Wilkinson v Daley

The plaintiff, Ms Wilkinson, brought proceedings against her former solicitors, Daley and others, alleging negligence. The alleged negligence related to the conduct of an original cause of action which, by the time the proceedings against the solicitors were commenced, had become statute barred. The primary dispute concerned whether Ms Wilkinson had suffered actionable loss as a result of the solicitors' conduct. The appeal was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether Ms Wilkinson had proven that she suffered damage as a consequence of the alleged negligence of her solicitors. This required the court to consider whether she had demonstrated that, but for the solicitors' negligence, she would have succeeded in her original cause of action and, crucially, that any judgment obtained in that original action would have been satisfied.

The Court of Appeal, comprising Handley, Sheller and McColl JJA, reasoned that Ms Wilkinson had failed to prove the necessary elements of her claim for damages. Specifically, there was no evidence identifying the putative defendants in the original cause of action, nor was there any evidence to suggest that any judgments against such unidentified defendants would have been satisfied. Without proof of these essential elements, the loss claimed by Ms Wilkinson could not be established.

The appeal was dismissed with costs. The cross-appeal was allowed in part, with the trial judge's order as to costs being set aside and substituted with an order that the defendants pay 40 per cent of the plaintiff's trial costs, excluding specific witness expenses. The remainder of the cross-appeal was dismissed. The appellant was ordered to pay 75 per cent of the respondents' costs of the appeal and cross-appeal.