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Rosa v Galbally & O'Bryan

Rosa v Galbally & O'Bryan

Case [2013] VSCA 116 17 May 2013

Professional Negligence

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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…

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 Rosa v Galbally & O'Bryan

Details

AGLC: Rosa v Galbally & O'Bryan [2013] VSCA 116
Case: [2013] VSCA 116
Decision Date: 17 May 2013

CaseChat Overview and Summary

Rosa brought a claim against Galbally & O'Bryan, a firm of solicitors, for professional negligence. The claim arose from the solicitors' failure to properly advise Rosa on a personal injury claim she had. The case was heard by the Supreme Court of Victoria, with the appeal and cross-appeal being subsequently heard by the Court of Appeal of Victoria. Rosa argued that the solicitors' negligence caused her to lose the chance to pursue claims for pain and suffering and loss of earning capacity. She further contended that the trial judge made errors in assessing the damages by applying an unwarranted discount, by finding that she would not have pursued the loss of earnings claim even with proper advice, and by finding that she would not work to a more advanced age.

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