Dougall v Melville

Solicitors: Yeldham Price O'Brien Lusk (Applicants) Firths, The Compensation Lawyers (Respondent) File Number(s): 2016/209697 Publication restriction: No Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 14 June 2016 Before: Gibb DCJ File Number(s): 2014/271544

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the Judgment] On 10 September 2014 the respondent, Peter Melville, brought a claim in the District Court against his former legal representatives, the appellants (the firm), in relation to alleged negligent advice given by them in relation to the settlement of a claim for workers compensation (negligence claim). In June 2015 he amended his statement of claim to add a claim of alleged misrepresentations in contravention of s 42 of the Fair Trading Act 1987 (NSW) (Fair Trading Act) (misrepresentation claim). The primary judge ordered that the misrepresentation claim take effect from the date of the amendment. The contraventions and/or negligence were said to have occurred on or about 25 May 2007 when the firm acted for the respondent on the settlement of a workers compensation claim against his former employer, Toll Pty Ltd (Toll), in respect of an incident involving a forklift which occurred on 25 July 2005 (first WC claim). By reason of the compromise reached in respect of the first WC claim, Toll subsequently denied any liability regarding a second WC claim brought by the respondent in respect of injuries to his knees he alleged were consequent upon the nature and condition of his employment with Toll. According to the respondent's pleaded and particularised case, he became totally incapacitated for work after knee surgery in November 2007, which he alleged was required to ameliorate the deterioration of his knees allegedly caused by his employment with Toll. On 8 July 2014, the second WC claim was settled on terms which prevented the respondent from bringing a work injury damages claim in respect of his knees and from claiming weekly workers compensation. On 5 March 2015 the appellants filed a notice of motion pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) seeking summary dismissal of the proceedings. The appellants contended the proceedings were not maintainable by virtue of the operation of s 14 and s 63 of the Limitation Act 1969 (NSW) (Limitation Act) and, once the misrepresentation claim was added, also by virtue of s 68(2) of the Fair Trading Act, each of which fixed a limitation period of six years from the accrual of the relevant cause of action. Gibb DCJ dismissed the motion. The appellants sought leave to appeal, and to appeal, from that decision. The principal issue on appeal was whether the respondent's claim against the appellants is barred by reason of the 6 year limitation period. This required consideration of the question when his causes of action in respect of each claim accrued, and, in turn, when he suffered measurable damage by reason of the appellants' alleged misrepresentations and/or negligence. Held, granting leave to appeal and allowing the appeal, per McColl JA (Payne JA and Davies J agreeing) (1) The respondent's causes of action accrued once the impact of the settlement of the first WC claim became "known or apparent". According to his pleaded and particularised case, that occurred on or around the date of his knee surgery in November 2007, at which time he suffered measurable damage for the purposes of both his negligence and misrepresentation claims, being the total loss of his earning capacity. The respondent's claims were therefore extinguished by operation of s 63 of the Limitation Act on or around November 2013. Accordingly, the primary judge ought to have summarily dismissed the respondent's proceedings: [76], [84] - [87], [90], [91]. Commonwealth of Australia v Cornwell (2007) 229 CLR 519; [2007] HCA 16 distinguished. (2) The appellants succeeded on a case which was not advanced before the primary judge which should be reflected in the order for the costs of the appeal: [88], [90], [91]. Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 applied.

Judgment

1. McCOLL JA: This application for leave to appeal arises out of a claim brought by the respondent, Peter Melville, against his former legal representatives, the applicants, in relation to their alleged misrepresentations in contravention of s 42 of the Fair Trading Act 1987 (NSW) (Fair Trading Act) (misrepresentation claim) as in force at the relevant time and alleged negligent advice given by them in relation to the settlement of a claim for workers compensation (negligence claim). The contravention and/or negligence were said to have occurred on or about 25 May 2007 when the applicants acted for the respondent on the settlement of a workers compensation claim.
2. The statement of claim commencing the proceedings was filed in the District Court on 10 September 2014. It relied only on the negligence claim. In June 2015, the statement of claim was amended, with effect from the date of amendment, to raise the misrepresentation claim.
3. On 5 March 2015, the applicants filed a motion pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) seeking summary dismissal of the proceedings. The applicants contended the proceedings were not maintainable by virtue of the operation of s 14 and s 63 of the Limitation Act 1969 (NSW) (Limitation Act) and, once the misrepresentation claim was added, s 68(2) of the Fair Trading Act as in force on 25 May 2007, each of which fixed a limitation period of six years from the accrual of the relevant cause of action (summary dismissal motion). [1]
4. Gibb DCJ dismissed the motion. [2] The applicants seek leave to appeal, and to appeal, from that decision. Leave to appeal is required both because an order dismissing an application for summary dismissal is interlocutory and, too, because the appeal is from a judgment on an application for summary judgment. [3]
5. The critical issue which arises for determination is whether the respondent's claim against the applicants is barred by reason of the 6 year limitation period. This requires consideration of the question when measurable damage was suffered by reason of the applicants' alleged misrepresentations and/or contravention of the Fair Trading Act, such that the respondent's causes of action accrued.
6. An erroneous interlocutory order which allows proceedings to be commenced or continued should, if possible, be corrected before trial, not later. Accordingly, leave to appeal should be granted readily in proper cases. [4] Such a case will be one which involves "an injustice which is reasonably clear, in the sense of going beyond what [is] merely arguable." [5] In my view, this is such a case. Leave to appeal should be granted.
7. For the reasons that follow, I would allow the appeal with costs. [6]

Factual background

1. The respondent was employed by Toll Pty Ltd (Toll) as a truck driver until about 17 December 2006. He alleged his employment was terminated as a result of injuries sustained in the course of that employment. It was common ground below, [7] and in this Court, that he sustained injuries in the course of his employment that were compensable pursuant to the Workers Compensation Act 1987 (NSW) (WC Act), the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) and pursuant to the common law as modified by those Acts.
2. The first to sixth and eighth appellants are, and at all material times were, solicitors, relevantly, the partners in the firm White Barnes Solicitors (the firm) during the period of about 2005 to 2007. The respondent retained the firm as his legal representatives in a claim for workers compensation from Toll in respect of an incident involving a forklift which occurred on 25 July 2005 (first WC claim). The seventh appellant, a barrister, was retained by the firm to act on that application. [8] The eighth appellant, another member of the firm, was joined as a defendant upon the filing of a Second Further Amended Statement of Claim (SFASC) on 29 June 2015.

First workers compensation claim

1. On 13 April 2007, the firm commenced proceedings on behalf of the respondent in the Workers Compensation Commission (Commission). He claimed weekly benefits and medical expenses in relation to head, neck and psychological injuries suffered as a result of the 25 July 2005 incident. The first WC claim was settled on 25 May 2007 at a conciliation held in the Commission facilitated by Arbitrator Marshal Douglas. A document entitled "Certificate of Determination - Consent Orders" dated 29 May 2007 made by the Commission pursuant to WIM Act, s 294, ordered Toll to pay to the respondent: 1. weekly benefits pursuant to s 40 of the WC Act in the amount of $27,500; 2. a maximum payment of medical benefits pursuant to s 60 of the WC Act in the amount of $5,000; and 3. costs. [9]
2. In addition, the Consent Orders provided: "3. That the Application to Resolve a Dispute be amended to include nature and conditions of employment and injuries to ribs, hernias, scarring, knees and back. 4. That there be an award in favour of the Respondent for all other injuries except for [the] injury on 25 July 2005." [Emphasis added.]
3. In a separate document, prepared as part of the settlement, the respondent also made a series of formal "Admissions" including that "[he] did not suffer any injury arising out of or in the course of [his] employment with [Toll] other than those referred to in the Application to Resolve a Dispute." [10]

Second workers compensation claim

1. On or around 8 November 2007, the respondent had a double knee replacement in order to ameliorate the gradual deterioration of his knees allegedly caused by his employment as a truck driver. He experienced various post-surgical complications and underwent follow-up surgery on or around 13 November 2007 and 20 December 2007. [11] According to particulars of the negligence claim, he has been unable to work since the date of the knee replacements. In a statement taken by his former solicitors, the respondent attributed his inability to work as being "entirely due to the state of my knees."
2. On or around 29 March 2011, the respondent sought legal advice in respect of disabilities he was suffering in both knees. He was advised by a solicitor, Ms Lynetta James, of the possibility of bringing both a workers compensation claim and a work injury damages claim against Toll if his knees were medically assessed over 15% whole person impairment (WPI). [12] Dr Ashwell, an orthopaedic surgeon, subsequently assessed the respondent's knee injuries as 33% WPI. [13]
3. On or around 14 September 2011, the respondent's solicitor sent Toll a Worker's Injury Claim Form in which he claimed compensation for injuries to both knees, the cause of which was identified as "Disease claim of gradual process." The solicitor also sent Toll a Permanent Impairment Claim Form in which he claimed for permanent impairment to both knees in relation to the 33% WPI and also s 67, WC Act (Compensation for pain and suffering). [14] On 23 January 2012, the solicitor also sent Toll a claim on behalf of the respondent for weekly workers compensation payments. [15]
4. Section 74 of the WIM Act requires an insurer which disputes liability in respect of a compensation claim to give notice of the dispute in terms which include a statement of the reason that the insurer disputes liability and of the issues relevant to the decision. On 9 March 2012, Toll forwarded a notice in accordance with s 74 of the WIM Act denying the second WC claim.
5. The notice referred to the settlement of the first WC claim, noting that it related to an application which included, relevantly, the nature and condition of employment and injuries to the respondent's knees and incorporated the respondent's consent into an award in Toll's favour in those respects. The notice asserted that the settlement had been paid to the respondent in full satisfaction of his compensation entitlements for all injuries sustained during the entire period of his employment with Toll including any injuries sustained to his knees. It included an extensive narrative of the first WC claim. It also put in issue the question whether any knee complaints from which the respondent suffered were associated with his employment but, in the alternative, asserted that should an employment connection be found, the terms of the settlement of the first WC claim prohibited him from "now seeking to recover compensation for that injury." The respondent's solicitor interpreted this assertion as "an estoppel point". [16]
6. The solicitor's affidavit explained that the respondent gave her instructions to continue with the second WC claim in relation to his knees.
7. On 2 December 2013 the respondent's solicitor filed an Application to Resolve a Dispute (ARD) in respect of the second WC claim. The ARD identified the date of injury as "Last day of work - 7/12/2006", [17] the place of injury as "Various and numerous places. Disease claim for gradual process" and the date of notice of injury as "14/9/2011". It claimed weekly compensation from 17 December 2006, $60,000 for permanent impairment of both the respondent's knees and $35,000 for pain and suffering. In the course of discussions with Toll in an attempt to resolve the matter the solicitor said "it was clear that Toll were relying on the estoppel point to defeat these proceedings." At a Conciliation Arbitration on 18 July 2014 before a Commission Arbitrator, Gerard Egan, the Arbitrator observed to the respondent: "[T]he key issue is the way the previous case was resolved. The Applicant should consider taking the most he can get because he can't undo the previous situation." [18]
8. The solicitor "took this warning and attempted settlement" with Toll. [19] The second WC claim was ultimately settled on 8 July 2014 on terms which included the respondent agreeing that he had suffered a 13% WPI, a percentage which prevented him from bringing a work injury damages claim in respect of his knees (a claim said by the solicitor to be worth approximately $157,000) and barred him from claiming weekly compensation. He received $18,700 representing 13% WPI and $47,300 for pain and suffering.
9. As part of the settlement, the respondent signed a deed of release dated 8 July 2014 pursuant to which in consideration of the payment of $66,000 "in full and final settlement of all actions, claims and possible claims against [Toll]," the respondent released Toll from all claims and liabilities of any nature connected with, or incidental to, the proceedings and any possible proceedings, including any entitlement to workers compensation benefits for any injury or disease arising out of or sustained in the course of his employment with Toll. The respondent also executed a Complying Agreement pursuant to s 66A of the WC Act confirming that he had received legal advice about the 8 July 2014 agreement (presumably the deed of release) before entering into it.
10. The solicitor expressed the view that it had become clear at the Conciliation conference that the respondent had been "prevented from bringing a work injury damages clam against Toll due to the signing of a document in the earlier [first] workers compensation proceedings". [20]

Professional negligence claim

1. On 10 September 2014, the respondent commenced proceedings in the District Court against the appellants and the barrister alleging professional negligence on their part. On 29 June 2015, he amended his Statement of Claim (by that stage at its second iteration) to include the misrepresentation claim. The primary judge directed that that amendment take effect from the date of the amendment. [21]
2. By the SFASC, the respondent pleaded the following particulars of negligence, damages and breaches of the Fair Trading Act: "13. Particulars of negligence a. Failed to seek any or adequate instructions from the Plaintiff. b. Failed to advise the Plaintiff of the extent of his rights to workers compensation. c. Failed to advise the Plaintiff as to his rights as to work injury damages. d. Acted without obtaining instructions from the Plaintiff in settling the workers compensation proceedings. e. Advising the Plaintiff to make admissions contrary to his interest. f. Failed to advise the Plaintiff that signing the 'Admissions' and the 'Agreed Facts' documents on 25 May 2007 would enable Toll to raise an estoppel at the conciliation at 14(g) below. 14. Particulars of damages a. Loss of workers compensation rights against Toll. b. Loss of rights pursuant to s 66 of the 1987 Act for lump sum compensation. c. Loss of rights pursuant to s 67 of the 1987 Act for pain and suffering compensation. d. Loss of rights pursuant to s 60 of the 1987 Act for medical compensation. e. Loss of rights pursuant to various provisions of the 1987 Act for weekly compensation. f. Loss of right to sue Toll for work injury damages. g. Further and/or in the alternative, loss of ability to adequately settle a subsequent conciliation against Toll on 7 July 2014. h. Further and/or in the alternative the Plaintiff alleges the Defendant's breached of [sic, as in original] the Fair Trading Act 1987 (repealed). 15. BREACHES OF THE FAIR TRADING ACT 1987 (REPEALED) a. The Plaintiff was at all material times a consumer within the meaning of s 5, Fair Trading Act 1987 (repealed). b. The Defendants at all material times provided services in trade or commerce as defined in s.4 of the Act to the plaintiff for the purposes of s 5 of the Act. c. The Defendants, in contravention of s 42 of the Act, mislead and or deceived the Plaintiff and or acted in a manner which was likely to mislead and or deceive the Plaintiff. Particulars i. Represented that they were competent practitioners in personal injury law. ii. The representation was untrue. iii. The representation particularised above was misleading and or deceptive as particularised in paragraph 13 herein. d. The Plaintiff relied on the representations pleaded above. e. By reason of the matters pleaded above, the Plaintiff has suffered loss and claims damages pursuant [sic, to] s 68 accordingly. Particulars i. The Plaintiff repeats those matters particularised in paragraph 14 herein."

Summary dismissal motion

1. The appellants filed affidavits sworn by their respective legal representatives in support of the summary dismissal motion to which were annexed documents relevant to the first WC claim, the Consent Orders disposing of it, the "Admissions" document and a document entitled "Agreed Facts", the latter having apparently come into existence contemporaneously with the execution of the Consent Orders. They also annexed correspondence exchanged concerning particulars of the respondent's case. [22]
2. Also annexed to the affidavit of the appellants' solicitor was a statement made by the respondent on 25 May 2011, in which he set out his employment history since the age of 19 when he started driving trucks. He was 64 at the time he completed the statement.
3. The history included accounts of how his work placed pressure on his knees when delivering goods requiring him to move pallets he alleged weighed 1,000 kilograms (1 tonne) and recounted the pressure he felt on his knees working at this job. Movement of such pallets occurred during his seven year employment with Toll, which ceased in 2006. The statement included the following: "46. It is clear to me that my knees have progressively gotten worse over my 44 years as a truck driver. 47. In 2007 I was feeling significant pain in my knees so I sought medical opinions and decided to have surgery so that I could continue working. I wasn't working at this stage and thought that whilst I was between jobs it would be a good time to fix my knees. 48. On about the 8 November 2007 I had knee replacement surgery at Berkeley Vale Hospital. This was performed by Dr Anthony Berneikis."
4. The respondent complained that since the operations on his knees, they had been left weak and unstable and caused him pain such that he was unable to get in and out of the cab of a truck and, accordingly, was unable to obtain employment of a nature that he had hitherto undertaken. He blamed his inability to work entirely on the state of his knees.
5. In a response to a request for particulars from the firm's solicitors asking that they particularise the respondent's rights against Toll, including "future rights", the respondent's solicitors, Messrs Bourke Love, replied: "The Plaintiff … had Workers Compensation and Work Injury Damages rights against Toll for the injury to his knees." [23]
6. In response to a request that the respondent particularise the respects in which the firm had failed to provide proper and adequate legal advice to the respondent prior to settling the first WC claim, Messrs Bourke Love replied, inter alia: "The plaintiff was not provided with advice in relation to an ability to bring a claim against Toll for the gradual onset of disease to his knees." [24]
7. In response to a request that the respondent's solicitors particularise the advice the firm failed to provide him as to the extent of his workers compensation rights, Messrs Bourke Love responded that the firm "failed to advise [him] he was able to bring a claim against his last employer for the gradual process of onset of disease to his knees." [25]
8. In response to a request that the respondent's solicitors particularise the serious financial loss he had sustained in consequence of the alleged failure to provide proper and adequate legal advice, Messrs Bourke Love replied: "The Plaintiff underwent bilateral knee replacement on 8 November 2007 … [f]ollowing that surgery he had a further three surgeries in relation to his knees and has been unable to work since the day of the first surgery. He has been assessed as having a 33% whole person impairment. He has spent approximately $150,000 in medical treatment." [26]
9. In response to a request for particulars from the barrister's solicitors seeking particulars of the nature of the respondent's injuries for which he allegedly lost his workers compensation rights and the basis for the assertion that he had suffered that loss, Messrs Bourke Love responded: "16. Loss of workers compensation rights (a) Due to the conduct of the defendants in the workers compensation proceedings relating to the injuries sustained on 25 July 2005 the Plaintiff is limited in his ability to successfully bring a workers compensation claim and a work injuries damages claim for the disease of gradual process to his left and right knee. The Plaintiff had bilateral knee replacements in 2007. The injury to his knees arises from the nature and conditions of his employment with Toll. The Plaintiff has been unable to return to work in any capacity since finishing his work duties with Toll in December 2006. (b) Beyond that which has already been particularised, this is a matter of law and/or evidence, including expert evidence. (c) In In [sic, as in original] 2013/2014 an ARD was filed in relation to the knee injuries. This application was significantly compromised due to the Respondent's argument that the Plaintiff was estopped from bringing his claim due to the settlement of the previous proceedings." [27] [Emphasis added.]
10. Finally, as the primary judge noted, on 9 March 2015, Messrs Bourke Love wrote to the barristers' solicitors in response to correspondence from the latter foreshadowing a summary dismissal application on the basis, inter alia, of his limitation defence: "… we say that your limitation argument is misconstrued. Our client's cause of action does not arise on 20 May 2007 as our client's case does not arise from the date of the negligent advice/lack of advice but from the date the loss is suffered. In this regard we draw your attention to Commonwealth of Australia v Cornwell [2007] HCA 16. Further, a limitation argument should only be entertained in clear cut cases where the limitation period applies …" [28]

Legislative framework

1. The limitation provisions in force at the time of the alleged misrepresentations (up to and including 25 May 2007) were as follows.
2. Section 14 which appears in Div 2 (General) of Pt 2 (Periods of limitation and related matters) of the Limitation Act provided relevantly: "14 General (1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims: …. (b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty, … ."
3. Division 1 (Extinction of right and title) of Pt 4 (Miscellaneous) dealt with extinction of right and title. Section 63 provided relevantly: "63 Debt, damages etc (1) Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against the person's successors, extinguished."
4. Section 42 of the Fair Trading Act which appeared in Pt 5 (Fair Trading) provided relevantly: "42 Misleading or deceptive conduct (1) A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive."
5. Section 68 in Pt 6 (Enforcement and remedies) provided relevantly: "68 Actions for damages (1) A person who suffers loss or damage by conduct of another person that is in contravention of a provision of Part 3, 4, 5 (section 43 excepted), 5A, 5B, 5C, 5D or 5E may recover the amount of the loss or damage by action against the other person or against any person involved in the contravention. … (2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued." [29]
6. The respondent particularised the loss allegedly caused by the appellants' negligence and misrepresentations, as the loss of his rights pursuant to, inter alia, ss 60, 66 and 67 of the WC Act. As at 25 May 2007 and 14 September 2011, those provisions dealt with compensation for the costs of medical or hospital treatment and rehabilitation etc (s 60), entitlement to compensation for permanent impairment (s 66) and compensation for pain and suffering for a worker who received an injury that resulted in a degree of permanent impairment of 10 per cent or more (s 67). [30]
7. In addition it is relevant to note that, at all relevant times, s 151H of the WC Act provided that no common law "damages may be awarded unless the injury results in … a degree of permanent impairment of the injured worker that is at least 15%."

Primary judgment

1. Central to the question of whether the proceedings should be summarily dismissed was the question of when the respondent suffered measurable loss or damage such that any cause of action he had against the appellants accrued and the limitation period commenced to run. [31]
2. The primary judge described that "core issue" as concerning the events of 25 May 2007, the date the first WC claim was resolved. Her Honour observed that the breach of duty was alleged to have occurred on or before that date and "insofar as loss be configured as a loss of right or loss of cause of action, any such loss or laying of waste to a chose in action occurred on that day." [32]
3. The primary judge described the appellants' submissions as "straightforward". They argued any cause of action arose on or before 25 May 2007 when, on the respondent's case, he received on the settlement of the first WC claim, an "inferior package of rights", [33] and expired six years later such that, unless the respondent's causes of action did not accrue until after 25 May 2013, all his claims were statute-barred. [34]
4. As to the respondent's case, the primary judge said he identified his relevant "loss" by reference to the loss or obstruction (by estoppel) of a cause of action which was said to have accrued after July 2011 or July 2014. He argued that "the procedural niceties of the [WC Act] and the [WIM Act] govern the accrual of right such that no loss occurs until it becomes impossible to complete the statutory formalities". [35] The primary judge said that he "configure[d] his loss as the loss of a cause of action or a right, or the loss of the opportunity to bring a claim to trial and recover damages at common law." [36] However this was only one of several ways Mr Robison of counsel, who appeared for the respondent below, but not in this Court, put the respondent's case. Substantially all the ways Mr Robison put the respondent's case turned on the proposition that his cause of action did not accrue until 8 July 2014 when he settled the second WC claim and alleged he was unsuccessful in asserting either or both his workers compensation and common law rights to their full extent. [37] However, I note that in addition to relying on the 2014 date, he also submitted the respondent's relevant loss did not occur until around 2011 or 2013. The reference to 2011 was to the date in that year when the respondent received a certificate of impairment for his knees. [38] The reference to 2013 was presumably to the date the ARD was filed. [39]
5. It is unnecessary to try to capture in detail the various ways Mr Robison otherwise put the case before the primary judge as her Honour ultimately did not analyse them. Rather, her Honour said she did not find them "particularly persuasive", but described them as "successful at introducing confusion." [40]
6. Her Honour did not ultimately express a concluded view about either parties' submissions. Rather, her Honour said she had "considerable difficulty following the plaintiff's contentions, which appear to turn procedural requirements into substantive rights," and concluded: "Be this smoke and mirrors or not, at the end of the plaintiff's submissions confusion reigns supreme to the point that I cannot form the view that this is a case that does not admit of reasonable argument and that there is no real question to be tried." [41]
7. Accordingly, her Honour dismissed the summary dismissal motion and ordered the appellants jointly and severally to pay the respondent's costs of the motion.

Issues on appeal

1. The appellants contend that the primary judge erred in: 1. failing to hold that the proceedings were barred by operation of s 14 and s 63 of the Limitation Act and s 68(2) of the Fair Trading Act; and 2. by reason of the error in ground one, failing to dismiss the proceedings pursuant to r 13.4 of the UCPR.

Appellants' submissions

1. The appellants put their case in three ways.
2. First, the appellants submitted, as they did before the primary judge, that the respondent's claims against them are claims for economic loss of his rights under the WC Act, being the loss of the right to recover in respect of the second WC claim. They argued that the respondent suffered relevant loss for the purposes of the limitation period in respect of those claims on the settlement of the first WC claim, at which time any loss he suffered crystallised. This was because by compromising the first WC claim (which involved including his knee condition in the ARD in which respect an award was entered in Toll's favour) he lost his rights to workers compensation payments and work injury damages in respect of his knee injuries. That was a measurable loss. On the respondent's case, as contended by the appellants, it was caused by the appellants' negligence or misleading and deceptive conduct in causing him to enter into the settlement on that day, on which time began to run for the purposes of the limitation period.
3. The appellants submitted that, contrary to the argument the respondent advanced before the primary judge, it was immaterial to the question when the respondent's causes of action accrued that the second WC claim required the satisfaction of any of ss 60, 66 or 67 of the WC Act. They argued that the primary judge correctly described this submission as seeking to turn procedural requirements into substantive rights. Rather, in their submission, such procedural arguments could not determine when, as a matter of substance, the respondent suffered "injury" for the purposes of making either a WC Act claim or a work injury damages claim.
4. The appellants also disputed the respondent's submission that what he called "contingencies" were properly so understood. They submitted that what he relied upon as "contingencies" did not constitute uncertain future events which, depending on their outcome, determined whether or not the respondent suffered relevant "loss". Rather they were requirements imposed by statute conditioning the respondent's entitlement to claim for workers' compensation or work injury damages.
5. On this basis the appellants submitted that any claim the respondent might have had was barred six years after 25 May 2007, being 25 May 2013. On that date the limitation period expired and any cause of action against them was extinguished. [42] Accordingly, the proceedings commenced on 10 September 2014 were statute barred.
6. Secondly, the appellants submitted that if the respondent did not lose relevant rights when the first WC claim was compromised, his claim in negligence and pursuant to s 68 of the Fair Trading Act must fail because their alleged conduct in giving him negligent advice and/or making misrepresentations caused him no loss. This case was but faintly advanced and, having regard to the conclusion to which I have come, will not be further considered.
7. Thirdly, the appellants submitted that if, as the respondent contended before the primary judge, his loss was said to be contingent on when he lost an entitlement to compensation under the WC Act or recover work injury damages, any such contingency was fulfilled by, at the very latest, the time of the respondent's knee replacement surgery on 8 November 2007 (the operations case). If time started running on that date, any cause of action was extinguished on 8 November 2013. Accordingly, the proceedings were statute barred on that basis too.
8. Finally, the appellants complained that the primary judge erred in failing to grapple with the parties' submissions in order to resolve the confusion caused by the respondent's submissions and ultimately determine whether there was a serious question to be tried. They submitted that this failure on the part of the primary judge resulted in her Honour's discretion under r 13.4 of the UCPR miscarrying.

Respondent's submissions

1. The respondent accepted that he would suffer relevant damage such that his cause(s) of action accrued when he first sustained economic loss in respect of the interest infringed.
2. As before the primary judge, the respondent's submissions were based primarily on Commonwealth of Australia v Cornwell in which a limitation defence failed because the plaintiff's cause of action was held not to have accrued until certain statutory contingencies were satisfied. [43]
3. First, the respondent submitted that any causes of action he had arising from the appellants' alleged negligence and/or misrepresentations in respect of the compromise of the first WC claim did not crystallise until he suffered an injury within the meaning of s 4 of the WC Act, which satisfied the elements of ss 60, 66 and/or 67 so as to entitle him to make a workers compensation claim, or satisfied the elements of a work injury damages claim. He contended that as at 25 May 2007 none of those elements had been satisfied. Accordingly, as at that date, any loss he suffered was contingent, not actual. As there was no measurable loss as at 25 May 2007, his causes of action in negligence and for contravention of the Fair Trading Act had not accrued.
4. In the case of the accrual of benefits under any or all of ss 60, 66 and 67 of the WC Act, the respondent contended that the following statutory contingencies had to be satisfied. First, "injury" within the meaning of s 4 of the WC Act which would result in permanent impairment, that permanent impairment being assessed as such under the relevant prescribed guidelines and the impairment arising from an "injury" to the respondent's knees causing an incapacity for employment. In addition, insofar as s 67 benefits were concerned, the respondent contended that the impairment would also have to cause pain and suffering. Substantially the same matters were relied upon in relation to any claim for work injury damages, save that, in addition to the matters to which I have referred, it was contended that the degree of permanent impairment would have to be at least 15%.
5. Secondly, insofar as the 15% WPI was concerned for the purposes of a work injury damages claim, [44] the respondent submitted that that could be established either by an agreement with the employer's insurer or by an assessment by an approved medical specialist. He submitted that neither had occurred in this case and that, until it had, the respondent could not bring a work injury damages claim.
6. Thirdly, the respondent submitted that the operations case the appellants advanced did not lead to a relevant "loss" as at the date of his knee surgery. This was because at the time he took the opportunity to have that surgery, he was off work while his union was sorting out some matters to do with his employment. Accordingly, he argued that there would have to be a factual inquiry as to when his knee surgery caused any incapacity for work that would entitle him to make a compensation claim under the WC Act or a claim for work injury damages.

Consideration

1. The power the primary judge was exercising summarily to dispose of the proceedings is one which calls for the exercise of "exceptional caution". [45] It cannot be exercised "once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it." [46] It is only to be exercised "when the action is clearly without foundation and … to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff." [47] Nevertheless, a plaintiff's case may be summarily dismissed even though extensive legal argument may be necessary to demonstrate the case is so clearly untenable that it cannot possibly succeed. [48]
2. I also recognise that "it [is regarded] as undesirable that limitation questions … should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases." [49]
3. Although I also note that the "Court is not concluded by the manner in which the litigant formulates his case in his pleadings," [50] the respondent did not suggest it was necessary to go beyond his SFASC to determine the summary dismissal motion. However, it is also appropriate to have regard to the particulars given of the SFASC to which I have referred.
4. The respondent's causes of action seek to recover economic loss consequent upon the appellants' alleged negligence and breach of the Fair Trading Act. In seeking to determine when the respondent's causes of action accrued it is necessary to identify, with some precision, the interest infringed by those matters. [51] The kind of economic loss which is sustained and the time when it is first sustained depend upon the nature of the interest infringed and, perhaps, the nature of the interference to which it is subjected. [52]
5. Actual damage or injury is the gist of the tortious cause of action in negligence. [53] A plaintiff cannot sue for damages in negligence until the cause of action accrues. To show the existence of a completely constituted cause of action in negligence, "a plaintiff must be able to show duty, breach, and damage caused by the breach; accordingly, in the ordinary case, it is at the time when that damage is sustained that the cause of action 'first accrues' for the purposes of a provision such as s 11 of the Limitation Act 1985 (ACT)". [54] Once that occurs, the cause of action will then be regarded as having accrued, even if some of the plaintiff's damages are prospective. [55] Time then begins to run for the purposes of the limitation period.
6. Similarly, insofar as the respondent claimed for breach of s 42 of the Fair Trading Act, the effect of s 68(2) was that the limitation period began to run at the time when the cause of action under s 68(1) accrued. Once again, as "loss or damage is the gist of the statutory cause of action for which [s 68(1)] provides, the cause of action does not accrue until actual loss or damage is sustained." [56]
7. Both the respondent's negligence and Fair Trading Act causes of action are substantially founded on the proposition that he was induced to enter the settlement of the first WC claim by reason of the appellants' negligent advice and/or misrepresentations. [57] The way the appellants put their case before the primary judge, and the first way they advanced it in this Court, was based on the proposition that the respondent suffered damage as soon as he made that agreement because he suffered loss because he acquired an "inferior package of rights". Such a case has been described as a "transaction case" [58] or the "damaged goods analogy". [59]
8. The difficulty with both such cases was explained by the plurality in Wardley. As their Honours said, when "a plaintiff is induced by a misrepresentation to enter into an agreement which is, or proves to be, to his or her disadvantage, the plaintiff sustains a detriment in a general sense on entry into the agreement … because the agreement subjects the plaintiff to obligations and liabilities which exceed the value or worth of the rights and benefits which it confers upon the plaintiff." [Emphasis added.] [60]
9. However, such detriment is not "universally … equated with the legal concept of 'loss or damage'", at least if "the disadvantageous character or effect of the agreement cannot be ascertained until some future date when its impact upon events as they unfold becomes known or apparent". [61] In that event, "the plaintiff sustains no actual damage until the contingency is fulfilled and the loss becomes actual". [62]
10. In order for there to be such damage, the court "must be able to apprehend and evaluate the damage, that is the loss, deprivation or detriment caused by the alleged breach of duty" so as to be able to discern whether the plaintiff "is left worse off as a result of the negligence complained about, which can be established by the comparison of a plaintiff's damage or loss caused by the negligent conduct, with the plaintiff's circumstances absent the negligent conduct." [63]
11. Accordingly, in order for the respondent's causes of action to accrue, there had to be some actual, measurable damage, beyond what can be regarded as negligible; prospective loss is not enough. [64]
12. For this reason, the appellants' first submission that the causes of action accrued on or about 25 May 2007 should be rejected. As at that date it is not apparent that the respondent had suffered any measurable loss in relation to his knee injuries. However, for the reasons which follow, the operations case should be upheld.
13. In my view, the respondent's causes of action can be taken to have accrued once the impact of the settlement of the first WC claim, and on his mooted case, the loss of his ability to recover either workers compensation benefits or work injury damages in relation to the injuries to his knees, became "known or apparent". As is apparent from the respondent's statement referred to earlier in these reasons, his claim of loss both in the negligence and misrepresentation claims turn on the proposition that he was totally incapacitated from work after his knee surgery. That is also evident from the particulars given attributing his serious financial loss to his total loss of earning capacity from the date of his surgery, surgery said to have been necessitated by the injury he suffered arising "from the nature and conditions of his employment with Toll". [65]
14. As before the primary judge, the respondent sought to persuade the Court that his case was one of contingent loss, analogous to Cornwell. In that case, in July 1965 Mr Cornwell received negligent advice from his superior to the effect that he was not eligible for membership of the Commonwealth superannuation fund which had been established in 1922 (the 1922 Fund), despite him having been eligible to join it since 8 May 1965. On 24 March 1987 Mr Cornwell became a member of the Commonwealth superannuation fund established in 1976 (the 1976 Fund) in succession to the 1922 Fund. The 1976 Fund provided lesser retirement benefits compared to those available under the 1922 Fund.
15. Mr Cornwell retired on 31 December 1994. On 16 November 1999 he commenced an action against the Commonwealth, alleging that the Commonwealth was vicariously liable for his superior's negligent advice and claiming the additional benefits he would have received on his retirement if he had been admitted to the 1922 Fund from 8 May 1965. The Commonwealth contended that his claim was statute-barred on the basis that his loss had been "actualised" either in 1976, when the 1922 Fund was replaced by the 1976 Fund, or on 24 March 1987, when he joined the 1976 Fund. The limitation defence was rejected at all stages of the litigation.
16. The majority in the High Court characterised the nature of the interest infringed for the purposes of determining the limitation question as being "an 'entitlement' conferred by federal statute law", which Mr Cornwall "stood to enjoy upon 'retirement.'" [66] Their Honours analysed the legislative schemes for the Superannuation Act 1922 (Cth) and the Superannuation Act 1976 (Cth) (the 1976 Act). [67] Having done so, they concluded that Mr Cornwell had sustained actual loss only on his retirement, so that his cause of action in tort for the negligent advice accrued on that date. Hence the action had been commenced within the relevant limitation period under s 11 of the Limitation Act 1985 (ACT). [68]
17. Critical to their Honours' conclusion was the fact that to become "entitled" to the "standard age retirement pension" under the 1976 Act, an eligible employee would be required, among other criteria, to have ceased to be such an employee on or after attaining the ages of sixty and sixty-five years. The entitlement to an "early retirement benefit" also depended upon satisfaction of various temporal and other criteria for voluntary or involuntary early retirement, as, too, did entitlement to an "invalidity benefit". [69]
18. Thus, the majority held that even if Mr Cornwell had joined the 1922 Fund in 1965, his pension entitlements thereunder would have been contingent upon meeting the statutory criteria. The same was true of his position under the 1976 Act after 24 March 1987 and before his retirement seven years later, "subject to the qualification that the amount of his actual contributions would no longer have been paid to him unless the conditions of s 80 were met." [70] Thus, Mr Cornwell's loss was only suffered on his retirement when the statutory criteria were satisfied. [71]
19. The majority rejected the Commonwealth's submission that Mr Cornwell's loss was "necessarily and irretrievably sustained" when the 1976 Fund commenced and replaced the 1922 Fund as a matter of speculation. In their Honours' view, "[h]e could not be said, consistently with the remarks in Sellars v Adelaide Petroleum NL, [72] in 1976 to have sustained loss of a commercial opportunity which had some value, as a matter of the degree of probabilities and possibilities." [73]
20. In my view, the matters upon which the respondent sought to rely as contingencies were not contingencies such as were considered in Cornwell. Rather, they were matters which would have to be proved in the course of any workers compensation claim or work injury damages claim the respondent may have sought to bring.
21. Rather, as the appellants contended in the operations case, the respondent suffered measurable damage for the purposes of both his negligence and misrepresentation claims in November 2007 when he suffered the total loss of his earning capacity after his knee replacement. This was clearly loss which was more than negligible in the sense referred to in the authorities to which I have referred. On his pleaded and particularised case, the respondent was, thereafter, precluded from making any, or any adequate, workers compensation or work injury damages claim by reason of the compromise of the first WC claim as reflected in the compromise of the second WC claim.
22. Accordingly, in my view, both the respondent's causes of action accrued on or around the date of that surgery. They were extinguished by the operation of s 63 of the Limitation Act on or around November 2013. His statement of claim pleading the negligence claim was not filed until approximately 7 years after the accrual of that cause of action. The amendment pleading the misrepresentation claim took effect from 29 June 2015, more than seven and a half years after the accrual of that cause of action. Both were clearly statute barred.
23. Despite strongly advancing the respondent's contingencies case, the respondent ultimately accepted in the course of argument in this Court the force of this logic. In my view, that concession was properly made. It recognised that sufficient is known of the respondent's loss and the damage he suffered consequent upon the resolution of the first WC claim by reason of his knee surgery and lost employment capacity to warrant the Court exercising its power of summary dismissal at this stage of the proceedings. [74]
24. In my view, the primary judge ought to have held that the respondent's proceedings should be summarily dismissed as both causes of action he sought to pursue had been extinguished by the operation of s 63 of the Limitation Act in or around November 2013, 6 years after the causes of action accrued.

Orders

1. The appellants have succeeded on a case which was not advanced before the primary judge. That fact should be reflected in the order for the costs of the appeal. [75]
2. I would make the following orders: 1. Grant leave to appeal. 2. Appellants to file a notice of appeal in the form set out in the White Book within seven days. 3. Orders 1 - 5 of the orders made by the primary judge on 14 June 2016, set aside. 4. In their place, order that: 1. pursuant to UCPR r 13.4, the proceedings be dismissed. 2. the plaintiff pay the defendants' costs. 1. The respondent to pay fifty per cent of the appellants' costs of the appeal (including the application for leave to appeal), with a view to the appellants bearing the balance of their costs of those matters.
3. PAYNE JA: I agree with McColl JA.
4. DAVIES J: I agree with McColl JA.

Endnotes

1. The applicants also contended that the proceedings be dismissed summarily on the basis that the first to eighth defendants are immune from suit. This argument was abandoned following the High Court's decision in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16.
2. Melville v Dougall (District Court (NSW), Gibb DCJ, 14 June 2016, unrep). There were no paragraph numbers in the primary judgment. Accordingly, all references are to pages of her Honour's reasons.
3. District Court Act 1973 (NSW), s 127(2)(a) and (d).
4. Tamworth Base Hospital v Durant [2000] NSWCA 209 (at [66]) per Handley JA, referred to with approval in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 (at [154] - [165]) per Ipp AJA (Spigelman CJ and Sheller JA agreeing).
5. Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 (at 46]) per Campbell JA (Young and Meagher JJA agreeing); see also Be Financial Pty Ltd (as Trustee for Be Financial Operations Trust) v Das [2012] NSWCA 164 (at [33]) per Basten JA (Tobias AJA agreeing).
6. I will refer to the applicants as the appellants in the remainder of these reasons.
7. Primary judgment (at p 1).
8. Ibid.
9. Affidavit of Bruce Yeldham dated 3 March 2015 (at Annexure C, p 1).
10. Ibid (at Annexure C, p 3).
11. Affidavit of Lynetta James dated 30 April 2015 (at Annexure 1, paragraphs 48 - 64).
12. Ibid (at paragraph 6).
13. Ibid (at paragraph 9; Annexure 2, p 7).
14. Ibid (at paragraph 10).
15. Ibid (at paragraph 11). I shall refer to the work injury claim, the permanent impairment claim and the weekly payments claim as the second WC claim.
16. Ibid (at paragraph 13).
17. See WC Act, s 15.
18. Affidavit of Lynetta James dated 30 April 2015 (at paragraph 27).
19. Ibid (at paragraph 28).
20. Ibid (at paragraph 36).
21. Primary judgment (at p 4).
22. The solicitor appellants were represented by a different firm of solicitors to the barrister appellant. However, they had the same counsel before Gibb DCJ and in this Court.
23. Bourke Love letter to Yeldham Price O'Brien Lusk, 17 December 2014 (at paragraph 3) (First Bourke Love letter).
24. Ibid (at paragraph 5).
25. Ibid (at paragraph 8); cf WC Act, s 15.
26. First Bourke Love letter (at paragraph 6).
27. Bourke Love letter to Moray & Agnew, 2 February 2015 (Second Bourke Love letter).
28. Primary judgment (at p 6).
29. Section 68 was omitted from the Fair Trading Act on the enactment of the Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW). If, as the appellants contend, the respondent's causes of action were extinguished, at the latest, in or around November 2008, such omission could not revive any causes of action he may have had, nor affect any right the appellants had acquired to contend s 68(2) operated to extinguish any cause of action on which the misrepresentation claim was based: Interpretation Act 1987 (NSW), s 30.
30. Section 67 was repealed on 27 June 2012 by the Workers Compensation Legislation Amendment Act 2012 (NSW), Sch 2.1[13].
31. Primary judgment (at p 3).
32. Ibid (at p 4)
33. Ibid (at pp 8, 13).
34. Ibid (at p 8).
35. Ibid.
36. Ibid (at p 13).
37. Ibid (at pp 9, 10, 13).
38. Ibid (at p 13).
39. Ibid.
40. Ibid.
41. Ibid (at p 15).
42. Limitation Act, s 63.
43. (2007) 229 CLR 519; [2007] HCA 16 (Cornwell).
44. WC Act, s 151
45. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (General Steel) (at 129) per Barwick CJ; [1964] HCA 69.
46. Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (at 91) per Dixon J (as his Honour then was); [1949] HCA 1.
47. Cox v Journeaux (No 2) (1935) 52 CLR 713 (Cox) (at 720) per Dixon J; [1935] HCA 48.
48. General Steel (at 129 - 130).
49. Wardley Australia Limited v The State of Western Australia (1992) 175 CLR 514 (Wardley) (at 533) per Mason CJ, Dawson, Gaudron and McHugh JJ; [1992] HCA 55.
50. Cox (at 720).
51. Hawkins v Clayton (1988) 164 CLR 539 (at 601) per Gaudron J; [1988] HCA 15; see also Wardley (at 527); Cornwell (at [16]) per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ.
52. Wardley (at 527).
53. Williams v Milotin (1957) 97 CLR 465 (at 474) per curiam (Dixon CJ, McTiernan, Williams, Webb and Kitto JJ); [1957] HCA 83.
54. Cornwell (at [5] - [6]).
55. Christie v Purves [2007] NSWCA 182 (Christie) (at [40]) per Ipp JA (Beazley and Campbell JJA agreeing).
56. See Wardley (at 525); see also (at 555 - 558) per Toohey J; see also Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; [2004] HCA 3 (at [46], [55], [66]) per curiam (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
57. Two of the particulars of negligence complained of alleged the appellants settled the first WC claim without instructions but that would not, in my view, change the nature of the interest the respondent alleged was infringed for the purposes of determining when his causes of action accrued.
58. See Cornwell (at [38]).
59. See The Right Honourable the Lord Walker of Gestingthorpe, "Pure economic loss: The problem of timing" (2012) 20 Torts Law Journal 77 (at 79).
60. Wardley (at 527).
61. Ibid.
62. Ibid (at 532); referred to with approval in Law Society v Sephton & Co [2006] 2 AC 543; [2006] UKHL 22 (at [17] - [18]), see also (at [30]) per Lord Hoffmann; see also (at [49]) per Lord Walker; (at [74] - [75]) per Lord Mance.
63. Harriton v Stephens (2006) 226 CLR 52; [2006] HCA 15 (at [251]) per Crennan J (Gleeson CJ, Gummow and Heydon JJ agreeing).
64. Wardley (at 527); Christie (at [39]).
65. See First and Second Bourke Love letters above.
66. Cornwell (at [18]), referring to Wardley (at 527).
67. Cornwell (at [21] - [29]).
68. A provision in similar terms to s 14 of the Limitation Act.
69. Cornwell (at [33]).
70. Ibid (at [37]).
71. Ibid.
72. (1994) 179 CLR 332 (at 353); [1994] HCA 4; see also HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54 (at [29] - [30]).
73. Cornwell (at [38]); cf (at [65]) per Callinan J.
74. Cf Wardley (at 533).
75. Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 (at 19) per Handley and Cripps JJA (Kirby P agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2017