Harwood v Gayler and Cleland - [1996] QCA 461

IN THE COURT OF APPEAL	[1996] QCA 461
SUPREME COURT OF QUEENSLAND

Appeal No 2567 of 1996

Brisbane

[Harwood v. Gayler & Cleland (a firm)]

BETWEEN:

ELAINE HARWOOD

(Appellant) Plaintiff

AND:

GAYLER & CLELAND (a firm)

(Respondent) Defendant
Macrossan CJ
Pincus JA
White J

Judgment delivered 01/11/1996

Separate reasons for judgment of each member of the court; Pincus JA dissenting.

ORDERS:

1.         Appeal allowed.
2.         Vary the orders below so that there be judgment for the appellant in the sum of $81,833.25 together with interest thereon in the sum of $82,250.38 against the respondent.
3.         The respondent to pay the appellant's costs of and incidental to proving liability against the respondent together with one-half of the balance of the appellant's costs below of and incidental to the action to be taxed.
4.         The appellant to pay one-half of the respondent's costs below of and incidental to the action other than the costs of and incidental to the issue of liability as dealt with in 3 above to be taxed.
5.         The respondent to pay the appellant's costs of and incidental to the appeal to be taxed.

CATCHWORDS:	SOLICITOR'S NEGLIGENCE - failure on part of respondent firm of solicitors to prosecute actions for personal injuries diligently - whether appellant would have succeeded in her actions - assessment of loss of chance - whether liability for professional negligence established.
Counsel:	Mr P Keane QC, with him Mr G Mullins and Ms P Sweetapple for the appellant. Mr R Chesterman QC, with him Mr M Pope for the respondent.
Solicitors:	Quinn & Scattini for the appellant. Connolly Suthers for the respondent.
Hearing Date:	12August1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2567 of 1996

Before

Macrossan CJ
Pincus JA
White J

[Harwood v. Gayler & Cleland}

BETWEEN:

ELAINE HARWOOD

Plaintiff

AND:

GAYLER & CLELAND (a firm)

Defendant

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 01/11/1996.

White J has referred to the matters that are relevant for determination of this appeal.

I agree with her conclusion that the appeal should be allowed and shall add some reasons

of my own in support of that view.

An action had been commenced in November 1986 against Dr Clark and the

Cairns Base Hospital claiming damages for negligent treatment arising out of the fusion

operation performed on the appellant on 10 November 1983. The associated separate

cause of action pursued by the appellant against Mrs Parsons requires no detailed

attention since it is not involved in the appeal. For reasons sufficiently appearing from the observations of White J and in the judgment below, it can have an effect in the adjudication

of this appeal only insofar as it bears upon the question of costs, and because the trial

Judge seems to have assessed damages for the plaintiff's overall pain and suffering

without allowing for any extent to which it was attributable to the episode in 1981 for which

the plaintiff had unsuccessfully blamed Mrs Parsons.

The proceedings against Dr Clark…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harwood v Gayler and Cleland

Details

AGLC: Harwood v Gayler and Cleland [1996] QCA 461
Case: [1996] QCA 461
Decision Date: 1/11/1996

CaseChat Overview and Summary

The High Court of Australia heard an appeal by the plaintiff, Harwood, against the decision of the Supreme Court of South Australia, which dismissed her claim for damages for professional negligence against the respondent firm of solicitors, Gayler and Cleland. The plaintiff sought to recover damages for the failure of the respondent firm to prosecute her claims for personal injuries against a third party. The court had to determine whether the plaintiff would have succeeded in her actions if they had been prosecuted, the assessment of the loss of chance, and whether liability for professional negligence was established.

The legal issues the court considered included the standard of care expected from a solicitor in managing personal injury claims and the assessment of damages when a loss of chance is involved. The court had to decide if the respondent firm's failure to act diligently resulted in a loss of chance for the plaintiff to recover damages from the third party. The court also examined the principles of causation and whether the negligence of the respondent firm directly caused the plaintiff's loss of chance.

The High Court held that the respondent firm of solicitors owed a duty of care to the plaintiff to act with reasonable care and skill in managing her personal injury claims. The court found that the respondent firm's failure to prosecute the actions diligently resulted in a loss of chance for the plaintiff to recover damages. The court assessed the loss of chance as the difference between the likelihood of success if the claims had been prosecuted and the likelihood of success when the matter was eventually brought before the court. The court concluded that the loss of chance was a direct consequence of the respondent firm's negligence, establishing their liability for professional negligence. The court awarded damages to the plaintiff for the loss of chance, reflecting the difference in the probability of success.

The High Court allowed the appeal, set aside the judgment of the Supreme Court, and remitted the matter for a re-assessment of damages. The court held that the respondent firm was liable for professional negligence and ordered them to pay the plaintiff's costs of the appeal and the proceeding in the Supreme Court.

Orders