Sutton v Firth

Civil Liability Act 2002, s 5O Evidence Act 1995, ss 76 and 79 LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946, s 5 Workers Compensation Act 1987, ss 37, 40, 60AA, 66, 67, 68A, 151A, 151D(2), 151G, 151H, 151K and 151M, Div 3 of Pt 5 and Div 4 of Pt 3, and cl 3 Pt 18H of Sch 6 Workers Compensation Legislation Amendment Act 2004

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Boyded Industries Pty Ltd t/as Boyded Parramatta v Canuto [2004] NSWCA 256 Bwllfa and Merthyr Dare Steam Collieries (1891) v Pontypridd Waterworks Co [1903] AC 426 Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 Chapman v Hearse (1961) 106 CLR 112 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Czatyrko v Edith Cowan University [2005] HCA 14 Dobler v Kenneth Halverson [2007] NSWCA 335 Green v Berry [2001] 1 Qd R 605 Johnson v Perez (1988) 166 CLR 351 Liftronic Pty Ltd v Unver (2001) 179 ALR 321 McHale v Watson (1966) 115 CLR 199 CASES CITED: McLean v Tedman (1984) 155 CLR 306 Midland Trust Bank Co Ltd v Hett Stubbs & Kemp [1979] Ch 384 Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 Nikolaou v Papasavas (1989) 166 CLR 394 O'Brien v Gillespie (1997) 41 NSWLR 549 Purkess v Crittenden (1965) 114 CLR 164 Rabelais Pty Ltd v Cameron (unreported, NSWSC, 8 February 1993) Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Tipper v Williams [1993] NSWCA 269 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 Tubemakers of Australia v Fernandez (1976) 50 ALJR 720; (1976) 10 ALR 303 Valmas v Nyman (unreported, NSWSC, 12 November 1996 Willis v The Commonwealth (1946) 73 CLR 105

PARTIES: Renee Leslie Sutton - Plaintiff Stephen Paul Firth - Defendant

COUNSEL: Mr KW Andrews for Plaintiff Mr GM Watson SC and Mr RI Goodridge for Defendant

SOLICITORS: Brennan Legal for Plaintiff Firths - The Compensation Lawyers for Defendant

1 This is an action for professional negligence against a solicitor for the loss of an opportunity to take common law proceedings by an employee injured at the workplace in or about February 1998. It was claimed that the solicitor failed to advise and properly investigate the circumstances of the injury and consequent loss occasioned to the employee, contrary to his duty of care and/or in breach of the retainer, so as to deny the employee the option to make an informed decision whether to pursue appropriate entitlements from the employer under the Workers Compensation Act 1987 for either compensation or modified common law damages pursuant to Div 3 of Pt 5 of the statute. It was alleged that the injury arose from the negligence of the employer in not ensuring a safe system of work as to the nature and conditions of the employment thereby causing the employee loss and damage.

2 As it happened, the employee obtained workers compensation benefits in the form of weekly payments, medical expenses and lump sum amounts with the continuing right to receive compensation in the future. An application to the Compensation Court of New South Wales led to the employee receiving, on 1 September 1999 and by consent, the lump sum amounts by way of permanent loss compensation pursuant to Div 4 of Pt 3 of the Workers Compensation Act made up of compensation for permanent injuries under s 66 and compensation for pain and suffering under s 67. Of course, in accordance with s 151A(3)(b) of the Workers Compensation Act the commencement of proceedings in the Compensation Court for that permanent loss compensation and acceptance of its payment represented an election by the employee to take that form of recompense rather than common law damages; henceforth the entitlement to recover damages was lost. The election so made could have been revoked under s 151A(4) and (5) of the statute with the leave of the Compensation Court if the injury caused a further material deterioration in the employee's condition. In fact, a deterioration did occur here in April 2002 but no application for a revocation was made. In any event, the three year limitation period under s 151D(2) of the Workers Compensation Act to commence proceedings without leave of the Court for modified common law damages expired on 12 February 2001. Of significance also, after 27 November 2001 amendments to the Workers Compensation Act in s 151G limited damages to past and future economic loss but which would, even then, have required an extension of the expired limitation period to be obtained.

3 Following the deterioration in the employee's medical condition, she consulted the original solicitor who, apparently, said nothing further could be done and so she retained another solicitor in September 2002 who advised about the earlier potential to take more favourable financial common law proceedings and the lost opportunity to do so. The present statement of claim was filed on 9 August 2005, after investigation of the situation the employee was in, against the original solicitor to recoup the claimed loss by reason of professional negligence in the handling of the case. Nothing was discernible here, having in mind the way in which the case was argued, on the distinction between the claim in tort and that in contract.

4 It was agreed between the parties to this action that the employee plaintiff had a 70 per cent chance of establishing that in respect of any injury she may have suffered on 12 February 1998 it was caused by the employer's breach of its duty of care to her. It was agreed further that the notional date of trial in a common law action for damages was 1 July 2000.

5 The plaintiff, Renee Leslie Sutton, was born on 13 May 1981. She lived with her parents and attended Birrong Girls High School where she was, as she said, an "average student" who engaged in sports such as karate, netball and swimming. Her health was unremarkable and, specifically, Dr C Jayadev as her family general practitioner reported "no past history of any musculo-skeletal symptoms referable to her back prior to this (February 1998) accident (at work)." Her career ambition was to be an airline hostess which she "always wanted to do".

6 In 1994, age 13 years, the plaintiff commenced part time work at a nearby supermarket at Chester Hill operated by Go-Lo Distributions Pty Limited as a retail variety store for 12 hours each week. The employment was four hours on a Thursday after school and eight hours on a Saturday. Her main duties involved "picking up the boxes, pricing stock (such as glass bottles, books and other items), doing shelves". She said the boxes were "very heavy" to lift, 15 to 20 kilograms, and the procedure was "to pick it (a box) up from the top (of a huge pallet), put them down ... there was a trolley ... to take it out into the store, there was nothing to help lift it"; at the appropriate aisle in the store the boxes were unpacked, stock priced and placed in the shelves; and the last 15 to 30 minutes of each shift was clean-up time requiring the tidying of stock and sweeping floors. The plaintiff said she received no training from the employer how to do the work, only to do it, and she did so with another schoolgirl but sometimes on her own.

7 Relevantly, the plaintiff said she felt discomfort in her back after starting to work for Go-Lo which "gradually started building up over the years" but she could "handle it" and continued to perform the usual duties without any time off, attended school and participated in sport. That remained the position prior to February 1998. Then, on Thursday 12 February 1998 at work after about two hours, she said her back "got really intense ... it was restricting me a lot"; by the end of the shift she said she "went to bend down to sweep and I couldn't get back up" - being unable to move, her mother picked her up from work and took her to the local Rickard Road Medical Centre where arrangements were made for an x-ray of the back followed by treatment of physiotherapy, hydrotherapy, rest and analgesics. Dr Jayadev was first consulted for this injury on 20 February 1998 and, aided by a further x-ray on 13 March 1998 by Dr Paul Fung, diagnosed a strained lumbosacral spine. Dr Jayadev had the opinion the plaintiff was thereby unfit for any work from 19 June 1998. However, in the meantime, she resumed work on light duties at the check out using a cash register but, having difficulty in standing because her back "felt like it was giving away", she ceased work altogether at Go-Lo after a few months (although from other evidence it was probably only a few weeks). Absences from school of from 10 to 13 days due to persisting back problems caused the plaintiff to terminate her schooling in about June 1998 and sporting activities were gradually stopped. She then undertook and completed in April 1999 a six-month full-time administration course at Bankstown TAFE which was possible with the continuing back pain because she was able to sit and stand at will in using the computer and in attending lectures.

8 It is to be noted that the plaintiff readily agreed the pain in the low back started about one year after commencing employment with Go-Lo and built up over time. She accepted there was no individual particular incident which caused the pain in that, as she said, "I didn't fall or anything like that ... it was gradual".

9 The plaintiff's mother, Sharon Ann Northey, in evidence confirmed the plaintiff's inability with the back problems to continue at school and participate in sport. She confirmed too the plaintiff's ambition to become an airline hostess, after putting aside embarking on a modelling career as she was not tall enough. Ms Northey spoke of the plaintiff's sporting competitiveness and, as to her work ethic, added: "Well, she showed to me that she was very work orientated because she wanted to start working at a young age. I tried to talk her out of it because I thought her schooling was more important. But she got the job without me, you know, having any say in it. She started the job, her with a neighbour that lived a couple of doors up and they both worked Thursday nights and Saturday mornings and she loved it, she loved having her own money and saving you know, she had great ambitions."

10 In a workers compensation claim form completed by the plaintiff on 21 April 1998, she described what happened at work in this way: "I started getting severe back pain through bending and lifting things at work."

The injury was stated as "sprained lower back" and the treating doctor was Dr Jayadev. The employer, Go-Lo, noted receipt of the claim on 8 May 1998.

11 The employer's report of injury to its insurer completed on 13 May 1998 stated injury to the plaintiff at work on 12 February 1998, being a strained lower back, "through previous weeks started getting real bad back pain after work from lifting and a lot of bending"; the employment commencement date was shown as 19 January 1995 in the occupation of shop assistant with tasks of "pricing, tidying, register" work. A summary of workers compensation benefits allowed to the plaintiff by the insurer disclosed medical expenses and travel reimbursement from 19 June 1998, weekly benefits from 1 October 1998 and a lump sum payment on 1 September 1999.

12 For present purposes as the matter was argued, it is convenient to interpose notation of the amounts of workers compensation benefits received by the plaintiff both before the notional trial date of 1 July 2000 and after that date up to the last payment on 31 December 2008. As to the former period, it was common ground from the insurer's summary of payments that amounts of $2,350.80 for medical expenses and $3,078.57 for weekly compensation were made being a total of $5,429.37; a lump sum payment of $27,500 was made also in September 1999 - the total for all payments up to 1 July 2000 was, therefore, $32,929.37. As to the latter period to 31 December 2008, it was also common ground that the workers compensation insurer had paid $28,618.38 for medical expenses and $12,929 for weekly compensation giving a total of $41,547.38; a lump sum payment of $12,716.95 was made also in July 2008 - the total for all payments of compensation up to 31 December 2008 was, therefore, $54,264.33. The grand total for all payments of compensation was $87,193.70. This aspect will be dealt with later in considering a relevant deduction from an assessment of any modified common law damages notionally due to the plaintiff for negligence from the employer, Go-Lo, including at what point the deduction should be made and the treatment of the ss 66 and 67 lump sum payments in considering any damages against the solicitor defendant for professional negligence if so found.

13 Following completion of the TAFE administration course in April 1999, the plaintiff's back pain continued and she took medication to relieve it. Nevertheless, in about February 1999 she commenced a full time job with an advertising company, Response Publishing, for five days a week earning $240 net per week; the duties involved reception work, answering telephones and preparing correspondence - in doing so she could sit and stand as convenient for the back condition which was "getting pretty bad". It seems that the plaintiff obtained this position on advice from Dr Geoffrey Rosenberg, an orthopaedic surgeon on referral by Dr Jayadev, that office work would be the best occupation for her by avoiding long periods of standing. By this stage the plaintiff said she had stopped playing sport because of the back problems and social contact with friends was limited to the home situation. She continued under the care of Dr Jayadev and had physiotherapy for her back with the ongoing use of medication for the pain.

14 Employment with Response Publishing ceased about October 2001 before the plaintiff gave birth to her first child, a son Taylan, on 20 January 2002. In the meantime, due to her parents' move to live on the Central Coast, the plaintiff from February 1999 lived with her grandmother and an aunt until about late-2001 when she lived with her partner and his brother until about March 2002. Although attempting to do, she said her back problem prevented most housework during that period which was done by her aunt or partner but she did do dishwashing, clothes washing and vacuuming of floors. When her son was six months of age, the plaintiff obtained employment as a receptionist with a firm called LA Accounts in order to earn money. That employment, which lasted for about six months until late-2002, was of a sedentary nature seated in an office but the plaintiff's back continued to be "pretty painful". Again, she remained under the care of Dr Jayadev with physiotherapy and medication. However, on moving to a two-bedroom house at Punchbowl with her son in March 2002 the plaintiff in fact did all of the housekeeping duties, albeit she said with problems from her back in mopping and constantly bending, and that continued to be so while they lived there for a period of two years.

15 Apparently, the plaintiff found it difficult with her back condition to attend to the demands of her son and, eventually, on 9 April 2002 while she was cleaning the floor in the Punchbowl house she became unable to straighten her back. She called her former partner's mother who lived nearby who arranged for an ambulance to take the plaintiff to Bankstown Hospital where she was an in-patient for three days. On discharge from hospital she remained under Dr Jayadev's care, who she saw in the initial stages up to four times a week, with physiotherapy and hydrotherapy; regular pain medication for the back was taken. Another consultation with Dr Rosenberg took place who referred the plaintiff for an MRI scan. The plaintiff continued to be unemployed since leaving LA Accounts in late-2002.

16 In light of the worsened back condition, it was at this time in September 2002 that the plaintiff contacted her original solicitors, Firths - The Compensation Lawyers, to see if something could be done but she said she was told "there's nothing we can do". She then consulted Kells Lawyers and spoke to a solicitor, Deborah Ens, who gave certain advice and that firm, on receipt of the plaintiff's file from Firths, proceeded to act for her. Again remaining under Dr Jayadev's care, the plaintiff was unemployed because of the care to be given to her son.

17 No doubt from regular treatment sessions, the plaintiff was able to obtain employment with her physiotherapist, Angela Thomas Pty Limited, from 6 September 2004. She worked for four hours a day on two days a week doing computer invoices, answering telephones and making appointments for patients. On 30 November 2004 she gave birth to a second child, a son named Jaden. Employment then continued with Ms Thomas until 3 September 2007 when it ceased due to a downturn in available work. On 28 July 2008 the plaintiff had her third child, a daughter called Ayla.

18 The Plaintiff has since continued to be unemployed. However, influenced by the ages of her children she said she anticipated eventually returning to the workforce on a part-time basis for 20 hours a week so as to support her family.

19 As far as the plaintiff's present condition is concerned, she said discomfort was felt in the back "all the time" and in the previous few months it "hasn't been too good .... It was strengthening up, after I had the baby I started strengthening it at the gym, but it seems to be breaking away again ... It can get worse ... I was told to do swimming, but recently with swimming I've been cramping right through my legs and feet, so swimming seems to have gotten it worse." She has stopped medical treatment at the moment, although gym work is done to strengthen the back, and she has not taken any medication since about March 2004 when she became pregnant with Ayla.

20 On the domestic side, the plaintiff lives with her three children in a rented three bedroom house with assistance for cleaning and laundry from her mother twice a week for two hours on each occasion. Her former partner mows the lawns for about one hour on a weekly or fortnightly basis. Otherwise, the plaintiff maintains the household.

21 In traversing the background of events, including the working conditions at Go-Lo with the onset of a low back problem on 12 February 1998 and its consequences, I found the plaintiff's evidence to be credible. She presented in a very open and frank manner with evidence given free from any gloss or over statement. Indeed, admissions were readily made in cross-examination without evasion or any attempt to best condition the answers. I accept her evidence.

Personal injury to and resultant medical condition of the plaintiff

22 It is clear from the plaintiff's evidence that prior to her employment by Go-Lo from 19 January 1995 age 13 years she had no problems with her back but after about one year in performing her work duties of manually lifting heavy boxes on a regular basis lower back pain was experienced. Even so, she continued to perform those duties and, at the same time, engaged in normal school activities and sport. It is clear also that no particular or discrete incident occurred at the workplace but rather what befell the plaintiff in terms of back pain built up gradually over a period of a couple of years before February 1998.

23 The clinical notes of Dr Jayadev disclosed no complaints of back problems by the plaintiff until she saw a doctor at the medical centre on 12 February 1998, consistent with the evidence of the plaintiff and her mother, and Dr Jayadev first saw the plaintiff regarding her back on 20 February 1998. In his report dated 5 March 2004, Dr Jayadev referred to the work of lifting heavy boxes, standing and bending as leading to the onset of the back pain and he diagnosed a strained lumbosacral spine after viewing an x-ray report from Dr Paul Fung of 13 March 1998 in which Dr Fung noted "evidence of pars interarticularis defects at the level of L5 with grade 1 spondylolisthesis at the level of L5/S1. The disc spaces at this level is significantly reduced consistent with degenerative disc lesion. Extensive bony sclerosis is noted in the apophyseal joints at the lumbosacral junction." Dr G Schaffer performed a CT lumbar spine scan of the plaintiff on 13 June 1998 and found similar results to Dr Fung leading to the comment that "protrusions are present at the L3/4, L4/5 and L5/S1 levels with the largest at the L4/5 level."

24 Persistence of the back pain caused Dr Jayadev to refer the plaintiff to Dr Rosenberg who examined her initially on 18 June 1998. In his report of 23 June 1998, Dr Rosenberg noted the congenital pars defects at the L5 level with lumbosacral spondylolisthesis but emphasised the large left-sided disc prolapse impinging the L5 nerve root as the cause of the biggest problem resulting in pain. In a fuller and more complete report of 23 February 1999, Dr Rosenberg confirmed the disc prolapse as the cause of the plaintiff's then current state and was "directly the result of her job of bending and lifting". He added in the report: "...a heavy physical job with a lot of bending and lifting would reasonably have contributed to her back pain. Also with this relative weakness (pars defects) more strain would be placed on the disc above resulting in the disc prolapse. She initially was advised to receive physiotherapy and also undergo a back strengthening regime. She was also suggested to change jobs to a lighter office type job, one that avoided heavy physical exertion on the back.

She was advised that in the worst case scenario, if her symptoms failed to settle she had an excellent chance of improvement in her left buttock and leg symptoms with excision of the L4/5 disc. In the future she is at higher risk of having ongoing problems with her back and in the worst case scenario would require a lumbar fusion.

I did not believe that she required this at present and the only surgery contemplated would be a L4/5 disc excision and neurolysis of the L5 nerve root.

To summarise, I believe Renee Sutton's current predicament of back and left leg pain is largely due to the L4/5 disc prolapse she has sustained. This is a direct result of the conditions of her work. She does have L5 pars defects with grade 1 spondylolisthesis but this is not her problem at present.

...I would have assessed the percentage permanent impairment of her lumbar spine at 10 %.

I would have assessed 5 % permanent impairment of the left leg at and above the knee as a result of referred pain from her spine.

Finally, the natural history of a disc prolapse is to settle but it can be a lengthy process. The role of surgery is to aid in recovery if symptoms fail to settle."

25 Dr Jayadev referred the plaintiff to a consultant rheumatologist and physician, Dr Harry Patapanian, who examined her on 15 December 1998. In his report of 21 September 1998, Dr Patapanian noted the radiological results and considered, like Dr Rosenberg, that her symptoms were due to the left L5 root compression. Again like Dr Rosenberg, Dr Patapanian considered the patient a candidate for surgery.

26 An orthopaedic consultant, Dr Fred Blake, examined the plaintiff on 17 August 1999 and relatively commented that, "no injury as such occurred, and symptoms have developed gradually...the undertaking of physically demanding work in an immature spine from the age of 13, was associated 2 years later with the development of her symptoms." Dr Blake was of the view that the plaintiff's then "problems relate to the constitutional condition in her lower back brought to light and aggravated by her heavy work requirements." He considered her partially incapacitated for work but not fit for heavy lifting or carrying, prolonged or repeated bending and with the need in a job to be able to get up and move around as required. He, like Dr Rosenberg and Dr Patapanian, thought surgery was a possibility for the future but in the meantime the plaintiff's condition has stabilised resulting in a 25 per cent impairment of her back and a 15 per cent permanent loss of efficient use of her left leg at or above the knee.

27 Dr P A Limbers, an orthopaedic surgeon, examined the plaintiff on 18 March 1999 and in a report of 20 March 1999 assessed a 20 per cent permanent impairment of the back of which 15 per cent was due to the work related incident at Go-Lo and 5 per cent to the pre-existing but asymptomatic condition.

28 On 13 April 1999 the plaintiff was examined by Dr William Wolfenden, a consultant neurologist, who reported the same day and found that the constitutional pars defects "rendered her back more prone to injury from lifting strains" so that the lifting strains while working as a shop assistant at Go-Lo "led to disc protrusions and irritation of sacral nerve roots on the left with consequent left leg sciatica". Dr Wolfenden concluded: "Miss Sutton is now completely unfit for all work involving bending and lifting and is quite unsuitable to return to her previous occupation. She is only fit for some sedentary occupation as she is at present doing.

I consider that she has a permanent impairment of her back equivalent to approximately 25% of a most extreme case and a 15% permanent loss of the efficient use of her left leg at or above the knee to include any impairment below the knee.

Of the total impairments as assessed above, I consider that 90% of them are attributable to the work performed as a shop assistant and 10% of them attributable to the underlying constitutional defect in her lumbar spine."

29 Associate Professor Noel Dan, a neurosurgeon, examined the plaintiff on 26 May 2008 and on 28 May 2008 reported a view from the radiological evidence, consistent with that of Dr Rosenberg, and said: "I think the disc protrusions were directly related to her employment. I do not think the very large disc protrusions were a constitutional condition...It is a generality that disc protrusions occur as a consequence of an injury. I therefore believe that the symptoms were due to the disc protrusions and, on the basis of the reports of heavy lifting related to work, I would attribute the disc protrusions to her employment. It is difficult to be confident even with the documentation you have made available the exact date the disc lesions occurred but it is likely that the actual protrusion or perhaps both protrusions occurred on 12.02.98."

30 In a particularly informative and telling way, Dr Alan Searle, a consultant orthopaedic surgeon, in a report of 3 April 2004 after examining the plaintiff on 30 March 2004 said: "The general nature and conditions and obligations of this lady's employment since the age of 13, with repetitive bending and heavy lifting have repeatedly placed excessive stresses and strains on her lumbar spine even before she had reached skeletal maturity. These repetitive minor injuries have caused the spondylolisthesis at L5, a large prolapse of the disc at L4-5, and a smaller protrusion at L3-4.

There is good evidence that the development of a spondylolisthesis of this type is in fact a type of fatigue fracture, usually developing in the early teens, and one could hardly imagine a better example of this theory than a skeletally immature 13 year old required to do repetitive bending and lifting especially with heavy weights.

She may have suffered a specific injury on 12/2/98 though this was probably just the denouement of her back story."

And, as to the future, Dr Searle added: "The ongoing symptoms from these injuries are permanent and cause a severe degree of disability. Indeed she is in dire straits and at 22 already has a seven year history of back pain and severe pathological changes in her spine.

Because of her back injuries she is permanently unfit for all forms of work, including housework, and indeed is at this stage virtually unfit for almost all forms of physical activity.

With regard to prognosis there will be a gradual increase in the symptoms and disability with the passage of time as the damaged areas undergo degenerative changes which have already commenced, and this will progress steadily. In addition the spondylolisthesis is unstable and there will probably be further slip gradually."

Dr Searle as to treatment said: "Until more effective treatment can be arranged her current treatment will continue, as well as her present treatment costs. However she requires surgical treatment as a semi-urgent procedure...will include at least two disc excisions and fusion at least at two levels. This will cost $14,750.00 in today's terms including hospital, surgical and anaesthetic fees and the cost of the implant."

The connection of the plaintiff's injuries with her work at Go-Lo was said by Dr Searle to have "caused very severe pain and suffering and has almost completely inhibited any social, domestic or recreational or sexual activities, and her employment prospects."

31 Two orthopaedic surgeons, Dr Michael Stuckey and Dr James Bodel, examined the plaintiff in respectively August 2007 and October 2007 for medico-legal purposes. In their reports, in overall terms, both practitioners related the cause of the plaintiff's back problems to the nature and conditions of her work at Go-Lo as aggravating the pre-existing constitutional problem; ongoing pathology was expected. Both Dr Stuckey and Dr Bodel assessed the plaintiff's whole person impairment from the back injury at 12 per cent.

32 A neurosurgeon, Dr Kevin Bleasel, saw the plaintiff on 31 October 2007 and in his report related the plaintiff's back condition to the work she performed at Go-Lo and, like Dr Searle, emphasised the significance of doing such work at a young age. He assessed the resultant whole person impairment of the back at 19 per cent.

33 Dr Julian Parmegiani, a consultant psychiatrist, reviewed the plaintiff on 6 November 2007 and focused on the psychiatric sequelae of the employment injury in February 1998 at Go-Lo. In his report the next day, Dr Parmegiani diagnosed an adjustment disorder with mixed anxiety and depressed mood. He noted the plaintiff "resented the impact of pain on her career, relationships and independence...grieved the loss of her career, because she wanted to become a flight attendant...was unable to sustain a relationship, because pain had an adverse impact on her mood, temper and libido...was able to look after her children and household, within her physical limitations." After commenting that the plaintiff had not had adequate psychiatric treatment to date, Dr Parmegiani thought she would benefit from 12 to 18 sessions of cognitive behaviour therapy so as to enable her to better cope with the chronic pain at a cost ranging from $160 to $290 per session. He said there was unlikely to be any benefit from her taking anti-depressant medication.

34 Although the views of some of the medical practitioners well post-dated the date of the notional trial here on 1 July 2000, I consider the evidence is relevant to my present task in this professional negligence action as incorporating the notional common law trial for personal injury damages, particularly in the assessment as at 1 July 2000 of likely non-economic and future economic losses suffered by the plaintiff: see Johnson v Perez (1988) 166 CLR 351 at 368 per Wilson, Toohey and Gaudron JJ. Their Honours pointed out what Latham CJ said in Willis v The Commonwealth (1946) 73 CLR 105 at 109 that: "Where actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second best."

Reference in this respect may be made also to Nikolaou v Papasavas (1989) 166 CLR 394 at 403-404 citing Lord MacNaghten in Bwllfa and Merthyr Dare Steam Collieries (1891) v Pontypridd Waterworks Co [1903] AC 426 at 431.

35 In my view, the medical evidence is all one way, namely, that the plaintiff had pre-existing congenital pars defects in her spine, which were asymptomatic although perhaps making the back more prone to injury. The nature and conditions of her work at Go-Lo over a two or three-year period in lifting heavy boxes, standing and bending caused disc protrusions at the L3/4, L4/5 and L5/S1 levels; those protrusions culminated on 12 February 1998 in the onset of a chronic condition of lower back pain with referred pain down the left leg, as the plaintiff was bending and lifting heavy boxes of product; she was thereby unable to perform any work for a period; her condition was expected to be ongoing with the possibility of future surgery to excise the protrusions and perhaps spinal fusion; and future cognitive behaviour therapy would assist in better managing the chronic back and left leg pain where it had as a sequelae to the employment injury resulted in an adjustment disorder with mixed anxiety and depressed mood. The injuries to the plaintiff, which involved a significant permanent impairment of her back, are to be viewed in their likelihood of occurrence and effects as being to a physically immature teenager engaged in work duties of the lifting of heavy boxes and bending on a regular basis. Although there was a suggestion in the evidence of Dr Searle that the plaintiff was permanently unfit for all forms of work, including housework, I accept the dominant view in the medical evidence that she is partially incapacitated for work, but not as involving bending and lifting, so as to be fit to perform sedentary type work in an office situation, as she had been doing with Response Publishing, LA Accounts and Angela Thomas; she is unable to satisfy her career ambition to become an airline steward. On the domestic side, the plaintiff is able to manage the household with her three children but as requiring some regular minimal assistance with the heavier work such as cleaning, laundering and lawnmowing.

36 In the result, causation of the plaintiff's personal injury and its sequelae has been established as against the employer Go-Lo in terms of the nature and conditions of the system of work in the supermarket. The resultant disabilities and work capacity found by the medical practitioners is supportive of that stated by the plaintiff.

37 James Barton Govan was a solicitor employed now and since April 2002 by Carroll and O'Dea but at presently relevant times was employed by the defendant, Stephen Paul Firth, who was the principal in the firm of Firths - The Compensation Lawyers and who carried on practice as a solicitor in the State. Mr Govan commenced employment with the defendant in April 1998 and the day to day nature of his duties was the handling of personal injury claims for clients, particularly arising from workplace injuries, in the areas of both workers compensation claims and common law actions. He commenced employment full time originally as a law clerk with Adelsteins Solicitors in general practice in 1992 while he studied law on a part-time basis. On admission as a solicitor in August 1995 Mr Govan obtained employment with Keddies doing personal injury litigation, again both workers compensation and common law cases, until he joined Firths. He was the solicitor with responsibility for carriage of the plaintiff's matter and, although he did not have any independent recollection, Mr Govan said a review of the plaintiff's file assisted him in recalling matters related to her.

38 It emerged that on 9 December 1998 the plaintiff's mother, Ms Northey, with her daughter present telephoned Firths after seeing an advertisement on television because by then she realised the plaintiff had "big problems" with her back but she had no idea what her daughter's rights may have been and did not know anything about common law - the plaintiff was then 17 years of age. As to that initial telephone call, which Ms Northey said was very short, she said she could not remember the extent of the conversation or who it was with. However, on being handed the telephone the plaintiff said she spoke to a person identified as James Govan and as to which conversation and what followed she gave this evidence: "Q. Now when you spoke to Mr Govan, as best you can recall what was the conversation that took place?

A. He said, he just advised my mother on what would be best for me and he was just telling me about the workers compensation claim is what, you know, if we would like to proceed with it this is what we can do.

Q. Do you remember him ever mentioning the words common law to you?

Q. Having had that conversation did you say anything to him, did you tell him anything at all?

A. No, I just told him what had happened and how I'm off work and that was pretty much it.

Q. After the phone call, I assume your mother hung up or you hung up?

Q. You eventually saw him when you came in and signed some documents on one day, is that right?

Q. Do you recall that your case was or your workers compensation case was resolved at some stage?

Q. Between the date of [9 December 1998] and when you met Mr Govan for the first time did you have any further conversations with him?

39 Ms Northey said she met Mr Govan on 1 September 1999 when she and the plaintiff attended the conciliation conference in relation to the workers compensation claim. In the meantime, she said she did not see Mr Govan and, with one exception, had no telephone conversation with him or anyone else from Firths. The exception was when she telephoned Mr Govan in February 1999 after the plaintiff completed the TAFE course to enquire if it was appropriate for her daughter to return to work. As to options available to the plaintiff to seek recompense for the work injuries, Ms Northey said that that occurred at the conciliation conference when her daughter's claim was settled. She put it this way: "I can remember, like, it was just under the Workers Compensation Act for her to want to go for the common law. There was other things that had to be done or whatever or - for some reason or other, common law wasn't an option for her. I think it had something to do with her not being able to prove negligence on the other side - on the Go-Lo's part of it...before that I never knew really anything about a common law thing."

40 The plaintiff's evidence was that prior to the conciliation conference she received letters from Firths about doctor's appointments but in none of them did she see any mention of "common law" or "modified common law" or "a damages claim". As to the events at the conciliation conference, which was attended with her mother, the plaintiff recited the conversation with Mr Govan and what led to the settlement of her claims as follows: "Q. Do you remember the conversation that you had with him?

A. He pretty much said 'Look, we're all going to go into a conference, we're going to try and settle this today...and then after he just spoke and then he came out and said they had offers...I think he did say the first offer was I think $7,000.

Q. Do you remember him saying anything to you at that time, that is before any other offers were made about common law?

Q. When he came back did he talk to you about any other offers?

A. Yes and then he came back, I think there was two offers and then the third one was the one we accepted.

Q. Eventually there was an offer that was accepted of $27,500 is that right?

Q. Do you remember being told what that $27,500 was for?

A. I think he did say it was pain and suffering for my back.

Q. Did he tell you or did he discuss with you at that time anything about wage loss?

Q. Did he tell you that you would be entitled to bring further workers compensation claims at a later time?

Q. He didn't mention anything to you about wage loss?

Q. Did he mention anything to you about assistance you might get at home, domestic assistance?

Q. Did he mention to you about your right to claim future medical treatment?

A. He did say that if I did settle this I could, yes, continue more.

Q. Did he tell you anything about what's known as non-economic loss?

Q. Did he mention anything about the term of general damages?

Q. Did he talk to you about having to prove that your employer was at fault or negligent?

The plaintiff said the meeting with Mr Govan occupied "not long, probably half an hour/40 minutes at the max" until he told her of the offer of $27,500 and he then added, "I suggest you take the figure...you could get nothing." She accepted Mr Govan's advice without question. The matter then so settled with the agreed amount of $27,500 pursuant to s 66 and 67 of the Workers Compensation Act.

41 The plaintiff was challenged forcefully in cross-examination that in fact Mr Govan on 1 September 1999 at the conciliation conference advised her about her options at either common law or for continued workers compensation and that he advised her the better option was workers compensation because of the difficulty in establishing fault against Go-Lo and her pre-existing medical condition. She maintained her primary evidence, specifically that she did not understand her common law likely entitlements until the later discussion in 2002 with Ms Ens of Kells Lawyers.

42 Ms Northey gave evidence as to the 1 September 1999 meeting with Mr Govan and the advice he tendered consistent with that of the plaintiff. She explained: "I just remember him saying that she - in her position, she - she could not go for common law whatever the common law thing was because, you'd have to prove negligence and it was something that just wouldn't be able to be done. So, it was the workers compensation...No, he never even really spoke about common law...We were there for the settlement for the workers comp."

43 Mr Govan confirmed the initial telephone call on 9 December 1998 from Ms Northey and his conversation then with the plaintiff. He agreed he sent to the plaintiff a letter dated 14 December 1998 in which advice was stated "that if the medical evidence supports a degree of permanent impairment of your back and legs as a result of the injury then you will be entitled to bring a claim for lump sum compensation in addition to your entitlements to payment of weekly compensation and reasonable and necessary medical expenses." This letter contained the heading "Re: Your Compensation Claim" and contained no mention of common law, modified common law or damages - it is plain that it was concerned only with a potential claim for workers compensation benefits as distinct from modified common law damages under the Workers Compensation Act. A costs agreement was enclosed, reflecting the position under the Workers Compensation Act relating to compensation proceedings, together with authority forms to enable medical reports to be obtained. Indeed, in a file note made on 9 December 1998 Mr Govan recorded the approach from Ms Northey as concerning an injury to the plaintiff at work at "Gay-Lo(sic) Chester Hill at 12/97 started, 2/98 off work" from "n & c (nature and conditions) lifting, etc. Had been working for couple years". Mr Govan subsequently received the medical reports from Dr Rosenberg, Dr Wolfenden, Dr Blake and Dr Limbers, together with the various radiological reports, and said from those reports he formed the view that there was a very real prospect the plaintiff would not satisfy the thresholds in the Workers Compensation Act modified common law damages regime in s 151G to qualify for non-economic loss and in s 151H to qualify for economic loss. Nevertheless, Mr Govan did not seek another legal opinion or consult with counsel. He had concerns also that negligence may not be established against Go-Lo so as to support a common law claim because the plaintiff's injury did not arise from a frank incident other than from the nature and conditions of the work over a period and where there was a pre-existing medical condition in her back.

44 When the matter was listed for the conciliation conference on 1 September 1999, Mr Govan in a file note recorded a prior conference that day with the plaintiff and her mother in these terms (by replacing abbreviations with completed words): "Advised re settlement.

45 By letter dated 2 September 1999 to the plaintiff, Mr Govan confirmed the settlement the day before for $27,500, including that her rights to ongoing medical expenses and weekly benefits (if unable to work because of the injury) were unaffected by the settlement; in addition, it was confirmed that a future significant deterioration in her condition would entitle her to bring a further claim for lump sum compensation. Mr Govan added in the letter: "We regard the settlement as most satisfactory, especially giving(sic) the findings of Dr Blake in his report of 27 August 1999, a copy of which is enclosed. Dr Blake assesses the same impairments as Dr Wolfenden, that is 25% for the back and 15% for the left leg and then proceeds to deduct 50% to take into account the pre-existing constitutional condition for which Dr Wolfenden only deducted 10%.

Section 68A of the Workers Compensation Act states that an employer/insurer is not liable to compensate a worker for that proportion of the impairment which is related to pre-existing constitutional condition.

The Respondent's qualified specialist, Dr Limbers assessed the deductible proportion at 25%, and if Dr Limbers' assessment was accept by the courts you would be entitled to a lump sum of $9,000 only.

We confirm our advice that our legal expenses are to be paid separately by MMI and will not be deducted from the settlement money."

46 After receiving various medical reports as to the plaintiff's condition, Mr Govan, in a letter to her dated 28 April 1999 advised ability "to duly make your claim for lump sum compensation in accordance with the Act and regulations and have done so by letter of even date to the employer and the insurer". He agreed the claim so made was under s 66 and 67 of the Workers Compensation Act, but particularly having in mind s 151A(2) and as to an election between compensation and damages, up to that time he agreed no letter had been sent or advice given to the plaintiff and/or her mother indicating any assessment of modified common law damages. Indeed, that continued to be the position until at least the day before the conciliation conference on 1 September 1999. In response to the proposition that the appropriate time for a client to be given sufficient information to make an informed decision to seek either modified common law damages or workers compensation was well prior to a conciliation conference, he said "Yes, ideally;" in the making of an informed decision, he agreed the solicitor's role was not to dictate to the client but to give them options.

47 Mr Govan was tested extensively under cross-examination of his actions in preparing the plaintiff's case in those respects where he omitted to take necessary steps in respect of a potential common law damages claim. He agreed he dealt with her case primarily as a workers compensation claim even though he understood when speaking on the telephone to the plaintiff and her mother on 9 December 1998 it was for the purpose of them obtaining advice from him as to what the plaintiff's rights and options were; that is, as he agreed, to guide and advise them on what they could do in relation to compensation - as a solicitor, Mr Govan accepted that that was the job undertaken on behalf of the plaintiff.

48 The following significant evidence emerged from Mr Govan as to the necessary and prudent steps to follow, but which he did not do here, in handling the plaintiff's case: "Q. By that date, that is, by the time you went to the conciliation, you had no medical evidence which would allow you to quantify any claim for domestic assistance, is that right?

Q. Well if you assume Blake doesn't address it, then that would be correct, wouldn't it?

Q. No evidence to quantify future out-of-pocket expenses, is that right?

Q. You had no evidence as to what the plaintiff's intentions were in relation to her working career immediately prior to February 1998, is that correct?

Q. You had no description of how the incident occurred apart from the fact it involved lifting, is that right?

A. I cannot recall if we had the claim form and documents from the insurer at that stage.

Q. Even if you had the claim form, it would have been prudent to at least have a detailed statement from the plaintiff as to the system of work adopted, is that right?

Q. It would have been prudent to have a detailed statement from the plaintiff of exactly how the accident occurred, is that right?

Q. It would have been prudent to have from the plaintiff details as to exactly when she noticed any pain or discomfort in what she was doing at the time, is that right?

Q. And it would be prudent to know from the plaintiff exactly what instruction, induction or other safety systems were used within the worksite, is that right?

Q. And you had none of that information before the conciliation, did you?

Q. I want to suggest to you that what ought to have occurred following that first telephone conversation is the plaintiff's claim needed to be investigated to determine each of those things, that is each of the components that she may have been entitled to in a modified common law scheme, do you agree with that?

Q. And that what should have then taken place is the plaintiff should have had explained to her the difference between the two schemes, do you agree with that?

Q. The difference in potential damages between the two schemes, do you agree with that?

Q. The probable damages that she may expect to receive pursuant to both schemes, do you agree with that?

Q. And the nature of the evidence which supported each of those claims, do you agree with that?

Q. And that would then allow the plaintiff to come to a rational and informed decision as to what she wanted to do in relation to her claim, wouldn't it?

49 In what was a very telling admission by Mr Govan in the process followed was his acceptance that what ought to have happened after the initial telephone enquiry was for him to have arranged a conference with the plaintiff and her mother and taken a detailed statement from her as to exactly how the accident occurred and how it was impacting her day-to-day life. He conceded such a course was regularly adopted by him today and it was the sort of practice followed well prior to 1999. He saw no reason in this case why such a conference was not arranged.

50 Notwithstanding the identified omissions in what Mr Govan did or did not do, he maintained that on 1 September 1999 the plaintiff was able to make a reasonably informed decision which was, ultimately, to give him instructions to accept the lump sum offer based on his opinion, albeit without any quantification of modified common law damages, as he said, "No, not in any - certainly not in any - with any precision". That answer is to be seen in the light that Mr Govan agreed that at the time he had no details of what the plaintiff was earning, the domestic assistance she was receiving or any quantification from the medical reports of future out-of-pocket expenses; and he had not obtained any expert report to address the question whether Go-Lo was negligent in the system of work laid down as affecting causation by the work or her pre-existing congenital condition.

51 What emerges from the evidence concerning the parties' relationship, in my view, is that the defendant, through Mr Govan, approached the plaintiff's position as if it were a claim for workers compensation benefits. The availability of modified common law damages, having in mind the omissions to ascertain the relevant elements and their quantification, was not seriously considered by Mr Govan. Even so, he accepted the defendant was retained to advise and act for the plaintiff in relation to the options available in her best interests to obtain under the Workers Compensation Act either compensation benefits or modified common law damages. But that was done without any conference with the plaintiff and her mother, certainly absent any investigation of the system of work at Go-Lo and the circumstances of the plaintiff's injury, and the question of common law damages did not arise until the conciliation conference on 1 September 1999 when the claim under ss 66 and 67 of the statute was settled. In the meantime, Mr Govan took no steps to assess the potential common law heads of damage to enable appropriate advice to the plaintiff. In that respect, I am satisfied, Mr Govan himself formed the opinion that compensation would be preferable to damages, but again in the absence of relevant information, and so advised the plaintiff to accept the offer of compensation, which she did, and so by reason of s 151A(3)(b) it represented an election by her so as to be unable to recover damages.

52 As intimated earlier, the claim was brought against the defendant for professional negligence and/or breach of retainer in acting for the plaintiff in respect of the injuries she sustained in her employment with Go-Lo by reason of the nature and conditions of the work. Essentially, the omissions alleged related to a failure to perform all necessary acts in order to protect the plaintiff's claim against Go-Lo and, in particular, to properly advise her as to her entitlements pursuant to the provisions of the Workers Compensation Act and to make an informed decision thereon. The particulars pleaded of negligence and for breach of contract were consistent each with the other as a result of which it was pleaded the plaintiff suffered a loss of opportunity to pursue a claim for modified common law damages. Damages, interest and costs were sought.

53 The defendant did not admit expressly the existence of any duty of care or relevant retainer contract and, indeed, the primary injury with Go-Lo was not admitted. In any event, breach of the duty and of the retainer was denied as was the fact the plaintiff suffered any loss or damage. Further, if it be found the defendant was liable then contributory negligence by the plaintiff and a failure to mitigate any loss were alleged in that she failed to seek a revocation of the election to take permanent loss compensation in respect to the injury, failed to seek an extension of the limitation period to sue Go-Lo for damages and failed to sue Kells Lawyers and Ms Ens in professional negligence in not advising her to take those first two courses.

54 The defendant pleaded the defence available under s 5O of the Civil Liability Act 2002 that the defendant's employed solicitor in acting for the plaintiff at all times did so in a manner widely accepted in Australia by peer professional opinion as competent professional practice.

55 It should be added that the defendant filed a cross-claim against Kells Lawyers and Ms Ens for contribution and/or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. However, on 12 February 2009 the Court made consent orders in settlement of the cross-claim.

56 In viewing the claim and the defence, it is helpful to have in mind the fundamental way in which the defendant resisted the claim. Senior counsel for him, Mr G Watson SC who appeared with Mr R Goodridge of counsel, submitted: "Could I say at the outset by way of introduction of the whole matter, the plaintiff's case ... rests on a misapprehension or misunderstanding of some importance. There seems to be a general idea that if common law is available it would be a better result for every litigant to pursue common law rather than to retain workers compensation. That is wrong, and in this case we will show ... that it's wrong. It's a common misconception.

There also seems to be a suggestion that if advice rendered is arguably wrong then that's negligence. Well it's not. What is more, advice can be wrong and not be negligent. This case we will show ... points that up. People might have disagreed with Mr Govan but the advice that he gave was not wrong in a manner of what one would describe as being negligent. The case seems to rest upon another misconception that even if the plaintiff had sued at common law she would have recovered substantial damages. We will show ... that was highly improbable. There's another misconception that if the prosecutor (sic) sued at common law she would have recovered substantial damages which would have exceeded the value of the workers compensation. We will show ... that is wrong, in fact, we will show ... that even as of today workers compensation residual rights greatly outweigh any potential value of a common law case, then, now at any time.

...The informed choice if given here would have been in no uncertain terms, you have got a difficult, risky common law case. You have got a real risk of losing in liability ... You've got a real risk of losing the thresholds if you succeed, these are your damages, they'd fall into a likely range of between X and Y and your workers compensation is probably worth many more times than that ...

... because of the views that Mr Govan came to on, firstly, breach of duty of care or liability and, secondly the thresholds. He didn't even have to go to the third step and yet he had already by that stage discharged his duty ... It would be then no damage at all. The plaintiff has put her case on the basis that, ... Ms Ens told her that had she sued at common law, she would have received a big lump sum ... specified as $300,000, and had the plaintiff been told that, she says, well that would have altered my opinion. What's wrong with that is that it denies good practice. In other words, it is agreed between the parties there is a 30% chance of losing the case on liability. There's no agreement between the parties but we will show ... there is a much higher chance of losing; in fact it becomes a probability of losing on the thresholds."

57 In the result, the plaintiff's net claim for damages, after appropriate deductions was for $330,184.09 plus interest from the notional trial date on 1 July 2000 at court rates. The defendant said there was no relevant loss because the future weekly workers compensation entitlements were greater than $600,000 plus medical expenses and compensation for domestic assistance. It was common ground, the correctness of which I accept, that the giving of judgment in the present action, either for or against the plaintiff, would not disentitle her to obtain compensation by way of workers compensation benefits in the future: see Tipper v Williams [1993] NSWCA 269 at 3 and Valmas v Nyman (unreported, 12 November 1996 at 45, NSWSC per James J).

58 An employer has an undoubted non-delegable duty to take care for the safety of an employee, being a duty of an independent obligation of a comprehensive kind to ensure that reasonable care is taken: see Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 and TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1. The duty is that of a reasonably prudent employer to take reasonable care to avoid exposing the employee to unnecessary risk of injury: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307-308. As Hayne J remarked in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 98: "The duty is, of course, not absolute. It is the duty of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury."

59 It is to be added by reference to O'Connor v Commissioner for Government Transport (1959) 100 CLR 225 at 230 that the standard of care for an employee's safety is not of a low order. It should be added also that as the High Court (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ) commented in Czatyrko v Edith Cowan University [2005] HCA 14 in para [14]; (2005) 79 ALJR 839 at 843; (2005) 214 ALR 349 at 353: "Compliance by the respondent, as an employer, with its duty of care to an employee was not to be measured by reference to the reasonableness of imposing on an occupier of land an obligation to warn members of the public about the obvious risks on the land ... It was not a question of warning the appellant of a risk. It was a question of creating a risk by failing to adopt a safe system of work."

60 One may, I think, properly read into this that the common law duty cast on an employer is to be proactive rather than merely reactive in subjecting employees to a particular system and place of work as it is in that way the concept of the "reasonably prudent employer" finds effect. Of course, and as Windeyer J observed in Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 36: "A safe system of work is one that is safe for an average workman taking reasonable care for his own safety."

61 Nevertheless, it is plain from recent authorities that excessive emphasis in describing the employer's duty as "onerous" and as "non-delegable," as some of the earlier cases did, was to be avoided in obscuring the fundamental nature of the employer's duty of care. For instance, in Boyded Industries Pty Ltd t/as Boyded Parramatta v Canuto [2004] NSWCA 256 in para [52] Santow JA, with whom Stein AJA agreed, followed what was said by McHugh J in Liftronic Pty Ltd v Unver (2001) 179 ALR 321 in paras [37]-[38] in commenting on Bankstown Foundry v Braistina as follows: "A trial judge should not approach the issue of negligence on the basis of some perceived principle that there was a heavy obligation on the part of the employer to protect the worker ... the employer's duty is to take reasonable care for the safety of its employees and that what is reasonable is a question of fact to be judged according to the standards of the time."

62 In McLean v Tedman (1984) 155 CLR 306 at 313, Mason, Wilson, Brennan and Dawson JJ put the employer's duty in this way: "The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer ... And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."

63 With those statements of principle in mind I will so approach the present matter.

64 Senior counsel for the defendant emphasised that the chance of the plaintiff establishing negligence against Go-Lo, where the alleged injury arose from the nature and conditions of the work as distinct from a discrete episode, was always risky and it was not a clear case she would succeed. The fact the parties agreed she had only a 70 per cent chance of establishing negligence in a common law action, that is a 30 per cent chance of not doing so, demonstrated the difficulty the plaintiff faced. Even so, Mr Watson did not suggest the plaintiff had an impossible common law case and, indeed, conceded that more probably than not she would have succeeded. Mr K Andrews for the plaintiff, by relying on the medical evidence when read with that of the plaintiff and her mother which was said to be "the subject of little challenge," submitted that due to the nature and conditions of the work performed at Go-Lo the plaintiff in 1998 developed severe back pain with pain radiating into the leg. Accordingly, so counsel put, "duty, breach of duty and causation, are all established as against the employer".

65 It maybe given, I think, and as the cases show, that it is generally more difficult to establish negligence in an employer from a system of work rather than as a result of a discrete incident in the workplace. And that is so because the system of work may well be safe for the average worker but unsafe for a particular worker due to, say, a constitutional condition aggravated by the work and where no discernible act or omission of the employer be shown to exist. Where injury be alleged, as here, from the nature and conditions of the work over a period of time with the presence of a pre-existing congenital fault it may be admitted that the difficulty in showing negligence is increased. That, in short, was the position taken by the present defendant. However, at the end of the day it is a question, in my view, of examining all the circumstances in a particular case to ascertain the true position. It is to be borne in mind also that liability in an employer arises where a plaintiff's injury is not only caused but is materially contributed to by the negligence of the defendant: see Purkess v Crittenden (1965) 114 CLR 164 and Tubemakers of Australia v Fernandez (1976) 50 ALJR 720; (1976) 10 ALR 303. It is sufficient in establishing negligence in the employer to show that its wrongful act may not be the sole cause of any injury as long as it is a contributing cause which is more than negligible; see Chapman v Hearse (1961) 106 CLR 112. And, as Purkess v Crittenden (114 CLR at 166 in para [4]) made clear: "...where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial ... "

66 Workers compensation, of course, is provided as the available statutory remedy where an employee suffers injury arising out of or in the course of employment, even absent negligence or fault in the employer. An injury so sustained from the nature and conditions of work, particularly over a period of time, is the classic situation for the application of workers compensation relief. One must caution, however, that it is not always so limited and the authorities are replete with such cases where negligence has been found so as to support a common law damages claim.

67 Apart from the evidence of the plaintiff herself and of the medical practitioners dealing with the system of work over a period of time, Robert Fogg, a chartered professional engineer with Safety and Forensic Engineering Pty Limited, was qualified by the plaintiff to prepare an expert report on the circumstances surrounding the subject injury suffered by the plaintiff. In his report dated 7 December 2004, Mr Fogg concluded that the injury was "a consequence of an environment that did not afford the minimum requirements needed to support a safe system of work for the work tasks that [she] was required to undertake." Mr Fogg listed eight fundamental factors which, in his opinion, were failures of Go-Lo contributing to the plaintiff's injury. In summary form, they were - (i)in not devising, implementing and sustaining a safe system of work by reference to her young age;

(ii)in not identifying and mitigating the various risks involved with the manual handling of products;

(iii)in requiring the manual handling of items with a weight greater than the recommended weight limit of 4.29 kilograms by the US National Institute for Occupational Safety and Health;

(iv)in not devising, implementing and sustaining a safe system of work requiring manual handling tasks;

(v)in imposing a system of work contrary to accepted practice;

(vi)in not educating, instructing and warning about the risks associated with the manual handling tasks and in the proper methods to reduce such tasks;

(vii)in not complying with the requirements of the Australian Standard AS1470-1986 as to safety practices and procedures within the workplace; and

(viii)in not complying with the requirements of the Australian National Standard for Manual Handling 2005 (1990) of weights above 16 kilograms.

68 I did not understand there to be any issue other than that Go-Lo as the employer had a duty to take reasonable care for the plaintiff's safety at work. As to whether the duty had been breached, I have recited earlier, and will not repeat, the evidence accepted from the plaintiff as to the system of work imposed on her and of the lack of training, absence of direct supervision, no assistance from other employees and unavailability of lifting aids in the performance of her work. Mr Fogg's evidence, which was unchallenged and unanswered so as to be readily accepted, which I do, was support for the proposition that even the average worker in the circumstances found in the doing of the required work would be at a safety risk. It is, in my view, all the more so where the plaintiff did the job of regularly lifting the heavy boxes and stooping as a physically immature teenager from age 13 to 16 years and with a then undeveloped skeletal framework for the heavy lifting work concerned. In determining the standard of care to provide the average worker a child doing the work is to be assessed according to a reasonable child of the same age: see McHale v Watson (1966) 115 CLR 199. The medical evidence, particularly that of both Dr Searle and Dr Bleasel, emphasised the risk of injury of the type which occurred here to a skeletally immature teenager required to do repetitive bending and lifting, especially with heavy weights.

69 I find, therefore, that Go-Lo breached its duty of care to the plaintiff by the identified negligent failures. Any onus on the defendant to show otherwise has not been discharged.

70 As to causation of the plaintiff's injuries, I am satisfied from the medical evidence, as found earlier for the reasons there given, that it has been established against Go-Lo.

71 In the result, I find Go-Lo as the employer was negligent.

Whether the defendant was negligent and/or in breach of the retainer

72 The obligation of a solicitor in acting for a client, such as the plaintiff, injured in the workplace in advising as to potential benefits under the Workers Compensation Act was stated as to the content of the duty in Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 in para [111] by Tobias JA (with whom Giles JA agreed) in this way: "111. The simple fact is that the appellant was entitled to have his common law entitlements properly investigated, appropriate medical evidence obtained and advice, if appropriate, as to how his case might be affected by his drug taking and other aspects in respect of which the solicitor expressed concern. All these matters would need to have been explained to him in a manner that enabled him to come to a rational and informed decision..."

73 Although in the minority in that case, Basten JA commented (in para [136]) in terms of principle that "in order to know what a plaintiff would do, if given advice with respect to a common law claim, it is necessary to identify each of the relevant considerations, including the value of workers compensation payments which would be deducted or would cease; the chances of proving negligence; and the likely damages if a claim were successful."

74 Although not expressly traversed in the pleadings, nor was it admitted during argument, the existence of a duty of care owed by the defendant to the plaintiff and the effect of the retainer accepted by him to act for the plaintiff seemed clearly to be accepted by Mr Govan in evidence. He readily did so in terms that he understood his, and hence the defendant's task vicariously, was to advise the plaintiff of her rights and options in relation to the work injury and to guide her as to what compensation was available. I consider that that bases a professional solicitor-client relationship between the parties and the retainer should be so viewed. I do not think, but as was perhaps faintly suggested during argument for the defendant, that the retainer and obligation to act were limited to the making of a workers compensation claim, as being consistent with the costs agreement, and not to attend to a possible common law claim. The evidence of Mr Govan did not support that narrow view. It then becomes a question of whether the duty so accepted by the defendant was complied with or negligently breached.

75 Earlier after reciting the evidence from the plaintiff, Ms Northey and Mr Govan as to the relationship between the parties, I stated what I considered emerged from that evidence. On their face, the there identified omissions by Mr Govan, in my view, were contrary to the proper exercise of his duty to the plaintiff, as so referred to in Chamberlain v Ormsby, so as to enable her, not Mr Govan, to reach a rational and informed decision as to the option to pursue. She was denied that opportunity. The defendant, therefore, relevantly breached the duty owed to the plaintiff and was negligent in doing so.

76 Nevertheless, it was submitted by the defendant's senior counsel against any such finding that Mr Govan's advice to the plaintiff was adequate as he acted on instructions and, in any event, it was correct advice given the plaintiff's unlikelihood of success at common law in establishing negligence and in overcoming the statutory thresholds in ss 151G and 151H. The parties' agreement that she had a 30 per cent prospect of failure in the notional common law trial established the risky and uncertain course she faced thus supporting Mr Govan's approach. It was put by senior counsel that s 5O of the Civil Liability Act operated as a defence to the honest opinion formed by Mr Govan.

77 The answer to senior counsel's submissions, I think, may be shortly stated even accepting an honest belief held by Mr Govan which, reasonably, should have led him to suggest the plaintiff obtain a second opinion, seek counsel's advice or retain another solicitor. In any event, the failures by Mr Govan in acting for the plaintiff really commenced with him proceeding based on the initial telephone discussion on 9 December 1998 without a conference from which point he clearly proceeded to prepare her claim as a workers compensation case only; thereafter his dealings with the plaintiff were by letters to her and it was not until the conciliation conference on 1 September 1999, when settlement occurred, that common law rights were advised as being extinguished on her acceptance of the settlement offer. Even then, the rights she was thereby giving up were neither fully explained nor quantified by Mr Govan.

78 It ought be mentioned too that a 70 per cent chance of success at common law represents a major and substantial chance which, in my view, could not be described as risky and uncertain, and certainly not speculative. All litigation has risks.

79 To the extent it may be necessary, I refer to the evidence for the plaintiff from Justin Peter Clarke, a solicitor. Since 2003 he has practised as a special counsel for Keddies Litigation Lawyers and is an accredited specialist in personal injury law. After admission as a solicitor in 1977, Mr Clarke has practised widely in the areas of common law, worker compensation, commercial litigation, insurance law and family law; he has held appointments as an arbitrator with the Supreme Court and District Court and as a costs assessor of the Supreme Court. Currently a CARS assessor for the Motor Accidents Authority and a member of its Paediatric Panel, Mr Clarke has participated as a panel member in seminars on the CARS system. After being asked to provide an opinion as to whether the plaintiff may have a claim against the defendant for damages in acting for her, a report dated 9 January 2009 was provided by Mr Clarke. The report was relied upon to show that Mr Govan was negligent in acting for the plaintiff by doing so in a manner not widely accepted in Australia by peer professional opinion as competent professional practice.

80 Whilst I found Mr Clarke's report instructive, I was troubled by its standing as proper expert evidence and, on balance, I have not relied upon it in reaching my conclusions even though, as is open, the Court has reached similar conclusions. I respectfully adopt the reasoning of Levine J in O'Brien v Gillespie (1997) 41 NSWLR 549 which, in my view, is directly apposite to the present case. His Honour remarked (at 551): "It appears to me that Mr Penhall has been asked a series of questions in his capacity merely as one solicitor leading to the expressions of opinion and comment upon the conduct of another solicitor. There is no material in Mr Penhall's affidavit in terms of his training, study or experience, in my view, to elevate him to be a person with the requisite specialised knowledge based upon those qualifications within the meaning of s 79 ( Evidence Act 1995) nor was any such evidence sought to be adduced."

81 Mr Clarke's stated relevant experience, in effect, was as a solicitor, albeit an accredited specialist engaged in personal injury litigation. Nowhere, however, did he set out his specialised knowledge from training, study or experience to enable s 79 of the Evidence Act to operate to overcome the exclusionary opinion rule in s 76. As Hodgson J said in Rabelais Pty Ltd v Cameron (unreported, NSWSC, 8 February 1993) - "What this duty requires in the particular circumstances of each case is a matter for the Court to determine. In coming to this decision the court may be assisted by expert evidence. Certainly, such evidence may go to professional standards laid down by a professional institute or regularly practised: see Midland Trust Bank Co Ltd v Hett Stubbs & Kemp [1979] Ch 384 at 402." Mr Clarke's opinion was not so based.

82 The defendant, as I have said, relied upon s 50 of the Civil Liability Act to avoid liability by referring to the agreed 30 per cent chance the plaintiff would not succeed in a common law action. Otherwise, no evidence of an expert nature was offered by the defendant to support the s 5O argument. The section operates as a defence: Dobler v Kenneth Halverson [2007] NSWCA 335 in paras 59-61 per Giles JA, with whom Ipp and Basten JJA agreed. I do not see how the agreed chance relevantly applies to s 5O so that, in the absence of evidence, I disallow this defence.

83 Finally on this aspect as to causation, I am satisfied on the plaintiff's evidence overall that had she been advised there was a viable common law action against Go-Lo and that it would probably result in the thresholds in ss 151G and 151H being exceeded then she would have pursued the modified common law entitlements to obtain a lump sum. It is true the plaintiff said it was important to her to have available a future resource to pay any medical expenses needed, but she added that it was of little difference to her whether that could be by way of lump sum damages or an ongoing workers compensation right. In any event, as she said, had she received a lump sum as damages she would have invested the money to use as required in the future.

84 The defendant pleaded, although but only faintly argued during submissions, contributory negligence by the plaintiff in herself causing or contributing to any loss and damage as a result of the alleged defendant's negligence. This was said to arise by her failure to make a claim for work injury damages against the employer, failure to make an application to revoke the election to take the workers compensation permanent loss lump sum, failure to make an application to extend the limitation period to bring a common law action and failure to take action in professional negligence against the lawyers later retained by her in not advising her to take such actions. The same matters were pleaded also as failures by the plaintiff to mitigate any loss and damage she suffered.

85 It would, in my view, be a very rare situation in a professional negligence type action as here that a plaintiff would be found to have so contributed to her own loss. After all, and it is the present case, the plaintiff relied on the professional advice of the defendant through Mr Govan in guiding her as to appropriate and available action she could take in a situation where she had no knowledge or experience. She was dependent on that advice to enable the making of a rational and informed decision as to the best course to suit her position. Indeed, after the settlement at the conciliation conference on 1 September 1999 Mr Govan in a letter to the plaintiff of 2 September 1999 said "We regard the settlement as most satisfactory..." It was not until about September 2002, when her condition deteriorated and the defendant said nothing could be done and she should consult another solicitor, which she did, that Kells Lawyers and Ms Ens advised her as to her previous options against Go-Lo and so the present proceedings commenced after those lawyers further investigated her potential claim. However, by then it was more than three years since the lump sum settlement was obtained in September 1999, nearly five years since the injury in February 1998 and nearly two years since the common law limitation period expired in February 2001 - time was continuing to run as investigations of the plaintiff's condition and the relevant facts proceeded until 9 August 2005 when the present statement of claim was filed. To do as the defendant suggested would have required multiple proceedings, with their own attendant risks, in both the Compensation Court for revocation of the election and in this Court for an extension of the limitation period and then, if successful, a further action in this Court for damages against Go-Lo. The defendant would thereby avoid any exposure to liability but where he was, on Ms Ens advice and as it has proven to be, liable to the plaintiff for professional negligence. Time was against the plaintiff in taking those other courses.

86 Decisively on this aspect, however, is the fact that any action against Go-Lo required a revocation of the election she made on 1 September 1999 to accept permanent loss compensation. Under s 151A(5) of the Workers Compensation Act, one of the preconditions the plaintiff would have had to establish was stated in para (c) as being that "at the time of the election, there was no reasonable cause to believe that the further deterioration would occur". In light of the medical evidence then available, which included radiological evidence of disc protrusions at three levels in the spine and Dr Rosenberg's view of a high risk of ongoing problems with the need for work restrictions, the possible need for surgery to excise the protrusions and a lumbar fusion, the plaintiff's chance of successfully obtaining a revocation of the election would have been very slight indeed as not satisfying para (c) of s 151A(5). The views of Dr Wolfenden, Dr Patapanian and Dr Blake would suggest a similar result.

87 I find no contributory negligence. The plaintiff did not fail to mitigate her loss as she took the only action reasonably open to her. Those claims are dismissed.

88 The proper approach in the determination of damages in a case such as this against the defendant as a negligent solicitor was considered by the High Court in Johnson v Perez (1988) 166 CLR 351 and in Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394. As Mason CJ commented in that latter case (in para [5]) "a court's goal is to determine what amount of money would put the plaintiff in the position he would have been in had the solicitor not been negligent."

89 For this purpose, the parties were agreed that the date of a notional common law trial was 1 July 2000 so that the process to determine damages due to the plaintiff required an assessment as at that date of the modified common law damages with deductions to be made at the appropriate point or points for solicitor-client costs in the notional proceedings, for past workers compensation payments, for future workers compensation entitlements and for the loss of chance in relation to the risks involved in being successful in the original trial against the employer. These matters need be attended to in turn.

90 These damages fall for assessment under Div 3 of Pt 5 of the Workers Compensation Act. In doing so, I have had in mind the findings earlier made in this decision and, not wishing to be repetitive, in dealing with each respective head of damage would propose to limit reference to the main aspects in summary form.

91 Non-economic loss: Mr Andrews for the plaintiff claimed an amount of $90,660 being 40 per cent of a most extreme case for which s 151G(3) prescribed the maximum of $226,650 at the relevant date of the injury. Counsel for the defendant suggested a figure of no more than 15 to 20 per cent for what was submitted to be a minor aggravation of the main problem being a pre-existing constitutional condition of pars defects in the spine - 20 per cent resulted, by applying the then thresholds in s 151G(5), in an amount of $37,320; an assessment of 15 per cent would result in no amount for non-economic loss.

92 The plaintiff, it is true, had the stated pre-existing condition in her spine. However, it was asymptomatic and she was able to engage in the usual teenage activities, attend school and participate in sport. At 13 years of age she started part-time work at Go-Lo for 12 hours a week after school and on Saturday to earn money. She long-held the career ambition to be an airline hostess. Due to the nature and conditions of the work over a period of a few years with the lifting of heavy boxes, stooping and bending she sustained disc protrusions in her spine at three levels which, in February 1998 at age 16 years, caused her to cease the work. Later that year as a consequence of the continuing back and left leg pain she left school and stopped participation in sport. The medical evidence demonstrated a future incapacity with the back condition to engage in such lifting work or to hold a job requiring prolonged standing or sitting as there was a need for her to be able to adjust position as required from time-to-time. A job in a sedentary type occupation was identified as suitable such as office work and the career ambition of becoming an airline hostess was lost. Understandably, she said that was a great disappointment to her and she has experienced feelings of anxiety and a depressed mood in adjusting to her condition. In the future, she faces continuing problems with her back and with the likelihood of surgery to excise the disc protrusions and to have a spinal fusion at two levels. As a single mother with three young children, the plaintiff needs domestic assistance on a regular weekly basis with the heavier tasks. At the notional trial in July 2000 she was aged 19 years with a life expectancy of 69 years.

93 I would assess non-economic loss at 35 of a most extreme case, that is, $79,327.50. In doing so, I emphasise that the plaintiff's school and teenage years, young adult life, career ambitions and prospects for the future have been most seriously affected by this injury.

94 Past out-of-pocket expenses: As at the notional trial date these expenses had been paid by the workers compensation insurer and were in the agreed amount of $2,350.80.

95 Future out-of-pocket expenses: The plaintiff's claim was for $143,579.46 made up of attendance on medical practitioners, medication and physiotherapy/hydrotherapy; this last-mentioned service involved $123,414.73 for sessions twice weekly at $50.00 per attendance. Given that up to the time of the notional trial the amount spent on physiotherapy/hydrotherapy was in the order of $5.00 per week, the defendant simply said the claim was way to high.

96 The likely future expenses, given the plaintiff's young age and medical options for the future depending upon how her condition proceeds, are difficult assess. She certainly continued visits to a general practitioner and specialists, received physiotherapy/hydrotherapy (replaced by a gymnasium programme) and took medication for pain; surgery was a real prospect.

97 I would allow $5.00 per week for attendance on a general practitioner; specialist consultations at $5.00 per week; physiotherapy/hydrotherapy/gym attendance at $50.00 per week; and $10.00 per week for medication - a total of $70.00 per week, giving an amount of $72,275 (multiplier of 1032.5 on 5% tables). In addition, allowance for surgery of $20,000 should be made but deferred for 10 years, resulting in an amount of $12,280 (multiplier of 0.614 on 5% tables).

98 The total amount for future out-of-pocket expenses is thus $84,555.

99 Economic loss: Section 151H(1) precludes an award for economic loss unless the plaintiff has received "a serious injury". Relevantly here, s 151H(2A)(b) defines such an injury as one for which damages for non-economic loss of not less than $53,350 are to be awarded. The plaintiff has been assessed for non-economic loss of $79,327.50 as 35 per cent of a most extreme case so that the statutory threshold has been met for her injury to be serious and thus enable economic loss damages to be allowed. I mention that the threshold of $53,350 is 23.5 per cent of a most extreme case.

100 For the past, economic loss was in the agreed amount of $2,445.62 being $71.93 per week for 34 weeks from 3 August 1998 when the plaintiff ceased work at Go-Lo to May 1999 when she commenced work as a receptionist. There is no lost superannuation on this amount as employment was as a casual.

101 For the future, economic loss was seriously disputed between the parties. Mr Andrews based his reasoning on the plaintiff's strong work ethic and her ambition to be an airline hostess (flight attendant) and submitted it was extremely likely she would have pursued that career path even to the extent of becoming a customer service supervisor or manager in the airline industry. Counsel then compared the earnings in such occupations with the average weekly ordinary time earnings for females which showed, in generally approximate terms, that the airline industry career path gave between $300 and $400 per week more. An amount of $300 was then used as the measure of the plaintiff's loss to age 60 years giving, with a 20 per cent reduction for vicissitudes, a claim of $221,952.

102 Senior counsel for the defendant, Mr Watson, identified a number of improbabilities to show the claim was, as he said, "miles too high". Those matters were: that an average student with a serious congenital spinal problem would have progressed through unsuitable employment to a managerial position; that she was always and only best suited to a job as a receptionist; and an assessment of 20 per cent for contingencies was too low given the spinal problems and time out of the workforce to have a family.

103 I accept the plaintiff's evidence of her career ambition and that she would have pursued it. I accept too Ms Northey's evidence that the plaintiff had a high work ethic - so much is clear from her desire to work part-time from when she was only 13 years of age. However, the medical evidence, particularly that of Dr Rosenberg, was to the effect that the congenital pars defects in the spine would eventually mean the plaintiff was in any event best suited to sedentary office type work. Indeed, that was her second career choice when she completed the TAFE administration course and obtained work as a receptionist with a number of employers.

104 I consider the plaintiff, with her pre-existing spinal problems, would not have persisted with a career in the airline industry but rather would have engaged in clerical/administrative type work in an office. That reduces the loss as calculated by Mr Andrews. The plaintiff clearly has a reduced work capacity by reason of the subject injury but is, and will likely continue, partially incapacitated. She mentioned in evidence an intention to obtain employment part-time for 20 hours a week.

105 Doing the best one can on the evidence, I would assess the plaintiff's weekly loss at $200 per week to normal retirement at aged 65 years. Taking into account the pre-existing spinal problems and time out of the workforce to raise a family (not inconsiderably so as it in fact turned out), I think the reduction for vicissitudes should be 30 per cent.

106 I would therefore allow for future economic loss $200 per week for 46 years to normal retirement at aged 65 years in the amount of $133,854 (multiplier of 956.1 on 5% tables, less 30% for vicissitudes).

107 Superannuation: As agreed by the parties, I assess superannuation on future economic loss by grossing the net loss of $133,854 to $160,624.80 (multiplying by 1.2) and calculating 9 per cent of the gross figure as the superannuation component. That gives an amount of $14,456.23.

108 Domestic assistance: Mr Watson took the position that no amount, past or future, would be allowed for this aspect of domestic care. Indeed, senior counsel said it was not even arguable in that as at the date of the notional trial the plaintiff had completed the full-time TAFE course and was working full-time as a receptionist. Mr Andrews, on the other hand, claimed $3,749.04 for past assistance of two hours per week and $62,941.20 for future assistance of four hours per week for the balance of the plaintiff's life.

109 During the period before the notional trial date the plaintiff lived with her grandmother after her parents moved to the Central Coast in February 1999 and most of the housework was done by her grandmother and aunt. Thereafter, the plaintiff lived with her partner and his brother from late-2001 until about March 2002. At present living with her three children as a single mother, the plaintiff said domestic cleaning and washing and care was received from her mother for four hours each week.

110 The then operative section 151K of the Workers Compensation Act as to the provision of home care services enable the value of such services to be included in an award of damages but, as subs (3) provided, no compensation was to be awarded if the services would have been provided to the injured person if no injury had occurred; that is, as I understand it, because the injured person did not provide the services before the injury but someone else did so. The difficulty here, of course, in assessing this component is that at the time of the injury the plaintiff was a school student and at the time of the notional trial age 19 years she had been living with her grandmother for about 18 months.

111 On the state of the evidence, I am unable to contemplate any award for past domestic assistance because there was no sufficient evidence what domestic services the plaintiff did before her injury. However, as to the future I think it reasonable to infer that in her own home as an adult, either alone or with a partner, she would perform household tasks of cleaning and washing. Those tasks, to the extent bending and lifting was required, on the medical evidence as a result of the injuries sustained would be contraindicated. Indeed, at present she receives four hours each week of assistance from her mother and there was no challenge to this evidence.

112 I will allow future domestic assistance of four hours per week for the balance of the plaintiff's life at the then statutory rate of $15.24 per hour. The resultant amount (multiplier of 1032.5) is $62,941.20.

113 Summary of damages: In summary, the common law damages I would allow as at the notional trial date in July 2000 for personal injury against Go-Lo would be $79,327.50 for non-economic loss; $2,350.80 for past out-of-pocket expenses; $84,555 for future out-of-pocket expenses; $2,445.62 for past economic loss; $133,854 for future economic loss; $14,456.23 for superannuation loss; and $62,941.20 for future domestic assistance - the total is $379,930.35.

114 Pursuant to s 151M of the Workers Compensation Act interest may be payable on damages and in this matter under the section such interest would be limited to that on past economic loss of $2,445.62 and past domestic assistance (which has not been allowed) for the period from the injury on 12 February 1998 to 1 July 2000 as the notional trial date. Even so, any award would require evidence, of which there is none, of the employer failing to make a reasonable offer of settlement. No interest amount was sought by Mr Andrews, I will not allow for it.

115 It is necessary to assess various items as deductions to be made to the determined modified common law damages, namely solicitor/client costs in the notional common law trial; past workers compensation payments; future workers compensation entitlements; and loss of chance. Each will be considered in turn and later I will deal with how and at what point such elements are to be deducted.

116 Solicitor-client costs: Mr Andrews conceded that the defendant was entitled to deduct a component for the solicitor/client costs which would not have been recovered if the proceedings against the employer had been brought. Noting the evidence of Mr Govan of an estimate of such costs as $40,000, counsel submitted a figure of $20,000 was appropriate having in mind the common use of offers of compromise under the court's rules and Calderbank letters which, if used here by the plaintiff, would have substantially reduced the $40,000 amount. Mr Watson pressed for a deduction in the full amount of $40,000 as being the only evidence available.

117 I accept Mr Govan's was the only evidence on this issue but, in my view, one may, indeed ought, reasonably have in mind, as Mr Andrews suggested, the use of compromise offers. I will do so. Also, Mr Govan could only be very approximate in his estimate of costs because in this particular case he managed it as a workers compensation claim.

118 I will allow an amount of $25,000 for the solicitor-client costs deduction.

119 Past workers compensation benefits: As stated earlier the workers compensation payments made by the insurer from the date of injury to the notional date of trial were a total of $32,929.37 made up of $2,350.80 for medical expenses, $3,078.57 for weekly compensation and $27,500 lump sum; thereafter to 31 December 2008 an additional amount of $54,264.33 was paid made up of $28,618.38 for medical expenses, $12,929 for weekly compensation and $12,716.95 lump sum - the total paid was $87,193.70.

120 Mr Andrews put that that was the appropriate amount to deduct for past workers compensation. On the other hand, Mr Watson put that the only deductions to be made at this point were for the medical expenses and weekly compensation paid up to the notional date of trial on 1 July 2000, an amount of $5,429.37; the lump sum amounts totalling $40,216.95 under ss 66 and 67 should not be then deducted because the premise of the notional trial was, in effect, an election not to take those lump sums but rather damages so that such amounts should be taken into account later when calculating the net present value of workers compensation entitlements. The point made is of significance because a real monetary difference could result depending upon whether the workers compensation benefit should be deducted either before or after the percentage deduction for the loss of chance.

121 In any event, the amounts have been identified. For myself, I am inclined to Mr Andrews' approach in considering the amounts in total up to 31 December 2008 because the lump sums are analogous to non-economic loss and fall to be deducted, with the medical expenses and weekly compensation, as actual benefits received already in this professional negligence action for loss. At what point in the process they should be deducted is, of course, quite another question.

122 Future workers compensation entitlements: Mr Andrews calculated these in the total amount of $189,844.55 made up of $113,323.22 for medical expenses and $76,521.33 for weekly compensation but with no allowance for domestic assistance or lump sums under ss 66 and 67. Mr Watson, although not in a precise way, calculated these as covering payments made since 1 July 2000 as well as those likely to be made in the future. Senior counsel did so on the basis that the plaintiff had presented a case which, if accepted, would entitle her to a full award of weekly compensation to the day before she turns 66 years plus amounts for dependant children plus a large sum for medical expenses plus "top up" lump sum payments under ss 66 and 67 plus domestic care. In the result, senior counsel assessed even those future weekly entitlements in an amount greater than $600,000 plus the other amounts. Deduction of this sum from the lower assessed common law damages resulted in no loss and, indeed, showed the plaintiff was better off under the workers compensation regime than common law.

123 I immediately should observe that I did not understand, but as Mr Watson maintained, the plaintiff's case to have been presented as if she were totally incapacitated. Reference was made by Mr Andrews to s 40 which deals with weekly payments during partial incapacity. I have held already she was partially incapacitated only so that the fundamental approach adopted for the defendant in calculating future workers compensation entitlements is flawed. Further, the reliance on s 37 to bring into calculation payments for dependant children is referable to any period of total incapacity of the worker and not partial incapacity.

124 It was common ground that the plaintiff is entitled to further lump sum payments under ss 66 and 67 if substantial aggravation of the injury occurred in the future. The defendant said an additional amount of $9,783.05 was, on the medical evidence, available to bring the total of such payments to $50,000. The plaintiff's counsel took the position that there was no evidence there would be a substantial increase in the plaintiff's disabilities, as opposed to any pre-existing or congenital condition as referred to in s 68A, so that no deduction should be allowed for this element. I cannot but agree with this lack of evidence submission and add my understanding of the medical evidence as being that the injury had stabilised according to the disabling impairments as quantified. I will make no deduction.

125 As to future medical expenses to be deducted, the plaintiff's approach was to accept the actual payments made by the insurer and for a deduction to be made of the assessed amount of such expenses in the notional trial less those paid since 1 July 2000. Counsel for the defendant urged a much larger sum to be deducted based on the plaintiff's evidence of an extensive array now of treatment. I will follow Mr Andrews' practical approach, reasonable as I think it is, so that $55,936.62 will be deducted for this element being $84,555 less $28,618.38.

126 As to future domestic assistance, the plaintiff's counsel maintained no deduction should be made by reason of an amendment made to the Workers Compensation Act by the Workers Compensation Legislation Amendment Act 2004 commencing on 9 July 2004 by inserting a new provision in sub-s (3) of s 60AA to the effect that compensation for such assistance was not payable unless the person providing the assistance had lost income or had foregone employment by doing so. Consequent upon the amendment, cl 3 of Pt 18H of Sch 6 to the statute provided that the amendment to s 60AA did not apply to domestic assistance provided before 9 July 2004 but otherwise extended to apply in respect of an injury received before that date. The domestic assistance given the plaintiff by her mother of four hours per week was in the absence of any evidence Ms Northey had lost income or had foregone employment to do so. Therefore, there was no entitlement to domestic assistance, and so no deduction to be made, after 9 July 2004. However, the amendment, whilst applying to an injury as here received before that date, did not apply to domestic assistance received beforehand which was four hours per week and so, by reason of s 60AA(2), provided on a temporary basis. Even so, the unamended previous provisions of s 60AA set out in sub-ss (1)(a)-(c) and (2) conditions for the entitlement to domestic assistance. There was no evidence before me that those conditions were satisfied as to the plaintiff. For instance, there was no relevant certificate by a medical practitioner of a functional necessity for the assistance (sub-s (1)(a)), and even though Dr Bleasel assessed a 19 per cent whole person impairment, or that the assistance was provided pursuant to a relevant injury management plan (sub-s (2)(c)). Accordingly, no deduction should be made for future domestic assistance.

127 Future entitlements to weekly compensation was a major issue. It raises difficult issues in calculation. I have referred already to the defendant's approach. The plaintiff's case involved the proposition, based on her work capacity and intention to return to the workforce when her children were older, that she would not make a claim, or would even be entitled to make a claim, pursuant to s 40 of the Workers Compensation Act. If it were accepted she would make a claim then it was a matter of assessing the likely amount she would receive. Mr Andrews calculated this as $76,521.33 according to weekly earnings of $76.69, the maximum amount of previous weekly benefits, to age 60 years but deferred for five years to cater for the children reaching school age.

128 I propose to assess likely future entitlements to weekly benefits of compensation in a similar way as future medical expenses were treated. In doing so, I understand this is a compromise between the extremes put by counsel and it also uses the 5% tables instead of the 3% tables for such purposes. Even so, in my view it represents a fair and reasonable approach to an assessment of this element which otherwise has much uncertainty about it looking so far into the future and in very uncertain circumstances. Indeed, I did consider at one stage of my deliberations a buffer approach for this element of around $100,000 but, finally, I opted for the approach taken as more accurate and supportable. I accept the assessment of future economic loss in the notional trial of $133,854 as a reasonable measure based on $200 per week as compensation for partial incapacity less weekly benefits paid since 1 July 2000 of $12,929 giving an amount of $120,925 which should be deferred for five years until the children settle into school. I will therefore deduct the resultant amount of $94,805.20 (deferred multiplier of 0.784 on 5% tables) for future weekly compensation.

129 The deductions to be made for future workers compensation entitlements is $55,936.62 for future medical expenses and $94,805.20 for future weekly compensation - the total is $150,741.82.

130 Loss of chance: Mr Andrews followed the parties agreement as to a 70 per cent chance of success by the plaintiff in the notional common law trial so as to submit that the appropriate deduction for the loss of chance would be 30 per cent. Mr Watson submitted it should be higher. I accept the appropriate deduction is 30 per cent as the measure of the plaintiff's risks in the litigation. The question is as to what amount the percentage is to be applied to and that raises the issue of the point at which the deductions are to be made from the assessed notional common law damages - future workers compensation payments first and then loss of chance on the resultant amount or vice versa.

131 Time deductions to be made: It was put for the plaintiff that the deductions for the workers compensation entitlements in the future should be before the 30 per cent loss of chance deduction whereas the defendant submitted the other way around so as to facilitate the valuation of the lost chance.

132 In Chamberlain v Ormsby this issue arose for consideration. The majority of Giles and Tobias JJA, did not have to determine the question and Basten JA, in the minority, did consider it but came to no concluded view. Counsel before me advised that there was no authority directly on the point. In para [143], Basten JA referred to Green v Berry [2001] 1 Qd R 605 to the effect that there Pincus JA, McMurdo P agreeing, expressed the view that to first deduct for the loss of chance was to be doubted because that would mean deducting for, say, a 50 per cent chance of success whilst discounting on the basis of a 100 per cent chance of losing a workers compensation payment. Mr Andrews' approach was to say that to deduct for the loss of chance prior to a deduction for future workers compensation payments would be to fail to have regard to the uncertain nature of those payments. I think Mr Andrews' approach is logical. After all, the present action is one for professional negligence where the primary task in assessing the resultant loss is to assess the common law damages in a notional trial where such damages, without more, would have been subject to a reduction for workers compensation benefits already received; future benefits may be seen in the same category. To deduct first for the loss of chance would be to do so on a higher amount than that which the plaintiff was actually to receive, even in a notional sense as in this present action.

133 Accordingly, I propose to deduct the loss of chance percentage calculated on the balance after the workers compensation deductions have been made.

134 On the basis of the findings made, I calculate damages due to the plaintiff in this action as modified common law damages of $379,930.35. A deduction of $262,935.52 is to be made for $87,193.70 for past workers compensation payments, $25,000 for solicitor-client costs and $150,741.82 for future workers compensation entitlements - the resultant amount is $116,994.83. That amount is to be reduced by 30 per cent for the loss of chance, giving a net amount due to the plaintiff of $81,896.38.

135 The plaintiff claimed interest at court rates from the notional date of trial on 1 July 2000 to the date of judgment; the amount is yet to be calculated by the parties who wished to await these reasons for decision on the primary issues. The defendant expressly sought an opportunity to address this issue.

136 The plaintiff is entitled to a verdict of $81,896.38. I will hear the parties on interest and costs before making final orders.

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