HEADNOTE
[This headnote is not to be read as part of the judgment]
On 7 March 2010 the appellant, Mr Osei, was assaulted whilst working as a taxi driver. Mr Osei sustained physical and psychological injury. Although Mr Osei's claim for workers' compensation was initially approved, the insurer ceased paying weekly compensation to Mr Osei on or about 8 November 2011. Mr Osei filed three applications in the Workers Compensation Commission for reinstatement of weekly benefits. The first two applications were discontinued, and the third was settled.
On 28 January 2019 Mr Osei sued his solicitor and barrister in the District Court claiming damages for negligent provision of legal services in connection with the settlement. The primary judge held that both were in breach of their duties of care to Mr Osei. After applying deductions and a 40% discount to reflect the chance of Mr Osei not succeeding before the Workers Compensation Commission, the primary judge awarded a judgment of $19,086.65 in Mr Osei's favour. In a second judgment, the primary judge ordered that the costs payable by the solicitor and barrister be capped at $10,000, by reason of cl 2 of Sch 1 of the Legal Profession Uniform Law Application Act 2014.
Mr Osei sought leave to appeal. The application for leave to appeal and the appeal, if leave be given, were heard concurrently.
The principal issues before this Court were:
(i) whether the trial judge erred in assessing an appropriate discount to what would otherwise have been an award of damages on account of the appellant's loss of chance in the amount of 40%, (ground 3);
(ii) whether the trial judge erred in determining that the damages awarded to the appellant were "personal injury damages" as defined in s 11 of the Civil Liability Act 2002 (NSW) (CLA) and, consequently, erred in concluding that cl 2 of Sch 1 of the Legal Profession Uniform Law Application Act 2014 (NSW) operated so as to impose a cap upon the quantum of costs recoverable in the Court below, (ground 4);
(iii) what order should be made as to the costs of the application for leave to appeal and the appeal.
Held: allowing the appeal in relation to ground 4 only (per White JA, McCallum JA and Garling J), and ordering that the respondents pay the applicant's costs of the application for leave to appeal and the appeal (per McCallum JA and Garling J; White JA dissenting).
As to issue (i), per White JA (McCallum JA and Garling J agreeing):
(1) The trial judge's discount of 40% of the maximum amount which Mr Osei could have achieved before the Commission was open to him, and raised no question of principle warranting the grant of leave to appeal: at [39], [100], [101].
As to issue (ii), per White JA (McCallum JA and Garling J agreeing):
(2) The trial judge erred in finding that the cap in cl 2 of Sch 1 of the Legal Profession Uniform Law Application Act 2014 (NSW) applies. This is because the definition of "personal injury damages" in s 11 of the CLA should be interpreted as only applying to damages "for" personal injury, whereas the damages awarded to Mr Osei were for professional negligence: at [75], [94], [100], [101].
New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57, applied.
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; Cross v Certain Lloyd's Underwriters; Thelander v Certain Lloyd's Underwriters [2011] NSWCA 136; Firth v Sutton [2010] NSWCA 90; Firth v Sutton (No 2) [2010] NSWCA 109, Pritchard v Trius Constructions Pty Ltd & Ors (No 2) [2011] NSWSC 1114; Hammond v Stern [2013] NSWSC 70; Hammond v Stern (2014) 86 NSWLR 612; [2014] NSWSC 864; State of New South Wales v Williamson [2011] NSWCA 183 discussed.
As to issue (ii), per Garling J:
(3) Even if an expansive definition of "relate to" were adopted, Mr Osei's claim would not "relate to" personal injury damages because his proceedings in the Workers Compensation Commission were for a statutory entitlement to a weekly benefit, rather than damages: at [100].
As to issue (iii), per Garling J (McCallum JA agreeing)
(4) The respondents should pay Mr Osei's costs of the application for leave to appeal and the appeal, as the ground that succeeded was the most substantial in monetary terms: at [100], [116].
As to issue (iii), per White JA (dissenting)
(5) The parties should pay their own costs of the application for leave to appeal and the appeal, as it cannot be said that more costs would have been spent on the ground that succeeded than the grounds which were abandoned or failed: at [97].