Young v Masselos & Co - [2010] NSWDC 169

CITATION: Young v Masselos & Co [2010] NSWDC 169

HEARING DATE(S): 6, 7, 8 October, 13 November 2009

JUDGMENT DATE:
13 August 2010

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Verdict and judgment for the plaintiff in the sum of $67,344.75 including interest;
2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
3. The exhibits may be returned;
4. Liberty to apply on 7 days notice if further orders are required.

CATCHWORDS: TORTS – negligence – legal practitioners – admitted failure of solicitor to advise plaintiff of his potential common law right to claim damages for personal injury in the workplace involving occupier’s liability – related failure to institute timely proceedings to claim damages for personal injury arising from alleged negligence of the occupier of premises where plaintiff sustained injury – whether the barred claim would have succeeded if litigated – liability and causation considerations arising under Civil Liability Act 2002 – whether causation of claimed loss established - - DAMAGES – measure of damages for notional proceedings – adjustments required – whether plaintiff entitled to a verdict in his favour after adjustments

LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Practice Note DC (Civil) 15
Uniform Civil Procedure Rules 2005 Sch 5
Workers’ Compensation Act 1987

CASES CITED: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Hackshaw v Shaw [1984] HCA 84 per Deane J at [26]; (1984) 155 CLR 614
Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Papatonakis v Australian Telecommunications Commission & Anor [1985] HCA 3; (1985) 156 CLR 7
Tipper v Williams (No. 2) [1994] NSWCA 312

PARTIES: John Young (Plaintiff)
Masselos & Co – a Solicitors Corporation (Defendant)

FILE NUMBER(S): 3025 of 2008; 2008/317783

COUNSEL: Mr AJ Lidden SC with Mr M Daley (Plaintiff)
Mr M Dicker (Defendant)

SOLICITORS: Maxwell Berghouse & Ives (Plaintiff)
Yeldham Price O’Brien Lusk (Defendant)

JUDGMENT

Table of Contents

A. INTRODUCTION

Nature of the case [1] – [3]

Credibility of testimony [4]

Summary of findings [5]

Background [6] – [12]

Issues [13] – [18]

B. EVIDENCE REVIEW

Overview of oral evidence [20]

Overview of documentary evidence [21] – [24]

C. FACTS

The plaintiff, Mr John Young
[25] – [58]

Miss Marie Young
[59] – [64]

Miss Dina Masselos
[65] – [81]

Mr Peter Mooney
[82] – [91]

D. EXPERT EVIDENCE ON LEGAL ISSUES

Array of expert legal opinions [92] – [95]

Mr O’Halloran
[96] – [104]

Mr King SC
[105] – [111]

Mr O’Halloran - supplementary
[112] – [115]

E. FINDINGS ON ISSUES CALLING FOR DECSION

Issues - stage 1 – Merits of the barred claim [117] – [143]

Issues - stage 2 – Retainer of the defendant [144] – [147]

Issues - stage 3 – Probable course and quantum…

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 Young v Masselos & Co

Details

AGLC: Young v Masselos and Co [2010] NSWDC 169
Case: [2010] NSWDC 169
Decision Date: 13 August 2010

CaseChat Overview and Summary

The case of Young v Masselos & Co involved a dispute between a plaintiff and a law firm, the defendants. The plaintiff alleged that the defendants, who were his legal practitioners, failed to advise him of his potential common law right to claim damages for personal injury sustained in a workplace accident. This failure allegedly led to a delay in instituting proceedings, resulting in the plaintiff's claim being statute-barred. The matter was heard in the Supreme Court of New South Wales.

The legal issues central to the case included whether the plaintiff's claim for damages, if it had been timely instituted, would have succeeded. This involved considerations under the Civil Liability Act 2002, particularly those relating to liability and causation. Additionally, the court had to determine whether the causation of the claimed loss was established and, if so, the appropriate measure of damages for the notional proceedings, including any necessary adjustments.

In its judgment, the court held that the plaintiff's claim would have succeeded if timely instituted. It found that the defendants' failure to advise the plaintiff of his potential right to claim damages constituted a breach of duty of care. The court further determined that causation was established, and the plaintiff was entitled to a verdict in his favour after appropriate adjustments. Consequently, the court awarded the plaintiff a verdict and judgment for the sum of $67,344.75, inclusive of interest.

The orders of the court included a verdict and judgment for the plaintiff in the specified sum, with the defendants to pay the plaintiff's costs on the ordinary basis unless otherwise ordered. The exhibits were to be returned, and the plaintiff was granted liberty to apply for further orders if necessary.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff in the sum of $67,344.75 including interest;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days notice if further orders are required.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Young v Masselos & Co [2010] NSWDC 169
HEARING DATE(S):	6, 7, 8 October, 13 November 2009
JUDGMENT DATE:	13 August 2010
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $67,344.75 including interest; 2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further orders are required.
CATCHWORDS:	TORTS – negligence – legal practitioners – admitted failure of solicitor to advise plaintiff of his potential common law right to claim damages for personal injury in the workplace involving occupier’s liability – related failure to institute timely proceedings to claim damages for personal injury arising from alleged negligence of the occupier of premises where plaintiff sustained injury – whether the barred claim would have succeeded if litigated – liability and causation considerations arising under Civil Liability Act 2002 – whether causation of claimed loss established - - DAMAGES – measure of damages for notional proceedings – adjustments required – whether plaintiff entitled to a verdict in his favour after adjustments
LEGISLATION CITED:	Civil Liability Act 2002 Civil Procedure Act 2005 Practice Note DC (Civil) 15 Uniform Civil Procedure Rules 2005 Sch 5 Workers’ Compensation Act 1987
CASES CITED:	Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Hackshaw v Shaw [1984] HCA 84 per Deane J at [26]; (1984) 155 CLR 614 Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351 Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Papatonakis v Australian Telecommunications Commission & Anor [1985] HCA 3; (1985) 156 CLR 7 Tipper v Williams (No. 2) [1994] NSWCA 312
PARTIES:	John Young (Plaintiff) Masselos & Co – a Solicitors Corporation (Defendant)
FILE NUMBER(S):	3025 of 2008; 2008/317783
COUNSEL:	Mr AJ Lidden SC with Mr M Daley (Plaintiff) Mr M Dicker (Defendant)
SOLICITORS:	Maxwell Berghouse & Ives (Plaintiff) Yeldham Price O’Brien Lusk (Defendant)

A.	INTRODUCTION
Nature of the case	[1] – [3]
Credibility of testimony	[4]
Summary of findings	[5]
Background	[6] – [12]
Issues	[13] – [18]
B.	EVIDENCE REVIEW
Overview of oral evidence	[20]
Overview of documentary evidence	[21] – [24]
C.	FACTS
The plaintiff, Mr John Young	[25] – [58]
Miss Marie Young	[59] – [64]
Miss Dina Masselos	[65] – [81]
Mr Peter Mooney	[82] – [91]
D.	EXPERT EVIDENCE ON LEGAL ISSUES
Array of expert legal opinions	[92] – [95]
Mr O’Halloran	[96] – [104]
Mr King SC	[105] – [111]
Mr O’Halloran - supplementary	[112] – [115]
E.	FINDINGS ON ISSUES CALLING FOR DECSION
Issues - stage 1 – Merits of the barred claim	[117] – [143]
Issues - stage 2 – Retainer of the defendant	[144] – [147]
Issues - stage 3 – Probable course and quantum…