SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0022
| HELEN ROSA | Appellant/Cross-Respondent |
| v | |
| GALBALLY & O’BRYAN | Respondent/Cross-Appellant |
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| JUDGES | HARPER and TATE JJA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 13 March 2013 |
| DATE OF JUDGMENT | 17 May 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 116 |
| JUDGMENT APPEALED FROM | Rosa v Galbally & O’Bryan [2012] VSC 3 (Macaulay J) |
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TORT — Professional negligence — Solicitors admitted negligence for failing to properly advise client with personal injury claim — Whether that negligence caused loss of chance to appellant to pursue claims for pain and suffering and loss of earning capacity — Value of the loss — Whether in assessing damages trial judge erred by applying unwarranted discount — Whether judge erred in finding that appellant would not have pursued loss of earnings claim even if she had received appropriate legal advice — Whether judge erred in finding that appellant would not work to more advanced age — Appeal allowed.
TORT — Professional negligence — Cross-appeal — Whether trial judge erred by failing to deduct from award of damages solicitor-client costs appellant would have incurred had her personal injuries claim been tried — Appellant incurred significant solicitor and own client costs at trial against solicitor — No deduction warranted — Cross-appeal dismissed.
Johnson v Perez (1988) 166 CLR 351; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 applied.
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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:
Introduction
The appellant, Helen Rosa (‘Rosa’), suffered injury as a result of being kicked forcefully in the neck by an elderly patient affected by dementia when she was working as a casual nurse in a geriatric hospital. She retained the respondent, a firm of solicitors, Galbally & O’Bryan (‘Galbally’s’), to advise her about her rights to damages at common law. On their advice, she applied for a certificate from the County Court to enable her to pursue a claim for damages against her employer, Drake Personnel Limited (‘Drake’), both for loss of earning capacity and pain and suffering. In reliance on Galbally’s advice she abandoned the claim for loss of earnings and settled the claim for damages for pain and suffering for $100,000. She later sued Galbally’s for negligently providing that advice.
During the course of the trial, Galbally’s admitted negligence. The real issue at trial was whether Rosa suffered any loss as a result of the admitted negligence and, if so, what was the value of that loss. The trial judge held that Rosa would not have pressed her claim for loss of earnings even had she received appropriate advice from a reasonable and prudent solicitor.[1] 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…
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- AGLC
- Rosa v Galbally & O'Bryan [2013] VSCA 116
- Case
- [2013] VSCA 116
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved determining whether the negligence of Galbally & O'Bryan caused Rosa's loss of chance and the appropriate valuation of that loss. Additionally, the court had to consider whether the trial judge erred in applying a discount to the damages, in concluding that Rosa would not have pursued the loss of earnings claim with proper advice, and in determining her potential working age. Regarding the cross-appeal, the issue was whether the trial judge should have deducted from the damages the costs Rosa would have incurred had her personal injury claim been tried.
The Court of Appeal found that the trial judge erred in applying an unwarranted discount to the damages and in concluding that Rosa would not have pursued the loss of earnings claim with proper advice. The court also found that the judge erred in determining Rosa's potential working age. Consequently, the appeal was allowed. As for the cross-appeal, the court held that no deduction of costs was warranted, as Rosa had already incurred significant costs in her trial against Galbally & O'Bryan. Therefore, the cross-appeal was dismissed.
The Court of Appeal ordered that the case be remitted to the trial judge for re-assessment of damages, taking into account the errors identified. The trial judge was instructed to re-evaluate the loss of chance to pursue claims for pain and suffering and loss of earning capacity, without the application of an unwarranted discount. The court also directed the trial judge to reconsider Rosa's potential working age and whether she would have pursued the loss of earnings claim with proper legal advice.
Orders
Orders of the court
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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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