TALBOT & OLIVIER (A FIRM) -v- GLENYS JUNE WITCOMBE & ANOR [2006] WASCA 87
| (2006) 32 WAR 179 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 87 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:155/2005 | 3 MARCH 2006 | |
| Coram: | STEYTLER P PULLIN JA BUSS JA | 26/05/06 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Amended statement of claim struck out in part Leave given to file a further amended statement of claim Leave to crossappeal refused | ||
| A | |||
| PDF Version |
| Parties: | TALBOT & OLIVIER (A FIRM) GLENYS JUNE WITCOMBE GLENYS JUNE WITCOMBE (As Executrix of the Estate of KEITH MALCOLM WITCOMBE (Dec)) |
Catchwords: | Appeal against interlocutory decision Whether Master erred in not striking out whole statement of claim and not awarding summary judgment in favour of appellant Whether reasonable cause of action Inadequate pleadings Statement of claim struck out in part with leave to replead Professional negligence Solicitors retained to pursue client's personal injury claim Whether arguable that solicitors owed client's wife a duty to pursue claim with diligence No assumption of responsibility to wife No duty of care owed Negligence No duty of care can be owed to a deceased's estate Executors and administrators Proceedings by executors Alleged negligence by solicitors Client died before personal injury claim settled Some heads of damage statutebarred on death Alleged loss of chance to settle claim prior to death for all heads of damage Survival of causes of action Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4 Whether arguable that a cause of action against solicitors vested in client before death Arguable claim in tort and contract Crossappeal Costs Where interlocutory application substantially successful Turns on own facts |
Legislation: | Fatal Accidents Act 1959 (WA) Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 4(1), s 4(2)(c), s 4(2)(d), s 4(2)(e), s 4(5) Rules of The Supreme Court 1971 (WA), O 16, O 20 r 19(1)(a) |
Case References: | Astley v Austrust Ltd (1999) 197 CLR 1 Baker v Bolton (1808) 1 Camp 493 Bride v Peat Marwick Mitchell [1989] WAR 383 Brodie v Singleton Shire Council (2001) 206 CLR 512 Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Fitch v Hyde-Cates (1982) 150 CLR 482 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Griffiths v Kerkemeyer (1977) 139 CLR 161 Hawkins v Clayton (1988) 164 CLR 539 Hedley Byrne v Heller [1964] AC 465 Hill v Van Erp (1997) 188 CLR 159 Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 House v The King (1936) 55 CLR 499 Johnson v Perez (1988) 166 CLR 351 Kimberley Downs Pty Ltd v State of Western Australia, unreported;… |
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Details
- Case
- [2006] WASCA 87
- Decision Date
CaseChat Overview and Summary
The appeal in Talbot & Olivier (A Firm) v Witcombe was brought by the appellant, a firm of solicitors, against the respondent, who sought to hold the appellants liable for professional negligence in the handling of a personal injury claim. The appellants had been retained by the respondent's late husband to pursue a personal injury claim on his behalf. The husband passed away before the claim was settled, and the respondent, as his estate's executor, brought the action. The appellants sought to have the respondent's statement of claim struck out or, in the alternative, for summary judgment to be awarded in their favour, arguing that the claim was statute-barred and that the respondent's wife could not have been owed a duty of care in the circumstances. The primary judge declined to strike out the statement of claim but struck out some of the claims, allowing the respondent leave to amend. The appellants appealed against the interlocutory decision, and the respondent cross-appealed regarding costs.
The primary legal issue was whether the respondent had adequately pleaded a cause of action against the appellants for professional negligence. The appellants argued that the respondent had failed to identify a duty of care owed to the deceased's estate or to the respondent's wife, and that some of the claimed damages were statute-barred. The respondent contended that the alleged negligence occurred before the deceased's death, and that a cause of action in tort and contract was arguable. Additionally, the court needed to consider the survival of causes of action under the Law Reform (Miscellaneous Provisions) Act 1941 (WA) and whether the claim was statute-barred by the Deceased Persons (Payment of Debts) Act 1936 (WA).
The court found that the respondent had adequately pleaded a cause of action for professional negligence. The court held that it was arguable that a duty of care was owed to the deceased, and that this duty survived his death. The court also found that the alleged negligence occurred before the deceased's death, and that the claim was not statute-barred. The court rejected the appellants' argument that the respondent's wife could not have been owed a duty of care. The court noted that the issue of whether the respondent's wife could have been owed a duty of care was a matter for the trial, not an interlocutory application. The court also found that the appellants' appeal was substantially successful, and that they were entitled to costs under the Uniform Civil Procedure Rules.
The court allowed the appeal and struck out certain parts of the amended statement of claim. The court granted leave to the respondent to file a further amended statement of claim. The court refused the respondent's cross-appeal regarding costs.
The primary legal issue was whether the respondent had adequately pleaded a cause of action against the appellants for professional negligence. The appellants argued that the respondent had failed to identify a duty of care owed to the deceased's estate or to the respondent's wife, and that some of the claimed damages were statute-barred. The respondent contended that the alleged negligence occurred before the deceased's death, and that a cause of action in tort and contract was arguable. Additionally, the court needed to consider the survival of causes of action under the Law Reform (Miscellaneous Provisions) Act 1941 (WA) and whether the claim was statute-barred by the Deceased Persons (Payment of Debts) Act 1936 (WA).
The court found that the respondent had adequately pleaded a cause of action for professional negligence. The court held that it was arguable that a duty of care was owed to the deceased, and that this duty survived his death. The court also found that the alleged negligence occurred before the deceased's death, and that the claim was not statute-barred. The court rejected the appellants' argument that the respondent's wife could not have been owed a duty of care. The court noted that the issue of whether the respondent's wife could have been owed a duty of care was a matter for the trial, not an interlocutory application. The court also found that the appellants' appeal was substantially successful, and that they were entitled to costs under the Uniform Civil Procedure Rules.
The court allowed the appeal and struck out certain parts of the amended statement of claim. The court granted leave to the respondent to file a further amended statement of claim. The court refused the respondent's cross-appeal regarding costs.
Orders
Orders of the court
Appeal allowed
Amended statement of claim struck out in part
Leave given to file a further amended statement of claim
Leave to crossappeal refused
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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