Professions and Trades - Lawyers - Duties and liabilities - Solicitors' duties to other persons - Beneficiaries - Duty to a testator to give proper effect to testator's intentions - Duty extends to advice about family provision claims for persons not provided for and means available to minimise risk of claim - Means may include dealing with assets before death - Corresponding duty to a nominated beneficiary.

Hill v Van Erp (1997) 188 CLR 159, applied.

Doolan v Renkon (2011) 21 Tas R 156, considered.

Torts - Negligence - Essentials of action for negligence - Duty of care - Affecting particular professions or occupations - Lawyers - Duty of care to a testator to give proper effect to testator's intentions - Duty extends to advice about family provision claims for persons not provided for - Testator and nominated beneficiary held properties as tenants in common - Breach of duty to nominated beneficiary in failing to advise testator as to means available to minimise risk of claim - Means included creation of joint tenancies or transfer of testator's interests to beneficiary before death.

Hill v Van Erp (1997) 188 CLR 159, applied.

Doolan v Renkon (2011) 21 Tas R 156, considered.

Appeal and New Trial - Appeal - practice and procedure - Powers of court - Assessment of damages - Action in negligence - Appellant unsuccessful at trial on issue of factual causation - Duty and breach not decided by trial judge - Appeal successful on duty and breach - Trial judge did not assess damages - Claim for damages for loss of opportunity put on basis that negligence direct and immediate cause of whole of the loss claimed - Assessment of damages remitted - Appellant able to have damages assessed on basis of value of lost opportunity.

Barnes v Forty Two International Pty Ltd [2014] FCAFC 152, distinguished.

Judgment Number: [2015] TASFC 8

1. The judgment for the respondents dated 24 November 2014 is set aside.

3 Judgment be entered for the appellant against the respondents for damages to be assessed.

4 The assessment of damages be remitted to a single judge other than the trial judge.

1. In March 2009, the first respondent prepared a will for Jeffrey Doddridge ("the testator"). The testator was then terminally ill. His instructions were brief. All his estate was to pass to the appellant. The first respondent prepared a will to give effect to those instructions, and it was executed. The testator died in September 2009. The second respondent, the firm of solicitors in which the first respondent was a partner, had acted for the testator over a number of years, and, in fact, in 1984 had prepared two wills for him. Each was drawn largely to give effect to the same instructions as those in 2009, save that in the will first in time in 1984, there was also a bequest of $10,000 to a long estranged daughter. That same bequest did not appear in the will second in time in 1984.
2. At the time the 2009 will was prepared, and at the date of death, the testator had a half interest in two pieces of real estate. Both had been purchased jointly with the appellant. The two men held the titles as tenants in common. Probate of the will was granted early in 2010. The testator's estate for the purpose of probate included the testator's half share in each of the properties held with the appellant. Shortly after probate was granted, the estranged daughter, Patrice Doddridge, made an application pursuant to the Testators Family Maintenance Act 1912 ("the TFM Act") for provision out of the estate of the testator. She was successful, and a significant award was made to her. The net value of the estate which the appellant had expected to receive was, as a consequence, reduced by the amount of the award and various amounts of costs.
3. The appellant commenced an action against the respondents. In that action, the appellant contended that the respondents, when taking instructions from the testator about the will and then drawing it, owed the appellant a duty of care to ensure that the testator's instructions were given effect to; that is, to ensure that the appellant in fact did receive the whole of the estate which existed when the will was drawn.
4. The action proceeded to trial before Blow CJ. It failed. His Honour did not make a finding as to whether a duty existed as pleaded. Instead, he concluded that it was unnecessary to do so because, on the facts as found, no causation of loss could have been established. The appellant now appeals that decision.

"1 The learned trial judge erred in law and in fact in failing to find that the defendant solicitors owed and breached a duty of care to the plaintiff.

1. The learned trial judge erred in fact and in law in failing to consider, as he ought to have, the plaintiff's claim as one for the loss of an opportunity, and failed to assess the chance of the testator acting as the plaintiff contended, had the solicitors not breached their duty.
2. The learned trial judge failed to give adequate and proper reasons for his conclusions that:

1. he was not satisfied on the balance of probabilities that a conversation about the testator's daughter and a possible TFM claim would have triggered an enquiry by the testator about ways of protecting the plaintiff's position (Reasons [25]); 2. he was not satisfied that the solicitor owed the testator, let alone the plaintiff, a duty to provide advice about creating joint tenancies in the absence of such an enquiry (Reasons [25]);

1. he was not satisfied that had the solicitor discharged his duty to the testator, the testator would have joined with the plaintiff in creating joint tenancies in place of the tenancies in common, or taken any other steps to deplete his estate and frustrate a possible claim under the TFM Act (Reasons [33]).
2. Having found that the respondent solicitors owed a duty of care to the testator in the making of his will, and in making some enquiries as to the existence of his adult daughter, and in taking instructions in relation to a possible claim under the TFM Act, and that the solicitors had breached that duty, the learned trial judge erred in failing to consider:
   1. whether the solicitors owed a duty of care to the plaintiff (Reasons [33], cf Reasons [6]);

b the content of that duty of care (Reasons [6]);

c whether the solicitors had breached that duty of care.

1. The learned trial judge erred in failing to make any findings as to damages, in circumstances where the plaintiff's cause of action was for a loss of opportunity, and the action was not a matter to be decided solely on the balance of probabilities.
2. In so failing as asserted in grounds 3, 4 and 5 hereof, the learned trial judge failed to take proper account of the failure of the first defendant to give evidence, and the inferences that could properly be drawn from such failure."

1. The duty of care particularised in the appellant's statement of claim appeared at par 7 of that document. It was as follows:

"By reason of the matters aforesaid, the first defendant and the second defendant owed a duty of care to the plaintiff, as the named beneficiary under the Will, to give effect to the deceased's testamentary wishes.

The deceased's wishes were that the plaintiff receive his whole estate upon the deceased's death, as recorded in the Will. ..."

1. In par 14 of the statement of claim, the appellant asserted that the respondents had acted negligently and breached their duty of care by failing to advise the testator of:

"a the possibility or likelihood that Ms Doddridge would bring a claim for provision from the deceased's estate upon his death pursuant to the provisions of the Act, or as such other law that may be applicable at the time; and

b the options available to the deceased to arrange his affairs so as to reduce or completely extinguish his estate upon his death, so as to avoid any claim being brought upon his death which would disturb his testamentary wishes."

Particulars of what it was said the testator could have done to achieve those ends had he been so advised were provided.

1. The loss and damage asserted to have been suffered by the appellant was outlined in par 17 of his statement of claim. That was asserted to be the amount paid to Ms Doddridge as a result of her successful claim against the estate by way of an award, interest and costs (a total of $345,000) and what the appellant paid in respect of his own legal costs amounting to "not less than $90,000". The appellant's claim was said to be for damages, interest pursuant to statute and costs.
2. An issue at the forefront of the hearing of this appeal was the nature of the appellant's case at trial, assuming a duty of care was found to exist. Counsel for the appellant submitted that the case was always one for the loss of an opportunity which needed to be valued and not for a loss directly suffered by the appellant as a consequence of any breach of duty found. However, the pleadings contained no reference to such a claim, and the appellant's case at trial was not specifically pursued on that basis. That was notwithstanding that the appellant's trial counsel referred to the claim being for loss of opportunity at least four times during her opening address, and then again briefly at the end of her closing address. Despite those references, no submissions were made by counsel for the respondents about such a case, and the trial judge made no reference to it either. The case was pursued, in effect, on an all or nothing basis.

1. In essence, the respondents denied any duty of care was owed by them to the appellant, denied any breach of duty if one was found to exist, and denied any loss had been suffered by the appellant in any event.

1. At [6] of his reasons, Blow CJ accepted that there was no doubt that a testator's solicitor could owe a duty of care to an intended beneficiary. His Honour identified that the issue in this case was how far that duty could extend. His Honour went on at [7]-[9]:

"7 The extent of a solicitor's duty to a client depends on the scope of the solicitor's retainer. In this case there is no evidence that the solicitor was engaged to advise in relation to estate planning or other collateral matters. The solicitor did not give evidence. His file notes relating to the 2009 will were tendered by consent. It is clear that he accepted instructions to prepare a will by which the testator left the whole of his estate to the plaintiff if he survived him, or to the plaintiff's children in equal shares if he predeceased him. He also gave instructions that he wanted to die at home, and instructions as to the leasing of the two properties.

8 The plaintiff contends that the solicitor owed a duty to him as an intended beneficiary which required him to make enquiries of the testator, ascertain that he had a daughter, advise as to the possibility of her making a claim under the TFM Act, and advise as to measures that could be taken to place assets out of her reach in the event that a TFM claim was made. None of the reported cases about a testator's duty to an intended beneficiary go that far. None of them deal with the situation that existed in this case.

9 It is clear that, when a solicitor is instructed to act on the making of a will, that solicitor will owe an intended beneficiary a duty to take reasonable care to give effect to the client's testamentary wishes. Hill v Van Erp (above) is an example of such a case. Another example is Ross v Caunters [1980] Ch 297. In that case a firm of solicitors prepared a will for a testator and sent it to him for execution without warning him that it should not be witnessed by the spouse of a beneficiary. The will was so witnessed. As a result, the gift to the beneficiary was void. The English Court of Appeal held that the solicitors owed the beneficiary a duty of care, and were liable for damages for its breach."

1. His Honour then canvassed a number of authorities dealing with situations where a duty of care was asserted to be owed by a solicitor to an intended beneficiary. None involved the same situation as in the present case. His Honour then said at [16]-[17] of his reasons:

"16 If a solicitor has a duty to advise about or procure the severance of a joint tenancy for the purpose of giving effect to a testator's testamentary wishes, and breaches that duty, with the result that the joint tenancy is not severed and the property passes to the surviving joint tenant, the disappointed beneficiaries will have the same claim as the executors. In that situation, no duty of care is owed by the solicitor to the beneficiaries who would have received the property in question under the testator's will because the executors can claim damages for the benefit of the estate: White v Jones (above) at 268. However this case concerns a very different situation. It is not alleged that the solicitor was negligent in failing to recommend the severance of a joint tenancy. It is alleged that he was negligent in failing to advise that joint tenancies could be created. If joint tenancies had been created, as the plaintiff suggests they should have been, then, upon the death of the testator, his estate would no longer have included the land. If the solicitor breached a duty to advise as to the creation of a joint tenancy, and if that breach of duty resulted in the testator taking a course of action that he would not otherwise have taken, the result must be that the estate is larger than it otherwise would have been, because it still includes half interests in the relevant properties. This is not a case in which it can be asserted that negligence has resulted in a loss to the estate.

17 This review of the cases about solicitors' duties to beneficiaries brings me back to the point I made earlier. As far as I am aware, a court has not previously had to decide whether a testator's solicitor's duty to a beneficiary extends so far as to require the giving of advice as to the depletion of the testator's estate."

1. His Honour accepted at [25] of his reasons that the first respondent owed the testator a duty of care. He said:

"25 The solicitor had been retained by the testator to prepare his will. The solicitor knew that the testator was elderly, and that he wished to give the whole of his estate to a man who was not a relative. In those circumstances, I accept that he owed his client a duty to enquire as to the existence of any family members who could make a claim under the TFM Act, with a view to the testator's reasons for making no provision for them possibly being included in the will. There is no evidence that the client had engaged the solicitor to provide advice as to anything other than the making of the will. I infer that, if the solicitor had enquired about family members as he should have done, then the testator would have disclosed the existence of his daughter, and the solicitor would have advised as to the risk of successful proceedings under the TFM Act. The testator might or might not then have enquired whether there was anything that could be done to protect the plaintiff against that risk. Any such enquiry would have widened the scope of the solicitor's retainer. If such an enquiry had been made, it would have been the solicitor's duty to advise the testator that, if the plaintiff was agreeable, it could be arranged that he and the plaintiff could hold their two properties as joint tenants, with the consequence that, provided the testator died first, they would pass to the plaintiff and not be available to satisfy a claim under the TFM Act. But I am not satisfied on the balance of probabilities that a conversation about the daughter and a possible TFM claim by her would have triggered an enquiry by the testator about ways of protecting the plaintiff's position. And I am not satisfied that the solicitor owed the testator, let alone the plaintiff, a duty to provide advice about creating joint tenancies in the absence of such an enquiry."

1. His Honour went on at [32] to consider possible subjects for any discussion which might have taken place between the testator and the first respondent. He said:

"If there had been a discussion between the solicitor and the testator as to the possible creation of joint tenancies, the taxation consequences should have been discussed. There is a possibility that the solicitor might not have been able to provide immediate tax advice. There is a possibility that the testator might not have wanted to spend money getting advice about possible tax consequences. In fact there are all sorts of possibilities. The testator might have wanted to defer making a will so that he could make enquiries about his daughter's financial circumstances. He might have known nothing about her financial position. A discussion might have prompted him to consider making financial provision for her in his will. Another possibility is that, having been advised of the risk of a successful claim under the TFM Act, he might have decided to leave his daughter nothing, to hope that she would not make a claim, and to leave it to the plaintiff to negotiate a sensible settlement, or to require her to proceed to trial, if she did. One can only speculate as to what might have been said, and what might have been decided."

"For the reasons stated above, my conclusions are as follows:

• I accept that the solicitor owed the testator a duty to take instructions in relation to a possible claim under the TFM Act, and that he breached that duty.
• I am not satisfied on the balance of probabilities that, had the solicitor discharged his duty to the testator, the testator would have joined with the plaintiff in creating joint tenancies in place of the tenancies in common, or taken any other steps to deplete his estate and frustrate a possible claim under the TFM Act.
• I therefore need not decide whether the solicitor owed the plaintiff, as an intended beneficiary, any duty to advise as to the risk of a claim being made under the TFM Act or the steps that could be taken to reduce or extinguish his estate in order to avoid the consequences of such a claim."

1. Counsel for the appellant submitted that, to succeed on this appeal, the appellant needed to confront two findings. These were those his Honour made at [25] and [33] where he determined that he was not satisfied on the balance of probabilities that:
   • a conversation between the first respondent and the testator about the daughter and a possible TFM claim by her would have triggered an enquiry by the testator about ways to protect the appellant's position, and
   • had the solicitor discharged his duty to the testator, the testator would have joined with the appellant in creating joint tenancies in place of the tenancies in common, or taken any other steps to deplete his estate and frustrate a possible claim under the TFM Act.
2. What underpinned those findings was the nature and extent of the duty which the learned trial judge found the respondents owed to the testator. The learned trial judge confined the ambit of the duty to the testator at [25] where he said:

"I accept that he owed his client a duty to enquire as to the existence of any family members who could make a claim under the TFM Act, with a view to the testator's reasons for making no provision for them possibly being included in the will. ... I infer that, if the solicitor had enquired about family members as he should have done, then the testator would have disclosed the existence of his daughter, and the solicitor would have advised as to the risk of successful proceedings under the TFM Act."

1. Counsel for the appellant submitted that a duty was owed by the first respondent to the testator, not only to make enquiries about the existence of family members who might make a TFM claim and the reasons for omitting such family members from a will, but also, given the instructions to the first respondent and the knowledge the first respondent had of the affairs of the testator and the appellant, to advise how to give effect to the instructions given relating to the will. The duty to the appellant was to provide that proper advice to the testator. The duty to the testator and the appellant was not to ensure certain steps were taken, but to give the advice to the testator about the existence of those steps. In effect, insofar as the extent of the advice the respondents had a duty to give to the testator, the learned trial judge confined the duty of the respondents to the testator too narrowly.
2. The learned trial judge, in my view, did confine the ambit of that duty unnecessarily. In Doolan v Renkon Pty Ltd (2011) 21 Tas R 156, the Full Court in a joint judgment considered the scope of the duty of care owed by a solicitor to a client. At [29], their Honours said:

"In an action against a solicitor for professional negligence, prima facie, the plaintiff may sue in either contract or tort, or both: Astley v Austrust Ltd (1999) 197 CLR 1 at 20."

Their Honours then went on to discuss the extent of a solicitor's duty of care in tort and whether such a duty could ever extend further than the contractual duty of care. At [34], the Court noted that because of the state of the law concerning a solicitor's duty in tort, it was desirable to consider the scope of any contractual duty of care in isolation. At [36]-[39], the Court said:

"36 There are a number of reported cases that support the proposition that the scope of a solicitor's duty of care depends, to some extent, on the nature of the client. In Carradine Properties Ltd v D J Freeman & Co (1982) 126 SJ 157, Donaldson LJ said the following:

' ... the precise scope of that duty will depend inter alia upon the extent to which the client appears to need advice. An inexperienced client will need and be entitled to expect a solicitor to take a much broader view of the scope of his retainer and his duties than will be the case with an experienced client.'

37 Those words do not appear verbatim in the report of the case in the Solicitors' Journal, which gives only a summary of the judgment. However they were quoted with approval by Peter Gibson LJ, with whom Hobhouse and Leggatt LJJ agreed, in National Home Loans Corporation v Giffen Couch & Archer [1998] 1 WLR 207 at 213.

38 In the Supreme Court of British Columbia, in Ormindale Holdings Ltd v Ray, Wolfe, Connel, Lightbody & Reynolds (1980) 116 DLR (3d) 346 at 357, Taylor J, said:

'While a lawyer might have to warn on consequences unknown to his client which may flow from acceptance of his advice if it proves to be wrong, he is not, I think, normally required to warn experienced business clients of the possibility that the opinion, although firmly held, may not in fact prevail. That follows inevitably from the fact that it is, as these plaintiffs must have known, a matter of professional judgment.'

39 Mullighan J referred to this line of authority when considering the scope of a legal firm's duty of care in Austrust Pty Ltd v Astley [1993] SASC 3969; (1993) 60 SASR 354 at 372. In that case a trustee company was suing the members of a firm of solicitors. After referring to the parties' contentions as to the scope of the firm's retainer, and the extent to which it required the firm to provide the client with advice, his Honour said:

'In considering these matters, it is appropriate to have regard to the experience and expertise of the plaintiff and what action it took independently of the defendants. These matters are also of importance in determining the nature and extent of the duty of care and whether Mr Astley was in breach of it. ... The plaintiff had considerable experience as a trustee and in administering trusts in accordance with the instruments creating them.'

His Honour went on to make findings as to the competence and experience of the plaintiff's staff."

1. What can be distilled from the discussion in Renkon is that, in determining the scope of a solicitor's duty of care to a client in contract, some regard should be paid to the particular client and, what I might describe as, the dynamics between the client and the solicitor. In the present case, the first respondent was a very experienced practitioner. He was dealing with an elderly and terminally ill man who had been his client for a number of years. During the course of that relationship, the respondents had acted in various transactions for the testator. There is no suggestion the testator had any legal training or particular knowledge about the potential for TFM claims. Further, the testator's instructions were that he wished to leave the entirety of his estate to someone to whom he was not related by blood. That had been his consistent instructions over 25 years. The testator's estate as at 2009 when his wishes were last expressed included interests in two properties. It is reasonable to infer that the testator's intention was that the appellant have the entirety of his interest in those properties and his estate generally, not that estate less any amount which might need to be paid to a successful TFM claimant.
2. Against that background, in my view, the duty of care owed by the respondents to the testator was much more extensive than that which the learned trial judge set out. The first respondent owed a duty of care to the testator to, not only enquire of him whether he had any children, but also to advise him why that enquiry was being made, the potential for a TFM claim, the impact that could have on his expressed wishes, and of possible steps he could consider to avoid that impact. It did not need to extend to ensuring any such advice was accepted and acted upon.
3. That duty to the testator was one owed in contract and tort. The appellant was, of course, not in any contractual relationship with the respondents. Any duty of care to the appellant could only be owed in tort. As the learned trial judge found at [6] of his reasons, such a duty can exist. The issue he raised was how far that duty extended. There can be no basis for suggesting that any duty owed by a testator's solicitor to an intended beneficiary in tort should be something less than a contractual duty owed by a solicitor to that testator. When regard is had to the nature of the duty as I have outlined it in the previous paragraph, there can be no reason to suggest that, in that context, the interests of the testator in this case and the appellant were not effectively the same.
4. It must follow that I accept that the respondents not only had a duty to the appellant to advise the testator in the manner I have identified, but that they breached that duty. Grounds 1 and 4 of the notice of appeal should therefore succeed. In terms of whether this appeal generally should succeed or not, the above finding is enough to dispose of that question.
5. Ground 2 however asserts that, "the learned trial judge erred in fact and in law in failing to consider, as he ought to have, the plaintiff's claim as one for the loss of an opportunity, and failed to assess the chance of the testator acting as the plaintiff contended, had the solicitors not breached their duty." Ground 5 asserts that, "the learned trial judge erred in failing to make any findings as to damages, in circumstances where the plaintiff's cause of action was for a loss of opportunity, and the action was not a matter to be decided solely on the balance of probabilities." There is no doubt having regard to the learned trial judge's reasons that he did not do either of the things referred to in those grounds. However, that was as a consequence of his failure to find a duty existed and had been breached, and the way in which the trial before him was run.
6. The question therefore remains, had the learned trial judge made a finding there was a duty and that duty had been breached, ought he to have considered that the appellant's claim was one for the loss of an opportunity and assessed damages on that basis?
7. As I said at [9] of these reasons, it was submitted by counsel for the appellant that, were it to be established that the respondents owed the appellant a duty of care and had breached it, the appellant's claim was one for the loss of an opportunity. The case before the learned trial judge was not however run on that basis and, because his Honour made the findings he did, he did not ever reach the position of having to consider the consequences of a breach of duty. There is no dispute on this appeal that the loss of opportunity issue was not pleaded at trial. There is also no dispute that the learned trial judge did not have submissions as to the approach he should take to assessment of damages for the loss of an opportunity. Counsel for the appellant submitted that, notwithstanding that the case was not formally pleaded on the basis of the loss of an opportunity, this Court was not precluded from accepting that the case should have been determined on that basis. Counsel for the respondents however submitted that the appellant was bound by his case at trial, and could not now raise the issue.
8. It cannot be said that, despite the pleadings, the respondents were not on notice as to what the appellant's claim was. In substance, the appellant claimed the respondents had been negligent in their advice to the testator, and that, as a consequence of that negligent advice, the appellant had suffered a loss. While the appellant's pleadings referred to that loss being a particular amount, it could be said that whatever the amount of any loss was or however it was assessed, the underlying claim was a loss as a result of negligent advice. The issue of loss of an opportunity or loss of a chance was not wholly ignored. When the appellant's trial counsel opened the case for the appellant, she said at the outset:

"... this is a case about the scope of a solicitor's duty to advise when they're taking instructions for a will and the lost opportunity that arises if that advice isn't properly given."

Counsel referred to the concept of "loss of opportunity" twice more in her opening in the context of the testator having lost the opportunity to arrange his affairs as a result of inadequate advice. She then dealt with the extension of the duty of care to the appellant, and submitted that the interests of the testator and the appellant coincided. Counsel's written outline of facts and contentions however made no mention of the issue of loss of opportunity. At par 42 of that outline, counsel said:

"The plaintiff claims the difference between the value of assets he would have received upon the client's death but for the defendants' negligence less the amount that he received from the estate."

1. In her closing address, the appellant's trial counsel said:

"The whole problem with this is that there was an opportunity that was lost and had they been able to take up that opportunity there would be nothing in the estate. The only person who's affected by this is Mr Calvert."

"In terms of the issue of causation the - in a case like this which is one of lost opportunity... ."

However counsel, while again referring to a lost opportunity near the end of her closing address in the context of damages did not do so on the basis that there needed to be any assessment of the value of a lost opportunity, but on the basis that damages as claimed in the statement of claim flowed directly from the loss of opportunity. Counsel for the respondents did not address the issue at all, and, of course, neither did the learned trial judge, basically because nobody asked him to do so.

1. Counsel for the respondents submitted, as I have said, that the appellant cannot now contend that his claim is one for loss of opportunity. He submitted that:

"The appellant did not plead a claim for damages for economic loss based on a lost opportunity. The appellant did not particularise his claim for loss other than for the entire detriment said to have been suffered by the negligence. The appellant is bound by the conduct of the case at trial. Specifically it is not now open for the appellant to contend that his claim was one for a lost opportunity: Barnes v Forty Two International Pty Ltd [2014] FCAFC 152 at [78-84] per Beach J, Siopis & Flick JJ, concurring."

1. In Barnes, the case at trial involved claims for alleged breaches of contract, breaches of statutory duties and misleading and deceptive conduct. The trial judge dismissed all claims save a claim for breach of an implied term of a share purchase agreement and a claim for misleading and deceptive conduct. At [57] Beach J summarised how the proceedings before the trial judge had been undertaken. He then said:

"But in its closing written submissions (and for the first time), BlueFreeway advanced an alternative formulation of the counterfactual. It said that it was entitled to an award of damages in respect of Barnes' and Hawksley's misleading or deceptive conduct for the loss of the opportunity or chance to negotiate an alternative form of exit agreement with Barnes and Hawksley 'with all cards on the table' and, in particular, with full knowledge of their involvement in financing the licence fee."

The trial judge in that case made an award based on that loss of opportunity submission. The court of appeal concluded that he was in error in doing so. At [30] Beach J said:

"30 In summary, his Honour's judgment awarding damages of $3,062,406.93 to BlueFreeway should be set aside. The amount and basis for the damages award based on a lost opportunity, which was common to both the cause of action for breach of an implied term of the share purchase agreement and the cause of action for misleading or deceptive conduct, was neither pleaded nor opened. Further, the case was not conducted by BlueFreeway on that basis, and appears to have arisen as an afterthought during closing written submissions and oral closing addresses. As his Honour did not find in favour of BlueFreeway on its pleaded case on damages, in such circumstances, his Honour should have dismissed the proceedings, rather than finding for BlueFreeway on an alternative damages basis that was neither pleaded nor run at trial."

"119 A fundamental requirement for the fair trial of allegations of contravention of law requires 'the party making those allegations [in this case BlueFreeway] to identify the case which it seeks to make and to do that clearly and distinctly' (Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 at [25] per French CJ, Gummow, Hayne and Kiefel JJ). BlueFreeway failed to do this in relation to its alternative causation and damages case.

120 Further, it was necessary to plead the necessary material facts to establish the causal relationship between the misleading or deceptive conduct and the loss. BlueFreeway failed to do this in relation to its alternative scenario. As French J (as he then was) said in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd [1987] FCA 84; (1987) 14 FCR 215 at 222:

... facts and circumstances should be set out leading to a reasonable inference that the conduct and the damage stood to each other in the relation of cause and effect.

His Honour also referred to what Toohey J had said in James v Australia and New Zealand Banking Group Ltd (1985) ATPR 40-504 at 46,034, that the Bank was 'entitled to know with some certainty what [was] being claimed and the basis of the claim'. The necessity to plead a causal link between the contravention and the damage was also referred to by Goldberg J in Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] FCA 1040; (1997) ATPR 41-591 at 44, 153-4. BlueFreeway did not comply with any such precepts.

121 Further, 'if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage' (Perestrello E Companhia Limitada v United Paint Co Ltd [1969] 1 WLR 570 at 579 per Lord Donovan delivering the judgment of the Court). This was not done by BlueFreeway. Moreover, 'if the claim is one which cannot with justice be sprung upon the defendants at the trial it requires to be pleaded so that the nature of that claim is disclosed' (at 580). Again, this was not done by BlueFreeway. Further, as Lord Donovan went on to say:

What amounts to a sufficient averment for this purpose will depend on the facts of the particular case, but a mere statement that the plaintiff claims 'damages' is not sufficient to let in evidence of a particular kind of loss which is not a necessary consequence of the wrongful act and of which the defendant is entitled to fair warning.

122 Not only were the appellants 'entitled' to a pleading by BlueFreeway identifying the head of loss as 'loss of opportunity', but they were also entitled to have that head of damage properly particularised (see, for example, David Benson Nominees Pty Ltd v Dicksons Ltd [2005] SASC 97 at [39]- [40] per Besanko J). None of this was done by BlueFreeway. For his Honour to permit BlueFreeway late in the day to put its case based upon the alternative scenario produced an unsatisfactory and inherently unfair state of affairs so far as the appellants were concerned. Pleadings serve 'to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him ...' (Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J). BlueFreeway's further amended statement of claim did not ensure that basic requirement in relation to its alternative scenario. To ensure this basic requirement of procedural fairness, BlueFreeway should have been confined to its pleaded case that did not include this alternative scenario. This was not a case 'in which the parties [had] deliberately chosen some different basis for the determination of their respective rights and liabilities' (at 287 per Mason CJ and Gaudron J). How the trial was conducted provides no support for such an inference."

1. While in isolation, when reading the above conclusion and some earlier comments, it might appear Beach J was espousing matters of principle which should apply without qualification in every case, if regard is had to his reasons in full, it is apparent that his conclusions were very much framed in the context of the facts of that case, and in particular the way it was conducted.
2. The present case is one in which, in my view, the appellant's claim should always have been considered as one for loss of an opportunity. It was not pleaded as such and when the issue, albeit obliquely, was raised by counsel for the appellant in her opening and closing, nobody else addressed it. On the hearing of the appeal, the response by counsel for the respondents to that situation was that it was not up to him to show the appellant how to run his case at trial, or point out deficiencies in his pleadings. While the appellant did not specifically plead his claim on the basis of the loss of an opportunity, the respondents could not have been unaware of that type of claim given counsel's opening address. The appellant's pleadings were not necessarily inconsistent with a claim for loss of an opportunity, and I am of the view the lack of specificity in the pleadings is not fatal to the appellant's present position. The appellant should be entitled to have damages assessed on the basis of the loss of an opportunity.

1. The findings above lead me to conclude that grounds 1, 2, 4 and 5 of the notice of appeal have been made out. It is unnecessary in the circumstances to deal specifically with grounds 3 and 6. I would quash the judgment in favour of the respondents and order that judgment be entered for the appellant against the respondents for damages to be assessed. It is not appropriate in my view for this Court to deal with that issue. Because of my conclusion that this case is one which involves an assessment of damages for the loss of an opportunity, and the way in which the trial was conducted, it may be that the parties may wish to adduce further evidence to address the valuation of the loss. Since the findings of the trial judge were made in the context of a trial run on a different basis, and there may be a perception that his Honour has already formed a view, I would also order that the assessment of damages be remitted to a single judge other than the trial judge.

1. This is an appeal from a decision of Blow CJ dismissing the appellant's action for damages: [2014] TASSC 61. I have read the reasons for judgment of both Tennent and Estcourt JJ. I would also allow the appeal, set aside the judgment and enter judgment for the appellant against the respondents for damages to be assessed. However, as it will appear, to one degree or another I take a different view about the manner of resolving the appeal. For reasons which I will later explain, the assessment should be remitted to a judge other than the trial judge.
2. The trial judge's outline of the facts, parts of his Honour's reasons, and the grounds of appeal are set out elsewhere, but it is convenient if I note what I see to be the essential facts and repeat the grounds of appeal. The first respondent, Robert Badenach, is a legal practitioner. At all material times he was a partner in the second respondent firm, Murdoch Clarke Solicitors (the firm). In February or March 2009 Mr Badenach took instructions from Jeffrey Doddridge about a will, his third prepared by the firm, and drafted that will for him. It was signed on 29 March 2009. Under that will, Mr Doddridge left the whole of his estate to the appellant. The appellant is the son of Mr Doddridge's long-term partner, with whom he established a relationship in 1975, following his separation from his wife in 1973. Mr Doddridge died on 1 September 2009.
3. The assets of the estate were valued at about $640,000. Of that amount, $530,000 was attributable to the testator's interests in two properties which he owned with the appellant as tenants in common in equal shares. There were also three investments which totalled about $100,000. The testator had a daughter, Patrice Doddridge, who had been named as a beneficiary in the first will but not the second. After the testator's death, Ms Doddridge successfully made a claim under the Testators Family Maintenance Act 1912 (the TFM Act). She was awarded the sum of $200,000 along with interest and costs totalling about $175,000.
4. Neither Mr Badenach nor anybody else from the firm gave evidence at the trial of the present action. The respondents' position in the trial and on this appeal was that there was no evidence that the testator had mentioned his daughter to Mr Badenach when giving instructions for the 2009 will. It was at least implicitly accepted that Mr Badenach did not ask the testator about family members or discuss potential claims under the Act. Of particular relevance to this appeal are the following matters:
   • The respondents admit that Mr Badenach and the firm acted for Mr Doddridge and the appellant in the purchase and registration of the two properties in their names as tenants in common in equal shares.
   • The respondents admit that they knew or ought to have known that at the time of preparing the 2009 will, Mr Doddridge was terminally ill and had a short life expectancy, that he held his shares in the two properties as tenants in common with the appellant, and that he wanted the appellant to have the whole of his estate upon death.
   • Although there was no evidence that Mr Badenach knew of the daughter's existence in March 2009, the respondents accept that the firm, which of course included Mr Badenach, is fixed with imputed knowledge. The testator made provision for Ms Doddridge by way of a legacy of $10,000 in a will made in 1984, but no provision in a will made about five months later. Both wills were still held by the firm in March 2009.

"1 The learned trial judge erred in law and in fact in failing to find that the defendant solicitors owed and breached a duty of care to the plaintiff.

1. The learned trial judge erred in fact and in law in failing to consider, as he ought to have, the plaintiff's claim as one for the loss of an opportunity, and failed to assess the chance of the testator acting as the plaintiff contended, had the solicitors not breached their duty.
2. The learned trial judge failed to give adequate and proper reasons for his conclusions that:

1. he was not satisfied on the balance of probabilities that a conversation about the testator's daughter and a possible TFM claim would have triggered an enquiry by the testator about ways of protecting the plaintiff's position (Reasons [25]); 2. he was not satisfied that the solicitor owed the testator, let alone the plaintiff, a duty to provide advice about creating joint tenancies in the absence of such an enquiry (Reasons [25]);

1. he was not satisfied that had the solicitor discharged his duty to the testator, the testator would have joined with the plaintiff in creating joint tenancies in place of the tenancies in common, or taken any other steps to deplete his estate and frustrate a possible claim under the TFM Act (Reasons [33]).
2. Having found that the respondent solicitors owed a duty of care to the testator in the making of his will, and in making some enquiries as to the existence of his adult daughter, and in taking instructions in relation to a possible claim under the TFM Act, and that the solicitors had breached that duty, the learned trial judge erred in failing to consider:
   1. whether the solicitors owed a duty of care to the plaintiff (Reasons [33], cf Reasons [6]);

b the content of that duty of care (Reasons [6]);

c whether the solicitors had breached that duty of care.

1. The learned trial judge erred in failing to make any findings as to damages, in circumstances where the plaintiff's cause of action was for a loss of opportunity, and the action was not a matter to be decided solely on the balance of probabilities.
2. In so failing as asserted in grounds 3, 4 and 5 hereof, the learned trial judge failed to take proper account of the failure of the first defendant to give evidence, and the inferences that could properly be drawn from such failure."
3. The appellant pleaded that the respondents breached that duty by failing to advise the testator of the possibility or likelihood of a claim under the Act, and the options available to the testator to arrange his affairs so as to reduce or completely extinguish his estate upon his death "so as to avoid any claim being brought upon his death which would disturb his testamentary wishes". Two options are particularised; the creation of joint tenancies, or making inter vivos gifts to the appellant.

1. In his statement of claim, the appellant alleged that the respondents owed a duty of care to the appellant as the named beneficiary to give effect to the deceased's testamentary wishes. The appellant's argument was, and remains, that the duty, so framed, extended to providing advice to the testator about the possibility of a claim under the Act, and the options which were available to remove or reduce the risk of a successful claim. In his reasons the trial judge did not decide the questions of the existence of a duty of care to the appellant, or breach of that duty if it existed.
2. In par [25] of his reasons, his Honour accepted that Mr Badenach owed the testator a duty to enquire about family members who could make a claim with a view to the reasons for making no provision possibly being included in the will. His Honour also accepted that if the testator made such an enquiry, it would have been the solicitor's duty to advise that, if the appellant was agreeable, it could be arranged that the testator and the appellant could hold their two properties as joint tenants, "with the consequence that, provided the testator died first, they would pass to the plaintiff and not be available to satisfy a claim under the Act." His Honour went on to say that he was not satisfied on the balance of probabilities that a conversation about the daughter and the possible TFM Act claim by her would have triggered an enquiry by the testator about ways of protecting the appellant's position.
3. A little at odds with those statements is that in his conclusions at par [33], the trial judge accepted that Mr Badenach "owed the testator a duty to take instructions in relation to a possible claim under the Act", and that he breached that duty. However, his Honour decided the case adversely to the appellant on the basis that the appellant had failed to establish on the balance of probabilities that, had the solicitor discharged his duty, the testator would have joined with the appellant in creating joint tenancies in place of the tenancies in common, or taken any other steps to deplete his estate and frustrate a possible claim under the Act. His Honour said that he therefore need not decide whether the solicitor owed the appellant, as an intended beneficiary, any duty to advise as to the risk of a claim being made under the TFM Act, or the steps that could be taken to reduce or extinguish his estate in order to avoid the consequences of such a claim.
4. With respect, I am not entirely clear about what the trial judge meant by expressing the further duty in that way. In any event, his Honour expressly said that he did not find it necessary to consider whether the respondents owed to the appellant a duty of care. It follows that the reason the appellant failed was that even assuming a duty of care to the appellant as alleged, he failed to establish the causative link between breach and the creation of joint tenancies. Of course, as I have shown, the creation of joint tenancies was one of two options, the failure to advise about which was alleged to be a breach of duty.
5. The appellant asserts that it was "necessary" for the trial judge to make a finding as to whether a duty of care was owed by the respondents to the appellant. This is the basis of ground 1 (in part) and ground 4 a. The respondents support the outcome in their favour, but contend that the trial judge was wrong about the existence and scope of the solicitor's duty to the testator. The respondents also argue that if the duty was owed to the testator, it does not follow that the duty was owed to the appellant.
6. This is an appeal by way of rehearing. The appellant needs to show an error on the part of the trial judge: Allesch v Maunz (2000) 203 CLR 172 at 180 [22]; Bahonko v Sterjov [2008] FCAFC 30 at [3]. In the first place, the error as to duty can only be the error in failing to decide the question. Although the appellant asserted that there had been a need for the trial judge to resolve the question of the duty to the appellant, all arguments on both sides about duty went straight to the substantive issues. That may have been an implied concession on the respondents' part, but it is not clear.
7. In Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6, the court held that the trial judge had not erred by resolving the case on the issue of causation, without making findings about duty and breach. Relying on statements made by Gummow, Hayne and Crennan JJ in Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36 at 60 [64], the court's view was that there was nothing impermissible in a trial judge making findings of fact first, and considering the legal consequences of those findings to the extent necessary, after those findings had been made; that is, in first making findings of fact about whether there is a causal connection between conduct around which breaches of duty are alleged, and damage, and then going on to consider the legal consequences of those findings to the extent necessary. See the judgment of Blow CJ at [13] and my judgment (with which Pearce J agreed) at [49]. In that paragraph, I went on to say that this would be particularly so where there is no real argument about the existence of the pleaded duties and about breaches of those duties.
8. In this case, to the extent that it might be necessary, I take the view that having regard to the fact that there were fundamental issues as to the scope of the duty owed to the testator, and the existence of a relevant duty owed to the beneficiary, the trial judge was wrong not to decide the ultimate questions of duty and breach. In that sense, grounds 1 and 4 succeed. In any event, I take the view that the appellant should succeed in relation to the existence of the duty of care to the appellant and its breach, as well as the issue of causation.

1. It is uncontroversial that a solicitor preparing a will has a duty to intended beneficiaries to give proper effect to the testator's intentions: Hill v Van Erp (1997) 188 CLR 159; Queensland Art Gallery Board of Trustees v Henderson Trout [2000] QCA 93 per Pincus JA at [2], Thomas JA at [29-31]; Vagg v McPhee (2013) 85 NSWLR 154 per Basten JA at 156 [9]-[10]; Howe v Fischer [2014] NSWCA 286 per Barrett JA at [22].
2. The issue in this case is the scope and content of that duty. The question is whether the recognised duty goes beyond attention to those formal features of the will, including its timely preparation and execution, which will give legal effect to the testator's wishes. As Tobias JA said in Vagg v McPhee at 165 [52], Hill v Van Erp "does not fully answer the question of how far the duty extends in relation to instructions given regarding the assets of an estate." The points to be decided are whether the solicitor was under a duty to advise the testator about the ramifications of not making provision for family members and what options were available to the testator about a possible claim under the Act, and whether that duty should extend to a nominated beneficiary.
3. There are a number of cases which deal with a solicitor's duty to a testator client in relation to dealing with assets before death but in light of their instructions for the will, and the question of a duty to a beneficiary. Most of these were noted by the trial judge in this case. The first is Carr-Glynn v Frearsons (A Firm) [1999] Ch 326, which established the groundwork for later cases.
4. The facts were that the testator and her nephew jointly owned property as joint tenants. In the will, the testator left to her niece her share in that property. She died without having severed the joint tenancy. The niece succeeded in a claim based on a breach of duty to ensure that the testator was properly advised of the need to sever the joint tenancy in order for the devise in the will to take effect. The solicitor did not know whether there was a joint tenancy or not, but enquiries were not completed before the will was signed. The Court of Appeal held that the solicitor's duty to take care to ensure that effect was given to testamentary intentions included a duty to an intended beneficiary to ensure that the beneficiary received what the testator intended him to receive. The solicitor was negligent in failing to advise that the joint tenancy, if that was the case, could be simply severed. It was also held that the beneficiary could succeed as any action by the estate would be of no advantage to her. That was because a benefit to the estate would fall into residue in which she had no interest under the will.
5. The leading judgment was that of Chadwick LJ, with whom Thorpe and Butler-Sloss LJ agreed. At 335, his Lordship noted that the lack of care on the part of the solicitor was by failing to ensure that the asset fell into the estate, not in failing to effect the valid testamentary disposition of an asset which did not form part of the estate. At 335-336, his Lordship continued:

"It is essential to have in mind that, in the circumstances of the present case, the need to take care to ensure that the asset fell into the estate was integral to the carrying into effect of the testatrix's intention that her share in the property 'Homelands' should pass to the plaintiff under her will. It was because the testatrix was making an alteration to the provisions in clause 2(b) of the 1983 will - under which her share in that property had been devised to her co-owner - that the need for severance arose. This is not a case in which the solicitors were instructed to advise in relation to an inter vivos transaction which was independent of the will-making process. On a proper analysis, the service of a notice of severance was part of the will-making process. The plaintiff was as much an intended beneficiary of the severance as she was of the new clause 2(b) in the 1989 will. To refuse to treat the plaintiff as an intended beneficiary who (as the solicitors could reasonably foresee) might, as a result of their negligence in carrying the testatrix's testamentary instructions, be deprived of the legacy which she was intended to enjoy on the ground that the negligence lay in failing to get in the asset rather than to provide for its disposition would, in my view, properly be regarded as bizarre."

1. In Smeaton v Pattison [2002] QSC 431, the testator's instructions were for a will leaving his half interests in certain joint tenancies to his children. The solicitor failed to advise that to sever a joint tenancy, a transfer had to be served on the other joint tenant. Advice was given about severance but it was wrong advice, and the steps outlined were not capable of achieving severance. Atkinson J found the solicitor liable and awarded damages. Her Honour relied on the following parts of the judgment of Brennan CJ in Hill v Van Erp at 167, 170:

"Most testators seek the assistance of a solicitor to make their intentions effective. The very purpose of a testator's retaining of a solicitor is to ensure that the testator's instructions to make a testamentary gift to a beneficiary results in the beneficiary's taking that gift on the death of the testator. There is no reason to refrain from imposing on a solicitor who is contractually bound to the testator to perform with reasonable care the work for which he has been retained a duty of care in tort to those who may foreseeably be damaged by carelessness in performing the work.

By accepting the testator's retainer, the solicitor enters upon the task of effecting compliance with the formalities necessary to transfer property from a testator on death to an intended beneficiary; it is foreseeable that, if reasonable care is not exercised in performing the task, the intended beneficiary will not take the property; the solicitor fails to exercise reasonable care whereby the formalities are not complied with; and the intended beneficiary thereby loses the property."

1. The decision in Smeaton was affirmed on appeal, [2003] QCA 341, although causation was the primary issue. The basis of the suggested scope of the duty did not receive much attention, either at first instance or on appeal.
2. In Miller v Cooney [2004] NSWCA 380, the testator and her husband owned properties as joint tenants. She made provision for gifts of the properties to family members, but those gifts failed because the property was passed to the husband by survivorship on her death. An action by the beneficiaries failed on the basis that the solicitor was not liable because he did not know that the client was not the absolute owner of the properties, and had no reason to suspect otherwise. The existence of the duty of care to the testator seems, by reference to Carr-Glynn, to have been assumed: see pars [24] and [34]-[35].
3. A claim by disappointed beneficiaries was also unsuccessful in Vagg v McPhee (2013) 85 NSWLR 154. Again, the testator and her husband owned a property as joint tenants. The will included a request that the property be sold upon her death and the proceeds paid to her children. The claim failed on two grounds. The first was that the provision in the will was said to be properly construed as a request, not a gift. The second was that the beneficiaries were seeking to achieve the same remedy that would have been available to the estate for a breach of duty owed by the solicitor to it. Carr-Glynn was distinguishable in that respect. Basten JA (with whom Ward JA agreed) noted at 158 [18], that it may be accepted that the court in Miller v Cooney would have followed Carr-Glynn had the circumstances been the same. His Honour did not expressly endorse the existence of the postulated duty but distinguished the case before him on the facts: see [15]-[20].
4. Tobias JA at 165 [53] said that there must be some doubt as to whether a solicitor can ever be under a duty to seek instruction (not otherwise given) to deal with assets in a certain way in order to benefit intended beneficiaries under a will. His Honour did not decide the point and distinguished Carr-Glynn on the facts.
5. It follows that there is a respectable line of authority which at least tends to support the proposition that within the duty of care to ensure the testator's wishes are given proper effect, that duty extends to advice about severance of joint tenancies. In the event that joint tenancies are not severed, then the testator's interest will be lost to the intended beneficiary. If the testator and the intended beneficiary of the testator's interest hold the property as tenants in common, and if there is a family member who might have a claim under family provision legislation, there is a foreseeable risk that the beneficiary's entitlements might be diminished by a successful claim, unless a joint tenancy is created or a gift is made before death.
6. I would add a reference to the New Zealand case of Woods v Legal Complaints Review Officer [2013] NZHC 674 which, as its name suggests, was concerned with disciplinary proceedings and unsatisfactory professional conduct, rather than the law of negligence. However, given the facts, it is of some relevance. A terminally ill woman went to a solicitor to make a will. The major asset was the woman's interest in a house which she owned together with her husband. The client told the solicitor that the house was owned "jointly" or possibly registered in the husband's name. If a joint tenancy as suggested and, as expected, she predeceased her husband, he would receive her share. The client told the solicitor that she did not want the title checked, and it was not checked. The will which was drafted provided that the residue of the estate went to the couple's son.
7. After the client's death, it was discovered that the house was owned by the couple as tenants in common, and so a half share went to the son. The husband entered into arrangements to buy out his son's entitlement, and made a complaint that the solicitor had failed to check the ownership position before the will was executed, or to counsel his wife on the consequences of the assumed ownership position being incorrect.
8. The Standards Committee of the New Zealand Law Society simply determined to take no action. The complainant sought a review by the Legal Complaints Review Officer who found that the solicitor's conduct fell short of the standard of competence and diligence that a member of the public would be entitled to expect from a reasonably competent lawyer, and that it was conduct which would be regarded by lawyers of good standing as being unacceptable. In the High Court, Kos J dismissed an appeal by the solicitor. His Honour considered the existence and extent of a solicitor's duty to an identified beneficiary, which discussion included a reference to Carr-Glynn v Frearsons.
9. At par [63], his Honour held that, given that the duties owed by the solicitor ran beyond her immediate client, the omission to ascertain the titular position was conduct falling short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent lawyer. The clear corollary of the finding is that the solicitor ought to have checked so as to be able to give advice to the testator about what could be done to rectify the situation if the testator did not hold her interest as a joint tenant.
10. In this case, the trial judge heard evidence from a solicitor, Jeffrey Park, who was called by the appellant. As to that evidence his Honour said:

"22 ... He opined that in this case, if the solicitor did not know of the daughter, 'then he would have to be asking questions about the will maker's family'. In a written opinion, parts of which were tendered, he opined that a competent solicitor, knowing that the testator had an estranged daughter, that the properties were held as tenants in common, and that the testator wanted all his estate to go to the plaintiff, should have discussed with the testator the changing of the titles to joint tenancies and the consequence of the properties passing absolutely to the surviving joint tenant. He said that in the circumstances that would not be an uncommon discussion initiated by a competent solicitor.

1. In his oral evidence, he went on to express opinions to the following effect:
   • In the situation that existed in this case, there would be nothing wrong with the solicitor explaining to the testator that a court would consider that he had a moral obligation to provide for his daughter.
   • It would be open to the solicitor to advise as to the daughter's moral claim in relation to provision under the TFM Act.
   • He did not agree that the solicitor should advise the testator to make provision for his daughter.
   • The solicitor could tell the client that one option was to make the will he wanted, and to let a judge decide whether to make an order under the TFM Act.
   • The solicitor, if he was aware of the daughter's existence and knew nothing of her circumstances, would have to presume that there was the risk of a claim under the TFM Act, and a possibility that that claim would be successful.
   • In such circumstances he would never advise a client to exhaust his assets.
   • He would advise as to the options available to the client, so that the client could make an informed choice. One option would be to make provision for the testator's child in the will because of her moral claim.
   • A solicitor could recommend one option, but should explain all the options.
   • He sometimes advised clients not to give their assets away in haste, because they might live on for a long time.
   • If advising as to the creation of joint tenancies, he would advise as to the risk of the younger co-owner unexpectedly predeceasing the other, perhaps as the result of an accident."
2. His Honour said that he did not find Mr Park to be an impressive witness, but was unshaken as to these points, and there was no reason to doubt the correctness of his opinions, "so far as they go". His Honour said that it was important to draw a distinction between advice that a solicitor has a duty to give, and advice that a solicitor could give, or might commonly give. It seems to me that there is nothing at all controversial about Mr Park's evidence. The trial judge noted a number of texts and commentaries[1] in which it was stated a testator's solicitor ought to take instructions about children or family members not to benefit, why they are not to benefit, and provide advice about the existence and effect of family provision laws. In my view, it would be routine for solicitors to give advice about such matters, and what steps may be taken to minimise the chance of a successful claim, if the testator persisted with the wish to make no provision.
3. It is no doubt such advice which gives rise to testamentary letters of explanation or explanations contained within a will itself as to the reasons for making little or no provision for specified family members. The trial judge noted this practice, and observed that the significance of such explanations had been considered by the High Court in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134. Of course, the question is, as his Honour noted, whether sensible and prudent practice in this respect translates into a duty of care.
4. In Doolan v Renkon Pty Ltd (2011) 21 Tas R 156, the Full Court considered, but left open, the question of the existence of a "penumbral duty of care"; that is, a duty of care in tort beyond that which is created by the contract of retainer: 166-167 [30]-[34]. Of interest is that its existence was confirmed in Miller v Cooney (above), following Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642. See also AJH Lawyers Pty Ltd v Hamo [2010] VSCA 222, but compare Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1 and David v David [2009] NSWCA 8 in which Allsop P, with whom Hodgson J and Handley AJA agreed, said at [76] that a penumbral duty was doubtful. His Honour continued:

"If, however, the solicitor during the execution of his or her retainer learns of facts which put him or her on notice that the client's interests are endangered or at risk unless further steps beyond the limits of the retainer are carried out, depending on the circumstances, the solicitor may be obliged to speak in order to bring to the attention of the client the aspect of concern and to advise of the need for further advice either from the solicitor or from a third party."

1. Additionally, the court in Doolan at 167 [36] observed that the scope of the duty arising under the retainer, may depend on the nature of the client. I do not think it matters to the outcome of this case which way the issue of a penumbral duty is resolved. I tend to the view that taking instructions about and providing advice along the lines Mr Park outlined, and which are summarised above, fall within the general retainer of a testator's solicitor. If I am wrong about that, then such instructions and advice ought to be sought and given as soon as a solicitor is on notice that there is a person for whom no provision has been made, and who may have a claim under the legislation. The question as to the existence of such people ought to be asked.
2. In this case, even ignoring imputed knowledge of Ms Doddridge, my view is that the solicitor was under a duty to enquire about the existence of family for whom no provision had been made, to advise of the possibility of claims under the Act, and, as a necessary concomitant to that, advise as to what steps may be available to deal with assets before the testator's death in a way which would better fulfil the testator's intentions.
3. It is unrealistic and unreasonable to suggest that the duty to advise as to available measures would only arise if a testator were to ask the specific question. In such circumstances it would be artificial to confine the scope of the retainer to the client's express instructions. At the same time I accept that, as advanced by the respondents, proper advice would be wide ranging. As acknowledged by Mr Park, the solicitor called by the appellant, advice would include a discussion about moral obligations in light of the operation of the Act and the possible consequences of doing nothing, as well as what steps might be taken to put assets out of the reach of such a claim. The client's choice should be a fully informed one. The outcomes may be quite different, depending on what, if anything, is done by the testator.
4. The trial judge accepted that there was a duty to enquire as to the existence of family members who could make a claim under the Act with a view to the reasons for making no provision possibly being included in the will, and that if an enquiry had been made in this case, the solicitor's duty was to advise that if the appellant was agreeable, joint tenancies could be created. In my view the duty is not so limited or segmented, and it was unhelpful to describe the postulated duty in the terms his Honour did; that is, a duty to give advice as to the depletion of the testator's estate.
5. I would hold that the solicitor's duty to give proper effect to the testator's intentions extends, as contended for by the appellant, to enquiries and advice about the possibility and ramifications of claims under the Act, and includes the provision of advice about, amongst other things, what dealings with presently held assets might be appropriate. I do not believe that this imposes any undue burdens on practitioners. Supported by the evidence in this case, I think it would be common practice. I would also think that many practitioners explain to clients that until death a will has no effect, and that the client is free to deal with his or her assets as they see fit.
6. The respondents submit that public policy stands in the way of acceptance of a duty, the content of which includes the need for advice about putting assets out of reach in order to thwart or minimise the chance of a claim under the Act. The trial judge resolved that issue against the respondents by reference to Barns v Barns [2001] SASC 303; (2001) 80 SASR 331; on appeal Barns v Barns (2003) 214 CLR 169. That case involved a husband and wife who agreed by deed with their son and with each other that they would make wills in a particular form, and that neither of them would revoke the will without the written consent of the other parties. By each will the son was appointed as executor and trustee and devised the whole of the estate to him on trust for the surviving spouse, or, if there was no surviving spouse, to the son. The husband died and his wife survived. There was a daughter who applied for provision out of her father's estate. The issue was the effect of the deed and whether the father's assets formed part of his estate for the purpose of the family provision legislation.
7. Gleeson CJ said at 184 [33]:

"... Because the [family provision legislation] imposed a restriction on freedom of testamentary disposition, a promise to make a testamentary disposition was subject to the potential operation of that legislative restriction. The effect of the legislation could have been avoided by a disposition inter vivos so that the deceased died with no estate; that is inherent in the scheme of the legislation. But the effect of the legislative restriction on freedom of testamentary disposition cannot be avoided by a promise to make a certain disposition."

1. Later, at 185 [38], when dealing specifically with the question of public policy, his Honour said:

"If the deceased had divested himself of all his assets before he died, then there would have been no estate within the meaning of [the section enabling provision to be made out of an estate]. In a colloquial sense, that might be described as defeating the operation of the Act; but in a legal sense that would simply produce a state of affairs upon which the Act would operate according to its terms. Unlike some corresponding legislation, the Act does not provide for a notional estate. The legislative purpose does not extend beyond dealing with a deceased's estate. A transaction which produces the consequence that a deceased person has no estate means that there is nothing that falls within the legislative scheme."

1. In par [29] of his reasons in this case, the trial judge said:

"The Full Court [of the Supreme Court of South Australia] held that it was not contrary to public policy for parties to enter into a deed that had the effect of disentitling a person from making a claim under a TFM statute. Nothing in the High Court judgments is inconsistent with that proposition, nor is that proposition plainly wrong. I think it must follow that there is no public policy reason why a testator's solicitor should not owe a testator, or even a beneficiary, a duty, when appropriate, to advise as to steps that may be taken to frustrate a TFM claim by depleting or extinguishing the testator's estate."

1. I respectfully agree. There is nothing in point of principle militating against the particular duty under consideration being owed to the testator. It has been held by the New Zealand Supreme Court that there is no duty of care owed by the solicitor to a person who the will-maker had deliberately refused to nominate as a beneficiary: Sutherland v Public Trustee (1992) 2 NZLR 536, cited with approval by Gummow J in Hill v Van Erp at 237.
2. I turn to the question of the duty of care to the appellant as beneficiary. In Hill v Van Erp, that the duty to the beneficiary was not inconsistent with the duty to the testator was something which underpinned its existence: Dawson J at 187, Gaudron J at 236. There must be a coincidence of interests: Hill v Van Erp per Brennan CJ at 167, Gummow J at 233. The primary obligation is to the client. A duty to a third party may coexist with, but cannot override, that to the client to whom the primary duty is owed: Queensland Art Gallery Board of Trustees v Henderson Trout (above) per Thomas JA at [40]. Any duty owed to a beneficiary cannot conflict with that owed to the testator: Thompson v Canik [1998] FamCA 80; (1998) 145 FLR 438 and generally Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [55]. The scope of the duty to the beneficiary postulated by the appellant in this case is consistent and coextensive with that owed to the testator. That is demonstrated by Carr-Glyn, Smeaton v Pattison, and the observations in Miller v Cooney and Vagg v McPhee.
3. The justices of the High Court in Hill v Van Erp were not of the one mind in relation to the factors which determined the existence of the duty to the beneficiary. Presently, to test whether a duty of care exists in a novel situation, the approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the alleged tortfeasor, by reference to the salient features or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 per Allsop P (with whom Simpson J agreed) at 676 [102]. See also King v Philcox [2015] HCA 19 per Nettle J at [80]. A list of 17 salient features was set out by Allsop P in Caltex Refineries at 676 [103].
4. At par [104] Allsop P warned that the list should not be seen as exhaustive, but as providing "a non-exhaustive universe of conditions of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content". At 690 [172], Basten JA said that the multifactorial approach should not be treated as a shopping list, all the items of which must have application in a particular case, "Rather, it provides a list of considerations which should be considered, as potentially relevant, depending on the kind of case ... Further, it is necessary to distinguish between those considerations which are essentially factual, those which require value judgments and those which may require the application of legal policy".
5. Those features that were mentioned in argument in this case or which should otherwise be noted are:
   • the foreseeability of harm;
   • the degree and nature of control able to be exercised by the defendant to avoid harm;
   • the degree of vulnerability of the plaintiff to harm from the defendant's conduct;
   • any assumption of responsibility by the defendant;
   • the proximity or nearness in a physical, temporal or relational sense;
   • the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
   • actual or constructive knowledge by the defendant that the conduct will cause harm to the plaintiff;
   • any potential indeterminacy of liability;
   • the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
   • the existence of conflicting duties arising from other principles of law or statute;
   • consistency with the terms, scope and purpose of any statute relevant to the existence of the duty;
   • the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
6. The existence and nature of many of these factors which would operate in the appellant's favour is self-evident. Questions of conflicting duties, consistency in statutory purposes, and certainty in the structure of the law have, I think, been adequately covered in the discussion about public policy. The indeterminacy principle of policy is one which does not operate as a control in this case. The identity of the person to whom the duty was owed was known before the negligent act. That will be so in similar cases. The likely number of claims and their nature can be reasonably calculated. Indeterminacy of time does not arise. See Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 per Gaudron J at 222 [32], Gummow J at 355 [206], and in particular, McHugh J at 212-222 [107]-[111].
7. In my view, the "extended" duty owed to the testator was one also owed to the appellant. I observe that a clear indication of the parameters of a solicitor's duty to a beneficiary in relation to dealing in assets before death is provided by Clarke v Bruce Lance & Co (a firm) [1988] 1 All ER 364. The Court of Appeal held that a testator's solicitor owed no duty of care to a beneficiary under the will when acting for the testator in a subsequent transaction which adversely affected the value of an asset which formed part of the beneficiary's potential interest under the will. The case was decided on the basis of a lack of a sufficient degree of proximity, although I have little doubt that this case would be decided in the same way applying the current Australian approach.

1. In this case, it is accepted that the solicitor said nothing and gave no relevant advice. Section 22 of the Civil Liability Act 2002 provides that a professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. The respondents did not seek to rely on this provision, at least in an express or meaningful way. Applying the general principles as set out in s 11 of the same Act, I am satisfied that a breach of duty is made out. That leads to consideration of the issues of causation and of loss suffered.

1. The appellant's claim before the trial judge was that the breach caused the loss made up of the order made under the Act and the costs paid to the plaintiff, together with the costs of the estate. As I have noted, the trial judge determined the action adversely to the appellant on the issue of causation, without finding it necessary to determine questions of duty and breach. I repeat that his Honour said that he was not satisfied that a conversation about the testator's daughter and a possible claim under the Act, would have triggered an enquiry by the testator about ways of protecting the appellant's position. Perhaps more relevantly, he concluded that he was not satisfied that, had the solicitor discharged his duty, the testator would have joined with the appellant in creating joint tenancies or taken any other steps to frustrate a possible claim under the Act.
2. The appellant challenged these conclusions on the basis of a failure to give adequate and proper reasons. Assuming success, the appellant invites this Court to draw the appropriate inferences and to make findings in his favour; that is, that had there been no breach the testator would have joined with the appellant in creating joint tenancies or transferred his half interest in the properties to the appellant. On that basis this Court is asked to enter judgment for the full amount claimed. The appellant puts an alternative approach, and one which was not raised in the trial. Before the trial judge, the case was put as one of damages for a loss of opportunity, but without reference to possibilities or chances; the appellant sought the total loss claimed as having been established on the balance of probabilities. The alternative course now raised is that the damage suffered should be assessed by reference to the value of the lost opportunity, and hence to lesser degrees of probability.
3. In Molinara v Perre Bros Lock 4 Pty Ltd (2014) 121 SASR 61, Kourakis CJ (with whom Nicholson and Parker JJ agreed on this point) said at 73 [48] that there is no principle which limits the loss which a plaintiff can claim with respect to a future, or hypothetical past, event to a loss of chance. Damages for loss of a chance are available as an alternative when the financial loss itself cannot be proved on the balance of probabilities, but only if the loss of the chance in itself has a value. I agree that the appellant's case was always about a loss of opportunity, but I do not agree that it was always about the value of that loss being assessed on all available bases. The appellant chose the path of attempting to establish the entirety of the loss as having been caused by the respondents' negligence; that is, of establishing that, but for the respondents' negligence, joint tenancies would have been created or the testator would have transferred his interests to the appellant so that the appellant suffered no loss. I will come back to what consequences that may have in this case, but on whatever basis the claim for damages is put, the appellant needs to properly overcome the causation issue as determined by the trial judge.
4. There were two factual questions which the trial judge dealt with in the context of causation. The first one does not now need to be resolved because of the scope of the duty breached. That the solicitor ought to have provided advice about the options available in relation to provision for the testator's daughter, means that the value of the opportunity lost does not include a consideration of whether the testator would have made an enquiry about ways of protecting the appellant's position. The second question of what the testator may have done in response to the advice would be part of any assessment process. Whether or not the appellant would have joined in the creation of joint tenancies is within that issue.
5. I accept that the trial judge expressed himself in terms of the appellant failing to meet the standard of proof, rather than make a positive finding, and that such a failure on an issue does not establish the contrary. Nonetheless, it is implicit that the trial judge took the view that relevant action on the part of the testator was not at all likely or was the lesser of the probabilities.
6. The principles relating to the adequacy of reasons are well established. They are discussed in such cases as Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Kirby P at 257-259, Mahoney JA at 266-271, McHugh J at 277-281, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 per Meagher JA at 442; Police Federation of Australia v Nixon [2011] FCAFC 161 at [66]- [67] and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA at 64-65. In this State see Phillips v Arnold [2009] TASSC 43; (2009) 19 Tas R 21 and Robinson v Chatters [2010] TASSC 66 at [70]- [77].
7. The primary issue is whether reasons are sufficient in relation to the function to be served in the particular case. Fundamentally, reasons should contain enough detail to enable an appeal court to effectively discharge its function, and for the parties to understand why they won or lost. There is an obligation to reveal reasoning for deciding points critical to the issues between the parties. In Australian Securities Commission v Schreuder [1994] TASSC 127, Underwood J (as he then was) said at [21] that one of the requirements was to "where appropriate, state what inferences [were drawn] from the facts found and where necessary, the basis for drawing such inferences".
8. In my respectful view the trial judge did not fulfil the obligations created by this case. His Honour dismissed the appellant's action solely on the basis of factual causation. There was no evidence called by either party as to the nature and temperament of the testator in terms of whether he was someone who made considered and rational decisions, or was quite irrational and contrary. However, the evidence made it plain that he was an elderly man and terminally ill. There was unchallenged evidence of his long and close relationship with the appellant and of his clear intention to benefit the appellant as much as possible. In my view, the reasoning process underlying the express failure to be satisfied that the testator would have taken relevant action, should have been exposed. To the relevant extent, ground 3 is made out.
9. It follows from what I have said that the appellant should succeed in obtaining a judgment for damages to be assessed, if this Court finds that he has, as a result of the respondents' negligence, suffered a loss of something which has more than a negligible value. I agree that this is not a case in which proof of loss is dependent upon proof that an opportunity would have been taken up, as discussed in, for instance, Sellars v Adelaide Petroleum [1994] HCA 4; (1994) 179 CLR 332 at 361, Price Higgins and Fidge v Drysdale [1996] VicRp 22; [1996] 1 VR 346 at 355 and G W Sinclair & Co Pty Ltd v Cocks [2001] VSCA 47 at [29]. The appellant's loss of opportunity occurred when the testator was not given the chance to consider what steps, if any, he would take in anticipation of a claim under the Act. In my view, the appellant's loss of opportunity is correctly described as the loss of an opportunity to avoid a detriment. That is a relevant loss: Sellars v Adelaide Petroleum at 332; Unit 11 Pty Ltd v Sharpe Partners Pty Ltd [2006] FCAFC 43; (2006) 150 FCR 405 at [34]; Bak v Glenleigh Homes [2006] NSWCA 10.
10. I digress to observe that so characterised, it becomes even clearer if it were necessary to make it so, that the loss to the appellant is of a completely different character to any loss which may be suffered by the estate. As the trial judge pointed out in par [16] of his reasons, if the breach of duty resulted in the testator taking a course of action that he would not otherwise have taken, the result must be that the estate is larger than it otherwise would have been, because it still includes half interests in the relevant properties.
11. Section 13 of the Civil Liability Act provides that a prerequisite for a decision that a breach caused particular harm is that the breach was a necessary element of the occurrence of the harm. That must be so in this case, and the respondents did not argue otherwise in the event that matters reached this point. I have regard to the circumstances of the testator at the time as I have set them out above. I am satisfied that there is more than a negligible chance that the testator would have taken action to circumvent a possible claim under the Act, the most obvious means being the two alternatives relied on by the appellant. The creation of joint tenancies would have required action on the appellant's part. Whether he would have joined in that exercise is a matter to be decided subjectively having regard to the all of the relevant circumstances: s 13(3) of the Civil Liability Act. The inference that he would have done so, when informed of the reason, is one reasonably and readily drawn. Accordingly, there was more than a negligible chance that the appellant would have avoided the detriment had the respondents not been negligent. The chance had some value and the appellant should succeed in the action.
12. In the ordinary course, the next question would be whether the appellant has satisfied this Court that it is more likely than not that the testator would have acted to create joint tenancies or transferred his interests to the appellant before death. The effect of the judgments of my colleagues is that the assessment of damages is for the value of the lost opportunity. As I will go on to say, I agree with that outcome. Included in such assessment is the question of the prospect of whether the testator would have taken up any of the suggested means if properly advised. I do not see that the appellant would be condemned to an assessment on the basis of a 49 per cent chance or less that the testator would have taken action. It is therefore inappropriate to embark on a consideration of the question, or to express any view about it.
13. I would agree that the appellant should be permitted to have his damages assessed on the alternative basis. Subject to what I said earlier, I generally agree with Tennent J. I do not think that the trial judge was obliged to have considered the alternative, but I am satisfied that the appellant should be allowed to pursue it. The case of Barnes v Forty Two International Pty Ltd [2014] FCAFC 152, relied on by the respondents, is distinguishable. The causes of action in that case were breach of an implied term of an agreement, and misleading or deceptive conduct. The damages claimed were said to be directly and immediately caused by that conduct. Loss of opportunity did not underpin the claims made in that case, unlike the present one. The loss of opportunity on which the relevant respondent succeeded at first instance in Barnes was described by Beach J at [78] as inconsistent with the pleading as to damages. It is not appropriate or realistically possible for this Court to undertake the assessment. A hearing at first instance will accommodate procedural fairness concerns.

1. It is for those reasons I would make the orders I set out at the beginning. I will explain why I take the view that the assessment should not go back to the trial judge. Of course, no question of an assessment of damages for the value of a loss of opportunity arose in the trial. I accept that there are authoritative statements to the effect that the power to direct a remittal to a different judicial officer is to be used sparingly, and only when it appears that it is appropriate in the interests of justice: Seltsam Pty Ltd v Gahleb [2005] NSWCA 208, per Mason P at [12]; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 at [71]- [84]. Often the correct approach is to leave it to the original decision-maker and the parties to determine whether it is appropriate that the remitted matter be dealt with by the same court or tribunal.
2. However the authorities make it clear that it will be appropriate to remit a matter to a differently constituted court or tribunal where, for instance, findings of fact have been made which may need to be revisited, or where there is a reasonable likelihood that the judicial officer will be perceived to have prejudged the issue to be remitted. See Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497 per Downes J at [30]-[34], Tracey and Flick JJ at [90]-[94], Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 per Young JA at 28 [121], and Northern NSWFM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42-43.
3. The issue of what the testator would have done if properly advised was a causation issue before the trial judge. It is now an assessment issue. I recognise that the parties may seek to call further evidence. But the trial judge having expressed a view about the issue, I think the interests of justice require the assessment to be carried by a different judge. I would order that the assessment of damages be remitted for determination by a single judge other than Blow CJ.

1. On 24 November 2014, the learned Chief Justice entered judgment for the respondents in an action for damages brought against them for negligence by the appellant. The appellant contends, by his notice of appeal, that judgment should have been entered for him. The respondents, not unnaturally, seek to uphold the judgment in their favour, on the basis of the reasons given by Blow CJ, and in addition they contend that the appellant's claim should have failed for a reason advanced by the respondents below, but rejected by his Honour.

1. The following summary of the facts is taken from Blow CJ's reasons for judgment in the decision below, Calvert v Badenach [2014] TASSC 61 at [1]- [5]:

"1 This action raises questions as to the possible duties of a solicitor, when preparing a will for a client, to take instructions and give advice with a view to the client circumventing the provisions of the Testator's Family Maintenance Act 1912 ('the TFM Act').

2 Robert Badenach, the first defendant, is a legal practitioner. I will refer to him as 'the solicitor'. At all material times he was a partner in a legal firm named Murdoch Clarke Solicitors. That firm is the second defendant. In March 2009 he took instructions from a client of his firm named Jeffrey Doddridge for the preparation of a will. The will was subsequently prepared, and was executed by the testator on 26 March 2009. By that will the testator left the whole of his estate to the plaintiff, Roger Calvert, whom he treated like a son. The testator died later in 2009 without revoking that will. He had a daughter. He had made no provision for her in his will. She made an application under the TFM Act. Her application proceeded to trial. Evans J ordered that $200,000 be paid to her from the estate of her deceased father: Doddridge v Badenach [2011] TASSC 34. His Honour also ordered that the costs of all parties be paid out of the estate on a solicitor and client basis.

3 The testator could have arranged his affairs during his lifetime so that the assets of the estate available to satisfy a claim under the TFM Act were worth far less than $200,000. His principal assets were his interests in two properties on the Tasman Peninsula. He and the plaintiff owned each property as tenants in common in equal shares. If he had made arrangements for the plaintiff and himself to hold both properties as joint tenants then, when he predeceased the plaintiff, those properties would have ceased to form part of his estate. There are no 'notional estate' provisions in the TFM Act. Similarly, he could have given or transferred other assets to the plaintiff before he died, placing them out of reach for the purposes of the TFM Act. He was terminally ill when he gave the solicitor instructions for his last will, and the solicitor knew that.

4 The plaintiff contends that the solicitor and his firm were negligent in that they (a) failed to advise the testator of the risk of the daughter making a claim under the TFM Act, and (b) failed to advise him of the options available for him to arrange his affairs so as to reduce or extinguish his estate, so as to avoid or partly avoid any claim which could disturb his testamentary wishes. The defendants contend that they owed no duties to provide such advice.

5 There is no evidence that the solicitor knew of the daughter's existence. The testator was 77 years old when he made his last will. The plaintiff was not a relative, but the son of a woman who had been the testator's partner for many years until her death. It was obviously foreseeable that, at some stage during his lifetime, the testator might have fathered one or more children; that a claim by a child of his could be made under the TFM Act; and that such a claim might succeed. The solicitor's firm had made two wills for the testator in the past - in May 1984 and October 1984. The May 1984 will contained information that the daughter existed, and a provision for a legacy of $10,000 for her, but she was neither mentioned nor provided for in the October 1984 will. The evidence suggests that both 1984 wills were still held by the solicitor's firm, and that he could have discovered the daughter's existence by looking at those earlier wills. More significantly, he could have discovered the daughter's existence if he had asked the testator whether he had any children."

1. Blow CJ reviewed a number of authorities dealing with the scope of a testator's solicitor's duty of care in negligence as owed to an intended beneficiary under the testator's will. He decided that, as far as he was aware, a court has not previously had to decide whether a testator's solicitor's duty to a beneficiary extends so far as to require the giving of advice as to the depletion of the testator's estate.
2. Whether or not, with respect, that was the correct formulation of the duty of care contended in the case before him, Blow CJ concluded that the first respondent owed the testator a duty to take instructions in relation to a possible claim under the Testator's Family Maintenance Act 1912 ("the TFM Act"), and that he breached that duty. However, his Honour was not satisfied on the balance of probabilities that, had the first respondent discharged his duty to the testator, the testator would have joined with the appellant in creating joint tenancies in place of the tenancies in common, or taken any other steps to deplete his estate and frustrate a possible claim under the TFM Act.
3. Blow CJ held therefore that he did not need to decide whether the first respondent owed the appellant a duty to advise the testator as to the risk of a claim being made under the TFM Act, or the steps that could be taken to reduce or extinguish his estate in order to avoid the consequences of such a claim.
4. Earlier in his reasons for judgment at [25] Blow CJ exposed his reasoning for his failure to be satisfied that, had the first respondent discharged his duty to the testator, the testator would have taken action to minimise his estate available to satisfy any claim under the TFM Act. His Honour said:

"25 I infer that, if the solicitor had enquired about family members as he should have done, then the testator would have disclosed the existence of his daughter, and the solicitor would have advised as to the risk of successful proceedings under the TFM Act. The testator might or might not then have enquired whether there was anything that could be done to protect the plaintiff against that risk. Any such enquiry would have widened the scope of the solicitor's retainer. If such an enquiry had been made, it would have been the solicitor's duty to advise the testator that, if the plaintiff was agreeable, it could be arranged that he and the plaintiff could hold their two properties as joint tenants, with the consequence that, provided the testator died first, they would pass to the plaintiff and not be available to satisfy a claim under the TFM Act. But I am not satisfied on the balance of probabilities that a conversation about the daughter and a possible TFM claim by her would have triggered an enquiry by the testator about ways of protecting the plaintiff's position. And I am not satisfied that the solicitor owed the testator, let alone the plaintiff, a duty to provide advice about creating joint tenancies in the absence of such an enquiry."

1. A little later at [32] in dealing with a submission about the tax implications of the testator creating joint tenancies Blow CJ added to the exposition of his reasoning on the critical issue of causation as follows:

"32 If there had been a discussion between the solicitor and the testator as to the possible creation of joint tenancies, the taxation consequences should have been discussed. There is a possibility that the solicitor might not have been able to provide immediate tax advice. There is a possibility that the testator might not have wanted to spend money getting advice about possible tax consequences. In fact there are all sorts of possibilities. The testator might have wanted to defer making a will so that he could make enquiries about his daughter's financial circumstances. He might have known nothing about her financial position. A discussion might have prompted him to consider making financial provision for her in his will. Another possibility is that, having been advised of the risk of a successful claim under the TFM Act, he might have decided to leave his daughter nothing, to hope that she would not make a claim, and to leave it to the plaintiff to negotiate a sensible settlement, or to require her to proceed to trial, if she did. One can only speculate as to what might have been said, and what might have been decided."

1. The notice of appeal raises six grounds. They are as follows:

"1 The learned trial judged erred in law and in fact in failing to find that the defendant solicitors owed and breached a duty of care to the plaintiff.

1. The learned trial judge erred in fact and in law in failing to consider, as he ought to have, the plaintiff's claim as one for the loss of an opportunity, and failed to assess the chance of the testator acting as the plaintiff contended, had the solicitors not breached their duty.
2. The learned trial judge failed to give adequate and proper reasons for his conclusions that:

1. he was not satisfied on the balance of probabilities that a conversation about the testator's daughter and a possible TFM claim would have triggered an enquiry by the testator about ways of protecting the plaintiff's position (Reasons [25]); 2. he was not satisfied that the solicitor owed the testator, let alone the plaintiff, a duty to provide advice about creating joint tenancies in the absence of such an enquiry (Reasons [25]);

1. he was not satisfied that had the solicitor discharged his duty to the testator, the testator would have joined with the plaintiff in creating joint tenancies in place of the tenancies in common, or taken any other steps to deplete his estate and frustrate a possible claim under the TFM Act (Reasons [33]).
2. Having found that the respondent solicitors owed a duty of care to the testator in the making of his will, and in making some enquiries as to the existence of his adult daughter, and in taking instructions in relation to a possible claim under the TFM Act, and that the solicitors breached that duty, the learned trial judge erred in failing to consider:
   1. whether the solicitors owed a duty of care to the plaintiff (Reasons [33], cf Reasons [6]);

b the content of that duty of care (Reasons [6]); and

c whether the solicitors had breached that duty of care.

1. The learned trial judge erred in failing to make any findings as to damages, in circumstances where the plaintiff's cause of action was for a loss of opportunity, and the action was not a matter to be decided solely on the balance of probabilities.
2. In so failing as asserted in grounds 3, 4 and 5 hereof, the learned trial judge failed to take proper account of the failure of the first defendant to give evidence, and the inferences that could properly be drawn from such failure."

1. The notice of appeal raises a number of issues which are canvassed in the appellant's written submissions by his counsel Mr Wilson QC.
2. They are first, whether Blow CJ gave sufficient reasons for his failure to infer that had the testator been advised of the possibility of an application under the TFM Act the testator would have inquired about ways of protecting the respondents' position. Second, whether his Honour ought not, aided by a Jones v Dunkel inference, to have concluded the opposite to that which he did. And third, whether his Honour ought not, in any event to have found that the respondents owed a relevant duty of care to the appellant and to have assessed the appellant's damages on a "loss of chance" basis.

1. To my mind, there can be no doubt that having been instructed by the testator to prepare his will, the scope of the respondents' retainer extended to the first respondent not only eliciting information as to the existence of any circumstances that might give rise to a claim against the testator's estate under the TFM Act, but also to the provision of basal advice as to any means that existed by which the testator might ensure that his testamentary wishes were not defeated. After all, the reason the testator consulted the first respondent was to have his testamentary wishes implemented and, as far as was lawful and reasonable, to ensure that those wishes were not defeated.
2. There is some doubt as to the existence of a penumbral duty of care owed in tort by a solicitor to a client to provide unsought advice about a point that was critical to the success of the proposed transaction, but which may not be embraced by the contractual duty of care arising under the solicitor's retainer; see the cases discussed in Doolan v Renkon Pty Ltd (2011) 21 Tas R 156 at [30]-[33].
3. The contractual duty of care may depend, however, on the nature of the client and his or her need for advice.
4. In Carradine Properties Ltd v D J Freeman & Co (1982) 126 SJ 157, Donaldson LJ said:

" ... the precise scope of that duty will depend inter alia upon the extent to which the client appears to need advice. An inexperienced client will need and be entitled to expect a solicitor to take a much broader view of the scope of his retainer and his duties than will be the case with an experienced client."

1. This case was discussed, along with others containing similar observations, in Doolan v Renkon Pty Ltd (above) at [34]-[39]. That case involved a client seeking advice from her solicitor as to some specific obligations under a lease in circumstances where the solicitor was possessed of information that may have enabled her to avoid all of her contractual obligations to the landlord. The Full Court in a joint judgment said at [43]-[44]:

"43 It is clear from the evidence of Mr Doolan and Ms Rees that Mr Doolan made no attempt to clarify or limit the scope of the matters upon which he was being asked to advise. As nothing was done to clarify or limit the scope of the retainer, it was his duty to provide thorough advice in response to the questions asked by Ms Rees. In order to deal thoroughly with her request for advice, he could have, within the scope of his firm's retainer, advised as to the following points:

• The possibility that the notices were signed by a person who was not in fact a delegate of the Commissioner for Licensing.
• The right to appeal to the Licensing Board under the Liquor and Accommodation Act, s211(f), and the merits or otherwise of such an appeal.
• Whether or not the lease had been registered.
• The fact that both Ambrose and Renkon were bound by the lease, even if it was not registered.
• The possibility that the leased property had not been exempted from the operation of the restrictive covenant, that that might still be the position on 1 July 1991, and that it might therefore be possible to avoid having to comply with the licensing notices if Renkon wished to surrender the lease on or after that date.

44 In our view, the scope of the appellants' retainer was such that Mr Doolan was obliged to give advice as to the last of these points. As no such advice was given, there was a breach of the appellants' contractual duty of care. It follows that there was also a breach of the appellants' duty of care in tort. It is therefore not necessary to consider any question as to the existence of a 'penumbral' duty of care in tort, or as to a contractual duty to answer an unasked question."

1. In the present case the respondents' client was an elderly and terminally ill man, and there is no suggestion other than that he was fully reliant upon the first respondent to implement his testamentary wishes as fully as possible. In those circumstances, absent some clarification or limitation of the scope of the retainer, it is my view that the first respondent's duty extended to not only asking questions that might elicit the existence of a potential claimant under the TFM Act, but also to providing, basally at least, advice that possible mechanisms existed to minimise the estate available to meet any claim made.
2. That being within the respondents' contractual duty of care, it was also within their duty of care in tort. That being so, there is no reason to question the content of a co-extensive duty owed to the appellant. Certainly the appellant was not in a contractual relationship with the respondents but he was owed a duty of care in tort, as is well established by Hill v Van Erp (1997) 188 CLR 159, and it could not, in my view, be any lesser duty than that owed to the testator in tort.
3. With respect, it was unnecessary to formulate the postulated duty in the way that Blow CJ did, as one to provide advice to "circumvent the provisions of the TFM Act" or "advice as to the depletion of the estate". That is an impermissible conflation of the duty contended for with the omissions alleged to represent a breach of the relevant duty.
4. In CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at 418 [68], Hayne J said:

"Because the duty relied on in this Court was framed so specifically, it merged the separate inquiries about duty of care and breach of duty. The merger that resulted carried with it the vice of retrospective over-specificity of breach identified in Romeo v Conservation Commission (NT) [89] and in the diving cases of Vairy v Wyong Shire Council [90], Mulligan v Coffs Harbour City Council [91], and Roads and Traffic Authority (NSW) v Dederer [92]. The duty alleged was framed by reference to the particular breach that was alleged and thus by reference to the course of the events that had happened. Because the breach assigned was not framed prospectively the duty, too, was framed retrospectively, by too specific reference to what had happened. These are reasons enough to reject the formulation of duty advanced in argument in this Court."

1. To my mind the postulated duty in the present case was nothing more than one to take reasonable care to ensure that, as far as possible, the testator's testamentary wishes were carried into effect and not unnecessarily defeated.
2. The next question arising to my mind is whether Blow CJ erred in failing to be satisfied that, even if the first respondent had discharged his duty to the testator, the testator would have joined with the appellant in creating joint tenancies in the place of the tenancies in common, or would have taken any other steps to deplete his estate so as to frustrate any possible claim under the TFM Act.
3. The appellant argues that the more probable inference is that, had the first respondent alerted the testator to the potential consequences of any claim under the TFM Act, the testator would have acted differently and would have sought advice as to the options available to him and the action he could take.
4. The appellant submits that in this regard the failure of the first respondent to give evidence at trial assumes importance.
5. The appellant contends that the first respondent was the only person who could have given evidence about his conversation with the testator on the date he received instructions from the testator, and that he could also have given evidence about his dealings with the testator over a period of some 30 years. It is suggested that the first respondent could have given evidence as to whether the testator was a person who habitually acted on advice, or was strong-minded and rejected advice, or as to whether he was inquisitive or passive.
6. The appellant submits that, whilst the drawing of a Jones v Dunkel inference does not provide positive evidence, it does enable the Court when deciding whether to draw an inference as to what the testator would have done had he been given proper advice, to be more comfortable in drawing the inference that the testator would have made the inquiry, and acted differently.
7. I accept that in a case such as the present that this Court is in as good a position as the trial judge to decide the proper inference to be drawn from the facts but I see no error in the findings of fact by Blow CJ in this regard.
8. I would not, on the evidence before Blow CJ, even aided by a Jones v Dunkel assumption, be prepared to find that the testator, properly advised, would have taken any particular steps or any steps at all. I would certainly not be prepared to infer that the testator would have acted by ensuring the lifetime transfer of his two half interests in the properties to the appellant.
9. In my view, no judge, or jury for that matter, could, on the case as conducted below, have been satisfied on the balance of probabilities that as a result of the respondents' breach of duty the appellant was caused damage represented by the amount awarded to Ms Doddridge and the total legal costs involved in defending her claim under the TFM Act. The only damage that the appellant could realistically have proved that he suffered in the circumstances of this case is the loss of a better outcome under the testator's will. That chance itself is not in my view so low as to be regarded as speculative. Thus, as I will explain shortly, its loss is compensable.
10. Two things follow from what I have just observed. The first is that I find no paucity of reasoning on the part of Blow CJ in coming to the conclusion that he did. The second is that the appellant was not, on the evidence before Blow CJ, entitled to recover the actual losses as set out and described in the pleaded particulars of damages in his statement of claim in the action against the respondents.
11. The appellant submits however, that there is an alternative approach. That is, that the appellant is entitled, notwithstanding the view taken by Blow CJ, to have his damages assessed on the basis of the value of the chance that the appellant lost as a result of the first respondent's negligence. That chance being that the testator might, properly advised, have ensured that the two properties were or would be transferred to the appellant or might have taken some other steps to minimise any diminution of his estate as a result of a claim under the TFM Act.
12. The appellant's case was always a loss of chance case. It could never have been anything else. The evidence before Blow CJ could not establish that had the testator received proper advice he would have acted as advised. Blow CJ, again with respect, was correct when he listed the possible reactions of the testator to such advice. To suggest that the testator would have acted in a particular way is speculation or conjecture. However, the testator was not given proper advice, and, as a result, he was not given the opportunity to choose how he should proceed. As a result of that the appellant lost the chance of a better outcome under the will.
13. The appellant accepts that he did not advert to what he now says are the correct principles for assessing damages for the loss of a chance, although he says that his counsel at trial did refer on a number of occasions to the case being one for "the loss of opportunity". Those references are at best Delphic, however the assertions, such as they were, did not elicit any response from opposing counsel or from Blow CJ, to the effect that such was not a correct characterisation of the appellant's case. I note the appellant's counsel at trial said in her closing address, "In terms of the issue of causation the - in a case like this which is one of lost opportunity we say on a balance of probability would Mr Doddridge have taken up that option?"
14. The appellant's case was not pleaded as a loss of chance case either as to causation or as to damages. I will deal with the respondents' submission as to that later in these reasons.
15. For the moment however, I note that this is not a case where the loss of an opportunity could be said to have caused damage. This is a case where the loss of chance is the damage itself. In the former case a plaintiff must prove on the balance of probabilities, the ordinary civil standard, that it was the deprivation of the opportunity that was caused by the defendant's negligence. In the latter case, a plaintiff need only establish on the balance of probabilities that the chance existed. As I have already indicated, I am satisfied that it did.
16. For the former proposition see CES v Super Clinics (Australia) Pty Ltd (1995) 38 NSWLR 47 at [56E] and [56G], per Kirby ACJ.
17. As to the latter proposition, McLure J said in Olympic Holdings v Lochel [2004] WASC 61 [121]- [123]:

"121 A plaintiff is entitled to damages for loss of any foreseeable chance or opportunity of benefit that can be causally linked to the breach. Recovery extends to the loss of a chance which was not promised (as in this case) but which would nevertheless have been created by performance of the contract: Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 at 91 - 92, 102, 118 - 120; Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 349.

122 Damages for loss of a chance are recoverable if the loss is foreseeable as a probable result of the breach and are assessed by reference to the prospects of success. In this case the plaintiff's claim for the loss of a chance of earning a profit. A loss of a chance is compensable even if its realisation is unlikely, on the balance of probabilities. As stated by the High Court, unless the chance is so low as to be regarded as speculative - say less than one per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages: Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

123 However, before reaching that stage it is necessary for the plaintiff to establish, on the balance of probabilities, the existence of the chance. There is authority to the effect that where realisation of the chance depends on a plaintiff's own decision to take it up, the plaintiffs must also establish on the balance of probabilities that it would have been taken up: G W Sinclair & Co Pty Ltd v Cocks [2001] VSCA 47." (Emphasis added.)

1. That formulation of the relevant principles has been cited with apparent approval by this Court in Doolan v Renkon Pty Ltd (above), at [61].
2. The position is the same whether the claim is in contract or in tort. In Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332, Mason CJ, Dawson, Toohey and Gaudron JJ said, at 355:

"Notwithstanding the observations of this Court in Norwest, we consider that acceptance of the principle enunciated in Malec requires that damages for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s 52(1), should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued.

On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage would be sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities."

1. Geoff Masel, in an article entitled "Damages in Tort for Loss of Chance" (1995) 3 Torts Law Journal 1, explained that "... the causation issue was that of establishing that the breach of duty caused a loss of chance. The evaluation issue evaluated that chance and awarded compensation even if there was a less than 50% chance of the advantage being gained".
2. Thus, in a case such as the present, it matters not, in my view, that the appellant's claim for damages was not pleaded or particularised as a claim for damages for loss of chance, or that the correct principles for assessing damage were not fully or properly articulated at trial. Correctly understood, it was always a loss of chance case and could never have been anything other than a loss of chance case.
3. I am more than satisfied on the balance of probabilities that the respondents' negligence caused the appellant a loss of a chance that the testator might have taken steps to protect the two properties from the reach of any claim under the TFM Act.
4. In a case such as the present there is no requirement to show that a plaintiff would have taken up the opportunity lost. This is not a case such as G W Sinclair & Co Pty Ltd v Cocks (above) where it was said that a second question was whether the plaintiffs would have accepted an offer if made, because only if the evidence could support such a conclusion could the plaintiffs have been properly found to have been deprived of the chance. The relevant chance in the present case is the appellant's chance of a better outcome under the will. The relevant chance is not the opportunity lost by the testator to consider what steps he might take, if any, had he received proper advice.
5. The only requirement in the present case is that the appellant proves on the balance of probabilities that his chance of a better outcome under the will actually existed. He did that by proving that there were means by which the properties could have been protected from any claim under the TFM Act, and by proving that the testator should have been, but was not made aware of, the existence of such means. The question of the prospect of whether the testator would have taken up any of those means if properly advised is one for assessment in evaluating the appellant's lost chance.
6. The loss of chance had value, far beyond negligible, and the appellant was entitled to have that loss assessed as his damage.
7. Kiefel J in Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 explained the process as follows:

"136 Different standards apply to proof of damage from those that are involved in the assessment of damages. Sellars v Adelaide Petroleum NL confirms that the general standard of proof is to be maintained with respect to the issue of causation and whether the plaintiff has suffered loss or damage [1994] HCA 4; (1994) 179 CLR 332 at 355 per Mason CJ, Dawson, Toohey and Gaudron JJ; at 367 per Brennan J. In relation to the assessment of damages, as was said in Malec v J C Hutton Pty Ltd, 'the hypothetical may be conjectured' [1990] HCA 20; (1990) 169 CLR 638 at 643 per Deane, Gaudron and McHugh JJ. The court may adjust its award to reflect the degree of probability of a loss eventuating. This follows from the requirement that the courts must do the best they can in estimating damages; mere difficulty in that regard is not permitted to render an award uncertain or impossible The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 at 83 per Mason CJ and Dawson J, citing Fink v Fink [1946] HCA 54; (1946) 74 CLR 127 at 143.

137 Thus in the case of the loss of a commercial opportunity, the plaintiff must first establish the fact of the loss, for example by reference to the fact that it had a commercial interest of value which is no longer available to be pursued because of the defendant's negligence. The damages assessed of that loss, the estimation of its value, reflect the chance, often expressed in a percentage, that the opportunity would have been pursued to a successful outcome. The award is proportionate in that sense." (Emphasis added.)

1. It will be obvious from what I have written that I am of the view that in the ordinary course of this case the appellant's action should have succeeded and his damages been assessed. For completeness I should say that as the appellant's damages were obviously not assessed at trial on the basis of a loss of chance, it is not appropriate that I should attempt to assess the value of the appellant's loss on the basis of the evidence and argument below which proceeded in disregard of the correct approach to damages.
2. The conclusion that I have reached is after a consideration and rejection of the careful submissions to the contrary of counsel for the respondents, Mr McElwaine SC. I will deal now with those submissions to the extent that I have not already.

1. In his written submissions Mr McElwaine notes the appellant contends error by Blow CJ in failing to consider and assess the appellant's claim as one "for the loss of an opportunity". He argues that the appellant did not plead a claim for damages for economic loss based on a lost opportunity, and did not particularise his claim for loss, other than for the entire detriment said to have been suffered by the negligence. He contends that the appellant is bound by the conduct of the case at trial. Specifically he argues that it is not now open for the appellant to contend that his claim was one for a lost opportunity, and he cites in support of that submission Barnes v Forty Two International Pty Ltd [2014] FCAFC 152 at [78]‐[84] per Beach J, Siopis and Flick JJ, concurring.
2. In that case Beach J said:

"80 His Honour at [527] said that '[t]here is nothing in the pleadings which is inconsistent with damages being assessed on the basis of a lost opportunity'. That was said in the context of the misleading or deceptive conduct case, which will be dealt with shortly; moreover, I would disagree with his Honour's observation in that context in any event. But in the context of the damages pleas in relation to the implied term case, this test of 'no inconsistency' is inapposite. A party is not permitted to run a case as it likes so long as there is no inconsistency with the expressly pleaded case. Rather, a party asserting a damages claim must properly plead and particularise its damages claim and the relevant heads of damage.

81 His Honour at [527] also said 'there was no requirement for the applicants to specify in their pleadings the precise basis upon which the damages should be assessed'. But here one is dealing with a situation where not even the head of damage of 'loss of opportunity' is even identified. Moreover, the expression 'the precise basis' is pregnant with possibilities. The relevant principle should rather be expressed in terms that are discussed below at [119] in addressing the relevant authorities."

1. I accept, with respect that those statements in the context of the claims in that case were entirely correct, but they were contextual and I apprehend no exposition of a rule of universal application in what was said by Beach J.
2. It will be obvious from what I have written already that I regard the appellant's case at trial as quite clearly one of loss of chance. I do not understand how counsel could have regarded it as otherwise. Notwithstanding that however, in the present context it is, in my view, also correct to say that there was no requirement for the appellant to specify in his pleadings the precise basis upon which the damages should be assessed. Moreover, in the present context I regard a test of "no inconsistency" as apposite, and there is nothing in the pleadings which is inconsistent with damages being assessed on the basis of a lost opportunity.
3. Mr McElwaine contends that the present case stands apart from the duty of care owed to a beneficiary as accepted in Hill v Van Erp (above). The ratio of that decision, he says, is that a retainer to draw a will, designed to confer a benefit of a named beneficiary, is a basis for an independent duty of care in tort owed by the solicitor to the beneficiary (assuming no conflict of interest) to ensure that a will is competently drawn, technically executed and valid on its face. He says that no subsequent decision in Australia has taken the duty further.
4. Mr McElwaine argues that the appellant's case depends upon acceptance of the novel proposition that the duty of care, limited by the retainer in this case, obliged the respondents to give advice to the testator "for the ultimate purpose of advantaging the appellant and disadvantaging Patrice Doddridge". Such duty he argues finds no support in any binding or persuasive authority.
5. Mr McElwaine then submits that, for a number of reasons, the duty of care asserted by the appellant is contrary to principle. The duty of care pleaded by the appellant in his statement of claim was a duty "to give effect to the deceased's testamentary wishes". That is the way in which I have characterised the duty thrown up by the case. That characterisation of the relevant duty was in preference to Blow CJ's formulation as one to provide advice to "circumvent the provisions of the TFM Act" or "advice as to the depletion of the estate".
6. I see nothing controversial in the basal duty pleaded by the appellant, once his claim is recognised as being one solely for damages for the loss of a chance and once it is divorced from the duty as characterised by the respondents, namely a duty to provide advice to implement actual measures to circumvent legislation, or to somehow improperly remove or reduce the rights of others. To my mind the duty postulated by the appellant does not offend principle, policy or the need for coherence of the law. Once these notions fall away, then I am unable to see any reason why the appellant's claim is not squarely embraced by the principle to be derived from Hill v Van Erp, as expressed for example at 167-168 by Brennan CJ and at 181-182 by Dawson J.
7. I should add in particular, as to the respondents' submission that the asserted duty intersects with the overriding policy of the TFM Act and offends coherence with the Act's statutory scheme, that I reject the argument, and respectfully adopt Blow CJ's analysis of Barns v Barns [2001] SASC 303; (2001) 80 SASR 331 at [26]-[28] of his Honour's reasons, and his conclusion at [29] that it must follow that there is no public policy reason why a testator's solicitor should not owe a testator, or even a beneficiary, a duty, when appropriate, to advise as to steps that may be taken to frustrate a TFM claim by depleting or extinguishing the testator's estate.
8. Finally, by way of contention, counsel for the respondents in his written submissions argued the following:

"8.1 His Honour rejected a submission of the respondents to the effect that the estate, and not the appellant, suffered loss upon the making of the orders by Evans J. Whilst it is certainly true that the estate was larger than it might otherwise have been, had Mr Doddridge instructed that steps be taken to put his estate beyond the reach of a TFM Act claim, it does not follow, with respect, that in the events which did happen in this case, it is the appellant who suffered loss upon the making of the orders by Evans J.

8.2 The success of a claim, brought by a person entitled to do so, results in the making of an order for provision 'out of the estate of a deceased person'. The proceeding is brought against the persons who hold the grant of probate. The order, by reason of section 9 'shall specify' the amount and nature of the provision, the manner in which it shall be made, how and by whom the burden of such provision shall be borne and any conditions, restrictions or limitations imposed by the Court. The burden of satisfying the order falls ratably upon the whole of the estate of the deceased person.

8.3 In this case Evans J made an order for provision out of the estate in the sum of $200,000. The order binds each respondent named in that proceeding: the executors.

8.4 It was only upon the making of the order that the estate suffered a loss. Had Mr Doddridge given instructions to create a joint tenancy, or to otherwise reduce the estate, then depending upon the content of his instruction, no provision might have been made in favour of Patrice Doddridge. Or a substantially smaller provision might have been made having regard to the size of the estate.

8.5 Additionally the estate suffered two costs orders.

8.6 Accordingly it is the executors of the estate who suffered loss in the event that the respondents had and failed to discharge the asserted duty of care owed to Mr Doddridge: Hill - v - Van Erp at 165, 168, 221 & 235 and Carr - Glynn v - Frearsons (1999) Ch 326 at 333, 335-336.

8.7 The appellant's claim was misconceived from the outset: he did not suffer loss by reason of the matters contended in his action." (Footnotes omitted.)

1. Whatever those submissions may demonstrate, for the reasons I have already set out, any such loss or losses suffered by the executors of the testator's estate is not the same as any loss that could have been suffered by the appellant. The appellant's loss is a different loss. The appellant's damage comprises the value of the chance he lost of a better outcome under the will had the testator been properly advised.

1. In my view, grounds 1, 2, 4 and 5 of the notice of appeal succeed and the judgment in favour of the respondents should be set aside and replaced with an order that there be judgment for the appellant against the respondents for damages to be assessed. I respectfully agree with Tennent and Porter JJ that the interests of justice require the assessment to be carried by a different judge. I would order that the assessment of damages be remitted for determination by a single judge other than Blow CJ.

[1] Hutley's Australian Wills Precedents, 7th ed, 2009 at [14.22]; Australian Encyclopaedia of Forms and Precedents at [510-373]; S Newton, Protecting a Will, Federation Press, 1994 at 86.