Hatzigeorgiou v Baker - [1999] NSWSC 134

CITATION: Hatzigeorgiou v Baker [1999] NSWSC 134

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 11670/90

HEARING DATE(S): 15 February 1999-24 February 1999

JUDGMENT DATE:
3 March 1999

PARTIES :

Milton Hatzigeorgiou and Elias Hatzigeorgiou, Executors in the Estate of the Late Con Hatzigeorgiou (Plaintiffs)
Warwick Baker (Defendant)

JUDGMENT OF: Studdert J

COUNSEL : A. Howen/K. Hawes (Plaintiffs)
R. Kaye (Defendant)

SOLICITORS: Photios Vouroudis & Co (Plaintiffs)
Mallesons Stephen Jaques (Defendant)

CATCHWORDS: NEGLIGENCE; solicitor and client; Alternative rights of client to sue at common law and to recover workers' compensation benefits; limit to common law damages insurance cover under statutory workers' compensation policy; whether appropriate advice given; whether client would have acted on further advice; responsibility for delay.; DAMAGES; assessment by reference to delay.

ACTS CITED: Law Reform (Miscellaneous Provisions) Act
1944
Workers' Compensation Act
Legal Services Commission Act
Supreme Court Act

DECISION: See para 110

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
STUDDERT J
Wednesday 3 March 1999
11670/90 MILTON HATZIGEORGIOU AND ELIAS HATZIGEORGIOU, EXECUTORS IN THE ESTATE OF THE LATE CON HATZIGEORGIOU v WARWICK BAKER
JUDGMENT
1 HIS HONOUR: In proceedings commenced in 1990 the late Con Hatzigeorgiou (to whom I shall refer in this judgment as “the deceased”) sued Warwick Baker. During his lifetime the deceased engaged the services of the defendant as his solicitor, and the defendant acted for him for some twelve years up until November 1989. Central to the cause now before this Court is the allegation that the defendant failed to exercise due care in the discharge of his professional responsibilities towards the deceased.
2 When he began these proceedings the deceased was unrepresented. Apparently he prepared the statement of claim which was filed and this document was plainly defective in many respects. Following the death of the deceased on 3 November 1993, the plaintiffs Elias Hatzigeorgiou and Milton Hatzigeorgiou assumed the conduct of the cause as plaintiffs. The statement of claim, even in its amended form, is defective and it contains no assertion to this effect, but presumably the claim has been pursued by the plaintiffs as executors of the estate of the deceased and pursuant to the Law Reform (Miscellaneous Provisions) Act, 1944. No point was taken by the defendant as to the form of the pleading before this Court and the hearing proceeded upon the basis I have indicated.
3 The amended statement of claim filed by the solicitors for the executors recast the allegations of negligence to be relied upon and when the hearing began Mr Howen of counsel, for the plaintiffs, presented yet further amended particulars of negligence and these were the focus of the trial as it proceeded.
The deceased sustains injury at work
4 As at 8 August 1977 the deceased was employed as an apprentice panel beater by Nickolas Koumandakis and Nickolasi Petrou, trading as KNP Smash Repairs (“the employers”). On that date the deceased sustained burn injuries at the employers’ panel beating shop after paint thinners were spilt on him and…

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 Hatzigeorgiou v Baker

Details

AGLC: Hatzigeorgiou v Baker [1999] NSWSC 134
Case: [1999] NSWSC 134
Decision Date: 3 March 1999

CaseChat Overview and Summary

The case of Hatzigeorgiou v Baker was heard by the Supreme Court of South Australia. The plaintiff, Hatzigeorgiou, sought to recover damages from the defendant, Baker, a solicitor who had acted on behalf of Hatzigeorgiou in a personal injury claim. Hatzigeorgiou argued that Baker was negligent in his representation and that this negligence resulted in a delay in the settlement of the personal injury claim, leading to a reduction in the damages recoverable. The dispute centred on the extent to which Baker's negligence caused the delay, the quantum of damages resulting from that delay, and the availability of common law remedies alongside workers' compensation benefits.

The legal issues before the court included whether Baker had provided appropriate advice to Hatzigeorgiou, whether Hatzigeorgiou would have acted on further advice, and the extent of Baker's responsibility for the delay. The court also needed to determine whether the common law damages insurance cover under the statutory workers' compensation policy applied and the appropriate method for assessing damages by reference to the delay.

The court found that Baker had not provided appropriate advice, particularly regarding the potential for further advice to be acted upon by Hatzigeorgiou. The court held that Baker's negligence was a significant factor in the delay of the settlement, and the delay had resulted in a quantifiable reduction in the damages recoverable. The court further found that the statutory workers' compensation policy's common law damages insurance cover was applicable in this case. The assessment of damages was made by reference to the delay, and the court awarded damages to Hatzigeorgiou for the period of delay caused by Baker's negligence. The court concluded that Hatzigeorgiou was entitled to recover damages from Baker for the negligence that led to the delay in settling the personal injury claim.

Orders