1 New South Wales Court of Appeal Page 1 of 19 Index] [Search] [Download] [Help] RADOSAVLJEVIC v RADIN & ORS  NSWCA 217 (13 August 2003) Last Updated: 18 August 2003 NEW SOUTH WALES COURT OF APPEAL CITATION: RADOSAVLJEVIC v RADIN & ORS  NSWCA 217 FILE NUMBER(S): 40734/02 HEARING DATE(S): 10 June 2003 JUDGMENT DATE: 13/08/2003 PARTIES: Milan RADOSAVLJEVIC Executor of the Estate of the late Mileva Radosavljevic v Michael RADIN & ORS JUDGMENT OF: Mason P Handley JA McColl JA LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 1341/00 LOWER COURT JUDICIAL OFFICER: Price DCJ COUNSEL: Appellant: M R Aldridge SC/ P N Khanshar Respondents 1-3: J B Simpkins SC/ E M Frizell SOLICITORS: Appellant: Maxwell Berghouse & Ives Respondent 1: Henry Davis York Respondent 2: Yeldham and Associates Respondent 3: Phillips Fox CATCHWORDS: Negligence - breach of duty - professional negligence - solicitors - failure to bring proper proceedings within
2 limitation period Page 2 of 19 Causation - whether solicitor's negligence materially contributed to loss - whether plaintiff had viable claim independent of solicitor's negligence Damages - whether award "manifestly inadequate" - whether real loss suffered, actual or contingent (ND) LEGISLATION CITED: DECISION: Appeal dismissed with costs. Cross appeal struck out as incompetent, with costs. Application for leave to cross appeal refused with costs. JUDGMENT: IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40734/02 DC 1341/00 MASON P HANDLEY JA McCOLL JA Wednesday 13 August 2003 Milan RADOSAVLJEVIC (Executor of the Estate of the late Mileva Radosavljevic) v Michael RADIN & ORS FACTS: The appellant, as executor and widower of the deceased, brought actions in negligence against three solicitors in relation to their handling of the deceased's personal injury and workplace accident claims. The first defendant, Radin, was sued for failing to bring a proper claim for a fall suffered by the deceased at Ashfield Mall within the six-year limitation period. However, this professional negligence claim against Radin was itself statute-barred as it was brought more than six years after the extinguishment of the Ashfield Mall claim. The second defendant, Gorman, who was retained by the deceased in place of Radin to prosecute the Ashfield Mall and work accident proceedings, was sued for not having realised in time to reach a settlement without sustaining a costs order, that the Ashfield claim had wrongly identified K-Mart as the defendant. The appellant therefore claimed against Gorman the $10,000 that the deceased was ordered to pay under the Terms of Settlement to K-Mart. The appellant also claimed against Gorman the value of the proceedings that should have been brought against Radin. This depended on demonstrating that a properly directed claim for the fall at Ashfield Mall would have been viable had it not been for Radin's failure to bring it in time. The third defendant, Crumpton, who was the appellant's own solicitor, was sued for failing to advise the appellant to sue Radin for his negligence in allowing the Ashfield fall claim to become statute-barred.
3 ISSUES: Page 3 of 19 The trial judge rejected the submission that Gorman's delay materially contributed to the $10,000 costs liability to K- Mart. The appellant challenges the rejection of this part of his damages claim. However, the trial judge did award $13,328 in damages against Gorman for the appellant's lost opportunity to sue Radin for his negligent conduct of the Ashfield Mall claim. The appellant appealed against the inadequacy of the award. Gorman filed a cross-appeal seeking to have the verdict and judgment set aside. Gorman was also found negligent in his handling of the work accident proceedings for failing to take detailed, signed proofs of evidence from the deceased after learning of her terminal cancer. However, the trial judge concluded that the breach did not cause loss and no damages were awarded in this respect. The appellant challenged this conclusion. The trial judge held that Crumpton had breached his duty in not advising the appellant of the relevant limitation period but held that there was no causation. HELD, per Mason P, dismissing the appeal and striking out the cross-appeal as incompetent, (Handley JA and McColl JA agreeing): 1) The appeal against the rejection of the claim against Gorman for the lost $10,000 costs fails.  (a) Damages for Gorman's negligence can only be awarded to the appellant as an indemnity against a real loss, actual or contingent. The appellant suffered no loss with respect to the K-Mart costs order, because the terms of the costs settlement are such that the $10,000 is unlikely to ever become payable.  2) The cross-appeal is incompetent given the sum at issue in the appeal (District Court Act s127). (a) Leave to appeal is refused because the sum involved is small, the application was brought late, and there is arguably a scintilla of evidence that the lost Ashfield Mall claim was a viable one. - 3) The trial judge's assessment of general damages to be awarded against Gorman for the lost opportunity to sue Radin was not manifestly inadequate. (a) The primary findings as to the deceased's injuries from the fall at Ashfield Mall were available on the documentary evidence. - (b) Although the calculation of the deceased's general damages should have taken account of the fact that the case involved successive acts of solicitor's negligence (cf Nikolaou v Papasavas, Phillips & Co (No 2) (1989) 16 CLR 394 at 402-4; Johnson v Perez (1988) 166 CLR 351), the figure arrived at by the trial judge for total damages was not unreasonably low. - 4) Gorman's failure to take detailed proofs from the deceased did not cause or materially contribute to the appellant's inability to get any value out of the work accident claims: Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 335; Daniels v Anderson (1995) 37 NSWLR 438 at 528-9; Feletti v Kontoulas  NSWCA 59; Phillips v Bisley NSWCA unreported 18 March - (a) Gorman is not liable for difficulties with the appellant's case that were not caused or materially contributed to by the absence of the proof of evidence (cf Uniting Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1988) 193 CLR 603 at 612 ).  (i) The appellant did not have any viable claim against the Commonwealth independent of Gorman's negligence. It is difficult to envisage how a case against the Commonwealth could have been constructed from the facts.  (b) A statement taken from the deceased 8-10 years after the accidents in the last few months of her life would not have cast any greater light on the issue of the Commonwealth's legal responsibility and would not have made any difference to the viability of her claim. , , 
4 5) Crumpton's negligence in not advising the appellant of the limitation period for bringing proceedings against Radin did not materially contribute to the appellant's loss. (a) The evidence supported the trial judge's conclusion that the appellant would not have instituted proceedings against Radin even if he had been properly advised about the limitation period.  IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40734/02 DC 1341/00 MASON P HANDLEY JA McCOLL JA Wednesday 13 August 2003 Milan RADOSAVLJEVIC (Executor of the Estate of the late Mileva Radosavljevic) v Michael RADIN & ORS JUDGMENT 1 MASON P: The appellant is the executor and widower of Mileva Radosavljevic (the deceased) who was born in 1942 and who died on 21 January The deceased claimed to have suffered compensable injuries due to negligence in two groups of incidents which became the subject of proceedings in the District Court. 2 The first incident occurred on 6 June 1986 at the Ashfield Shopping Mall where the deceased slipped and fell near an escalator. Proceedings were instituted in the District Court in 1988 and 1992 in circumstances to be recounted later. 3 The second incidents were work-place accidents that befell the deceased at Concord Repatriation Hospital where she had worked as a cleaner for many years. Her employer was the Commonwealth of Australia. Proceedings were instituted against the employer in the District Court in 1988 in relation to a repetitive strain injury that allegedly occurred on 16 January 1987 and an injury to the deceased's thumb that occurred on 27 January Separate proceedings were instituted against the employer in 1989 in relation to a slip and fall on spilt coffee on 1 March 1988 in which the deceased injured her back, coccyx and pelvis. 4 The proceedings in the District Court that are the subject of this appeal were commenced in February They were claims in negligence against three solicitors, each of whom was said to have acted negligently in the prosecution of the accident claims on behalf of the deceased or, after her death, on behalf of the appellant as the executor of her estate. 5 Like the trial judge I shall identify the solicitors and thereafter refer to them by their surnames. Page 4 of 19 6 Mr Radin was instructed by the deceased in respect of the fall at Ashfield and later in relation to the work accident matters. 7 In 1988 he commenced proceedings in the District Court in the deceased's name against K-Mart (Australia) Limited (No 1218/88). As it turned out, K-Mart was not the occupier of the area where the deceased fell at Ashfield. The six year limitation period for bringing a proper claim expired on 6 June On 9 June 1992 Radin commenced fresh proceedings against New World Properties Pty Ltd t/as Ashfield Mall (No 0634A/92). New World appears to have
5 been the correct occupier. Page 5 of 19 8 Because the correct defendant was not sued in time, each of these proceedings was doomed to fail. In October 1996 (when Mr Gorman had taken over the deceased's legal affairs), Terms of Settlement were filed between the deceased and K-Mart in proceedings No 1218/88. There was a verdict and judgment for the defendant and an order that the deceased pay K-Mart's costs assessed and agreed at $10,000, payment being deferred in circumstances to which reference will later be made. The proceedings against New World were struck out, apparently for want of prosecution, on 21 April The appellant sued Radin as the first defendant in the present proceedings, seeking damages for his negligence in allowing the deceased's claim in relation to the fall at Ashfield to become statute barred. Unfortunately this professional negligence claim was also statute barred because the statement of claim in the instant proceedings was filed on 29 February The deceased's loss based on professional negligence referable to Ashfield had materialised more than six years previously, ie when her claim relating to the Ashfield fall became statute barred (6 June 1992). 10 Judge Price concluded that the action against Radin had therefore become statute barred on 6 June There was a verdict and judgment for Radin against the appellant. The appeal against this order has been abandoned. 11 Mr Gorman was found to have been instructed by the deceased from February 1993 onwards. He was retained in place of Radin to prosecute the already pending proceedings relating to the Ashfield Mall and the work accidents. 12 The allegations of negligence pleaded against Gorman in paras of the statement of claim referable to Ashfield Mall were two-fold: 1. Gorman should have realised from the papers in Radin's files that the claim against K-Mart was doomed to fail and in light of this advised the deceased to settle that claim at a time when K-Mart would have been satisfied with no order as to costs. For this breach the appellant claimed the $10,000 costs ordered to be paid to K-Mart under the Terms of Settlement (see par 20 of the statement of claim). 2. Gorman should have obtained a signed statement from the deceased which, had it been available, would have enabled Radin to be sued for negligence in relation to his handling of the Ashfield Mall claims. For this breach the appellant claimed against Gorman the value of the lost proceedings which Gorman should have launched against Radin (see par 29 of the statement of claim). It was not spelled out in the pleading, but the value of the lost claim against Radin depended in turn on showing that a properly directed claim referable to the fall at Ashfield Mall would have been viable had it not been for Radin's failure to have brought it within time. 13 Judge Price addressed the two branches compendiously for reasons indicated by me in the next paragraph. He found Gorman negligent because of his failure to get a detailed statement from the deceased to satisfy him before time ran out for suing Radin, that the deceased's fall at Ashfield Mall had not occurred on K-Mart's premises (Red 35-37). His Honour was satisfied that if Gorman had taken such a statement he would have ascertained earlier than July 1996 that the K-Mart proceedings had no prospect of success. The problems in getting the file from Radin were held to be no excuse in the circumstances. 14 His Honour nevertheless rejected the submission that Gorman's delay materially contributed to the $10,000 costs liability. He was not satisfied that K-Mart's solicitors would have settled for no order as to costs by the time that Gorman took over the deceased's legal affairs. K-Mart had been prepared to do so in 1991, but that was before the deceased's common law rights became statute-barred in June 1992 (Red 37-38). 15 The appellant challenges the rejection of this part of his damages claim, arguing that K Mart only dug in its heels in 1996 and insisted on payment of its costs because abandonment of the claim against it was offered literally on the eve of an arbitration hearing on 25 September 1996 (Blue 140). I would dismiss this part of the claim, but on an alternative basis that was raised at trial (Red 38) and repeated in this Court. Damages for Gorman's negligence could only be awarded to the appellant as an indemnity against a real loss, actual or contingent, and to the extent that such loss could be proved. It was always a term of the costs settlement with K-Mart's solicitors that the agreed sum of $10,000 would only become payable upon either the successful conclusion of the then foreshadowed claim against Radin for professional negligence or the then pending claims relating to the accidents at Concord Hospital, whichever happened
6 first (see Blue 598). Neither event happened or is ever likely to happen. Page 6 of The appeal against the rejection of the claim against Gorman for the lost $10,000 costs therefore fails. That leaves the claim against Gorman for the loss of the value of the right to sue Radin for his negligence in allowing the right to sue the occupier of Ashfield Mall to become statute-barred. 17 K-Mart filed its notice of grounds of defence in March 1988 denying that it was the occupier, denying negligence and raising contributory negligence. As indicated earlier, any common law rights of the deceased against the correct occupier of the place where she slipped and/or the cleaners employed there became statute barred on 6 June 1992, ie before the deceased consulted Gorman. Gorman took over the deceased's legal affairs in early Due apparently to information received from K-Mart's solicitor, Gorman learnt in about June 1996 that the accident may not have occurred on K-Mart's premises. Further inquiries from the deceased and advice from Mr de Meyrick of counsel in July 1996 confirmed that this was indeed the situation. 18 The deceased's written instructions to Gorman on 24 September 1996 to settle the K-Mart proceedings also included instructions to sue Radin for negligence (Blue 1/93). Gorman did not do so before any claim against Radin became statue-barred on 6 June For this he was found negligent. 19 Damages totalling $13,328 were awarded against Gorman for the loss of the opportunity to sue Radin for negligence in his conduct of the Ashfield Mall accident claim. The damages were calculated on the basis that the deceased would have had a 70 per cent prospect of success in suing Radin for his negligence in allowing any viable claim relating to Ashfield Mall to become statute barred. The putative lost claim was presumably against New World (alas sued three days too late in 1992) and/or unidentified cleaners at the Mall. 20 These damages were computed as follows: General Damages $14, Interest on $14, at 2% for 4 years $1, Loss of wages 8 $ per week $2, Interest on lost wages at 10% for 44 years $1, Total $19, Less discount of 30% (70% prospect of success) $13, The appellant appeals against the inadequacy of the award. Gorman filed a cross-appeal seeking to have the verdict and judgment set aside. 22 The cross-appeal is incompetent given the sum at issue in the appeal (see District Court Act, s127). It should be struck out unless this Court is prepared to grant the leave to appeal sought by Gorman's senior counsel in the course of his oral submissions. 23 I would refuse that leave because the sum is small, the application is too late and there is at least a scintilla of evidence that Gorman's negligence contributed to the loss of a valuable claim against Radin. 24 The last point requires elaboration. Gorman submits that there was no basis for concluding that the lost claim against the occupier and/or cleaners was ever worth anything, because there was no evidence beyond the fact that the deceased slipped and fell. (This submission is echoed in a similar submission referable to the work accident claims to which it will be necessary to turn.) In evidence is a statement of the deceased, apparently taken by someone from Radin's staff (Blue 1/216, cf 1/213). It gives no indication that the deceased was able to prove that her fall was the result of another's negligence. It refers to two witnesses of the Ashfield Mall accident who the deceased believed to have given their version of how the accident happened "to a firm of solicitors near Campbelltown called Quinns" (Blue 1/216); but there is otherwise no information about what light those witnesses could bring to bear on
7 the critical issue. Since, however, Gorman is not liable for the strength or weaknesses of the deceased's case - apart from his failure to get a statement from the deceased - nothing really turns on what (if anything) these witnesses could have contributed. I explain why this is so in more detail in my analysis of the work-accident claims. 25 This said, there is arguably a scintilla of evidence that the lost Ashfield Mall claim was a viable one. This is provided by the very fact that Radin commenced it on the deceased's behalf and in light of information received from the deceased. Arguably, such conduct (by a solicitor) implicitly admitted that an enterprise of worth was embarked upon. 26 Accordingly, I would leave the verdict in the appellant's favour against Gorman undisturbed in this respect. 27 What of the appellant's appeal against the inadequacy of the $13,328 damages? 28 The appellant submitted that the notional award of $14,000 general damages was unreasonably low. Page 7 of The deceased was taken to Western Suburbs Hospital by ambulance after her fall at the Mall. The hospital report reveals that there was a loss of consciousness for approximately ten minutes (Blue 1/147). This appears to be based on what staff at the hospital were told by the deceased or possibly the friend (Stetlana or Svetlana) who was with her at the time. Some later medical reports are sceptical about this aspect of the fall, particularly since there is no evidence of any injury to the head (Blue 1/152). In any event, full neurological examination on admission revealed no abnormality (Blue 1/147). The deceased complained of a painful right shoulder, elbow and hip. She was x-rayed, kept for four hours for neurological observations and discharged home with her right arm in a sling and analgesia. The x-ray report reveals no fracture or bony injury. Other medical evidence is summarised and weighed by the learned trial judge at Red His Honour made his findings in the following terms (Red 58): The deceased I conclude was knocked unconscious in the fall and suffered soft tissue injuries in the neck, right shoulder, right hip and lower back. She was off work for eight weeks. I accept that she may have continued to suffer some residual pain, however, the injuries I find had completely resolved by the time she saw Dr Roebuck on 1 May The plaintiff was born on and was 44 years old at the time of the fall. The deceased did not incur any loss of earning capacity. General damages are to be assessed as at June 1998 in accordance with common law principles. 30 The primary findings were available on the documentary evidence and the appellant has not persuaded me of any error in that regard. It was open to his Honour to have regard to Dr Roebuck, whose unchallenged opinion in his report of 1 May 1988 was that he could see no evidence of a person in pain and could find nothing on examination at all. See also Dr Burke at Blue 186. The deceased returned to full time employment eight weeks after her fall at Ashfield. There was other evidence of the deceased's exaggeration of her complaints to examining doctors which the trial judge was not bound to accept but which was open to him, and this Court, to take into account given that none of the doctors were cross-examined and given the location of the ultimate onus of proof. The appellant's own evidence on the topic was very perfunctory (see Black 2). 31 The award of $14,000 general damages was assessed as at June 1998 on the basis that this was the date when the right of action against Radin became statute barred (see Red 52-53). Judge Price referred to Nikolaou v Papasavas, Phillips & Co (No 2) (1989) 166 CLR 394 at and Johnson v Perez (1988) 166 CLR 351. I think that his Honour was generous to the respondent in this regard, because the present case, unlike the two High Court cases cited, involved successive acts of solicitor's negligence. Had Radin acted with due diligence, the deceased's claim against the putative tortfeasors at Ashfield would not have become statute-barred in June Had Gorman acted with due diligence, the deceased's claim against Radin would not have become statute-barred in June The valuation of what the deceased lost in her putative claim against Radin should have taken account of the fact that, had Radin acted with proper diligence, the Ashfield proceedings should have been filed by 1992 at the latest and come to trial some time thereafter but surely before That date should have been the focus for calculating the deceased's loss in her lost action against Radin stemming from Gorman's negligence. On the other hand pre-judgment interest on general damages would have run from a date earlier than June 1988, the date selected by Judge Price. 32 But even if general damages were assessable as at June 1998 I am unpersuaded that his Honour arrived at a figure that was manifestly inadequate.
8 33 The remaining issues are involved with the work accident proceedings. Page 8 of Proceedings No 181/88, relating to the January 1987 incidents, were commenced on 18 January 1988 (Blue 1/76). Particulars and a full set of pleadings ensued (Blue 4/452). The defendant requisitioned a jury (Blue 296). Radin issued subpoenas on the plaintiff's behalf (Blue 2/226). After the proceedings were taken over by Gorman the Australian Government Solicitor pressed Gorman for updated Part 12 particulars and service of medical reports (Blue 4/402). 35 Proceedings No 10649/89, relating to the slip and fall on 1 March 1988 were issued on 30 November 1989 (Blue 1/80), initially against Concord Repatriation Hospital. At the prompting of the Australian Government Solicitor this was amended to show the Commonwealth of Australia as the defendant. 36 By about 1994 it had been agreed between Gorman and the Australian Government Solicitor that the two work accident proceedings should be heard together at Parramatta (Blue 4/488). The requisite orders were made in February 1996 (Blue 4/543). 37 Both proceedings were subject to mentions and directions hearings on various dates in 1995 (Blue 4/488, 494, 496, 505, 506). The plaintiff remained in default. The proceedings were not ready for hearing because up to date medicals and revised Part 12 particulars were outstanding. The Australian Government Solicitor threatened to have the second proceedings struck out for want of prosecution (Blue 4/497). A motion to that effect was filed in early 1996 and it was stood over generally with leave to restore (Blue 4/538, 542). 38 On 15 September 1995 proceedings No 181/88 were struck out of a callover with leave to be relisted on filing a fresh praecipe (Blue 505-6). 39 These events all happened during the deceased's lifetime. 40 Nothing further seems to have happened as regards the work accident proceedings after the death of the deceased on 21 January Accordingly, each action was deemed to be dismissed on 1 January 1998 (District Court Rules, Pt 12 r 4C). No steps were taken thereafter to rescind this dismissal (cf r 4C(4), Harding v Bourke (2000) 48 NSWLR 598). 41 The negligence finding against Gorman referable to the work accident proceedings was that he failed to take detailed, signed proofs of evidence from the deceased after a conference in November 1996 when he learnt of her terminal cancer. There was a disputed issue of fact about whether Gorman learnt of the illness, but it was resolved in favour of the appellant (Red 41-44). The deceased removed a wig that revealed her hair loss due to chemotherapy and told Gorman "I'd like to finish this as soon as possible, I'm sick of, like, being stuffed around". Judge Price held that Gorman should thereby have concluded that the deceased was seriously ill and set about recording her testimony in admissible form before she died on 21 January Despite the finding of breach, no damages were awarded on this account. The learned judge concluded that the breach did not cause loss. The appellant challenges these conclusions and the dismissal of the entirety of the damages claim against Gorman relating to his negligence in the handling of the work accident claims. 43 Late in his reasons Judge Price referred to the somewhat piecemeal evidence about the ultimate fate of the two work accident proceedings in the District Court. He found himself unable to discern on the available evidence the existing status of those proceedings. He said that, if the proceedings were "deemed dismissed" pursuant to Pt 12 r 4C, the appellant had not demonstrated that there was no reasonable prospects of success for getting them reinstated (cf Harding). His Honour concluded (Red 63): There is no evidence of action being taken to restore the work accident proceedings by solicitors who have had carriage of these cases since Gorman. It appears that those who presently act for the plaintiff have elected to proceed against Gorman. In conclusion, the plaintiff has not discharged the onus of establishing the estate has lost the benefit of the work accident proceedings. I do not propose to allow any amount as damages against Gorman for the work accident proceedings.
9 44 I agree with the appellant that there are difficulties with this part of the judgment under appeal. First, it seems clear that each of the work accident proceedings had been dismissed by force of Pt 12 r4c(2), because no praecipe was extant as at 1 January Second, the possibility of reversing the situation by resort to the procedure discussed in Harding was so obviously fraught with risk and added expense that some damage was proved if the dismissal of the work accident proceedings was the critical event. Assuming (which I doubt) that it was more likely than not that the work accident proceedings could have been brought back to life if an application were to be made, it does not follow that no loss was thereby incurred. The very cost of making such application would be some tangible loss and the risk of its failure should also be allowed for on this hypothesis (see further below as to assessment of damages on the basis of lost chance). 46 However, it was in my view ultimately irrelevant to look at the issue of the "restorability" of the lost work accident proceedings. If the absence of a detailed proof of evidence from the deceased dealt a fatal blow to the proceedings, then (absent some argument about failure to mitigate loss - and none was raised) it was only prudent to let those proceedings wither on the vine without further costs being incurred. Judge Price had already addressed this issue (Red 59-60) and it is the correctness of that portion of his reasons that is the nub of this aspect of the appeal. 47 His Honour's critical findings were (Red 59-60, emphasis added): Whilst I accept the absence of the signed proofs of evidence made it more difficult to succeed in the actions, I do not accept those actions could not succeed nor did their absence not enable these actions to proceed to finalisation. Following the death of the deceased, there was available documentary material containing references to the deceased's account of the various accidents. Mr Simpkins SC enumerates that material so far as the 1987 accidents are concerned at para 29 [written submissions] and at para 28 so far as the 1988 accident is concerned. There are included in that material accident reports; Exhibit N2, Exhibit N accidents, Exhibit M accident. Eye witnesses are named as to the 1988 accident. There is a letter from Oswald Huntington (Exhibit M 1) who writes the deceased "slipped on the floor where I was sitting". The plaintiff has not established in the present proceedings that the persons named as witnesses are not available to give their account of the accident. The various solicitors or paralegals who took accounts from the deceased of her accidents may have been called in evidence. The plaintiff has not established that such persons are not available to give evidence of the deceased's accounts of the accidents. The accounts given by the deceased in the documentary material would be admissible in the work accident proceedings [s63, s69 Evidence Act]. Page 9 of 19 The plaintiff discussed with the deceased, it is clear, each of her accidents and the plaintiff's evidence of those conversations would be admissible [s63 Evidence Act]. Furthermore, the plaintiff and Miss Radosavljevic are available to give evidence of their observations of the deceased's injuries and disabilities and of her other complaints of continuing disability. The plaintiff has not established on the probabilities that the estate lost as a consequence of Gorman's breach of duty of care the chance to pursue the work accident proceedings. The plaintiff's claim against Gorman in respect of the proceedings against Radin are to be distinguished from the work accident proceedings. Gorman's negligence in the former proceedings was the principal cause of those proceedings becoming Statute barred. 48 The material that was available for the prosecution of the work accident proceedings is analysed in more detail below. 49 The appellant submits that he only had to establish that Gorman's negligence contributed materially to his loss, not that it was the sole or major cause thereof. This is undoubtedly correct (see March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514). 50 The appellant further submits that the passage above reveals that the learned judge approached the quantification of damages on an all or nothing basis, rather than on a lost chance basis. I think that this submission elides causation and damages and overlooks the fact that the appellant had to prove causation of some loss before moving to its quantification.