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 |
---
| 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) |
---
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.
---
| 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…
Keep reading for free
Create a free CaseChat account to read Rosa v Galbally and O'Bryan (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2013] VSCA 154
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.