Shore v Palios Meegan & Nicholson Holdings P/L & Palios - [2009] SADC 5

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SHORE v PALIOS MEEGAN & NICHOLSON HOLDINGS P/L & PALIOS
[2009] SADC 5
Judgment of His Honour Judge Tilmouth
23 January 2009
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - GENERALLY
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES
The plaintiff redeemed her entitlements to workers compensation and later suffered a further work injury, for which her then entitlements were reduced by the amount of weekly payments at redemption. She claims not to have understood the effect redeeming had in the event of a subsequent work injury, and sues her former solicitors for negligent advice and for consequential damages.
Held: 1. The plaintiff has established a breach of the duty of care in two respects, namely inadequate advice in relation to the effect of redemption in the event of further work injury and as to the true value of her present entitlements at that time.
Held: 2. Damages should be assessed by restoring the Plaintiff to the position she would have been in had she not acted on the advice of the defendants. This commences with the aggregate value of weekly payments forgone, then reduced to reflect the difference between what she received by way of a lump sum for permanent disability and what she would most likely to have been awarded by judicial determination in the Workers Compensation Tribunal and by other adverse contingencies.
Workers Rehabilitation and Compensation Act 1986 (SA) s3, s30, s32, s35(1), s35(1)(a) and (1)(b), ss 35(2), ss35(5) & (7), s35(6a), s38(1a), s42(9), s42(2), ss42(2)(a), ss42(2)(b), ss42(2)(d), s43, s43(1), ss43(6a), referred to.
Astley v Austrust Limited (1999) 197 CLR 1; Midland Bank Trust Co Ltd v Hett and Ors [1979] Ch 384; Austrust v Astley (1993) 60 SASR 354; (1996) 67 SASR 207; Heydon v NRMA Ltd (2000) 51 NSWLR 1; F v R (1983) 33 SASR 189; Rogers v Whitaker (1992) 175 CLR 479; Tsimpinos v Workcover Corporation (K and A Transport Pty Ltd) [2001] SAWCT 138; Harrington v Harrington (1981) 155 CLR 317; Chappel v Hart (1998) 195 CLR 232; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, applied.
Tsimpinos v Workcover Corporation (K and A Transport) Pty Ltd [2001] SAWCT 138; Ryan v WorkCover Corporation/CGU Workers Compensation (SA) Pty Ltd (Kellyvale (No 40) Pty Ltd (Samech Labour)) [2000] SAWCT 196; Lloyd v WorkCover Corporation/Allianz Australia (Bi-Lo Pty Ltd) [2004] SAWCT 59; Amadio Pty Ltd v Henderson (1998) 81 FCR 149; Sykes v Midland Bank [1971] 1 QB 113; Rosenberg v Percival (2001) 295 CKR 434; Gover v The State of South Australia (1985) 39 SASR 543; Perriam (1985) 39 SASR 543; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; Sellars v Adelaide Petroleum NL (1992-1994) 179 CLR 332; Gould v Vaggelas (1995) 157 CLR 215; Johnson v Perez (1988) 166 CLR 351; Gates v The City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; Haines v Bendall (1991) 172 CLR 603; Scarcella v Lettice (2000) 51 NSWLR 302; Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394; and Bresatz v Przibilla (1962) 108 CLR 541, discussed.
Rehabilitation & Compensation Corporation v Lu (1995) 183 LSJS 193, considered.

SHORE v PALIOS MEEGAN & NICHOLSON HOLDINGS P/L & PALIOS
[2009] SADC 5
Preliminary

Marilyn Shore was surprised to learn her level of weekly payments for a work injury with the Salvation Army in 2004 were inexplicably reduced.[1] She consulted the solicitor, Mr Carabelas, about this. Upon investigating, he ascertained this state of affairs had its origin in an agreement she entered into during August 1998, settling an earlier worker’s compensation claim with another employer.
[1] T96.36-97.6, T159.11-.18, T235.11-.16
Upon receiving the paperwork, Mr Carabelas became “convinced” a redemption of the previous entitlements had occurred.[2] As she claims not to have understood the effect this had in the event of a subsequent work injury, she considered and later initiated an action against her former solicitors who advised her at the time of taking redemption.[3] These proceedings claim damages for negligent advice in connection with settling and redeeming those earlier entitlements. Although the defendants trade as “Palios, Meegan & Nicholson”, the business was conducted by Palios, Meegan & Nicholson Holdings Pty Ltd.[4]
[2]    T72.10
[3]    T72.33-34
[4]    Evidence of Mrs Palios T347.2-.20, and the firm’s letterhead
The retainer of the defendants
Mrs Shore worked for some twenty-two years as an aged care worker with Resthaven Inc, before sustaining an injury at work on 3 July 1997. She submitted a notice of the injury and a claim for compensation on that day.[5] She first consulted the defendant solicitors on 17 September 1997. It appears she told a law clerk on this occasion that her claim had already been accepted and she was seeking “a section 43 decision from MMI …”. The reference to MMI was to an insurance company, colloquially Manufacturers Mutual and formally Workers Compensation (SA) Ltd., then acting as claims agent for the compensating authority, WorkCover Corporation, with respect to this claim.
[5] Exhibit 2 p1 and p4
She requested the firm of solicitors to “act on her behalf with respect to the management of the claim from now on”.[6] Appointments were made to see two doctors in November. Two days later her employer wrote to her directly, stating she would “never be able to return safely to her duties as a personal carer” and suggesting she might seek a “redemption package”.[7] This was obviously forwarded to Palios, Meegan & Nicholson, since they advised Mrs Shore in writing on 3 October 1997 that it “served no purpose other than to see your reaction to the suggestion of a redemption package”.[8]
[6]    Exhibit P3 p1
[7]    Exhibit P3 p5
[8]    Exhibit P3 p24
By 23 September 1997 Ms Julia Palios, a solicitor and director of the first defendant, had assumed responsibility for the conduct of the file. She wrote to Mrs Shore outlining in general terms the available statutory entitlements to workers compensation by way of income maintenance (or weekly payments), medical, travelling and other expenses, lump sum assessments for permanent disability and as to her obligations to them for the legal costs incurred on her behalf.[9] The latter were specified at “1.5 times the Supreme Court rate”, with the quantification that “we are usually prepared to wait until the finalisation of your lump sum claims prior to rendering an account”,[10] which as will be seen, turned out to be the case.
[9] Exhibit P3 p11-14
[10] Exhibit P3 p14
A determination for permanent disability dated 31 October 1997 was made by MMI of $33,550.20 taking “into account the medical opinion of Dr Wright”.[11] Dr Wright considered the body-part disabilities were 15 per cent loss of the use of the lumbar spine, 25 per cent loss of use of the right shoulder, and 10 per cent loss of the use of the cervical spine.[12] Mrs Shore was telephoned on 25 November 1997 by an employed solicitor Mr Corrigan, who had conduct of the matter whilst Ms Palios was on leave. He explained to her that she might be able to negotiate a higher figure. According to a note made by him at the time, she gave telephone instructions to “settle the matter now and did not want it dragging on”.[13] This exchange was confirmed in a letter written by him on 25 November 1997.[14] In fact Mrs Shore received a cheque for the above sum shortly before 19 December 1997. An account was then duly rendered by the solicitors for the work done in respect of that aspect of her claim.[15]
[11] Exhibit P3 p77-86
[12] Exhibit P33 p18 and p36
[13] Exhibit P3 p42
[14] Exhibit P3 p44
[15] Exhibit P3 p57
Despite this, Ms Palios on returning to work proceeded to lodge a Notice of Dispute in relation to the determination.[16] This seems to have been precipitated by a conference with Mrs Shore on 22 January 1998, the first occasion they met face to face. This in turn was arranged in response to the concerns expressed in Mrs Shore’s letter of 15 January “due to my depressed (emotionless) state and age, things look pretty dim”.[17] Ms Palios claims to have been instructed to issue the notice at this time, even though no express note to that effect appears on the file. As that course of action was confirmed in her letter of 28 January,[18] this rather tends to suggest the topic was raised during the January conference, even though Mrs Shore claims not to have been aware of it.[19] Whether that was the case or not, this course of action had the potential to enhance the chances of a better settlement later on, so that nothing of consequence turns on the factual dispute in relation to whether Mrs Shore specifically gave those instructions or not.
[16] Exhibit P3 p66
[17] Exhibit P3 p62
[18] Exhibit P3 p88
[19] T181.22
During this whole period Mrs Shore continued to receive weekly income maintenance and her medical expenses were met by WorkCover, whilst the conduct of her claim remained under the control of Ms Palios. The dispute over the lump sum disability determination was referred to a compulsory conciliation conference on 11 May 1998, when a Mr Warren another solicitor from the defendants’ office attended. Ms Kerrigan a solicitor, represented MMI. As by then it became apparent there may be a non-organic component to the underlying physical disability, a fresh claim was lodged to enable it to “be joined with the current dispute … [so] … they could he heard together”.[20]
[20] Mr Warren’s note Exhibit P3 p131-132
Ms Kerrigan indicated she intended to organise an independent medico-legal examination, so the conference was adjourned to June 17^th, which in the event was adjourned again on that date. However, Ms Kerrigan did indicate an interest “in looking at an all up settlement”, since Resthaven was to become an “exempt employer on 1/7/98”, that “the two year mark…is up on 3/7/98”. She was unsure “how this would effect…discussions and/or any all up settlement discussions”.[21]
[21] Exhibit P3 p132
The written legal advice
A letter reporting this course of events, penned by Mr Warren, was sent to Mrs Shore on 14 May 1998. Without giving any advice one way or the other, this sought instructions as to whether she was interested in “entering into negotiations to finalise all outstanding aspects of your workers compensation claim”.[22] It was followed by another of 22 May to the same effect.[23] Mrs Shore responded:[24]
I write to you in regards to your letter 22.5.98 re overall settlement. The last time I spoke with Julia she advised me that in my best interest, it would be better for me to stay on wages as long as possible, due to my age and the amount of medication costs for the rest of my life, accepting a pay-out would not amount to very much, for this reason I need her advice on any settlement offers that are made. I am also concerned about loss of income for the next 11 years from now as this is the time I had left to work, who is responsible for my loss of income for this period of time? As prior to my injuries which occurred whilst working for Resthaven, I was a very fit, energetic …
…
As I do not know the laws regarding my claim I need your full assistance in this matter e.g. appointment with Julia ASAP to discuss this matter.
She subsequently telephoned the defendants’ office seeking an appointment “to discuss the ongoing progress of her claim”.[25]
[22] Exhibit P3 p135-136
[23] Exhibit P3 p138
[24] Exhibit P3 p139-141, dated 26 May and received 29 May 1998
[25] Exhibit P3 p 142, 1 June 1998
According to the case for the defendants, next in point of time a letter of 16 June 1998 was posted to Mrs Shore, outlining in considerable detail their general advice with respect to the whole claim and the consequences of redemption. It commenced by informing her the WorkCover agent “is prepared to enter into negotiations to redeem your future entitlements pursuant to Section 42 of the Workers Rehabilitation and Compensation Act, 1986.”[26] The plaintiff gave evidence of having no recollection of receiving this. She said she kept the entire correspondence from her solicitors in an alphabetical file. All of them she claimed to have later handed over to Mr Carabelas. He gave evidence to the same effect.
[26] Exhibit P3 p149
As it happens, this was far from the only letter sent by the defendants, not passed on to Carabelas. No less than sixteen items most likely to have been posted to her by them, were missing from her file,[27] so that any inference she was not sent the letter of 16 June because Mr Carabelas did not receive it from her, fails to materialise. More than this, her letter of June 20 spoke of “future entitlements to income maintenance pursuant to s 42 of the Workers Rehabilitation and Compensation Act 1986”,[28] thus connecting precisely with the language of the introductory paragraph of the letter of the 16^th. Although it is clear that in none of her correspondence did Mrs Shore expressly refer to a letter of 16 June by date, in these circumstances the distinct probability remains that she did in fact receive this letter.
[27] These are listed at T220.5-.37
[28] Exhibit P3 p159
It advised her of the effect of redemption, and that she would have no further entitlements to income maintenance or medical expenses. It went to inform her that:[29]
If a redemption lump sum is accepted it will have the following legal effect:-
(e) If you obtain alternative employment and then suffer from a work-related incapacity in the future, WorkCover, or its insurers, may reduce your to income maintenance payments and refuse to pay a portion of your medical expenses in order to make some allowance for the redemption payment”.
[29] Exhibit P3 p150
On the 19^th of June, Mrs Shore left a message wanting to know when she could speak to Ms Palios.[30] A receptionist told her to attend on the 25^th of June in order to coincide with the hearing of the adjourned conciliation conference. In a letter of 20 June, Mrs Shore indicated a willingness to “consider entering negotiations for a redemption package should they offer her a package that is fair and reasonable”. This mentioned sums of between $45,000 and $50,000 for “future entitlements to income maintenance”, figures she said emanated from Ms Palios.[31] Ms Palios agreed,[32] adding this range was most likely suggested by her in the course of a telephone exchange between them on 18 June.[33]
[30] Exhibit P3 p158
[31] T427.17-.23, 112.23-.24
[32] T382.12-.23
[33] T424.19-.33
To this point in time there had been no legal advice to pursue settlement by way of redemption. In point of fact, as Ms Palios claimed in her evidence, before 22 May Mrs Shore was advised in a “previous discussion … of my opinion that she was better off on the system than off the system … redemption was not necessary at that point when my advice was not to accept a redemption ...”.[34] That evidence is supported by the contents of Mrs Shore’s letter of 26 May, quoted above.
[34] T414.20-415.9
The events leading up to redemption
In contrast to her previous stance, Ms Palios advised in her letter dated 22 June 1998, “if you wish to negotiate an all up settlement we recommend that you put an offer in the following terms”, namely redemption of weekly payments for $49,500, of medical expenses for $500, and a “supplementary benefit” pursuant to s 43 of the Act of $34,708.30 and a s 43 lump sum of $79,568.67.[35] Given that Mrs Shore had already received $33,550.20, this left a balance of $130,726.77. The letter continued “it is highly unlikely that you will be awarded the said sums if we proceed to a hearing”, adding the redemption of $50,000 was the “maximum the WorkCover agent can pay without seeking authority from the WorkCover agent”.[36] She concluded by seeking urgent instructions as to whether Mrs Shore wished to proceed “with the above settlement proposal”. There was no reference to the previous advice to stay “on the system”. Although this referred to a letter of 11 June when in fact there was no such letter, it was no doubt meant to be a reference to the letter of 16 June, which as it happens was drafted on 11 June. Mrs Shore rang on 19 June and again on 24 June, wanting to know when she might speak to Ms Palios.[37] She left a message with a secretary on the latter date “that she is happy to go with whatever you say”.[38]
[35] Exhibit P3 p170 - 172
[36] (sic Corporation)
[37] Exhibit P3 p158
[38] Exhibit P3 p173
As Ms Palios preferred not to do counsel work, Mr Warren again attended the conciliation conference on the 25 June 1998 in the Workers Compensation Tribunal, whilst Ms Palios and Mrs Shore remained at her office. His discussions with the other party were conveyed to Mrs Palios and reconveyed to Mrs Shore. Various offers were discussed, but none were accepted. Her evidence was that Ms Palios advised against all offers put forward at that stage.[39] This coincides with the file notes kept by Ms Palios, which record she “strongly recommended that [Mrs Shore] rejects the offer and stays on the system”.[40] Ms Palios gave oral evidence to the same effect.[41] The same notes disclose advice was given at this time that redemption meant there would be no further entitlement to future wages or medical expenses, and that “as long as the law remains in its current state she should be able to retain her income maintenance”. However nothing in these or in any subsequent letter or note, records any advice akin to that contained in paragraph (e) to the letter of 16 June.
[39] T116.38
[40] Exhibit P3 p186 at p190-191
[41] T380.25-.136, 394.14-.34
In her correspondence of 1 July 1998, Ms Palios set out complex calculations of what she described as “section 43 lump sums”, said initially to represent “a combination of the opinions” of Drs Wright and Cullum, and later Drs Guirguis and Craig, as well as other matters at some length. These estimates ranged from $25,123.05 based on Dr Cullum’s assessment, to $73,164.55, based on Dr Guirguis plus 15 per cent “in accordance with Dr Craig’s report”. In addition she confirmed that by rejecting redemption, Mrs Shore would continue to receive weekly payments and reiterated that although she could not guarantee it, “as long as the law remains in its current form, you should be able to receive income maintenance to the age of 62½ or 63”.[42] It did however state “the writer recommends that you put the following counter proposal” of $123,164.55.[43] This figure contained a component of $63,024.82 for the s 43 lump sum claim.
[42] Exhibit P3 p216 - 222 at 217
[43] Exhibit P3 p216 – 222 at 218
To this Mrs Shore responded on 4 July (received by the defendants on 6 July 1998):[44]
I would appreciate it if you would proceed with this claim or follow the counter proposal the writer recommends … I look forward to hearing from you either way. I sincerely appreciate your help and advice.
[44] Exhibit P3 p223 – 224
On 16 July 1998, WorkCover increased its total offer to $110,000. A letter advising to this effect merely sought written instructions “whether she wished to accept or reject that offer”, but gave no advice, other than to observe “accepting the offer will have the same legal effect as that detailed in our letter dated 1 July 1998”.[45] Mrs Shore then telephoned on the 21^st leaving a message seeking Ms Palios’ “opinion on the offer of $110,000…” and also that she wanted the “matter to end but wants JP’s opinion”[46] – obviously a reference to Ms Palios.
[45] Exhibit P3 p228
[46] Exhibit P3 p233

Ms Palios discussed the situation with Mrs Shore over the telephone the following day. According to her file note, Ms Palios advised this sum and even $123,000 was not sufficient “to cover her future loss” and “that is the max, should try to get the max.”[47] The note continued “she instructed to reject 110,000 and counter offer $123,000”. The accuracy of these instructions are confirmed by Mrs Shore’s letter of 22 June to the same effect, by which she requested her solicitors to “pursue for the amount recently discussed as being $123,000”.[48] This coincides with the file note and suggests Mrs Shore’s perception was that she was being advised to settle for that amount.
[47] Exhibit P3 p234
[48] Exhibit P3 p236
However on 31 July, it was apparent that the maximum overall offer put forward by WorkCover was going to be $116,500. Ms Palios sought instructions as to Mrs Shore’s desire to accept this, in her letter of 31 July.[49] By her response received by the defendants on 7 August 1998, Mrs Shore accepted the settlement proposal, instructing her solicitors to “go ahead and settle my claim and request this be finalised as quickly as possible”.[50] In the meantime Mrs Shore left a message to accept this latest offer and requested quick settlement within a few weeks.[51] An account rendered on 17 August, for work undertaken was then drafted, at the request of Mrs Shore.[52] No advice was given so far as the file records suggest, either to accept or reject this offer. It may be noted that although offers were made in varying amounts throughout the entire process in order to achieve a global resolution of all claims, the sums proposed for redemption remained constant.
[49] Exhibit P3 p238
[50] Exhibit P3 p240
[51] Exhibit P3 p239
[52] Exhibit P3 p252
The redemption agreements
After receiving the formal documentation from the solicitors for the WorkCover Corporation on 18 August 1998, Ms Palios advised Mrs Shore in writing that before signing, she was required to receive financial advice concerning the investment or use of money to be received on the redemption payment. She also had to furnish a certificate by a medical practitioner certifying the extent of the incapacity resultant from compensable disability and also confirming that a professional legal advice certificate was executed. These requirements mirror those in s 42(2) of the Workers Rehabilitation and Compensation Act 1986 (SA), summarised later. An appointment was made to see Ms Palios for the purpose of signing the redemption agreements on 21 August 1998.
The evidence of Mrs Shore was that when she attended on this occasion, she was shown into a Boardroom. Ms Palios entered and presented documents for her signature. She added that a male person later produced a single document for her to sign as well.[53] She asserted no advice of any substance was given with respect to the effect or contents of these redemption agreements, which she proceeded to sign without reading in any case.[54] On the other hand, Ms Palios claims extensive advice was given by her at this time, as well as by the male mentioned by Mrs Shore, the financial advisor, Mr Field.
[53] T123.75-124.5, 236.1-238.14, 242.26-247.28, 249.1-280.13
[54] Exhibit P3 p288 and 295 respectively
Both redemption agreements, one with respect to weekly payments and the other with respect to medical expenses, contain an Annexure A in identical terms concerning professional advice, both counter-signed by Mrs Shore. Neither referred in any detail to what the content of the legal advice actually was. An Annexure B acknowledges the receipt of financial advice. An Annexure C, containing the requisite medical certification, was also attached to each. The material portions of the certificates A, read:[55]
I, Marilyn Ella Shore, have received competent professional advice about the consequences of a redemption payment from Julia Palios. Although not limited to, I have received advice on the following:
1 That on the receipt of this redemption payment I have no further entitlement to weekly payments or medical expenses in relation to my compensable disability suffered on 3 July 1996, including all aggravations, exacerbations, deteriorations and all and any physical and psychiatric sequelae and any other injury to date;
2 That I am aware of the application of Section 35(6a) of the Workers Rehabilitation and Compensation Act, 1986 and I acknowledge that I will be taken to receiving a continuing weekly payment of $532.70 had it not been for this redemption.
[55] Exhibit P3 pp292 and 299
These agreements redeemed the liabilities for weekly payments and for medical expenses in the respective sums of $49,507.33 and $500, figures as mentioned, always fixed at those levels during the entire course of the preceding negotiations. Since the total settlement package was $116,500, this left $66,992.67, notionally attributable to the s 43 aspect of the claim.
As events transpired, Mrs Shore returned to work in around May 1999, at another aged care facility, the Salvation Army. This was initially for one afternoon a fortnight, before sustaining another work injury in July 2004.[56] Thereafter she returned to work for a period on light duties. She stopped working altogether in around May or June 2005 and eventually accepted a redemption of the liability for that injury in May 2008.[57]
[56] T129.3-130.24, 250.33-251.6
[57] T135.70-136.72 and Exhibit P13
The worker’s compensation scheme
At this point it becomes necessary to canvass the relevant provisions of the Act, as they applied in August 1998. The previous scheme was much different to that in place by the time Mrs Shore engaged the defendants. Initially the subject matter of redemption was regulated by s 42, which to summarise, provided the liability to make weekly payments could be commuted by way of a lump sum “representing the capitalised value of those payments”. Under that regime it was held in Workers Rehabilitation and Compensation Corporation v Quee[58] and affirmed in Hackett v Workers Rehabilitation & Compensation Corporation[59] that it was possible to commute part of the liability for weekly payments, provided that the commutation of all future liability did not yield an aggregate figure in excess of the prescribed sum.
[58] (23/6/94 unreported, Judgment No S4621), Full court of the Supreme Court
[59] (1994) 177 LSJS 451, Full court of the Supreme Court
The primary liability of an employer for compensable disability to an employee for work place injury derived from s 30. Once invoked, the employer became responsible in respect of the disability for the payment of medical expenses (s 32), compensation for non-economic loss by way of a lump sum for permanent compensable disability (s 43(1)), and for income maintenance by way of weekly payments (s 35(1)), theoretically at least until the worker reaches retirement age, which for the purposes of this case, was 65 years (ss 35 (5) & (7)).
The Full Court of the Supreme Court in Workers Rehabilitation & Compensation Corporation v Lu[60] interpreted s 43 to permit compensation both in relation to physical disability and for disability to the extent that it was attributable to mental injury. In so ruling the court appears to have accepted the proposition that:[61]
… it will be necessary in the case of every injury to distinguish between the disability attributable to physical injury and to the disability attributable to mental injury. The table will now be read as if, after each item, there appeared the words “to the extent that the disability is attributable to and only to a physical injury”.
Indeed, to cover a case like the present case, one would have to read each item as if there were further words excluding a disability attributable to a mental injury which was itself the consequence or product of a physical injury.
[60] (1995) 183 LSJS 193 judgment no. s 5245
[61] Above at 202
The actual level of the weekly payment was determined according to what the Act refers to as “the worker's notional weekly earnings” (s 35(1)(a) & (1)(b)), an expression defined in s 3 to mean the worker's average weekly earnings, adjusted to take account of changes in the level of earnings. For the first year following injury the worker was entitled to payments equal to the notional weekly earnings, but for the second only to the extent of 80 per cent thereof (ss 35(1)(a) and (1)(b) respectively).
Over the course of those first two years, partial incapacity for work was treated as total, unless the compensating authority could establish suitable employment was reasonably available to the worker (ss35(1)(a)), whereas at the expiration of two years, the onus then fell on the worker to demonstrate suitable employment was not available (ss 35(1)(b)).
In the event of suffering further compensable disability, the worker was not entitled to receive any more than the notional weekly earnings for both (s 35(6)). As of August 1998, Mrs Shore’s notional weekly earnings were $532.70. The WorkCover Corporation was required to review the amount of weekly payments when incapacity continued for more than one year, as well as “in the second year of incapacity and in each subsequent year …” (s 38(1a)).
The obligation to make weekly payments was continuous, with certain exceptions not relevant here. Unlike the former regime those entitlements could be redeemed by mutual agreement, one that neither party could be “compelled” to make (s 42(9)). Even then, such agreements were ineffective until the worker received competent professional advice about the consequences of redemption (ss 42(2)(a)), competent financial advice about the investment or use of money to be received on redemption (ss 42(2)(b)), in addition to a medical certification that the extent of the worker’s incapacity could be determined with a reasonable degree of confidence (ss 42(2)(d)). Thus, the evident objective of the 1995 amendments was to provide for redemption by agreement rather than, as had been the case in the past, according to a more highly regulated regime which previously paid heed to “the actuarial equivalent of the recurring liability’: Tsimpinos v Workcover Corporation (K and A Transport) Pty Ltd.[62]
[62] [2001] SAWCT 138 at [31]
When Mrs Shore executed the two redemption agreements, one for medical expenses and the other for income maintenance on 21 August 1998, she was then aged 52 years, so that she was effectively precluded from receiving any further weekly payments in respect of the 1997 injury to age 65, that is over the following thirteen years, and for life in the case of future medical expenses.
At this time the following sub-sections to s 43, introduced in the Workers Rehabilitation and Compensation (Administration) Amendment Act[63] applied and had been in force since 25 May 1995:
(6) A worker is not entitled to receive for two or more disabilities weekly payments in excess of the worker’s notional weekly payments.
(6a) If a liability to make weekly payments is redeemed, the worker is taken, for the purposes of this section, to be receiving the weekly payments that would have been payable if there had been no redemption.
[63] No 49 of 1994, s 8
In its original form, first introduced by s 6(b) of the Act No 84 of 1992, ss 43(6a) reduced the quantum of the weekly payment in respect of substantial disability “to such extent as may be fair and reasonable”, but from 1 July 1994 it was cast in much the same language as quoted above.
It was in Ryan v WorkCover Corporation/CGU Workers Compensation (SA) Pty Ltd (Kellyvale (No 40) Pty Ltd (Samech Labour))[64] delivered on 19 December 2000, that the Tribunal first considered the meaning of s 35(6a). A Full Bench ruled that 35(6) put “an outer limit on the amount of weekly payments that can be received for two or more compensable disabilities”, such that the worker is to be treated under s 35(6a) as continuing to receive weekly payments as if there had been no redemption.
[64] [2000] SAWCT 196
Then in Lloyd v WorkCover Corporation/Allianz Australia (Bi-Lo Pty Ltd),[65] the issue of construction was whether s 35(6), picked up the notional weekly earnings at the time of the first compensable disability, or at the time of the second.[66] This second quorum considered the approach in Ryan was correct, and the reference to notional weekly earnings in s 35(6) was to be the higher of the two. The Tribunal concluded that in order to calculate a worker’s entitlement to weekly payments of income maintenance, it was necessary:[67]
… to first ascertain the quantum of the notional weekly earnings on account of the earlier compensable disabilities as adjusted as at the date of the occurrence of the second compensable disability, and compare that figure to the amount of notional weekly earnings that the worker was receiving at the time of the compensable disability”.
[65] [2004] SAWCT 59
[66] Above at [27]
[67] Above at [39]
In that event the effect of redemption on the quantum of the weekly payments for the second injury “will depend on the operation of the agreement itself …”.[68]
[68] Dunn v QBE Mercantile Mutual Workers Compensation (SA) Ltd (Concept Freight Management Pty Ltd) [2005] SAWCT 64 at [40], Hannon DP
The pleadings and the respective position of the parties
The statement of claim (paragraph 22) alleges wrongful advice was given as to the plaintiff’s entitlements to compensation for weekly payments and medical expenses. It complains she should have been told the value of her combined entitlements to compensation by way of weekly payments and medical expenses, far exceeded $50,000. It further complains of the failure to undertake any computation of the dollar value of those entitlements for the future, the failure to explain the full terms and effect of s 35(6a), the omission to warn any future entitlements to weekly payments on account of subsequent work injury would be reduced by $532.70 per week, in addition to the failure to advise there was no legal requirement to accept any redemption when she was not at imminent risk of discontinuance or reduction. There are further allegations of failing to obtain the requisite competent financial advice on redemption, but that was not an issue pursued by her counsel in his closing submission, no doubt in light of the evidence of Mr Field.
The evidence of Mrs Shore was that she was given no substantial advice at all and that she relied at all times on the judgment and advice of Ms Palios. It was put to her in the context of the telephone conversation with Ms Palios of 22 June 1998, that she was told on a worst case scenario that if she accepted a redemption payment, her entitlement to weekly payments of compensation in respect of a second injury might be reduced on a “dollar for dollar” basis to match the amount of the weekly payments she was receiving prior to accepting the redemption payment. To this she responded:[69]
AI don’t believe I had it – this – these long conversations with her because I had no intentions of going back to work.
and later:[70]
That wasn't explained to me.
[69] T300.22-.33
[70] T301.34
Her evidence was consistently to the effect that she continued throughout to rely on the advice of Ms Palios, as she was not aware of her entitlements, but was always prepared to take the legal advice if the solicitor “thought that was the best for me”.[71]
[71] T99.28-.36, 116.5-.117.12, 119.11-.13, 166.10-167.23, 176.14-.17, 188.3-.6, 202.1-.14, 301.6-.9, 302.1-.4
The defence pleads that at the conciliation conference of 25 June 1998 the plaintiff was strongly advised not to accept the offers made that day. It claims advice was squarely along the lines that if she did, there would be no further entitlement to weekly payments and she would be responsible for all future medical expenses. Other consequences concerning eligibility for the pension and as to the preclusion period with the Department of Social Security were also explained, however these are not otherwise relevant to this action.
The defendants also plead Mrs Shore was advised that she was entitled to remain “on the system” on 25 June 1998 (paragraph 21), would continue in receipt of weekly payments and medical expenses (which were likely to be substantial), and to proceed with her Notice of Dispute in relation to the s 43 assessment (paragraph 21). These pleas accord in general with the terms of the advice recorded in the correspondence sent to Mrs Shore and in the various file notes maintained by the defendants, as detailed above.
The oral evidence of Ms Palios took the advice alleged to be furnished, appreciably further than either the pleadings or the written records. She deposed to giving additional advice in the face-to-face meetings of 22 January, 25 June and 21 August 1998, as well as during the telephone conference of 22 July. These occasions are summarised above. During the course of her evidence, Ms Palios explained that from 1996 it had been her practice to appraise clients in relation to the consequence of accepting redemptions, in these terms:[72]
We would warn them, if they chose not to take the redemption, that there is a possibility that there may be a discontinuance of weekly payments compensation or a reduction of weekly payments if there is an incapacity to work, and we also advised them that the redemption agreement would affect future claims. At that time, because the WorkCover agents negotiated the s.35(6)(a) figure in accordance with the tables, the main issue that we would explain to our clients was that that figure may affect all claims for all bodily injuries, not just the injury that the worker was receiving the compensation for. So that was our main concern at that point in time. They also explained that if they lodged a future claim for compensation for the same body part, then they would more likely than not - or they may - I shouldn't say 'more likely than not' - there was the possibility they may loss dollar for dollar the s.35(6)(a) figure for future claims. An alternative to that was once the redemption lump sum was used up, that a closed period would be set for the redemption lump sum to be used up before they could lodge a further claim for that particular body part, or the problem was that it might be applied for all injuries, not just that particular body part. Because the s.35(6)(a) was in accordance with the lumps tables, it was the reduction from future claims that was our main concern, it was its application to all body parts, but the advice was given.
[72] T355.31-357.27 and see also her evidence at T361.26-36.24, 387.22-391.14, 464.38-465.9, 467.7-468.17, 481.16-.24
When asked by her counsel to elaborate on the meaning of the expression “dollar for dollar” coined by her, she added:[73]
Well, if a worker agreed to a redemption package and then returned to work and sustained a further injury and lodged a fresh claim for compensation, their weekly payments compensation would be reduced, as I said, dollar for dollar. So if you agreed the s.35(6)(a) figure at $25, you would lose $25 in your weekly payment with your new claim. If you agreed the s.35(6)(a) figure at $200, then if you re-injure yourself and lodge a further claim you will lose the $200. That would be in the first year. At that point in time, I mean it was too complex to try and explain what the affect would be in the second year but it is quite clear that if your s.35(6)(a) figure is less than the 20 per cent, then you don't lose it in the subsequent years, but in Ryan 2 the WorkCover Corporation or its agents tried to reduce the s.35(6)(a) figure from the 80 per cent figure rather than from the notional weekly earnings and then calculate the 80 per cent. So it was very uncertain at the time. We knew it was going to have an effect, we just didn't know what the effect was going to be but we did know the worst situation was dollar for dollar.
[73] T364.27-365.14

Ms Palios went on to explain that whilst negotiating on behalf of Mrs Shore, she was well aware there were uncertainties as to how s 35 might be interpreted in future claims and she would have tried to convey this to her. In particular she said that her invariable advice would include a reference to the “worst effect … a dollar for dollar effect, which is any figure that we agree pursuant to s.35(6)(a) of the Act is going to impact on a dollar for dollar basis in future claims, if that occurred.”[74]
[74] T388.13-.29
Negligence – general principles
It was the rule for many years based upon the enduring legacy of Groom v Crocker,[75] that a solicitor was liable to a client only in contract. It is now universally accepted that concurrent liability applies in both contract and tort: Astley v Austrust Limited[76] and Midland Bank Trust Co Ltd v Hett and Ors.[77]
[75] [1939] 1 KB 194
[76] (1999) 197 CLR 1 at 44, 130 and 142
[77] [1979] Ch 384 at 403 per Oliver J “what a reasonable competent practitioner would do having regard to the standards normally adopted in his profession…”.
The content of the duty of care was propounded by Deane J in Hawkins v Clayton as being:[78]
… answered by reference to the standard or measure of care which was reasonable in the circumstances … [namely] … the care and skill to be expected of a qualified and ordinarily, competent and careful solicitor in the exercise of his profession.
[78] (1988) 164 CLR 539 at 580
This was essentially the test applied in Austrust v Astley.[79] On the other hand, the solicitor is not to be taken as being “gifted with powers of divination, or to exercise extraordinary foresight, learning or vigilance”.[80] Nor in the context of new legislation of uncertain construction, is the solicitor expected to speculate as to what might later become accepted principle: Heydon v NRMA Ltd.[81]
[79] (1993) 60 SASR 354 at 371, affirmed in this respect (1996) 67 SASR 207 at 224-230
[80] Jennings v Zihali-Kiss (1972) 2 SASR 493 at 512-513 per Bray CJ
[81] (2000) 51 NSWLR 1 at 653 per Ormiston A. JA
The defendants held out to be experienced and qualified in the specialised areas of personal injury and workers compensation. The content of their retainer squarely fell within the four walls of the plaintiff’s entire entitlements to workers compensation, consequent upon the 1997 workplace injury. The principles articulated by King CJ in F v R[82] albeit in the context of a specialist doctor, apply in this context:
The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. The standard of care is that to be expected of an ordinary careful and competent practitioner of the class to which the practitioner belongs. The standard required of the appellant was therefore that of an ordinary careful and competent specialist in gynaecology.
This decision was cited with approval in Rogers v Whitaker,[83] when it was held “the standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill”.[84]
[82] (1983) 33 SASR 189 at 190-191
[83] (1992) 175 CLR 479 at 488
[84] (1992) 175 CLR 479 at 483 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ
Thus, the duty of care owed by the defendants is that of the ordinary skilled solicitor exercising and professing to have special skill or expertise in workers compensation claims under South Australian legislation. This is in keeping with the formulation of Malcolm A-JA in Heydon v NRMA Ltd:[85]
In my opinion the approach adopted in Rogers v Whitaker is applicable to the duty of care of legal practitioners and the standard of care. Both barristers and solicitors owe a duty of care to those whom they advise or for whom they act. In the present context, their duty is to exercise reasonable care and skill in the provision of professional advice. The standard of care and skill is that which may be reasonably expected of practitioners. In the case of practitioners professing to have a special skill in a particular area of the law, the standard of care required is that of the ordinary skilled person exercising and professing to have that special skill.
[85] (2000) 51 NSWLR 1 at [146]
Findings of fact
In this particular case there is a stark conflict in the respective recollection of both parties. The plaintiff claims she was given practically no advice, whereas the defendant says extensive advice in written, and then expanded in oral form, was given in complete discharge of the duty of care. Neither was deliberately lying about this. For her part the plaintiff was a patently honest witness, whose memory is nonetheless severely compromised by a combination of the passage of time, the complexity of the subject-matter, the effect of age and recent invasive medical treatment.[86] Indeed she endured three days in the witness box and a meticulously exhaustive cross-examination, with unassuming dignity.
[86] T228.6-.9, 244.25-.26
For her part the practitioner was certainly demonstrative at times, but this was perfectly understandable. She was under attack for alleged incompetence, and at other times for being less than candid. It then falls to the court to determine the probabilities so far as what advice was, and if applicable was not, furnished to Mrs Shore. The court must thus look to the objective facts it finds to be proved, to consider what inferences properly arise from those facts and to judge the circumstances from the relevant likelihood of the events occurring in a particular way, rather than others.
In a nutshell the plaintiff’s case is that the defendants advised her to enter into the redemption agreements when there was no pressing necessity to do so. The defendants’ position in its simplest form is that the plaintiff wanted her claims resolved and finalised promptly and was fully appraised of the consequences of redemption.
It is not possible to accept the evidence of the plaintiff that she was given no substantial advice at all. In the first place that stance is inconsistent with the defendants’ letters of advice, some of them confirming the terms of oral advice previously rendered. Secondly, her recall was shown to be quite imperfect when she claimed to have kept all her solicitor’s correspondence, when clearly she had not. Thirdly, when it came to signing the agreements, her evidence of having received no legal or financial advice is quite inconsistent with the evidence of the financial planner Mr Field, who deposed to having a substantial conversation with her on that day.[87] This is supported by the notes he made at the time. Parts of the contents of those could only have emanated from Mrs Shore herself.[88] It is further supported by the letter he wrote afterwards.[89] Finally, her evidence cannot stand against the file notes of conferences with Ms Palios on 22 January, 25 June and 22 July. The general terms of these are detailed above. In the end these clearly demonstrate detailed legal advice must have been rendered, in terms recorded therein. And for what it is worth, it is more likely than not that she did go along with the notice of dispute in early 1998, as none of her letters express any surprise that this was done, or any dissent with that course, later on.
[87] T491.1-498.28
[88] Exhibit D35
[89] Exhibit D18
Counsel for the defendants, Mr Doyle, was critical of the case for the plaintiff, on account of the failure to call her friend Ron Stuart, who was present on 21 August when the redemption agreements were signed and present on the other occasions she came into the defendants’ offices. He can certainly be regarded as being “in her camp” so to speak, and he was certainly available to give evidence, as he sat in the public gallery for the better part of the trial.[90] This might ordinarily have given rise to an inference that if called, his evidence would not have assisted her case, under the well known principle of Jones v Dunkel.[91] The shortcoming in this submission is that this circumstance throws no further light on what the precise discussions between the parties may have been, and it takes matters no further than the conclusion already reached that Mrs Shore’s recollection is flawed.
[90] T168.19-.21, 225.18-227.15
[91] (1958) 101 CLR 298 at 308, and 320-321
Based on all the evidence adduced in this case, the conclusion is inescapable that Mrs Shore was advised in no less terms than contained in the file notes and as detailed in the correspondence. It follows that the content of that advice was to the general effect, so far as relevant to the claimed particulars of negligence, that upon redemption there was no further entitlement to income maintenance or medical expenses, that in the event of subsequent work-related injury, her entitlement to income maintenance may be reduced and that if she declined redemption, she would continue to receive weekly payments and would continue to receive further medical expenses, thought to be “substantial”.[92]
[92] The practitioner’s letters of 16 June and 1 July 1998
It also follows that Mrs Shore was consistently advised to reject various successive offers to redeem, but then unaccountably advised by way of recommendation to accept $164,276.97,[93] and later $123,164.55.[94] Advice was clearly furnished to settle for $123,000 during the conference of 22 July, but this was rejected by WorkCover, which counter-offered the $116,500 ultimately accepted by Mrs Shore. This was communicated to her without comment in the letter of 31 July. It is apparent that the solicitor was recommending settlement in general, but at not less than $123,000, in particular. It is also apparent that as she had immediate needs, Mrs Shore was prepared to forego the difference of $6,500 as a trade-off in order to finalise matters quickly.[95] At the same time she continued to act upon the advice of the solicitor in the belief that $123,000 was the maximum she could ever achieve, as well as upon the recommendations to settle as so expressed in the letters of 22 June and 1 July 1998.
[93] Letter of 22/6/98
[94] Letter of 1/7/98
[95] T451.4-462.25, 465.86-467.6
However as noted earlier, the case for the defendants goes significantly further than resting on the advice recorded in the correspondence and on the various file notes. They assert these were supplemented by the further advice to the effect that there was the possibility Mrs Shore would lose “dollar for dollar the s.35(6)(a) figure in the case of future claims”, namely $532.70.
An astonishing feature of this case is that there is nowhere to be found, any reference whatsoever in any of the contemporary records, reflecting the fact that advice along these lines was ever given. It is inconceivable that of all the advice proffered and opinions expressed over the period of twelve months or so, some of it quite detailed in relation to other topics of lesser importance, that some record would not have been made, had the advice along the claimed lines been given. It is difficult to appreciate why it was not confirmed or referred to in any of the many letters sent to Mrs Shore, still less in any file note, or why there is no reference to the settlement being affected against that advice.
This is precisely what Ms Corrigan did in terms, when reporting to Mrs Shore on 25 November 1997 “we confirm your instructions to accept …” and “we confirm also our previous advice …”.[96] Likewise there is nothing on either side of the correspondence confirming that Mrs Shore desired to settle, notwithstanding Ms Palios’ advice. To the contrary, at least two of her letters affirmatively recommend settlement and Mrs Shore’s own writings show she was constantly seeking the opinion of Ms Palios. Although the solicitor claimed not to be a good note keeper[97] (a fact not entirely self-evident from such of the records as were made available to the court), there are various notes of the other advice she gave, but remarkably nothing along the lines presently under discussion.
[96] Exhibit P3 p44
[97] T366.31-32, T396.35-37, T416.16, T456.18-20
These observations are reinforced by the solicitor’s admission during the course of her evidence that the settlement was ill-advised. She volunteered under cross-examination “$50,000 was inadequate to compensate her for her future losses in my view”.[98] Earlier she was tested on the possibility of having reconstructed her position:[99]
[98] T448.15-.16
[99] T436.24-437.16
QYou had no actual memory of any advice that you gave from the plaintiff that is not evident from the face of the file, do you accept that.
ANo, I don't. My telephone attendance with Ms Shore on the 22nd, I believe, of July I do remember because it was ridiculous to settle her case for such small amounts of money and that I do remember. There are some things that, for some unknown reason, people remember. That telephone attendance, I remember.
QSo there is something about that note that prompts a memory.
AShe went against my advice and she gave me a ridiculous reason for going against my advice.
QShe didn't go against your advice.
AAt the end she did. She went against my advice even to put that other proposal. She wanted to pay for a particular item and to pay my costs and that was the basis for her to try to instruct me to accept an offer. That is what I remember. You need to ask her why she did what she did.
QI will come back to that. Can we just finalise this. The evidence you have given to his Honour about the advice that you gave, that is not reflected in the written notes that are made, it is entirely a reconstruction on your part on the basis of what I will call your present understanding of your then practice.
AIt is not a complete reconstruction. Some of it is but some of it, from reading the file, is my memory of the file.
QI suggest most of it is.
AI would not go to say most of it. I have to disagree.
The plain fact of the matter is that by the time Mr Carabelas first wrote to her, Ms Palios had no independent memory of the plaintiff, or of this case.[100] It became apparent during the course of her evidence that she was completely dependent on the file together with the usual or standard practice so far as giving advice went. She clearly retained no independent recollection of particular events or specific discussions, as the above exchange rather starkly illustrates.[101] This state of affairs is neither unreasonable nor unexpected, as she ran at any one time hundreds of files, the majority in workers compensation, and was very busy keeping no less that four secretaries occupied with her work-load. Given these considerations and accepting these events occurred ten years previously, reconstruction was inevitable.
[100] T435.3-436.23
[101] T452.15-.25
The inherent, indeed unavoidable risk of reconstruction, was no more evident than when it came to recanting the terms of the advice given on 21 August, when the agreements were executed. After stating, for the first time, that in the process of advising Mrs Shore “on the s.35(6)(a) figure [she] would have given her an estimate of what that figure would be worth to the age of 65”[102] (which she then estimated to have been over $300,000) her evidence continued:[103]
[102] T470.33-.35; compare her other evidence of T438.15-439.36, T444.33-446.20
[103] T470.36-473.8. The reference in this to Luntz is to the Table 4B in Luntz “Assessment of Damages for Personal Injury and Death, (4^th Ed), Butterworths Australia 2002, refer T59
QIs that a calculation that you have just done now or the advice you gave her at the time.
AJust done that now.
QYou have no recollection of giving such advice at the time.
AYou asked me if I could calculate and that is the sort of figure I would have given her on this day, looked at the Luntz table, looked at the fact 52 years old, multiplied it with the Luntz table which states to the age of 65, and I would have multiplied that figure with the Luntz table figure and I would have calculated that before I entered the interview.
QIt was never put to my client that you conducted some calculation and put to the plaintiff on this occasion the capitalised value of $532.70 per week.
AYour client stated that I did not even talk to her, that I gave no advice.
QYes.
ANothing happened at that interview.
QYes, exactly.
AWhich is totally wrong.
QMr Doyle put to her what actually was said by you and he didn't make any reference to what you are now telling his Honour about putting to her a sum that represented the capitalised value of $532.70.
AI can’t control what counsel asks.
QYou know that you had the capacity to instruct your counsel to put something further if something was missing, something as critical as this to your case. You understood that.
AWell, I can't comment on that.
QYou were passing Mr Doyle notes throughout the cross-examination of my client of things that you considered should be brought to his attention, weren't you.
AYes, I was.
QWell, you didn’t pass him a note at this stage saying “Ask her about me telling her what the capitalised value of $543.70 was”, did you.
AWell, that is my error in that Mrs Shore could not remember anything that happened so there was nothing to put to her. She could not remember.
QI put it to you that you didn’t attempt to have that put to my client because you have no recollection of anything of the kind actually occurring at that meeting.
AWell it depends how the question is asked. You asked me what would my calculation be. I quickly did a calculation for you at this moment. His Honour asked me if I would have put a ballpark figure to her. My answer is I would have. I believe I would have.
QYou have just given that evidence because you think it might assist your case. That's the position, isn't it.
AWell, no, that is incorrect.
QYou have no recollection of that occurring, do you.
AI signed a certificate stating I gave that advice. I take that very seriously. So I would not sign a certificate that I provided. Whether I remember it or not, I would not sign a certificate I gave advice on a particular topic if I did not give advice on that topic.
QI will put the question again. You have no recollection of giving such advice at the time.
AI am – well, in terms of do I remember the actual discussions on the particular day? The answer is no, I do not, but I do know what my general advice to my clients are. I am merely saying what I would normally do at these interviews.
QScattered throughout the file are calculations made by you of the plaintiff's s.43 entitlements.
AYes
QThere is nowhere in the file evidence of you ever making any actuarial calculation of the capitalised value of the weekly payments.
AThere are lots of calculations that are not on the file, including the s.43 actual calculations. So no, there is no calculation on the file but that does not mean that the calculation was not made but I can't comment. It is not on the file.
Quite apart from any implications inherent in the failure to cross-examine the plaintiff, which the court does not proceed to resolve adversely to Ms Palios, it became all too evident as she eventually conceded, that this process was no more than abject reconstruction. It was equally evident that the impromptu volunteering a capitalised figure on this occasion was very much by way of an after-thought.
The inescapable fact is that there is no note suggesting any attempt at a calculation of that kind, no reference anywhere to any such figure, and tellingly no assertion until this moment in the trial, of ever having done so on 21 August, or on any other prior occasion for that matter. The resort to the bare note in her own handwriting on the file copy of her letter of 18 June 1998 “1946…52 years”, in order to underpin this assertion, only serves to demonstrate how strained the attempt became to explain the absence of such records.[104]
[104] Exhibit P3 p157

In addition, it is surprising there is no reference in Mrs Shore’s own correspondence to any advice along the lines claimed. At times she wrote in some detail, referring to advice in terms that was given to her, but nothing remotely suggestive of the fact that the “dollar for dollar” topic was raised appears in her letters or telephone messages. It is likely, although not inevitable in light of the nature and content of her other correspondence, that had she been so advised some reflection of the terms of that advice would have surfaced, especially if she was told not to settle and even more so if figures at over $300,000 were suggested to her as the potential value of the rights she was about to sign away for good.
Counsel for the defendants in his closing address sought to buttress the criticisms of her evidence by Mr Stanley QC, by pointing to evidence given by Ms Palios in late August 2001 during a hearing in the Workers Compensation Tribunal in Cunningham v Workcover/ Mercantile Mutual Insurance (Wingfield Bottle Depot).[105]There Deputy President Gilchrist held a worker signing an acknowledgment of receiving competent professional and financial advice as to the consequences of a redemption agreement, was estopped from asserting otherwise in proceedings in that Tribunal under the Act. During the course of giving evidence in that case, Ms Palios is recorded as stating that as of May 1997, amongst other things:-[106]
… at that point in time we would advise our clients that there might be a dollar-for-dollar application of the figure…(W)e would advise the client that if they sustained a further injury - any injury to any body part - the figure agreed would be reduced from their weekly payments of compensation and we would advise them that that would be the worst scenario.
[105] [2001] SAWCT 145
[106] Above at [183]
Mr Doyle explained that through oversight on his part, Ms Palios was not led to give evidence affirming this advice was given in the quoted terms to her clients as a general practise since 1997. Assuming that she gave that evidence in these proceedings for the present purpose, the question is whether that evidence supports the conclusion that the same or similar advice was given to Mrs Shore?
The inherent problem with this line of reasoning is that this evidence was just as likely to have been reconstructed. Indeed the Tribunal expressed the reservation that her recollection of events over four years previously was based upon the memory of the imprecision of her dealings with the worker, rather than upon an actual memory of what happened. The Tribunal therefore “placed greater weight on the contemporaneous written records”.[107] If it was so then, it must be even more so now. The submission must be rejected as no more than a “bootstraps” attempt to support evidence containing the same flaws, or worse, as that it purports to underpin.
[107] At 38-40
Secondly, had this been the invariable practice for some time as of August 1998, it becomes even more incomprehensible that there is no corresponding reference in the somewhat standardised written advice generated during 1997 and 1998.[108] For these combined reasons the Court is unable to be satisfied that the additional oral advice over and above that recorded in the written records was given to Mrs Shore, for the distinct probabilities are that it was not.
[108] See for example the letters of 23/9/97, and 16 June and 1 July 1998 and T410.223
Was there a breach of the duty of care?
There is no doubt the practitioner was engaged to advise on all aspects of Mrs Shore’s workers compensation claim. This retainer carried with it the obligation to advise her on all matters associated with the retainer that she needed to know: Austrust Pty Ltd v Astley[109] and to bring to attention any aspect of the proposed redemption that may have been unusually onerous to her: Amadio Pty Ltd v Henderson.[110]The content of the duty of a reasonable practitioner versed in the jurisdiction was to inform her of the consequences of redemption, both as to weekly payments and medical expenses aspects, the practical effect of s 35(6a) upon redemption of her entitlements to weekly payments in the event of another injury and as to the potential value of what she was forgoing upon redemption. On the above findings the practitioner discharged the duty in relation to the loss of entitlements to weekly payments and for future medical expenses.
[109] (1993) 60 SASR 354 at 372
[110] (1998) 81 FCR 149 at 210-215, Northrop, Ryan and Merkel JJ
When it comes to the effect of s 35(6a), the advice given was qualified in two respects; firstly the subsequent entitlement to weekly payments on further work injury might be reduced; and secondly there might be some allowance for that because of the redemption payment. The subject matter of s 35(6a) was known at least since the amendments of 1992 to be the reduction in the level of weekly payments for subsequent injury. The discretionary prospect of reduction was made obligatory by the 1995 amendments.
The areas of ambiguity as of August 1998 did not relate to the topic of reduction. These related to the level rather than the fact of reduction; was it to be 100 per cent or 80 per cent of the notional weekly earnings and was this with respect to those earnings as at the time of the first or second injury? Another issue yet to be resolved related to whether the section operated only with respect to comparable injuries, or as to all later injuries, no matter what they were.
The duty of the practitioner was to advise that the future level of weekly payments upon subsequent work injury would be reduced by the sum nominated in the redemption agreement. This the practitioner did not do on the above findings. Although the agreements acknowledged she would be taken to be receiving a continuing weekly payment of $532.70, no advice was given as to what this meant. The evidence of Mrs Shore was that she was not given any advice that her income maintenance payments would be reduced by any particular sum, still less by $532.70.[111] She was not cross-examined with a view to contradicting that assertion. It was put to her those entitlements “might be reduced on a dollar for dollar basis to match the amount of the weekly payments that you were receiving prior to completing the redemption payment”.[112] The advice therefore fell short of the appropriate standard, because it was provisional and because it failed to specify in dollar terms the level, or the potential level of reduction. In light of the fact that the legislation removed independent judicial review of redemptions and no longer imposed any principles upon which the redemption was to be calculated, as three members of the Tribunal noted in Tsimpinos v Workcover Corporation (K and A Transport) Pty Ltd:[113]
…a decision whether or not to redeem a future entitlement under the Act is one of the more important decisions that a worker may be required to make in connection with his/her compensation claim, and may have significant implications for the future…
[111] T127.6-.27
[112] T300.22-.33
[113] Above at [38]
If, contrary to these findings, the “dollar for dollar” advice was in fact given, that too fell short of the expected standard for substantially the same reasons. It remains qualified in the same ways, and it did not bed down what the “dollar for dollar” reduction actually meant and what it would or could be. There were no particular circumstances relating to this case under which it is conceivable that there would be no reduction in the event of a subsequent compensable injury.
This then leaves for consideration the advice concerning the potential rights thrown away upon redemption. At the very heart of the concept of redemption lies the notion of “fair exchange” of one right for another: Harrington v Harrington.[114]Mrs Shore was looking for precisely this quality of information - what was “fair and reasonable” as she expressed it in her letter of 20 June. The practitioner gave no advice as to the potential amortised value of the combined present day entitlements. She gave no realistic basis upon which to compare the two, or to consider whether “fair exchange” was on offer. As of August 1998 Mrs Shore was in receipt of weekly payments carrying no immediate prospect of discontinuance. She was also receiving recompense for related medical expenses, anticipated by the practitioner to be “substantial”, even though they were not quantified at the trial. Those levels of entitlements, over a thirteen year working life before retirement, were capable of capitalisation on present day values. In theory at least, Mrs Shore was relinquishing entitlements in excess of $300,000, as the practitioner eventually acknowledged under cross-examination in the passage quoted above, not to mention a further significant component for the continuing medical entitlements foregone.
[114] (1981) 155 CLR 317 at 332
Once again the solicitor gave no such advice. The fact that sums of this order were possibly not capable of realisation – a subject considered later – is beside the point. The proper discharge of the duty of care required the solicitor to meaningfully quantify the potential value of the entitlements Mrs Shore was proposing to relinquish. Even then the breach of duty went further because Mrs Shore was not ultimately advised to “stay on the system” for as long as she could. At that point in time, until the prospect of discontinuance or reduction of her entitlements became critical, there was simply no need or imperative to redeem. On any view it was not in her interests to do so. Given that Mrs Shore remained in receipt of regular payments, and that there was no extant or immediate threat of discontinuance, advice was needed if only to emphasise that she was far better off remaining in that situation, than she would be by prematurely redeeming all her benefits. The plaintiff has therefore established a breach of the duty of care in those two respects: inadequate advice on the implications of s 35(6a) and the full consequences of redemption of present entitlements.
It is not to the point that Mr Field advised the settlement sum would only be enough to cover her needs for about two years.[115] This might have been sufficient to inform her of the value of what she was receiving, but it said nothing about that which she was losing. In any case, whatever he advised, cannot replace or discharge the duty of care residing in the practitioner. In some circumstances that fact may, depending on the actual content of the advice given, bear upon the issues of causation and reliance, but it does not do so in this particular instance. The advice of Mr Field was as to the prospective use of the balance of the settlement funds. It had nothing to do with the potential value of extant benefits thrown away and of course that advice did not intrude upon the effect of s35(6a) in any respect.
[115] T493.30-497.7 and Exhibit D18
Reliance and causation
There is no doubt that it is for a plaintiff to prove that if properly advised he or she probably would have not acted in the way they did: Skyes v Midland Bank,[116] Northwest Refrigeration Services Pty Ltd v Bain Dawes[117] and Hanflex v Hope.[118] Hence damages for loss suffered in contract or tort will only be awarded if the negligence or breach of contract of the solicitor causes the loss suffered by the plaintiff: Lillicrap v Nalder & Sons (a firm),[119] Amadio Pty Ltd v Henderson,[120] Bennett v Minister of Community Welfare.[121] The mere proof of negligence does not, of itself, sound in damages: St George Club Ltd v Hines,[122] Wardly Australia Ltd v Western Australia.[123]This is essentially a question of fact to be resolved by reference to common sense and experience: March v Stramere.[124] The principle was expressed by Hayne J in Chappel v Hart[125] in these terms:
The search for causal connection between damage and negligent act or omission requires consideration of the events that have happened and what would have happened if there had been no negligent act or omission. It is only by comparing these two sets of facts (one actual and one hypothetical) that the influence or effect of the negligent act or omission can be judged.
[116] [1971] 1 QB 113
[117] (1984) 157 CLR 149
[118] [1990] 2 QdR 218
[119] (1993) 1 WLR 94
[120] Above at 219
[121] (1992) 176 CLR 408 at 420-421
[122] (1961) 35 ALJR 106 at 107
[123] (1992) 175 CLR 514 at 527
[124] (1991) 171 CLR 506 – (refer also to the discussion in AWA v Daniels (1992) 7 ACSR 759 at 838 ff)
[125] (1998) 195 CLR 232 at 113
The test is a subjective one: Rogers v Whitaker[126], Chappel v Hart,[127] Rosenberg v Percival;[128] and Gover v The State of South Australia and Perriam.[129]
[126] Above at 490
[127] Above at 32 and 93
[128] (2001) 205 CLR 434 at 443
[129] (1985) 39 SASR 543 at 567
The correspondence demonstrates Mrs Shore habitually sought and relied upon the advice of the practitioner. This is most evident from the inquiries she directed to the practitioner in her letters of 26 May, 20 June and 4 July 1998 and from the incoming telephone calls of 1, 19, and 24 June and 21 July 1998. It is perfectly clear from these that she consistently accepted such advice as was given, and it is equally apparent from her compliance with advice given, at the conference of June 25 and during the telephone call of July 22.
It is unrealistic to suppose she was not advised to settle, for the letters of 22 June and 1 July were expressed in positive terms recommending precisely that. The Court cannot make findings as to what she did in 1998, on the basis of what she did in 2008 when she accepted a second redemption, as it is not known on what terms she was then advised and the general environment relating to compensation rights were significantly different at those respective times. Because her evidence is wholly consistent with her letters, the evidence given by Mrs Shore that she was reliant on the advice of Ms Palios stands only to reason.[130]
[130] T116.16-.117.12, 234.1-.15
In light of the findings already made as to the plaintiff’s complete reliance on the advice of the solicitor there can be no doubt that the failure to advise Mrs Shore in the two identified respects, coupled with the affirmative advice to settle, led her to sign the redemption agreements. Likewise, had she been properly advised, the overwhelming probabilities are that she would not have settled, but would have continued in receipt of weekly income maintenance and other associated benefits for as long as she could.
The assessment of damages
General principles
It was not ultimately contended by the plaintiff that any loss flowed from the mere failure to opt for the redemption of weekly payments and medical expenses. No doubt this was because the evidence of Ms Kerrigan and Mr Vandapeer, to the effect that WorkCover agents had authority to negotiate redemptions in relation to s 43 incapacity to a maximum of $50,000, that WorkCover policy was to settle or finalise all aspects of a worker’s claim together or not at all, and that $500 was inevitably allocated to the redemption of medical expenses in these circumstances.[131]
[131] T543.26-545.12, 548.12-549.17, 583,19-37, and the evidence of Ms Palios T482.30-483.7
Furthermore Mr Vandapeer, a previous claims officer with WorkCover, said it very rarely “gave approval to redeem above $50,000, and only then if the number of years to age 65 was high”, the notional weekly earnings were “very high” and there was “a pretty serious injury” involved.[132] As it happens, between 1995 and 1998 he was working for MMI in senior capacities in the workers compensation field. As none of these qualifications applied to Mrs Shore, based on this policy as arbitrary as it was, whatever the capitalised value of Mrs Shore’s claim for weekly payments was in theory, plainly it was never likely to be approved by WorkCover, whatever the merits. This practice is reflected in part and contradicted in part by the Exhibit D40, the so called “Morris” tables or guidelines. These contemplate redemptions of upwards of nearly $91,000, but in Mrs Shore’s circumstances, something in the order of $42,000.
[132] T585.122-586.22
Based on the payments then being made and acknowledging the sums actually paid to her since by way of wages and her other statutory entitlements springing from the second injury,[133] the plaintiff propounded a calculation of damages at $31,917, less 15 per cent for adverse contingencies, based on Wynn v NSW Insurance Ministerial Corporation,[134] thus producing a formulated claim of $27,129, plus interest. This calculation was founded on the aggregate loss over the years to age 65, less the redemption sum of $49,500.
[133] Exhibits P11-P14 inclusive
[134] (1995) 184 CLR 485 at 497-498
For their part the defendants did not as a question of principle dispute that the measure of the plaintiff’s loss commenced by reference to calculations of this kind. They emphasise this exercise must however confront other adverse contingencies, relying on Sellars v Adelaide Petroleum NL[135] and Chappel v Hart.[136]For that purpose they accept the “raw” calculations proffered by the plaintiff, but from that point onwards contend a number of demonstrable events serve only to reduce and ultimately eliminate the claimed sum.
[135] (1992-1994) 179 CLR 332 at 349-356
[136] (198) 195 CLR 332
As a question of principle damages flowing from the breach of duty of care, are to be to be awarded by placing the plaintiff in the position she would have been had she not redeemed, as of that date: Gould v Vaggelas,[137] Johnson v Perez,[138] Gates v the City Mutual Life Assurance Society Ltd,[139]Haines v Bendall[140] and Scarcella v Lettice.[141]
[137] (1985) 157 CLR 215 at 265
[138] (1988) 166 CLR 351 at 355-356, 359, 367, 370, 380 and 386
[139] (1986) 160 CLR 1 at 11-12 per Gibbs CJ
[140] (1991) 172 CLR 603
[141] (2000) 51 NSWLR 302
The relevance of the s 43 component
First, the defendants contend a reduction is necessary in respect of the permanent disability component, since without redemption the plaintiff would not have received $66,992.67 effectively attributable to that aspect of her case, as this was an integral part of the one settlement package. They claim the plaintiff had the benefit of an artificial “uplift” or a premium of $33,442.47, over and above the original determination of $33,550.20. This cannot be doubted because this was the only figure that changed during the course of negotiations and it was a component consciously inflated in order “to achieve a settlement”.[142]
[142] T603.9, 606.30-.33
It can therefore be readily accepted that the two went hand in hand, that is redemption and the s 43 component, in accordance with the evidence of Ms Kerrigan, Mr Vanderpeer and the practitioner. Without redemption the remedy at the instance of the plaintiff in relation to the outstanding lump-sum disability lay in pursuing her dispute to conciliation and then arbitration, or failing that to judicial determination. The dispute might of course have settled in the meantime. Given that the plaintiff had managed through her solicitors to garner more evidence on the psychiatric side, the probabilities are that whatever happened, this would have resulted in a figure higher than the original determination process, because that was struck without considering the psychiatric evidence which only became available later.
According to the psychiatric report of Dr Craig dated 26 December 2007, Mrs Shore suffered an adjustment disorder with depressed mood, partial incapacity her for work, which in his opinion “increased the disability she suffers to the above body parts to the percentile function of 15 per cent.”[143] Those “body parts” were specified as being the lower back and lumbar spine, neck and cervical spine, right shoulder and left shoulder. These pick up the disabilities identified in the medical reports referred to earlier. Based on the opinion of Dr Wright, MMI determined the s 43 figure at $33,550.20, whereas based on the report of Dr Guirguis of 17 April 1998, the practitioner calculated the figure at $53,435.18.[144] When she reassessed this with the benefit of Dr Craig’s later report, she got between $77,552 and $79,568:[145] The latter she put to Mrs Shore in the letter of 22 June 1998 and subsequently to the solicitors for MMI, Piper Alderman.[146]
[143] Exhibit P3, P81 at p85
[144] Exhibit P3, p122
[145] Exhibit P3, p167
[146] Exhibit P3, p178, 24/6/98

Because of the stance of WorkCover the only option available was to pursue a s 43 determination. This incapacity component of the claim was therefore unlikely to have been settled by agreement unless reached hand-in-hand with redemption. Ms Kerrigan considered the sum actually paid, though within range, was not one she would have recommended.[147] In any case the evidence of Ms Kerrigan was that she would not have recommended a payment as high as $66,992.67 standing alone, for the s 43 component of the claim, apart from redemption of the other liabilities.[148] Accordingly had she been negotiating a settlement of that in isolation, she would not have agreed to this figure or any other figure.
[147] T 562.7-35
[148] T555.18-556.31
It was submitted on behalf of the plaintiff that it was inappropriate to approach the assessment of damages on the basis of the likely outcome of the dispute or the likely award the Workers Compensation Tribunal, because the known fact is that she did receive $66,992.67, a sum for practical purposes allocated to the permanent disability claim, so the court should proceed on that basis. Although this is proven, the plain fact of the matter is that sum would simply have not been paid had Mrs Shore not redeemed.
At this juncture the court is required to assess the degree of probability that an event would have occurred, or might occur, and adjust its award of damages to reflect the degree of probability: Malec v J C Hutton Pty Ltd.[149] This the court has done by finding the probabilities are that the s 43 claim was destined for judicial determination given the proven policy and stance of WorkCover. Consequently it was more likely that if properly advised, Mrs Shore would have remained “on the system” until forced into a position to act. It follows from this conclusion that it is equally more than likely she would have pursued her dispute in the Tribunal on the s 43 assessment in order to gain a better outcome or more leverage, particularly if negotiations to redeem were being actively pursued or if steps were taken to reduce or discontinue her weekly payments.
[149] (1990) 169 CLR 638 at 643
In the result the probabilities are that she would not have agreed to accept any redemption settlement at about the two-year mark. It is not likely Mrs Shore would have abandoned the claim, given the notice of dispute remained alive and in light of the additional evidence assembled with a view to increasing the determined sum. Nor is it likely that it would have settled given the policy of WorkCover, so that the greater probability is that it would have proceeded to a contested judicial determination.
This is the very approach suggested by the High Court in Nikolaou v Papasavas, Phillips & Co,[150] where a majority of the High Court held:[151]
For reasons which are set out in some detail in Johnson v Perez (1988) 166 CLR 351), his Honour should first have focused on Mr Nikolaou's situation when his claim for damages for personal injuries became statute-barred. He should have assessed damages by reference to the loss at that date of the right to claim damages. That loss would ordinarily be quantified by the trial judge taking a broad brush approach to the several matters that in a particular case may require to be resolved — the likely date when in the absence of the negligence of the solicitor the action would have come to trial, the evidence that would or should have been available to the plaintiff at that time, the relevant principles of law then governing the assessment of damages, the question of contributory negligence, and (an issue which would not be a problem in the present case) the prospects of any judgment given in favour of the plaintiff being satisfied — in order to arrive at a figure representing the loss suffered by the plaintiff when his action against the defendant was dismissed.
[150] (1989) 166 CLR 394
[151] At 404 per Wilson, Dawson, Toohey and Gaudron JJ
It is also the approach taken in Hammond Worthington v Da Silva[152] and one dictated by Sellars v Adelaide Petroleum NL:[153]
Notwithstanding the observations of this Court in Norwest (1984) 157 CLR 149, we consider that acceptance of the principle enunciated in Malec (1990) 169 CLR 638 requires that damages for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s 52(1), should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued. The principle recognized in Malec was based on a consideration of the peculiar difficulties associated with the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts. Once that is accepted, there is no secure foundation for confining the principle to cases of any particular kind.
On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.
The conclusion which we have reached on this question finds support in other considerations. The approach results in fair compensation whereas the all or nothing outcome produced by the civil standard of proof would result in the vast majority of cases in over-compensation or under-compensation to an applicant who has been deprived of a commercial opportunity. Furthermore, it is an approach which conforms to the long-standing practice of taking into account contingencies in the assessment of damages.
[152] [2006] WASCA 180 at 115
[153] (1994) 179 CLR 332 per Mason CJ, Dawson, Toohey and Gaudron JJ at 355–356:
Assessing the s 43 dispute
Following the decision of the Supreme Court in Lu, the basis adopted in the Tribunal for assessing s 43 claims was articulated in a number of subsequent decisions. The approach in Nguyen v Arrowcrest Group Pty Ltd[154] of taking “into account the extent to which the psychological component is reflected in the function of the physical site of the disability” was upheld in Arrowcrest Group Pty Ltd v Nguyen.[155] As a later (unrelated) decision of the Tribunal illustrates, it is not a question of “an assessment of a level of disability based on physical examination to which is added a component for the intensification of symptoms caused by psychological factors”, it is one of ascertaining the product of the injury in terms of physical changes and in terms of the “manifestation of pain or the apprehension of pain, associated with a depressive condition which is itself a sequelae to the physical injury”: Nguyen v The State of South Australia (In Right of the Department for Administrative and Information Services).[156]
[154] [2006] SAWCT (2 December 1999) Parson DP at p15
[155] [2000] SAWCT 121 (11 August 2000), Full Tribunal
[156] [2006] SAWCT 45 (30 May 2006) at 12-13
The critical medical opinions bearing on the s 43 assessment, tabulate as follows:

Determination[157]

Dr Guirguis[158]

Dr Cullum[159]

15 per cent lower back and spine

15 per cent lumbar spine

5 per cent lower lumbar spine

10 per cent neck and cervical spine

10 per cent cervical spine

10 per cent cervical spine

25 per cent right shoulder

20 per cent right arm above elbow

20 per cent right shoulder

10 per cent left arm above elbow

10 per cent thoracic spine

[157] Based on Dr Wright 4 August 1997, Exhibit P33, p15 at 18 and report 16 March 1998 at p36
[158] 17 April 1997, Exhibit P33, p37 at 41
[159] 25 September 1997, Exhibit P33, p19 at 21

Based on these, Ms Palios calculated the potential s 43 entitlements at $29,128.14 (Dr Wright), $25,123.05 (Dr Cullum) and $43,682.02 (Dr Guirguis). At this point it appears she may have mistaken the left arm disability estimated by Dr Guirguis as being 15 per cent, when in fact it was 10 per cent, before considering the psychological component.[160] By adding 15 per cent to the disabilities assessed by Dr Guirguis, in order to factor in the “overlay” attributable to each as assessed by Dr Craig, she calculated the s 43 entitlement at $63,024.82.[161]
[160] Exhibit P3, p219-222
[161] Exhibit P3, p219
In his report of 21 October 1997, Dr Wright maintained his view as to the lower back and lumbar spine, but he deferred to the opinion of Dr Cullum in relation to the impairment of the thoracic spine.[162] On the question of the left shoulder, Dr Wright noted no abnormality on his first examination,[163] whereas during his examination of 9 April, Dr Guirguis saw that Ms Shore “has a frozen left shoulder”.[164]
[162] Exhibit P33, p27 at 29
[163] Exhibit P33, at 17
[164] Exhibit P33, at 18
It can be seen therefore, that in essence not much of a substantial difference in relation to the injuries suffered emerges from the various medical reports. On the other hand it would not be correct in principle to take the higher estimates in the later report of Dr Guirguis, as that would infringe the principles attributed in the Nguyen line of cases, cited above. In the result the general medical consensus and the aggregate percentage allocation to each disability is 15 percent to the lower lumber spine, 10 percent to the cervical spine, 20 percent to the upper right arm and 10 percent to the thoracic spine. No report was identified calling into question the opinions of Dr Craig on the psychiatric side.
This then is the approach most likely to be taken by the Tribunal which was bound to be called upon to resolve the dispute as it could not have settled by agreement for the reasons identified above. The absence of evidence from the plaintiff in relation to this exercise is immaterial, as it was not likely to add anything to what were essentially clinical medical appraisals, which were not stated to be dependent on her subjective complaints. In any case the court is constrained, to undertake this course because of the way in which both parties elected to conduct their respective cases. A book of medical reports was tendered by mutual consent.[165] Neither counsel sought to examine or cross-examine Mrs Shore – as they might have – with a view to establishing or undermining (as the case may be) the factual basis on which medical reports or expert opinions were dependant. That being so, the court must simply do its best on the material it has and in light of the manner in which the parties determined to present the evidence relating to the disabilities sustained by the plaintiff.
[165] Exhibit P33
Accordingly the probabilities are that the Workers Compensation Tribunal would have assessed the s 43 disabilities as indicated above, together with the additional psychiatric component assessed by Dr Craig of 15 per cent as to each body part. As the parties have not addressed the precise calculations based on these findings, even though neither suggested the practitioner’s calculations were inaccurate, they will be furnished the opportunity to do so before a dollar amount is calculated as the measure of a likely s 43 assessment by the Tribunal. The sum that this exercise generates and the $66,992.67 she did receive should then be brought into account.
If contrary to this approach, the s 43 dispute was more likely to have been achieved by way of conciliation and if it came to it by referral to arbitration under s 92D of the Act, the outcome would be somewhat different. The evidence of Ms Kerrigan was that the practise in cases of settlement was to negotiate at about a midpoint, effectively splitting the difference or by “compromise something reasonable in the middle between the highest and the lowest.”[166] Mr Vanderpeer gave evidence to like effect.[167]
[166] T548.34-549.2
[167] T607.6-.7
On this alternative approach the lowest point was that represented by the original determination of $33,550.20, whereas the highest was $63,024.82, so the mean is around the $48,000.00 mark. As Mrs Shore was willing to settle her case for $6,500 less than she was advised to, there was always some scope for giving ground on her part, but this suggests although amenable to compromise, she was not willing to give away too much. This consideration also furnishes an additional reason for thinking the matter was destined for a contested hearing. On this basis the alternative probability is that settlement might have been achieved at no less than the $42,000 mark. In either event the result was not likely to have affected any costs benefits otherwise potentially denied to her under s 93B of the Act.
Reduction or discontinuance of weekly payments?
Next the defendants submit the plaintiff would have faced the prospect of having her weekly payments reduced or discontinued under s 36 or because of the combined operation of ss 35 and 38 of the Act, and because of the so called “two year review” process. Although not recognised precisely as such by the Act, which is permissive rather than mandatory in this respect, a process could certainly have been initiated by WorkCover after two years of incurring liability by issuing a determination deeming Mrs Shore capable of earning in suitable employment an amount equal to or in excess of the notional weekly earnings fixed in relation to the 1996 compensable disability.
Doubtless at some point in time it would have considered the option of minimising its liability to make continuing weekly payments to the plaintiff, and might thereafter have moved to reduce them, but there is no evidence of any pressure or of any particular impetus to do so at that time. Her solicitor was confident on the evidence she had, that this contingency was not likely to arise.[168] In this regard counsel for the defendants did not point to the existence of any medical evidence suggesting Mrs Shore was capable of earning or working longer, so that the prospect of reducing or discontinuing her payments had not loomed as a realistic prospect by then.
[168] T395.11-396.11, 439.37-440.31
In any case by the time that process is likely to have been completed Mrs Shore was already back at work, so the probabilities are that in light of the events known to have matured, this fact would have overtaken the process, before it could be completed. Accordingly no discount or reduction for this factor is appropriate.
Other adverse contingencies?
The defendants push the submission still further by seeking a discount by upwards of 50 per cent, on account of other general contingencies. On that basis it was contended there could be no nett loss. The plaintiff was aged 62 years and 10 months as of the trial, and about 63 as of judgment.[169] As such there is a comparatively short period before the statutory retirement age of 65 for any adverse contingency to affect her and hence the assessment of damages for the future. When considering the likely loss for the future, regard must be had to the probability of certain events occurring and the award adjusted accordingly: Malec v J C Hutton Pty Ltd.[170]Even so as Windeyer J pointed out in Bresatz v Przibilla,[171] not all contingencies are necessarily harmful or adverse. None in particular were identified by defence counsel.
[169] dob 11/1/46
[170] (1990) 169 CLR 638
[171] (1962) 108 CLR 541 at 544
As she had worked very hard all her life, the probabilities are that Mrs Shore would have continued to work until aged 65 and if not longer, although she might have begun to reduce her workload afterwards. There is then no identifiable basis on the historical facts of this case to reduce the future component for damages by any more than the 15 per cent conceded on her behalf.
The potential for legal costs
The next contention was that a deduction should be made to reflect the level of legal costs that might be incurred in challenging the s 43 determination. It is common ground that a worker is entitled to secure costs against the compensating authority of 85 per cent of the Supreme Court Scale, so on the face of things that would have left a gap of 65 per cent as between that level and the fees agreement. No evidence was adduced by either party as to what they would have done, or agreed to, in this event and nor was there proof of the applicable scale at the time. To allocate any sum to this particular contingency is then as much arbitrary as it is speculation, and it must be remembered that based on the accounts that were rendered by the practitioner, Mrs Shore had already paid for this legal work anyway, up to the time of redemption.
In the absence of any estimate or calculation by the defendant of what those costs might actually be, the court is placed in a difficult position. Nevertheless it is duty bound to do the best it can by wielding a “broad-axe” in the light of the evidence that was actually placed before it: Commonwealth v Amann Aviation Pty Ltd.[172]Mason CJ and Dawson J said in that case:[173]
The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J went so far as to say that the "assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation". Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.
[172] (1991) 174 CLR 64 at 83, 125 (per Deane J)
[173] At 83, footnotes omitted.
On the basis that most of the legal work was completed, and that a trial of no more than two days was likely, the court allocates a relatively arbitrary sum of $2,500 as the measure of the 65 per cent difference between the potential legal fees Mrs Shore could recover and those for which she was obligated to meet for her own solicitors.
Use of lump-sum?
Finally the defendants submit Mrs Shore effectively had at her immediate disposal a significant lump sum. The proper assessment of damages must therefore be offset in effect, by the interest on those monies she has had the use of in advance of weekly payments. The submission seems to be a curious inversion of the principle established in Wheeler v Page & Harris,[174] permitting interest awards in common law claims for damages for personal injuries, applicable to that component of the award attributable to pre-trial non-economic detriments.
[174] (1982) 31 SASR 1
There are two fatal aspects to this submission. The first is that it misunderstands the object of an award for damages, which is to restore the plaintiff to the position she would have been in but the tortuous conduct. Had she remained on weekly payments, she would have been much better off than she was by accepting redemption, such that the value of the relatively meagre lump-sum would soon have been overtaken by the mounting value of her continuing statutory entitlements.
The second impediment is that this kind of exercise is not relevant to questions of damages at all, although it maybe when it comes to interest on any actual award, pursuant to s 39 of the District Court Act 1991 (SA), or under the provisions of s 30C of the Supreme Court Act (SA) 1935, as it was in Wheeler v Page & Harris.
Miscellaneous Issues

There were alternative pleas in misrepresentation and under the Trades Practices Act 1974 (Cth),[175] but as neither were pursued during the course of final submissions it is not appropriate to consider those alternative causes of action. It should also be noted that an article in the Law Society Bulletin of 6 June 1996 tendered by the plaintiff,[176] has played no part in this decision.
[175] Jurisdiction is invested by s 86(2) thereof
[176] Exhibit P34
Conclusions
For the reasons identified above, the memory of Mrs Shore is deficient in relation to the advice given to her by the practitioner. The court therefore finds she was advised in terms no less than those expressed in the letters passing between the parties and as recorded in the file notes. On the other hand the court is not prepared to accept the advice went any further than these, because of the complete absence of contemporary records to the effect that any further entitlement to weekly payments would be reduced “dollar for dollar” or by $532.70 or anything like it, or that the plaintiff was advised of the potential capitalised present-day value of the entitlements she was relinquishing. Accordingly the practitioner’s advice fell negligently short in those two respects.
On the question of damages flowing from the deficient advice, the Court finds the aggregate value of weekly payments forgone was $27,129. This must be reduced to reflect the difference the plaintiff was likely to receive by way of judicial determination based on the findings of incapacity made above and the sum of $66,992.67 effectively allocated to that portion of her claim, and by a further $2,500 on account of additional legal costs she is likely to have incurred by pursuing that course of action.
The parties are accordingly entitled to be further heard on the precise calculations to be undertaken consistent with these reasons, as to interest, as to costs, as to which persons or entity judgment is to be entered against, and any other consequential matters, as they may be advised.

Determination[157]	Dr Guirguis[158]	Dr Cullum[159]
15 per cent lower back and spine	15 per cent lumbar spine	5 per cent lower lumbar spine
10 per cent neck and cervical spine	10 per cent cervical spine	10 per cent cervical spine
25 per cent right shoulder	20 per cent right arm above elbow	20 per cent right shoulder
10 per cent left arm above elbow
10 per cent thoracic spine