How To Find A Deceased Person'S Negligence In A Work Accident Case

Transcription

1 New South Wales Court of Appeal Page 1 of 19 Index] [Search] [Download] [Help] RADOSAVLJEVIC v RADIN & ORS [2003] NSWCA 217 (13 August 2003) Last Updated: 18 August 2003 NEW SOUTH WALES COURT OF APPEAL CITATION: RADOSAVLJEVIC v RADIN & ORS [2003] 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. [16] (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. [15] 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. [22]-[26] 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. [29]-[30] (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. [31]-[32] 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 [2000] NSWCA 59; Phillips v Bisley NSWCA unreported 18 March [51]-[52] (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 [22]). [55] (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. [83] (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. [73], [83], [90]

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. [102] 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.

10 51 In Phillips v Bisley, Court of Appeal, unreported 18 March 1997, this Court addressed the quantification of damages relating to a solicitor's negligence in failing to commence proceedings in time. In my reasons (with which Meagher JA and Dunford J concurred) I said: How then are issues of causation and damages to be approached? Fortunately the matter has been considered recently by the High Court in Johnson v Perez (1988) 166 CLR 351 and Nikolaou v Papasavas, Phillips & Co (No 2) (1989) 166 CLR 394. In Nikolaou Wilson, Dawson, Toohey and Gaudron JJ said of the trial judge in that case (at 404): He should have assessed damages by reference to the loss at [the date at which the claim became statute-barred] of the right to claim damages. That loss would ordinarily be quantified by the trial judge taking a broad brush approach to the several matters that in a particular case may require to be resolved - the likely date when in the absence of the negligence of the solicitor the action would have come to trial, the evidence that would or should have been available to the plaintiff at that time, the relevant principles of law then governing the assessment of damages, the question of contributory negligence, and... the prospects of any judgment given in favour of the plaintiff being satisfied. In Johnson, Brennan J said (at 373): Page 10 of 19 The value of the lost cause of action cannot be assessed as though there were a market for doubtful causes of action in damages for personal injury. The value of the lost cause of action is not what a speculator would be prepared to offer the plaintiff as the price of an assignment of the cause of action. The plaintiff's loss being whatever monetary compensation he would have received at the time he would have received it but for his solicitor's negligence, the court must find whether or not he has lost something of value. If he would have failed in the original action, he has lost nothing; if he would have succeeded, he has lost what he would have received at the time he would have received it; if the action would have been compromised, he has lost what he would have been paid in settlement at the time when he would have been paid. Or, if it is doubtful whether or not he would have succeeded in the action and it is not probable that the action would have been compromised, the court assessing the damages must determine as best it can on the balance of probabilities whether the plaintiff would have succeeded (and, if so, to what extent) or failed. In making that determination, the court may need to estimate the extent to which a successful plaintiff's damages would have been reduced because of contributory negligence. Johnson and Perez were cases where there was no dispute that the plaintiff whose claim was lost by the negligence of the solicitors had lost something of value. However, this is the critical issue in the present case. Nevertheless there is guidance from the High Court as to how a matter such as the present should be approached. Several of the justices cited with approval a well-known passage in the judgment of Lord Evershed MR in Kitchen v Royal Air Force Association [1958] 1 WLR 563 at 574-5; [1958] 2 All ER 241 at 250-1: If, in this kind of case, it is plain that an action could have been brought, and, that if it had been brought, it must have succeeded, the answer is easy. The damaged plaintiff then would recover the full amount of the damages lost by the failure to bring the action originally. On the other hand, if it be made clear that the plaintiff never had a cause of action, that there was no case which the plaintiff could reasonably ever have formulated, then it is equally plain that she can get nothing save nominal damages for the solicitors' negligence. I would add, as was conceded by counsel for the plaintiff, that in such a case it is not enough for the plaintiff to say: "Though I had no claim in law, still, I had a nuisance value which I could have so utilised as to extract something from the other side, and they would have had to pay something to me in order to persuade me to go away". The present case, however, falls into neither one nor the other of the categories which I have mentioned. There may be cases where it would be quite impossible to try "the action within the action': as counsel for the second defendants asks. It may be that for one reason or another the action for negligence is not brought until, say, twenty years after the event, and in the process of time the material witnesses, or many of them, may have died or become quite out of reach for the purpose of being called to give evidence. In my judgment, assuming that the plaintiff has established negligence, what the court has to do in such a case as the present is to determine what the plaintiff has lost by negligence. The question is: Has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can. In Johnson and other recent cases, the High Court has emphasised that the court's duty in cases such as the present is

11 to value the plaintiff's lost chance: see also Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 354, 362. The lost chance has value even if the court reviewing the facts with 20:20 hindsight assesses the plaintiff's prospects at less than 50 per cent: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 119; Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER 907 at 916, 928. This is because the plaintiff may have lost, through the lawyer's negligence, the prospect of a favourable settlement offer. The critical issue, not clearly addressed in the cases, is how to distinguish between the derisory or "nuisance value" offer which Lord Evershed MR in Kitchen would disregard, and the situation where a case has sufficient "prospects" for the court trying the negligence claim to be able to say that the plaintiff would have been likely to have attracted a valuable offer of settlement (even if worth considerably less than 100% of the plaintiff's actual loss): cf Yeoman's Executrix v Ferries (1967) SLT 332. Difficult and elusive though the distinction may be, the court trying the issue of the lawyer's negligence must proceed on the evidence before it. This involves considering the factors mentioned in the passage quoted from Nikolaou, including "the evidence that would or should have been available to the plaintiff at that time" (emphasis added). It also involves looking at the likely response of the other party or parties in the lost proceedings (ie those which would, but for the lawyer's negligence, have been prosecuted in a timely way). Among other things this requires the court trying the negligence claim to make due allowance for the fact that a less than well informed or overly cautious lawyer for the defendant faced with a claim in the lost proceedings might have made a valuable settlement offer. But what the trial judge cannot do, in my opinion, is shut his or her eyes to the evidence showing the information that was known to or was reasonably obtainable by all litigants in the lost proceedings pointing towards an objective assessment of the plaintiff's prospects of success in the lost action. Applying these principles, the appellant lost nothing of value through the pleaded negligence of her former solicitors. The evidence before Patten DCJ was reasonably procurable at the time when the appellant's lost Queensland proceedings became statute-barred. That evidence demonstrated that there was no viable case against Mr James; and that the prospect that he would have offered to settle the claim against him was nil. 52 In the present case, the appellant had to prove causation of loss on the balance of probabilities in the sense that a cause of action that had some value was lost (Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 355, Daniels v Anderson (1995) 37 NSWLR 438 at 528-9). In Feletti v Kontoulas [2000] NSWCA 59 (another solicitor's negligence case) I said: As a claimant for damages in tort the appellant's task was to persuade the court on the balance of probabilities that he lost something of value through the solicitor's negligence. Having passed that threshold, the valuation of the loss was to proceed according to the principles enunciated in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, because the court was dealing with a "past hypothetical situation" (Sellars at 350). Having found negligence in a case such as the present, the Court's duty is to value the chance lost by the client in consequence of the solicitor's negligence.... The client's lost chance has value even if the Court reviewing the facts with 20:20 hindsight assesses the plaintiff's prospects at less than 50% (Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 119; Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER at 907 at 919, 928; Phillips v Bisley Court of Appeal, unreported, 18 March 1997). Sheller JA and Rolfe AJA agreed. 53 Did the present appellant lose something of value because of Gorman's negligence? If so, what was it worth according to these principles? Page 11 of The issues are complicated because Gorman's negligence has itself contributed to the difficulty in answering these questions. There are statements in the case law indicating, in varying forms of words, that where the wrong itself makes quantification difficult, inferences may be drawn in favour of the innocent party (Armorie v Delamirie (1722) 1 Strange 505, 93 ER 664, Heywood v Wellers [1976] QB 446, Chen v Karandonis [2002] NSWCA 412 at [59]-[60]. See generally S M Waddams, "Damages: Assessment of Uncertainties" (1998) 13 JCL 56). But these principles do not, on my understanding, assist in the prior question of determining primary responsibility, including the need to prove that the defendant's negligence caused some loss or damage (Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307. Cf Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 which (if it represents Australian law)

12 is distinguishable because both negligence and damage were proved and the sole question was the causal link between them where it was proved that at least one of the defendants had caused that damage). 55 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 (1998) 193 CLR 603 at 612 [22]). This invites consideration of the material apart from that proof of evidence, to see whether or not it indicated a viable claim. But regardless of the outcome of that enquiry, the critical question is whether the putative witness statement made any difference. Hypothetically, it could have added essential evidence otherwise completely lacking, or made a material contribution towards enhancing an otherwise viable proceeding. 56 Gorman submits that there is ample material, including nearly contemporaneous statements from the deceased herself, that shows that the deceased's claims were always highly speculative ventures that lacked substance as regards the capacity to prove negligence against the Commonwealth. The material from the deceased herself was conflicting in significant matters. The death of the deceased would only have made matters considerably worse. It is pure speculation that statements from the deceased taken during her terminal illness would have made any difference. By the time the claims against the Commonwealth came to trial the appellant would still have been met with the difficulties stemming from the contemporaneous evidence, the inconsistencies in the deceased's earlier accounts and histories, and the absence from the witness box of the key witness, ie the deceased herself. Everything pointed to the Commonwealth putting the plaintiff's case to proof - including proof before a jury. 57 The appellant submits that a competent solicitor would have procured a statement that filled evidentiary gaps and explained earlier discrepancies. It would also have given the appellant the option of not having to tender in his case otherwise hostile medical reports as the best or sole source of vital information from the deceased touching the Commonwealth's liability and the full extent of the deceased's injuries. 58 The first proceedings against the Commonwealth (No 181/88) related to the two incidents of January The pleaded case was that on about 16 January 1987 the deceased suffered injury to her left shoulder and arm from use of a polishing machine; and that on about 27 January 1987 her injuries were aggravated, and as a consequence she suffered further injury when a drip stand fell on her (Blue1/77). 60 Particulars supplied by Radin indicated that in 1979 and 1986 the deceased had sustained injuries (for which she obtained compensation) (Blue 1/58 and 59). One of the 1979 accidents involved injury to her left shoulder. The allegation concerning 16 January 1987 was that a repetitive strain injury was aggravated. 61 There is in evidence a Department of Veterans Affairs accident report in the deceased's handwriting (Blue 2/262). The date of the report has not been reproduced, but it was presumably made on or about 16 January The report states: "I was polishing floor of Palliative Care officer when I felt a click in my left shoulder and my shoulder started to hurt also my arm." According to that report, there were no eye witnesses. 62 File notes tendered from Radin's file include a note by "Ray" dated 8/08/90 which says of the accident on 16 January 1987 (Blue 2/218): "She injured left shoulder when she lost control of polishing machine." 63 Another note dated 29/6/88 and also produced from Radin's file states (Blue 2/261): Page 12 of 19 "Polishing machine. Using it no light duty certificate - they returned her to normal duties after she finished ct case re back weeks after settlement returned to work polishing machine shook out of control - old machine would stop and then jump out of control and wrenched her arm." The final sentence arguably provides some evidence of negligence in the failure to provide reasonably safe equipment.

13 The year date is wrong, but I am prepared to assume that that was a mistake. Page 13 of As against this material, several of the medical histories given by the deceased as recorded in medical reports made no mention of any incident in January 1987 other than the injury to the thumb (see eg Blue 1/172, 178, 183, 191, 194). 65 The accident report referable to the thumb injury on 27 January 1987 records the deceased reporting that "she injured her left thumb when a drip stand fell on it" (Blue 2/244). The accompanying supervisor's report stated that the extension for the drips on the drip stand fell back and hit the deceased on the left hand thumb bruising that thumb. The supervisor reported that he/she had checked out the equipment for any faults (implicitly finding none) and that: "I've told Mrs Radosavljevic to be more careful when performing any duties at any time." 66 The deceased gave accounts of this accident in statements recorded in file notes in Radin's files and in some of the medical histories. 67 A note of 8/08/90 (Blue 2/218) records: "Pl was washing drip stands and had washed about 10 when she got onto the next one. As she took hold of it the clamp on which bottles are attached fell from its position on top of the stand onto the Pl's hand thereby injuring the thumb." 68 The same note records that the deceased saw her general practitioner Dr Ahmed in relation to both of the January 1987 injuries. 69 A history as recorded by Dr Sinclair, who saw the deceased on 14 September 1988 states (Blue 1/178): PAIN Her original problem has disappeared, she said `Yes, I was better of course, so I went back to work'. Her current problem apparently began early this year. She said that she was well and at work when she was cleaning a metal `drip stand'. It's a metal adjustable pole used for hanging intravenous fluids. She said that it tipped over and hit her on the left thumb. She said `I was screaming and jumping. I reported the accident of course'." 70 Dr Puflett was retained on behalf of the Commonwealth to examine the deceased with a view to giving medicolegal evidence. He interviewed her on 15 August 1988 in the presence of an interpreter and took a detailed history (Blue 1/171ff). As indicated above, the history is silent as regards any incident on 16 January 1987 but it contains a detailed account of the incident involving the thumb. 71 Dr Puflett interviewed the deceased in the presence of an interpreter. The history as recorded includes the following: "Some five or six years ago the patient was working making a bed. The bed mattress was wider than the bed and was caught under the side rails of the bed. She lifted the mattress on the left side of the bed with her left shoulder with a view to putting the sheet underneath the mattress. She felt something give in her left shoulder and she had severe pain in the top of her shoulder, lateral shoulder and down the arm. She fell to her knees because of the severe pain. The Sister came to her assistance and lifted her up and she was seen by a hospital doctor who x-rayed her shoulder and then she went home. She then had physiotherapy for a period of time that she cannot recall and she states that for two and a half years she worked on and off with her shoulder and then after two and a half years she didn't do any work at all. In this time she appears to have seen Dr Sanki on a date which she cannot recall and Dr Sanki on three occasions manipulated her shoulder under anaesthetia [sic] in hospital without any improvement. Dr Sanki then showed her how to exercise her left shoulder by taking her left hand in her right hand and passively moving the left upper limb. She had complete recovery from her left upper limb problem and she then resumed work on a date she can't state in She resumed work after five years. She states that she could lift buckets and move a polisher without any pain in her shoulder.

14 Then, on a date that she can't recall, she was washing the pans holding various intravenous treatments which stood by the beds and the T bar on the top of one of these was not screwed normally and it fell on the back of her left thumb. She states that x-rays were taken and there was a broken bone in the distal phalanx of the left thumb. Her left thumb was then placed in a volar splint for three to four months and during this time she attended the hospital having it checked by the hospital doctors." 72 The reference to the T bar not being "screwed normally" is arguably some evidence of an act of casual negligence on the part of a nurse. 73 It seems impossible to think that the deceased would have been able to cast any greater light on the issue of legal responsibility in a statement taken ten years later. 74 The second proceedings against the Commonwealth (No 10649/89) related to the occasion when the deceased slipped and fell at work on 1 March The case as pleaded (Blue 1/81) alleges that the deceased was vacuuming a floor when she slipped on a liquid that had been spilt on the floor. The particulars of negligence adopt a scatter-gun approach (even including "failed to keep any or any proper lookout") which hardly gives one great confidence that much attention had been devoted to the issue of liability at that stage. 75 The accident report signed by the deceased said that she was vacuuming the floor and that the accident occurred as follows (Blue 2/248): "While I was vacuuming the floor on the veranda, I slipped and pull back my back side." The deceased filled in details of the names and addresses two eye witnesses and one person who saw her "immediately before or after the accident". 76 The accompanying report from the officer in charge indicated that she was not satisfied that the accident had occurred as stated because when she went to see where the accident had happened the floor had already been cleaned. Her opinion as to the cause of the accident was: "Carelessness, she didn't notice the spileage [sic] of coffee on the floor." 77 The officer in charge conducted some investigations as follows (Blue 2/249): "I asked the 2 eyewitnesses. They said that she was pulling back herself, hit her buttock and lie flat on the floor with of the spileage [sic] of coffee on the floor. They helped her sit on the chair." 78 There were reasonably contemporaneous histories recorded in Radin's file notes or given to doctors seen by the deceased in An undated note from Radin's files reads (Blue 2/250): "She says that floor was wet before she started cleaning with vacuum cleaner. It was there before she got there - but may have not been. The liquid could have been spilt any time in the last 16 hours. Pl had not worked in that area for -6 months. Patients were present on the verandah when she fell. She says she slipped as she was vacuuming and fell onto her back when her right leg slipped forward from underneath her." 80 A typed note which appears to be based on instructions received on 16 September 1988 relevantly records (Blue 2/255): CIRCUMSTANCES: while she was vacuuming the floor of the verandah adjacent to ward No 24 which was made of timber - painted with gloss paint she slipped on some coffee that was spilled onto the surface of the floor. The floor was painted some teak colour and coffee was white so it was unnoticeable prior to her fall. She fells onto her backside and buttocks as her feet slipped out and to side/doing a split as she went down. WITNESSES: 1. Henry Laing Page 14 of 19

15 8 Longstafe Way Page 15 of 19 CLAYMORE 2. Oswald Huntington PO Box 42 NARRANDERA The above were patients in the ward at the time. 3. K Brooker 19 William Street SOUTH STRATHFIELD The above was a witness after the fact - he called the supervisor. REPORTED TO: NIMFA HANAOG - relieving supervisor of the cleaners, at 8:00 am on the same day. Report of accident completed by the supervisor in front of client - who is illiterate!" 81 There are other histories recorded in various medical reports (Blue 1/1, 5, 149, 159, 179, 183, 190, 203). These tend to confirm that the accident had a significant and prolonged impact on the deceased, but contribute nothing to determining whether the accident was tortious. They merely corroborate that the deceased slipped and fell on a liquid while she was vacuuming. Nothing suggested how long the liquid had been there or whether its presence betokened negligence by anyone for whom the Commonwealth was legally responsible. 82 The original accident report (Blue 2/248) and the typed record of the instructions received "from: " in Radin's file (Blue 2/255) give the name of three witnesses, two of whom are said to have been patients in the ward at the time, the third being a witness after the fact who called the supervisor. Mr Huntington wrote a letter on 25 October 1988 that is unhelpful on the issue of tortious liability (Blue 2/246). There is no evidence indicating that statements were taken from these witnesses by Radin or Gorman. I infer that they were not (see also Blue 1/142). It would be pure speculation to think that they could add anything to the question whether the Commonwealth was liable, a fortiori if the question is asked as at 1993 after Gorman had taken over the conduct of the legal proceedings. 83 It must not be forgotten that it was the deceased's job to clean the floor. The presence of spilt coffee on the floor does not of itself point to negligence by some employee of the Commonwealth. How a hypothetical case of employer's negligence could be constructed out of the bare facts is difficult to envisage and entirely speculative. Equally speculative, indeed positively far-fetched in my view, is the idea that a witness statement taken from the deceased over eight years later would have added anything material on the vital issue of legal responsibility for the spilt coffee. 84 On 15 September 1997 Mr Pullinger of counsel gave a memorandum of advice of to Gorman. At that time, consideration was being given to what if anything should be done to prosecute the proceedings against K-Mart, the two proceedings against the Commonwealth and the contemplated proceedings against Radin. The proceedings against the Commonwealth are those numbered 2 and 3 in Mr Pullinger's advice, which included the following (Blue 3/3-4): "Continuing to prosecute proceedings above numbered 2 and 3 for the benefit of the estate of the deceased would require proof of the circumstances of injury and negligence of the defendant.... Despite the statements of Claim giving some account of the various happenings and some histories contained in medical reports there does not appear to exist any statement or proof of evidence signed by the deceased which would

16 facilitate the necessary proof of the existing and proposed actions. Page 16 of 19 It may well be the case that Bryan Gorman & Co, the solicitors acting for the deceased before her death, have been negligent when knowing of her terminal illness they failed to obtain from her the proofs necessary to present in her cases after her death.... I am of the view that further prosecution of the deceased's several claims are unlikely to achieve any worthwhile result. It may be that the existing claims above mentioned numbers 2 and 3 together with any outstanding unlitigated claims respecting other work place injuries can be resolved by settlement negotiations and subject to instructions from Mr Radosavljevic I recommend that course." 85 Later Mr Crumpton briefed Mr Clare of counsel for advice. In an opinion dated 3 June 1998 Mr Clare advised (Blue 4/294-5) - (B) RE: M RADOSAVLJEVIC v COMMONWEALTH OF AUSTRALIA (No 181 of 1988) This action is based on alleged work injury sustained during the course of her employment on 16 January 1987 and aggravated on 27 January (C) RADOSAVLJEVIC v COMMONWEALTH OF AUSTRALIA (No 10649/89) This is a claim for a work related injury sustained on 1 March I have had the opportunity to read the Advice of Mr David Pullinger of Counsel dated 15 September 1997 and generally agree with its contents. There is no proof of evidence on file setting out the circumstances of each individual incident incurred by the deceased at work so it is difficult, if not impossible, to provide any definite advice on the prospects of success against the Commonwealth in these circumstances. The failure of Radin & Associates and Bryan Gorman & Co to obtain a detailed proof of evidence before Mrs Radosavljevic died is appalling and may be considered negligent in the circumstances, especially when Bryan Gorman & Co knew of Mrs Radosavljevic's terminal illness before her death. It is also apparent that Mrs Radosavljevic had a number of work related injuries which are not the subject of Common Law proceedings and the failure of both Radin & Associates and Bryan Gorman & Co to investigate these is also negligent on the surface. There would appear to be a clear breach of duty by Radin & Associates and Bryan Gorman & Co to the deceased's actions but pursuing actions of negligence against either or both of them will lead to the incurring of substantial costs and it may be futile in the long run as it will be difficult to substantiate the primary action of the deceased. It is my view that if settlement could be arranged with the Commonwealth this would be the best option. If the Commonwealth take a hard line then it may be better to negotiate a withdrawal of the actions if each party pay their own costs. Having said the above, Bryan Gorman & Co should be advised that under no circumstances are their costs going to be paid and if they attempt to recover them then consideration will be given to bringing an action of negligence

17 against them (as discussed above)." Page 17 of These opinions of counsel no doubt contributed to the decision being taken not to prosecute the proceedings against the Commonwealth. If there was a serious issue about failure to mitigate they would be very relevant on this point. 87 Even without these opinions I am comfortably satisfied that the appellant was perfectly entitled to abandon any thought of reviving and prosecuting the proceedings against the Commonwealth. There is no evidence of any settlement offer having been made on behalf of the Commonwealth and there is plenty of evidence that the Commonwealth through its solicitors was putting the plaintiff to proof. Nothing suggests any change of heart after the deceased's death, an event which the defendant was entitled to view (legally speaking) as making the appellant's task even harder. Nothing in the material indicates that the Commonwealth ever contemplated making a settlement offer. (I infer no impropriety in this stance. The deceased obtained compensation under the Commonwealth Employers Rehabilitation and Compensation Act 1988 (Blue 2/252, 4/275). An entitlement to "common law" damages based on negligence was a different matter entirely.) 88 The first issue is whether the appellant had any viable claim against the Commonwealth independently of Gorman's negligence. If so, did Gorman's negligence contribute to precluding such claim from not being made better? If the work accident claims were never viable, did Gorman's negligence prevent them or one of them from passing the threshold to claim(s) that were at least arguable or which might have generated a settlement offer? Did Gorman's failure to take detailed proofs from the deceased cause or materially contribute to the appellant's inability to make something of the work accident claims? 89 In my view, Judge Price was correct to dismiss this aspect of the proceedings against Gorman. 90 It remains entirely speculative as to whether a statement taken during the deceased's last few months of her life could have made any improvement to her case. The deceased was not a good historian, according to the ample evidence of several of the medical reports (Blue 1/182, 187, 190). Her nearly contemporaneous reports of the work accidents give no indication that she had any capacity to cast better light on the antecedents of the three incidents or accidents. The trail had gone completely cold by late The medical histories and solicitor's file notes were admissible in the appellant's case and many of them were much more contemporaneous than a statement taken in late 1996 or early 1997 would have been. It is not the lawyer's legitimate task to make bricks out of absent straw. 91 The appeal against Gorman should be dismissed. 92 The appellant's claim against the third solicitor, Mr Crumpton, related to the latter's alleged negligence in acting for the appellant himself, in his status as representative of the deceased's estate. Crumpton was the appellant's solicitor between about 22 April 1997 and 18 January His negligence was said, in effect, to consist of failing to advise the appellant to sue Radin for Radin's negligence in allowing the Ashfield claim to become statute barred. 93 As indicated already, any right to sue Radin itself had become statute barred on 6 June The appellant gave evidence that he went to see Crumpton in 1997 and told him that he (Crumpton) had to find out whether he could sue Radin. This retainer was not in dispute. What is in dispute was what Crumpton said and did and what the appellant would have done had Crumpton acted differently. 95 Judge Price held that Crumpton owed the appellant a duty of care from 17 June 1997 onwards. His Honour made the following findings of fact referable to breach of this duty (Red 47-8): I make the following further findings of fact: * An advice was provided by David G Pullinger barrister dated 15 September (Exhibit 1). Very shortly stated, Pullinger advised `that further prosecution of the deceased's several claims are unlikely to achieve any worthwhile result'. * Detailed written instructions (Exhibit 2) were obtained from the plaintiff by Crumpton whereby the plaintiff instructed Crumpton to cease acting in the action against `Mr Radin and or on associated matters to my wife's fall on

18 6 June 1986 and to attempt to settle the claims against the Commonwealth of Australia (Concord Hospital) where my wife suffered injuries as an employee.' The instructions are dated 26/9/97. * Conferences were arranged with Mr Garry Clare, barrister on 7 April 1998 and 21 April 1998 which the plaintiff attended. Mr Clare had been briefed to advise on the prospects of success in suing Radin in relation to the K Mart proceedings and Gorman. * In an advice dated 3 June 1998 (Exhibit E) Mr Clare advised that `pursuing actions of negligence against either or both of' Radin or Gorman `will lead to the incurring of substantial costs and it may be futile in the long run as it will be difficult to substantiate the cause of action'. * A conference was held on 29 June 1998 between Crumpton and the plaintiff during which it was explained to the deceased if he lost he would `be liable for the costs". The plaintiff said that he would see another solicitor. Crumpton acted with, I conclude, from the documentary material, patience and consideration for the plaintiff. It is apparent however from Mr Clare's reference in his advice to being briefed to advise on the prospects of suing Radin and from the plaintiff's evidence, the plaintiff continued to entertain the possibility of commencing proceedings against that solicitor which Crumpton, I infer on the probabilities, knew. The proceedings became statute barred prior to the provision of Mr Clare's advice. Crumpton was in such circumstances under a duty of care to advise the plaintiff of the relevant limitation period and the consequences of the proceedings becoming statute barred notwithstanding the potential difficulties with the plaintiff proceeding. I do not accept Mr Simpkin's submissions. Crumpton breached the duty of care which he owed to the plaintiff in failing to give that advice. 96 The next issue was causation. What would the appellant have done (before 6 June 1998 when his right to sue Radin became statute barred) had Crumpton given the advice and warning to which his Honour referred in the penultimate paragraph of the passage just quoted? 97 His Honour addresses this issue at Red The appellant did not give evidence in chief on this matter but aspects of his likely intent were canvassed in his cross-examination. Among other things, this evidence explored the significant cost risks involved in obviously speculative litigation brought by a plaintiff in very straitened financial circumstances in the teeth of advice from counsel to give up (see Red 50). 99 Judge Price formed his conclusion in light of his assessment of the appellant's evidence and the probabilities revealed by the surrounding material. The difficulties for an appellant challenging such a decision are demonstrated in Rosenberg v Percival (2001) 205 CLR 434 at His Honour's conclusions were expressed as follows (Red 50-51): Page 18 of 19 I do not accept the plaintiff's evidence that his solicitor (Crumpton) told him that they would take Radin to Court. The advices, written instructions and file notes strongly support the view being taken that the exact opposite was the true position nor do I accept the plaintiff's evidence that nobody told him about what might happen if he lost a case brought against Radin. The advices, written instructions and file notes reflect a concern for the costs involved, for the potential for adverse orders for costs being made and of the communication of those concerns to the plaintiff. Overall, the plaintiff was an unimpressive witness. In making this assessment, I have sympathetically considered his cultural background. He had at trial however the assistance of an interpreter. In cross examination, he was often evasive and did not answer questions frankly.

19 I find that the plaintiff's request for a Q.C's opinion in 1998 related to the work accident proceedings. The plaintiff's evidence and the reference in the file note (p 5 Exhibit 1) to liability for `cths costs' supports such a finding. The file notes reveal the plaintiff's desire not to incur disbursements for which he had to pay and to run actions which he would not get money out of. I do not agree with Mr Lidden's submission that there is an overwhelming inference from Crumpton's file (Exhibit F) that the plaintiff wished to proceed against Radin. The plaintiff, moreover, was in 1998 experiencing financial difficulties. His debts were substantial, his income did not cover his expenses. The principal asset was the family home. I am not persuaded upon the probabilities that he having been advised by two counsel and Crumpton of the difficulties in proceeding against Radin without proofs of evidence from the deceased, would have instituted proceedings against Radin if he had been properly advised by Crumpton of the limitation period before its expiration. I conclude upon the probabilities that he would not have commenced such proceedings thereby subjecting himself to the possibility of an adverse order for costs. I find the negligence of Crumpton did not materially contribute to the plaintiff's loss. The proceedings against Crumpton fail. 101 The appellant challenges this conclusion in ground 8 of his notice of appeal. In his written submission he says: At Red 43 the trial judge found that the Third Respondent breached his duty of care by failing to advise the Appellant of the relevant limitation period and the consequences of that. Contrary to the trial judge's finding, the overwhelming inference from the Third Respondent's file is that the appellant wished to proceed against the advice he was given to the extent even of being determined to seek the advice of senior counsel (eg Blue Volume 1 121, 128, 101, 102, 103, 105, 106). These notes demonstrate that notwithstanding the advice of two barristers and the solicitor that the case was not worth pursuing the appellant wanted to get further advice. He wanted to go and see another firm of solicitors about the case. It is more likely than not that the Appellant would have proceeded with the action and the Third Respondent is liable for the opportunity being lost. 102 There is no merit in this submission. The evidence amply supported the trial judge's well-explained reasons on this topic. The fact that the appellant did not give evidence in chief on the hypothetical issue of what he would have done if properly advised may not be fatal, but it certainly did not help his case. One of his answers in cross-examination (Black 17.56) indicated that he probably would not have hazarded his house if given advice in 1997 that his claim against Radin would fail and that, if it did, he would have to pay Radin's costs. There was evidence that the appellant was prepared to hazard his limited assets in highly risky litigation to the extent that his own lawyers were not prepared to act on a contingent fee basis. This notwithstanding, the finding on causation was well open to the primary judge. Accordingly, the appeal against the third respondent must also be dismissed. 103 I therefore propose the following orders: 1. Appeal dismissed with costs. 2. Cross appeal struck out as incompetent, with costs. 3. Application for leave to cross appeal refused with costs. 104 HANDLEY JA: I agree with Mason P. 105 McCOLL JA: I agree with Mason P. ********** LAST UPDATED: 18/08/2003 Page 19 of 19