Valencia v Wlodarcyzk and Co
[2003] QDC 337
•22 September 2003
DISTRICT COURT OF QUEENSLAND
CITATION:
Valencia v. Wlodarcyzk & Co [2003] QDC 337
PARTIES:
JORGE ALBERTO VALENCIA (Plaintiff)
v.
CHRIS WLODARCYZK & COMPANY (a firm) (Defendant)
FILE NO/S:
D5527 of 2001
DIVISION:
PROCEEDING:
ORIGINATING COURT:
District Court
DELIVERED ON:
22 September 2003
DELIVERED AT:
Brisbane
HEARING DATE:
JUDGE:
Boyce DCJ
ORDER:
Claim dismissed with costs
CATCHWORDS:
Professional negligence – solicitors – negligence in compromise of personal injury claim – psychiatric injury
COUNSEL:
Mr. S. Farrell for the plaintiff
Mr. R. Morton for the defendantSOLICITORS:
Murphy Schmidt for plaintiff
Quinlan Miller & Treston for defendant
This action is brought by the plaintiff (whom I shall call “Mr. Valencia”) against the defendant firm of solicitors (whom I shall refer to as “the solicitors”).
Mr. Valencia claims damages for the loss of an opportunity occasioned by the negligence and/or breach of contract of the solicitors in the compromise of a personal injury claim in June 1997.
Mr. Valencia was involved in a motor accident in Brisbane on 13 November 1996. (“the first accident”). He consulted the solicitors in November 1996.
The solicitors negotiated with the licensed insurer (“Suncorp”) and settled the claim in June 1997 for $10,000 “all up”.
These proceedings were commenced on 19 November 2001. Mr. Valencia asserts (inter alia) that the solicitors:
(a) Failed to obtain specialist psychiatric opinion regarding Mr. Valencia’s psychiatric injuries;
(b) Failed to appreciate and/or competently assess the quantum of Mr. Valencia’s claim;
(c) Failed to undertake all the necessary investigations into the quantum of Mr. Valencia’s claim prior to settling the claim;
(d) Settled Mr. Valencia’s claim prior to the stabilisation of Mr. Valencia’s injuries or otherwise at a time prior to the conclusion of medical investigation into Mr. Valencia’s injuries;
(e) Failed to provide adequate or any competent advice to Mr. Valencia regarding the quantum of his claim;
(f) Settled Mr. Valencia’s claim for a sum substantially less than he would have received at trial.
The statement of claim asserts that if competently prosecuted Mr. Valencia’s claim would have been heard at trial about November 2000 and general damages would have been assessed at some $60,000. His total claim is in the sum of $71,414.69.
The History Of The Personal Injury Claim
Mr. Valencia was born on 9 May 1933. He obtained a social security pension in 1995. The exact status of that pension is unclear.
He was therefore a pensioner at the time of the accident on 14 November 1996. At no time was there any claim made for past economic loss or future economic loss.
A chronology of events was prepared by the solicitors for Mr. Valencia and I set out
that chronology:
| DATE | EVENT |
| 09/05/1993 | Plaintiff born in El Salvador |
| 1970 | One of the plaintiff’s sons dies in a motor vehicle accident |
| 1980 | Immigrated to Costa Rica from El Salvador |
| 16/10/1981 | One of the plaintiff’s sons goes missing in El Salvador |
| 08/11/1989 | Immigrated to Australia from Costa Rica |
| 13/11/1996 | Motor vehicle accident occurred Attended on Emergency Dept of PAH |
| 14/11/1996 | Plaintiff attended on Dr Gomez for treatment |
| 18/11/1996 | Alberto Venture phoned and advised the defendant of the accident and made an appointment for plaintiff to attend on “Wed” |
| 19/11/1996 | Date of letter from Defendant to the client enclosing general advice and limitation periods |
| 20/11/1996 | Plaintiff initially attended on Defendant’s for legal representation, completed and signed Motor Accident Personal Injury Notice of Claim |
| 27/11/1996 | Plaintiff attended on Dr Gomez for treatment |
| 29/11/1996 | Defendant writes to Plaintiff advising of appointment with Dr Gillett and suggesting a list of problems experienced be taken to appointment |
| 06/01/1997 | Defendant sent report from PAH to Plaintiff |
| 06/02/1997 | Suncorp admit liability for the causation of the accident |
| 18/04/1997 | Attended at Dr Gillett for medico-legal examination arranged by Defendant |
| 06/05/1997 | Defendant forwards copies of reports of Dr Gillett and Dr Gomez to Plaintiff |
| 07/05/1997 | Defendant forwarded offer to Suncorp of $33,463.70 plus HIC |
| 16/05/1997 | Suncorp forward counter offer of $6,372.00 |
| 21/05/1997 | Defendant writes to client and advises that offer from Suncorp has been received so that he will receive $3,300.00 less the refunds and should he wish to accept the offer he should sign the duplicate letter |
| 23/05/1997 | Plaintiff attended on Defendant and gave further instructions as to difficulties |
| 27/05/1997 | Defendant forwarded counter offer to Suncorp for $13,935.80 |
| 04/06/1997 | Suncorp request further particulars of damages claimed |
| 11/06/1997 | Defendant forwarded counter offer to Suncorp for $11,300.00 “all Inclusive” |
| 17/06/1997 | Suncorp forward counter offer of $10,000.00 |
| 19/06/1997 | Defendant calls and accepts counter offer of $10,000.00 |
| 21/08/1997 | Plaintiff signs Discharge |
| 05/09/1997 | Plaintiff forwarded settlement monies from Defendant |
| 19/5/1999 | Plaintiff attended on Madonna Abella, psychologist (with 16 subsequent visits up to 26/9/2000) |
The solicitors’ file is in evidence as Exhibit 1.
Exhibit 2 is a bundle of medical reports and two reports from Ms. M. Abella, a psychologist.
Exhibit 3 are two reports from Mr. Rob Davis, solicitor, who is experienced in personal injury litigation, and gave evidence for Mr. Valencia in these proceedings.
Dr. Gillett, orthopaedic surgeon, saw Mr. Valencia on 19 February 2001, and furnished a report in relation to the second motor vehicle accident on 1 July 2000.
He furnished a supplementary report on Mr. Valencia on 26 February 2003, and gave evidence for Mr. Valencia.
Mr. Valencia attended Dr. A. Byth, a psychiatrist, for a medico-legal report on 8 June 2001.
Dr. Byth furnished a report dated 12 June 2001 and gave evidence before me as did Ms. Abella.
The medical records of Dr. Van Touong are in evidence as Exhibit 6, and Dr. Touong gave evidence before me.
Dr. Touong’s medical records record the following attendances on Mr. Valencia:
8/11/91 Insomnia, headache
4/12/91 Headache, insomnia, giddiness
23.1.92 Headache
31.7.92 Headache, diarrhoea
30.9.92 Insomnia
On all of these occasions medication was prescribed and all of these attendances were prior to the first motor vehicle accident on 13 November 1996.
The complaints of insomnia and headaches are of considerable importance when one considers statements by Mr Valencia to Ms Abella in 1999-2000 and to Dr Byth in 2001.
There are various attendances on Dr. Touong by Mr. Valencia after the first motor vehicle accident and on most of these a medication was prescribed. That is of importance as indicating that Mr. Valencia accepted medication for his problems and did not rely on herbal medicine or other alternatives to western medicine.
Exhibit 7 (the records of Dr. P. Romano) shows various attendances on Mr. Valencia commencing from 13 March 2001. On many of these occasions medication is prescribed.
I shall refer to some of the documents in Exhibit 1 (the solicitor’s file) by the page number of Exhibit 1.
Mr. Valencia attended the solicitors on three occasions only. I am satisfied that on each of those three occasions he was accompanied by an interpreter who spoke both English and Spanish.
I am satisfied that Mr. Valencia himself speaks very little English. I am satisfied however, that at all relevant times he was advised by family members who could speak and read English and interpret for Mr. Valencia documents received from his solicitors.
For these reasons I consider it highly unlikely that during the conduct of the claim by the solicitors any misunderstandings arose because Mr. Valencia spoke little English.
The report of 10 December 1996 by Dr. R. Gomez to the solicitors on the symptoms displayed by Mr. Valencia after the first motor accident is a report by a Spanish speaking doctor who had the benefit of treating Mr. Valencia before the first motor vehicle accident.
Mr. Valencia attended on the premises of the solicitors on three occasions. The first consultation was on 20 November 1996. The second was on 23 May 1997.
The third occasion appears to be on 21 August 1997 when Mr. Valencia signed a discharge.
I am satisfied that on each occasion Mr. Valencia had an English speaking interpreter with him, and understood what was said to him.
Ms. P. Lunbergs was an employed solicitor with the firm. She attended to this file, and dealt personally with Mr. Valencia.
I am satisfied that Ms. Lunbergs was at all times experienced in the conduct of personal injury litigation. Items 1, 2 and 3 on the solicitors file appear to have been signed by Mr. Valencia on his first attendance on the solicitors on 20 November 1996.
These documents include initial advice given to Mr. Valencia and the arrangement between solicitor and client for the payment of fees.
Mr. Valencia agreed in writing that the solicitors might from time to time render interim accounts and call upon him to deposit funds towards payment of costs and outlays from time to time.
Item 6 on the file is a letter from the solicitors to Mr. Valencia dated 19 November 1996. Receipt of this appears to have been acknowledged on 20 November 1996.
That letter sets out lengthy advice to Mr. Valencia.
A matter of importance is that the letter urged Mr. Valencia to keep a diary which would, amongst other matters:
(a) Record the way in which his injury affected his day to day life, work hobbies, leisure time activities;
(b) Anyway at all that his life differed from before the accident;
(c) Keep a record of the way the accident has affected his life (since he might forget these details as time went on).
He was also advised in the letter to keep a record of details of any effect the accident had on his life, for example, pain and suffering, household tasks, leisure time activities, and work.
The letter asked Mr. Valencia to indicate how often he wished to receive letters updating the progress of his claim. He ticked the box indicating:
“…not at all other than when instructions or further material is required from me”.
At the initial attendance on 20 November the personal injury Notice of Claim required for the licensed insurer was filled out by Ms. Lunbergs signed by Mr. Valencia and witnessed by Ms. Lunbergs.
Item 26 seeks a list of the injuries sustained in the accident. The handwritten statement by Ms. Lunbergs is as follows:
“Chest, waist, neck, both legs, injury on side of neck, back, right hand, shock.”
Ms. Lunbergs considered that she had probably inserted the word “shock” of her own accord. In her considerable experience in personal injury claims she found that injured persons invariably suffered from shock, although they might not list that as one of their injuries.
Item 28 asks how the injuries affected the claimant and the response is as follows:
“Still bruised, headaches, chest sore, ribs sore, pain in back, neck, left knee, painful to walk, nervous in car, problem sleep.”
Item 60 indicates that Mr. Valencia is not in a position to offer a settlement of the claim and the reason given is as follows:
“My injuries have not yet stabilised but I undertake to forward an offer of settlement supported by medical reports as soon as I am able.”
Ms. Lunbergs was criticised by Mr. Davis for not taking what was said to be a comprehensive statement from Mr. Valencia.
The Personal Injury Notice of Claim as completed does in fact provide a convenient summary of the accident and the injuries suffered by the claimant.
Ms. Lunbergs made a diary note of attendances on 23 May 1997 and that note is of considerable importance.
The address of Mr. Valencia in the Notice of Claim is given as “22 Muriel Avenue Moorooka”. That was the address at which Mr. Valencia’s son, Felipe, resided at the time. That address was given so that mail for Mr. Valencia would go to an address where there were English speaking persons who would be able to read the document and interpret the document for him.
Ms. Lunbergs estimated that the initial conference with Mr. Valencia on 20 November would have occupied about 1½ hours.
Item 12 on the solicitors file is a letter to Mr. Valencia of 29 November advising that an appointment had been made for him to be examined by an orthopaedic surgeon, Dr. Gillett on 18 April 1997.
The solicitors advised Mr. Valencia that the fee for the report would be $400.
The letter urged Mr. Valencia to make a list of all the problems he was experiencing because of the injury, including all the symptoms he had experienced and any difficulties he had in performing everyday tasks. He was urged to do this before the appointment.
On 29 November 1996 Ms Lunbergs wrote to Dr. Gillett confirming the appointment and asking Dr. Gillett to refer to various matters in his report.
One of the questions specifically asked of Dr. Gillett is:
“What further specialists’ reports would you recommend we obtain as to our client’s injuries?”
Ms. Lunbergs indicated that she regularly obtains orthopaedic reports from Dr. Gillett. Her usual practice is to make this specific request of Dr. Gillett when seeking a report. She has known Dr. Gillett regularly to recommend a report from another specialist.
The solicitors received a report from Dr. Gomez dated 10 December 1996, a Spanish speaking general practitioner who had previously had consultations with Mr. Valencia.
Dr. Gomez noted that he had seen Mr. Valencia on 145 November 1996. He noted that he had evidence of trauma caused by the seatbelt and had multiple grazes to both lower legs, with a haematoma on his left thigh above the knee joint. Dr. Gomez prescribed anti-inflammatory and muscle relaxants.
He saw Mr. Valencia again on 27 November 1996 and commented that he was much improved but still with pain on the left pectoralis major area.
He reported as follows:
“I expect him to recover completely within two months if no complications arise.
I do not expect he will need further treatment or surgery and there should be no partial or total disability. He has been unable to work since the accident, and probably will not be able to for three months.
His daily activities are affected due to the pain on his rib cage. I expect him to be much better in a month’s time.”
The solicitors received a report from the Princess Alexander Hospital dated 24 December 1996. The reports states that Mr. Valencia was seen at the hospital on 13 November 1996. He had minor abrasions to both knees and bruising on the anterior chest and abdomen consistent with a seat belt injury. An x-ray of the cervical spine showed no fracture. An x-ray of his chest showed a probable fracture of the left fourth rib, but the lung fields were clear and no other lesions were detected. Mr. Valencia was allowed home on the same day with analgesia and with advice regarding follow up of his injuries.
On 6 January 1997 a copy of the report from Princess Alexander Hospital was sent to Mr. Valencia. He was asked to advise if there was anything in the report with which he disagreed.
Dr. Gillett is an experienced orthopaedic surgeon. He saw Mr. Valencia with his granddaughter who acted as an interpreter on 18 April 1997.
On the current symptoms, Dr. Gillett noted:
“He also feels somewhat nervous regarding car travel. At times he feels scared and feels that he is suffering from emotional problems”.
He noted that Mr. Valencia had been on a pension for some three years. That may not be precise.
Dr. Gillett commented:
“There is no pre-existing condition which has been aggravated by this accident.
The long term effects and injuries are that his chest will continue to improve up to six months from injury and be left with no residual problems related to that. In relation to his left knee I believe also it will improve with time and appropriate treatment such as physiotherapy and exercise and strengthening regimes are likely to improve it. I believe he would benefit by doing the exercises over a three to six month period, and in that time I would anticipate recovery of his condition from the current level, and if he did have residual symptoms they would be minor, representing a minor permanent partial disability in the order of some 3-5% loss of lower limb function.”
Dr. Gillett noted that he did not believe surgery was required.
He made a significant observation:
“I do not believe further specialist reports are required at this stage.”
He concluded:
“I believe with time he will recover fully to return to all aspects of day to day life.”
In my opinion a prudent solicitor was entitled to attach considerable weight to the opinion expressed by Dr. Gillett that further specialist reports were not required.
A medical practitioner is an expert in medicine. Dr. Gillett did not abandon his expertise in other areas of medicine simply because he specialised in orthopaedics.
On 6 May 1997 the solicitors wrote to Mr. Valencia enclosing the reports from Dr. Gillett and Dr. Gomez.
The letter asked of Mr. Valencia:
“Please read through the reports and advise us if there is anything in the report with which you disagree.”
Mr. Valencia was also asked to send “details of any effect the accident has had on your life, for example, pain and suffering, household tasks, leisure time activities, work.”
On 7 May 1997 the solicitors submitted to the licensed insurer, Suncorp, the various medical reports and made a without prejudice offer to settle the matter for $33,463.70. This included a claim for general damages of $30,000.
Ms. Lunbergs accepted that she did not have specific authority from Mr. Valencia to make this offer. Her approach was that the insurance company would undoubtedly engage in bargaining with her and the initial offer was therefore far in excess of what she considered Mr Valencia’s claim might actually be worth.
Ms. Lunbergs was criticised for making an offer without receiving the specific authority of Mr. Valencia to do so. In the circumstances there is no substance in this criticism. The matter is irrelevant to causation or any loss.
Mr. Valencia was a pensioner aged 63 years at the time of the accident. The medical reports available to the solicitors indicated very clearly that this was a modest claim. Any solicitor experienced in litigation would have endeavoured, in the best interests of the client, to settle this modest claim without exposing the client to the hazards and the additional expense of litigation.
On 6 February 1997 Suncorp had, by a letter to the solicitors, admitted liability for the accident.
A written offer to settle from Suncorp dated 16 May 1997 and offering $6,372 was received by the solicitors. The offer for general damages was for $4,500.
Item 55 in Exhibit 1 is a sheet prepared by Ms. Lunbergs indicating three possible settlement figures.
Ms. Lunbergs indicated that this document would not have been prepared all at the one time.
The left hand column shows the first offer of 16 May 1997. The second column shows the second offer of 4 June 1997 and the third column shows the offer of 17 June 1997.
On 21 May 1997 the solicitors wrote to Mr. Valencia advising of the offer to settle by Suncorp.
Mr. Valencia was advised he did not have to accept the offer. If he wished to discuss the offer he should contact Ms. Lunbergs.
Mr. Valencia was advised as to the formalities of settlement. He was advised that if he accepted the offer that would be in full and final settlement of his claim.
The solicitors’ file indicates a telephone call taking place on 22 May 1997. An arrangement was made on behalf of Mr. Valencia for a conference to discuss the offer.
On 23 May 1997 an important conference took place between Mr. Valencia and Ms. Lunbergs at the solicitors’ office.
The son, Felipe, was present at the conference.
The notes made by Ms. Lunbergs of the conference are important and they appear at p.93 of Exhibit 1.
The notes indicate that Mr. Valencia was prepared to settle the matter for $6,000 clear of expenses.
Nearly three years went by before proceedings were taken against the solicitors by Mr. Valencia. Ms. Lunbergs does not recall much of her discussions with Mr. Valencia other than as indicated by the notes on her file. That is hardly surprising.
The notes record (inter alia):
“Still pain now – in knee and in chest … can’t drive 15 days … couldn’t look after himself after accident – 3 months – was many months before could drive ok – couldn’t sleep – nightmares for 3-4 weeks.”
This conference with Mr. Valencia took place some seven months after the accident. There is no mention in the notes of Mr. Valencia feeling guilt because the accident also involved his son, Felipe. There is no mention of “flashbacks”.
Ms. Lunbergs stated that if Mr. Valencia had said he was suffering from further symptoms at this time she would have sought further medical reports.
At this conference Mr. Valencia signed the instruction to settle his claim for personal injuries so that he would receive $6,000 clear – p.91 of Exhibit 1. The figure $6,000 is in the handwriting of Ms. Lunbergs.
The solicitors then wrote to Suncorp by a letter of 27 May 1997 offering to settle the matter for $10,000 general damages and other items amounting to in all $13,935.80.
The letter records that Mr. Valencia was still suffering from pain in his knee and chest, and that subsequent to the accident he suffered from nightmares and was not able to sleep.
By a letter of 4 June 1997 Suncorp increased its offer for general damages to $5,750 and reviewed other items. Ms. Lunbergs did not refer the matter to Mr. Valencia since his instructions were that he wanted $6,000 clear.
By letter dated 11 June 1997 the solicitors made a further offer to Suncorp to settle the matter for $11,300 “all up”.
By letter dated 17 June 1997 Suncorp increased its offer to settle the matter to $10,000 “all up”.
Ms. Lunbergs did not advise Mr. Valencia of this offer since she regarded it as being within the scope of her authority from Mr. Valencia to settle the matter on the basis that he would receive $6,000 clear.
Ms. Lunbergs then had a telephone conversation with Suncorp Insurance and settled the matter by telephone call on 20 June 1997. The settlement was for $10,000 plus “HIC refund”. It appears that there was no refund due to HIC in the circumstances.
Ultimately Mr. Valencia signed the discharge in favour of Suncorp on 21 August 1997.
It appears Mr. Valencia attended the solicitors’ office about 20 August 1997 and signed the authority to the solicitors for payment of their costs and outlays with the balance to Mr. Valencia.
Since there was apparently no refund to HIC, Mr. Valencia ultimately received in settlement $6,773.60 clear of costs, outlays and refunds.
The settlement cheque in favour of the solicitors from Suncorp was $10,000 exactly.
Nearly three years after the matter had been settled the solicitors received an authority signed by Mr. Valencia for his file to be handed to the firm of solicitors that acted for Mr. Valencia in this litigation.
The file was handed over. At no time had the solicitors received any advice from Mr. Valencia that he was dissatisfied with the settlement negotiated on his behalf.
These proceedings by Mr. Valencia against the solicitors commenced on 19 November 2001. Mr. Felipe Valencia had consulted the psychologist, Ms. Abella, on 12 May 1999 for problems arising out of the accident.
Mr. Felipe Valencia stated to her that his father had been prescribed sleeping tablets for sleep difficulties since the accident of 13 November 1996. Felipe was concerned that his father continued to complain of insomnia.
Ms. Abella suggested it might be beneficial for Mr. Valencia to consult her for his problems, and an appointment was made.
Mr. Valencia first consulted Ms. Abella on 19 May 1999. This was nearly two years after the settlement of his accident claim, and two and a half years after the accident.
In all, Mr. Valencia saw Ms. Abella on some 17 occasions between 19 May 1999 and 26 September 2000.
During the course of these consultations Mr. Valencia was involved in a second car accident on 1 July 2000.
Ms. Abella gave a report dated 26 December 2000. She noted that Mr. Valencia reported that subsequent to the accident of 13 November 1996 but prior to the accident of 1 July 2000, he had the following symptoms:
(a) Sleep difficulties due to intrusive and distressing recollection of the accident on 13 November 1996;
(b) Pre-occupation with issues of blame, responsibility and control. He felt responsible for his son Felipe’s injuries from the accident. His son Felipe was trapped in the car as a result of the accident and was screaming and crying for help. He could not be released from the car for some time until the ambulance and fire brigade came. Mr. Valencia felt guilty because he had asked his son Felipe to drive for him on the day of the accident;
(c) He had diminished interest in significant activities;
(d) He had conditioned anxiety to specific cues such as scenes of other car accidents on TV and in real life;
(e) He was easily startled and felt nervous.
Ms. Abella noted that Mr. Valencia had indicated that in El Salvador one son had been killed and another son had gone missing.
My impression from her evidence was that Mr. Valencia may have rather “down played” the significance of events in El Salvador. Mr. Valencia indicated in evidence that he had undergone one episode of torture in El Salvador and his life was threatened if he did not sign a statement implicating others. He described himself in evidence as “deeply affected” by events in El Salvador, although he indicated that he eventually recovered from these problems.
Ms. Abella concluded that Mr. Valencia had suffered a chronic post-traumatic stress disorder arising out of the first motor vehicle accident. She considered that he had recovered to a stage where his diagnosis could be downgraded to “adjustment disorder with anxiety” prior to the second accident on 1 July 2000. Mr. Valencia no longer had nightmares or flashbacks, had reduced frequency of intrusive recollection of the accident, no social withdrawal and reduced avoidance behaviour.
Ms. Abella explained in her report that the treatment she gave Mr. Valencia was “talk therapy”.
She offered strong supportive counselling and guidance. She recommended to Mr. Valencia that he consult a psychiatrist for an anti-depressant with sedative qualities that could benefit him. She considered that without medical and psychological intervention, his psychological condition might become a “major depressive disorder”.
In her report of 22 December 2000 she stated that at that time she considered Mr. Valencia’s psychological disability to be about 25%; that is, in the lower range of the moderate impairment class. She considered that his psychological disability could have been about 40% at least a year after the first motor vehicle accident.
She considered that he had experienced a severe psychological decompensation following the second car accident on 1 July 2000.
In cross-examination Ms. Abella accepted that DSM-IV (being the appropriate classification for psychiatric disorders) indicated that a diagnosis of post-traumatic stress disorder should be made only by a psychiatrist. Dr. Byth stated that DSM-IV could not be used accurately by psychologists and only a fully trained psychiatrist could make that judgment.
There are accordingly in my opinion grave doubts about the validity of the diagnosis made by Ms. Abella.
Dr. Gillett gave a further report on a condition of Mr. Valencia dated 19 February 2001.
He saw Mr. Valencia with an interpreter on that day and noted that he had been injured in a second motor vehicle accident on 1 July 2000.
He noted that the injuries sustained by Mr. Valencia in the second motor vehicle accident were as follows:
(a) Injury to left knee
(b) Injury to left shoulder
(c) Musculoligamentous involving the cervical spine
I note that there was no complaint of an injury to the left shoulder after the first motor vehicle accident.
Dr. Gillett noted that Mr. Valencia’s previous problems from the 1996 accident had in essence recovered at the time of the July 2000 accident apart from still having some problems with the left knee.
Dr. Gillett concluded:
“I believe your client’s condition overall has left him with a 2% impairment of bodily function due to the residuals of the neck injury due to this accident. A 3% impairment of upper limb function related to the left shoulder injury in the form of aggravation of asymptomatic degeneration of the rotator cuff. The left knee had previously been symptomatic and this accident has produced further injury causing some aggravation of the pre-existing pathology giving 2% impairment of lower limb function due to this accident.
Expressing his injuries in loss of whole bodily function and utilising the combined value method he is left with an impairment of bodily function due to this accident of 4%.”
In a supplementary report of 4 March 2003 Dr Gillett confirmed that at the examination on 19 February 2001 he had assessed Mr. Valencia as having a permanent impairment of the left knee in the order of 5% and that he considered that 3% permanent impairment was referable to the motor vehicle accident of 13 November 1996.
Ms. Abella gave a further report dated 17 May 2001 on the psychological problems of Mr. Valencia.
She noted that during the initial visit of Mr. Valencia he had reported that he was taking Valium and that he stated that the tablets he was taking were prescribed for his son’s medical treatment. Ms. Abella advised him to consult his general practitioner for appropriate sedatives.
In his evidence Mr. Valencia denied that he was taking Valium. There is no evidence he was prescribed any medication for insomnia and psychiatric problems despite some seventeen visits to Ms. Abella, and despite his complaints to Dr. Byth. This is a most curious situation if in fact he suffered insomnia and psychiatric problems.
Ms. Abella considered that Mr. Valencia did not sustain any permanent impairment resulting from the accident of 1 July 2000. She considered however that that accident had aggravated the pre-existing chronic psychological condition. She considered that Mr. Valencia had suffered from a “major depressive episode consequent on the second motor vehicle accident”.
Mr. Valencia was seen by a psychiatrist, Dr. A. Byth. He interviewed Mr. Valencia with an interpreter on 8 June 2001 and gave a report dated 12 June 2001. This was the only occasion on which he interviewed Mr. Valencia.
Both Ms. Abella and Dr. Byth accepted that their opinions depended greatly on Mr. Valencia being a reliable historian when narrating his problems to them. The exercise in each case is essentially one of “self reporting”.
In his report Dr Byth sets out the history obtained from Mr. Valencia. He noted that Mr. Valencia was highly distressed at the scene of the first motor vehicle accident as his son Felipe was trapped in the wreckage for some time before he could be freed and was bleeding profusely. Mr. Valencia felt “very helpless and traumatic” and had guilty thoughts about being unable to do more to assist his son at the time.
Dr. Byth appeared to attach little importance to events in El Salvadore in his report. Dr. Byth explained that he thought Mr. Valencia rather “downplayed” events in El Salvadore and may have been reluctant to discuss them.
He was not aware that Mr. Valencia had undergone an episode of torture in El Salvadore, nor that Mr. Valencia regarded himself as having been “deeply affected” by events in El Salvadore.
Mr. Valencia did tell Dr. Byth that, like everyone, he was affected by the civil war in El Salvadore and that his working became much more difficult because of the war.
Dr. Byth concluded that Mr. Valencia did suffer post-traumatic stress disorder as a result of the first motor vehicle accident. He had been exposed to a traumatic life threatening experience. He suffered nightmares and flashback memories.
Dr. Byth stated that a diagnoses of post-traumatic stress disorder should not be made unless the condition had been in evidence for six months or more. The diagnosis should not be made by a psychologist.
Dr. Byth noted that Mr. Valencia denied receiving any anti-depressant medication or other psychotropic medication for treatment of post-traumatic stress disorder.
He recommended that Mr. Valencia should be prescribed an anti-depressant drug daily and he might improve further with a prescription of a low dose of a major tranquilliser. In fact nothing was prescribed. That is a curious situation if Mr Valencia was suffering post-traumatic stress disorder.
Dr Byth considered that the symptoms of post-traumatic stress disorder present when he saw Mr. Valencia were chronic and ongoing and did not appear to be improving with the passage of time.
He considered that as a result of the two motor vehicle accidents Mr. Valencia developed chronic post-traumatic stress disorder and had a chronic psychiatric impairment of 10-20% concerning the person as a whole.
In his opinion the first motor vehicle accident contributed 70% to his chronic post-traumatic stress disorder symptoms and the second motor vehicle accident contributed the remaining 30%.
Dr. Byth gave a supplementary report at a later date.
The Credit of Mr. Valencia and his son Felipe
Mr. Valencia gave his evidence through an interpreter. A significant allowance must be made for problems when a non-English speaking person gives evidence through an interpreter.
Nevertheless, there are many inconsistencies in what Mr. Valencia had to say.
There is much confusion in his evidence as to what he said to Ms. Lunbergs at various times. Some of his evidence is clearly wrong.
He denied having consulted a doctor in Australia for insomnia type problems. The evidence of Dr. Van Touong is to the contrary. Mr. Valencia consulted him on a number of occasions in the early 1990’s with insomnia problems and headaches.
It is clear that well before the first motor vehicle accident Mr. Valencia had insomnia problems and took prescribed medication for those problems. In furnishing a history to Ms. Abella and Dr. Byth it is clear that Mr. Valencia described insomnia type problems as having occurred only after the first motor vehicle accident.
In general he had much difficulty in recalling specific symptoms he was suffering from at specific times.
On numerous occasions during cross-examination Mr. Valencia replied that he could not remember. On some of these occasions the response may well have been genuine. On other occasions I concluded he was simply evading awkward questions. He was evasive under cross-examination. There is substance in the submission by counsel for the defence that Mr. Valencia said whatever was convenient for him to say at the time. In my opinion Mr. Valencia was an unreliable historian.
I conclude that Mr. Valencia was a very unreliable witness and a great deal of caution would have to be exercised before accepting anything he had to say.
The opinions expressed by Ms. Abella and Dr. Byth depended essentially on their acceptance of Mr. Valencia as a reliable historian when he was relating his symptoms and emotional problems.
Given my conclusion that Mr. Valencia is an unreliable historian and is a very unreliable witness, I infer that he gave a very unreliable account of his symptoms to both Ms. Abella and Dr. Byth.
In the circumstances I am not satisfied that at any relevant time Mr. Valencia was suffering from a post-traumatic stress disorder arising out of the first motor vehicle accident.
Mr. Felipe Valencia gave evidence in support of his father. His evidence includes statements that he had specifically told Ms. Lunbergs that his father should be referred for psychological assessment.
This allegation was never raised on the pleadings. It was not mentioned in the opening of the case by counsel for the plaintiff.
It was suggested in cross-examination to Felipe that this was a recent invention. No attempt was made in re-examination to tender any prior consistent statement.
I infer that Felipe had not said anything of the sort to the legal advisers for the plaintiff before Felipe gave evidence in the witness box.
I consider Felipe was a partisan witness and a most unreliable witness. Great caution would need to be exercised before accepting anything he had to say.
Practice in A Solicitors’ Office
Mr. Rob Davis gave evidence for the plaintiff. He is an experienced solicitor and has had lengthy experience in the conduct of personal injury cases.
Mr. Davis gave two lengthy reports that are in evidence.
Nevertheless, a great deal of what Mr. Davis had to say is directed as to what might be “best practice” in a solicitors’ office. That is not the question I have to decide and much of this evidence is irrelevant. I am concerned with what a prudent solicitor ought to have done when considering a settlement of the matter in June 1997.
From his experience, Mr. Davis considered that a prudent solicitor with the information possessed by Ms. Lunbergs in May/June 1997 would have required a psychiatric examination before compromising the case. Mr. Davis also considered the range of general damages on the reports held by Ms. Lunbergs was between $10,000 and $15,000.
I do not accept these conclusions. In my opinion, a prudent solicitor would not have required a psychiatric report with this information in hand. In my opinion, the range of general damages was between $5,000 and $10,000. The assessment would depend very much on the view taken of Mr. Valencia by the trial judge, and was likely to be in the lower part of the range. There were in addition small items of special damage and interest. The total award was likely in my opinion to be less than $10,000.
Hindsight is a marvellous thing. In Midland Bank Trust Co v. Hett Stubbs & Kemp (1979) 1 Ch.384, Oliver J observed at p.402:
“But evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks that he would have done had he been placed, hypothetically and without the benefit of hindsight, in the position of the defendants, is of little assistance to the court.”
In the present case I consider that expressions of opinion by Mr Davis, with the benefit of hindsight, are of little assistance.
Ms. Lunbergs gave evidence. She did not have specific recollection about many of these matters. That is hardly surprising since nearly three years went by before any allegation of negligence was made as to her handling of the case.
I am satisfied that in 1996 Ms. Lunbergs was experienced in the conduct of personal injury cases.
I considered that Ms. Lunbergs was a reliable witness. I considered she handled this matter for Mr. Valencia in a competent fashion.
Instructions Given To The Solicitor
It is important to ascertain the instructions given to the solicitors. These instructions may be summarised as follows:
(1) What was told to the solicitors and summarised in question 27 and 28 of the Notice of Claim;
(2) What was said to Dr. Gillett, namely that Mr. Valencia felt somewhat nervous regarding car travel and at times he felt scared and felt he was suffering from some emotional problems;
(3) What was said by Mr. Valencia to Ms. Lunbergs in the conference on 23 May 1997 which was noted as:
(a) could not drive for 15 days;
(b) was many months before he could drive okay
(c) couldn’t sleep – nightmares for three to four weeks.
I am satisfied that at no time was any indication given to Ms. Lunbergs either directly or indirectly of the symptoms that some years later Mr. Valencia related to Ms. Abella and Dr. Byth. I am satisfied Ms Lunbergs accurately recorded what was said to her by Mr Valencia.
In my opinion, the symptoms complained of to Ms. Lunbergs and mentioned in medical reports did not at any time raise the question of psychiatric problems. The symptoms complained of might reasonably be regarded as a normal short-term reaction from involvement in a motor vehicle accident.
What Should The Solicitor Have Done?
The conclusion put forward by Mr. Davis really amounts to a counsel of perfection given with the acuity of vision bestowed by hindsight. It is of little assistance to the court.
Ms. Lunbergs was handling a relatively small claim. Mr. Valencia was a pensioner aged about 63. A prudent solicitor with a relatively small claim would endeavour to reach a reasonable compromise with the insurer without exposing the client to the well-known hazards and expense of litigation.
As Ms. Lunbergs explained there was a danger of spending too much money on the case and not being able to recover that from the insurance company.
If the offer of $10,000 “all up” from the insurance company had been rejected by Mr. Valencia, there were considerable risks in litigation. If proceedings had been commenced by Mr. Valencia the licensed insurer may have immediately made a written offer of $10,000 or a little more. The rules of court place a powerful weapon in the hands of a defendant, namely a written offer to settle. If Mr. Valencia proceeded to trial there may well have been a risk that he would recover less than the written offer. If he recovered less than a written offer he would have been left with a substantial liability for his own legal costs and those of the licensed insurer. There may as well have been a serious question as to how he would perform in the witness box. A prudent solicitor would have had all these risks and contingencies in mind when advising a pensioner aged about 63 with a relatively small claim.
Mr. Valencia did not report anything of significance to his solicitor so far as psychiatric problems were concerned. He mentioned some problems to Dr. Gillett but certainly not the problems that he subsequently complained of to Ms. Abella and Dr. Byth some years later.
Mr. Valencia was told by Ms. Abella to get medication from his general practitioner. Mr. Valencia saw Dr. Dr. Van Touong on a number of occasions during the period he was being treated by Ms. Abella but took no steps to seek medication from him.
At one stage Mr. Valencia said in evidence that he confined himself to taking natural medication in the form of camomile tea. Yet some years prior to the first motor vehicle accident he did, on a number of occasions, receive medication from his general practitioner for insomnia.
It is possible that Mr. Valencia may have simply copied the symptomology of his son Felipe, either consciously or subconsciously.
Dr. Gillett indicated in his evidence that he did not consider any reference for psychiatric assessment was required from the matters related to him by Mr. Valencia. Dr. Gillett did not abandon his medical knowledge simply because he specialised in orthopaedics.
In my opinion the solicitors were entitled to attach considerable weight to the opinion expressed by Dr. Gillett that no further specialist reports were required. That opinion was expressed after a specific request by the solicitors for an opinion on that issue.
I conclude that Mr. Valencia gave clear instructions to Ms. Lunbergs that he wanted to settle the matter. It is clear that he was unable to fund legal proceedings, although that matter is not decisive.
I am satisfied that Ms. Lunbergs explained to Mr. Valencia what might be involved in going to court in the matter. I am satisfied that Ms. Lunbergs was correct in assessing that it was very unlikely that the licensed insurer would pay more than $10,000. She was experienced in dealing with licensed insurers. This settlement would enable Mr. Valencia to receive what he was prepared to accept and that was $6,000 in hand.
Suggestions were made by Mr. Davis that there had been a failure to obtain precise instructions from Mr. Valencia in relation to the making of offers. This is not a matter of any substance. In any event it is irrelevant on the issue of causation. It has not been demonstrated that a licensed insurer would have paid any more had there been more specific instructions obtained by Ms. Lunbergs from Mr. Valencia.
The suggestion that the plaintiff had significant psychiatric problems in the middle of 1997 is not consistent with what Mr. Valencia said at relevant times to Ms. Lunbergs, Dr. Gomez, Dr. Van Touong, Dr. Gillett and Dr. Romano.
In the circumstances Ms. Lunbergs had a pensioner aged about 63 who was reluctant to incur the hazards and expense of litigation. He was clearly not able to fund litigation although that cannot be decisive. There was no evidence presented to her of psychiatric problems beyond what might reasonably be regarded as a short-lived normal reaction to the motor vehicle accident. She needed to exercise professional judgment as to whether the cost, delay, and risk of any further reports was warranted. The licensed insurer might have refused to pay for a psychiatric report as being unnecessary. The cost would have been $1,000.
Her decision not to seek further reports was heavily influenced by what she was told by Mr. Valencia in conference on 23 May 1997. The note she made at that time is consistent with a short-lived normal reaction to a motor vehicle accident.
The Issue of Negligence in the Compromise of an Action
There is a high failure rate in actions in which a client alleges that his solicitors acted negligently in the compromise of an action.
In Karpenko v. Protan, Courey, Cohen & Houston (1991) 117 DLR (3d) 383 at pages 397-398, Anderson J observed in the Ontario High Court as follows:
“In my view, an important element of public policy is involved. It is in the interests of public policy to discourage suits and encourage settlements. The vast majority of suits are settled. It is the almost universal practice among responsible members of the legal profession to pursue settlement until some circumstance or combination of circumstances leads them to conclude that a particular dispute can only be resolved by a trial. I say nothing of the suits which are settled by reason of sloth, or inexperience, or lack of stomach for the fight. They have nothing to do with this case. What is relevant and material to the public interest is that an industrious and competent practitioner should not be unduly inhibited in making a decision to settle a case by the apprehension that some Judge, viewing the matter subsequently, with all the acuity of vision given by hindsight, and from the calm security of the Bench, may tell him he should have done otherwise. To the decision to settle a lawyer brings all his talents and experience both recollected and existing somewhere below the level of the conscious mind, all his knowledge of the law and its processes. Not least he brings to it his hard-earned knowledge that the trial of a lawsuit is costly, time-consuming and taxing for everyone involved and attended by a host of contingencies, foreseen and unforeseen. Upon all of this he must decide whether he should take what is available by way of settlement, or press on. I can think of few areas where the difficult question of what constitutes negligence, which gives rise to liability, and what constitutes at worst an error in judgment, which does not, is harder to answer. In my view it would be only in the case of some egregious error, to use the phrase adopted by my brother Krever in Demarco, that negligence would be found.”
There is usually no right or wrong answer to the question whether a solicitor should advise his client to accept the amount offered to settle a claim. In every case there must be an exercise of judgment by the individual solicitor who must take into account the many considerations relevant to the assessment. Some of the relevant considerations may be conflicting. Minds may well differ as to the assessment. In many cases there are conflicting medical reports, and a serious question as to how the client may perform in the witness box. The issue of liability may be very troublesome. In many cases it may well be said that the outcome of litigation is one of the uncertain things in this world.
“It is not desirable that a plaintiff should be able to readily accept what is on offer from the original defendant (thus escaping the hazards of the original litigation) and then ‘top it up’ by making a claim against his solicitors” Jackson & Powell On Professional Negligence (5th Ed) p. 643 footnote 84.”
Jackson & Powell observe further (at p.642):
“A solicitor is bound to exercise reasonable care in the conduct of settlement negotiations and in advising the merits of any settlement proposed. Such advice often entails weighing up imponderable factors, and a mere error of judgment is unlikely in practice to constitute negligence.”
It would be of great benefit to the legal profession if the perceptive observations of Anderson J. were brought to the attention of solicitors.
Before advising a client to embark on this sort of litigation, a solicitor would do well to give his client a warning that there is a high failure rate in this type of action, and a warning that proceedings ought not to be commenced unless there is good evidence of incompetent handling on the part of the solicitor who negotiated the compromise. Good evidence of incompetent handling means a great deal more than another solicitor expressing an opinion, with the benefit of hindsight, that he would have handled the matter very differently. Minds may well differ as to an assessment of damages and what may be a reasonable compromise. A solicitor is not to be held to be negligent in negotiating a compromise simply because some other solicitor holds a different opinion as to what should have been done.
Jackson & Powell observe further at page 595:
“Elderly cases suggest that allegations of negligence against a solicitor are a grave matter. A charge of negligence against a solicitor must be distinctly proved. The issue of negligence should be approached “with the greatest care” even though the sum at stake may not be large. Thus it is normally advisable to call the clamant, and not merely to rely on the correspondence. In Stewart Wrightson Group Ltd v. Crocker Lord Denning MR observed that an error of judgment by solicitors did not amount to negligence. He added that, where there is delay in prosecuting a claim, negligence must be “most clearly established”. Solicitors ‘should not be harassed by claims for negligence years after the event’. In the analogous case of barrister’s negligence, Lord Reid in Rondel v. Worsley considered that ‘the onus of proving professional negligence over and above errors of judgment is a heavy one’”.
I am not satisfied that Mr. Valencia was suffering from any post-traumatic stress disorder in June 1997 when a compromise of his claim was effected by Ms Lunbergs.
I am not satisfied that there has been any negligence or breach of contract on the part of the solicitors. No loss has been demonstrated by Mr Valencia. I am satisfied that Ms. Lunbergs conducted the matter in a competent fashion throughout, and negotiated a satisfactory settlement for her client.
Assessment of Damages
I turn now to the assessment of damages which I am obliged to make in any event. Damages are for the loss of an opportunity. That is a most unreal exercise in the light of the finding that I am not satisfied that Mr. Valencia suffered from post-traumatic stress disorder at any relevant time.
I make an assessment of damages on the assumption the matter would have gone to trial in the year 1999.
The standard by which one judges whether a solicitor has breached his duty to a client is not that of the “particularly meticulous and conscientious practitioner … The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession” per Oliver J in Midland Bank Trust Co v Hett, Stubbs and Kemp (supra) at 403. A reasonably competent practitioner would consider the client’s needs and ability to understand what is needed, and his ability to tell the solicitor what is required. See Caradine Properties Ltd v D J Freeman Company (a firm) (1982) 126 Sol. Jnl. 157; Rybak v Senneh Pty Ltd (1997) ANZ CONV R 74 at 78-9.
What Mr. Valencia is alleged to have lost by reason of the solicitor’s failure to investigate whether he had suffered psychiatric injury was the chance that evidence of that condition would have been obtained and accepted by the court before which his claim was litigated. Kitchen v Royal Air Force Association [1958] 1 WLR 563. Mr. Valencia’s alleged damage is the lost opportunity to have his claim for damages evaluated on the footing that he had suffered some psychiatric injury. That claim depended upon proof of the hypothesis that Mr. Valencia could be shown to have suffered such an injury. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643 requires that damages are to be assessed according to the degree of probability of the hypothesis.
The evaluation of the lost chance requires a consideration of what evidence of psychiatric injury would have been obtained. The court must assess what financial consequences would flow to Mr Valencia as a result of proving negligence and psychiatric damage. The assessment is to be made as at the date that the notional action would have come on for trial. The court may have regard to considerations that were reasonably foreseeable at that time, and to evidence that would have been available for the notional trial not merely evidence which was in fact available for the hearing of the present action. See Johnson v Perez (1988) 166 CLR 351; Nikolaou v Papasavas, Phillips & Co (1988) 166 CLR 394.
Had the matter come to trial in the year 1999 the licensed insurer would almost certainly have had a check assessment made by another orthopaedic surgeon.
In fact, a check assessment was made for the licensed insurer by Dr. B. Martin, an orthopaedic surgeon, in April 2002. He gave evidence before me for the defence. His report dated 19 April 2002 is Exhibit 5.
His opinion was that Mr. Valencia had suffered no permanent disability in his left knee as a result of the first motor vehicle accident. Dr. Martin considered that any problems in Mr. Valencia’s left knee at the time of his examination were the result of degenerative changes, and not due to the first motor vehicle accident.
Where experienced orthopaedic surgeons hold very different opinions it is a matter of difficulty for the court. This is yet another illustration of the very real hazards of litigation. In my opinion, Dr. Gillett had the significant advantage of examining Mr. Valencia shortly after the first motor vehicle accident and again shortly after the second motor vehicle accident. Dr. Martin saw Mr. Valencia on one occasion only and that was nearly two years after the second accident. In the circumstances I prefer the opinion of Dr. Gillett where it conflicts with the opinion of Dr. Martin.
I am not satisfied that Mr. Valencia suffered from post-traumatic stress disorder at any relevant time when a compromise of the first motor vehicle accident was effected in June 1997.
Were an assessment of general damages to be made in about the year 1999, I consider the range of general damages would be somewhere between $5,000 and $10,000. The assessment was likely to be in the lower range. I allow $6,500.
There was no past economic loss or future economic loss since Mr. Valencia was a pensioner. Other items are the small amounts claimed set out below. I assess damages as follows:
General Damages $6,500.00
Interest on General Damages $195.00
($3,250 x 2% x 3 years)
Special Damages –
Medical and Hospital $1,210.00 )
Travelling $121.00 )
Pharmaceutical $273.00 )
Total $1,604.00
Interest on Special Damages $268.33
($1,495.70 x 6% for 1.5 years)
Future Pharmaceutical Expenses Nil
Future Medical Expenses Nil
Future Travelling Expenses Nil
TOTAL $8,567.33
In all the circumstances, an assessment made at trial in the year 1999 would not have exceeded $10,000. The compromise achieved without the hazards and expense of litigation was in the sum of $10,000 “all up” in June 1997. I have not overlooked that legal costs were deducted from the settlement figure.
I dismiss the action. I give judgment for the defendant. I propose to order the plaintiff to pay the defendant’s costs of and incidental to the action to be assessed on the standard basis where the amount sued for is more than $50,000. I shall hear submissions on costs.
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