1. I am satisfied that the first, and only, notification that the plaintiff received from the defendant that an extension had been made, and given, in respect of the plaintiff's termination date was the letter of 12 July 2016, received by email dated 13 July 2016.
2. For the reasons given in section 20.3, the plaintiff has established failure five.

25.6 Failure six: The defendant failed to advise the plaintiff of the steps required to obtain a whole of person impairment in circumstances where the plaintiff was suffering from multiple injuries

1. In relation to failure six, I refer to the findings in section 11.3 in respect of the injuries that SBL knew or reasonably believed Mr Armet to be suffering from during the period of the retainer that were work-related. In short they comprised the lower back and foot injury and the tinnitus injury.
2. In respect of the lower back and foot injury, Mr Trigg had taken the necessary steps to have Dr Fairhurst provide an estimated whole of person impairment assessment.
3. In respect of the tinnitus injury, for the reasons set out in section 22.3, Mr Trigg had responded to the plaintiff's dogged pursuit of reports from ENT specialists. Mr Trigg had formulated questions, or otherwise attempted to advise the plaintiff about appropriate questions to pose to the ENT specialists.
4. Mr Trigg was not under an obligation to give advice to the plaintiff with the expectation or foresight that his instructions would be terminated on 11 May 2016.
5. Mr Trigg was not under an obligation to give advice to the plaintiff on the understanding that the plaintiff would following the termination of the retainer with SBL, represent himself.
6. For these reasons, I conclude that the plaintiff has failed to establish failure six.

25.7 Failure seven: The defendant's handling of the tinnitus claim

1. For the reasons set out in section 22.3, I am satisfied that Mr Armet knew at least by 17 February 2016 that the Form 100 tinnitus conciliation form had not been accepted by WorkCover and had not been re-lodged by SBL.
2. For the reasons set out in section 22.3 I accept that Mr Armet understood that SBL had lodged the Form 100 in or around mid-April 2016 and that Mr Armet discovered in early May 2016, and by letter from SBL dated 5 May 2016, that this had not occurred. The Form 100 was lodged on or around 5 May 2016. The delay in lodging the application was an estimated delay of approximately three weeks.
3. I accept that this was a genuine oversight on the part of the defendant. It was dealt with openly and rectified by the defendant's letter of 5 May 2016.
4. To the extent that there was a 'mishandling' of the tinnitus conciliation application, it comprised a delay in the filing of the application of approximately three weeks.
5. If I am wrong about this, it was rectified by the writing of the letter of 5 May 2016.[377]
6. For these reasons, I conclude that the plaintiff has failed to establish failure seven.

25.8 Failure eight: The defendant's failure to properly investigate the plaintiff's injuries

1. This allegation comprises a number of components: the defendant's failure to refer the plaintiff to an ENT specialist for his tinnitus claim; the failure to include the plaintiff's neck injury in the referral to Dr Fairhurst, the defendant's failure to investigate the neck injury and the plaintiff's hair loss.
2. For the reasons given in section 22.3 there was no failure by Mr Trigg in failing to properly investigate the plaintiff's tinnitus injury.
3. For the reasons given in section 22.3 there is no merit in the plaintiff's complaint that Mr Trigg failed to investigate the neck injury.
4. For the reasons given in section 21.2 there is no merit in the plaintiff's complaint that Mr Trigg failed to investigate the plaintiff's hair loss injury. The plaintiff has not established failure eight.
5. If I am wrong in my conclusions in respect of failure eight, for the reasons I have given in section 28.1, there would be no change in my conclusions in respect of duty of care nor causation.

25.9 Failure nine: The defendant's failure to investigate the plaintiff's allegations of negligence in respect of his employer

1. I accept the defendant's submission that during the short period of the retainer, Mr Trigg was focused on the question of whether Mr Armet could meet the minimum 15% whole of person impairment threshold in order for an election at common law for damages to be a viable pathway.
2. I accept the defendant's submission that a failure to establish the minimum 15% threshold would render any negligence on the part of CFC irrelevant.
3. During the short period of the retainer I am further satisfied that Mr Trigg's focus was also taken with Mr Armet's extensive correspondence and investigations into his tinnitus complaint.
4. Establishing negligence on the part of CFC was not a necessary precondition to Mr Armet being able to elect to pursue CFC at common law in damages.
5. For these reasons, I conclude that the plaintiff has failed to establish failure nine.

1. Failure ten has five component parts.
2. The first component is that the referral letter received on the Monday for an appointment on that Friday was, in the plaintiff's evidence, 'Speedy Gonzales'.[378] For the reasons given in section 20.1, I find that Mr Trigg was acting in Mr Armet's best interests at the time of the referral. There is no merit in this allegation.
3. The second component is the plaintiff's evidence that this was a very important letter because the words used 'are like an order' and the plaintiff 'had to comply' with the referral.[379] I find that this is a standard, template letter of referral of a client to an approved medical specialist for assessment. There is no merit in the allegation that the plaintiff had to comply with the referral; the complaint demonstrates that the plaintiff misunderstood the formal language of the letter. The plaintiff having received the referral letter wrote to Mr Trigg by email dated 9 February 2016. The plaintiff did not raise with Mr Trigg then whether or not he had to comply with the letter. There is no merit in this allegation.
4. The third component is that on the form that the defendant sent to Dr Fairhurst detailing the plaintiff's injuries the defendant only listed the back and the foot injury. The defendant 'forgot the neck, they forgot the tinnitus, they didn't care about anything'.[380] For the reasons outlined in sections 11.3 and 21.2, at the time of the referral to Dr Fairhurst Mr Trigg was not told that Mr Armet's neck injury was an injury which he attributed to his workplace. It also appeared to be a 'newly emerging' complaint of pain at or around that time.
5. There is no merit in the suggestion that Mr Trigg 'forgot' the neck injury: it had not been presented to Mr Trigg as an injury causally connected to his work at the time of the referral to Dr Fairhurst.
6. Dr Fairhurst was not qualified to make an assessment of Mr Armet's tinnitus injury, he is not an approved medical specialist for ENT. There is no merit in this allegation.
7. The fourth component is that Dr Fairhurst's report was itself incomplete and or deficient because he 'completely forgot the results from the MRI of the plaintiff's foot on 7 and 11 December 2015'.[381] That was a 'big miss'. I refer to my conclusions in respect to the fifth component below.
8. The fifth component is that Dr Fairhurst did mention the foot in his report but did not give it any per cent[382] (whole of person impairment percentage). I deal with the fourth and fifth components together. No medical evidence was called at this trial: see section 5.3. Dr Fairhurst was not summonsed to give evidence; Mr Trigg was not cross-examined about any failure to chase Dr Fairhurst in respect of the plaintiff's complaints.
9. No evidence was led that the plaintiff complained to Mr Trigg at the time notifying him of Dr Fairhurst's alleged omissions. Dr Fairhurst's review was not the final intended review of Mr Armet. A further appointment had been booked for Mr Armet to attend Dr Fairhurst's office in September for assessment. The retainer between the plaintiff and the defendant had by that stage been terminated. Mr Armet chose to go to Mr Narula and not Dr Fairhurst and the appointment with Dr Fairhurst in September was cancelled.
10. For these reasons I conclude that the plaintiff has not established failure ten.

25.11 Failure eleven: The fact of the referral to Dr Fairhurst and not to Mr Narula

1. I accept Mr Trigg's evidence about the reasons for him referring Mr Armet to Dr Fairhurst and not to Mr Narula. Dr Fairhurst was an approved medical specialist. SBL had a working relationship with Dr Fairhurst. SBL trusted that Dr Fairhurst would see Mr Armet promptly, which he did, and that he would examine and then report on Mr Armet in the manner prescribed in the Act. Dr Fairhurst did this promptly, as well as providing Mr Trigg with a report on the degree of whole of person impairment assessment for Mr Armet's back and foot as he assessed them to be at that time.
2. Mr Trigg expressed concerns about treating doctors not completing the paperwork on time. Mr Trigg trusted Dr Fairhurst to do this and he did so promptly.
3. For these reasons I conclude that the plaintiff has not established failure eleven.

26.1 Duty of care at common law - the solicitor-client relationship

1. A lawyer is assumed to owe a client a duty of care in tort. It was not in dispute at trial that SBL as solicitors for the plaintiff owed the plaintiff a duty of care.[383]

1. The relevant standard of care is 'that of the ordinary skilled person exercising and professing to have that special skill'.[384] This is one of a qualified competent and careful lawyer in the circumstances in the practice of his profession.[385] The lawyer is only liable for the use of 'ordinary' care and skill and therefore the standard of care provides no guarantee against all mistakes or omissions.
2. Often, by way of shorthand, it will be appropriate to characterise the duty as one to exercise the skill, care and diligence expected of a 'reasonably competent solicitor'.[386]
3. A lawyer is 'not bound ... to exercise extraordinary foresight, learning or vigilance'.[387] Generally speaking therefore a lawyer does not need to advise as to how the law might develop in an area or as to the steps clients could take to address future developments.[388]

1. The scope and content of the duty of care is not determined retrospectively, that is, by asking what could have been done to prevent the loss or damage.[389]
2. The standard of care to be expected of a professional man must be based on events as they occur in prospect and not in retrospect; hindsight is no touchstone of negligence.[390]

26.4 The retainer and the scope of the retainer between the parties

1. Where a solicitor has a contractual relationship with a client the scope of the retainer is the starting point in determining the scope of the solicitor's duty of care in tort.[391] In Townsend v Roussety, Buss JA (as the President then was) stated:[392]

Since the decision of the High Court in Astley, a professional person does not have a 'penumbral' duty in tort which requires the giving of advice on matters which are beyond the limits of his or her retainer. Where there is a contract of retainer with a professional person, it is the contract that defines the relationship of the parties so that, ordinarily, the presumed intention of the parties is that any duty in tort is limited or excluded.

1. The scope of the lawyer's duty of care is influenced by the client's apparent need for advice. An inexperienced client 'will need and be entitled to expect the solicitor to take a much broader view of the scope of his retainer and of his duties than will be the case with an experienced client'.[393]
2. More may therefore be expected of a lawyer representing a client suffering from a disadvantage, whether by reason of age, disability, business inexperience, lack of education or ignorance or who is temporarily fragile.[394] The duty of care here may require the lawyer to more carefully explain the incidences of the representation and it may even dictate active steps that would not have been required had the client not been at a disadvantage.[395]

1. SBL's duty in tort does not require the giving of advice on matters which are beyond the limits of its retainer with the plaintiff.[396] Whilst this matter was not the subject of oral evidence at trial, the retainer is in evidence.[397] I therefore deal with it here.
2. The retainer between the defendant and the plaintiff is set out in SBL's letter to the plaintiff dated 3 February 2016.[398] The retainer provides:

Our engagement is to do all necessary work to investigate and pursue a reasonable settlement of your common law claim. Once we have completed our investigations and if it becomes apparent that you cannot pursue or you decide not to pursue your common law claim then our engagement is to pursue a reasonable lump sum redemption of your workers' compensation claim. Our engagement does not include representing you in or carrying out any work associated with any dispute or proceedings in WorkCover and does not include representing you in or carrying out any work associated with District Court proceedings for your common law claim. .... As mentioned already, our engagement is only to carry out work involved in negotiating a settlement of your claim and does not include: ... [r]epresenting you in carrying out any work associated with any disputes or proceedings with WorkCover ... [or] [r]epresenting you in carrying out any work associated with District Court proceedings.

1. The retainer is confined to investigating and obtaining all necessary evidence in order to determine Mr Armet's prospects of successfully pursuing his common law claim. However, implicit within the scope of the retainer is the advice to the plaintiff about what is required in order for him to pursue an action in common law damages against CFC. Advice about the plaintiff's common law termination date, actions to extend that date and the requirements under the Act to make that election all fall squarely within the terms of the retainer between the parties.
2. The retainer on its face excludes SBL carrying out any work associated with any dispute or proceedings in WorkCover. On its face that appears to include the lodging of a Form 100 in respect of GIO's dismissal of the plaintiff's tinnitus claim. This matter was not raised in evidence by either party. I have dealt with the plaintiff's allegation (alleged failure seven) that SBL 'mishandled' his tinnitus conciliation application on the basis that there was an implied agreement, or implied variation to the retainer, in this regard.

26.7 Application to the facts: The inexperienced plaintiff

1. The plaintiff's background and circumstances personal to him as outlined in section 5.4 include that English was not his native language, he was not from this jurisdiction, the circumstances under which he came to seek SBL's advice, as known to SBL, and the complexity of the overarching legislative regime required that SBL took special care in the taking and giving of advice.

27. The Civil Liability Act 2002 (WA) - When a defendant is not liable for harm

1. The Civil Liability Act 2002 (WA) (CLA) does not provide that a person is liable for harm caused by that person's fault in failing to take precautions against a risk of harm. Rather, it modifies the common law as to breach of duty of care by, among other provisions, articulating situations in which a person is not liable for harm.[399]
2. Section 5B of the CLA provides that a defendant will not be liable for harm caused by its fault in failing to take precautions against a risk of harm unless three elements are found:

(a) the risk was foreseeable (that is, it is a risk of which the defendant knew or ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

1. CLA s 5B requires identification of what precautions a reasonable person in the position of the defendant would have taken by way of response to a foreseeable, not insignificant, risk. In undertaking this inquiry, some principles are well settled:

(i) the issue is to be determined objectively;[400]

(ii) the issue is also to be determined prospectively, not with the wisdom of hindsight;[401]

(iii) it is only through correct identification of the risk that one can assess what a reasonable response to that risk would be;[402]

(iv) the response to a foreseeable risk is to be judged by the criterion of reasonableness, not some more stringent requirement of prevention, meaning the court does not look backward to identify what would have avoided the injury to the plaintiff;[403]

(v) a failure to eliminate a reasonably foreseeable risk does not establish negligence;[404]

(vi) the determination of what, if anything, a reasonable person in the defendant's position would have done involves an assessment of what would have been reasonable and practicable for the defendant to have done;[405]

(vii) contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case;[406]

(viii) in some circumstances, a reasonable person's reaction to a risk of harm may take account of the possibility of thoughtlessness, inadvertence or carelessness on the part of persons to whom a duty is owed;[407]

(ix) reasonableness may require no response to a foreseeable risk that is not insignificant;[408]

(x) the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness;[409] and

(xi) the answer to this question involves a factual judgment turning on the facts of the case as they are proved in evidence.[410]

1. By CLA s 5B(2):

In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

1. The starting point in the analysis in CLA s 5B(1) is to identify the relevant 'risk of harm'. The risk does not have to be defined by the precise manner in which the plaintiff sustained his injury or, here, incurred his loss.[411]
2. In the present case I identify the risk of harm to be the risk that the plaintiff would lose a reasonable opportunity to meet his election criteria in the prescribed manner and within the prescribed time frame.
3. In accordance with my findings in section 25.1, there is no merit in the plaintiff's complaint that SBL was negligent in applying to extend the common law termination date early.
4. The failure allegations established on the facts are three, four and five. The questions then to be answered are whether any of these failures constituted a breach of the defendant's duty of care.

1. The first element of CLA s 5B(1) is whether the risk was foreseeable, that is, was it a risk of which the defendant knew or ought to have known?[412] As to whether the risk was one which the defendant 'ought to have known':[413]

In assessing whether a risk of injury is foreseeable, it is sufficient if the kind of injury is foreseen as a possible consequence of particular conduct. It is not necessary to be able to foresee the particular injury. Nor is it necessary that the precise sequence of events leading to injury be foreseen. In short, it is not necessary that an injury of any particular severity, or the particular mechanism of any such injury, be foreseeable.

1. Hence, CLA s 5B(1) refers to 'a risk of harm' and not 'the risk of harm'.

1. The second element of CLA s 5B(1) is whether the risk was 'not insignificant'.[414] This requirement imposes a slightly more demanding standard than the common law test.[415] However, it is still 'not particularly high'.[416]
2. The focus is on the magnitude of the risk of harm, here that there would be such a compression of time that the opportunity remaining within which to make the election could not be said to be reasonable.

1. Whilst failures three, four and five were articulated as separate failures by the plaintiff, in my view they are all, on the facts of this case, component parts of the overall breach allegation that is failure five. Failures three and four are the precursors to failure five and it is failure five that is the critical factual failure that gives rise to a breach of the defendant's duty of care. I say that because, applying the language of s 5B(1)(a) and s 5B(1)(b), failures three and four, alone or in combination, do not create a risk of harm that was foreseeable and not insignificant (that the plaintiff would be unable to meet the election criteria on time and in the prescribed manner).
2. It is failure five that creates a foreseeable and not insignificant risk of harm. It is failure five that gives rise to a breach of the defendant's duty of care.
3. The risk of harm arises upon the defendant failing to advise the plaintiff that the application for an extension to the termination date had been made. I say that because that failure remained from 29 February 2016 (seven days from the date of the application to extend) or around 13 May 2016 (the approximate date upon which SBL would have received WorkCover's 9 March 2016 confirmation of extension letter) until 13 July 2016, when the plaintiff received the letter of 12 July 2016. That is a period of (approximately) four months.
4. When viewed against the 12 month period of time provided for under the Act for any extension to the termination date, the practical effect of failure five amounted to a truncation of the time in which the plaintiff had to meet his election criteria and to make his election of 30%.
5. In assessing whether the risk was foreseeable and not insignificant for the purposes of s 5B(1)(a) and s 5B(1)(b) of the CLA, I do not do so in a vacuum. What that means is that I do not assess liability based solely on looking at the fact that Mr Armet had seven months remaining in order to meet his election criteria, devoid of an assessment of the wider circumstances as I have articulated them to be. To do so would fail to appreciate all of the circumstances of the plaintiff at the time and the fact, particularly, that he complained of a multiplicity of work-related injuries.
6. I remind myself that I am not permitted to allow hindsight to insinuate itself into my reasoning and I need to assess liability looking prospectively and not with the benefit of how matters unfolded subsequently.
7. The risk of harm that is foreseeable must be assessed according to what the defendant knew or ought reasonably to have known at the time of the retainer. In the context of the prescribed manner in which the plaintiff was to make his election and in the context of the plaintiff's injuries which crossed different body systems and therefore required whole of person impairment assessments by different approved medical specialists, the precise injuries that SBL understood or ought reasonably to have understood arose from the plaintiff's employment during the retainer is important to define.
8. It is common sense, given what I have said, that the more injuries that fall within different medical expertise and which require investigations and assessment by different medical specialists, the greater the foreseeability of risk that a plaintiff operating within a compressed time frame might fail.
9. The precision with which the injuries of which the defendant knew or ought to have known the plaintiff suffered at the time of the retainer is also important at the causation stage.
10. Whilst Mr Armet ultimately complained of six different injuries all of which he attributed to his workplace, the injuries of which he informed SBL that he suffered arising from his workplace accidents during the meeting of 2 February 2016 were the back and foot injury and the tinnitus injury.
11. For the reasons I have given earlier I do not find that the neck injury was an injury that the defendant knew or ought reasonably to have known was causally linked to Mr Armet's work during the period of the retainer.
12. I therefore do not take into account the neck injury in the assessment of foreseeability of risk.
13. If I am wrong about this, the fact is that the defendant informed the plaintiff that it was important that he follow the medical advice of his doctor which included investigations 'related to my tinnitus, pain in the neck and right arm.'
14. If I am wrong about the neck injury being in the mix of injuries to be assessed when considering foreseeability of risk (and also, later, causation) I do not consider that it alters my determination in respect of foreseeability of risk. That is because I conclude that failure five was such as to give rise to a risk of harm (a loss of a reasonable opportunity to meet the election criteria on time), that risk was, even without the neck injury, a foreseeable and not insignificant risk.
15. I conclude even without the neck injury that in the circumstances a reasonable person in the position of the defendant would have taken precautions against a risk of harm, even the risk of harm that the plaintiff complains of. The same reasoning applies in respect of the hair loss injury.

1. I conclude that the risk that Mr Armet might not be able to meet his election criteria was a foreseeable risk. SBL as experienced solicitors ought to have known that a failure to advise a client of a termination date for four months would compress the remaining time the plaintiff had to take the necessary steps to meet his election criteria and would make that task more difficult for the plaintiff to achieve.
2. The statutory framework prescribed the manner and time in which the plaintiff had to meet his election criteria. One of the reasons that Mr Trigg gave in evidence for referring Mr Armet to Dr Fairhurst early was, at least in part, because Dr Fairhurst was trusted to complete the correct paperwork and to do so on time. That speaks to the complexity of the process and the need to ensure that the election was completed in the prescribed manner and within the prescribed time.
3. I conclude that it was foreseeable that failing to advise the plaintiff of the extension to the termination date for four months would lead to a compression of time in which the plaintiff had to meet his election criteria. The compression of time would amount to a reduction in the opportunity that the plaintiff had to meet his election criteria on time in the prescribed way.
4. I reach this conclusion because the defendant knew that the plaintiff:

(i) was an unsophisticated client for whom English was a second language;

(ii) had at least three injuries he had positively articulated as being attributed to work (back, foot and tinnitus);

(iii) had two workers' compensation claims at different stages with GIO (liability in respect of one (the back) having been accepted and in respect of the other (the tinnitus) having been rejected);

(iv) required whole of person impairment assessments from (at that stage) two different specialists.

1. I also consider that the risk was not insignificant for the same reasons as I outline in respect of foreseeability.
2. I am therefore satisfied that failure five created a risk of harm that was both foreseeable and not insignificant for the purposes of s 5B(1)(a) and s 5B(1)(b).
3. I come to that conclusion because it was not simply a matter of Mr Armet filing a form in order to comply with his election criteria. He was required in accordance with the Act to have whole of person impairment assessments in respect of his lower back and foot injury/injuries and, separately, his tinnitus injury in the prescribed manner and within the prescribed time frame and that election needed to be registered at WorkCover. I take into account the circumstances of the plaintiff at the time in making this assessment.
4. I have regard to any argument in respect of the tinnitus injury that at the time of the breach the insurer had denied liability, and therefore that was not an injury which could reasonably have been attributed to Mr Armet's work.
5. In assessing the s 5B CLA criteria I do have regard to the tinnitus injury because the ongoing efforts to obtain a supportive ENT AMS report as documented in section 22 were efforts that fell within the terms of SBL's retainer.[417]
6. The steps that Mr Armet would need to take in respect of his tinnitus injury are therefore 'in the mix' of matters to which he would need to attend in order to meet his election criteria.

28.4 The relevance of representation moving forward

1. I have considered whether, in assessing foreseeability of risk and whether it was 'not insignificant' I ought to make that assessment based on whether Mr Armet would move forward as a represented litigant or an unrepresented litigant.
2. I note that failure five occurred during the period of the retainer and continued for two months following the conclusion of the retainer until the 12 July 2016 letter brought that failure to an end.
3. I am of the view that a solicitor's duty of care to his client and the question of whether that duty has been breached is not be assessed by imposing on a litigant the requirement to be represented.
4. Mr Armet had the right to represent himself and the solicitor's duty of care, and liability, is not to be assessed on the basis that he was legally represented, or ought to have sought, legal representation.
5. To assess foreseeability through the prism of requiring a litigant to be represented is to impose a burden that is both unfair and unreasonable on an individual. To make such a finding would impose an obligation on an individual that has no basis either in statute or at common law.
6. If I am wrong in that conclusion, and others determine that the question of Mr Armet remaining represented might have reduced that risk so as to render it an insignificant risk, or to use the language of the section and the double negative, so as to render it a risk that cannot be said to be not insignificant, I have concluded that does not lead to that conclusion.
7. I have reached that view because the steps required to make the election depended on third parties (approved medical specialists) and (potentially) on further medical testing, investigations and examinations. Those examinations and investigations in whole or in part cost money and time. I am therefore not satisfied that representation removes the foreseeability of that risk or reduces the risk such that it could not be said to be not insignificant.
8. Ultimately for the purposes of determining liability I have concluded that failure five (the 'fault' of SBL for the purposes of s 5B(1)) and the subsequent compression in time) created a risk of the plaintiff not meeting his election criteria in the prescribed manner and in the prescribed time that was foreseeable and not insignificant.

1. The third element of CLA s 5B(1)(c) is whether, 'in all the circumstances, a reasonable person in the defendant's position would have taken' the precautions which the plaintiff has asserted the defendant did not take.
2. The phrase in CLA s 5B(1) 'failing to take precautions against a risk of harm' relevantly refers to 'a failure by the person in question to take positive action against the possibility of the occurrence of harm of any kind including personal injury'.[418] 'Proper enquiry at the breach stage involves identifying with some precision what a reasonable person would have done by way of response to the foreseeable risk'.[419]
3. Looking at the issue prospectively, reasonableness required the solicitor to write to the plaintiff ensuring that the plaintiff knew and understood that an extension had been applied for, and subsequently granted, to his termination date. Reasonableness demanded that the solicitor explain this and the new termination date to the plaintiff in a timely manner.

28.6 Conclusion: relevant circumstances and precautions

1. I deal with 'relevant circumstances' and 'precautions' together. I am satisfied that in the circumstances a reasonable person in the position of Mr Trigg would have taken precautions against a risk of harm.[420]
2. Those precautions were simple: they comprised no more than what was required of the defendant pursuant to the Legal Profession Conduct Rules 2010, particularly Rules 8 and 10. Rule 8 is headed 'Communicating with client' and provides that:

A practitioner must communicate candidly and in a timely manner with a client in relation to any matter in which the practitioner represents the client.

1. Rule 10 is headed 'Keeping client informed'. That Rule provides:

(1) A practitioner must take all reasonable and practicable steps to inform a client of the client's rights and possible courses of conduct in relation to any matter in which the practitioner represents the client.

(2) A practitioner must take all reasonable and practicable steps to keep a client informed about all significant developments and generally about the progress on any matter in which the practitioner represents the client unless the practitioner has been instructed by the client not to do so.

1. The precautions that a reasonable person in the defendant's position would take comprised writing to Mr Armet to inform him that an application had been made to extend his common law termination date and that that application had been granted to 12 February 2017. That application, in my opinion, ought prudently only to have been made upon signed instructions from the plaintiff. Confirmation in writing that the application had been made, and granted, within a reasonable time frame which I consider to be within seven days, were precautions that a reasonable solicitor would have (and should have) taken.
2. In coming to that determination I have considered the criteria in CLA s 5B(2). In the circumstances as the solicitor knew them to be including the matters personal to Mr Armet as set out in section 5.4, the number of injuries he complained of (the back, foot and tinnitus injury), the focus of the plaintiff on the investigations into his tinnitus injury and the steps taken by him to obtain an AMS ENT report in support, I conclude in addressing the criteria in s 5B(2) CLA that:

(a) there was a high probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm was high - a complete failure to inform the plaintiff would have led to a loss of opportunity for the plaintiff to make his election and would have deprived the plaintiff of any chance to elect to pursue his employer at common law for damages. This is not a case of a complete loss of opportunity but a reduction in the window of opportunity for the plaintiff to meet his election criteria. Applying that test I consider for the purposes of s 5B(2)(b) CLA that the likely seriousness of the harm to be high.

(c) there was no burden to the defendant of taking precautions to avoid the risk of harm: it involved the writing of an email or a letter to the plaintiff (s 5B(2)(c)); and

(d) there is no social utility in solicitors not advising their clients and keeping their clients informed about all significant developments and generally about the progress on any matter, especially in respect of such a critical date in the operation of the Act (s 5B(2)(d)).

1. I am therefore satisfied that failure five constitutes a breach of the duty of care the defendant owed to the plaintiff.
2. That two months after the termination of the retainer the solicitor wrote to the plaintiff advising the plaintiff that the termination date had been extended highlights to me that the solicitor knew the importance of informing the plaintiff of this fact.

1. In determining liability for damages for harm caused by the fault of a person, the plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.[421]
2. The issue of causation is governed by CLA s 5C which requires two elements to be found. The first element is factual causation, that 'the fault was a necessary condition of the occurrence of the harm'.[422]
3. The second element is the scope of liability as identified in CLA s 5C(1)(b). This is whether 'it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused'.[423] For the purpose of determining the scope of liability, 'the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor'.[424]
4. The second aspect of causation was beyond the agreed ambit of this trial (see section 5.3). That was in part because of the outstanding appeals and the question of whether, factually, Mr Armet would have satisfied the liability threshold of establishing a 15% whole of person impairment assessment for work-related injuries. That determination was not before me in this trial.
5. I therefore focus on the aspect of factual causation pursuant to s 5C(1)(a) CLA.

1. The test of factual causation is to be determined by the 'but for' test: but for the negligent act or omission, would the harm have occurred? This was explained by the High Court in Wallace v Kam:[425]

That is to say, a determination in accordance with s 5C(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.

29.3 Identifying the Harm - the loss of a reasonable opportunity

1. The way the plaintiff argued his case was that the defendant's negligence deprived him of the chance to make his election on time. On his evidence it was 'impossible' for him to make the election on time. He said: 'Even if I was God I could not make it.'[426]
2. This is not a case whereby the defendant's failure to advise has meant the loss in fact of any opportunity to make an election. The defendant's breach came to an end with the 12 July 2016 letter meaning that the plaintiff had seven months left in which to meet his election criteria. To this end the question of factual causation differs from cases where a solicitor's negligence results in a (complete) loss of chance to pursue an action.
3. Determining factual causation in this case requires evaluation of the effect of SBL's negligence on the plaintiff's ability to meet his election criteria in the remaining time frame.
4. The question to be determined in my view is whether the compression of time meant that the plaintiff was deprived of a reasonable opportunity to make his election on time.
5. To that extent it is a question of whether the defendant's negligence ('fault'), which resulted in the compression of time, deprived the plaintiff of a reasonable opportunity to meet his election criteria. Was the fault, and the resulting compression of time, a necessary condition of the occurrence of the harm as required by s 5C(1)(a) CLA?
6. It is necessary in order to establish factual causation under s 5C(1)(a) for the plaintiff to establish that SBL's fault in failing to advise the plaintiff until the 12 July 2016 letter that his termination date had been extended, was a 'necessary condition' of the occurrence of the plaintiff's harm. That is, was SBL's fault a necessary condition of the occurrence of the plaintiff's failure to meet his election criteria?

29.4 'Necessary condition' or 'Material contribution'

1. In East Metropolitan Health Services v Ellis,[427] the Court examined the way in which 'material contribution' has come to be used in the context of causation and tort.
2. There are a number of principles that emerge from Ellis as follows:[428]

(i) The expression 'material contribution' has come to be used in a number of different ways in the context of causation in tort.

(ii) The way in which 'material contribution' is more commonly understood in this State is as a synonym for the principle that a plaintiff need only prove that the defendant's negligence is 'a' cause (and not 'the' cause) of his or her damage.

(iii) It is often said, for example, that the plaintiff must establish that the defendant's negligence 'caused or materially contributed to' his or her loss. In this sense, the phrase is simply a recognition that the defendant's fault need only be one cause (or 'a cause') of the plaintiff's harm. The contribution of other causes does not negate the causal connection if the defendant's negligent act is 'a cause'.

(iv) It is enough for liability that a wrongdoer's conduct be one cause. The relevant enquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.

(v) In this sense, the notion of 'material contribution' means little more than that the defendant's negligent act or omission was 'a necessary condition' of the plaintiff's harm as opposed to 'the sum of the conditions which are jointly sufficient to produce it'.

(vi) 'Material contribution' in this sense is therefore picked up in s 5C(1)(a), in the requirement that the plaintiff establish 'that the fault was a necessary condition of the occurrence of the harm'.

(vii) The determination of factual causation under s 5C(1)(a) is a statutory statement of the 'but for' test of causation.

(viii) For a plaintiff to prove that the defendant's fault 'materially contributed' to the plaintiff's harm (in this sense) is not an alternative to what is required by s 5C(1)(a); it is what is required by s 5C(1)(a).

(ix) Material contribution' to the harm is what the plaintiff must prove, not how the plaintiff might go about proving it.

1. In the case of an omission, such as the present case where the nub of the complaint is a failure to advise for a period of approximately four months, leading to a compression of time by 30%, the question of causation is answered by reference to what would or would not have happened had the omission not occurred?[429]
2. The question is necessarily hypothetical. It involves an evaluation of circumstances which did not happen. The court may infer causation by reference to the objective facts and probabilities.[430] Conclusions should only be reached as far as possible on the contemporary materials, objectively established facts and the apparent logic of events. If the evidence when viewed in its totality suggests that the acts of omissions of the defendant would have made no difference to the plaintiff's course of action, the defendant has not caused the harm which the plaintiff has suffered.[431]
3. Consideration of the plaintiff's case requires the court to engage with an uncertain past hypothetical - what would have occurred but for SBL's breach?[432] It is necessary to form an estimate of the likelihood that the hypothetical situation would have occurred.[433]
4. The standard of proof is the balance of probabilities.

1. At first blush seven months appears to be ample time for the plaintiff to elect to pursue his employer at common law. In a simplistic sense, the answer to the question of whether the plaintiff was deprived by the defendant's negligence of the opportunity to make his election, the answer is no.
2. However, the determination of this question cannot be resolved by a simplistic application of the fact that seven months remained before the election had to be made.
3. The question of whether the compression in time meant that the plaintiff lost so much of his opportunity to meet the election criteria that it may be said that it deprived him of a reasonable opportunity to meet his election criteria is not to be assessed in a vacuum. It needs to be assessed having regard to all of the circumstances
4. In answering that question I need to have regard to the evidence of Mr Armet's personal circumstances at the time: see section 5.4 which included that Mr Armet complained of, and was investigating, a multiplicity of injuries.
5. In respect of this latter aspect I need to be careful to consider the question of causation confined to the plaintiff's injuries that the defendant knew, or ought reasonably to have known, during the period of the retainer were work-related injuries. It cannot be the position that an injury of which the defendant was not reasonably on notice during the retainer as being a work-related injury, and which was not part of the mix of injuries that formed part of a risk of harm that was foreseeable, could then be taken into account in determining factual causation.
6. In assessing the hypothetical, but-for SBL's negligence, what would the position have been, I look at all of the circumstances as established by the objective facts and the logic of events as I find them to be. I consider what would the position have been had SBL informed the plaintiff of the extension to his termination date.
7. In making this assessment I have considered:

(i) The evidence of the plaintiff as to what he did in fact do following receipt of the 12 July 2016 letter in his efforts to meet his termination date: as to which see summary at section 24.

(ii) The evidence of the steps the plaintiff took during the course of the retainer in pursuing medical reports to establish a link between his tinnitus and his workplace: as to which see section 22.2.

(iii) The role of other matters that were affecting the plaintiff or otherwise with which he was engaged at the time; as to which see a summary of the plaintiff's evidence on this point at section 30.

(iv) The stage of medical investigation that had been reached between 12 July 2016 and 12 February 2017 in respect of those injuries that were, to the defendant's knowledge during the period of the retainer, compensable or potentially compensable injuries;

(v) The evidence and the absence of evidence regarding the steps taken (or not taken) by any of the approved medical specialists instructed by Mr Armet in respect of his compensable injuries (and all of his injuries).

1. The plaintiff's evidence in summary was that it was impossible for him to get his whole of person impairment assessment in before the expiry of the termination date. When asked why it was impossible the plaintiff answered: 'Because if it was possible I would have done it'.[434] That is not evidence of the impossibility of his task, but evidence of the plaintiff's belief that the compression of time made his task, in his opinion, impossible.
2. The plaintiff gave evidence that there were multiple reasons for his inability to meet his termination date. Firstly, in that period of time, the plaintiff had had other issues he was dealing with, not just trying to get his whole of person impairment assessments in respect of his injuries.[435]
3. For example, the plaintiff said that SBL had let his tinnitus conciliation claim 'die' and it had to be re-filed. As a consequence of that, time frames for the conciliation and arbitration were pushed back and that led to the plaintiff dealing with his arbitration for the tinnitus claim in February 2017 when it would otherwise have been listed earlier.[436]
4. The second reason for the failure to elect was because at the time, the plaintiff was unwell: he was in physical pain and was experiencing neuropathic pain.[437] He gave evidence that he had been prescribed lorazepam to treat his anxiety and sleep disorder and duloxetine to treat his neuropathic pain and to calm him down.[438]
5. Other than giving evidence of him being unwell, the plaintiff did not give details as to how his health prevented him from taking the steps to make his election on time, or how it delayed or impacted on him being able to take those steps.
6. The third reason for the failure to elect was financial. The plaintiff did not always have the money to pay for:

(i) all the necessary medical appointments and expenses including going to the GP and getting a referral to a specialist, the costs of having blood tests, biopsies, MRIs, ultrasounds, audiology appointments;[439]

(iii) his plantar fasciitis treatment (21 sessions costing $2,500); and

(iv) his special shoes and strapping for his feet.[441]

(v) The financial cost of running proceedings appears to have also been a factor, however the plaintiff did not expand on this aspect in any detail.[442]

1. The fourth reason was the time involved in having treatment for the plaintiff's plantar fasciitis was a factor.
2. The fifth factor was that during that period the plaintiff was required to attend appointments with other doctors at GIO's insistence. This included going to an appointment with Dr Watson, a neurosurgeon, on 1 November 2016 and having to see Dr Low on 4 February 2017. The plaintiff attended other appointments with Dr Low, however, those appointments were not within the 13 July 2016 to 12 February 2017 period and so I disregard them for the purposes of this analysis.
3. The sixth factor, although not articulated directly in this manner, was that the plaintiff was dealing with multiple specialists all of whom were responsible for an assessment of the plaintiff's whole of person impairment in respect of different injuries: Mr Narula for the neck, the foot and the lumbar spine (although he was 'overseeing' the other specialists in this regard); Dr Gebauer for the hair loss injury and Dr Wallace for the tinnitus injury.
4. Given that the plaintiff had not consulted with Dr McCarthy until October 2017, I do not include in this evaluation the steps taken by the plaintiff later with respect to his psychiatric condition.[443]
5. It was implicit in this sixth factor that the plaintiff was required to make appointments with these different specialists and have further different appointments scheduled for testing in respect of those differing specialists.
6. The seventh factor was that by reason of the Christmas break from mid-December 2016 until the end of the first week of January 2017 there were no medical professionals available, 'everything shuts down and you cannot see any doctors'.[444] In essence, the plaintiff's evidence in this regard was the seven months he had left were in effect six months by reason of the Christmas break.
7. There was no evidence led by the plaintiff as to what steps he took to book appointments during this period and which specialists he could not see by reason of the Christmas break; it was a broad proposition in evidence.
8. In summary, the plaintiff said he did his best to comply with the election date but he could not make it.

31. Conduct of the trial in respect of the evidence as to causation

1. Whilst no medical evidence was adduced at trial and no medical experts called to give evidence, it is necessary to say something about the medical reports that are contained in Exhibit 2. I have used those medical reports in the following ways:

(i) to assist me in determining when the plaintiff saw a particular doctor;

(ii) to assist me in determining when the plaintiff underwent testing for a particular injury;

(iii) to assist me in determining when a particular doctor first wrote his report indicating what the whole of person impairment percentage for that injury was;

(iv) in respect of the Forms AMS 1, to assist me in determining when the plaintiff formally issued the requests of the individual approved medical specialists for the whole of person impairment assessments in respect of each injury or, in respect of Mr Narula, the back, the neck and the foot injuries.[445]

(v) to assist me in determining when the report on Evaluation of the Degree of Permanent Impairment (Form AMS 5) and when the Certificate of the Degree of Permanent Impairment (Form AMS 6) together with Mr Narula's report were issued.[446]

(vi) To assist me in respect of Mr Narula's final report (issued on 12 February 2018) to ascertain which injuries comprised part of Mr Narula's aggregated whole of person impairment assessment.

(vii) It is convenient to note here that Mr Narula's final whole of person impairment assessment for all of Mr Armet's injuries is stated to be 30%. The aggregated 30% comprised individual whole of person impairment assessments in the following amounts:[447]

32. The plaintiff's evidence about Mr Narula's final report[448]

1. Mr Narula's final report on the degree of permanent impairment (Form AMS 5) is dated 12 February 2018, a year after the deadline for the common law termination date.
2. Whilst Mr Narula was instructed to provide the whole of person impairment assessments for the plaintiff's back, neck and foot injuries, the plaintiff gave evidence that Mr Narula's role was also that of the 'main assessor.'
3. The plaintiff explained that he had asked Mr Narula in 2016 if he wanted to 'be the lead and make the WPI' and he told me yes.[449] The plaintiff went on to say:[450]

He's the guy supervising all of the others also. So he was waiting for the other ones to come forward. I mean, yes. I- I am not have to give Professor Narula orders as to what he has to do and when he has to do it. Yes.

1. The plaintiff's explanation for Mr Narula being nominated to be the lead assessor was because the WorkCover Guides said that in the case of a complex injury where different AMS are required to assess different body systems, a 'lead assessor' should be nominated to coordinate and calculate the percentage of the final degree of permanent impairment resulting from the individual assessments.[451]
2. The plaintiff's response in cross-examination to a question that Mr Narula did not issue the Forms AMS 5 and 6 until 12 February 2018 agreed and said:[452]

Of course, he had to wait for the other ones to come forward. He had to wait for the other specialists to provide him with their WPI.

1. The plaintiff cannot give admissible evidence about why in fact Mr Narula did not issue the Forms AMS 5 and 6 until 12 February 2018.[453]
2. I therefore treat the plaintiff's evidence in this respect to be the plaintiff's understanding as to why Mr Narula's report was not issued until a year after the termination date had expired.

1. It is convenient here to consider the WorkCover Guidelines.
2. The starting point is s 146R of the Act which provides that WorkCover WA may issue directions with respect to the evaluation of degree of impairment: s 146R(1) Act.
3. Section 146R(4) of the Act provides that s 41, s 42, s 43 and s 44 of the Interpretation Act 1984 apply to the directions as if they were regulations.
4. Section 43(1) of the Interpretation Act 1984 provide that:

Subsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act, and subsidiary legislation shall be void to the extent of any such inconsistency.

Words and expressions used in subsidiary legislation shall have the same respective meanings as in the written law under which the subsidiary legislation is made.

1. The Guidelines do not have the force of a legislative provision. The Guidelines must be read subject to, and consistently with, the overarching legislation pursuant to which they are published.
2. To the extent that they are inconsistent (if they are) with the written provisions of the Act regarding the termination date, the Act takes precedence.
3. There is nothing in the Act that says that the Guidelines take precedence over the express statutory provisions of the Act and to so find would be to attribute to the Guidelines the force of binding legislation, which they are not.
4. In so far as the Guidelines provide that a lead assessor 'should' be nominated, I note that the language of that paragraph is not mandatory but recommended. To the extent that there is a recommendation that a lead assessor should be nominated in complex cases, this Guideline does not usurp, replace or take precedence over the express provisions of the Act that required that the plaintiff's election be made in the prescribed manner within the prescribed time frame.
5. In reading the Guidelines consistently with, and subject to, the overarching provisions of the Act meant here that the plaintiff was bound to meet his election criteria in the prescribed manner and within the prescribed time frame: s 93L and s 93M of the Act. That the Guidelines recommended that a lead assessor should be nominated does not in any way obviate the plaintiff's obligation to comply with s 93L of the Act.

1. Mr Narula was not called to give evidence in these proceedings.
2. The Court therefore did not hear from Mr Narula as to why he did not complete the overall whole of person impairment assessment for all of Mr Armet's injuries prior to the termination date.
3. Neither did the Court hear why Mr Narula did not submit the whole of person impairment assessment in respect of the back, foot and neck injuries in respect of which he was the approved medical specialist prior to the termination date.
4. I stress that this is no criticism of Mr Narula in any way. I make these observations because he was not called to give evidence at trial by the plaintiff.
5. The plaintiff was informed that he had the onus of proving why he claimed that the compression of time he had by reason of the defendant's negligence meant that he was deprived of a reasonable opportunity to meet his election criteria in the prescribed way and on time.
6. The plaintiff was expressly given the opportunity to call Mr Narula to give evidence in respect of causation; the plaintiff declined to do so.[454]
7. Accordingly, I must assess the evidence as it stands at trial.
8. I must not speculate on the reasons why Mr Narula did not submit the whole of person impairment assessments in respect of the injuries in respect of which he was the specialist (the neck, the back and the foot) prior to the termination date.
9. The plaintiff's evidence at trial was that it was not for him give Mr Narula orders as to what he has to do and when he has to do it.[455]
10. As a result of the plaintiff's decision not to call Mr Narula at trial there is no evidence:

(i) of what took place between 5 October 2016 and 12 February 2017;

(ii) of any communications between Mr Armet and Mr Narula between the 5th of October 2016 and 12 February 2017;

(iii) as to whether it was possible for Mr Narula to have issued the whole of person impairment assessment for the neck, foot and back injuries prior to the termination date;

(iv) as to whether it was a reading of the recommendation in the Guidelines that a lead assessor should be nominated, and the wait for the other specialists' reports to be completed, as being the reason why the final whole of person impairment report could not be completed by the termination date or whether it was for another reason.

1. In the absence of evidence from Mr Narula I do not speculate on the reasons why he did not submit his individual whole of person impairment final assessment (Form AMS 5) within the prescribed time nor why he did not submit the overall whole of person impairment assessment within the prescribed time.

35. The investigations into the plaintiff's injuries

1. I have concluded at section 21 that the hair loss injury was not an injury that the defendant could reasonably have known during the period of the retainer to be an injury causally connected to the plaintiff's workplace accident/s. To that end it does not comprise part of the mix of injuries that can be taken into account in determining causation.
2. For the reasons I have explained at section 21.2 even if I am wrong about this, and the hair loss injury was an injury that the defendant ought to reasonably have known was causally connected to the plaintiff's work during the period of the retainer, the defendant's negligence cannot be said to have been causative of any loss by the plaintiff in respect of the hair loss injury.
3. I reach this conclusion because as at 13 September 2016 the plaintiff had taken the steps that he needed to take in order for his hair loss injury to be investigated and for Dr Gebauer to have provided a report on that injury. In that report, Dr Gebauer postulated on the link between the plaintiff's hair loss and the plaintiff's back injury and subsequent pain killing medication.[456]
4. I conclude from Dr Gebauer's report of 13 September 2016 following the investigations the plaintiff had into his hair loss that it was open to the plaintiff to have issued the Form AMS 1 to Dr Gebauer following his report of 13 September 2016.[457]
5. That the plaintiff did not issue the formal request to Dr Gebauer (the Form AMS 1) for the whole of person impairment assessment in respect of the hair loss injury until 22 March 2017 appears to be based on the plaintiff's understanding that there needed to be six months between his first and subsequent assessments with Dr Gebauer.[458]
6. Where and why the plaintiff understood that this was the case is not clear. It was not a matter that was clarified in evidence.
7. Hypothetically it may be the case that the plaintiff was referring to a letter written by SBL in which SBL advised that Dr Fairhurst had assessed the back injury to not have yet reached maximum medical improvement and that, in those circumstances, there needed to be six months between reviews by the approved medical specialist.[459]
8. Alternatively, equally hypothetically, it may be that the plaintiff misunderstood the meaning of section 93N of the Act such that he waited for six months before issuing Dr Gebauer with the Form AMS 1.
9. In the absence of evidence as to why this was I must not speculate on the reasons why the plaintiff understood that there needed to be six months between the first review by Dr Gebauer and the issue of the Form AMS 1.
10. In the circumstances, I am not satisfied on the evidence led at trial that there remained insufficient time between 13 September 2016 and 12 February 2017 for Dr Gebauer's whole of person impairment assessment in the prescribed format (Form AMS 5) to be issued.
11. The whole of person impairment assessment for the plaintiff's hair loss/scalp injury was assessed by Dr Gebauer to be 9%.
12. Even if others determine that the hair loss injury comprised a compensable injury of which the defendant knew or reasonably ought to have known during the period of the retainer it cannot be said that the defendant's negligence contributed to the plaintiff's failure to meet his election criteria on time with respect to the hair loss injury.

1. I have concluded that the tinnitus injury was an injury that the defendant knew Mr Armet complained was work-related during the period of the retainer.
2. I take into account that Dr Wallace's report on Mr Armet's tinnitus injury was completed on 8 September 2016,[460] the date that Mr Armet formally issued the Form AMS 1 to Dr Wallace.[461]
3. That report provided an estimated whole of person impairment assessment of 4% for the tinnitus injury.[462]
4. The whole of person impairment assessment in respect of the tinnitus injury was therefore available to be issued prior to the termination date.
5. It cannot be said that the defendant's negligence contributed to the plaintiff's failure to meet his election criteria on time with respect to the tinnitus injury.

1. In respect of the psychiatric injury, the plaintiff did not approach Dr McCarthy for a whole of person impairment assessment until 9 October 2017, nearly eight months after the termination date had expired.
2. The plaintiff did not issue the Form AMS 1 to Dr McCarthy until 9 October 2017.[463]
3. Dr McCarthy's report and his whole of person impairment assessment for the psychiatric injury was not provided until 17 November 2017.[464] Dr McCarthy whole of person impairment assessment for the psychiatric injury was 7%.
4. The plaintiff cannot rely on this injury for inclusion into his final whole of person impairment assessment because it was not an injury of which the defendant had notice during the period of the retainer.
5. Secondly, the plaintiff cannot complain that the defendant's negligence caused him to miss an opportunity to meet his election criteria in circumstances where no steps had been taken to investigate this injury formally until eight months after the termination date had passed.
6. It cannot be said that the defendant's negligence contributed to the plaintiff's failure to meet his election criteria on time with respect to the psychiatric injury.

1. I take into account that Dr Fairhurst had assessed as a preliminary basis on 12 February 2016 that Mr Armet's whole of person impairment assessment for his back was 6% and his foot was nil.[465]
2. SBL had written to Mr Armet during the course of the retainer, by letter dated 29 February 2016, to advise that a second review had been booked for September 2016.
3. Upon the termination of the retainer and by email dated 11 May 2016[466] Mr Trigg wrote to Mr Armet to advise that that appointment with Dr Fairhurst would be cancelled.
4. I note that it would have been open to Mr Armet to himself contact Dr Fairhurst after 13 July 2016 to seek a final whole of person impairment assessment in respect of his back and foot injuries (and to issue a Form AMS 1 to Dr Fairhurst in respect of his neck injury). Dr Fairhurst had previously examined Mr Armet (in respect of his back and foot, not his neck) and Dr Fairhurst had demonstrated an ability to complete the prescribed paperwork in an expeditious manner.
5. Mr Armet chose to engage Mr Narula to provide the whole of person impairment assessments for his back, foot and neck injuries. The evidence on the documents before the Court suggests that Mr Narula saw Mr Armet on 2 August and again on 5 October 2016, when Mr Armet formally issued the Forms AMS 1 in respect of the back, foot and neck injuries.
6. There is no evidence before the Court of any communication between Mr Armet and Mr Narula between 5 October 2016 until the termination date on 12 February 2017. There is evidence that Mr Armet saw Mr Narula on 14 February 2017, two days after the termination date had expired and again on 29 March 2017 and 9 August 2017.
7. There is no evidence as to what was happening with Mr Narula and the reasons why he was unable (if this is in fact the case) to submit his assessments for the neck, the back and the foot prior to 12 February 2017.
8. The plaintiff declined to call Mr Narula to give evidence.
9. Accordingly, I must assess the evidence as it stands at trial.

1. Considering all of the evidence about causation, I am not persuaded on the evidence led at trial that the plaintiff has discharged the onus of proving that the defendant's breach and the consequential compression of time caused the plaintiff's failure to make his election on time.
2. I reach this conclusion for the following combination of reasons, bearing in mind that that the plaintiff bears the onus of proving causation on the balance of probabilities:

(i) The plaintiff knew the importance of the termination date: it was, on his own evidence, 'the D-Day'.

(ii) As at the end of the retainer with the defendant, 11 May 2016, the plaintiff's focus was evidently on his tinnitus claim, gathering supportive evidence and ensuring that the tinnitus conciliation application was filed. There is a plethora of correspondence up to 11 May that corroborates that conclusion.

(iii) Up until 11 May 2016 it would be difficult to see how the plaintiff would have been in a position to do any more than what he was doing with respect to his tinnitus claim.

(iv) There was little evidence led at trial as to what the plaintiff was focused on after the 11 May to 13 July 2016. This is not a criticism of the plaintiff but a mere observation of the focus of the evidence at trial.

(v) The plaintiff's evidence that he had other issues he was dealing with during the period 13 July 2016 to 12 February 2017. These matters included attending medical appointments, having treatment for his plantar fasciitis, attending to his arbitration in respect of his tinnitus injury and the other matters about which the plaintiff gave evidence.

(vi) For the reasons given in section 24.2 the plaintiff did take the necessary steps to have all necessary investigations conducted in respect of his tinnitus injury by 13 September 2016. As such, the defendant's negligence cannot said to be causative of the plaintiff's failure to meet his election criteria in respect of that injury.

(vii) For the reasons given in sections 11.3 and 21.2 the hair loss injury is not an injury of which the defendant knew or ought reasonably to have known during the period of the retainer was causally linked to the plaintiff's work. As such, the defendant's negligence cannot be said to be causative of the plaintiff's failure to meet his election criteria in respect of that injury.

(viii) If I am wrong about that, the plaintiff had taken all necessary steps to investigate that injury by 13 September 2016. The plaintiff has failed to explain why the Form AMS 1 was not issued to Dr Gebauer until 22 March 2017. As such, the defendant's negligence cannot be said to be causative of the plaintiff's failure to meet his election criteria in respect of that injury.

(ix) For the reasons given in section 11.3, the psychiatric injury was not an injury that I have concluded comprised a work-related injury that the defendant knew or reasonably knew the plaintiff was suffering during the period of the retainer.

(x) If I am wrong about that, the plaintiff did not first see Dr McCarthy until 9 October 2017, eight months after the termination date had expired. As such, the defendant's negligence cannot be said to be causative of the plaintiff's failure to meet his election criteria in respect of that injury.

(xi) For the reasons given in section 24.3, in respect of the back, foot and neck injury, Mr Armet had issued the Form AMS 1 to Mr Narula on 5 October 2016.

(xii) There is no evidence before the Court from Mr Narula as to whether it was possible for Mr Narula to have prepared a whole of person impairment assessment for the back, neck and foot injuries prior to the termination date.

(xiii) There is no evidence led at trial from Mr Narula to explain why his report was completed 12 months after the termination date.

(xiv) The plaintiff did not lead evidence that he had impressed upon Mr Narula the need for the whole of person impairment assessments to be obtained prior to the termination date. The plaintiff's evidence positively was that it was 'not his place' to tell Mr Narula 'what to do and when to do it'.[467]

(xv) The only evidence as to why Mr Narula did not finalise the overall whole of person impairment assessment until 12 February 2018 came from the plaintiff.

(xvi) Even taking the plaintiff's explanation that Mr Narula's report was not able to be completed until 12 February 2018 because of the recommendation in the Guidelines that a lead assessor should be nominated, a recommendation in the Guidelines does not exempt the plaintiff from compliance with his statutory obligation of filing his election criteria prior to his termination date.

(xvii) The plaintiff had seen Dr Fairhurst in respect of his back and foot injuries. The plaintiff could have arranged for a further review by Dr Fairhurst in respect of the back and the foot injury in or around September 2016. The plaintiff could have issued a Form AMS 1 to Dr Fairhurst in respect of the neck injury. The plaintiff chose not to do so.

1. The plaintiff carries the burden of proving that the defendant's negligence was a necessary condition of, or materially contributed to, the plaintiff's failure to elect on time. Said differently, that but for the defendant's negligence, the plaintiff's failure to elect would not have occurred.
2. The plaintiff has failed to discharge the burden of proving that the defendant's negligence caused the plaintiff to lose a reasonable opportunity to make his election on time.
3. The evidence shows that Mr Armet had had all necessary investigations into his tinnitus injury by 8 September 2016 and by 13 September 2016 in respect of his hair loss injury (assuming, for the purposes of this exercise, that it was a compensable injury).
4. The psychiatric injury was not an injury that the defendant knew or ought reasonably to have known about during the period of the retainer and does not comprise part of the assessment of causation (nor of negligence). Even if it did, the fact that Mr Armet took no steps in respect of that injury until eight months after the termination date means that that injury cannot be said to be causative, even in part, of the plaintiff's loss. That the plaintiff may have chosen to wait until he had seen the psychiatrist, eight months after the termination date had passed, before the aggregated whole of person impairment assessment could be completed, was a choice that he made.
5. There is an absence of evidence as to what happened between 5 October 2016 and the termination date in respect of his back, foot and neck injuries; Mr Armet had issued the Forms AMS 1 to Mr Narula in respect of those injuries on 5 October 2016.
6. The silence as to what happened between 5 October and the termination date, the absence of evidence from Mr Narula, the evidence that does exist that the plaintiff did not press Mr Narula, that 'it was not for him to tell Mr Narula what to do and when to do it' lead me, in combination, to conclude that the plaintiff has fallen short of discharging the burden of proof.
7. That is, I am not satisfied on the evidence having regard to the burden of proof that the plaintiff has established that the defendant's neglect caused his loss.
8. I therefore dismiss the plaintiff's claim.

1. Plaintiff's claim dismissed.
2. I will hear the parties as to costs.

Affidavit of Stephen Armet and Submissions dated 04/08/2020

Affidavit of Stephen Armet dated 10/08/2020 and Annexure Cover Sheet

Affidavits, Court Documents and Correspondence re Proceedings

Affidavits, Documents and Correspondence re Proceedings

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[6] Forms AMS 7 and 8, Workers' Compensation and Injury Management Regulations 1982 (WA) (the Regulations).

[10] See sections 2 and 3.

[13] Statement of claim filed 10 May 2019, par 19.

[17] ts 74, ts 76 - ts 77; a claim not pleaded.

[19] Pursued in cross-examination of Mr Trigg as well.

[20] Exhibits 1 and 2 at trial - see Schedule of Documents at Appendix 1.

[21] For example, complaint that Mr Trigg was late for the meeting with barrister Kevin Pratt on 5 May 2016; The language of the letter of 8 February 2016 informing the plaintiff of the appointment with Dr Fairhurst and that there was something 'dodgy' about the speed at which his assessment was arranged with Dr Fairhurst.

[43] ts 153 - ts 158; Exhibit 1, pages 346 - 347.

[44] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).

[45] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).

[46] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).

[47] Neil v Nott [1994] HCA 23 [5]; [1994] HCA 23; (1994) 68 ALJR 509, 510; [1994] HCA 23; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron & McHugh JJ); Ibrahim v The Honourable Justice Carolyn Martin [21]; Glew v Frank Jasper Pty Ltd [10]; Tobin v Dodd [14].

[48] Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 [47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).

[49] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] (judgment of the court).

[50] Zerjavic v Chevron Australia Pty Ltd [75] (references omitted).

[55] Sections 5.1 - 5.3.

[57] Section 79C Evidence Act 1906 (WA).

[58] See exhibit 2, Form AMS 5, pages 146 - 149.

[62] Armet v CFC Consolidated Pty Ltd [2019] WASCA 165; [36] - [70]; [104] - [120]; Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162 [6] - [10].

[63] Acebrook Corporation Pty Ltd v McEwan [6].

[64] Acebrook [6]; Re White; Ex Parte Cunningham [2015] WASC 349 [16] (Re White).

[65] Acebrook [6]; Re White [17].

[67] An 'approved medical specialist' is a medical practitioner who has been designated as such by WorkCover WA by order published in the Government Gazette: s 146F(1) of the Act.

[68] See s 93O(1)(d) of the Act, read with reg 24.

[69] In the case of a 'normal evaluation', the specified time is effectively six weeks: s 93M(4)(d)(i) and s 93O(1)(d) of the Act, read with reg 24. In the case of a 'special evaluation', the specified time is seven weeks: s 93M(4)(d)(ii) of the Act.

[71] Section 7 deleted s 93L(1) and s 93L(4); s 8 deleted s 93M.

[72] Workers' Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020, explanatory memorandum.

[73] Workers' Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020, explanatory memorandum.

[74] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267.

[75] The costs agreement with PCL is dated 23 November 2015; the plaintiff signed that retainer and returned it by email on 3 December 2015; ts 187; Exhibits 3 and 4.

[78] ts 191; Exhibit 1, pages 300 - 301.

[79] ts 192; Exhibit 1, pages 303 - 306.

[82] Workers' Compensation and Injury Management Regulations 1982 (WA).

[85] ts 194; Exhibit 1, pages 303 - 306; ts 198.

[107] Defendant's book of documents, page 61.

[109] Exhibit 2, page 6 (also page 6 of exhibit 28).

[110] ts 369; Exhibit 2, page 13 (also page 13 of exhibit 28).

[111] Exhibit 2, page 33 (also page 33 of exhibit 28).

[119] ts 313; Exhibit 10, pages 83 - 90 (lower back and foot); Exhibit 11, pages 71 - 78 (tinnitus).

[169] ts 282; Defendant's book of documents, page 581.

[170] Defendant's book of documents, page 581.

[210] ts 128 - ts 129; Exhibit 1, pages 371 - 372.

[242] Exhibit 1, pages 386 - 393; Form AMS 7.

[243] Exhibit 1, pages 394 - 395; Form AMS 8.

[246] Defendant's book of documents, pages 178 - 183.

[247] Defendant's book of documents, page 180.

[248] Defendant's book of documents, pages 178 - 183.

[249] Defendant's book of documents, page 183.

[254] ts 167; Exhibit 1, pages 384 - 385.

[275] Exhibit 1, page 304, letter from PCL, 29 January 2016.

[279] Exhibit 15, Letter of 3 February 2016.

[287] Exhibit 2, report of Dr Gebauer, 13 September 2016, pages 112 - 113.

[288] Exhibit 2, report of Dr Peter McCarthy, 17 November 2017, pages 132 - 139.

[298] Defendant's book of documents, pages 161 - 162.

[299] Defendant's book of documents, page 162.

[304] Defendant's book of documents, page 157.

[305] Defendant's book of documents, page 163.

[306] Defendant's book of documents, page 160.

[307] Defendant's book of documents, page 167.

[308] Defendant's book of documents, page 166.

[309] Defendant's book of documents, page 166.

[310] Defendant's book of documents, page 166.

[311] Defendant's book of documents, page 166.

[312] Defendant's book of documents, page 165.

[313] Defendant's book of documents, page 165.

[314] Defendant's book of documents, page 177.

[315] Defendant's book of documents, page 177.

[316] Defendant's book of documents, page 175.

[317] No evidence was called about this.

[318] Defendant's book of documents, page 194.

[319] Defendant's book of documents, page 225.

[320] Defendant's book of documents, page 225.

[321] Defendant's book of documents, pages 224 - 225.

[322] Defendant's book of documents, page 224.

[323] Defendant's book of documents, page 249.

[326] Defendant's book of documents, pages 253 - 254.

[327] Defendant's book of documents, page 253.

[328] Defendant's book of documents, page 262.

[329] Defendant's book of documents, page 262.

[330] Defendant's book of documents, page 261.

[331] Defendant's book of documents, page 277.

[332] Defendant's book of documents, page 277.

[344] Defendant's book of documents, page 166.

[345] ts 129, ts 130, ts 136, ts 297 - ts 299, ts 332 - ts 333; Exhibit 1, page 373; Exhibit 25.

[346] ts 130; Exhibit 1, page 373; Exhibit 25.

[351] ts 332; Exhibit 1, page 374; Exhibit 25.

[361] ts 301; Exhibit 2, pages 104 - 105.

[362] ts 302; Exhibit 2, pages 140 - 145.

[366] Exhibit 2, pages 152 - 168. This document is not in evidence for the truth of its contents but as part of the plaintiff's narrative of events.

[384] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 [483].

[385] Hawkins v Clayton (1988) 164 CLR 539 [580].

[386] Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1 [228], [230], [251], [355].

[387] Jennings v Zihali-Kiss, Zilahi-Kiss & M K Tremaine & Company Pty Ltd (1972) 2 SASR 493, 512.

[388] Dal Pont GE, Lawyers' Professional Responsibility (6th ed, 2017) (Dal Pont) [5.180].

[389] Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440 [79] - [80].

[390] Duchess of Argyll v Beuselinck [1972] 2 Lloyd's Rep 172 [185] (Megarry J).

[391] Badenach v Calvert [16]; [81].

[392] Townsend v Roussety & Co (WA) Pty Ltd [2007] WASCA 40; (2007) 33 WAR 321 [116]; see Vaughan J in AVWest Aircraft Pty Ltd as trustee for AVWest Aircraft Trust v Clayton Utz (a firm) [No 2] [2019] WASC 306 (AVWest Aircraft).

[393] Carradine Properties Ltd v DJ Freeman & Co [1955-1995] PNLR 219, 226; AVWest Aircraft [375] (Vaughan J).

[399] CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117 [77] (judgment of the court) (CGU Insurance); Department of Housing and Works v Smith [No 2] [2010] WASCA 25 [70] - [83] (Smith).

[400] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [70] (Gummow J); Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [33] (Buss P & Vaughan JA), [116] (Murphy JA) (Allied Pumps).

[401] J-Corp Pty Ltd v Thompson [2019] WASCA 173 [33] - [38] (judgment of the court) (J-Corp); Taylor v Fisher [2018] WASCA 126 [58] (Taylor); CGU Insurance [78]; Allied Pumps [12], [33], [120]; Smith [87].

[403] J-Corp [33] - [38]; CGU Insurance [78]; Allied Pumps [12].

[405] Taylor [58]; Smith [87].

[406] Taylor [58]; Smith [87].

[408] Taylor [58]; Smith [87].

[409] Taylor [58]; Smith [87].

[410] Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [40] (Adeels Palace); Allied Pumps [15], [122].

[411] Shaw v Thomas [2010] NSWCA 169 [43] (Macfarlan JA, with whom Beazley & Tobias JJA agreed).

[415] Marsh v Baxter [2015] WASCA 169 [714].

1. [416] Cox v Fellows [2013] NSWCA 206 [145] (Gleeson JA, with whom Basten & Ward JJA agreed).

[425] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 [16] (French CJ, Crennan, Kiefel, Gageler & Keane JJ); Adeels Palace [45]; Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 [20].

[427] East Metropolitan Health Services v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147.

[429] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 420.

[430] Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [25], [44]; Falkingham v Hoffmans (a firm) [2014] WASCA 140; (2014) 46 WAR 510 [41]; see Vaughan J, AVWest Aircraft [154] - [155].

[431] AVWest Aircraft [157] - [160] (Vaughan J).

[433] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 639.

[445] 3 Forms AMS 1 issued on 5 October 2016 in respect of the lumbar spine (Exhibit 2, page 140 - 141); foot, heel pain and right leg (Exhibit 2, pages 142 - 143); and the Neck/Spine injury (Exhibit 2, pages 144 - 145).

[446] Form AMS 5 (Exhibit 2, pages 146 - 149); Form AMS 6 (Exhibit 2, pages 150 - 151); Report of Professor Narula dated 12 February 2018 (Exhibit 2, pages 152 - 168).

[447] Using the language of Professor Narula's report of 12 February 2018; Exhibit 2, pages 146 - 151.

[451] ts 305; WorkCover Guidelines 2016, par 1.24.

[459] Exhibit 24, letter of 29 February 2016.