Nigam v Harm (No 2)

Case [2011] WASCA 221


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   NIGAM -v- HARM [No 2] [2011] WASCA 221

CORAM:   McLURE P

NEWNES JA
MURPHY JA

HEARD:   13 APRIL 2011

DELIVERED          :   18 OCTOBER 2011

FILE NO/S:   CACV 105 of 2009

BETWEEN:   SHARAD CHANDRA NIGAM t/as S C NIGAM & CO

Appellant

AND

YVONNE HARM
Respondent

ON APPEAL FROM:

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

Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111

Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64

Darvall McCutcheon v H K Frost Holdings Pty Ltd [2002] VSCA 85; (2002) 4 VR 570

Davies v Taylor [1974] AC 207

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Feletti v Kontoulas [2000] NSWCA 59

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gill v Lougher [1830] 1 CR & J 170

Gore v Montague Mining Pty Ltd [2000] FCA 1214

Gregg v Scott [2005] 2 AC 176

Hall v Foong (1995) 65 SASR 281

Hammond Worthington v Da Silva [2006] WASCA 180

Harm v Nigam [2009] WADC 117

Harrison v Bloom Camillin (No 2) [2000] Lloyd's Rep PN 404

Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539

Instant Nominees Pty Ltd v Redman [1987] WAR 218

Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Leitch v Reynolds [2005] NSWCA 259; (2005) Aust Torts Reports 81‑806

Lithgow City Council v Jackson [2011] HCA 36

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

McCarthy v Kidd [2001] NSWCA 304

Naxakis v…

Continue reading Nigam v Harm (No 2)

Sign in free to access the full text

Details
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.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.