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Rosa v Galbally & O'Bryan

Rosa v Galbally & O'Bryan

Case [2012] VSC 3 31 January 2012

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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…

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 [2012] VSC 3
Case: [2012] VSC 3
Decision Date: 31 January 2012

CaseChat Overview and Summary

In the case of Rosa v Galbally & O'Bryan, the plaintiff, Rosa, sued the defendants, Galbally & O'Bryan, for professional negligence. Rosa alleged that the defendants, who were her former solicitors, failed to properly advise her on her personal injury claim. This failure, Rosa claimed, resulted in her missing the opportunity to pursue claims for pain and suffering and loss of earning capacity. The matter was heard in the Supreme Court of Victoria.

The primary legal issue the court needed to address was whether the defendants' negligence caused Rosa to miss the chance of pursuing additional claims. Additionally, the court had to determine the appropriate assessment of damages for the loss of that chance. The court referred to precedents such as Johnson v Perez and Sellars v Adelaide Petroleum N.L. to guide its reasoning.

The court found that the defendants were indeed negligent in their advice to Rosa, which directly contributed to her missing the opportunity to pursue the additional claims. In assessing damages, the court considered the probability of Rosa succeeding in those additional claims had she been properly advised, as outlined in Johnson v Perez and Sellars v Adelaide Petroleum N.L. The court awarded Rosa damages reflecting the lost chance, balancing the probability of success with the potential value of those claims.

The court ordered the defendants to pay Rosa compensation for the loss of the chance to pursue claims for pain and suffering and loss of earning capacity, with the amount reflecting the assessed probability and potential value of those claims.

Orders