Steve Masselos & Co v Young

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.