Sutton v Firth (No 2)

[2009] NSWDC 53

CITATION:	Sutton v Firth (No 2) [2009] NSWDC 53
HEARING DATE(S):	9, 10, 11 and 12 February 2009 and 5 March 2009
JUDGMENT DATE:	12 March 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for the plaintiff against the defendant in the amount of $81,896.38; parties to be heard on interest and costs before final orders are made.
CATCHWORDS:	TORTS-Professional negligence-Employee injured in the workplace-Receipt of workers compensation benefits-Failure of solicitor to advise to enable employee to make a rational and informed decision whether to seek damages at common law-Common law rights lost on acceptance of workers compensation permanent loss lump sum-Expiration of limitation period to bring common law action-Chances of success of common law claim-Nature of employer's duty of care-System of work-Nature and conditions of work-Whether employee guilty of contributory negligence in failing to seek revocation of lump sum settlement and extension of limitation period-Comparison of compensation with likely damages-Assessment of damages for professional negligence-Deductions to be made-Whether deduction for workers compensation to be made before deduction for loss of chance or vice versa-Availability of future workers compensation benefits - EVIDENCE-Expert evidence-Requirement for requisite training, study and experience-Specialised knowledge-Exclusionary rule-Professional standards laid down by a professional institute or regularly practised - WORKERS COMPENSATION-Workplace injury-System of work-Acceptance of permanent loss lump sum compensation-Option to relinquish common law rights-Ability to revoke election to do so-Common law action for professional negligence against solicitor-Failure to advise as to common law rights-Calculation of damages-Deductions to be made-Quantification of past benefits-Assessment of future benefits-Assessment of modified common law damages-Loss of chance to take common law proceedings-Whether deduction for workers compensation benefits to be made before deduction for loss of chance or vice versa-Continuation of workers compensation benefits
LEGISLATION CITED:	Civil Liability Act 2002, s 5O Evidence Act 1995, ss 76 and 79 Law Reform (Miscellaneous Provisions) Act 1946, s 5 Workers Compensation Act 1987, ss 37, 40, 60AA, 66, 67, 68A, 151A, 151D(2), 151G, 151H, 151K and 151M, Div 3 of Pt 5 and Div 4 of Pt 3, and cl 3 Pt 18H of Sch 6 Workers Compensation Legislation Amendment Act 2004
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Boyded Industries Pty Ltd t/as Boyded Parramatta v Canuto [2004] NSWCA 256 Bwllfa and Merthyr Dare Steam Collieries (1891) v Pontypridd Waterworks Co [1903] AC 426 Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 Chapman v Hearse (1961) 106 CLR 112 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Czatyrko v Edith Cowan University [2005] HCA 14 Dobler v Kenneth Halverson [2007] NSWCA 335 Green v Berry [2001] 1 Qd R 605 Johnson v Perez (1988) 166 CLR 351 Liftronic Pty Ltd v Unver (2001) 179 ALR 321 McHale v Watson (1966) 115 CLR 199 McLean v Tedman (1984) 155 CLR 306 Midland Trust Bank Co Ltd v Hett Stubbs & Kemp [1979] Ch 384 Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 Nikolaou v Papasavas (1989) 166 CLR 394 O’Brien v Gillespie (1997) 41 NSWLR 549 Purkess v Crittenden (1965) 114 CLR 164 Rabelais Pty Ltd v Cameron (unreported, NSWSC, 8 February 1993) Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Tipper v Williams [1993] NSWCA 269 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 Tubemakers of Australia v Fernandez (1976) 50 ALJR 720; (1976) 10 ALR 303 Valmas v Nyman (unreported, NSWSC, 12 November 1996 Willis v The Commonwealth (1946) 73 CLR 105
PARTIES:	Renee Leslie Sutton - Plaintiff Stephen Paul Firth - Defendant
FILE NUMBER(S):	No 3309 of 2005
COUNSEL:	Mr KW Andrews for Plaintiff Mr GM Watson SC and Mr RI Goodridge for Defendant
SOLICITORS:	Brennan Legal for Plaintiff Firths - The Compensation Lawyers for Defendant

JUDGMENT

1 This is an action for professional negligence against a solicitor for the loss of an opportunity to take common law proceedings by an employee injured at the workplace in or about February 1998. It was claimed that the solicitor failed to advise and properly investigate the circumstances of the injury and consequent loss occasioned to the employee, contrary to his duty of care and/or in breach of the retainer, so as to deny the employee the option to make an informed decision whether to pursue appropriate entitlements from the employer under the Workers Compensation Act 1987 for either compensation or modified common law damages pursuant to Div 3 of Pt 5 of the statute. It was alleged that the injury arose from the negligence of the employer in not ensuring a safe system of work as to the nature and conditions of the employment thereby causing the employee loss and damage.

2 As it happened, the employee obtained workers compensation benefits in the form of weekly payments, medical expenses and lump sum amounts with the continuing right to receive compensation in the future. An application to the Compensation Court of New South Wales led to the employee receiving, on 1 September 1999 and by consent, the lump sum amounts by way of permanent loss compensation pursuant to Div 4 of Pt 3 of the Workers Compensation Act made up of compensation for permanent injuries under s 66 and compensation for pain and suffering under s 67. Of course, in accordance with s 151A(3)(b) of the Workers Compensation Act the commencement of proceedings in the Compensation Court for that permanent loss compensation and acceptance of its payment represented an election by the employee to take that form of recompense rather than common law damages; henceforth the entitlement to recover damages was lost. The election so made could have been revoked under s 151A(4) and (5) of the statute with the leave of the Compensation Court if the injury caused a further material deterioration in the employee’s condition. In fact, a deterioration did occur here in April 2002 but no application for a revocation was made. In any event, the three year limitation period under s 151D(2) of the Workers Compensation Act to commence proceedings without leave of the Court for modified common law damages expired on 12 February 2001. Of significance also, after 27 November 2001 amendments to the Workers Compensation Act in s 151G limited damages to past and future economic loss but which would, even then, have required an extension of the expired limitation period to be obtained.

3 Following the deterioration in the employee’s medical condition, she consulted the original solicitor who, apparently, said nothing further could be done and so she retained another solicitor in September 2002 who advised about the earlier potential to take more favourable financial common law proceedings and the lost opportunity to do so. The present statement of claim was filed on 9 August 2005, after investigation of the situation the employee was in, against the original solicitor to recoup the claimed loss by reason of professional negligence in the handling of the case. Nothing was discernible here, having in mind the way in which the case was argued, on the distinction between the claim in tort and that in contract.

4 It was agreed between the parties to this action that the employee plaintiff had a 70 per cent chance of establishing that in respect of any injury she may have suffered on 12 February 1998 it was caused by the employer’s breach of its duty of care to her. It was agreed further that the notional date of trial in a common law action for damages was 1 July 2000.

Factual background

5 The plaintiff, Renee Leslie Sutton, was born on 13 May 1981. She lived with her parents and attended Birrong Girls High School where she was, as she said, an “average student” who engaged in sports such as karate, netball and swimming. Her health was unremarkable and, specifically, Dr C Jayadev as her family general practitioner reported “no past history of any musculo-skeletal symptoms referable to her back prior to this (February 1998) accident (at work).” Her career ambition was to be an airline hostess which she “always wanted to do”.

6 In 1994, age 13 years, the plaintiff commenced part time work at a nearby supermarket at Chester Hill operated by Go-Lo Distributions Pty Limited as a retail variety store for 12 hours each week. The employment was four hours on a Thursday after school and eight hours on a Saturday. Her main duties involved “picking up the boxes, pricing stock (such as glass bottles, books and other items), doing shelves”. She said the boxes were “very heavy” to lift, 15 to 20 kilograms, and the procedure was “to pick it (a box) up from the top (of a huge pallet), put them down ... there was a trolley ... to take it out into the store, there was nothing to help lift it”; at the appropriate aisle in the store the boxes were unpacked, stock priced and placed in the shelves; and the last 15 to 30 minutes of each shift was clean-up time requiring the tidying of stock and sweeping floors. The plaintiff said she received no training from the employer how to do the work, only to do it, and she did so with another schoolgirl but sometimes on her own.

7 Relevantly, the plaintiff said she felt discomfort in her back after starting to work for Go-Lo which “gradually started building up over the years” but she could “handle it” and continued to perform the usual duties without any time off, attended school and participated in sport. That remained the position prior to February 1998. Then, on Thursday 12 February 1998 at work after about two hours, she said her back “got really intense ... it was restricting me a lot”; by the end of the shift she said she “went to bend down to sweep and I couldn’t get back up” - being unable to move, her mother picked her up from work and took her to the local Rickard Road Medical Centre where arrangements were made for an x-ray of the back followed by treatment of physiotherapy, hydrotherapy, rest and analgesics. Dr Jayadev was first consulted for this injury on 20 February 1998 and, aided by a further x-ray on 13 March 1998 by Dr Paul Fung, diagnosed a strained lumbosacral spine. Dr Jayadev had the opinion the plaintiff was thereby unfit for any work from 19 June 1998. However, in the meantime, she resumed work on light duties at the check out using a cash register but, having difficulty in standing because her back “felt like it was giving away”, she ceased work altogether at Go-Lo after a few months (although from other evidence it was probably only a few weeks). Absences from school of from 10 to 13 days due to persisting back problems caused the plaintiff to terminate her schooling in about June 1998 and sporting activities were gradually stopped. She then undertook and completed in April 1999 a six-month full-time administration course at Bankstown TAFE which was possible with the continuing back pain because she was able to sit and stand at will in using the computer and in attending lectures.

8 It is to be noted that the plaintiff readily agreed the pain in the low back started about one year after commencing employment with Go-Lo and built up over time. She accepted there was no individual particular incident which caused the pain in that, as she said, “I didn’t fall or anything like that ... it was gradual”.

9 The plaintiff’s mother, Sharon Ann Northey, in evidence confirmed the plaintiff’s inability with the back problems to continue at school and participate in sport. She confirmed too the plaintiff’s ambition to become an airline hostess, after putting aside embarking on a modelling career as she was not tall enough. Ms Northey spoke of the plaintiff’s sporting competitiveness and, as to her work ethic, added:

“Well, she showed to me that she was very work orientated because she wanted to start working at a young age. I tried to talk her out of it because I thought her schooling was more important. But she got the job without me, you know, having any say in it. She started the job, her with a neighbour that lived a couple of doors up and they both worked Thursday nights and Saturday mornings and she loved it, she loved having her own money and saving you know, she had great ambitions.”

10 In a workers compensation claim form completed by the plaintiff on 21 April 1998, she described what happened at work in this way:

“I started getting severe back pain through bending and lifting things at work.”

The injury was stated as “sprained lower back” and the treating doctor was Dr Jayadev. The employer, Go-Lo, noted receipt of the claim on 8 May 1998.

11 The employer’s report of injury to its insurer completed on 13 May 1998 stated injury to the plaintiff at work on 12 February 1998, being a strained lower back, “through previous weeks started getting real bad back pain after work from lifting and a lot of bending”; the employment commencement date was shown as 19 January 1995 in the occupation of shop assistant with tasks of “pricing, tidying, register” work. A summary of workers compensation benefits allowed to the plaintiff by the insurer disclosed medical expenses and travel reimbursement from 19 June 1998, weekly benefits from 1 October 1998 and a lump sum payment on 1 September 1999.

12 For present purposes as the matter was argued, it is convenient to interpose notation of the amounts of workers compensation benefits received by the plaintiff both before the notional trial date of 1 July 2000 and after that date up to the last payment on 31 December 2008. As to the former period, it was common ground from the insurer’s summary of payments that amounts of $2,350.80 for medical expenses and $3,078.57 for weekly compensation were made being a total of $5,429.37; a lump sum payment of $27,500 was made also in September 1999 - the total for all payments up to 1 July 2000 was, therefore, $32,929.37. As to the latter period to 31 December 2008, it was also common ground that the workers compensation insurer had paid $28,618.38 for medical expenses and $12,929 for weekly compensation giving a total of $41,547.38; a lump sum payment of $12,716.95 was made also in July 2008 - the total for all payments of compensation up to 31 December 2008 was, therefore, $54,264.33. The grand total for all payments of compensation was $87,193.70. This aspect will be dealt with later in considering a relevant deduction from an assessment of any modified common law damages notionally due to the plaintiff for negligence from the employer, Go-Lo, including at what point the deduction should be made and the treatment of the ss 66 and 67 lump sum payments in considering any damages against the solicitor defendant for professional negligence if so found.

13 Following completion of the TAFE administration course in April 1999, the plaintiff’s back pain continued and she took medication to relieve it. Nevertheless, in about February 1999 she commenced a full time job with an advertising company, Response Publishing, for five days a week earning $240 net per week; the duties involved reception work, answering telephones and preparing correspondence - in doing so she could sit and stand as convenient for the back condition which was “getting pretty bad”. It seems that the plaintiff obtained this position on advice from Dr Geoffrey Rosenberg, an orthopaedic surgeon on referral by Dr Jayadev, that office work would be the best occupation for her by avoiding long periods of standing. By this stage the plaintiff said she had stopped playing sport because of the back problems and social contact with friends was limited to the home situation. She continued under the care of Dr Jayadev and had physiotherapy for her back with the ongoing use of medication for the pain.

14 Employment with Response Publishing ceased about October 2001 before the plaintiff gave birth to her first child, a son Taylan, on 20 January 2002. In the meantime, due to her parents’ move to live on the Central Coast, the plaintiff from February 1999 lived with her grandmother and an aunt until about late-2001 when she lived with her partner and his brother until about March 2002. Although attempting to do, she said her back problem prevented most housework during that period which was done by her aunt or partner but she did do dishwashing, clothes washing and vacuuming of floors. When her son was six months of age, the plaintiff obtained employment as a receptionist with a firm called LA Accounts in order to earn money. That employment, which lasted for about six months until late-2002, was of a sedentary nature seated in an office but the plaintiff’s back continued to be “pretty painful”. Again, she remained under the care of Dr Jayadev with physiotherapy and medication. However, on moving to a two-bedroom house at Punchbowl with her son in March 2002 the plaintiff in fact did all of the housekeeping duties, albeit she said with problems from her back in mopping and constantly bending, and that continued to be so while they lived there for a period of two years.

15 Apparently, the plaintiff found it difficult with her back condition to attend to the demands of her son and, eventually, on 9 April 2002 while she was cleaning the floor in the Punchbowl house she became unable to straighten her back. She called her former partner’s mother who lived nearby who arranged for an ambulance to take the plaintiff to Bankstown Hospital where she was an in-patient for three days. On discharge from hospital she remained under Dr Jayadev’s care, who she saw in the initial stages up to four times a week, with physiotherapy and hydrotherapy; regular pain medication for the back was taken. Another consultation with Dr Rosenberg took place who referred the plaintiff for an MRI scan. The plaintiff continued to be unemployed since leaving LA Accounts in late-2002.

16 In light of the worsened back condition, it was at this time in September 2002 that the plaintiff contacted her original solicitors, Firths - The Compensation Lawyers, to see if something could be done but she said she was told “there’s nothing we can do”. She then consulted Kells Lawyers and spoke to a solicitor, Deborah Ens, who gave certain advice and that firm, on receipt of the plaintiff’s file from Firths, proceeded to act for her. Again remaining under Dr Jayadev’s care, the plaintiff was unemployed because of the care to be given to her son.

17 No doubt from regular treatment sessions, the plaintiff was able to obtain employment with her physiotherapist, Angela Thomas Pty Limited, from 6 September 2004. She worked for four hours a day on two days a week doing computer invoices, answering telephones and making appointments for patients. On 30 November 2004 she gave birth to a second child, a son named Jaden. Employment then continued with Ms Thomas until 3 September 2007 when it ceased due to a downturn in available work. On 28 July 2008 the plaintiff had her third child, a daughter called Ayla.

18 The Plaintiff has since continued to be unemployed. However, influenced by the ages of her children she said she anticipated eventually returning to the workforce on a part-time basis for 20 hours a week so as to support her family.

19 As far as the plaintiff’s present condition is concerned, she said discomfort was felt in the back “all the time” and in the previous few months it “hasn’t been too good .... It was strengthening up, after I had the baby I started strengthening it at the gym, but it seems to be breaking away again ... It can get worse ... I was told to do swimming, but recently with swimming I’ve been cramping right through my legs and feet, so swimming seems to have gotten it worse.” She has stopped medical treatment at the moment, although gym work is done to strengthen the back, and she has not taken any medication since about March 2004 when she became pregnant with Ayla.

20 On the domestic side, the plaintiff lives with her three children in a rented three bedroom house with assistance for cleaning and laundry from her mother twice a week for two hours on each occasion. Her former partner mows the lawns for about one hour on a weekly or fortnightly basis. Otherwise, the plaintiff maintains the household.

21 In traversing the background of events, including the working conditions at Go-Lo with the onset of a low back problem on 12 February 1998 and its consequences, I found the plaintiff’s evidence to be credible. She presented in a very open and frank manner with evidence given free from any gloss or over statement. Indeed, admissions were readily made in cross-examination without evasion or any attempt to best condition the answers. I accept her evidence.

Personal injury to and resultant medical condition of the plaintiff

22 It is clear from the plaintiff’s evidence that prior to her employment by Go-Lo from 19 January 1995 age 13 years she had no problems with her back but after about one year in performing her work duties of manually lifting heavy boxes on a regular basis lower back pain was experienced. Even so, she continued to perform those duties and, at the same time, engaged in normal school activities and sport. It is clear also that no particular or discrete incident occurred at the workplace but rather what befell the plaintiff in terms of back pain built up gradually over a period of a couple of years before February 1998.

23 The clinical notes of Dr Jayadev disclosed no complaints of back problems by the plaintiff until she saw a doctor at the medical centre on 12 February 1998, consistent with the evidence of the plaintiff and her mother, and Dr Jayadev first saw the plaintiff regarding her back on 20 February 1998. In his report dated 5 March 2004, Dr Jayadev referred to the work of lifting heavy boxes, standing and bending as leading to the onset of the back pain and he diagnosed a strained lumbosacral spine after viewing an x-ray report from Dr Paul Fung of 13 March 1998 in which Dr Fung noted “evidence of pars interarticularis defects at the level of L5 with grade 1 spondylolisthesis at the level of L5/S1. The disc spaces at this level is significantly reduced consistent with degenerative disc lesion. Extensive bony sclerosis is noted in the apophyseal joints at the lumbosacral junction.” Dr G Schaffer performed a CT lumbar spine scan of the plaintiff on 13 June 1998 and found similar results to Dr Fung leading to the comment that “protrusions are present at the L3/4, L4/5 and L5/S1 levels with the largest at the L4/5 level.”

24 Persistence of the back pain caused Dr Jayadev to refer the plaintiff to Dr Rosenberg who examined her initially on 18 June 1998. In his report of 23 June 1998, Dr Rosenberg noted the congenital pars defects at the L5 level with lumbosacral spondylolisthesis but emphasised the large left-sided disc prolapse impinging the L5 nerve root as the cause of the biggest problem resulting in pain. In a fuller and more complete report of 23 February 1999, Dr Rosenberg confirmed the disc prolapse as the cause of the plaintiff’s then current state and was “directly the result of her job of bending and lifting”. He added in the report:

“...a heavy physical job with a lot of bending and lifting would reasonably have contributed to her back pain. Also with this relative weakness (pars defects) more strain would be placed on the disc above resulting in the disc prolapse.

She initially was advised to receive physiotherapy and also undergo a back strengthening regime. She was also suggested to change jobs to a lighter office type job, one that avoided heavy physical exertion on the back.

She was advised that in the worst case scenario, if her symptoms failed to settle she had an excellent chance of improvement in her left buttock and leg symptoms with excision of the L4/5 disc. In the future she is at higher risk of having ongoing problems with her back and in the worst case scenario would require a lumbar fusion.

I did not believe that she required this at present and the only surgery contemplated would be a L4/5 disc excision and neurolysis of the L5 nerve root.

...

To summarise, I believe Renee Sutton’s current predicament of back and left leg pain is largely due to the L4/5 disc prolapse she has sustained. This is a direct result of the conditions of her work. She does have L5 pars defects with grade 1 spondylolisthesis but this is not her problem at present.

...

...I would have assessed the percentage permanent impairment of her lumbar spine at 10 %.

I would have assessed 5 % permanent impairment of the left leg at and above the knee as a result of referred pain from her spine.

Finally, the natural history of a disc prolapse is to settle but it can be a lengthy process. The role of surgery is to aid in recovery if symptoms fail to settle.”

25 Dr Jayadev referred the plaintiff to a consultant rheumatologist and physician, Dr Harry Patapanian, who examined her on 15 December 1998. In his report of 21 September 1998, Dr Patapanian noted the radiological results and considered, like Dr Rosenberg, that her symptoms were due to the left L5 root compression. Again like Dr Rosenberg, Dr Patapanian considered the patient a candidate for surgery.

26 An orthopaedic consultant, Dr Fred Blake, examined the plaintiff on 17 August 1999 and relatively commented that, “no injury as such occurred, and symptoms have developed gradually...the undertaking of physically demanding work in an immature spine from the age of 13, was associated 2 years later with the development of her symptoms.” Dr Blake was of the view that the plaintiff’s then “problems relate to the constitutional condition in her lower back brought to light and aggravated by her heavy work requirements.” He considered her partially incapacitated for work but not fit for heavy lifting or carrying, prolonged or repeated bending and with the need in a job to be able to get up and move around as required. He, like Dr Rosenberg and Dr Patapanian, thought surgery was a possibility for the future but in the meantime the plaintiff’s condition has stabilised resulting in a 25 per cent impairment of her back and a 15 per cent permanent loss of efficient use of her left leg at or above the knee.

27 Dr P A Limbers, an orthopaedic surgeon, examined the plaintiff on 18 March 1999 and in a report of 20 March 1999 assessed a 20 per cent permanent impairment of the back of which 15 per cent was due to the work related incident at Go-Lo and 5 per cent to the pre-existing but asymptomatic condition.

28 On 13 April 1999 the plaintiff was examined by Dr William Wolfenden, a consultant neurologist, who reported the same day and found that the constitutional pars defects “rendered her back more prone to injury from lifting strains” so that the lifting strains while working as a shop assistant at Go-Lo “led to disc protrusions and irritation of sacral nerve roots on the left with consequent left leg sciatica”. Dr Wolfenden concluded:

“Miss Sutton is now completely unfit for all work involving bending and lifting and is quite unsuitable to return to her previous occupation. She is only fit for some sedentary occupation as she is at present doing.

I consider that she has a permanent impairment of her back equivalent to approximately 25% of a most extreme case and a 15% permanent loss of the efficient use of her left leg at or above the knee to include any impairment below the knee.

Of the total impairments as assessed above, I consider that 90% of them are attributable to the work performed as a shop assistant and 10% of them attributable to the underlying constitutional defect in her lumbar spine.”

29 Associate Professor Noel Dan, a neurosurgeon, examined the plaintiff on 26 May 2008 and on 28 May 2008 reported a view from the radiological evidence, consistent with that of Dr Rosenberg, and said:

“I think the disc protrusions were directly related to her employment. I do not think the very large disc protrusions were a constitutional condition...It is a generality that disc protrusions occur as a consequence of an injury. I therefore believe that the symptoms were due to the disc protrusions and, on the basis of the reports of heavy lifting related to work, I would attribute the disc protrusions to her employment. It is difficult to be confident even with the documentation you have made available the exact date the disc lesions occurred but it is likely that the actual protrusion or perhaps both protrusions occurred on 12.02.98.”

30 In a particularly informative and telling way, Dr Alan Searle, a consultant orthopaedic surgeon, in a report of 3 April 2004 after examining the plaintiff on 30 March 2004 said:

“The general nature and conditions and obligations of this lady’s employment since the age of 13, with repetitive bending and heavy lifting have repeatedly placed excessive stresses and strains on her lumbar spine even before she had reached skeletal maturity. These repetitive minor injuries have caused the spondylolisthesis at L5, a large prolapse of the disc at L4-5, and a smaller protrusion at L3-4.

There is good evidence that the development of a spondylolisthesis of this type is in fact a type of fatigue fracture, usually developing in the early teens, and one could hardly imagine a better example of this theory than a skeletally immature 13 year old required to do repetitive bending and lifting especially with heavy weights.

...

She may have suffered a specific injury on 12/2/98 though this was probably just the denouement of her back story.”

And, as to the future, Dr Searle added:

“The ongoing symptoms from these injuries are permanent and cause a severe degree of disability. Indeed she is in dire straits and at 22 already has a seven year history of back pain and severe pathological changes in her spine.

...

Because of her back injuries she is permanently unfit for all forms of work, including housework, and indeed is at this stage virtually unfit for almost all forms of physical activity.

With regard to prognosis there will be a gradual increase in the symptoms and disability with the passage of time as the damaged areas undergo degenerative changes which have already commenced, and this will progress steadily. In addition the spondylolisthesis is unstable and there will probably be further slip gradually.”

Dr Searle as to treatment said:

“Until more effective treatment can be arranged her current treatment will continue, as well as her present treatment costs. However she requires surgical treatment as a semi-urgent procedure...will include at least two disc excisions and fusion at least at two levels. This will cost $14,750.00 in today’s terms including hospital, surgical and anaesthetic fees and the cost of the implant.”

The connection of the plaintiff’s injuries with her work at Go-Lo was said by Dr Searle to have “caused very severe pain and suffering and has almost completely inhibited any social, domestic or recreational or sexual activities, and her employment prospects.”

31 Two orthopaedic surgeons, Dr Michael Stuckey and Dr James Bodel, examined the plaintiff in respectively August 2007 and October 2007 for medico-legal purposes. In their reports, in overall terms, both practitioners related the cause of the plaintiff’s back problems to the nature and conditions of her work at Go-Lo as aggravating the pre-existing constitutional problem; ongoing pathology was expected. Both Dr Stuckey and Dr Bodel assessed the plaintiff’s whole person impairment from the back injury at 12 per cent.

32 A neurosurgeon, Dr Kevin Bleasel, saw the plaintiff on 31 October 2007 and in his report related the plaintiff’s back condition to the work she performed at Go-Lo and, like Dr Searle, emphasised the significance of doing such work at a young age. He assessed the resultant whole person impairment of the back at 19 per cent.

33 Dr Julian Parmegiani, a consultant psychiatrist, reviewed the plaintiff on 6 November 2007 and focused on the psychiatric sequelae of the employment injury in February 1998 at Go-Lo. In his report the next day, Dr Parmegiani diagnosed an adjustment disorder with mixed anxiety and depressed mood. He noted the plaintiff “resented the impact of pain on her career, relationships and independence...grieved the loss of her career, because she wanted to become a flight attendant...was unable to sustain a relationship, because pain had an adverse impact on her mood, temper and libido...was able to look after her children and household, within her physical limitations.” After commenting that the plaintiff had not had adequate psychiatric treatment to date, Dr Parmegiani thought she would benefit from 12 to 18 sessions of cognitive behaviour therapy so as to enable her to better cope with the chronic pain at a cost ranging from $160 to $290 per session. He said there was unlikely to be any benefit from her taking anti-depressant medication.

34 Although the views of some of the medical practitioners well post-dated the date of the notional trial here on 1 July 2000, I consider the evidence is relevant to my present task in this professional negligence action as incorporating the notional common law trial for personal injury damages, particularly in the assessment as at 1 July 2000 of likely non-economic and future economic losses suffered by the plaintiff: see Johnson v Perez (1988) 166 CLR 351 at 368 per Wilson, Toohey and Gaudron JJ. Their Honours pointed out what Latham CJ said in Willis v The Commonwealth (1946) 73 CLR 105 at 109 that:

“Where actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second best.”

Reference in this respect may be made also to Nikolaou v Papasavas (1989) 166 CLR 394 at 403-404 citing Lord MacNaghten in Bwllfa and Merthyr Dare Steam Collieries (1891) v Pontypridd Waterworks Co [1903] AC 426 at 431.

35 In my view, the medical evidence is all one way, namely, that the plaintiff had pre-existing congenital pars defects in her spine, which were asymptomatic although perhaps making the back more prone to injury. The nature and conditions of her work at Go-Lo over a two or three-year period in lifting heavy boxes, standing and bending caused disc protrusions at the L3/4, L4/5 and L5/S1 levels; those protrusions culminated on 12 February 1998 in the onset of a chronic condition of lower back pain with referred pain down the left leg, as the plaintiff was bending and lifting heavy boxes of product; she was thereby unable to perform any work for a period; her condition was expected to be ongoing with the possibility of future surgery to excise the protrusions and perhaps spinal fusion; and future cognitive behaviour therapy would assist in better managing the chronic back and left leg pain where it had as a sequelae to the employment injury resulted in an adjustment disorder with mixed anxiety and depressed mood. The injuries to the plaintiff, which involved a significant permanent impairment of her back, are to be viewed in their likelihood of occurrence and effects as being to a physically immature teenager engaged in work duties of the lifting of heavy boxes and bending on a regular basis. Although there was a suggestion in the evidence of Dr Searle that the plaintiff was permanently unfit for all forms of work, including housework, I accept the dominant view in the medical evidence that she is partially incapacitated for work, but not as involving bending and lifting, so as to be fit to perform sedentary type work in an office situation, as she had been doing with Response Publishing, LA Accounts and Angela Thomas; she is unable to satisfy her career ambition to become an airline steward. On the domestic side, the plaintiff is able to manage the household with her three children but as requiring some regular minimal assistance with the heavier work such as cleaning, laundering and lawnmowing.

36 In the result, causation of the plaintiff’s personal injury and its sequelae has been established as against the employer Go-Lo in terms of the nature and conditions of the system of work in the supermarket. The resultant disabilities and work capacity found by the medical practitioners is supportive of that stated by the plaintiff.

Relationship between the parties

37 James Barton Govan was a solicitor employed now and since April 2002 by Carroll and O’Dea but at presently relevant times was employed by the defendant, Stephen Paul Firth, who was the principal in the firm of Firths - The Compensation Lawyers and who carried on practice as a solicitor in the State. Mr Govan commenced employment with the defendant in April 1998 and the day to day nature of his duties was the handling of personal injury claims for clients, particularly arising from workplace injuries, in the areas of both workers compensation claims and common law actions. He commenced employment full time originally as a law clerk with Adelsteins Solicitors in general practice in 1992 while he studied law on a part-time basis. On admission as a solicitor in August 1995 Mr Govan obtained employment with Keddies doing personal injury litigation, again both workers compensation and common law cases, until he joined Firths. He was the solicitor with responsibility for carriage of the plaintiff’s matter and, although he did not have any independent recollection, Mr Govan said a review of the plaintiff’s file assisted him in recalling matters related to her.

38 It emerged that on 9 December 1998 the plaintiff’s mother, Ms Northey, with her daughter present telephoned Firths after seeing an advertisement on television because by then she realised the plaintiff had “big problems” with her back but she had no idea what her daughter’s rights may have been and did not know anything about common law - the plaintiff was then 17 years of age. As to that initial telephone call, which Ms Northey said was very short, she said she could not remember the extent of the conversation or who it was with. However, on being handed the telephone the plaintiff said she spoke to a person identified as James Govan and as to which conversation and what followed she gave this evidence:

“Q. Now when you spoke to Mr Govan, as best you can recall what was the conversation that took place?

A. He said, he just advised my mother on what would be best for me and he was just telling me about the workers compensation claim is what, you know, if we would like to proceed with it this is what we can do.

Q. Do you remember him ever mentioning the words common law to you?

A. Never heard of it.

Q. Having had that conversation did you say anything to him, did you tell him anything at all?

A. No, I just told him what had happened and how I’m off work and that was pretty much it.

Q. After the phone call, I assume your mother hung up or you hung up?

A. Yeah.

Q. Did you ever speak to Mr Govan again?

A. No.

Q. You eventually saw him when you came in and signed some documents on one day, is that right?

A. Could’ve been, yeah.

...

Q. Do you recall that your case was or your workers compensation case was resolved at some stage?

A. Yes.

...

Q. Did you see Mr Govan on that day?

A. Yes. That’s the first time I met him.

Q. Between the date of [9 December 1998] and when you met Mr Govan for the first time did you have any further conversations with him?

A. No.”

39 Ms Northey said she met Mr Govan on 1 September 1999 when she and the plaintiff attended the conciliation conference in relation to the workers compensation claim. In the meantime, she said she did not see Mr Govan and, with one exception, had no telephone conversation with him or anyone else from Firths. The exception was when she telephoned Mr Govan in February 1999 after the plaintiff completed the TAFE course to enquire if it was appropriate for her daughter to return to work. As to options available to the plaintiff to seek recompense for the work injuries, Ms Northey said that that occurred at the conciliation conference when her daughter’s claim was settled. She put it this way:

“I can remember, like, it was just under the Workers Compensation Act for her to want to go for the common law. There was other things that had to be done or whatever or - for some reason or other, common law wasn’t an option for her. I think it had something to do with her not being able to prove negligence on the other side - on the Go-Lo’s part of it...before that I never knew really anything about a common law thing.”

40 The plaintiff’s evidence was that prior to the conciliation conference she received letters from Firths about doctor’s appointments but in none of them did she see any mention of “common law” or “modified common law” or “a damages claim”. As to the events at the conciliation conference, which was attended with her mother, the plaintiff recited the conversation with Mr Govan and what led to the settlement of her claims as follows:

“Q. Do you remember the conversation that you had with him?

A. He pretty much said ‘Look, we’re all going to go into a conference, we’re going to try and settle this today...and then after he just spoke and then he came out and said they had offers...I think he did say the first offer was I think $7,000.

Q. Do you remember him saying anything to you at that time, that is before any other offers were made about common law?

A. No.

Q. Modified damages?

A. No.

Q. Damages claims?

A. No.

Q. What about negligence of your employer?

A. No.

Q. Did he leave the room from time to time?

A. Yes.

Q. When he came back did he talk to you about any other offers?

A. Yes and then he came back, I think there was two offers and then the third one was the one we accepted.

Q. Eventually there was an offer that was accepted of $27,500 is that right?

A. Yes.

Q. Do you remember being told what that $27,500 was for?

A. I think he did say it was pain and suffering for my back.

Q. Did he tell you or did he discuss with you at that time anything about wage loss?

A. No.

Q. Did he tell you that you would be entitled to bring further workers compensation claims at a later time?

A. Yes he did say that.

Q. He didn’t mention anything to you about wage loss?

A. No.

Q. Did he mention anything to you about assistance you might get at home, domestic assistance?

A. No.

Q. Did he mention to you about your right to claim future medical treatment?

A. He did say that if I did settle this I could, yes, continue more.

Q. Did he tell you anything about what’s known as non-economic loss?

A. No.

Q. Did he mention anything about the term of general damages?

A. No.

Q. Did he talk to you about having to prove that your employer was at fault or negligent?

A. No.”

The plaintiff said the meeting with Mr Govan occupied “not long, probably half an hour/40 minutes at the max” until he told her of the offer of $27,500 and he then added, “I suggest you take the figure...you could get nothing.” She accepted Mr Govan’s advice without question. The matter then so settled with the agreed amount of $27,500 pursuant to s 66 and 67 of the Workers Compensation Act.

41 The plaintiff was challenged forcefully in cross-examination that in fact Mr Govan on 1 September 1999 at the conciliation conference advised her about her options at either common law or for continued workers compensation and that he advised her the better option was workers compensation because of the difficulty in establishing fault against Go-Lo and her pre-existing medical condition. She maintained her primary evidence, specifically that she did not understand her common law likely entitlements until the later discussion in 2002 with Ms Ens of Kells Lawyers.

42 Ms Northey gave evidence as to the 1 September 1999 meeting with Mr Govan and the advice he tendered consistent with that of the plaintiff. She explained:

“I just remember him saying that she - in her position, she - she could not go for common law whatever the common law thing was because, you’d have to prove negligence and it was something that just wouldn’t be able to be done. So, it was the workers compensation...No, he never even really spoke about common law...We were there for the settlement for the workers comp.”

43 Mr Govan confirmed the initial telephone call on 9 December 1998 from Ms Northey and his conversation then with the plaintiff. He agreed he sent to the plaintiff a letter dated 14 December 1998 in which advice was stated “that if the medical evidence supports a degree of permanent impairment of your back and legs as a result of the injury then you will be entitled to bring a claim for lump sum compensation in addition to your entitlements to payment of weekly compensation and reasonable and necessary medical expenses.” This letter contained the heading “Re: Your Compensation Claim” and contained no mention of common law, modified common law or damages - it is plain that it was concerned only with a potential claim for workers compensation benefits as distinct from modified common law damages under the Workers Compensation Act. A costs agreement was enclosed, reflecting the position under the Workers Compensation Act relating to compensation proceedings, together with authority forms to enable medical reports to be obtained. Indeed, in a file note made on 9 December 1998 Mr Govan recorded the approach from Ms Northey as concerning an injury to the plaintiff at work at “Gay-Lo(sic) Chester Hill at 12/97 started, 2/98 off work” from “n & c (nature and conditions) lifting, etc. Had been working for couple years”. Mr Govan subsequently received the medical reports from Dr Rosenberg, Dr Wolfenden, Dr Blake and Dr Limbers, together with the various radiological reports, and said from those reports he formed the view that there was a very real prospect the plaintiff would not satisfy the thresholds in the Workers Compensation Act modified common law damages regime in s 151G to qualify for non-economic loss and in s 151H to qualify for economic loss. Nevertheless, Mr Govan did not seek another legal opinion or consult with counsel. He had concerns also that negligence may not be established against Go-Lo so as to support a common law claim because the plaintiff’s injury did not arise from a frank incident other than from the nature and conditions of the work over a period and where there was a pre-existing medical condition in her back.

44 When the matter was listed for the conciliation conference on 1 September 1999, Mr Govan in a file note recorded a prior conference that day with the plaintiff and her mother in these terms (by replacing abbreviations with completed words):

“Advised re settlement.

(a) medicals continue as needed

(b) wages continue as needed

(c) common law rights extinguished

Re common law.

need negligence - can’t really see it here

need threshold - not quite there.

Client advised had been paid all weeklies.”

45 By letter dated 2 September 1999 to the plaintiff, Mr Govan confirmed the settlement the day before for $27,500, including that her rights to ongoing medical expenses and weekly benefits (if unable to work because of the injury) were unaffected by the settlement; in addition, it was confirmed that a future significant deterioration in her condition would entitle her to bring a further claim for lump sum compensation. Mr Govan added in the letter:

“We regard the settlement as most satisfactory, especially giving(sic) the findings of Dr Blake in his report of 27 August 1999, a copy of which is enclosed. Dr Blake assesses the same impairments as Dr Wolfenden, that is 25% for the back and 15% for the left leg and then proceeds to deduct 50% to take into account the pre-existing constitutional condition for which Dr Wolfenden only deducted 10%.

Section 68A of the Workers Compensation Act states that an employer/insurer is not liable to compensate a worker for that proportion of the impairment which is related to pre-existing constitutional condition.

The Respondent’s qualified specialist, Dr Limbers assessed the deductible proportion at 25%, and if Dr Limbers’ assessment was accept by the courts you would be entitled to a lump sum of $9,000 only.

We confirm our advice that our legal expenses are to be paid separately by MMI and will not be deducted from the settlement money.”

46 After receiving various medical reports as to the plaintiff’s condition, Mr Govan, in a letter to her dated 28 April 1999 advised ability “to duly make your claim for lump sum compensation in accordance with the Act and regulations and have done so by letter of even date to the employer and the insurer”. He agreed the claim so made was under s 66 and 67 of the Workers Compensation Act, but particularly having in mind s 151A(2) and as to an election between compensation and damages, up to that time he agreed no letter had been sent or advice given to the plaintiff and/or her mother indicating any assessment of modified common law damages. Indeed, that continued to be the position until at least the day before the conciliation conference on 1 September 1999. In response to the proposition that the appropriate time for a client to be given sufficient information to make an informed decision to seek either modified common law damages or workers compensation was well prior to a conciliation conference, he said “Yes, ideally;” in the making of an informed decision, he agreed the solicitor’s role was not to dictate to the client but to give them options.

47 Mr Govan was tested extensively under cross-examination of his actions in preparing the plaintiff’s case in those respects where he omitted to take necessary steps in respect of a potential common law damages claim. He agreed he dealt with her case primarily as a workers compensation claim even though he understood when speaking on the telephone to the plaintiff and her mother on 9 December 1998 it was for the purpose of them obtaining advice from him as to what the plaintiff’s rights and options were; that is, as he agreed, to guide and advise them on what they could do in relation to compensation - as a solicitor, Mr Govan accepted that that was the job undertaken on behalf of the plaintiff.

48 The following significant evidence emerged from Mr Govan as to the necessary and prudent steps to follow, but which he did not do here, in handling the plaintiff’s case:

“Q. By that date, that is, by the time you went to the conciliation, you had no medical evidence which would allow you to quantify any claim for domestic assistance, is that right?

A. I can’t recall what was in the Blake report.

Q. Well if you assume Blake doesn’t address it, then that would be correct, wouldn’t it?

A. Yes.

Q. No evidence to quantify future out-of-pocket expenses, is that right?

A. Yes.

Q. You had no evidence as to what the plaintiff’s intentions were in relation to her working career immediately prior to February 1998, is that correct?

A. Yes.

Q. You had no description of how the incident occurred apart from the fact it involved lifting, is that right?

A. I cannot recall if we had the claim form and documents from the insurer at that stage.

Q. Even if you had the claim form, it would have been prudent to at least have a detailed statement from the plaintiff as to the system of work adopted, is that right?

A. Yes.

Q. It would have been prudent to have a detailed statement from the plaintiff of exactly how the accident occurred, is that right?

A. Yes.

Q. It would have been prudent to have from the plaintiff details as to exactly when she noticed any pain or discomfort in what she was doing at the time, is that right?

A. Yes.

Q. And it would be prudent to know from the plaintiff exactly what instruction, induction or other safety systems were used within the worksite, is that right?

A. Yes.

Q. And you had none of that information before the conciliation, did you?

A. So it seems.

Q. I want to suggest to you that what ought to have occurred following that first telephone conversation is the plaintiff’s claim needed to be investigated to determine each of those things, that is each of the components that she may have been entitled to in a modified common law scheme, do you agree with that?

A. Yes, I do.

Q. And that what should have then taken place is the plaintiff should have had explained to her the difference between the two schemes, do you agree with that?

A. Yes.

Q. The difference in potential damages between the two schemes, do you agree with that?

A. Yes.

Q. The probable damages that she may expect to receive pursuant to both schemes, do you agree with that?

A. Yes.

Q. And the nature of the evidence which supported each of those claims, do you agree with that?

A. Yes.

Q. And that would then allow the plaintiff to come to a rational and informed decision as to what she wanted to do in relation to her claim, wouldn’t it?

A. Yes.”

49 In what was a very telling admission by Mr Govan in the process followed was his acceptance that what ought to have happened after the initial telephone enquiry was for him to have arranged a conference with the plaintiff and her mother and taken a detailed statement from her as to exactly how the accident occurred and how it was impacting her day-to-day life. He conceded such a course was regularly adopted by him today and it was the sort of practice followed well prior to 1999. He saw no reason in this case why such a conference was not arranged.

50 Notwithstanding the identified omissions in what Mr Govan did or did not do, he maintained that on 1 September 1999 the plaintiff was able to make a reasonably informed decision which was, ultimately, to give him instructions to accept the lump sum offer based on his opinion, albeit without any quantification of modified common law damages, as he said, “No, not in any - certainly not in any - with any precision”. That answer is to be seen in the light that Mr Govan agreed that at the time he had no details of what the plaintiff was earning, the domestic assistance she was receiving or any quantification from the medical reports of future out-of-pocket expenses; and he had not obtained any expert report to address the question whether Go-Lo was negligent in the system of work laid down as affecting causation by the work or her pre-existing congenital condition.

51 What emerges from the evidence concerning the parties’ relationship, in my view, is that the defendant, through Mr Govan, approached the plaintiff’s position as if it were a claim for workers compensation benefits. The availability of modified common law damages, having in mind the omissions to ascertain the relevant elements and their quantification, was not seriously considered by Mr Govan. Even so, he accepted the defendant was retained to advise and act for the plaintiff in relation to the options available in her best interests to obtain under the Workers Compensation Act either compensation benefits or modified common law damages. But that was done without any conference with the plaintiff and her mother, certainly absent any investigation of the system of work at Go-Lo and the circumstances of the plaintiff’s injury, and the question of common law damages did not arise until the conciliation conference on 1 September 1999 when the claim under ss 66 and 67 of the statute was settled. In the meantime, Mr Govan took no steps to assess the potential common law heads of damage to enable appropriate advice to the plaintiff. In that respect, I am satisfied, Mr Govan himself formed the opinion that compensation would be preferable to damages, but again in the absence of relevant information, and so advised the plaintiff to accept the offer of compensation, which she did, and so by reason of s 151A(3)(b) it represented an election by her so as to be unable to recover damages.

The claim and the defence

52 As intimated earlier, the claim was brought against the defendant for professional negligence and/or breach of retainer in acting for the plaintiff in respect of the injuries she sustained in her employment with Go-Lo by reason of the nature and conditions of the work. Essentially, the omissions alleged related to a failure to perform all necessary acts in order to protect the plaintiff’s claim against Go-Lo and, in particular, to properly advise her as to her entitlements pursuant to the provisions of the Workers Compensation Act and to make an informed decision thereon. The particulars pleaded of negligence and for breach of contract were consistent each with the other as a result of which it was pleaded the plaintiff suffered a loss of opportunity to pursue a claim for modified common law damages. Damages, interest and costs were sought.

53 The defendant did not admit expressly the existence of any duty of care or relevant retainer contract and, indeed, the primary injury with Go-Lo was not admitted. In any event, breach of the duty and of the retainer was denied as was the fact the plaintiff suffered any loss or damage. Further, if it be found the defendant was liable then contributory negligence by the plaintiff and a failure to mitigate any loss were alleged in that she failed to seek a revocation of the election to take permanent loss compensation in respect to the injury, failed to seek an extension of the limitation period to sue Go-Lo for damages and failed to sue Kells Lawyers and Ms Ens in professional negligence in not advising her to take those first two courses.

54 The defendant pleaded the defence available under s 5O of the Civil Liability Act 2002 that the defendant’s employed solicitor in acting for the plaintiff at all times did so in a manner widely accepted in Australia by peer professional opinion as competent professional practice.

55 It should be added that the defendant filed a cross-claim against Kells Lawyers and Ms Ens for contribution and/or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. However, on 12 February 2009 the Court made consent orders in settlement of the cross-claim.

56 In viewing the claim and the defence, it is helpful to have in mind the fundamental way in which the defendant resisted the claim. Senior counsel for him, Mr G Watson SC who appeared with Mr R Goodridge of counsel, submitted:

“Could I say at the outset by way of introduction of the whole matter, the plaintiff’s case ... rests on a misapprehension or misunderstanding of some importance. There seems to be a general idea that if common law is available it would be a better result for every litigant to pursue common law rather than to retain workers compensation. That is wrong, and in this case we will show ... that it’s wrong. It’s a common misconception.

There also seems to be a suggestion that if advice rendered is arguably wrong then that’s negligence. Well it’s not. What is more, advice can be wrong and not be negligent. This case we will show ... points that up. People might have disagreed with Mr Govan but the advice that he gave was not wrong in a manner of what one would describe as being negligent. The case seems to rest upon another misconception that even if the plaintiff had sued at common law she would have recovered substantial damages. We will show ... that was highly improbable. There’s another misconception that if the prosecutor (sic) sued at common law she would have recovered substantial damages which would have exceeded the value of the workers compensation. We will show ... that is wrong, in fact, we will show ... that even as of today workers compensation residual rights greatly outweigh any potential value of a common law case, then, now at any time.

...

...The informed choice if given here would have been in no uncertain terms, you have got a difficult, risky common law case. You have got a real risk of losing in liability ... You’ve got a real risk of losing the thresholds if you succeed, these are your damages, they’d fall into a likely range of between X and Y and your workers compensation is probably worth many more times than that ...

... because of the views that Mr Govan came to on, firstly, breach of duty of care or liability and, secondly the thresholds. He didn’t even have to go to the third step and yet he had already by that stage discharged his duty ... It would be then no damage at all. The plaintiff has put her case on the basis that, ... Ms Ens told her that had she sued at common law, she would have received a big lump sum ... specified as $300,000, and had the plaintiff been told that, she says, well that would have altered my opinion. What’s wrong with that is that it denies good practice. In other words, it is agreed between the parties there is a 30% chance of losing the case on liability. There’s no agreement between the parties but we will show ... there is a much higher chance of losing; in fact it becomes a probability of losing on the thresholds.”

120 Mr Andrews put that that was the appropriate amount to deduct for past workers compensation. On the other hand, Mr Watson put that the only deductions to be made at this point were for the medical expenses and weekly compensation paid up to the notional date of trial on 1 July 2000, an amount of $5,429.37; the lump sum amounts totalling $40,216.95 under ss 66 and 67 should not be then deducted because the premise of the notional trial was, in effect, an election not to take those lump sums but rather damages so that such amounts should be taken into account later when calculating the net present value of workers compensation entitlements. The point made is of significance because a real monetary difference could result depending upon whether the workers compensation benefit should be deducted either before or after the percentage deduction for the loss of chance.

121 In any event, the amounts have been identified. For myself, I am inclined to Mr Andrews’ approach in considering the amounts in total up to 31 December 2008 because the lump sums are analogous to non-economic loss and fall to be deducted, with the medical expenses and weekly compensation, as actual benefits received already in this professional negligence action for loss. At what point in the process they should be deducted is, of course, quite another question.

122 Future workers compensation entitlements: Mr Andrews calculated these in the total amount of $189,844.55 made up of $113,323.22 for medical expenses and $76,521.33 for weekly compensation but with no allowance for domestic assistance or lump sums under ss 66 and 67. Mr Watson, although not in a precise way, calculated these as covering payments made since 1 July 2000 as well as those likely to be made in the future. Senior counsel did so on the basis that the plaintiff had presented a case which, if accepted, would entitle her to a full award of weekly compensation to the day before she turns 66 years plus amounts for dependant children plus a large sum for medical expenses plus “top up” lump sum payments under ss 66 and 67 plus domestic care. In the result, senior counsel assessed even those future weekly entitlements in an amount greater than $600,000 plus the other amounts. Deduction of this sum from the lower assessed common law damages resulted in no loss and, indeed, showed the plaintiff was better off under the workers compensation regime than common law.

123 I immediately should observe that I did not understand, but as Mr Watson maintained, the plaintiff’s case to have been presented as if she were totally incapacitated. Reference was made by Mr Andrews to s 40 which deals with weekly payments during partial incapacity. I have held already she was partially incapacitated only so that the fundamental approach adopted for the defendant in calculating future workers compensation entitlements is flawed. Further, the reliance on s 37 to bring into calculation payments for dependant children is referable to any period of total incapacity of the worker and not partial incapacity.

124 It was common ground that the plaintiff is entitled to further lump sum payments under ss 66 and 67 if substantial aggravation of the injury occurred in the future. The defendant said an additional amount of $9,783.05 was, on the medical evidence, available to bring the total of such payments to $50,000. The plaintiff’s counsel took the position that there was no evidence there would be a substantial increase in the plaintiff’s disabilities, as opposed to any pre-existing or congenital condition as referred to in s 68A, so that no deduction should be allowed for this element. I cannot but agree with this lack of evidence submission and add my understanding of the medical evidence as being that the injury had stabilised according to the disabling impairments as quantified. I will make no deduction.

125 As to future medical expenses to be deducted, the plaintiff’s approach was to accept the actual payments made by the insurer and for a deduction to be made of the assessed amount of such expenses in the notional trial less those paid since 1 July 2000. Counsel for the defendant urged a much larger sum to be deducted based on the plaintiff’s evidence of an extensive array now of treatment. I will follow Mr Andrews’ practical approach, reasonable as I think it is, so that $55,936.62 will be deducted for this element being $84,555 less $28,618.38.

126 As to future domestic assistance, the plaintiff’s counsel maintained no deduction should be made by reason of an amendment made to the Workers Compensation Act by the Workers Compensation Legislation Amendment Act 2004 commencing on 9 July 2004 by inserting a new provision in sub-s (3) of s 60AA to the effect that compensation for such assistance was not payable unless the person providing the assistance had lost income or had foregone employment by doing so. Consequent upon the amendment, cl 3 of Pt 18H of Sch 6 to the statute provided that the amendment to s 60AA did not apply to domestic assistance provided before 9 July 2004 but otherwise extended to apply in respect of an injury received before that date. The domestic assistance given the plaintiff by her mother of four hours per week was in the absence of any evidence Ms Northey had lost income or had foregone employment to do so. Therefore, there was no entitlement to domestic assistance, and so no deduction to be made, after 9 July 2004. However, the amendment, whilst applying to an injury as here received before that date, did not apply to domestic assistance received beforehand which was four hours per week and so, by reason of s 60AA(2), provided on a temporary basis. Even so, the unamended previous provisions of s 60AA set out in sub-ss (1)(a)-(c) and (2) conditions for the entitlement to domestic assistance. There was no evidence before me that those conditions were satisfied as to the plaintiff. For instance, there was no relevant certificate by a medical practitioner of a functional necessity for the assistance (sub-s (1)(a)), and even though Dr Bleasel assessed a 19 per cent whole person impairment, or that the assistance was provided pursuant to a relevant injury management plan (sub-s (2)(c)). Accordingly, no deduction should be made for future domestic assistance.

127 Future entitlements to weekly compensation was a major issue. It raises difficult issues in calculation. I have referred already to the defendant’s approach. The plaintiff’s case involved the proposition, based on her work capacity and intention to return to the workforce when her children were older, that she would not make a claim, or would even be entitled to make a claim, pursuant to s 40 of the Workers Compensation Act. If it were accepted she would make a claim then it was a matter of assessing the likely amount she would receive. Mr Andrews calculated this as $76,521.33 according to weekly earnings of $76.69, the maximum amount of previous weekly benefits, to age 60 years but deferred for five years to cater for the children reaching school age.

128 I propose to assess likely future entitlements to weekly benefits of compensation in a similar way as future medical expenses were treated. In doing so, I understand this is a compromise between the extremes put by counsel and it also uses the 5% tables instead of the 3% tables for such purposes. Even so, in my view it represents a fair and reasonable approach to an assessment of this element which otherwise has much uncertainty about it looking so far into the future and in very uncertain circumstances. Indeed, I did consider at one stage of my deliberations a buffer approach for this element of around $100,000 but, finally, I opted for the approach taken as more accurate and supportable. I accept the assessment of future economic loss in the notional trial of $133,854 as a reasonable measure based on $200 per week as compensation for partial incapacity less weekly benefits paid since 1 July 2000 of $12,929 giving an amount of $120,925 which should be deferred for five years until the children settle into school. I will therefore deduct the resultant amount of $94,805.20 (deferred multiplier of 0.784 on 5% tables) for future weekly compensation.

129 The deductions to be made for future workers compensation entitlements is $55,936.62 for future medical expenses and $94,805.20 for future weekly compensation - the total is $150,741.82.

130 Loss of chance: Mr Andrews followed the parties agreement as to a 70 per cent chance of success by the plaintiff in the notional common law trial so as to submit that the appropriate deduction for the loss of chance would be 30 per cent. Mr Watson submitted it should be higher. I accept the appropriate deduction is 30 per cent as the measure of the plaintiff’s risks in the litigation. The question is as to what amount the percentage is to be applied to and that raises the issue of the point at which the deductions are to be made from the assessed notional common law damages - future workers compensation payments first and then loss of chance on the resultant amount or vice versa.

131 Time deductions to be made: It was put for the plaintiff that the deductions for the workers compensation entitlements in the future should be before the 30 per cent loss of chance deduction whereas the defendant submitted the other way around so as to facilitate the valuation of the lost chance.

132 In Chamberlain v Ormsby this issue arose for consideration. The majority of Giles and Tobias JJA, did not have to determine the question and Basten JA, in the minority, did consider it but came to no concluded view. Counsel before me advised that there was no authority directly on the point. In para [143], Basten JA referred to Green v Berry [2001] 1 Qd R 605 to the effect that there Pincus JA, McMurdo P agreeing, expressed the view that to first deduct for the loss of chance was to be doubted because that would mean deducting for, say, a 50 per cent chance of success whilst discounting on the basis of a 100 per cent chance of losing a workers compensation payment. Mr Andrews’ approach was to say that to deduct for the loss of chance prior to a deduction for future workers compensation payments would be to fail to have regard to the uncertain nature of those payments. I think Mr Andrews’ approach is logical. After all, the present action is one for professional negligence where the primary task in assessing the resultant loss is to assess the common law damages in a notional trial where such damages, without more, would have been subject to a reduction for workers compensation benefits already received; future benefits may be seen in the same category. To deduct first for the loss of chance would be to do so on a higher amount than that which the plaintiff was actually to receive, even in a notional sense as in this present action.

133 Accordingly, I propose to deduct the loss of chance percentage calculated on the balance after the workers compensation deductions have been made.

Calculation of damages

134 On the basis of the findings made, I calculate damages due to the plaintiff in this action as modified common law damages of $379,930.35. A deduction of $262,935.52 is to be made for $87,193.70 for past workers compensation payments, $25,000 for solicitor-client costs and $150,741.82 for future workers compensation entitlements - the resultant amount is $116,994.83. That amount is to be reduced by 30 per cent for the loss of chance, giving a net amount due to the plaintiff of $81,896.38.

135 The plaintiff claimed interest at court rates from the notional date of trial on 1 July 2000 to the date of judgment; the amount is yet to be calculated by the parties who wished to await these reasons for decision on the primary issues. The defendant expressly sought an opportunity to address this issue.

Conclusion and orders

136 The plaintiff is entitled to a verdict of $81,896.38. I will hear the parties on interest and costs before making final orders.

**********