Citation : FALKINGHAM -v- HOFFMANS (A FIRM) [2012] WADC 153

Solicitors' negligence - Solicitors failed to pursue the appellant's common law action against a medical practitioner by commencing proceedings - Action statute barred - Loss of chance - Causation - Value of appellant's lost opportunity - Whether trial judge erred in refusing to find or infer that the appellant would have pursued the lost cause of action against the medical practitioner - Whether trial judge's provisional assessment of the value of the appellant's lost opportunity was erroneous - Whether trial judge's provisional award of damages for loss of earning capacity was erroneous - Adequacy of trial judge's reasons

Civil Liability Act 2002 (WA), s 3, s 5A(1), s 5A(3), s 5C(1), s 5C(3)

District Court of Western Australia Act 1969 (WA), s 79(1)(a)

Supreme Court Act 1935 (WA), s 32

Respondent : Mr D R Clyne (15 November 2013) & Mr G P Bourhill (24 February 2014)

Amer v Consolidated Meat Group Pty Ltd [2002] QSC 345

Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430

Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307

Bennett v Carruthers [2010] WASCA 131

Bowen v Tutte (1990) Aust Torts Rep 81-043

Cohen v Ninkovic [2000] WASCA 169

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64

CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458

Dixon v Clement Jones Solicitors [2004] EWCA Civ 1005

Dolman v Penrose (1983) 34 SASR 481

Falkingham v Hoffmans (a firm) [2012] WADC 153

Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336

Feletti v Kontoulas [2000] NSWCA 59

Firth v Sutton [2010] NSWCA 90

Golosky v Golosky (unreported, NSW Court of Appeal, 5 October 1993)

Griffin v Kingsmill [2001] EWCA Civ 934; [2001] Lloyd's Rep PN 716

Hammond Worthington v Da Silva [2006] WASCA 180

Harrison v Bloom Camillin (No 2) [2000] Lloyd's Rep PN 89

Heenan v Di Sisto [2008] NSWCA 25; [2008] Aust Torts Reports 81-941

Hendriks v McGeoch [2008] NSWCA 53; [2008] Aust Torts Reports 81-942

Horne v Cranney [2011] QCA 149

House v The King [1936] HCA 40; (1936) 55 CLR 499

Husher v Husher [1999] HCA 47; (1999) 197 CLR 138

In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44

Instant Nominees Pty Ltd v Redman [1987] WAR 218

Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kitchen v Royal Air Force Association [1958] 1 WLR 563

Leitch v Reynolds [2005] NSWCA 259; [2005] Aust Torts Reports 81-806

MacKenzie v Middleton, Ross & Arnot [1983] SLT 286

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Mallett v McMonagle [1970] AC 166

Marshall v Lockyer [2006] WASCA 58

McCartney v Orica Investments Pty Ltd [2011] NSWCA 337

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190

Minchin v Public Curator of Queensland [1965] ALR 91

Montemaggiori v Wilson [2011] WASCA 177; (2011) 58 MVR 497

Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273

Nigam v Harm [No 2] [2011] WASCA 221

Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394

Pene v Murphy [2004] WASCA 103

Phillips v Bisley [1997] NSWCA 246

Radosavljevic v Radin [2003] NSWCA 217

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

Roney v Priestman [2005] TASSC 52

Rosa v Galbally and O'Bryan [2013] VSCA 116

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332

Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201

SNF (Australia) Pty Ltd v Jones [2008] WASCA 121

State of New Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536

Steve Masselos & Co v Young [2011] NSWCA 352

VACC Insurance Co Ltd v Lekkas [1999] VSCA 31; [1999] 2 VR 529

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

Wagga Wagga City Council v Sutton [2000] NSWCA 34

Wainright v Barrick Gold of Australia Ltd [2014] WASCA 15

Wright v Shire of Albany (1993) Aust Torts Rep 81-239

Yammine v Kalwy [1979] 2 NSWLR 151

1 PULLIN & MURPHY JJA: The appellant claimed, against his former solicitors (the respondent), damages for negligence because they failed to issue a writ within the limitation period claiming damages for an injury resulting from an operation which the appellant alleged would not have taken place if the appellant had been warned of the risks associated with it and, or, alternatively, that the surgeon had been negligent in his post-operative care and treatment. The trial judge dismissed the appellant's claim. The appellant appeals against that judgment.

2 The trial judge found that there was sufficient evidence to support a case against the surgeon of failure to warn and that the lost chance of pursuing the claim was 55%. The trial judge found that there was sufficient evidence to found a case of negligent post-operative treatment and that the appellant's lost chance in that regard was 40%.

3 However, the trial judge found that he was not persuaded on the balance of probabilities that the appellant would have pursued the lost cause of action, so the claim against his former solicitors failed and the action was dismissed. His Honour nevertheless assessed damages provisionally.

4 The appellant appealed on the issues of causation, the evaluation of the lost chance, and the quantum of damages with respect to lost earning capacity. The respondent solicitors by notice of contention also contested his Honour's valuation of the lost chance with respect to the failure to warn claim. On this issue, the appellant contended that his Honour's evaluation of 55% was too low and the respondent solicitors contended that that figure was too high.

5 For the reasons which follow, the appellant should succeed on the causation issue, there should be no adjustment to the 55% loss of chance figure ascribed by the judge to the failure to warn claim, and there should be some adjustment upwards in relation to the assessment of damages with respect to lost earning capacity.

6 The appellant suffered an injury riding a mountain bike on 21 January 1998. He broke a collarbone, which subsequently mended, and also injured his back. He was aged 22 years. The appellant saw a general practitioner for his back pain. The general practitioner referred him to a neurosurgeon.

7 The appellant saw the neurosurgeon on 17 February 1998. The appellant went with his wife. He was told by the neurosurgeon that he had a prolapsed disc that was pinching on his nerves, and that a microdiscectomy at L 4/5 would be required. According to the appellant and his wife, the neurosurgeon, in response to a question about whether the operation carried with it the possibility of permanent damage, replied in the negative. The appellant and his wife said that the neurosurgeon did not warn the appellant of the prospect that nerves could be severed. The appellant accepted the neurosurgeon's advice.

8 The operation was carried out on 25 February 1998.

9 Following the operation, the appellant suffered a lack of bladder control and weakness and numbness in his left and right legs. He used crutches and underwent physiotherapy. The evidence of all the medical experts in the proceedings below was to the effect that the appellant had 'cauda equina syndrome' following the operation. The cauda equina (horse's tail) is the distribution of discrete nerve roots that emerge from the lower end of the spinal cord. A cauda equina syndrome is the name given to the clinical state where there is evidence of dysfunction of the nerve roots in the cauda equina, on both sides, manifested by signs affecting the lower limbs and the perineum, including urological dysfunction. It occurs where nerve roots are either divided, compressed, deprived of their blood supply or lose their ability to conduct impulses due to an alteration of the structure of the nerves.

10 By June 1998, the appellant had 'pretty much' recovered full use of his left leg, but there was no change in his right leg. On 23 September 1998, the neurosurgeon advised the appellant that the condition of his right leg was permanent. According to the appellant, the neurosurgeon told him that 'they had to push hard against the nerve to get to the disc, that callipers had been used and that his assistant, who was operating the callipers, had squashed the nerve': Falkingham v Hoffmans (a firm) [2012] WADC 153 [63].

11 The appellant's condition is essentially unchanged since September 1998.

12 In October 1998, the appellant consulted the respondent firm of solicitors in relation to a potential claim against the neurosurgeon. The solicitors applied for legal aid for the appellant in April 1999 and informed the Legal Aid office, amongst other things, that 'the treating doctors failed to explain the risks of microdiscectomy to him or inform him of the possibility of nerve damage' (GB 20 - 21). The application for legal aid was rejected. The reason was, according to Legal Aid's letter dated 9 August 1999 that:

[T]he payment your client would be required to make (ie towards his/her legal costs) under the means test applied by this office to all applicants for legal aid, would be greater than the cost of the grant of aid (GB 44).

13 The appellant, including with the assistance of his father-in-law, thereafter put the solicitors in funds to investigate his claims against the neurosurgeon.

14 The solicitors proceeded to obtain expert medical evidence. They obtained reports from Dr Blum, Dr Bleasel and Professor Nade. They also obtained a copy of the neurosurgeon's file, including the neurosurgeon's notes, in April 2001 (GB 81).

15 Dr Blum's report, dated 7 May 2001, indicated that there was no evidence of negligence by the neurosurgeon, and Dr Blum could not explain the appellant's disability.

16 On 16 May 2002, according to their file note, the appellant's solicitors discussed with the appellant in some detail the possibility of a claim for failure to warn in accordance with the principles in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479.

17 In Dr Bleasel's report, dated 25 March 2003, he indicated that the most likely cause of the cauda equina syndrome was the retraction of a very tight nerve root in the performance of the operation. He did not express a view as to whether there was any negligence in that regard because he was not experienced in microdiscectomy. In his earlier report, dated 28 January 2003, he said that it was customary to warn a patient of the risk of paralysis or sensory loss following such an operation.

18 Professor Nade provided reports to the solicitors dated 21 January 2003, 25 March 2003 and 30 June 2003. His opinion was to the effect that:

(a) the most likely cause of the cauda equina syndrome was pressure on the nerve from the development of a subdural or epidural haematoma following the operation;

(b) the post-operative symptoms should have alerted the neurosurgeon to the possibility of a haematoma, and of the need to obtain an MRI scan to check for the presence of a haematoma;

(c) had the MRI scan confirmed the presence of a haematoma, it could have been surgically evacuated and if that were done within 48 hours, the resulting decompression on the nerve would probably have resulted in a significantly better recovery for the appellant.

19 Professor Nade also said that the risks of microdiscectomy included cauda equina syndrome and that a patient should be advised of such risks.

20 The solicitors' file note of 8 April 2003 indicated that in a telephone conversation with the appellant, the solicitor handling the matter said that 'at the present time [he] would not be prepared to recommend that [the appellant] litigate a claim against' the neurosurgeon. The file note, in effect, added that given the extent of the appellant's disability, it would be appropriate to carry out further investigations. The solicitors, by letter dated 14 May 2003, in effect asked for clarification of Professor Nade's opinion and Professor Nade provided the further report dated 30 June 2003, in which he described in greater detail his reasoning process and conclusions. As indicated later (see [58] below), in relation to the question of the reliability of Professor Nade's opinion, the solicitors wrongly assumed, without checking, that Professor Nade did not have a great deal of experience in performing microdiscectomies.

21 In any event, on 2 December 2003, the solicitors met the appellant and recommended that he issue a writ because of the impending expiry of the limitation period. The solicitors' file note referred, in effect, to Professor Nade's report dated 30 June 2003 and read, inter alia:

Nade's main reason for believing that the cause of the complaint was a subdural haematoma rather than a complication associated with retraction of the nerve, was the distribution of the damage to that nerve.

I told the client that we thought we should have two doctors to support our case on this point. Preferably we would get a report from a neurosurgeon who had a lot of experience with micro-discectomies.

Bleasel admitted in his letter that he was [sic - not] greatly familiar with that technique and I doubted whether Nade had performed many either.

I also explained to him that we should issue the Writ because of time limitations.

There'd be a cost involved in all of this and the client said that he would pay right away. I told him that it would cost somewhere around $1,000 for another medical report and $325 to issue the Writ.

Clearly it was worth investigating this a little more because of the potential size of the client's claim.

22 On 3 December 2003, the appellant paid the sum of $1,350 to cover the cost of the issue of the writ and obtaining a further report.

23 It became a term of the retainer that the solicitors agreed to issue a writ before the expiry of the limitation period on 24 February 2004.

24 The solicitors failed to obtain the further opinion which they had agreed to obtain (ts 208). They also failed to issue a writ before 24 February 2004.

25 It is evident that by 24 February 2004 the solicitors' investigations had led to the identification of two potential claims, one for the failure to warn and the other for negligent post-operative care in not addressing, and dealing in a timely way, with the possibility of cauda equina syndrome caused by a subdural or epidural haematoma.

26 On the first claim (the failure to warn), there was strong medical evidence to the effect that the risk of sensory loss, including as a result of cauda equina, ought to have been explained pre-operatively. That evidence could not, of course, under the common law, supplant the duty of the court itself 'to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life"': Rogers (487). However, there was no reason for the solicitors to doubt that the court would have taken a different view. The only real issues with respect to the failure to warn claim were (1) whether the appellant had received the appropriate warning and, (2) if not, whether he would have proceeded with the operation had he received an appropriate warning. Both of those matters were questions of fact.

27 As to the second claim (the post-operative care claim), the solicitors had agreed, in effect, that they would obtain a further report, for which the appellant had put them in funds, before giving advice for the purpose of allowing the appellant to decide whether or not to proceed with or abandon his claims against the neurosurgeon. In the meantime, a writ would be issued to preserve the appellant's rights. In this regard, the judge found:

I am satisfied that as at 24 February 2004 [the appellant] would have pursued the claim to the point of reviewing the position after a further report was obtained [232].

The litigation against the solicitors - overview

28 In the proceedings below, the appellant sued the solicitors for the lost opportunity to commence proceedings against the neurosurgeon. The judge recorded that it was not an issue that the solicitors were negligent and in breach of contract.

29 Although the statement of claim against the solicitors originally cast a somewhat wider net, it appears that a number of the pleaded claims were ultimately not pressed (ts 298 - 300). The judge's reasons indicate that the principal issues in the court below concerned the question of the solicitors' liability with respect to the failure to warn claim and the pre-operative care claim.

(a) the neurosurgeon was not called by either party to give evidence;

(b) the appellant called Professor Nade as an expert witness on the medical issues, and the solicitors called Dr Bleasel and Dr Blum as expert witnesses;

(c) the neurosurgeon's notes, which had been obtained by the solicitors in 2001 and used to brief the expert witnesses, were not adduced in evidence;

(d) there was nothing to indicate that any literature explaining the risks of the operation had been given or made available to the appellant prior to 25 February 1998;

(e) the expert medical reports at trial consisted, in general terms, of the reports obtained by the solicitors prior to 24 February 2004, supplemented by two further reports from Professor Nade dated 26 November 2009 and 1 February 2010. The first of those reports in effect updated the appellant's medical condition. The second report explained in further detail why Professor Nade concluded that a haematoma had caused the cauda equina syndrome and why he disagreed with Dr Bleasel in that regard and could not accept the views of Dr Blum.

31 As to the medical evidence called by the parties, the judge made the following general observations:

Professor Nade [was] a very experienced orthopaedic surgeon and had carried out many microdiscectomies. He [was] a prolific author and a senior and learned professor ... His reports [were] far more detailed and analytical [than] those of Dr Bleasel and Dr Blum.

32 The judge found that Professor Nade was better qualified to give evidence on microdiscectomies and where opinions differed, it is likely that a 'notional court' hearing the claim against the neurosurgeon 'would have preferred the evidence of Professor Nade'. As to the experts called by the solicitors, the judge found that:

(a) Dr Bleasel was an experienced neurosurgeon but did not have the experience in performing microdiscectomies and did not have Professor Nade's academic and research experience; and

(b) Dr Blum was an experienced neurosurgeon, but the extent of his experience in performing microdiscectomies was unclear and he did not have Professor Nade's academic experience.

33 On the post-operative care claim, the judge evaluated the appellant's lost chance at 40%, particularly having regard to questions of causation which he said would have arisen in the proof of the post-operative care claim. This appeal was not fought on the basis of the judge's findings of the post-operative care claim and those findings are not challenged by either party.

34 In relation to the failure to warn claim, the judge found that the appellant's loss of a chance was 55%.

35 However, the judge ultimately dismissed the appellant's action against the solicitors on the basis that the appellant had not established that the solicitors' negligence was causative of his loss. In that regard, the judge found, in effect, that whilst the appellant would have proceeded with the issue of the writ, he had not established whether he would have pursued the action against the neurosurgeon thereafter. His Honour noted that the arrangement in December 2003 was for the solicitors to obtain a further medical report which, as indicated, would go to the question of post-operative care. The matter would then be reviewed, and in the meantime the writ would be issued to protect the appellant's rights.

36 His Honour expressed his conclusion on causation, adversely to the appellant, in the following terms:

[The appellant] did not give evidence as to whether he would have pursued the action to trial. I am therefore left to infer from the evidence that was provided whether he would have pursued the action to trial.

...

On 3 December 2003 [the appellant] responded quickly to [the respondent's] request for funds to issue the writ and to obtain a further medical report (ts 95). I am satisfied that as at 24 February 2004 [the appellant] would have pursued the claim to the point of reviewing the position after a further report was obtained.

[The appellant] had not undertaken the exercise of comparing the opportunity of what he might have gained compared to what he could lose if he proceeded. If the report had been unfavourable would he have proceeded? I simply do not know. Similarly, I simply do not know whether faced with the costs of an action compared to the potential award of damages and the risks he faced he would have proceeded to take the matter to trial.

I do not know whether [the appellant] could have funded the action. In the face of the evidence gathered by Hoffmans it is difficult to conclude that they would have proceeded on a speculative basis.

There is no basis for me to draw an inference as to what [the appellant] might have done [228], [233] - [235].

37 There was no real controversy as to the relevant common law principles. They had been considered most recently in this court in Nigam v Harm [No 2] [2011] WASCA 221 and, some years earlier, in Hammond Worthington v Da Silva [2006] WASCA 180.

38 In summary, a plaintiff in this context who proves breach of duty of care by the solicitors must establish two things to recover damages in tort (or to recover damages beyond nominal damages in contract for breach of a cognate implied term):

(a) that he or she has suffered some loss or damage; and

(b) that the loss or damage was caused by the negligence of the solicitors.

39 Each of those matters must be established on the balance of probabilities. As to the first of those issues, the plaintiff must establish that the cause of action was real as distinct from being fanciful, or put another way, that the opportunity had some value, not being a negligible value. The relevant question has also been put negatively - was the plaintiff's case not viable, or doomed to fail? The plaintiff's lost chance has value even if the court, reviewing the facts with 20/20 hindsight, would assess the plaintiff's prospects at less than 50%. Even where the prospects are less than 50%, the plaintiff has lost a real chance to obtain compensation by way of a verdict, and the defendant remains at some real risk of the plaintiff ultimately succeeding at trial. Typically in that event, a valuable right has been lost by the foreclosure of the prospect of a favourable settlement.

40 As to the second issue, the plaintiff must establish, on the balance of probabilities, that he or she would have pursued the opportunity to obtain compensation by way of verdict or by compromise. Ordinarily, that would be established by proof that the plaintiff would have litigated the cause of action to trial or earlier valuable settlement. That is not to deny the possibility that there may be cases where the evidence might be that the hypothetical defendant would have agreed to pay or settle the claim without the need for the plaintiff to litigate.

41 The assessment of whether the appellant would have pursued the cause of action is determined subjectively, that is, by what the appellant (rather than a reasonable person) would have done in the circumstances: Nigam [145], [182]. That principle is enacted in s 5C(3)(a) in div 3, pt 1A of the Civil Liability Act 2002 (WA) (CLA), which applies where the 'harm' giving rise to the claim for damages arises out of an incident happening on or after 1 December 2003: s 5A(3) of the CLA. 'Harm' is defined to include economic loss (s 3 CLA) and pt 1A extends to damages sought to be recovered in an action for breach of contract or any other action (s 5A(2) CLA). Under the common law, any evidence of what the appellant would have done is normally assessed in light of the surrounding objective facts and circumstances: Nigam [118], [145]. In the absence of direct evidence, the trial judge may infer causation from the objective facts: Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [17], [24] - [25], [87] - [91], [154] - [159].

42 This appeal was conducted by reference to the position at common law and on the basis that the CLA did not apply to the appellant's claim against the solicitors. For present purposes, no injustice arises if that assumption is maintained, and these reasons will proceed upon the same basis. However, it may be noted that s 5C(3)(b) of the CLA provides, in effect, that where it is relevant to determine what an injured person would have done if the tortfeasor had not been at fault (in this case whether the appellant would have pursued the cause of action to judgment or earlier favourable settlement), 'evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible'. (Section 5C(3)(b) of the CLA would have had no application in proceedings against the neurosurgeon in relation to whether the appellant would have undergone the surgery if properly warned, as the relevant harm in that regard arose out of an incident happening prior to 1 December 2003).

43 The issue of causation ordinarily involves the question of what advice a reasonable and prudent solicitor, having properly obtained evidence, would have given to the plaintiff and what course the plaintiff would have taken after that advice: Rosa v Galbally and O'Bryan [2013] VSCA 116 [32]; Feletti v Kontoulas [2000] NSWCA 59 [28], [32]. Accordingly, the objective prospects of success that, properly advised, the plaintiff would or should have obtained from his or her solicitors may bear upon the issue of causation. The greater the likely prospects of success in this regard, the more likely the court may be prepared to accept that the plaintiff would have litigated his or her claim to judgment or earlier valuable settlement. Conversely, the lower, objectively, the prospects of success, the more reluctant the court might be to make a finding that the plaintiff would have litigated his or her claims to judgment or earlier valuable settlement. However, the evidence on the issue of causation, including (where admissible) any direct evidence from the plaintiff as to what he or she would have done, would need to be considered and weighed as a whole. There may be cases where there may be a dispute as to whether, and to what extent, a particular plaintiff would be swayed even by appropriately given negative advice on prospects (although, of course, the fact of loss would still need to be proved by proving that the claim nevertheless had some real, non-negligible, value).

44 In some cases, the plaintiff may be able to prove that he or she would have succeeded against the hypothetical defendant, and that there are no contingencies bearing on the likelihood of that success which need to be taken into account: Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351, 366. Where there are contingencies bearing upon whether the plaintiff would have succeeded in the hypothetical action against the hypothetical defendant, the value of the lost chance is assessed by reference to the degree of probabilities or possibilities of success in the underlying action, and not on the civil standard: Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332, 354 - 355. If the defendant is uninsured or potentially unable to meet an award of damages, that contingency will also ordinarily be taken into account: Johnson (366).

45 In the assessment of damages for loss of a chance, there must necessarily be a fair degree of informed speculation. Nevertheless, the starting point is what was proved at trial against the solicitors, particularly where there is no suggestion that the witnesses called at trial would not have been available for the purposes of the lost cause of action: Feletti [48]; Nigam [207].

46 In taking into account any uncertainties, evidentiary difficulties or other problems in assessing the value of the underlying litigation, the discount is global and evaluative in nature rather than mathematical: Nigam [266]; Rosa [100], [105].

47 In relation to appellate review of the trial judge's evaluation of the lost chance, it is to be recalled that the trial judge was dealing with hypothetical events, and that appellate restraint is generally appropriate. In McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 [126] - [127], Giles JA (Macfarlan and Young JJA relevantly agreeing) referred to appellate restraint:

[W]here there is necessary imprecision and evaluation in determining the likelihood that a past hypothetical event would have occurred or a future hypothetical event will occur. That will, of course, not always be the case: the likelihood may turn on a finding of fact or otherwise not be particularly evaluative. But, as was said in Harper v Bangalow Motors (CA, 24 July 1990, unreported), in an expression of relevant principles endorsed in Diamond v Simpson (No 1) at [15] - [16], the approach of appellate restraint applies '[i]f ... the decision reflects a degree of judicial prophesy [sic] or speculation'.

These cases also accord with the basis for restraint endorsed in Singer v Berghouse, namely, that a different evaluation may be no better and will come at undue expense and detraction from the finality of litigation. That basis for restraint has been applied more broadly. In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66, involving the discretion to give judicial advice to a trustee, Gummow ACJ and Hayne and Heydon JJ said at [190] that the proceedings -

'... illustrate the particular care that must be taken by appellate courts, in such circumstances, in disturbing the conclusions of a trial judge in arriving at such decisions, except in the limited circumstances explained by this Court in House v R. Unless restraint is employed in cases of the present kind, in disturbing the orders of trial judges, the risk is run that escalating litigation is encouraged; the resolution of the substantive dispute is delayed; legal costs are incurred in disproportion to the value of assets at stake; and other public and private costs are improvidently incurred. Against such outcomes, this Court has frequently expressed, and reasserted, the need for particular appellate restraint.'

48 In Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, Mason CJ, Deane and McHugh JJ referred with approval to the comments of Kirby P (as he then was) in Golosky v Golosky (unreported, NSW Court of Appeal, 5 October 1993) at pp 13 - 14:

Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and sometimes at least, with a burden of costs upon the estate which should not be encouraged (212).

49 The assessment of prospects in a loss of chance case has been described as 'quintessentially evaluative': Horne v Cranney [2011] QCA 149 [9]. See also Hammond Worthington [128] and Nigam [259].

The appellant's grounds of appeal and the notice of contention

Ground 1.1

1.1 The learned trial Judge erred in law in determining that the relevant test for causation was whether the appellant would have pursued the action against the surgeon (the 'lost action') to an ultimate trial. His Honour should have found instead that the respondent's negligence caused the appellant to lose a valuable opportunity to (at least) settle the lost action.

Ground 1.2

1.2. In failing to find or infer that the appellant would have taken the lost action to trial, the learned trial Judge:

(a) erred in law, when there was no evidence that the appellant would not have pursued the lost action to trial;

(b) erred in law, when the most reasonable inference available on the evidence, favoured such a finding.

Ground 2.1

2.1 His Honour erred in fact in assessing that the value of the lost opportunity was 55% (on account of the surgeon's failure to warn of the risks of microdiscectomy), when the evidence warranted a much higher assessment.

Ground 2.2

2.2 His Honour erred in law in failing to give any or adequate reasons for the conclusion (or make appropriate findings to support the conclusion) that the appellant's evidence about his previous back injury illustrates potential concerns with his credibility [173(e)].

Ground 3

1. The learned trial Judge's award of $80,000 for past and future loss of earning capacity was so inordinately low as to amount to an error of law.

51 The notice of contention relates to ground 2.1 of the appeal, and alleges:

In the event the appeal on liability is allow[ed], then the Respondent contends that the reduction by the learned Trial Judge of damages to 55% of the provisional assessment is wrong in law and is a far greater award than should have been allowed given the risks and uncertainties in the potential litigation, in particular:

(a) the fact that the Appellant may not have proceeded with the action due to its inherent risks;

(b) the potential that the Appellant may have chosen to settle the claim at a lower figure given the risks, uncertainty and expense of litigation; and

(c) the potential that the Appellant may have failed at trial on the issue of negligence and causation which were not factors taken into account by His Honour.

52 Ground 1.1 of the appeal involves the proposition that the judge found, in effect, that the appellant must fail on causation unless he proved that he would have litigated the action against the neurosurgeon to final judgment, as opposed to final judgment or earlier favourable settlement. If the judge approached causation on that basis, he would have been in error. However, we do not understand his Honour's reasons, read as a whole, to disclose such error.

53 It is true that in the passages referred to in [36] above, the judge has referred three times to the question of whether the appellant would have pursued the action 'to trial'. However, it is to be recalled that this was in the context of a finding that the appellant would have initiated proceedings against the neurosurgeon by issuing a writ. The language may be infelicitous insofar as it omits reference to litigating the matter to earlier resolution by settlement, but the real import of his Honour's finding, when his reasons are read as a whole, is that there was no basis for the inference that the appellant would have pursued the litigation beyond the issue of the writ, ie, either to the point of judgment or to earlier settlement. His Honour's finding that there 'is no basis for me to draw an inference as to what [the appellant] might have done' [235], is to be read in light of the immediately preceding paragraphs. Fairly construed, that finding is to be read as a finding to the effect that there was no basis to draw an inference as to what the appellant might have done next, ie, after the issue of the writ. Moreover, when his Honour came to summarise, under the heading 'Mr Falkingham's claim fails', the effect of his preceding discussion, his Honour said that '[a]ccordingly, based on the evidence before me, I am not persuaded on the balance of probabilities that [the appellant] would have pursued the lost cause of action' [236]. There is no mention, in his Honour's ultimate conclusion on causation, that the reason the appellant's action failed was because he had failed to prove that he would not have pursued the action 'to trial' as opposed to settlement. The way that his Honour expressed the ultimate conclusion corresponds with the formulation of the question which his Honour had earlier set himself in his reasons at [125(b)]. There his Honour said, in effect, that the relevant issue of causation that he was required to determine, on the balance of probabilities, was whether '[the appellant] would otherwise have pursued the lost cause of action'. Again, there was no attempt to raise a distinction between trial and settlement in the formulation of the relevant causation question. As the premise of ground 1 is unfounded, ground 1 should be dismissed.

54 Ground 1.2(a) contends that the judge erred in law in finding that the appellant would not have pursued the action to trial when there was no evidence that the appellant would not have done so. This ground should be rejected. The onus was on the appellant to prove, on the civil standard, that he would have litigated the matter to judgment or an earlier valuable settlement. Proof is not established by an absence of evidence on that topic.

55 Ground 1.2(b) alleges, in effect, that the judge erred in finding that there was no evidence upon which to infer causation, and that the judge should have inferred causation.

56 The analysis must start with the proposition that the judge found, in effect, that the appellant would have caused the issue of a writ in accordance with the solicitor's advice in order to preserve his rights before the limitation period expired. The essential question on causation is whether he would thereafter have abandoned the action.

57 The analysis is complicated by the fact that the solicitors not only failed to issue the writ but also failed, in breach of retainer, to seek another expert report with a view to supporting the opinion of Professor Nade in relation to the post-operative care claim. In the absence of any evidence on this point, it may be assumed that no additional expert report would have been obtained, either supportive of, or contrary to, Professor Nade's opinion. The question then becomes whether the appellant would have abandoned the (assumed) proceedings already commenced in respect of the failure to warn claim and the post-operative care claim based on Professor Nade's opinion.

58 The first point to note is that any proper advice to the appellant by a prudent solicitor would not have been to the effect that a further report was necessary or desirable on account of the fact that Professor Nade did not have the appropriate experience in performing microdiscectomies. The solicitor's assumption that he did not have the requisite experience was wrong and unreasonably held (see the solicitor's evidence ts 217 - 219 and compare the judge's finding at [138]). When the judge said that in light of the evidence gathered by the solicitors, 'it is difficult to conclude that they would have proceeded on a speculative basis' [234], his Honour did not take into account that the solicitors were operating under a false assumption that the reliability of Professor Nade's opinion was diminished because he lacked relevant experience in carrying out microdiscectomies.

59 Next, it is to be noted that his Honour considered that the failure to warn claim had 55% prospects of success. This assessment was made on the assumption that the neurosurgeon's 'likely response' would be to 'say that a warning was given in the terms suggested by Professor Nade and Dr Bleasel' [170]. In a hypothetical advice on prospects and risks before any defence was filed in the hypothetical litigation against the neurosurgeon, that would be a reasonable assumption to make. The judge's ultimate finding that the failure to warn claim had 55% prospects of success cannot automatically be equated with the hypothetical advice on prospects which a prudent solicitor would have given the appellant before he made any decision to abandon the action. That is because the judge's assessment, unlike that of the prudent solicitor advising prospectively, includes the advantage of hearing evidence from the witnesses called by the parties in relation to the merits of the underlying claim. Nevertheless, the two may overlap to the extent that both the judge and the solicitor giving hypothetical advice would take into account the objective facts and circumstances which would be persuasive in a determination of the underlying claim. In this case, it is of some significance that to a considerable extent, the judge approached his assessment by reference to the information which was available to the solicitors as at 24 February 2004. It may be inferred from the judge's reasoning with respect to the loss of chance that, had he addressed the question directly, he would have considered that a prudent solicitor would have advised that the appellant's prospects on the failure to warn claim were reasonable and were likely to be in the order of 50%. Similarly, the judge's reasoning with respect to the post-operative care claim would indicate that the judge would have considered that a prudent solicitor would have advised that, objectively, the appellant's prospects, although less than even, were far from poor.

60 The judge's ultimate estimation of prospects in relation to the failure to warn claim is considered in detail later in these reasons. Insofar as the judge's findings and reasoning may be accepted, and to the extent that they are based upon what the solicitors knew, or ought to have known, it is reasonable to suppose that a prudent solicitor, advising the appellant in 2004 as to whether or not to abandon the action already commenced, would have advised along the following lines:

(a) the appellant had reasonable prospects on the failure to warn claim. Much would depend upon the credibility of the appellant and his wife. Precise quantification of the prospects could not sensibly be made in relation to the failure to warn claim but as a rough guide, it could not be assumed that the chances of success were greater than even;

(b) the appellant had a good arguable claim to the effect that the neurosurgeon had failed to provide proper post-operative care, but there remained a real issue as to causation which would likely mean that his overall prospects on that claim were somewhat less than even; and

(c) overall, the further pursuit of the proceedings would be attended by real risk but with, nevertheless, a significant chance of recovering substantial damages.

61 A prudent solicitor would also have advised on the likely adverse costs consequences if the action failed. It is in the above context that the issue of causation is to be determined.

62 The evidence or matters available to support an inference of causation were that:

(a) the appellant was not deterred from the pursuit of the claim against the neurosurgeon by the rejection of his application for legal aid;

(b) as the appellant's solicitors recognised at the time they were acting for him, the appellant's 'disability was great and would affect him for the whole of his life' (GB 124) and that if his claims were successful 'he [would] receive compensation that [would] total in the hundreds of thousands of dollars' (GB 39);

(c) the appellant put the solicitors in funds, apparently promptly, on the occasions he was requested to do so;

(d) the hypothetical advice on prospects would have indicated that the neurosurgeon would have also been at some significant risk in the action in respect of his pre-operative warning and post-operative care, and that, accordingly, there would be some real prospect that the neurosurgeon would wish to avoid a trial and negotiate a settlement;

(e) the appellant pursued an action against the solicitors to trial for their negligence in handling his claims against the neurosurgeon, and he did so essentially in reliance on the information obtained by the solicitors prior to their omission in failing to issue the writ against the neurosurgeon.

63 Accordingly, in light of the matters in [57] - [62] above, the judge was, with respect, in error when he said that there was 'no basis for me to draw an inference as to what [the appellant] might have done' had the solicitors commenced proceedings against the neurosurgeon in accordance with the appellant's instructions [235]. It has been said that the law adopts a 'robust and pragmatic approach' to the proof of causation: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, 317; Leitch v Reynolds [2005] NSWCA 259; [2005] Aust Torts Reports 81-806 [76], [83], [85]. The judge should have inferred causation in light of matters referred to above. Ground 1.2(b) should be upheld.

64 Ground 2.1 asserts that the value of the lost opportunity with respect to the failure to warn claim was much greater than 55%. This ground should be considered with the notice of contention, which, in effect, alleges that the value of the lost opportunity with respect to the failure to warn claim was much less than 55%.

65 The failure to warn claim had, essentially, two elements.

66 One was whether had the appropriate warning been given, the appellant would not have proceeded with the operation. The appellant's evidence was that he would not have. The judge found his evidence 'objectively credible' [162]. He found, in effect, that a court hearing the hypothetical action against the neurosurgeon would accept, or at least there was a high chance that a court would accept, that any failure to warn had 'caused the injury to the nerve root that resulted in permanent damage' [164]. In this context, it is to be noted that his Honour had previously said:

In Professor Nade's opinion ... disc excision surgery should not be performed unless there is clear clinical evidence of dysfunction of a nerve root. In Dr Bleasel's opinion ... the operation was warranted according to the history. A notional court was likely to find that Dr Bleasel did not have sufficient history to form a view as to whether the operation should have proceeded. It is likely that a notional court would have preferred Professor Nade's opinion.

I find that it was open to a notional court to find that there was no pressing need to perform surgery and that other treatments, including simply waiting, were available and should have been preferred [153] - [154].

67 The other relevant element was whether the appropriate warning was given.

68 The trial judge considered that this was a credibility case because the 'likely response' of the neurosurgeon would have been to deny that he failed to warn of the risk of permanent injury and to say that he gave a warning in accordance with the terms suggested by Professor Nade and Dr Bleasel [170]. The following observations may be made about that finding.

69 It is to be inferred, from the absence of any forensic use made by the solicitors in the trial against them, that the neurosurgeon's notes and file did not disclose that the risks of permanent nerve damage had been explained to the appellant pre-operatively. Similarly, it may also be inferred that there was no evidence of any literature having been provided to the appellant in that regard before he consented to undergoing the operation.

70 Given the serious nature of the underlying allegation, namely that the neurosurgeon's negligence was a cause of significant disability to the appellant, it is unlikely that the neurosurgeon would have willingly participated in the trial of the action against the solicitors, particularly as he would inevitably have been exposed to cross-examination. It would also be difficult to contend that the solicitors' failure to call the neurosurgeon in the conduct of their defence would raise a Jones v Dunkel inference against them, and that contention was not made in this appeal. (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.)

71 Nevertheless, there was no evidence before the judge which indicated that the 'likely' response of the neurosurgeon would be to assert that he gave an appropriate warning. As noted earlier, that was an assumption which could reasonably be made for the purposes of considering a hypothetical advice on prospects before any decision was made to abandon the action which would have been commenced but for the solicitors' breach. Such an assumption could properly be made in this matter in considering the issue of causation. However, when addressing the value of the lost chance for the purpose of assessment of damages as at the date that the hypothetical litigation would likely have gone to trial, the judge was required to have regard to the state of the evidence before him. In this case, there was no evidentiary foundation for inferring what the 'likely' response of the neurosurgeon would be to the failure to warn claim. The judge could, however, properly form the view that the risk to the appellant that the neurosurgeon would have asserted that he gave an adequate warning could not be excluded, and required evaluation. In that regard, account would also need to be taken of the potential vulnerability of the medical practitioner, in giving evidence many years after the event, on a matter for which he apparently had no contemporaneous note, and in respect of which he would presumably seek to rely on evidence as to his usual practice.

72 The next point to note is that in concluding that the appellant's lost chance on the failure to warn claim was 55%, the judge said:

On a broad brush assessment [the appellant's] lost chance was 55%. My reasons for reaching a figure of 55% are:

(a) it is a credibility case which starts at a 50% 50% position;

(b) [the appellant and his wife] largely corroborate each other but a judge might well conclude that that the corroboration is a result of discussing the meeting with each other over many years;

(c) [the appellant and his wife] had concerns about the operation as a result of [the appellant's wife's] occupation and this objectively supports a finding that they would have paid close attention to such warnings;

(d) the subsequent decision to have the operation when there was no urgency is consistent with a failure to warn;

(e) [the appellant's] evidence about his previous back injury illustrates potential concerns with his credibility;

(f) (d) and (e) [sic (c) and (d)] raise the probability of a failure to warn above 50% but not overwhelming so.

Therefore the 50% chance, should be raised by 5% to 55% [173].

73 As to the matter in (a) of [72] above, the suggestion that all credibility cases are balanced evenly before all circumstances are taken into account is, with respect, incorrect. In that regard, the judge erred. The correct approach to a lost opportunity case is to identify all of the factors bearing on the prospects of success and then make a judgment about the discount to be applied to the uncertainties which may have attended the pursuit of the claim if it had not become statute barred.

74 As to the matters in (b) and (c) of [72] above, the judge earlier recorded, without adverse comment, the evidence of Mrs Falkingham (the appellant's wife) about the pre-operative consultation and her concerns about the potential for and consequences of permanent damage [162]. Her evidence was that she was 'a social trainer at the time working with people with disabilities and [she] wanted to ... make sure that [her husband] was not going to end up with any sort of permanent damage from the operation' (ts 18/9/12 p 115). Although his Honour made no adverse finding on Mrs Falkingham's credibility directly, his Honour appears to indicate that a trial judge at the hypothetical trial might have reservations about her evidence on the basis that her recollection might be affected by having 'discuss[ed] the meeting', 'over many years' [173].

75 The matter in (d) of [72] above is self-evident.

76 The reference to 'potential concerns' with credibility referred to in par (e) of [72] above must be read as a recognition of risk, but against the background that the judge had found that the appellant's evidence that he would not have proceeded with the operation if appropriately warned was 'objectively credible' [162].

77 In contending that the judge underestimated the value of the lost opportunity, the appellant contended, in effect, that the judge ought not have taken into account that a court hearing the hypothetical litigation might find that the evidence of the appellant and his wife was influenced as a result of discussing the meeting with each other over many years. It is said that that was not put to the appellant in cross-examination. However, even if it were not put in cross-examination in the action against the solicitors, it remained a criticism which may have been made in the hypothetical litigation against the neurosurgeon, and was a factor to which the judge could properly have regard. The absence of cross-examination on this point would go to weight.

78 The appellant also emphasised that there was no evidence at trial that the neurosurgeon would have contended that he had given an appropriate warning in accordance with the evidence of Professor Nade and Dr Bleasel. This matter has been referred to earlier. The primary court was in a difficult position. Had there been litigation against the neurosurgeon and the neurosurgeon failed to give evidence, a Jones v Dunkel inference would ordinarily have been available, but it was not suggested in this appeal that such an inference should be drawn against the solicitors. (Plainly no Jones v Dunkel inference could be drawn as to the appellant's failure to call the neurosurgeon.) Although the judge overstated the position when he said that on the evidence before him that it was 'likely' that the neurosurgeon would have asserted that he gave the appropriate warning, there remained the very real possibility that the neurosurgeon, in the hypothetical litigation, would have contested the evidence of the appellant and his wife, and stated that he had given the appropriate warning. A significant discount was required to take into account this contingency. This contingency remained a live one in assessing the value of the lost opportunity, given the inherently circumscribed nature of the evidence on this issue at the trial of the action against the solicitors. Nothing but a 'broad brush' approach could be applied here.

79 As to the solicitors' notice of contention to the effect that a figure of 55% was too high, the solicitors said that it was 'nominally true' that 'the starting point in a credibility case [was] 50:50 [but] what must be factored into such an assessment is what a reasonable [sic] competent solicitor would advise in those circumstances as a matter of professional judgment and advice' (WB 29 - 30). The burden of the solicitors' submission was that the court should infer that the solicitors had (properly) advised the appellant, in effect, that the litigation should not be pursued at all, after the issue of the writ, unless they obtained a second favourable opinion on the post-operative care claim, and that the appellant would have taken that advice. That submission, strictly speaking, raises a causation issue rather than an issue as to the valuation of the lost chance for the purpose of determining whether the appellant lost anything of value and, if so, by way of damages, the extent of the loss.

80 The solicitor who had the conduct of the matter on behalf of the appellant gave evidence at trial, but he did not give direct evidence that he gave the appellant any advice in the terms which the solicitors now invite this court to infer was given to the appellant. Certainly, there was no advice in writing to that effect (or at all) in the period prior to the solicitors allowing the appellant's cause of action to become statute barred. The solicitor handling the file gave no evidence in chief on the question of whether he advised, in particular, on the prospects of the failure to warn claim. His evidence in response to a very general question in chief on this topic was not particularly illuminating and was tentative and speculative in nature:

During that time when you were looking for further information, had you discussed the pros and cons of litigation in terms of costs and risks and that sort of thing with the plaintiff? - I - I'm pretty sure that I would have discussed those sorts of matters because that's obviously relevant to the decision about whether or not to go on and what money to spend and how certain you had to be that you had a good case before you went on. So it would be the normal thing I would do with a client, especially at this stage of the game, when so much investigation had been done and simply to tell him that, to make sure he was appraised of - of that and what trial was all about and how you actually needed to prove these - to prove these cases and damage was not enough (ts 207).

81 As indicated earlier, there were reasonable grounds to find that causation was proved. The solicitor's evidence does not operate to displace that inference.

82 The solicitors' counsel also referred to the appellant's belief that he was informed that nerves could regrow, and that this indicated that his recollection was unreliable. If it were proved that it was well known that there was no prospect of nerve recovery, that could well affect the appellant's credibility. But it was to be weighed against other factors in relation to the credibility of the appellant's evidence referred to earlier. It might also reveal some lack of clarity in communication by the doctor. Although not entirely clear, the solicitors also appeared to contend, in effect, that because it was customary to give an appropriate warning, it should be inferred that it would be improbable that a warning was not given in this particular case. That contention has a degree of question-begging in it, although it may be accepted that the hypothetical court would not readily find a serious departure from sound practice unless there was cogent evidence to support that finding.

83 Finally, if, as the judge found, the appellant's evidence to the effect that he would not have proceeded with the operation if appropriately warned was 'objectively credible', the fact that he consented to undergoing the operation at all could, itself, provide good evidence that he was not warned of the risk of permanent injury.

84 As we have indicated, it is not correct to assume that the starting point for an assessment of the lost chance was 50/50. The judge erred in that respect and it is thus appropriate for this court to make its own estimate of the lost chance. The question of assessment ultimately involves a degree of impression. Taking into account all the facts and circumstances of this particular case, including the factors to which the judge properly referred, and the findings which were properly open on the evidence before him, including favourable findings as to the appellant's credit, the appellant's prospects were reasonable but still attended with substantial risk. Overall, and adopting what is necessarily a broad brush approach, we would also value the lost chance at 55%. Accordingly, despite error by the judge, the ultimate result is the same. For these reasons, ground 2.1 and the notice of contention should be dismissed.

85 Ground 2.2 alleges, in effect, that the judge failed to give any or any adequate reasons for the conclusion (or make relevant findings to support the conclusion) that the appellant's evidence about his previous back injury illustrated potential concerns with his credibility [173(e)].

86 There are a number of recent decisions of this court which discuss the principles to be applied when considering the adequacy of a trial judge's reasons: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273; Marshall v Lockyer [2006] WASCA 58; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121; Bennett v Carruthers [2010] WASCA 131 [27] - [28].

87 Whether the content of reasons is adequate will depend on the circumstances of the case and the matters that arose for the judge's consideration. The court will look at the reasons as a whole and, if necessary, in the context of the evidence, to determine if they give the sense of what was intended in a way that achieves their required function and purpose: SNF (Australia) Pty Ltd v Jones [32].

88 If reasons are found to be inadequate, it does not follow that there is necessarily an appealable error; an appeal court will only interfere when no reasons have been given in circumstances in which they were required, or when the inadequacy of the reasons is such as to give rise to a miscarriage of justice. Further, where an appealable error arises from inadequate reasons, it does not necessarily follow that a new trial is required. An appeal court is entitled to consider the matter and, if it can do so (eg, where only one conclusion is reasonably open on the available evidence), may decide the matter itself: Mount Lawley Pty Ltd [29].

89 His Honour's reasons at [15] - [22] plainly illustrated potential concerns as to the appellant's credibility with respect to an earlier back injury (not the back injury resulting from the mountain bike accident). This ground has no merit.

90 As to ground 3 of the appeal, concerning damages, this court noted the need for appellate restraint on this issue in Wainright v Barrick Gold of Australia Ltd [2014] WASCA 15 [88] - [90]. Nevertheless, as Buss JA has observed, in this case:

(a) the appellant permanently wears a foot orthosis and uses a walking stick;

(b) he walks with a hobbling and antalgic gait which causes him hip and back pain;

(c) as a result of sensory loss, the appellant does not know where his right foot is placed and this causes him to stumble and fall on a daily basis;

(d) after walking for about 10 minutes he needs to sit because his right hip, knee and ankle begin to hurt;

(e) his right leg paralysis means that he is numb down to his foot and four toes, the sole of his foot and his big toe are hypersensitive to touch, the outside of his foot is numb and he has no sense of leg placement;

(f) the appellant was only 22 at the time of the operation and he was only 31 as at the time of the notional trial; and

(g) at all material times the appellant had limited education and limited work experience.

91 The judge's award of $80,000 in total for past and future loss of earning capacity was, on the facts, unreasonable and plainly unjust: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. In other words, error may be inferred.

92 For the reasons given by Buss JA at [352] - [357], lost earning capacity should be assessed at $149,350 giving a total measure of damages, before applying any discount, of $401,850. When that amount is discounted by 45%, the result is $221,018, upon which interest should be awarded at 6% per annum from 1 November 2006 up to the date of judgment in this appeal.

93 BUSS JA: On 21 January 1998, the appellant broke his collarbone and injured his back when he fell from a mountain bicycle he was riding.

94 He consulted a neurosurgeon, Wayne Thomas, about his injured back. Mr Thomas diagnosed a prolapsed disc. On 25 February 1998, Mr Thomas carried out a microdiscectomy. The appellant suffered a permanent disability to his right leg as a consequence of the operation.

95 The appellant instructed the respondent, a firm of solicitors, to advise whether he had a claim for damages against Mr Thomas. The respondent failed to issue a writ of summons against Mr Thomas on or before the last day of the limitation period, namely 24 February 2004.

96 The appellant brought an action against the respondent in the District Court. He claimed damages for the respondent's negligence in failing to issue a writ within time.

97 The action was tried before Curthoys DCJ between 17 - 21 September 2012 and on 24 and 25 September 2012. His Honour dismissed the appellant's claim.

99 The appellant was born on 4 July 1975. He was 22 when the accident occurred and at the time of the operation.

The appellant's personal circumstances and antecedents before the accident on 21 January 1998

100 The appellant completed year 10 at school. He then attended TAFE for 12 months where he undertook a course in electronic engineering.

101 After completing the course at TAFE the appellant worked for short periods at Casey's Linen Service and at ERG Ltd. He performed electronics assembly work at ERG. The appellant then worked for about 12 months at Mundaring Motors as a driveway attendant, a mechanic's assistant and a tyre fitter. He also delivered liquefied natural gas.

102 Next, the appellant worked for Sons of Gwalia at its Bullfinch mine near Southern Cross. His duties included operating a mill and crusher, operating other machinery, driving earthmoving equipment and manual labour. His employment with Sons of Gwalia ceased in December 1997.

103 At the time of the accident on 21 January 1998 the appellant was unemployed.

104 The appellant gave evidence that before the accident he was able to perform physically demanding work. His recreation was also physically rigorous. He enjoyed riding mountain bicycles, abseiling, rock-climbing, jogging and going to the beach. He had an active social life.

105 Before the accident the appellant and his partner (now his wife) lived in rental accommodation. The appellant said in evidence that he carried out various domestic tasks including cleaning, gardening, wood chopping, cooking, laundry and basic handyman and maintenance work. He mowed the lawn regularly and cleaned the gutters as necessary.

106 At Christmas 1996 the appellant strained his back while lifting his 14-year-old sister.

107 The trial judge summarised the appellant's evidence in relation to the nature and severity of his back strain:

In examination-in-chief [the appellant] described the effect of the back strain in 1996 as giving him a bit of discomfort. He said that when he went back to the mine site he had to have a bit of time off because of it. He thought he had had a week off work and had ... spent some of his rostered days off resting as well (ts 21).

[The appellant's] explanation for leaving the mine at Christmas 1997 was that he wanted to work closer to home and did not like the travelling (ts 22).

In cross-examination, [the appellant] said that following the 1996 incident with his sister he found the drive to the mine at Bullfinch very difficult. He had to stop frequently because of back pain. He was only able to do four hours instead of 12 hours on the first nightshift and he then went back to his room at the camp and rested. He subsequently went into Southern Cross to see a Dr Ward who prescribed painkillers and anti-inflammatories. He spent the whole week resting in bed. He was then rostered off and spent the next five days in bed. He continued to have back pain but it had eased a bit.

In February 1997 he was scheduled to start a fire fighting course in Perth. Because of the pain he saw Dr Harrison who prescribed anti-inflammatories. He then went and saw a chiropractor in West Midland. This offered some very short-term relief. He saw the chiropractor about five or seven times over a month. He would see the chiropractor on his rostered days off. He then saw a Bowen therapist on several occasions (ts 75 - 77).

[The appellant] resigned from the mine on 25 December 1997 for a number of reasons. A major reason was that his back pain was causing him discomfort (ts 77).

In contrast to what [the appellant] said in cross-examination, in examination-in-chief [the appellant] did not state that his back pain was a reason for leaving the mine. Rather, in his examination-in-chief he understated the impact of the back injury [16] - [21].

108 His Honour found that the appellant's understatement in examination-in-chief of the impact of the back injury he suffered at Christmas 1996 impacted on his credibility [21].

109 On 21 January 1998, when the accident occurred, the appellant was, as I have mentioned, unemployed. He did not have any plans for future work and did not know what career he would pursue. The trial judge noted the appellant's evidence that he was contemplating becoming self-employed and was 'leaning towards' becoming a lawn mowing contractor [23]. His Honour recorded the appellant's explanation in evidence that 'he had a bad back prior to the [accident] and [the operation] and did not know how he would cope with lawn mowing but he was hoping it would be alright' [24].

110 His Honour found it was 'probable' that, if the mountain bicycle accident had not occurred, the appellant 'would not have continued with work that was as physically demanding as the work on the mine' [26]. His Honour said, however, that in his view 'that would still have left [the appellant] with a wide range of occupations that involved a degree of physical activity' [26].

The appellant's medical condition after the accident and before the operation

111 After the accident the appellant was admitted to hospital. He received treatment for his broken collarbone and was discharged.

112 After his discharge from hospital the appellant continued to suffer pain in his back. He reported a sharp pain down his leg.

113 The appellant's back pain did not resolve. His general medical practitioner, Dr Harrison, ordered a CT scan. After the scan the appellant was referred to Mr Thomas.

The appellant's pre-operation consultation with Mr Thomas

114 On 17 February 1998, the appellant, accompanied by his wife, had his first appointment with Mr Thomas.

115 Mr Thomas was not called as a witness at the trial.

(a) Mr Thomas diagnosed a prolapsed disc that was pushing or pinching on the appellant's nerves;

(b) Mr Thomas said the appellant could have a cortisone injection, which would provide temporary relief, or he could have surgery to fix the problem;

(c) the appellant's wife raised with Mr Thomas the possibility of nerve damage and Mr Thomas told them 'it would be very hard to damage nerves and nerves actually grow back anyway' [39];

(e) Mr Thomas said an L4/5 microdiscectomy would be necessary, and this would involve 'going in between the vertebra to slice off some of the disc that had protruded' [40];

(f) Mr Thomas did not raise any issue about the risks of surgery before the appellant's wife raised the issue of nerve damage;

(g) Mr Thomas did not explain any of the general risks of surgery; and

(h) Mr Thomas said the appellant would need 'four to six weeks off and be on light duties, but that after 10 weeks he should be back doing heavy duty heavy lifting' [43].

117 The appellant's evidence about his pre-operation consultation with Mr Thomas was corroborated in relevant respects by the appellant's wife.

118 The appellant's wife said in evidence that she asked Mr Thomas whether there was any possibility of any permanent damage as a result of the operation. Mr Thomas responded 'no' [39].

119 On 25 February 1998, Mr Thomas carried out a microdiscectomy on the appellant.

120 The trial judge described the surgical procedure for a discectomy as follows:

In essence, it involves removing the subcutaneous tissue and fascia and the muscle to reveal a workspace. The bony lamina is partially removed which reveals the ligamentum flavum to give access to the epidural space. A retractor is used to push the thecal sac and nerve root medially out of the way. Using a pituitary rongeur the surgeon grabs onto the herniation and starts tearing it out chunk by chunk. The wound is closed and the surgery is complete [47].

121 After the operation Mr Thomas prepared a memorandum entitled 'Operation Report', which reads:

With the patient prone a small incision was made at the L4/5 level which had been verified radiologically. The soft tissues were elevated on the right and under the microscope a laminotomy carried out. The L5 nerve root proved to be extremely tight and it was difficult to retract. Anterior to it was a large protrusion of the L4-5 disc which in some respects was typical of a juvenile protrusion in that it was rather tenacious and difficult to remove. Ultimately a good clearance and decompression of the disc protrusion was achieved and the nerve root was then free. The wound was then closed in layers.

122 By letter dated 27 February 1998, Mr Thomas wrote to Dr Harrison as follows:

At surgery on [the appellant] on Wednesday 25th February 1998 after carrying out the usual laminotomy the L5 nerve ... proved difficult to retract because of it's [sic] tension and at the completion of the discectomy a small tear in the dural covering of the nerve was noted. CSF did not escape however indicating that the tear involved only the dura not the arachnoid.

(c) numbness in both legs and around the groin area [50].

124 The trial judge gave a detailed account of the appellant's post-operation symptoms and Mr Thomas' opinion in relation to them. It is unnecessary to repeat the account.

The appellant's further consultations with and treatment by Mr Thomas

125 After the operation the appellant had physiotherapy three days a week for about six weeks.

126 He had consultations with Mr Thomas on 3 and 12 March 1998.

127 By 12 March 1998, the appellant had regained some feeling in his left leg. Otherwise 'not much else had changed' in relation to the numbness he experienced post-operatively [59].

128 By 10 June 1998, the appellant had 'pretty much gained full use of his left leg' but there was no change in his right leg [62].

129 On 23 September 1998, Mr Thomas informed the appellant that the condition of his right leg was permanent. The appellant gave evidence as to Mr Thomas' explanation, namely that 'they had to push hard against the nerves to get to the disc, that callipers had been used and that his assistant, who was operating the callipers, had squashed the nerve' [63].

130 Professor Nade, an orthopaedic surgeon, explained the cauda equina and cauda equina syndrome:

the cauda equina is the distribution of discrete nerve roots that emerge from the lower end of the spinal cord ... [C]auda equina syndrome is the name given to the clinical state where there is evidence of dysfunction of some or all of the nerve roots in the cauda equina, on both sides, manifest by signs affecting the lower limbs and the perineum including urological and rectal dysfunction ... in simple terms the syndrome occurs when those nerve roots are either divided, compressed, deprived of their blood supply and, or lose their ability to conduct impulses due to an alteration in the structure of the nerves [177].

Professor Nade's diagnosis of the appellant's condition and its cause

131 Professor Nade was of the opinion that the appellant had cauda equina syndrome following the operation. Subsequently, the appellant made a partial recovery from the dysfunction of the nerve roots of his cauda equina. He was left with permanent dysfunction of the right fifth lumbar and first sacral nerve roots. The most likely cause of the cauda equina syndrome was haemorrhage within the spinal canal during or following the surgery. Such bleeding could have been into either the epidural space or the subdural space. Later resolution of the haemorrhage by normal physiological processes would account for the appellant's partial recovery. It was unlikely that any nerve root was damaged negligently by Mr Thomas. See Professor Nade's reports dated 21 January 2003 and 1 February 2010.

132 Between February 1998 and November 1998 the appellant was in receipt of a disability pension.

133 In late 1998 the appellant decided to return to the workforce. He obtained work with Romteck, an electronics company, as an electronics assembly worker in the production area. In 1999 he attended TAFE and studied civil and structural drafting. During 1999 he also worked at Romteck one day a week and during the TAFE vacations. The appellant did not pass the TAFE course, but he was able, in his work at Romteck, to use skills he had acquired in undertaking the course.

134 The appellant was promoted at Romteck. Two people worked under his supervision. He liaised with supply companies in connection with obtaining components for assembly. At the beginning of 2005 the appellant ceased employment with Romteck. He accepted in evidence that he could have remained with Romteck and that he made the decision to leave. The appellant said he left Romteck because 'he wanted a job that had a greater outdoor component and he found the job a bit boring' [69]. Also, he wanted to earn more money.

135 When the appellant worked at Romteck he had difficulty moving about the workshop.

136 In 2002, on the advice of Dr Harrison, he purchased a wheelchair.

137 After acquiring the wheelchair the appellant used it while he worked at Romteck. It was more convenient. He continued to use crutches or a walking stick at home.

138 The appellant became involved in wheelchair sports. However, this involvement ceased in 2005 upon his leaving Romteck and working closer to home. There were no suitable facilities nearby. The appellant attempted a number of other sports, including cycling and rock climbing, but the disability in his right foot precluded him from pursuing them.

139 After the operation the appellant wore a Swedish knee cage for three or four years to prevent the hyperextension of his right knee. However, wearing the cage caused sweating on the bands at the back of his knee and resulted in sweat sores. Also, the knee cage rubbed on and dug into his right calf.

The appellant's work as a real estate sales representative

140 In 2005, after leaving Romteck, the appellant commenced work as a real estate sales representative in the Chidlow area. He found it difficult to move around the properties in his wheelchair. Many of them had gravel driveways and gumnuts on the ground. He used his crutches and then a walking stick to assist his mobility. The walking stick made him less stable on his feet but it gave him freedom of movement with one hand. The appellant's disability impeded his capacity to show properties to potential purchasers.

141 In 2008 the appellant commenced his own business as a real estate photographer. He accepted in evidence that if he had continued as a real estate sales representative he would have earned more money than as a real estate photographer.

The appellant's condition at the time of the trial and his permanent disability

142 The trial judge found that the appellant's condition 'is essentially unchanged since September 1998' [94].

143 On 21 January 2003, Professor Nade examined the appellant. In a report dated 21 January 2003, Professor Nade said:

His right lower limb showed that the distal part of the foot was slightly cooler than the left. He had decreased appreciation of light touch sensation, and pin prick sensation, in the distribution of the right fifth lumbar and first sacral nerve roots. The second, third and fourth sacral nerve roots had normal appreciation of sensation. Muscle power in his right lower limb was normal for hip flexion and abduction. The extension was normal in power (MRC grade 5), while knee flexion was MRC grade 4. He was able to dorsiflex his right ankle due to action of the tibialis anterior muscle, causing it to invert at the same time. Power was MRC grade 4. Power of ankle flexion was MRC grade 1. The extensors of his greater and lesser toes were MRC grade 0, while the flexors of his greater and lesser toes were MRC grade 1. Foot eversion was MRC grade 0. His knee jerk deep tendon reflex was of normal amplitude, similar to the left leg, while his right ankle jerk was also absent. Plantar reflexes were flexor. (original emphasis)

144 In a report dated 1 February 2010, Professor Nade concluded that the appellant's condition had stabilised. He expressed the opinion that the appellant 'will not be able to perform any onerous physical work in the future, but I see no reason why he could not carry out his current occupation for the foreseeable future' [96].

145 The appellant gave evidence that the numbness in his right leg affects the whole of the leg.

146 The trial judge noted it was put to the appellant in cross-examination that his back continued to be a source of pain. The appellant denied his back caused him any problems. He explained that his right leg was the source of his pain and any difficulty with his back was caused by the manner in which he compensates for his right leg when walking. The appellant denied that he had relief from his back pain for six months and that his back pain had then returned. In particular, he denied that his back continued to be a source of pain in the area which had caused him difficulty before the operation.

147 His Honour said it was not in issue that the appellant's condition was permanent and that no further treatment was possible.

148 The appellant's pleaded case in relation to the respondent's retainer was as follows:

(a) In 1998 he consulted the respondent 'for legal advice and representation in relation to allegations of negligence in respect of [Mr Thomas'] conduct of the operation (hereafter, "the surgeon's negligence")': par 1(f) of the statement of claim.

(b) In or about 1998 the appellant 'entered into a contract of retainer with [the respondent] (hereafter, "the retainer") for the purpose of obtaining legal advice and representation in an action for recovery of damages in respect of the surgeon's negligence (hereafter, "the medical negligence action")': par 1(g) of the statement of claim.

149 The respondent admitted in par 6 of its defence 'each allegation in par 1(f) of the statement of claim'.

150 However, the respondent pleaded in par 7 of its defence that it did not admit par 1(g) of the statement of claim. The respondent alleged in par 7 that '[the appellant] retained [the respondent] to advise on the appropriateness of pursuing the medical negligence action'.

151 The appellant pleaded that the respondent owed him concurrent duties in contract and tort.

152 Paragraph 2(b) of the statement of claim alleged that the respondent, by accepting the retainer, 'contractually undertook ... to use reasonable care and skill in advancing the medical negligence action for and on behalf of [the appellant]'.

153 Paragraph 2(c) of the statement of claim alleged that, 'by reason of the relationship of solicitor and client', the respondent owed the appellant 'a duty of care at common law to use reasonable care and skill in advancing the medical negligence action for and on behalf of [the appellant]'.

154 The respondent pleaded in par 9 of its defence that '[s]ave to say that the retainer was as pleaded in par 7 [of the defence]', each allegation in par 2(c) and par 2(d) of the statement of claim was admitted.

The trial judge's findings as to the terms of the retainer and the respondent's breach of its duties

(a) On 2 December 2003, the respondent advised the appellant to issue a writ of summons 'because of the impeding expiry of the limitation period' [115].

(b) On 3 December 2003, the appellant paid to the respondent 'the writ fee ... along with $1,000 to obtain a further medical report' [115].

(c) In the circumstances, the payment of the writ fee 'amounted to an instruction to issue the writ before the expiry of the limitation period' [115].

(d) It was therefore a term of the retainer that the respondent 'would issue a writ before the limitation period expired on 24 February 2004' [115].

(e) The respondent failed to issue a writ before the limitation period expired on 24 February 2004 [120].

(f) The appellant lost the opportunity to commence proceedings against Mr Thomas for the permanent disability he suffered following the operation [120].

(g) It was not in issue that the respondent breached its retainer by failing to issue a writ before the limitation period expired. The respondent was negligent [121].

The appellant's alleged loss or damage and Mr Thomas' alleged negligence

156 The appellant pleaded in par 6 of his statement of claim:

[The respondent's] failure to commence an action for and on [the appellant's] behalf constituted a breach of the term of the retainer and/or breach of the duty of care it owed to [the appellant], as a result of which [the appellant] has lost a valuable opportunity to obtain an award of damages in respect of the surgeon's negligence.

157 The appellant gave detailed particulars of his alleged 'lost opportunity' including particulars of Mr Thomas' alleged negligence. It was asserted, relevantly, that Mr Thomas was negligent in that he:

(v) failed to detect and evacuate a sub-dural or epidural haematoma which developed during the peri-operative or post-operative period;

(vi) failed to diagnose the sub-dural or epidural haematoma within a reasonable time after the operation;

(vii) failed to require, obtain or consult adequate radiological test results after conducting the operation in order to determine the cause of [the appellant's] post-operative symptoms;

...

(x) alternatively, failed to adequately provide advice and information in relation to other safer operative techniques available to [the appellant] in advance of the operation which would have exposed [the appellant] to lesser risk of injury or permanent damage to his spinal cord (such as but not limited to a normal or open discectomy procedure), particularly having regard to [the appellant's] congenitally-narrow spinal canal shown on the pre-operative CT scan. Had such advice and information been provided to [the appellant] prior to the operation, there was a significant chance if not likelihood [the appellant] would have chosen those alternative techniques over the microdiscectomy or chosen not to undergo any operative techniques but opted for conservative measures (such as cortisone injections into the spine); and

(xi) failed to warn or adequately warn [the appellant] of the risks associated with the microdiscectomy procedure such as paralysis, sensory loss or permanent nerve damage, particularly having regard to [the appellant's] congenitally-narrow spinal canal shown on the pre-operative CT scan. Had such advice and information been provided to [the appellant] prior to the operation, there was a significant chance if not likelihood that [the appellant] would have chosen those alternative techniques over the microdiscectomy or chosen not to undergo any operative techniques but opted for conservative measures or cortisone injections into the spine.

158 The issue concerning the appellant's 'congenitally-narrow spinal canal', as asserted in those particulars, was not pursued at the trial.

159 The respondent, in par 12 of its defence, denied par 6 of the statement of claim, and alleged that 'as [the appellant] would not have recovered any damages if proceedings were issued, there was no opportunity lost by [the appellant] as a consequence of proceedings not being issued'.

160 So, the appellant's alleged cause of action against Mr Thomas comprised two aspects. First, a claim based on Mr Thomas' alleged breach of his duty to warn. Secondly, a claim based on Mr Thomas' alleged negligent peri-operative or post-operative care.

The trial judge's formulation of the issues in relation to the appellant's alleged loss or damage

161 The trial judge formulated the issues in relation to whether the appellant had suffered any loss or damage, as follows:

Accordingly the questions that arise, to be determined on the balance of probabilities, are whether:

(a) [the respondent's] negligence caused [the appellant] to lose the opportunity to pursue a claim of some value against Mr Thomas; and

(b) [the appellant] would otherwise have pursued the lost cause of action [125].

The trial judge's assessment of the expert medical witnesses

162 The trial judge referred in some detail to the evidence of the expert medical witnesses at trial. He concentrated on the evidence of Professor Nade, Dr Bleasel (a neurosurgeon) and Dr Blum (a neurosurgeon).

163 His Honour found that Professor Nade was 'better qualified' than Dr Bleasel and Dr Blum to give evidence on microdiscectomies [141]. His Honour said that 'where opinions differ, it is likely that a notional court would have preferred the evidence of Professor Nade' [141].

The expert medical evidence as to the risks of microdiscectomy

All surgery carries risks. Those include the general risk of anaesthesia, including death, infection at the site of surgery, lung infection, urinary infection, bleeding and thrombo-embolic phenomena. The specific risks associated with (micro)discectomy include failure to relieve the symptoms for which the surgery was performed, bleeding in the spinal canal, laceration of the meninges overlying the cauda equina, infection involving the intervertebral disc, cauda equina syndrome, division of a nerve root, formation of adhesions within the spinal canal, persisting back pain soon after, or at a distant time from the surgical procedure, anterior perforation of the intervertebral disc with vascular compromise [145].

165 Professor Nade also said that a subdural haemorrhage following a microdiscectomy is rare. An epidural haematoma is probably more frequent, but is uncommon. The appellant's disability was 'a pretty rare complication' (ts 173). Dr Bleasel expressed a similar view (ts 243).

Professor Nade's evidence as to the principal alternative treatments

166 Professor Nade said the principal alternative treatments for the appellant were:

(c) not to perform surgery and, instead, monitor the appellant's symptoms [149].

167 The main indicator for surgery is the severity of the patient's symptoms [149].

168 Professor Nade gave evidence that cortisone injections carry considerably less risk than a microdiscectomy (ts 150). Without any treatment, an intervertebral disc may shrink over time and thereby reduce the patient's symptoms (ts 150 - 151).

The expert medical evidence as to the warnings Mr Thomas should have given to the appellant

... a patient in whom (micro) discectomy is contemplated should be advised of the above risks, their relative incidents, the potential benefits of the surgery, the nature of the surgery, and the post operation course to be expected, the alternative of not performing surgery does not carry any of the above risks apart from failure for symptoms to resolve, although they may with the passage of time [151].

170 The risks referred to by Professor Nade in that passage are set out at [164] above.

171 Dr Bleasel said it is customary to warn a patient who is proposing to undergo a microdiscectomy of the risk of paralysis or sensory loss even though such a complication is exceedingly rare.

The expert medical evidence as to whether the appellant's operation should have been performed when it was

172 Professor Nade said that disc excision surgery should not be performed unless there is clear clinical evidence of nerve root dysfunction.

173 Dr Bleasel said the appellant's operation was warranted on the basis of his history.

The trial judge's findings as to whether the appellant's operation should have been performed when it was

174 The trial judge held that a notional court was likely to have found that 'Dr Bleasel did not have sufficient history to form a view as to whether the operation should have proceeded' [153].

175 His Honour decided that it was likely a notional court would have preferred Professor Nade's opinion [153].

176 His Honour said it would have been open to a notional court to find that 'there was no pressing need to perform surgery and that other treatments, including simply waiting, were available, and should have been preferred' [154].

The trial judge's findings in relation to Mr Thomas' duty to warn the appellant

177 The trial judge made findings in relation to Mr Thomas' duty to warn the appellant as follows:

(a) The fact that the risk of a subdural or epidural haematoma is rare does not absolve a medical practitioner from the duty to give a warning to the patient. The general risk of paralysis and sensory loss is sufficient to require a warning [156]. His Honour elaborated:

The risks of division of a nerve root and the risk of paralysis or sensory loss following the operation was real and foreseeable, even if it was extremely unlikely to occur. While the risk was low the extent or severity of the potential injury was high, particularly when reasonably available and satisfactory alternative treatments, cortisone or simply waiting for the symptoms to resolve, could be tried and there was no urgency to conduct the operation [157].

(b) There was evidence upon which a notional court could find that 'Mr Thomas' warning was inadequate in that he failed to warn [the appellant] in accordance with Professor Nade's and Dr Bleasel's opinion' [158]. His Honour added:

In particular, a court could find that Mr Thomas failed to warn of the risk of division of a nerve root and the risk of paralysis or sensory loss following the operation. There is evidence that while Mr Thomas warned of the possibility of nerve damage he stated that the nerves actually grow back which negated any risk of permanent damage. If that was the warning, it was not only inadequate, it was misleading [158].

(c) There was evidence upon which a notional court could find that Mr Thomas failed to discharge his duty to provide the appellant with relevant information and advice as to the material risks of permanent damage [160]. His Honour then said:

The risk of a divided nerve root and the risk of paralysis and sensory loss was a risk that a reasonable person in [the appellant's] position would be likely to attach significance to. Mr Thomas was aware [the appellant] would be likely to attach significance to it. The need to warn of these risks was all the more important given [the appellant's wife's] expressed concern about permanent damage [160].

(d) There was evidence upon which a notional court could find that if the appellant had known 'that there was a risk of permanent damage, that he would not be able to use his right leg properly or be able to walk properly then he would have opted for at least taking painkillers, delaying the operation to see if the symptoms resolved or taken another opinion from another doctor' [161].

(e) The appellant's evidence was 'objectively credible' [162].

(f) It was open to a notional court to find that the appellant 'would have declined the surgery at that point and opted for conservative treatment. Had he done that he would have avoided the harm suffered' [163]. His Honour continued:

It was open to a notional court to find that [the appellant] would not have undergone the operation on 25 February. Even had conservative treatment failed and had he undergone the treatment at a later date the likelihood of the damage to the nerve root was low. It follows Mr Thomas' failure to warn caused the injury to the nerve root that resulted in permanent damage [164].

The trial judge's findings in relation to the value of the appellant's lost opportunity to commence proceedings against Mr Thomas based on Mr Thomas' alleged breach of his duty to warn

178 The trial judge made the following findings in relation to the value of the appellant's lost opportunity to commence proceedings against Mr Thomas based on Mr Thomas' alleged breach of his duty to warn the appellant:

(a) The evidence that was available to the appellant as at 24 February 2004 was 'clearly sufficient' to found 'a case of a failure to warn'. However, the case would have succeeded only if the evidence of the appellant and his wife about their conversation with Mr Thomas was accepted [167].

(b) It was likely that Mr Thomas would have been 'well aware' of the 'legal responsibility on medical practitioners to warn' [168].

(c) It was difficult to accept that Mr Thomas would have stated that a divided or severed nerve root would 'grow back anyway' [169].

(d) The likely response of Mr Thomas in the 'lost proceedings' would have been 'to deny that the warning was given in the Falkinghams' terms and to say that a warning was given in the terms suggested by Professor Nade and Dr Bleasel' [170].

(e) The appellant's case was, in essence, 'heavily reliant on a credibility finding in his favour' [171].

(f) A reasonably competent solicitor would have been aware of the risks that any plaintiff faces in a trial that is heavily dependent on credibility [172].

179 His Honour said that on 'a broad brush assessment' the appellant's 'lost chance was 55%' [173]. His Honour explained:

My reasons for reaching a figure of 55% are:

(a) it is a credibility case which starts at a 50% 50% position;

(b) the Falkinghams largely corroborate each other but a judge might well conclude that ... the corroboration is a result of discussing the meeting with each other over many years;

(c) the Falkinghams had concerns about the operation as a result of [the appellant's wife's] occupation and this objectively supports a finding that they would have paid close attention to such warnings;

(d) the subsequent decision to have the operation when there was no urgency is consistent with a failure to warn;

(e) [the appellant's] evidence about his previous back injury illustrates potential concerns with his credibility;

(f) (d) and (e) [sic: (c) and (d)] raise the probability of a failure to warn above 50% but not overwhelming so.

Therefore the 50% chance, should be raised by 5% to 55% [173].

The cause of the appellant's cauda equina syndrome

180 Professor Nade, Dr Bleasel and Dr Blum were agreed that the appellant had cauda equina syndrome immediately after the operation [178].

181 However, they diverged in their opinions as to what caused the syndrome.

182 Professor Nade was of the view that a haematoma in the appellant's spinal canal damaged the nerve roots. Dr Bleasel's opinion was that a surgical instrument used to retract the appellant's muscle and nerves damaged the nerve roots. Dr Blum was unable to explain how the syndrome arose [176].

183 The trial judge made the following findings in relation to the cause of the appellant's cauda equina syndrome and his consequent disability:

On the evidence as it stood at this trial, on the basis of Professor Nade's more complete explanation and his greater clinical and academic experience I conclude that Professor Nade's opinion was likely to be preferred by a notional court and that the probable cause of the residual symptoms is that the nerve root was permanently damaged as a result of an untreated haematoma that resulted from bleeding in the subdural or epidural space as a consequence of the operation.

However, that is not the end of the matter because that looks at the matter only from the point of view of [the appellant]. It does not factor in the evidence that would probably have been led by Mr Thomas' defence [192] - [193].

What should have been done when symptoms of the appellant's cauda equina syndrome emerged?

184 The trial judge emphasised that it was not suggested at trial that the bleeding and the formation of the haematoma was caused by Mr Thomas' negligence. No-one suggested that if the disability was caused by the use of a surgical instrument there may have been negligence. His Honour said that, in these circumstances, the appellant's further or alternative claim 'comes down to what should have been done once the symptoms emerged'; in particular, 'whether it would have been possible to establish at a notional trial that a haematoma existed and what steps could have been taken to reduce or eliminate the haematoma, that, on [the appellant's] case, caused the disability' [194].

185 Professor Nade was of the view that once the appellant's symptoms emerged an MRI should have been carried out to investigate their cause [195]. Professor Nade said that collection of blood in the subdural or epidural space was likely to have been found by an MRI. It was probable that if the site of the haematoma had been re-explored then the appellant's symptoms would have been avoided or markedly reduced [203].

186 The trial judge found that 'a notional court could have accepted Professor Nade's conclusion that if an MRI had been carried out then a collection of blood in the subdural or epidural space was likely to have been found and it was probable that if the site was re-explored then the symptoms would have been avoided or markedly reduced' [204].

I find that it was open to a notional court to find that Mr Thomas:

1. failed to detect and evacuate a sub-dural or epidural haematoma which developed during the peri-operative or post-operative period;
2. failed to diagnose the sub-dural or epidural haematoma within a reasonable time after the operation; and

1. failed to require, obtain or consult adequate radiological test results after conducting the operation in order to determine the cause of [the appellant's] post-operative symptom [205].

188 The trial judge then said that 'even accepting ... such a finding would be open to a court' it was necessary for that prospect to be 'balanced against the vulnerabilities in Professor Nade's evidence' [207]. After setting out a number of passages from Professor Nade's evidence at the trial, his Honour observed:

The defence argues that because of the use of words such as 'might', 'may', 'possible' and Professor Nade's statement in his answer in cross-examination that he was speculating, his conclusions amounted to no more than speculation and were short of conclusions based on the balance of probabilities.

Professor Nade was giving his answers in the context of his reports which expressed a view on the balance of probability. An MRI was not carried out immediately after the surgery. In using the words he did Professor Nade was simply acknowledging that in the absence of an MRI no definitive answer could be given. His answers were inevitably speculative - but speculation based on his clinical experience.

I have drawn attention to these extracts from the transcript simply to emphasise the vulnerabilities in Professor Nade's evidence. Although Professor Nade's reasons was [sic] not speculative in the sense put forward by [the respondent] it does emphasise that [the appellant] would have been required to establish a long chain of causation that was difficult at a number of points.

In particular, a critical issue in the chain of causation is whether remedial action would have altered the outcome [212] - [215].

The trial judge's findings in relation to the value of the appellant's lost opportunity to commence proceedings against Mr Thomas based on Mr Thomas' alleged negligent peri-operative or post-operative care

189 The trial judge made the following findings in relation to the value of the appellant's lost opportunity to commence proceedings against Mr Thomas based on Mr Thomas' alleged negligent peri-operative or post-operative care:

(a) The evidence that was available to the appellant as at 24 February 2004 was 'sufficient' to found a case of 'negligent post-operative care if Professor Nade's opinion was accepted' [216].

(b) The likely response of Mr Thomas' legal advisers if proceedings had been commenced against him before the expiry of the limitation period would have been to engage experts to investigate:

(a) the cause of the permanent disability, and in particular whether it was caused by a surgical instrument;

(b) the cause of the cauda equina;

(c) whether the cauda equina could have caused the permanent disability;

(d) what remedial action could have been taken, i.e. re-exploration, removal of the haematoma, decompression to a larger extent of the nerve roots in the lumbar canal; and

(e) whether it was possible to establish that even had the cauda equina been diagnosed promptly by an MRI it was then too late to have made any difference to [the appellant's] condition and the outcome may have been different to what it was [217].

(c) There may well have been other explanations for the cause of the appellant's disability. For example, Dr Bleasel said in cross-examination that the appellant's cauda equina syndrome may have been caused by operating on him in the prone position [218]. Further, an MRI may have revealed 'something about whether or not there had been blood in the spinal canal' [219].

(d) In the circumstances, the appellant's legal counsel would have been aware that 'Dr Bleasel's reasoned opinion ... conflicted with Professor Nade's' and that 'Dr Blum's opinion, although short on reasoning, also conflicted with Professor Nade's' [221].

(e) The respondent, when acting for the appellant, had difficulties in obtaining an opinion that supported an allegation of negligence against Mr Thomas [222].

(f) The appellant's counsel 'could properly have concluded that there were difficult questions of fact arising from causation upon which different conclusions based on clinical experience could fairly be open'. Counsel would have sought 'an opinion supporting Professor Nade before advising [the appellant] to proceed further' [223].

(g) The absence of an MRI at the relevant time meant there was 'an inevitable element of reconstruction, based on clinical experience, involved in determining what an MRI might have disclosed' and '[d]ifferent doctors may well have reached different conclusions based on their clinical experience' [224].

190 His Honour said that on 'a broad brush assessment' the appellant's 'lost chance was 40%' [225]. His Honour then said:

My reasons for reaching a figure of 40% are:

(a) the vulnerabilities in Professor Nade's chain of causation as set out above;

(b) the fact that the findings are based on clinical experience as to which different specialists may differ; and

(c) even without Mr Thomas having responded to a claim, two of the three doctors briefed on behalf of [the appellant] did not think that there was negligence [225].

The appellant's pre-existing back condition

(a) although the appellant's pre-existing back injury was explored in evidence there was no medical evidence to suggest that it would have had a significant impact on him in the absence of the injury to the nerve root; and

(b) in any event, the respondent carried the burden of 'disentanglement' with a reasonable degree of precision, and no attempt at disentanglement was made [226].

The trial judge's findings as to whether the appellant would have pursued the lost cause of action

192 The trial judge inserted a heading in his reasons which reads, '[w]ould [the appellant] have pursued the lost cause of action?'. His Honour then dealt with that issue at [228] - [235].

193 His Honour noted the appellant did not give evidence 'as to whether he would have pursued the action to trial' [228] (emphasis added). His Honour said he was 'therefore left to infer from the evidence that was provided whether he would have pursued the action to trial' [228] (emphasis added).

194 The trial judge made the following comments and findings on the issue:

[The appellant] accepted that in December 2003 he did not know what his claim was worth, what it might cost to go ahead and what it would cost if he lost. He accepted that there were two doctors against him and one for him. He accepted that Mr Connor of [the respondent] was not happy with the situation and the writ was to be issued to buy more time to try and find some more evidence (ts 97 - 98).

Mr Connor, of [the respondent], gave evidence that on 8 April 2003 he told [the appellant] that at the present time he would not be prepared to litigate a claim against Mr Thomas (ts 204). Mr Connor also drew attention to the fact that at that point [the respondent's] costs were about $5,000 plus disbursements (ts 204).

On 3 December 2003 [the appellant] responded quickly to [the respondent's] request for funds to issue the writ and to obtain a further medical report (ts 95). I am satisfied that as at 24 February 2004 [the appellant] would have pursued the claim to the point of reviewing the position after a further report was obtained.

[The appellant] had not undertaken the exercise of comparing the opportunity of what he might have gained compared to what he could lose if he proceeded. If the report had been unfavourable would he have proceeded? I simply do not know. Similarly, I simply do not know whether faced with the costs of an action compared to the potential award of damages and the risks he faced he would have proceeded to take the matter to trial.

I do not know whether [the appellant] could have funded the action. In the face of the evidence gathered by [the respondent] it is difficult to conclude that they would have proceeded on a speculative basis [230] - [234]. (emphasis added)

195 His Honour concluded that there was no basis for him 'to draw an inference as to what [the appellant] might have done' [235].

The appellant's claim against the respondent fails

196 The trial judge said he was not persuaded on the balance of probabilities that '[the appellant] would have pursued the lost cause of action' [236]. The appellant's claim therefore failed and his action was dismissed.

The trial judge's provisional assessment of the quantum of damages

197 The trial judge proceeded to make a provisional assessment of the quantum of damages against the contingency that his conclusion on liability was wrong.

The [appellant's] loss of a chance is to be assessed when the cause of action is lost by the expiry of the limitation period (Nikolaou v Papasavas, Phillips & Co, 404). The damages are to be assessed when the action would have gone to trial [238].

199 The trial judge held in substance that if the appellant had pursued the lost cause of action to trial, 'the matter would have gone to trial in mid-2006' at the earliest [239].

200 His Honour assessed damages in the total sum of $332,500 as follows [278]:

201 The trial judge then calculated that 55% of $332,500 was $182,875.

202 His Honour provisionally awarded the appellant $182,875 and interest on that amount at 6% per annum 'from 30 December 2006 until October 2012'. His Honour delivered judgment on 1 November 2012.

203 It is necessary to set out the trial judge's findings and reasoning in relation to the appellant's claim for loss of earning capacity.

204 The appellant claimed damages of $109,200 for past economic loss and $222,015 for future economic loss.

205 The evidence before his Honour established that the appellant's earnings for the financial years between 1994 and 2005 were as follows:

206 During the financial year ended 30 June 2006 the appellant's earnings were $48,500 gross [257].

207 The trial judge made the following comments and findings:

On the evidence contained in exhibit 1 [the appellant] has suffered a loss of $7.61 per week. That calculation does not take into account his earnings in 2006. If they were taken into account he would not have suffered a loss.

[The appellant's] counsel said that a figure of $300 per week was appropriate on the basis of the growth of award rates over time and a consideration of the AWOTE for Western Australia (see submissions [6] - [9]).

[The appellant's] counsel sought to argue that by reason of increases in wages between 1999 - 2005 compared to 1994 - 1998 a calculation of the latter rates, does not provide an accurate basis because 'it would be comparing 1994 - 1998 currency with 1999 - 2005 currency.'

I do not accept that there is a basis for calculating [the appellant's] loss on the basis of $300 per week. The fact is that his earnings were substantially the same and significantly better if the income to 30 June 2006 is taken into account [258] - [261].

208 His Honour said the appellant was unemployed 'by choice' when he had the accident which resulted in the operation. After the operation 'he had to go out and find work which he did successfully'. According to his Honour, there was no evidence his disability had more than 'a marginal impact on his earnings' [264].

209 The trial judge concluded that the appellant had suffered 'a loss of perimeter [sic] in his earning capacity'. His Honour assessed that loss at $80,000 'for past and future economic loss, including interest, and the period when he was on disability benefits between February and November 1998 after surgery' [265]. His Honour did not explain how he had arrived at the amount of $80,000 and he did not apportion that amount between past economic loss, on the one hand, and future economic loss, on the other.

Ground 1.1

1.1 The learned trial Judge erred in law in determining that the relevant test for causation was whether the appellant would have pursued the action against the surgeon (the 'lost action') to an ultimate trial. His Honour should have found instead that the respondent's negligence caused the appellant to lose a valuable opportunity to (at least) settle the lost action.

Ground 1.2

1.2. In failing to find or infer that the appellant would have taken the lost action to trial, the learned trial Judge:

(a) erred in law, when there was no evidence that the appellant would not have pursued the lost action to trial;

(b) erred in law, when the most reasonable inference available on the evidence, favoured such a finding.

Ground 2.1

2.1 His Honour erred in fact in assessing that the value of the lost opportunity was 55% (on account of the surgeon's failure to warn of the risks of microdiscectomy), when the evidence warranted a much higher assessment.

Ground 2.2

2.2 His Honour erred in law in failing to give any or adequate reasons for the conclusion (or make appropriate findings to support the conclusion) that the appellant's evidence about his previous back injury illustrates potential concerns with his credibility [173(e)].

Ground 3

1. The learned trial Judge's award of $80,000 for past and future loss of earning capacity was so inordinately low as to amount to an error of law.

212 The sole ground in the notice relates to ground 2.1 of the appeal and alleges:

In the event the appeal on liability is allow[ed], then the Respondent contends that the reduction by the learned Trial Judge of damages to 55% of the provisional assessment is wrong in law and is a far greater award than should have been allowed given the risks and uncertainties in the potential litigation, in particular:

(a) the fact that the Appellant may not have proceeded with the action due to its inherent risks;

(b) the potential that the Appellant may have chosen to settle the claim at a lower figure given the risks, uncertainty and expense of litigation; and

(c) the potential that the Appellant may have failed at trial on the issue of negligence and causation which were not factors taken into account by His Honour.

The nature of the appellant's right of appeal and the function of this court

213 The appellant's right of appeal is conferred by s 79(1)(a) of the District Court of Western Australia Act 1969 (WA). The nature of that right and the function of the Full Court of the Supreme Court of Western Australia in hearing and determining an appeal instituted in exercise of that right were examined by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [14] - [22]. His Honour's observations apply generally to appeals to this court pursuant to s 79(1)(a).

214 Ground 1.1 alleges that the trial judge erred in law in deciding that the test for causation was whether the appellant would have pursued the lost cause of action against Mr Thomas to trial and that his Honour should have found that the respondent's negligence caused the appellant to lose a valuable opportunity to (at least) settle the cause of action.

215 It is necessary to identify the principles to be applied in determining whether a plaintiff is entitled to damages against his or her former solicitors (and, if so, the quantum of those damages) where it is alleged that the solicitors' negligence deprived the plaintiff of the opportunity to enforce a cause of action against a third party by issuing and pursuing proceedings.

216 A plaintiff whose cause of action against a third party has become statute-barred by reason of the negligence of his or her former solicitors may recover damages from the solicitors if the plaintiff proves on the balance of probabilities that:

(a) the plaintiff has suffered some loss in that the cause of action which became statute-barred had some value; and

(b) but for the solicitors' negligence, the plaintiff would have issued and pursued proceedings to enforce the cause of action.

See Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332, 355 (Mason CJ, Dawson, Toohey & Gaudron JJ); Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351, 363 - 364 (Wilson, Toohey & Gaudron JJ), 371 - 372 (Brennan J); Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394, 404 (Wilson, Dawson, Toohey & Gaudron JJ); Phillips v Bisley [1997] NSWCA 246 (5 - 7) (Mason P, Meagher JA & Dunford AJA agreeing); Feletti v Kontoulas [2000] NSWCA 59 [34] (Mason P, Sheller JA & Rolfe AJA agreeing); Radosavljevic v Radin [2003] NSWCA 217 [52] (Mason P, Handley & McColl JJA agreeing); Hammond Worthington v Da Silva [2006] WASCA 180 [118] (Buss JA); Nigam v Harm [No 2] [2011] WASCA 221 [87] - [88] (Newnes JA, McLure P agreeing).

217 In Johnson (363), Wilson, Toohey and Gaudron JJ cited with approval the following passage from the judgment of Lord Evershed MR in Kitchen v Royal Air Force Association [1958] 1 WLR 563, where the plaintiff's former solicitors had allowed the plaintiff's claim under the Fatal Accidents Acts 1846 - 1908 (UK) to become statute-barred and it was by no means certain that the plaintiff's claim would have succeeded:

In my judgment, what the court has to do (assuming that the plaintiff has established negligence) in such a case as the present, is to determine what the plaintiff has by that negligence lost. The question is, has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case, it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can (575).

218 The issue of causation requires the plaintiff to prove what would probably have eventuated had the solicitors' negligence not occurred. This is necessarily a hypothetical question and involves an evaluation of circumstances which did not in fact happen. The common law test is subjective. See Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 [32] (McHugh J), [93] (Kirby J); Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [24] (McHugh J). A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential. See Rosenberg [44] (McHugh J).

219 If the plaintiff proves the matters referred to at [216] above on the balance of probabilities, then the value of the plaintiff's lost opportunity to enforce the cause of action against the third party, by issuing and pursuing proceedings, is to be determined by reference to degrees of probabilities and possibilities. See Sellars (355 - 356); Hammond Worthington [118]; Heenan v Di Sisto [2008] NSWCA 25; [2008] Aust Torts Reports 81-941 [28] - [32] (Giles JA, Mason P & Mathews AJA agreeing); Hendriks v McGeoch [2008] NSWCA 53; [2008] Aust Torts Reports 81-942 [88] (Basten JA, Spigelman CJ & Giles JA relevantly agreeing).

220 The plaintiff's lost opportunity has value even if the court assesses the plaintiff's prospects in relation to the cause of action against the third party at less than 50%. See Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, 118 - 119 (Deane J); Phillips v Bisley (7 - 8); Feletti [35]. So, the plaintiff may recover damages for the lost opportunity even though, on the balance of probabilities, 'it is more likely than not that the opportunity will not be realised': VACC Insurance Co Ltd v Lekkas [1999] VSCA 31; [1999] 2 VR 529 [26] (Buchanan JA, Brooking JA agreeing). However, the prospect of the opportunity being realised must not be 'so low as to be regarded as speculative - say less than 1 per cent': Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 643 (Deane, Gaudron & McHugh JJ). See also Sellars (350).

221 In Malec (639 - 640, 643) and Sellars (350), the High Court approved the following statement by Lord Diplock in Mallett v McMonagle [1970] AC 166 in relation to the proper approach in this kind of case to the assessment of damages:

The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend on its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards (176).

222 It is the plaintiff's prospects in relation to the lost cause of action, and not the hypothetical decision if the lost cause of action had been taken to trial, that must be investigated. See Instant Nominees Pty Ltd v Redman [1987] WAR 218, 226 (Burt CJ).

223 If the plaintiff would, but for the negligence of his or her former solicitors, have recovered damages for personal injuries against the third party, the plaintiff is to be compensated for the loss suffered by reason of the solicitors' negligence. The plaintiff is not to be compensated as if his or her claim against the solicitors was a claim for damages for personal injuries. See Johnson (367).

224 In Johnson, Wilson, Toohey and Gaudron JJ held:

(a) the first component in the assessment of the plaintiff's damages for the loss he or she has suffered by reason of the solicitors' negligence is the amount of damages likely to have been awarded by the court before whom the lost action against the third party would have come (366);

(b) the loss suffered by the plaintiff by reason of the solicitors' negligence crystallises when the action against the third party was lost as a result of the solicitors' negligence and is then capable of assessment (366 - 367); and

(c) the process of assessment 'may well require a broad brush approach in determining when, in the absence of negligence, the action would have come to trial and the evidence bearing on the quantum of damages that would or should have been available for tender to the court' (367).

225 Wilson, Toohey and Gaudron JJ noted in Johnson that the actions by the respondent in that case against his solicitors were heard much later than the original actions against the respondent's employers were likely to have been heard if they had not been struck out for want of prosecution as a result of the solicitors' negligence. Their Honours said that, in those circumstances, 'the period of time between the date when each cause of action against the employer arose and the date when the cause of action against the solicitor arose, together with the prospect of the respondent having recovered statutory interest against his employer for that period, is a matter which may be taken into account in assessing the damages due to the respondent' (368).

226 It is well-established that, in assessing the value of the plaintiff's lost opportunity, evidence obtained after the cause of action against the solicitors arose is admissible, subject to questions of foreseeability. See Johnson, where Wilson, Toohey and Gaudron JJ said:

[T]he fact that the respondent's damages are to be assessed as at the time each action was dismissed for want of prosecution does not mean that evidence is excluded of events occurring since the dismissal. Such evidence may be relevant in a number of ways. In the first place, it may assist the court in placing itself in the position of the trial judge at the notional trial when a judgment was to be made of the likely losses that would be suffered by the respondent in the future and for which the employer was to be held responsible. As Latham CJ pointed out in Willis v Commonwealth [1946] HCA 22; ((1946) 73 CLR 105 at 109):

' ... where actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second best. Damages are awarded for injury actually suffered and for prospective injury. Prospective injury can only be estimated with more or less probability. But where the extent and character of what would at one time be described as prospective injury depends upon the happening or non-happening of a particular event and that event has in fact happened, it is unnecessary to speculate as to whether or not this event might happen and, if so, when. In such a case prospective damage (or diminution of damage) has become actual.'

Secondly, in a case where witnesses have died or there is a paucity of evidence (perhaps because of the negligence of the solicitor) touching the condition of a plaintiff at the time of a notional trial, the evidence relating to subsequent events (including, for example, later medical reports on a plaintiff) may assist a court in piecing together the case that could, but for the negligence of the solicitor, have been made out in the trial of the earlier action: see Tutunkoff v Thiele. In each of these two respects, the evidence is received for the purpose of assessing the damages that the plaintiff was likely to have been awarded had the action gone to trial. Of course, difficult questions may arise as to whether a particular disability was known or foreseeable at that earlier time but that does not detract from the basic principle. There is a third basis on which evidence of subsequent events may be tendered, namely, in the prosecution of a claim of aggravation of injury or other loss directly attributable to the negligence of the solicitor (368 - 369).

See also Feletti [36]; Firth v Sutton [2010] NSWCA 90 [114] (Allsop P, Macfarlan & Young JJA agreeing); Steve Masselos & Co v Young [2011] NSWCA 352 [16] (Handley AJA, McColl JA & Sackville AJA agreeing).

227 In Nikolaou, Wilson, Dawson, Toohey and Gaudron JJ said:

For reasons which are set out in some detail in Johnson v Perez, his Honour should first have focused on Mr Nikolaou's situation when his claim for damages for personal injuries became statute-barred. He should have assessed damages by reference to the loss at that date of the right to claim damages. That loss would ordinarily be quantified by the trial judge taking a broad brush approach to the several matters that in a particular case may require to be resolved - the likely date when in the absence of the negligence of the solicitor the action would have come to trial, the evidence that would or should have been available to the plaintiff at that time, the relevant principles of law then governing the assessment of damages, the question of contributory negligence, and (an issue which would not be a problem in the present case) the prospects of any judgment given in favour of the plaintiff being satisfied - in order to arrive at a figure representing the loss suffered by the plaintiff when his action against the defendant was dismissed (404). (emphasis added)

228 Wilson, Dawson, Toohey and Gaudron JJ noted in Nikolaou that the assessment of the plaintiff's loss must have regard to the prospect that the plaintiff would have received statutory interest from the nominal defendant against whom the plaintiff had the statute-barred cause of action for the period between 'the notional date of the issue of the writ against that body and the date on which the cause of action against the solicitors arose' (404).

229 Also, their Honours observed in Nikolaou that:

(a) what has to be assessed, as at the date on which the plaintiff's cause of action against the solicitors crystallised, is the value of the lost claim against the third party (403);

(b) insofar as that assessment 'has to pay regard to the injuries received by [the plaintiff] in the accident and their effect upon him, there is no reason why evidence relating to those matters, subject to their having being foreseeable as likely losses at the date when the cause of action against the solicitors arose, should be excluded by the trial judge' (403) - (404); and

(c) evidence of this kind is receivable for the purpose of assessing what the plaintiff has lost, and not to determine the amount to which the plaintiff would have been entitled had his claim against the solicitors been for damages for personal injuries (404).

230 In Dolman v Penrose (1983) 34 SASR 481, Bollen J (Wells J agreeing) said, in the context of a claim against solicitors who had failed to institute proceedings under the Inheritance (Family Provision) Act 1972 (SA) within the prescribed time:

I think that the starting point is to define what it is that the plaintiff has lost. For what is he to be compensated? Put in a rough but convenient way it is the lost chance to litigate. More precisely stated it is that which he might reasonably have been expected to gain by litigation. In the word 'gain' I include the fruits of a judgment or a compromise. But the compromise contemplated must be one genuinely made, ie the compromise of a claim recognised as arguable. Nothing should be taken into account for 'nuisance value' (490). (emphasis added)

His Honour stressed that 'the possibility of a reasonable compromise must not be forgotten in assessing the value of the lost right to bring an action' (492). See also Dixon v Clement Jones Solicitors [2004] EWCA Civ 1005 [27] (Rix LJ, Carnwath LJ & Lord Slynn of Hadley agreeing).

231 In MacKenzie v Middleton, Ross & Arnot [1983] SLT 286, the widow and children of a deceased pedestrian, who suffered fatal injuries in a road accident, sued their legal advisers for professional negligence. The legal advisers had failed, before the expiry of the limitation period, to commence an action against the drivers involved in the accident. The Inner House of the Court of Session held that the pursuers' personal injury claim would have been compromised at approximately £25,000.

232 In Johnson, Brennan J (dissenting) held that, where a plaintiff's original cause of action has been lost in consequence of the negligence of his or her solicitor, the court assessing the plaintiff's damages in proceedings against the solicitor must determine, on the balance of probabilities, whether the plaintiff's original cause of action would have succeeded (and, if so, to what extent) or failed (372).

If [the plaintiff] would have failed in the original action, he has lost nothing; if he would have succeeded, he has lost what he would have received ... ; if the action would have been compromised, he has lost what he would have been paid in settlement at the time when he would have been paid. Or, if it is doubtful whether or not he would have succeeded in the action and it is not probable that the action would have been compromised, the court assessing the damages must determine as best it can on the balance of probabilities whether the plaintiff would have succeeded (and, if so, to what extent) or failed (372). (emphasis added)

234 Brennan J's reference to 'on the balance of probabilities', rather than to degrees of probabilities and possibilities, in assessing the value of a plaintiff's lost opportunity to enforce a cause of action against a third party, is stricter than and inconsistent with the approach of Deane J in Amann Aviation and the reasoning of Mason CJ, Dawson, Toohey and Gaudron JJ in Sellars (352 - 356).

235 In Phillips v Bisley, Mason P considered how to distinguish between the 'nuisance value' of a lost cause of action, on the one hand, and a lost cause of action which had sufficient 'prospects' for a court to conclude that the plaintiff would have been likely to have received a valuable offer of settlement, on the other. His Honour observed:

Difficult and elusive though the distinction may be, the court trying the issue of the lawyer's negligence must proceed on the evidence before it. This involves considering the factors mentioned in the passage quoted from Nikolaou, including 'the evidence that would or should have been available to the plaintiff at that time' (emphasis added). It also involves looking at the likely response of the other party or parties in the lost proceedings (ie those which would, but for the lawyer's negligence, have been prosecuted in a timely way). Among other things this requires the court trying the negligence claim to make due allowance for the fact that a less than well informed or overly cautious lawyer for the defendant faced with a claim in the lost proceedings might have made a valuable settlement offer. But what the trial judge cannot do, in my opinion, is shut his or her eyes to the evidence showing the information that was known to or was reasonably obtainable by all litigants in the lost proceedings pointing towards an objective assessment of the plaintiff's prospects of success in the lost action (8 - 9).

236 In Harrison v Bloom Camillin (No 2) [2000] Lloyd's Rep PN 89, Neuberger J held that a court assessing the value of a lost cause of action should take into account the possibility of the lost action settling, but ordinarily the task of determining the settlement value of the lost claim was likely to be similar to the task of determining the value of the lost opportunity of obtaining damages at trial. His Lordship said:

[T]here was a dispute between the parties as to whether (as Mr Salter contends) one can take into account the possibility of a settlement being reached in the action, or whether (as Miss Start argues), one has to assume that the action, which the claimant has lost the opportunity to pursue, would have gone all the way to trial. Unless constrained by authority, I can see no justification, either on legal principle or out of practical considerations, for accepting the latter view: it appears to me to be artificial, unrealistic and to impose an unnecessary constraint on the exercise which the court has to perform. If one is asking oneself what would have happened in a certain action which will not actually proceed, it seems to me that there is no good reason artificially to constrain oneself to a certain assumption which may, in practice, not be realistic. After all, the great majority of professional negligence actions settle, whether during the hearing, just before the hearing, or comparatively early. Further, it is not inconceivable that the potential defendant could be shown to have anticipated the action being brought, and to have reached a decision to pay a sum say £100,000, into court to protect its position straight away. If the court is not only satisfied that that would have happened, but that the claimant would have accepted £100,000, it appears to me to be little short of absurd that, instead of awarding the claimant £100,000 (together with interest from the date upon which the payment in would have been likely to have been accepted), the court is obliged to assume that the action would have proceeded all the way to final judgment and to force itself to indulge in the time consuming and costly exercise of considering all the implications of that artificial assumption [84].

237 Where the plaintiff's lost cause of action was for damages in negligence for personal injury, the 'broad brush approach' referred to in Johnson (367) and Nikolaou (404) will usually require that, in valuing the plaintiff's lost opportunity, a discount be applied to the damages the plaintiff would have recovered on the original cause of action on the assumption the plaintiff would have been wholly successful. In a particular case, whether a discount is necessary and, if so, the amount of the discount will depend on the facts and circumstances of the case.

(a) The appellant did not give evidence 'as to whether he would have pursued the action to trial' [228]. (emphasis added)

(b) His Honour was 'therefore left to infer from the evidence that was provided whether [the appellant] would have pursued the action to trial' [228]. (emphasis added)

239 His Honour then considered what inference or inferences could be drawn from the evidence that was adduced. He observed:

I simply do not know whether faced with the costs of an action compared to the potential award of damages and the risks he faced [the appellant] would have proceeded to take the matter to trial [233]. (emphasis added)

240 The trial judge concluded that the appellant's claim against the respondent failed because, on the evidence, his Honour was not persuaded on the balance of probabilities that the appellant would have 'pursued the lost cause of action' [236].

241 It is implicit, on a fair reading of his Honour's reasons on this issue as a whole, that the appellant failed because his Honour was not satisfied that he would have pursued the lost cause of action to trial. This implication should be made for the following reasons. First, in considering the issue his Honour referred, on three occasions, to whether the appellant would have pursued the lost cause of action to trial [228], [233]. Secondly, in considering the issue his Honour did not refer to whether the appellant would have pursued the lost cause of action at least to the stage where there was a reasonable possibility that he would have received a valuable offer of settlement. Thirdly, the only transcript from the trial which his Honour reproduced in considering the issue was part of the appellant's cross-examination that focused on whether he would have been willing to 'go ahead' and take the risk of 'losing' the litigation, which connotes pursuing the lost cause of action to trial [229]. Fourthly, in considering whether the appellant had the financial resources to pursue the lost cause of action his Honour referred to whether the appellant 'could have funded the action', which in context connotes funding the action to trial [234].

242 In my opinion, his Honour's approach to causation, and his conclusion that the appellant's claim against the respondent failed, were erroneous, as alleged in ground 1.1, because of his Honour's view that the test for causation was whether the appellant would have pursued the lost cause of action against Mr Thomas to trial. It was, of course, necessary for the appellant to prove on the balance of probabilities that, but for the respondent's negligence, he would have issued and pursued proceedings to enforce the lost cause of action against Mr Thomas. However, it was not essential that the appellant prove on the balance of probabilities that he would have taken the hypothetical proceedings to trial. It was sufficient for the appellant to prove on the balance of probabilities that, but for the respondent's negligence, he would have issued and pursued the hypothetical proceedings at least to the stage where there was a reasonable possibility that he would have received a valuable offer of settlement.

244 Ground 1.2 alleges in substance that the trial judge erred in failing to find or infer that the appellant would have taken proceedings against Mr Thomas on the lost cause of action to trial. The ground asserts that error should be found because, first, there was no evidence that the appellant would not have pursued the lost action to trial and, secondly, the most reasonable inference available on the evidence favoured such a finding.

245 At trial, causation in fact was relevant at two levels. First, as regards the appellant's claim based on Mr Thomas' alleged breach of his duty to warn, what the appellant would have done if the requisite warning had been given. Secondly, as regards the appellant's claim in negligence against the respondent, what the appellant would have done if the respondent had issued a writ of summons against Mr Thomas on or before the last day of the limitation period.

246 Ground 1.2 is concerned with the second level at which causation in fact arose at the trial, namely whether, but for the respondent's negligence in failing to issue a writ within time, the appellant would have issued and pursued proceedings to enforce the lost cause of action against Mr Thomas to judgment after trial; alternatively, at least to the stage where there was a reasonable possibility that he would have received a valuable offer of settlement.

247 As I have mentioned, the common law test of causation in Australia is subjective. However, it is well-established at common law that a plaintiff's evidence concerning his or her 'belief' as to what course he or she would have adopted if the defendant had not been negligent and, in the case of a defendant who is a professional person, if proper advice had been given, must be treated with caution. As McHugh J said in Chappel:

Human nature being what it is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. In determining the reliability of the plaintiff's evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff's evidence. It may be a ground for rejecting the plaintiff's evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence can only be determined by reference to objective factors, particularly the attitude and conduct of the plaintiff at or about the time when the breach of duty occurred. For that reason, the restrictions on appellate review laid down in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 and other cases are likely to have little application [32] fn (64).

248 Part 1A of the Civil Liability Act 2002 (WA) is headed 'Liability for harm caused by the fault of a person' and currently comprises s 5A - s 5PB. Part 1A, which originally comprised s 5A - s 5P, was introduced by the Civil Liability Amendment Act 2003 (WA).

(1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -

(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and

(b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).

...

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault -

(a) subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and

(b) evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.

250 By s 5A(1), subject to s 3A and s 4A, pt 1A applies to 'any claim for damages for harm caused by the fault of a person unless this section states otherwise'. By s 5A(3), relevantly, div 3 (which comprises s 5C and s 5D), does not apply 'unless the harm giving rise to the claim for damages arises out of an incident happening on or after 1 December 2003', being the day on which s 8 of the Civil Liability Amendment Act 2003, which inserted div 3, came into operation.

251 In the present case, neither s 3A nor s 4A is relevant.

252 By s 3, unless the contrary intention appears, 'harm' means 'harm of any kind', including 'personal injury' (as defined in s 3), 'damage to property' and 'economic loss'.

253 Section 5C(3) relevantly preserves, subject to an important qualification, the subjective character of the common law test of causation. However, contrary to the position at common law, evidence of the 'injured person' as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.

(a) Section 5C(3) had no application to the determination of the issue of factual causation as to whether the appellant would have undergone the microdiscectomy if (as alleged by the appellant) Mr Thomas had not failed to give the requisite warning because the appellant suffered the harm in question on 25 February 1998 when Mr Thomas performed the operation.

(b) Section 5C(3) did apply to the determination of the issue of factual causation as to whether, but for the respondent's negligence, the appellant would have issued and pursued proceedings to enforce the lost cause of action against Mr Thomas to judgment after trial; alternatively, at least to the stage where there was a reasonable possibility that he would have received a valuable offer of settlement. The appellant suffered the harm in question when the limitation period expired on 24 February 2004 without a writ having been issued. The appellant's claim against the respondent was not a claim for damages for personal injuries. See [223] above.

255 Section 5C was not referred to at trial, in the trial judge's reasons or in the appeal. The parties proceeded, erroneously, on the basis that s 5C(3) had no application at all.

256 The failure of the parties to appreciate the relevance and application of s 5C is, however, of no importance because the appellant did not give evidence at trial to the effect that, if the cause of action against Mr Thomas had not been lost, he would have taken the action to trial, if necessary. It was not put to the appellant in cross-examination that he would not in any event have maintained proceedings against Mr Thomas to trial.

257 The appellant's financial capacity to fund proceedings against Mr Thomas to trial, if the cause of action against him had not been lost, was not in issue between the appellant and the respondent at trial on the pleadings, or by discovery between the parties, or on the evidence or in submissions.

258 There were numerous objective facts, occurring prior to the accrual of the appellant's cause of action against the respondent, which were relevant in determining whether it should be inferred that the appellant would have enforced the lost cause of action against Mr Thomas by issuing and pursuing proceedings to settlement or judgment after trial:

(a) By letter dated 30 July 1999, the respondent applied on behalf of the appellant to Legal Aid Western Australia for a grant of legal aid to fund 'initial investigations' of the appellant's claim. The anticipated funding requirements for the initial investigations were $1,000 for solicitors' costs, $750 for a report from a neurosurgeon and $150 for a report from a general medical practitioner. By letter dated 6 August 1999, Legal Aid Western Australia refused the application.

(b) In a memorandum dated 8 September 1999, Daniel Connor, the solicitor employed by the respondent who was responsible for the appellant's claim, noted that on that day he had a conference with the appellant and his father-in-law. The memorandum records:

The father-in-law apparently was putting up the money for all of this and wanted to speak to me about the matter first.

I went through and explained to him why we wanted the costs - the fact of the legal aid application being knocked back. I also explained to him that we wanted about $3,000.00 to cover our costs and disbursements in relation to this matter as outlined in my recent letter to the client.

I went on and explained to him that we would be briefing a neurosurgeon to advise us on this matter and we would also have to get the medical reports ...

The client's father-in-law gave a cheque for the $3,000.00.

(c) In a memorandum dated 2 July 2001, Mr Connor noted that on that day he had a telephone conversation with the appellant. The memorandum records:

We discussed Dr Blum's report and clearly it was not favourable.

We discussed another couple of options including dropping the claim or getting another neurosurgeon to advise us on the matter. There seemed to be some doubt in Dr Blum's report as to what the exact cause of his present symptoms were. The client said that he had not suffered any leg symptoms at all prior to his admission to the Mount Hospital. He went there for back pain.

I would have a think about the matter and get back to him towards the end of the week.

I also discussed with him the possibility of him going over to Sydney or Melbourne and being seen by a neurosurgeon.

(d) In a memorandum dated 16 May 2002, Mr Connor noted that on that day he had met with the appellant. The memorandum records:

We discussed the future conduct of his claim and in particular, the possibility of a Rogers and Whittaker [sic] type of case which I explained to him in some detail.

We also discussed [in] the future getting more evidence and the client wondered whether it would be best if he consulted a doctor in the eastern states in person. I agreed with him that that would probably be best as the doctor would be able to examine him himself and get whatever history was required from him on the spot.

I would go ahead and arrange an appointment for him to see doctors in Sydney. I explained to him that this would be somewhat expensive but the client said he would be able to get the money together.

(e) By letter dated 23 October 2002, Mr Connor wrote to the appellant and confirmed his instructions to arrange medical appointments with specialists in Sydney. The letter said that appointments had been made with Professor Nade on 21 January 2003 and Dr Bleasel on 22 January 2003.

(f) In a memorandum dated 8 January 2003, Mr Connor's secretary noted that on that day she had telephoned the appellant and he had told her that he had booked airline flights to Sydney for the appointments with Professor Nade and Dr Bleasel.

(g) On 13 January 2003, Mr Connor sent the appellant his X-rays so he could take them to his appointments with Professor Nade and Dr Bleasel.

(h) The appellant saw Professor Nade and Dr Bleasel in Sydney on 21 and 22 January 2003 respectively, as scheduled.

(i) In a memorandum dated 8 April 2003, Mr Connor noted that on that day he had a telephone conversation with the appellant. The memorandum records:

I told him about the two latest reports that we had received from Bleasel and also Nade.

I went through and explained some of the difficulties that I had and that at the present time I would not be prepared to recommend that he litigate a claim against Wayne Thomas.

I went through a couple of different options and I also told him that the costs were beginning to mount up on this case and I told him that there'd be about $5,000 for us and on top of that there would be the disbursements as well. The question for him is whether he still wanted us to go on and continue investigating this claim.

I said that if the claim, or rather his disability was not as great, then I'd probably be recommending that he would forget about the matter.

However, his disability was great and would effect [sic] him for the whole of his life so perhaps for that reason it was worth going a little bit further in our investigations.

I also discussed with him the possibility of getting a further medical report.

Perhaps we should get somebody who is highly experienced with micro-disectomies [sic]. He authorised me to go ahead and do that.

I also told him I'd sent him out an account for our disbursements so far and he was agreeable to that as well.

(j) In a memorandum dated 2 December 2003, Mr Connor noted that on that day he met with the appellant. The memorandum records:

It would seem that from what Nade says that it would have to be accepted by a Judge that his signs and symptoms in the immediate post operative period indicated an urgent MRI scan. Had that MRI been performed, then it would have revealed a sub dural [sic] haematoma. The treatment for the haematoma was to aspirate and thereby relieve pressure on the nerve roots. This would have lead [sic] to a better outcome.

We had put this to Bleasel but he didn't seem very impressed with that.

Nade's main reason for believing that the cause of the complaint was a sub dural [sic] haematoma rather than a complication associated with retraction of the nerve, was the distribution of the damage to that nerve.

I told the client that we thought we should have 2 doctors to support our case on this point. Preferably we would get a report from a Neurosurgeon who had a lot of experience with micro-disectomies [sic].

Bleasel admitted in his letter that he was [not] greatly familiar with that technique and I doubted whether Nade had performed many either.

I also explained to him that we should issue the Writ because of time limitations.

There'd be a cost involved in all of this and the client said that he could pay right away. I told him it would cost somewhere around $1,000 for another medical report and $325 to issue the Writ.

Clearly it was worth investigating this a little more because of the potential size of the client's claim.

(k) On 3 December 2003, the appellant paid $1,350 to the respondent.

(l) By letter dated 26 November 2004, the respondent advised the appellant 'to seek independent legal advice in this matter due to our failure to issue Court proceedings within the six-year time limitation period'.

259 There were also some objective facts, occurring after the accrual of the appellant's cause of action against the respondent, which were relevant in determining whether it should be inferred that the appellant would have enforced the lost cause of action against Mr Thomas by issuing and pursuing proceedings to settlement or judgment after trial.

260 The appellant pursued his cause of action against the respondent to judgment after trial.

261 The appellant litigated the proceedings against the respondent to trial very substantially on the evidence (including the expert medical evidence) that was available when the lost cause of action against Mr Thomas became statute-barred.

262 The appellant maintained the proceedings against the respondent to trial in reliance on Professor Nade's expert medical opinion. He did not rely on evidence from any other expert medical witness.

263 The appellant gave the following evidence in cross-examination:

CLYNE, MR: So you had two opinions or three, Professor Blum saying no negligence, Mr Bleasel saying no negligence and Dr Blum saying it could have been bleeding and there should have been an MRI scan---Nade.

Mr Nade, yes. That's what you understood at the time---Yes.

And did Mr Connor say to you, well, it would not be wise to go ahead without a second opinion confirming Professor Nade---That's what I understood, yes.

That's what you understood---Yes.

And [he] also said to you, didn't he, that that person, whoever it was, should be someone who had lots of experience in doing micro-discectomies---Yes.

CLYNE, MR: Now, that was - sorry, your Honour - - -

CURTHOYS DCJ: It's all right. There's plenty of time.

CLYNE, MR: What page have you got open there just so I can pick it up---104.

Thank you. Yes, that was 8 April '03. Can I take you back to page 1 in that same book and that was another time I think that you attended on Mr Connor on 2 December '03 and again you've read the reports. I'll let you read that for a moment to see if that freshens your memory---Yes.

Do you recall that meeting---I'm pretty sure that was a telephone conversation.

It says you came in the wheelchair, the very top: Today I saw this client. He was in a wheelchair which he says is more convenient for longer walking.---I'm pretty sure the conversation was on the telephone, but I was in later [on] that day to actually pay for the amount asked.

Yes. He said that it would cost about 1,000 to issue the writ---Yes.

And - sorry, 1,000 and another 325---Yes.

And you paid that money---Yes.

CLYNE, MR: But again what you were being told was that Mr Connor was still not happy that he had enough evidence to support your claim, is that right---He was asking that - he was saying that he wanted another neurosurgeon to comment on it.

Did he tell you how risky it was to go ahead with these claims---Well---

Without proper evidence---No. Basically, at this point I think he was saying it didn't hurt to issue a writ.

Right. But did he warn you of the risks and costs of going ahead if you lost---No.

Didn't tell you about risks---No.

What did he tell you about the reason why he needed more evidence---Because he only had Nade's to go on so he wanted more than that.

Because there were two saying there was no negligence---Yes, but---

What did you understand that would mean if a court found there was no negligence---Well, up to that point I had no idea of what total costs were involved and what the amount we would have been aiming for or anything like that, so I had---

Were you not aware of what the costs would be if you lost a trial---No.

You didn't know that at all---No.

If you'd------I - as I know now about, you know - you know, settling an amount and costs to be paid, I didn't know any of that at the time either.

Did Mr Connor tell you it was unwise to go ahead without good evidence---Not at the time he wasn't, no. He was---

He didn't---He was advising that we issue the writ.

But earlier he'd said that - when the first Blum report came back it wasn't favourable, you had two options, either drop the case or get more evidence, is that right---Well, he was - it was - well, he would have been telling me at the time that with the evidence he had to proceed he wanted more evidence.

CLYNE, MR: Why did you understand that to be the case---Because that's what he would have said to me, that's what he said.

Yes, but why do you think he wanted more evidence---Well, like he said, Blum and Bleasel's weren't in favour.

So you might lose---Yes.

Well, what do you think would happen if you lost---I don't know, I've never been in a - this - I've never been involved in a court thing before.

So you had no idea of how much money you could lose if you went ahead and lost---No, because we never - we had never discussed any monetary terms.

CURTHOYS DCJ: Just on page 1---

CLYNE, MR: Yes.

CURTHOYS DCJ: - - - fourth paragraph on the bottom commencing 'Bleasel'---

CLYNE, MR: Yes, that's wrong. I was going to come to that.

CURTHOYS DCJ: Right.

CLYNE, MR: There clearly has to be - because from the report Bleasel admitted in his letter that he was not greatly familiar. Would that be fair, Mr Nugawela?

NUGAWELA, MR: It is.

CURTHOYS DCJ: Thanks.

CLYNE, MR: So at that stage you had no idea about how court proceedings happened, about negotiations---No.

What your claim was worth---No.

Nothing at that at all---No.

And had you known that you could be exposed to significant costs, would that have had an impact on you? Significant costs if you lost---Possibly.

CLYNE, MR: Well, if you were told, for example, you might have been out of pocket $20,000------Yes.

- - - if you lost your, would that have had an impact on you---I - I wasn't told how much I was going for, so if I knew what - what - what opportunity I had compared to what I could lose---

Right---- - - I might have weighed the two up.

Right. So your - you say you didn't know what your claim was worth, what it might cost you to go ahead, what it'd cost you if you lost---No.

You had none of that---No.

All you knew, you say, was that there were two doctors against you and one for you, correct---Yes.

And Mr Connor wasn't happy with that situation---Yes.

And he wanted to get another witness---Yes.

Did he tell you - he said you told him to issue a writ and at that stage you still didn't have that extra evidence, did you---Well, he - he suggested issuing a writ---

Yes---- - - to buy more time to be able then---

To buy more time to be able to try and find some more evidence---Yes (ts 95 - 98).

264 As to that passage from the appellant's cross-examination:

(a) the issue of causation must be evaluated on the assumption that the appellant would have received proper and timely legal advice as to his prospects of success in enforcing the lost cause of action against Mr Thomas and proper and timely legal advice as to the risks, hazards and uncertainties of engaging in litigation;

(b) as I have mentioned, the appellant went to trial in the proceedings against the respondent without obtaining an opinion from another expert medical practitioner which confirmed Professor Nade's opinion;

(c) as I have mentioned, the appellant's financial capacity to fund proceedings against Mr Thomas to trial was not in issue between the appellant and the respondent; and

(d) the appellant was able, by some means, to fund the litigation of the action against the respondent to judgment after trial.

265 Mr Connor, who gave evidence at the trial, was cross-examined about his knowledge that Dr Bleasel was not experienced in performing micro-discectomies and about his failure to make inquiry of Professor Nade concerning his experience in performing that procedure:

NUGAWELA, MR: You told my learned friend that your recollection of this matter so many years after the event is not very good and you'd be guided by a reconstruction of matters by looking at the file. You stand by that---Yes. Yeah, I - it's very helpful to read the file. The - all these things happened a long, long time ago.

All right. You also said to my learned friend that it would be - you told the client that, and I quote, 'That it would be good,' if you got another expert to support Nade, is that right---Yes.

'It would be good'---Yeah.

And in this file note it says: I told the client we thought we should have two doctors - - ----Yes.

- - - preferably a report from a neurosurgeon who had a lot of experience with microdiscectomies. And at that stage you were aware that Mr Bleasel had no experience at all in microdiscectomies---He said he had not performed a microdiscectomy. I assume that he had performed discectomies and other type of procedures but he did say that he hadn't performed a micro which meant that you wonder. Well, I think that - - -

What do you wonder? That you think he did perform a microdiscectomy despite what he said---No. I - - -

So at that stage you were aware that Mr Bleasel had no experience whatsoever in performing a microdiscectomy, correct---He - he said in his report that he had not performed one.

All right. So the answer to my question is 'yes'---Yes.

All right. Were you aware or not and did you make any inquires in relation to whether Professor Nade had conducted any microdiscectomies---No, I didn't make any inquiries of - of Dr Nade or Professor Nade.

So why did you doubt whether he'd performed many either---?---Well, I wasn't - I wasn't sure and I didn't know. I did know from my previous dealings with Professor Nade that he did do, you know, a joint surgery and a lot of knee surgery and other procedures so, you know, I - I - well, I didn't know one way or the other really. But what I was sort of recommending was, well, one - well, he says he didn't and I wasn't sure whether Nade had done a lot - - -

NUGAWELA, MR: Who said he didn't? Bleasel said---Yes.

Yes---Yeah, yeah. That's what Bleasel told me. You know, I mean, I wasn't sure whether or not - I mean, and I assumed that Bleasel had done plenty of the more major procedures but he had not done the micro procedure which is perhaps the lesser one. So we needed a little bit more evidence therefore and I was recommending that we get that from somebody who had done a lot of microdiscectomies, and put what Nade had said to him, and see whether he would agree with it.

All right---And then that would be what we wanted. Then we would have two doctors who said 'Yes, this is what happened on that day, and this is what Dr Thomas should have done', et cetera.

[Why] stop at two? Why not get three, or four? Why two---Well, I think that two is - is probably enough. Certain of these cases I've got three, of these medical negligence cases, but I was - I would be happy if somebody agreed with - with Dr Nade about the - about the extradural haematoma, and that being the cause of this chap's problems. Then Nade is not by himself, he's not out on a limb. The other - the other thing too is that I'd already got two medical opinions which were adverse, so from that I assume that the - the - Wayne Thomas and his legal team, if his proceedings would - were going to be commenced, would probably have no difficulty in getting similar opinion to that, and they would get it. And therefore I thought in order to take this one further, you need two doctors saying more or less the same thing, that the cause of this man's problem was the haematoma, and that Wayne Smith was negligent in not performing the MRI scan, and then decompressing the haematoma afterwards. You needed two.

Can I come back to - - ----Yep.

- - - something in there, where you've said that - - ----Sure.

- - - you'd dealt with Professor Nade before---Yep.

NUGAWELA, MR: And if you were not sure whether he had done any, and if so how many microdiscectomies, why didn't you pick up the phone and ask---Well, I mean, I guess I could have, but that wasn't the real point. The real point was not so much how many had - he had done, but we needed two. If we could get somebody else to agree with Nade, then I thought that we had it, we had a good case. If it was just calling one witness on one of these type of things, and we'd already seen that there were witnesses around who would - would give evidence saying that's - just that's clearly wrong, we needed two.

And of the witnesses around, you're aware that Mr Bleasel had, as you said, not done any microdiscectomy---Well, as he said in his - as he said in his report.

And Mr Blum essentially said he didn't know what the cause was one way or another because he could not account for what were the cauda equina syndrome symptoms. He just didn't know an answer, correct---Yes.

All right---That's right, you know (ts 217 - 219).

266 That passage from Mr Connor's cross-examination reveals that his recommendation to the appellant that 'we should have two doctors' was made despite Mr Connor being unaware of Professor Nade's experience in conducting microdiscectomies and Mr Connor having failed to make any inquiries of Processor Nade in relation to his experience. In any event, as I have mentioned, the appellant litigated the proceedings against the respondent to trial very substantially on the evidence (including the expert medical evidence) that was available when the lost cause of action against Mr Thomas became statute-barred.

267 In my opinion, the trial judge was in error in failing to infer on the balance of probabilities that, but for the respondent's negligence, the appellant would have issued and pursued proceedings to enforce the lost cause of action against Mr Thomas to judgment after trial; alternatively, at least to the stage where there was a reasonable possibility that he would have received a valuable offer of settlement. My reasons are as follows.

268 As I have mentioned, at common law a plaintiff's evidence concerning his or her 'belief' as to what course he or she would have adopted if the defendant had not been negligent and, in the case of a defendant who is a professional person, if proper advice had been given, must be treated with caution. Also, as I have mentioned, s 5C(3) applied in the present case to the issue of factual causation raised by ground 1.2 of the appeal and consequently any evidence of the appellant as to what he would have done if the respondent had issued a writ of summons against Mr Thomas within time would have been inadmissible. In the circumstances, the absence of any evidence from the appellant at trial to the effect that, if the cause of action against Mr Thomas had not been lost, he would have taken the action to trial, if necessary, is not of any significance.

269 His Honour should have determined, on the basis of the numerous objective facts to which I have referred, whether it should have been inferred that the appellant would have enforced the lost cause of action against Mr Thomas by issuing and pursuing proceedings to settlement or judgment after trial.

270 The following matters were favourable to the appellant on the issue of causation and, in combination, decisively outweighed the matters that were unfavourable to him:

(a) Despite the refusal of his application to Legal Aid, the appellant promptly placed the respondent in funds upon request, including funds to issue a writ of summons against Mr Thomas. It was a term of the respondent's retainer that they would issue the writ within the limitation period.

(b) Despite the refusal of his application to Legal Aid, the appellant was willing to travel interstate to obtain evidence from Professor Nade and Dr Bleasel.

(c) The appellant's permanent disability was significant. If he had been wholly successful in pursuing the lost cause of action against Mr Thomas, by issuing and pursuing proceedings to settlement or judgment after trial, he would have been likely at all material times to have recovered a substantial award of damages.

(d) Despite the risks, hazards and uncertainties of engaging in litigation, the appellant was willing to litigate and was able, by some means, to fund the litigation of the action against the respondent to judgment after trial.

(e) The appellant took the proceedings against the respondent to trial substantially on the evidence (including the expert medical evidence) that was available when his cause of action against Mr Thomas became statute-barred.

(f) The appellant maintained the proceedings against the respondent to trial in reliance on Professor Nade's expert medical opinion. He went to trial without obtaining an opinion from another expert medical practitioner which confirmed Professor Nade's opinion.

(g) At all material times the respondent wrongly assumed, without making inquiry, that Professor Nade had not performed many microdiscectomies.

(h) In my opinion, if the appellant had received proper and timely legal advice as to his prospects of success in enforcing the cause of action against Mr Thomas, and proper and timely legal advice as to the risks, hazards and uncertainties of engaging in litigation, before the cause of action against Mr Thomas became statute-barred, a reasonably competent solicitor who had obtained all evidence that should have been available to the appellant at that time would have advised him that both claims against Mr Thomas had some value and, if a court accepted the evidence of the appellant, his wife and Professor Nade in all material respects, he had reasonable prospects of success on both claims and, if he succeeded on liability, he would be awarded substantial damages.

(i) The very high likelihood that Mr Thomas would be insured against the appellant's claim; the absence of any reasonable possibility that any judgment against Mr Thomas would be unsatisfied; and the notorious fact that, in general, insurers endeavour to settle causes of action against their insureds if the insurers believe there is a real (as distinct from a fanciful) prospect that the plaintiff may succeed, at least to some extent, at trial.

271 The second aspect of ground 1.2 of the appeal has been made out. The first aspect of ground 1.2 is misconceived in that whether it should be inferred that the appellant would have enforced the lost cause of action against Mr Thomas, by issuing and pursuing proceedings to settlement or judgment after trial, was to be determined on the basis of the numerous objective facts to which I have referred.

Ground 2.1 of the appeal and the sole ground of the notice of contention

272 It is convenient to consider ground 2.1 of the appeal, and the sole ground of the notice of contention, together.

273 Ground 2.1 alleges in essence that the trial judge erred in fact in assessing the value of the lost opportunity at 55% of the damages the appellant would have been awarded if he had been wholly successful in pursuing the lost cause of action against Mr Thomas and obtaining a judgment against him after trial, when the evidence warranted a much higher assessment.

274 The appellant's challenge in the context of ground 2.1 is confined to the claim against Mr Thomas based on Mr Thomas' alleged breach of his duty to warn. The appellant's challenge does not extend to the claim based on Mr Thomas' alleged negligent peri-operative or post-operative care.

275 The notice of contention alleges that his Honour's assessment of the value of the lost opportunity at 55% was 'far greater' than it should have been, given the risks and uncertainties of the hypothetical litigation.

276 In Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ held that a medical practitioner has a duty to warn a patient of a material risk inherent in a proposed treatment (490). A risk will be material if, 'in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it' (490).

277 In the present case, the trial judge decided that, on 'a broad brush assessment' in relation to the claim based on Mr Thomas' alleged breach of his duty to warn, the appellant's 'lost chance was 55%' [173]. That is, his Honour applied a 45% discount, on the damages that would have been awarded if the appellant had been wholly successful in pursuing the lost cause of action against Mr Thomas and obtaining a judgment against him after trial, for the risks, hazards and uncertainties of litigation including the contingency that the appellant may not have succeeded against Mr Thomas at trial. His Honour's reasoning was as follows.

278 First, the lost claim based on the alleged breach of the duty to warn depended heavily on acceptance of the appellant's evidence that Mr Thomas had failed to warn him of the risk of division of a nerve root and the risk of paralysis or sensory loss following the operation in the context of the principal alternative treatments that were available for the appellant's condition. Mr Thomas was not called as a witness. His likely response would be to deny that he had failed to give the requisite warning.

279 Secondly, in these circumstances, the lost claim being a 'credibility case', it was necessary to commence 'the broad brush assessment' of the appellant's lost claim from a '50% 50% position' [173].

280 Thirdly, the appellant and his wife largely corroborated each other, but 'a judge might well conclude that ... the corroboration [was] a result of discussing the meeting [with Mr Thomas] with each other over many years' [173].

281 Fourthly, the appellant and his wife had concerns about the operation, as a result of her occupation, and this objectively supported a finding that they would have paid close attention to any warnings given by Mr Thomas. (At the material time the appellant's wife was 'a social trainer ... working with people with disabilities' (ts 115).)

282 Fifthly, the appellant's decision to have the operation, when there was no urgency, was consistent with a failure by Mr Thomas to warn.

283 Sixthly, the appellant's evidence about the back injury he suffered before the accident illustrated 'potential concerns with his credibility' [173].

284 Seventhly, the points as to the concerns of the appellant and his wife about the operation, and the subsequent decision to have the operation when there was no urgency, increased 'the probability of a failure to warn above 50% but not overwhelmingly so' and, therefore, 'the 50% chance, should be raised by 5% to 55%' [173].

285 So, the trial judge approached the assessment of the value of the appellant's lost opportunity on the basis of a starting point of 50% because it was a 'credibility case'. His Honour then increased or decreased the starting point incrementally or decrementally for other factors.

(a) the appellant's prospects in relation to the lost claim depended heavily on acceptance of his evidence that Mr Thomas had failed to give the requisite warning; and

(b) it was likely that Mr Thomas would deny having failed to give the requisite warning,

did not, of themselves, require a starting point of 50%. His Honour's approach to the assessment of value on the basis of a starting point of 50% was erroneous.

287 There is, of course, a continuum of probabilities and possibilities between a lost claim with some prospects of success (which is not merely of 'nuisance value'), on the one hand, and a lost claim that will almost certainly succeed, on the other. See Griffin v Kingsmill [2001] EWCA Civ 934; [2001] Lloyd's Rep PN 716 [112] (Schiemann LJ). The best claim is seldom without some risks, hazards or uncertainties.

288 The correct approach to the assessment of the value of the appellant's lost opportunity was to identify all of the factors that were relevant in determining the appellant's prospects, evaluate their significance and then make a value judgment as to the discount or discounts (if any) to be applied for the risks, hazards and uncertainties that would have attended the enforcement of the claim, by the issue and pursuit of proceedings, if it had not become statute-barred. If any discounts were required it was open to make either a global discount or, alternatively, two or more discounts allocated to particular factors.

289 The approach which I consider to have been correct in the present case is consistent with the observation of Newnes JA (McLure P agreeing) in Nigam [No 2] that 'it is not significant whether the assessment [of the value of a plaintiff's lost opportunity to pursue a cause of action in negligence against a medical practitioner] is approached by taking each element to be proved in turn or by an overall assessment ... so long as proper allowance is made for the separate considerations that must be taken into account in assessing the prospects of success' [155]. That observation was made in the context of deciding whether the primary judge in Nigam [No 2] had erred in assessing the value of the respondent's lost opportunity in that case by failing to make separate deductions or discounts for 'the uncertainty of the outcome on breach' and for 'the uncertainty of the outcome on causation' [151].

290 In the present case, the factors favourable to the appellant's prospects and the value of his lost claim included:

(a) The trial judge's finding that there was evidence to the effect that Mr Thomas had failed to discharge his duty to warn [160].

(b) His Honour's finding that there was evidence to the effect that if the appellant had been given the requisite warning he would have declined to undergo surgery at the relevant time and would have chosen conservative treatment [161], [163].

(c) His Honour's finding that there was evidence to the effect that if the appellant had declined surgery and chosen conservative treatment he would have avoided the harm suffered [163].

(d) His Honour's finding that the appellant's evidence to the effect that, if the requisite warning had been given, he would have declined surgery and chosen conservative treatment, was 'objectively credible' [162].

(e) His Honour's finding that the appellant and his wife had concerns about the operation as a result of the wife's occupation and this objectively supported a finding that they would have paid close attention to any warnings from Mr Thomas [173].

(f) His Honour's finding that the appellant's decision to have the operation, when there was no urgency, was consistent with a failure to warn [173].

(g) His Honour's acceptance of the evidence of Professor Nade [138] - [141], [153] - [154], [190] - [192].

(h) The very high likelihood that Mr Thomas would be insured against the appellant's claim. There was no reasonable possibility that any judgment obtained by the appellant against Mr Thomas would not be satisfied. Also it is notorious that, in general, insurers endeavour to settle causes of action against their insureds if the insurers believe there is a real (as distinct from a fanciful) prospect that the plaintiff may succeed, at least to some extent, at trial.

(i) His Honour was satisfied (correctly, in my opinion) that both aspects or claims embodied in the lost cause of action against Mr Thomas had some value.

291 The factors unfavourable to the appellant's prospects and the value of his lost claim included:

(a) The trial judge's finding that it was likely Mr Thomas would have been 'well aware' of the 'legal responsibility on medical practitioners to warn' [168].

(b) His Honour's finding that it was difficult to accept Mr Thomas would have stated, as alleged by the appellant's wife, that a divided or severed nerve root would 'grow back anyway' [169].

(c) His Honour's finding that the likely response of Mr Thomas in any proceedings brought on the lost claim would have been 'to deny that the warning was given in the Falkinghams' terms and to say that a warning was given in the terms suggested by Professor Nade and Dr Bleasel' [170].

(d) Dr Bleasel said that a warning in the terms suggested by Professor Nade and him was 'customary' [170].

(e) His Honour's finding that, although the appellant and his wife largely corroborated each other, it might well be concluded that the corroboration was as a result of discussing the meeting with Mr Thomas with each other over many years [173].

(f) His Honour's conclusion that the appellant's evidence about the back injury he suffered before the accident illustrated 'potential concerns with his credibility' [173]. His Honour based that conclusion on an earlier finding that, in his examination-in-chief, the appellant had understated the impact of the previous back injury [21]. His Honour commented that the appellant's understatement illustrated 'how fraught with difficulty credibility cases are' [21].

(g) The risk of a subdural or epidural haematoma occurring in the course of a microdiscectomy is extremely rare [146]. This increases the prospect that the appellant would have undergone the operation if the requisite warning had been given.

(h) The possibility that the appellant may not have proceeded with the lost claim because of the risks, hazards and uncertainties attending litigation generally and his claim against Mr Thomas in particular; the possibility that the appellant may have settled his claim before trial, for less than the amount he might have recovered at trial, given those risks, hazards and uncertainties; and the possibility that the appellant may have failed at trial against Mr Thomas.

292 Issue was properly taken in the appeal about two of the trial judge's findings that I have enumerated at [291] above. First, there was no evidence at trial as to the likely response of Mr Thomas to the allegation that he had failed to provide a warning to the appellant in the terms suggested by Professor Nade and Dr Bleasel. However, there was a real (as distinct from a fanciful) prospect that Mr Thomas would dispute the allegations of the appellant and his wife and assert that all appropriate warnings were given. The assessment of the value of the appellant's lost opportunity had to reflect that risk. Secondly, neither the appellant nor his wife was cross-examined about whether they had discussed with each other what had been said at their consultations with Mr Thomas and whether they had constructed an agreed position as to the questions they had asked, the answers Mr Thomas had given and the warnings he had failed to provide. Nevertheless, there was a real (as distinct from a fanciful) prospect that the accuracy and reliability of the evidence of the appellant and his wife in relation to such matters may have been adversely affected (if not compromised) by discussions between them over a number of years. The assessment of the value of the appellant's lost opportunity had to reflect that risk.

293 I am satisfied, after considering all factors relevant to the appellant's prospects and the value of his lost claim, that the critical points affecting the assessment of the value of the appellant's lost opportunity were these:

(a) The appellant's prospects of success against Mr Thomas on the lost claim depended, to a very significant extent, upon the honesty and reliability of his evidence, and the evidence of his wife, that Mr Thomas failed to give the requisite warning.

(b) There was a real (as distinct from a fanciful) prospect that Mr Thomas would deny having failed to give the requisite warning.

(c) It would be a remarkable breach of duty if Mr Thomas had failed to give the customary warning, especially in the context of the conservative treatment that was available for the appellant's condition and the absence of any urgency in carrying out the operation.

(d) The trial judge had a reservation (and, in my opinion, he was entitled to have a reservation) about the appellant's credibility.

(e) Even if the appellant proved, on the balance of probabilities, that Mr Thomas had failed to give the requisite warning, the appellant would not have succeeded on the lost claim against Mr Thomas unless he also proved, on the balance of probabilities, that he would not have undergone the operation. As I have mentioned, the risk of a subdural or epidural haematoma occurring in the course of a microdiscectomy is extremely rare. There was a real (as distinct from a fanciful) prospect that the appellant would not have been able to satisfy a court on that issue at trial. The fact that the appellant agreed to undergo the operation does not, of itself, indicate that a warning was not given.

(f) On the assumption that he was given proper and timely legal advice, there is a strong probability that the appellant would have pursued both aspects or claims embodied in the lost cause of action against Mr Thomas to judgment after trial unless he received a reasonable offer of settlement.

294 I am of the opinion, after evaluating all relevant factors, that an assessment of the fair value of the appellant's lost opportunity in relation to the claim based on the alleged breach of the duty to warn required the application of a very substantial discount to the damages he would have been awarded if he had been wholly successful in pursuing the lost claim against Mr Thomas and obtaining judgment after trial.

295 The trial judge made two material errors, one express and the other implied.

296 The express error was his Honour's approach to the assessment of the value of the appellant's lost opportunity on the basis of a starting point of 50% because it was a 'credibility case'.

297 The implied error involved his Honour placing a value on the appellant's lost opportunity which exceeded the upper limit of the valuation range that was reasonably open. His Honour's assessment of value was plainly unreasonable or unjust. In particular, it was not reasonably open to his Honour to assess the fair value of the appellant's lost opportunity at more than 50% of the damages he would have been awarded if he had been wholly successful in his claim against Mr Thomas.

298 I consider that a discount of 60% should have been applied. The fair value of the lost opportunity was 40% of the damages the appellant would have been awarded if he had been wholly successful at trial.

299 The accepted principle of appellate restraint in reviewing a primary judge's assessment of the value of a lost opportunity (McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 [126] - [127] (Giles JA, Macfarlan JA agreeing & Young JA relevantly agreeing)) and a primary judge's evaluative determination (Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 212 (Mason CJ, Deane & McHugh JJ)) has no application in the present case. The trial judge's assessment of value was plainly vitiated by the material errors I have identified.

300 Ground 2.1 of the appeal fails and the sole ground of the notice of contention has been made out.

301 Ground 2.2 alleges that the trial judge erred in law in failing to give any or adequate reasons for the conclusion (or make appropriate findings to support the conclusion) that the appellant's evidence about his previous back injury illustrated potential concerns as to his credibility.

302 His Honour expressed that conclusion in the course of giving reasons for his 'broad brush assessment' that the value of the appellant's 'lost chance', in relation to the claim based on Mr Thomas' alleged breach of his duty to warn, was 55% of the damages he would have been awarded if he had been wholly successful at trial [173].

303 The reasons of a trial judge need not be lengthy or elaborate. See Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443 (Meagher JA); Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [28] (Steytler, Templeman & Simmonds JJ).

304 It is necessary, in assessing the adequacy of the reasons, to consider them as a whole. An appellate court may take into account what can legitimately be inferred from the reasons. See Beale (444); Bennett v Carruthers [2010] WASCA 131 [27] - [28] (Mazza J, McLure P & Newnes JA agreeing).

305 The circumstances of the particular case, including the nature and significance of the issues in dispute, are fundamental in determining whether the reasons are adequate. See In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44 [19] (Fraser JA, Muir & Chesterman JJA agreeing).

306 The reasons must be sufficiently detailed to enable an appellate court effectively to discharge its functions and for the parties to understand why they have won or lost. See Beale (442).

307 In my opinion, the trial judge's impugned conclusion was supported by adequate reasons given earlier in his judgment.

308 His Honour's reasons in relation to the appellant's previous back injury were as follows:

The only incident of note that [the appellant] experienced in relation to his health was a back strain at Christmas 1996. This occurred as a result of lifting his 14-year-old sister.

In examination-in-chief [the appellant] described the effect of the back strain in 1996 as giving him a bit of discomfort. He said that when he went back to the mine site he had to have a bit of time off because of it. He thought he had had a week off work and had been spent some of his rostered days off resting as well (ts 21).

[The appellant's] explanation for leaving the mine at Christmas 1997 was that he wanted to work closer to home and did not like the travelling (ts 22).

In cross-examination, [the appellant] said that following the 1996 incident with his sister he found the drive to the mine at Bullfinch very difficult. He had to stop frequently because of back pain. He was only able to do four hours instead of 12 hours on the first nightshift and he then went back to his room at the camp and rested. He subsequently went into Southern Cross to see a Dr Ward who prescribed painkillers and anti-inflammatories. He spent the whole week resting in bed. He was then rostered off and spent the next five days in bed. He continued to have back pain but it had eased a bit.

In February 1997 he was scheduled to start a fire fighting course in Perth. Because of the pain he saw Dr Harrison who prescribed anti-inflammatories. He then went and saw a chiropractor in West Midland. This offered some very short-term relief. He saw the chiropractor about five or seven times over a month. He would see the chiropractor on his rostered days off. He then saw a Bowen therapist on several occasions (ts 75 - 77).

[The appellant] resigned from the mine on 25 December 1997 for a number of reasons. A major reason was that his back pain was causing him discomfort (ts 77).

In contrast to what [the appellant] said in cross-examination, in examination-in-chief [the appellant] did not state that his back pain was a reason for leaving the mine. Rather, in his examination-in-chief he understated the impact of the back injury. This impacts on his credibility and illustrates how fraught with difficulty credibility cases are.

[The appellant's wife] was unaware of the incident where [the appellant] hurt his back playing with his sister at Christmas in 1996. She heard about it later (ts 113). She stated that [the appellant] seemed fine when he came home from the mine. She was unaware that he had any back problems at any time prior to the injury other than a bit of a niggle. She was aware that he had gone to see a chiropractor every so often but there was nothing that caused him to stop doing any of the things that he was doing. She said that he was still working full-time and he was still doing his mines rescue up at the mine (ts 113 - 114) [15] - [22]. (emphasis added)

309 It is plain, on a fair reading of the trial judge's reasons as a whole, that he was aware of the critical issues, as between the appellant and Mr Thomas, in relation to Mr Thomas' alleged breach of his duty to warn.

310 The honesty and reliability of the evidence of the appellant and his wife to the effect that Mr Thomas did not give the appellant the requisite warning was of critical importance in evaluating the appellant's prospects of success against Mr Thomas on that claim.

311 His Honour's reasons disclose with sufficient clarity the reasoning which underpinned his conclusion that the appellant's evidence about his previous back injury illustrated potential concerns as to his credibility. I am satisfied that the reasons achieved their requisite function and purpose. The appellant is able to ascertain why his Honour reached the relevant conclusion. Further, this court is not impeded by any deficiency in his Honour's reasons from properly discharging its functions in the appeal.

313 Ground 3 alleges that the trial judge's provisional award of $80,000 for past and future loss of earning capacity 'was so inordinately low as to amount to an error of law'. The appellant does not challenge any of the other components of his Honour's provisional assessment of the quantum of damages.

314 I have already recounted details of his Honour's provisional assessment including his Honour's findings and reasoning in relation to the appellant's claim for loss of earning capacity. See [197] - [209] above.

315 A plaintiff in a negligence action is not entitled to recover damages for loss of earning capacity unless he or she establishes two distinct but related requirements. First, the plaintiff's earning capacity has in fact been diminished by reason of the injury caused by the negligence. Secondly, the diminution of earning capacity is or may be productive of financial loss. See Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 3 (Deane, Dawson, Toohey & Gaudron JJ).

316 The court must identify what capacity has been lost by the plaintiff and what economic consequences for the plaintiff will probably flow from that loss. When that is done it will be possible to assess what sum will put the plaintiff in the same position as he or she would have been in but for the injury. See Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 [7] (Gleeson CJ, Gummow, Kirby & Hayne JJ).

317 A plaintiff is compensated for loss of earning capacity as distinct from loss of earnings. See Medlin, where McHugh J explained:

In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. That is because 'an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss' (Graham v Baker (1961) 105 CLR at p 347). Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff's ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff's pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff's capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred (16).

318 In Montemaggiori v Wilson [2011] WASCA 177; (2011) 58 MVR 497, Newnes JA and I summarised a number of general principles relating to the assessment of damages for past and future loss of earning capacity in a personal injuries claim based on negligence [28] - [33]. We noted:

(a) The assessment of damages for past and future loss of earning capacity is not an exact science. The process of assessment is governed by considerations of practical common sense in the context of the facts and circumstances of the particular case. See Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 343 (Deane & Dawson JJ).

(b) Such an assessment has many of the characteristics of a discretionary judgment. See Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336, 381 (Mason J, Wilson J agreeing generally). An appellate court will not be justified in setting aside a trial judge's assessment of damages on the ground that the quantum of the damages is excessive or inadequate unless the amount assessed is above or below the limits of what a sound discretionary judgment could reasonably adopt. See Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190, 197 (Dixon CJ & Kitto J); Minchin v Public Curator of Queensland [1965] ALR 91, 96 (Kitto J).

(c) If the plaintiff establishes that he or she has suffered a loss of earning capacity, it is then necessary, having regard to the established facts of the past and the probabilities of the future, to determine the damage that has flowed or will flow from the loss of that capacity. See Medlin (19).

(d) When account is taken of future or hypothetical events in assessing damages, the court does so in terms of the degree of probability of the events occurring. See Malec (643). The process of estimation of probabilities is necessarily imprecise and indeterminate. It must be carried out within very broad parameters. See State of New Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 [71] (Heydon JA).

(e) Although it is desirable for the plaintiff to adduce precise evidence of what he or she would have been likely to earn (but for the injury), where earning capacity has undoubtedly been reduced, the plaintiff's failure to call such evidence (particularly in relation to future loss) does not mean that the plaintiff is not entitled to damages or is entitled only to nominal damages. See Moss [66] - [72].

(f) However, where evidence should have been available, it is difficult for a plaintiff who fails to call evidence, or who calls incomplete evidence, to complain about a low award. See Minchin (93) (Barwick CJ); Moss [69].

319 In Yammine v Kalwy [1979] 2 NSWLR 151, Mahoney JA explained the different ways in which, according to the facts, damages for loss of earning capacity may be assessed:

That for which a plaintiff is to be compensated in this regard is the loss of a capacity; that, at the beginning and the end, is the loss for which compensation is to be assessed. However, there are several ways in which, according to the facts, the assessment of that compensation may be approached. It may be approached simply by fixing the sum seen to be appropriate to that loss as such. The difficulties involved in the fixing of that sum - and in verbalizing the principles upon which it is to be achieved - need not be canvassed. But frequently (and this was the point to which the observations in the cases referred to in Allan v Loadsman ([1975] 2 NSWLR 789, at pp 791,792) were directed) the plaintiff, or the defendant, seeks to quantify the compensation for loss of that capacity by attempting to establish what the weekly wage loss is which will be suffered because of the loss of that capacity, and by arriving at a sum by applying the conventional tables to this, with appropriate discounts. This may be a perfectly permissible way of quantifying the loss in a particular case. It is often used, no doubt because it is felt that it will provide a greater sum than the alternative approaches. In some cases, the weekly wage loss quantification, and the sum derived from it, will alone be accepted as sufficient compensation; in other cases it may be necessary to add an additional sum by reference to such other aspects of the loss of the capacity as may not be fully compensated for by the mere weekly wage loss so dealt with (156 - 157).

See also Cohen v Ninkovic [2000] WASCA 169 [18] (Miller J, Wallwork & Parker JJ agreeing).

320 In Montemaggiori, Newnes JA and I considered the approach taken by the Full Court of the Supreme Court of Western Australia in Bowen v Tutte (1990) Aust Torts Rep 81-043. We said:

Where an injured plaintiff has suffered a loss of earning capacity, such as a total loss of capacity to earn in an occupation in which he has previously been employed, the court should do its best to place a value on that loss, even in the absence of evidence, or where there is uncertainty in the evidence, as to the availability of employment within the plaintiff's residual capacity or the amount which could be earned in such employment. Thus, for example, in Bowen v Tutte (1990) Aust Torts Rep 81-043, it was held that in the absence of any evidence of the availability of suitable employment for an injured plaintiff, or of earnings which could be derived from such employment, a trial judge may, in an appropriate case, assess the plaintiff's residual earning capacity at a percentage of his or her pre-accident earning capacity. And in Pene v Murphy [2004] WASCA 103, it was held that the appellant's loss of earnings should be assessed as a percentage of his pre-accident earning capacity as there were considerable uncertainties associated with his prospects of obtaining work within his residual capacity. But as the court made clear in that case, such an approach is not appropriate in every case; in the end the question is one of fairness [32].

321 The principles enunciated in Bowen and Wright v Shire of Albany (1993) Aust Torts Rep 81-239 form the appropriate basis for the assessment of damages for loss of earning capacity in some cases. However, those principles are not fixed and inflexible. Damages for loss of earning capacity are not always to be assessed in accordance with the principles enunciated in Bowen and Wright. See Pene v Murphy [2004] WASCA 103 [5], [8] (Miller J, Le Miere J agreeing).

322 Useful illustrations of approaches that have been taken to the assessment of damages for loss of earning capacity where the plaintiff has suffered a partial loss of earning capacity, including a restriction in the range of occupations available to him or her, may be found in Wagga Wagga City Council v Sutton [2000] NSWCA 34, Amer v Consolidated Meat Group Pty Ltd [2002] QSC 345 and Roney v Priestman [2005] TASSC 52.

323 In the present case, the appellant attempted to persuade the trial judge to assess his claim for loss of earning capacity by reference to the approach taken in Bowen. His Honour rejected the appellant's submission and assessed that part of his claim on a global basis. Neither the appellant nor the respondent challenged in this court the correctness of his Honour's approach.

324 At the hearing of the appeal on 15 November 2013, the court made orders, relevantly, as follows:

1. Within 7 days, the appellant is to file and serve a schedule which specifies, with particularity, the manner in which it is alleged the appellant's past and future loss of earning capacity should have been assessed, including details of relevant assumptions and calculations.
2. The respondent be at liberty to file and serve submissions in response to the appellant's schedule within 7 days thereafter.

325 Late on 13 November 2013 (the hearing being on 15 November 2013), the court had requested the appellant to provide a schedule in those terms at the hearing, but the appellant did not comply with the request.

326 On 22 November 2013, counsel for the appellant filed and served a schedule, purportedly in compliance with the court's orders.

327 The appellant states in par 1 of the schedule that no complaint is made about the trial judge's decision to take a 'global approach' to the assessment of economic loss. In par 2 the appellant uses algebra to convert his Honour's provisional award of $80,000 to the sum of $62 per week. The appellant submits in par 3 that the award of $80,000 was 'so unreasonably low, given the evidence and findings ... , as to itself manifest error'. In par 4 the appellant asserts that an award of $250,000 'would not have been unreasonable' and purports to 'test' that assertion by using algebra to convert $250,000 to the sum of $194 per week. The appellant's schedule did not comply with the court's orders in that it did not set out the assumptions underpinning the appellant's assertion that his Honour should have provisionally awarded $250,000, and not $80,000, for past and future loss of earning capacity.

328 By letter dated 27 November 2013, the court directed the appellant to file and serve a schedule that complied with the court's orders.

329 On 2 December 2013, counsel for the appellant filed and served a substituted schedule.

330 At the resumed hearing of the appeal on 24 February 2014, I asked counsel for the appellant to explain the rationale for his assertion that this court should substitute an award of $250,000 (and not some other amount) for his Honour's award of $80,000. Counsel responded:

NUGAWELA, MR: Well, it just sounded right. It didn't sound exorbitant (appeal ts 78).

331 It is necessary, in evaluating ground 3 of the appeal, to focus on the relevant findings of fact made by his Honour. It is convenient to restate the critical findings.

332 As I have mentioned, the appellant was born on 4 July 1975. He was 22 when the mountain bicycle accident occurred and at the time of the operation performed by Mr Thomas. He was 31 as at the notional trial in mid to late 2006.

333 The appellant's pre-existing back injury occurred at Christmas 1996 when he lifted his 14-year-old sister [15].

334 The appellant left school at the end of year 10. He then attended TAFE for 12 months where he undertook a course in electronic engineering [5].

335 As at 21 January 1998, when the appellant fell from the mountain bicycle he was riding:

(b) he did not know what the future held or what he was going to do in relation to future employment [23];

(c) the appellant was 'contemplating' becoming self-employed and was 'leaning towards doing a lawn mowing round' [23];

(d) he had had a couple of days of work experience with a lawn mowing contractor and he had contacted a person who was selling his lawn mowing round [23];

(e) the appellant explained in evidence that he did not know how he would cope with lawn mowing, in view of his pre-existing back injury, but he was 'hoping it would be all right' [24]; and

(f) before the mountain bicycle accident occurred he was considering a less physically demanding occupation [25].

336 The trial judge found that, as a result of his pre-existing back injury, the appellant would not have continued with work that was as physically demanding as the work he had performed at the Bullfinch mine [26]. His work at the mine had involved operating a mill and crusher, operating machinery, driving loaders and bobcats, and using 'a shovel a fair bit' [7]. He finished work at the Bullfinch mine in December 1997 [7]. His Honour found, however, that before he had the mountain bicycle accident, the appellant still had open to him 'a wide range of occupations that involved a degree of physical activity' [26].

337 The appellant was in receipt of a disability pension between 25 February 1998 (when Mr Thomas carried out the microdiscectomy) and November 1998 [66].

338 In late 1998 the appellant decided to return to the work force [67]. He obtained work with Romteck, an electronics company, as an electronics assembly worker in the production area [67]. In 1999 he commenced studying civil and structural drafting at TAFE [67]. The course lasted one year [67]. He continued working at Romteck one day a week while he was studying at TAFE, except during vacations when he worked full time [67]. The appellant was promoted at Romteck [68]. He supervised two people and he liaised with supply companies to obtain components for assembly [68].

339 At the start of 2005 the appellant resigned his employment with Romteck [69]. He could have remained at Romteck but he found the work 'a bit boring' [69]. He wanted an occupation that had 'a greater outdoor component' and he wanted to earn more money [69].

340 While he was employed at Romteck, the appellant had difficulty moving about the workshop on crutches [72]. His hands hurt and it was difficult for him to carry anything [72]. In 2002, on the advice of his general medical practitioner, the appellant purchased a wheelchair [72]. He used the wheelchair for most of the time he remained employed at Romteck [73]. It was more convenient in that he had greater use of his hands [73]. The appellant continued to use crutches or a walking stick at home [73].

341 After the appellant resigned his employment with Romteck, he commenced working as a real estate sales representative in Chidlow [76]. He found it too difficult to move about in the wheelchair on the properties he was endeavouring to sell [76]. Instead, he used crutches for mobility [76]. In about March 2005 he commenced using a walking stick at work [77]. He had to be careful of the terrain, he had difficulties with stairs and he was less stable on his feet [77]. The appellant's disability adversely affected his capacity to show properties to potential purchasers [78].

342 After the operation the appellant's physical condition was significantly worse than his physical condition before the operation. For example, after the mountain bicycle accident and before the operation the appellant did not require the use of a wheelchair, crutches or a walking stick.

343 As I have mentioned, his Honour found that the notional trial would have been held in mid-2006 at the earliest [239].

344 There were a number of deficiencies in the evidence adduced by the appellant at trial:

(a) It appears that the range of occupations available to the appellant after the mountain bicycle accident and before the operation were either unskilled occupations or occupations involving some limited skills such as a real estate sales representative.

(b) There was no evidence at trial as to the specific occupations open to the appellant with his education, skills and aptitude and with the disability he suffered as a result of the operation. Counsel for the appellant said at the hearing of the appeal that the appellant could do 'non-manual work', but counsel was unable to be more specific (appeal ts 80).

(c) There was no evidence at trial as to the earnings available to people engaged in unskilled or semi-skilled occupations, either with or without some manual or labouring work.

(d) There was no evidence at trial as to the earnings available to real estate sales representatives.

(e) There was no evidence at trial as to the national minimum wage.

(f) The evidence tendered by the appellant at trial included data as to average weekly ordinary time earnings (AWOTE). However, counsel for the appellant accepted at the hearing of the appeal that AWOTE was not a useful comparator because it represented average weekly ordinary time earnings for all employees and was not confined to those in unskilled or semi-skilled occupations (appeal ts 84).

345 The trial judge found, by reference to exhibit 1, that the appellant's average net weekly earnings between the financial year ended 30 June 1994 and the financial year ended 30 June 1998 was $391.50 [256]. See [205] above.

346 The appellant's average net weekly earnings between the financial year ended 30 June 1999 (the operation having been performed on 25 February 1998) and the financial year ended 30 June 2005 (his Honour having found that the notional trial would have been held in mid-2006 at the earliest) was $378.46. See the data reproduced at [205] above.

347 The appellant's average net weekly earnings during the financial year ended 30 June 1999 were significantly less than his average net weekly earnings in earlier and later financial years. See [205] above.

348 The appellant gave evidence at trial that during the year ended 30 June 2006 his taxable or gross income was $48,500 (ts 87).

349 His Honour's statement in his reasons to the effect that between the financial year ended 30 June 1998 and the financial year ended 30 June 2005 the appellant had suffered 'a loss of $7.61 per week' is erroneous [258]. The amount of $7.61 per week represents the difference between the running average of $391.50 between the financial year ended 30 June 1994 and the financial year ended 30 June 1998, on the one hand, and the running average of $383.89 between the financial year ended 30 June 1994 and the financial year ended 30 June 2005, on the other [256]. His Honour did not take into account the differences in the value of money over the 12 year period of the data reproduced in exhibit 1. See [205], [207] above.

(a) the appellant permanently wears a foot orthosis and uses a walking stick;

(b) he walks with a hobbling and antalgic gait which causes him hip and back pain (ts 78);

(c) as a result of sensory loss, the appellant does not know where his right foot is placed and this causes him to stumble and fall on a daily basis (ts 35, 37);

(d) after walking for about 10 minutes he needs to sit because his right hip, knee and ankle begin to hurt (ts 50, 68); and

(e) his right leg paralysis means that he is numb down to his foot and four toes, the sole of his foot and his big toe are hypersensitive to touch, the outside of his foot is numb and he has no sense of leg placement (ts 38 - 39).

351 I am satisfied that the appellant's earning capacity was in fact diminished by reason of the disability caused by the operation and that the diminution of his earning capacity is or may be productive of financial loss.

352 The determination of the extent of the appellant's loss of earning capacity is difficult in that:

(a) The appellant was only 22 at the time of the operation and he was only 31 as at the time of the notional trial.

(b) At all material times the appellant had limited education and limited work experience.

(c) The evidence adduced by the appellant at trial was deficient as I have already indicated.

353 However, it is apparent that the appellant's disability as a result of the operation has confined his employment opportunities to unskilled or semi-skilled work that he can undertake with the use of a wheelchair, crutches or a walking stick. The nature and degree of this disability has seriously truncated the range of employment available to him. The disability has in that sense partly destroyed his working capacity.

354 In my opinion, after taking into account all relevant factors (including, especially, the deficiencies in the evidence), the amount of $80,000 was manifestly inadequate; that is, plainly unreasonable or unjust. It did not fairly compensate the appellant for the significantly reduced scope of the employment opportunities available to him. There is a real (as distinct from a fanciful) prospect that the appellant's disability as a result of the operation may impact with increasing severity on his earning capacity as he becomes older and occupations involving work on, for example, an assembly line diminish or disappear with increases in technology.

355 In my opinion the appellant would be fairly compensated, on a global basis, for his past and future loss of earning capacity if he was awarded:

(a) the net present value, as at 1 November 2006 (when he was 31), of 50% of his average net weekly earnings between the financial year ended 30 June 1994 and the financial year ended 30 June 1998 (that is, 50% of $391.50) for 34 years (the 6% multiplier being 763); and

(b) interest on that amount at 6% per annum, pursuant to s 32 of the Supreme Court Act 1935 (WA), from 1 November 2006 up to the date on which this court delivers judgment in the appeal.

356 The amount, without interest, is: $195.75 x 763 = $149,357.25. This amount should be rounded to $149,350.

357 The multiplier of 763 is the mid-point between the tables published and in use in 2002 and those published and in use in 2014. I have not adjusted this amount for the usual matters (for example, superannuation and 5% for contingencies) because I have taken all the usual matters into account in determining the appellant's loss of earning capacity on a global basis. Similarly, I have not made a value of money adjustment for the fact that the average net weekly earnings of $391.50 relate to the period between 30 June 1994 and 30 June 1998, whereas the determination of the appellant's past and future loss of earning capacity is to be made as at the date of the notional trial (mid to late 2006), because I have taken that matter into account in determining the appellant's loss of earning capacity on a global basis. It is unnecessary to apportion the relevant amount as between past economic loss, on the one hand, and future economic loss, on the other.

359 The trial judge's judgment should be set aside.

360 Judgment should be entered for the appellant on his claim.

361 The measure of his damages (before applying the discount of 60% to reflect the value of his lost cause of action) is $401,850 as follows:

362 When the amount of $401,850 is discounted by 60% the result is $160,740.

363 The appellant should therefore be awarded $160,740 together with interest on that amount at 6% per annum from 1 November 2006 up to the date on which this court delivers judgment in the appeal.