Court of Appeal
Supreme Court
New South Wales
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…
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- AGLC
- Osei v P K Simpson Pty Ltd [2022] NSWCA 13
- Case
- [2022] NSWCA 13
- Decision Date
CaseChat Overview and Summary
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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