Talbot & Olivier (A Firm) v Witcombe

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TALBOT & OLIVIER (A FIRM) -v- GLENYS JUNE WITCOMBE & ANOR [2006] WASCA 87



(2006) 32 WAR 179
SUPREME COURT OF WESTERN AUSTRALIACitation No:[2006] WASCA 87
THE COURT OF APPEAL (WA)
Case No:CACV:155/20053 MARCH 2006
Coram:STEYTLER P
PULLIN JA
BUSS JA
26/05/06
24Judgment 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.

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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