Rosa v Galbally & O'Bryan
[2012] VSC 3
•31 January 2012
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE | Not Restricted |
COMMON LAW DIVISION
SCI 2010 03396
| HELEN ROSA | Plaintiff |
| v | |
| GALBALLY & O'BRYAN | Defendant |
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16, 17, 18, 19, 22, 23 August 2011 | |
DATE OF JUDGMENT: | 31 January 2012 | |
CASE MAY BE CITED AS: | Rosa v Galbally & O'Bryan | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 3 | |
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TORT – Professional negligence – Solicitors admitted negligence for failing to properly advise client with a personal injury claim – Whether that negligence caused the loss of a chance to pursue claims for pain and suffering and loss of earning capacity - Assessment of damages for loss of a chance – Johnson v Perez (1988) 166 CLR 351; Sellars v Adelaide Petroleum N.L. (1994) 179 CLR 332 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Riordan Mr A. Ingram | Melbourne Injury Lawyers |
| For the Defendant | Mr S. Smith | Wisewould Mahony |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Arguments and Issues.................................................................................................................. 2
What was the likelihood Mrs Rosa would have succeeded on the liability question against her employer?............................................................................................................................................. 5
Would Mrs Rosa have recovered more than $100,000 for pain and suffering?.................... 11
Pre-injury condition.................................................................................................................... 13
Carpal tunnel syndrome............................................................................................................ 16
Pre-existing degenerative change............................................................................................. 21
Other un-related medical issues............................................................................................... 22
Conclusion on pain and suffering damages........................................................................... 22
Would an award of damages for loss of earning capacity have exceeded her past and future entitlements to weekly payments?................................................................................................ 23
Starting point for calculation of past earnings........................................................................ 25
Duration of Mrs Rosa’s working life........................................................................................ 25
Discount for vicissitudes........................................................................................................... 26
Likely hours of work in each capacity..................................................................................... 27
Calculations................................................................................................................................. 27
Would Mrs Rosa have pursued the common law damages claims?....................................... 29
What is the value of the lost chance?............................................................................................ 31
Conclusion......................................................................................................................................... 32
HIS HONOUR:
Introduction
At 7am Sunday 25 June 2000 Helen Rosa, the plaintiff, commenced her shift as a casual nurse at a geriatric hospital in an outer suburb of Melbourne. During the handover between incoming and outgoing nurses she was warned that a particular male patient with dementia was “a bit punchy”. She had not nursed that patient previously so she asked what strategy she should use when dealing with him. She was told to “duck”. Shortly afterwards, while she was kneeling to put the patient’s shoes on his feet, he kicked her forcefully in the side of the neck. The blow was sufficient to fracture a vertebra in her neck and cause a disc prolapse. Then aged 51, Mrs Rosa has not worked in any form of employment since.
In May 2001 Mrs Rosa engaged the defendant, a firm of solicitors, to advise her about her rights to common law damages arising from the neck injury. On their advice Mrs Rosa applied to the County Court of Victoria for a certificate[1] to enable her to pursue a claim against her employer for damages, both for pain and suffering and for loss of earning capacity. On her behalf the solicitors later abandoned the application to pursue the claim for loss of earning capacity. In December 2007, very soon after the employer granted Mrs Rosa a certificate to proceed with a claim for pain and suffering damages, as it was authorised to do,[2] the solicitors settled that claim for $100,000. The combined effect of the solicitors taking those two steps of abandonment and settlement was to conclude Mrs Rosa’s entitlements at common law.
[1] As required by s134AB of the Accident Compensation Act 1985 (Vic) (“the Act”).
[2]Ibid.
By this proceeding Mrs Rosa sues her solicitors for negligently causing her to abandon a valuable claim for loss of earning capacity and to settle her claim for pain and suffering for only $100,000. In particular, she alleges that the solicitors failed to obtain all the necessary instructions, and medical and other evidence, to enable a proper assessment of her claim and to give proper advice. Additionally she complains that the solicitors settled her claim prematurely at a time when the likelihood of neck surgery was known and before her symptoms had stabilised. She had that surgery in January 2008, one month after settlement.
Arguments and Issues
During the running of the case the solicitors admitted negligence in all but one respect – they denied that they took the relevant steps without Mrs Rosa’s instructions as she had contended. Little, however, turns on that point for reasons which will appear. The real issues for determination are whether Mrs Rosa suffered any loss as a result of the admitted negligence and, if so, what is the value of that loss.
Mrs Rosa claims the loss of the benefit of an action she would have pursued to judgment but for the negligence of her solicitors in abandoning part and settling the rest. Negligence having been admitted in this case, she must prove causation of loss and the quantification of that loss.
Causation of loss involves the question of what advice a reasonable and prudent solicitor would have given her on properly obtained evidence, and what course she would have taken when given that advice.
Quantification of loss, when it involves loss of a chance, involves particular considerations. Whether she has lost anything of value turns on whether the right of action had more than non-negligible value at the point in time when it was lost.[3] The value of what she has lost depends, at least in the first instance, upon the combined evaluation of her prospects of success on liability and of the award of damages she could have expected to obtain at a hypothetical personal injuries trial.
[3]Johnson v Perez (1988) 166 CLR 351, 366 (Wilson, Toohey, Gaudron JJ), 371-2 (Brennan J), 389 (Dawson J).
It will become apparent that each of those considerations (prospects of success and potential damages) is relevant to determine both the existence of loss and the value of loss.[4] And, as will also be seen, the valuation of the lost cause of action (the quantification issue) impacts the assessment of the probable advice she would have been given and the likely course she would have taken (the causation issue).[5]
[4]Sellars v Adelaide Petroleum N.L. (1994) 179 CLR 332, 340.
[5]Firth v Sutton [2010] NSWCA 90, [137] (Allsop P).
To expose these issues the parties have conducted a ‘trial within a trial’.
On the question of prospects of success, Mrs Rosa claimed she would have succeeded in establishing negligence on the part of her employer for failing to adequately warn of her of the risk of injury from being kicked and failing to have a proper system of work to safeguard her from that risk. The solicitors disputed that contention. They argued the employer did provide her with adequate warning in the form of incident reports and a nursing care plan, readily available for her to inspect, which contained clear warnings of the patient’s propensity to kick and a patient management strategy which, if followed, would have avoided the injury. Alternatively, based upon the same facts, they contended that Mrs Rosa failed to consult or heed those documents so that even if the employer was negligent, she was also negligent.
The question of the likely award of damages, as an element in valuing her lost chance, is a little more complicated. It remains possible that, if properly advised, Mrs Rosa would have persevered with her common law claims for both pain and suffering and loss of earning capacity, or for only one of those heads of loss.
Focusing first on damages for pain and suffering, because Mrs Rosa has already received $100,000 under the settlement it is apparent that she has only lost something if, taking into account any contributory negligence, she would have obtained a greater amount of damages had her claim not been settled in December 2007. The value of that component of her lost cause of action is the difference between what she has received and what she would have received, measured at the appropriate time.
Secondly, ever since the injury in June 2000 Mrs Rosa has been in receipt of statutory payments of weekly compensation for loss of earnings under the Act. If a claim for loss of earning capacity had succeeded, the amount of compensation she had been paid up to the date of judgment would have been deducted from any sum of damages awarded for such loss.[6] Further, future entitlements to weekly compensation would have ceased.[7] For that reason, a party will take care when pursuing a claim for loss of earning capacity to assess whether the likely award will exceed past and future entitlements to statutory compensation. Mrs Rosa continues to receive weekly payments, and the parties agree she will go on receiving them at 80 percent of her pre-injury average weekly earnings until she is 65.[8]
[6]Section 134AB(25)(a) of the Act.
[7]Section 134AB(36)(a) of the Act.
[8]Sections 93C(1)(a) and 93F of the Act.
The solicitors contended that, had they gathered more evidence and awaited the outcome of Mrs Rosa’s surgery, a reasonable and prudent solicitor would still have advised Mrs Rosa to abandon her claim for loss of earning capacity. They argued that if she had pursued a claim for loss of earning capacity she would have recovered less than the value of her past and future statutory entitlements. Upon their analysis she lost nothing at all by abandoning her claim for loss of earning capacity at the time she did. On this aspect of her claim the questions of cause of loss and measure of loss are inter-related.
It follows that the ultimate questions I must decide are whether Mrs Rosa suffered the loss of a valuable opportunity as the result of the solicitors’ negligence, and what was the value of that lost opportunity. To arrive at answers to those questions I must assess:
(a)the likelihood that Mrs Rosa would have succeeded on the liability question against her employer?
(b)the likelihood that Mrs Rosa would have recovered more than $100,000 for pain and suffering?
(c)the likelihood that an award of damages for loss of earning capacity would have exceeded her past and future entitlements to weekly payments?
(d)whether Mrs Rosa would have pursued common law claims for pain and suffering and loss of earning capacity if properly advised?
(e)having regard to the answers to those questions, if Mrs Rosa did lose a chance of value because of the solicitors’ negligence, what is the proper award of damages to compensate her for that loss?
What was the likelihood Mrs Rosa would have succeeded on the liability question against her employer?
As Mrs Rosa’s lost claim was a claim in negligence against her former employer, it is useful to commence by stating the legal principles upon which that claim would have been decided.
At common law an employer owes a non-delegable duty[9] to take reasonable care, and to ensure reasonable care is taken, for the safety of employees by providing proper and adequate means of carrying out work without unnecessary risk,[10] including:
•To provide a safe system of work,[11] including to establish, maintain and enforce such a safe system. [12]
•To provide directions in the performance of work where such directions might reasonably be required to avoid injury.[13]
•To provide adequate supervision to ensure the safe system of work is carried out.
[9]Kondis v State Transport Authority (1984) 154 CLR 672.
[10]Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, 25; Commissioner for Railways (NSW) v O’Brien (1958) 100 CLR 211, 216-217; O’Connor v Commissioner for Government Transport (1954) 100 CLR 225, 229; Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872, 873; Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424, 439-440.
[11]Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424, 447-449.
[12]McLean v Tedman (1984) 155 CLR 306, 313.
[13]O’Connor v Commissioner for Government Transport (1954) 100 CLR 225, 229.
The content of the common law duty was succinctly set out by the High Court in Czatyrko v Edith Cowan University[14] as follows:
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work. [citations omitted]
[14](2005) 214 ALR 349, 352 [12].
The duty is personal and non-delegable which means that it is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. That is because the duty is to ensure that reasonable care be taken, whether by the employer itself, its employees or its independent contractors, for the safety of its insured employee.[15]
[15]Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1, 12 [21].
The core allegations which Mrs Rosa could and would have made against her employer[16] were that her employer, in breach of its duty of care owed to her at common law -
•Failed to provide adequate warning to her of the patient’s punchy, restive and aggressive nature, and
•Permitted or required her to shower and dress the patient without adequate assistance.
[16]Either Drake Personnel, the agency that employed her, or Southern Health, the operator of the hospital where she worked, or both. In these reasons, I will refer to her employer as ‘the hospital’.
In the trial before me it was also claimed by Mrs Rosa that she could have maintained a claim against her former employer for breach of the Occupational Health and Safety (Manual Handling) Regulations 1999. I am not at all convinced that the incident that occurred would have attracted the operation of those regulations – indeed, I think that is unlikely. However, because of what I have concluded on the question of a cause of action in negligence it is unnecessary that I give further consideration to that matter.
In my view there was a substantial likelihood that Mrs Rosa would have established liability in negligence on the part of her employer in any claim she might have brought against it arising from this incident. I also think there was low likelihood that her employer would have established any contributory negligence on her part. I will explain why.
For the most part, the case concerning the hospital’s negligence (and any contributory negligence on the part of Mrs Rosa) focused on the handover procedure between nurses at 7.00 am on the morning of the accident. It was not in dispute that Mrs Rosa was a casual nurse who had not previously nursed the patient in question. For her safety in carrying out her tasks she was dependent on what she learned through the handover process provided by the hospital before she attended her assigned patients, as well as her own nursing experience and common sense.
It cannot be doubted that the hospital was aware of the propensity of the male dementia patient to kick. Amongst its records for that patient was a nursing care plan (‘the plan’) and various incident reports which recorded the patient’s behaviours and past incidents which attested to the patient’s physical aggression. Although most reports spoke of his tendency to strike out with his hands the most relevant record was in the plan under the heading “Behaviours”. It recorded –
Can become agitated aggressive. Hits and kicks at staff.
Interventions.
Identify triggers for behaviour.
Gentle touch and eye contact.
Two nurses to undress.
If physically [‘striking’ or ‘kicking’ – unclear] don’t undress until settled.
The plan was dated 20 April 1999 but it was evident it had been reviewed by hospital staff a number of times until shortly before the injury to Mrs Rosa.
Armed with this knowledge it was plainly deficient – and, in my view, negligently so – for the hospital simply to warn Mrs Rosa at handover that the patient was “a bit punchy” and that the best strategy was “to duck”. It was not suggested to Mrs Rosa in cross-examination that her account of what occurred at handover was false, and no contradictory evidence was led. The main argument raised on behalf of the defendant solicitors was that it would have been shown, upon any trial of the injury proceeding, that the hospital had provided adequate warning through its system of making available, and requiring incoming nurses to consult, the incident reports and the nursing care plans for the patients they were to attend. However, the evidence as to the availability of those documents to Mrs Rosa was thin.
Mrs Rosa said that it was normal at handover, especially if there was a suggestion of violence, to check for any incident reports in the patient’s case note folder. She said that she did ask whether there was any such incident reports but was told by another nurse that there were none. She also said that she saw for herself that there were none.
She was challenged at length on these statements. It was pointed out to her that she had not mentioned having asked for or checked the patient’s file in any previous account of the incident recorded in her interview with an investigator in 2003 or in any of the various histories she gave to doctors thereafter. The events that she was asked to recall in the trial before me were events that had taken place some eleven years beforehand. Those events concerned the details of a handover which, until the incident occurred, would have been an entirely innocuous and routine occurrence. Unsurprisingly, Mrs Rosa conceded in cross-examination that her recollection of the handover was “hazy” and may have involved a degree of reconstruction on her part.
Mrs Rosa also conceded that the information contained in the plan was, in fact, exactly the type of information that would have assisted in developing a strategy to deal with the dementia patient and diminish the risk of injury. Had a personal injury trial taken place, it was agreed between the parties it would likely have taken place in mid 2010, not very much sooner than the trial of the professional negligence action that took place before me. It is questionable, then, how much more reliable may have been the evidence at the hypothetical personal injuries trial than has been the evidence before me. Whether the employer could have called evidence to better clarify what records were accessible to Mrs Rosa in June 2000 is a matter for speculation.
On the evidence before me I think it unlikely there would have been much doubt that Mrs Rosa did not actually see the plan. Whether or not it was physically available, say at the nurses’ station in the ward, does not seem to me to be of such critical importance. Having seen the plan and the numerous incident reports pertaining to the particular patient I have a degree of sympathy with Mrs Rosa’s observation that the plan is not the type of document of much practical use to the casual nursing staff but is of more relevance to those responsible for the longer term care of patients. If the hospital’s system of warning nurses of particular hazards rested upon the assumption that casual incoming staff would have the time to locate and peruse the incident reports and any nursing care plan relating to their patients before commencing work on busy wards, then it strikes me that such a system was impractical and inadequate.
The practical solution, in discharge of the employer’s duty to exercise reasonable care for Mr’s Rosa’s safety, was to ensure that an incoming nurse was orally warned of any known or foreseeable risks and told what the appropriate strategy to minimise those risks was, or at least given or specifically directed to the particular document which contained that information.
The only evidence of what the hypothetical court hearing the personal injury trial would have heard was that Mrs Rosa was given an incomplete warning about the patient’s tendency, and cynical advice on strategy (in response to a direct question). The evidence is likely to have shown that she did not in fact see any document recording the appropriate strategy for dealing with the dementia patient. It is not likely there would have been convincing evidence that the plan was readily accessible to Mrs Rosa. Nor was there likely to have been evidence of Mrs Rosa being alerted to the desirability of having a second nurse available to assist in the undressing and redressing of the patient or, importantly, any evidence that the hospital sought to ensure that a second nurse was on hand for those steps.
On the evidence that I apprehend would have been available, the hypothetical court would very likely have concluded that the provision of a warning that the patient had a tendency to kick, advice as to strategy (such as was contained in the plan), and a second nurse to assist with undressing and redressing, would have significantly reduced the prospect of the injury that occurred. That is because, with that warning, advice and assistance, it is highly unlikely Mrs Rosa would have been in such an unguarded position in front of the patient, exposing herself to the risk of being kicked as she was when the injury occurred.
In my view Mrs Rosa would have enjoyed strong prospects of succeeding in establishing negligence against her employer in any personal injuries action.
The case for the defendant solicitors did not rest with challenging the prospect of a negligence finding against the hospital. In the alternative they argued that Mrs Rosa would have been found to have contributed to the accident by her own negligence. This argument was built upon the same facts concerning her alleged failure to find and read the plan and the incident reports, but was also built upon her actual handling of the patient leading up to the kicking incident. I have already dealt with the issue of the plan and the incident reports.
There was some suggestion that Mrs Rosa was negligent in not calling for a second nurse and in not being more careful when kneeling down to put the patient’s shoes and socks on. In my view such suggestions bordered on the untenable. Other than being warned that the patient could be “punchy”, there was nothing in the lead up to the incident to alert Mrs Rosa to the possibility that she might be kicked to the neck in the way that she was. At the time she was a nurse of considerable experience. She told me, as she would undoubtedly have told a court hearing a personal injuries trial, that over her long experience she had occasionally being hit, scratched and spat upon as was the experience of most nurses. She was accustomed to being on guard for her own safety. She told me, as she would undoubtedly have told a court hearing the personal injuries claim, that it simply did not occur to her that the patient might have kicked her.
In those circumstances, weighing both the evidence concerning the handover process and her actual handling of the patient, I consider it most unlikely that a court would have found that she failed to exercise reasonable care for her own safety within the principles set out in Podrebersek v Australian Iron & Steel Pty Ltd[17].
[17]Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 493 – see also Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202 and Fassbender v HW & MTA Bohlmann [2010] VSCA 204.
The task I am performing, however, is not to find for myself whether or not the hospital was negligent or whether or not Mrs Rosa was contributorily negligent but, rather, to assess the prospects of success or failure before the hypothetical court on those issues.
In my view, taking into account the competing arguments for and against a finding of negligence against her employer, and for and against a finding of contributory negligence against Mrs Rosa, I think it appropriate to evaluate her overall prospects of success on the question of liability at 82.5 percent. To be clear, the discount of 17.5 percent is intended to reflect the combined risk that, despite my view of the probabilities, Mrs Rosa may not have established negligence against her employer or, if she had, there may have been a finding of some contributory negligence against her.
Would Mrs Rosa have recovered more than $100,000 for pain and suffering?
Mrs Rosa’s claim is that, at the time of the accident in June 2000, she was a 51 year old woman, in good health, enjoying a prospect of another 14 years (at least) of employment in a mixture of nursing and welfare work. Indeed, her case is that she had just embarked upon her “dream job” of working in the welfare sector after completing a tertiary qualification in that field, fulfilling a long held ambition to work with children and families which she had done for many years in a voluntary capacity.
On her case her enjoyment of life has been severely affected by the effects of the accident which have been to saddle her with a chronic neck injury, with referred effects to her arms, hands and legs; a consequential depressive reaction; a physical and psychological inability to continue working in either of her former work capacities; and a withdrawal from the enjoyable, social activities in which she previously participated. In short, she says it has caused a complete curtailment of much of what she enjoyed in life as a consequence of the kick to her neck.
Consequently the plaintiff contends that a proper assessment of the pain and suffering damages to which she was entitled (absent any discount for liability) was in the order of $200,000 to $230,000 rather than the $100,000 for which the solicitors settled her claim. She called Mr Rattray QC, a personal injuries specialist of long experience, to support that assessment. His view as contained in his written opinion was that, upon the instructions he was given, an appropriate assessment for general damages was in the region of $200,000. In oral evidence he said those damages might be increased to around $230,000 if there was evidence that further neck surgery was required.
The solicitors argue that the true position is quite a different one. First they argue that Mrs Rosa’s pre-injury health was not as good as she asserted. Second, they argue that the primary cause of her inability to work as a nurse and, consequently, the onset (or exacerbation) of her depression, was an independent, carpal tunnel syndrome for which her employer was not responsible. Third, they argue she had a pre-existing degenerative condition in her neck which, regardless of the kick injury in June 2000, would have deteriorated to the point that she would have been taken out of the work force in her 60s in any case. Fourth, and partially related to the first point, they argue she had a number of other health issues which, independently of the accident, were disabling from work and productive of some of her depressive condition each of which independently caused her pain, suffering and poor quality of life.
It follows that I should focus, in particular, on her pre-existing condition; the role of her carpal tunnel syndrome; the likely course of any pre-existing degenerative change in her neck; and the effects on her life of other unrelated health issues.
Pre-injury condition
Mrs Rosa, who was born on 24 September 1948, left school at 13½ years of age wanting to be a nurse. She described her childhood as being turbulent, not a happy home life. Indeed she ran away from home spending some time as a youth living in the local rail yards. After working for some years in a number of retail and other jobs she managed to get into nursing (by putting her age up one year), undertook her training and became a registered nurse by 1968. She worked at a variety of different places. Around the same time she was married and thereafter had three children. She and her husband separated when their relationship broke down in 1994.
When the children were young she mainly worked as a nurse on a part time basis, doing agency work. She became involved in various voluntary work: she worked with St John’s Ambulance ending up as a corp officer of cadets overseeing their training; she founded a child and youth welfare group called “Night Squad” through St Peter’s Church, East Bentleigh providing court support, counselling and other services for children and teenagers the victim of domestic violence, incest etc; and she had some involvement in pastoral care at Long Bay Prison New South Wales.
Her interest in child and youth welfare ultimately led her to undertaking a welfare studies course at what became Victorian University of Technology. She graduated from that course in 1999 and thereafter obtained employment working at Malmsbury Juvenile Justice, and after that at the Goulburn Valley Family Care.
In addition to her paid employment she was involved in a women’s support group in central Victoria which she attended once monthly. She helped at the Heathcote Wildlife Shelter. She was a volunteer radio presenter on a regional radio station.
She described herself as being physically well and active. As a demonstration of her wellbeing she pointed to the fact that she played A grade netball up until the time of her accident. As well as being a player she had been a coach of 22 teams over the course of her adult life. Amongst the various teams with which she had played, she played for some time for St Peter’s, East Bentleigh, and the Victoria University team. As well as being a coach she had been an umpire as well, and at one stage had been the president of a netball club.
After her marriage broke down in 1994 she commenced a romantic relationship with a woman, Judy, in 1997. That relationship ended in 1999. It was a traumatic ending emotionally for Mrs Rosa – a very unhappy time. She said she was starting to get herself back together after that break up when the accident occurred.
She said she did not cope very well with the relationship breakdown with Judy, finding she became more and more isolated. When her neck injury occurred she said she felt that all hope was lost and she could see her life ‘going out the window’.
Despite the trauma of her relationship breakdown with Judy, by June 2000 Mrs Rosa felt she was recovering, that she had the best of both worlds in her employment doing both part time nursing work and part time welfare work, and that she had very much to look forward to going onwards from there. It was at that point, she says, that the injury suffered at the geriatric hospital unravelled her bright future.
Mrs Rosa agreed to having had a number of other health issues that had affected her from time to time. She had her thyroid removed as a younger woman – probably in her late 30s or early 40s. She had a recurrence of her thyroid symptoms in 2007, after the accident, when she was treated with radioactive iodine. She admitted that in the lead up to that treatment in 2007 she had been experiencing tiredness, weight increase, and feeling teary and depressed. After her treatment she said she had no further problems from that source. She denied that the thyroid recurrence, alone, would have prevented her from working in either of her capacities, pointing to the fact that she had been able to continue working despite the symptoms which led to her initial thyroidectomy when a younger woman.
Mrs Rosa also received some psychological counselling for depression and anxiety in two phases of her life prior to her injury. One was after an assault upon her in the late 1980s. The other was in the late 1990s and into early 2000 for issues arising out of what she described as an abusive marriage, and also surrounding her understanding of her own sexuality. Again, she denied that any such emotional problems impacted her ability to work before her injury, saying “I still had to work”.
She volunteered that she did not cope very well with her relationship breakdown with Judy in 1999 and that she became “more and more isolated”. But she did not think that her loneliness following that breakup was an issue for which she was receiving counselling in the early part of 2000. She said that she was “getting over all that” by that time.
Although Mrs Rosa had evidently experienced some emotional upheavals in her life, particularly associated with her marriage breakdown, discovery of a different sexual preference, and a further traumatic relationship breakdown – she had continued throughout those events to work, study and function socially. She may well have experienced a period of sadness and social withdrawal in late 1999, but she had otherwise shown considerable resilience over what had, apparently, been a difficult childhood and abusive marriage.
There was nothing in the evidence to seriously undermine the picture Mrs Rosa painted of herself, namely that of a woman who was physically active and capable, looking forward to the prospect of increasing work in the welfare sector, supplemented by casual nursing work, with what seemed to be an emotional and physical capacity to pursue that course.
What may have been somewhat latent and unforeseen, however, was the onset of carpal tunnel syndrome in her wrists and degenerative arthritic change in her neck, to which I will now turn. But there is no evidence that problems in her hands or symptoms associated with arthritic changes in her neck had manifested themselves prior to the kick injury she sustained in June 2000.
Carpal tunnel syndrome
Immediately after the kick incident Mrs Rosa described experiencing severe pain in her neck and nerve pain down her right hand side which, when it left, became numbness. She said she developed pins and needles in her right hand and also in her right foot. She had constant pain in her neck.
Nearly three years later she had a carpal tunnel operation after which she still had numbness in her hand. She said as a result of the injury and these symptoms she has been unable to work since the date of the accident.
The progress of her injuries are quite well documented through the reports of her treating neurosurgeon, Professor Jeffrey Rosenfeld. He first saw her on 6 August 2001, a little over 12 months after the injury. She described to him severe neck pain and right arm pain, and some memory problems. She had loss of sensation in her right hand and pain radiating down the right arm from the neck. She said she was unable to work because of the right hand numbness.
Professor Rosenfeld also recorded in a report dated 22 November 2001 that she had complained of leg pain. After a nerve conduction study at the Alfred Hospital on 17 September 2001 it was found there was evidence of bilateral compression of the median nerve at the level of the wrist, meaning there was bilateral carpal tunnel syndrome. Professor Rosenfeld thought at the time the median nerve compression may explain the right hand numbness and indicate the need for surgery. However he thought that the MRI scans of the cervical spine did not reveal any cervical nerve root compression to explain the right arm and hand symptoms so that, at that stage, there was no requirement for neck surgery.
There was mild disc desiccation of three discs surrounding C 5-6 probably explicable by age alone and difficult to attribute to the injury. However he thought that significant trauma such as she encountered could accelerate the rate of progression.
In relation to the neck he stated
It should also be noted she did have a C 5 spinous process fracture which indicates that there was a significant blow to her neck. This makes it more likely than not that the disc pathology at the C 5-6 level was caused by the trauma to her neck. This degenerative change and the soft tissue injury at this level in her neck following the trauma may be cause for chronic ongoing pain which she does describe. If she had not been kicked in the neck then the neck pain would not have developed as it has.
Thereafter Professor Rosenfeld recommended carpal tunnel surgery and it was not until 13 March 2003 that the waiting list permitted that surgery. The professor reported in April 2005 that the 2003 carpal tunnel release had not relieved the right hand and foot numbness, weakness and incoordination which Mrs Rosa reported. At that stage a further MRI scan was obtained and he reported moderate spinal canal stenosis and severe bilateral foraminal stenosis. He believed there was a strong relationship between the development of the degenerative pathology in her cervical spine and the kick injury and noted those changes had progressed since the injury, confirmed by comparing the MRI scans of 2001 and 2005.
Professor Rosenfeld saw Mrs Rosa on 30 June 2005 following which he prepared a detailed report of 1 July 2005. In that he said:
It is important to note that the magnetic resonance (MR) report of 9 March 2005 which shows multi-level spondylotic changes, note marked at C 5-6, resulting in moderate spinal canal stenosis and severe bilateral foraminal stenosis. This means that she has developed severe degenerative changes in her neck, which have narrowed the nerve root outlets, and have compromised the cervical nerve roots. She also has a compromised spinal canal, although her spinal cord appears normal with no focal at normal signal in the spinal cord itself.
…
It is my opinion that on the basis of the previous reports I have written, and her current condition and latest MR scan, that she has suffered a serious injury caused by the kick to her neck, which did fracture her cervical spine, and resulted in the cervical arthritic changes, and chronic psychiatric problems, so that she can no longer do any work and will remain permanently incapacitated. Although she may have had some degenerative changes in her neck prior to the assault, I have commented on this in my earlier reports. I think that there is a significant contribution to her current neck problems from the injury caused by the assault.
The degenerative changes have progressed from 2001 to 2005, and although some of this may be a natural tendency to osteo arthritic change, it probably was precipitated by the assault.
…
I am unsure at this stage as to the cause of her right foot weakness, and this will require further follow up. She will require regular medical and psychiatric review and will require further MR scans in the future. She may require cervical surgery to decompress the nerve roots and/or her spinal cord, but this is not required at present. She may also require a carpal tunnel decompression in the left hand.
Professor Rosenfeld wrote to Mrs Rosa’s general practitioner on 1 November 2007 recording she was complaining of repeated falls and not being able to feel things in her right leg, together with weakness in her right upper and lower limbs. After further investigation Professor Rosenfeld reported on 6 December 2007 there was evidence of cervical cord compression and he then recommended cervical laminectomy to decompress her spinal cord. That operation took place on 29 January 2008.
He did not see her again until 9 August 2011. He reported that although she initially had been improved by the laminectomy (some improved gait and increased power in her limbs, when seen on 7 April 2008) she soon levelled off and had not been able to return to work. Within twelve months she began to experience grating sensation in the neck; her right hand, leg and foot numbness returned during 2009; by 2010 she was dropping things from her right hand.
Professor Rosenfeld believed, following this review, she had remained disabled throughout 2008, 2009 and thereafter. Whilst the laminectomy was intended to improve her condition, it was also intended to arrest deterioration. In his view she remained disabled and would so remain for the future.
The relationship between Mrs Rosa’s disabling right hand and feet symptoms, her neck injury, and the carpal tunnel syndrome, became the subject of a good deal of focus. From Professor Rosenfeld’s position that interrelationship was distilled in the following way:
I think that the initial presentation was neck and carpal tunnel and the carpal tunnel is a major contributor to her symptoms, we saw that on investigations, we fixed it, didn’t completely fix her hand and then her neck starts to get worse and worse and she gets recurrent hand symptoms. The hand symptoms may be partly due [to] that carpal tunnel but they may also be – or they were due to the neck but as I said before, the neck itself, there’s this syndrome called double crush syndrome where you get a nerve root compressed in the neck … and that actually aggravates the carpal tunnel syndrome … So I think that the carpal tunnel isn’t – certainly it’s a big issue at the start and it may be partially an issue now but she needs the nerve conduction studies to determine that but clearly the neck is the major contributor to her overall symptoms including the hand and the foot.[18]
[18]Transcript 228-229.
Professor Rosenfeld agreed, upon specific questioning, that the double crush syndrome was not a feature in 2001; it was not a cause of Mrs Rosa’s hand numbness in 2001 but it may have been at some later stage.
Professor Rosenfeld also agreed with the defendant’s proposition, put in cross-examination, that the longer carpal tunnel syndrome persists before surgery, the lower the chance the surgery will produce good results. Two to three years of delay would have a material effect on prospects of successful surgery.
Mrs Rosa also called a further specialist neurosurgeon, Mr David Wallace, to give evidence, amongst other things, on the relationship between her cervical spine injury and the symptoms in her arms, wrists and hands. Mr Wallace gave evidence that he had operated for carpal tunnel twice a month for something over 30 years. He was of the view that Mrs Rosa’s symptoms could be explained by the double crush effect. He said that impingement on the sixth cervical nerve can predispose a person to carpal tunnel syndrome, even for the first time. In her case she began with a congenitally tight cervical canal. He assumed she had no symptomatic C 5-6 stenosis prior to the injury because she was playing competitive netball and such activity would have manifested symptoms because of the rapid acceleration-deceleration that is required and the strain that places on the neck. Mrs Rosa denied any such symptoms. She then had an injury serious enough to fracture the spinous process but also to injure the soft tissues at the site of the fracture and the spinal cord itself. Those injuries, in his view, would have likely caused impingement on the sixth cervical nerve and produced symptoms in the hands and wrists, in combination with a previously asymptomatic median nerve impingement. Therefore he concluded that the neck injury constituted the major, if not sole, cause of Mrs Rosa’s right arm, wrist and hand problems from the outset.
He disagreed with the proposition that Professor Rosenfeld would necessarily know better, being the treating neurosurgeon. He explained that many of his colleagues failed to see the relationship between cervical spine canal stenosis and carpal tunnel syndrome. In this case Mrs Rosa had two of the three typically predisposing causes to carpal tunnel syndrome from a neck origin: congenital spinal canal stenosis and a serious injury at C 5-6.
Mr Wallace conceded that he had not seen the MRI results which Professor Rosenfeld had seen in 2001 enabling the professor to conclude that it did not look as if there was any nerve root compression in the neck to explain the right upper limb symptoms. However Mr Wallace followed up by saying –
(a)Professor Rosenfeld had somewhat contradicted his initial view by subsequently operating for cervical spine cord compression;
(b)Although one might assume that Professor Rosenfeld had looked very carefully to see whether there had been any nerve root compression, the evidence of it on MRI’s can be very subtle; and
(c)In his view the spinal cord compression did occur from the time of the injury to explain her right arm pain arising at that time.
Professor Rosenfeld was not asked to explain the seeming coincidence between Mrs Rosa sustaining the severe injury to her neck and, almost simultaneously (within two weeks), experiencing disabling right arm symptoms which had never previously manifested themselves. It strikes me as a matter demanding some explanation. Mr Wallace’s opinion supplies the more satisfactory explanation for that simultaneous occurrence than the otherwise unexplained sudden manifestation of carpal tunnel syndrome coincidentally after such a serious injury.
Mrs Rosa did suffer right arm (and some right leg) symptoms immediately after her injury. Carpal tunnel surgery did not provide any long term relief to those symptoms. And, cervical nerve root compression was ultimately detected by Professor Rosenfeld in the vicinity Mr Wallace believed it must always have existed. Given those matters, it is most likely that Professor Rosenfeld did not initially detect the subtle evidence of cervical nerve root compression which existed in 2001 and which, in combination with some pre-existing median nerve compression, explained the manifestation of the carpal tunnel syndrome immediately after the injury.
Accordingly, I am of the view that a cause of Mrs Rosa’s inability to work from the date of the injury to the date of any hypothetical personal injury trial was the injury she sustained to her neck, and its effect in precipitating her right upper limb symptoms. In combination with the debilitating effects of her neck pain, her inability to work both prolonged and exacerbated her anxiety and depression in a substantial way, generally robbing her of a more fulfilling quality of life that she would have enjoyed but for the accident.
I accept that she was hit hard by being unable to pursue her much hoped for move into a career in welfare work for which she had recently qualified and had demonstrated genuine long term interest through her past involvements.
Pre-existing degenerative change
As I will discuss in more detail below it does appear probable that pre-existing degenerative changes in Mrs Rosa’s cervical spine would have curtailed her nursing work and physical activity by the time she was in her early 60s.
However, had she found that her working capacity, particularly that involving physical activity, to have gradually tapered off in her early 60s due to natural, age-related spinal degeneration, rather than because of traumatic injury, I think it much less likely she would have suffered the same emotional reaction as she did when her working life and expectations were brought to a sudden halt by the injury. As a consequence, she was far more likely, in the absence of injury, to have enjoyed, generally, a more satisfying quality of life than has been the case and will continue to be the case.
Other un-related health issues
The solicitors sought to rely on a range of other health conditions to suggest that Mrs Rosa’s quality of life would have been adversely impacted in any event. In addition to the carpal tunnel syndrome and disc degeneration already discussed, those conditions were the recurrence of a thyroid condition, and treatment, resulting in tiredness, increased weight and feeling teary and depressed; and a pre-cancerous growth leading to the removal of part of her bowel and resulting diarrhoea for some months.
I accept that Mrs Rosa did have some independent health issues (as mentioned above when discussing her pre-injury health) that rendered her somewhat susceptible to work interruptions and emotional reaction from time to time. I do not consider, however, that those issues would likely have had any significant effect on the calculation of pain and suffering damages by a court hearing her injury claim. But they may have warranted consideration in terms of the damages to be allowed for loss of earning capacity (which I will discuss below).
Conclusion on pain and suffering damages
The solicitors’ arguments concerning Mrs Rosa’s likely range of damages for pain and suffering substantially depended upon introducing an independent and unrelated cause (carpal tunnel) of her working capacity for the first four or five years after the accident. On the back of that argument, they further contended that Mrs Rosa’s dashed expectation of employment as a welfare worker, and associated emotional reaction, could not be attributed to the injury in June 2000. For reasons I have already explained I reject those arguments. I do accept, however, that Mrs Rosa may have suffered a degree of frustration due to premature termination of some work incapacity in her early 60s, but that frustration would have been unlikely to take anywhere near the same toll on her general disposition as the injury has caused.
I do not place high reliance on the argument that Mrs Rosa’s damages should reflect the probability, or even a serious chance, of further neck surgery. Mr Wallace thought it unlikely, and no evidence was called from her present treating surgeon.
Taking all matters into consideration I think Mrs Rosa enjoyed a prospect of being awarded higher damages for pain and suffering than the $100,000 she settled for upon her solicitors’ advice. In my view, a more realistic range was $180,000-$200,000 at the date of a hypothetical trial in mid-2010.
Would an award of damages for loss of earning capacity have exceeded her past and future entitlements to weekly payments?
The parties agreed on a number of factors which assist in assessing the award of damages which Mrs Rosa might fairly have expected to recover for lost earning capacity as a consequence of the injury in June 2000. Not only is that assessment relevant to the quantification of any loss suffered, but, as explained earlier in these reasons, that assessment is critical to the probability that Mrs Rosa would have chosen, once properly advised, to pursue her claim for pecuniary loss.
The factors agreed by the parties are as follows:
(a)The date of the notional trial is June 2010;
(b)The total weekly payments received by Mrs Rosa as at 15 August 2011 (the first day of the trial of this proceeding) was $284,246.60;
(c)The rate of weekly payments at the same date was $581;
(d)The Fox v Wood[19] component of damages at 30 June 2010 was $36,269;
(e)The 6 percent multiplier for a 61 year old to age 65 is 186.2; and
(f)The 6 percent multiplier for a 62 year old to age 65 is 143.6.
[19](1981) 148 CLR 438.
Mrs Rosa argues that she would have been awarded damages for lost earning capacity at a trial in June 2010 (when she was 61 years and 9 months) upon the following findings. But for the injury –
(a)She would have worked from June 2000 (then aged 51 years and 9 months) to at least the age of 65, but quite likely to 69 or 70 years;
(b)She would have worked in that time frame in a mixture of welfare work and casual nursing work for a total of 40 hours per week – 30 hours in welfare and 10 hours in nursing;
(c)The rates of pay for each employment would have been in accordance with the evidence of Mr Allan, a forensic accountant whose report was tendered and who also gave oral evidence in the trial;
(d)On those assumptions, as at June 2010 Mrs Rosa would have received damages for at least the following losses:
Net past earnings
$422,862
Net discounted future earnings (to age 65)
$173,317
Total net loss of earnings
$596,179
Net loss of superannuation contributions (past and future)
$81,315
(e)She would have been entitled to damages calculated in accordance with the principles of Fox v Wood of $36,269.
Other than the figure for the Fox v Wood component, the solicitors took issue (it appeared) with all of the factual assumptions and calculations underlying Mrs Rosa’s quantification of damages. They put forward a separate set of calculations which were set out in an annexure to their final written submissions (Annexure A), referenced to various exhibits tendered in the trial. Despite the appearance of disagreement, upon close analysis the calculations put forward by the two parties arrive at quite similar conclusions once allowance is made for their different assumptions.
The real issues dividing the parties can be distilled under the following headings:
(a)The starting point for calculating past loss of earnings;
(b)The duration of Mrs Rosa’s likely working life but for the accident;
(c)An appropriate discount for vicissitudes; and
(d)The likely hours per week for which Mrs Rosa would have worked in each capacity.
Starting point for calculation of past earnings
The solicitors argued that Mrs Rosa was independently disabled from working due to her carpal tunnel syndrome at least until June 2003, if not for the whole period since the accident. Accordingly they put forward various scenarios for disallowing any entitlement to past economic loss until, on their analysis, symptoms from the injury became causative of loss of earnings.
For reasons I have already discussed I reject the solicitors’ argument and find that the injury was a cause of Mrs Rosa’s inability to engage in employment from the date the injury was sustained.
Duration of Mrs Rosa’s working life
I am not persuaded that Mrs Rosa was likely to work beyond 65 years, as she claims she would have done. Furthermore, Professor Rosenfeld accepted that, even without the injury, her pre-existing disc degeneration and her tendency to arthritic change would have produced disabling neck symptoms which would have taken her out of the work force. In response to a proposition put in cross-examination that the age of 60 years would be a reasonable estimate of when she would have developed such symptoms, the professor answered: “Yes, in the 60’s more common”. When asked if that would have taken Mrs Rosa out of the work force as a nurse, he answered: “Most likely, yes”.
Bearing in mind these answers I am of the view that the probability that Mrs Rosa would have remained in the work force from the age of 60 onwards begins to taper off as the years go by. By June 2010 she was approaching 62 years of age. I think a court would most likely have concluded that by that age she would have been unable to sustain her nursing activity and that it was likely – given her general disposition – her ability to continue in welfare work would also be dwindling.
In all the circumstances I think it is reasonable to assume a court would have allowed her full past loss of earnings in both capacities until mid-2010, but then only partial loss of earnings for around a further 12 months only.
Discount for vicissitudes
The solicitors argued that a more substantial than usual allowance would have been made for vicissitudes against both past and future loss of earnings. They submitted a rate of 30 percent would have been applied. Its argument was based upon what they contended was a greater than usual vulnerability on the part of Mrs Rosa to non-injury related physical and emotional episodes which were likely to take her out of the workforce for material periods of time. In particular, it pointed to her carpal tunnel injury to both wrists; the time she took off for removal of part of her bowel due to cancer; the time she took off for treatment for the recurrence of her thyroid problem; her neck degeneration which they argued was likely to cause episodic problems as time progressed; and her general emotional wellbeing which was reactive to problems in her life.
Mrs Rosa argued, supported by the opinion of Mr Rattray QC, that a discount of 15 percent was more appropriate.
I consider there is some force in the solicitors’ submission that Mrs Rosa was somewhat more precariously disposed to work interruption for heath-related reasons than might be common. Mr Rattray QC was not instructed on the full range of issues affecting her life. Nevertheless, I also consider that Mrs Rosa was a person willing to battle through adversity – and she had faced quite a bit during her life.
In the circumstances, in my view a discount of around 20 percent for vicissitudes was likely to have been allowed.
Likely hours of work in each capacity
I doubt that a court would have been persuaded that Mrs Rosa would have worked a full 40 hours a week – that is, 30 hours in welfare and 10 hours in nursing – from June 2000 onwards. There was no evidence that she had worked full time in any capacity in the years prior to her injury – certainly not in the immediately preceding years. She had only recently (in early 1999) qualified for welfare work, having been a part time student for several years before then. For approximately 18 months before the accident she worked at around 20 hours per week in welfare and 10 hours per week in nursing.
Despite her claims that it was her ambition to build up her welfare work, and that it was only kept at reduced levels because of the unavailability of work at that time, I consider it too speculative to assume she would have sustained the number of hours that she claimed she wanted to work. In my view it would be appropriate to assume that a court would have awarded her damages on the basis she would generally have worked 20 hours a week in welfare and 10 hours a week in nursing, with a modest allowance for the prospect that at times she would have worked some increased hours in the welfare sector.
Calculations
The net loss of earnings put forward by Mrs Rosa (i.e. Mr Allan’s calculations), on the one hand, and by the solicitors (i.e. Annexure A), on the other, on the basis of 20 hours welfare work and 10 hours casual nursing work per week up to 30 June 2010, was $335,000 and $325,000 respectively. Given the somewhat imprecise data upon which the calculations were made it is reasonable to adopt a figure in the order of $330,000 as the amount that would likely have been allowed at a notional trial.
As for any allowance for some further welfare work to be undertaken by Mrs Rosa beyond June 2010, and for the prospect that she may have from time to time worked more than 20 hours a week in welfare, I consider it is fair to assume a further $40,000 might have been allowed, making a total of $370,000.
The parties’ calculation of net superannuation contributions to 30 June 2010, assuming the 20 hours welfare/10 hours nursing scenario, were around $30,000, increasing to $40,000 (calculated by Mr Allan) if it was assumed that Mrs Rosa worked for another year in both capacities, and also assuming that she worked 30 hours in welfare and 10 hours in nursing over the entire duration. I consider that an allowance of something in the vicinity of $33,000 for net contributions would sufficiently take into account the prospect of a court accepting a slightly longer working life and a greater number of hours in welfare work.
Mr Allan provided some calculations of the anticipated fund earnings on her superannuation contributions (at a net rate of 7.5 percent per annum). Using a base contribution figure of around $45,000 he arrived at an ultimate loss of superannuation balance at the time of retirement of $71,500 which when discounted for present value (in June 2011) became $62,700. Doing the best I can, I think it fair to assume that upon a base contribution of around $33,000 a court would have allowed approximately $46,000 for the loss of superannuation discounted for present value.
Accordingly, having regard to the various components of loss of earnings which Mrs Rosa might reasonably have been awarded, her total award as at June 2010 could be assessed in the following vicinity (rounded):
loss of earning capacity (past and present) $370,000 loss of superannuation (past and present) $46,000 $426,000 after allowance for vicissitudes 20 percent $341,000 Fox v Wood component $36,269 Total $377,269
When assessing the value of the chance that Mrs Rosa would have received an award of damages for loss of earning capacity I would then need to apply the percentage which I determined earlier to take into account the combined prospect that she might have failed on liability, or might have been found liable for some degree of contributory negligence – that is, 82.5 percent. The result of such a calculation would bring the overall value of the chance for that component of her loss to approximately $311,000.
The amount that Mrs Rosa has presently received (at least as at 15 August 2011) by way of statutory payments of compensation is $284,242. She will go on receiving those payments until she is 65 years of age. Mrs Rosa will turn 65 on 24 September 2013 so that, as at 15 August 2011, she could expect to continue to receive those statutory payments for another two years and five weeks. My estimate of the 6 percent multiplier for that period is a factor of approximately 103. Applying that factor to the weekly amount of $581 the discounted future entitlement to statutory compensation at the same date was $59,849. Combined with her past payments, as at 15 August 2011 the amount which she would have had to repay and would forego would be valued in the order of $344,000.
To calculate the amount that was repayable (and would be foregone) at the notional trial date the past payments would be reduced but the future payments would be increased. The total sum would be of a similar order (around $340,000 on my estimate).
The above assessment of the amount which Mrs Rosa might reasonably have expected to recover, and the amount which she would have repaid and foregone by way of statutory payments, leads me to the next consideration.
Would Mrs Rosa have pursued the common law damages claims?
The question of whether Mrs Rosa would have pursued common law damages if properly advised is a question of causation. It must be assessed on the balance of probabilities and the onus is upon Mrs Rosa to prove that she would have pursued each component of her claim.[20]
[20]Sellars v Adelaide Petroleum N.L. (1994) 179 CLR 332, 355; Hammond Worthington v Da Silva [2006] WASCA 180 [118].
I gained the very clear impression from Mrs Rosa in the witness box that she trustingly accepted her solicitors’ advice in 2007, and that she would have deferred to advice from any hypothetical reasonable and prudent solicitor armed with all the relevant information and instructions. Mrs Rosa did not strike me as a person inclined to take risks but rather was a cautious lady of relatively modest expectations.
Although many of the figures referred to above could be expressed as ranges (with higher and lower extremities) I consider that the figures I have stated represent fair mid points of such ranges. A reasonable and prudent solicitor would have advised Mrs Rosa that, although she had a strong case on liability and there was only a relatively low likelihood of a finding of contributory negligence, an allowance should nevertheless be factored in to her prospects of success for the risk of failure and the risk of some contributory negligence reducing the award of damages.
In my view a reasonable and prudent solicitor would have concluded that:
(a)The prospect of Mrs Rosa gaining an award of damages for pain and suffering exceeding $100,000 was very strong and that she could well recover nearly double that amount. Such a solicitor was likely to have advised her not to settle for $100,000 but to pursue a higher award even allowing for the risk of failure or of contributory negligence.
(b)The prospect of Mrs Rosa recovering an award of damages for lost earning capacity which exceeded the benefit she derived from her statutory compensation entitlements through to the age of 65, was only marginal with a real prospect she could do worse. In my view such a solicitor would ultimately have advised Mrs Rosa not to pursue such a claim but to abandon it (as in fact was done, albeit prematurely, in 2007), or only to pursue it if she was prepared to risk doing worse than the position she was already in.
I am not persuaded that Mrs Rosa would have pressed her claim for lost earning capacity in the face of the advice which I consider a reasonable and prudent solicitor would have given. It follows that she has not established causation of any loss in respect of a chance to recover damages for loss of earning capacity, but has established causation of the loss of a chance to be awarded damages for pain and suffering exceeding the amount of $100,000.
What is the value of the lost chance?
I have found that the range of damages which Mrs Rosa might have expected to be awarded for pain and suffering had her claim to have proceeded to trial was $180,000-$200,000. The value of that chance is to be reduced by the factor of 82.5 percent representing my assessment of her prospect of succeeding on liability.
The solicitors have urged me to discount that sum further for the benefit of interest Mrs Rosa received between the date she received the $100,000 settlement on 7 February 2008 and the date of the notional trial in June 2010. They also urge the figure be reduced for the solicitor/client costs she would have had to pay to pursue the claim to judgment.
No evidence was given of the commercial rate of interest over the relevant period to enable me to assess the benefit which Mrs Rosa did derive or might have derived by having that sum. In any event, if properly advised at the time Mrs Rosa might well have procured a greater sum by way of settlement than the $100,000 that was accepted by her on advice, either in early 2008 or at some other time prior to trial in June 2010. In those circumstances I am not persuaded there should be any allowance for theoretical interest against the valuation of her damages.
The solicitors seek an allowance of some $30,000 for probable solicitor/client costs Mrs Rosa would have incurred in pursuing the claim in June 2010. They rely upon the evidence of Mr O’Brien, the practitioner who conducted Mrs Rosa’s matter within the defendant firm, who estimated the solicitor/client component of costs for a trial in the County Court of six or seven days in the vicinity of $40,000. He was not challenged about that figure.
Nevertheless, Mrs Rosa submitted that any solicitor/client costs which she was relieved of having to pay in the notional trial are offset by the solicitor/client costs which she will have to fund in the present proceeding. I think that submission has certain appeal from the viewpoint of fairness. In any event, once again, I cannot ignore the real possibility that Mrs Rosa would not have needed to pursue her claim for pain and suffering damages right through to verdict but may well have recovered what I have assessed to be a fair sum of compensation by settlement beforehand.
In all the circumstances I do not consider it appropriate to make deductions for either a purported benefit of interest or saving of solicitor/client costs.
Conclusion
I find that as a result of the negligence admitted by the solicitors Mrs Rosa suffered the loss of a chance to pursue her common law claim for pain and suffering damages for a sum greater than the sum she received by settlement in February 2008. She did not suffer any loss of a chance to pursue a claim for loss of earning capacity because even without the solicitors’ negligence she would not have pursued such a claim but would have elected to retain the benefit of her statutory compensation payments.
I assess the damages for the loss of the chance to pursue a common law claim for pain and suffering, at 30 June 2010, in the sum of $56,750 calculated as follows: 82.5 percent x $190,000 (the mid point between $180,000-$200,000), less the sum of $100,000 already received.
I will hear the parties on the appropriate orders, interest and costs.
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