Chamberlain v Ormsby t/as Ormsby Flower

CATCHWORDS: LEGAL PRACTITIONERS - Contractual and tortious duties to client - Retainer properly to advise client - Whether solicitor and/or barrister provided adequate and timely advice as to available claims - Whether failure to take reasonable steps to ensure client understood advice - Barristers' immunity from suit - Whether barrister's advice "connected with conduct of litigation" - Causation - Whether client suffered loss as a result of practitioner's negligence - Assessment of damages - Workers Compensation Act 1987 s 151A

Workers' Compensation Act 1987 Workers' Compensation Legislation Amendment Act 1998 LEGISLATION CITED: Workers Compensation Legislation Further Amendment Act 2001 Suitors' Fund Act 1951

Arthur J S Hall & Co v Simons [2002] 1 AC 615 Burt v Ware (Court of Appeal, 28 October 1998, unreported) D'Orta Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755 Dunn v Firth [2003] NSWCA 280 Fox v Wood (1981) 148 CLR 438 CASES CITED: Green v Berry [2001] 1 Qd R 605 Giannarelli v Wraith (1988) 165 CLR 543 Rosenberg v Percival (2001) 205 CLR 434 Scott v Echegaray (1991) Aust Torts Rep 81-120 Tipper v Williams (No 2) (Court of Appeal, 6 May 1994, unreported) Valmas v Nyman (James J, 12 November 1996, unreported)

Brett Raymond Barrd Chamberlain PARTIES: Anthony Ormsby t/as Ormsby Flower William Carney

A: K Andrews COUNSEL: 1R: D Davies / D Priestley 2R: G P Craddock

A: ENS Lawyers, Turramurra SOLICITORS: 1R: Thompson Playford, Sydney 2R: McCabe Terrill

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40047/05 DC 692/02

GILES JA TOBIAS JA BASTEN JA

Wednesday 21 December 2005 BRETT RAYMOND BARRD CHAMBERLAIN v ANTHONY ORMSBY t/as ORMSBY FLOWER & ANOR Judgment 1 GILES JA: I have had the advantage of reading the reasons of Tobias JA in draft. I agree with his Honour's reasons for concluding that the judge erred in the manner described. 2 There must be a new trial as between the appellant and the solicitor unless this Court is in a position to determine, and determines, that on the evidence below, the appellant would have given instructions to proceed with his worker's compensation application if the solicitor had properly investigated and explained his common law rights prior to 31 May 1999. 3 I do not think the appellant's response to the barrister's advice on 31 May 1999 is a sound guide in making that determination. The advice was given upon an investigation which may have been less than that required of the solicitor, it was considered under the pressures of the hearing day which would not have been the case if more timely advice had been given by the solicitor, and the judge found without explanation that the appellant did not fully understand it. Obtaining a further medical assessment was put to the solicitor, although producing only the response that he "would have definitely thought about that", and resolving the disagreement between Mr Buckley and Mr Watson and finding the investigation which should have been undertaken and the advice which should have been given included regard to the solicitor's evidence and a view of the weight to be given to it. Finding the appellant's response to the advice if it had been more timely would be informed by seeing and hearing the appellant give evidence, a matter to which point is given by the judge's finding that he did not fully understand the advice of 31 May 1999 but without any explanation which might assist us in being informed. In my opinion, this Court is not in a position to make a determination. 4 It may be that the appellant will in the end fail as to causation, but he is entitled to have his case decided free from the errors identified and it must be by a new trial. 5 As to the solicitor's cross-claim against the barrister, I agree with the reasons of Tobias JA. 6 I agree with the orders proposed.

7 TOBIAS JA: Mr Brett Chamberlain (the appellant) was injured at his place of employment on 25 September 1996. He did not return to work and in May 1997 his employment was terminated. In July 1997 he consulted the respondent, Mr Anthony Ormsby (the solicitor), who allegedly gave him certain advice. In the meantime, he was receiving weekly workers' compensation payments from his employer's workers' compensation insurer. 8 In May 1998 the solicitor on behalf of the appellant but, it would seem, without specific instructions based on informed advice to his client, filed an application for determination in the Compensation Court in which lump sums under ss66 and 67 of the Workers' Compensation Act 1987 (the WC Act) were claimed. The solicitor briefed the second cross respondent, Mr William Carney (the barrister), to advise and appear on that application. The application was listed for hearing before the Compensation Court on 31 May 1999. After receiving certain advice from the barrister, the appellant gave instructions to settle the proceedings. The legal effect of the appellant accepting the amounts payable pursuant to the settlement was to disentitle him from instituting proceedings for the recovery of common law damages arising out of the alleged negligence of his employer causing his injuries. 9 The appellant then instituted proceedings in the District Court of New South Wales against the solicitor claiming damages for the negligent breach by the solicitor of his retainer to properly advise the appellant as to his choices and entitlements with respect to his injuries. The solicitor cross-claimed against the barrister alleging that he had breached his retainer from the solicitor and, further, that he was negligent in failing to recommend to the solicitor that the appellant should pursue a claim for damages at common law rather than electing, as he did, to accept lump sum amounts pursuant to ss66 and 67 of the WC Act. 10 The foregoing summary of the litigation between the parties did not, on its face, seem to raise any unusual issues. However, it did; but not because of any fault on the part of the parties or their legal responsibilities. This was due to a finding by the primary judge in his reserved judgment that the solicitor was negligent, and the appellant was entitled to judgment against him, upon the basis that the effect of s151A of the WC Act, as it was prior to 27 November 2001, was that the appellant lost the right to institute proceedings for common law damages upon the solicitor filing the application for determination in the Compensation Court in May 1998. This was wrong as his Honour later realised when the parties so informed him. 11 On the basis of his erroneous understanding of s151A, the primary judge, for reasons to which I shall later refer, found that the solicitor had failed to make appropriate investigations with respect to the appellant's common law rights and had further failed to advise him with respect thereto prior to the filing the application for determination. Accordingly, he had, as it were, disenfranchised the appellant from claiming common law damages in respect of his injuries. His Honour then assessed various heads of the appellant's damages based on the lost chance of making and prosecuting such a claim. 12 Accordingly, in a judgment delivered on 25 June 2004 (the first judgment) the primary judge indicated that he was prepared to enter judgment for the appellant against the solicitor subject to the parties providing him with appropriate calculations based on his findings as to the heads and amounts of damages to which he considered the appellant was entitled. 13 Although his Honour did not at that time formally enter judgment for the appellant against the solicitor, he did find that the barrister was neither in breach of his retainer nor negligent. He therefore ordered that the solicitor's cross-claim against the barrister be dismissed with costs. 14 Once the parties realised that the primary judge had misunderstood the effect of s151A of the WC Act, they made submissions to his Honour as to the course he should then follow. In what he referred to as an interim judgment delivered on 3 September 2004 (the interim judgment), his Honour invited the parties to make further submissions as to his power to reopen the proceedings and, if he had that power, whether he ought to do so and, if he did, with what consequences. 15 After receiving written submissions with respect to these matters, the primary judge delivered a further judgment on 12 October 2004 (the final judgment) in which he decided that he would only reopen the issue of the solicitor's liability to the appellant. However, he declined to reopen the solicitor's cross-claim against the barrister. He then proceeded to make further findings upon the basis of the correct legal position with respect to the effect of s151A. Ultimately he concluded that, as he had already found in the first judgment that at the time of the settlement of the workers' compensation proceedings on 31 May 1999 the barrister had, without negligence, provided correct advice to the appellant with the concurrence of the solicitor, it must follow that if the barrister was not negligent neither was the solicitor. 16 Accordingly, the primary judge reversed his finding of negligence against the solicitor made in the first judgment and entered a verdict for the solicitor against the appellant in the final judgment. It is against that decision that the appellant appeals to this Court. The solicitor has also, as a protective measure, cross-appealed against his Honour's dismissal in the first judgment of his cross-claim against the barrister.

The procedural issue 17 The appellant's Amended Notice of Appeal lists nine grounds of appeal, of which grounds 7 and 8 raised the issue as to whether the primary judge had the power to reopen the proceedings as between the appellant and the solicitor. The appellant argued that notwithstanding the error that his Honour had made with respect to the effect of s151A as it stood at the relevant time, nonetheless he had no power to reopen the proceedings with respect to his finding in the first judgment that the solicitor was liable in negligence to the appellant. 18 However, it is clear that at the time of the first judgment his Honour, although having made a number of findings relevant to the solicitor's liability, had expressly not entered judgment in favour of the appellant as the amount of damages was still to be calculated. Accordingly, the case was still part-heard with respect to the appellant's claim against the solicitor. There was therefore no impediment to his re-entering upon the issue of liability as between the appellant and the solicitor arising out of the error which he had made. This was simply because he had not made any order disposing of the appellant's claim. As he had neither pronounced any order, judgment or verdict in favour of the appellant against the solicitor there was no relevant statutory provision or rule of court which prevented the course his Honour then took. 19 The foregoing was ultimately recognised by the solicitor who, in effect, in oral argument on the appeal accepted that there was little he could say to advance grounds 7 and 8 in his Amended Notice of Appeal. 20 It should be noted that no procedural issue arose with respect to the primary judge's order made in his first judgment dismissing the solicitor's cross-claim against the barrister. As to that, his Honour was functus and therefore properly declined in the final judgment to reopen the cross-claim.

The facts giving rise to, and the nature and extent of, the injuries sustained by the appellant 21 The appellant was employed as a labourer by Gummerson Fabrics Pty Limited (the employer). He sustained his injuries on 25 September 1996 when he was involved in the unloading of large rolls of fabric from a shipping container. Each of these rolls weighed approximately 50kg. A supervisor would push the rolls off the end of a container truck so that they stood on their ends; the appellant then picked each roll up, placed it on his shoulder and carried it approximately 10-20m and then put it down. On the occasion in question, he picked up one of the rolls and as he was carrying it the roll tipped backwards pulling him with it and causing a sharp pain in his back. 22 The appellant was first diagnosed as having a muscular ligamentous strain but CAT scans about a month later revealed a prolapse of the discs at L4/L5 and L5/S1, both of which were accepted by the appellant's treating doctors as having been caused by the incident in question. The injuries were accepted as serious as they had a long term disabling effect. There was no dispute between the appellant and the employer with respect to the cause of his injuries as the latter completed a report of the incident substantially agreeing with the appellant's version and conceding that his claim in respect of those injuries was valid. The appellant therefore made a workers' compensation claim for the period that he was off work and received, and at the time of trial was still receiving, weekly compensation payments. His Honour held that the appellant had a permanent, serious and continuing disability that would always prevent him from performing heavy work. 23 The appellant's treating orthopaedic surgeon was Dr Robert Elliott who first saw him on referral by the employer's general practitioner, Dr White, on 21 October 1996. According to the findings of the primary judge, Dr Elliott recommended that the appellant lose weight and cease heavy labouring work. He did not recommend surgery. 24 The appellant claimed that he was in continual pain and was unable to work. Although he attended physiotherapy and hydrotherapy sessions, he maintained that he was unable to obtain any relief therefrom. He was taking medication for the pain including Valium. He travelled all over the Hills District seeking out medical practitioners who would prescribe pain relieving tablets of various types. Eventually someone at Westmead Hospital informed him that methadone was the best pain killer but that he could only obtain this if he could establish that he was a heroin addict. He then took heroin for a period so that he could qualify for a methadone program. However, he did not tell Dr Elliott of his heroin addiction or that he was on a methadone program. The primary judge found, notwithstanding suggestions to the contrary, that the appellant was not a heroin addict at the time he went onto the methadone program. 25 Although the primary judge accepted that the appellant's injuries prevented him from performing heavy work, he considered that his injuries did not prevent him from doing any work at all. In this respect, prior to the trial the only work that he had undertaken was some real estate work experience for approximately three months. However, his Honour accepted that the appellant experienced severe pain for approximately two years after the accident. Although the medical evidence established that he had continuing periodic episodes of pain of a niggling nature, his Honour was not prepared to accept that the appellant's pain level was so great that, except for the three months working in a real estate agency, he was unable to do any work at all at the expiration of those two years.

The primary judge's findings in the first judgment as to the appellant's association with the solicitor and the barrister 26 At the suggestion of the solicitor's sister who, like the appellant, was a methadone user, the appellant first consulted the solicitor on or about 1 July 1997. As his Honour noted, the appellant's evidence as to what he was told at that conference and that of the solicitor diverged "markedly". According to the appellant, the conference lasted for about 10 minutes. After asking the appellant some questions concerning his injuries and how the accident occurred, the solicitor said words to the effect "It seems to me that you have a good position to claim for compensation. Leave it with me and I'll get back to you". The appellant maintained that position in cross-examination and, in particular, that at no time during the conference did the solicitor say anything to him about him claiming damages or instituting proceedings at common law to recover such damages. 27 The solicitor's evidence was somewhat different. According to him he had considerable difficulty in obtaining clear instructions from the appellant as he kept falling asleep and was very aggressive (presumably when he was awake!). He told the appellant that he would "have a look at things and get back to him" and that there were "a lot of issues". In particular, he maintained that he could not obtain an accurate picture of how the accident occurred. However, the solicitor asserted that he explained the difference between a common law claim and a workers' compensation claim to the appellant including the tables under ss66 and 67 of the WC Act and the fact that if negligence were proved in a common law claim, it would also be necessary to prove that the recoverable damages exceeded the thresholds imposed by that Act. 28 The solicitor's file was in evidence but according to the primary judge the file notes contained little more than that the solicitor had obtained the name of the employer, of some of the appellant's treating doctors, and of the employer's workers' compensation insurer along with that insurer's file number, and that he had established his file as a workers' compensation claim file. His Honour concluded (at Red 82S-U) that there was "nothing in the file to indicate that any consideration was being given at any time to advising on the bringing of a Common Law claim, nor is there anything to suggest that any inquiries were begun to establish the facts for the bringing of a Common Law action." 29 Although his Honour accepted that it may well have been, as the solicitor asserted, that he had taken more detailed notes in a book separate from the file, because that book had been destroyed he was unable to reach a conclusion regarding the contents of those notes. He considered (at Red 83E-F) that the solicitor had a rather distracted manner during the giving of his evidence which required his Honour to give careful consideration to his reliability and accuracy as a witness. 30 On the other hand, the primary judge considered (at Red 83I-J) that the appellant gave his evidence in a forthright manner, answering every question in a clear and unambiguous manner. He was cross-examined at length and made a number of concessions as to having behaved in a manipulative manner to obtain drugs from doctors and conceded that he had been involved in a large number of motor vehicle accidents both before and after the subject accident. 31 However, because the appellant had failed to explain why he could not perform any work at all (even of the lightest kind), his Honour concluded (at Red 83N-O) that he was a witness whose evidence needed very careful assessment. Nevertheless, he considered that as a matter of probability the conference of 1 July 1997 with the solicitor was, as the appellant maintained, of only approximately 10 minutes duration in which the solicitor could not possibly have explained the significance of the difference between claims made for workers' compensation benefits on the one hand and a common law claim for damages on the other. He therefore concluded (at Red 83S) that he was not satisfied that the solicitor imparted intelligible information to the appellant that explained these differences. 32 It was at this point that his Honour made the error to which reference has been made. He found (at Red 83T-U) that the solicitor did not consider that a common law claim was something to be further considered because he sought no instructions to obtain evidence to support such a claim and "he filed on [the appellant's] behalf a claim for permanent loss compensation that precluded any such [common law] claim ever being brought." 33 The foregoing conclusion was based on his Honour's view that the effect of the solicitor filing the application for determination in the Compensation Court on 20 May 1998 was that, pursuant to s151A(1) as it was prior to 27 November 2001, the appellant was thereby deemed to have elected to obtain "permanent loss compensation" in lieu of common law damages and could not thereafter bring proceedings for the latter. In this he was in error. Although s151A at the relevant time provided that a person to whom compensation was payable under the WC Act was required to elect whether to claim permanent loss compensation in respect of his injuries or damages, such an election was only relevantly made when the injured person accepted payment of that permanent loss compensation in which case he or she only then ceased to be entitled to recover common law damages in respect of his or her injuries: see s151A(3)(b). 34 As at 20 May 1998 when the solicitor filed the application for determination in the Compensation Court, the only relevant expert medical reports that he had obtained were those of Dr Robert Elliott dated 21 October 1996, 18 November 1996, 19 May 1997 and 14 July 1997. In the last of those reports Dr Elliott opined that over the period October 1996 to July 1997 the appellant's symptoms of persistent chronic low back pain with radiation into both legs had not improved. Any form of activity exacerbated the pain and the appellant had maintained that he even had moderate pain at rest. Dr Elliott's view was that although the L4/L5 disc prolapse was not amenable to surgery, the appellant should look at selective work not involving heavy lifting or repetitive bending. At that time he assessed permanent impairment of his back at 15%, the permanent impairment of function of his right leg at 5% and that of his left leg also at 5%. 35 It is to be noted that apart from the report of 14 July 1997 which was addressed to the solicitor, all of Dr Elliott's earlier reports were addressed to the employer's GP, Dr White. It was common ground that at no time prior to filing the application for determination in the Compensation Court on 20 May 1998 and the hearing of that application on 31 May 1999 had the solicitor actively sought to investigate the accident with a view to determining whether he should advise the appellant to pursue his common law rights rather than his workers' compensation rights. Of course, the solicitor maintained that he had explained to the appellant the difference between the two at the conference on 1 July 1997 but the primary judge had rejected his evidence in this respect. 36 In February 1999 the solicitor briefed the barrister to advise and appear for the appellant in the Compensation Court. After referring to the fact that the appellant had suffered an injury to his left leg and back on 25 September 1996 when removing large rolls of fabric from a truck and that he had not returned to work since that time, the solicitor's instructions in the brief were that the appellant was currently receiving weekly payments of compensation "and accordingly this claim is in respect of Section 67 only". 37 Although it may be a matter of emphasis, the primary judge recorded in his first judgment (at Red 84G) that the brief to the barrister was to advise and appear for the appellant in the Compensation Court "in respect of section 66 and 67 only". It seems to me that the way in which his Honour expressed the barrister's instructions was to suggest that the solicitor was confining the barrister's retainer to advising and appearing only in respect of a claim under ss66 and 67 whereas the instructions in the brief do not, in my view, necessarily convey such a limitation. Certainly, the instructions assert that the claim in respect of which the barrister was requested to appear at the hearing before the Compensation Court was one "in respect of section 66 and section 67 only". However, I do not consider (and neither did the barrister) that that instruction contained any express or implied limitation upon the nature of the advice which the barrister might necessarily proffer to his client: cf Black 173F-G; 203V-W; 204E-F; 205D-K. 38 The barrister saw the plaintiff in conference on 4 May 1999. Although the solicitor maintained that he also attended that conference, this was denied by both the appellant and the barrister whose evidence on this issue his Honour accepted. Because the solicitor did not attend the conference, the barrister did not discuss figures with the appellant; nor did he ask any questions relating to any possible common law claim the appellant might have. Having concluded that the solicitor was not present at this conference, his Honour (at Red 85H) therefore rejected the solicitor's claim that at the conference there was discussion about a common law claim. His Honour also observed that the barrister had no problem speaking to the appellant at this conference and no difficulty in understanding him. 39 The appellant's application was listed for hearing in the Compensation Court on 31 May 1999. By that time the solicitor had obtained a further report from Dr Elliott dated 22 March 1999 in which he opined that the appellant's circumstances had not changed materially since he had last seen him and that the assessment provided in his report of 14 July 1997 had not changed. Dr Elliott concluded that he considered that the appellant should look for work that was not physically demanding and should also lose weight. 40 Also in evidence as having been served on the solicitor was a report of Dr Richard Opie addressed to A O Ellison & Co, solicitors, who apparently appeared for the employer's workers' compensation insurer. That report was dated 29 November 1998. The report noted that in November 1997 the appellant completed a one-week course in real estate at the TAFE College at Parramatta following which he was given work experience in three real estate firms over a period of three months. 41 At the time that the appellant was seen by Dr Opie on 29 October 1998, he was undergoing training in selling, listing and viewing real estate and was about to start a computer course. He complained of back pain (although it was better than it used to be) which extended from his lower back to the mid-thoracic region and included pain in both buttocks and down both legs. On physical examination Dr Opie noted that the appellant was an obese young man and that although he stood erect and could walk with a normal gait, he could not squat because of back pain. Nevertheless his finding on examination was that he had a good range of back movement although minor clinical features of sciatica were present. He considered the plaintiff permanently unfit for heavy work but fully fit for real estate work. He assessed the permanent impairment of his back at 10% compared with a most extreme case; the permanent loss of efficient use of his left leg at and above the knee at 5% and the permanent loss of efficient use of the right leg also at 5%. 42 The only difference between the opinions of Dr Opie and Dr Elliott was that Dr Elliott assessed the permanent impairment of his back at 15% - presumably compared with a most extreme case. 43 On the day of the hearing in the Compensation Court the barrister and the solicitor conferred with the appellant on a number of occasions. Although their versions differed, the primary judge found (at Red 85P-Q) that both the barrister and solicitor agreed that the former had explained to the appellant in considerable detail the implications of accepting any offer and, in particular, that acceptance of any lump sums (which would constitute "permanent loss compensation" within the meaning of s151A) would prevent any proceedings being thereafter brought by the appellant for common law damages. This advice was clearly correct. 44 His Honour continued in these terms (at Red 85R-T): "Both witnesses were emphatic that they explained in detail [what] the difficulties associated with a claim for Common Law damages were and in particular, their concerns that the plaintiff would not get over the thresholds laid out in sections 151G and 151H of the Workers Compensation Act 1987 which, according to him [the barrister], were a lower one of 18% and a higher one of 25% of a most extreme case." 45 Having discussed the position of the appellant with respect to the ss151G and 151H thresholds, his Honour concluded (at Red 86N) that he had been provided with advice by the barrister that if he did not get over the higher threshold of, apparently, $51,800 for non-economic loss, he would receive very little even if he established negligence and that that advice from the barrister, concurred in by the solicitor, was "broadly correct". Despite denials by the appellant that he received that advice, his Honour found that the barrister had given it and that he believed that the appellant understood it. Thereafter the barrister negotiated at length on behalf of the appellant to secure compensation under ss66 and 67 of the WC Act. Eventually he recommended the appellant accept certain lump sum payments under those provisions and continue to receive weekly benefits, which advice the appellant ultimately accepted. 46 Although the barrister believed that the appellant understood the advice he was given, the primary judge (at Red 86U-V) held that he was not satisfied that the appellant did really understand what was said about common law damages at this time. However, his Honour considered (at Red 87C-E) that, in any case, the advice of both the barrister and solicitor, to the effect that once the appellant accepted payments under ss66 and 67 he would have made an election which thereafter prevented him from suing for common law damages, was incorrect. This finding was based upon his Honour's erroneous conclusion that that election had been made when the application for determination had first been filed in May 1998. For these reasons, his Honour concluded that nothing turned upon the advice given by the barrister and solicitor at this time. 47 The primary judge further found (at Red 87H-J) that the barrister was not at fault for failing to raise the issue of common law damages at the time of his first conference with the appellant on 4 May 1999, particularly because of the absence of his instructing solicitor therefrom and the fact that he was asked to confer about a possible workers' compensation claim under ss66 and 67 and was not requested to give general advice about the appellant's potential legal rights. 48 The primary judge then turned to the question of whether, after the conference of 4 May 1999, either of the barrister or the solicitor (who both expressed expertise in this field of the law) ought to have given advice to appellant concerning his potential entitlement to bring a claim for common law damages. His Honour concluded (at Red 87N-S) that "each of them" should have given consideration to providing advice on whether the appellant had an arguable common law claim. However, as far as the barrister was concerned, his Honour did not consider that he had any duty to advise on common law damages since he was only retained to advise and appear in relation to the proceedings in the Compensation Court which had been commenced before he was engaged to advise. Consequently, because of his Honour's misunderstanding of the effect of s151A, he considered that any advice of the barrister with respect to the appellant's potential common law rights would have been irrelevant. Thus, his Honour found (at Red 88D-F) that the barrister was not in breach of any duty to the appellant or in breach of any duty to the solicitor. Accordingly, the solicitor's cross-claim against the barrister failed. 49 Of course, the basis upon which the primary judge found that the advice given by the barrister was incorrect and/or of little consequence was itself erroneous. Nevertheless, it seems clear from his Honour's findings that, although the barrister may not have been briefed to advise the appellant with respect to his common law rights, he nevertheless did so on 31 May 1999 and did so accurately before the appellant accepted permanent loss compensation by way of lump sum payments under ss66 and 67 of the WC Act. 50 It should be remembered that in the first judgment the primary judge was not prepared to find, due to the absence of the solicitor from the conference of 4 May 1999, that the barrister at that time raised with the appellant the question of his competing entitlements to permanent loss compensation on the one hand and common law damages on the other. As I have observed, his Honour considered that the barrister was not instructed to provide advice to the appellant with respect to his legal rights generally but, rather, was instructed to confer only with respect to the workers' compensation proceedings. 51 On the other hand, his Honour did find (at Red 87N-O) that not only the solicitor but also the barrister should have given consideration to providing advice on whether the appellant had an arguable common law claim; in the case of the solicitor before he filed the application for determination in the Compensation Court on 20 May 1998 and, in the case of the barrister, presumably subsequent to the conference of 4 May 1999 and, implicitly, prior to the hearing of the compensation claim on 31 May 1999. 52 Thus, there appears to be some inconsistency in the primary judge's findings. As noted above, he expressed the opinion (at Red 87N-O) that each of the barrister and solicitor "should have given consideration to providing advice on whether [the appellant] had an arguable Common Law claim".

On the other hand he also said (at Red 87Q-R): "In [the barrister's] case, I am unable to find that he had any duty to advise on Common Law damages since he was retained to advise and appear in relation to Compensation Court proceedings which had commenced before he was asked to advise." 53 However, that inconsistency is more apparent than real as his Honour seems to have found that, as the appellant had, in his Honour's opinion, made the necessary election when the Compensation Court proceedings were commenced, there could therefore be no duty on the barrister thereafter to advise the appellant with respect to any common law proceedings which by that time were, in effect, statute barred. However, if the question of election was still alive as at 31 May 1999, as it was clearly understood to be by both the barrister and solicitor up until the time that permanent loss compensation was actually accepted by the appellant, then it would appear that his Honour's finding that not only the solicitor but also the barrister should have given consideration to providing advice on whether the appellant had an arguable common law claim stands as a finding which was not affected by his error as to the time at which the appellant made an election for the purpose of s151A. I shall return to this aspect of the matter when considering the solicitor's cross-appeal against the dismissal of his cross-claim against the barrister. 54 The primary judge then turned to whether or not the solicitor was in breach of his duty of care or retainer to the appellant prior to filing the application for determination in the Compensation Court. This was necessary because according to his Honour nothing he did after the date of filing could have had any effect on the commencement of common law proceedings by the appellant against the employer. His Honour was satisfied that the solicitor did not explain to the appellant at the first 10 minute conference in July 1997 what his potential common law entitlements were or, if he did, that he did not explain them clearly. Rather, his Honour found (at Red 88L-M) that the solicitor decided that the appellant was a troublesome, drug affected person and decided that he would never be able to run a common law action for the appellant because he was an unreliable drug addict and would be unable to overcome the ss151G and 151H thresholds. 55 However, his Honour found (at Red 88N-P) that the solicitor did not at any time seek instructions to enable him to determine if he had a case at common law and, therefore, made no independent enquiries in order to pursue the matter. Nevertheless, having accepted a retainer from the appellant to assist him in recovering that to which he was entitled, the solicitor was required to seek instructions to investigate any possible common law claim and to explain clearly and concisely to the appellant the difficulties of such a claim and to obtain proper written instructions based on his client's "informed consent". 56 His Honour also found (at Red 88Q) that the solicitor owed the appellant a duty before filing the application for determination with the Compensation Court to explain to him that in taking this step he was further precluded from seeking common law damages. Having failed to take those steps he was in breach of his retainer and was negligent. His Honour concluded in these terms (at Red 88S-U): "The consequence of his negligence was that [the appellant] was forever barred from bringing proceedings against his employer for Common Law damages. [The solicitor] has claimed that he was worried that [the appellant] would not manage to get damages sufficient to reach the thresholds prescribed by sections 151G and 151H of the Workers Compensation Act. Whilst that may have been a possible view, it was his duty, in my opinion, to explain the entire situation to him and get his clear instructions." 57 His Honour held (at Red 89D-E) that he could not accept that it was reasonable for the solicitor to act on a type of "gut reaction" and tell his client nothing of his apprehensions. 58 The primary judge then turned to the consequences of that finding in terms of the damages to which the appellant was therefore entitled. He acknowledged (at Red 89H-I) that the loss sustained by the appellant was the loss of the opportunity to bring a claim to trial and recover damages at common law. It was therefore necessary for him to evaluate the strength of the appellant's case by a conducting a trial within a trial. Having determined that the appellant lost his entitlement to bring a common law action on 21 May 1998, being the date upon which the solicitor filed the application for determination, nevertheless the appellant was entitled to compensation for the loss suffered by him as a result of the negligence of his solicitor although he was not entitled to be compensated as if he were making a claim for damages at common law. 59 Based on his examination of the medical and other evidence, his Honour then made a number of findings (at Red 90F-91M) of which the following are presently relevant to the issues in the appeal: "1. [The appellant's] injuries received as a result of a work caused accident can be objectively determined as being disc prolapses at L4/5 and L5/S1. … 4. The plaintiff, who was born on 4th October 1971, as a result of the injuries he received in this accident, has been disabled from doing heavy work since the date of the accident and he will be disabled from doing so permanently. 5. The damages to be awarded for economic and non-economic loss are to be calculated as at the date of injury (see sections 151G and 151H as they were before their repeal on 27 November 2001). … 7. Apart from doing a work experience job with a real estate agent for 3 months, [the appellant] has engaged in no employment at all since the accident. 8. [The appellant] has lied to various doctors to get them to prescribe analgesics to him and has lied to get onto a methadone programme. 9. [The appellant] has had many car accidents, since 25th September 1996. 10. [The appellant] has had convictions for offences of dishonesty, which were committed, because he had the opportunity to commit them. 11. It would be reasonable to find that [the appellant] was for a period of 2 years after the accident prevented from working. Thereafter, there has been nothing to prevent him from working. 12. [The appellant] from a period 2 years after the accident, suffered a continuing partial economic loss of $200 per week until the assumed date of trial. Thereafter he should be regarded as having a continuing partial economic loss of $250 per week. These assessments are made on the basis of the objective medical evidence and do not depend on anything the plaintiff has said. They are made on the assumption that the plaintiff would be able to do unskilled work, but because of his back problems, his range of work opportunities would be limited to unskilled work requiring no heavy lifting or heavy use of his back. … 14. I assess his injuries as entitling him to 33% of a most extreme case since he has suffered a very serious accident at a young age and its consequences will be permanent." 60 Based on the above findings, the primary judge concluded (at Red 91Q-R) that the appellant would have established that his employer was negligent and that he was not guilty of contributory negligence. Further, his Honour considered that he would have been awarded the sums referred to in those findings subject to a 25% discount having regard to the evidence of his drug addiction and to take account of gaps in his employment that could have been expected to occur because of that addiction. His Honour then required the parties to make the appropriate calculations and to bring in short minutes of order with respect to the quantum of damages for which he would then enter a judgment in favour of the appellant. 61 It is to be noted that although the primary judge found that the solicitor was in breach of his contractual and tortious duties of care to the appellant, he did not see fit to address the issue of causation or make any allowance therefor. In particular, he did not address the question of the advice the appellant should have received from the solicitor or whether, given that advice, it would have made any difference with respect to the appellant's instructions to proceed only with the ss66 and 67 applications. This is an issue to which I shall need to return.

The interim judgment 62 As I have already observed, it was brought to the attention of the primary judge that he had misapplied s151A of the WC Act. Accordingly, in the interim judgment he directed the parties to file further submissions as to the consequences of that error. However, his Honour observed in that judgment (at Red 94I-L) that he had in the first judgment considered "… what the parties did after the date of filing of the application and I found that [the solicitor] and [the barrister] did give advice to [the appellant] about the possible consequences of his running a common law claim and not getting damages exceeding the thresholds established by section 151G and 151H of the Act and that advice was broadly correct." 63 However, his Honour considered that there were other findings which he had not made as they were not necessary due to the erroneous view of s151A that he had adopted.

The final judgment 64 As I have observed in [15] above, in the final judgment the primary judge determined (at Red 98J-L) that the case as between the appellant and the solicitor should be reopened to deal with the consequences of the error that he had made and which had led him "to find negligence against [the solicitor] on a basis that was not justified in law."

His Honour then set aside that finding. 65 The primary judge then referred (at Red 98M-S) to the findings of fact that he had made in the first judgment in which he had concluded that the barrister had explained in a proper way to the appellant, on the day of the hearing of the workers' compensation case, what the problems of damages were at common law and that the appellant might obtain only a small amount for non-economic loss and then possibly nothing for economic loss. He noted also that the barrister had explained to the appellant that he would have to establish negligence to receive anything and that if he chose to seek common law damages in lieu of proceeding with his workers' compensation claim, he might end up recovering very little and losing his right to receive workers' compensation. In his Honour's view (at Red 98S-T) that advice given on 31 May 1999 could not be said to be negligent. This finding is consistent with the fact that there was never any suggestion by the appellant that the barrister's advice was negligent or that he should have provided that advice prior to when he did. Further, in his cross-appeal the solicitor had not suggested that the advice given on the occasion referred to and concurred in by the solicitor was negligent. 66 His Honour then noted (at Red 98U-V) that the solicitor was present at the conference on the day of the hearing and concurred with the barrister's advice. He then continued in these terms (at Red 98U-99D): "As [the barrister] was not negligent in the advice which he gave, nor was [the solicitor] for concurring in it. [The appellant] accepted the advice which was given. I was not satisfied that at the time he really understood what he was told about common law damages. However, as I am satisfied that the advice he was given was not negligent, the fact that he did not fully understand it is beside the point." 67 His Honour then referred (at Red 99E-G) again to the first judgment in which he said that he had "made critical remarks about [the solicitor's] handling of the case before the hearing day, but nothing which I found would in any way make him liable in negligence of the suit of [the appellant]. In my opinion [the appellant] has failed to prove his case. There will be a verdict for [the solicitor]."

He then reiterated that if that finding was erroneous then the appellant would be entitled to damages on the bases enunciated by him in the first judgment.

The essence of the primary judge's reasoning in the final judgment 68 It seems to me that his Honour's reversal of his initial finding of negligence against the solicitor was explicable only on the basis that, although in the first judgment he had found that the solicitor owed the appellant a duty prior to filing the application for determination in the Compensation Court to explain to him that taking that step meant that he would be forever precluded from seeking common law damages (and that that was a breach of his retainer and was negligent), because of the error he had made with respect to the effect of s151A, it was not necessary for the solicitor to have provided such an explanation at that time although it was necessary for him to do so prior to the correct date upon which the appellant would in fact lose his common law entitlements under s151A, namely, when he accepted permanent loss compensation (being the lump sums he had agreed to accept under ss66 and 67 of the WC Act). 69 As the barrister (with the concurrence of the solicitor) had prior to the appellant's acceptance of those sums explained to him that by that acceptance he would be forever precluded from seeking common law damages, it followed that the solicitor, eventually, had fulfilled his duty of care and his retainer. Accordingly, his Honour must have considered that his finding in the first judgment that the solicitor's retainer required him to seek instructions to investigate any common law claim and to explain clearly and concisely to the appellant, in a manner which he understood, the difficulties with such a claim and to obtain proper written instructions based on that understanding, became irrelevant to his Honour's final determination of the issue of the solicitor's liability. It is this aspect of his Honour's reasoning in particular that the appellant challenges.

The issues on the appeal and cross-appeal 70 Although the appellant included grounds of appeal to the effect that the primary judge erred in reopening the appellant's case against the solicitor, as I have observed in [19] above these grounds were, in effect, ultimately abandoned and properly so. 71 Accordingly, the issues agitated on the appeal and cross-appeal may be summarised as follows:

(a) Did the primary judge err in declining to find the solicitor negligent in the conduct of his retainer merely because he had concurred with the advice, which was not negligent, provided by the barrister to the appellant on 31 May 1999?

(b) Was the primary judge correct when, in the final judgment, he found that it was irrelevant that the appellant did not fully understand the advice he was given by the barrister, concurred in by the solicitor, on 31 May 1999?

(c) Did the primary judge provide adequate reasons for his finding in the final judgment that the fact that the appellant did not fully understand the advice he was given by the barrister on 31 May 1999 was " beside the point "?

(d) Did the primary judge err in finding that the barrister was not in breach of his duty to the appellant in properly advising the latter with respect to his common law rights and the effect his acceptance of permanent loss compensation would have upon those rights?

(e) Even if the barrister's advice was negligent, was he immune from suit in view of the decision of the High Court of Australia in D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755?

(f) Even if the solicitor and/or the barrister's advice was negligent, did the appellant fail to discharge his onus in respect of causation in that, had the advice been in the form contended for by the appellant, would he have acted differently and pursued his common law rights rather than his workers' compensation rights?

(g) Did the primary judge err in his assessment of the appellant's damages assuming that he was entitled to a verdict against the solicitor?

Issue (a): Did the primary judge err in declining to find the solicitor negligent in the conduct of his retainer merely because he had concurred with the advice, which was not negligent, provided by the barrister to the appellant on 31 May 1999?

Issue (b): Was the primary judge correct when, in his final judgment, he found that it was irrelevant that the appellant did not fully understand the advice he was given by the barrister, concurred with by the solicitor, on 31 May 1999?

Issue (c): Did the primary judge provide adequate reasons for his finding in the final judgment that the fact that the appellant did not fully understand the advice he was given by the barrister on 31 May 1999 was " beside the point "

Issue (f): Even if the solicitor and/or the barrister's advice was negligent, did the appellant fail to discharge his onus in respect of causation in that, had the advice been in the form contended for by the appellant, would he have acted differently and pursued his common law rights rather than his workers' compensation rights? 72 It is convenient to deal with these issues together as they overlap. For this purpose it will assist to summarise the primary judge's relevant findings. They were as follows:

(a) Neither the solicitor nor the barrister explained to the appellant his position with respect to claiming common law damages until 31 May 1999;

(b) On that occasion the barrister, in the presence of the solicitor, explained to the appellant in considerable detail the implications of accepting the employer's workers' compensation insurer's ss66 and 67 offers and, in particular, that acceptance of permanent loss compensation under those sections would disentitle the appellant from thereafter instituting proceedings for common law damages;

(c) At the same time the barrister explained in detail to the appellant the difficulties associated with him successfully bringing a claim for common law damages and, in particular, his concern that the appellant would not obtain damages which would exceed the thresholds then provided for in ss151G and 151H of the WC Act;

(d) The appellant was also correctly advised about the possible consequences (including costs consequences) of his proceeding with a common law claim but failing to obtain an award of damages exceeding the relevant thresholds. In particular, the barrister explained to the appellant that if he chose to proceed with a common law claim for damages in lieu of proceeding with his workers' compensation claim, he might end up not only receiving very little by way of damages but also would lose his right to receive continued weekly compensation payments. (e) The appellant accepted the above advice and the workers' compensation claim was settled accordingly.

73 Notwithstanding those findings from which his Honour did not seek to resile in the final judgment, nevertheless he had held in the first judgment that the solicitor was negligent in that he had failed, prior to the filing of the workers' compensation application for determination in May 1998, to seek instructions from the appellant to enable him to determine whether he had a case at common law and, therefore, had also failed to explain clearly and concisely the difficulties with any such claim and to have obtained proper written instructions from the appellant based on his "informed consent". Although the solicitor had given evidence that he had in fact provided that advice, the primary judge did not accept that evidence and found instead (at Red 88L-M) that the solicitor had made a decision that he would never be able to run a successful common law action for the appellant because he was a drug addict, an unreliable witness and would not be able to exceed the thresholds. His Honour found that, given the solicitor's lack of enquiry and investigation, this was a decision he was not permitted to make. 74 Having recorded that the solicitor claimed that he was worried that the appellant would not manage to obtain an award of damages at common law which would be sufficient to reach the thresholds prescribed by ss151G and 151H, his Honour concluded (at Red 88S-U) that, whilst that may have been "a possible view", nevertheless it was the solicitor's duty to explain the entire situation to the appellant and obtain his clear instructions, which he had failed to do. 75 What is a little confusing is that in the interim judgment (at Red 94I-K), his Honour observed that he had found in the first judgment that on 31 May 1999 the barrister had advised the appellant as to the possible consequences of not obtaining damages exceeding the thresholds and that that advice was "broadly correct". Further, his Honour appears to have adopted and reiterated that finding in the final judgment (at Red 98M-P) where he held that the barrister had not been negligent in explaining to the appellant the problems of damages at common law and the fact that if he only obtained a small amount for non-economic loss then he would possibly receive nothing for economic loss. This was clearly a reference to the possibility, if not the probability, of the appellant receiving damages that did not exceed the thresholds. What is of interest is that there was no finding by the primary judge to the effect that it was not open to the barrister to provide that advice upon the basis that the solicitor had not provided him with sufficient instructions or other information or material to enable such advice to be given. 76 In other words, the primary judge's finding that the barrister was not negligent in providing the advice referred to could only be correct upon the basis that his Honour was satisfied that the barrister had before him sufficient information and material to enable him properly to advise the appellant of the problems of obtaining damages at common law and that he might end up receiving very little as well as losing his right to receive further weekly workers' compensation payments. It is apparent that the only material supplied to the barrister by the solicitor was Dr Elliott's reports and that all other relevant information necessary to enable him to provide the advice in question was obtained by the barrister in conference with the appellant on 4 May 1999: see Black 188U-189W; 191C-W. 77 Notwithstanding his finding of negligence on the part of the solicitor in the first judgment, his Honour accepted in the final judgment that the solicitor, through the barrister, had performed what was required of him on 31 May 1999 and, in particular, that at that time he had taken the steps or was, as it were, deemed to have taken the steps which his Honour found he had not taken prior to the filing of the application for determination in the Compensation Court in May 1998. 78 The primary judge (at Red 85O) indicated a preference for the evidence of the barrister over that of the solicitor. In examination in chief, the barrister (at Black 193N-X) gave evidence that he had explained to the appellant that he did not think that Dr Elliott's evidence would "quite get him over the threshold". The barrister (at Black 195K-W) also gave evidence that, although he considered that the appellant would succeed on liability, the failure of Dr Elliott to make allowance for the s68A factor which related to the effect of the car accidents after 25 September 1996 in which the appellant had suffered injuries or aggravation of the injuries he had sustained at work, and other factors including the evidence of the doctors retained by the employer's workers' compensation insurer, were such that, when it was all weighed up, he was led to the view that the appellant might not exceed the thresholds and would therefore end up with a costs order against him and no further workers' compensation. 79 Thus in the cross-examination of the barrister on behalf of the solicitor, the following exchange occurred (at Black 200U-X): "Q. Dealing with Mr Chamberlain's case firstly, it is the case, is it not, that by the time you had received all of the material that you were ever going to receive you had spoken to Mr Chamberlain now twice by the time you were in court, you didn't think that he would have a good common law claim, is that right? A. No, that's correct." 80 When cross-examined on behalf of the appellant, the following further exchange took place (at Black 206N-V): "Q. Leaving aside the question of liability, however, you then have to address the question of the thresholds? A. Yes. Q. The thresholds in this case would require that [the appellant] substantiate that he had a reasonably severe injury, probably going to exceed somewhere between 23 and a half and 25 percent? A. Yes. Q. You were limited in your ability to advise in relation to the thresholds by the fact that you had only a certain amount of medical evidence? A. I don't agree with that proposition. HIS HONOUR: Why don't you agree with that? A. Because the evidence I had and the evidence we eventually got I thought was adequate to address that problem." 81 The question as to whether or not the appellant could exceed the thresholds and the barrister's concern with respect to that issue was based in part upon what he had been told by the solicitor (Black 202I-M; 209K-U) to the effect that the appellant was a drug addict, had acted irrationally, had been injured in subsequent car accidents and would make a poor witness. The barrister had not observed any of these matters himself, although there is no suggestion that the solicitor's belief with respect to these matters (which he maintained in his evidence) was rejected by the primary judge. 82 Accordingly, it seems to me that the evidence of the barrister accepted by the primary judge related to the provision of advice to the appellant on 31 May 1999 that although he had the alternative remedy of seeking common law damages, there were difficulties in his successfully achieving an award of damages of the kind that would make it more advantageous for him to pursue that remedy and abandon his application for permanent loss compensation. Thus the advice which was tendered to him was that it was a safer bet in the circumstances to proceed to settle his application for ss66 and 67 lump sums rather than to proceed at common law. 83 Leaving aside for the moment the critical question of causation, the appellant submitted that nonetheless the primary judge's findings in the first judgment as to the solicitor's breach of duty should not have been reversed by his Honour merely as a consequence of the barrister's non-negligent advice of 31 May 1999 in which the solicitor was taken to have concurred. This was because the solicitor was still in breach of his duty of care to the appellant in failing properly to investigate and advise the appellant in a timely manner as to his chances of exceeding the thresholds and establishing liability so as to make it worth his while to have instituted proceedings at common law and abandoned his application for permanent loss compensation. 84 The appellant submitted that the solicitor's position, which he maintained throughout the proceedings, was that the appellant was not in a fit state to make an informed decision. The solicitor's evidence was that, on 31 May 1999 when in conference with the barrister at Court, the appellant swore at and abused the solicitor, was aggressive and under the influence of drugs. But those facts notwithstanding, the solicitor believed that the appellant understood what was being said to him (at Black 174C-K). On the other hand, the appellant (at Black 51S-52E) denied that he was under the influence of drugs or that he was drowsy or falling asleep although he did concede that he was anxious. The barrister in his evidence observed that the appellant had some sort of problem with narcotics (probably in the past) but that he did not recall him behaving in the manner referred to by the solicitor in his evidence (at Black 209M-V). The barrister (at Black 211R) considered that the appellant appeared to be following what he was saying as he was able to give instructions. 85 The primary judge in the first judgment (at Red 86O-P) found that the barrister believed that the appellant understood the advice that he received from the barrister with respect to the chances of him successfully bringing a claim for common law damages and the consequence that accepting permanent loss compensation would have upon any such claim. This notwithstanding, his Honour found (at Red 86U-V) that he was not satisfied that the appellant "really understood" what was said to him at that time with respect to the question of common law damages. He repeated this finding in the final judgment (at Red 98W-99D), but went on to find that the fact that the appellant did not "fully understand" the advice he was receiving was "beside the point". Why it was "beside the point", however, was never expressly explained although it might be inferred that the remark was thought to be justified by his Honour upon the basis that

(a) whether the appellant fully understood the advice he was given by the barrister was not the issue: rather, the question was whether the solicitor took reasonable steps to see that he received appropriate advice in an appropriate manner; and, possibly, (b) the appellant had not demonstrated that even if he had understood the advice it would have made a difference to his decision at that time. 86 However, as the appellant submitted, the suggestion that the appellant's lack of understanding was irrelevant to the solicitor's breach of duty was inconsistent with the following observation of Mason P, with whom Beazley JA and Fitzgerald AJA agreed, in Burt v Ware (Court of Appeal, 28 October 1998, unreported): "Accordingly, I am of the view that the trial judge was in error in finding that there was negligence in a situation where he found that the advice had been conveyed immediately prior to the settlement instructions being given to the effect that settlement would extinguish the workers compensation rights of the respondent. I am not suggesting that a solicitor does not have a responsibility to ensure that advice is communicated and received and understood , but that responsibility is not that of the insurer, it is the responsibility of taking care to see that appropriate advice is conveyed." (emphasis added) 87 There can be no doubt that the learned President's statement that a solicitor has the responsibility of taking reasonable care to see that advice given by him is not only received but understood applies equally to a barrister. 88 In the present case, as I have already noted, the primary judge found in the first judgment that the barrister believed that the appellant understood the advice he was receiving. Nevertheless, his Honour was not satisfied that the appellant really (or fully) understood that advice. It seems to me that his Honour could only have come to that finding upon the basis that, perhaps unbeknown to the barrister, the appellant was (as the solicitor maintained) sleepy, drowsy and affected by drugs at the time although why the solicitor and not the barrister should have so observed the appellant was not explained. 89 In oral argument the appellant submitted that the conundrum to which I have referred could be explained upon the basis that the primary judge was not satisfied at the end of the day that there were outward signs that the appellant was under the influence of drugs but that that did not mean that he was rejecting the solicitor's evidence to that effect given his greater knowledge of the appellant's personal problems and proclivities. This may be so but it behoved the primary judge to provide that explanation which he failed to do. 90 Accordingly, so it was submitted, even though his Honour accepted that from the barrister's perspective he was justified in believing that the appellant understood the advice he was receiving, no such favourable finding could be made with respect to the solicitor. In other words, although the barrister was not aware that the appellant did not fully understand the advice he was receiving, the solicitor ought to have been aware of that fact but failed to take any reasonable steps to satisfy himself that the advice that the appellant was receiving from the barrister was, in truth, understood by him. Accordingly, the solicitor failed in his duty of care to the appellant on 31 May 1999. 91 In my opinion, there is substance in these submissions. The difficulty, however, is the primary judge's lack of reasoning with respect thereto. There are inconsistencies and indications of confusion between the three judgments, with particular reference to whether or not his Honour accepted the solicitor's evidence as to his awareness and beliefs about whether the appellant understood the advice he was receiving from the barrister. His Honour's failure to provide comprehensible reasons to explain his ultimate finding that the fact that the appellant did not fully understand the advice he received from the barrister, in which the solicitor concurred, was "beside the point" in terms of the solicitor's liability to the appellant, in my opinion demonstrates error justifying appellate intervention. This is so even if it be accepted that what his Honour intended by that result was as I have surmised in [85] above. 92 More importantly, and as I have already noted, the appellant further submitted that the solicitor ought to have investigated the possibility of the appellant instituting a claim for common law damages at an earlier point in time in circumstances where the appellant was not under any form of pressure as it was submitted he was under when he received advice from the barrister on 31 May 1999. It was submitted by the barrister that the appellant was not under pressure on that day although there could be no doubt that, as settlement negotiations were proceeding and the matter was listed for hearing on that day, the appellant was clearly in a position where he had to make a relatively quick decision with little time to digest the advice he received and to give informed instructions with respect thereto. 93 The critical question which then arises is whether, if the solicitor had investigated the matter in a more timely way, his advice to the appellant would have been any different to that conveyed by the barrister on 31 May 1999. 94 The solicitor's evidence (at Black 167-168) was that he was aware from his experience that the type of injuries sustained by the appellant could give rise to damages which would exceed the s151G threshold. Further, on the basis of Dr Elliott's report of 14 July 1997, he agreed in cross-examination that, at least prima facie, the appellant would have exceeded that threshold. However, he went on to say that material later came to light which raised further questions, particularly the fact that the appellant had been involved in a number of motor vehicle accidents which had not been reported by him to Dr Elliott and which might support a finding that most of the appellant's injuries or ongoing symptoms were not the result of his accident at work. As the solicitor said: "that is our big problem". Although it was suggested to him that he did not have any medical evidence to support such a conclusion, the solicitor maintained that material subpoenaed from the employer's workers' compensation insurer suggested that half of the appellant's injuries had nothing to do with the accident of 25 September 1996. 95 The solicitor also gave evidence (at Black 177) of further factors that may have adversely affected any common law claim by the appellant, including his heroin addiction, the solicitor's concern about his credibility as a witness and the fact that the appellant told the solicitor that he was getting better. The last matter was confirmed by the barrister. 96 The appellant tendered an expert report prepared by Mr R F Buckley, solicitor, which was admitted subject to objection. Mr Buckley was provided with Dr Elliott's reports prior to 31 May 1999 together with Dr Richard Opie's report, also an orthopaedic surgeon, which had been served upon the solicitor by the employer's workers' compensation insurer. Whereas Dr Elliott had opined that the appellant's permanent impairment of his back was 15%, Dr Opie opined that it was 10%. Both of these doctors were of the opinion that the appellant's permanent loss of efficient use of both his right and left leg was 5%. Mr Buckley then set out the relevant provisions of ss151G and 151H the effect of which was that for the appellant to recover economic loss, he would need to be awarded damages for non-economic loss of not less than $51,800 which constituted 23.5% of the maximum amount that could be awarded in a most extreme case. 97 Mr Buckley opined that Dr Elliott's assessment of the appellant's various impairments amounted to 16.5% of the maximum amount awardable under s66 of the WC Act. However, the basis upon which Mr Buckley considered that the solicitor had breached his duty of care was because of his failure to retain an independent orthopaedic medico-legal consultant who " may have provided sufficient material by which a trier of fact, in any common law proceedings, could have grounded a finding that [the appellant] exceeded the threshold imposed by section 151H(2A)(b) of the Act … In my view a solicitor acting in the role of the solicitor, in the particular circumstances of this [appellant] should have arranged an independent medico-legal opinion apart from just relying upon the view of the treating specialist. Had the Solicitor adopted this course, he may well have obtained a view and interpretation of the radiological and clinical findings of [the appellant] not dissimilar to that subsequently expressed by Dr Searle." (emphasis added)

(The reference to the findings " expressed by Dr Searle " is a reference to a medico-legal report on the appellant prepared by Dr Searle, consultant orthopaedic surgeon, dated 6 February 2002, shortly before the commencement of the current proceedings.) 98 Mr Buckley's conclusion was that it would have been more likely than not that the appellant would have overcome the s151H threshold by recovering non-economic loss in excess of $51,800. He considered that the risk of not obtaining such a finding would have been considerably reduced had the solicitor taken the course of obtaining an independent medico-legal expert whose opinion supported the appellant's claim. 99 A number of observations can be made with respect to Mr Buckley's report. Firstly, it was based purely upon the medical evidence of Dr Elliott on the one hand and the solicitor's failure to obtain a report from a medico-legal consultant such as Dr Searle on the other. 100 Secondly, it made no allowance for the other matters relied upon by the solicitor in his evidence to the effect that, although he agreed that on the basis of Dr Elliott's report alone the thresholds may have been exceeded, the other factors to which he had referred would have put that conclusion significantly at risk. 101 Thirdly, Dr Searle's opinion to the effect that the appellant was unfit for any form of work which required prolonged sitting, standing, lifting or repeated bending was little different to that of Dr Elliott who also opined that the appellant should look for selected work not involving heavy lifting or repetitive bending: in other words, work that was not physically demanding. The real difference between them was that in his report of 6 February 2002 Dr Searle opined that the appellant had a 30% impairment of his back, a 10% permanent loss of efficient use of the left leg at or above the knee and 10% permanent loss of efficient use of the right leg at or above the knee as well as a 20% permanent loss of use of his sexual organs. 102 Fourthly, the barrister tendered an expert report of Mr Geoffrey Watson SC who was highly experienced in the field of workers' injuries. He disagreed with Mr Buckley's view that it was incumbent upon the solicitor to retain an additional medico-legal expert in the present case. Although such a retainer was appropriate where the medical issues were complex, the present case involved was a relatively simple medical issue in respect of which it was perfectly appropriate for the solicitor to rely only on the evidence of the treating doctor. This evidence was supported by that of the barrister who, firstly, considered Dr Elliott to be a highly regarded orthopaedic surgeon whose evidence generally found favour with the court and, secondly, considered that there was no reason (and no such suggestion was put to him) for him to have advised the solicitor to have retained an independent medico-legal consultant. 103 Neither Mr Buckley nor Mr Watson gave oral evidence. Furthermore, the primary judge apparently did not find it necessary to refer to their evidence. However, the foregoing observations make it clear that it was necessary for his Honour to deal with at least two issues with respect to that evidence. The first was to resolve the disagreement between Mr Buckley on the one hand and Mr Watson on the other as to whether a prudent solicitor in the circumstances would have retained an independent medico-legal orthopaedic consultant. The second was to deal with the effect, if any, upon Mr Buckley's evidence of the matters relied upon by the solicitor to the effect that it was doubtful that the appellant would exceed the thresholds notwithstanding Dr Elliott's evidence because of the other matters to which reference has already been made and of which the solicitor, but not Dr Elliott, had knowledge. It may well be that, had the primary judge considered these matters, he would have come to the conclusion that the advice which ought to have been tendered by the solicitor to the appellant at an earlier point of time would have been no different to that conveyed by the barrister to the appellant on 31 May 1999. The problem is that not having addressed these issues the Court is left in the position of not knowing how the primary judge would have resolved them. In my opinion he was in error in failing to do so. 104 The appellant further submitted that although he received advice from the barrister, concurred in by the solicitor, on 31 May 1999, the primary judge did not address the issue as to whether that advice was underpinned by adequate prior investigations. That is true. The difficulty the appellant faces is that if his case before the primary judge was that the solicitor failed to investigate properly and adequately the matters necessary to enable him to give timely informed advice to the appellant as to his common law rights, the only evidence tendered by him to support that allegation was that of Mr Buckley upon which I have already commented. 105 Of course there is also the critical issue of whether, depending upon the advice received and the timing of it, the appellant would have acted any differently or given different instructions to those he gave on 31 May 1999 with respect to the negotiated settlement of his workers' compensation claim. In this respect, the evidence of the barrister (at Black 192W-193E) was that, based upon the advice that he had conveyed to the appellant, and given that the workers' compensation insurer was not prepared to offer a sufficient sum with respect to the commutation or redemption of the appellant's rights, the appellant had expressed a desire to stay on workers' compensation and continue to have his medical expenses covered, and had indicated that, because he was not sure about the future, he felt more comfortable in "leaving those rights open", which I take to mean that he preferred to retain his workers' compensation rights.

106 As a matter of common sense it might not be unreasonable to assume that the appellant would have taken a similar attitude even if he had been informed at an earlier point of time as to his prospects of exceeding the thresholds in terms similar to the advice which he received on 31 May 1999. It would only be if that earlier advice was somewhat more positive than that which he received from the barrister on the occasion referred to that it might be concluded that the appellant might have instructed the solicitor to proceed with a claim for common law damages. The difficulty is that had the solicitor performed his duty to the appellant at a much earlier point of time, that advice just may have been more positive. 107 In summary, in my opinion:

(a) The primary judge erred in failing to give explicit reasons as to why, notwithstanding his finding that the appellant did not fully understand the advice he received from the barrister, concurred in by the solicitor, on 31 May 1999, that fact was "beside the point" with respect to the solicitor's liability to the appellant; it may have been "beside the point" on 31 May 1999 but not "beside the point" had the solicitor investigated the appellant's case and provided proper advice at an earlier point of time (see (e) below); (b) The fact that the primary judge found that the appellant did not fully understand the advice received on 31 May 1989 would seem to support the solicitor's evidence that on that day the appellant was, indeed, in such a state that it followed that he did not understand what he was being told; (c) If the solicitor's evidence to that effect is accepted, then it may well be that the solicitor was in breach of his duty of care in failing to take reasonable steps on that occasion to ensure that the appellant did understand the advice he was receiving; (d) That failure would only sound in damages if the appellant proved that, having understood the advice in question, he would have instructed the solicitor not to accept the settlement but to claim common law damages; (e) The primary judge erred in accepting without more that the failure of the solicitor which he had found in the first judgment to have occurred in investigating and properly explaining to the appellant his common law rights at an earlier point of time and in a manner which was sufficient to enable the appellant to provide informed instructions, was overcome by the advice received by the appellant from the barrister and concurred in by the solicitor on 31 May 1999; (f) Although the primary judge found in the first judgment, and did not resile from that finding in the final judgment, that the solicitor was in breach of his duty and was negligent in failing prior to May 1998 to investigate and advise the appellant as to whether he could establish liability against the employer and as to whether he would be able to exceed the s151G and 151H thresholds, he did not proceed to determine what that advice would have been, what steps the solicitor should have taken to enable him to have adequately provided that advice and what the appellant's response would have been with respect to the advice so received; in failing to address these issues, his Honour erred;

(g) Had the primary judge not erred in the manner referred to in (f) above, the application filed by the solicitor in the Compensation Court on 20 May 1998 and the subsequent hearing on 31 May 1999 may not have occurred and the appellant's case may therefore have been conducted differently; (h) There was conflicting expert evidence as to whether the solicitor should have retained an independent medico-legal consultant to confirm or otherwise the opinions of the treating surgeon, Dr Elliott, which the primary judge failed to resolve.

108 It is clear from the foregoing that, in my opinion, it has been demonstrated that the primary judge was in error with respect to a number of issues. The question is what follows from that. There are two possibilities. The first is that there should be a new trial. The second is that this Court should determine those issues for itself. 109 As to the latter, I have already commented upon the evidence and upon what I would regard as a possible outcome based on that evidence, namely, that the advice given by the solicitor after adequate investigation would have been no different to that given by the barrister so that the appellant may still not have risked his hand by proceeding at common law given the risks involved and, in particular, the risk that if he failed to meet the thresholds not only might he be mulct in costs but also he would lose any further workers' compensation entitlements. 110 Although there was some force in the solicitor's submission that the possibility of the appellant's position improving with further medical reports with knowledge of the appellant's car accidents would be remote, as it would only add another uncertain factor to the cause of the appellant's injuries, the lack of appropriate findings by the primary judge makes it difficult to resist the appellant's submission that the nature of the errors into which the primary judge fell requires there to be a new trial on all issues. 111 The simple fact is that the appellant was entitled to have his common law entitlements properly investigated, appropriate medical evidence obtained and advice, if appropriate, as to how his case might be affected by his drug taking and other aspects in respect of which the solicitor expressed concern. All these matters would need to have been explained to him in a manner that enabled him to come to a rational and informed decision. He was deprived of that opportunity. Although, as I have observed, there is a case for surmising that the solicitor's advice may well have been the same as that conveyed to the appellant by the barrister on 31 May 1999 and his instructions to proceed with his workers' compensation application may also have been the same, the failure of the primary judge to address these issues and to provide adequate reasons in respect of some of his findings justifies a finding by this Court that a substantial wrong or miscarriage has been occasioned to the appellant which warrants an order for a new trial. 112 So far as the question of damages is concerned, it is unnecessary to deal with the challenges made by the solicitor to his Honour's findings in the first judgment with respect thereto except to observe, as was conceded by the appellant, that the primary judge's finding (at Red 91E-G) that the appellant had a continuing partial economic loss of $250 per week was unsupported by any reasons and, therefore, was an error in itself. This and other difficulties with his Honour's assessment of damages justify an order that a new trial extend to all issues. It is therefore unnecessary for me to consider further Issue (g).

Issue (d): Did the primary judge err in finding that the barrister was not in breach of his duty to the appellant in properly advising the latter with respect to his common law rights and the effect his acceptance of permanent loss compensation would have upon those rights?

Issue (e): Even if the barrister's advice was negligent, was he immune from suite in view of the decision of the High Court of Australia in D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755? 113 Again, it is appropriate to consider these issues together. They arise out of the solicitor's cross-claim against the barrister in respect of which it was submitted that if the solicitor was negligent in the advice that he tendered to the appellant, then so was the barrister. 114 The solicitor also submitted that the primary judge erred in finding that the barrister was not negligent because, firstly, the appellant did not have the benefit of being able to digest and appreciate the gravamen of that advice because on 31 May 1999 he was in a condition of aggravation, concern and anxiety; and, secondly, the appellant was not advised as to what his common law rights were worth in an adequate manner because the barrister had inadequate information upon which to form any view with respect to that issue. 115 In my opinion, there is no substance in these submissions. There was no claim by the appellant against the barrister of any nature and the solicitor's cross-claim was purely protective in the event that he himself was found guilty of negligence. However, the only claim that the solicitor had against the barrister would be in respect of the barrister's advice provided on 31 May 1999. It could not be alleged that the barrister should have given advice on an earlier occasion as his Honour found that he was not instructed to do so and there was no challenge to that finding. Furthermore, the barrister was cross-examined as to whether he had sufficient information to enable him to advise the appellant in relation to the thresholds and maintained that he did: see [] above. As the primary judge accepted the barrister's evidence, it would be difficult for the solicitor to suggest that the barrister did not have sufficient material to give advice in which the solicitor apparently concurred. 116 It is true that the appellant only received this advice for the first time on 31 May 1999 which of itself was inappropriate. But the responsibility for that situation rested solely with the solicitor. This is particularly so as it is clear that the solicitor knew much more about the appellant than did the barrister. Although, as I have noted, the appellant submitted that the solicitor should have taken reasonable steps to ensure that the appellant understood the advice that he was receiving from the barrister, again in the circumstances that duty lay solely upon the solicitor and not the barrister. 117 Thus, the finding of his Honour to which I referred in [51] and [53] above, that if the question of election was still alive as at 31 May 1999 (as it in fact was) then the barrister (as well as the solicitor) should have given consideration to providing advice, sometime before that date, on whether the appellant had an arguable common law claim, was in my opinion in error. 118 In any event, in my opinion the barrister was in the circumstances immune from being sued for negligence by the solicitor. In D'Orta-Ekenaike the High Court refused to reconsider its decision in Giannarelli v Wraith (1988) 165 CLR 543 notwithstanding the decision of the House of Lords in Arthur J S Hall & Co v Simons [2002] 1 AC 615. In particular, in their joint judgment Gleeson CJ, Gummow, Hayne and Heydon JJ held (at 770 [86]) that "… there is no reason to depart from the test described in Giannarelli as work done in court or 'work done out of court which leads to a decision affecting the conduct of the case in court' or, as a latter class of case was described in an Explanatory Memorandum for the Bill that became the Practice Act, 'work intimately connected with' work in a court. (We do not consider the two statements of the test differ in any significant way)." 119 McHugh J, whilst agreeing with the joint judgment, referred to the meaning of "intimately connected" and said (at 783 [157]): "The issue is whether the relevant connection with the conduct of the litigation exists, not the form of the negligence. An integral part of the advocate's role is the giving of advice on the basis of which the client will give instructions that direct the course of proceedings. The advice is critical to and often determinative of the client's decision." 120 In the present case, the barrister gave the subject advice in the context of advising the appellant as to the effect his acceptance of permanent loss compensation would have upon such common law rights as to damages as he may have had. That advice was critical to the decision of the appellant to accept the settlement that was being offered by the employer's workers' compensation insurer with respect to the appellant's ss66 and 67 claims. His acceptance of that settlement was dependant upon firstly, the advice given by the barrister as to the likelihood of any claim for common law damages exceeding the thresholds and, secondly, the effect that acceptance of permanent loss compensation would have upon his common law rights, such as they were. It is difficult to imagine a stronger case than the present where the advice given by the barrister led to the appellant's decision as to the conduct of his case before the Compensation Court or which was more intimately connected with the course of that case including its settlement. 121 It follows that in my opinion even if the barrister was negligent (which in my opinion he was not), he was immune from being sued by either the appellant or the solicitor. Accordingly, the solicitor's cross appeal against the barrister should be dismissed with costs.

Conclusion 122 In my opinion, the appellant has succeeded in establishing a number of errors in the reasoning of the primary judge which led to his finding that the solicitor was not in breach of either his retainer or common law duty of care to the appellant. On the other hand, the solicitor has not established that the primary judge was in error in finding in favour of the barrister on the solicitor's cross-claim. 123 In these circumstances, I would propose the follow orders: (a) Appeal allowed; (b) Judgment and verdict for the respondent entered by his Honour Judge Finnane QC on 12 October 2004 be set aside; (c) The proceedings as between the appellant and the respondent be remitted to the District Court for a new trial with respect to both liability and damages; (d) The Cross-appeal of the respondent be dismissed with costs; (e) The costs of the first trial between the appellant and the respondent to abide the result of the new trial; (f) The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified. 124 BASTEN JA: The Appellant (the plaintiff in the District Court proceedings) suffered an injury at work on 25 September 1996. On 20 May 1998, his solicitor (the Respondent) filed on his behalf an application under the Workers Compensation Act 1987 (NSW). The application was disposed of, by agreement, on 31 May 1999. The agreement, between the Appellant and his former employer, required the payment to him of amounts pursuant to ss66 and 67 of the Workers Compensation Act. A further element of the application, seeking a lump sum payment in commutation of his entitlement to further weekly payments, was not resolved and he continued to receive weekly payments. 125 Apparently referring to the sum of the amounts the subject of the agreement, the Appellant's pleading, as against his former solicitor, alleged: "As a consequence of accepting such an amount the plaintiff made an election irrevocably preventing him in bringing a claim for damages in respect of the injury sustained in the course of his employment … ."

His claim for damages was based on the alleged negligence of his solicitor in failing to advise him adequately in relation to a possible claim for damages under the general law. 126 The Appellant first contacted the Respondent in relation to his injury on 1 July 1997. The application to the Workers Compensation Court was made on 20 May 1998. The trial judge found that, as at the date the application was filed, there was nothing in the solicitor's file to indicate that any consideration was being given in relation to a common law claim. If, given the general nature of the instructions, the Respondent was under a duty to consider the availability of a common law claim, make such investigations as were required to determine its potential merit, give advice to the Appellant in relation to such a claim and obtain his instructions, the trial judge was satisfied that no such steps had been taken prior to the filing of the application in the Workers Compensation Court. 127 Following his Honour's judgment of 24 June 2004, there was a flurry of further submissions from the parties, asserting that his Honour's assumption as to the time the relevant election occurred was wrong, although the precise state of the statutory provisions at various relevant times, was not clearly set out. Nor was it precisely identified in this Court. 128 If his Honour were wrong in holding that the filing of the application terminated any right to make a claim for common law damages, that necessitated reconsideration of the circumstances, to see if further steps were taken by the solicitor after the filing of the application, and before the right to claim damages was, in accordance with the statutory provisions, lost. 129 Following the initial conference and the filing of the Workers Compensation Court application, counsel was briefed in February 1999 and held a conference with the Appellant, in the absence of the Respondent, on 4 May 1999. The parties met again at the Workers Compensation Court on 31 May 1999. 130 In his judgment of 12 October 2004, the trial judge referred to his earlier conclusion with respect to the advice given by counsel on the day of the hearing. His Honour stated: "I concluded that the cross-defendant, [the barrister] explained in a proper way to the plaintiff on the day of the hearing of the workers compensation case, what the problems of damages were at common law and that the plaintiff might get only a small amount for non-economic loss and then possibly nothing for economic loss. He explained to him that he would have to establish negligence to get anything and that if he chose to get common law damages in lieu of proceeding with his workers compensation case, he might end up receiving very little and losing his right to receive workers compensation. In my opinion that advice could not be said to be negligent."

His Honour then noted that the Respondent was present at the conference on that day and concurred in counsel's advice and held that, because the advice was not negligent, nor was the Respondent "for concurring in it". 131 This reasoning, purportedly based upon his Honour's findings as set out in the earlier judgment, is flawed. As noted, the solicitor had not merely failed to give appropriate advice in relation to a possible common law claim, but he had failed to make adequate inquiries of the Appellant as to the circumstances which might found a claim and had failed to carry out the necessary investigations. The fact that counsel may have given careful and appropriate advice on the basis of the material presented to him, did not lead to a conclusion that the solicitor had not been negligent in his preparation of the case. The finding as to the negligence of the solicitor, prior to 20 May 1998, could only be varied if it appeared that the solicitor had taken the necessary steps to rectify his earlier omissions, prior to 31 May 1999. However, the evidence did not justify that conclusion, nor did his Honour make any finding to that effect. Accordingly, there is an inconsistency between the findings of fact made in relation to the solicitor and the judgment in his favour. 132 It follows that the judgment and verdict in favour of the Respondent should be set aside. However, it does not follow that his Honour's earlier conclusion, namely that the Respondent had been negligent in his conduct as a solicitor, was sufficient to support a judgment in favour of the Appellant. There are two further and inter-related findings which must be made. They are, first, that the Appellant suffered a loss and that the negligence caused the loss. Thus, if the results of further inquiry and investigation had been advice not to pursue a common law claim, but to accept a reasonable offer under the Workers Compensation Act, the negligence would have caused no loss. Similarly, even if the Appellant had not accepted such advice, and if a common law claim would have resulted in him obtaining no more than he obtained under the Act, again he would have suffered no loss. 133 Before directing attention to these further issues, it is necessary to determine the date at which the Appellant's claim against the Respondent crystallized. The parties appear to have accepted that the date from which the Appellant was precluded from bringing proceedings for general law damages was 31 May 1999, being the date of the agreement with respect to payments under ss66 and 67 of the Workers Compensation Act. 134 Prior to amendment by the Workers Compensation Legislation Amendment Act 1998 (NSW) s151A provided, relevantly for present purposes: 151A … (2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both: (a) permanent loss compensation in respect of the injury, and (b) damages in respect of the injury from the employer liable to pay that compensation, but is required to elect whether to claim that permanent loss compensation or those damages. (3) The person makes that election: (a) by commencing proceedings in a court to recover those damages or by accepting payment of those damages (in which case the person ceases to be entitled to permanent loss compensation in respect of the injury), or (b) by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury).

The term "permanent loss compensation" is defined to mean compensation under Division 4 of Part 3 of the Act (see s151A(1)), which includes compensation under ss66 and 67. Accordingly, if this provision were applicable, the right of the Appellant to recover damages was lost either upon accepting payment of compensation pursuant to the agreement made on 31 May 1999, or, if this occurred, by the Compensation Court making an award, on that date. 135 Amendments to s151A made by the 1998 Amendment Act did not apply in respect of awards of compensation made by the Compensation Court in connection with proceedings instituted before the commencement of the amendments on 1 August 1998. Accordingly, assuming an award was made on 31 May 1999, the proceedings having been instituted before the relevant date, the old section continued to apply. Because the parties assumed the correct date was 31 May 1999, I will assume that an award was made, presumably by consent, by the Compensation Court at the hearing listed on that day. 136 In Dunn v Firth [2003] NSWCA 280, Beazley JA noted at [11] the finding of the trial judge that had the appellant been advised "that the prospects of success were 50% or better the appellant would have made an election and sued at common law". Her Honour noted that findings with respect to causation were not challenged. However, as Davies AJA noted, concurring, had the appellant been advised "that the prospects of recovering substantial damages were so small and the costs and difficulties of a common law trial so great that common law proceedings ought not to be instituted", he thought she would have heeded the advice: at [72]. Commonsense suggests that this is correct and that, in order to know what a plaintiff would do, if given advice with respect to a common law claim, it is necessary to identify each of the relevant considerations, including the value of workers compensation payments which would be deducted or would cease; the chances of proving negligence and the likely damages if a claim were successful. 137 In the present case, the trial judge appears to have been content to assume that, if a significant benefit were available, on the basis of a common law claim, the Appellant would have opted to proceed with such a claim. On one view, in the absence of evidence from the Appellant as to what he would have done, had he been given information of the kind before the Court in the present proceedings, it may be difficulty to be satisfied on the balance of probabilities of the relevant causal connection. On the other hand, the test of causation is ultimately one to be determined on all the relevant material and not merely upon the assertion of the plaintiff as to what he or she would have done in hypothetical circumstances. Indeed, an appropriate assertion may, of itself, carry little weight: see, eg, Rosenberg v Percival (2001) 205 CLR 434 at [15]-[17] (Gleeson CJ); [44]-[45] (McHugh J); [86]-[87] (Gummow J); [157]-[158] (Kirby J) and [221] (Callinan J), dealing with the course a patient would have taken if warned of the risks of a proposed operation. 138 In the present case, the trial judge assessed damages largely in accordance with the report provided by Mr Buckley, on behalf of the Appellant. According to the plaintiff's schedule of calculations, which were ultimately not adopted by his Honour because of the reversal of his conclusion as to liability, the indications given in the first judgment would have resulted in a judgment in favour of the Appellant of approximately $100,000. On its face, it would seem that a reasonable likelihood of such a recovery would be a sufficient base from which to infer that the Appellant would have chosen to preserve his common law rights, had he been given the option. 139 At [107] above Tobias JA concludes, at (d) and (f) and (h) that the trial judge was in error in failing to make findings as to what the advice would have been, and what the Appellant's response would have been with respect to the advice. In my view, if his Honour's assessment, as made in the first judgment, is substantially accepted, the relevant inference may be drawn and there would be no need for the matter to be remitted for a further trial to address that issue. However, it is necessary to consider whether the complaints made by the Respondent as to the plaintiff's schedule have substance. 140 The most significant departure from the plaintiff's assessment, as submitted by the Respondent, is the need to remove from the calculation of notional damages an amount on account of interest for a period just short of four years from the date of the notional trial for common law damages on 1 September 2000, until the date of judgment on the claim against the Respondent, being an amount of $92,686. Prior to the addition of that amount, the damages calculated by the plaintiff were $337,000, but the allowance for past and future workers compensation deductions was a fraction under $330,000. Thus, unless the interest payment were to be added to the amount of damages prior to deductions, the common law claim would have been virtually valueless. (The first judgment is silent as to whether such an amount should have been included.) 141 The Respondent makes other complaints about the calculations undertaken by the primary judge or by the Appellant, but, with one exception, they are not critical for the purposes of the present argument. Thus, the most significant challenge, after the interest claim, concerns the reduction of future workers compensation payments by an amount of 25% for vicissitudes, being the same figure adopted in relation to future economic loss. As the Respondent noted, there is no reason why those figures should be the same, although it does not follow that they may not be: see Tipper v Williams (No. 2) (Court of Appeal, 6 May 1994, unreported). The effect of adopting a lower figure in relation to future compensation payments (15% being suggested) would be to increase the deduction by $25,000. However, if the Respondent were unsuccessful on its interest argument, there would still be an amount of damages in the order of $75,000 payable to the Appellant. The interest calculation is therefore critical to the outstanding issue of causation. 142 The submission made by the Respondent was that interest should only have been awarded after the calculation of damages had been assessed and workers compensation entitlements deducted. That was said to follow from the judgment of James J in Valmas v Nyman (12 November 1996, unreported) and the decision of the Queensland Court of Appeal in Green v Berry [2001] 1 Qd R 605 at 619 and 633. However, a reading of the table set out in Valmas (at p 43 of Butterworths unreported cases) suggests that his Honour included interest on past loss of earning capacity and past general damages, before making the deductions on account of workers compensation payments. On the other hand, what appears not to have been awarded was an amount of interest on account of future loss of earning capacity. 143 In Green v Berry, a question was raised as to the calculation of damages on a notional basis, but the issue of significance addressed by Pincus JA (at 619) (McMurdo P agreeing) and by Jones J (at 633) was whether an allowance should be made for the risk of failure before or after the deduction of workers compensation and social security payments. Reference was made in that context to the decision of this Court in Scott v Echegaray (1991) Aust Torts Rep ¶81-120, it being noted in Green at [97]-[99] (by Jones J) that the precise point in issue in Green was not there considered. At [38], Pincus JA expressed the view that, if Scott was authority for the proposition that damages should be assessed on a 50% chance of success whilst discounting on the basis of 100% chance of losing a workers compensation payment, that result was to be doubted: at [38]. This is a different issue. 144 In my view neither the plaintiff's assessment of interest, nor the Respondent's total removal of the item for interest is correct. Rather, the notional assessment of damages at the hypothetical trial against the employer should include pre-judgment interest from the date on which the cause of action accrued until the date of judgment, on so much of the award as reflected past loss, this being the calculation undertaken by James J in Valmas. Indeed, it would seem that the calculation should be restricted to interest payable for past loss other than that assessed pursuant to s 151G. In relation to non-economic loss assessed under that provision, no pre-trial interest was permitted, by virtue of the prohibition in s 151M(3), as in force prior to its repeal by the Workers Compensation Legislation Further Amendment Act 2001, Schedule 1.1, item [11]. That repeal commenced on 27 November 2001, well after the date of the notional trial. (In relation to the relevant transitional provision, see Schedule 6, part 18C, clause 9.) Accordingly, the calculation should be limited to the amounts of past economic loss identified by the plaintiff (including an amount pursuant to the principles in Fox v Wood and for superannuation) being a total of $79,764. In the present case, the cause of action was treated as accruing on 31 May 1999, the date of the notional judgment being 1 September 2000. Thus an allowance should be made for interest at 9.6% on those payments which had notionally been outstanding for 15 months less tax. This figure would be an amount of less than $10,000, if the bases of calculation otherwise remained the same. 145 I also accept that the judgment below must be assessed on the basis of the loss of a chance of bringing successful proceedings against the employer. In this context, "success" involves, as Tobias JA has explained, assessment of non-economic loss at a level which exceeds the relevant threshold for that form of damage and also, given the circumstances, exceeds the threshold which would permit the award of economic loss. The trial judge did not undertake such a calculation, but neither did he find that success was inevitable. Indeed, on the evidence, the latter finding would have probably been unsustainable. It follows that whatever award was calculated on a notional basis, it should properly have been discounted by a least 20% and probably by a considerably higher figure. 146 The evidence in the present case demonstrates that the Appellant was by no means inclined to accept what he perceived to be an inadequate sum of money in place of his weekly payment entitlements. Thus, believing the value of a commutation payment should have been of the order of $120,000, he rejected an offer of $70,000. Given that he placed such a value on his future workers compensation payments, it is reasonable to infer that he would not have forgone those payments for an amount of general law damages which, had he been properly advised on the basis of a full medico-legal assessment of the kind presented to the trial judge, would be likely to result in the payment of less than $10,000. 147 For these reasons, although the trial judge made identifiable errors in the approach adopted, the result did not involve a miscarriage and accordingly there should be no retrial. 148 Before leaving this conclusion, it is necessary to note the additional errors identified by Tobias JA at [107] above to determine whether they impact on the conclusion that there has been no miscarriage. Paragraphs (a)-(c) concern the responsibility of the Respondent "to take reasonable steps … to ensure that the appellant did understand the advice he was receiving" and his Honour's dismissal of the conclusion that he did not understand what he was being told. 149 With respect, I think the statement of the test overstates the principle identified by the President in Burt v Ware (Court of Appeal, 28 October 1998, unreported). Burt was a case in which the appellant solicitor had demonstrated to the satisfaction of the trial judge that his client had been given clear advice not to accept a settlement, which both solicitor and counsel considered manifestly inadequate, in circumstances where he had signed a settlement sheet which acknowledged that he had been advised that "under no circumstances should the above offer be accepted". His Honour had upheld a claim in negligence based on the sole ground that the written advice did not include the proposition, which was referred to orally, that acceptance would extinguish his rights to workers compensation. It was in that circumstance that the President stated, in what must be considered the manner most favourable to the client, the duty of care. Nevertheless, his Honour's conclusion, contained in the sentence which immediately follows the passage set out at [86] above read as follows: "Here such care was taken, or to put it more correctly, it was not established that there was a lack of care in circumstances where the advice was orally conveyed immediately prior to the settlement instructions being taken." 150 In any event, the precise formulation of the test is less important than the comment of the trial judge that any lack of full and complete understanding on the part of the Appellant was "beside the point". In my view, there are two responses to this complaint. First, the intended meaning must be that, because the advice was not negligent and because the Appellant accepted it, it did not matter that he may not have fully understood its purport. No doubt a different conclusion would have been reached if either the advice had been negligent, or the Appellant had not followed it. Secondly, if the advice was properly conveyed, with reasonable care, so that it could be understood, the fact that the recipient may not have understood it would not be sufficient to demonstrate the negligent provision of a service. In any event, whether or not his Honour intended to convey either of these meanings, it does not affect the approach relied on above, which assumes that there was negligence on the part of the solicitor. 151 In relation to paragraphs (d), (e) and (f) at [107] above, I have assumed, in the Appellant's favour, that he would have given appropriate instructions, if there had been shown to be a realistic chance that he would have been significantly better off by doing so. Further, in relation to paragraph (h), I have assumed, again in favour of the Appellant, that the solicitor should have retained a medico-legal consultant and obtained further medical evidence, of the kind which was in fact tendered to the trial judge. 152 At [112] Tobias JA further notes the Respondent's complaint that a calculation of future economic loss was undertaken on the basis that there were neither reasons nor evidence to support the on-going impairment of earning capacity in the amount of $250 per week. I would agree with his Honour that the assumption of that figure demonstrates error and that the correct figure could only have been lower. That conclusion provides significant support for my own view that there has been no miscarriage in the present circumstances. 153 If the judgment in favour of the solicitor is maintained, it follows that the judgment in favour of the barrister must also be correct. Accordingly, in my view the appeal and cross-appeal should be dismissed with costs. Neither the cross-appellant nor the cross-defendant sought to impose any cost liability on the Appellant in respect of the cross-appeal and accordingly, the cross-appellant (the solicitor) should pay the cross-respondent's costs of the cross-appeal. **********

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