Hamze v Bradstreet

Case [2007] NSWDC 54
CITATION: Hamze v Bradstreet [2007] NSWDC 54
HEARING DATE(S): 27, 28 June, 20 July, 6-7 December 2006
 
JUDGMENT DATE: 
5 April 2007
JURISDICTION: 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 5D
CASES 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 246
PARTIES: 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).…

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Hamze v Bradstreet [2007] NSWDC 54
Case
[2007] NSWDC 54
Decision Date

CaseChat Overview and Summary

Hamze v Bradstreet is a case that involves a plaintiff who suffered an injury in a workplace accident. The plaintiff sought damages under common law, but the proceedings were not initiated before 27 November 2001, a date that saw legislative changes substantially increase the difficulty of recovering damages. The central issue before the court was whether the plaintiff had been given adequate legal advice prior to the legislative changes, and if the advice was sufficient. Additionally, the court had to determine whether the plaintiff had lost a chance of recovering damages due to the legislative changes, and if so, to what extent.

The court's task was to assess the adequacy of the legal advice provided to the plaintiff and whether this advice was sufficient to enable the plaintiff to initiate proceedings within the required timeframe. Furthermore, the court needed to evaluate if the legislative changes had deprived the plaintiff of a chance of recovering damages, and if that chance was quantifiable. The court examined the evidence presented regarding the advice given, the timeline of events, and the impact of the legislative changes on the plaintiff's ability to recover damages.

In its reasoning, the court determined that the plaintiff had not established that they had lost a chance of recovering damages due to the legislative changes. The court found that the legal advice given was sufficient and that the plaintiff had not acted with the requisite diligence in pursuing their claim. The court concluded that the plaintiff had not demonstrated a loss of chance and, as a result, the judgment would be in favour of the defendant. The court also noted that it would hear the parties on the issue of costs.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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