Medium Neutral Citation: Osei v P K Simpson Pty Ltd [2022] NSWCA 13
Hearing dates: 1 December 2021
Date of orders: 14 February 2022
Decision date: 14 February 2022
Before: White JA at [1];
McCallum JA at [100];
Garling J at [101]
Decision:
(1) Grant the applicant leave to appeal on ground 4 of the proposed “revised draft notice of appeal” dated 18 October 2021.
(2) Otherwise dismiss the applicant’s summons for leave to appeal.
(3) Order that within seven days the applicant file a notice of appeal in accordance with the leave granted.
(4) Allow the appeal against order 1 made in the District Court on 17 June 2021.
(5) Vary the order made by the District Court on 17 June 2021 by deleting the words “in the sum of $10,000”.
(6) Order the respondents to pay the appellant’s costs of the application for leave to appeal and of the appeal.

Catchwords:
NEGLIGENCE — Negligent advice to settle claim for weekly workers’ compensation payments — whether claim for damages for professional negligence was “for personal injury damages” as defined
COSTS — Whether costs capped at $10,000 — Legal Profession Uniform Law Application Act 2014 (NSW), cl 2 of Sch 1
WORDS AND PHRASES — “for personal injury damages” — Legal Profession Uniform Law Application Act 2014 (NSW), cl 2 of Sch 1
WORDS AND PHRASES — “personal injury damages” — Civil Liability Act 2002 (NSW), s 11

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Liability Amendment (Personal Responsibility) Act 2002
Dust Diseases Tribunal Act 1989
Interpretation Act 1987 (NSW)
Legal Profession Act 1987
Legal Profession Act 2004
Legal Profession Uniform Law Application Act 2014
Motor Accidents Compensation Act 1999
Victim Support and Rehabilitation Act 1996 (NSW)
Workplace Management and Workers Compensation Act 1998

Cases Cited:
Be Financial Services Pty Ltd v Das [2012] NSWCA 164
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
Cross v Certain Lloyd’s Underwriters; Thelander v Certain Lloyd’s Underwriters [2011] NSWCA 136
Firth v Sutton [2010] NSWCA 90
Firth v Sutton (No 2) [2010] NSWCA 109
Hammond v Stern (2014) 86 NSWLR 612; [2014] NSWSC 864
Hammond v Stern [2013] NSWSC 70
Johnson v Perez (1988) 166 CLR 351
New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57
Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394
Oikos Constructions Pty Ltd t/as Lars Fischer Constructions v Ostin & Anor (No 2)
Osei v PK Simpson & Co Pty Ltd and Carney [2021] NSWDC 254
Pritchard v Trius Constructions Pty Ltd & Ors (No 2) [2011] NSWSC 1114
State of New South Wales v Williamson [2011] NSWCA 183
The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Category: Principal judgment
Parties: Kofi Osei (Appellant)
P K Simpson & Co Pty Ltd (First Respondent)
William Carney (Second Respondent)
Representation:
Counsel:
V Bedrossian SC with H Stitt (Applicant)
J Steele SC…

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.

Continue reading Osei v P K Simpson Pty Ltd

Details

AGLC: Osei v P K Simpson Pty Ltd [2022] NSWCA 13
Case: [2022] NSWCA 13
Decision Date: 14 February 2022

CaseChat Overview and Summary

The applicant, Osei, brought proceedings against the respondent, P K Simpson Pty Ltd, alleging professional negligence in the advice provided regarding a workers' compensation claim. The dispute concerned whether the applicant's claim for damages for professional negligence was a claim "for personal injury damages" as defined by the Legal Profession Uniform Law Application Act 2014 (NSW), which would impact the costs recoverable. The matter came before the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the applicant's claim for damages arising from negligent advice concerning a workers' compensation claim constituted "personal injury damages" for the purposes of clause 2 of Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (NSW). This determination was crucial for assessing the extent to which the respondent's costs could be capped. A secondary issue concerned the interpretation of "personal injury damages" under section 11 of the Civil Liability Act 2002 (NSW).

The Court of Appeal considered the nature of the applicant's claim, which was for economic loss flowing from negligent advice. It reasoned that while the underlying workers' compensation claim involved personal injury, the claim against the solicitor was for professional negligence, a distinct cause of action. The court concluded that the claim for damages for professional negligence was not a claim "for personal injury damages" as contemplated by the relevant legislation, and therefore the costs cap did not apply.

The Court of Appeal granted the applicant leave to appeal on a specific ground relating to the costs order. The appeal against the District Court's order was allowed, and the District Court's order was varied by removing the $10,000 costs cap. The respondents were ordered to pay the appellant's costs of the application for leave to appeal and the appeal itself.

Orders

Orders of the court

(1) Grant the applicant leave to appeal on ground 4 of the proposed “revised draft notice of appeal” dated 18 October 2021.

(2) Otherwise dismiss the applicant’s summons for leave to appeal.

(3) Order that within seven days the applicant file a notice of appeal in accordance with the leave granted.

(4) Allow the appeal against order 1 made in the District Court on 17 June 2021.

(5) Vary the order made by the District Court on 17 June 2021 by deleting the words “in the sum of $10,000”.

(6) Order the respondents to pay the appellant’s costs of the application for leave to appeal and of the appeal.

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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Citations

AGLC Citation

Osei v P K Simpson Pty Ltd [2022] NSWCA 13

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 26 of 26 shown

Osei v P K Simpson and Co. Pty Limited and Carney
[2021] NSWDC 254 Para 21

…In a second judgment given on 17 June 2021 ( Osei v PK Simpson & Co Pty Ltd and Carney [2021] NSWDC 254) the primary judge determined the issues of costs. His Honour ordered that the respondents pay the applicant’s costs of the proceedings in the sum of $10,000 apportioned 70% to PK Simpson & Co and 30% to Mr Carne…
Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2)
[2021] NSWCA 98 Para 96

…or her costs, the perspective of both parties is to be considered ( Oikos Constructions Pty Ltd t/as Lars Fischer Constructions v Ostin & Anor (No 2) [2021] NSWCA 98 at [28]). The respondent succeeded on the applicant’s claim for leave to appeal on the quantum of damages claim and would be entitled to its costs of…
Osei v P K Simpson and Co. Pty Limited and Carney
[2021] NSWDC 74 Para 1

…WHITE JA: This is an application for leave to appeal from orders of the District Court ( Osei v PK Simpson & Co Pty Ltd and Carney [2021] NSWDC 74 (Scotting DCJ)).…
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross
[2015] HCA 52 Para 26

…The primary judge considered the High Court’s decision in Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56, and Harrison AsJ’s decision in Hammond v Stern [2013] NSWSC 70. He concluded that the damages awarded to the applicant were “personal injury damages” as defined in s 11 of the Civil Liabil…
Hammond v Stern
[2014] NSWSC 864 Para 41

…rn [2013] NSWSC 70 in which the same issue arose. Harrison AsJ’s decision was affirmed on appeal by Button J ( Hammond v Stern (2014) 86 NSWLR 612; [2014] NSWSC 864). It appears that the primary judge was not referred to Button J’s decision. Nonetheless it supports the primary judge’s conclusion. Both the judgments…
The Age Company Ltd v Liu
[2013] NSWCA 26 Para 30

…s more than merely arguable ( Be Financial Services Pty Ltd v Das [2012] NSWCA 164 at [32]-[39]; The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]).…
Hammond v Stern
[2013] NSWSC 70 Para 26

…High Court’s decision in Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56, and Harrison AsJ’s decision in Hammond v Stern [2013] NSWSC 70. He concluded that the damages awarded to the applicant were “personal injury damages” as defined in s 11 of the Civil Liability Act and therefore that his…
New South Wales v Williamson
[2012] HCA 57 Para 41

…do not think that they are consistent with the conclusion of the majority of the High Court in New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57. Accordingly, I would give leave to the plaintiff to appeal on ground 4.…
Certain Lloyd's Underwriters v Cross
[2012] HCA 56 Para 26

…The primary judge considered the High Court’s decision in Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56, and Harrison AsJ’s decision in Hammond v Stern [2013] NSWSC 70. He concluded that the damages awarded to the applicant were “personal injury damages” as defined in s 11 of the Civil L…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das
[2012] NSWCA 164 Para 30

…on ground 3. The ground raises no issue of principle nor potential injustice that is more than merely arguable ( Be Financial Services Pty Ltd v Das [2012] NSWCA 164 at [32]-[39]; The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]).…
Pritchard v Trius Constructions Pty Ltd (No 2)
[2011] NSWSC 1114 Para 92

…I respectfully disagree with the observations of Hoeben J (as his Honour then was) in Pritchard v Trius Constructions Pty Ltd & Ors (No 2) [2011] NSWSC 1114, where his Honour considered that Allsop P had expressed a view in favour of the approach adopted by the primary judge in Firth v Sutton in regard to the intere…
State of New South Wales v Williamson
[2011] NSWCA 183 Para 64

…disability included psychological injury as well as feelings of humiliation, indignity, anger and frustration ( State of New South Wales v Williamson [2011] NSWCA 183 at [13]-[14]).…
Cross v Certain Lloyds Underwriters
[2011] NSWCA 136 Para 58

…The Court of Appeal ( Cross v Certain Lloyd’s Underwriters; Thelander v Certain Lloyd’s Underwriters [2011] NSWCA 136) held that the phrase “personal injury damages” did not merely pick up the words of the definition in the Civil Liability Act, but took account of the meaning of that term by reference to the applic…
Firth v Sutton (No 2)
[2010] NSWCA 109 Para 91

…the parties provided calculations of interest. Both parties’ calculations used the long term bond rate provided for by s 18 ( Firth v Sutton (No 2) [2010] NSWCA 109 at [4]). The Court was not called on to decide the issue.…
Firth v Sutton
[2010] NSWCA 90 Para 10

…f an assessment of the amount of compensation to which he would have been entitled had he wholly succeeded ( Johnson v Perez at 372; Firth v Sutton [2010] NSWCA 90).…
New South Wales v Corby
[2010] NSWCA 27

…the meaning of s 11: cf, eg, Ibbett [2005] NSWCA 445 at [124]-[125] per Ipp JA, [212], [216] per Basten JA; State of NSW v Corby [2010] NSWCA 27; (2010) 76 NSWLR 439 at [41] per Basten JA (Beazley and Tobias JJA agreeing). It seems more doubtful that damages for humiliation and injured feelings, not amounting to…
State of New South Wales v Ibbett
[2005] NSWCA 445 Para 124

…ve the effect that damages for anxiety and distress can be ‘ personal injury damages ’ within the meaning of s 11: cf, eg, Ibbett [2005] NSWCA 445 at [124]-[125] per Ipp JA, [212], [216] per Basten JA; State of NSW v Corby [2010] NSWCA 27; (2010) 76 NSWLR 439 at [41] per Basten JA (Beazley and Tobias JJA agreeing).…
O'Grady v Northern Queensland Co Ltd
[1990] HCA 16

…overnment Insurance Office (Queensland) v Crittenden [1966] HCA 56; 117 CLR 412 at 416 per Taylor J; O'Grady v Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356 at 374 per Toohey and Gaudron J. … [47] The phrase ‘relate to’ denotes a connection or relationship, direct or indirect, between one subject matter…
Nikolaou v Papasavas, Phillips & Co
[1989] HCA 11 Para 9

…tion benefits than was achieved by the compromise ( Johnson v Perez (1988) 166 CLR 351 at 366, 371-372, 389-390; Nikolaou v Papasavas Phillips & Co (1989) 166 CLR 394 at 400, 402-404).…
Johnson v Perez
[1988] HCA 64 Para 9

…e economic loss of the chance of recovering a greater award of workers’ compensation benefits than was achieved by the compromise ( Johnson v Perez (1988) 166 CLR 351 at 366, 371-372, 389-390; Nikolaou v Papasavas Phillips & Co (1989) 166 CLR 394 at 400, 402-404).…
Workers' Compensation Board of Queensland v Technical Products Pty Ltd
[1988] HCA 49

…the phrase must depend on the context in which it is found: Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; 165 CLR 642 at 653-654 per Deane, Dawson and Toohey JJ.”…
Lamb v Cotogno
[1987] HCA 47

…efendant's conduct: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471; Lamb v Cotogno (1987) 164 CLR 1 at 8-9). It is unnecessary to decide those questions, because the claim the Respondent brought sought damages, at least in part, for having been wrongfully deprived of his liber…
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd
[1985] HCA 12

…ng the condemnation of the court for the defendant's conduct: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471; Lamb v Cotogno (1987) 164 CLR 1 at 8-9). It is unnecessary to decide those questions, because the claim the Respondent brought sought damages, at least in part, for havi…
State Government Insurance Office (Qld) v Crittenden
[1966] HCA 56

…broad import: Powers v Maher [1959] HCA 52; 103 CLR 478 at 484-5 per Kitto J; State Government Insurance Office (Queensland) v Crittenden [1966] HCA 56; 117 CLR 412 at 416 per Taylor J; O'Grady v Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356 at 374 per Toohey and Gaudron J. … [47] The phrase ‘relate to’…
Powers v Maher
[1959] HCA 52

…ar from the authorities is that the words, or words of like effect (such as ‘in respect of’), are capable of broad import: Powers v Maher [1959] HCA 52; 103 CLR 478 at 484-5 per Kitto J; State Government Insurance Office (Queensland) v Crittenden [1966] HCA 56; 117 CLR 412 at 416 per Taylor J; O'Grady v Northern…
Pty Ltd v Caltex Oil Australia Pty Ltd
77 ER 1150

…er from repeating such conduct, and marking the condemnation of the court for the defendant's conduct: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471; Lamb v Cotogno (1987) 164 CLR 1 at 8-9). It is unnecessary to decide those questions, because the claim the Respondent brought sought damages, at least in pa…

Legislation cited in this decision · 10

Civil Liability Act 2002 (TAS)
11 2 mentions (from Para 19)
Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW)
1 mention (from Para 55)
Dust Diseases Tribunal Act 1989 (NSW)
1 mention (from Para 54)
Interpretation Act 1987 (NSW)
1 mention (from Para 49)
Legal Profession Act 1987 (NSW)
1 mention (from Para 50)
Legal Profession Act 2004 (Vic)
1 mention (from Para 50)
Legal Profession Uniform Law Application Act 2014 (Vic)
1 mention (from Para 22)
Motor Accidents Compensation Act 1999 (NSW)
1 mention (from Para 54)
Workers Compensation Act 1987 (NSW)
1 mention (from Para 104)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
1 mention (from Para 54)

Medium Neutral Citation:	Osei v P K Simpson Pty Ltd [2022] NSWCA 13
Hearing dates:	1 December 2021
Date of orders:	14 February 2022
Decision date:	14 February 2022
Before:	White JA at [1]; McCallum JA at [100]; Garling J at [101]
Decision:	(1) Grant the applicant leave to appeal on ground 4 of the proposed “revised draft notice of appeal” dated 18 October 2021. (2) Otherwise dismiss the applicant’s summons for leave to appeal. (3) Order that within seven days the applicant file a notice of appeal in accordance with the leave granted. (4) Allow the appeal against order 1 made in the District Court on 17 June 2021. (5) Vary the order made by the District Court on 17 June 2021 by deleting the words “in the sum of $10,000”. (6) Order the respondents to pay the appellant’s costs of the application for leave to appeal and of the appeal.
Catchwords:	NEGLIGENCE — Negligent advice to settle claim for weekly workers’ compensation payments — whether claim for damages for professional negligence was “for personal injury damages” as defined COSTS — Whether costs capped at $10,000 — Legal Profession Uniform Law Application Act 2014 (NSW), cl 2 of Sch 1 WORDS AND PHRASES — “for personal injury damages” — Legal Profession Uniform Law Application Act 2014 (NSW), cl 2 of Sch 1 WORDS AND PHRASES — “personal injury damages” — Civil Liability Act 2002 (NSW), s 11
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Liability Amendment (Personal Responsibility) Act 2002 Dust Diseases Tribunal Act 1989 Interpretation Act 1987 (NSW) Legal Profession Act 1987 Legal Profession Act 2004 Legal Profession Uniform Law Application Act 2014 Motor Accidents Compensation Act 1999 Victim Support and Rehabilitation Act 1996 (NSW) Workplace Management and Workers Compensation Act 1998
Cases Cited:	Be Financial Services Pty Ltd v Das [2012] NSWCA 164 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 Cross v Certain Lloyd’s Underwriters; Thelander v Certain Lloyd’s Underwriters [2011] NSWCA 136 Firth v Sutton [2010] NSWCA 90 Firth v Sutton (No 2) [2010] NSWCA 109 Hammond v Stern (2014) 86 NSWLR 612; [2014] NSWSC 864 Hammond v Stern [2013] NSWSC 70 Johnson v Perez (1988) 166 CLR 351 New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57 Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394 Oikos Constructions Pty Ltd t/as Lars Fischer Constructions v Ostin & Anor (No 2) Osei v PK Simpson & Co Pty Ltd and Carney [2021] NSWDC 254 Pritchard v Trius Constructions Pty Ltd & Ors (No 2) [2011] NSWSC 1114 State of New South Wales v Williamson [2011] NSWCA 183 The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category:	Principal judgment
Parties:	Kofi Osei (Appellant) P K Simpson & Co Pty Ltd (First Respondent) William Carney (Second Respondent)
Representation:	Counsel: V Bedrossian SC with H Stitt (Applicant) J Steele SC…