New South Wales
Court of Appeal
CITATION: BECHARA v JAWHAR [2007] NSWCA 25
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 10/11/2006
JUDGMENT DATE:
26 February 2007JUDGMENT OF: Beazley JA at 1; McColl JA at 2; Bryson JA at 3 DECISION: (1) Appeal allowed with costs.; (2) Set aside judgment for the plaintiff in the District Court and in lieu thereof give judgment for the defendant with costs.; (3) The respondent is to have a Certificate under the Suitors’ Fund Act 1951. CATCHWORDS: LEGAL PRACTITIONERS - solicitor's negligence - client seriously injured at work on 30 July 2000 commenced Common Law damages proceedings on 23 November 2001, hence deemed by then WComp Act s.151A to elect against permanent loss compensation - CLD proceedings later discontinued because no evidence of negligence - client sued solicitor claiming negligence in (a) advice whether to sue at common law or claim damages, on WComp rights, election and amount of permanent loss compensation and (b) acting on instructions to issue CLD proceedings. Client recovered damages in DCt. On appeal, consideration in detail of evidence and findings on advice given to client by solicitor, junior counsel and senior counsel - errors of fact-finding on terms of advice - found, no breach of duty having regard to terms of advice given. Consideration of - causation where clear advice not to sue was disregarded - solicitor's duty to bring proceedings where client so instructs, before enactment of LPAct 1987 s.198J. Appeal allowed. LEGISLATION CITED: Civil Liability Act 2002 Sched.2
Legal Profession Act 1987 s.198J
Suitors’ Fund Act 1951
Workers Compensation Act 1987 ss.66, 67 & 151A; Schedule 6 Pt.18C; Div.4 Pt.3
Workers Compensation Legislation Further Amendment Act 2001CASES CITED: Astley v Austrust Ltd (1999) 197 CLR 1
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300
Medcalf v Mardell [2003] 1 AC 120
Ridehalgh v Horsefield [1994] Ch 205PARTIES: Appellant - MARIA TERESA BECHARA
Respondent - WILLIAM WAHIB JAWHARFILE NUMBER(S): CA 40523/05 COUNSEL: App: R.J. Ellicott Q.C./R.N. Gye
Resp: G. Laughton SC/J. CallawaySOLICITORS: App: Deborah G. Marriott
Resp: Owen Hodge Lawyers
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2322/04 LOWER COURT JUDICIAL OFFICER: Judge Naughton QC LOWER COURT DATE OF DECISION: 8 June 2005
40523 of 2005
MONDAY 26 February 2007BEAZLEY JA
McCOLL JA
BRYSON JA
MARIA TERESA BECHARA v WILLIAM WAHIB JAWHAR
Judgment
1 BEAZLEY JA: I agree with Bryson JA.
2 McCOLL JA: I agree with Bryson JA.
3 BRYSON JA: The appellant Ms Bechara, who is a solicitor, appeals against the judgment given against her on 8 June 2005 by his Honour Judge Naughton QC, awarding the respondent Mr Jawhar damages of $146,271.00 and costs for professional negligence. On 30 July 2000 Mr Jawhar, a boilermaker and wrought iron worker, was…
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- AGLC
- Tomko v Palasty [2007] NSWCA 25
- Case
- [2007] NSWCA 25
- Decision Date
CaseChat Overview and Summary
The case of *Tomko v Palasty* concerned a claim of solicitor's negligence brought by a client who had suffered a serious work injury. The client initiated Common Law damages proceedings on 23 November 2001, which, under section 151A of the then Workers Compensation Act, constituted an election against receiving permanent loss compensation. These proceedings were subsequently discontinued due to a lack of evidence of negligence. The client then sued their solicitor, alleging negligence in two main areas: first, in the advice provided regarding whether to pursue common law action or claim workers' compensation, including advice on the election and the amount of permanent loss compensation; and second, in acting on instructions to issue the common law proceedings. The District Court had awarded damages to the client.
The appellate court was required to determine whether the solicitor had breached their duty of care to the client. This involved a detailed examination of the evidence concerning the advice given by the solicitor, junior counsel, and senior counsel to the client. The court also had to consider the issue of causation, particularly in circumstances where clear advice not to sue was disregarded by the client, and the solicitor's duty to issue proceedings when instructed to do so, prior to the enactment of section 198J of the Legal Practitioners Act 1987.
The Court of Appeal found that there had been errors in the District Court's fact-finding regarding the terms of the advice provided to the client. Upon a detailed consideration of the evidence, the appellate court concluded that, having regard to the actual terms of the advice given, the solicitor had not breached their duty of care. The court determined that the client's decision to proceed with litigation, despite being advised against it, was a cause of the subsequent discontinuance and the client's inability to recover damages.
Consequently, the Court of Appeal allowed the appeal, set aside the judgment entered for the plaintiff in the District Court, and entered judgment for the defendant with costs. The respondent was also granted a Certificate under the Suitors' Fund Act 1951.
The appellate court was required to determine whether the solicitor had breached their duty of care to the client. This involved a detailed examination of the evidence concerning the advice given by the solicitor, junior counsel, and senior counsel to the client. The court also had to consider the issue of causation, particularly in circumstances where clear advice not to sue was disregarded by the client, and the solicitor's duty to issue proceedings when instructed to do so, prior to the enactment of section 198J of the Legal Practitioners Act 1987.
The Court of Appeal found that there had been errors in the District Court's fact-finding regarding the terms of the advice provided to the client. Upon a detailed consideration of the evidence, the appellate court concluded that, having regard to the actual terms of the advice given, the solicitor had not breached their duty of care. The court determined that the client's decision to proceed with litigation, despite being advised against it, was a cause of the subsequent discontinuance and the client's inability to recover damages.
Consequently, the Court of Appeal allowed the appeal, set aside the judgment entered for the plaintiff in the District Court, and entered judgment for the defendant with costs. The respondent was also granted a Certificate under the Suitors' Fund Act 1951.
Orders
Orders of the court
(1) Appeal allowed with costs.; (2) Set aside judgment for the plaintiff in the District Court and in lieu thereof give judgment for the defendant with costs.; (3) The respondent is to have a Certificate under the Suitors' Fund Act 1951.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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