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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taseska v Carus

Details

AGLC: Taseska v Carus [2019] VSC 342
Case: [2019] VSC 342
Decision Date: 22 May 2019

CaseChat Overview and Summary

In the matter of Taseska v Carus, the Federal Court of Australia was tasked with evaluating the professional negligence of a solicitor in the context of a client's claims against a former employer. The client, Taseska, sought compensation for psychological and physical injuries sustained during employment. The court was required to determine whether the solicitor, Carus, had acted negligently by limiting the scope of the legal action for the client's right knee injury to pain and suffering damages only, rather than pursuing pecuniary loss damages as well.

The central legal issue revolved around the standard of care expected of a solicitor in advising a client with concurrent claims, and whether the solicitor's actions were within the scope of the client's instructions. The court considered whether Carus's decision to limit the scope of the legal action for the right knee injury to pain and suffering damages constituted a breach of the duty of care owed to Taseska. Additionally, the court needed to decide if the limitation of the claim resulted in a loss of opportunity for Taseska to pursue pecuniary loss damages for the right knee injury, in light of the dismissal of the psychological injury claim at trial.

The court found that Carus's conduct was not negligent. The decision to limit the legal action to pain and suffering damages for the right knee injury was deemed to be within the scope of the client's instructions. The court concluded that Carus had acted reasonably in advising Taseska, taking into account the client's total incapacity for work due to the psychological injury and the potential impact on the Accident Compensation Act 1985. The court applied the principles from Rogers v Whitaker to establish the standard of care expected and determined that Carus had not breached this duty. Furthermore, the court held that there was no loss of opportunity to pursue pecuniary loss damages for the right knee injury, as the dismissal of the psychological injury claim at trial was not attributable to the solicitor's advice.

As a result, the court dismissed Taseska's claim against Carus for professional negligence. The court determined that Carus had fulfilled the requisite standard of care in advising the client, and that the limitation of the legal action for the right knee injury did not constitute a breach of the duty of care. The court did not find that the client had suffered any loss of opportunity to pursue pecuniary loss damages for the right knee injury.

Orders