Stipanov v Mier [2008] VSCA 116

160 For completeness, I should refer to another passage in her Honour's reasons dealing with the significance, as it was perceived, of that letter:

[102] ... [E]ven if Ms Stipanov did intend to and would have issued common law proceedings had she and her husband not forgotten about the limitation period, that is not something for which Mr Mier is responsible. Had Mr Mier not been negligent, had he given Ms Stipanov adequate oral or written advice about the relevant limitation period, it need have gone no further than the MBC letter. When Mr Mier's retainer ended, Ms Stipanov still had the MBC letter, and her husband (if not also Ms Stipanov) still remembered and understood the contents of the MBC letter. There was no evidence to suggest some reason why they might have remembered advice from Mr Mier, when they did not remember the same advice from MBC. In that case, the cause of Ms Stipanov's loss is the fact that she and her husband forgot the legal advice they had been given about the limitation period.

161 Her Honour's conclusion was thus that the defendant's breach of duty - presumably, whatever its content - could not have been a cause of the plaintiff's lost chance so long as the plaintiff should be taken to have known the period set by s135AC. That, with respect, was by no means necessarily so. Moreover, her Honour appears to have expressed a concept of single causation - 'the cause of [the plaintiff's] loss' - which in my opinion was wrong in point of principle.

162 Then the learned judge analysed the plaintiff's intentions up to the end of 2000. I set out her Honour's key findings at [12], and I have detailed circumstances, including events subsequent to December 2000, which in her Honour's view 'tended to support the conclusion that [the plaintiff] would not have issued a common law proceeding.' I have also explained what I perceive to be the problems with her Honour's analysis.

163 I should add little to what I have already said concerning the plaintiff's attendance on solicitors in 2002 and early 2003. The judge said that the plaintiff had given two explanations why it was that she (in fact her husband) had collected her file from the defendant in April 2002, and thereafter consulted a firm of solicitors named Wilsons. The file of that firm was put in evidence. It is clear that in fact the plaintiff went to the firm because she had received a letter from the WorkCover Authority dated 29 April 2002, which advised her of a so-called 'intensive case review program' under which certain injured workers were to be eligible to receive a lump sum in lieu of continuing weekly payments.

164 The plaintiff, the file shows, had some desultory contact with Wilsons up until late December 2002. On more than one occasion, it appears, she raised the question of common law action. A file note dated 15 May 2002 said this:

6. She wanted to know whether she could sue for asthma.

I advised her that in general the legal action must be commenced within 6 years of her first knowing that she had suffered injured (sic) and those injuries caused by employers act or omission.

165 Further, a solicitor noted this in a file note dated 23 December 2003:

Only been able to deal w the issue about 2 weeks ago due to her mental ill health

166 The judge concluded that, if the latter file note was accurate, it tended 'to confirm [her] earlier conclusion that [the plaintiff] was not interested in pursuing a common law claim prior to the end of 2000. With respect, focusing only upon the later file note was apt to create a false impression. At the plaintiff's first interview, although she had attended the solicitors ostensibly in relation to an accident compensation issue, she had raised the issue of possible common law action. Moreover, she had then been given limitation period advice which was, in context, misleading.

167 On 23 December 2002, Wilsons wrote to the plaintiff's union, advising that it had given the plaintiff detailed advice on her options, including access to common law damages. The advice was evidently wrong in part; and because the solicitors were not fully instructed, it plainly could not have included an evaluation of the prospects of the plaintiff succeeding in a common law action. Neither again is there any suggestion that consideration was paid in such advice to the operation of s 135AC. In my opinion, the giving of partly wrong and substantially incomplete advice in late December 2002 was not a reliable basis for inferring the plaintiff's state of mind in a period which ended, at latest, in December 2000.

168 In early February 2003, the plaintiff consulted Slater & Gordon. She was provided with a detailed letter of advice dated 12 February that year. It adverted to possible common law action. It raised the prospect - I do not say it was non-existent, but it must certainly have faced difficulties - that the plaintiff might yet be able to sue her employer.[26]

169 The plaintiff did not follow up the matter with Slater & Gordon. The judge concluded, notwithstanding that the plaintiff consulted her present solicitors within a relatively short time thereafter, that the failure of follow-up tended 'to belie her evidence that she always wanted to and intended to bring common law proceedings'.

170 The defendant's counsel at trial conceded that not much could be made of the plaintiff's attendance on Slater & Gordon. In my opinion, the concession was rightly made. This attendance provided little if any guidance as to the plaintiff's state of mind had the defendant abided his duty to properly advise her upon the merits of a common law action in the first half of 1999.

171 For the reasons which I have given, I consider that the appeal should be allowed.

172 Counsel for the plaintiff argued that if the appeal succeeded this Court could - and should- proceed to decide the issues on liability. Specifically, he contended, we should decide that, but for the defendant's negligence, the plaintiff would have been given favourable advice on the merits of her common law claim and, on the probabilities, would have given instructions for a proceeding to be commenced. In those circumstances, the only aspect of the proceeding which would need to be considered at a retrial would be the value of the lost opportunity to commence such a proceeding.

173 Desirable though it would be to limit the issues which must be agitated again, the proposed course is not practicable. I consider that the material adduced at trial was sufficient to show, on balance of probabilities, that a reasonably competent solicitor ought to have advised the plaintiff that she had sound prospects of succeeding in a serious injury application, and in a subsequent common law proceeding. But whether, probably, the plaintiff would have given instructions to proceed if given such advice by the defendant must depend upon on an evaluation of many circumstances best considered in the context of a trial. The plaintiff's credibility (and perhaps the credibility of her husband) would likely influence the conclusion. The question of credibility would arise, for instance, if (self-serving) evidence was adduced that instructions to proceed would have been given if the plaintiff had been appropriately advised. This Court should not rely, I think, upon the learned trial judge's assessment of the credibility of the plaintiff and her husband.

174 In the event, I consider that the entire subject-matter of the proceeding should be remitted for retrial before another judge of the Trial Division.

[1] Having been referred to a solicitor, Maurice Blackburn & Co, in the first half of 1998, and having been sent a pro forma letter which adverted, inter alia, to that matter.

[2] Based upon investigations which he had made, or which he ought reasonably to have made.

[5] Including reports obtained by the WorkCover Authority from the respiratory physician, Professor Michael Pain.

[7] Many might think that the differences in the evidence of the plaintiff and her husband reflected their attempts to give truthful evidence, that honest recollections often enough differ, and that much of the apparent difference turned on just what language had been used by the plaintiff in conveying, as she claimed to have done, a desire to fully enforce whatever rights she had in respect of her asthma condition. But the learned judge was not compelled to that view of things.

[8] As a matter of substance, and putting aside the plaintiff's own choice of language.

[9] [2003] HCA 41; (2003) 77 ALJR 1449.

[10] [2007] VSCA 209.

[11] Although, had the plaintiff been of the mind of which she gave evidence, it might have been more readily concluded that she would probably have accepted advice that she had sound prospects of succeeding in a serious injury application and a common law proceeding.

[12] Indeed, she converted an absence of qualified want into a finding of unqualified want to the contrary.

[13] On the plaintiff's case , the instructions were wider than that. The judge concluded that the instructions were no wider. It is not decisive of the appeal that the judge so concluded, because her Honour held in any event that the defendant fell under a duty to advise the plaintiff about the merits or otherwise of common law action and its statutory precursor.

[15] Or 1 September 2000, it matters not that the necessary action would have differed according to which regime applied.

[21] So much is clear from the Statement of Claim in the Magistrates' Court proceeding.

[22] Albeit, according to Mr McBain's evidence, in ambiguous language.

[23] Compare paragraph 16 of the defence, and cross-examination of the plaintiff.

[25] A legal practitioner called for the plaintiff.

[26] It depended upon s 135AC(b) being successfully invoked.