Talbot & Olivier (A Firm) v Witcombe

[2006] WASCA 87

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

Reported Decision:	(2006) 32 WAR 179
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 87
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:155/2005	Heard:	3 MARCH 2006
Coram:	STEYTLER P PULLIN JA BUSS JA	Delivered:	26/05/06
No of pages:	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
Category:	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; SCt of WA; Library No 6414, 25 August 1986 Little v Suncorp Insurance and Finance (No 2) [1994] 2 Qd R 273 Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394 Perre v Apand Pty Ltd (1999) 198 CLR 180 Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Sharman v Evans (1977) 138 CLR 563 Skelton v Collins (1966) 115 CLR 94 Tame v New South Wales (2002) 211 CLR 317 The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 White v Jones [1995] 2 AC 207 Williams v Milotin (1957) 97 CLR 465 Wilson v Metaxas [1989] WAR 285 Witcombe v Talbot & Olivier (a firm) [2005] WASC 26 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 AAA v BBB [2005] WASC 139 Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109 Australian Competition & Consumer Commission v IMB Group Pty Ltd [2002] FCA 886 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221 Brownie Wills v Shrimpton [1998] 2 NZLR 320 Crayden v Ottaviano [2003] WASCA 20 Donoghue v Stevenson [1932] AC 562 Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 Erglis v Buckley [2005] QCA 404 Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 Foppoli v Public Trustee [1970] WAR 73 Gao v Zhang [2005] VSCA 200 Gibbett v Forwood Products Pty Ltd (No 2) (2001) FCA 434 Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21 Jaensch v Coffey (1984) 155 CLR 549 Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233 Lidden v Composite Buyers Ltd (1996) 67 FCR 560 Olympic Holdings Pty Ltd v Lochel [2004] WASC 61 Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85 Queensland Art Gallery v Henderson Trout [2000] QCA 93 Ramage v Waclaw (1998) 12 NSWLR 84 Re Morris; Ex parte Donnelly v Colonial Mutual Life Assurance Society Ltd, unreported; Fed C of A; 8 September 1997 Ross v Caunters [1980] Ch 297 Seymour v Seymour (1996) 40 NSWLR 358 Sullivan v Moody (2001) 207 CLR 562 Vairy v Wyong Shire Council (2005) 80 ALJR 1 Voli v Inglewood Shire Council (1963) 110 CLR 74 Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd, unreported; FCt SCt of WA; Library No 920347 19 June 1992 Wing Luck Foods v Lay Choo Lim [1989] WAR 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TALBOT & OLIVIER (A FIRM) -v- GLENYS JUNE WITCOMBE & ANOR [2006] WASCA 87 CORAM : STEYTLER P

PULLIN JA
BUSS JA

HEARD : 3 MARCH 2006 DELIVERED : 26 MAY 2006 FILE NO/S : CACV 155 of 2005 BETWEEN : TALBOT & OLIVIER (A FIRM)

Appellant

AND

GLENYS JUNE WITCOMBE
First Respondent

GLENYS JUNE WITCOMBE (As Executrix of the Estate of KEITH MALCOLM WITCOMBE (Dec))
Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : WITCOMBE & ANOR - v - TALBOT & OLIVIER (A FIRM) [2005] WASC 26

File No : CIV 2485 of 2004

(Page 2)

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)

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

(Page 3)

Category: A

Representation:

Counsel:

Appellant : Mr K J Martin QC & Ms C H Thompson
First Respondent : Mr R I Viner QC & Mr J I Cooke
Second Respondent : Mr R I Viner QC & Mr J I Cooke

Solicitors:

Appellant : Phillips Fox
First Respondent : Godfrey Virtue & Co
Second Respondent : Godfrey Virtue & Co

Case(s) referred to in judgment(s):

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; SCt of WA; Library No 6414; 25 August 1986

(Page 4)

Little v Suncorp Insurance and Finance (No 2) [1994] 2 Qd R 273
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394
Perre v Apand Pty Ltd (1999) 198 CLR 180
Pritchard v Racecage Pty Ltd (1997) 72 FCR 203
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Sharman v Evans (1977) 138 CLR 563
Skelton v Collins (1966) 115 CLR 94
Tame v New South Wales (2002) 211 CLR 317
The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
White v Jones [1995] 2 AC 207
Williams v Milotin (1957) 97 CLR 465
Wilson v Metaxas [1989] WAR 285
Witcombe v Talbot & Olivier (a firm) [2005] WASC 26
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515

Case(s) also cited:

AAA v BBB [2005] WASC 139
Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109
Australian Competition & Consumer Commission v IMB Group Pty Ltd [2002] FCA 886
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221
Brownie Wills v Shrimpton [1998] 2 NZLR 320
Crayden v Ottaviano [2003] WASCA 20
Donoghue v Stevenson [1932] AC 562
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
Erglis v Buckley [2005] QCA 404
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241
Foppoli v Public Trustee [1970] WAR 73
Gao v Zhang [2005] VSCA 200
Gibbett v Forwood Products Pty Ltd (No 2) (2001) FCA 434
Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21

(Page 5)

Jaensch v Coffey (1984) 155 CLR 549
Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233
Lidden v Composite Buyers Ltd (1996) 67 FCR 560
Olympic Holdings Pty Ltd v Lochel [2004] WASC 61
Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85
Queensland Art Gallery v Henderson Trout [2000] QCA 93
Ramage v Waclaw (1998) 12 NSWLR 84
Re Morris; Ex parte Donnelly v Colonial Mutual Life Assurance Society Ltd, unreported; Fed C of A; 8 September 1997
Ross v Caunters [1980] Ch 297
Seymour v Seymour (1996) 40 NSWLR 358
Sullivan v Moody (2001) 207 CLR 562
Vairy v Wyong Shire Council (2005) 80 ALJR 1
Voli v Inglewood Shire Council (1963) 110 CLR 74
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd, unreported; FCt SCt of WA; Library No 920347 19 June 1992
Wing Luck Foods v Lay Choo Lim [1989] WAR 358

(Page 6)

1 STEYTLER P: This application for leave to appeal arises out of an interlocutory decision of a Master of this Court, by which he declined to strike out the whole of a statement of claim pleaded by the respondents against the appellant and declined, also, to order that there be a summary judgment in favour of the appellant. The appellant contends that the whole of the statement should have been struck out and that the respondents' action against it should have been summarily dismissed. The respondents have sought leave to cross-appeal on the issue of costs. The Master ordered them to pay the appellant's costs of the application. They contend that they were substantially successful in the application and that costs should have been awarded in their favour.

The claims in respect of a motor accident

2 Before turning to the statement of claim that was before the Master, I should explain some of the background as it appeared from the affidavits which had been filed.

3 The first respondent, Mrs Glenys Witcombe, was married to Mr Keith Witcombe. Both were injured in a motor accident which occurred on 13 November 1994. They claimed damages arising out of their injuries and retained the appellant law firm to act on their behalf. A writ was issued by the appellant on Mr Witcombe's behalf on 17 July 2000. In April 2001 the appellant's retainer was terminated and other solicitors were instructed to act for Mr Witcombe in the proceedings. A statement of claim was filed on 7 June 2001. It reveals that Mr Witcombe's injuries, and their consequences, were very severe. They were said to have encompassed quadriplegia, brain injuries, cognitive impairment, severe depression, osteoporosis, a urinary tract infection and oral dyspraxia. He was said to have been totally dependent on others for all aspects of personal hygiene, grooming and mobility.

4 Mr Witcombe died on 24 March 2002, before his action could be tried or settled. On 18 November 2002 Mrs Witcombe was substituted, by consent, as the plaintiff in the action. Her claim was expressed, in a substituted statement of claim, to have been brought "on her own behalf pursuant to the Fatal Accidents Act 1959 in respect of the death of the deceased …" and "on behalf of the estate of the deceased pursuant to the Law Reform (Miscellaneous Provisions Act) [sic] 1941".

5 The substituted statement of claim, so far as the action was brought on behalf of the deceased, did not include any claim for damages for loss of earning capacity, whether in respect of the period before or after his death (a claim of that kind in respect of the period after death does not

(Page 7)

survive for the benefit of the estate: s 4(2)(e) of the Law Reform (Miscellaneous Provisions) Act 1941 (WA) ("Miscellaneous Provisions Act")). Nor could any claim be pursued for damages arising out of Mr Witcombe's pain and suffering occasioned by his injuries or for any bodily or mental harm suffered by him or for the curtailment of his expectation of life: s 4(2)(d) of the Miscellaneous Provisions Act.

6 Mrs Witcombe's claims, brought in her personal capacity, included claims to the effect that, being "wholly dependent upon the deceased for support", she had "suffered a loss of the income the deceased would have earned to retirement at age 65" and that, because of his death, she had "suffered a future loss of dependency".

7 The action was settled in November 2002 by way of a consent judgment in an amount of $825,000 plus costs. In subsequent correspondence with the appellant, the then solicitors for Mrs Witcombe asserted that, because of the appellant's negligence in failing to commence proceedings promptly, "the deceased and primarily his estate … [had] been deprived of the opportunity to settle the claim … prior to his death for all heads of damages". Liability was denied and proceedings were subsequently commenced by Mrs Witcombe against the appellant. They were brought in her personal capacity as well as in her capacity as executrix of the estate of her late husband.

The statement of claim against the appellant

8 In her statement of claim against the appellant, as it stood at the time of the hearing before the Master, Mrs Witcombe alleged that she and her husband were injured in the motor car accident which had occurred on 13 November 1994. The statement of claim pleads that, on 28 August 1996, the third party insurer accepted liability in respect of Mr Witcombe's personal injury claim and that, on about 29 September 1997, Mr and Mrs Witcombe engaged the appellant to act for each of them in relation to their respective claims for damages arising out of their injuries. In pars 6 to 8 of the statement of claim, Mrs Witcombe pleads that she held an enduring power of attorney for her husband's affairs, that the appellant "received and acted upon" her instructions under the power of attorney in pursuing her husband's claim and that, in acting as solicitors for Mr and Mrs Witcombe, the appellant owed each of them a duty to act with reasonable skill, care and diligence. In par 10, she pleads that the appellant acted negligently, and in breach of that duty. There are particulars of breach, the most important of which, for present purposes, is

(Page 8)

that Mr Witcombe's personal injury claim was not pursued with competence or diligence.

9 Next, the statement of claim alleges that, because of the appellant's negligence and breach of duty, Mr and Mrs Witcombe engaged other solicitors on about 3 April 2001, but that Mr Witcombe died on 24 March 2002. In par 13 of the statement of claim Mrs Witcombe pleads that, if the appellant had not been negligent and acted in breach of the duty owed to her and her husband, her husband would have expected to recover an amount of "$5,236,570.00 and other damages", by settlement or judgment before he died. Paragraphs 14 and 15 of the statement of claim plead that, at the time of his death, the deceased possessed a right of action to recover damages for the injury he had sustained in the car accident but, because of the appellant's negligence and breach of duty owed to the deceased, the deceased's estate has "suffered loss being the damages … [he] would have expected to recover in the … Action had he not died".

10 Paragraphs 16 to 18 of the statement of claim read as follows:

"16. Further Witcombe says the Defendant knew or ought to have known:

(i) The Plaintiff and the deceased were husband and wife; and

(ii) In the normal course of their lives together Witcombe was dependent upon the deceased for her daily living needs; and

(iii) Witcombe would benefit from and be supported by the damages recovered by the deceased in his personal injury claim;

(iv) The deceased, by reason of his injuries, was unable to give instructions to the Defendant; and

(v) Witcombe held power of attorney for the deceased and in exercise of the power of attorney was instructing the Defendant in the conduct of the deceased's action to recover damages for the personal injury he suffered.


17. By reason of the matters pleaded in … [earlier paragraphs] the Defendant and Witcombe were in a

(Page 9)

proximate relationship such that the Defendant owed Witcombe, in her own right and her right as the Second Plaintiff, a duty to act with such reasonable skill, care and diligence in the conduct of the deceased's personal injury claim that the deceased recovered the damages due to him within his lifetime.

18. Witcombe repeats para 10 [which pleaded the breach of duty] and further says that by reason of the Defendant's conduct pleaded therein the Defendant acted in breach of the duty owed to her as pleaded in para 17 whereby Witcombe in her own right and in her capacity as executrix and sole beneficiary of the deceased's estate has suffered loss and damage being the damages and the benefit of the damages the deceased would have expected to recover in the District Court Action had he not died."

The judgment of the Master

11 The Master ordered that the respondents' statement of claim "be struck out in part" and that the respondents have leave to file and serve an amended statement of claim.

12 The Master's judgment was delivered on 8 March 2005. In it, he summarised what he saw as the critical aspects of the respondents' pleading: Witcombe v Talbot & Olivier (a firm) [2005] WASC 26 at [3] - [6]. Then (at [7]) he said that the statement of claim did not plead that any duty was owed by the appellant to the second respondent. Rather, he said, there was a plea that the appellant owed a duty to Mrs Witcombe and to the deceased. He said that any duty which might have been owed to the deceased was irrelevant and that no mention of it ought to be made in the pleading. He also said (at [7]) that Mrs Witcombe's personal claim was not one arising out of breach of a duty owed by the appellant to her as a consequence of her engaging it to act for her in her personal injuries claim and that the damages claimed by her were said to have arisen out of the appellant's alleged failure to pursue the deceased's personal injuries claim with despatch. He went on to note (at [8]) that the claim was one for pure economic loss and (at [9]) that there was no allegation to the effect that the appellant had actual or constructive notice that Mrs Witcombe was a beneficiary under the will of the deceased.

13 The Master then went on to consider some of the case law. The cases considered by him included Perre v Apand Pty Ltd (1999) 198

(Page 10)

CLR 180 in which, as he noted, McHugh J said (at 228 [125]), in the context of a claim for pure economic loss:

"In my view, reliance and assumption of responsibility are merely indicators of the plaintiff's vulnerability to harm from the defendant's conduct, and it is the concept of vulnerability rather than these evidentiary indicators which is the relevant criterion for determining whether a duty of care exists."

The Master went on to say (at [19] and [20]):

"In this case it would be open to the plaintiffs to argue that they were in a position of vulnerability. If the defendant did not proceed with the deceased's case with despatch, then there was a possibility he would die before the case was settled or judgment entered, with the result that the deceased's estate, and any beneficiary taking under that estate, would suffer loss and damage. The plaintiffs were vulnerable because they could not expedite conduct of the proceedings. It is arguable this vulnerability gives rise to a duty as between the plaintiffs and the defendant and that the duty has been breached.

What is clear from this analysis of the claim is that the present pleading is unsatisfactory. In particular, the alleged duty is not properly pleaded, nor is there … an adequate plea of the breach of that duty. This is one of those cases where formulation of the precise nature of the duty of care is dependant [sic - dependent] upon careful pleading of the material facts."

14 Then, after referring to High Court authority for the proposition that it will not always be useful to begin by examining the extent of a defendant's duty of care separately from the facts which give rise to a claim (Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 289 - 290 per Hayne J), the Master went on to say (at [21]) that, given the deficiencies in the statement of claim, it should be struck out in part with leave to replead. He did not identify what part or parts of the statement of claim should be struck out.

15 Formal orders were extracted only on 6 December 2005, some nine months later. They were to the effect (relevantly) that the statement of claim be struck out in part (again, the part or parts to be struck out were not identified), that the respondents have leave to file an amended statement of claim (they had, by then, already done so) and that the

(Page 11)

respondents were to pay the appellant's costs of the application, including reserved costs, to be taxed.

Grounds of appeal

16 There are three grounds of appeal. They are essentially to the effect that the Master should have found that the statement of claim ought to be permanently struck out and judgment entered in favour of the appellant because:

(a) the statement of claim failed to disclose any common law duty of care owed by the appellant to the first respondent in her personal capacity;

(b) the statement of claim failed to disclose any common law duty of care owed by the appellant to the deceased's estate or to Mrs Witcombe as executrix "prior to the death of the deceased, and when no perfected cause of action for common law negligence was held by the client prior to his death, which his estate could prosecute under the survivorship laws of WA against the appellant"; and

(c) the Master erred in misconceiving "the legal concept of 'vulnerability'".

The amended statement of claim

17 Before turning to the principles which are applicable to appeals of this kind, I should say what were the amendments effected by the amended statement of claim which, as I have said, was filed after the delivery of the Master's reasons, but prior to the making of the orders to which I have referred.

18 Paragraphs 17 and 18 of the original statement of claim were deleted. So, too, was par 8, in which the existence of a duty of care owed by the appellant to the respondents had been pleaded. This paragraph was replaced by one to the effect that, as solicitors for the deceased acting upon the instructions of Mrs Witcombe as the deceased's wife and attorney, the appellant owed each of Mrs Witcombe and the deceased a duty to act with reasonable skill, care and diligence in pursuing the deceased's personal injury claim. The former par 16 was amended by the addition of a subpar (b) to the effect that the appellant owed Mrs Witcombe and the deceased's estate a duty to take reasonable care to avoid causing them injury by negligently failing to settle or bring the deceased's personal injury claim to judgment before he died. Those

(Page 12)

paragraphs of the statement of claim which had alleged negligence on the part of the appellant in breach of the duty owed to Mr and Mrs Witcombe were amended to refer to the "duties" owed. Also, the original par 15 was amended to include a subparagraph alleging that, by reason of the appellant's negligence and breach of the duties owed to Mr and Mrs Witcombe, Mrs Witcombe "as the deceased's widow and in her capacity as executrix and sole beneficiary of the deceased's estate has suffered loss and damage being the damages and the benefit of the damages the deceased would have expected to recover in the District Court Action had he not died".

Applicable principles

19 That brings me to the principles which are applicable to an application for leave to appeal against an interlocutory decision of this kind. They are not in dispute. Both parties agree that an application for leave to appeal against an interlocutory decision involves the exercise of broad discretionary considerations. In general, it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave, and that substantial injustice would be done by leaving the decision unreversed: Wilson v Metaxas [1989] WAR 285 at 294. These are not rigid or exhaustive criteria and if, for any other reason, leave should, in the interests of justice, be granted, it may be granted: The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 56 - 57.

20 In considering whether or not the decision below was clearly wrong or attended by sufficient doubt to warrant appellate intervention, it is important to bear in mind the summary nature of the application which was before the Master.

21 It is well established that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question of fact or law on which the rights of the parties depend to be tried: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 - 130; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. An action should only be dismissed as frivolous or vexatious if it cannot possibly succeed. Moreover, in deciding whether an action could possibly succeed, a court of first instance should be astute not to risk stifling the development of law by summarily disposing of actions in respect of which there is a reasonable possibility that it will be found in the development of

(Page 13)

the law, still embryonic, that a cause of action does lie: Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 at 373.

22 Similar principles apply in the case of an application to strike out a statement of claim as not disclosing a reasonable cause of action: Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986 at 6 - 7. In Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984, it was held that it is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out. It has also been held in this jurisdiction that, in a case in which an application for summary judgment is combined with an application to the Court's inherent jurisdiction and with an application under O 20 r 19(1)(a) to strike out a pleading upon the basis that it discloses no reasonable cause of action, the Court is not confined by the manner in which the plaintiff has formulated his or her case on the pleadings and may consider not only the undisputed facts but also facts which are in dispute: Bride v Peat Marwick Mitchell [1989] WAR 383 at 394; and see, generally, Seaman Civil Procedure Western Australia (Volume 1) at [16.0.1] and [20.19.6].

Mrs Witcombe's claim in her personal capacity

23 Applying these principles, I propose to deal, first, with ground 1 of the grounds of appeal, which contends that the Master should have found that there was no basis for the claim brought by Mrs Witcombe in her personal capacity.

24 There is no doubt that the appellant owed to Mrs Witcombe a duty of care as regards the conduct of her own claim for damages arising out of the injuries suffered by her. However, nothing turns on the existence of that duty. What is in issue is whether there is a real question to be tried whether or not the appellant owed to Mrs Witcombe, in her personal capacity, a duty to act with reasonable diligence in the pursuit of her husband's personal injury claim. As will be apparent, her pleading in this regard is that she was owed such a duty and that, had the appellant been diligent in the pursuit of her husband's claim, it might have been finalised by judgment or settled before his death, thereby avoiding the operation of s 4(2)(d) and (e) of the Miscellaneous Provisions Act.

25 The only facts pleaded by Mrs Witcombe in support of her allegation that the appellant owed her a duty to act with diligence in the conduct of her husband's claim so as to ensure that his damages were recovered

(Page 14)

during his lifetime are that the appellant knew or should have known that she and Mr Witcombe were married, that she was dependent upon him for her daily living needs, that she would benefit from and be supported by the damages recovered by him, that he was unable to give instructions as a consequence of his injuries and that she held a power of attorney for him and, in exercise of it, instructed the appellant in the conduct of his action for damages.

26 I am unable to find any support, either in principle or in authority, for the contention that these facts are arguably sufficient to make it reasonable (see Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [242] - [243]; Tame v New South Wales (2002) 211 CLR 317 at [8] - [9]; and Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [51], [86]), in the circumstances, to impose a duty of the kind alleged. They do not establish that the appellant assumed any responsibility to Mrs Witcombe to prosecute her husband's claim with diligence. Its only responsibility in that respect was to her husband. That Mrs Witcombe was married to Mr Witcombe, and acted as his agent under power of attorney, does not alter that fact. Nor, in my opinion, does it matter that Mrs Witcombe might have been known by the appellant to be dependent upon her husband or that she would benefit from and be supported by any damages recovered by him. There is no basis for a proposition which would support the existence of a duty of care owed by a lawyer to third parties to be diligent or expeditious in the conduct of the client's action merely because they are dependants of the client whose action for damages is being handled by the lawyer. There is no plea that the appellant knew or should have known that, if his claim was not pursued expeditiously, the deceased was likely to die before his claim could be finalised. As I have said, nothing has been pleaded to suggest that the appellant assumed any responsibility to Mrs Witcombe, as a dependant of her husband or otherwise (see Hedley Byrne v Heller [1964] AC 465; and White v Jones [1995] 2 AC 207). Nor has anything been pleaded to suggest that Mrs Witcombe relied upon the appellant to look after her interests in any capacity.

27 While the High Court has been prepared to recognise that solicitors may owe third parties a duty of care, the circumstances in which this is so have been limited. Thus, in Hawkins v Clayton (1988) 164 CLR 539, the Court was prepared to recognise that a lawyer who had prepared a will, and who was the custodian of it, owed a duty to the executor under the will (who was left the residue of the estate) to take reasonable steps to find the executor and inform him of the existence, contents and custody of the will. In Hill v Van Erp (1997) 188 CLR 159, a solicitor who had

(Page 15)

prepared a will for a client upon the client's instructions that it was to include a testamentary disposition to a friend of the client was found to have owed a duty of care to the intended beneficiary to use reasonable care in the preparation of the will. However, in each case, the solicitor had accepted responsibility for carrying out the client's testamentary intentions. Those cases are consequently far removed from this.

28 Nor, in my opinion, do the pleaded facts suggest that Mrs Witcombe was vulnerable to the appellant in any sense sufficient, of itself, to give rise to a duty of care: see Perre, above, at 228; and Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 530 [23]. I have stressed that nothing has been pleaded to suggest that she relied upon the appellant, in her personal capacity, to progress her husband's claim with expedition. Indeed, nothing has been pleaded, even, to suggest that she had been unable, for whatever reason, to ensure, by means of instructions given pursuant to the power of attorney held by her, that her husband's action was expeditiously dealt with.

29 Consequently, none of the matters raised seems to me to disclose any arguable basis for the claim advanced by Mrs Witcombe in her personal capacity, whichever of the accepted tests is applied, as to which see, now Hill,above; Modbury Triangle Shopping Centre, above; Graham Barclay Oysters, above, at [242] - [243]; and Tame, above, at [8] - [9]. It is worth repeating that, as each of the last-mentioned cases points out (Hill at [14]; Modbury at [99], [139]; Graham Barclay Oysters at [99]; and Tame at [249]; and see also Brodie v Singleton Shire Council (2001) 206 CLR 512 at [318]) reasonable foresight is not of itself sufficient to give rise to a duty of care.

A claim by the deceased's estate?

30 I have mentioned that the amended statement of claim pleads that the appellant owed a duty of care to the deceased's estate, perhaps as a consequence of the Master's comment that any duty which might have been owed to the deceased himself was irrelevant. While it is strictly unnecessary to consider whether a claim of that kind is arguably sustainable, given that the pleading before the Master contained no such allegation (although the amended statement of claim was filed before the making of the orders to which I have earlier referred), the parties have addressed submissions to that issue and I will consequently deal with it.

31 An estate is merely the property which, on a grant of probate, will vest in the executor of the will. It is not a legal person: Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218. No duty of care could

(Page 16)

consequently be owed to it, even if it had existed at the time at which the appellant had the conduct of Mr Witcombe's claim for damages. Nor could any duty then have been owed to Mrs Witcombe in her capacity as executrix of the estate. She did not then have any such capacity, her husband having still been alive. The claim is consequently unsustainable. To the extent that the Master considered that such a claim was maintainable, whether by reference to vulnerability or otherwise (see [19] of his reasons), he was, in my respectful opinion, mistaken.

The claim under Miscellaneous Provisions Act s 4

32 That leaves only the latter part of the second ground of appeal. At the time of Mr Witcombe's death, s 4 of the Miscellaneous Provisions Act read, in so far as it is presently relevant, as follows:

"4.Effect of death on certain causes of action

(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate …

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person —


…

(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included;

(d) shall not … [subject to exceptions which are not presently relevant] include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by him or for the curtailment of his expectation of life;

(e) shall not include any damages for the loss of the capacity of that person to earn, or for the loss of future probable earnings of that person, during

(Page 17)

such time after his death as he would have survived but for the [a]ct or omission which gives rise to the cause of action.

…

(5) The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Imperial Act 9th and 10th Victoria, Chapter 93 (adopted in Western Australia by the Act 12th Victoria No. 21), as amended by the Act No. 37 of 1900, and so much as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Act as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1)."

33 This section (and other like provisions elsewhere in Australia) was designed to overcome, subject to a number of limitations, the old common law rules that an action for damages for personal injuries, which has not been brought to a verdict before the death of the plaintiff, abates on the plaintiff's death and that, in a civil court, "the death of a human being could not be complained of as an injury": Baker v Bolton (1808) 1 Camp 493 at 493; 179 ER 1033 at 1033; and Fitch v Hyde-Cates (1982) 150 CLR 482 at 487. The harshness of these rules was also ameliorated by legislation conferring upon dependants of a deceased person whose death resulted from the wrongful act or omission of the defendant a right to recover compensation for the financial loss which they sustained because of the deceased's death (in Western Australia, the Fatal Accidents Act 1959).

34 When first enacted, the survival of actions legislation in all Australian jurisdictions precluded recovery by the estate for non-pecuniary harm in the form of pain and suffering, loss of amenities and loss of expectation of life (see, generally, R P Balkin & J L R Davis Law of Torts (3rd ed) 2004 at [11.55]). Until the decision of the High Court in Fitch, it was generally assumed that, although damages for loss of earning capacity to the date of death were recoverable, no damages could be recovered for future loss of earning capacity (see Balkin & Davis at [9.1.6]). Under the common law, it was settled by such cases as Skelton v Collins (1966) 115 CLR 94; Sharman v Evans (1977) 138 CLR 563 at 579; and Griffiths v Kerkemeyer (1977) 139 CLR 161 at 185 that

(Page 18)

the economic loss suffered by a plaintiff encompasses the period during which he or she could be expected to earn if his or her lifespan had not been curtailed by the accident, but setting off the saving of expenditure on the plaintiff's maintenance during that period (the so called "lost years"). Once it was decided, in Fitch, that a claim of this kind was not precluded by provisions equivalent to s 4(2)(c) and (d) of the Miscellaneous Provisions Act, there was a concern that circumstances might arise in which a defendant might be required to pay twice for the same loss, once under the various equivalents of Lord Campbell's Act (here the Fatal Accidents Act) and once under the survival of actions legislation: see, generally, H Luntz Assessment of Damages for Personal Injury and Death (4th ed) at [5.4.1]. Consequently, amendments were enacted (in Western Australia, in 1982) to the survival of actions legislation to prevent a claim on behalf of the estate for the deceased's loss of earning capacity during the lost years. That was done, in this State, by way of the enactment of s 4(2)(e) of the Miscellaneous Provisions Act.

35 There is consequently no doubt that, to the extent that the deceased's claims against the tortfeasor who caused his injuries included one for damages arising out of a loss of earning capacity during the lost years, it did not survive his death. Nor, as I have said, did his claims for damages for pain and suffering and for any curtailment of expectation of life survive his death.

36 The statement of claim against the appellant does not identify what is comprehended in the amount of "$5,236,570.00 and other damages" which the deceased would have expected to recover (other than by mentioning in par 12(vi) that, on 30 January 2002, the deceased's solicitors had "filed schedules of damages for the deceased claiming $5,236,570.00 excluding damages for management of Trust monies and pain and suffering and loss of enjoyment of life"). However, the claim presumably comprehends damages for loss of earning capacity over the lost years. While that claim, as with claims for pain and suffering and curtailment of expectation of life, could not now be brought against the tortfeasor, the claim presently under consideration is of a different kind. As will be apparent, it is one which is said to have vested in the deceased man against his solicitors for damages for failure to prosecute his proceedings against the tortfeasor diligently, thereby depriving him, amongst other things, of a chance to succeed during his lifetime in recovering damages for losses of that kind: cfJohnson v Perez (1988) 166 CLR 351; and Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394. The questions consequently arise whether a claim of this kind is arguably capable of being brought against the appellant by Mrs Witcombe

(Page 19)

in her capacity as executrix and, if so, whether it has adequately been pleaded and, indeed, raised in written submissions which were lodged on behalf of the respondents.

37 As to the first of those questions, it seems to me that a claim of this kind may be open, depending upon the facts to be proved at the trial, and that such a claim is arguably able to survive for the benefit of the estate. So far as the claim is brought in tort, it must, of course, be established that damage was suffered during the lifetime of the deceased as a consequence of the appellant's breach of duty, damage being said to be the "gist" of an action for negligence: Williams v Milotin (1957) 97 CLR 465 at 474. However, it seems to me to be arguable, depending upon the facts (which are, as yet, unascertained), that the damage, here the loss of the chance to recover damages of the kind to which I have referred, was suffered during the lifetime of the deceased. So, for example, if it should turn out that, before his death, it had become apparent that the deceased had only a short time to live and could not hope to finalise his claim against the tortfeasor during that period, the chance to recover the damages would, by then, already have been lost. Moreover, if a claim is brought in contract, the appellant, if shown to have breached it, is liable to pay nominal damages, even if no loss has been caused: Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286. There might also be a contractual claim in respect of wasted legal costs. Consequently, a cause of action of each kind arguably vested in the deceased during his lifetime (see, as to the owing of concurrent duties in contract and in tort, in a case of this kind, Hawkins v Clayton, above; and Astley v Austrust Ltd (1999) 197 CLR 1 at 20 - 23).

38 Furthermore, as I read s 4(2)(d) and s 4(2)(e) of the Miscellaneous Provisions Act, those sections are at least arguably designed to operate only in a case in which damages of the kind there referred to are claimed against the tortfeasor who caused the plaintiff's injuries. I can see nothing in the language of the sections which should lead me to read them as restricting the right to bring a claim, on behalf of an estate, against a lawyer whose negligence is said to have caused the deceased person, during his or her lifetime, to lose the chance of recovering damages of the kind referred to. A claim of that kind is not one for damages for pain or suffering, for the curtailment of expectation of life or for the loss of earning capacity. It is one for damages for negligence, or breach of contract, arising out of a failure to prosecute a claim for damages of those kinds.

(Page 20)

39 If a claim of this kind vested in, and had been pursued to a conclusion by, the deceased during his lifetime then, whether the claim was one in contract or in tort, the preponderance of authority is that it would have been necessary for a court to assess the damages that he might have recovered if his claim had been pursued diligently and to reduce the amount so arrived at by the chance that he would have failed to recover: Nikolaou, above, at 400; The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 119; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 642 - 643; Little v Suncorp Insurance and Finance (No 2) [1994] 2 Qd R 273; but cf the views of Brennan J in Johnson v Perez,above, at 372, and in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 362. If the claim has survived for the benefit of the estate, a similar approach must be adopted.

40 As to the second question, it seems to me that there is arguably sufficient in the pleading in this case to infer that a relevant duty was owed by the appellant to the deceased (in my respectful opinion the Master was wrong to say that this was irrelevant) both under the common law and as a matter of contract arising out of the pleaded retainer of the appellant by the deceased. Moreover, there is arguably sufficient in the pleading, in my opinion, to assert a claim to the effect that the alleged breach, over the course of the retainer, ultimately resulted in the deceased man losing a real and substantial chance (see Johnson v Perez at 363) of recovering damages which he would otherwise have recovered from the tortfeasor who caused his injuries. While the statement of claim has not otherwise been pleaded so as to support a claim of the kind that I have identified, that is something which might be remedied by amendment, assuming, of course, the existence of all requisite facts needed to support the amendment.

41 As matters stand, it consequently seems to me that there may be sufficient in Mrs Witcombe's claims, as executrix, to justify them being permitted to go forward at this stage, so far as they rely on s 4 of the Miscellaneous Provisions Act. However, the issues were not, until the hearing of the application for leave to appeal itself, argued on behalf of the respondents in the way in which I have outlined. The respondents' written submissions asserted that the present action "in no way depends upon legislation" and that the cause of action relied upon "is not any cause of action the deceased held against the Appellant". Moreover, no cause of action in contract has previously been addressed in oral or written submissions. Because of this, and because the statement of claim is an inadequate vehicle to support a claim of the kind now identified, it seems to me that Mrs Witcombe should be required to amend her pleading so as

(Page 21)

to make plain the basis upon which her claim as executrix is brought and what heads of damages are said to be encompassed within the pleaded sum of $5,236,570 and, once that has been done, the appellant should be given a further opportunity to challenge the pleading, if so advised, before the Master.

42 I should mention, in this last respect, that, so far as the claim might be brought in contract, counsel for the appellant contended that, while the statement of claim might be wide enough to encompass a contractual claim, because the claim had not emerged with any real clarity and because no claim in contract had previously been argued, he was not in a position to meet an argument of that kind. He said, however, that he is content that, in her capacity as executrix, Mrs Witcombe should be given leave to replead a claim of that kind, subject to the appellant's right to bring a further application to strike out the claim before the Master, if so advised.

Conclusions in the appeal

43 It follows that I would give leave to appeal (given the significance, for the future conduct of the proceedings, of the points which have been successfully raised on behalf of the appellant), allow the appeal and set aside the decision of the Master, so far as it relates to Mrs Witcombe's claim in her personal capacity.

44 As to the ancillary orders which should be made, I would order that, to the extent that the amended statement of claim pleads a claim in Mrs Witcombe's personal capacity, it should be struck out. It also seems to me that the amended statement of claim, to the extent that it pleads that a duty of care was owed to the deceased's estate, should also be struck out. Mrs Witcombe, in her capacity as executrix, should be given leave to file a further amended statement of claim, with liberty to the appellant to bring such further application in respect of it as it might consider appropriate.

The cross-appeal

45 A review of the Master's decision as regards costs is made difficult because he gave no reasons for ordering the respondents to pay the appellant's costs of the application before him. However, no point was taken in that regard and he presumably considered that the appellant had been substantially successful, at least in striking out part of the statement of claim, and that an order for costs in its favour was consequently appropriate, even though it did not succeed in its ultimate objective of obtaining a final judgment against the respondents.

(Page 22)

46 Costs orders are, of course, discretionary, raising the well-known principles identified in House v The King (1936) 55 CLR 499. In this case, as I have said, the application to strike out the statement of claim succeeded in part and the effect of the conclusions at which I have arrived is that the remainder of the pleading is deficient in a number of respects (as, indeed, the Master found, albeit for different reasons). In these circumstances, and taking into account that the argument before us was put, in material respects, on a different basis to that put before the Master, I would be disinclined to interfere with the Master's exercise of discretion and, hence, would refuse leave to bring the cross-appeal.

47 PULLIN JA: I have read the reasons of Steytler P. I agree with them and with the orders he proposes. I add the following by way of additional comment concerning the claim under s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 (WA). In this case it is alleged that the solicitors were engaged to conduct litigation to recover damages for personal injuries suffered by Mr Keith Witcombe in a car accident. Mr Witcombe had been a passenger. As a result of the personal injuries, Mr Witcombe became a quadriplegic. There was no issue between the driver's insurer and Mr Witcombe that the driver was negligent and liable for damages. The estimate of the respondents is that damages would have been recoverable by Mr Witcombe in a sum which would exceed $5 million. The solicitor's duty in contract and in tort was to pursue the claim with diligence. The allegation is that the solicitors, in breach of the contractual and general law duty, did not pursue the action with diligence. For the purpose of the application before the Master and on this appeal, the Court must accept that the solicitors were in breach of their general law and contractual duty.

48 These breaches having occurred, Mr Witcombe took his file elsewhere and new solicitors proceeded with the case and brought it to a conclusion, but before damages could be assessed and paid, Mr Witcombe died. His claim against the driver was one which, if it was not for statute, would have died with him. See Baker v Bolton(1808) 1 Camp 493.

49 The provisions of the Law Reform (Miscellaneous Provisions) Act, however, provide that Mr Witcombe's action against the driver was preserved for his estate but, by reason of s 4(2) of that Act, damages were substantially curtailed and, as a result, instead of recovering $5 million his estate recovered only $800,000.

50 The personal representative of Mr Witcombe says that the difference between $5 million and $800,000 is a loss which is recoverable by way of

(Page 23)

damages in a tort cause of action and a contract cause of action which the estate says existed before he died, which survived for the benefit of his estate and which may be pursued against the negligent solicitor.

51 Section 4(1) of the Law Reform (Miscellaneous Provisions) Act is set out in Steytler P's judgment.

52 The first question is, therefore, whether Mr Witcombe had causes of action against the solicitor which, existing before he died, would then be preserved by s 4(1) of the Act.

53 The concept of a "cause of action" is clear. It is simply the fact, or combination of facts, which gives rise to a right to sue. See Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245 per Wilson J. In tort, the cause of action requires proof of a duty, proof of a breach of the duty and damage. A cause of action in contract requires proof of the existence of a contractual obligation, and proof that the contractual obligation had been breached.

54 Mr Witcombe had a cause of action in contract before he died and that cause of action survived his death. As to whether there was a cause of action in tort requires the Court to consider whether he suffered some damage as a result of a breach of duty before he died. It is not difficult to imagine that some damage might have been suffered. For example, extra legal expenses may have been incurred in instructing new solicitors which could produce damage.

55 The pleaded cause of action however, restricts the allegation of damage to the difference between the $5 million and the $800,000 which was recovered. In relation to the claim in tort, it will be a matter of waiting to see what emerges when the repleaded statement of claim has been filed. An amended statement of claim has been filed but it is evident that it is still in an unsatisfactory form because it pleads for example, a duty to the estate when clearly no duty was owed by the solicitors to the estate.

56 During the hearing there were submissions suggesting that the Law Reform (Miscellaneous Provisions) Act only permits recovery of damages which could have been recovered by the deceased immediately before his death. It is not evident to me why this should be so. What is preserved is the cause of action. The quantum of damages is a separate issue. Damages may be calculated on the basis of events that have happened. See Johnson v Perez (1988) 166 CLR 351 at 368 - 369. The argument which contends that the claimed damages could not be recovered are

(Page 24)

submissions made on the basis that damages must be assessed as at the date of the breach of contract. However, it is possible, depending on circumstances, that the justice of a particular case will require damages to be assessed as at the date of trial. See Johnson v Perez at 455.

57 BUSS JA: I agree with the President.