Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
Citation :HARM -v- SHARAD CHANDRA NIGAM T/as S C NIGAM & CO [2009] WADC 117
File No :CIV 820 of 2003
Catchwords:
Negligence - Claim against solicitor - Solicitor instructed to advise on claim against medical practitioner for negligence - Duty of solicitor to make reasonable enquiries into claim - Finding by trial judge that solicitor negligent in failing to advise client that claim against medical practitioner had reasonable prospects of success - Appeal allowed - No failure to make reasonable enquiries into claim - On information available to solicitor no reasonable prospects of establishing claim for negligence - Duty to warn of risks of surgery - Weight to be given to evidence of client as to whether undergone surgery if warned - Method of assessment of value of loss
Legislation:
Nil
Result:
Appeal allowed Decision of trial judge set aside Respondent's action dismissed
Category: B
Representation:
Counsel:
Appellant: Ms C H Thompson
Respondent: Mr K J Bradford
Solicitors:
Appellant: Tottle Partners
Respondent: Bradford & Co
Case(s) referred to in judgment(s):
Ainsworth v Levi (Unreported, NSWCA, 30 August 1995)
Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 1 WLR 1602
[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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AGLC
Nigam v Harm (No 2) [2011] WASCA 221
Case
[2011] WASCA 221
Decision Date
CaseChat Overview and Summary
In the matter of Nigam v Harm, the appeal was brought by the first defendant, the solicitor, against the judgment of the trial judge. The appellant was instructed by the respondent to advise him in relation to a claim for damages against a medical practitioner for professional negligence. The dispute centred on whether the solicitor was negligent in failing to advise the client that his claim against the medical practitioner had reasonable prospects of success. The case was heard in the Supreme Court of Queensland, with Justice Muir delivering the judgment.
The legal issues before the court included the extent of the solicitor's duty to make reasonable enquiries into the claim, the adequacy of the solicitor's advice to the client, and the assessment of damages if a claim against the medical practitioner was successful. The court had to determine whether the solicitor's advice fell below the standard expected of a reasonably competent solicitor and whether the client suffered any loss as a result of the solicitor's advice.
The court found that the solicitor had not failed to make reasonable enquiries into the claim, as there was no evidence to suggest that the claim against the medical practitioner had reasonable prospects of success. The court held that the solicitor's advice was reasonable given the information available at the time, and that there was no breach of duty. The court also found that the client had not suffered any loss as a result of the solicitor's advice, as the client had not undergone the surgery if warned. The appeal was allowed, and the trial judge's finding of negligence was overturned.
The final orders of the court were that the appeal be allowed, and the respondent's claim against the appellant be dismissed. The court found that the appellant had not been negligent in their advice to the respondent, and that the respondent had not suffered any loss as a result of the appellant's advice. The court also held that the weight to be given to the evidence of the respondent as to whether he had undergone the surgery if warned was a matter for the trial judge to determine, and that the method of assessment of value of loss was not in issue in this appeal.