Johnson v Perez

[1988] HCA 64

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.

JOHNSON v. PEREZ

(1988) 166 CLR 351

6 December 1988

Negligence

Negligence—Legal practitioner—Solicitor—Liability to client—Proceedings on client's behalf—Strong likelihood of success—Solicitor's negligence—Proceedings dismissed for want of prosecution—Damages for negligence—Time for assessment—Consequential claims—Evidence of events occurring since dismissal of proceedings.

Decisions

MASON C.J. The respondent engaged the appellants to act as his solicitors in two personal injury actions. The accident which was the subject of the first action occurred in 1968 and the accident which was the subject of the second occurred in 1973. Although each claim was filed in time, each was dismissed for want of prosecution - the action for the 1968 accident in 1983 and the action for the 1973 accident in 1980. The respondent subsequently brought an action against each appellant claiming damages for negligence and breach of contract. The Supreme Court of Queensland (Demack J.) determined that the respondent established all of the elements of a claim in both personal injury actions. The trial judge went on to assess the damages. The details of those awards, which are described in the judgment of Wilson, Toohey and Gaudron JJ., were not challenged before the Full Court of the Supreme Court of Queensland (Andrews C.J., Kelly S.P.J. and Ryan J.) and are not challenged here. The appellants' contention, which was rejected by the Full Court, is that the court at first instance erred in assessing damages "according to the prevailing awards at the time of assessment". In the appellants' view damages for the injury of the loss of the personal injury actions should have reflected the amounts that would have been assessed when the actions would have been determined had the appellants not been negligent. As Ryan J. in the Full Court observed, because of the rise in personal injury awards over the past decade, "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".

2. The guiding principle in the assessment of damages is compensatory. The object is to award the plaintiff an amount of money that will, as nearly as money can, put him in the same position as if he had not been injured by the defendant: Todorovic v. Waller (1981) 150 CLR 402, at p 412 per Gibbs C.J. and Wilson J. However, the time as at which damages are assessed can significantly affect the amount actually awarded. This aspect of the assessment of compensation is particularly noticeable in the present era of inflation, with its fluctuating economic values. This is because in times of inflation the amount awarded is likely to be larger if it is assessed at a later rather than an earlier date.

3. When a court assesses damages, it converts the value of the injury into nominal terms; it fixes or liquidates that value. That conversion into monetary terms avoids the difficult task of inquiring into the value of goods and services over time and is necessary for the stability of economic legal relationships. The theory according to which damages are awarded by the courts is that a plaintiff's loss or injury can be adequately compensated by a lump or fixed sum of money which is not subsequently revised.

4. The practice of awarding fixed sums of money worked well when money values and prices were stable. However, in recent times inflation and changing economic values have created complications. Inflation can be described as the general rise in the level of prices or, conversely, as the fall in the purchasing power of the currency. And quite apart from any general shift of prices, the economic value of particular items may rise or fall in relation to other goods. The date of assessment determines which party, the plaintiff or the defendant, bears the risk of changing prices during the inevitable delay between the injury and the delivery of judgment. If an early date is used for assessment (the date of the injury for example) in an inflationary economy or where goods of the kind injured are appreciating, it is the plaintiff's position which is eroded. If a later date such as the date of judgment is used, it is the defendant who is exposed.

5. There is a general rule that damages for torts or breach of contract are assessed as at the date of breach or when the cause of action arises. But this rule is not universal; it must give way in particular cases to solutions best adapted to giving an injured plaintiff that amount in damages which will most fairly compensate him for the wrong he has suffered: see Johnson v. Agnew (1980) AC 367, at pp 400-401; Miliangos v. Frank (Textiles) Ltd (1976) AC 443, at p 468; Dodd Properties v. Canterbury City Council (1980) 1 WLR 433, at pp 450-451, 454-455, 457; 1 All ER 928, at pp 933, 937, 939; County Personnel Ltd v. Alan R. Pulver &Co. (1987) 1 WLR 916, at pp 925-926; 1 All ER 289, at p 297. One established exception to the general rule relates to the assessment of damages for personal injury. The award for permanent disability takes into account the fall in the value of money since the accident. In Philips v. Ward (1956) 1 WLR 471, at p 474; 1 All ER 874, at p 877, Denning LJ. said this is "because much of the damage has accrued and will accrue since that date", that is, the date of the accident. And in O'Brien v. McKean (1968) 118 CLR 540, at p 545, Barwick C.J. stated the approach that has been taken in Australia in these terms:

"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. It may be that delay on the part of the injured person in bringing or prosecuting his claim could on this basis in some circumstances advantage the plaintiff, though, except in the case of some dramatic change in purchasing power, this possible advantage would be minimal and largely theoretical. However, even if in some case it became necessary to prevent a plaintiff obtaining a substantial advantage by his own dilatory conduct, the date as at which to make the assessment would not, in my opinion, be the date of the injuries but some later date, probably related to the time as at which a diligent plaintiff would have brought his proceedings to a verdict."

By choosing the date of judgment for assessment in these cases, courts have insulated plaintiffs from inflation.

6. The general rule that damages are assessed as at the date of breach or when the cause of action arose has been applied more uniformly in contract than in tort and for good reason. But even in contract cases courts depart from the general rule whenever it is necessary to do so in the interests of justice. So, when a creditor seeks to enforce a debt payable in a foreign currency, "(t)he critical date is not so much the date when the cause of action arose but rather the date when the debt should have been paid": Cummings v. London Bullion Co. Ltd (1952) 1 KB 327, at p 336 per Denning L.J. The two dates usually coincide but they may diverge and then the later date may be appropriate: Philips v. Ward, at p 474; p 876 of All ER.

7. Likewise with contracts for the sale of goods. Where there is a market in which the injured party can buy a replacement, the date of non-delivery is usually deemed the appropriate date. But where there is no such market, a later date may be appropriate. As Oliver J. noted in Radford v. De Froberville (1977) 1 WLR 1262, at p 1285; (1978) 1 All ER 33, at p 56, the rationale behind this rule lies "in the inquiry - at what date could the plaintiff reasonably have been expected to mitigate the damages by seeking an alternative to performance of the contractual obligation?" The role of this rationale can be seen in Asamera Oil Corp. v. Sea Oil &General Corp. (1978) 89 DLR (3d) 1, a case in which the Supreme Court of Canada had to consider the principles governing the assessment of damages for failure to return shares that had been lent to the defendant. Between the time of the breach of the contract of bailment and the trial the market value of the shares had fluctuated widely. The Supreme Court of Canada held that damages should be assessed as at the time the plaintiff could reasonably have been expected to be able to replace the shares. Estey J., with whom the other members of the court agreed, explained (at p 31) that the determination of the damages should be made on the basis that the plaintiff "ought to have crystallized these damages by the acquisition of replacement shares so as to minimize the avoidable losses flowing from the deprivation by (the defendant) of (the plaintiff's) opportunity to market the ... shares. Such share purchases should have taken place within a reasonable time after the date of breach."

8. As I noted earlier, the choice of an early date for assessment leaves the injured party exposed to the deleterious effects of inflation. True it is that legal interest may be awarded from the date of breach, but this is often too low to remedy the effects of inflation and the loss of the use of the money (cf., Riches v. Westminster Bank Ltd (1947) AC 390, at p 400 per Lord Wright; see also Mann, "On Interest, Compound Interest and Damages", (1985) 101 Law Quarterly Review 30). However, the preference for an early date is motivated, as Oliver J. and Estey J. suggest, by concerns about mitigation. This requirement of mitigation can in turn be explained in part by notions of fairness to the party at fault. Once the injured party learns of the breach, he can minimize the loss for which the other will be required to compensate by immediately purchasing a replacement.

9. As we have seen, the assessment of damages for personal injury stands in a rather different position. Even in personal injury cases an injured party will be required to take reasonable steps to limit the loss which flows from his injury, as, for example, submitting to medical treatment where the refusal to submit to that treatment would be unreasonable: Watts v. Rake (1960) 108 CLR 158, at p 159; McAuley v. London Transport Executive (1957) 2 LlR 500, at p 505. However, there is usually not as much scope in such cases for mitigation as in contract and the voluntary character of a contractual relationship is noticeably lacking. Consequently the arguments which support assessment as at the date of breach in contract lose much of their force in personal injury cases.

10. In other areas of tort law courts have tended to apply the general rule that damages will be assessed when the cause of action arose. This approach seems less than satisfactory in this era of high inflation. There may be occasions when mitigation is appropriate in the interests of limiting the harm for which the tortfeasor must compensate. On the other hand, the goal of compensation to the injured suggests a later date, particularly in the absence of a voluntary relationship, as in contract. It makes little sense to put the burden of monetary depreciation on the innocent tort victim and to allow the tortfeasor the windfall of paying off his obligation in depreciated currency. As I noted before, legal interest will often be inadequate to offset even a moderate level of inflation. Besides, even if legal interest were adequately indexed, it would not take account of all changes in the value of the injured goods or interests.

11. As a response to these problems many civil law jurisdictions have shifted the date of assessing the injury to the date of judgment. France made this change as early as 1942: see Rosenn, Law and Inflation (1982), at p 222, n.7. Other countries have used the conceptual device of the debt of value to achieve the same result: ibid., at pp 222-224. A debt of value, in contrast with a debt of money, has as its object neither a thing nor a sum of money but a value: Tancelin, Theorie du Droit des Obligations (1975), nos.539-540, at pp 354-356. The debt of value may be revalued in money terms if either the purchasing power of the currency changes or the value of the particular good or interest shifts in relation to general price levels.

12. Although a preference for a later date of assessment in tort cases may be appropriate, a wholesale shift to the date of judgment would not adequately achieve the goal of accurate compensation. Take, for example, a shipload of petroleum destroyed en route to the harbour where it was to be sold the next day. After the intended date of sale, oil prices rise. Because the object is to restore the injured party to the position he would have been in save for the mishap, the court should not necessarily use the date of judgment but rather should consider the use to which the petroleum was to be put. It was to be sold immediately and the damages should reflect the price the injured party would have obtained on the intended date of sale.

13. This in fact is what the House of Lords did in Bwllfa and Merthyr Dare Steam Collieries (1891) v. Pontypridd Waterworks Company (1903) AC 426, a statutory compensation case. A waterworks operator had been empowered by a statute to prevent a landowner from working mines on his land if it would interfere with the waterworks. The statute also provided that "full compensation" would be paid in such instances to the landowner. After the issuance of the notice inhibiting mining but within the time necessary to extract the coal, the price of coal rose dramatically. The House of Lords held that the higher price was the appropriate one in assessing the statutory compensation. The Earl of Halsbury L.C. quoted with approval (at p 428) the words of Phillimore J. below: "the true inquiry here is not what is the value of the coalfield or the coal, but what would the colliery company, if they had not been prohibited, have made out of the coal during the time it would have taken them to get it".

14. Admittedly, where the injured party's intentions are not so patent as in these two examples, the determination of the time at which the injured good would have been converted to currency may present a difficult task. In Hoefle v. Bongard &Co. (1945) 2 DLR 609 Rand J. thought there was a conversion in breach of contract of a bailment of shares by the stockbroker bailees. In ascertaining the appropriate basis for the assessment of damages, his Honour said (at p 620):

"What (the bailor) would have done in the intervening time (between the dates of breach and judgment), if the security had remained, is the speculative basis from which the inferences must be drawn. We cannot say that he would have sold at the highest or at the lowest price or that he would have sold at all. But so far as the circumstances permit, they are to be the ground of conclusions of robability".

15. As the cases to which I have referred reveal, the principles governing the assessment of damages do not permit the application of rigid rules based on categories of actions. Instead, the injured party's intentions and the surrounding circumstances must be considered in light of the underlying principles in order to do justice between the parties. Where mitigation is possible, an early date for assessment may be appropriate. Where mitigation concerns are not relevant and the circumstances indicate that the injured party would have maintained possession of the good had the accident not occurred, the date of judgment is the most appropriate date for assessment. Where the circumstances indicate that the property or interest would in some other way have been converted into monetary terms between the time of injury and date of judgment, the date as at which the injury is assessed should reflect the time of the intended conversion.

16. In each of the appeals at hand, the solicitor's negligence caused the loss of a cause of action for personal injuries. Each of the injuries suffered by the respondent was the loss of a chance to recover on a cause of action. Unlike in Kitchen v. Royal Air Force Association (1958) 1 WLR 563; 2 All ER 241 where it was by no means certain that the plaintiff's claim would have succeeded had her solicitors not negligently allowed it to become time barred, there is no question in these appeals whether the respondent would have succeeded in the personal injury actions. The sole issue is the value of those causes of actions. In these actions, mitigation concerns are inapposite as it was impossible for the respondent to limit the damage caused by the appellants' negligence. It is appropriate that the injured party be protected from the vicissitudes of depreciating currency and that the tortfeasor bear the risk of any appreciation. Otherwise, the compensatory object of the assessment of damages would be undermined.

17. Nevertheless, the respondent is not entitled to compensation beyond his loss. As Ryan J. suggested in the Full Court, there has been an escalation in the awards for personal injury actions over the time between the date the actions would have been heard but for the appellants' negligence and the date of trial of these negligence actions. The respondent's personal injury actions, however, had it not been for the appellants' negligence, would have been converted into money at the earlier date. In the absence of the appellants' negligence the respondent would not have been entitled to benefit from that rise in personal injury awards. It is therefore appropriate that the dates that the personal injury actions would have been converted be used as the dates of assessment.

18. I would allow the appeals.

WILSON, TOOHEY AND GAUDRON JJ. The questions raised by these appeals, which were heard together, go to the basis upon which damages should be assessed in a claim against a solicitor through whose negligence an action is dismissed for want of prosecution at a time when limitation provisions prevent the bringing of a further action.

2. The respondent received injuries in three work related accidents on 25 July 1968, 31 August 1973 and 19 February 1981. He was employed by a different employer on each occasion. He brought an action against each of his employers, claiming that the injuries he sustained in each accident were due to the negligence of the relevant employer. In each case the writ was issued within time. The action brought in respect of the third accident proceeded to trial but was settled after the first day's hearing. The terms of settlement were not disclosed. The actions brought in respect of the first and second accidents were in the hands of different solicitors; each was dismissed for want of prosecution in circumstances where it was held by the primary judge and not challenged on appeal that the negligence of the solicitors was responsible for the dismissal. The action brought in respect of the 1968 accident was dismissed on 20 June 1983; the action brought in respect of the 1973 accident was dismissed on 16 October 1980.

3. On 19 October 1983 the respondent issued writ No. 121 of 1983 against the appellant Creed &Associates in which he claimed damages for negligence and breach of contract in relation to the dismissal of his claim arising out of the 1973 accident. On 24 September 1986 the respondent issued writ No. 149 of 1986 against the appellant B.M. Johnson, Lo Monaco, MacDonald in which he again claimed damages for negligence and breach of contract, this time by reason of the dismissal of his claim arising out of the 1968 accident. Both actions were heard together before Demack J. in the Supreme Court of Queensland at Rockhampton early in May 1987 and judgment was delivered in respect of both claims on 8 May. An appeal to the Full Court by the present appellants was dismissed.

4. The learned trial judge heard evidence relating to the 1968 and 1973 accidents and held that in respect of each accident the relevant employer had been negligent, that in each case the respondent had a cause of action which he could have established against his employer and that in each case he was prevented from doing so by the negligent conduct of his solicitor. Before the Full Court and before this Court no challenge was made to these findings of Demack J.

5. His Honour was faced with the task of determining the extent to which the respondent's injuries and consequent loss, both economic and non-economic, were due to the three accidents in which he had been involved. His Honour approached this task by considering an appropriate award of damages in three stages - from 1968 to 1973 (from the first accident to the second accident), from 1973 to 1981 (from the second accident to the third accident) and from 1981 onwards. He then made percentage allocations of his assessments to each of the claims before him. The manner in which he did this can be seen most readily from the judgment of Ryan J. in the Full Court, who summarized the awards in this way:
" The award of damages in Action No. 149 of 1986
was in the sum of $158,303.75. This comprised the following:- (a) A global award for the period

1968 to 1973 $ 30,000.00

(b) 40 per cent of the global award of $45,000.000 for the period 1973 to 1981 $ 18,000.00

(c) Past economic loss since 1981 (40 per cent of $132,000.00.) $ 52,800.00

(d) Future economic loss (40 per cent of $28,000.00) $ 11,200.00

(e) Pain and suffering since 1981 (40 per cent of $32,000.00) $ 12,800.00

(f) Special damages $ 6,503.75 (g) Interest 27,000.00 Total $158,303.75

In Action No. 121 of 1983, the award of damages was in the sum of $110,732.48. This comprised the following:- (a) 60 per cent of the global award of $45,000.00 for the period 1973 to 1981 $ 27,000.00

(b) Past economic loss since 1981 (25 per cent of $132,000.00) $ 33,000.00

(c) Future economic loss (25 per cent of $28,000.00) $ 7,000.00

(d) Pain and suffering since 1981 (25% of $32,000.00) $ 8,000.00

(e) Special damages $ 2,232.48 (f) Interest $ 19,000.00 Total $110,732.48"

6. This extract from the judgment of Ryan J. shows how Demack J. arrived at his award of $158,303.75 in regard to the first accident and his award of $110,732.48 in regard to the second accident. No issue was raised in these appeals as to the details of either award. The substantial challenge made to the awards, as upheld by the Full Court, was that Demack J. erred in assessing damages as he did, "according to the prevailing awards at the time of assessment". In the appellants' submission, damages for the loss of the action in each case should have been assessed as at the time at which each claim by the respondent against his employer would probably have been determined had the appellants not been negligent.

7. In the present cases, there is no issue between the parties on the question whether the liability of a solicitor to his client in the circumstances now before the Court lies either in contract or in tort. The trend of modern authority is to apply the common law of negligence to professional relationships: Midland Bank v. Hett, Stubbs and Kemp (1979) Ch 384; Central Trust Co. v. Rafuse (1987) 31 DLR (4th) 481; Day v. Mead (1987) 2 NZLR 443; Hawkins v. Clayton (1988) 62 ALJR 240, 78 ALR 69; Fleming, The Law of Torts, 7th ed. (1987), pp 168-170. It is immaterial in the present case whether the problem is considered as one of contract or tort. If it be in contract, the breach in each case occurred when the respondent's claim against his employer was dismissed for want of prosecution. If it be in tort, damage accrued to the respondent at the same time for he was then precluded from bringing any further action against his employer.

8. Discussion concerning the damages to which a plaintiff is entitled in an action against his solicitor often begins with a consideration of the judgment of Lord Evershed M.R. in Kitchen v. Royal Air Force Association (1958) 1 WLR 563, 2 All ER 241. At p 575 (p 251 of All ER), his Lordship said:
"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 that negligence lost. The question is, has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case, it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can."

9. Kitchen was a case in which it was by no means certain that the plaintiff would have succeeded in the claim under the Fatal Accidents Acts 1846-1908 (U.K.) which her solicitors allowed to become statute barred. The passage cited from the judgment of Lord Evershed was preceded, at pp 574-575 (p 250 All ER), by a statement in these terms:

"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. On 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 have formulated, then it is equally plain that the answer is that she can get nothing save nominal damages for the solicitors' negligence."

Because, in his Lordship's view, the case before him fell into neither category, it was necessary to make the inquiry to which he referred in his judgment. But to say that the plaintiff would recover "the full amount of the damages lost by the failure to bring the action originally" does not of itself identify the date at which damages should be assessed, though it does point towards a time earlier than the hearing of the claim against the solicitors.

10. Likewise, in Tutunkoff v. Thiele (1975) 11 SASR 148 Bray C.J. had to assess, inter alia, the chances that the plaintiff would have succeeded in an action which was barred by the statutory period of limitation. In the course of his judgment, at pp 150-151, Bray C.J. said:

"Mr. Fricker, for the plaintiff, contended vigorously 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. In principle I do not think that this is so because 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 that before me."

It is apparent that Bray C.J., like Lord Evershed M.R., was faced with a dual inquiry, namely, the prospects of success had the plaintiff's action not been statute barred and the damages to which he was entitled by reason of his solicitor's negligence. In the two cases now before this Court, it is common ground that the respondent would have succeeded in each of the claims against his employers. Nor was it argued that there would have been any impediment to the respondent recovering from those employers the damages awarded to him. In the light of the argument before us, we are not concerned with valuing a chance or prospect that the respondent might have lost; we are concerned with the proper basis for the assessment of the value of an entitlement to compensation which, it is acknowledged, the respondent had and which he did lose.

11. In Dolman v. Penrose (1983) 34 SASR 481 Zelling J. also focused his attention on a notional trial date earlier in time. His Honour said, at p 483, in relation to a claim for damages against a solicitor for failure to institute proceedings under the Inheritance (Family Provision) Act 1972 (S.A.):
" The net assets of the estate of the deceased
at the time of her death were of the approximate value of $48,000. That was the primary figure which the 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 of that for the fact that the plaintiffs would receive their damages later in any event because the first action was not taken ...."

12. The respondent relied, as did the Full Court, upon the judgment of Miles J. in Vulic v. Bilinsky (1983) 2 NSWLR 472, another action against a solicitor for negligence in allowing a claim for damages to become statute barred. Because of the reliance placed upon this judgment, it is advisable to set out the relevant passage, at pp 486-487, in full:
" I return to the question of whether for the
purposes of this case the court should try to project itself 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 expected for uncomplicated cases in which a writ had been issued in the middle of 1970. 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. Would for instance one apply the principles for assessing the present value of future economic loss as applied since Todorovic v. Waller (1981) 56 ALJR 59; 37 ALR 481? Secondly, the hypothesis verges on the unreal. I do not see how it is of any assistance to imagine that the present case would have been reached for hearing at the end of the period which normal and uncomplicated cases took to be reached for hearing at a time in the past. The defendants' conduct took the case out of the normal category, but they might have issued the writ late although within time. They might have applied for an extension within the fourth year. In any event even if the statutory period of limitation had not been pleaded, it is quite possible that the case might have dragged on and on before it was reached for hearing. It may be that the longer the plaintiff waited for a hearing the higher an award of damages was likely to be. It is quite impossible to select a point of time in the past when it could be said that the plaintiff's action commenced by the writ issued on 26th August, 1970, should or would have been reached for hearing."

13. With respect to his Honour, there are no insuperable obstacles in assessing the damages which a person is likely to have been awarded by reference to some earlier time. Illustrations are the judgments of Shepherdson J. in Monro v. Thomas and of Macrossan J. in Merenda v. Evans (unreported decisions of Supreme Court of Queensland, 2 September 1985 and 10 December 1986 respectively). Questions undoubtedly arise as to the extent to which the Court may or must have regard to events occurring since a claim was statute barred or, as in this case, was lost by dismissal for want of prosecution. And that is so whether those events relate to the plaintiff's condition or whether they arise from some change in the law, be it as a result of legislation or judicial decision. These are matters to which we shall turn later in this judgment but, of themselves, they are not an obstacle to an assessment of damages as at some date earlier than the hearing of the claims against the solicitors.

14. When an action has been dismissed for want of prosecution due to the negligent conduct of a solicitor, the client has lost the opportunity to bring that claim to trial and recover damages in respect thereof. As already indicated, in some cases it may be appropriate to describe the loss as the loss of a chance for there may be various contingencies bearing on the likelihood that the plaintiff would have recovered judgment against the defendant and further that any such judgment would have been met. When those contingencies have been foreclosed by agreement or by the decision of the primary judge in the trial of the claim against the solicitor, the way is open for the judge to proceed to the assessment of damages for the loss flowing to the plaintiff by reason of the negligence of the solicitor. The first component in that assessment is the amount of damages likely to have been awarded by the court before whom the action against the employer (as in this case) would have come. That loss crystallizes when the action is dismissed for want of prosecution and is then capable of assessment. The process of assessment may well require a broad brush approach in determining when, in the absence of negligence, the action would have come to trial and the evidence bearing on the quantum of damages that would or should have been available for tender to the court. Undue emphasis should not be placed on the difficulties surrounding the selection of a notional trial date of the original action. In the majority of cases some variation in this regard will be immaterial; it will only be in those cases where a new and material fact emerges for the first time after the earliest notional trial date or where the relevant principles of law governing the assessment of damages are undergoing a process of change that it may be necessary to identify with some precision when the earlier action would probably have been determined. We return to this aspect of the matter later in these reasons.

15. The starting point is that "a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries": Todorovic v. Waller (1981) 150 CLR 402, at p 412; see also Livingstone v. Rawyards Coal Company (1880) 5 App Cas 25, at p 39. In each of the present cases the respondent would, but for the negligence of his solicitor, have recovered damages for personal injuries against his employer. It is that loss for which he is to be compensated; he is not to be compensated as if his claim against his solicitor was a claim for damages for personal injuries.

16. As a general rule, "damages for tort or for breach of contract are assessed as at the date of the breach" (Lord Wilberforce in Miliangos v. Frank (Textiles) Ltd. (1976) AC 443, at p 468). The rule will yield if, in the particular circumstances, some other date is necessary to provide adequate compensation: see, for example, Wenham v. Ella (1972) 127 CLR 454; Dodd Properties v. Canterbury County Council (1980) 1 WLR 433, 1 All ER 928; County Personnel Ltd. v. Alan R. Pulver &Co. (1987) 1 WLR 916, 1 All ER 289. But, in the circumstances of the present appeals, there is no reason why an assessment of damages as at the date each action was dismissed for want of prosecution will not compensate the respondent adequately.

17. Of course, the loss to which we have referred may not be the only loss for which he is to be compensated; this is why we referred earlier to the "first component" in an assessment. In each of the two actions with which these appeals are concerned, the respondent claimed under an additional head of damage. In Action No. 121 of 1983, par.9A of the amended statement of claim reads:
"The plaintiff has suffered also from a
psychological reaction to his injuries, which reaction has been aggravated by delays in the prosecution of his claim." An allegation in identical terms appears as par.10A in the statement of claim in Action No. 149 of 1986. If such an allegation is made out, it will be the task of the trial judge to assess the damages that will compensate the respondent for that injury. Unlike the first component, it is an allegation of personal injury flowing directly from the negligence of the solicitor.

18. Contrary to the situation in Tutunkoff v. Thiele, the actions by the respondent against his solicitors were heard much later in time than the original actions against the respondent's employers were likely to have been heard. In those circumstances the period of time between the date when each cause of action against the employer arose and the date when the cause of action against the solicitor arose, together with the prospect of the respondent having recovered statutory interest against his employer for that period, is a matter which may be taken into account in assessing the damages due to the respondent. In Queensland the Common Law Practice Act 1867 (Q.) s.72 authorizes a court to award interest on the whole or any part of a judgment for the whole or any part of the period between the date when the cause of action arose and the date of judgment. The section is of course directly applicable to the period between the date when each cause of action arose against the solicitor and the date of trial of that action.

19. Again, the fact that the respondent's damages are to be assessed as at the time each action was dismissed for want of prosecution does not mean that evidence is excluded of events occurring since the dismissal. Such evidence may be relevant in a number of ways. In the first place, it may assist the court in placing itself in the position of the trial judge at the notional trial when a judgment was to be made of the likely losses that would be suffered by the respondent in the future and for which the employer was to be held responsible. As Latham C.J. pointed out in Willis v. The Commonwealth (1946) 73 CLR 105, at p 109:

"... where actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second-best. Damages are awarded for injury actually suffered and for prospective injury. Prospective injury can only be estimated with more or less probability. But where the extent and character of what would at one time be described as prospective injury depends upon the happening or non-happening of a particular event and that event has in fact happened, it is unnecessary to speculate as to whether or not this event might happen and, if so, when. In such a case prospective damage (or diminution of damage) has become actual."

Secondly, in a case where witnesses have died or there is a paucity of evidence (perhaps because of the negligence of the solicitor) touching the condition of a plaintiff at the time of a notional trial, the evidence relating to subsequent events (including, for example, later medical reports on a plaintiff) may assist a court in piecing together the case that could, but for the negligence of the solicitor, have been made out in the trial of the earlier action: see Tutunkoff v. Thiele. In each of these two respects, the evidence is received for the purpose of assessing the damages that the plaintiff was likely to have been awarded had the action gone to trial. Of course, difficult questions may arise as to whether a particular disability was known or foreseeable at that earlier time but that does not detract from the basic principle. There is a third basis on which evidence of subsequent events may be tendered, namely, in the prosecution of a claim of aggravation of injury or other loss directly attributable to the negligence of the solicitor.

20. On the other hand, changes in the law subsequent to the notional trial date, whether as a result of legislation or otherwise and whether favourable or adverse to the respondent, should not be taken into account. Those changes do not bear on the damage sustained by the respondent when his actions were dismissed for want of prosecution. Thus the Common Law Practice Act was amended in 1981 so as to govern the discount rate applicable to compensation, assessed as a lump sum, in respect of damage referable to deprivation or impairment of earning capacity or to a liability to incur expenditure in the future. The provision is procedural and would be applied in any assessment of damages referable to a notional trial held after the amendment came into operation, whenever the cause of action arose. Demack J. did not make findings as to when either action was likely to have been heard, though submissions were made to the Full Court in this regard. Since new trials are to be ordered, this will be a matter for the primary judge.

21. Demack J. made his assessments of damage on the following basis:

"As I understand the current practice, assessments are all made according to the prevailing awards at the time of assessment."

22. That approach was upheld by the Full Court. Ryan J., with whose judgment the other members of the Court concurred, considered it "appropriate to make the assessment of damages in the same manner as in an action for personal injuries". Earlier his Honour had said that "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". Counsel did not argue the appeals by reference to particular aspects of the respondent's claim so as to show the differences the particular dates for assessment might have made. It may have had something to do with a condition that developed in the respondent over the years and which was described in medical reports as post-traumatic nervous invalidity and psycho-neurotic reaction. In any event, having regard to what was said by Ryan J. (there being no argument to the contrary), it must be accepted that substantial differences are involved, by reference to the likely dates of trial. The approach taken by Ryan J. and by the Full Court was, in our view, incorrect. Therefore the appeals should be allowed and a new trial ordered of the respondent's claims against the appellants, in each case limited to the assessment of damages.

BRENNAN J. Two of the respondent plaintiff's actions for damages for personal injuries were dismissed for want of prosecution. Had those actions been prosecuted to judgment, the plaintiff would have recovered substantial damages. In each case, the negligence of the solicitor whom the plaintiff had retained was the cause of the action being dismissed. The plaintiff sued each of his solicitors, the present appellants, who do not contest liability. The appeals relate to the assessment of the damages. Should damages be assessed as at the time when the action against the solicitor is heard (as Demack J. and the Full Court of the Supreme Court of Queensland held) or at the time or times when the original actions would have been determined or, alternatively, at the respective times when the original actions were dismissed (as the appellants submit)? In Miliangos v. Frank (Textiles) Ltd. (1976) AC 443, at p 468, Lord Wilberforce stated the general rule to be that "damages for tort or for breach of contract are assessed as at the date of the breach" but he qualified the rule by observing:

"It is for the courts, or for arbitrators, to work out a solution in each case best adapted to giving the injured plaintiff that amount in damages which will most fairly compensate him for the wrong which he has suffered."

The general rule as to the date at which damages are to be assessed is subject to the principle governing the measure of damages. A plaintiff who has suffered damage as a result of a defendant's tort or breach of contract is entitled to such a sum as will, so far as possible, put him in the same position as he would have been in but for the tort or breach of contract: Wenham v. Ella (1972) 127 CLR 454, at p 466; Todorovic v. Waller (1981) 150 CLR 402, at pp 412,442,463; Livingstone v. Rawyards Coal Company (1880) 5 App Cas 25, at p 39. The time at which damages are assessed must be so fixed as to give effect to the governing principle. In giving effect to that principle, matters occurring after the tort or breach may be excluded from consideration by selecting the date of the tort or breach of contract as the date for assessment; conversely, such matters may be included by selecting the date of the trial as the date for assessment. In either case, it is the governing principle rather than the temporal rule which determines what is to be taken into consideration and what is not. The governing principle applies to the assessment of damages in an action brought by a plaintiff against a solicitor by whose negligence the plaintiff has lost a cause of action in damages for personal injury. An application of the principle requires, first, an appreciation of the plaintiff's actual position in comparison with the position he would have been in but for the solicitor's negligence; and, secondly, an assessment, necessarily expressed as a contemporary dollar amount, of what is needed to put the plaintiff into the position he would have been in but for the tort or breach of contract.

2. When a plaintiff loses his original cause of action by the negligence of his solicitor, what is the extent of his loss? He has lost the monetary compensation for his personal injuries which he would have received at the time when he would have received it but for the solicitor's negligence. That being the extent of the plaintiff's loss, a court which seeks to put him back in the "same position" must assess, as best it can, whether or not the cause of action would have yielded a judgment or a settlement and, if so, how much the plaintiff would have received and when. It may be necessary to conduct a trial within a trial to determine what the cause of action would have produced. That is what the cause of action was worth to the plaintiff. It has been said that, when a plaintiff loses a cause of action, the court should determine its value by estimating, if need be, the plaintiff's prospects of success in the original action: Kitchen v. Royal Air Force Association (1958) 1 WLR 563, at pp 575,576; (1958) 2 All ER 241, at pp 251,252. Lord Evershed M.R. pointed out (at p 575; p 251) that, where it is plain that the plaintiff would have succeeded in the original action, the plaintiff has lost what he would have recovered; equally where it is plain that the plaintiff would have failed in the original action, the plaintiff has lost nothing of value. But, his Lordship said, if it is uncertain whether the plaintiff would have succeeded in the original action -

"The question is, has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case, it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can."

That is not to say that, when the plaintiff's chance of success in the action against the original defendant can be estimated at a particular percentage, the plaintiff's loss is to be calculated as a corresponding percentage of what would have been the assessment of his damages if he had wholly succeeded in a trial of his lost cause of action. The value of the lost cause of action cannot be assessed as though there were a market for doubtful causes of action in damages for personal injury. The value of the lost cause of action is not what a speculator would be prepared to offer the plaintiff as the price of an assignment of the cause of action. The plaintiff's loss being whatever monetary compensation he would have received at the time he would have received it but for his solicitor's negligence, the court must find whether or not he has lost something of value. If he would have failed in the original action, he has lost nothing; if he would have succeeded, he has lost what he would have received at the time he would have received it; if the action would have been compromised, he has lost what he would have been paid in settlement at the time when he would have been paid. Or, if it is doubtful whether or not he would have succeeded in the action and it is not probable that the action would have been compromised, the court assessing the damages must determine as best it can on the balance of probabilities whether the plaintiff would have succeeded (and, if so, to what extent) or failed. In making that determination, the court may need to estimate the extent to which a successful plaintiff's damages would have been reduced because of contributory negligence.

3. A plaintiff who loses a valuable cause of action loses not merely the nominal amount for which a verdict would have been given or for which the original action would have been compromised; he also loses the benefit of having received that amount in due time. Though the plaintiff ultimately receives that amount, he has suffered a delay in receiving it. Moreover, if it was reasonably foreseeable that the prolongation of the plaintiff's quest for compensation might cause the occurrence or continuance of an illness, physical or mental, and the plaintiff suffers an illness so caused, the plaintiff is entitled to further compensation on that account. Again, if the delay in receiving compensation has prevented the alleviation of pain and suffering which could and would have been relieved by the earlier receipt of compensation, the plaintiff is entitled to compensation on that account.

4. That being the nature of the plaintiff's loss, the question is: what amount will, so far as possible, put the plaintiff in the same position as he would have been in if he had received his compensation when he ought to have received it? The answer can be given only in contemporary dollar amounts (there being no question whether the judgment might be expressed in foreign currency). As Barwick C.J. pointed out in O'Brien v. McKean (1968) 118 CLR 540, at p 545, a plaintiff receives his compensation in "the money of the day" and therefore
" 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."

5. The nominal amounts awarded as damages in actions for personal injuries seem to escalate continually. This leads the appellants to submit that the amount which the plaintiff would have received but for the solicitors' negligence should be determined not at the level of contemporary awards but at the level of awards at the time when the cause of action accrued or when the plaintiff ought to have recovered judgment in the original action. The latter proposition is correct. But for his solicitors' negligence, the plaintiff would have recovered a judgment at an earlier time in an amount assessed at the level of the awards of that time. (I shall call that amount "the earlier assessment".) However, an assessment which leaves out of account the delay in receipt of compensation would not put the plaintiff into the "same position" as he would have been in had he received his compensation in due time. The appellants accept that some allowance must be made for the delay. Obviously, by adding to the amount of the earlier assessment an allowance for delay in receiving it, the plaintiff can be put in the same position as he would have been in had his original action been duly prosecuted. How should a court which seeks to put the plaintiff in that position calculate the allowance?

6. In Tutunkoff v. Thiele (1975) 11 SASR 148, Bray C.J. took as his starting point the earlier assessment. He said (at pp 150-151):

"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 that before me."

Then, holding that "the defendant must pay for the consequences of the delay", his Honour said (at p 155):

"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 (when the original action would have been tried) and then adding something for the consequences of the delay, which would probably achieve the same result."

Is this a legitimate means of assessing a plaintiff's damages? It is tantamount to calculating the allowance for delay as the difference between the amount of a notional judgment in the plaintiff's original action assessed at the contemporary level of awards (an amount which I shall call "the present assessment") and the amount of the earlier assessment. The validity of assessing the plaintiff's damages against the solicitor in this way depends on the concepts which underlie the calculation of lump sum awards for personal injuries. It seems to me that the theory of that calculation is such that, subject to two qualifications, the earlier assessment of damages plus an appropriate allowance for delay equals in nominal amount the present assessment.

7. A lump sum assessment of damages for personal injury embraces three components: pre-trial economic loss (if any), post-trial economic loss (if any) and a component for pain, suffering and loss of amenities. Pre-trial economic loss is assessed at the nominal amounts lost or expended. Post-trial economic loss may be assessed by reference to interest tables which furnish an appropriate factor by which contemporary nominal amounts being lost or expended are multiplied. For the reasons stated in Todorovic v. Waller, the 3% interest table is used and a factor is selected which is intended to ensure that, with the increments which can be earned from the sum awarded, the plaintiff can have in hand a sum corresponding with the actual economic losses he will suffer in the future at the times when he will suffer them. Economic loss which occurs between the time of an earlier assessment and the time of a present assessment is provided for in the earlier assessment at a discounted figure but it is provided for in the present assessment at an undiscounted figure. The difference between the two figures is the increment upon the discounted sum which could have been earned if the plaintiff had recovered a judgment at the earlier time. If, by his solicitor's negligence, the plaintiff did not recover a judgment at the earlier time, he lost the discounted figure plus the increment which the discounted figure could have earned, the sum of those figures being the undiscounted figure of the present assessment. Or, putting it another way, if he is awarded the economic loss he has actually suffered up to the time of the present assessment rather than the discounted figure of the earlier assessment, the difference is no more than the increment which the discounted figure could have earned. Post-trial economic loss is a smaller component in the present assessment than in the earlier assessment, the difference being due to the allocation of the economic loss suffered in the time between the two assessments to pre-trial economic loss. Reciprocally, the pre-trial economic loss component in the present assessment is larger than in the earlier assessment.

8. The third component in respect of which the nominal amounts of the two assessments might vary is the component for pain, suffering and loss of amenities. In Cookson v. Knowles (1977) QB 913, at p 921, Lord Denning M.R. said that no interest should be awarded on this component because the assessment of this component was going up all the time and the plaintiff stood to gain by delaying in bringing the case on for trial. In Pickett v. British Rail Engineering Ltd. (1980) AC 136, at p 173, Lord Scarman exposed the fallacy in Lord Denning's proposition:

"It is assumed that because the award of damages made at trial is greater, in monetary terms, than it would have been, had damages been assessed at date of service of writ, the award is greater in terms of real value. There is here a complete non sequitur. The cash awarded is more, because the value of cash, i.e. its purchasing power, has diminished. In theory the higher award at trial has the same purchasing power as the lower award which would have been made at the date of the service of the writ: in truth, of course, judicial awards of damages follow, but rarely keep pace with, inflation so that in all probability the sum awarded at trial is less, in terms of real value, than would have been awarded at the earlier date. In theory, therefore, and to some extent in practice, inflation is taken care of by increasing the number of money units in the award so that the real value of the loss is met."

On substantially the same grounds, Gibbs J. in Cullen v. Trappell (1980) 146 CLR 1, at p 21, overruled a decision which had held that interest should be awarded only on the sum referable to pain, suffering and loss of amenities which had already occurred. He said:

"Their Honours considered that the damages for pain and suffering and loss of amenities, being fixed at the standard prevailing at the date of judgment, are higher than they would be if fixed for the same loss at the date of the accident and contained 'a built in inflationary factor' ((Bennett v. Jones (1977) 2 NSWLR 355, at p 374)) or 'counter-inflationary benefit' ((Bennett v. Jones, at p 380)). With all respect, this seems to me to be the same fallacy as that which misled the Court of Appeal in Cookson v. Knowles, and which was condemned by the House of Lords in Pickett v. British Rail Engineering Ltd."

9. In other words, a plaintiff in a personal injuries action is entitled to damages of a value which gives him fair compensation for pain, suffering and loss of amenities. The assumption is that the plaintiff is put in the "same position" in a personal injuries action, that is, he is fully compensated for his personal injury, only when he receives the nominal amount which then represents the "value" of his pain, suffering and loss of amenities. If compensation is delayed, he remains uncompensated or undercompensated until he receives such a nominal amount as represents that value. The value which the award is to express remains constant over time but the difference in nominal amounts awarded represents no more than the court's perception of the changed value of money. As the difference between the earlier assessment and the present assessment represents, in theory, the increment which the amount awarded for post-trial economic loss could have earned if the plaintiff had recovered a judgment for his personal injuries in due time and a change in the nominal amount (but not in the value) of the compensation awarded for pain, suffering and loss of amenities due to a change in the value of money during the delay in receiving the compensation, the present assessment represents precisely the earlier assessment plus an appropriate allowance for delay. To this proposition there are two qualifications.

10. The first qualification relates to matters for which full compensation is allowed in the present assessment but which were mere contingencies at the time of the earlier assessment. A development in the plaintiff's condition which had not occurred but which was foreseeable at the time of the earlier assessment is taken into account in that assessment, but as a contingency; a development which has occurred by the time of the present assessment, on the other hand, is taken into account as a reality. And, of course, a development which had not occurred and which was not foreseeable at the time of the earlier assessment is not taken into account at all in the earlier assessment, but if it has occurred by the time of the present assessment it is taken into account as a reality. As the basic component of the loss caused by the solicitor's negligence is the amount which the lost cause of action would have yielded (either on judgment or compromise) at the earlier time, it would be wrong to cast onto the solicitor a liability to compensate the plaintiff for a development which occurred thereafter and for which the plaintiff would not have been compensated if the original action had been tried or compromised in due time. The damages which a court assesses in an action for a solicitor's negligence are not identical with the damages which the court would assess in an action for the tort which caused the plaintiff's personal injuries. In both cases, the court may have regard to relevant losses which have occurred prior to the assessment or which are then foreseeable. But in the former case, the relevant losses are the amount which would have been received as compensation by the plaintiff if his action for damages for personal injuries had earlier been tried or compromised (an amount which includes compensation for sequelae of the initial injury which would then have been known or foreseeable) together with the consequences of delay in receiving that amount; in the latter case, the relevant losses include all the sequelae of the initial injury which are known or which are foreseeable, whether or not those sequelae were known or foreseeable at an earlier time. Evidence of changes in the plaintiff's condition prior to trial is relevant in the latter case, but not necessarily in the former. That is because the amount which the plaintiff would have received at the earlier time must be ascertained by reference to the evidence which was then available. A plaintiff who would not have been fully compensated for the injuries tortiously inflicted if his solicitor had not been negligent is not entitled to full compensation if his solicitor is negligent. The solicitor cannot be called upon to underwrite a deterioration in the plaintiff's condition which was not foreseeable or not wholly foreseeable at the time when the original action should have been tried or compromised. But the present assessment of a plaintiff's personal injuries would allow fully for changes in his condition which have occurred after the time when he would have received compensation for his personal injuries and for which no allowance would have been made if the action had then been tried or compromised. The present assessment is, to that extent, an incorrect reflection of the loss suffered by reason of the solicitor's negligence. If the changes are significant, it would not be right to use a present assessment as the measure of the loss caused by a solicitor's negligence; if the changes are minor, some adjustment to the present assessment has to be made.

11. The second qualification relates to legislative intervention in the discount rate. If the earlier assessment of post-trial economic loss is artificially depressed by the legislative adoption of a discount rate higher than that which gives full compensation for future economic loss, the assessment of damages against the solicitor should not make up the shortfall. However, the depression of the component of future economic loss may not be significant: when both the earlier and present assessments of post-trial economic loss are based on the same discount rate, the depression relates only to the assessment of economic loss during the period between the two assessments, not to all future economic loss. Subject to these qualifications, the present assessment gives the plaintiff no more than the plaintiff ought to have been awarded by the earlier assessment together with an allowance appropriate to compensate the plaintiff for delay in receiving his compensation.

12. In principle, the plaintiff's loss can be measured in either of two ways. The amount of an earlier assessment can be increased by an allowance for delay, the calculation of which is left to an unguided judicial discretion; or a present assessment can be made, subject to the qualifications mentioned. A judge who adopts the former way may be minded to adopt a commercial rate of interest in calculating the allowance for delay, but a commercial rate of interest does not necessarily yield an amount representing what the particular plaintiff has lost by the delay. A present assessment does reflect what the particular plaintiff has lost, but that amount may need adjustment.

13. Where neither of the two qualifications has any application, the present assessment can be adopted as an appropriate measure of the damages to which a plaintiff is entitled against the solicitor by whose negligence the plaintiff has lost his original cause of action. If the present assessment is adopted as a benchmark, the allowance for delay is not left at large. In a case where neither qualification calls for consideration, an assessment of damages which fell outside the range of a present assessment would indicate appealable error. In addition to the amount calculated to compensate the plaintiff for loss of the original cause of action and delay in receiving compensation, some further provision may be needed to compensate him either for the continuation or development of any further foreseeable personal injury caused by the delay or for any inability to alleviate pain, suffering and loss of amenities caused by the delay.

14. In this case the assessment of damages against the respective appellant solicitors was complicated by the concurrent contribution of three separate injuries to the plaintiff's overall condition and his resultant economic loss. No objection is taken to the mode of apportionment adopted by Demack J. and affirmed by the Full Court. Demack J. made a present assessment in each case allowing for past economic loss up to the date of trial. The past economic loss was caused in part by the original injuries which the plaintiff had suffered and in part, it seems, by the prolongation of the plaintiff's quest for compensation. His Honour was satisfied that the plaintiff would be able "to settle back into farm life reasonably adequately once this litigation is behind him". In these circumstances, although some downward adjustment in past economic loss might have been warranted by the statutory 5% discount rate (see s.5 of the Common Law Practice Act 1867-1981 (Q.)), that adjustment would have to be set off against an allowance to compensate the plaintiff for the continuation of his psychological disability - a disability which exacerbated the effect of his physical injuries. Not only is his Honour's approach free of error in principle: there was simply no better way of calculating the amount which would put the plaintiff back in the "same position".

15. The judgment of the Full Court, delivered by Ryan J., held that it is appropriate in actions of this kind "to make the assessment of damages in the same manner as in an action for personal injuries". That proposition must be qualified, as I have said, but the qualifications do not affect the result in this case.

16. The appeals should be dismissed.

DEANE J. The issues involved in these two appeals and the relevant factual context are set out in the joint judgment of Wilson, Toohey and Gaudron JJ. I shall avoid unnecessary repetition.

2. It can be said at once that I am in general agreement with the reasons given by Ryan J. (with the concurrence of Andrews C.J. and Kelly S.P.J.) in the Full Court of the Supreme Court of Queensland for the conclusion that the approach adopted by the learned trial judge (Demack J.) in assessing damages was correct. The limits of the Full Court's conclusion in that regard were identified by Ryan J. in the following extract from his judgment:
"... 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. It is unnecessary to consider in the circumstances of this case whether a different rule applies in personal injuries cases from that applicable as a general rule in actions for damages for tort or breach of contract. It is enough to say that it was proper in this case to have regard to events and developments between the date of the accident and the date of the trial which were relevant for the proper assessment of damages ..."

3. In a case where it is necessary to assess the quantum of damages to be awarded as compensation for injury caused and sustained at some earlier time, a threshold question may arise about whether the appropriate amount of compensation is to be determined by reference to current perceptions, standards and monetary values or by reference to the possibly different perceptions and standards and the more valuable currency of some earlier time, such as the time when the damage was actually sustained. That question must be answered by reference to the circumstances of the particular category of case or, within some categories, by reference to what would be fair and appropriate in the circumstances of the individual case (cf., e.g., Johnson v. Agnew (1980) AC 367, at pp 400-401; County Personnel Ltd. v. Alan R. Pulver &Co. (1987) 1 WLR 916, at pp 925-926; 1 All ER 289, at p 297). In the case of tort or breach of contract, the prima facie general rule is that compensatory damages are assessed as at the date of breach. That prima facie rule can, however, be displaced or modified by other factors whose identity and comparative weight may vary in different categories of case and in the circumstances of the particular case (cf., per Walsh J., Wenham v. Ella (1972) 127 CLR 454, at p 466). Predominant among those other factors will be the precise identity of the duty which has been breached, the nature of the breach, the nature of the injury sustained including, in the case of personal injury, the fact that damage will continue to accrue after the time of breach (cf. Philips v. Ward (1956) 1 WLR 471, at p 474; 1 All ER 874, at pp 876-877), the possibility of mitigation including whether, in the assessment of damages, mitigation should be assumed even if it has not been undertaken and, at least in an Australian context, the near certainty of significant inflation.

4. In each of the present cases, the respondent was entitled to an award of monetary damages in an amount which represented adequate compensation for the injury sustained by reason of the (admitted) breach of the duty of care which the relevant appellant firm or individual owed to the respondent as the respondent's solicitor. It is now common ground that the actual damage which the respondent sustained in each case by reason of the appellant's negligence was that he lost the benefit of an action in negligence against the particular employer in which he would have recovered compensatory damages for the physical injury which he had sustained as a result of that employer's negligence. So to say is, however, to identify the respondent's loss in incomplete terms. Under the common law of this country, the preferable view is that compensatory damages for personal injury caused by negligence ordinarily fall within a category of case in which the prima facie rule is that the assessment of damages should be made not as at the time of breach but as at the time of verdict (see, e.g., O'Brien v. McKean (1968) 118 CLR 540, at p 545; Baker v. Willoughby (1970) AC 467, at pp 490-491, 496). That being so, the respondent's admitted right of compensation against the relevant employer was a right to be compensated in an amount assessed by reference to the perceptions, standards and the monetary values applicable at the time when an enforceable award of compensation came to be made. That is to say, the damages which the respondent was entitled to recover against each employer would reflect any variation in the level of awards consequent upon intervening inflation or changes in curial standards or perceptions.

5. Logically, there is something to be said for the view that the primary damages (i.e. ignoring interest) awarded should, in each of the present cases, have been the amount which would have been recovered by the respondent against the employer if the dismissed action had been heard at the time when it would probably have come on for hearing if the respondent's solicitor had acted with due skill and care. However, it appears to me that that view oversimplifies the problem and could be productive of injustice and impracticability. The preferable approach is that adopted by Demack J. and confirmed by the Full Court of the Supreme Court, namely, that the value of the barred cause of action should, in each case, be assessed by reference to "the prevailing awards at the time of assessment". True it is that the statutory context within which the value of that lost cause of action must be determined is that which would have controlled the assessment of damages if the action against the employer had actually been heard at such an earlier time, since it is that statutory context which would have controlled the right to recover damages which was lost. If, for example, there were statutory provisions which would have been applicable to limit the total amount of damages if the action had been heard at that earlier time, those provisions would limit the content of the lost right. The position is, however, different as regards the range of judicial awards by reference to which the value of the lost right to recover should be assessed. What was lost was not a right to have damages assessed by reference to the monetary values or the standards or perceptions prevalent at the earlier notional time of some hypothetical hearing. What was lost was, as has been said, the right to recover damages assessed by reference to the perceptions, standards and monetary values applicable at the time when an enforceable award of damages actually came to be made.

6. As I followed the argument, it is common ground between the parties that the primary damages assessed by the learned trial judge in each of the present cases exceeded the primary damages which would have been awarded if the value of the barred right of recovery had been assessed by reference to the amount which would have been recovered on a hypothetical hearing of the action as at some earlier time which the court determines to be the time when the dismissed proceedings would probably have been heard if the relevant appellant solicitor had not been negligent. Putting to one side obvious variations in relation to past and future economic loss, there are two main reasons for that. The first is that, if the value of the lost right of recovery were assessed by reference to the levels of comparable awards of damages at that earlier time, it would be assessed by reference to the more valuable currency values then applicable. There could, of course, be no valid objection on that score if the amount of damages assessed in terms of that more valuable currency were then adjusted to take account of the comparatively lower value of present-day currency. If such an adjustment were not made however, the assessment would affront logic and short-change the respondent (cf., per Windeyer J., Australian Iron &Steel Ltd. v. Greenwood (1962) 107 CLR 308, at p 326). This is because while he lost a right to recover damages assessed by reference to the monetary values applicable at the time when an enforceable award of compensation was made, he would only recover damages assessed by reference to outdated currency values and payable in the debased currency of the present day. In that regard, it should be mentioned that an award of interest with its often uncertain tax consequences is, in my view, an inappropriate and ordinarily inadequate means of compensating for the variable effects of inflation.

7. The second main reason why the primary damages awarded in each of the present cases exceed those which would have been assessed by reference to the amount which would have been recovered on a hypothetical hearing of the action against the relevant employer at some earlier time is not so straightforward. It is that curial perceptions and standards in relation to adequate compensation for pain, suffering and loss of amenities of life consequent upon physical injury have tended to vary, in a manner favourable to an injured plaintiff, over the years (see, e.g., per Sholl J., Victorian Railways Commissioners v. Hale (1953) VLR 477, at pp 492-493). There has always been scope for discretionary differences as to the precise amount of such awards however and the upward movement of the permissible range has been largely imperceptible in the short term even to those involved in such cases. It would be both undesirable and, to some extent, impracticable from the point of view of the administration of justice to require a trial court in cases such as the present to project itself back to determine what, if any, discount should be made in the valuation of a statute-barred right to compensation for physical injury to reverse the intervening development of curial perceptions or standards. In that regard, I am in general agreement with the comments of Miles J. in Vulic v. Bilinsky (1983) 2 NSWLR 472, at pp 486-487, which are set out in the joint judgment of Wilson, Toohey and Gaudron JJ. in the present case.

8. What, one is led to ask, are the reasons in logic or in common sense which justify a conclusion that a present-day award of compensatory damages should be calculated by reference to the more valuable currency of the past but be made payable in the debased currency of the present? What, one is also led to ask, are the reasons which justify the approach that a court must ascertain and apply some discount to adjust what the courts currently hold to be appropriate compensation for the non-economic consequences of physical injury to reflect perceptions and standards to which the courts no longer adhere? The answer to these questions cannot be that that conclusion or that approach is necessary to determine the true value of what the respondent lost in each case. It is not possible to identify precisely when his action against the relevant employer would have come on for hearing if it had not been dismissed for want of prosecution. The hearing may have been delayed for any of a variety of reasons such as the length of court lists, sickness or unavailability of witnesses or tardiness (not leading to dismissal of the action) of legal practitioners. The first hearing may have resulted in an erroneous award of damages, followed by appeal (or appeals) and a further hearing. Indeed, there can be no iron-clad guarantee that the action against the particular employer would, if it had not been dismissed for want of prosecution, have actually come on for hearing before the action against the relevant appellant solicitor was heard. Even if one could assume that the action against the particular employer would otherwise have been heard at some particular earlier time, there is no compelling reason in logic or in common sense why a lost right to damages in an amount to be assessed as at the time when it becomes payable under an enforceable order should be valued, for the purposes of quantifying compensation for its loss, otherwise than by reference to the level of awards prevalent at the time when the order for compensation comes to be made. To the contrary, as has been said above, it would be to affront logic to assess appropriate compensation for the loss of that right by reference to the level of awards made in the context of long outdated currency values but to make the compensation payable in the debased currency of the present. And, as has also been said above, it would be unfair to the plaintiff, as well as undesirable and, to some extent, impracticable from the point of view of the administration of justice, to require a court to assess the appropriate compensation for the loss of such a right by reference to perceptions and standards which were applicable years before the time at which an order for compensation is being made. In that regard, one need go no further than a case such as the present with distinct injuries allegedly caused by the separate negligence of different employers over a long period of years to illustrate the practical difficulty which would be involved in requiring a court to assess compensation for each lot of injuries by reference to the different notional times of hypothetical hearings.

9. There is one further matter which I would mention. If the lost right of action is, as I think it should be, to be valued as at the date of hearing of the claim against the solicitor, the preferable approach is that it should be valued in the context of events occurring and knowledge acquired since the original action against the employer was dismissed for want of prosecution. It is true that the result may be that a plaintiff may recover more or less than he would have recovered from the employer but for the intervening negligence of the solicitor. There will, however, inevitably be a degree of uncertainty about the precise time when the action against the third party would have come on for hearing and about what evidence would have been available in that action. On balance, it seems to me to be preferable to assume that the law would have eventually reached a correct decision about the damages actually sustained than to proceed upon the basis that the law would have awarded damages in an amount which subsequent events and knowledge have disclosed would be either excessive or inadequate. In that regard, I am influenced by the undesirability of requiring a court to embark upon the determination of essentially speculative questions such as: the time at which an action which has been discontinued or not even commenced would have come on for hearing in the absence of a solicitor's negligence; what evidence would have been available upon the hypothetical hearing of such an action at that time; and, the extent to which medical expertise and curial procedures would have been adequate to establish or anticipate the extent and the future development and effects of the physical injuries sustained. As a general rule, neither justice nor its administration is served by requiring courts to speculate about what an earlier court might have been induced to accept as probable in relation to matters which have become established fact.

10. I would dismiss the appeal in each case.

DAWSON J. The respondent in each of these appeals, Antonio Perez, was the plaintiff in two actions instituted by him to recover damages for personal injuries sustained in the course of his employment. Each action was against a different employer, the injuries having been sustained in two separate accidents some five years apart. The respondent engaged a different firm of solicitors to act for him in each of the actions. Each of the firms of solicitors, the appellants in these appeals, negligently failed to prosecute the action in which it was engaged and each of the actions was struck out for want of prosecution. Fresh actions were statute barred. The respondent successfully sued each of the appellant firms for damages. The appellants appealed unsuccessfully to the Full Court of the Supreme Court of Queensland and now appeal by special leave to this Court.

2. The only issue argued before this Court concerns the time by reference to which the respondent's damages in the two actions against the appellants ought to have been assessed. On the one hand it was said by the appellants that the appropriate time in each case was the time at which the respondent's action against his employer would have come on for hearing in the ordinary course had his solicitors not been negligent. Alternatively, the appellants argued that the appropriate time was when the action was dismissed for want of prosecution, that is to say, when the respondent in each case lost his cause of action against his employer. These alternative times are likely to be different but it was not contended in these cases that the difference was of any practical significance. On the other hand, the respondent submitted that the appropriate time at which damages should have been assessed was the time of the trial of the actions against the respondent firms of solicitors. The trial judge accepted the submission of the respondent.

3. I should add that in each of the actions against his solicitors the respondent includes a claim for damages for a psychological reaction suffered by him and the aggravation of that reaction by delays in the prosecution of his case. It is not disputed that any assessment of damages under that head, assuming the claim to be sustainable, ought to have been as at the time of trial.

4. The underlying principle upon which damages are awarded at common law, whether for breach of contract or for tort, is that of compensation. A person injured by another's wrongdoing ought, so far as it can be done by the payment of money, to be restored to his former position. That involves reparation not only for the wrongful act itself, but also for all its natural and direct consequences: Admiralty Commissioners v. S.S. Susquehanna (1926) AC 655, per Viscount Dunedin at p 661. It used to be said in Halsbury that damages are to be measured by reference to the position of the plaintiff at the date when the damage or loss was suffered and that this is normally the date of the breach of contract or commission of the tort: Halsbury's Laws of England, 3rd ed., vol.11, par.405. Halsbury no longer says this and if there is any longer such a rule, it offers no certain guide in all cases: Miliangos v. Frank (Textiles) Ltd. (1976) AC 443, at p 468; Dodd Properties Ltd. v. Canterbury City Council (1980) 1 WLR 433, at pp 450-451; 1 All ER 928, at p 933.

5. Clearly enough there are some cases, particularly in contract, where the appropriate time at which to assess damages is the date of breach. For example, where goods are sold and in breach of the contract there is a failure to deliver them, the damages are prima facie the difference between the contract price and the market price at the date of breach. This principle is embodied in the various Sale of Goods Acts. But as Lord Wilberforce observed in Johnson v. Agnew (1980) AC 367, at pp 400-401, even here the rule is not absolute and fairness may require departure from the date of breach. See Ogle v. Earl Vane (1867) LR 2 QB 275. There are other departures from any rule crystallizing the plaintiff's loss at the time of the wrong. One example is where the defendant owes money to a plaintiff payable in a foreign currency. The House of Lords held in Miliangos v. Frank (Textiles) Ltd. that in such a case judgment could be given in the foreign currency, thus giving to the plaintiff the benefit of increases in the value of the currency up to the date of payment. Another category is where damages are awarded in lieu of specific performance and the value of the property which is the subject-matter of the contract is assessed at the date of judgment: see Wroth v. Tyler (1974) Ch 30. Again, departure occurs where a plaintiff does not move immediately to carry out repairs or to mitigate his loss, but it is not unreasonable for him to delay doing so. In such cases, damages may be assessed at an appropriate date later than that of the wrong: see Dodd Properties Ltd. v. Canterbury City Council; County Personnel Ltd. v. Alan R. Pulver &Co. (1987) 1 WLR 916; 1 All ER 289.

6. But the most clearly established departure from any principle requiring the assessment of damages at the time of the breach or of the wrong is in personal injury and fatal accident cases. In those cases, damages are measured at the date of the trial or, more accurately, the date of judgment: O'Brien v. McKean (1968) 118 CLR 540; Lim v. Camden Health Authority (1980) AC 174. The justification for this is generally said to be that the assessment of damages at the latest possible time enables circumstances which would otherwise have been mere prophecies to become facts and as Latham C.J. put it in Willis v. The Commonwealth (1946) 73 CLR 105, at p 109, "where actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second-best." Willis was a fatal accident case where the plaintiff had remarried after the death of her husband, but the principle is the same in personal injury cases. As was observed by Lord Reid in Baker v. Willoughby (1970) AC 467, at pp 490-491:

"There is no doubt that it is proper to lead

evidence at the trial as to any events or developments between the date of the accident and the date of the trial which are relevant for the proper assessment of damages. ... And it is always proper to take account of developments with regard to the injuries which were caused by the defendant's tort: these developments may show that any assessment of damages that might have been made shortly after the accident can now be seen to be either too small or too large."

See also Bwllfa and Merthyr Dare Steam Collieries (1891) v. Pontypridd Waterworks Company (1903) AC 426, at p 431; Williamson v. John I. Thornycroft &Co. Ltd. (1940) 2 KB 658; Thompson v. Faraonio (1979) 54 ALJR 231, at p 233; 24 ALR 1, at p 7; Ruby v. Marsh (1975) 132 CLR 642, at pp 647, 658, 667.

7. Notwithstanding that the advantage of assessing damages as at the time of the trial rather than the time of the wrong is said to lie in the availability of evidence which has materialized in the meantime, the practice has more than an evidentiary effect. An additional feature is that the damages so assessed will take account of any fluctuation in the purchasing power of money between those two dates. The fluctuation in prices in modern times is almost inevitably inflationary and might otherwise be met to some extent by an appropriate award of interest at market rates between the time the cause of action arose and the date of judgment. Such an award of interest is provided for in Queensland by the Common Law Practice Act 1867 (Q.) s.72 and a comparable provision is to be found in most other jurisdictions. However, the assessment of damages as at the time of trial is likely to reflect more accurately any inflationary factor.

8. But there is another reason why it is desirable, upon other than pragmatic grounds, to assess damages as at the date of trial rather than the date of the wrong in cases such as personal injury cases. It is because the compensation in those cases is for future as well as past loss and damage and, for the purpose of assessing amounts, there is no compelling reason to select one point rather than another along the continuum over which the damages extend. The loss does not crystallize until the assessment is made. It is only then that the right of the plaintiff can be said to be quantified. In other cases the loss crystallizes irrespective of whether any assessment is made. For example, where there is a failure to deliver goods sold and there is an opportunity to replace the goods in the market, the loss crystallizes at that time and there is every reason why it should be assessed at that time, particularly if any delay between the cause of action arising and judgment can be met by an award of interest. Of course, if there is no available market the situation may be different. Thus Oliver J. in speaking of the assessment of damages in Radford v. De Froberville (1977) 1 WLR 1262; (1978) 1 All ER 33 said at p 1285; p 56:
"In contracts for the sale of goods, for instance,
where there is an available market, the date of non-delivery is generally the appropriate date because it is open to the plaintiff to mitigate by going into the market immediately. Where there is no readily available market a later date may be appropriate ..." See also Waddams, "The Date for the Assessment of Damages", (1981) 97 Law Quarterly Review 445.

9. In the present cases, the respondent's loss crystallized at the time his actions against his solicitors were dismissed for want of prosecution. Each action had a value at that time which was lost to the respondent and that value could only be measured by the respondent's chances of success at that point. The actions by the respondent against his empolyers are not actions for damages for personal injuries. They are actions for damages for failure to exercise due care; it matters not for present purposes whether they be regarded as actions for breach of contract or tort or both. The loss caused by the negligence does not cover events extending over a period of time. It occurred once and for all in each case when the respondent lost his right to prosecute his claim. The quantification of the loss must necessarily take place at that time because it is not referable to an extended condition as is the loss for which compensation is sought in a personal injury claim.

10. There can be no justification in these cases for departure from the old principle which dictates the time of the wrong as the appropriate time for the assessment of damages. That time is the time at which the actions against the employers were dismissed for want of prosecution. Admittedly, the past and future losses which the respondent might have proved in each action as at that time are a measure of the value of the respondent's lost chance of recovery. In these cases, where liability is not questioned, they are the whole measure of the loss, apart from the separate claim against the solicitors for the psychological harm caused by their delays. In other cases, additional factors such as the weakness of the claim, the possibility of contributory negligence being established or the unlikelihood of any judgment being met may have to be taken into account in assessing the value of the lost chance. But it is the determination of value of the lost chance at a fixed point of time - when the loss occurred - which must be the ultimate purpose of the exercise. To assess the value of the respondent's lost chance as at the time of the trial of each of the actions against the solicitors, if losses were then provable which were not provable at the time the actions against the employers were dismissed or vice versa, would be to value, not the chances of recovery which were lost, but other and different chances which subsequently arose. So it would be if there were a change in the principles or the law for the determination of damages for personal injury in the intervening period. Moreover, even if there were no changes other than a fall in the value of money by reason of inflation, the assessment of the respondent's damages as at the date of the trial of each of the actions against the solicitors would involve compensating the respondent for inflation, that being something for which the law otherwise provides in the form of interest.

11. In valuing the respondent's lost chances, the likelihood of his recovering interest against his employers for the period between the causes of action arising and a notional date of judgment against them ought to be taken into account and, of course, there is provision for interest for the remaining period up to the date of judgment in the present actions. Interest at the market rate has an inbuilt factor for inflation.

12. Not only is the approach which I have suggested required, I think, on principle, but there is also some authority for it. In Kitchen v. Royal Air Force Association (1958) 1 WLR 563; 2 All ER 241 the Court of Appeal was concerned with a claim against a firm of solicitors for negligence in failing to commence an action within the time limited. The action was not one which was bound to have succeeded. At pp 574-575; pp 250-251 of All ER, Lord Evershed M.R. observed:

"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. On 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 have formulated, then it is equally plain that the answer is that she can get nothing save nominal damages for the solicitors' negligence. ... But the present case falls into neither one

nor the other of the categories which I have mentioned. ... 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 that negligence lost. The question is, has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case, it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can."

In Tutunkoff v. Thiele (1975) 11 SASR 148 the plaintiff sued his solicitor for damages for negligence in failing to commence an action before the expiry of the limitation period. Bray C.J. posed the question as follows at p 155:

"The question has been raised, whether ... I

should assess the damages 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."

The difference was not significant in that case and Bray C.J. did not have to answer the question raised. But for the reasons to which I have adverted, the first answer which he gave is correct, although the relevant date is the date of the wrong. The wrong was complete when the action became statute barred. See also Dolman v. Penrose (1983) 34 SASR 481.

13. In the present cases the court below relied upon Vulic v. Bilinsky (1983) 2 NSWLR 472 in which Miles J. at pp 486-487 expressed the view that it was impossible for a court to "project itself back in time to imagine as it were that it was deciding a case at a prior point in time." With all due respect, it does not seem to me that the difficulties are as formidable as Miles J. appears to have thought them to be. At all events they are not such as to require a departure from a course which basic principle requires. Miles J. also found it impossible to select an appropriate date in the past by reference to which the plaintiff's loss might be assessed. There is, however, no difficulty about that. The appropriate date is the date of the wrong, which in each of these cases was complete when the respondent's action against the employer was dismissed for want of prosecution. It is not an impossible task to assess what the respondent might have been awarded in each action as at that date and to discount the figure arrived at to the extent that the plaintiff's chances of successful recovery were less than one hundred per cent.

14. The exercise which is required may appear at first sight to give no weight to the principle that the law prefers facts to conjecture in that it does not allow a future which has materialized to be taken into account. But, subject to one qualification to which I shall refer, the principle has no application where the exercise is the valuation of a lost opportunity - in reality a chose in action - at a particular point in time. In so far as the value of the lost chance of recovery depends upon the amount of damages which were recoverable, it is what could have been proved at the relevant date which is significant, not what might subsequently turn out to be the case. It is different in cases for the recovery of damages for personal injury where the loss can be regarded as not having crystallized until an assessment is made. Here the loss crystallized at the date upon which the actions against the employers were dismissed for want of prosecution. The one qualification which I would make relates to situations where a loss could have been established as a probable consequence of the injuries received at the time the actions were dismissed. It is appropriate to take such a consequence into account in assessing the value of the lost chance and, for that purpose, there can be no objection to looking at actual events up to the time of the trial of the actions against the solicitors as an aid in making that assessment. That would involve no departure from the principle that the assessment is to be made upon the basis of the loss provable at the time when the actions against the employers were dismissed; it would merely give preference to actuality over conjecture in establishing the precise extent of the loss.

15. The trial judge in these cases assessed the respondent's damages entirely as at the time of the trial of the actions against the appellants. This was held to be the correct approach by the Full Court upon the basis that it was appropriate to make the assessment of damages in the same manner as in an action for personal injuries. In my view both the trial judge and the Full Court fell into error in adopting this approach. The appeals should be allowed and new trials, limited to damages, should be ordered.

Orders

ORDER IN MATTER No. B76

Appeal allowed with costs.

Set aside the judgment of the Full Court of the Supreme Court of Queensland and in lieu thereof-
(1) allow the appeal to that court with costs;
(2) set aside the judgment of Demack J. dated 8 May 1987

save in so far as it directs that there by judgment for the plaintiff;

(3) order a new trial limited to damages; and (4) reserve the costs of the action at first instance to be

dealt with by the trial judge on the new trial.

ORDER IN MATTER No. B77

Appeal allowed with costs.

Set aside the judgment of the Full Court of the Supreme Court of Queensland and in lieu thereof-
(1) allow the appeal to that court with costs;
(2) set aside the judgment of Demack J. dated 8 May 1987

save in so far as it directs that there be judgment for the plaintiff;

(3) order a new trial limited to damages; and (4) reserve the costs of the action at first instance to

be dealt with by the trial judge on the new trial.