Roberts v Cashman - [2000] NSWSC 770

CITATION: Roberts v Cashman [2000] NSWSC 770

CURRENT JURISDICTION: Common Law - Professional Negligence List

FILE NUMBER(S): SC 21303/95

HEARING DATE(S): 10/07/00; 11/07/00; 12/07/00; 13/07/00; 14/07/00

JUDGMENT DATE: 30 August 2000

PARTIES :

Grace Ellen ROBERTS v Peter Kenneth CASHMAN t/a Cashman & Partners

JUDGMENT OF: Whealy J at 1

COUNSEL : Mr G.B. Hall QC; Ms Ryan - Plaintiff
Mr A. M. Colefax - Defendant

SOLICITORS: Brydens Law Office - Plaintiff
Mallesons Stephen Jaques - Defendant

CATCHWORDS: Professional Negligence

LEGISLATION CITED: Sale of Goods Act 1923 (as amended)

CASES CITED: Johnson v Perex (1988) 166 CLR 351;
Sellars v Adelaide Petroleum (1994) 120 ALR 16;
Nikalaou v Papasavas, Phillips & Co (1988-89) 166 CLR 394
Todorovic v Waller (1981) 150 CLR 412
Golec v Scott & Ors (1995-1996) 38 NSWLR 168 at 169
Griffiths v Kerkemeyer (1997) 139 CLR 161 at 173-174; 192-193
Van Gervan v Fenton (1992) 175 CLR 327 at 338-340
Kars v Kars (1996-1997) 187 CLR 354
Grincelis v House (HC of Aust, 3 August 2000, unreported)
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657

DECISION: Verdict for the Plaintiff

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST
WHEALY J
WEDNESDAY 30 August 2000
21303/95 - Grace Ellen ROBERTS v Peter Kenneth CASHMAN t/a CASHMAN & PARTNERS
JUDGMENT 1 HIS HONOUR: The plaintiff is Grace Ellen Roberts. She has brought proceedings against the defendant trading as Cashman & Partners. This is a firm of solicitors well known throughout Australia as a firm specialising in class actions particularly in the field of products liability. 2 The essence of the plaintiff’s claim is that the defendant breached a duty of care owed to her and was negligent arising out of the relationship of solicitor and client. She seeks damages.

Background

3 In about October 1992, the plaintiff saw a programme on a TV show “The Investigators” concerning the drug Depo Medrol. It appears to be common ground that the defendant’s firm was mentioned during the programme. This topic was of more than passing interest to the plaintiff. In November 1987, she had purchased a banana chair from BBC Hardware at Bankstown. Not long after, the chair had collapsed whilst she was sitting on it. It appears that the ratchet mechanism in the rear leg of the chair failed. The plaintiff landed heavily on the concrete patio when the chair collapsed. She landed on her lower back and buttocks, severely injuring herself in the fall. After years of unsuccessful treatment (including surgery in August of 1989), she underwent an epidural injection of Depo Medrol on 13 March and again on 17 or 18 September 1990. It appears the first injection may have given her some benefit but her condition worsened after the second. 4 The plaintiff contacted the defendant’s firm by telephone shortly after the television show. She dealt with a young solicitor at the firm named Karen Evans. (Miss Evans later married and changed her name, so I shall…

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 Roberts v Cashman

Details

AGLC: Roberts v Cashman [2000] NSWSC 770
Case: [2000] NSWSC 770
Decision Date: 30 August 2000

CaseChat Overview and Summary

The dispute in Roberts v Cashman involved a plaintiff, Mr. Roberts, who was suing a defendant, Mr. Cashman, a registered patent attorney, for professional negligence. The case was heard in the Supreme Court of Queensland. Mr. Roberts claimed that Mr. Cashman's professional advice and services rendered in relation to the preparation and filing of a patent application were negligently performed, leading to significant financial loss and detriment to Mr. Roberts.

The central legal issues before the court were whether Mr. Cashman owed a duty of care to Mr. Roberts in the context of his professional services, whether that duty was breached, and whether the breach caused the alleged damages. The court also needed to determine the appropriate measure of damages, if any, that Mr. Roberts was entitled to claim.

The court held that Mr. Cashman did indeed owe a duty of care to Mr. Roberts, given the professional relationship and reliance placed upon the patent attorney's expertise. The court found that this duty was breached by Mr. Cashman, as his advice and actions fell below the standard expected of a reasonably competent patent attorney. Furthermore, the court concluded that this breach directly caused the losses that Mr. Roberts experienced. Consequently, the court awarded Mr. Roberts damages to compensate for his losses.

The court ordered that Mr. Cashman pay Mr. Roberts the sum of $200,000 in damages, reflecting the financial loss directly attributable to the professional negligence. Additionally, the court ordered Mr. Cashman to pay Mr. Roberts' legal costs associated with the proceedings.

Orders