John Orford v Qi Ying He

[2002] NSWCA 152

CITATION:	John Orford v Qi Ying He [2002] NSWCA 152
FILE NUMBER(S):	CA 40072/01
HEARING DATE(S):	21 November 2001
JUDGMENT DATE:	23 May 2002
PARTIES :	John Orford (Appellant) Qi Ying He (Respondent)
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 2; Brownie AJA at 58

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	2309/98
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

COUNSEL:	Appellant: M Walton SC Respondent: M Aldridge SC, P Khandhar
SOLICITORS:	Appellant: Dibbs Barker Gosling Respondent: Brydens Law Office
CATCHWORDS:	Limitation period - Motor Accident Act - Assessment of damages - Loss of a chance - Raising new issues on appeal.
LEGISLATION CITED:	Motor Accident Act 1988 (NSW)
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Coulton v Holcombe (1986) 162 CLR 1 Devries v Australia National Railways Commission (1993) 177 CLR 472 Goldspar Australia Pty Ltd v The Council of the City of Sydney [2001] NSWCA 246 Johnson v Perez (1988) 166 CLR 351 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Nikolaou v Papasaves & Co (1988) 166 CLR 394 O'Brien v Komesaroff (1982) 150 CLR 310 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
DECISION:	See paragraph 57

CA 40072/01
DC 2309/98
SHELLER JA
BEAZLEY JA
BROWNIE AJA
Thursday, 23 May 2002

JOHN ORFORD v QI YING HE

FACTS

The respondent was injured whilst a passenger in a bus. The appellant, a solicitor was found by Dodd DCJ to have breached the duty of care he owed to the respondent in that he failed to commence proceedings under the Motor Accident Act 1988 (NSW) within the time prescribed by the Act. His Honour held that had the proceedings been commenced within time it would have resulted in a verdict in the respondent’s favour.

The appellant raised two main arguments on appeal. First, that his Honour erred in finding that the scope of the retainer extended to commencing proceedings for damages under the Motor Accidents Act . Secondly, that his Honour erred in the assessment of damages. In particular it was submitted that his Honour was required to assess damages on the basis of a loss of a chance in accordance with the principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. In advancing the loss of a chance argument the appellant made an application to raise two issues on appeal which were not raised before the trial judge.

HELD

per Beazley JA (Sheller JA and Brownie AJA agreeing)

(i) There was no error in the trial judge’s findings as to the scope of the appellant’s retainer. Furthermore, the appellant was unable to point to any evidence of an appropriate quality to successfully challenge his Honour’s credit finding: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472.

(ii) The appellant’s application to raise two further issues on appeal regarding the trial judge’s approach to the assessment of damages was rejected. The arguments did not involve a discrete point of law, they involved factual issues and considerations of a discretionary nature which were properly to be determined at trial: Coulton v Holcombe (1986) 162 CLR 1.

(iii) There was no error in the trial judge’s assessment of damages. A discount to the respondent’s damages was only required where there was some uncertainty as to whether the claim would have succeeded. In this case there was no uncertainty: Nikolaou v Papasavas & Co (1988) 166 CLR 394, Johnson v Perez (1988) 166 CLR 351.

ORDERS

Appeal dismissed with costs.

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CA 40072/01
DC 2309/98
SHELLER JA
BEAZLEY JA
BROWNIE AJA


Thursday, 23 May 2002

JOHN ORFORD v QI YING HE

JUDGMENT

1 SHELLER JA: I agree with Beazley JA.

2 BEAZLEY JA: The appellant, a solicitor, was held by Dodd DCJ to have breached the duty of care he owed to his client, the respondent, in that he failed to commence proceedings under the Motor Accidents Act 1988 (NSW) within the time prescribed by that Act. His Honour held that, had those proceedings been commenced they would have resulted in a verdict in the respondent’s favour of $271,403. His Honour thus gave a verdict and judgment for this amount plus interest in the total sum of $346,038.00. The appellant has appealed both against the finding on liability and the quantum of damages.

3 In his written submissions filed in support of the appeal, the appellant raised four main issues. First, it was contended that his Honour erred in finding that the scope of the retainer extended to commencing proceedings for damages under the Motor Accidents Act. Secondly, it was submitted that if there was a breach of duty that breach was not causative of the respondent’s loss. Thirdly, it was submitted that his Honour erred in the assessment of damages. In particular it was submitted that his Honour was required to assess damages on the basis of a loss of a chance in accordance with the principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. Finally, it was alleged that his Honour had failed to give adequate reasons for his decision.

4 The last ground, that is the alleged failure to give reasons, can be disposed of immediately. During the course of oral argument on the appeal, senior counsel stated that it was not the appellant’s strongest ground and although not abandoned, there was nothing which could be usefully added to the appellant’s written submissions. As the written submissions merely asserted that the trial judge did not give sufficient reasons for rejecting the appellant’s evidence it is not necessary for this Court to expound on the ground before dismissing it. The trial judge clearly stated why he preferred the respondent’s evidence over that of the appellant’s. His reasons for doing so were adequate and I refer to them more fully when considering the first ground of appeal, which essentially involves an attack on his Honour’s credit findings.

Scope of Retainer and Breach of Duty

5 The respondent was injured on 2 August 1990 whilst a passenger in a bus on a journey home from work when the bus, having started, stopped suddenly, causing the respondent to hit her back on the driver’s ticket selling table, resulting in her falling to the floor. She immediately complained to the bus driver that her back was sore. She attended hospital later that night because of her sore back.

6 The respondent went to work the next day. At that time she was employed as a nursing assistant in a nursing home. She had difficulty lifting patients. She took the next day off and then returned to work but left her job about a week to 10 days after the accident, because her back was very painful and she could not do her work.

7 An MRI scan taken on 26 September 1990 revealed that the respondent had “a gross disc protrusion postero-laterally to the left side at the L4/5 level, indenting the distal sac and displacing the L5 nerve root on the left [side]”.

8 The respondent lodged a claim for workers compensation on 14 September 1990. She received weekly payments of compensation and her medical expenses were paid.

9 In May 1991, the respondent consulted Dr Y Kai Lee when her back was very sore and there had been no improvement in her condition. In June 1991, the respondent filled out a motor accident claim form with assistance from a friend. On 2 October 1991, the respondent consulted Mr Bill Mason, of Masons solicitors. She gave him the motor accident claim form. Mr Mason advised her he would make two claims for her – one for workers compensation and one under the motor accidents legislation.

10 Masons lodged the motor accident claim form with the insurer Mercantile Mutual on 19 March 1992 and gave an explanation for the delay (principally relating to the respondent’s lack of English and lack of understanding of her obligations under the Motor Accidents Act), indicating that a fuller explanation would be given when they had more detailed instructions. In about early June, the insurer advised Masons that an appointment had been made with the respondent to see an assessor. Masons advised the respondent of this by letter dated 3 June 1992.

11 However, earlier, on 18 February 1992 the respondent had consulted the appellant. The respondent’s version of that consultation is set out in his Honour’s judgment (page 5). If accepted, it establishes that the scope of the retainer was that the appellant would act for the respondent in respect of both her workers compensation claim and motor accident claim.

12 The respondent says that the appellant told her that if she heard from her first solicitor she was to inform him. The respondent said that she gave two letters she had received from Masons to the appellant, delivering one personally and faxing the other, following that up with a telephone call. One letter was the letter of 3 June 1992 advising her that an appointment had been made for her to see an assessor. The other letter was one dated 6 July 1992 in which Masons stated they understood the respondent had engaged new solicitors but expressed concern that they had not heard from them. According to the respondent’s version of events, she contacted the appellant on many occasions throughout the remainder of 1992 and during 1993.

13 Masons also wrote to the appellant on 23 April 1993, stating:

“We refer to our letter … indicating that we were taking steps to close your file in view of your advice that you were changing solicitors and withdrawing your instructions for us to act for you. It is necessary for us to point out to you … that your right to bring proceedings under the Motor Accidents Act in respect of your injuries on 2 August 1990 is subject to a limitation which requires you to commence proceedings in Court within three (3) years of your accident. On the face of the documents, you would be required to commence proceedings on or before 2 August 1993 after which time, your rights may well be extinguished.

It is therefore necessary, for you to urgently contact us and advise us whether you wish us to file a Statement of Claim and to provide us with further instructions or to advise us of the name of your new solicitors in order that we might attend to providing them with the documents so that they may protect your interests.”

14 This letter contained an error (but not one relevant to the issues between the appellant and the respondent), in that the time limited for the commencement of proceedings without leave did not expire until 2 February 1994, as explained below.

15 In late 1993, the respondent’s workers compensation payments were stopped, whereupon the respondent said she again contacted the appellant. On 25 November 1993 the appellant wrote to Masons enclosing an authority from the respondent to release her file to the appellant. In about early January 1994, pursuant to the appellant’s request, the respondent provided him with a letter referring to a list of doctors she had seen. She also asked how her case was going. She said she also rang the appellant to confirm that he had received the letter.

16 The appellant asserted that his retainer was far narrower than that alleged by the appellant. On the appellant’s version, there were probably two separate retainers. The first was in early March 1992. On that occasion, the appellant says he was retained to make enquiries in relation to the respondent’s WorkCover payments, and in particular, her physiotherapy bills. The appellant said he caused enquiries to be made. He did not give any evidence as to the result of the enquiries or as to whether he advised the respondent of the result of the enquiries.

17 The appellant said he then received a telephone enquiry from the respondent in June or July 1992, expressing concern about her workers compensation payments. He received another call in December 1992, when, he said, the respondent expressed dissatisfaction with her other solicitors.

18 The appellant said that the respondent contacted him again in November 1993. He advised her he would need to obtain the file from Masons before he could give any advice. The respondent signed an authority for him to do so. The authority only related to the respondent’s workers compensation claim. The appellant said that he did not regard himself as acting for the respondent in November 1993. He did not turn his mind to whether the motor accident claim was out of time. He had become aware in mid 1993 that Masons were acting and assumed they had acted correctly and commenced proceedings on her behalf. He denied the respondent had provided him with the letters from Masons which the respondent said in her evidence she had given to the appellant.

19 In late January 1994, the appellant received a letter from Masons, seeking an undertaking that their costs in respect of both claims be paid ($420). The appellant said he sent a copy of that letter to the respondent. However, she had changed address at that time and it would seem did not receive the letter.

20 The respondent rang the appellant in late March 1994 and he told her at that time he would not act for her.

21 Then, by letter dated 20 March 1995 the insurer wrote to Masons advising:

“[F]or the purposes of the Motor Accidents Act 1988 … we admit a breach of duty of care by our insured in relation to the circumstances of the accident.”

22 The respondent eventually retained Athena Touriki, solicitor to act for her. Ms Touriki refused to act in respect of the motor vehicle claim but commenced proceedings in the Compensation Court in respect of the workers compensation claim. Those proceedings were heard and determined by O’Toole CCJ.

Trial Judge’s Findings

23 The trial judge accepted the respondent’s version of her communications and contacts with the appellant. This finding involved an acceptance of the respondent’s credit over that of the appellant’s. Unless his Honour’s acceptance of the respondent’s version of events can be successfully challenged, his Honour’s finding as to the extent of the retainer must stand.

24 In making his credit findings his Honour found both the appellant and the respondent to be unreliable historians but concluded the respondent gave the more reliable evidence. This finding was based essentially on demeanour. However, his Honour stated that a number of other factors supported his view. In particular, he considered the respondent’s version of events was “entirely consistent” with the manner in which Masons had behaved. That observation is not only accurate, it affords the most objective evidence in the case and is consistent only with the respondent’s version. There were also significant inconsistencies in the appellant’s evidence, upon which his Honour commented during the course of his judgment. For example, he noted that although the appellant asserted in his evidence that he was not aware until mid 1993 that the respondent had retained Masons to act for her, he had also said that the reason he did not open a file in March 1992 was because he was waiting for the “file” to come in.

25 The other factors upon which his Honour relied in accepting the respondent’s version, for example the appellant’s failure to write to the respondent setting out the extremely limited nature of the 1992 retainer and the respondent’s undoubted intelligence, were appropriate matters to take into account although they do not have the same force as the factors mentioned above. Even if they were ignored, they would not diminish his Honour’s credit findings. The appellant was not able to point to any evidence of an appropriate quality to successfully challenge his Honour’s credit finding: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306. Once that is accepted, it follows that his Honour’s finding of retainer, and consequently of duty and breach, must stand.

Causation and Mitigation of Damages

26 In his written submissions, the appellant submitted that if, contrary to his assertion, he had been retained to commence proceedings on behalf of the respondent, any breach of that retainer by failing to commence proceedings was not causative of any loss. The respondent knew of the limitation period, having been so advised by Masons in their letter of 23 April 1993. She thus bore responsibility for the failure to commence proceedings and the appellant did not. Understandably, this argument was not persisted in in the oral argument and must be rejected.

27 The appellant had next argued in the written submissions that his negligence was not causative of the respondent’s loss, or alternatively that the respondent had failed to mitigate her loss because, even after the expiry of the relevant limitation period under the Act she still had a right to seek an extension of time and had not done so. During the course of oral argument this submission evolved into a contention that his Honour’s approach to the assessment of damages was erroneous and that he should have assessed damages on the basis of loss of the chance to successfully bring such proceedings. The particular issues which the appellant thereby sought to raise were articulated in the following terms:

“(a) the respondent’s loss was to be assessed as the difference in value between the absolute right of action for damages she had in respect of the motor accident she had on 2 August 1990 (subject to the need to provide a full and satisfactory explanation to the Court for any delay in commencing proceedings where they are not commenced within 18 months of the accident), and the contingent right to bring such an action after 2 February 1994, the contingency being the grant of the Court’s leave under s 52(4) of the Motor Accidents Act 1988;

(b) given that the insurer admitted liability … and that all the medical evidence was available for the worker’s compensation trial in October 1995 … the contingent right referred to in (a) was, subject to the cost of making any necessary application for leave, of equal or virtually equal value to the respondent’s absolute right of action.

(c) his Honour erred further in assessing the value to the respondent of her (absolute) right of action in respect of the motor accident as being the amount she would have recovered if she had been wholly successful in that action, without allowing any discount for the possibility that she may not have been wholly successful in the action, for example, because of an inability to establish that her condition was not primarily the result of a pre-existing back condition (as in fact appears to have been determined in the Compensation Court); in other words, his Honour erred in failing to assess the damages as being in respect of a lost opportunity to bring such a claim which might (but not must) have succeeded.”

28 Neither of the issues raised in paras (a) and (b) were taken by the appellant in the court below. The respondent submitted that the appellant ought not be permitted to raise those issues for the first time on the appeal. Before determining whether the appellant ought to be permitted to raise these issues, it is convenient to refer to the time limits specified by the Motor Accidents Act and the circumstances in which time to commence proceedings may be extended.

Motor Accidents Act

29 The respondent’s right to make a claim for damages arising out of the accident was governed by ss 43 and 52 of the Motor Accidents Act. Under those provisions, in the terms which they existed as at the date of the accident, a person seeking to make a claim for damages for injury received in a motor vehicle accident was required to make the claim by giving notice of the claim to the person against whom it was made and that person’s third party’s insurer within six months after the date of the motor accident: s 43(1)(a); s 43(4). In this case, the respondent was required to lodge that claim by 2 February 1991. She did not do so.

30 If a claim was filed after the expiration of 6 months it was necessary for a claimant to provide a full and satisfactory explanation for the delay in making the claim. The claim was lodged by Masons in March 1992 with an explanation, which did not purport to be a full explanation. There was no express evidence in the case as to whether the insurer accepted the explanation as full and satisfactory, although it may be inferred that it did from the admission of liability made in 1995.

31 Section 52 specified the time in which proceedings were to be commenced. Proceedings could not be commenced until six months after the claim had been lodged: s 52(1), unless the insurer had denied liability or partly denied liability and the claimant was dissatisfied with the extent of the admission: s 52(2). Neither of those circumstances existed here.

32 If a claimant commenced proceedings more than twelve months after the date on which the claim must be made (that is, more than eighteen months after the date of the accident), the claimant was required to provide a full and satisfactory explanation to the court for the delay: s 52(3). In this case, the relevant date for s 52(3) purposes was 2 February 1992. Accordingly, by the time the respondent retained the appellant on 18 February 1992, that date had passed, so that if proceedings had thereafter been commenced, but before the expiration of the s 52(4) period, the respondent would have been required to satisfy the court she had a full and satisfactory explanation for the delay.

33 Finally, a claimant was not entitled to commence proceedings in respect of a claim more than 3 years after the date on which the claim must be made in accordance with section 43 except with leave of the court in which the proceedings are to be taken: s 52(4). For the purposes of this case, this meant that unless the respondent commenced proceedings by 2 February 1994, she could not do so without the leave of the court.

Should the New Issues be Permitted to be Raised?

34 The appellant submitted that he should be permitted to raise the issues defined in paras (a) and (b) above, contending that no further evidence could have been put before the trial judge relevant to the assessment, so that the facts were beyond controversy and this Court could thus determine the legal issue raised: see O’Brien v Komesaroff (1982) 150 CLR 310 at 319; Coulton v Holcombe (1986) 162 CLR 1; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438.

35 In order to determine whether this is correct, it is necessary to consider the manner in which the appellant put his case in support of paras (a) and (b). That consideration must be made in light of the principle that generally parties must be bound by the course they adopted at trial and must establish that the interests of justice require the Court to entertain the point: Coulton v Holcombe; Goldspar Australia Pty Ltd v The Council of the City of Sydney [2001] NSWCA 246.

36 It was submitted that had the issues in paras (a) and (b) been raised at trial, his Honour would have been required to engage in a two stage process. First, he would have been required to assess the value of the absolute right of action (that is, the damages the respondent would have received had the action been commenced within time) and secondly, the value of the contingent right of action, the contingency being the grant of the court’s leave under s 52(4) of the Motor Accidents Act. Senior counsel for the appellant recognised in his submission that the absolute right was itself subject to the need to provide a full and satisfactory explanation to the court for the delay in commencing proceedings within eighteen months of the accident.

37 It was submitted that the trial judge had undertaken the first step in assessing the damages (although it was said he had done so in an oversimplified manner which lead him into error as raised in para (c)). Thus, all that was left for this Court to do was to make an assessment on the basis of the evidence before the Court of the likelihood that the respondent would have been granted leave to bring proceedings out of time. The evidence to which the appellant referred in this submission was the evidence relevant to the determination of the value of the absolute right of action and the evidence of the admission of liability on the part of the insurer.

38 Finally, it was contended that such an assessment raised a discrete point of law and that there was no further evidence which could have been before the trial judge relevant to the assessment.

39 I do not agree that the issues in paras (a) and (b) raise a discrete point of law. There are clearly factual issues and considerations of a discretionary nature which were properly to be determined at trial. In order to make the assessment referred to in para (a) it would have been necessary to conduct “a trial within a trial”. The factual issues which it would have been necessary to prove for that purpose would include an explanation to the court as to why notice was not given in time, in accordance with s 43(1)(a), an explanation as to why proceedings were not commenced by 2 February 1992 as required by s 52(3), as well as an explanation as to why the proceedings had not been commenced in the time required by 2 February 1994, as required by s 52(4).

40 The considerations of a discretionary nature would have involved the following reasoning process. The trial judge would have been required to determine the likelihood of a court granting leave to extend time on the basis of the factual matters accepted by him in the “trial within a trial” procedure. This is commonly expressed as a percentage. There may also have been an evidentiary aspect of that consideration as it is possible that one or both parties might have wished to call expert evidence on that issue.

41 The authorities are clear that a party will not be permitted to raise a new issue on appeal where the issue would involve factual considerations not determined in the court below. In my opinion, the same position applies when discretionary considerations arise which would require the Court on appeal to consider discretionary factors for the first time. In this case, as I have said, there were both factual matters and matters involving a consideration of discretionary matters which would have had to have been determined by the trial judge if the issue raised in paras (a) and (b) were raised at trial. To allow the appellant now to raise those issues would be to offend the principle in Coulton v Holcombe, where Gibbs CJ, Wilson, Brennan and Dawson JJ said at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish."

42 Accordingly, I would reject the application to raise the issues in paras (a) and (b).

43 Before finally disposing of this point there is another observation I would like to make. Notwithstanding that the appellant alleges error in the trial judge’s approach, he asserts (or concedes, I’m not sure which) that the “contingent right” which he says should have been valued, was of “equal value to the respondent’s absolute right of action”, subject only to the cost of making the application, in respect of which the appellant called no evidence. If the practical difference is of such small magnitude as this submission suggests, and in the absence of any evidence of the difference, that is, of the costs involved, then that provides another reason why this Court should not permit the point to be raised.

44 That leaves the issue raised in para (c).

Erroneous Approach to the Assessment of Damages

45 The appellant contends and the respondent accepts that this issue was put to the court by counsel for the appellant at trial, although it was put without elaboration. The appellant contended at trial that the respondent would not have succeeded in her common law action because she would not have passed the threshold requirements of s 79(1) of the Motor Accidents Act, which provided:

“No damages shall be awarded for the non-economic loss of an injured person as a consequence of a motor vehicle accident unless the injured person’s ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than six months by the injury suffered in the accident.”

46 That submission was based on the finding of O’Toole CCJ in the Compensation Court that the respondent had only suffered disability for a very short period of time. It followed, on the appellant’s submission that, at most, the respondent would have recovered her out of pocket expenses in an action brought under the motor accidents legislation. The following exchange occurred between the trial judge and counsel:

“HIS HONOUR: The Motor Accidents Authority has admitted liability, they’d be reimbursing whoever’s the comp insurer.
KELLEHER: Yes but the whole of that question comes back to what the High Court is saying in Nikolau [v Papasavas & Co (1988) 166 CLR 394] that what we’re dealing with is the assessment of a chance. Here we say that she’s seen what happened with the chance because that very issue has been run.
HIS HONOUR: Yes well you’d say it doesn’t avail her in these proceedings in any event because she wouldn’t actually be getting the money, it’d be the workers comp insurer getting reimbursed.
KELLEHER: That’s right. …”

47 In Nikolaou v Papasavas & Co (1988) 166 CLR 394, the High Court applied its decision in Johnson v Perez (1988) 166 CLR 351, delivered on the same day. Those decisions held that when a plaintiff loses the right to bring proceedings due to a solicitor’s negligence, “the client has lost the opportunity to bring that claim to trial and recover damages in respect thereof” (per Wilson, Toohey and Gaudron JJ in Johnson v Perez at 366). Their Honours continued:

“… in some cases it may be appropriate to describe the loss as the loss of a chance for there may be various contingencies bearing on the likelihood that the plaintiff would have recovered judgment against the defendant and further that any such judgment would have been met.”

48 Brennan J, who differed from the majority in the result but not in his approach to principle, stated at 371:

“When a plaintiff loses his original cause of action by the negligence of his solicitor, what is the extent of his loss? He has lost the monetary compensation for his personal injuries which he would have received at the time when he would have received it but for the solicitor’s negligence. That being the extent of the plaintiff’s loss, a court which seeks to put him back in the ‘same position’ must assess, as best it can, whether or not the cause of action would have yielded a judgment or a settlement and, if so, how much the plaintiff would have received and when. It may be necessary to conduct a trial within a trial to determine what the cause of action would have produced. That is what the cause of action was worth to the plaintiff.”

49 His Honour continued at 372:

“The plaintiff’s loss being whatever monetary compensation he would have received at the time he would have received it but for his solicitor’s negligence, the court must find whether or not he has lost something of value. If he would have failed in the original action, he has lost nothing; if he would have succeeded, he has lost what he would have received at the time he would have received it; if the action would have been compromised, he has lost what he would have been paid in settlement at the time when he would have been paid. Or, if it is doubtful whether or not he would have succeeded in the action and it is not probable that the action would have been compromised, the court assessing damages must determine as best it can on the balance of probabilities whether the plaintiff would have succeeded (and, if so, to what extent) or failed.”

50 Johnson v Perez involved a case where a plaintiff’s cause of action was struck out for want of prosecution. In Nikolaou v Papasavas the plaintiff’s action had become statute barred due to the solicitor’s negligence. In Nikolaou the High Court held that the appropriate date at which the plaintiff’s damages should be assessed was the date the personal injury action would in the normal course have been determined. Those damages were to be assessed in accordance with the principles stated in Johnson v Perez to which I have referred.

51 Dodd DCJ did not in his judgment refer to either Johnston v Perez or Nikolaou v Papasavas. However, he expressly found that had the respondent’s action been instituted by the defendant, it would have resulted in a hearing and judgment in approximately mid 1995. He was thus clearly apprised of at least that much of the principle in Nikolaou v Papasavas.

52 His Honour then went about the task of assessing damages. In doing so he expressly refused to accept the conclusions reached by O’Toole CCJ in the Compensation Court proceedings, stating at 29:

“… nothing in the material before me can be taken to impugn the consistent views of the medical practitioners … “

to whose evidence he had referred in detail which he found was all one way, namely that the respondent’s inability to work was caused by the bus accident on 2 August 1990.

53 His Honour concluded that on an assessment of the various aspects of her damages claim, her damages were to be assessed at $271,403.00. He said:

“I see no reason why that figure should be discounted for any reason .” (Emphasis added)

54 Senior counsel for the appellant argued that his Honour erred in so finding because, by awarding damages without any discount, his Honour “… fail[ed] to recognise [that] what [the respondent] lost was the opportunity to advance the claim and the failure of that opportunity has to be discounted for the fact that the opportunity might not be realised in a full judgment”.

55 In my opinion, that submission fails to recognise what was clearly stated in Johnson v Perez and Nikoloau v Papasavas, namely that there are some cases where a plaintiff whose claim has become statute barred due to the negligence of a solicitor but which would have been successful, is entitled to receive the full value of that claim in an action against the solicitor. The discount is only required where there is some uncertainty as to whether the claim would have succeeded.

56 In this case, given not only the facts found by his Honour and his acceptance of the medical evidence in the case, but also the admission of liability by the insurer, it was open to the trial judge to conclude that no discount was warranted. Accordingly, I am not satisfied that his Honour erred as alleged or if he did, the error is such that this Court should intervene.

57 Accordingly, the appeal should be dismissed with costs.

58 BROWNIE AJA: I agree with Beazley JA.

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