Leitch v Reynolds

Case [2005] NSWCA 259

Reported Decision:

 (2005) Aust Torts Reports 81-806

Court of Appeal


CITATION:

Leitch & Ors v Reynolds [2005] NSWCA 259
HEARING DATE(S):

18 April 2005
 
JUDGMENT DATE: 


5 August 2005

JUDGMENT OF:

Santow JA at 1; Young CJ in Eq at 117; Campbell AJA at 118
DECISION:

Appeal dismissed with costs.

CATCHWORDS:

TORT - NEGLIGENCE - Solicitors' failure to pursue plaintiff's cause of action for failed surgical treatment against his medical professionals leading to limitation period being exceeded with further delay resulting in limitation period not being extended - DAMAGES for loss of benefit of cause of action - Measure of damages when x-rays said to be indispensable to success of action - Whether instead discount of cause of action to take account of reduced prospects of success from lost x-rays should have been greater than 55% - Damages for economic loss and for vexation and distress.

LEGISLATION CITED:

Evidence Act s63, s136
Limitations Act 1977 (NSW)

CASES CITED:

Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1
Baltic Shipping Company v Dillon (1993) 176 CLR 344
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64
Cowra Shire Council v Trudgett [2004] NSWCA 9
Johnson v Australian Casualty Company Limited (1992) 7 Anz Ins Cases 61-109
Johnson v Perez (1988) 166 CLR 351
Kitchen v Royal Air Force Association [1958] 1 WLR 563
Luxton v Vines (1952) 85 CLR 352
Nikolau v Pasavas Phillips & Co (No. 2) (1989) 166 CLR 394
Phillips v Bisley (Court of Appeal, unreported, 18 February 1997)
Purkess v Crittenden [1965] 114 CLR 164
Roach v Page No 11 [2003] NSWSC 907
Walmsley v Cosentino [2001] NSWCA 403
Young v Coupe & Ors [2004] NSWSC 546

PARTIES:

Robert Royce LEITCH, James Paul HASSON & Andrew Peter DENT t/as Leitch Hasson Dent (Appellants)
Dean William REYNOLDS (Respondent)

FILE NUMBER(S):

CA 40802/04
COUNSEL:

D DAVIES, SC/ J M SANDFORD (Appellants)
M L WILLIAMS, SC/ A PORTHOUSE (Respondent)

SOLICITORS:

Yeldham & Associates (Appellants)
George West (Respondent)

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 8295/02

LOWER COURT JUDICIAL OFFICER:

Sidis DCJ



                          CA 40802/04
                          DC 8295/02

                          SANTOW JA
                          YOUNG CJ in Eq
                          CAMPBELL AJA

                          5 AUGUST 2005
Robert Royce LEITCH & Ors ( trading as Leitch Hasson Dent) v Dean William REYNOLDS
Judgment

1 SANTOW JA:

      INTRODUCTION
      This appeal concerns the proper principles governing whether and to what extent a plaintiff can recover damages when it is contended that the negligence of his solicitors denied him the opportunity of successfully pursuing a cause of action in tort against a third person. Mr Dean Reynolds (the plaintiff and present respondent) successfully contended that he had lost the benefit of such a cause of action in negligence against his treating medical professionals in respect of a failed course of surgical treatment to his left leg. His solicitors, the appellants, accept that they failed diligently to prosecute his claim, allowing it to become statute-barred. They also…

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Details
AGLC
Leitch v Reynolds [2005] NSWCA 259
Case
[2005] NSWCA 259
Decision Date

CaseChat Overview and Summary

The appeal concerned a claim by the plaintiff, Mr Leitch, against his former solicitors, Reynolds, for negligence. Mr Leitch alleged that the solicitors' failure to pursue his cause of action for failed surgical treatment against his medical professionals resulted in the limitation period being exceeded. Further delays meant that an application to extend the limitation period was also unsuccessful. Mr Leitch sought damages for the loss of the benefit of his original cause of action.

The central legal issues before the court were the assessment of damages. Specifically, the court had to determine whether the measure of damages should have accounted for the fact that x-rays, said to be indispensable to the success of the original medical negligence action, were no longer available. The court was required to consider whether a discount to the value of the lost cause of action, to reflect the reduced prospects of success due to the missing x-rays, should have been greater than the 55% applied by the primary judge. The assessment of damages for economic loss and for vexation and distress also fell for consideration.

The court dismissed the appeal, upholding the primary judge's decision. The reasoning focused on the appropriate assessment of damages in a situation where a plaintiff has lost the opportunity to pursue a claim due to their solicitor's negligence. The court applied principles relating to the measure of damages for loss of a chance, considering the impact of the unavailability of crucial evidence (the x-rays) on the prospects of success of the original claim. The court found that the discount applied by the primary judge adequately reflected the diminished prospects of success and that the damages awarded for economic loss and for vexation and distress were appropriate.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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