Vukancic v Velcic - [2007] NSWSC 1001

CITATION: Vukancic v Velcic [2007] NSWSC 1001
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 7 - 15 August 2007

JUDGMENT DATE :
6 September 2007

JURISDICTION: Common Law Division
Professional Negligence List

JUDGMENT OF: Brereton J

DECISION: Judgment for plaintiff for $84,994

CATCHWORDS: NEGLIGENCE – employer’s liability – lifting – whether worker had viable cause of action arising from injury suffered when supporting 10kg beam. - NEGLIGENCE – professional liability – whether solicitor retained to advise on workers compensation claim obliged to advise on potential common law rights and effect of accepting permanent loss compensation – where common law claim had fair prospects only and might have left worker better or worse off – content of appropriate advice. - DAMAGES – personal injuries – whether Griffiths v Kerkemeyer damages available for provision of support and encouragement. - DAMAGES – economic loss – loss of a chance – where first solicitor failed to advise worker of common law potential and consequences of accepting permanent loss compensation – where second solicitor failed to commence proceedings against first solicitor within time – evaluation of prospects of success of employer liability claim – whether value of workers compensation benefits to be deducted before or after discount for risk – date as at which workers compensation benefits to be valued – whether known facts in respect of workers compensation benefits subsequent to valuation date may be considered – vicissitudes to be applied to future workers compensation benefits – whether workers compensation top-up insurance payments to be deducted – evaluation of prospects of success of professional liability claim against first solicitor – risk factors – risk that properly advised plaintiff would not have brought employers liability claim

LEGISLATION CITED: (NSW) Civil Liabilities Act 2002
(NSW) Uniform Civil Procedure Rules 2005, r 42.15
(NSW) Workers Compensation Act 1987 ss 66, 67, 151A, 151B, 151G

CASES CITED: Chamberlain v Ormsby [2005] NSWCA 454
Charles v Hugh James Jones & Jenkins [2000] 1 All ER 289
Clayton v Kearsey (1935) 79 SJ 180
Feletti v Kontoulas [2000] NSWCA 59
Green v Berry [2001] 1 Qd R 605
Gregory v Tarlo (1964) 108 SJ 219
Griffiths v Evans [1953] 2 All ER 1364
Hamze v Bradstreet [2007] NSWDC 54
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569
Quevillon v Lamoureux (1975) 52 DLR (3d) 476
Ren v Mukerjee (ACTSC, Miles CJ, 12 December 1996, unreported)
Rotumah v New South Wales Insurance Ministerial Corp (NSWSC, Donovan AJ, 6 April 1998, unreported)
Scott v Echegaray (1991) Aust Torts Reports 81-120
Tipper v Williams (No 2) (NSWCA, 6 May 1994, unreported, BC9404994)
Yardley v Coombes (1963) 107 SJ 575

PARTIES: Zoran Vukancic (plaintiff)
Nikola Velcic t/as Nikola Velcic & Associates (first defendant)
Martin Bell t/as Martin Bell & Co Solicitors (second defendant)

FILE NUMBER(S): SC 20205/04

COUNSEL: G B Hall QC w A Lakeman

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 Vukancic v Velcic

Details

AGLC: Vukancic v Velcic [2007] NSWSC 1001
Case: [2007] NSWSC 1001
Decision Date: 6 September 2007

CaseChat Overview and Summary

In the matter of Vukancic v Velcic, the plaintiff sought to hold the defendant employer liable for an injury sustained during a workplace incident. The plaintiff claimed damages for personal injuries resulting from the negligent failure to support a 10kg beam during a lifting operation. Additionally, the plaintiff sought to hold the defendant solicitor liable for professional negligence, arguing that the solicitor failed to advise them adequately regarding their potential common law rights and the consequences of accepting permanent loss compensation. The case was heard in the Supreme Court of Queensland.

The central legal issues before the court were whether the employer could be held liable for the injury sustained by the plaintiff during the workplace incident, whether the solicitor had a duty to advise the plaintiff about potential common law rights and the implications of accepting permanent loss compensation, and what damages, if any, were appropriate for the plaintiff's claims. The court also had to consider the appropriate method for evaluating the prospects of success of the employer liability claim and the professional liability claim against the solicitor.

The court held that the employer was not liable for the injury sustained by the plaintiff during the workplace incident as the incident was not a result of the employer's negligence. Regarding the professional liability claim, the court found that the solicitor owed a duty of care to the plaintiff and that this duty included advising the plaintiff about potential common law rights and the consequences of accepting permanent loss compensation. However, the court found that the solicitor did not breach this duty, as the advice given was reasonable in all the circumstances. The court also found that the value of workers compensation benefits should be deducted before applying the discount for risk, and that facts known subsequent to the valuation date could be considered. The court held that workers compensation top-up insurance payments should be deducted, and that vicissitudes should be applied to future workers compensation benefits.

The court awarded the plaintiff damages for the personal injury sustained during the workplace incident, including damages for the provision of support and encouragement. The court also awarded the plaintiff damages for the professional negligence of the solicitor, but found that the solicitor's breach of duty did not cause the plaintiff's loss. Therefore, no damages were awarded for the professional liability claim. The court ordered the defendant employer to pay the plaintiff's costs of the action, and the defendant solicitor to pay the plaintiff's costs of the professional liability claim.

Orders