Taseska v Carus

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 04680

SILVANA TASESKA	Plaintiff
v
HENRY JOSEPH CARUS	First Defendant
HENRY CARUS & ASSOCIATES	Second Defendant

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19 and 20 February 2019
DATE OF JUDGMENT:	22 May 2019
CASE MAY BE CITED AS:	Taseska v Carus & anor
MEDIUM NEUTRAL CITATION:	[2019] VSC 342

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TORTS – Professional negligence – Solicitor-client relationship – Client with concurrent claims against former employer for psychological and right knee injuries sustained during course of employment – Client in receipt of long term weekly payments premised on total incapacity for work due to psychological injury – Serious injury certificates – Extent of leave sought by solicitor – Accident Compensation Act 1985, s 134AB – Whether solicitor was negligent in limiting right knee serious injury application to leave to commence action for pain and suffering damages only – Rogers v Whitaker (1992) 175 CLR 479, applied – Whether solicitor acted on client’s instructions – Psychological injury claim later dismissed at trial – Alleged loss of opportunity to pursue pecuniary loss damages for right knee injury – Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	D Curtain QC with C Madder	DLA Piper

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 2

Injuries allegedly sustained while employed by Chubb....................................................... 3
VWA claims and payments for psychological and right knee injuries................................ 6
Serious injury application for psychological injury initiated................................................ 8
Statutory counter offer of $800,000 for psychological injury.................................................. 9
Ms Taseska retains Mr Carus.................................................................................................... 13
Damages claim for psychological injury filed........................................................................ 13
Serious injury application for right knee injury initiated..................................................... 15
Serious injury certificate (pain and suffering) for right knee injury................................... 17
Trial of damages claim for psychological injury adjourned................................................ 18
Statutory offers exchanged and damages claim filed for right knee injury....................... 18
Trials of psychological and right knee injuries claims vacated........................................... 19
Trials of psychological and right knee injuries claims heard and determined................. 20

How the case was put...................................................................................................................... 20

Principles........................................................................................................................................... 22

The standard of care of a professional in negligence and contract..................................... 22
Loss of opportunity claim......................................................................................................... 24

Were the defendants negligent or did they otherwise breach their retainer?...................... 25

Was it reasonable for Mr Carus to conclude that Ms Taseska should limit her application to seek pain and suffering damages only?........................................................................................... 27
Did Ms Taseska instruct Mr Carus to limit her application to pain and suffering loss?. 30

Did any negligence of Mr Carus cause loss to Ms Taseska?................................................... 35

What is the appropriate award of damages (if any)?................................................................. 37

Conclusion......................................................................................................................................... 37

HIS HONOUR:

Introduction

Between May 2001 and March 2003 Silvana Taseska (the plaintiff) worked as a security officer at Melbourne Airport for Chubb Security Australia Pty Ltd (‘Chubb’), now MSS Security Pty Ltd. On 20 May 2016, J Forrest J, a judge of this Court, gave judgment in two proceedings brought by Ms Taseska against Chubb for two different injuries she claimed to have suffered whilst working at the airport.[1] She succeeded on one claim and failed on the other.
[1]Taseska v MSS Security Pty Ltd [2016] VSC 252 (‘2016 Reasons’).
On the claim which succeeded — for an injury to her right knee — Ms Taseska obtained an award of damages of $250,000 for pain and suffering. The certificate she obtained under the Accident Compensation Act 1985,[2] that permitted her to commence the proceeding in respect of her right knee injury, confined her claim to the pursuit of pain and suffering damages only. It did not permit her to claim damages for pecuniary loss, namely any alleged loss of earning capacity sustained because of that injury. By this proceeding, brought against her former solicitor, Henry Carus (the first defendant, and principal solicitor of the second defendant, Henry Carus & Associates), Ms Taseska alleges that Mr Carus was negligent in not applying to obtain a certificate that would permit her to pursue such a claim.
[2]Accident Compensation Act 1985 (Vic), (‘ACA’).
She further claims that had Mr Carus done so she would probably have obtained such a certificate and successfully recovered a substantial sum of money for lost earning capacity caused by her right knee injury. According to Ms Taseska, her right knee injury has caused her a total loss of earning capacity since March 2003 which will persist for the remainder of her potential working life. Being only 27 years of age when she ceased work, and otherwise intending to work until 65 years of age, she claims compensation from Mr Carus for the loss of her opportunity to recover over $2 million from Chubb in her personal injury proceeding.
Mr Carus denies the claim. First, he maintains that in the circumstances existing at the time, he acted reasonably (thus, not negligently) when applying for a certificate on Ms Taseska’s behalf that only permitted her to pursue pain and suffering damages for her right knee injury. Secondly, he argues that even if he had been negligent in not applying for a certificate that enabled Ms Taseska to pursue damages for pecuniary loss, she cannot establish that she has suffered any loss due to his negligence. That is, he contends that Ms Taseska is unable to prove that she would have obtained such a certificate, or, that if she had, she would have established any lost earning capacity stemming from her right knee injury.
Both sides accept that Ms Taseska's claim against Mr Carus is a claim for the loss of an opportunity and is to be analysed and determined as such.[3]
[3]See for example Malec v JC HuttonPty Ltd (1990) 169 CLR 638 (‘Malec’).
So, the questions for decision are as follows:
(a)Was Mr Carus negligent in failing to apply for a certificate to enable Ms Taseska to pursue a claim for pecuniary loss damages arising from her right knee injury?
(b)If so, did that negligence cause Ms Taseska to suffer loss and damage?
(c)If yes, what award of damages should be made to compensate Ms Taseska for her loss?
Background[4]
[4]Much of the background narrative is taken from an agreed chronology dated 13 February 2019 filed by the parties prior to trial (‘Chronology’).
Ms Taseska, who was born on 19 September 1975, came to Australia with her parents from Macedonia when she was 15 in order to undergo a liver transplant due to a congenital abnormality. She had that transplant at the Austin Hospital in 1991. Although it was successful, over the course of time she has been required to take medications, on and off, to assist her body in dealing with the liver transplant, including Prednisolone which, as a side effect, gives rise to the risk of joint disease in any part of the body in the future.
Ms Taseska completed year 12 at school. After school she commenced a beautician’s course, but did not complete it.[5] She then undertook a course in security work and obtained her first full-time job when she commenced work as a security officer at Melbourne Airport for Chubb in May 2001 at 25 years of age.
[5]Exhibit A, document 11 (Affidavit Silvana Taseska sworn 20 December 2011), [3] (‘2011 Affidavit’).
Injuries allegedly sustained while employed by Chubb
On 16 November 2001, in the course of her employment with Chubb, Ms Taseska injured her right knee while manoeuvring luggage from a conveyor belt (the right knee injury). She saw a general practitioner who sent her for an x-ray of her right knee, but was able to continue working without taking any time off work. Ms Taseska said that although she had pain in her knee, for which she took some tablets, she did not otherwise have any treatment for it and kept on working.[6] It is her later claim for compensation in respect of this same injury, initiated in 2011, that forms the subject matter of Ms Taseska’s complaint against Mr Carus.
[6]Transcript of proceedings dated 19 February 2019 to 20 February 2019 (‘T’), 51; see also at T 54-55 where Ms Taseska agreed that she did not miss any day from work with Chubb due to her right knee injury between 16 November 2001 and March 2003.
In the middle and latter part of the next year, 2002, Ms Taseska was involved in two incidents with passengers at the airport which caused her distress. These two incidents were alleged to have contributed to a psychological injury (the psychological injury). This psychological injury is the second of the two injuries which Ms Taseska claims to have suffered during her employment with Chubb. Along with the claim in respect of the right knee injury, the psychological injury was also the subject of the decision of J Forrest J delivered in May 2016. In his reasons for judgment the judge designated the first passenger incident, occurring on 13 June 2002, as ‘the spray can incident’ and the second passenger incident, occurring on 18 August 2002, as the “the lady with the papers incident”.[7] I will adopt the same descriptions.
[7]2016 Reasons [5].
Ms Taseska’s account of the spray can incident on 13 June, as later recorded in her statement of claim filed in this Court, was that when removing some spray cans from a male passenger’s hand luggage the passenger became angry, grabbed one of the spray cans and sprayed its contents into her face.[8] According to Ms Taseska the incident occurred in the presence of her supervisors, none of whom intervened. She saw her doctor on the day of the incident who noted that she was ‘very stressed at work because of an argument’. She was given four days of sick leave under a doctor’s certificate after which she returned to work.[9]
[8]2016 Reasons [145].
[9]Ibid [158].
Ms Taseska’s account of the lady with the papers incident on 18 August was that a female passenger came to the screening point at the airport pushing another person in a wheelchair. The passenger, carrying a jacket and some papers, set off the fixed scanning machine a number of times and became upset. Ms Taseska was operating a smaller, pedestrian scanner with a hand-held scanning wand. According to Ms Taseska, when she asked the passenger to put her jacket and papers down to be scanned with the wand, the passenger screamed at her, threw her papers on the floor and pushed Ms Taseska in her stomach. Ms Taseska asked her supervisor, who she said was standing nearby, to finish the scanning and Ms Taseska retreated to the lunchroom. She claimed the supervisor was later abusive to her, and told her she had to return to her job because there was no one to replace her.[10]
[10]Ibid [175]–[178].
Ms Taseska saw her doctor the next day. He recorded that she had been very upset at work when a passenger refused to be scanned and she had an argument. The doctor also recorded that she had felt anxious, had a shaking tremor and was crying. After this incident, her doctor signed a number of medical certificates, certifying that she was unfit for any work duties from 19 August until 13 November 2002, and, from 10 December 2002, fit only to return to work two days per week at four hours per day. She first saw a psychiatrist, Dr George Wahr, on 11 October 2002. She presented with anxiety, depression and trouble sleeping, and was diagnosed with agitated depression.[11]
[11] 2016 Reasons [189]–[190].
Meanwhile, after Ms Taseska made application on 3 September 2002 to the Victorian WorkCover Authority (‘VWA’), on 17 September 2002 the VWA accepted her claim for the psychological injury occasioned at work on 18 August 2002. It commenced paying Ms Taseska weekly payments under the ACA in lieu of wages.
Soon after, on 13 November 2002, an orthopaedic surgeon saw Ms Taseska regarding her right knee. He reported to Ms Taseska’s general practitioner that, at that time, she had symptoms consisting of pain, clicking on the lateral side of the joint and giving way. He suspected she had sustained a lateral meniscal tear with possible anterior cruciate ligament injury and advised her that the next step, if she wished, would be an arthroscopic examination.[12]
[12]Exhibit A, document 20 (Report of Mr Ton Tran dated 13 November 2002).
Ms Taseska returned to work with Chubb on 2 December 2002 on restricted duties for four hours per day, two days per week, deployed to work in security duties in a different area of the airport to where she had previously been working. During the period of her restricted duties she claims she was bullied and harassed by fellow employees. Her account was that she informed her managers and asked to be moved, but was told they could not find a position for her and left her where she was.[13] According to a report of Dr Wahr in February 2003, Ms Taseska complained to him about anxiety, chest pain and headaches. She ceased work on 17 March 2003.[14]
[13]2016 Reasons [207], [208].
[14]Ibid [219],[221].
According to her affidavit, sworn years later in support of her application for leave to proceed with a claim for damages for pain and suffering due to her right knee injury, Ms Taseska said she ceased work in March 2003 ‘suffering anxiety and depression’, had received significant treatment for her psychiatric condition since 2003, and had not returned to work since. She said she had continued to see her treating psychiatrist, Dr Wahr, regularly and took Effexor and Xanax.[15] In her evidence in this proceeding she agreed that she ceased work because of psychiatric issues, namely her emotional reaction to the events that took place at the airport with customers and staff, adding ‘at that stage’.[16]
[15]Exhibit A, Document 11 (Affidavit of Silvana Taseska sworn 21.12.2011) (‘2011 Affidavit’), [11].
[16]T 51-2.
VWA claims and payments for psychological and right knee injuries
Ms Taseska has never returned to any form of employment since. Since leaving Chubb in March 2003,[17] and as at the time of the trial of this proceeding, she had received over $300,000 in weekly payments from the VWA for her psychological injury and was continuing to receive those payments. From March 2003 until the time of trial in February 2019, Ms Taseska continued to supply the VWA periodically with medical certificates verifying that she was incapable of working due to her psychological injury.[18]
[17]T 52.
[18]T 52-3.
Under the ACA, for a worker to continue to receive weekly payments beyond 104 weeks (after the first and second entitlement periods)[19] means that he or she has been assessed by the VWA to have no current work capacity and as being likely to continue indefinitely to have no current work capacity.[20] Having ‘no current work capacity’ was defined in the ACA to mean: ‘in relation to a worker … a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment’.[21] Ms Taseska passed that milestone by at least mid-2005. In her evidence, Ms Taseska agreed that in order to continue to receive weekly payments for her psychological injury she has routinely obtained certificates from doctors which she has submitted to the VWA to support the continuation of her payments.[22]
[19]ACA ss 91E, 93A, 93B and 93C.
[20]Ibid s 93C.
[21]The definition of ‘no current work capacity’ was inserted into s 5 of the ACA by s 30(1)(b) of No. 107/1997 and removed through the enactment of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRC Act’). The definition now sits in s 3 of the WIRC Act but continues to apply to the ACA unless inconsistent with its context or subject matter: WIRC Act, s 625(2)(a).
[22]T 52.
On 20 April 2005 Ms Taseska completed a WorkCover claim form for her right knee injury, describing it as ‘damaged cartilage in right knee’. Sometime in that same year she retained Shine Lawyers to act on her behalf. According to the 2011 Affidavit, Ms Taseska was referred back to an orthopaedic surgeon, Mr West, in June 2006 because the pain in her right knee was becoming severe. Investigations arranged by Mr West showed osteoarthritis in the knee and damage to the cartilage and she was told the condition would probably gradually worsen.[23]
[23]2011 Affidavit [13].
Represented by Shine Lawyers, Ms Taseska commenced a proceeding against Chubb in the County Court on 20 October 2009. Although it is not entirely clear what that claim was for,[24] it appears that Ms Taseska made allegations in her pleadings about both the psychological injury and the right knee injury.[25] On 5 October 2010 she settled that proceeding on terms whereby Chubb agreed to pay her ongoing weekly payments for lost wages in respect of her psychological claim at the rate applicable for ‘no current work capacity’ up to the date of settlement ‘and to continue in accordance with the Act’. Whether or not some issue had arisen about Ms Taseska continuing to be paid weekly payments for her psychological injury on the basis she had ‘no current work capacity’, as that expression was then defined in the ACA, her ongoing entitlement to be paid on that basis was in any event affirmed by the terms of the settlement reached.
[24]A note in Exhibit A, document 35 (Henry Carus instruction sheet dated 31 May 2011) at p 157 suggests that in 2008 Ms Taseska’s weekly payments consequent upon her psychological injury had been terminated.
[25]Although the pleadings were not in evidence the ‘Terms of Settlement’ of the proceeding were, and that document made reference to some of the allegations made in the proceeding see Exhibit A, document 9 (Terms of Settlement).
Chubb also agreed to accept liability for, and make payments in respect of, medical and like expenses associated with Ms Taseska’s right knee injury.[26] No liability was accepted for, nor payments made in respect of, any lost wages associated with her right knee injury.
[26]Exhibit A, document 9 (Terms of Settlement); T 123.
Serious injury application for psychological injury initiated
Twenty days later, on 25 October 2010, Shine Lawyers made an application to the County Court on behalf of Ms Taseska pursuant to s 134AB of the ACA for leave to commence a proceeding for damages (at common law) against Chubb, commonly known as a serious injury application, in respect of her psychological injury.[27]
[27]Exhibit A, document 18 (Serious Injury Application – Stress Claim, including Affidavit of Silvana Taseska and Proposed Statement of Claim), 120-127 (‘2010 Affidavit’).

The ACA provides a regime, in s 134AB, to permit a worker to bring a common law claim to pursue damages for pain and suffering, or for pecuniary loss, or both. One of the avenues for commencing such a proceeding, is to submit an application to the VWA accompanied by an affidavit, proposed statement of claim, tax returns and supporting medical evidence.[28] By submitting those documents, the worker invites the VWA to certify that the worker has a ‘serious injury’ (as defined), a gateway to being able to commence the proceeding.[29] If the VWA denies the serious injury certificate, the worker may then seek ‘leave of the court’ to bring common law proceedings.[30]
[28]ACA s 134AB (5).
[29]Ibid s 134AB (16)(a).
[30]Ibid s 134AB(16)(b).
Ms Taseska’s application to the VWA was to pursue a claim for damages in respect of her psychological injury for both pain and suffering and for pecuniary loss. Significantly, if a worker succeeds (by judgment or compromise) in recovering damages for pecuniary loss, the worker’s total statutory weekly payments for lost wages are deducted from the damages so recovered, and the judgment or compromise of the proceeding terminates any current or future entitlement to such payments.[31]
[31]Ibid s 134AB (25), (36).
In support of her application, Ms Taseska swore an affidavit on 25 October 2010,[32] in which she deposed as to the circumstances of her sustaining her psychological injury while working at Chubb in 2002 and 2003, and the effect of that injury on her capacity to work since. She swore:[33]
·that upon returning to work with Chubb in December 2002 she was bullied, began to feel ill, became depressed, noticed her hair was falling out, had chest pains and headaches and, after Chubb refused her request for a transfer to her old area, ‘… ceased work on 17 March 2003 as I could not handle it anymore. Since then I have not been able to return to work’;
·that she continued to receive psychiatric treatment from Dr Wahr from October 2002 through to the time of swearing her affidavit;
·under the heading, ‘The Consequence of my Injury’, that the daily effects of her mental injury included that she was unable to concentrate, had difficulty making daily decisions, could not study or work, still experienced flashbacks and had difficulty focusing mentally; and
·under the heading, ‘Impact of my Earning Capacity’, that:
[n]otwithstanding my physical injuries, I have no capacity for work by reason of my depression, anxiety and post-traumatic stress disorder. I have been unable to work by reason of my mental condition in any occupation since 17 March 2003.
[32]2010 Affidavit.
[33]Ibid, para [21], [22], [31]-[33], and [39].
The VWA (as Chubb’s insurer) granted her a serious injury certificate for the psychological injury on 3 February 2011, permitting her to pursue a common law claim for damages for pain and suffering and for pecuniary loss. In that same month Ms Taseska retained a new firm of solicitors, Patrick Robinson & Co.
Statutory counter offer of $800,000 for psychological injury
Once the outcome of the worker’s application (be it to the VWA directly, or subsequently to the court) is finally determined,[34] the provisions under s 134AB(12) come into play and prescribe that certain steps be followed:
·the first step is a conference between the parties in an attempt to resolve the matter;
·if the matter does not resolve at the conference, the parties will go through a process of statutory offers and counter offers; and
·if there is still no resolution, the worker then has a specific time limit to issue common law damages proceedings.
[34]See the ACA s 134AB(37) for the definition of ‘determination date’ and ‘response date’.
If the VWA does not make a statutory offer within the 60 day time limit allowed, it is deemed to have made a statutory offer of nothing.[35] If the VWA does make a statutory offer and the worker does not make a statutory counter offer, the worker is deemed to have made a statutory counter offer of the maximum amount that may be awarded as damages under s134AB(22)(a) and (b).[36]
[35]ACA s 134AB(13).
[36] Ibid s 134AB(14).
Section 134AB(28) sets out the consequences of the statutory offers, once the final disposition of the matter is determined. Relevantly for the purpose of this matter, that subsection provides that in proceedings commenced in accordance s 134AB after a statutory offer was made, or deemed to have been made, if judgment is obtained or a settlement or compromise is made in an amount that is more than the statutory offer of the VWA but less than 90 per cent of the worker's statutory counter offer, each party bears its own costs. This principle assumes considerable importance because of what happened next, and how it bore upon the weighing of the options open to Ms Taseska thereafter.
In accordance with the process outlined above, a statutory conference in respect of the psychological injury claim was convened between the parties on 31 March 2011. Ms Taseska was represented by Mr Richard Forsyth of Counsel. The following day Mr Forsyth wrote a memorandum of advice reporting on the outcome of the conference and stating his opinion on the appropriate range of damages to resolve Ms Taseska’s claim.[37]
[37]Exhibit A, document 34A (Memorandum of Advice from Richard C Forsyth).
Because Mr Forsyth’s advice was given very shortly before Ms Taseska retained Mr Carus as her solicitor, and formed part of the background information provided to Mr Carus upon being retained, it is of some importance to note its salient points. In it Mr Forsyth:
·expressed concern that the claim may be statute barred;
·noted the arguments raised by Chubb against liability for causing the psychological injury;
·reported that he had outlined to Chubb, on Ms Taseska’s behalf, the ‘potential’ scope for the claim for total damages, namely $701,000–$775,000, made up of $200,000 for pain and suffering and the balance for pecuniary loss, past and future, assuming continued loss of earnings to the end of her working life;
·recorded that Chubb’s offer made at the conference was $150,000 after a 60% deduction for risks on liability;
·noted that a statutory counter offer was required to be made by Ms Taseska by 9 May 2011;
·was of the opinion that Ms Taseska would succeed on liability against Chubb in respect of the lady with the papers incident but not for the subsequent bullying and harassment allegations;
·noted a number of complicating factors in relation to the cause of her pecuniary loss claim, namely her serious liver condition, hip problems (associated with the effects of taking Prednisolone) and right knee injury, all of which would be argued as causing reduced work capacity regardless of her psychological injury;
·recommended a settlement that assumed an ongoing loss of earning capacity until she reached 45 years of age with a 30% discount for liability risk, resulting in a settlement range between $375,000 and $400,000; and
·recommended that if a higher counter offer was not accepted during further negotiations, Ms Taseska should make a statutory counter offer of $425,000 with retention of her past weekly payments.
Sometime in about May 2011 Ms Taseska terminated Patrick Robinson & Co’s retainer. Before engaging Mr Carus as her new solicitor on 31 May, she lodged a statutory counter offer to resolve her claim for damages for her psychological injury. She did this on her own behalf. Her counter offer was for the sum of $800,000. Because of the provisions of the ACA which I have already described, having made a statutory counter offer of $800,000 (plus keep), in practical terms Ms Taseska had to obtain a damages award of at least $720,000 to avoid having to pay her own legal costs out of whatever damages award she recovered.
In her evidence, Ms Taseska offered two explanations for having made a statutory counter offer of that amount, and with that consequence. The first was that her then lawyers did not explain the cost consequence of a statutory offer or, perhaps if they had, she had misunderstood them. The second was that she considered the barrister’s advice about what amount should be offered, but did not accept it.[38]
[38]T 61-62.
Returning for the moment to the condition of Ms Taseska’s right knee, on 20 January 2011 she saw a new orthopaedic surgeon, Mr Simon Talbot, on referral from her general practitioner. In a report written soon after that consultation, Mr Talbot summarised the history taken from Ms Taseska saying that she had injured her knee in 2001, had no treatment at that time but had since experienced persisting knee pain which had worsened over the months before he saw her. He thought she was developing osteoarthritis in the knee and ordered an MRI. The MRI performed in February 2011 showed severe degenerative changes. It showed complete articular cartilage loss and a macerated meniscus. Mr Talbot also noted that Ms Taseska suffered avascular necrosis of both hips, with secondary degenerative changes after many years of taking prednisolone following her liver transplant. He thought she would require hip replacements, which would best be done in stages.[39]
[39]Exhibit A, documents 21 and 22 (Reports Mr Simon Talbot).
Ms Taseska retains Mr Carus
Mr Carus had two meetings with Ms Taseska in quite quick succession, first on 31 May 2011[40] and then on 8 June 2011.[41] At the first of those meetings, attended also by Ms Taseska’s brother Goran, Mr Carus obtained instructions about what had recently taken place. The conference note taken by Mr Carus on that day indicates that the injury the subject of his instructions was ‘Psychiatric – Stress/Anxiety/Depression’. He recorded being informed that the statutory counter offer of $800,000 was ‘put in at advice of Richard Forrest’ (sic) and, apparently, that Goran was unhappy with the advice that had been given. Mr Carus’ note reads: ‘should have stuck to original $425K, then increase to $800K, realize this may to too high, and cost consequences’ (sic).
[40]Exhibit A, document 35 (Instruction Sheet for New Clients).
[41]Exhibit A, document 36 (File Note).
Damages claim for psychological injury filed
Due to the time frame set by the ACA, the time within which any common law proceedings were to be commenced with respect to the psychological injury was due to expire on or about 20 June. At the second meeting on 8 June, instructions were obtained to issue the proceedings and Mr Carus asked Ms Taseska to deposit $11,000 into his trust account. A writ was filed in this Court on 17 June 2011 on behalf of Ms Taseska against Chubb (MSS Security) in relation to her claim for damages for psychological injury.[42] Given the urgency, Mr Carus issued the writ in the form that had been prepared by Ms Taseska’s first solicitors, Shine Lawyers.[43]
[42]Chronology.
[43]T 150.29.
On 29 June 2011 Mr Carus met with Ms Taseska again.[44] He advised Ms Taseska that the writ in respect of her psychological injury had been issued. After discussing the challenges associated with the psychological injury claim, Mr Carus recommended various investigations be undertaken and that a barrister be briefed to advise. He said he proposed to brief Ms Jacinta Forbes of Counsel. Toward the end of the file note for that conference there is reference to the knee injury, the need for surgery soon, that Mr Carus would review the file in respect of that injury and advise further on the prospect of drafting an application under s 134AB of the ACA for its acceptance as a serious injury. In evidence, Mr Carus said he understood that the knee injury pre-dated the psychological injury, that there were concerns about the statute of limitations and that he was aware he had to act quickly. He was concerned to obtain advice on the merits of the knee claim in its own right, but also in the context of there already being a claim for psychological injury on foot.[45]
[44]Exhibit A, document 37 (File Note).
[45]T 152.
On 11 August 2011, Mr Carus briefed Ms Forbes to advise on evidence with respect to the claim for psychological injury and also to draft a s 134AB application for Ms Taseska’s right knee injury. Another brief was sent to her on 13 September to advise on liability and quantum with respect to the psychological injury claim.
On 25 November 2011, Ms Forbes sent a memorandum of advice to Mr Carus concerning evidence, liability and quantum with respect to the claim for psychological injury only. Although unable to draft the serious injury application for the right knee due to other commitments, in an accompanying email Ms Forbes noted that any claim in relation to the right knee injury was well out of time unless certain steps had been taken under the ACA to suspend the running of the time period (which a responding email from Mr Carus’ office confirmed had been taken).[46] More significantly, for the purpose of this case, Ms Forbes concluded her email, writing (my emphasis):
I also note here that if it is decided to lodge a serious injury application for the right knee injury then such a claim may create difficulties for the quantum of the damages claim for the psychiatric injuries unless such a claim is made for pain and suffering damages only.
[46]Exhibit A, document 40 (Email from Jacinta Forbes to Henry Carus).
It is of some importance for what occurred later to note that on 8 December 2011 Ms Taseska entered a conditional fee agreement with Mr Carus for the conduct of her psychological injury claim. By its terms Ms Taseska was liable to pay professional costs (excluding disbursements) with an uplift fee only if there was a successful outcome. A ‘successful outcome’ was defined to mean a negotiated settlement resulting in compensation or damages being paid, a court award of damages or compensation or an offer of settlement being made which Mr Carus recommended should be accepted. Further, Mr Carus was entitled to terminate the retainer if Ms Taseska would not accept reasonable advice given in relation to the matter, in which case she would become liable to pay his professional costs with the uplift fee.
Serious injury application for right knee injury initiated
Ms Forbes being unavailable at that time, Mr Carus briefed alternative counsel, Ms Caroline Mills, to confer with Ms Taseska, prepare the documentation for her right knee serious injury application and to give written advice.
Ms Taseska attended a conference with Ms Mills on 9 December 2011 and a Memorandum of Advice, draft statement of claim and draft affidavit to be sworn by Ms Taseska were returned to Mr Carus’ office on 15 December 2011.[47]
[47]Exhibit A, document 44 (Memorandum of Advice, Affidavit and Statement of Claim from Caroline Mills).
The proposed statement of claim drafted by Ms Mills included, as particulars of loss and damage, a reference to loss of earnings and earning capacity, consistent with an intention to make a claim both for pain and suffering and pecuniary loss. Nevertheless, in her memorandum of advice Ms Mills noted that Ms Taseska had a damages proceeding against Chubb (MSS Security) on foot in respect of psychiatric injury, adding ‘which injuries caused her to cease work in 2003’.[48] She noted, as was the case, that the trial of the application to the court for a serious injury certificate in respect of Ms Taseska’s psychological injury (denied by the VWA) had been fixed for hearing in the County Court for 24 July 2012.
[48]Ibid, 197 [2].
In that context, Ms Mills recommended that further medical opinion be obtained about the impact of Ms Taseska’s knee injury alone on various activities, including by saying, ‘[i]f the plaintiff intends to pursue a pecuniary loss application, comment should also be sought on the impact of the knee condition alone on work capacity’.[49]
[49]Ibid, 198, [7]. The most recent reports from Mr Talbot available at the time of Ms Mills being briefed were a reports of 18 August, 31 August (two) and 7 December 2011. These reported that Ms Taseska had had an arthroscopy examination of her right knee on 12 August removing loose tissue fragments, and that Mr Talbot had diagnosed a torn residual lateral meniscus and very severe osteoarthritic change. He thought that Ms Taseska was probably going to need a knee replacement. Further reports that were provided after 7 December (21 December 2011 and throughout 2012) essentially repeated that diagnosis and opinion.
Further on, under the heading ‘Pecuniary Loss’, Ms Mills referred again to Ms Taseska’s existing psychological injury claim and her ongoing hip condition following her lengthy use of Prednisolone. She advised that those two conditions would make it difficult to establish the necessary extent of lost earning capacity, resulting from her right knee condition, to meet the threshold required to be permitted to bring a damages claim. Even if Ms Taseska met that threshold, Ms Mills considered those same conditions would likely have a serious negative impact on any award of pecuniary loss damages obtained. Nevertheless, having made those observations, Ms Mills pointed out that the pleadings and affidavit were ‘presently drafted’ to reflect a claim for both pecuniary loss and pain and suffering.
Within Mr Carus’ office there were email exchanges seeking Mr Carus’ view as to whether, in light of Ms Mills’ opinion, the serious injury application should be prepared such that it sought leave to pursue a claim for pain and suffering damages only. Mr Carus advised that it should be confined to pain and suffering damage.[50]
[50]Exhibit B.
A copy of the draft affidavit was sent to Ms Taseska on 19 December, and, on 20 December, Ms Taseska attended at Mr Carus’ office and swore the affidavit that had been prepared on her instructions.[51] In addition to swearing the affidavit drafted by Ms Mills,[52] on 20 December 2011 Ms Taseska also signed the serious injury application, prepared by Mr Carus’ office.[53] Critically, by paragraph 2(f) of that application, Ms Taseska specified that, for the purpose of her application, she did not rely upon any loss of earning consequence of her right knee injury, but only the pain and suffering consequence.[54] In other words, she chose to make an application for the right to bring a common law claim for damages, arising from her right knee injury, limited to damages for pain and suffering. So limited, once the application is accepted on that basis the worker is precluded by law from bringing a claim to pursue damages for pecuniary loss in respect of the subject injury.
[51]With the omission of paragraph 5, as drafted by Ms Mills, about additional security measures that Chubb had put in place at the airport following the “9/11” event in the United States of America.
[52]Modified as described in the previous note, presumably at the office of Mr Carus.
[53]Exhibit A, document 10 (Form A – Application pursuant to section 134AB(b)(a) of the Accident Compensation Act 1985). Among others, the application listed the reports of Mr Talbot up to 7 December 2011 as relevant medical reports.
[54]See the definition of ‘serious injury’ as defined by the ACA s 134AB(38).
The claim against Mr Carus in this proceeding turns largely on the circumstances in which that choice came to be made. In due course, I will return to the oral (and other circumstantial) evidence about what took place in this period.
Mr Carus wrote to Ms Taseska on 20 December 2011 informing her that the s 134AB application ‘in relation to [her] right knee and leg injuries’ had been submitted to the VWA.[55] No specific reference was made in that letter to the nature or extent of the leave which had been sought.
[55]Exhibit A, document 14 (Letter and s134AB of the ACA – Serious Injury Certificate). Due to some oversight, the documents were resubmitted again in early January 2012, but nothing turns on that.
Serious injury certificate (pain and suffering) for right knee injury

On 23 May 2012 the VWA (via its authorised insurer) consented to Ms Taseska bringing proceedings to recover damages for pain and suffering only (as sought) in respect of her right knee injury, by certifying that her injury was a serious injury within the meaning of s 134AB(38(b)(i) of the ACA.
Shortly thereafter, on 30 May 2012, Mr Carus wrote to Ms Taseska advising her of the outcome of her application. Erroneously, however, the letter included this paragraph:
We are now pleased to advise WorkCover has agreed to grant you both certificate(s) for:
1. Pain and Suffering; and
2.Loss of Earning to date and Loss of Earning Capacity to Retirement Age.
The reference to the VWA having granted ‘both certificates’, one being for loss of earning capacity, was plainly incorrect. Later I will return to what Ms Taseska said about having received this letter in view of the events that had preceded it and those that followed.
Trial of damages claim for psychological injury adjourned
Shortly before the scheduled trial of the claim for damages for psychological injury a mediation took place at which the VWA made no offer. The trial of Ms Taseska’s proceeding did not proceed in the County Court on 24 July 2012, as listed, but was adjourned so that she could issue a claim for her right knee injury and have the two trials heard together.
Statutory offers exchanged and damages claim filed for right knee injury
In accordance with the statutory requirements outlined previously, in early August 2012 the VWA sent Mr Carus an offer to settle Ms Taseska’s right knee claim.[56] Mr Carus forwarded that offer, by letter, to Ms Taseska on 9 August inviting her to attend a conference at his office to give her instructions for the required counter offer.[57] In his letter to Ms Taseska, Mr Carus explained that the VWA’s offer was for ‘nil’ and that acceptance of it would require her to sign a release agreeing that ‘the sum of Nil represents your pain and suffering’ and that she would discharge the VWA from all further claims.
[56]Exhibit C.
[57]Exhibit D.
A conference was held at Mr Carus’ office, attended by Ms Taseska and her brother, Goran. The notes taken of the conference suggest that Ms Taseska was told that the compensation offered was for pain and suffering only. The notes also suggest that she was told that two different barristers had advised on a settlement figure for her pain and suffering damages claim, one being of the opinion it was between $80,000 to $100,000 and the other, $150,000. Mr Carus advised Ms Taseska to make a counter offer of $140,000. Ms Taseska was undecided on that day between offering $140,000 or $150,000 so she signed two authorities to make a counter offer, one for each figure.[58] The following day, she conveyed instructions to Mr Carus’ office to send a counter offer for the lower figure, and Mr Carus did so.[59]
[58]Exhibit E.
[59]Exhibit F.
In evidence before me, Ms Taseska disputed that she was told all of what the notes suggest that she was told. I will return to this issue later as it has an important bearing on what inferences may be drawn about Ms Taseska’s knowledge at the time her serious injury application was lodged on 20 December 2011.
On 21 September 2012, Mr Carus filed a writ in this Court seeking pain and suffering damages for Ms Taseska in relation to her right knee. The two proceedings were later fixed for hearing together, both in the Supreme Court, for 29 August 2013. In the month before the trial was scheduled, a mediation took place at which the VWA made no offers to resolve either proceeding.
Trials of psychological and right knee injuries claims vacated
The trials of both proceedings came on before Cavanough J on 29 August 2013. Mr Philip Jewell of Counsel was briefed to represent Ms Taseska. He opened the case,[60] and Ms Taseska gave evidence over the course of several days until the trial judge ordered the parties to attend a mediation. During the course of the mediation, between 2–5 September 2013, the solicitor-client relationship between Mr Carus and Ms Taseska broke down.[61] On 5 September Mr Carus obtained the Court’s leave to cease acting for Ms Taseska. The trials were both vacated and, as I will shortly explain, ultimately re-heard by J Forrest J in 2016.
[60]Exhibit A, document 69 (Transcript of trial before Cavanough J, 29 August 2013).
[61]Mr Carus’ account of that dispute, and what led to it, is set out in an email to Ms Taseska dated 16 October 2013, Exhibit G.
In the interim, Mr Carus and Ms Taseska had a dispute over costs. Henry Carus & Associates served a bill of costs for Mr Carus’ services between May 2011 and September 2013. Ms Taseska challenged that bill before the Costs Court.[62] Meanwhile, on 3 September 2015, Ms Taseska issued this proceeding alleging negligence against Mr Carus and seeking damages from him.
[62]In two separate decisions, AsJ Wood determined that Mr Carus was entitled to his costs arising from the retainer with Ms Taseska and that the costs be fixed in the gross sum of $175,000 (of which $164,000 was payable, taking account of the $11,000 Ms Taseska had already paid): Henry Carus & Associates v Silvana Taseska (Unreported, Supreme Court of Victoria, 26 June 2015); Henry Carus & Associates v Silvana Taseska (Unreported, Supreme Court of Victoria, 26 October 2015).
Trials of psychological and right knee injuries claims heard and determined
Commencing 8 February 2016 before J Forrest J, Ms Taseska represented herself in both proceedings against Chubb for her psychological and right knee injuries. On 20 May 2016, J Forrest J delivered judgment, dismissing the psychological injury claim but awarding Ms Taseska $250,000 for damages for pain and suffering with respect to her right knee injury. On 12 August 2016 the Court of Appeal dismissed Ms Taseska’s application for leave to appeal J Forrest J’s decision.
One consequence to Ms Taseska of losing the psychological injury claim was that she did not obtain any damages for loss of earning capacity, which she had claimed not only for the past but through to her anticipated retirement age. It was only in respect of that injury that she had a claim for pecuniary loss damages. Although she recovered a substantial award for pain and suffering in respect of her right knee injury, as is now readily apparent, she had no claim in that proceeding for loss of earning capacity.
She blames that circumstance on Mr Carus.
How the case was put
In her amended statement of claim filed 14 June 2018,[63] Ms Taseska’s fundamental complaint was that in applying for a serious injury certificate for her right knee injury, Mr Carus had negligently failed to make a claim for recovery of her past and future earnings or for her superannuation losses.[64] In particularising that pleading, she alleged that Mr Carus knew or should have known that he had an obligation and a responsibility to make such an application.[65]
[63]In a series of decisions made in 2017 and 2018, AsJ Daly gave summary judgment for the defendant on a number of claims that had previously been asserted in Ms Taseska’s proceeding. Without detailing all of them, one was a claim that she had suffered loss and damage from the defendants having allegedly failed to disclose to her an offer of settlement in 2013 during negotiations relating to her psychological injury and right knee injury claims. Taseska v Carus & Anor [2017] VSC 113; Taseska v Carus & Anor (No 2) [2017] VSC 707; Taseska v Carus & Anor (No 3) [2018] VSC 308.
[64]Exhibit A, document 2, para 18 (Amended Statement of Claim).
[65]Ibid [26](a).
Expanding on what Mr Carus knew or should have known, in her written outline of opening submission Ms Taseska alleged that by the time he came to lodge the serious injury application on her behalf, Mr Carus knew that:
·she needed knee replacement surgery and that her right knee injury affected her ability to work;[66] and, that,
·Ms Mills had drafted the proposed statement of claim and affidavit in support of the serious injury application for the purpose of claiming both pain and suffering and pecuniary loss.[67]
[66]Plaintiff’s Outline of Opening Submission dated 12 February 2019, [26].
[67]Ibid [29].
Other aspects of the alleged negligence were advanced during Ms Taseska’s oral opening of her case. They included allegations that, before lodging the application for a serious injury certificate, Mr Carus:
·failed to properly ‘research’ her right knee injury claim, in particular by failing to obtain medical reports that commented upon the effect of that injury on her capacity to earn income;
·failed to obtain appropriate advice from a barrister;
·failed to inform her about the progress of her claim generally, including by failing to inform (or consult) her about applying for a serious injury certificate in respect of her right knee injury that was limited to pain and suffering damages only; and
·was overly focussed on the question of the potential quantum of damages arising from her psychological injury claim.
In essence, Ms Taseska’s case is a claim in tort and contract for breach of the duty of care, and for other breaches of retainer, causing the loss of an opportunity to recover damages for economic loss consequent upon her right knee injury. She alleges that Mr Carus failed to exercise reasonable care in conducting her claim in relation to her right knee injury by confining it to one for pain and suffering damages only. Her complaint has two aspects: first, that Mr Carus negligently formed the view that it was in her interests to have her claim so confined; and, secondly, that Mr Carus acted without her instructions in making that limited application.
The defendants admitted that they applied for a serious injury certificate on behalf of Ms Taseska in respect of the right knee injury for pain and suffering only. They asserted that they had advised Ms Taseska not to apply for a certificate for leave to pursue pecuniary loss damages. In the circumstances that are particularised in their defence, essentially reflecting the facts outlined so far in these reasons, they denied that their advice or conduct was negligent, asserting instead that it was reasonable.[68]
Principles
[68]Exhibit A, document 6, [18] and particulars thereto (Defence dated 3 July 2018).
The standard of care of a professional in negligence and contract
Professionals including solicitors owe a concurrent contractual and tortious duty to take reasonable care in the provision of advice and services to their clients. The contractual duty is implied by operation of law and the tortious duty arises out of the relationship between the parties.[69]
[69]Astley v Austrust Limited [1999] 197 CLR 1, 22-23, approving Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, 193-194; Heydon v NRMA Ltd (2000) 51 NSWLR 1 ('Heydon') 118 [363]-[365] (McPherson AJA); Tasmanian Sandstone Quarries Pty Ltd v LegalCom Pty Ltd [2010] SASCFC 6 (19 July 2010) [78] (Gray J, Nyland and Kourakis JJ agreeing), cited with approval in Goddard Elliott v Fritsch [2012] VSC 87 ('Fritsch') [405].
In both contract and tort, the standard of care which is expected of a person with some special skill or competence is that of ‘the ordinary person exercising and professing to have that special skill’.[70]
[70]Rogers v Whitaker (1992) 175 CLR 479, 487; Fritsch [407].
In Heydon this standard was applied to solicitors and barristers. It was held that, in determining whether a solicitor or barrister has exercised reasonable care in the provision of professional advice, the ‘standard of care and skill is that which may be reasonably expected of practitioners’.[71]
[71]Heydon [146] (Malcolm AJA).
When considering whether competent and professional legal advice has been given, it is important to avoid hindsight. As Megarry J stated in Duchess of Argyll v Beuselinck:
There are few things that could not have been done better if done with hindsight. The advantages of hindsight include the benefit of having a sufficient indication of which of the many factors present are important and ·which are unimportant. But hindsight is no touchstone in negligence. The standard of care to be expected of a professional man must be based on events as they occur, in prospect and not in retrospect.[72]
[72][1972] 2 Lloyd's Rep 172, [185], cited with approval in Fritsch [410]. Section 58 of the Wrongs Act 1958 (Vic) gives statutory expression to these two last-mentioned principles.
For that reason, one has to put oneself in the position of the solicitor at the time when he or she acted, with the knowledge that the solicitor had available to him or her at that time.[73]
[73]Vairy v Wyong Shire Council (2005) 80 ALJR 1, [61] (Gummow J); [126] (Hayne J); Ginelle Finance Pty Ltd v Diakaakis [2007] NSWSC 60, [101].
Further, as Bell J stated in Fritsch,[74] referring to Bray CJ in Jennings v Zilahi-Kiss,[75] a professional person ‘is only liable for the use of ordinary care and skill’ and ‘is not bound to guarantee against all mistakes or omissions’. His Honour went on to cite with approval Oliver J in Midland Bank Trust Company Ltd v Stubbs and Kemp,[76] who found that the standard is not that of the ‘particularly meticulous and conscientious practitioner ... [but] what the reasonably competent practitioner would do having regard to the standards normally adopted in the profession’.
[74]Fritsch [411].
[75][1972] 2 SASR 493, 512.
[76][1979] Ch 384, 403.
It may be accepted that a solicitor with particular expertise who obtains counsel's advice may be ‘well placed to consider it and form his own view about its correctness’.[77] Logically, it is not inconsistent with the exercise of reasonable care that such a solicitor, having obtained counsel's advice, independently forms his or her own view as to its correctness and the appropriate course to be adopted for his or her client.
[77]Yates Property Corp Pty Ltd (in liq) v Boland (1998) 85 FCR 84, 108. The full passage is cited with approval in Wakim v McNally & Anor (2002) 121 FCR 162, 174.
Loss of opportunity claim
The principles with respect to proof of a lost opportunity and the valuation of a lost opportunity are well established. In Sellars v Adelaide Petroleum,[78] Mason CJ, Dawson, Toohey and Gaudron JJ stated:
[T]he general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has suffered loss or damage. The applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as this, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities.[79]
[78](1994) 179 CLR 332 (‘Sellars’).
[79]Ibid [39] (emphasis added).
Damages for deprivation of a commercial opportunity, whether the deprivation occurred by reason of a breach of contract, tort or contravention of s 52(1) of the Trade Practices Act 1974 (Cth), should be ascertained by reference to the court’s assessment of the prospects of success of that opportunity had it been pursued.[80]
[80]Malec; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; Sellars, 335.
In assessing the value of a lost opportunity, events can be taken into account even though the likelihood that they would have happened is less than 50% or they were no more than possibilities.[81]
[81]The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 (‘Amann’), 92, 102-104 and 118-119; Sellars, 348, 354.
With reference to a claim against a lawyer, when a client loses the opportunity to pursue a legal claim because of the lawyer’s negligence, the court must determine the value of that lost opportunity and base the damages (if any) on that determination.[82]
[82]Kitchen v Royal Air Forces Association [1958] 1 WLR 563, 574-75 (Lord Evershed MR) (‘Kitchen’); Johnson v Perez (1988) 166 CLR 351, 363-364 (Wilson, Toohey and Gaudron JJ); 371-372 (Brennan J), applied in Rosa v Galbally & O'Bryan [2012] VSC 3, [7]; Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394, 404 (Wilson, Dawson, Toohey and Gaudron JJ); applied in Fritsch [846] (Bell J).
To determine the value of that lost opportunity, the court may be required to conduct a ‘trial within a trial’ or a ‘notional trial’, that is, the court may be required to consider the plaintiff's prospects of success in the trial of the claim had it gone to trial.[83]
[83]Fritsch [846] (Bell J).
Where there are difficulties in proving the value of a loss the court is not precluded from awarding damages. Once it is established that a loss has occurred the court must quantify the loss as best it can even if a degree of speculation and guess work may be involved.[84]
[84]Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167; also see Amann [31].
Nonetheless, in Giuca v Coadys,[85] Gillard J stated:
The authorities in my opinion do not lay down any hard and fast rule as to what evidence has to be adduced in the negligence trial on the issue of the likely outcome of the first trial if it had proceeded to judgment. Each case must depend upon its own particular circumstances. In many cases the questions of causation and damages will be clear beyond doubt and readily provable. In other cases this will not be the position and the Court is then bound to consider as best it can the likely outcome of the first proceeding if it had gone through to judgment and make some assessment of the value of the lost opportunity. In some cases the defendant will be able to put in issue that the plaintiff could not possibly have succeeded in the first trial and successfully defend the claim on that basis. If negligence was proven all the plaintiff would recover are nominal damages.[86]
[85][2000] VSC 230.
[86]Ibid [183] (emphasis added).
Were the defendants negligent or did they otherwise breach their retainer?
There is no real doubt that Mr Carus considered the question of whether Ms Taseska should apply for a serious injury certificate for both pain and suffering and pecuniary loss in relation to her right knee injury, and that he consciously took the view that she should apply for pain and suffering damages only.
In his own evidence he said that he gave that question consideration and reached that conclusion.[87] That he did so is corroborated by other evidence. For instance, he received the email of 25 November 2011 from Ms Forbes warning of the difficulty that would be created for the psychological injury claim if the knee injury claim was for anything more than pain and suffering.[88] Also, he had received the memorandum of advice from Ms Mills that referred to the question whether the certificate should be sought to pursue a pecuniary loss claim and drew attention to the factual matters that would make it difficult to establish a loss of earning capacity from the right knee injury.[89] Against that background, he was asked directly by Ms Poh whether the application should be made for both heads of loss or only for pain and suffering, and he directed that it be for pain and suffering only.[90]
[87]T 162-166, 181.
[88]Exhibit A, document 40 (Emails from Jacinta Forbes to Henry Carus).
[89]Exhibit A, document 44 (Memorandum of Advice, Affidavit and Statement of Claim from Caroline Mills).
[90]As discussed above at [47]of this judgment.
It follows that this is not a case of inadvertence or inattention. This is a situation where the solicitor, having considered the matter, reached a conscious conclusion that the application should be confined to one head of loss and thereby exclude the other.

On the question whether Mr Carus failed to exercise reasonable care, or otherwise breached his retainer in any of the ways alleged by Ms Taseska, there are two critical factual questions to answer: first, was it reasonable in all the circumstances for Mr Carus to reach the view that Ms Taseska should apply for a serious injury certificate in respect of her right knee injury limited to pain and suffering loss only, thereby excluding her prospect of seeking pecuniary loss damages for that injury; and, secondly, did he obtain Ms Taseska’s instructions to take that course?
Was it reasonable for Mr Carus to conclude that Ms Taseska should limit her application to seek pain and suffering damages only?
Mr Carus gave evidence about his reasoning for the conclusion that it was inadvisable, and not in her interests, for Ms Taseska to apply for a certificate to enable the pursuit of a pecuniary loss claim for her right knee injury.[91] In summary, the reasons he gave for reaching that conclusion were as follows:
[91]T 163-166.

(a) there was no medical evidence before him to support the view that, then or into the future, Ms Taseska had a permanent loss of earning capacity of more than 40% due solely to her right knee injury;

(b) in his own experience, a knee condition that required a knee replacement, without more, was unlikely to meet that threshold for a plaintiff with Ms Taseska’s characteristics;

(c) Ms Taseska had already sworn an affidavit in which she said that, notwithstanding her physical injuries, the reason she could not work was her psychological injury;

(d) for over seven years Ms Taseska had been submitting medical certificates to the VWA, from her psychiatrist and treating doctors, stating that she could not work by reason of her psychological injury;

(e) the existing medical evidence strongly supported the view that she had no work capacity because of her psychological injury;

(f) on the evidence before him, he thought that the VWA would almost certainly deny an application for a certificate that included a claim for pecuniary loss for her right knee injury;

(g) whereas an application for a serious injury certificate made to the Transport Accident Commission under its legislation would not need to specify the extent of the leave sought – and where, if leave was granted, a plaintiff would automatically be entitled to sue for both pain and suffering and for economic loss – the approach of the VWA under its regime was different: that is, the VWA could not ‘split’ an application made for leave to sue under both heads of damage by consenting to one head but not the other, and, once her application was denied (which, for that reason, Mr Carus thought probable), it would then become necessary for Ms Taseska to establish her entitlement to sue in court;

(h) in applying for leave to sue in court, Ms Taseska would probably have been required to give evidence to support her claim for pecuniary loss stemming from her right knee injury, and that evidence would necessarily have contradicted what she had already sworn to be true in her affidavit relating to her psychological injury;

(i) because he took the view it was improbable Ms Taseska would ever satisfy the permanent 40% loss of earning capacity test in respect of her right knee injury, there would be no value to her in applying for leave to pursue pecuniary loss damages for that injury and, instead, there was a real chance that an application of that kind would diminish the value of her psychological injury claim;

(j) because of the size of her statutory counter offer for her psychological injury claim, she needed to maximise the recovery of damages for that claim otherwise she would not recover her legal costs for it;

(k) even if she could satisfy the 40% threshold for permanent loss of earning capacity in respect of her right knee injury, there was a significant risk that her entitlement to damages for pecuniary loss would be much reduced in any event due to the evidence that her other ailments (physical and psychological) were also impairing her capacity for work; and, finally,

(l) even if all other hurdles could be overcome, the likelihood that she would only recover a significantly reduced damages award for loss of earning capacity due to her right knee injury, compared to the value of her entitlement to ongoing weekly payments under the ACA for her psychological injury, made the pecuniary loss application a poor option.

It is necessary to say something about the reference to ‘split’ applications referred to in paragraph (g) above. Given that Mr Carus has more than 30 years of experience in practising personal injury law, I have no reason to disbelieve what he described as the practice of the VWA at that time. Further, although I have not found any authority explicitly on the point,[92] a reasonable construction of ss 134AB(16), (17) and (38)(b) of the ACA supports the proposition that, in circumstances where the applicant for a serious injury certificate sought leave in respect of both heads of loss but was unable to satisfy the test for pecuniary loss, only a court (other than the Magistrates’ Court), and not the VWA, could allow a claim to proceed for pain and suffering loss only.
[92]Which is not to say that no authority exists.

Mr Carus had before him the medical evidence from Ms Taseska’s treating orthopaedic surgeon, Mr Talbot, that was as recent as 7 December 2011.[93] He had obtained opinions from counsel who had both pointed out the dangers for Ms Taseska’s psychological injury claim if she brought an application to pursue pecuniary loss in respect of her right knee injury. He had formed his own view, based upon his years’ of experience as a personal injuries specialist, about the likelihood that a knee injury that warranted a knee replacement in a relatively young woman would attract a 40% loss of earning capacity rating on a permanent basis. He was well-versed in the requirements of the ACA legislation and no error of interpretation, understanding or application has been identified. He considered, as he ought to have done, the impact of making an application for pecuniary loss damages for her right knee injury upon her existing claim for psychological injury. He assessed the liability merits of both claims in light of his instructions and the opinions of counsel. He considered the prospect of successfully applying to pursue pecuniary loss in respect of her right knee injury against the background of Ms Taseska’s history of claims and affidavit material then in existence.
[93]See footnote 49 above.

Mr Carus’ conduct, of course, is to be assessed in the circumstances that were before him, and not retrospectively with the benefit of hindsight.

Against the background of facts that have been set out in these reasons, I am not persuaded that Mr Carus’ conduct fell short of the standard of care and skill which may be reasonably expected of an ordinary skilled practitioner. Indeed, the view he took impressed me as being sound and in the best interests of Ms Taseska, judged in the circumstances existing at that time.

Did Ms Taseska instruct Mr Carus to limit her application to pain and suffering loss?

Ms Taseska claims that Mr Carus did not tell her that he was only making an application in respect of her right knee claim for pain and suffering damages, and not for pecuniary loss.[94] In fact, Ms Taseska claims that if Mr Carus had told her that that was what he intended to do, she would have looked for another solicitor to make her application.[95]
[94]T 100.
[95]Ibid.

It would follow from that evidence that, on her account, Mr Carus did not seek any instructions from her on or about 20 December 2011 to complete her application for a serious injury certificate limited to pain and suffering damages. Curiously, Ms Taseska did not plead in her statement of claim that Mr Carus made the serious injury application without her instructions, nor did she make that assertion in her written outline of opening submissions. Perhaps that omission can be forgiven or rationalised because Ms Taseska is not legally trained. In saying that, however, I was impressed by Ms Taseska’s ability to represent her interests and I found her to be quite astute throughout the course of the hearing.

For his part, Mr Carus said that he believed he had advised Ms Taseska that her right knee economic loss claim was not a viable one and that he did not think it could go forward on the evidence then before him.[96] He conceded, however, that he had no file note of such a conversation nor any actual recollection of the conversation occurring. Rather, he said, he believed that the conversation occurred because it was his ‘usual practice’ to explain the contents of an application for a serious injury certificate to a client at the point of having it signed; that is, he would explain what the application document asked for and the reasons for completing in the form in which it was presented.
[96]T 161.

It is the case: there is no file note of any conversation between Mr Carus (or any employee of his firm) with Ms Taseska at or around the time she was asked to sign the Form A application for the serious injury certificate on 20 December 2011. It is sometimes said that the absence of a file note by a solicitor, where a file note might be expected to have been made, should lead a court to prefer the version of events given by the client.[97]
[97]J.L. Powell & R. Stewart, Jackson & Powell on Professional Liability (Thomson Reuters, 8^th ed, 2017) 851.

However, this is not a situation in which there is a vacuum of other evidence to assist the Court in choosing between competing versions. First, there is the Form A document itself. It is that document which sets out the clear choice made by Ms Taseska to apply for a certificate to pursue damages for pain and suffering but not for pecuniary loss. The document is signed by Ms Taseska. She did not claim to be unaware of its contents at the time of signing it. Further, I infer that Ms Taseska is likely to have read the document carefully and to have understood it. It is difficult to miss, or to misunderstand, the choice presented in the document for relying on each head of loss. That choice is presented, graphically, by the option to place a tick in a box directly beneath words describing each of the options. In respect of the document she signed, a tick was placed against ‘yes’ beneath the words ‘pain and suffering’ and a tick was placed against ‘no’ beneath the words ‘loss of earning capacity’. Further, they were the only words appearing on that particular page. I assume that the document was completed that way by the time Ms Taseska read it, but simply turning the pages and scanning their contents would have revealed that choice.

I also infer that by the time Ms Taseska came to sign that document on 20 December 2011, she was aware of the difference between pain and suffering damages on the one hand, and pecuniary loss damages on the other. By that stage, it is probable those concepts had been explained to her by the two firms of solicitors that had acted for her before she retained Mr Carus. Moreover, by that particular time she had had conferences with several counsel (at the least, Mr Forsyth and Ms Mills) during which, in all probability, those concepts were explained to her. Additionally, having previously terminated the services of two firms of solicitors before ever engaging Mr Carus, I infer that Ms Taseska was quite astute in evaluating the legal advice she received and was cautious to look after her own interests.

For a combination of reasons, in late 2011 I think that Ms Taseska was probably aware of the distinction between a serious injury certificate that permitted her to pursue both potential heads of loss and one that permitted her to pursue only one head of loss.

There is another factor, however, that could potentially tell against the account given by Mr Carus. That is the absence of Ms Poh as a witness in the proceeding. Given that she was an employee of Mr Carus it may be expected that he would have called her to give evidence, both about the advice given to Ms Taseska before she signed the serious injury application but also as to her instructions in the light of that advice. An unexplained failure on the part of Mr Carus to call Ms Poh would allow (but not require) me to infer that her evidence would not have assisted his case.[98] But an explanation was given for her absence.[99] Ms Poh no longer works for Mr Carus. The lawyers acting for Mr Carus in this proceeding, and Mr Carus himself, attempted to locate Ms Poh via her last known telephone number and through social media, but without success. I am satisfied, in the particular circumstances of this case, that her absence as a witness has been satisfactorily explained. In any event, even if I was not satisfied about that explanation I could not infer what her evidence might have been. As I have said, there is other evidence from which more reliable inferences can be drawn as to what occurred.
[98]Jones v Dunkel (1959) 101 CLR 289, (‘Dunkel’).
[99]T 250.

Perhaps the most crucial piece of evidence, other than the signed Form A document itself, is the file note of the conference on 16 August 2012 held between Mr Carus, Ms Taseska, her brother Goran and others.[100] I am satisfied that at that conference Ms Taseska was reminded, in effect, that the claim she had made in respect of her right knee injury was for pain and suffering only, and that she made no objection or complaint about that fact. She discussed the offer made by the VWA to settle her claim, and she discussed the counter offer to be made in response. It was clear that the figures being discussed for her counter offer could only have been for pain and suffering.
[100]Exhibit E; as also discussed above at [55] of this judgment.

Of course, as already mentioned,[101] Ms Taseska denies being told or reminded at that conference that her claim was limited to one for pain and suffering only. I do not accept her evidence about that fact. Ms Taseska accepts that almost everything recorded in that file note was said in her presence. She disputes only two things: they are the two things that do not assist her case. The first is that she was informed that two counsel had recommended that the fair and reasonable range of damages to settle her right knee claim was between $80,000 and $150,000, a range that would have been wildly discordant with her expectation of recoverable damages for both heads of loss. The second was an express statement made to her that the offer of settlement in respect of her right knee injury was for pain and suffering damages only.
[101]See at [56] above. She also claimed to have believed that she had received a certificate to pursue both heads of loss, because of the letter from Mr Carus on 30 May 2012; see [52] above.

It is inherently improbable that a solicitor would make a contemporaneous but fictitious note that a particular statement was made in a conference in order to gain some protection for a dispute with a client well before any dispute arose and when there was no reason to suspect that it would arise. The more probable explanation for Ms Taseska’s evidence is that she cannot remember being given that advice or, if she does, she chooses not to admit it. It is also important to note that Ms Taseska did not call her brother, Goran, to give evidence when he also attended that conference and could, presumably, give evidence about what was or was not said. Being present in court each day during the trial, and having assisted Ms Taseska (with the leave of the court) to make her submissions, there can be no question about his availability to give evidence. In those circumstances, I infer from Ms Taseska’s failure to call her brother that his evidence would not have assisted her on this point.[102]
[102]Dunkel.

Ms Taseska did not satisfactorily explain why she agreed to make a statutory counter offer for her right knee injury of only $140,000 if she did not also understand that it was limited to a pain and suffering damages claim. In my view, the fact that she made that offer at that level is only consistent with her knowing that her claim was so limited. And the fact that she knew it then, and made no complaint to her solicitors about it at that time, is consistent with her having been given that advice before August 2012 and having accepted it.

I infer, as Mr Carus claimed, that in December 2011 Ms Taseska was strongly focused on her psychological injury claim. In my opinion, Ms Taseska’s recollection of her interactions with Mr Carus about her right knee injury claim is strongly influenced by the hindsight she gained once her psychological injury claim was determined by J Forrest J; that is, by the knowledge that she could not recover any pecuniary loss damages for that injury. Consciously or unconsciously, she has reconstructed her memory of those interactions to suit her present argument that she always wanted her loss of earning capacity to be attributed to her right knee injury.

Related to that observation, there were aspects of Ms Taseska’s evidence that caused me to doubt her reliability as a witness. One was her insistence that her right knee injury prevented her from working in 2003, either independently of her psychological condition or along with it,[103] when there was no contemporaneous evidence to support that assertion. Another was her claim that Dr Wahr, her psychiatrist, had, from time to time, issued medical certificates certifying her as unfit for work due to her right knee.[104] Dr Wahr gave evidence before J Forrest J in 2016 that he was unaware that Ms Taseska had a knee injury,[105] and it would appear unlikely that a psychiatrist would express an opinion in a medical field well outside his discipline.
[103]For example, see T 83-84. I gained the impression from Ms Taseska’s evidence and the way she cross-examined Mr Carus, that she now believes that if her psychological condition was to resolve then her knee injury would be sufficient to prevent her from doing any work on a permanent basis, and therefore she is entitled (and has since 2003 been entitled) to damages for lost earning capacity due to her knee injury alone.
[104]T 85.
[105]Exhibit A, document 73 (Pages 257-297 of the transcript of hearing before the Honourable Justice Jack Forrest on 15 February 2016 (being the evidence-in-chief and cross-examination of Dr George Peter Wahr on that day).

In conclusion, I find that Ms Taseska instructed Mr Carus to confine her application for a serious injury certificate in respect of her right knee injury to pain and suffering loss only, having first been advised of the reasons for and consequences of that choice.

In the result, I do not find that Mr Carus or his firm were negligent or breached their retainer with Ms Taseska in any of the ways she alleged. It follows that her case fails at this level. In case there should be any doubt about this conclusion, I proceed to the further issue of causation.

Did any negligence of Mr Carus cause loss to Ms Taseska?

Mr Carus argued that even if he or his firm were negligent or had breached the retainer as alleged, that negligence or breach caused no loss to Ms Taseska. It was submitted that Ms Taseska had no chance -- or, at best, a negligible chance -- of obtaining a better financial outcome, by applying for a serious injury certificate for her right knee injury which included a claim for pecuniary loss, than the outcome she has in fact obtained by not doing so.
I accept that submission, in substance for the reasons advanced on behalf of Mr Carus and his firm. I will state my reasons briefly. My reasons reflect my view that the analysis that led Mr Carus to advise Ms Taseska not to pursue a pecuniary loss claim for her knee injury was soundly based, and realistically foreshadowed what would occur should she make that application.

On the facts as outlined above:

(a) it was extremely unlikely that the VWA would have accepted a claim for pecuniary loss for her right knee injury given the existing medical evidence, the seven or more years of weekly payments premised on her incapacity being due to her psychological injury, Ms Taseska’s past sworn evidence about her reasons for ceasing work, her other complicating medical conditions, and the inherent difficulty in establishing that a knee injury requiring a knee replacement would constitute a 40% permanent loss of earning capacity for a young worker capable of sedentary work;

(b) Ms Taseska would, therefore, have been forced to make a court application, and give evidence that contradicted the whole premise on which her psychological injury claim was based;

(c) for similar reasons, it was highly unlikely that a court would have given her leave to commence a proceeding for damages, but also for the added reason that by then Ms Taseska’s credit would most likely have been largely eroded by the contradictory evidence she had given;

(d) in the unlikely event that Ms Taseska obtained a certificate from the VWA or the leave of the court to bring a proceeding for her right knee injury, it would almost certainly have been conducted together with her claim for the psychological injury which faced the hurdle of having to reach damages of $720,000 in order for her to recover costs on that claim; and

(e) at any trial, the problems already mentioned would have hindered Ms Taseska forensically, and in substance, on all issues, so that the chance of her obtaining an award of damages that exceeded the combined value of the benefit of the existing entitlement to receive ongoing weekly payments due to her psychological condition (probably to retirement age), plus damages for pain and suffering for her right knee, was negligible.

In summary, if the defendants deprived Ms Taseska of any opportunity because of their negligence, that opportunity had no or only negligible value. It follows, Ms Taseska’s claim would also fail on the issue of causation of loss or damage.

What is the appropriate award of damages (if any)?

In light of the conclusions I have formed, it is unnecessary to consider the assessment of loss for Ms Taseska arising from her allegations against Mr Carus or his firm in this proceeding.
Conclusion

Ms Taseska’s claim against each defendant must be dismissed.

[2019] VSC 342

22 May 2019