BETWEEN: GLENYS JUNE WITCOMBE as Executrix of the Estate of KEITH MALCOLM WITCOMBE (DEC)
Plaintiff
AND
TALBOT & OLIVIER Defendant
Catchwords:
Professional negligence - Solicitors retained to pursue personal injury claim - Whether solicitors failed to exercise reasonable care and skill - Client died before writ served - Whether client suffered loss or damage
Executors and administrators - Proceedings by executor of client against solicitor - Claim that solicitors negligent and breached contract of retainer - Survival of causes of action - Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4 - Whether cause of action vested in client before death - Whether damage suffered by client before death
The plaintiff, Mrs Glenys Witcombe, sues as the executrix of the estate of her late husband, Mr Keith Witcombe. The defendant is a firm of solicitors.
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.
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Details
AGLC
Witcombe v Talbot & Olivier [No 2] [2009] WASC 173
Case
[2009] WASC 173
Decision Date
CaseChat Overview and Summary
The case of Witcombe v Talbot & Olivier [No 2] involved the executors of a deceased client, Witcombe, bringing a claim against their former solicitors, Talbot & Olivier, for professional negligence. The client had retained the solicitors to pursue a personal injury claim but died before the writ was served. The executors alleged that the solicitors failed to exercise reasonable care and skill, resulting in a loss of the client's right to pursue the personal injury claim. The case raised issues about the survival of the cause of action under the Law Reform (Miscellaneous Provisions) Act 1941 (WA) section 4 and whether the client had suffered any damage before death.
The court was required to determine whether the cause of action for professional negligence survived the client's death and whether any damage was suffered by the client before they passed away. The court examined whether the client's right to pursue the personal injury claim constituted a cause of action that vested in the client before death. It also considered whether the client had suffered any damage before death that could be attributed to the solicitors' alleged negligence.
The court found that the client had not suffered any loss or damage before death, as the personal injury claim had not yet been initiated. The court held that the cause of action for professional negligence did not vest in the client before death because it could not be exercised until the writ was served. Consequently, the claim for professional negligence was dismissed. However, the court awarded nominal damages to the plaintiff, the executor of the deceased client, to acknowledge the breach of contract of retainer.
The court's final order was that the claim for professional negligence was dismissed, except for the award of nominal damages to the plaintiff. The court did not grant any further relief to the plaintiff, as it found that the client had not suffered any loss or damage before death and that the cause of action did not vest in the client before death.
Orders
Orders of the court
Nominal damages awarded to the plaintiff Claim otherwise dismissed