256 Although that conclusion perhaps makes unnecessary a consideration of what the cause or causes of Mr Honeyman's delay were, it seems to me that in that cause there was also a breach of Mr Honeyman's obligations. For the reason why the Plaintiff was not fully advised at the time of the second conference with Mr Dodd was that more information was, or was thought to be, needed.
257 I would regard as implicit in the retainer "to act for him (the Plaintiff) generally in relation to his claim for compensation for his serious injuries" not merely an obligation to advise but also to undertake elementary (and perhaps not greatly expensive) enquiries so as to be in a position to advise, but even if this be wrong, the content of the 2 conferences with Mr Dodd and the communications between the Plaintiff and Mr Honeyman during the period lead to the conclusion that during the period mentioned the Defendants' obligations included the aspects I have mentioned. I conclude also that Mr Honeyman's retainer required the exercise of such care, skill and diligence as is reasonably to be expected of a solicitor who practices in the field of employment related, or motor accident, personal injury litigation.
258 From no later than the October 1994 conference it should have been obvious to Mr Honeyman that if a Common Law claim by the Plaintiff was to be worth significantly more than his Workers Compensation rights, the vast bulk of any difference was likely to lie in the area of economic loss. There was nothing else, once one concluded, as according to Mr Honeyman's evidence Mr Dodd did at the first conference, that the Plaintiff would probably receive in any such claim about the same component for general damages as he would probably get under ss 66 and 67 of the Workers Compensation Act. Although somewhat elliptical, Mr Honeyman's Memo to File concerning that conference is to similar effect and by its silence also indicates that there was no other head of damage likely to be productive of any large sum.
259 Furthermore, it is clear from Mr Dodd's notes of that October 1994 conference, and to a lesser extent from Mr Honeyman's own handwritten notes, that the topic of the Plaintiff's potential future earnings, as distinct from what he had earned in the past was raised, and that there was a substantial difference between the two. In any event, it should have been obvious to any lawyer who concerned himself with personal injury litigation that the topic was one requiring investigation before advice on the topic of whether a Common Law claim should be pursued could be given. That is not to say that I disagree with Mr Hooper's opinion that except in unusual circumstances, Common Law damages are usually of more value than Workers Compensation benefits. I don't. However, advice other than of a preliminary and general nature required investigation first.
260 Even if the topic of comparable or the Plaintiff's potential earnings had not been raised by Mr Dodd, they are so important to any meaningful advice that could be given to someone in the Plaintiff's position in the period with which I am presently concerned, that Mr Honeyman should have made enquiries of the Plaintiff concerning them. No doubt had he done so, he would have received the same information as Mr Dodd did in both the first and second conference and to which Mr Honeyman referred in his 27 October 1995 Brief to Advise.
261 It is elementary also that prudence required that what the Plaintiff said on the topic should be checked and, if possible, confirmatory evidence admissible in a trial obtained. Of course, advice simply on the basis of instructions could have been given but there was plenty of time after October 1994 for the further enquiries to have been made. The nature of them was simple and, one may reasonably conclude, at least in the first instance inexpensive, consisting of probably a limited amount of reference to phone books or the like and a limited number of telephone calls or letters or both on a simple topic.
262 Why Mr Honeyman did not have notes of the October 1994 conference which contained information about earnings in the concrete pumping industry as Mr Dodd's did was not the subject of evidence and is not apparent. I incline to the view that not to have recorded that information in or immediately after that conference was a breach of his obligations to the Plaintiff but whether this be so or not, his failure to obtain it, and then to pursue confirmation of it in the months before or following the earlier conference, and certainly well before November 1995 was itself a breach of the duties he owed the Plaintiff. In this connection it is relevant to bear in mind that the hopefully supporting information was within the knowledge of others who had no obligation to assist. Although, particularly if they were apprised of the Plaintiff's situation, I think common decency would have led them to assist, it might well be that efforts would be required to persuade them to do so, or at least do so sooner rather than later and there was the potential for those efforts to take time.
263 It is to be observed also that Mr Honeyman did not in the period prior to November 1995, obtain confirmation of the figure of about $800 per week recorded in his own handwritten notes of the 1994 conference, which note also records the names of W & D Mobile and East Coast. Why he did not make these further enquiries is not clear and probably doesn't matter. However the observation in his Memo to File of the first conference, "he will probably …be limited to the difference between his current rate of pay and the work yet to be located in terms of his future economic loss", may well be at least part of the explanation. The statement, in excluding the Plaintiff's potential for higher earnings in his pre-injury or other occupation, is clearly wrong.
264 The evidence makes it clear that it was the absence of information from W & D Mobile, East Coast or similar sources which was the greatest cause of the omission to advise the Plaintiff fully in the November 1995 conference.
265 To some extent, Mr Honeyman's failures to which I have referred were overcome on 26 October 1995 when he did record information from the Plaintiff that the latter's earnings might soon have been $900 to $1,200 per week - information which was repeated in the conference of 13 November 1995. However, prior to the latter date Mr Honeyman had still not sought corroboration or admissible evidence of what the Plaintiff said and, for similar reasons, this also amounted to a breach, or a continuation of a breach, of his obligations. Nor did Mr Honeyman seek that material in the weeks that followed the conference and, although at some stage he was relieved by the Plaintiff's conduct of pursuing the matter, that relief did not follow the November conference immediately.
266 As I have indicated, Mr Honeyman's evidence was that following the November conference, the Plaintiff was to obtain some or all of the further information that was needed. His letter of 20 December 1995 suggests that it was only addresses and phone numbers that the Plaintiff was to provide. However, the note MFI 11 in Exhibit Q and Mr Honeyman's concession that that document could have been made in the November conference with Mr Dodd casts some doubt on this being the situation. There is the Plaintiff's evidence that he provided, at some unspecified time, the information requested. There is also Mr Dodd's evidence the tenor of which was that he had advised that Mr Honeyman should make many of the enquires direct.
267 Given the terms of the 20 December letter, I incline to the view that there was some arrangement between the Plaintiff and Mr Honeyman whereby the Plaintiff agreed to obtain the addresses and phone numbers of concrete pumping employers. However, Mr Dodd's evidence makes it clear that Mr Honeyman had been given the task of making many of these enquiries direct and, given the delay that had occurred, I do not regard the arrangement as relieving Mr Honeyman of the obligation to himself take whatever steps he could to obtain the information from such employers. As both W & D Mobile and East Coast Concrete Pumping were referred to in Mr Honeyman's notes of the November 1995 conference and were operating business organisations, it is to be inferred that a search of the phone book for them would have been successful. And even if there was an arrangement made in the November 1995 conference that the Plaintiff would supply the names of employees of these organisations, that also would not have prevented, or delayed for long, Mr Honeyman from making the appropriate enquiries even without the names of those employees.
268 The statement in that last sentence may also be made in relation to Constable Brothers, who employed Mr Day and with whom Mr Honeyman in fact had direct contact prior to 30 March 1995.
269 Counsel for the Plaintiff further contended that the Defendant's negligence included the following:-
(i) The Plaintiff was not given any advice as to liability or the prospects of success in a Common Law action;
(ii) The Plaintiff was not given any evaluation of his Common Law case. (I take this complaint to refer to an amount of likely damages);
(iii) The Plaintiff was given no advice as the Griffiths v Kerkemeyer component of damages;
(iv) The Plaintiff was given no advice as to the Fox v Wood component of damages.
(v) The Plaintiff was given no advice as to past or future superannuation;
(vi) The Plaintiff was given either no advice or specific figure for future out-of-pocket expenses;
(vii) The only capital sum(s) of which the Plaintiff was advised, viz those for future economic loss, were given to him when he was in a state of agitation; and
(viii) Mr Honeyman failed to obtain a report from the supplier of the Plaintiff's prosthesis which would have established the Plaintiff's past, present and ongoing needs and the costs thereof.
270 That the third and fourth of the above propositions are factually correct is clear. However, as Mr Dodd said, there was nothing to suggest that the Plaintiff was entitled to anything under the Griffiths v Kirkemeyer principle and the Fox v Wood component was small. In these circumstances there was no occasion to mention the first and, once a decision was made to defer advising until more information on the economic loss issue was available, little point in mentioning the second. Indeed, I take the view that the Fox v Wood component was so small that I am not persuaded that, in the circumstances, it was material.
271 I do not take the same view in relation to the fifth topic, that of superannuation. Accepting Mr Dodd's evidence that the allowance for superannuation would be of the order of 9 to 10% of the (other) economic loss components, once they were calculated as of the order of $234,000 to $429,000, the value of the superannuation component was material and something which may well have had an influence on any decision the Plaintiff had to make. Even on the basis of the qualified and limited advice which the Plaintiff was given in, and prior to, the conference of November 1995, he should have been given information to the effect that the figures mentioned were, on account of superannuation, liable to be increased to the extent reflecting the relevant legislation at the time. Although at the time the benefit was 5%, it was known that the legislation provided that it was to increase to 9% for the years 2002-2003 and following for employees of employers such as Constable Brothers seems to have been - see 1996 Australian Tax Handbook, par 68-040 and 100-585. Even at the lower level the amount involved was such that the Plaintiff should have been advised of it.
272 In saying what I have in the preceding paragraph, I do not ignore the evidence that Mr Dodd, and possibly Mr Honeyman, had decided that there should be a later occasion when final advice would be given. However, given that advice as to the lump sum value of lost earning capacity was being given, albeit on the basis of assumptions, that advice was calculated to mislead unless it extended to the full quantification of the value of the lost capacity or it was made clear that it was subject to increase on account of superannuation. In my judgment the advice as to quantification in the sums of $234,000 and $429,000 was in fact misleading and did mislead in this case. Furthermore, although the calculations were done, and the Plaintiff informed, by Mr Dodd during the conference, this was in the presence of Mr Honeyman who, having elected to participate in the field of personal accident litigation, was or should have been aware of the relevant superannuation legislation, that any verdict for the Plaintiff would include an amount calculated in accordance with the legislation. In the circumstances that prevailed, Mr Honeyman was under an obligation during the conference to ensure the Plaintiff was given one or other types of the further information to which I have referred. In this respect also there was a breach of his obligations to the Plaintiff.
273 On the sixth topic, that of future out-of-pocket expenses, I again regard Mr Honeyman's activity prior to the November 1995 conference as inadequate and a breach of his obligations to the Plaintiff. At some stage the question of the likely amount of any verdict the Plaintiff might receive was bound to arise. By no later than March 1995 Mr Honeyman was in possession of an estimate from the Department of Veterans Affairs of $89,973 for future prosthetic costs and information from the Plaintiff that the base figure used in the calculations was discounted, the total grossly understated and the cost potentially $300,000. The difference was such as to require investigation. None had been done. A likely method of obtaining further reliable information was the simple expedient of a letter or phone call to the supplier of the Plaintiff's prosthesis and between March and November there was plenty of time for this to occur. Had those enquiries been made, it seems to me virtually certain that Mr Honeyman would have been informed of the cost of prostheses supplied to that time as disclosed in the Appliance and Limb Centre report to which I have referred. After all it is in the commercial interest of that organisation to ensure that persons who use its services are suitably funded. Awareness of the changes from $2,800 odd to $6,000 odd to $12,000 odd per prosthesis should have inspired a request for more information at least so far as the future was concerned..
274 Mr Honeyman suggested that it was too early in the proceedings for this investigation to be done, it not being clear whether the Plaintiff wished to proceed. Given the acceptance of an obligation to advise, that is not an adequate reason not to do what was reasonably necessary to give advice. Nor is the fact that as at November 1995, the Defendant's had not been put in funds by the Plaintiff relevant. The costs of the likely enquiries necessary would not have been large and, having regard to the history of dealings between the Plaintiff and Mr Honeyman the stage had not been reached where any obligations Mr Honeyman had to advise and pursue inexpensive enquiries were conditional on prior receipt of funds from the Plaintiff.
275 It must, of course, be recognised that any lump sum awarded on account of the ongoing cost of prostheses would be but an estimate of the present value of the cost the Plaintiff would have to incur for them over his lifetime. In one sense, there would thus be no gain to him in receiving such a lump sum. On the other hand, the possession of such a lump sum, while it is capable of being dissipated, also possesses some advantages and someone in the Plaintiff's position was entitled to be advised as to what that sum would probably be in order that he could, so far as lay in the power of himself and his legal advisers, obtain it if he wished to do so.
276 Before I deal specifically with the complaints listed in the other numbered sub-paragraphs, it is appropriate to refer to a number of features of or incidental to the November conference. Firstly, it was held almost 10 years before the parties came to give evidence about it and, although a lesser number, still a number of years before there was occasion to record in detail, as opposed to in the broad, much of what was said. Furthermore, at the time it was regarded by Mr Dodd and Mr Honeyman as not final. Possibilities of reconstruction, honest or dishonest, a natural tendency to become certain in what may have originally been an imperfect recollection, and to think that what should have been said was said are matters which I must bear in mind.
277 Secondly, given the limited nature of the information available, one wonders why the conference was held at all. Even on the basis of Mr Honeyman's mistaken belief that that the information to the effect that the Plaintiff's potential earnings were $900 to $1,200 was new there was no corroboration of those figures. True it is that Mr Dodd could have been asked to advise on the assumption that those figures were correct but there is no evidence that he was asked to do so. The probability is that he was not.
278 Thirdly, there seems little doubt that, as I think, from the time of the conference, but certainly from soon after it, the Plaintiff's interest in pursuing any Common Law claim waned and then ceased. Although there are other possible explanations, I regard his response to correspondence from Mr Honeyman as eloquent testimony in that regard.
279 Fourthly, there seems to have been, at most, little attention paid during the conference to a number of matters. As has been said, superannuation was not referred to. Another was the extent of the Plaintiff's disability and how he coped with the prosthesis, a matter clearly relevant to any residual earning capacity. A third was the cost of prostheses in the future. The topic does not figure in either Mr Dodd's or Mr Honeyman's notes of the conference and Mr Dodd's evidence about the Departmental estimate coming to only "$98,000" (sic) being not much and without any reference to a higher figure of which the Plaintiff had advised Mr Honeyman, suggests also that there was no mention, or probably thought, of any figure other than the Departmental one. Mr Dodd's evidence to the effect that "if he was $200,000 ahead on that part of the claim, then who cares about whether the medical expenses are enough or not …", points in the same direction, for the difference between $98,000 and $300,000 or thereabouts (even if discounted) would clearly have a major impact on any $200,000 surplus. Mr Honeyman's evidence to the effect that the Plaintiff was not given any other advice about any lump sum other than the $234,000 and $400,000 and Mr Dodd's agreement that no figure was put down by way of lump sum for future medicals persuade me that no figure on this account was mentioned and also argues for there having been no, or no substantial, discussion of any allowance for future medical expenses. I conclude there was not.
280 And this seems to be so notwithstanding that the Plaintiff, as Mr Dodd and Mr Honeyman both said, raised as the cost of replacing his prosthesis the sum of $9,000 and, according to Mr Dodd whose evidence I accept on this topic, became agitated at that stage. In that connection I was not impressed by the explanation Mr Honeyman gave for the Plaintiff becoming upset, viz. that he seemed to think his claim was worth millions. Inter alia, there is no other persuasive indication of this being the Plaintiff's approach.
281 Fifthly, mention should be made of Mr Dodd's evidence at T440 to the effect that he "told Mr Arnold further regarding medical expenses that he had been paid all those to date and they would have to go back to the Workers Comp insurer. And regarding future expenses he would get an allowance for those in the motor accidents claim, and once that claim came to an end then he would be on his own" and it was then the Plaintiff became upset. Such advice is misleading in that it suggests that the Plaintiff would not also receive as a component of any verdict an allowance for the past medical expenses he would have to refund whereas there clearly would have been such an allowance.
282 It is also appropriate to reflect on the inherent probabilities. Given that one of the subjects of both conferences with counsel was consideration of a Common Law claim, it is inconceivable that the issue of liability was not addressed. Any such consideration would inevitably lead to the conclusion that the Plaintiff was bound to succeed and it strikes me as inconceivable that that would not have been said by a counsel with Mr Dodd's experience in at least one of the conferences. Furthermore, all persons practicing in the area know that any verdict is made up of damages awarded under a number of heads most of which have been referred to in these reasons. One cannot simply address a claim in its totality without giving consideration to the individual heads of damage or "parts" that might be relevant. It is inconceivable that Mr Dodd was addressing the claim except by reference to one or more such parts. Furthermore, had the Plaintiff pursued his claim, he would so obviously have been entitled to damages under the headings of future economic loss and future out-of-pocket expenses, that it is inconceivable that Mr Dodd could have consciously told the Plaintiff that the amount calculated by reference to lost income or earning capacity was "what (he) would have got full stop" or anything along those lines.
283 The inherent probabilities are also against Mr Dodd having made any such statement to the Plaintiff consciously or unconsciously although it must be conceded that the same can be said of Mr Dodd's statement that I have quoted from page 440 of the transcript.
284 The figures that everyone agrees were mentioned argue against Mr Dodd having advised the Plaintiff in any unqualified way to the effect that he "was better off to stay with Workers Comp". So, compellingly, do the terms of the correspondence and history of events over the ensuing 6 months.
285 Attention to the inherent probabilities mean that one should recognise the possibility that the Plaintiff, had he pursued the Common Law claim in contemplation could, at least in substance, "lose everything". However that would occur not, as the Plaintiff suggested, "if I went for it and lost it", but rather if he won but was assessed at having lost only a very small amount of his earning capacity, and did not receive a large sum for future out-of-pocket expenses, so that he recovered a verdict but a small one. It is only by winning that he would have lost his Workers' Compensation rights.
286 This attention to the inherent probabilities and the other matters to which I have referred leads me to the conclusion that, notwithstanding my views as to the honesty of the Plaintiff's evidence, I remain unpersuaded - and the onus of proof is on him - that he was advised to the effect that he would be better off to stay on Workers' Compensation, and might "lose everything". I have already concluded that it is inconceivable that Mr Dodd could have consciously told the Plaintiff that the amounts of $234,000 and $429,000 or so calculated by reference to lost income or earning capacity were "what (he) would have got full stop" or anything along those lines. I think the inherent probabilities are also so strongly against Mr Dodd having unconsciously done so that I should find he did not.
287 The strength of the inherent probabilities also leads me to the view that, despite Mr Dodd's own evidence I should conclude Mr Dodd did not advise the Plaintiff in the terms quoted from page 440 of the transcript.
288 On the other hand, it seems to me probable that figures of $234,000 to $429,000 "full stop" are what the Plaintiff believed, following the November 1995 conference to be the situation. His actions or inertia thereafter are strongly suggestive of a belief that the claim was not worth pursuing. The absence of mention of any sum to cover future out-of-pocket expenses, particularly the cost of prosthetic replacements, the scant attention that topic seems to have received in the conference and the Plaintiff's obvious concern in the conference as to how those costs were to be met certainly explain how this belief could have come about. Particularly is this so when nowhere in the evidence of Mr Honeyman or Mr Dodd is there any statement to the effect that either responded to the Plaintiff's concern by saying words to the effect, not merely that there would be an allowance for future out-of-pocket expenses but one large enough to cover the reasonable costs of replacement, even if that cost was $9,000 a time. Except by general reference to an allowance for future out-of-pocket expenses, which the Plaintiff's concern at the time suggested he did not fully understand, neither Mr Dodd nor Mr Honeyman responded to that concern except by repeating the advice the Plaintiff had either not understood and/or which concerned him.
289 Whilst the probabilities do favour the evidence of Mr Dodd and Mr Honeyman that the Plaintiff was also told that there would be an allowance in any verdict for future medicals or out-of-pocket expenses and I find this occurred, I am satisfied that they did not advise the Plaintiff that that allowance would be of sufficient size to cover the reasonable costs of replacement, whatever that cost should, at the time of advice or trial, be shown to be. Although I accept that this is not the only possible explanation for the Plaintiff's state of agitation during the conference, or belief afterwards that the figures derived from valuing his lost earnings were all he would receive, the totality of evidence as to what was said and what occurred, leads me to the view that it at least probable. To the extent that I accept that the Plaintiff was told that there would be an allowance for future medical of out-of-pocked expenses. I do not regard his evidence quoted at about [94] above and commencing "Mr Dodd said, if I took the matter" as accurate. Otherwise I accept it as substantially accurate..
290 In this area of the November 1995 conference, there remains an issue of whether Mr Dodd did give any advice favouring the making of a Common Law claim. Mr Dodd said that he told the Plaintiff that if he could substantiate the (higher) figures, there would be no question of bringing a claim". I infer Mr Dodd meant "of not bringing a claim". The Plaintiff denies this. In evidence Mr Dodd also said that he told the Plaintiff that the latter had prospects of a good chance of a couple of hundred thousand. However, Mr Dodd also said that he did not even give a preliminary view as to how the matter was to proceed or advise which way to go and, although this is not strictly inconsistent with his other evidence to which I have just referred, it does not sit happily with it. And, although I place no great weight on the fact, any suggestion that Mr Dodd did advise the commencement of proceedings, even on a conditional basis, derives no support from Mr Honeyman's letter of 20 December. In the result I am disposed to accept the Plaintiff's evidence that no advice of the nature referred to in this paragraph was given although obviously there was pointed out to the Plaintiff the figures of $234,000 to $429,000 as the potential range of damages for loss of future earning capacity (depending on what potential earnings could be established and subject to the discount for vicissitudes not exceeding 15%), and that there would also be an allowance for future out-of-pocket or prostheses costs. Implicit in this conclusion is that the Plaintiff was told something to the effect that he had "prospects" or a "chance" of a couple of hundred thousand. The lack of much positive in Mr Honeyman's letter of 20 December and the Plaintiff's attitude to the claim from the time of the November 1995 conference leads me to the inclination that the Plaintiff was not told he had a "good chance" except possibly in a very qualified way. Although I do not need to rely on it, I should add in this connection that the circumstances in which those parts of Exhibit 15 as are presently relevant came into existence do detract from their weight.
291 The totality of the evidence also persuades me that, contrary to Mr Honeyman's evidence, including Exhibit 15, no advice contrary to or qualifying the observation in the letter of 20 December 1995 that, "We are not totally confident yet that the net amount of any benefit to be derived from that claim (the motor accident claim) would outweigh what is already occurring" was given.
292 I would add also that my consideration of the matter makes very understandable the Plaintiff's answers to the effect that Mr Honeyman had done nothing. Despite Mr Honeyman:-
· having received details of the accident soon after mid 1994,
· having received by or in October 1994 details of the Plaintiff's earnings and potential earnings and of persons or concrete pumping organisations who could confirm this,
· having been informed by the Plaintiff in March 1995, and with credible detail, that the only professional assessment of the future cost of prostheses was too low, and
· having informed the Plaintiff that the November conference was for the purpose of Mr Dodd advising whether a Common Law claim was worthwhile (a purpose Mr Dodd reaffirmed at the beginning of the conference),