Smeaton v Pattison

[2003] QCA 341

SUPREME COURT OF QUEENSLAND

CITATION:

Smeaton & Ors v Pattison [2003] QCA 341

PARTIES:

SIMON SMEATON
(first plaintiff/first respondent)
BELINDA SMEATON
(second plaintiff/second respondent)
PAUL SMEATON
(third plaintiff/third respondent)
NATHAN SMEATON BY HIS LITIGATION GUARDIAN JOANNE SMEATON
(fourth plaintiff/fourth respondent)
v
JOSEPH JOHN PATTISON

(defendant/appellant)

FILE NO/S:

Appeal No 452 of 2003

SC No 6074 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2003

JUDGES:

de Jersey CJ, Williams JA and Mackenzie J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – where deceased sought to transfer property to children by will – where appellant negligently advised deceased that transfer could potentially be effected without involvement of deceased’s second wife – where evidence that deceased may not have involved second wife even if properly advised – whether element of causation present

EVIDENCE – ADMISSIBILITY AND RELEVANCE – OPINION EVIDENCE – IN GENERAL – where evidence that deceased may not have involved second wife even if properly advised – where evidence related to deceased’s likely actions in specific circumstances – whether evidence admissible

Land Title Act 1994 (Qld), s 59

Uniform Civil Procedure Rules 1999 (Qld), r 766(2)

Lowery v R [1974] AC 85, distinguished

R v Von Einem (1985) 38 SASR 207, distinguished

COUNSEL:

R V Hanson QC for the appellant

K S Howe for the respondents

SOLICITORS:

Clayton Utz for the appellant

Delaneys for the respondents

1. de JERSEY CJ:  The appellant, who is a solicitor, appeals against a judgment given against him in the amount of $232,322.82, as damages for negligence, together with interest.  The respondents, who are the beneficiaries of the judgment, are the four children of Peter Smeaton, deceased – three children from his first marriage which was dissolved in 1965 and one from his second marriage.

1. During his lifetime, the deceased acquired a house property as sole owner, and other properties held jointly with his second wife.  He wished to ensure that by his will, his interest in the house property, and in the property held jointly, would pass to his children, subject to life interests in favour of his second wife.  His second wife survived him.

1. The admitted negligence of the appellant rested in his not directly and firmly advising the deceased that in order to sever the joint tenancies, the deceased necessarily must within his lifetime execute a transfer of his interest, give a copy of the instrument to his second wife, and secure its registration (s 59 Land Title Act 1994). (Other possible means of severance did not arise, as the case was run.) Instead, the appellant developed an elaborate strategy of declarations and other documents which contemplated notification to the deceased's second wife after the death of…