Radosavljevic v Radin

[2003] NSWCA 217

CITATION:	RADOSAVLJEVIC v RADIN & ORS [2003] NSWCA 217
HEARING DATE(S):	10 June 2003
JUDGMENT DATE:	13 August 2003
JUDGMENT OF:	Mason P at 1; Handley JA at 104; McColl JA at 105
DECISION:	Appeal dismissed with costs. Cross appeal struck out as incompetent, with costs. Application for leave to cross appeal refused with costs.
CATCHWORDS:	Negligence - breach of duty - professional negligence - solicitors - failure to bring proper proceedings within limitation period - Causation - whether solicitor's negligence materially contributed to loss - whether plaintiff had viable claim independent of solicitor's negligence - Damages - whether award "manifestly inadequate" - whether real loss suffered, actual or contingent (ND)
PARTIES :	Milan RADOSAVLJEVIC Executor of the Estate of the late Mileva Radosavljevic v Michael RADIN & ORS
FILE NUMBER(S):	CA 40734/02
COUNSEL:	Appellant: M R Aldridge SC/ P N Khanshar Respondents 1-3: J B Simpkins SC/ E M Frizell
SOLICITORS:	Appellant: Maxwell Berghouse & Ives Respondent 1: Henry Davis York Respondent 2: Yeldham and Associates Respondent 3: Phillips Fox

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1341/00
LOWER COURT JUDICIAL OFFICER :	Price DCJ

CA 40734/02
DC 1341/00

MASON P
HANDLEY JA
McCOLL JA

Wednesday 13 August 2003

Milan RADOSAVLJEVIC (Executor of the Estate of the late Mileva Radosavljevic) v Michael RADIN & ORS

FACTS

:

The appellant, as executor and widower of the deceased, brought actions in negligence against three solicitors in relation to their handling of the deceased’s personal injury and workplace accident claims.

The first defendant, Radin, was sued for failing to bring a proper claim for a fall suffered by the deceased at Ashfield Mall within the six-year limitation period. However, this professional negligence claim against Radin was itself statute-barred as it was brought more than six years after the extinguishment of the Ashfield Mall claim.

The second defendant, Gorman, who was retained by the deceased in place of Radin to prosecute the Ashfield Mall and work accident proceedings, was sued for not having realised in time to reach a settlement without sustaining a costs order, that the Ashfield claim had wrongly identified K-Mart as the defendant. The appellant therefore claimed against Gorman the $10,000 that the deceased was ordered to pay under the Terms of Settlement to K-Mart. The appellant also claimed against Gorman the value of the proceedings that should have been brought against Radin. This depended on demonstrating that a properly directed claim for the fall at Ashfield Mall would have been viable had it not been for Radin’s failure to bring it in time.

The third defendant, Crumpton, who was the appellant’s own solicitor, was sued for failing to advise the appellant to sue Radin for his negligence in allowing the Ashfield fall claim to become statute-barred.

ISSUES:

The trial judge rejected the submission that Gorman’s delay materially contributed to the $10,000 costs liability to K-Mart. The appellant challenges the rejection of this part of his damages claim.

However, the trial judge did award $13,328 in damages against…