Johnson & Ors v Perez; Creed v Perez; Nickolaou v Papasavas, Phillips & Co (A Firm)
[1988] HCATrans 8
IN THE HIGH COURT OF AUSTR..A.LIA
Office of the Registry
Brisbane No B76 of 1987 B e t w e e n -
BARRY r-:ICHAEL JOHr~sor::' GF.EGORY
KILLI.Al'-: ~1iICHEL, ROSS ALLEN LC )~C~:ACO
and iaLLL.6..li ROBERT :t--:A.CDm:ALD tradin$
as B. r:-:. JOHNSON LO i>!ONACC 1-IACDOI>"'.ALD
(A Firm)
Aouellants
and
ANTOt:IO PEREZ
Respor.der:t
Office of the Registry
Brisbane No B77 of 1987 Between-
| Perez |
TEOEAS ~.ICILAJ.<.D AVALC!-'i CP.EED trading
as CREED & ASSOCIATES (A Firm)
Ap~ella::.t
and
ANTOl';Io PEREZ
Respondent
| ClT 1/l/AC | 1 | 16/2/88 |
Office of the Registry
Melbourne No M62 of 1987 B e t w e e n -
CHARALAMBOS NICKOLA.OU and
MARINA NICKOLA.OU (an infant by her
next friend CHARALAMBOS NICKOLA.OU)
Appellants
and
PAPA.SAVAS, PHILLIPS & CO (a firm)
Respondent
MASON CJ
WILSON J
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 16 FEBRUARY 1988, AT 10.16 AM
| Copyright in the High Court of Australia |
ClT 1/2/AC 16/2/88 Perez MR D.F. JACKSON, QC: May it please the Court, I appear with my learned friend, MR G.T. BRITTON, for the
appellants in the first two appeals.
(instructed by Morris Fletcher & Cross)
| MR G.L. DAVIES, QC: | May it please the Court, I | appear with |
my learned friend, MR S.G. JONES, for the respondent in each of those appeals. (instructed by Feez Ruthning & Co)
| MR R.F. REDLICH, QC: | May it please the Court, I appear with |
MR M. SHATIN, for the appellant in the third appeal.
(instructed by Cash & Stone)
MR P. BUCHANAN, QC: If the Court pleases, I appear with
my learned friend, MR J. RUSKIN, for the respondent
in that appeal. (instructed by Phillips Fox)
| MASON CJ: | What is the convenient way of disposing of these |
cases, to hear the first appeal out in full first
and thenfollow with the second appeal?
MR JACK?ON: Yes, You~~Honour.
| MASON CJ: | Yes, Mr Jackson. |
MR JACKSON: | Your Honours, may I hand to the Court copies of our outline of submissions. |
| MASON CJ: | Thank you. |
| MR JACKSON: | Your Honours, although larger issues are dealt |
with in the notice of appeal, in fact, it is proposed
to argue only one of those issues and that is
whether, in an action against a solicitor for failure
to institute or prosecute an action for damages
for personal injuries timeously, the damages which
the disappointed plaintiff might have recovered
are to be assessed on the one hand as the courts
below held as at the time of the trial of the action
against the solicitor or, as on the other hand
and as we would contend, as at the time when the plaintiff's cause of action was lost, if I can
put it loosely, or when the original action might
have been tried absent negligence. I am conscious,
Your Honours, those are, potentially, two different
dates. In the end it seems not to matter for present
purposes.
Your Honours. in urging the second alternative,
we recognize that the plaintiff in such a case
would be entitled to a sum to compensate him forbeing out of the money, if I can put it colloquially,
for some period.
| ClTl/3/AC | 3 | 16/2/88 |
| Perez |
MR JACKSON (continuing): Your Honours, I will come, of course, to the particular cases a little later,
but may I state rather more exactly what I intend
to convey by the submissions which I have just
outlined.
Your Honours, when an injured plaintiff retains a solicitor to act in such a matter, the solicitor's
failure to prosecute the matter may give rise to
liability in contract or in tort and the liability
will arise if the solicitor, for example, fails
proceedings in such a way that they are dismissed
for want of prosecution as were the cases here.to institute the proceedings or conducts the the matters may give rise to a liability in the
solicitor, for example, in cases where delay in the prosecution of an action causes additional
fees to be paid or some other detriment but theparticular issues of that kind do not arise here. And may I limit myself for the remainder of the argument to instanceswhere the plaintiff's prospect of recovery against the third party is lost. Your Honours, in such a case, one of the matters
which must inevitably be taken into account in
any action against the solicitor is the amount
of the damages to which the plaintiff would have
been entitled if the proceedings in which he had
retained the solicitor had been prosecuted to
judgment. It may be, of course, that that figure
would have to be different from that which might
be awarded against the solicitor and the existence
of contributory negligence is but one example of
a circumstance which might produce the result,namely, that the award of damages against the
solicitor would be different from that which might
be the assessment of damages in the first action,
if I can put it that way.
Your Honours, but excepting those possibilities,
the amount of the judgment which might have been
obtained against the third party is a necessary
element in the calculation of the damages whichthe solicitor in default is to pay.
(Continued on page 5)
ClT2/l/ND 4 16/2/88 Perez MR JACKSON (continuing): But, the question which arises in
these proceedings is whether those damages should
be calculated as if the Court were now, that is, at
the time of the action against the solicitor, hearing
also the action against the third party or whether
the Court should look at what the damages in such an
action, that is the action against the third party,
might have been if the solicitor had performed his
undertaking or the plaintiff had not lost his right
to damages by the solicitors in action.
Your Honours, could I turn from that as briefly
as possible to the circumstances of the particular
cases and then go on to - after having done that -
advance the submissions which we make in relation to
the correct method of assessment. Your Honours, the
respondent was injured in accidents in the course of
his employment by three employers. The three accidents occurred on 25 June 1968, on 31 August 1973 and on
19 Febuary 1981. Apart from the misfortune or
misfortunes of the occurrence of the three accidents,
the respondent suffered the further misfortune that
the appellants who were his solicitors in respect
of, in the case of one appeal, the first accident,
the 1968 accident and in the case of the other appeal,the 1973 accident, did not pursue his actions against
the employers with the consequence that the appeals
were dismissed for want of prosecution.
The appeal by Johnson and Others is the appeal
in respect of, to put it loosely, the 1968 accident;
that by Creed is in respect of, again, to put it
loosely, the 1~73 accident. Your Honours, it was
not in issue in the courts below that the failure
of the appellants to pursue those actions was
negligent and I should also mention that whatever
may have been the position at the trial, it was not
in issue before the Full Court and, of course, is
not suggested now that the amount of damages whichthe respondent might have obtained in either of those
actions should be notionally ceduced by reason of any
contributory negligence. (Continued on page 6)
ClT3/l/SH 5 16/2/88 Perez
| MR JACKSON (continuing): | Your Honours, the first accident, |
the 1968 accident,occurred when the respondent was struck by a concrete panel which was being carried
by a crane. He was, at the time, working on the construction of a cooling tower at the Gladstone
power house and a convenient summary of the nature
of the injury and its effects is to be found
the judgment of Mr Justice Ryan in his judgment,
which was the judgment of the Full Court at page 272,
lines 1 to 35, and Your Honours will see that the
respondent reported with persistent right side
headache and postural giddiness and loss of
concentration and of impairment to his memory.
Your Honours, the effect of that accident is
sufficiently summarized in that passage.
The respondent had cormnenced an action against
his employer within the three-year period - the
statement of claim appears at page (vii)- but the
appellants were not then his solicitors. They received instructions in respect of that action in
December 1980 and the action was dismissed for want
of prosecution on 20 June 1983. Your Honours will see that at page 234, lines 12 to 31. The damages awarded by the primary judge in respect of that
injury were calculated in the manner set out at
page 275, connnencing at about line 13 and, Your Honours,
it may be convenient if I simply mention
a couple of things about the assessment of damages
there.
Your Honours will see in the middle of the
page a total $158,303.75. It consists of a number
of elements; one being that referred to as (a)
which was in respect of the period - that was
the only relevant injury and "a global award" as
His Honour put it of $30,000 was awarded.
(Continued on page 7)
ClT4/l/HS 16/2/88 Perez
MR JACKSON (continuing): In respect of the period when the
two injuries were operative a global award again
at $45,000 was made and 40 per cent of that -
paragraph (b) was attributed to the first injury. A similar percentage was applied to economic loss
in respect of the period from 1981, the occurrence
of the third injury,until the time of trial of
the action against the solicitor. Future economicloss, item (d), had the same percentage applied
to it - that is future economic loss in respect
of the period after the trial of the present action.
A similar percentage in respect of pain and
suffering from 1981 onwards and then there are
items of special damages and items of interest,
including interest on, for example, the sum of
$30,000 referred to in paragraph (a).
Your Honours, it is clear that the primary judge assessed those damages as if he were trying
an action for damages for personal injuries at
that time. Could I refer Your Honours to page 241,
line 60, where His Honour said:
It seems to me that that period ought
to be assessed on a lump sum basis.
And he is referr:ing to the first period - $30,000 - Mr Britton has suggested that I ought to
assess on the basis of awards made back in
the past at certain points. As I understand the current practice, assessments
are all made according to the prevailing
awards at the time of assessment. It would
seem to me that if that collection of
disabilities were before a court today, anaward of $30,000 to cover every aspect of
it would be adequate.
Your Honours, His Honour does not refer specifically
to that point again but it seems apparent that the test he was referring to there was one which
he was applying generally and that appears to have
been accepted in the Full Court as appears at
page 283, line 20, where His Honour said:
But it would make a considerable difference
if the assessment was required to be made,
not at the date of trial but at a time
when the original actions might with
reasonable diligence have been tried.
And then he proceeds to elaborate upon that in the remainder of that paragraph and then following
on from that he goes on to reject that submission
a little later and I will come to those passages
in a few moments. Your Honours, the second accident,
| ClT5/l/SR | 7 | 16/2/88 |
Perez
the 1973 acciden~ occurred when the respondent
slipped on a floor covered with ash from boilers.
The manner in which that accident occurred appears
at page 236, line 1 through to page 237, line 15.And, Your Honours, as appears at page 236,
lines 44 to 45, the accident had a twisting effect
on the respondent's back and the primary judge
found at page 246, line 15, that in that accident
the respondent had suffered a disc injury which
was sufficient to reduce his working capacity.
And he found that there was a pre-existing
degenerative condition of the back - page 246,
lines 25 to 30, and that the back pathology was
in effect made worse by his psychological state -
that is that psychological state being one always
dormant butmade manifest by the first accident.
That appears at page 246, lines 48 to 53.
(Continued on page 9)
ClT5/2/SR 8 16/2/88 Perez
| MR JACKSON (continuing): | Your Honours, the respondent had |
commenced an action for damages in respect of the
second accident against his employer on
18 June 1975. That appears at page (xix) of the
statement of claim in the present action,
paragraph 3, which was admitted by the defence.I put it that way because the pleading in the
earlier action was not before the court but it
was admitted that the action was commenced on 18 June 1975 and it was dismissed for want of
prosecution on 16 October 1980.
Your Honour, the damages awarded by the primary judge in respect of this action appear
at page 275 in the judgment of Mr Justice Ryan.
Your Honours, an approach similar to that in respect of the first accident was taken by His Honour and
I do not think I need to go through the calculations
referred to there. An action against the employer in respect of the third accident, that of
February 1981, was set down for hearing at the
same time as the two actions against the solicitors
and a hearing of that matter commenced but the
action was settled after one day's hearing.
The terms of settlement were not disclosed
but it is apparent that the plaintiff hurt his
hips and back when he was struck by a concrete
bucket handle. That appears - and perhaps I can
simply give Your Honours the reference in thisregard~ that appears at page 271, lines 39 to 48.
His Honour the primary judge found that the
plaintiff suffered a further injury to the disc
in that accident - that appears at page 246,
line 25. And the third accident, brought forward by some five to ten years, a condition which
probably would have arisen in any case.
I should perhaps mention that His Honour
accepted the evidence of a Dr Curtis who had
estimated that the 1973 injury caused a disability
of 15 per cent and that the balance was attributable to the later accident and Dr Curtis' evidence
appears conveniently at page 128. Your Honours,
could I move on from that to say that the result
is that the primary judge awarded the damages which
the respondent would have obtained if the actions
against the tortfeasors had been tried at the timeof the actions against the solicitors.
Your Honours, that, in our submission, 1s
not the correct approach and may I move, in just of this kind, it is appropriate in some cases for there to be a deduction for the possibility of
a moment, to our reasons for making that submission.
ClT6/l/ND 16/2/88 Perez a settlement at a lower figure or for there to
be a deduction because of the possibility that
the plaintiff might not succeed. Upon the evidence before the primary judge and the findings made
by him there is not any basis for saying that the
amount otherwise to be awarded to the respondent
should be reduced by reason of considerations of
that kind and I do not wish to suggest that.
So the position ultimately, in our submission,
is one which turns on the correctness of the
selection of the time of assessment of the damages
that would have been obtained in such an action
as being as if the action were being tried at the
same time as the actions against the solicitors.
(Continued on page 11)
ClT6/2/ND 10 16/2/88 Perez
| MR JACKSON (continuing): | Your Honours, could I turn then |
to our submissions. Where a person in the position
of the respondent claims damages against a solicitor
in these sorts of cases the damages will be of
two kinds. One kind, which is not material for present purposes, is the amount of any expenditure
which is thrown away. The second kind is the value of the right which has been lost by the action,
or inaction, of the solicitor.
Your Honours, I use the expression "right",
in some cases it may be a prospect. It may have
been that if the action went to trial the right,
the substantive right, would have been found not
to exist because the plaintiff would fail, but
I use it as a convenient expression to describe
the right, or the possibility, that damages to
obtain - or the possibility that damages would
have been obtained.
Your Honours, in relation to that right, what 1s lost by reason of the conduct of the solicitor
is the right to recover or the prospect or chance
of recovering damages and, Your Honours, the damages
are damages for personal injuries and that that
is the nature of such an action appears, in our
submission, from a number of cases in relation
to that type of action. Could I take Your Honours to them as briefly as possible. The first of them is the well known decision of the Court of Appeal
in England in KITCHEN V ROYAL AIR FORCE ASSOCIATION, (1958) 1 WLR 563 and could I go first, Your Honours,
to the judgment of Lord Evershed, Master of the Rolls,
at page 574 at the bottom of the page, where
His Lordship describes the courses which might
be taken in relation to such an action.
(Continued on page 12)
| ClT7/l/AC | 11 | 16/2/88 |
| Perez |
1-R JACKSON (continuing): He says: If, in this kind of action, it is plain that an action could have been brought, and
if it had been brought that it must have
succeeded, of course the answer is easy.
The damaged plaintiff then would recover
the full amount of the damages lost by the
failure to bring the action originally.
~n the other hand, if it be made clear that
the plaintiff never had a cause of action, that there was no case which the plaintiff
could reasonably ever had formulated, then
it is equally plain that the answer is that
she can get nothing save nominal damages - and he goes on, then, to deal with the third
category which Your Honours will see in the first
paragraph on page 575 and then to say in the next
paragraph:
In my judgment, what the court has to do
(assuming that the plaintiff has established
negligence) in such a case as the present, is
to determine what the plaintiff has by thatnegligence lost. The question is, has the
plaintiff lost some ~ight of value, some chose
in action of reality and substance?
And then, His Lordship goes on to discuss the
particular facts of the case and, at page 576 in
the fifth or sixth last line in his judgment says:
I think that the plaintiff established that
there was a cause of action and that she had
lost something of value.
Lord Justice Parker, at the bottom of page 576, goes on in the last four lines to describe his view
of the nature of such a cause of action. It is
similar to that to which Lord Evershed referred and If, in the year 1946 - then, in the paragraph on page 577 commencing:
he goes on to say in the last three lines:
(Continued on page 13)
ClT8/l/SH 12 16/2/88 Perez
"MR JACKSON (continuing):
I cannot say that the claim is bound
to fail and accordingly the plaintiff
is entitled to something more than
nominal damages.
Your Honours, those observations clearly are based
on the assumption that what is being spoken about is
an action against the solicitor to recover what has
been lost by the failure to prosecute, to put it
shortly, an earlier action against the solicitor.
Your Honours, the second case in which the same
approach is taken is YOEY.rAN'S EXECUTRIX V FERRIES
(1966) - - -
| BRENNAN J: | Mr Jackson, before you leave that, I take it the reference to |
nominal damages means that the action is being brought
in contract and not in tort?
| "MR JACKSON: | One would think so, Your Honour, yes. |
| BRENNAN J: | At what date, then, does one assess damages7 |
| "MR JACKSON: | Prima facie one should assess damages at the time |
of breach, Your Honour, but that does not seem to be
a rule which is absolute. It may be, one would think, in cases of this kind, that the disappointed
plaintiff would really be in a position to select
which of the measures of damages would be likely to be
more beneficial because assuming that the plaintiff
had a cause of action in contract or in tort, then if
it be that at the time when the breach occurred
the damages would be assessed on a particular basis -and I will explain what I mean in a moment in relation
to that - which would arrive at result A, but if at the
time when the loss occurred, if one looked at it from
the point of view of tort, that the damages would be assessed on basis B, then A is lower than B, or vice versa, the plaintiff would be in a position to choose
which was the better for the plaintiff. Your Honour, I said I would indicate what I meant
by the bases being different and what I mean is this:
it may be that there has been some statutory
intervention in the meantime which would, for example,
as there was in Queensland, a provision which
prescribed the rate of interest to be applied in
discounting, in calculating the amounts payable for
future losses. It may be that there has been -or it
may be there came into being a provision which limited
the amount of damages recoverable.
| BRENNAN J: | When do you say the relevant loss occurs in these |
cases?
| ClT9/l/HS | 13 | 16/2/88 |
| Perez |
| MR JACKSON: | In the particular cases, Your Honour? |
| BRENNAN J: | In general, where there is a loss of a prospect, |
as you put it.
| MR JACKSON: | Your Honour, if one is talking about an action |
which is statute barred, then one would think
that if the action is dismissed for want of
prosecution, then the loss has finally occurred, if
I can put it that way, at the time when the action
is dismissed for want of - - -
| BRENNAN J: | But not until then? | |
MR JACKSON: | Your Honour, there has been some damage which may attract only nominal damage at the time when the | |
| breach of contract occurred, but it would have to be | ||
| ||
| about a breach which results in, in effect, the | ||
| ||
| been a breach earlier, but that the damage has not been suffered in other than a nominal sense, until | ||
| the time when the action is no longer capable of | ||
| ||
| accept the position that the plaintiff has the opportunity to choose which measure of damages, if | ||
| there be a difference, is more advantages - which | ||
| type, I should say. |
Could I hand to Your Honours copies of the
judgment in YOEMAN' S EXECUTRIX V FERRIES?
| WILSON J: | Is this in the Scots Law Times? |
| MR JACKSON: | Yes, Your Honour. | I was about to - - - |
| WILSON J: | We have it, I think, Mr Jackson, thank you. |
| MR JACKSON: | I am sorry, thank you. | The reference, |
Your Honours, is (1967) Scots Law Times 332, and I wanted to refer in particular to page 335.
Your Honours, at page 335 Lord Avonside, connnencing in effect on the first line in the page, goes on
to discuss - is quoting, I should say, from an
earlier decision and then goes on in the middle ofthe page to KITCHEN V ROYAL AIR FORCE ASSOCIATION
and, Your Honours, if one proceeds from there to the
bottom of page 335 in the right column, the last
complete paragraph, and the last sentence of that:
| ClT9/2/HS | 14 | 16/2/88 |
| Perez |
MR JACKSON (continuing):
The decision re-emphasises, however, that
one must look to the value of a lost chance
to make a claim, an outlook which, with respect,
I believe to be correct and equitable.
Meaning, I think, fair, Your Honours,
the last word. And at page 336 His Lordship goes on to discuss what would have been the possibilities
in relation to the manner of resolution of thatcase and says, in the paragraph commencing a little
after half-way down the left column:
At the same time, if the case of the
pursuer had been conducted properly and under
competent direction, I consider those advising
him would have favoured a settlement of his
claim if some reasonable offer were made. And, Your -Honours, in the right column on the same
page - the second new paragraph:
Where a solicitor has been negligent,
in a case like the present, he has, in my
opinion, been guilty of depriving his client
of a right, the right legitimately to press
a claim for damages.
And he goes on to discuss the fact that some offer
would have been made and Your Honours, I shall
not read it out but if Your Honours were to follow the remainder of the judgment, it is apparent that the view taken by His Lordship was that he was
valuing the prospect, or chance, or right, to recover
damages in the earlier action. To the same effect is the judgment of Chief Justice Bray in
TUTUNKOFF V THIELE, (1975) 11 SASR 148.
Now, His Honour discusses in this case,
commencing at page 149, the principles which 1n his view are applicable and it is the third paragraph of His Honour's reasons for judgment,
commencing just a little above half-way, and it
is interesting to note in that passage that in
the second sentence he says:
It is clear that if the plaintiff must have
won the statute-barred action he can recover
against the solicitor all the damages he could
have recovered in that action.
Speaking there, of course, about the statute-barred action.
ClTlO/1/AC 15 16/2/88 Perez It is equally clear that if he must have lost
the statute-barred action he can recover
nothing against the solicitor except nominal
damages.
And then he goes on to dicuss the principle in
KITCHEN and refers to, immediately before the
reference to KITCHEN's case:
In such a case the chances that the plaintiff
would have su~ceeded in that action must be
assessed.
Now, Your Honours, the relevant part on that page
is the whole of that paragraph and having done
that the next relevant passage is at page 150.
And in the last paragraph on page 150 His Honour
says:
what I have to decide is what the plaintiff
has lost by the defendant's negligence and
what he has lost is what a court would have
awarded him in an action by him against his
employer, not what I would award if the present
action were an action against the employer
and there was no other evidence than thatbefore me.
Your Honours, at page 152 in the last complete
paragraph on the page, His Honour assesses the plaintiff's chances of complete success in the
lost action.
(Continued on page 17)
ClTl0/2/AC 16 16/2/88 Perez MR JACKSON ( continuing) : And, finally, at page 155, His Honour
moves to the question of the time at which damages
should be assessed. He says, in the first new paragraph on the page: The question has been raised, whether,
on the assumption that a suitable award of
damages will effect a psychological cure to
a substantial extent, I should assess thedamages as at the date when they would have
been paid if the lost action had proceeded
to judgment or whether I should assess them
as at the date I deliver judgment. On the principle that he is to get what he lost by
not being able to prosecute the lost action,
it might seem that the first answer is the
correct one. On the other hand, if one of the results of the defendant's negligence is that
the plaintiff recovers his damages later than
he would have done if there had been no
negligence, it would seem that the defendant
must pay for the consequences of the delay.
I think that is right.
Now, Your Honours, it is apparent when one goes a little
further down the paragraph that when His Honour says
"I think that is right", he is not saying that what
one should do is assess the damages as at the time of
the action against the solicitorr what he is saying
in effect is that one should assess the damages as at
the earlier time but add something because the money
was not paid at that time. Now, Your Honours, in fact, in the particular case because of the brevity of the
gap between the two times, he simply assessed the
damages as at that time but it does not seem as
though he was seeking-to apply a different principle.
He goes on to say:
I do not know, however, that the practical
difference is great. This action has come on
for trial quickly and one of the reasons for
that is that liability has been admitted.
He goes on to discuss the times that would have applied and then says, in the last sentence of the paragraph:
I will proceed to assess the damages as at
the present day rather than go through the
exercise of assessing them as at a date a
year ago and then adding something for the
consequences of the delay, which would
probably achieve the same result.
Finally, Your Honours, at this point in relation
to the general principle, may I refer to a decision
of the Full Court of the Supreme Court of South Australia,
DOLMAN V PENROSE, (1983) 34 SASR 481.
ClTll/1/SH 17 16/2/88 Perez Now, Your Honours, in the judgment of Mr Justice Zelling
at the bottom of page 482, His Honour adopted what had
been said by Chief Justice Bray in TUTUNKOFF V THIELE
and then at page 483, in the new paragraph on that page,
said:
The net assets of the estate of the
deceased at the time of her death -
these were TFM proceedings, to put it shortly, which
had not been started and they might have been -
were of the approximate value of $48,000. learned Judge took into account in fixing
damages. With great respect I think that
figure was too low. The figure should have been assessed as at the date on which the original case, if it had been taken in time and had proceeded to hearing and judgment, would.have come on in Court, and a further
allowance should have been made on top ofthat for the fact that the plaintiffs would receive their damages later in any event because the first action was not taken: see TUTUNKOFF's case, at page 155. And then His Honour goes on to apply those remarks
and the way in which he applied them was that the value
of the estate was a larger sum than that at the date of
death. He arrived at a figure for the value of the estate at the end of the first paragraph on page 484
of $60,000.
Your Honours, at page 490, in the principal
judgment of Justice Bollen and the other member of
the court agreed, it is clear that he applies the
same general principles. He says in the last paragraph on the page:
(Continued on page 19)
ClTll/2/SH 18 16/2/88 Perez
MR JACKSON (continuing):
The plaintiffs suffered a loss. Their
solicitors let them down.
And he goes on to say in the fifth line:
What is the, or a, right way to assess the damage or loss suffered by a client whose
solicitor has caused him to lose the value
of a right to make a claim recognised by
the law? I think that the starting point is to define what it is that the plaintiff
has lost. For what is he to be compensated?
Put in a rough but convenient way it is
the lost chance to litigate. More precisely
stated it is that which he might reasonably
have been expected to gain by litigation.
In the word "gain" I include the fruits of a ..... compromise.
And he goes on to refer to KITCHEN V ROYAL AIR
FORCE ASSOCIATION. And having given a reference to that, he goes on at page 491, to say:
His Lordship says that the Court must
somehow value that which the plaintiff has
lost. It follows from his Lordship's
remarks that a plaintiff will not
necessarily recover from his solicitor as
much as he would have recovered had he
succeeded in the "lost" claim.
And he goes on to elaborate upon that. Your Honours, it being clear in our submission, that the view
which His Honour is taking is one which works on
the assumption that the amount recoverable is to
be assessed by reference to what might have been
obtained in the original action. At page 492,
in the last complete paragraph on the page,
His Honour says: Those cases demonstrate what it is that must be assessed in an action against a
solicitor for "letting a right of action
die". The chance of success and its value, as best it can be determined, must
be assessed.
Your Honours, it is apparent, if one looks at page 496 and page 497 that when His Honour went
to apply the principles he had stated the issue
to which he was directing his attention was whatamount might have been recovered in the lost
proceedings. And it was unnecessary for him to decide on a basis similar to that adopted by
| C1Tl2/l/SR | 19 | 16/2/88 |
| Perez |
Justice Zelling because at page 497, about half-way
down the page, immediately above the table of
figures, he says:
I say that the estate may be "worth" about
$48,000 or $56,000 because it may well be
that an increased value of real estate (that
is, increased value since death) should
have been taken into account.
Your Honours, as is apparent in our submission
from the passages to which I have referred, one
aspect of valuing what is lost is to determine
what would have been awarded at the trial of the
lost action. And, Your Honours, that may differ
from the damages which would be assessed at a
later time and it may diffe for a number of
reasons. One reason is the there may be changes in the law and I have menti-ned those in passing
in answer to Your Honour Justice Brennan, and ifI could just say them very briefly. For example,
a statutory limit may be placed on damages which
did not exist at the time when the original action
might have been heard. Your Honours, it may be
that there was a statutory limit which has been
removed. Again there may be a provision, a
statutory provision I am referring to, which affects
the method of computation of damages and,
Your Honours, such that occurred, for example, by - and could I hand these to Your Honours -
the amendment in Queensland to the COl-fHON LAW
PRACTICE ACT, effected by the amending Act of
1981 which inserted a new section 5 in an endeavour
to resolve such differences of view as existed
about the appropriate discount rate,fixed a
figure of 5 per cent, and Your Honours will see
section 7 of that amending Act appears to have
made it applicable to pending actions.
(Continued on page 21)
| C1Tl2/2/SR | 20 | 16/2/88 |
| Perez |
MR JACKSON (continuing): Your Honours, I do not make any particular point out of the insertion of the
provision, I use it to exemplify the more general
argument that there may be changes in the method
of calculation of damages brought about, for
example, by statutory alterations between the time when the original action might have been heard
and the time when the action against the solicitor
is heard.
Your Honours, leaving aside statutory
alterations, there may yet be differences in the
assessments which would result and the difference
may come about because matters which have been
mere possibilities may become realities or may
cease to be so. Again, other features relevant
to the assessment of damages may emerge, for example,
the fact that a person had a pre-existing condition of which nothing was known at the time when damages
might have been assessed.
Your Honours, not all those changes would
be in favour of the plaintiff, not all would be
against him. It could go either way. But the possibility of those changes, after a time when
the original actions might have been determined,
renders it less than likely, in our submission,
that the correct test to be applied in assessing
the damages for the loss of that action is to assess
the damages at the time when the action againstthe solicitor is to be heard.
The view that the assessment should be done
at the time when the first action might have been disposed of is supported by a number of features,
in our submission. One is, it is supported by the approach in the cases to which I have earlier
referred. The second is that it is supported in two unreported decisions to which I will now
refer Your Honours. They are both decisions of the Supreme Court of Queensland before the particular cases in question here. One is a decision of Mr Justice Shepherdson in MUNRO V THOMAS. It was
action No 185 of 1983 and could I hand Your Honours
copies of the relevant parts of the judgment, the
judgment is much longer than that and I have not
extracted those parts. Could I hand also, for the Court's records, a full copy of the decision.
Your Honours, the first page extracted is
page 21. Your Honours will·see that in the first
new paragraph His Honour commences to discuss the
principles and at the bottom of page 21 says that
he has:
ClT13/l/ND 21 16/2/88 Perez to decide what the plaintiff has lost by
the defendant's negligence (assuming it to
be proven) and what she has lost is what a
court would have awarded her in an action
by her against Curran not what I would award
if the present action were against Curran
and there were no other evidence than that
before me.
His Honour referred to TUTUNKOFF V FIELD and then
went on to say, after the reference in the middle
of page 22 to an extract from the judgment of
Bray CJ:
I should say at once that in the instant
case I have concluded that the plaintiff must
have won the action against Curran which is
now statute barred.
And he found no contributory negligence and then
went on to say he assessed:
on the basis of the plaintiff recovering
against the solicitor all of the damages she
could have recovered in the action against
Curran.
Your Honours, the pages between that page, 22, and 28 have not been extracted but 28 is and
Your Honours will see at page 28 that His Honour
says:
In the result I assess the plaintiff's
damages which she lost in the action against
Curran as follows:-
(This assessment assumes judgment being given in say mid-1984) -
and then he goes on to set out the figures.
(Continued on page 23)
ClT13/2/ND 22 16/2/88 Perez
MR JACKSON (continuing): I might say in passing - and Your Honours, ·not having been there one does
not know if His Honour expressed any view about the difficulty of doings.o - buthe appears to be
able to do so as a matter of course, a matter
which is relevant to a reservation he later expressed
in a case to which I will come in a moment, by
Mr Justice Miles about the manner of doing so.
Now, His Honour then goes on to say, at the top
of the next page:
This action was commenced in 1983 and
it seems to me that if the plaintiff had
succeeded in proving a retainer and negligence
then she has also lost the opportunity ofhaving in her hand the damages she would have
received in the action against Curran.
And he went on to say that he allowed:
1n addition by way of damages a further sum
of $7,200 being interest ..... at the rate of
12 per cent per annum for about one year.
Now, Your Honours, that, in our submission, is
an approach to the assessment which was an approach
which was, if I may say so, with respect, orthodox.
BRENNAN J: What would you say about a plaintiff who is suffering from litigation neurosis which is
prolonged by the non-prosecution of the action?
MR JACKSON: Your Honour, so far as the damages to be awarded in the action against the solicitor are concerned
then that seems to be a separate element of damages
for personal injuries recoverable against the
solicitor as distinct from being recoverable in
the original action. It does not affect, in our
submission, the general proposition which I wasadvancing.
DAWSON J: And do you say you are allowed to look at the later facts in order to interpret the earlier evidence - to prefer fact to prophecy? MR JACKSON: Your Honour, can I put it yes and no, meaning by that, Your Honour, that what one is doing is
to assess what damages the plaintiff might have
obtained in an action tried at an earlier time.
And what one has to look at is what the case was
at that time. Now, if it be that the case at that
stage was that the plaintiff had what was assessed
to be, let us say, a disability of a leg of some
50 per cent then the value of the lost action would
remain a value calculated at that notwithstanding
ClT14/1/AC 23 16/2/88 Perez the fact that there was an improvement in the leg
at a later point, albeit before the time when the
action against the solicitor was heard, which meant
that the disability was not 50 but 15, or vice
versa, Your Honour.
DAWSON J: Well, essentially that 1s an answer; you cannot look at the later facts to interpret the earlier
MR JACKSON: Yes. Your Honour, I hAve a slight reservation because of what Your Honour Justice Brennan put
to me. There may be cases where one is really looking at the situation - one is entitled to look
at what has happened with a view to quantifying
the damages against the solicitor rather than the
damages that wbuld originally have been awarded.
Your Honour, I should also say one other thing
and that is that it may be that if one is looking
at - that if one is trying to work out what some
aspects of a plaintiff's case were, that it may be
that one is better able to quantify - I am not
talking about the prospects. Your Honour, might I start that again. What I am endeavouring to
say - not very well - is that one looks at prospects
as they were at the time when the action might
have been tried in the first place.
It may be that in respect of some matters
of fact, as distinct from what the prospects were,
that the later events cast light on what the position
was at that time but I do not resile from - I iust
would like to reserve the position a little if~
I may, Your Honour.
BRENNAN J: In seeking to identify what it is that the plaintiff
has lost one can say, I suppose, one has lost a cause of action in the case of a statute-barred
piece of litigation but, of course, that cause
of action would not have been turned into money
until the action had been tried - - -
MR JACKSON: Or otherwise resolved, Your Honour. BRENNAN J: Or otherwise resolved, yes.
(Continued on page 25)
C1Tl4/2/AC 24 16/2/88 Perez BRENNAN J (continuing): Are we talking then about a lost
cause of action because, if so, then the cause of
action remains lost right up until the moment when the action against the solicitor is concluded? It
has never been litigated. Or, are we talking about
the prospect of recovering damages as being lost,
because if the latter then the question arises as
to whether it would have been tried at some quicktime after the alleged negligence or whether it might
have languished in a list for a long time though
never being liable to being struck out for want of
prosecution.
MR JACKSON: Your Honour, it is difficult, in our submission, to adopt the former view that one is speaking about
a lost cause of action. In some cases it may be that
what is lost is a cause of action which would have
resulted in the award of damages. In other cases
it may be that one is talking about a claim which
would not have resulted in an award of damages because
if it had been adjudicated upon judicially it would
have been found not to amount to a cause of action.And in other cases, one is talking about something
that one cannot say, in a definitive way, whether it
is or is not or was or was not a cause of action,
it was a claim, and a claim which may have resulted
in one of a number of things: one would be the payment of a sum of money pursuant to a judicial order; second,
would be that a sum of money be paid by agreement to
extinguish the right whether it existed or not,
extinguish the claim; the third would be that it was something that was proved not to result in a cause
of action.
So that, Your Honour, one is not really, in our submission, likely to be selecting the right criterion
if one says that one is talking about a lost cause
of action, because one is really talking about the
fact that one had a right to claim and the claim may
or may not have been one that was ultimately valuable.
So that one is talking about that, Your Honour, if I can put it that way. I do not know that that quite answers Your Honour's question, or the first
part of it. The second part I appreciate _and that is that there may be difficulties in determining at what
exact time, if I can put it that way, the decision
might have been made, whether the claim was ultimately
productive of money, or not.
Your Honour, one would accept that there are
theoretical difficulties - and I do not mean that in
the slightest degree offensively, Your Honour -
theoretical difficulties in respect of any action
that ex hypothesi has not come on for trial in saying
when it should have come on for trial. I put it that way, Your Honour, for this reason, that whilst the
ClTlS/1/HS 25 16/2/88 Perez difficulties are ones that are theoretical in a sense,
if one is looking at it in hindsight, as a practical
matter one would think it is possible really to say
when a particular action should have come on because
actions tend not to be things that exist by themselves
and in the absence of other actions. There areusually like actions, particularly in the class of
thing we are talking about. They tend to be, or they should be, Your Honours, in lists. There is a
course or procedure which should usually follow in
respect of them.
So, Your Honour, I cannot remove the difficulties,
but what I would submit in relation to them is that they are difficulties which in the end are not ones
that should be decisive of the matter.
| DAWSON J: | It might be crucial, might it not? | If there is a |
change in the law, for instance, it might be crucial
to fix the point precisely.
| MR JACKSON: | Of course, Your Honour, yes, but that is a |
question which the judge who is trying the action against the solicitor is capable of determining, with respect.
| DAWSON J: | On what principles? |
| MR JACKSON: | By saying, Your Honour, if one takes, say, the |
latest date, let us say the date at which the action
became no longer available because it was dismissed
for want of prosecution, by saying, "At that date the
matter could have been tried", or, "At that date the
matter could have been tried by a certain time after
that if it had not been struck out", or by saying,
"If the solicitor had not been negligent at an earlier
point the action would have been tried by
4 December 19 - whatever it might be."
(Continued on page 27)
| ClTlS/2/HS | 26 | 16/2/88 |
| Perez |
MR JACKSON (continuing): Your Honour, I accept the potential difficulties in particular cases but in the end what the plaintiff in such a case is saying is, "I have
lost a right" and the right is one which would have been likely to result by being awarded a particular
sum.
BRENNAN J: Why do you not say "the loss of the money that I would otherwise have received, when I would have
otherwise received it"?
MR JACKSON: Well, not for any particular reason, Your Honour, ..... use that lack of felicity - I
am always hesitant to adopt expressions used by, with
respect, others when one does not quite know what
matters lie behind the selection of them.
Your Honours, having referred to MONRO V THOMAS and the lack of any difficulty of the nature referred
to by Your Honours found by His Honour in selecting
1984 in that case, may I refer to another decision
in the Supreme Court of Queensland, that is,
MERENDA V EVANS, a decision of Mr Justice Macrossan, No 21 of 1982. Your Honours, could I hand copies to
the Court. May I delay for a moment handing Your Honours the copy of the original judgment because, as always seems to happen, one of the pages has been omitted from the copy of the extracts which Your Honours
have. Your Honours, at page 42, the first extracted page, His Honour says in the second sentence of the first new paragraph: It is the prospects of success in the action
which might have been brought which are
relevant and it is not strictly a question
of trying another action within the present
action ...... The Court has to determinethe value of what has been lost, as best it
can.
Now, His Honour goes on, then, at page 43, to discuss the standards and so on and then, at page 44, says:
I note at this point that there was no
evidence placed before me as to the likely
date of any trial which would have followed,
had proceedings been commenced by the issue
of a writ in June 1979. This is a relevant
matter for consideration when attention is
turned to assessment of the damages which
the plaintiff might have hoped to recover
in any such action and also for the purposeof considering an award of interest in the
present action upon a sum which might have
been recovered at some particular earlierdate.
ClT16/l/SH 27 16/22/88 Perez Jackson and Powell -
and he is referring there to Jackson and Powell,
Professional Negligence, 1982 -suggest that the
suggest that the tariff prevailing at the
date when the award might have been made,
is the relevant tariff, citing an unreported
case. This is appealing as being an approach supported by logic, but in other cases it has been thought to raise difficulties although
not necessarily to lead to a practical
difference in the award.
His Honour then referrs to TUTUNKOFF V THIELE and
to a decision of Mr Justice Miles in VULIC V BILINSKY
to which I will come in just a moment and then at
the top of page 45:
It appears that Shepherdson J., in
MUNRO V THOMAS ..... assessed at an earlier
date, but he did so without any extended
discussion of the matter. I am attracted by the logic of assessment at the date when
the award was likely to have been made, so far
as that date is capable of being ascertained.
And then His Honour went on to say at pages 50 and 51 -
at the top of page 51 that he selected:
Rather arbitrarily, a period of two years after
the issue of a writ in June 1979, as marking
out the acceptable period for bringing the
notional personal injuries action to trial,
but nothing, in my view, turns upon a preciseestimate of this date.
(Continued on page 29)
ClT16/2/SH 28 16/2/88 Perez
MR JACKSON (continuing): His Honour went on to say that he -
half-way down that page, valuing the lost chance
of bringing the proceedings:
Overall, I would assess this figure at
$5,000.00 at, say, June 1981 -
and then went on to say that:
if the plaintiff were otherwise to succeed
in the present action, that figure should
carry with it an award of interest to the date of this judgment from a date
which may appropriately be taken as the
date of the issue of the writ in the
present proceedings.
Your Honours, could I retain that for a moment and
then have copies taken for Your Honours and give
them to you after lunch, perhaps:
| DAWSON J: | Mr Jackson, what happens if you have a defendant |
in the action which has been lost who would have
been :incapable of paying the damages? Does that mean the value of the chance is nil?
| MR JACKSON: | Your Honour, it may well have an effect upon |
it, yes. If one had, for example, an action for
damages for personal injuries against an uninsured
defendant, perhaps in a jurisdiction where there
was no provision for insurance and the defendant
was a bankrupt company - a company in liquidation -well, then the value of the prospect of success
is something that - - -
| DAWSON J: | So really the date is the date of the loss of |
recovery, which is what Mr Justice Brennan put to
you I think?
| MR JACKSON: | In one sense, Your Honour, yes. What one looses |
is either a sum of money or the value of the
right to get the sum of money; the right to get the sum of money meaning, for the purposes of
the submission, a judgment for the money for
example. And, Your Honours, it may be that it is not worth much. Your Honours, the judgment of Mr Justice Macrossan referred to JACKSON V POWELL -
it might be convenient if I were to hand to
Your Honours copies of the extract, it is
paragraph 108. It does not take it past what
His Honour said. Your Honours, one has, of course, also the judgment of the Full Court of the
Supreme Court of Victoria - Your Honours
unfortunately the photocopying has chopped off the left side of the page, but the number 114 .108 ''has
been written on there. Your Honours, one has
| ClT17/l/SR | 29 | 16/2/88 |
| Perez |
also the judgment of the Full Court of the Supreme
Court of Victoria in NICKOLAOU & ANOR V PAPASAVAS
PHILLIPS & CO, which is the judgment under appeal
in the other case. Now, Your Honours, I do not really want to go into that, however, to the
extent to which I can avoid doing so, but of
course the decision, if it be correct, is one
which supports, needless to say, and Your Honour, the
argument becomes circular, supports our case.
But, may I simply refer Your Honours,without
attempting to read them,the passages which, in
our submission, correctly state the principles
applicable and could I give it to Your Honours
by reference to the appeal record in that case.
At page 73, in the judgment of the Chief Justice,
about line 24 to the end of that paragraph,
His Honour records the submission and then at
page 74, about lines 13 to 16, draws the distinction
between the original action and the action inquestion. And at page 75, going over to page 76,
His Honour again refers to the same matter whilst
looking at the loss of a chance.
(Continued on page 31)
| C1Tl7/2/SR | 30 | 16/2/88 |
| Perez |
MR JACKSON (continuing): And at page 76 line 19 says:
an estimate has to be made when such an
action might have been heard.
At page 77, lines 11 to 16, refers, correctly in
our submission, to the fact that:
The principle earlier referred to whereby
the law prefers facts to prophecies can have
no application for what has to be assessed
is the value as at -
and he goes on to elaborate upon that. And Your Honours, one accepts the facts that preference
of the law relevantly for facts to prophecies but one does that as at the time of the first action.
Your Honours, at page 80, the last five lines
on the page, His Honour expresses his view on the
matter which is in accordance with the submissions
which I have advanced. The second judgment was that of Mr Justice Kaye at page 87, lines 20 to 25,
where His Honour sets out his view of the nature
of the action against the solicitor and at page 90,
lines 20 to about 35, which seems to be the central
part of His Honour's judgment. And then page 95, lines 8 to 10, and the second indenting after
line 10. And page 97, lines 7 to 12. Your Honours, Mr Justice Murphy's judgment,
at page 109, line 22 through to page llD, line 2;
page 111, lines 12 to 15; page 115, lines 20 to
the bottom of the page and page 118, lines 7 to 14,
and page - I do not know if I gave Your Honours
page 125, lines 1 to 6. And finally, page 128,
lines 19 to 24. Your Honours, I do not want to
go over that case but, in our submission, it does
support the contentions we have been advancing.
decision which appears to be to the contrary and Could I turn from that to the principal that is the judgment of Mr Justice Miles in
VULIC V BILINSKY, (1983) 2 NSWLR 472. The passage which is relied on in the judgment of the Full
Court in Queensland in these cases is that which
appears at the bottom of page 486, the last
paragraph, where His Honour says that he returns:
to the question of whether for the purposes
of this case the court should try to projectitself back in time to a period when the
plaintiff might have been expected to have
brought the action on for hearing and if it
had come on for a hearing within the time
ClT18/l/ND 31 16/2/88 Perez expected for uncomplicated cases in which
a writ had been issued in the middle of 1970.
Your Honours, may I say, initially in relation
to that, it appears to have been a combined
submission; that is, a submission combining both
aspects of it, namely, that the time was that when
the plaintiff might have been expected to have
brought the action on for hearing and if it might
have come on for hearing within the time expected
for uncomplicated cases. And I put it that way, Your Honours, because the second part of the
observations made by His Honour seem to be directed
to the second part of the submission and it is
not really very clear what His Honour is saying
unless he is speaking in a particular context.
He says that:
Again this submission seems to me to be open
to two objections. The first is the notion that the court can project itself back in
time to imagine as it were that it was deciding
a case at a prior point in time. Although
I suppose it is notorious that the level of
damages has increased markedly over the years,
it is quite impossible in my view for a tribunal
of fact to say what it would have awarded
at such prior point of time as contrasted
with what it will award in respect of the
same facts in a verdict arrived at at the
present time.
(Continued on page 33)
ClR18/2/ND 32 16/2/88 Perez
| MR JACKSON (continuing): | Well, Your Honours, it is a matter |
of view, of course, but Mr Justice Sheperdson had
no particular difficulty in going back a year;
Mr Justice Macrossan appeared to be able to do
it also, and one would think that a court is able
to assess such matters. Your Honours, for example, His Honour goes on to say: Would for instance one apply the principles
for assessing the present value of future
economic loss as applied since TODOROVIC V WALLER.
And Your Honours, well, one would think that that is
one of the easier cases, really - easier instances.
One could see, for example if one were talking
about Queensland, whether the change in the law
that was brought about by the 1981 Act should or
should not apply by the selection of a date; one
could see that if it did not apply what the tariff
in relation to the percentage was. I use the term
"tariff" with a degree of distaste, Your Honours,
but it is referred to, in fact, in TODOROVIC V WALLER
as being 8_ per cent, being that commonly used in Queensland at the time. So, Your Honours,
one recognizes the existence of potential difficulties
but it may, in fact, be in a sense easier to assess
what would have been the position at an earlier
time because the evidence may be less complicated
than it is at the later time.
Your Honours, His Honour goes on to say then:
Secondly, the hypothesis verges on the unreal.
And His Honour is there, I think, referring to
that part of the submission which says that the matter should be tried as if it would have come on within the time expected for uncomplicated cases
in which a writ had been issued in the middle of 1970.
His Honour refers to that as a hypothesis and he
appears to be destroying that hypothesis in the
remainder of that paragraph. Your Honours, if he is endeavouring to state
a general proposition one sees no particular difficulty,
with respect, in identifying when a matter might
ordinarily have come on for trial.
Your Honours, could I go from that and, finally,
to the view taken by the Full Court in the present
appeals and in that regard may I take Your Honours
to page 286. Now, Your Honours, in the pages prior to page 286 the remarks in earlier cases to which
I have referred have been discussed and then
His Honour says - about line 15:
| C1Tl9/l/AC | 33 | 16/2/88 |
| Perez |
In PHILLIPS V WARD, (1956) 1 WLR 471 at page 474,
Denning LJ said that the general principle
of English law is that damages must be assessed
as at the date when the damage occurs. But in O'BRIEN V McKEAN (1968) 118 CLR 540, it
was said by Barwick CJ ( at p. 545) that in
the case of personal injuries, though there
may be something to be said logically for
making the assessment of damages as at the
date of the receipt of the injuries, the date
of the verdict was the proper date at whichto make the assessment. It is true, as
Young CJ pointed out in NICKOLAOU, that the
action against the solicitors is not an action
for damages for personal injuries but one
for breach of duty as a solicitor. However,where, as I consider to be the case here, the proper quantum of damages recoverable
from the solicitors is that sum of money which
would restore the plaintiff to the position
he would have been in if the actions for personal
injuries had been brought against the original
tortfeasors, it seems appropriate to make
the assessment of damages in the same manner
as in an action for personal injuries.
Well, Your Honours, that is correct, in our submission,
if one makes the assessment of damages in the same
manner as in an action for personal injuries but
as in the action for personal injuries which might
have been brought by the disappointed plaintiff.
It is that which one converts over to the action
against the solicitor and it is not, in our submission,
for the reasons I have advanced already, correctto make the jump from that to the action against
the solicitor so that the action against the solicitor
is tried as if it were the original action for
damages for personal injuries.
Your Honours, those are our submissions.
Our contention is that if the appeals were to succeed then the appropriate course would be new trials
limited to the question of damages.
(Continued on page 35)
ClT19/2/AC 34 16/2/88 Perez
| MASON CJ: | Thank you, Mr Jackson. | Yes, Mr Davies. |
| MR DAVIES: | May it please the Court, may I hand up some |
outlines of our submissions.
| MASON CJ: | You deal with some matters, of course, that have |
not been advanced by Mr Jackson.
| MR DAVIES: | Yes. | I was going to mention that at the outset, |
Your Honour.
| MASON CJ: | Yes. |
| MR DAVIES: | Your Honours, may I mention at the outset, then, |
that subparagraphs (4), (5) and (6) of paragraph 1 of
our outline are no longer relevant, and nor are
paragraphs 7 and 8 of our outline. Your Honours, can I go immediately to what the Court of Appeal in
KITCHEN and what Chief Justice Bray in TUTUNKOFF meant when they were talking about loss of a chance
because, in .our respectful submission, the Full Court
of Victoria misunderstood what those courts were
saying in saying that and we have set out in
paragraph 2 of our outline the way in which we say
the Full Court of Victoria misunderstood those
decisions because it failed to distinguish between
two questions; the first whether the plaintiff would have succeeded in the hypothetical action, or, if
that cannot be determined, what the chances of success
were; and secondly quite different questions, but coming up to one question, that is how one then
assesses the damages and the action against the
solicitor. The first of those is really the lost cause of action, in Your Honour Justice Brennan's
terms, and the second is a quite different question.
What the Full Court of Victoria seemed to be
saying, each of the members of it seemed to be saying is
that loss of a chance includes not only what was
theprospect of success in the earlier action, but
how much you would have been likely to get in that earlier action if the action had been tried at the earlier point of time. Clearly enough, in our respectful submission, that is not what either the
Full Court was saying in KITCHEN or whatChief Justice Bray was saying in TUTUNKOFF. Can I take Your Honours back to KITCHEN, just for
one passage to which our learned friend already
referred. That is (1958) 1 WLR 563, and the passage
which our learned friend read from, from the judgment
of Lord Evershed and to which I would like to return, is the passage on page 575, the second full paragraph.
When in that first and second sentence of that
paragraph His Lordship is talking about determination
of that value it is clear, in our respectful
| ClT20/l/HS | 35 | 16/2/88 |
| Perez |
submission, that he is not talking about how much the
plaintiff would have been likely to have got in thecase in the hypothetical action because that was a
case where there was a statutory amount which the
plaintiff would have been likely to recover. What
he was talking about, and all he was talking about,was how in a case where you cannot say with
confidence the plaintiff would have won or would have
lost, what his percentage chance of success was in
that earlier action.
The same is true of Chief Justice Bray in
TUTUNKOFF, if I can take Your Honours to what he said
in the passage which our learned friend cited at
pages 150 and 151. The reference to the case,
Your Honours, is (1975) 11 SASR 148, and in the passage
at the bottom of page 150 His Honour was answering a
contention for the plaintiff, as Your Honours will
see there:
Mr Fricker, for the plaintiff, contended
vigoroursly that I was only at liberty to assess the plaintiff's chances of success
in the lost action on the basis of the
evidence before me.
What he was saying is that in determining what the
plaintiff's chances of success in the lost action
were, either judge can look not only at the evidence
which is before me now, but at the evidence which
would have been before the, or might have been beforethe original trial judge when he would have
determined the action, but has been lost, often as of course is the case because of the solicitor's
negligence in failing to pursue the action.
(Continued on page 37)
| ClT20/2/HS | 36 | 16/2/88 |
| Perez |
MR DAVIES (continuing): So, in our respectful submission, what these earlier cases say is not that in any
respect one attempts to assess damages at some
earlier point of time, what they say and no more
is that one has to determine the question of what
the prospects of success are in the hypothetical
action, notonly on the basis of the evidence that
remains available but, also, on the basis of evidence
which might have been available to the trial judgebut has subsequently been lost.
Now, Your Honours, I do not want to take you
to the passages in NICKOLAOU in which that emerges.
Can I simply say - I can give Your Honours the
passages. Unfortunately, they would be to the advantage of the appeal books in the other appeal.
without taking Your Honours to them. In the judgment Perhaps I could just give Your Honours the references of the Chief Justice, 68,499 towards the bottom of column 1 to 68,500, about half-way down column l; 68,496 at the bottom of column 2 to 68,497 about the middle of column 2 and 68,500; Mr Justice Kaye at 68,503, column 2, about the middle and 68,506, column 1, towards the bottom; Mr Justice Murphy at
68,516 at the bottom of column 1.Now, that question just did not arise in these
appeals as our learned friend ultimately concedes
before you and the only reason why I am addressing
Your Honours on that topic is because that really
led the Full Court into error in NICKOLAOU and,
in our respectful submission, must be one basis of
our learned friend's submissions here. fut the question
about liability, the prospects of success in the earlier
action, did not arise in either of these two cases
because of the determination by His Honour the trial
judge in the actions against the solicitor, that is,
Mr Justice Demack in this case in which he did
conduct, in effect, a trial within a trial, found
in one case that there was no contributory negligence
as well as deciding in each case that themwas negligence of the defendant and can I simply give
Your Honours the passages in which he did that:
page 234, line 10; 235., line 40; 237, line 25 - that
is the first claim, that is the one against Transfield,
the Johnson claim,and the second one against Worldwide
Coating, the Creed claim, judgment at 236, line 1 to 237, line 35. So, it did not arise in this case. It
did arise in TUTUNKOFF as Chief Justice Bray recognized.It was one of those cases where the judge in that case
could not say that the plaintiff either would havesucceeded or would have failed in the hypothetical
action and so he had to assess the chances of success
and he said, quite rightly, that the plaintiff should
not be disadvantaged because of the loss of evidence
on that question between the date of the hypothetical
trial and the date of the actual trial against the
solicitor.
ClT21/l/SH 37 16/2/88 Perez Two other cases in which that principle was
applied,and I do not want to take Your Honours to
decision of the Supreme Court of the Northern
them, are PRIOR V McNAB, (1975) 78 DLR (3d) 319, a a
Territory.
(Continued on page 39)
ClT21/2/SH 38 15/2/88 Perez
MR DAVIES (continuing): Can I then come to the central
question, the date upon which the damages should
be assessed, and the general principle, in our
respectful submission, is that which is stated
in paragraph 4 of our outline, that is, that it
is the sum of damages which should as nearly as
possible be that sum which at the time of receiving
it places the plaintiff in the same position as
he would have been in if he had not sustained the
wrong. In this case we are talking about, of course,the solicitor's wrong.
Can I give Your Honours some references to
authority on that question: first, LIVINGSTONE
V RAWYARDS COAL CO, (1985) AC 25, at 39.
Lord Blackburn said:I do not think there is any difference of opinion as to its being a general rule that,
where any injury is to be compensated by
damages, in settling the sum of money to be
given for reparation of damages you shouldas nearly as possible get at that sum of
money which will put the party who has been
injured, or who has suffered, in the same
position as he would have been in if he had
not sustained the wrong for which he is now
getting his compensation or reparation.
And we emphasize the "now". And the same principle was stated in slightly different words by a number of Your Honours in TODOROVIC V WALLER. Can I just
give Your Honours the page references without reading
the passages. The reference to TODOROVIC is
(1981) 150 CLR 402. The passages are in the joint
judgment of the former Chief Justice and
Your Honour Justice Wilson at page 412, the judgment
of Your Honour the present Chief Justice at
page 442 and the judgment of Your Honour
Justice Brennan at page 463.
Now we say that this can only be achieved
by assessing damages as at the date of the verdict
against the solicitor, at least in two respects,
and these two are really sufficient for our purposes,
although we would really take it further than that
and the two respects are that it be in the money
of the day of the verdict against the solicitor
and the second;that it is to have regard to eventswhich have occurred since the date on which the
cause of action arose and also since, if it matters,
the date upon which the hypothetical action might have been determined which convert contingencies
into certainties.
With respect to the first of these, Your Honours,
the decision of this Court in O'BRIEN V McKEAN
| ClT22/l/ND | 39 | 16/2/88 |
| Perez |
1s authority, 118 CLR 540 first, in the judgment of Chief Justice Barwick ~t 545. In the second
sentence on that page His Honour said:
The successful plaintiff in an action for
such damages is to be compensated in the money
of the day, if I may be permitted what might
be thought to be a departure in expression from a strict nominalistic theory of money.
So much, I think, is well established in
English law -
and he gives an illustration. Then, in the
following paragraph he says:
In the case of such personal injuries,
though there may be something to be said
logically for making the assessment of damages
as at the date of the receipt of the injuries,
the date of the verdict is, in my opinion,
the proper date as at which to make the
assessment.
And then in the judgment of - I should mention perhaps in passing that Mr Justice McTiernan agreed
generally with the Chief Justice and with his
observations - specifically his observations withrespect to the change in value of money. That
appears towards· the bottom of page 552.
Justices Taylor and Menzies, at page 553,
at the top of the page, quoting from the judgment
of Mr Justice Smith said:
(Continued on page 41)
ClT22/2/ND 40 16/2/88 Perez
MR DAVIES (continuing):
With this we respectfully agree and we
also agree with that learned judge that
the general principle is applicable tothe assessment of damages for personal
injury. What is to be awarded is a sum
which, at the time of the award -
then they go on and I will not read any further.
WILSON J: But, Mr Davies, if one did contemplate making
the award at the date of the notional trial,
would not a grant of interest accommodate the
changing value of money, as well as the fact that
the party has been held out of his damages?
MR DAVIES: There may of course be other factors involved
and perhaps this is not answering Your Honour,
but one factor which His Honour Justice Brennan
mentioned during the course of my learned friend's
argument, which is in fact a factor in this case,
is that damages were increased by the failure to
prosecute this action diligently and they continueto increase.
WILSON J: Because of the psychological- - -
| MR DAVIES: | Yes. |
| WILSON J: | But that is a separate head of damage, surely? |
MR DAVIES: | It is and probably that just highlights the point that the assessment of damages, really, in our |
| respectful submission, must be more than what - I do not mean more than an amount - but it must involve more than simply determining what would have been ordered in a hypothetical trial. |
WILSON J: Yes, because the action against the solicitor is not
an action for personal injury simpliciter.
| MR DAVIES: | No, quite, but - - - |
WILSON J: That does not seem to answer the first proposition
to which you have been, I.directing your attention
that the damage or the damages suffered by the
failure of the action to come on when it should
form an element in the damages due against the
solicitors,assessed as they would have been at the
time of the notional trial?
| MR DAVIES: | Can I simply say, Your Honour, that if it does |
achieve the same result, one can achieve it with much
greater certainty,with much less speculation,by
doing it at the date of trial and we would really
ask rhetorically, why should the plaintiff recover
| ClT23/l/SR | 41 | 16/2/88 |
| Perez |
less from his negligent solicitor than he would
have recovered against the original tortfeasor if
that earlier action had been heard on the day of his
action against the negligent solicitor?
WILSON J: But, really what you are saying there is, that why
should he recover less against the solicitor than
he would have against the original tortfeasor had
that action against the tortfeasor been advanced to the
date of the trial against the solicitor?
MR DAVIES: Yes, I am saying that. But, in our respectful submission, it may well be for other reasons, of course,
that mere interest would not compensate him. I mean it is not just the fact that he is kept out of the
interest payments on his money. It may be that it is very difficult to pick a rate of interest which does
in fact reflect the loss which he suffered by the
delay. The fact that the - - -
| WILSON J: | In the depreciation of the currency? |
MR DAVIES: Yes, and there may be other factors involved in
the fact that he has been kept out of that money since
the date upon which the action might have come on for
trial in the original proceeding and the date of the
actual hearing against the solicitor. And, if one accepts the general principle which we advance, which
is that the object of damages is to place the plaintiff
at the date of the trial of his action against the
solicitor in the same position as if the tort had not
occurred, then that is a very good reason for assessingdamages in the money of the day of that verdict.
Your Honours, I was whilst on O'BRIEN V MCKEAN going to refer
finally to the judgment of Mr Justice Windeyer which
was to the same effect where, at the bottom of
page 554, His Honour said:
I was concerned with the reasons his Honour
had given for estimating a loss of earning capacity by reference to the rate of wages payable at the time the incapacity occurred rather than with the rate payable for the same work at the time when damages fell to be
assessed, namely the date of the hearing. I considered that it was in the light of all the facts then existing that the damages flowing from the tort should be measured.
And, Your Honours, one can see particularly how this
applies in a personal injuries action because what one is doing, of course, in personal injuries action in,say,things like loss of earnings, one can with some
degree of certainty, never wholly of course, but with
some degree of certainty fix what the loss of earnings
and say what the loss of earning capacity has been up
ClT23/2/SR 42 16/2/88
Perez (Continued on page 42A) to the date of trial, and then one guesses as to
what that is in the future. And one may in fact
in making that guess consciously or unconscioulsy take into account future inflation. But in a case
such as this a good deal of the guesswork is taken
out of it by the time the Toter ·action comes on
against the solicitor because then one can look
at the events up to that time and say not just there
are contingencies which have developed into
certainties with respect to injuries, but this is
in fact what the plaintiff's work history has been
up to this date, this is in fact how he has been
disabled up until the time of the action against
the solicitors.
(Continued on page 43)
| ClT23/3/SR | 42A | 16/2/88 |
| Perez |
| MR DAVIES (continuing): | So we say that at least to that |
extent, Your Honours, that is to the extent to which
we refer in paragraph 5 of our outline, the
assessment must be made at the date of verdict
against the solicitor. I will not take Your Honours to those further authorities. RUBY V MARSH in the passage we refer to in that outline is also
authority for the proposition stated in
O'BRIEN V McKEAN and both WILLIS V THE COMMONWEALTH and
RUBY V MARSH are authorities for the second
proposition.
Whilst on that question, perhaps I should take
Your Honours to the point Justice Brennan made, and
which is relevant to this case. I can illustrate it, I think, by taking Your Honours to the evidence fairly
briefly, that is that the plaintiff in this case
developed a psychological condition which was perpetuated and worsened by the delay. Theevidence really appears from two reports of
Dr Sutherland, the first of them which is at page 171
of the appeal book and that, Your Honours will see,
is a report as at 1970, and in the second paragraph
of that report at page 171 the doctor said:
With regard to his present condition,
I think he is still suffering from
post-traumatic nervous instability.
I have no evidence to suggest that this man's symptoms are consciously motivated
or that they may well be entirely
psychoneurotic and operative at the
subconscious level. On the other hand, I think it would be naive to believe that
his symptoms will improve in material
degree until litigation is settled and
I do feel that there was som elaboration
of his symptoms and disability during my
consultation today.
Then the next report, Your Honours, is at page 184, which is some seven years later in 1987. In the
second sentence he says:
As I emphasized in my earlier report of
1970, I think it would be in Mr Perez's
best interests if litigation could be
settled as speedily as possible, although
one has to admit that with the passage
of time, the psycho-neurotic reaction will
have become deeply seated and may not improve him becoming an invalid -
once litigation is settled. At any rate,
and so on. So it seemed to have become worse and more deep-seated over that interim period.
| ClT24/l/HS | 43 | 16/2/88 |
| Perez |
Your Honours, it was not contended in the notice of appeal to this Court, or indeed in
argument before the Full Court, that damages should
be assessed as at the date when the cause of action
arose. It was asserted that the damages should be
assessed as at the date when the hypothetical actionagainst the original tortfeasor would have been
heard. Now that, in our respectful submission, is not just speculative but illogical. It is
illogical because one can thereby arrive at a date
which is before the cause of action against the
solicitor even arises, and in fact the facts in one
of these cases, an~ in NICKOLAOU, changed a little,
would illustrate the point we make.
In NICKOLAOU the plaintiff had no cause of
action against his solicitor until the limitation
period expired without the solicitor instituting
proceedings. That happened to be - - -
| BRENNAN J: | Why do you say that, Mr Davies? |
| MR DAVIES: | Well he might have had a cause of action, but it |
would have been a different one, Your Honour. That is
all. I do not say no cause of action - he did not have this cause of action, the cause of action which
became relevant to the -was the cause of action.
He might have had a cause of action which would have
been - although, I suppose with inflation these days
it might be difficult to see whether he did have a
cause of action because just by mere delay, in the
sense that mere delay perhaps increases one's damages
because of inflation rather than the reverse, but
not this cause of action. That happened to be - the date upon which the limitation period expired
happened to be in September 1979.
(Continued on page 45)
| ClT24/2/HS | 44 | 16/2/88 |
| Perez |
MR DAVIES (continuing): And the date upon which the trial
judge held that had the solicitor instituted
proceedings promptly in 1977 the action would
have come on for trial was late 1979 or early
1980. Now that was simply an accident of the court
lists in Victoria but if the Victorian court system
had been a little more prompt, and I am not being
critical, then it may have been in the middle of
1979 that the action could have been brought onwith reasonable diligence. That is, before the
cause of action against the solicitor arose. And that, in our respectful submission, is nonsensical.
The present action against Johnson is
another example of that. The accident, Your Honours have been told, occurred in 1968, the action was
still on foot until June 1983. No doubt an action against Transfield could have been, if instituted with due diligence, over and finished well before
that date. So, in our respectful submission, it is illogical. It is also highly speculative, mainly
for the reasons which are advanced by
Mr Justice Miles in VULIC V BILINSKY. It depends
on a number of factors, the extent and stability
of the plaintiff's injuries and, in the end, it
involves the court speculating when an action -
this particular action, not any action but this
particular action with all its differences from
other actions which may be in the court list, whenthis action would, in the ordinary course of events,
if prosecuted diligently come on for trial.
BRENNAN J: Mr Davies, if the value of a cause of action changes over time as seems to be inherent in this
notion, our system does not necessarily give to
one party or the other the benefit of that increase
in value, does it?
MR DAVIES: Of course, we would say, I suppose, that it does not increase in real terms. If it is putting one
in a position, I suppose, to give one the purchasing
power to buy things which are lost in consequence
of the damages suffered, then what you are really
awarding by awarding it in the money of the day,of a later day, is giving the person the same
purchasing power as he would have had at that earlier
point of time if the action had been prosecutedpromptly.
BRENNAN J: If that theory is right there should not be any
ground of controversy, should there?
MR DAVIES: In what respect, Your Honour? BRENNAN J:
Between the parties in this case. Does it make any difference when the cause of action is valued,
ClT25/l/ND 45 16/2/88 Perez leaving aside the changes in rules of law such
as the discount rate that Mr Jackson referred to?
MR DAVIES: I suppose if one is being theoretical and one has the value of - theoretically, I suppose that
is right. The difficulty is, of course, that if
one did not exercise valuing it in an earlier point
of time one would be surprised at the interest
which would be necessary to bring it up to that
purchasing power as at the date of hearing of the
action against the solicitor. But it is, in our respectful submission, if nothing more, a round
about way of getting to the result which damagesare supposed to get, that is, to put the plaintiff
at the time he gets his damages in the position
he would have been if the tort had not been
committed.
Your Honours, the correct principle, in our
resepctful submission, was stated by
Chief Justice Bray in TUTUNKOFF, by
Mr Justice Miles in VULIC V BILINSKY and in one
other case, Your Honours, which is unreported which
is on our list, by Mr Justice Beach in WENDLEMAN
V WORLAND and I do not want to take Your Honours
to it but can I ask Your Honours to look at that
judgment at pages 16 to 18 which is really, in
effect, in the same terms as VULIC V BILINSKY.
MASON CJ: Can you give us the reference to it, Mr Davies?
It is not in your - I see, it is an unreported
case.
MR DAVIES: It is an unreported case, Your Honour, and I
think we gave you - it is an unreported case decided
on 9 July 1985, pages 16 to 18 of the judgment
are the relevant passages, Your Honour and I do
not want to read them, they really say, in our
respectful submission, what Mr Justice Miles said
in VULIC V BILINSKY.
(Continued on page 47)
ClT25/2/ND 46 16/2/88 Perez MR DAVIES (continuing): Your Honours, there is one other
matter which I should mention with respect to
NICKOLAOU, in particular, the judgment of
Chief Justice Young. He relied upon a principle stated by Lord Justice Denning in PHILLIPS V WARD,
(1956) 1 WLR 471 at 474 and, as I said, I cannot
give Your Honours the exact passage in
Chief Justice Young's judgment except by reference
to the Australian Torts -Reporter but this was really
given by Chief Justice Young as one of two answers
to the contentions which were put and which we are
putting. It is at page 68,500 of the Australian
Torts Reporter and it appears after a passage which he cites from the judgment of Mr Justice Miles in
VULIC V BILINSKY and it is really as to his reasons
for failing to accept VULIC V BILINSKY and it is
relevant to our submissions because we content that
VULIC V BILINSKY was correctly decided. His Honour
said:
With all respect I am unable to accept
this view. It is answered, I think, by the
approach adopted by the Court of Appeal in
KITCHEN's case to which Miles J does not seem
to have been referred.
And, can I pause there to say that we have really attempted to answer that by saying that KITCHEN's
case, really, says nothing about the point of time
at which damages are to be assessed. It is talking
of something quite different and it could not have
been talking about the point of time at which damages
are to be assessed because damages in that case were
a fixed amount but His Honour then goes on:
It is answered also by the general principle
of English law that damages must be assessed
as at the date when the damage occurs.
WARD, ~1956) 1 WLR 471 and. can I take Your Honours to And he referred to Lord Justice Denning in PHILLIPS V what Lord Justice Denning said in that case. At page 474 in the first full paragraph starting about a third of the way down the page, in about the eighth line, His Lordship said: The general principle of English law is
that damages must be assessed as at the
date when the damage occurs, which is
usually the same day as the cause of
action arises, but may be later .....
A fall thereafter in the value of money
does not in law affect the figure, for the simple reason that sterling is taken to be constant in value.
ClT26/l/SH 47 16/2/88 Perez Well, not only is that, Your Honours, inconsistent with what this Court said in O'BRIEN V McKEAN, but
it was later disapproved in the Court of Appeal in
a case called DODD PROPERTIES LTD V CANTERBURY CITYCOUNCIL, (1980) 1 WLR 433 and I will not take
Your Honours to the passages. I will just give them to you: 449, letters F to G; 456D and 459G and may we add, Your Honours, that the other two cases to which Chief Justice Young refers, where he says:
See also COOK V SWINFEN and c.f.
PERRI V ZAITMAN -
do not support the conclusion which, in our
respectful submission, His Honour reached. So, it appears,in our respectful submission,that all of the members of the Court in NICKOLAOU thought
that KITCHEN and TUTUNKOFF were authority for the
proposition that damages had to be assessed at the
earlier point of time.
(Continued on page 49)
| ClT26/2/SH | 48 | 16/2/88 |
| Perez |
MR DAVIES (continuing): In our respectful submission, that
was really caused by them, in that case, contrary
to Their Honours in the earlier cases, concluding
that loss of a chance meant not loss of a chance
of succeeding in the earlier action but included,as well, the requirement that damages should be
assessed at that earlier point of time. They are
our submissions.
MASON CJ: Thank you, Mr Davies. Yes, Mr Jackson.
MR JACKSON: Your Honours, if I might go first to our learned friend's recent reference to KITCHEN V
ROYAL AIR FORGE ASSOCIATION, it is not a hundred
per cent clear from the report of that decision
whether the £3000 was the maximum always recoverableunder the FATAL ACCIDENTS ACT, that is, at the
time when the action might have been heard or at
the time when the proceedings came before the Court
of Appeal. One rather suspects from the way in which it is put in the judgments in the Court of
Appeal that the position was that the figure had
changed by the time the matter came before the
Court of Appeal.
Lord Evershed at page 575 of (1958) 1 WLR,
says, two-thirds of the way down the page - speaking
of the judgment below:
He, therefore, concluded that she should be
entitled to recover £2,000, which was a figure
he arrived at as being equivalent to two-thirds
arithmetically of the full amount which
(admittedly) was the maximum recoverable under
the FATAL ACCIDENTS ACTS.
At page 577 in the paragraph two-thirds of the
way down the page, Lord Justice Parker says:
The judge assessed the damages at £2,000
as against £3,000 the amount agreed to be
the maximum recoverable if she had succeeded in the action.
And, finally, at page 580 in the last paragraph
in the report, Lord Justice Sellers says:
On behalf of the plaintiff, it has not
been sought to establish that she was certain
of victory and should have recovered £3,000,
which was agreed as the appropriate sum in
a successful claim under the FATAL ACCIDENTS ACTS.
ClT27/l/AC 49 16/2/88 Perez Your Honours, may we endeavour to check what the
exact position was in relation to the enactments
and if we are able to cast any more light on it
to let Your Honours, and perhaps our friends
have a note about it in the next day or so.
| MASON CJ: | Yes. |
| MR JACKSON: | Your Honours, the second matter is this: | there |
is no particular theoretical difficulty, in our
submission, in taking the view that one may look at events after the original action to determine whether the plaintiff should have succeeded but
at what would the plaintiff have succeeded? The
answer is, in our submission, that the plaintiff
would have succeeded in obtaining then a judgment
in a sum calculated at that time.
Your Honours, the next point in our learned
friend's submissions with which I wish to deal
is this: reliance was placed upon
LIVINGSTONE V RAWYARDS COAL CO, 5 App Cas, and
in particular in the speech of Lord Blackburn at
page 39 and it is a passage that, in effect, recurs
in TODOROVIC V WALLER, but what His Lordship said
was - this is the fifth line on the page:
I do not think there is any difference of opinion as to its being a general rule that,
where any injury is to be compensated by
damages, in settling the sum of money to be
given for reparation of damages you shouldas nearly as possible get at that sum of money
which will put the party who has been injured,
or who has suffered, in the same position
as he would have been in -
and then he goes on to say -
if he had not sustained the wrong for which he is now getting his compensation or reparation.
And the addition of those words "for which he is
now getting his compensation or reparation" is
the indication, in our submission, that what one
is looking at is that you put him in the same position
as he would have been in, namely, that he would
have had a judgment given at an earlier time,
plus interest on it.
| ClT27/2/AC | 50 | 16/2/88 |
| Perez |
| MR JACKSON (continuing): | Your Honours. the next matter with |
which I wish to deal is this: if one, as our
learned friends have urged, is assessing the damages
as at the time of the action against the solicitor,
what does one do in the case of the impecunious
defendant, the instance which Your Honour
Justice Dawson put to me earlier? Why,in such a case,
does one take into account the fact that the action
against that defendant would not have been productive
of a beneficial result financially.
Th.ere seems no especial reason to take that
into account unless the approach that one is taking
is to value what was the prospect of success of the
proceedings in the first instance and that cannot be
done without looking at the amount of money which
might have been achieved from it. Your Honours, those are our submissions.
MASON CJ: Thank you, Mr Jackson. Yes, Mr Redlich?
| MR REDLICH: | May it please the Court, may we say something |
firstly to the Court about the facts in this appeal
which are of particular relevance to the groundsthat have already been argued in the first appeal.
MASON CJ: Are you going to favour us with an outline of
submissions?
MR REDLICH: Certainly, sir.
| MASON CJ: | Thank you. |
MR REDLICH: Before taking the Court to the outline of submission,
we just say these things about the facts of our
appeal which have some significance. The accident which gave rise to the appellant's claims was on
4 September 1976. He retained the respondent's services on 6 May 1977. On 19 April 1978, the respondent issued WRONGS ACT proceedings on behalf of the
appellant and the appellant's daughter in relation
to the death of the appellant's wife in the car accident. On 8 October 1979 the WRONGS ACT proceedings were settled.
(Continued on page 52)
| ClT28/l/SR | 51 | 16/2/88 |
| Perez |
| MR REDLICH (continuing): | The cause of action, therefore, |
against the respondent for failing to issue personal
injury proceedings on the appellant's behalf expired,
it appears, on 4 September 1979. That is by virtue
of section 5(6) of the Victorian LIMITATION OF ACTIONS ACT and would, in our submission, appear
to be the case that that is the date on which the
cause of action therefore accrued against the
respondent. And that question was recently
considered by Mr Justice Murray in DOUNDOUNLAKIS V
ANTONY SDRINIS & CO (1987), Australian Tort our learned friend, Mr Davies, made reference to the
fact that one could well conceive of a situation
in which the action might accrue at a date later
than the date upon which the personal injury
action might have been heard if the solicitor had
not let the action die. Well, in this case en the findingsof the learned trial judge, the action would have
come on in late 1979- As I have just indicated to
the Court, the cause of action accrued on 4 Sept.ember 1979.
So that without stretching the facts to any
appreciable degree this indeed might have been
such a case.
As to the proceedings against the respondent:
in this case the appellant establish at the trial of
the action that the respondent was negligent. The trial judge assessed the appellant's damage at $18,318 including interest of $2850 which ran from
the date of the issue of the writ. The trial judge received evidence of the appellant's
injuries up to the date of the trial judge's assessment
of the damages to be paid by the wrongful solicitor
and the appeals to the Full Court went against the adequacy of the assessment and on the respondent's
behalf he appealed that the trial judge should have
assessed the claim for damages as at the date theaction would have come on for hearing.
(Continued on page 53)
| ClT29/l/SR | 52 | 16/2/88 |
| Perez |
MR REDLICH (continuing): We should observe that during the course of the trial no objection had been raised by
the respondent to the admission of evidence of the
appellant's injuries up to the date of the trial of
the solicitor's negligence and it was not, in fact,
until the respondent's final submission in the course -
at the end of the trial that it was suggested to the
learned trial judge that the assessment should takeplace at some earlier point of time. I will take the
Court shortly to a passage in the judgment of the
Chief Justice, Chief Justice Young, in which referenceis made to the date on which this action would have been
heard for trial had the solicitor not let the action
die. Indeed, it is not disputed before this Court.There was no evidence led at the trial in relation to
that issue. The date of late 1979 or early 1980 was
suggested by counsel for the respondent in the course
of final submission and that, unfortunately, found
its way into the learned trial judge's sunnnary of the
facts although there was no evidence in relation to it
and although it was contested before the learned trial
judge. The matter was raised before the Full Courtand the court was informed of the matter that I have
simply informed the Court of now, namely, that there
was no evidence in relation to that date. If it has
any significance we simply draw that to the Court's
attention, that there was no evidentiary basis upon
which the learned trial judge should have found as he
did at page 32 of the appeal book that the action
would probably have come on at the end of 1979 or early
1980.
Now, what we submit, if it please the Court, is
that - I am sorry, I have omitted one further pertinent
fact. It was agreed by the parties before the trial judge that the respective negligence of the appellant
and the other driver was to be apportioned 25 per cent/
75 per cent. That agreement - on that basis, the learned
trial judge ultimately apportioned the damage which he
assessed in those amounts. So that at the trial and on appeal it had been agreed that the appellant, had
proceedings been issued against the original tortfeasor, would have succeeded in those proceedings establishing
the negligence of the original tortfeasor and that
there would have been an apportionment in the order of
75/25 ..
(Continued on page 54)
ClT30/l/PLC 53 16/2/88 Perez
MR REDLICH (continuing): That being the setting in which
the trial judge had to consider this question,
the trial judge was then dealing with a case in
which it was clear to him that the appellant would
have succeeded against the original tortfeasor
and we simply submit that that being the case,
as Lord Evershed clearly and unequivocally said
in KITCHENjs case, did not involve any question
of an assessment of a lost chance because it was
onl½ as His Lordship indicated, in thosecircumstances where it was not plain that the
appellant would succeed in the original action
that one had to indulge in the exercise of
assessing the value of a lost chance.
| DAWSON J: | He said that but why? |
| MR REDLICH: | I am sorry, Your Honour. |
| DAWSON J: | Why do you say that is so? |
MR REDLICH: Why should that be so? DAWSON J: Yes, I know it was said.
| MR REDLICH: | In effect, the whole of my submission, |
Your Honour, will be directed to answering that
question. I will be grateful if Your Honour indicates that I have not satisfactorily answered
at a later stage in the submission. Perhaps by
way of summary we would say it is so because the
appellant will not, otherwise, adequately be
compensated because the court is concerned in
assessing the lost amount of money which the
appellant would have recovered in the original
proceedings. The court is concerned with establishing what is a fact, namely, what were
the injuries which the appellant sustained at the
hands of the original tortfeasor and what is the
value of those injuries. The court is not concerned, we would submit, in a speculative exercise but is, in fact, concerned with evaluating what the injuries were that the appellant suffered and what
compensation he was likely to receive for those
injuries.and what we submit occurred in this appeal
and occurred before the Full Court is that that
phrase "the amount of money which the appellant might have receoved in the earlier proceedings" is not intended, in our submission, to mean any
more than what was the value of the injuries whichthe appellant was entitled to seek and obtain
compensation for.
| ClT31/l/ND | 54 | 16/2/88 |
| Perez |
| MR REDLICH (continuing): | In our case the negligent solicitor |
did not institute proceedings. The principal injury suffered by the appellant was a psychiatric
injury. There was no medical examination by either
doctors engaged by the appellant or by the respondent.
Indeed, the question of the nature of his injuries
was not undertaken as a medical question until
proceedings against the respondent had been conrrnenced.
What is involved in the proposition contended for by
the other side is none the less, but despite the
absence of any medical consideration of the question,
a plaintiff should be confined to those damages which
he was likely to have led medical evidence about had
the original action been conrrnenced against the
tortfeasor.
The only reason, of course, the appellant was
without any evidence in relation to the period when
the original action might have been conrrnenced and
considered and determined is because of the
dereliction of duty of the solicitor. What therespondent says is notwithstanding that the appellant
was not in a position - if we look back to a
hypothetical earlier trial date,- that the appellant
was not in a position to adduce evidence at that
time about an injury which is the result of the
original tort, he should none the· less be deprived of the value of that particular aspect of his
injuries. The only reason - - -
| DAWSON J: | No one is suggesting that he should not be able to recover as an additional element in the loss |
| That is something separate, is not it? | |
| MR DAVIES: | Your Honour, perhaps I have not expressed myself |
clearly. I am not now speaking about aggravation to his condition resulting from the delay. Here the
reason that the parties are before the Court is
because the psychiatric condition did not manifest
appellant originally approached the respondent to itself clearly until some point of time after the act on his behalf and the respondent would no doubt contend had the action come on on 4 September 1979 there would have been no medical evidence and no evidence of continuing financial loss to be considered by the court.
(Continued on page 56)
| ClT32/l/HS | 55 | 16/2/88 |
| Perez |
MR REDLICH (continued): Yet if the case had come on 12 months
or 18 months later, there would have been a significant
body of evidence to that effect, thus the date becomescritical. What we are submitting is that one of the
principal reasons why there would have been no
consequences at a notional trial date, is because of
the negligence, or the lack of action by the solicitor.evidence in relation to that injury and its did not turn their mind to the question of identifying the injuries which the appellant had sustained; the
consequences of those injuries. Yet there is no question they were injuries that the appellant
sustained; they were injuries which the appellant
was entitled to receive compensation for. Had the solicitor not been dilatory; had the solicitor instituted proceedings; had the appellant been
submitted to medical examinations, then it is purespeculation to ask, well, what evidence would have then been led on the notional trial date of the
action against the original tortfeasor?So that we wish to make the point at the outset
we are not merely concerned here with the fact that
giving the appellant a sum of money which is fixedat some past date does not give him a sum in terms
of present purchasing power. We are not merely concerned with that; we are concerned with the fact
that the appellant has, by virtue of the solicitor's
negligence, been deprived of being able to claim the value of
all of the injuries which he sustained in the accident.If I may, I will seek to amplify that in relation to
some more specific submissions.
The setting in which we submit this appeal is to
be considered, then, is that the court was not
concerned with the question of success against the
original tortfeasor. That was established by virtue
of the agreement between the parties, and thereforethere was no question of a calculation of a lost
chance. Our learned friend, Mr Da"2::kes, has taken the Court to the passages of the judgments of the
three members of the Full Court. We will not repeat
that exercise. We simply submit this: we adopt what our learned friend, Mr Davies, has said. that
there is nothing in the judgment of Lord Evershed
which supports the proposition that the lost chance
or the lost right which His Lordship spoke of is to be
extended to the question of determining the amount of
damage which the appellant would have recovered.
In each of the judgments of the members of the
Full Court, we would respectfully submit, that it is
on that basis that the question of assessment of
damages is to be determined by the same method, namely,
by valuing the lost chance.
| ClT33/l/VH | 56 | 16/2/88 |
| Perez |
MR REDLICH (continuing): But it is that approach which each of the members of the court adopted which
led them into the error of concluding that it
is the notional trial date which is the critical
date on which damage is to be assessed.
May I put that another way: there may be arguments why a notional trial date is the
appropriate date to assess damages but if there
are such arguments they do not flow from the
method of valuing the prospects of success referredto by His Lordship, Lord Justice Evershed.
The cases of VULIC V BILINSKI, Mr Justice Miles'
decision, the decision of Mr Justice Beach in
WENDLEMAN V WORLAND, the decision of Mr Justice Ried
in PRIOR V McNAB and the decision of Chief Justice Bray
in TUTUNKOFF V THIELE all support the proposition
that the correct date for assessment is not
a notional trial date but the date on which
the matter is being considered by the trial
judge in respect to the solicitor's negligence.In DAVIES V TAYLOR, (1974) AC 207, Lord Cross, speaking of the judgment of Lord Evershed in
KITCHEN V ROYAL AIR FORCE ASSOCIATIO~ at page 223,
described the loss as one which relates to the
prospect of the action being successful. We submit that His Honour's summation of the judgment
of Lord Evershed is, indeed, apposite and where
it is plain that the plaintiff must have succeeded
on liability in the lost action no valuation
of a lost chance is involved.
There are three decisions that we should
refer the Court to which have not been the subject
of previous citation.
MASON CJ: Perhaps you can do that after lunch, Mr Redlich.
We will resume at 2.15.
AT 12.44 PM LUNCHEON ADJOURNMENT
| ClT34/l/SDL | 57 | 16/2/88 |
| Perez | ||
| UPON RESUMING AT 2.16 PM: | ||
| MASON CJ: Yes, Mr Redlich. |
| MR REDLICH: | May it please the Court, I was about to take the |
Court to some authority. May I just make these observations about two of the cases referred to by
the appellant in the first two appeals. In relationto TUTUNKOFF V THIELE, it is submitted that the passage
referred to at page 150 of that report was a passage in
which Chief Justice Bray was dealing not with a question
of quantum but with a question of liability and, indeed,
His Honour's remarks, in our submission, should be taken
in that context. Secondly, and perhaps more significantly,
it is clear from the evidence that His Honour received
that His Honour was undertaking a present day assessment
of the injuries sustained and not one in which he was
projecting himself back in time to ascertain the valueof the injuries on a hypothetical state of evidence,
that is, what evidence would have been available at the
time.
MASON CJ: That is conceded, is it not? I did not think that
that was in dispute as to what His Honour actually did.
MR REDLICH: Well, with respect, Your Honour, I did not follow
my learned friend, Mr Jackson, to be making that
concession because if His Honour was making a present
day assessment, then it was, clearly, not consistent
with the principle upon which he relied in TUTUNKOFF
V THIELE, albeit, that there was only a
year or 18 months' difference between time in which
His Honour thought the action would have come on for
hearing and the date of his own assessment.
The second case referred to was DOLMAN AND
OTHERS V PENROSE and we would submit similarly in
relation to the judgment of Mr Justice Bollen that
the passage at page 491 is one dealing with the question
of liability rather than any question of the quantification of damage.
There are three cases that we should draw to the Court's attention which have not been previously
cited, which appear to support the propositions to
the contrary of our argument. Those three cases are McGRATH V KIELY, (1965) IR 497, particularly at
page 514.
| ClT35/l/SH | 58 | 16/2/88 |
Perez
MR REDLICH (continuing): All we would say in passing about
that case, it was a case referred to by some of the members of the Full Court in their judgment
in NICKOLAOU that was a case in which the court had to consider the consequence of an omission
in the particulars of injury of a fractured clavicle.
The surgeon had omitted to include the same in
his reports and the solicitor, in turn, had failed
to include that as a head of injury in the
proceedings which were issued.
The plaintiff contended in an action against
the solicitor and the surgeon that because that
injury had not been relied upon in the proceedings
against the tortfeasor the plaintiff had failed
to beat the payment into court that had been made.
If that injury had been included the result would
have been different. And so the exercise for the
court in McGRATH V KIELY was to assess what the
additional compensation would have been for that
head of injury, the fractured clavicle, and ascertain
whether or not it would have resulted in the plaintiff
beating the payment into court. It concluded that
it would not have and simp)y awarded the plaintiff
against the solicitor and the surgeon the value
of the fractured clavicle.So what might, at first blush, seem to have been a case suggesting that the correct date for
assessing damage is the notional trial date, is
really, in our submission, quite distinguishable.
The second case we would refer to in MAYLON
V LAWRANCE MESSERS & CO, referred to again by
members of the Full Court in NICKOLAOU,
(1968) 2 Lloyd's Rep 539. That was a decision
of Mr Justice Brabin, Queen's Beanch Division,
and what His Honour was there concerned with, in
our submission, was not the valuation of what the
plaintiff would have got for injuries arising from
a motor car accident in England but to ascertain
what a German court would have awarded the plaintiff because the collision occurred in Germany and
His Honour there received expert testimony as to
how a German court would have proceeded to assess
the injuries of the plaintiff and what quantum
of damage would be awarded.
So we would submit that those cases do not
really stand in the way of the propositions that
we advance.
(Continued on page 60)
ClT36/l/ND 59 16/2/88 Perez
| MR REDLICH (continuing): | The third case is SHIGAEVA V SCHAFER, |
(1985) 5 NSWLR 502. It is an action against a
solicitor. There is merely one line in the report,
at page 519 at the very conclusion of the report,
in which the trial judge appears to have concluded
that the correct date for assessing damages is the hypothetical, or notional, trial date. No argument is reported or reasons for the decision
that His Honour arrived at in that case.
While dealing with a case that had not
previously been referred to the Court, could I
also pass to the Court a decision of SMITH V WELLS,
(1984) 47 Nfld & PEIR 326.
| MASON CJ: | You certainly seem to have scoured the globe for |
these decisions.
| MR REDLICH: | I regret, Your Honour, that we are not able to give Your Honour assistance in the American |
MASON CJ: That regret is not shared, I think, by the members
of the Court.
| MR REDLICH: | I am pleased to hear that. | At page 330 to 331 |
Deputy Chief Justice O'Regan assesses the damage
in that case in the way for which we contend, namely,
he conducts a present day assessment. His Honour
considers the implications of KITCHEN and proceeds
conduct a present day assessment. His Honour in
doing so relies amongst other things on the decision
of PRIOR V McNAB which has already been referred
to the Court.
The appellant~s entitlement, in our submission,
is -the same whether or not the cause of action
was founded in contract or tort and we rely upon
O'BRIEN v McKEAN, TODOROVIC V WALLER andWENHAM V WALLER, (1972) 127 CLR 454,in support
of that proposition. (Continued on page 61)
| ClT37/l/AC | 60 | 16/2/88 |
| Perez |
| MR REDLICH (continuing): | The question, in our submission, |
is essentially one of why select the notional or
hypothetical trial date as the date upon which to
ascertain what monetary sum or damages the appellant
has lost as a result of the solicitor's negligence,
and we submit the correct starting point in analysing
whether that indeed is the appropriate date is to
go back to what we submit are well-established basic
principles and that is that the general, though not
universal rule, is that the damages, whether for tort
or for breach of contract, are to be assessed as atthe date of breach, and that that principle will give
way when it is concluded by the Court that to assess
on that date will not result in adequate compensation
for the appellant and our learned friend, Mr Davies,
has referred the Court to DODD PROPERTIES V CANTERBURY
CITY COUNCIL, ( 1980) 1 WLR 433 in which there is a
detailed exposition of the way in which, or the
circumstances in which that general rule as to the
proper date for assessment should give way, having
regard to general principles of compensation.
We invite the Court to look particularly at the
judgment of Lord Justice Megaw at page 934 of DODD's
case, and similar expressions of opinion can be found
in JOHNSON V AGNEW, (1979) 2 WLR 487, particularly at
page 499. Finally,dealing with the proposition that
the general rule as to the date of assessment being
at the date of breach giving way where appropriate
compensation will not be achieved by assessing on that
date, we would refer the Court to the discussion to be
found in COUNTY PERSONNEL V ALAN R. PULVER,(1987)1 All ER 289, at 297 to 298. That was a solicitor's
negligence case and the court considered in some
detail the question of what is the appropriate date
upon which to assess damages.
The passage that I have referred to pages 297 to
298, in our submission, applies with full fOrce here
and that ultimately the date to be selected is the one
which, in our submission, will properly reflect the
overriding compensatory rule. (Continued on page 62)
| ClT38/l/HS | 61 | 16/2/88 |
| Perez |
| MR REDLICH (continuing): | I am also reminded that there is the |
dicta of Mr Justice Walsh in WENHAM VELLA, (1972)
127 CLR 454,at page 466.
| BRENNAN J: Does not all that assume something? | In other |
words, .to say that to assess it at one date does not
give adequate compensation is to mask the
question, what is to be compensated for?
MR REDLICH: Hopefully not to mask it, Your Honour, but indeed
ultimately one must resolve what it is that is
being compensated and we do not shirk from the proposition which fell from Your Honour's lips
that what the appellant is entitled to be
compensated for is the amount of money that he
would have received in relation to the action which
has been lost. The reason, we would submit, why the appropriate date, however, is not the notional
trial date depends on a number of factors and
hopefully in the next few minutes I will explain why,
in our submission, that date - the notional trial
date will not present the appropriate time forassessing so as to properly ascertain what is the
monetary amount which the plaintiff would have
recovered.
The Full Court does not suggest,in our submission,
that the proper date for assessing damage is
the date of breach, namely when the cause of actionarose. The Full Court without authority, in our
submission, simply assumes that the correct date
should be the notional trial date. And, we would
submit that for the reasons articulated by the
Court of Appeal in PEREZ V JOHNSON, the judgment of Mr Justice Ryan, that is not the appropriate
date. Now the reasons for doing so have to some extent been advanced by Mr Justice Davies. Reference
has been made to the general principle of
compensation in LIVINGTSTON V RAWYARDS and we would
simply in passing refer to two additional cases on
that general compensatory rule. They are ADMIRALTY COMMISSIONERS V S.S. SUSQUEHANNA, (1926) AC 655 at 661, and a second admiralty case of the
ADMIRALTY COMMISSIONERS V S.S. VALERIA, (1922)2 AC 242 at 248.
(Continued on page 63)
| ClT39/l/SR | 62 | 16/2/88 |
| Perez |
DAWSON J: Mr Redlich, is it convenient here to ask you just
how high you put your case? Do you say that in this case even if the injuries Dr which the plaintiff now
claims compensation were not known and could not have been
known in a speculative fashion at the time at which
the action would have come on for trial, nevertheless,
you assess the damages as at the later date.
MR REDLICH: No, we would not put it that highly, Your Honour. If it can be established that through no reasonable
steps taken by the respondent could a a particular
injury or consequential loss have been properly
identified, then that is an issue which could be
raised, whether it went to the fundamental question
of whether the solicitor had been negligent or
whether it simply operated as a basis for excluding
from the plaintiff a.head of damage. No, we would not suggest it was as high as that.
DAWSON J : I suggest to put it in the terms of this case is that alL that could have been proved at the time of the trial
had the solicitor not been negligent was that this
man had a cut on his head which required stitching.
You would not suggest that, nevertheless, the full
amount of his damages which, subsequently became
known were recoverable, would you?
MR REDLICH: Well, not if the conclusion were that all reasonable
steps taken by the solicitor in pursuant of his duty
would not have resulted in that particular injury or
its consequences having been identified but the point
I was making rather clumsily before lunch was that in
this case and in many cases, we would suspect the
majority of cases, the reason that the negligent
solicitor can say when he is being sued, "But you are
claiming an additional amount to that which you would
have got had you proceeded against the original
tortfeasor" is because no consideration was given to
that injury or its consequences.
DAWSON J:
But the point of asking that question is that you
do concede there are some circumstances in which you
cannot simply at the time that you try the action
against the solicitor, try the damages as at that
stage.
MR REDLICH: Indeed DAWSON J: That you have to go back to the earlier time.
MR REDLICH: Whether or not it would be precluded as an item of damage because the solicitor could establish in relation
to such a claim that he was not negligent. By illustration, if the solicitor could show that the only injury which a
plaintiff was now seeking to recover against him for was
one which no reasonable diligence on his part and proper
investigation would have disclosed, then he has a complete
answer to any suggestion that he has been negligent.
ClT40/l/SH 63 16/2/88 Perez
| DAWSON J: | But in those first circumstances the damage is |
tried as at the earlier date.
| MR REDLICH: | No, in those circumstances, Your Honour, the |
issue would be resolved on the question of
liability, that the solicitor has not been
negligent at all but see, here, Your Honour,
His Honour found at page 29 of the appeal book
that:
However, although the full implications which
are now alleged to follow on from that
initial nervous state might not have been
reasonably foreseeable back in 1977, the plain
fact is that there was sufficient reason then
for at least making the enquiries, and -
| DAWSON J: | Yes, I appreciate that but what I am positing |
to you is a case in which it could not have been
known. It is not a question of liability, the
solicitor has been negligent, he should have covered
for something, namely, the cut on his head. But in the fullness of time something else transpires
which would not have been known and therefore when
you say that in those circumstances the issue of
damages is to be tried as at the time the original
trial would have come on you are making an exception
to your principle.
| MR REDLICH: | Your Honour, if I may, with respect, we would |
not submit that it is to be tried at the time the
original action would have come on - - -
DAWSON J: Well, the damages are to be assessed as at that
date and it may be the time of the trial or it
may be the time of recovery, whatever it is, butat the earlier time.
| MR REDLICH: | Yes, and we would submit the other exceptions |
which have been mentioned in argument fall into
the same category, the suggestion that the original
tortfeasor may not have the financial capacity to meet the judgment. And that is not a question that involves an assessment at the time the
original action would have been completed. Nobody would know, we would submit, what the means were
of the tortfeasor in satisfying a judgment at the
time the action was completed. It might be many
months or years before it becomes apparent that
the appellant is not going to get full satisfaction
for the judgment that has been obtained. But none the less we would not shirk from the proposition
that if ultimately the negligent solicitor can
show, in his action, that the appellant would not
have got the fruits of that judgment then that
is clearly a matter for the court to take into
account.
| ClT41/l/ND | 64 | 16/2/88 |
| Perez |
MR REDLICH (continuing): But that does not bear on the question, in our submission, of what is the correct
date upon which to value the injuries or, putting
it another way, the date on which to determine
what amount of money the plaintiff ought to have
received for those injuries. Similarly, the
suggestion made that there may be statutory
considerations which place a ceiling on the amount
of money which the appellant could recover. They would not, in our submission, bear upon what is
the correct date for assessment but, again, would
be an ultimate factor in limiting the amount which
the trial judge in the solicitor's negligence action
would award.
DAWSON J: You seem almost to be saying that to assess the damages as at the date of the trial of the action
against the solicitor will provide the correct
measure of damages - the correct measure of
compensation - unless there are circumstances to
which you can point that will show that that is
not so, such as a change in the statute law; such
as the fact that the injuries for which he is claimingcompensation were not known and could not have
been known at the time - well, that might be alright.
MR REDLICH: Yes. Well, that is, with respect, what we do
submit: that there may be overriding considerations
which, ultimately, either totally or to some extent
preclude the appellant from recovering the full
amount of damages that -
DAWSON J: You could say you could do it another way: by assessing the damages as at the earlier time and
trying to make up for the loss of time by interest
or in some other way. There is no need to do that,
you say. You say that - - -
MR REDLICH: Well, for the reason we are about to advance that is, in our respectful submission, a far more
complicated way to try and assess damage and the
reasons are these: firstly, we submit, to recapitulate on what has already been put, that the amount which
a plaintiff would have got against the original
tortfeasor would be a lump sum discounted and based
on the then purchasing power of money so that,
as in this case, if the respondent were correct
the appellant would get a lump sum which would
have been the amount given in 1979.
(Continued on page 66)
ClT42/l/AC 65 16/2/88 Perez
| MR REDLICH (continuing): | The interest component that has |
been suggested might be added would,at
deal with the fact that money has lost its value
between that date and the date of the action
against the solicitor, so that the interest
component might deal with the question of the
reduction in value of money. In Victoria, however,
the court has no power under the provisions of
the SUPREME COURT ACT to award interest for a
date prior to the date of the issue of the writ.Section 79A of the SUPREME COURT ACT
which was the relevant provision at the time of these
proceedings, now sectian 60 of the SUPREME COURT ACT 1986 does
BRENNAN J:
But it would not be awarded as interest, -would it, it would just oe - 'Wi:-.at you have lost is the $10,0vu they should have
gpt 5 years ago? Wh.c.t is the amo:ui:1t of your p!."~se:n.-e- loss.
| MR REDLICH: | It would have to be at..vardec:. as a head of damage, |
Your :~nour ~ vle would accept that.
BRENNAN J: But not as interest.
MR REDLICH: No. The factors which have got to be allowed for, not
merely the loss in value of the money, in any
case where the personal injury is a continuinginjury, that is,where it has not been -resolved at the notional trial date, we would submit, in every
case without exception, the plaintiff will suffer
from the fact that he or she has been kept out
of the compensation to which he or she was entitled
for whc1.tever period elapses between that notional
trial date and the date on which the trial judge hearing the solicitor's negligence action awards the amount against a solicitor, because that lump
sum, assuming that it is a continuing injury -the
lump sum which would have been awarded on the
notional trial date covers such questions as loss of
amenities of life, pain and suffering and it is
difficult, if not impossible, to conceive of a
situation in which there is damage sustained because
of the fact that the appellant is kept out of thatmoney for that period between the original trial
date, if one can identify it, and the date of proceedings against the solicitor.
So, it would not merely be a matter of awarding
an amount equivalent to interest to account for
the loss of value of the money, there would in
every case of continuing injury have to be damage
for the effect of not receiving the compensation
to which the plaintiff was entitled for that
period of time. And obviousl½ depending on how
serious the injuries were, the more serious the
damage flowing from the fact that the plaintiff
was kept out of his money for that time. And the
only way, we would submit, that one can assess the
damage flowing from being kept out of money for that
| ClT43/l/SR | 66 | 16/2/88 |
| Perez |
period of time is to look at the events which
have occurred between the notional trial date and
the time of the action against the negligent
solicitor. So that if we are dealing with continuing injuries, and this is, we would submit the only
area where a problem is likely to arise, if the
injury is resolved there is no problem about giving
damages of at any earlier point of time, if theyare continuing injuries, then the court as a
matter of course will have to look at evidence up
to the date of the action against the negligent
solicitor because it will have to make an assessment
of how the plaintiff has been affected by being
kept out of compensation to which he or she wasentitled in relation to loss of enjoyment of life,
pain and suffering. And one can readily imagine, of course, many cases in which the plaintiff needed
that money for surgery, for care - nursing care,
hospital treatment, and, of course, for that period
of time has not been able to have it. That is nota question of aggravation of an existing injury
which would be a separate head of damage but,in our
submission, is part of the damage which inevitably
flows in every case where there is a continuing
injury and would have to be the subject of
consideration.
(Continued on page 68)
| ClT43/2/SR | 67 | 16/2/88 |
| Perez |
| DAWSON J: | I just want to get quite clear what you are saying. |
You are saying prima facie assessing the damages now
is the best evidence of the value of the chance which
has been lost, but it is only prima facie because
there may be circumstances to which you can point
which mean that you have to depart from that principle;
such as a change in statute, such as an illness whichwas not able to even be speculated about at the earlier date. Now, if you say that, I can understand that and
that answers a lot of the things that would be put
against you. Is that what you are saying?
| MR REDLICH: | Yes, but Your Honour, I am now advancing another |
reason why the appropriate date for the assessment is
the date of determination of the negligence suit
against the solicitor and not the earlier date,
because wherever it is a continuing injury the Court
will have to consider the effect of non-payment of
the compensation throughout that period.
| DAWSON J: | Yes. | You say that is the best valuation you can |
make of the loss of the - - -
| MR REDLICH: | That is so - is the current, a present day |
assessment.
| DAWSON J: | Yes. |
| MR REDLICH: | Yes. |
| DAWSON J: | Better than interest could provide, better than |
anything else.
| MR REDLICH: | We also submit, if it please the Court, that - |
| BRENNAN J: | In theory there ought not to be any difference. |
| MR REDLICH: | Indeed, Your Honou~ | we | would | agree with that |
wholeheartedly, Your Honour. Theoretically the
damage remains the same. Whenever the case is heard, indeed, the Victorian Full Court said as much in the
case of WRIGHT V WEST AUSTRALIAN TRUSTEE EXECUTOR AND AGENCY CO. LIMITED, (1987) VR 771, at page 781. In
what was effectively a joint judgment it was said atpage 781:
The damages awarded should not be altered by any consideration dependent simply upon the
time at which the action is commenced or the
time at which the trial takes place.
Notionally the damages remain precisely the
same whenever the case is tried, save and
except that events -
subsequent to the wrongful act may change -
probabilities into known facts.
| ClT44/l/HS | 68 | 16/2/88 |
| Perez |
The court there was dealing with a different issue,
but none the less that view, in our submission, is
apposite here, that what ought not to be lost sight
of is that we are valuing the - the damages ought
not to be different in theory. Of course, they are
for a multitude of reasons, including the fact thatmoney loses its value.
| BRENNAN J: | But it ought not to be different even for that |
reason, but the real problem, it seems to me, is that
if you assess them at the earlier date - I am speaking
now of future economic loss - then you are bound to
adopt the 3 per cent and it may prove in the resultthat 3 per cent is inappropriate, if you assess it at
the later date. Now, there is therefore a logical difference by adopting notionally the 3 per cent
at the earlier date, pro or con.
| MR REDLICH: | Indeed. |
| BRENNAN J: | But that apart, I do not see that in theory there |
should be any.difference at all. Take the case of the medical expense. If at the earlier date you can foresee that there is going to be an operation in two years time, you give the present value of the amount that will have to be paid out in two years time.
If you assess it in three years after that then you
give the amount that was paid out a year before plus interest on that sum. There should not be
any difference in theory.
(Continued on page 70)
| ClT44/2/HS | 69 | 16/2/88 |
| Perez |
| MR REDLICH: | In that sense, no, Your Honour but in so far as |
the tribtmal of fact of the notional trial date is
awarding a lump sum which is to cover loss of
enjoyment of life, the fact that once that lump
sum is paid, the plaintiff is then able to organize
his or her life so as to maximize or rather to
minimize the amount of discomfort flowing from
injuries, then as we have submitted a moment ago,
there must inevitably be a continuing damage because
the plaintiff if being kept out of that lump sum.
The tribunal of fact in giving a lump sum at the
notional trial date would discount the amount that
they gave because it is a present lump sum. So that the amount given to the plaintiff on the
date of notional trial would have to be less than
the amount that it would have given the plaintiff
five years later for precisely the same injuries.That, with respect, is to state no more than the
obvious but there are, in our submission, clear
differences in the amount that would have to be
awarded at those two respective dates by virtue of
the lapse in time and that is to say nothing of the
issues that would arise were the plaintiff to contend,
as was the case here and as was the case apparently
in the first appeal, there was some a3gravation or
exacerbation of the condition by virtue of beingkept out of his or her money.
Another way, we would submit, of analysing the
matter is to ask where should the burden lie if there are difficulties associated with assessing the amount of money that the plaintiff would have received at an
earlier point of time, where should the burden fall?
Is it better that the plaintiff or that the defendant
bear the consequences of any variation in the
compensation that is given if it is to be assessed
at the later point of time? It is not merely, in our
submission, that there is a difficulty in identifying
the date upon which the action would have been heard.
That, we would respectfully submit, is a very difficult
exercise and, as His Honour Mr Justice Dawson pointed out earlier today, a matter of days may turn out to be
critical in terms of the e.':fect that it has on the
compensation which the plaintiff receives and we would
submit that it is fanciful to suggest that a number of
years after an action would have come on for hearing
that a judge can be asked to predict with any certainty
when a case would have come on for hearing but that is
not the only thing he is asked to predict. If the respondent's argument is to prevail, he must not merely
predict the date. He must predict the injuries which
the injured plaintiff would have claimed at that time
and he must predict the evidence upon which the
plaintiff would have relied to support those injuries.
Now, in this case, no steps were taken to make a claim for personal injuries. No doctors were consulted. It
| ClT45/l/SH | 70 | 16/2/88 |
| Perez |
was some years before the plaintiff was in any
position to identify the injuries or the evidence
upon which he would rely to make his claim out,
and yet the respondent would have it that one is
none the less to assess the damage by reference to
that notional trial date, the judge is somehow to
make an assessment of what evidence would have been
available to the plaintiff at that notional trial
date to establish the injuries that he sustainedand the consequences thereof. In this case, it would
have been if not impossible exceedingly difficult for
the plaintiff to have established that and largely for
one reason because of the negligence of the respondent.
It was because the respondent did not undertake the
investigations and the inquiries that he was required
to that the plaintiff was not in a position, if the
notional date is the correct date, the plaintiff would
not have been in the position to satisfy a judge now
assessing what amount he would have received on thenotional trial date that he would have been able to
make out this head of damage.
The Court, we would submit, ought not to be
placed in the position of having to make such difficult
assessments and, if there is any difference or variationin the amount awarded between the notional trial date
and a present day assessment - if there is a difference
and if that difference is brought about wholly or in
large measure because of the negligence of the solicitor
then, in my submission, it is consonant with principle
to say that it is the respondent, the negligentsolicitor, who should carry the burden of that
difference.
(Continued on page 72)
ClT45/2/SH 71 16/2/88 Perez
| MR REDLICH (continuing): | And putting that another way, |
it was suggested earlier, we are dealing with a
cause of action which has increased in value.
We would submit, theoretically, that the action
does not change in value but to the extent that there might be a change in value, if that change
has been brought about wholly or partly because
of the negligence of the solicitor, in oursubmission, the proper place for that burden to
rest is at the feet of the solicitor and not at
the feet of the plaintiff who is unable, at the
later point of time, to satisfy the court as to
what injuries and evidence he would have been able
to place before the court.
Indeed, my learned iunior reminds me, 1n
M.r justice Beach's case of WENDLEMAN V WORI.AND, His Honour
was dealing with the reverse situation.
His Honour pointed out that by making a present
day assessment it had become clear that an injury
which the plaintiff might have earlier been able
to contend was attributable to the original
tortfeasor's conduct was not attributable to that
cause and therefore the plaintiff would receive
less.
In our submission, that is the court looking
at the facts with the assistance of all known events
since the original injuries were sustained, is
in a much better position, in our submission, to
award a fair amount of compensation, is much more
likely to be able to do justice between the parties
than in the converse situation.
We would, in passing, in dealing with this
question of the impossibility of identifying a
date on which the notional trial would have been
heard, refer the Court to a passage in the judgmentof Lord Wheatley in the case of ROBERTSON V
BANNIGAN, (1965) SLT 66. His Honour there talked,
amongst other things, about heaping imponderables
upon imponderables if one were to try and go back in time to identify when a case would have been heard. So what we contend, in summary, is that if
one were to award a lump sum, that is the lump
sum which it is assessed would have been given
at a notional trial date, one is, of course, not
providing a lump sum which makes allowance for the loss of value of money, •J•one is awarding a lump sum which has been discounted at the notional
trial date because it is then a present payment.
It is a lump sum which does not make any provision
for the continuing suffering of the plaintiff between
the notional trial date and the date of the action
against the solicitor and it places the appellant
| ClT46/l/ND | 72 | 16/2/88 |
| Perez |
in a position on the action against the solicitor
for negligence where he is forced to try and
establish what injuries he would have identified
and the evidence upon which he would have relied
in circumstances where he has not followed that
previous course of conduct because of the negligenceof the respondent.
If I may turn to what is the second ground
of appeal, in the event that the Court is of the
view that the assessment is to be conducted at
the present time, the time of hearing the action
against the solicitor's negligence, the third ground
of appeal contends that the method used by the
trial judge in this case of assessing the
appellant's damage was erroneous. Obviously, if
the court comes to the view that the correct date
for assessing the damage was a notional trial date,
then the matter would have to be remitted for a
retrial on the assessment of damage and this third
ground of appeal does not arise for consideration.
(Continued on page 74)
ClT46/2/ND 73 16/2/88 Perez
| MR REDLICH (continuing): | But if the Court, in effect, |
upholds the view taken by the judge at first instance,
His Honour felt constrained by the unreported decision
of Mr Justice Beach in WENDLEMAN V WORLAND to assess
the damages as at present. If the Court allows
our appeal on the first two grounds and finds that
the correct date of assessment is the present then
the Court would need to consider the third ground
of appeal which deals with the method of assessmentfollowed by the trial judge.
The Full Court did not - Chief Justice Young
and Mr Justice Murphy did not consider the question
of whether the trial judge had used the correctmethod of assessing damage, they having concluded
that His Honour was wrong in making a present day
assessment. So that the matter has not been canvassed by the Full Court. We would simply say these things about the method of assessment used. If I could
take the Court to the appeal book. What His Honour the learned trial judge did, at page 42 - - -
MASON CJ: This is rather unsatisfactory, is it not? We
do not have the benefit of the consideration of
this by the Full Court.
| MR REDLICH: | That is so, Your Honour. |
MASON CJ: If you were to succeed it might be the proper
order would be to send it back to the Full Court.
| MR REDLICH: | That is certainly a course that is open. |
Mr Justice Kaye appears to have expressly approved
the course followed but the other members of the
court did not consider the question. I will be brief, Your Honour.
| MASON CJ: | Yes, very well. |
| BRENNAN J: | Which is the ground of appeal that you are speaking |
of, that which appears on page 55?
MR REDLICH: | It is ground Con page 135, Your Honour - D, I am sorry, Your Honour. Now, it is obvious that |
| the ground is in error in stating that the | |
| Full Court upheld the method - - - | |
| MASON CJ: | Yes. |
| MR REDLICH: | That two members of the court did not consider |
that question. What His Honour the trial judge did at page 42 was to divide the appellant's loss
into various periods and His Honour held that for
the period from March 1977 to March 1986 His Honour
concluded that he thought that there was a one
in four chance of success of the plaintiff's claim.
| ClT47/l/AC | 74 | 16/2/88 |
| Perez |
And having concluded a one in four chance of success
he then took the full amount which the plaintiff
was claiming for that period and thus divided it
by four to arrive at the figure set out in thefirst paragraph. And similarly for the period
from March 1986 onwards. His Honour estimated
that the chance of success by the plaintiff was
one in twenty being a one in twenty chance of the
plaintiff getting the whole amount that he was
claiming for the future.
Now, what we simply submit is that if the
law required a present day assessment of the appellant's
damages then what His Honour was required to do
was to make his own assessment of the injuriesand their worth and that on no view could a calculation in terms of a percentage chance
of achieving 100 per cent of what the plaintiff
claimed be a correct method of assessing damage~
that is the issue was not what prospect did the
plaintiff have of getting 100 per cent of his
claim and that particular submission is setout at point 16 of the outline of submission.
(Continued on page 76)
ClT47/2/AC 75 16/2/88 Perez
| MR REDLICH (continuing): | The trial judge's method of |
assessment was expressly approved by Mr Justice Kaye
at page 102 of the appeal book and His Honour in
making that assessment, notwithstanding that
His Honour felt bound to make a present day
assessment, took into account at page 36 of the
appeal book the view that he thought a jury was
likely to take of psychi~tric evidence. His Honour
noted that over the years he had:
noticed a distinct hesitation and a
degree of conservatism in non-lawyers, whether as lay members of tribunals assuch or as members of juries, in their
approach to claims involving psychiatric
matters.
It is not clear how His Honour employed that
conservatism or hesitation in his ultimate assessment
of damage but,in our submission, if the correct
rule of law be that a present day assessment is
required, then the characteristics of what a jury
might have done and any particular idiosyncracies
of a jury are, in our submission, irrelevant to
His Honour's task. And, finally, we submit that in broad terms the learned trial judge misdirected
himself by asking what the percentage chance was of
the plaintiff succeeding in respect of particular heads of damage. In our submission, the injuries
suffered and their consequences had to be determined
on the balance of probabilities, not by reference
to chances. And, the House of Lords has recently
considered this question in HOTSON V EAST .BERKSHIRE AREA
HEALTH AUTHORITY, (1987) P WLR 232. In
our submission, if it is a present day assessment
His Honour was required to deal with the question on the balance of probabilities and not by
reference to the issue of a lost chance. May it please the Court.
MASON CJ: Thank you, Mr Redlich. Yes, Mr Buchanan?
| MR BUCHANAN: | May I hand to the Court copies of our outline |
of submissions.
| MASON CJ: | Thank you. |
| MR BUCHANAN: | If the Court pleases, an important part of the |
submissions that have been put forward on behalf
of the appellant is that the question of quantum
in a solicitor's negligence case, where that
negligence leads to the loss of a right of action,
is divided into two parts. The first part is the question of determining how likely it is that
the plaintiff will succeed or would have succeeded
in his lost action and the second part is assigninga value to that prospect once it has been determined
what it was. And, while we do not mind that, the
| ClT48/1/SR | 76 | 16/2/88 |
| Perez |
appellant also says that in the end different rules
and different principles govern the two parts. The
first part is truly valuing a chance in the way
in which the Courts in KITCHEN and other like casesdid, that is making an estimate of what would have
happened on some prior date, but the second part
is not valuing a chance at all, it is determined
by the same rules that would apply if the
negligent solicitor were standing in the shoes of
the original tortfeasor or wrongdoer.
In our submission, the same principles do
apply to both parts of this question of quantum and
they must do so because otherwise the Court is
not valuing the lost chance of the plaintiff and
is not compensating him precisely for what it is that
he has lost.
(Continued on page 78)
| ClT48/2/SR | 77 | 16/2/88 |
| Perez |
| MR BUCHANAN (continuing): | We would say that, to steal a |
phrase of my friend's and adapt it, it is a general
and universal rule that in assessing damages,whether
they be damages for breach of contract or tort, what
the Court is concerned with and does is to ensure that
the person who has been wronged is placed as nearly as
possible in the same position as if he had not beenwronged by the defendant whom he is suing and we, for
our part, also refer to what is often said to be the
origin of the principle, from the speech of Lord Blackburn
in the case of LIVINGSTONE V RAWYARDS COAL CO. It is conveniently set out, if the Court please, in the case
of COUNTY PERSONNEL V PULVER & CO, (1987) 1 WLR 916,
a case cited by my learned friend but, I am afraid
our reference is to the Weekly Law Reports, not the
All England Law Reports. It is at page 925 that
Lord Justice Bingham, about a third of the way down
the page, stated what he described as the overriding
rule of Lord Blackburn. It:
Has been repeated on countless occasions
since: the measure of damages is
"that sum of money which will put the party who
has been injured, or who has suffered, in the
same position as he would have been in if he
had not sustained the wrong for which he is now
getting his compensation or reparation."
And he added to that what Lord Justice Megaw said in
DODD PROPERTIES and we would say that is a useful test
in the present case:
"In any case of doubt, it is desirable that the
judge, having decided provisionally as to the
amount of damages, should, before finally
deciding, consider whether the amount conforms
with the requirement of Lord Blackburn's
fundamental principle. If it appears not to
conform, the judge should examine the question
within one of the exceptions of which Lord again to see whether the particular case falls Blackburn gave examples, or whether he is obliged by some binding authority to arrive at a result which is inconsistent with the fundamental principle."
Well, we would say that the test which His Lordship there
proposes is apt here and the amount awarded by the trial
judge and the way in which he went about assessing that
amount was not and could not be the amount which the
plaintiff lost as a consequence of the solicitor's
negligence. It was, at least a component of it, must
have been and necessarily was bec~use he is assessingit as at the day of the trial before him, something
which the plaintiff would not have got but for the
solicitor's negligence.
| ClT49/l/SH | 78 | 16/2/88 |
| Perez |
In our submission, the breach of contract or
duty in the present case was failing to issue the
proceedings against the incorporated nominaldefendant claiming damages for the plaintiff's
personal injuries and, if that breach had not
occurred, the appellant would probably have had
the benefit of a trial of his action at a time
found by His Honour and he is to be restored, we
would say, to that position, and not to any other
position.
Now, we would illustrate it and we would hope
not in too simplistic a way by the example of two
persons who, for example, are identical twins who
are injured in the same accident in identical
circumstances by the same defendant. One has a competent, careful solicitor; the other does not.
And the first has his action brought on in due
time and he recovers damages in a particular amount
according to the rules that would apply by the
tribunal then in assessing his damages. His twin,
unless one is going to take the notional trial and
one is going to attempt to fix what would have been
on a prior occasion, is going to recover,
necessarily will recove:c. a different amount.
(Continued on page 80)
ClT49/2/SH 79 Mr BUCHANAN, QC 16/2/88 Perez
| MR BUCHANAN (continuing): | We would say that it can be seen |
from that that the second plaintiff has simply not
been restored to the position he would have been
in if no wrong had been done, he has. been placed in
a different position.
| BRENNAN J: | Is that so, Mr Buchanan? | After all, the first |
plaintiff got his money years ago.
| MR BUCHANAN: | Yes, Your Honour. |
| BRENNAN J: | The second one did not. |
| MR BUCHANAN: | Yes. | We would say that it is often the case, |
certainly in conunercial actions, that a plaintiff does
not receive the compensation to which he is entitled
at the time when he ought to, and that is a conunon
situation in the law and one with which it grapples,
but the way in which it grapples with it is by the
award of interest, but no more. For example, a person
who has an orthodox conunercial cause where he is
claiming damages for defective goods that he purchased
pursuant to a contract of sale of goods might take
his action, for one reason or another, five years
and eleven months from the date upon which his cause
of action accrued, that is when he first received the
defective goods, and the court will award him
interest and the fact that it will not inquire
and cannot inquire as to why it is that for the
period between the breach and the damage and the
institution of proceedings he lay quiescent.Now, in the present case we would say, bearing in mind steadily that one is talking about a solicitor
who is negligent in the way in which he goes about
his duty, not a person who himself causes personal
injury, that that being so the plaintiff, like the
person who gets the defective goods, is in the
position of a man who can sue inunediately his
cause of action arises; that is, in the present case he could certainly have sued at the moment his action became statute barred. Now, we would say that the reasons why he did not sue then and only sued some
years later is a matter about which this Court must
speculate, and indeed any court might speculate, but
we would say it is not really a matter that forms
properly the subject-matter of investigation by the
Court.
It is possible, of course, that that is an
additional ground of complaint of either the solicitors
who are the respondents to this appeal, or perhapssome other firm of solicitors. They should have done
earlier what they did not do until quite late, but
we would say that there is no difference, and there
ought not to be a difference, in principle, in the
way this case is treated and this plaintiff is treated
| ClTS0/1/HS | 80 |
| Perez |
from any other plaintiff who also complains about a breach of duty of solicitors, either of contract or
~te same duty giving rise to a duty in tort. In our
submission, the way in which the law deals with that
is by the award of interest. It does not deal with it by assuming that the gap, that is that the waiting
before proceedings are instituted to right the wrong,
is something for which the original tortfeasor should
compensate the plaintiff.
| BRENNAN J: | I am not sure that follow that. | Take, for example, |
the case of a plaintiff who has a whiplash injury to
the back. If he had the money he would buy a water-bed. He has not got the money so he does not buy a water-be<l until his case comes to court. Now, does
he get damages in the meantime for the pains he has
suffered by not being able to lie on a water-bed, or does not
he, or do you give him notionally the cost of a water-bed
when his injury is sustained, plus interest?
| MR BUCHANAN: | We would have thought, Your Honour, that in the |
end it comes down to a question of what items of loss
ought reasonably to have been within contemplation
of the solicitor who caused the wrong, and if the
correct result is that he ought to have foreseen that
if he negligently allowed, or carelessly allowed
an action to be barred which prevented the plaintiffrecovering money when he should, that thereby the
plaintiff would be put to additional harm,
additional to that that simply flows from not having
his money now, such as increased pain and discomfort
because he has no financial way of relieving it.We would have thought that perhaps that might be a
proper head of recovery, but that would be a matter
to be determined in those terms and is not to be
answered simply by assessing all the plaintiff's
damages as at the date of the trial of the
solicitor's negligence.
(Continued on page 81)
| ClTS0/2/HS | 81 |
| Perez | |
| MR BUCHANAN (continuing): | Could we refer the Court to |
what we think might be the only one we can cite
that no one else has, of PERRI V ZAITMAN,
(1984) VR 314. We rely upon it because we would say that the distortion that is caused by treating
the negligent solicitor as if he were the original
wrongdoer is illustrated by what might have
happened in this present case and it also takes
up the question that Your Honour Mr Justice Dawson
asked this morning.
This is a case where the plaintiffs were
assaulted by two persons who were subsequently
sentenced to terms of imprisonment who had no money.
The plaintiffs retained solicitors to sue the
wrongdoers and the solicitors negligently allowed those proceedings to become statute bar, they did not take the proceedings within time, and the question
for His Honour was, "What was the sum which ought
properly to be awarded in the action against the
solicitors, having regard to the fact that the
wrongdoers were well nigh insolvent?" And the
argument that was put with which he had to deal
by counsel on behalf of the plaintiff is set out
at page 317, at line 9:
Mr Hart submitted that it was not open to
a defendant to urge that damages awarded
against him should be limited by his ability
to pay and that the present case involves
a similar proposition. I do not think that
this is a parallel comparison. The defendants'
solicitors do not, in these actions, plead
a limited ability to pay any judgment. What they wish to rely on is a matter which they
say is directly relevant to the actual value
of the plaintiffs' loss.
And then if I could go down to line 25:
The jury will be asked to evaluate the pecuniary loss suffered by the plaintiffs by reason of the fact that they could not proceed with their actions.
And then again, at line 30:
It -
that is, the question of whether the judgment was
recoverable in the sense of would it lead in the
end to satisfaction -
goes to the very heart of the value of the
lost chance.
| ClTSl/1/ND | 82 | 16/2/88 |
| Perez |
And we would say that in the present case the
consequence of equating the solicitors here with
the original wrongdoer, or his representativethe incorporated nominal defendant, would have
to lead to the recovery of an amount which was
not the value of the thing lost but something else.
In our submission, if a court which is trying
a question of the negligence of a solicitor in
the circumstances like the present, that is, where
it leads to the loss of a cause of action, if it
admits evidence of events after the date when the
trial of that cause of action should have beenheld but was not because of the negligence of the
solicitor, we would say that it is no longer, that
is the court hearing the action, is no longer
awarded the plaintiff what he has lost but is doing
one of two things, it is either giving him something
which he would never have received but for the
negligence of the solicitor, in the case of a
change of circumstances which is more favourable
to the plaintiff, or in the case of a change of
circumstancesdetrimental to the plaintiff, it is
depriving him of something he otherwise would have
received and merely because - that comes aboutbecause of the solicitor's negligence.
We would say that the matters that were raised
by His Honour Mr Justice Miles in VULIC V BILINSKY
do not warrant a departure from what is basic
principle and, really, we would say the only
principle that leads to the proper result.
(Continued on page 84)
ClT51/2/ND 83 16/2/88 Perez
MR BUCHANAN (continuing): His Honour said, in the first place, that it was impossible to estimate what
another tribunal would have done at another time
an4 to echo other courts, we would say, yes it
is perhaps difficult but it is not impossible and the fact that the exercise cannot, of its nature,
be precise, we would say does not necessarily destroy
its validity. It is still the best means, imperfect
as it is, of arriving at what is closest to the
correct result. And, without taking the Court to the case in detail, could we refer to the case
of TALBOT V GENERAL TELEVISION CORPORATION,
(1980) VR 224, as an example of a court grappling
with the estimation of a chance and its value.
In that case it was the chance that was lost
by not being able to sell to a television company a
proeramme that the plaintiff had devised, and it
sits in the same category as the task of the court
in CHAPLIN V HICKS to determine what the chance
was of being excluded from a beauty contest when,
I think, th~ plaintiff had reached the last 50.
His Honour also said that it was impossible to
fix the date of trial. We would say that that
is a question of fact which is capable of decision
on evidence which is readily available and that
would be evidence of general practice in like cases
and, we would say,that it· is evidence of what happensin like cases run by the average, reasonably competent
and careful solicitor.
Now, we would submit that in that regard it
again is a matter for any retrial of this action
as to whether or not these solicitors, that isthe respondents to the appeal, were, in addition
to allowing the action to become statute barred,
also perhaps negligent in not assembling andgathering, at least by the time that a notional
trial might have come on, the evidence that the
plaintiff now says he would require in order to
properly conduct an action that tries his claim for injuries. We would say that is not a matter that is relevant or material to the question of
what is the appropriate date as at which to assess
this plaintiff's injuries. It might well be an
appropriate matter for the judge when the matter
is retried if it is contended before him that there
was, in fact, an additional area of negligence
over and above merely inaction in the sense of
allowing the statute to run, and there might be
loss that can be demonstrated as flowing from that
but that can be coped with and dealt with within
the context of an exercise which is valuing, and
truly valuing the lost chance.
| ClT52/l/AC | 84 |
| Perez |
It is not a reason, in itself, for departing
from that exercise and trying the action as if
it were an action against the original wrong-doer.
Your Honours, it was put that if the appeal were
to - apart from the question of a date for trial
a complaint is made of the method by which, and
the amount in respect of which, the trial judge
fixed particular items of loss and we would not
think it necessary to detain this Court with argument
on that point because if the exercise that the
Court is engaged upon is, in fact - and should
be engaged upon, that is the court hearing the
solicitor's negligence - hearing all the evidence
as if it were trying the original action for personal
injuries then, subject to those matters - or subject
to what precisely were the failings of the solicitors,
we would have thought it probably follows thatthe judge does not embark on the exercise he did:
that is, he does not try to evaluate what were
the prospects, or would have been the prospects
in 1979 or 1980, of this particular plaintiff proving
particular items of his loss.
If the Court pleases.
(Continued on page 86)
ClT52/2/AC 85 Perez
| MASON CJ: | Thank you, Mr Buchanan. | Mr Redlich? |
MR REDLICH: | May it please the Court, our learned friend in answer to the illustration in relation to the | |
| waterbed did not, in our submission, address what | ||
| ||
| personal injury and that is at least theoretically that | ||
| the provision of a sum of money is to restore | ||
| the plaintiff as far as money can to the plaintiff's | ||
| former self and that is an expression which has | ||
| been used from time to time in the cases and if | ||
| that be so, if that is the object of a monetary | ||
| payment by way of compensation to as far as money can put the plaintiff back, make him whole, then | ||
| obviously in all cases of continuing injury there | ||
| is continuing damage sustained until the plaintiff | ||
| receives that sum of money. | ||
| The case of PERRI V ZAITMAN, we submit, supports the proposition we advanced earlier that whilst | ||
| judgment. As to the suggestion of the respondent | ||
| that it is easy enough to select a notional trial | ||
| date, we submit why has it been that a trial date | ||
| is selected as the most likely date on which the | ||
| ||
| notorious fact that the vast majority of personal | ||
| ||
| and to verdict, so why is it that the notional | ||
| trial date should be selected as the date upon which the plaintiff has to have his damages assessed. And | ||
| if we are correct in saying that in the vast | ||
| majority of cases the plaintiff will come into his | ||
| money as a result of asettlement whether before trial | ||
| or during the course of it - the full verdict, then | ||
| does that no, in our respectful submission, | ||
| highlight the impossibility of a task facing a | ||
| ||
| case would have settled as distinct from gone for | ||
| trial. |
(Continued on page 87)
| ClT53/l/SR | 86 | 16/2/88 |
| Perez |
MR REDLICH (continuing): There is only one other matter
we would seek to raise. It does not strictly arise
out of our learned friend's reply and that is
His Honour Mr Justice Murphy in his judgment
rejected the notion that there could be any
amount of damages given to make up the difference
between the amount which would have been awarded
at the notional trial date and the assessment of
the solicitor's negligence and that appears at
page 124 of the appeal book. The other two members of the Court, it does not appear, addressed that
particular question.
MASON CJ: Yes, thank you, Mr Redlich. Mr Buchanan, do you
want to respond to that last point in any way?
MR BUCHANAN: No, Your Honour, other than to say that it really was a passing remark and I think it was
based on what His Honour read in the judgment
of Chief Justice Bray in TUTUNKOFF where His Honour
doubted the basis upon which a court could throw
something in or give something extra for that loss.In respect of that, I would only rely on the matters that I put to the Court in answer to
Mr Justice Brennan's question.
MASON CJ: Yes.
MR BRITTON: May it please the Court, my learned leader this morning undertook to supply some additional
pages of the judgment. Your Honours, on looking
into the matter, it appears that you already have
the full number of pages that we intended to refer to so I simply wanted to mention that to the Court before we adjourn.
MASON CJ: Thank you, Mr Britton. The Court will consider its decision in these two appeals
AT 3.37 PM THE MATTER WAS ADJOURNED SINE DIE
ClT54/l/SH 87 16/2/88 Perez
Key Legal Topics
Areas of Law
-
Contract Law
-
Negligence & Tort
-
Civil Procedure
Legal Concepts
-
Damages
-
Negligence
-
Limitation Periods
-
Appeal
-
Remedies
-
Causation
0
4
0