Liddy v Bazley

[2013] NSWCA 319

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Liddy v Bazley [2013] NSWCA 319

Hearing dates:

18 July 2013

Decision date:

27 September 2013

Before:

Basten JA at [1];
Emmett JA at [73];
Leeming JA at [81]

Decision:

(1) Allow the appeal and set aside the judgment and orders made in the District Court.

(2) In place thereof, order that -

(a) the plaintiff's claim be dismissed, and

(b) the plaintiff pay the defendants' costs of the trial.

(3) The respondent pay the appellants' costs of the appeal.

(4) The respondent have a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - professional negligence - breach of duty - solicitors instructed to make work injury damages claim - instructions given long after expiry of limitation period - failure to give advice and prosecute claim

TORTS - professional negligence - causation - failure to address as element of cause of action likely instructions based on legal advice as to comparative value of compensation entitlements and damages

TORTS - professional negligence - damages - assessment of likely recovery at notional trial date - allowance for chance of not obtaining extension of time - notional advice as to comparative value of compensation entitlements and damages - value of medical benefits

Legislation Cited:

Victims Support and Rehabilitation Act 1996 (NSW), s 34
Workers Compensation Act 1987 (NSW), ss 151A, 151D, 151G, 151H, 151Z

Cases Cited:

Firth v Sutton [2010] NSWCA 90
Fox v Wood [1981] HCA 41; 148 CLR 438

Category:

Principal judgment

Parties:

James Gervase Liddy, Stephen Gerard Cahill, Raymond John McClenahan and Anthony Simic (Appellants)
Michael Laurence Bazley (Respondent)

Representation:

Counsel:

P Braham/P O'Dea (Appellants)
T J Boyd/J D Cairn (Respondent)

File Number(s):

CA 2012/361667

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-11-09 00:00:00

Before:

Williams DCJ

File Number(s):

DC 2010/71921

Judgment

1. BASTEN JA: On 13 December 1987 Mr Bazley (the respondent) was employed as a prison officer in the Department of Corrective Services, stationed at Parklea Prison. A number of prisoners engaged in a violent riot, in the course of which the respondent was physically assaulted and held hostage. Over the years which followed, the respondent suffered a number of workplace injuries and a deterioration in his mental health. It was not, however, until October 2004 that a psychiatrist gave a provisional diagnosis of post traumatic stress disorder resulting from the riot at Parklea Prison.

1. In August 2005 the respondent consulted the appellants, a firm of solicitors trading as Taylor and Scott, specialising in personal injury litigation.…