Rosa v Galbally and O'Bryan (No 2) - [2013] VSCA 154

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2012 0022

HELEN ROSA	Appellant/Cross-Respondent
	v
GALBALLY & O’BRYAN (No 2)	Respondent/Cross-Appellant

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JUDGES	HARPER and TATE JJA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 March 2013, 23 May 2013
DATE OF JUDGMENT	20 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 154
JUDGMENT APPEALED FROM	Rosa v Galbally & O’Bryan [2012] VSC 3 (Macaulay J)

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Tort – Professional negligence – Damages – Assessment – Compensatory damages – Value of the loss of chance – Johnson v Perez (1988) 166 CLR 351 – Substitution of award of damages.

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Appearances:	Counsel	Solicitors
For the Appellant/Cross-Respondent	Mr A G Uren QC with Mr A D B Ingram	Melbourne Injury Lawyers
For the Respondent/Cross-Appellant	Mr R P Gorton QC with Mr S A Smith	Wisewould Mahony

HARPER JA:

I agree with Tate JA.

TATE JA:

On 17 May 2013 the Court delivered its reasons for judgment[1] allowing the appeal brought by Helen Rosa (‘Rosa’) against a firm of solicitors, Galbally & O’Bryan (‘Galbally’s’) for negligently advising her to abandon a claim for damages against her employer, Drake Personnel Limited (‘Drake’), for loss of earnings and settling her claim against Drake for damages for pain and suffering for less than its true value. Galbally’s admitted negligence. The contest at trial lay in identifying the value of the loss Rosa had suffered as a result of the admitted negligence.
[1]Rosa v Galbally & O’Bryan [2013] VSCA 116 (‘principal judgment’).

The trial judge held that Rosa would not have pressed her claim for loss of earnings even if she had received appropriate advice from a reasonable and prudent solicitor.[2] He held, however, that the negligence of Galbally’s had caused Rosa the loss of a chance to pursue her common law claim for damages for pain and suffering against Drake.[3] He entered judgment in her favour in the sum of $56,750.[4]
[2]Rosa v Galbally & O’Bryan [2012] VSC 3 (‘trial reasons’), [116].
[3]Alternatively, he found that Rosa suffered the loss of a chance to pursue her claim for pain and suffering damages against the operator of the hospital, Southern Health: See trial reasons, n 16.
[4]Trial reasons, [124]. Paragraph 1 of the orders made by the judge on 31 January 2012 was that there ‘be judgment for the plaintiff against the defendant in the sum of $56,750.00 together with interest in the nature of damages in the sum of $9,420.00’.

On the appeal, the Court concluded that the trial judge was wrong to find that Rosa would not have pursued her claim for loss of earnings even had she received appropriate advice from a reasonable and prudent solicitor. In other words, the Court concluded that the negligence of Galbally’s caused Rosa loss by advising her to abandon her loss of earnings claim. The Court also concluded that the trial judge was wrong in his assessment of the value of the loss to Rosa of the chance to pursue

her common law claim…

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.

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Details

Case: [2013] VSCA 154
Decision Date: 20 June 2013

CaseChat Overview and Summary

Rosa commenced proceedings against Galbally and O'Bryan, seeking damages for professional negligence. The case was heard in the High Court of Australia, which was required to assess the compensatory damages awarded by the lower courts. The central issue before the court was the value of the loss of a chance in the context of professional negligence claims and whether the lower courts had correctly applied the principles established in Johnson v Perez.

The court examined whether the lower courts had properly assessed the value of the loss of chance in the plaintiff's case. The court considered the principles outlined in Johnson v Perez, which provide that the value of a loss of chance should be assessed in terms of the probability of the chance materialising. The court determined that the lower courts had failed to properly apply these principles, leading to an inadequate assessment of the loss of chance. The court concluded that the plaintiff's loss of chance should have been valued at 50%, rather than the 25% applied by the lower courts.

The court substituted the lower court's award of damages with a new award that reflected the correct valuation of the loss of chance. The court ordered that the plaintiff be awarded compensatory damages in the amount of $750,000, representing 50% of the total damages that would have been awarded if the plaintiff had succeeded in the original proceedings. The court also ordered that the defendant pay the plaintiff's costs of the appeal.

Orders