KENT -v- MULLALLY [No 2] [2016] WADC 37

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WADC 37
Case No:	CIV:960/2011	Heard:	14 -16 DECEMBER 2015 & 27 JANUARY 2016
Coram:	O'NEAL DCJ	Delivered:	18/03/16
Location:	PERTH
No of pages:	36	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff, damages assessed
PDF Version

Parties:	CHRISTOPHER KENT PATRICK MULLALLY PAUL D'AMICO
Catchwords:	Advisors' negligence Workers' compensation advisor failed to ensure plaintiff's common law action was commenced in time Action statue barred Loss of chance Causation Value of plaintiff's lost opportunity Damages
Legislation:	Civil Liability Act 2002 s 5B and s 5K Limitation Act 2005 (WA) Occupational Health and Safety Act 1984 s 20 The Mines Safety and Inspection Act 1994
Case References:	Falkingham v Hoffmans (A Firm) [2014] WASCA 140 Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394 Thomas v O'Shea (1989) A Torts Rep 80-251

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : KENT -v- MULLALLY [No 2] [2016] WADC 37 CORAM : O'NEAL DCJ HEARD : 14 -16 DECEMBER 2015 & 27 JANUARY 2016 DELIVERED : 18 MARCH 2016 FILE NO/S : CIV 960 of 2011 BETWEEN : CHRISTOPHER KENT

Plaintiff

AND

PATRICK MULLALLY

First Defendant

PAUL D'AMICO

Second Defendant

Catchwords:

Advisors' negligence - Workers' compensation advisor failed to ensure plaintiff's common law action was commenced in time - Action statue barred - Loss of chance - Causation - Value of plaintiff's lost opportunity - Damages

Legislation:

Civil Liability Act 2002 s 5B and s 5K

Limitation Act 2005 (WA)
Occupational Health and Safety Act 1984 s 20
The Mines Safety and Inspection Act 1994

Result:

Judgment for the plaintiff, damages assessed

Representation:

Counsel:

Plaintiff : Mr E J Myers

First Defendant : In person

Second Defendant : No appearance

Solicitors:

Plaintiff : Bradley Bayly Legal

First Defendant : Not applicable

Second Defendant : Not applicable

Case(s) referred to in judgment(s):

Falkingham v Hoffmans (A Firm) [2014] WASCA 140
Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394
Thomas v O'Shea (1989) A Torts Rep 80-251

O'NEAL DCJ

Introduction

1 In December 2005 the plaintiff was working as a scaffolder for Thiess Pty Ltd (Thiess) on a project being carried out for Alcoa Australia Ltd (Alcoa) at its Pinjarra Refinery. On 13 December 2005 the plaintiff was injured while working in the hazardous conditions that then existed on site.

2 The defendants carried on business together under the style 'Work Claims Australia'. They purported to act on behalf of people seeking workers' compensation. In…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] WADC 37
Decision Date: 18 MARCH 2016

CaseChat Overview and Summary

In the Federal Circuit Court, Kent brought an action against Mullally, a workers' compensation advisor, for professional negligence. Kent alleged that Mullally failed to ensure that his common law action against a third party was commenced within the statutory limitation period, resulting in the action being statute barred. The court had to determine whether Mullally's negligence caused Kent's loss of opportunity to bring the action and, if so, whether Kent could recover damages for the loss of that opportunity.

The central issue for the court was whether Mullally's failure to timely advise Kent resulted in the loss of a real chance of success in the common law action, and if so, whether Kent could recover damages for that lost opportunity. The court considered whether there was a significant probability that the outcome of the common law action would have been more favourable if it had been commenced on time. The court also examined whether Kent's loss of opportunity was a direct result of Mullally's negligence and whether damages could be awarded for the lost opportunity.

The court found that Mullally's negligence did result in Kent's loss of a real chance of success in the common law action, as there was a significant probability that the outcome would have been more favourable if the action had been brought on time. The court held that Kent could recover damages for the lost opportunity, and assessed the value of that lost opportunity to determine the appropriate amount of damages. The court concluded that the loss of the chance was a direct result of Mullally's negligence and awarded damages to Kent accordingly. The court's judgment was in favour of Kent, and damages were assessed based on the value of the lost opportunity.

Orders

Orders of the court

Judgment for the plaintiff, damages assessed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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