Schrader v Davidson

CITATION:	Schrader v Davidson [2008] NSWDC 61
HEARING DATE(S):	6 and 7 February 2008
JUDGMENT DATE:	5 March 2008
JURISDICTION:	District Court Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Judgment for the defendant with costs on the ordinary basis
CATCHWORDS:	PROFESSIONAL NEGLIGENCE - a negligent solicitor who was required to pay damages to a client sought contribution from a barrister to whom he had delivered a brief, for failing to alert the solicitor to his mistake - the barrister had not read the brief, and had only skimmed the less than expansive Observations, prior to concluding a formal retainer - a duty of care can arise as between a barrister and a solicitor's client even in the absence of a formal retainer where there is a sufficient relationship of proximity and a sufficient foreseeability of loss - in this case no duty of care had arisen, and even if it had, there was no breach by the barrister
LEGISLATION CITED:	Workers Compensation Act 1987 (NSW): s 151C
CASES CITED:	Curnuck v Nitschke [2001] 176 at [8] - [11] and [58] - [59]. Sydney Ports Corporation v Collins [2003] NSWCA 28
PARTIES:	Geoff Schrader t/as Schraders Lawyers (Plaintiff) John Davidson
FILE NUMBER(S):	5450/06
COUNSEL:	Mr D Davies SC (Plaintiff) Mr R Seton SC (Defendant)
SOLICITORS:	Yeldham Price O’Brien Lusk (Plaintiff) McCabe Terrill (Defendant)

JUDGMENT

Introduction
1. Mr Schrader is the principal of a firm of solicitors which negligently mishandled the work injury damages claim of a client and had to pay out $188,500.00. Contribution for that loss is now sought from the barrister to whom his firm sent a brief. Although the barrister had not formally accepted the brief, or read it, he had cast a cursory glance over the Observations. It was alleged that the barrister should have alerted the solicitors to the mistake that led to the client’s loss.

2. The barrister denied liability and I am required to determine the following issues:
· Did a duty of care owed by the barrister to the client arise?
· If a duty was owed, did the barrister breach the duty?
· If so, did the breach of duty cause any loss?
· If so, what amount of contribution by the barrister is just and equitable?

3. The claim arises because the solicitors commenced proceedings for damages on behalf of the client against his employer before 6 months had expired after notice of his injury was given, contrary to the condition precedent in s 151C of the Workers Compensation Act 1987 (NSW). If the mistake had been realised in time, the proceedings could have been discontinued then re-commenced after the 6-month waiting period, but before the law was retrospectively changed to limit the damages recoverable for work injuries, whereby the client suffered loss.

Background
4. The client, Laurence Dickson, was injured in the course of his employment on 12 April 2001. He engaged the firm, Schraders Lawyers, to act for him in respect of his injuries. The principal of…