Steve Masselos & Co v Young - [2011] NSWCA 352

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Steve Masselos & Co v Young [2011] NSWCA 352
Hearing dates: 17 August 2011
Decision date: 21 November 2011
Before: McColl JA at 1, Handley AJA at 2, Sackville AJA at 57
Decision:
(1) Appeal allowed in part;
(2) Grant leave to cross appeal, the notice of cross appeal to be filed within 10 days;
(3) Cross appeal allowed;
(4) Judgment of the District Court set aside;
(5) In lieu thereof substitute judgment for the plaintiff for $18,278 with effect from 13 October 2010;
(6) Liberty to the parties to apply to correct the mathematical calculations in these reasons and for the making of appropriate orders for the costs of the trial, appeal and cross appeal consequential upon these reasons.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: Damages - loss of action against tortfeasor - assessment of damages - notional trial and judgment dates -evidence of later unforeseen events
Negligence - solicitor - loss of action against tort feasor - assessment of loss at notional trial and judgment dates - evidence of later unforeseen events inadmissible
Legislation Cited: Workers Compensation Act 1987
Cases Cited: Firth v Sutton [2010] NSWCA 90
Firth v Sutton (No 2) [2010] NSWCA 109
Johnson v Perez [1988] HCA 64; 166 CLR 351
McIntosh v Williams [1976] 2 NSWLR 237
Nikolaou v Papasavas Phillips & Co [1989] HCA 11; 166 CLR 394
Category: Principal judgment
Parties: John Young - A/O
Steve Masselos & Co - A/R
Representation: Mr N Hutley SC with Mr M Dicker for the Applicant/Respondent in the appeal
Mr AC Scotting for the Opponent/Appellant in the appeal
A - Maxwell Berghouse & Ives
R - Yeldham Price O'Brien Lusk

File Number(s): CA 2010/317783
Decision under appeal

Citation:

Young v Masselos & Co [2010] NSWDC 169

Date of Decision:

2010-08-13 00:00:00

Before:

Levy SC DCJ

File Number(s):

DC 2008/317783

Judgment

McCOLL JA : I agree with Handley AJA.

HANDLEY AJA : The proceedings before the Court comprise an appeal by the plaintiff, lodged as of right, from the assessment of his damages by Levy SC DCJ, and an application by the defendants for leave to cross appeal from the same assessment.

The plaintiff was injured on 8 May 2003 on Commonwealth property at the former submarine base at Neutral Bay where he was working as a security guard in the employment of PJ Investigations Pty Ltd. He retained the defendants as his solicitors to recover compensation for his injuries. The defendants did not commence common law proceedings against the Commonwealth before the claim became statute barred. As the Judge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Steve Masselos & Co v Young

Details

AGLC: Steve Masselos & Co v Young [2011] NSWCA 352
Case: [2011] NSWCA 352
Decision Date: 21 November 2011

CaseChat Overview and Summary

In *Steve Masselos & Co v Young*, the New South Wales Court of Appeal considered an appeal and cross-appeal concerning the assessment of damages awarded to the plaintiff, Mr. Young, against his former solicitors, Steve Masselos & Co. Mr. Young had sued his solicitors for negligence, alleging that their failure to properly conduct litigation resulted in the loss of a valuable personal injury claim against a third-party tortfeasor. The core of the dispute revolved around how damages should be calculated when the value of the lost claim was affected by events occurring after the notional trial and judgment dates that would have occurred had the original action proceeded.

The Court of Appeal was required to determine the correct approach to assessing damages in a "loss of a chance" scenario, specifically whether evidence of unforeseen events occurring after the hypothetical trial and judgment dates in the original negligence action was admissible and relevant to the assessment of the plaintiff's loss. This involved considering the principles governing the assessment of damages for professional negligence where the plaintiff has been deprived of the opportunity to pursue a claim against another party.

The Court applied the principle that damages in such cases are to be assessed as at the date of the notional trial and judgment. It reasoned that the loss suffered by the plaintiff was the loss of the opportunity to recover damages in the original action, and this loss should be valued based on the circumstances and probabilities that existed at the time the original action would have concluded. Consequently, evidence of events that occurred after these notional dates, which altered the value of the original claim, was held to be inadmissible as it related to events that were not foreseeable at the time of the hypothetical trial.

The appeal was allowed in part, and leave was granted to cross-appeal. The cross-appeal was allowed, the judgment of the District Court was set aside, and a substituted judgment was entered for the plaintiff for $18,278, with effect from 13 October 2010. Liberty was reserved to the parties to apply to correct mathematical calculations and for orders regarding costs.

Orders

Orders of the court

(1) Appeal allowed in part;

(2) Grant leave to cross appeal, the notice of cross appeal to be filed within 10 days;

(3) Cross appeal allowed;

(4) Judgment of the District Court set aside;

(5) In lieu thereof substitute judgment for the plaintiff for $18,278 with effect from 13 October 2010;

(6) Liberty to the parties to apply to correct the mathematical calculations in these reasons and for the making of appropriate orders for the costs of the trial, appeal and cross appeal consequential upon these reasons.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Steve Masselos & Co v Young [2011] NSWCA 352
Hearing dates:	17 August 2011
Decision date:	21 November 2011
Before:	McColl JA at 1, Handley AJA at 2, Sackville AJA at 57
Decision:	(1) Appeal allowed in part; (2) Grant leave to cross appeal, the notice of cross appeal to be filed within 10 days; (3) Cross appeal allowed; (4) Judgment of the District Court set aside; (5) In lieu thereof substitute judgment for the plaintiff for $18,278 with effect from 13 October 2010; (6) Liberty to the parties to apply to correct the mathematical calculations in these reasons and for the making of appropriate orders for the costs of the trial, appeal and cross appeal consequential upon these reasons. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	Damages - loss of action against tortfeasor - assessment of damages - notional trial and judgment dates -evidence of later unforeseen events Negligence - solicitor - loss of action against tort feasor - assessment of loss at notional trial and judgment dates - evidence of later unforeseen events inadmissible
Legislation Cited:	Workers Compensation Act 1987
Cases Cited:	Firth v Sutton [2010] NSWCA 90 Firth v Sutton (No 2) [2010] NSWCA 109 Johnson v Perez [1988] HCA 64; 166 CLR 351 McIntosh v Williams [1976] 2 NSWLR 237 Nikolaou v Papasavas Phillips & Co [1989] HCA 11; 166 CLR 394
Category:	Principal judgment
Parties:	John Young - A/O Steve Masselos & Co - A/R
Representation:	Mr N Hutley SC with Mr M Dicker for the Applicant/Respondent in the appeal Mr AC Scotting for the Opponent/Appellant in the appeal A - Maxwell Berghouse & Ives R - Yeldham Price O'Brien Lusk
File Number(s):	CA 2010/317783
Decision under appeal	Citation: Young v Masselos & Co [2010] NSWDC 169 Date of Decision: 2010-08-13 00:00:00 Before: Levy SC DCJ File Number(s): DC 2008/317783