Tomko v Palasty

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.