to him (and breached the retainer) by: (a) failing to advise the plaintiff of his rights against SSC; (b) failing to advise the plaintiff that any cause of action against SSC expired on 26 November 2001; (c) failing to commence proceedings for damages against SSC before 26 November 2001. Nothing turns in this case on the distinction between the claim against Mr Bradstreet in tort and that in contract.
2 The accident occurred in the following way. A machine (which is pictured at pp 15 and 16 Exhibit “A”) was used to roll steel. The plaintiff’s role was to help feed the coils of steel into the machine after measurement. He was feeding the coil in when his right hand got dragged into the rollers (visible in the photographs). He was standing on the right hand side of the machine with his arm leaning on the side of the machine at the point indicated in the photo on p 14.
3 The plaintiff’s right arm went into the rollers up to his wrist. He screamed in pain and the machine operator immediately pressed the emergency button, and then helped the plaintiff lift his arm out of the machine.
4 The plaintiff suffered a closed fracture of his distal radius and ulna from a crush type injury (p 17 Exhibit “C”).
5 The plaintiff’s right wrist and hand were in plaster for eight weeks – he had difficulty feeding himself and dressing and showering. He needed some help for up to three months after the plaster was removed. The plaintiff is right hand dominant.
6 The plaintiff returned to work on light duties, initially for two three hour periods a week, and later at a higher level. He did continue to work for SSC until March 2004, but he has not returned to work since then.
7 The plaintiff, on 12 October 2001, although reluctant to do so, did have a further operation undertaken by Dr Dilley, hand surgeon, at Strathfield Private Hospital, where he underwent debridement of the small partial thickness tear of his triangular fibro cartilage and the scapho-lunate ligament. The dorsal part of the ligament was intact and there was no gapping between the scaphoid and lunate: see p 80 Exhibit “1”.
8 Mr D Kennedy SC with Mr A Porthouse of counsel appeared for the plaintiff on 27 and 28 June and 20 July but Mr Porthouse appeared alone on 6 and 7 December 2006. Mr J Downing of counsel appeared for the defendant. The hearing could not be completed in the original days allotted or 20 July and then there was unfortunately a very long period of delay whilst the parties attempted unsuccessfully to resolve the matter.
9 Both sides prepared a list of issues but there was not a precise correspondence between them. I shall use the headings utilised in the defendant’s outline of submissions subject to any modification where appropriate, namely:
(i) What assessment did the defendant make of the plaintiff’s injuries and his right to recover damages/compensation in respect of those injuries?
(ii) What advice did the defendant give to the plaintiff as to his possible rights against SSC?
(iii) Was the defendant’s assessment and the advice he provided consistent with the duty of care he owed to the plaintiff?
(iv) If the answer to question (iii) is no, what assessment should have been made and what advice should have been given to the plaintiff if the duty of care had been discharged?
(v) If the answer to question (iii) is yes, on the balance of probabilities, would the plaintiff have launched common law proceedings against SSC?
(vi) If the answer to question (v) is yes, what is the value of the lost opportunity to bring common law proceedings prior to 27 November 2001?
(vii) What amount if any would need to be offset against the amount determined in answer to (vi), by reason of benefits that remain available to the plaintiff?
10 It is important to bear in mind the legislative framework in which the present dispute arises.
11 In late 2001, legislation was introduced that placed further restrictions on the right of employees injured at work to recover common law damages from their employers. The effect of the legislation, it was agreed, was to exclude from the new provisions injuries in respect of which a statement of claim had been filed on or before 26 November 2001. It is agreed that the plaintiff would not have been successful in recovering damages pursuant to the altered legislation. Thus, although strictly this is not a case where an existing limitation period expired, the effect of the legislative change in November 2001 makes it akin to such. Another difference between this case and that often pertaining when a limitation period has expired, is that the plaintiff has retained, it was agreed, his workers compensation rights.
12 In Bechara v Jawhar [2007] NSWCA 25, a decision handed down after submissions in this case, the Court of Appeal upheld an appeal from a decision of the District Court in which it had been held that a solicitor had negligently advised a client in respect of a work injury. The client had instructed the solicitor to commence proceedings in circumstances in which the client had no realistic prospect of establishing liability in his employer in respect of a serious injury that he suffered at work. By commencing common law proceedings the plaintiff lost his right to claim under ss 66 and 67 of the WCA. On withdrawing the claim he was required to pay the employer’s costs of the common law proceedings. The case turned around the detailed facts of what had been said by the solicitor and barrister retained, it being held on appeal that the solicitor had made clear to the client that he had a choice and that by choosing common law proceedings he would thereby lose his ss 66 and 67 workers compensation rights. The Court emphasised that it was not the solicitor’s job to act as judge in the matter and at that time there was no certification requirement: see also Orchard v South Eastern Electricity Board [1987] QB 565 at 572.
13 The Court noted that there are in fact some situations where the commencement of proceedings will not constitute an election, referring to Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355, but as that appeal had not been decided when the case before the District Court had been heard, the Court of Appeal would not allow the parties to depart from the assumption made that the commencement of proceedings did constitute an election: see [12]. In this case also the parties have proceeded on the basis that commencement of common law proceedings would have ended the plaintiff’s rights under ss 66 and 67 of the WCA. The Court of Appeal did note at [13] that Mr Jawhar’s entitlement to weekly payments and to other classes of compensation, significantly medical expenses, was not affected by the commencement of common law proceedings.
Pre 27 November 2001
14 I set out the provisions of ss 151A, 151B, 151G and 151H WCA as they were prior to 27 November 2001 (s 151B having been repealed effective as of 27 November 2001) (taken from “Mills Workers Compensation NSW” Practice (LexisNexis Butterworths) which I was informed by counsel correctly identified the relevant legislation):
(1) In this section and in section 151V:“ 151A Election — damages or “Table of Disabilities'' compensation
permanent loss compensation means compensation under Division 4 of Part 3 (Compensation for non-economic loss).damages does not include damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies;
(2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both:(a) permanent loss compensation in respect of the injury; and
(b) damages in respect of the injury from the employer liable to pay that compensation,
but is required to elect whether to claim that permanent loss compensation or those damages.
(3) The person makes that election (or is taken to have made that election):
(a) by commencing proceedings in a court to recover those damages or by accepting payment of those damages (in which case the person ceases to be entitled to permanent loss compensation in respect of the injury); or
(b) by commencing proceedings in the Compensation Court to recover that permanent loss compensation or by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury).
(3A) The amendment of a claim that is the subject of proceedings before the Compensation Court to include a claim for permanent loss compensation is (for the purposes of subsection (3)(b)) taken to constitute the commencement of proceedings in the Compensation Court to recover that permanent loss compensation.
(4) An election is irrevocable, except that an election to claim permanent loss compensation may be revoked with the leave of the court given in accordance with this section.
(5) If:
(a) a person elects to claim permanent loss compensation in respect of an injury; and
(b) after the election is made, the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation; and
(c) at the time of the election, there was no reasonable cause to believe that the further deterioration would occur,
the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury.
(6) If the election is revoked the permanent loss compensation paid is not required to be repaid, except out of the damages recovered in accordance with section 151B.
(7) If a liability to pay permanent loss compensation results from more than one injury to a worker, a reference in this section to permanent loss compensation is a reference to such part of that compensation as relates to the injury for which damages are recoverable.
151B Effect of recovery of damages from employer on payment of compensation
(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act:
(a) the person then ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid); and
(b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation.
(2) This section does not apply to a person who recovers damages for non-economic loss in respect of an injury if the person does not recover any damages for economic loss in respect of that injury because of the operation of section 151H (No damages for economic loss unless injury serious).
(3) A person who recovers damages for economic loss in respect of an injury but does not recover any damages for non-economic loss in respect of that injury because of the operation of section 151G (Damages for non-economic loss) is not prevented from recovering, and is not required to deduct under this section, any compensation under Division 4 (Compensation for non-economic loss) of Part 3 except compensation under s 67 (Compensation for pain and suffering).
(4) In applying subsection (2) or (3) to a particular case:
(a) the reason for the non-recovery of damages for economic loss or non-economic loss (respectively) must be solely the operation of section 151H or 151G (respectively), and not a combination of reasons (including, for example, a partial settlement or partial compromise of a claim); and
(b) the amount of damages for non-economic loss applied in determining the operation of the threshold test in the relevant section must be calculated on the basis of the actual loss, and must not be reduced on the basis of any settlement or compromise or otherwise.
151G Damages for non-economic loss
(1) (repealed)
(2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.
(3) The maximum amount which may be awarded for non-economic loss is $204,000, but the maximum amount may be awarded only in a most extreme case.
(4) If the amount of non-economic loss is assessed to be $36,000 or less, no damages for non-economic loss are to be awarded.
(5) If the amount of non-economic loss is assessed to be between $36,000 and $48,000, the amount of damages to be awarded for non-economic loss is as follows:
Damages = [Amount so assessed - $36,000] x 4
(6) (repealed)
(7) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amounts of $204,000, $36,000 and $48,000 were adjustable amounts and were referred to in section 81(1). However, section 80(2) does not apply to the amounts of $36,000 and $48,000.
(8) If an amount mentioned in this section:
(a) is adjusted by the operation of Division 6 of Part 3, or
(b) is adjusted by an amendment of this section,
the damages awarded are to be assessed by reference to the amount in force at the date of injury.
151H No damages for economic loss unless injury serious
(1) No damages are to be awarded for economic loss unless the injured worker has received a serious injury or dies as a result of the injury.
(2) A serious injury is, if received before the commencement of Schedule 2(2) to the Workers Compensation (Benefits) Amendment Act 1991:
(a) an injury for which the compensation otherwise payable under section 66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 33 per cent of the maximum amount from time to time referred to in section 66(1), or
(b) an injury for which damages for non-economic loss of not less than $67,800 are to be awarded in accordance with this Division (whether or not compensation is payable under section 66).
(2A) A serious injury is, if received on or after the commencement of Schedule 2(2) to the Workers Compensation (Benefits) Amendment Act 1991:
(a) an injury for which the compensation otherwise payable under section 66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 25 per cent of the maximum amount from time to time referred to in section 66(1), or
(b) an injury for which damages for non-economic loss of not less than $48,000 are to be awarded in accordance with the Division (whether or not compensation is payable under section 66).
(3) (repealed)
(4) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amount of $48,000 were an adjustable amount and were referred to in section 81(1). However, section 80(2) does not apply to the amount of $48,000.
(5) For the purposes of determining whether an injury is a serious injury, the court has the powers under this Act of the Compensation Court relating to the reference of a matter to a medical referee or medical panel for report.
(6) If an amount mentioned in this section:
(a) is adjusted by the operation of Division 6 of Part 3, or
the damages awarded are to be assessed by reference to the amount in force at the date of the injury.”(b) is adjusted by an amendment of this section,
15 Reference should also be made to ss 66 and 67 of the WCA that were in force as at 27 November 2001:
“ 66 Compensation for permanent injuries
(1) A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker's employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $100,000 set out opposite to that loss in that Table.
(2) A worker who has suffered more than one of the losses mentioned in the Table to this Division as a result of the same injury is not entitled to receive as compensation under this section more than $121,000 in respect of those losses.
(3) If an amount mentioned in this section at any time after the commencement of this Act:
(a) is adjusted by operation of Division 6; or
(b) is adjusted by an amendment of this section,
the compensation payable under this section is to be calculated by reference to the requisite percentage of the amount in force at the date of injury.
67 Compensation for pain and suffering
(1) A worker who has suffered a loss mentioned in the Table to this Division (or 2 or more of any such losses as the result of the same injury) is entitled to receive from the worker's employer by way of compensation for pain and suffering resulting from the loss or all those losses, in addition to any other compensation under this Act, an amount not exceeding $50,000.
(1A) Because there is a distinction between “injury” and “loss resulting from an injury” (and compensation is payable under this section only for pain and suffering resulting from a loss), the pain and suffering for which compensation is payable under this section does not include pain and suffering that results from the injury but not from the loss.
(2) This section does not apply if the compensation paid or payable under s 66 for the loss or all those losses is less than 10 per cent of the maximum amount from time to time referred to in s 66(1).
(3) The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the loss or losses.
(4) The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Compensation Court.
(4A) It is permissible for an agreement as to the amount of compensation to be paid to a worker under this section to provide that the amount to be paid is the proportion of the maximum amount payable under this section that is the same as the proportion of the maximum amount payable under s 66 that is represented by the amount payable to the worker under that section in respect of the loss or losses concerned. This subsection does not prevent an agreement that some other amount is to be the amount to be paid to a worker under this section.
(5) Compensation under this section is not payable after the death of the worker concerned.
(6) If an amount mentioned in this section at any time after the commencement of this Act:
(a) is adjusted by the operation of Division 6; or
(b) is adjusted by an amendment of this section,
the compensation payable under this this section is to be calculated by reference to the amount in force at the date of injury.
(7) In this section:
pain and suffering means—
(a) actual pain; or
suffered or likely to be suffered by the injured worker, whether resulting from the loss concerned or from any necessary treatment.”(b) distress or anxiety,
16 Dr Bokor operated on the plaintiff’s hand at Westmead Hospital on the day of the accident and the plaintiff was in hospital overnight (T8) and had his hand and wrist in plaster for eight weeks (T8.35). His wife had to assist him with feeding and he had difficulties washing and showering during that period (T9). He had pain in his hand, numbness in his fingers and restriction of movement (T9). Whilst his hand was in plaster he could not drive a car. The plaintiff returned to work on 13 December 1999 (T10), initially doing three hours work a day. He had problems sleeping because of the pain in his hand: T11.
17 By letter of 10 October 2000, Dr Dilley reported to Smith Monti Costa (“SMC”) assessing the permanent loss of use of the right arm below the elbow at 11%: see p 74 Exhibit “1”.
18 The further surgery on 12 October 2001 was day surgery – but again the plaintiff’s hand and wrist were in plaster for six weeks afterwards.
19 The plaintiff gave evidence that he still has a problem with his right hand in cold weather – the pain increases and he needs to wear something to keep it warm. He said in summer he occasionally gets a pain if he uses his hand more than usual but he generally does not: T20. He was wearing a splint made of rubber when he gave evidence in June 2006 which he said he wears only in winter: T19-T20.20. The plaintiff gave evidence and was cross examined by Mr Downing. There was an attack in cross examination on the plaintiff’s credibility related to the fact that he had been observed (see pp 378-381 Exhibit “1”) taking off a wrist guard immediately after leaving a surgery at which he had attended for the purpose of examination by a doctor appointed by the defendant for the purpose of this case. The plaintiff’s first response was to say that he had probably removed the guard because his hands were sweaty, but he then said that he had worn the guard because the doctor’s surgery was in an air conditioned building: see T56. The documents tendered on behalf of Mr Bradstreet do indicate that some of the doctors and physiotherapists examining the plaintiff in 2004 in respect of his hand and back injury (which injury is referred to below) expressed doubts as to the genuineness of his complaints: see Exhibit “1” pp 96-111, 121-123, 135, 138, 142, 206, and see also Dr Dilley (Exhibit “1” pp 81 and 88) on grip strength and range of movement.
20 When the plaintiff returned to work at SSC he says he was initially given sweeping duties and was required to pick up objects: T21.
21 By 2002 and in 2003 up until August, he was able to carry out all of the duties required of him under a permanently modified work scheme: T69.18-24.
22 The plaintiff said he could not operate a whipper snipper (T22-23), cannot use a hammer (T21), cannot use a lawn mower (T23), and cannot assist with putting out the washing: T24. He says he can carry up to 2-3 kilograms in his right hand: T25. He says he has trouble with a knife and is sensitive to bumps: T25.
23 The plaintiff said that he became depressed some time after the accident, and less interested in his family. The timing of this was not made clear but he saw Dr Amin about his feelings in January 2004 and was thereafter referred to Dr Ann Stephenson who prescribed medication (T18), and Mr Porthouse in submissions contended there was an “emerging picture of depression” by November 2003. The plaintiff saw Dr Stephenson for between 12 and 18 months. He says that Dr Amin prescribed Panamax and Brufen for his wrist: T19.35. An issue had arisen as to whether the plaintiff was in fact taking Brufen – Dr Roberts, the psychiatrist who saw the plaintiff at the request of the workers compensation insurer, on being informed by the plaintiff of his medications, sought and obtained a urine sample from the plaintiff which when tested showed no evidence of Brufen in his system: see p 112 Exhibit “1”. The plaintiff did explain this anomaly in a letter to his then solicitors (see Exhibit “4”). The plaintiff gave evidence at the hearing that he was given Brufen (at T8), the inference being that he took it. He was not cross examined on the point.
24 In October 1999 the plaintiff retained Smith Monti Costa (“SMC”) to act for him. It appears from the letter of 22 October 1999 (see Exhibit “4”) that SMC considered that they were acting for the plaintiff in respect of a workers compensation claim. On 21 August 2000 the plaintiff received an offer from Zurich Australia Workers Compensation Limited (“Zurich”), offering him an amount of $11,250 for 15% loss of use of the right arm below the elbow and $5625.00 for pain and suffering, a total of $16,875.
25 The offer made reference to s 66 of the WCA (but the reference to pain and suffering seemed to be an offer of payment under s 67 of the WCA). The letter referred to a report of Dr John Roth who had assessed the plaintiff on 12 July 2000 (see Exhibit “4”, letter of 21 August 2000) as having “a permanent loss of efficient use of the right arm related to the injury which he sustained at work and I would assess this to be 15% loss of efficient use of the dominant arm below the level of the elbow”. At the time s 66 had a maximum for loss of the dominant arm below the elbow of $75,000. In accordance with the WCA 11% equated to $8250 (ie 11% of $75,000). 15% equated to $11,250. The 11% figure was the assessment of Dr Dilley. The s 67 calculation was required to be reasonably proportionate to the maximum amount “having regard to the degree and duration and the severity of the loss”, but by virtue of s 67(2) no amount was payable if the s 66 amount did not exceed $10,000.
26 On 28 September 2000 the plaintiff attended upon Dr Brian Stephenson at the request of Zurich. Dr Brian Stephenson provided a report (dated 3 October 2000, p 72 Exhibit “1”) in which he assessed the plaintiff as having “a 10% loss of use of the right arm at or above the elbow” and offered $7500 for that injury and nothing under s 67 (which was now, along with s 66, specifically referred to). An assessment of 10% equated to the amount of $7500 offered.
27 There is no direct evidence of rejection of the first Zurich offer or the second offer but the plaintiff says that he did reject the first offer and it is not disputed that neither offer was accepted.
28 In September 2000 the plaintiff also claimed for workers compensation for the period 11-22 September 2000 when he had claimed that he had developed pain in his right hand after cutting paper using scissors. This claim followed a request by the plaintiff to his employer for one or two days leave as his wife was expecting a child, which request was refused. Zurich rejected that claim for workers compensation benefits: see the correspondence in Exhibit “4”.
29 The plaintiff could not recall SMC having advised him of the two options and it appears that that firm believed that a workers compensation claim was the appropriate course.
30 In February 2001 the plaintiff instructed the defendant to take over from SMC the claim against SSC. The plaintiff says that his reason for this was that the file had been placed in the hands of a junior person, and he had been kept waiting for an hour and a half: T12.25-30.
31 On the plaintiff’s first visit to Mr Bradstreet, Mr Bradstreet learnt that the plaintiff had seen other solicitors, SMC, and Mr Bradstreet arranged for that file to be obtained. SMC’s file is in evidence as part of Exhibit “4”.
32 On 5 June 2001, having obtained the SMC file, Mr Bradstreet saw the plaintiff. He learnt from the plaintiff that on 23 August 1999 that the plaintiff had suffered a fracture of the right wrist at work. He learnt that a “closed manipulation” had been performed at Westmead Hospital, that Dr Bokor GP was the plaintiff’s doctor in connection with his wrist and that Dr Bokor had referred him to Dr Dilley: see Exhibit “3”.
33 The plaintiff told Mr Bradstreet that he was proposing to have the operation recommended by Dr Dilley within the next couple of months, that he had been off work for about three months after the accident, had returned to work in December 1999, that he had commenced on light duties and remained on light duties, that he had done no overtime since the accident (prior to the accident he was doing “maybe 13 hours extra per week”), that his pay rate was $12.73 per hour and overtime $19.10 per hour. He was paid $12.73 per hour for light duties. He told Mr Bradstreet that he was married with three children: aged 7 years, 4 years, and 9 months (see Exhibit “3” which includes transcript of the note of the conference on 5 June 2001).
34 Mr Bradstreet had been provided with copies of Dr Dilley’s reports, and it would appear Dr Bokor’s report and Dr Stephenson’s report. Mr Bradstreet did not say he had Dr Roth’s report but he would have known of it because he was given a copy of SMC’s file and it contained the offer of Zurich which referred to Dr Roth’s assessment.
35 I shall defer dealing with the question of what was said at that meeting by Mr Bradstreet and the plaintiff beyond what is recorded in the diary note, but no action was taken following the meeting by Mr Bradstreet until April 2002.
36 Dr Dilley reviewed the plaintiff on 3 August 2001 (see Dr Dilley’s report of 6 August 2001): p 79 Exhibit “1”. Arrangements were made to admit the plaintiff on 12 October 2001 and on that date Dr Dilley carried out the surgery (referred to in [7] above) on the plaintiff’s right hand – his report of that is at p 80 Exhibit “1”.
37 On 2 October 2001 the plaintiff’s wife rang Mr Bradstreet’s office and left a message that they “are back from holidays and anxious to speak with you”.
38 On 3 December 2001 the plaintiff’s wife rang Mr Bradstreet’s office and left a message that her husband “is not working overtime – All the other employees are working overtime and earning up to $500 extra per week”: see Exhibit “4”.
39 There is nothing by way of file note or other evidence to indicate that Mr Bradstreet responded to those calls.
40 On 12 April 2002 Mr Bradstreet saw the plaintiff and was informed by the plaintiff that he was working on light duties but with no overtime, was being paid full wages and that Dr Dilley had recommended a bone scan (Dr Dilley’s reports (pp 81, 82, 83) do not make reference to that).
41 In July 2002, Mr Bradstreet arranged for the plaintiff to see Dr Grahame Mahoney, orthopaedic surgeon. The letter of instruction from Mr Bradstreet to Dr Mahoney of 22 July 2002 sought an opinion on a percentage basis “1 of loss of efficient use of right arm below elbow. … 2 Whole person impairment on the American Scale”: see Exhibit “4”.
42 Dr Mahoney’s report (pp 84-87 Exhibit “1”) assessed the plaintiff as suffering a 13% whole person impairment (including 5% for right carpal tunnel syndrome). None of Drs Bokor, Roth or Stephenson had mentioned the possibility that the plaintiff was suffering from carpal tunnel syndrome and Dr John P H Stephen later positively rejected that diagnosis: p 147 Exhibit “1”. Dr Dilley did make reference to the matter in his earlier reports (see pp 76, 78, 79, 80 Exhibit “1”) but nothing is said after surgery in October 2001 (pp 81, 82, 83, 88) except at pp 88 noted that “mid carpal clunk is negative”.
43 The plaintiff saw Mr Bradstreet on 16 July 2002 and again on 20 January 2003. On 16 July 2002 he stated that he was having “a lot of ongoing pain”: see Exhibit “3”.
44 In October 2002 the plaintiff’s ability to work full time in permanently modified duties was confirmed: see pp 178-181 Exhibit “1”.
45 In August 2003 the plaintiff slipped or tripped on a rug at work and suffered a back injury with two weeks off work: see Exhibit “3”, see also pp 90 and 193 Exhibit “1”.
46 On 22 September 2003 the plaintiff saw Mr Bradstreet. He said that he was doing light duties for four hours per day with SSC but that he had two weeks off with back pain and that his condition is getting worse and “my left hand [sic] is getting worse”: see Exhibit “3”.
47 In November 2003 the plaintiff went to a Mr Woolley of Gibsons Lawyers and instructed him to take over the file from Mr Bradstreet.
48 On 2 February 2004 Mr Woolley, having examined the file of Mr Bradstreet, set out the history of the matter in a letter to the plaintiff. He recorded that:
“You attended Dr Mahoney’s rooms but did not pay for the report, Mr Bradstreet has written to you on a number of occasions asking that you attend to payment as the report cannot be supplied until that has been done.
At present there is an offer made to you of $7,500 only, you are not entitled to any further lump sums and the offer cannot be increased unless we have medical evidence to support it.
If you are prepared to pay [for] Dr Mahoney’s report, please telephone us to arrange an appointment to discuss the matter and bring with you a cheque made payable to Mr Mahoney for $770.”Unless you are prepared to pay for Dr Mahoney’s report we cannot assist you any further.
49 The fact that Mr Bradstreet had sought money from the plaintiff (and a number of times) was confirmed by the plaintiff: T73.10-16.
50 By letter of 9 February 2004 the plaintiff stated that he had told Mr Bradstreet that he could not pay for the report or for fees, and that Mr Bradstreet had said he would pay the money. He said that he already had the report from Dr Mahoney dated 1 August 2002, and he knew of no other report.
51 The plaintiff moved on from Gibsons to his current lawyers, but there is no indication of why that occurred save the inference that the plaintiff would not agree to pay the $770 for Dr Mahoney’s report.
52 I have mentioned the plaintiff’s back problems in August 2003. The plaintiff did return to work in September 2003 but in March 2004 (T66) he ceased work at SSC. It appears that by late 2003 a problem with his back was interfering with his ability to work (see T67.28) and by February 2004 he had pain in his lower back and down his right leg (T67.7-14), which was aggravated by driving and sitting: T67.16-19. The plaintiff did not agree that the back was a fairly big problem (T67.24) but it appears from p 230 Exhibit “1” that it was back pain (or at least the claimed back pain) that was precluding the plaintiff from adapting to the changed hours that SSC required, as well as a desire on his part to attend prayers on a Friday (T70.8-14) and the insurer’s decision to decline the claim for back pain led to the rehabilitation file being closed, and it is consistent with the description of problems caused by the back he gave to Ms Martin, a rehabilitation specialist (T67), whom he informed at that time he had no current symptoms affecting his right hand: T58.16-34 and see p 199 Exhibit “1”, although see also p 198.
What assessment did Mr Bradstreet make as to the type of proceedings?
53 Mr Bradstreet’s evidence was that he was aware of the legislative changes that were to be introduced in November 2001, although he could not remember their precise evolution. He said that he reviewed all of the work injury files held in his office in November 2001 and launched common law proceedings in three of them in order to “beat the November deadline”.
54 Mr Bradstreet said he did look at the plaintiff’s file as well but he did not do anything about the plaintiff’s case because in his opinion the plaintiff did not have a good common law claim.
55 Mr Porthouse drew Mr Bradstreet’s attention to the fact that he did not do anything on the file until April 2002, at which time Mr Bradstreet sought a report from Dr Mahoney requesting an assessment of “whole person impairment”. Mr Porthouse suggested that that could not have been directed to a workers compensation claim, with which Mr Bradstreet agreed. It was, it appears, related to a claim under the amended s 151H (in the altered legislation).
56 Mr Porthouse put to Mr Bradstreet that he had sought that report in those terms because he had failed to pay any attention to the plaintiff’s common law claim and as at 2 April 2002 wanted to protect himself from any assertion that the claim if brought would have overcome the threshold. Mr Bradstreet denied that.
57 It is somewhat surprising that Mr Bradstreet would have embarked upon an enquiry as to whole person impairment when on his evidence he had advised the plaintiff that a workers compensation claim was the appropriate course. There was no explanation from Mr Bradstreet as to how he came to take that step, there being no evidence of any discussion with the plaintiff about it, nor any diary note of any such discussion. The cross examination was directed to establishing that Mr Bradstreet was covering himself, he by April having realised that he had made a mistake, but it is not clear why obtaining a report from Dr Mahoney based not on pre-existing legislation but the new legislation would assist, unless Mr Bradstreet thought that the plaintiff would overcome the new thresholds, which was not put to him and both experts (and Mr Woolley it seems) were of the view that the plaintiff had no prospect of recovery under the changed legislation.
58 The only date on which Mr Bradstreet had any discussion of substance with the plaintiff (prior to 26 November 2001) was on 5 June 2001. The file note records no advice given nor does it indicate that any advice was given on that occasion. There is no letter from Mr Bradstreet to the plaintiff recording any advice or indicating what steps would or ought be taken by Mr Bradstreet or the plaintiff. There is no note or letter referring to advice being given on any other occasion.
59 The plaintiff’s version of what he was told, is that he told Mr Bradstreet about his accident and what had happened to his hand and “I asked him to advise me on what to do” (T13.38), that Mr Bradstreet said “you have a good case. Don’t worry, I’ll do everything.” (T13.42-43). The plaintiff said (T13.47-50):
“I remember that I asked him if we can sue the company, take that to Court and he said we can’t take that to Court. And he said we can only do it through Workers’ Compensation.”
60 The plaintiff said that he replied (T13.53-54):
“That’s fine, do what you think is right.”
61 When asked whether Mr Bradstreet mentioned any time limits to him, the plaintiff said he did not recall that: see T13.56-14.6.
62 The plaintiff was asked whether Mr Bradstreet explained why it should be a workers compensation claim and that he could not sue at common law and the plaintiff said he could not remember that he did: T15.30-36.
63 In cross examination, the plaintiff said that he could not communicate with solicitors in English (T53) and that he would not have gone by himself to see Mr Bradstreet because he was unable to understand him: T53.49-T54.17.
64 The diary notes of Mr Bradstreet indicate that on one occasion (22 September 2003) the plaintiff was accompanied by another person (his brother in law). The diary note of 5 June refers to a need for an interpreter in court, but taken together with the other notes I do not think it supports Mr Bradstreet’s assertion that the plaintiff was accompanied by someone proficient in both the English and Arabic languages (or anyone else). Mr Bradstreet asserted that there was someone present and the plaintiff seemed to agree: see T32-33. Whilst on the basis of the diary notes I would not be prepared to conclude that there was an interpreter present on 5 June, given the plaintiff’s evidence that he never spoke English to his solicitors and Mr Bradstreet’s assertion that what he said was translated, I do not think it is open to me to find that no person capable of interpreting was present, and no argument put to that effect.
65 In cross examination the plaintiff was asked why he had not ever instructed lawyers to try and negotiate a settlement of the lump sums (T72.25-30):
“Simply because first of all I don’t understand the law, I wouldn’t think to tell a solicitor how to do his job and I listen to what they say and I take their advice as it’s the correct thing.”
66 The following exchange took place in cross examination (T72.31-46):
“Q. You told us yesterday that the advice that you say you got from Mr Bradstreet was that we can’t sue the company we can only do it through workers’ compensation?
A. Correct.
Q. What did you do in terms of following up Mr Bradstreet about what you were doing to pursue your workers’ compensation rights?
A. You mean Bradstreet?
A. You mean what did I do? Yeah, when he said we can’t sue the employer, we can only pursue your rights through workers’ comp. I told him yeah, you do what you think is right.”Q. Mr Bradstreet.
67 At T73.56-75.6, there was the following critical piece of cross examination:
“DOWNING. You told us yesterday that Mr Bradstreet had said to you, we can’t sue the company, we can only do it through workers’ compensation?
A. Yes.
Q. Is it possible that he said more to you about that topic?
A. No he didn’t explain more than that.
Q. Can I suggest to you that he said to you, look, the law restricts the damages that you can get if you sue at common law?
A. I don’t understand that question, can you repeat it?
Q. I am asking you whether, I am suggesting to you that, beyond what you’ve told us you recall Mr Bradstreet said, he said other things to you?
A. I don’t recall that he explained these things.
Q. I am suggesting to you and you need to tell me whether you agree or disagree or don’t remember but he said certain specific things to you?
A. I don’t agree that he explained.
…
Q. What Mr Bradstreet said to you was that the law restricts the damages you can get if you sue the company at common law?
A. I don’t remember I heard this information.
Q. I am suggesting he also said to you that there are stringent thresholds that the law imposes and you have to be careful?
A. If I heard these things the way you put it then I would understand. I can’t argue with an expert.
Q. But I am asking you not whether you would argue or agree or disagree but whether it was said to you at the time and whether you have any recollection of it being said at the time?
A. I can’t remember.
Q. I am suggesting to you that he said look in your case my view is you are better off hanging on to your workers’ compensation rights?
A. He might have said something of that effect but because it has been a long period I can’t be so accurate.
A. Yes I told him that.”Q. You told us yesterday that during that meeting with Mr Bradstreet you said something like that’s fine, do what you think is right?
68 Mr Bradstreet says that he concluded that the plaintiff had a “crystal clear” case in terms of liability against his employer (SSC), but that he considered the thresholds imposed by ss 151G and 151H as onerous obstacles and that he concluded that the plaintiff “would be crazy” to pursue his common law rights with attendant risks on costs.
69 Mr Bradstreet admitted that he had made no note of what advice he gave the plaintiff, nor had he written to the plaintiff confirming any advice given, nor had he had the plaintiff acknowledge receipt of advice. Mr Bradstreet admitted that he could not specifically recall what he had said to the plaintiff – what he could say was that he had a practice in relation to workers in the position of the plaintiff and would have in accordance with that practice, said words to the following effect (I am reliant on my notes for this part of the evidence):
“There are two options open to you. You can rely on your workers compensation rights or pursue matters at common law. There are however onerous thresholds at common law introduced by the Government which make if difficult for workers to win these cases. My advice to you is not to go down that common law track because you may expose yourself to a costs order. You are doing ok at the moment, you at work you are getting compensation, you cannot afford to jeopardise your family finances by a speculative common law action. You should stick to your workers compensation rights whilst you are incapacitated. You do not know what will happen in the future in terms of your injury. Your workers compensation is far more valuable than your common law case is.”
70 The plaintiff, according to Mr Bradstreet, replied: “Well you seem to know what you are talking about I’ll leave it to you”, although Mr Bradstreet then said “I may be wrong about that”, according to my notes.
71 Mr Porthouse argued that even if Mr Bradstreet did say the words which he says he did say in accordance with his practice, they were insufficient. I shall return to this point after describing the evidence of the expert witnesses.
72 Mr Porthouse submitted that Mr Bradstreet must have overlooked the existence of a common law claim and that he did not know what he was doing. Mr Bradstreet was an experienced solicitor with extensive practice in personal injury work. It was not put to him that he did not know as at June 2001 that there were two options available to the plaintiff if action was to be taken. To have advised that the plaintiff could not have commenced a common law action would have been quite erroneous and inconsistent with the knowledge that I infer Mr Bradstreet had.
73 Having regard to these matters and the concessions made by the plaintiff in cross examination as to his lack of recall, I am not persuaded on the balance of probabilities that Mr Bradstreet told the plaintiff he could not bring proceedings against SSC. However I think it is clear, assuming that advice was given on that occasion as both the plaintiff and Mr Bradstreet contend it was, that Mr Bradstreet communicated a view expressly or implicitly that the only proceedings which he believed appropriate were workers compensation proceedings, and the plaintiff may well have understood from what Mr Bradstreet told him, that for practical purposes common law proceedings were not feasible.
The expert views of what assessment should have been made and what advice should have been given to the plaintiff by Mr Bradstreet
74 The plaintiff relied on the expert report of Mr Harrison dated 11 May 2006, and Mr Bradstreet relied on the reports of Mr Stanton of 25 November 2005 and 25 May 2006. Mr Harrison is a solicitor with extensive experience in injury litigation (in which field he is an accredited specialist) and Mr Stanton is a barrister with extensive personal injury experience, both as a solicitor and then as a barrister. They were both cross-examined.
75 There was a measure of agreement in their views as to what was the appropriate assessment that should have been made and advice given as to the plaintiff’s prospects of recovery as at November 2001.
76 They agreed that the plaintiff had a very strong case on liability against his employer and that he had very little risk of a finding of contributory negligence. Both experts thought that the plaintiff was at risk of not overcoming the threshold in s 151G(4) and hence of recovering no amount for non-economic loss: T85.30 and p 13 Exhibit “1”, pp 3 and 5 Exhibit “B”. Mr Harrison thought that the plaintiff had at least a 50% chance of overcoming the threshold imposed by s 151G(4) and Mr Stanton thought that the plaintiff’s prospect of so doing was only 50%. Mr Harrison thought that if the plaintiff did recover he would recover damages under this head of between $20,000 and $40,000: T97.8, T98.24 (ie equivalent to a finding of between 20% and 22% of a most extreme case). Mr Stanton estimated the likely recovery under s 151G as $22,160, ie based on assessment of 20% of a most extreme case. Both experts used the figures for compensation as at the date of injury (as required by s 151G(8)(b)) and took into account s 151G(4).
77 Mr Stanton was of the view that the plaintiff had no realistic prospect of overcoming the s 151H hurdle, whereas Mr Harrison was of the view that the plaintiff had a “very substantial risk of failure” of achieving the s 151H threshold, and that he would be unlikely to clear s 151H and hence unlikely to recover anything for economic loss: T91.1-26, T94.14-19, T85.45-47 and T90.41-54.
78 Mr Harrison did say that if the common law proceedings had been commenced he would be looking at a settlement for 50-75% of the plaintiff’s best position. He also said that he would want counsel’s views and that he would accept that a solicitor may not want to recommend a settlement figure without the benefit of counsel’s advice: T105-106.
79 Mr Harrison, on examining the outcome that he described as the view most favourable to the plaintiff (which involved the assumption that the solicitor would be able to obtain a “reasonably sympathetic” expert medical opinion, and leading to a finding of 25% of a most extreme case), described the components of the outcome as:
(1) non-economic loss $59,125 (s 151G 25% of a most extreme case);
(2) lump sum for future wage loss of $130,000, based on the differential between workers compensation payments and the higher level that the plaintiff could earn uninjured;
(3) loss of superannuation benefits $10,000;
(4) future home care component as “at best” $40,000.
80 Mr Harrison referred to a range of $5000-$10,000 for future medical expenses.
81 Mr Harrison did at one point in cross examination say that the plaintiff’s prospects were in the order of 40-50% of overcoming the s 151H hurdle. His agreement that the likely outcome was a s 151G finding in the range of $20,000-40,000 ie after the deduction in s 151G(4) (see T97.8-98.24), his view that the plaintiff was unlikely to be assessed as 23.54% or higher as compared to a most extreme case (T93.4) and his view that 25% assessment (T92.12) was “the best that could be hoped for”, and his view set out in [84] below seems to offer a more cautious assessment than prospects of 40-50% would suggest.
82 On the question of recovery under s 151H I think Mr Stanton’s view that as at November 2001 the plaintiff had no prospect whatsoever of recovery under s 151H, whilst perhaps overly pessimistic, was nearer the mark than an assessment of a 40-50% prospect.
83 So far as ss 66 and 67 entitlements are concerned, Mr Harrison estimated the plaintiff as likely to recover $10,000 for that, based on Dr Dilley’s 11% permanent loss of use. Mr Stanton pointed out that 15% loss of use of the right arm below the elbow would equate to $11,250 for s 66, with an amount potentially available for pain and suffering under s 67. The worse the plaintiff’s condition, the more he would be likely to obtain, whether under ss 66, 67 or 151G. A 13% assessment under s 66 would yield $9750 and nothing for s 67 pain and suffering.
84 Mr Harrison recognised the difficulties facing solicitors at that time at T98.1-19:
“… I think I would have told the plaintiff that he should assume that he would be in for potentially quite a difficult battle. There would be a real risk of adverse cost outcomes, much would depend upon the identity of the judge ultimately dealing with the case, there would be offers of compromise, there would be cost agreements, there would be legal processes and distraction, and your Honour it’s certainly not a case where I would put any pressure on the plaintiff to pursue a common law claim but I would have given him the options and some figures and taken him to counsel and got written instructions one way or the other. It was a very difficult time your Honour for solicitors because of the retrospective, in effect, decisions were having to be made about suing or not suing within a much tighter time ban dealing with a lot of cases at the one time so we were kind of on risk management alert.”
85 Mr Harrison summarised his views as (T102.37):
“In summary, good case on liability, difficulties with the thresholds, substantial risks with the second threshold, the case to be determined down the track when more time had passed and a fuller medical and economic picture was available.”
86 The question of what advice ought to have been given prior to November 2001 must be answered by reference to what was then known or ought reasonably have been known at that time.
87 Inherent in the view of Mr Harrison referred to in [85] above was the preference to leaving a decision about whether to launch proceedings at common law until a later time – but the difficulty is that assuming knowledge of the legislative changes coming in November 2001, the solicitor then advising the plaintiff had to give advice that would have important consequences, then, and not later.
88 There was agreement that there were “pros and cons” in the commencement of common law proceedings as against workers compensation proceedings, and that the client would have had to be told of these specifically.
89 Mr Harrison agreed the plaintiff would have to be informed about the risk of having to pay the costs of the defendant (T96.20-34) although the risk on costs would be reduced if the plaintiff was successful on s 151G even though not successful on s 151H. He agreed (T85.55) that if the plaintiff was unsuccessful on his claim for economic loss because he did not overcome the threshold in s 151H he would not lose his entitlement to workers compensation payments, but the solicitor would need to make clear to the plaintiff that if he were only partially successful he may not recover all his costs and the costs shortfall might eat into the monies recovered under s 151G.
90 Mr Harrison agreed that a solicitor would have to advise the plaintiff that if he took the workers compensation path, he would have the advantage that if his hand should worsen “down the track”, a claim could be lodged if and when that occurred (see T98.56-T99.2), whereas by proceeding on the common law track he would, if successful, run the risk that future unforseen or under-anticipated problems would not be the subject of compensation or adequate compensation: T99.
91 I think that as at November 2001, the plaintiff having returned to work full time albeit on light duties, with the further operation having been conducted without worsening (even if it did not improve) the plaintiff’s condition, but knowing that Dr Dilley assessed the impairment as 11% under s 66, Dr Stephenson as 10% and Dr Roth as 15% (a different assessment to that required under s 151G but nevertheless providing some guidance as to its severity), the prospect of the plaintiff overcoming the threshold under s 151H was very limited.
92 Given the agreed significant risk of failure in obtaining s 151H damages and the more limited risk of failure in obtaining s 151G damages, and the relatively modest sum which would be derived by a finding of 20% of a most extreme case, which in my view was an achievable but by no means certain result, I am satisfied that as at 5 June 2001, it was open to Mr Bradstreet to advise against commencing common law proceedings at that point. I think however that Mr Bradstreet had a duty to the plaintiff:
(1) to explain why he had come to that view;
(2) to ensure that the plaintiff understood that the decision as to how to proceed was the plaintiff’s decision irrespective of the solicitor’s own view and recommendations;
(3) to indicate to the plaintiff that the plaintiff needed to make a decision and to do so within a particular period (22 August 2002, being three years from the date of the accident, was the deadline);
(4) to indicate that the further surgery on the hand and its impact was a matter that might affect his views and that the matter should be reviewed a reasonable time after the operation, and encourage the plaintiff to contact him within 8-12 weeks after the operation. Incidentally Mr Bradstreet did say that he knew that if there was any change in the plaintiff’s condition, the plaintiff could come and see him, but I do not think that that is sufficient.
93 I have referred in [92](1) to the need for an explanation. I think a solicitor would need to explain:
(1) that the common law claim required the injury to have led to an impairment of at least 17.6% of a most extreme case if he was to recover any damages for pain and suffering and at least 23.5% of a most extreme case if he was to recover economic loss; and that even though he had a very strong case on liability, and a very limited risk of any finding of contributory negligence, the proceedings would be of no practical use if he did not overcome the thresholds;
(2) that a most extreme case was, by way of example, a quadriplegic/paraplegic or a person who had suffered significant brain injury or extensive burns, and that the assessment of the percentage is one on which judges’ views differ, and that on the medical evidence then available, including that of his treating surgeon, that the 23.5% threshold had little if any prospect of being overcome, and the 15% threshold at least a 50% prospect of being overcome;
(3) that if the plaintiff did not succeed in overcoming either threshold he would almost certainly be ordered to pay SSC’s costs, and that if he succeeded in overcoming the threshold on non-economic loss but not economic loss there would need to be consideration given to costs risks, and that his position would be assisted by an offer of compromise from him, but might be met by an offer of compromise as well;
(4) as part of the advice indicate a range of damages for non-economic loss based on 17% and up to at least 20%, and perhaps even higher as a guide but emphasising that the solicitor by giving those figures was not expressing the view that such figures would be achieved, to give the client an idea of the monetary effect of possible outcomes on this point;
(5) what the likely outcome of claims under ss 66 and 67 would be, and to make a further comparison between the common law claim and the workers compensation claim, ie:
(a) that under a workers compensation claim the plaintiff would not be at risk on costs;
(b) that at common law the court would be making an assessment once and for all for past and future and if the plaintiff overcame the thresholds, he would obtain a judgment in the form of a lump sum, and that the plaintiff could not seek any further amount should his condition worsen – whereas at workers compensation he would only receive workers compensation on a weekly basis for as long as he was incapacitated for pre-injury employment and as a consequence was suffering wage loss (including overtime). The workers compensation proceedings would yield no lump sum for any possible future surgery (although given Dr Dilley’s advice there would be little if anything awarded at common law for that), but would pay for treatment in the future should it become necessary;
(d) that if he were successful in overcoming the threshold for economic loss in s 151H he would lose any entitlement to workers compensation in respect of the hand injury: see s 151B WCA .(c) that by commencing a common law claim he would immediately lose his rights to a workers compensation lump sum under ss 66 and 67 and this would be so even if he abandoned his common law claim later: see s 151A(3)(b) WCA ;
94 In my view, if Mr Bradstreet did give the advice which he claims he did, it was not sufficient to enable the plaintiff to make an informed decision. In Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 the Court of Appeal stressed the need for decisions made to be the subject of adequate advice and the taking of reasonable care to ensure that the advice was understood: at [55], [73], [87], [111] per Tobias JA.
95 It follows that in my view Mr Bradstreet, even if he did give the advice that he says would have been given in accordance with his practice, breached his duty of care owed to the plaintiff.
96 I have discussed the matter as at 5 June 2001. I have indicated that in my view Mr Bradstreet should have advised the plaintiff to contact him after the operation. In my view, Mr Bradstreet had a further obligation imposed on him which was that when he learnt of the proposed changes to the legislation as he says he did (apparently the changes were outlined and introduced within a very short period), he should have contacted the plaintiff and informed him that the changes were coming in, inquired about the operation and its effects, and warned the plaintiff that a failure to commence proceedings by 26 November would in effect mean that common law proceedings could not thereafter be brought.
97 There is nothing to indicate that the surgery led to any worsening of the plaintiff’s condition (as opposed to a lack of improvement) so it does not seem that the failure of Mr Bradstreet to take the further steps referred to in the preceding paragraph that in my view he should have taken affect the position.
Would the plaintiff have accepted Mr Bradstreet’s advice if in sufficient detail?
98 The plaintiff did say that he would have preferred common law proceedings to pursuing his rights through the workers compensation system, even allowing for greater risk because of the chance of obtaining a larger lump sum: T6.26, T9.52-10.11.
99 I received detailed written submissions from Mr Downing and oral submissions from Mr Porthouse. Mr Porthouse submitted that the plaintiff had said he would have chosen the common law route if he had been advised that it was open to him, and that I should accept that evidence. Mr Downing submitted that that evidence should not be accepted for a number of reasons set out in paras 38-43 which I shall set out verbatim but using my own internal numbering:
“(1) First, it is well established that the test of causation is ultimately one to be determined on all of the relevant material and not merely upon the assertion of the plaintiff as to what he or she would have done in hypothetical circumstances. Further, such evidence from plaintiffs may, of itself, carry little weight; see Rosenberg v Percival (2001) 201 CLR 434, at 441–442, 449, 461–462, 485–486 and 504–505. The defendant submits that there is a need to exercise caution in accepting retrospective statements from a plaintiff once the injury he claims he would have averted has in fact occurred. Indeed, it is submitted that such need for caution is the obvious basis of Section 5D(3)(b) of the Civil Liability Act .
(2) Secondly, the defendant submits that when one actually moves beyond the plaintiff’s general statement as to his preference for common law proceedings and focuses upon his response to specific information which would have had to be imparted to him in the course of advising him as to his common law/workers compensation options, the inference should be drawn that, on balance, he would have elected to pursue his rights through the workers compensation system. That is, the defendant submits that when one has regard to all of the individual components of the advice he would have had to receive as to the comparative merits of proceeding at common law or via the workers compensation system, and his response to those matters in cross examination, it leads to the inference that he would on balance have chosen against common law proceedings. In particular, the defendant refers to the following:-
(i) the plaintiff’s agreement that he would have regarded as important advice that there was no risk of a workers compensation claim failing, (20/7/06 T32);
(ii) the plaintiff’s agreement that he would have regarded as important advice that if he pursued his rights through the workers compensation system, it was possible to come back and claim further weekly payments or medical expenses if his hand got worse (20/7/06 T4.16);
(iii) the plaintiff’s agreement that he would have regarded as important advice that if he pursued his rights through the workers compensation system, all of his legal expenses would be paid for by SSC’s insurer, (20/7/06 T4.34);
(iv) the plaintiff’s agreement that he would have regarded as important advice that if he pursued his rights through the workers compensation system, there was no risk that he would have to pay SSC’s legal expenses (20/7/06 T4.55);
(v) the plaintiff’s agreement that he would have been concerned by advice that if he brought common law proceedings, there was a real risk of receiving no damages at all (20/7/06 T7.35);
(vi) the plaintiff’s agreement that he would have been concerned by advice that if he pursued common law proceedings, there was a real risk of having to pay SSC’s costs of up to $10,000 (20/7/06 T8.15 and T10.48);
(vii) the plaintiff’s agreement that he would have regarded as very important advice that if he brought common law proceedings, the most likely outcome was a recovery of between $20,000 and $40,000, with some of those funds being lost in costs and that there was a real risk that he would lose altogether, so that he would recover nothing and have to pay out costs to his own solicitor and SSC’s solicitor, (20/7/06 T14.8 – T15.5);
(viii) the plaintiff’s agreement that he may have been interested in advice that if he brought common law proceedings and succeeded, he would be unable to claim again for economic loss or medical expenses if his condition got worse (20/7/06 T15.51 – T16.38);
(ix) the plaintiff’s agreement that he would consider very carefully advice from his solicitor that he would be better off sticking with his workers compensation rights, (20/7/06 T14.56).
(3) Thirdly, the defendant places particular reliance upon the evidence the plaintiff gave, after repeated questioning, as to what his response would have been, in 2001, to advice that if he brought common law proceedings, there was a real risk that he would recover no damages and also, have to pay out costs of up to $10,000 to SSC. The plaintiff was asked a series of questions on this issue, (20/7/06 T7.47 – T11.9). After he failed to respond to the questions on a number of occasions, he eventually agreed with the proposition that the risk of recovering nothing and having to pay out costs would have been important to him. The following question and answer then occurred:-
Q. Because it is fair to say that in 2001 the last thing you wanted to be doing is actually paying out money to other solicitors either your own or someone else?
A. But if I hear from a solicitor that my case is strong, it’s okay then there is no risk maybe paying all these costs that’s a different situation.
(4) The defendant submits that this answer provides evidence from which it can be inferred that the plaintiff would not have commenced common law proceedings had he been appropriately advised. That is because the plaintiff’s position was in effect that if he had been advised that he had a strong case and no risk of having to pay out costs, then he would have been prepared to take a chance on common law proceedings. However, on the expert evidence from both sides, the proper advice to be provided to the plaintiff was not that there was no risk of losing and paying out costs, but that the risk was very real.
(6) Finally, the defendant relies upon, as part of the relevant material with which to determine whether the plaintiff would have launched common law proceedings, the evidence as to his extreme caution in agreeing to undergo surgery to his wrist and more particularly, his demand for guarantees of outcome before he would go ahead, (T16.40, T38.32 – 38.43, T39.18 and exhibit 1, p60 and pp68-75). The defendant accepts that this evidence has limited weight, in that the plaintiff ultimately underwent the surgery and further, surgical risks are not the same as litigation risks. Nonetheless, it is submitted that the evidence tends to support a finding that in the situation the plaintiff was in as at 2001, where a decision as to how to proceed had to be made before 21 November 2001, he was unlikely to elect to pursue common law proceedings.”(5) Fourthly, the defendant relies upon the plaintiff’s more general evidence that he is a cautious man by nature (T64.8) and not a gambler, (20/7/06 T14.44).
100 So far as [99](1) is concerned, it will be noted that s 5D(3)(b) of the Civil Liability Act 2002 provides “any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest”. It was held in KT v PLG [2006] NSWSC 919 by Simpson J that “statement” included direct evidence in court and not just out of court statements (see [41]-[44]), an approach I would respectfully follow. The defendant, having cross examined the plaintiff at length about what he would have done, did not assert that in those circumstances I should disregard that portion of the plaintiff’s evidence that was not against his interest, but rather points to a line of authority which precedes s 5D which considers evidence of this kind.
101 In Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 it was agreed that the question of what the plaintiff would have done absent the impugned conduct of the defendant, was to be determined by a subjective test, but at 581 Samuels JA (with whom Meagher JA agreed) remarked that:
“It is, of course, true that a patient's evidence about what he or she would have done if told of certain risks may be coloured by the fact that the risks did in fact eventuate; but it is open to a court to disbelieve evidence found to be tainted by hindsight: Manderson, “Following Doctors' Orders: Informed Consent in Australia” (1988) 62 ALJ 430 at 434. Obviously, in endeavouring to ascertain what the plaintiff's response would have been to adequate information had it been conveyed at the appropriate time, a court will be greatly assisted by evidence of the plaintiff's temperament, the course of any prior treatment for the same or a like condition, the nature of the relationship between patient and doctor including pre-eminently, so far as it can be established, the degree of trust reposed in the doctor by the patient. The extent to which the procedure was elective or imposed by circumstantial exigency and the nature and degree of the risk involved will all be matters of considerable importance: see Robertson, “Informed Consent to Medical Treatment” (1981) 97 LQR 102 at 122.”
102 He said that it was essential for the trial judge “to examine with great care the evidence which the appellant gave upon this critical point” and “it was correct for the Judge to take heed, as he did, of the likelihood that the appellant's account of her hypothetical response must be coloured by the catastrophe which the operation brought in its wake”: at 582.
103 Kirby P in dissent said that he agreed with what Samuels JA had written about the causation issue and said this at 560:
“The patient cannot, when the mishap leading to damage and litigation has occurred, determine the answer authoritatively by the response in court to the question of what he or she would have done had only full and proper advice been given. However honest the patient may try to be, self-interest and the knowledge of the misfortunes that have followed the treatment will necessarily colour the patient's response to that question. Nonetheless, the answer remains an important ingredient in the decision by the fact finding tribunal as to what it thinks the patient, subjectively and at the time before operation, would have done if properly and fully advised.”
104 In Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18, the issue of causation and the plaintiff’s response to advice of risk was discussed at 441-442 per Gleeson CJ, at 443 per McHugh J, at 461-462 per Gummow J, at 485-486 per Kirby P (who referred to Ellis) and at 501-502 per Callinan J. Two matters which emerge from the discussion are that the natural tendency of a plaintiff to assert that he or she would have taken a different course must be recognised, and that although the relevant question is what would this plaintiff have done, matters relevant to an objective assessment, particularly the remoteness of the risk, the confidence reposed in the practitioner’s advice, and whether or not there were strong reasons in favour of pursuing the course of action in fact taken need to be taken into account: per Gleeson CJ at [14] and [16], per McHugh J at [89], per Kirby J at [155]-[156].
105 So far as [99](6) is concerned, I do not think that one can extrapolate from caution about medical operations to caution about legal proceedings, although it is some evidence that in a general sense the plaintiff is a cautious person.
106 So far as [99](5) is concerned, I think this is of some relevance but I would not place too much weight on it, even leaving aside the fact that the plaintiff has embarked upon this litigation. No submission was made that his embarking on this litigation is relevant to the question at issue and of course what he was told about its outcome was not and could not be explored by either party.
107 I take into account that the plaintiff could not have been happy with $16,875 offered to him by Zurich, because he did not accept it. Realistically the only way in which he was going to improve his prospects of overcoming the threshold at common law, or indeed obtaining a better result under ss 66 and 67 of the WCA, was if there was medical evidence pointing to a higher assessment than that which any of Dr Roth, Dr Stephenson or Dr Dilley were prepared to give, as Mr Woolley pointed out to the plaintiff several years later. Although Mr Bradstreet did not arrange for Dr Mahoney to provide a report at the relevant time, when he did do so the plaintiff was not willing to pay for it, and I think it can be inferred that he would not have been willing to pay for it in 2001 had he been asked to do so. Mr Bradstreet was not obliged to fund the cost of the report himself, even though as matters transpired the report was sent to the plaintiff after Mr Bradstreet sought payment and the plaintiff had refused to pay.
108 I accept the force of the defendant’s submissions referred to in [99](2), (3) and (4).
109 Having regard to:
(1) the need for care in assessing the plaintiff’s assertion five years later that he would have taken a different course when on his own evidence he reposed confidence in the solicitor’s advice, which, for good reason (although insufficiently explained) counselled against that course;
(2) the qualifications that were established to exist in relation to that assertion; and particularly his desire to avoid risk;
(3) the risks to the plaintiff of failure in obtaining a lump sum and the undoubted benefits of retaining workers compensation rights;
(4) the fine tolerances represented by the percentages 18%-22% ($3244-$41,076), the very limited prospect of recovery beyond at best $41,076 in contrast to the smaller s 66 and s 67 amounts ($9750 was likely but perhaps could be higher but unlikely to be in excess of $20,000), and the fact that although there was a realistic prospect of recovering an amount under s 151G, there existed risk and consequences even in relation to recovering that differential. The worst case and not fanciful scenario was that the plaintiff would receive nothing and have an order made against him that he pay SSC’s costs;
I am not persuaded that the plaintiff would, if appropriately advised, have been willing to himself expend the money for the filing fee, hearing allocation fee and other experts’ reports and to incur the risks of a costs order against him should he fail to achieve either threshold. It follows that in my view, the plaintiff has not established on the balance of probabilities that had adequate advice been proffered by Mr Bradstreet on or prior to 26 November 2001, he would have given instructions to commence proceedings.
The Lost Chance
110 Although not necessary for me to do so, given the conclusion which I have reached, I shall deal with the further issues against the possibility that I am in error in that conclusion.
111 The plaintiff claims that had he been wholly successful he would have recovered $282,742 plus interest, but allowing for a 70% chance of success he would have recovered $197,919, plus interest to the plaintiff’s proposed notional date of judgment of $49,479, ie an amount of $247,398. The plaintiff accepted that allowance would need to be made for the prospect of early settlement, Mr Harrison indicating that a settlement of between 50 and 75% of the best outcome would be something he would have been prepared to recommend; 50-75% of $236,450 (a revised figure provided by Mr Porthouse in submissions) is $118,225-$177,337.50. These figures were based on a notional trial date of August 2004.
112 There were several points of disagreement about what the court needed to take into account. Part of this centred around lack of agreement of when the case would have been heard, had it been brought to trial. Each side had material that was helpful to it the later the hearing – the defendant wanted to be able to point to the plaintiff’s back injury which he suffered in August 2003. The plaintiff wanted to be able to rely on the fact that in the first half of 2004 he was referred to a psychiatrist who issued a report that would, it was contended, have been helpful to the plaintiff. The plaintiff also argued that the fact that the plaintiff only went to see someone in 2004 did not preclude the likelihood that had his case been fixed for hearing in 2003 he would have obtained such a report then. Mr Kennedy, objecting to evidence of the back injury, contended that “18 months or something like that” would have been the likely delay between filing and hearing (see T66.16), but he later moved away from that and Mr Porthouse, as I have noted, asserted that August 2004 was the appropriate date. Mr Stanton said two years from November 2001 ie November 2003 was appropriate. I think that 18 months from November 2001 is a realistic estimate and I would adopt June 2003 as the notional trial date, being 19 months after November 2001. There was an issue about whether reports unhelpful to the plaintiff’s claim about restrictions on use of his hand would have been available as at the notional date of trial (June 2003), and I think it is likely that they would have been, but I pay no regard to a claimed back condition or psychiatric condition, both of which manifested themselves after the notional date of trial. I assume that otherwise the evidence that was before me predating July 2003 would have been before the court in June 2003.
113 In Nikolaou v Papasavas Phillips & Co (No 2) (1989) 166 CLR 394, Wilson, Dawson, Toohey and Gummow JJ set out what the trial judge must do in cases involving a failure to bring a claim within time:
“Nevertheless, the fact remains that the trial judge assessed damages on a wrong footing. For reasons which are set out in some detail in Johnson v Perez [(1988) 166 CLR 351], his Honour should first have focused on Mr Nikolaou's situation when his claim for damages for personal injuries became statute barred. He should have assessed damages by reference to the loss at that date of the right to claim damages. That loss would ordinarily be quantified by the trial judge taking a broad brush approach to the several matters that in a particular case may require to be resolved the likely date when in the absence of the negligence of the solicitor the action would have come to trial, the evidence that would or should have been available to the plaintiff at that time, the relevant principles of law then governing the assessment of damages, the question of contributory negligence, and (an issue which would not be a problem in the present case) the prospects of any judgment given in favour of the plaintiff being satisfied in order to arrive at a figure representing the loss suffered by the plaintiff when his action against the defendant was dismissed. In accordance with the reasons of Wilson, Toohey and Gaudron JJ in Johnson v Perez the assessment of that loss will have regard to the prospect that Mr Nikolaou would have received statutory interest against the Incorporated Nominal Defendant for the period between the notional date of the issue of the writ against that body and the date on which the cause of action against the solicitors arose.”
114 In Phillips v Bisley (unreported, NSWCA, 18/03/1997, BC9700720), Mason P (with whom Meagher JA and Dunford AJA concurred) referred to the difference in approach of the courts depending on whether there is any dispute as to whether what the plaintiff has lost is something of value. Where the case is not clearly one where the plaintiff would have succeeded (as in Johnson v Perez (1988) 166 CLR 351) or clearly one where the plaintiff would not have succeeded then the court must determine whether the plaintiff has lost some right of value and the lost chance has value even if (as Mr Porthouse submitted) the court on reviewing the facts concludes that the plaintiff’s prospects of success were less than 50% (see Phillips v Bisley at 4, referring to Johnson v Perez; Kitchen v Royal Air Forces Association [1958] 2 All ER 241 at 250-251; [1958] 1 WLR 563 at 574-5; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 119; Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER 907 at 916, 928.
115 There is the following passage in Phillips v Bisley:
“Difficult and elusive though the distinction may be, the court trying the issue of the lawyer's negligence must proceed on the evidence before it. This involves considering the factors mentioned in the passage quoted from Nikolaou, including ‘the evidence that would or should have been available to the plaintiff at that time’. … It also involves looking at the likely response of the other party or parties in the lost proceedings (ie those which would, but for the lawyer's negligence, have been prosecuted in a timely way). Among other things this requires the court trying the negligence claim to make due allowance for the fact that a less than well informed or overly cautious lawyer for the defendant faced with a claim in the lost proceedings might have made a valuable settlement offer. But what the trial judge cannot do, in my opinion, is shut his or her eyes to the evidence showing the information that was known to or was reasonably obtainable by all litigants in the lost proceedings pointing towards an objective assessment of the plaintiff's prospects of success in the lost action.”
116 Cheney v Duncan (2001) 34 MVR 28; [2001] NSWCA 197 reiterates the principle that an action for damages against a solicitor for negligently failing to commence proceedings for a personal injury claim within the statutory period “is a claim for damages for loss of a chance of recovering damages for those personal injuries”: at [27] per Ipp AJA (Handley JA and Meagher JA agreeing) and that generally, the right of action in negligence against the solicitors accrues at the time the action becomes statute barred and damages are to be assessed at that time: at [28]. See also Wilson v Rigg (2002) 36 MVR 451; [2002] NSWCA 246 at [35]; Walmsley v Cosentino [2001] NSWCA 403 at [46] and Argyropoulos v Layton (2002) 36 MVR 432; [2002] NSWCA 183 at [5].
117 Proceeding on the basis (contrary to my conclusion) that the plaintiff would have commenced common law proceedings, I think that it is likely that strenuous efforts would have been made to resolve the matter by a prudent solicitor acting on behalf of the plaintiff, since he would be aware that his client was unlikely to succeed in overcoming the threshold in s 151H, and that if he did but obtained a low figure for economic loss based on evidence that he would be likely to continue in employment with SSC, it would be particularly disadvantageous because it would lead to loss of future workers compensation entitlements should the plaintiff suffer an unexpected worsening of his condition.
118 Even if the plaintiff’s prospects of recovering between $22,000 and 40,000 for s 151G were good, but the plaintiff’s prospects of overcoming the s 151H threshold were significantly less than 50%, it would not be appropriate in my view, to advise the client to settle only for 50-75% of the most favourable total outcome. The plaintiff’s table of damages (which I have had marked as “MFI1”) uses a date in August 2004, well beyond what I regard as the notional trial date and it rolls up together the s 151G risks and the s 151H risks in a way that does not reflect the very different risks relevant to each section that were reflected in the evidence of both experts (notwithstanding their disagreement as to the precise characterisation of those risks).
119 The plaintiff did (effectively) lose his right to bring a common law claim but he has not lost his right to claim workers compensation, nor his entitlement to weekly payments and future medical costs, if any, as a consequence of the injury to his right hand. Given that unlike the usual lost litigation case where the injured plaintiff has no rights, in this case the plaintiff, as at June 2003 (and even as at today), has retained valuable rights against his employer arising out of the accident. In my view it is appropriate to consider what the plaintiff lost by reason of his having not launched common law proceedings as at 26 November 2001 in comparison to what he retained by not commencing and hence not making the election referred to in s 151A, and to do so having regard to the elements identified by Mr Harrison (and a further element not referred to by him).
120 What the plaintiff lost was the chance of achieving:
(1) a better result under s 151G for non-economic loss than that which he would obtain under ss 66 and 67;
(2) a result under s 151H that in practical terms would compensate him for:
(a) the past differential as at the notional date of trial between what he had been paid both as wages and pursuant to workers compensation provisions and the extra money he would have earned but for the injury to his right hand;
(b) the future differential between what he had been paid pursuant to workers compensation provisions, and the extra money he would have obtained, which would appear to be overtime;
(c) superannuation benefits in respect of any amount in (a) or (b);
(d) the difference between an amount allowed for medical expenses that he might yet incur and the amount he would receive under the WCA ;
(f) an amount to compensate him for his reduced earning capacity on the open labour market: see Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5.(e) an amount for domestic assistance around the home;
121 The plaintiff was a manual worker with limited skills in English – he did say that he did not speak English (T53.30) and was reluctant to agree that he could readily communicate at work but he initially answered some questions without the need for interpretation (see T21-40). Dr Dilley initially spoke to him in English but felt that an interpreter would be desirable: see p 68 Exhibit “1”.
122 Dealing with [120](1), non-economic loss, I would assess the plaintiff as having a 70% prospect of recovery of $22,160 (ie based on a finding of 20% of a most extreme case) and at best a 20% prospect of recovery of finding that his condition represented a 25% of a most extreme case. Thus I would allow $15,512 for the loss of the first chance and 20% of the differential between $59,112 and $22,160 ie 20% of $36,952 ie $7390.40 a total of $22,902, which I would round up to $27,000 to take into account the possibility of success of more than 20% but less than 23.5%. From this would need to be deducted the likely recovery under ss 66 and 67 of the WCA. Although there is no direct correlation between the percentage to be determined under s 66 and that under s 151G I think that there is likely to be a greater amount under s 66 where the assessment would have been at least 23.5% of a most extreme case. It was contended in submissions on behalf of Mr Bradstreet that a figure of between $25,000 to $30,000 for ss 66 and 67 should be allowed. That I think is too high – I would use the figure referred to in [83] above, ie $9750, but increase it to take into account the prospect of an increased recovery under s 66 and s 67 commensurate with increased recovery at common law – reflected in the $26,000 calculated above, ie $13,000. That amount would need to be deducted from the $27,000 leaving a net $14,000.
123 So far as (2)(a) is concerned, Mr Harrison approached the matter on the basis that the plaintiff had lost nothing because all of his lost wages had been paid: see p 4 Exhibit “B”. This does not take into account past overtime loss, which I shall refer to below.
124 So far as (2)(b) is concerned, Mr Harrison suggested a figure of $130,000 (see Exhibit “B”) based on a $200 differential but noted that “that amount would need to be contrasted with the plaintiff’s ongoing rights to compensation benefits”. The point reflects one made by Mr Stanton that (see p 19 Exhibit “1”):
It would be unlikely in the circumstances of this case that the plaintiff’s ongoing economic loss would exceed the statutory maximum. In other words, the plaintiff would be properly compensated to the full extent of any economic loss he was suffering in a light duty position under section 40 of that Act.”“A solicitor acting reasonably would therefore need to turn his mind to the fact that even if the plaintiff was suffering an economic loss on an ongoing basis, that loss was compensable under section 40 of the Worker’s Compensation Act 1987 .
125 Mr Stanton’s view on that point was not challenged. No evidence was led to show that as at 2003 the plaintiff was earning less per week than he had been before the accident. No evidence was led from the plaintiff about his pre-accident overtime or his willingness and ability, but for the accident, to work overtime. I have referred to a note made by Mr Bradstreet of his conference with the plaintiff, which says “maybe 13 hours overtime” – at $19.10 per hour this would equate to $248.30 a week. There being no evidence led from the plaintiff to confirm his pre-accident overtime or his inability to perform overtime in the work he was doing, I do not think the plaintiff has laid a foundation for such a claim, but in any event the plaintiff would have rights under workers compensation provisions to overtime, provided he worked overtime before the accident, and it is not clear that he is worse off by not having obtained a judgment covering this head.
126 So far as (2)(c) is concerned, there was no argument that the plaintiff (if he overcame the s 151H threshold) would obtain an amount for that but the calculation of the $10,000 was not explained – Mr Stanton set out the relevant figures, 8% on past gross economic loss and 9% for future. The plaintiff would be entitled to that figure to be applied to whatever amount, if any, was established to have been lost for the future and then discounted to allow for the limited prospect of recovery.
127 So far as (2)(d) is concerned, it was agreed that the plaintiff would be unlikely to obtain much at all for this head at common law since the expert opinion was that he would not benefit from any further operation. On the other hand the plaintiff would be able to have all expenses paid under workers compensation provisions should there be an unexpected adverse development – so this advantage (of not commencing common law proceedings) would need to be given some weight. I would not allow anything for the loss of the chance of recovery under this head.
128 There was evidence which tended to undercut the plaintiff’s assertion of ongoing significant disabilities but his inability to use a mower and whipper-snipper were not challenged. I think that $15,000 would be a reasonable figure to allow for future limited domestic assistance (ie (e)), ie mowing, servicing of the car and the like, but it would need to be discounted by 80% ie to $3000.
129 So far as (f) is concerned I think that a $50,000 cushion (after allowing 15% for vicissitudes) would be a realistic figure but that would need to be discounted by 80% to take into account the threshold in s 151H.
130 It follows then that the lost chance discounted and after deductions would comprise the following elements:
(a) $14,000 for non-economic loss;
(c) $3000 future help;(b) $10,000 cushion;
Total: $27,000.
131 It was noted in the Walmsley, Abadee and Zipser text “Professional Liability in Australia”, LawBook Co, (2002), that leaving aside cases in which liability had been admitted “No matter how strong a plaintiff’s case may be, the court should generally … also make a discount for the possibility of failure (or settlement)”, citing Feletti v Kontoulas [2000] NSWCA 59 at [65]; Westcoast Clothing Co Pty Ltd v Freehill, Hollingdale & Page (a firm) (1999) Aust Torts Reports 81-518 at [195] and Roberts v Cashman [2000] NSWSC 770.
132 The figure of $27,000 does not take into account the risk of costs, which risk was avoided by not taking common law proceedings, nor does it allow any discount for the possibility that liability might not be established or that a finding of contributory negligence might be made if further investigation had been made of the precise circumstances of the accident, but nor does it take into account the possibility that a more advantageous settlement might have been achieved than the evidence suggested.
133 Taking into account these matters, which I think largely offset each other, I would increase the amount assessed to $30,000.
Conclusion
134 For the reasons given, I am of the view that the plaintiff has not established that he has lost a chance and therefore there will be judgment for the defendant. I will hear the parties on the issue of costs.
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