Hancock v Arnold; Dodd v Arnold

In *Hancock v Arnold; Dodd v Arnold*, the plaintiffs, who had suffered injuries in a motor vehicle accident, brought proceedings against their former legal representatives, a solicitor and a barrister. The dispute concerned allegations that the legal representatives breached their duty of care by failing to adequately advise the plaintiffs about pursuing a common law damages claim under the *Motor Accidents Act 1988* (NSW), in addition to their workers' compensation claim. The plaintiffs alleged that this failure resulted in them losing the opportunity to pursue a potentially more beneficial claim. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the solicitor and barrister breached their duty of care to the plaintiffs by failing to provide comprehensive advice regarding the differences between a common law damages claim and a workers' compensation claim, particularly concerning potential entitlements for superannuation, future out-of-pocket expenses, and future economic loss. The court also had to determine whether any such failure to advise caused loss to the plaintiffs, and whether there was an implied term in the retainer requiring definitive advice by a specific date, thereby establishing an obligation to provide timely advice.

The Court of Appeal considered the provisions of sections 43 and 43A of the *Motor Accidents Act 1988* (NSW) and section 151A of the *Workers Compensation Act 1987* (NSW) in assessing the potential benefits of a common law damages claim compared to a workers' compensation claim. The court reasoned that the legal representatives had a duty to advise their clients on all available avenues of recovery and the relative advantages and disadvantages of each. The failure to provide adequate advice on the potential for a common law damages claim, which could have yielded greater compensation, constituted a breach of the duty of care.

In relation to the appeal by the solicitors, the Court of Appeal allowed the appeal and set aside the orders made in the Common Law Division on 24 August 2007.