Un v Schroter & Ors [2003] NTCA 2

First and Second Respondent: S. Southwood QC and M. Grant

Un v Schroter & Ors [2003] NTCA 2

[1] On 1 May 1995 the appellant was the subject of a sexual assault committed by a fellow employee in the course of her employment. She complained to her employer who, because the fellow employee was a more valued employee, terminated the employment of the appellant. Not surprisingly she was upset and angry over this turn of events. She reported the matter to the police and she also consulted the second respondent, a solicitor, in Alice Springs.

[2] The second respondent took instructions from the appellant and then, on or about 10 May 1995, provided her with written advice. In that advice the second respondent identified three remedies that the appellant "may care to pursue". These remedies were proceedings for unfair dismissal, an application for compensation under the Sexual Discrimination Act (Cth) and an application for an assistance certificate under the relevant Northern Territory crimes compensation legislation.

[3] On 14 May 1995 the appellant returned to Darwin from Alice Springs and, on 17 May 1995, attended at the offices of the Northern Territory Legal Aid Commission ("the Commission"). At the Commission she was seen in a 15 minute advice clinic and thereafter she applied for a grant of legal aid. Aid was granted for her to pursue an application under the Crimes (Victims Assistance) Act and, although it was initially refused, she was also granted aid to pursue proceedings for unfair dismissal. The appellant consulted the Anti-Discrimination Commission regarding the sexual harassment in the workplace and proceedings were taken on her behalf in that jurisdiction.

[4] In 1998 the appellant commenced proceedings against the Alice Springs solicitors and against the Commission alleging that each failed to advise her as to her eligibility to claim compensation under the Work Health Act 1986. She alleged that as a result of the failure of each of the solicitors to advise her in relation to the potential for proceedings under the Work Health Act she lost the opportunity to pursue those proceedings. In particular she said that she was unable to provide a notice of claim for compensation within the time limited under the Act and that her application for an extension of time was unsuccessful.

[5] The matter was heard in the Supreme Court and on 10 January 2002 judgment in favour of the respondents was entered. The learned trial Judge found that the Alice Springs solicitor and one of the solicitors from the Commission were each negligent in failing to have been alert to the existence of a possible Work Health Claim. In the case of the Alice Springs solicitor it was held that she was negligent for not having drawn the attention of the Commission to that claim. In relation to the Commission it was held that the solicitor who provided assistance at the clinic session should have "deferred her assessment of the plaintiff's possible remedies and eligibility for legal aid until more time could be given to the task either by herself or someone better skilled in that field of law." The Commission was held to be vicariously liable for the negligence of the solicitor.

[6] The learned trial Judge then went on to consider the issue of causation. He noted that there was an onus on the appellant to establish on the balance of probabilities that had she been advised of the possibility of a Work Health claim she would have instructed those advising her to protect her position by the giving of the required notice within time. When she gave evidence in the Court below there was no direct evidence from the appellant that she would have given those instructions. She was not asked any question on this issue by her counsel. However submissions were made on her behalf in which the Court was invited to draw an inference in her favour from other known facts. In the course of his judgment the trial Judge made reference to those facts and dwelt at some length upon the failure of the appellant to give evidence on the precise issue. His Honour concluded that he was not persuaded to draw the inferences sought by the appellant and held that her claim foundered on the basis that she failed to establish that had she been properly advised she would have taken steps such that the loss which was said to have occurred would not have occurred. Judgment was therefore entered for the respondents.

[7] The appellant appeals against that decision. Each of the respondents has delivered a notice of contention challenging the findings of negligence made against each of them.

[8] The appellant complained that his Honour erred in law and in fact in the manner in which he dealt with the issue of causation. Although expressed in various ways the complaint of the appellant was that his Honour erred in finding that causation had not been established "because direct evidence was not led from the appellant as to what she would have done to protect her position regarding the making of a Work Health claim had she been advised of the possibility of such a claim". It was submitted that his Honour failed to analyse other non-direct evidence which was relevant to drawing an inference on the issue of causation and that he failed to draw the inference that the appellant would have instructed the respondents to give the required notice pursuant to the Work Health Act and make a claim under the Act had she been properly advised.

[9] The submission on behalf of the appellant was that his Honour focused upon the failure of the witness to give evidence on the issue and failed to give proper weight to other matters. The evidence of the appellant as to what she "would have" done is but one matter to be considered in determining, on the balance of probabilities, what she would have done. Reference was made to Fitzpatrick & Anor v Parker & Anor (1997) 9 ANZ Ins Cas 61-344 where Priestley JA (at 76,767) said:

"The fact that the question which would have clinched the matter was not asked at the trial is not in any way conclusive of what the proper inference to be drawn should be. It was necessary for the trial judge to ask what on the probabilities would have happened had the proper advice been given. That is the question which this Court also must ask itself. There doesn't appear to be anything in the trial judge's factual findings which precludes this Court from looking at that question for itself. The Court is in as good a position to consider the materials as the trial judge was, taking into account his view of the plaintiff which, to put it broadly, was a favourable one so far as his credibility was concerned."

[10] It is far from clear that the learned trial Judge erred as suggested by the appellant. In his reasons for decision his Honour observed:

"Unless the plaintiff has shown that she would have instructed the solicitors to protect her position by giving the required notice, she cannot show any loss due to their default. The loss, if any, would be caused by her deciding not to give those instructions. There is no direct evidence that the plaintiff would have given those instructions, but she invites this Court to draw an inference in her favour from other known facts. For example, she pursued the remedies upon which she was given advice, commenced the work health claim out of time and unsuccessfully attempted to overcome the lack of requisite notice in the Work Health Court and on appeal."

[11] His Honour went on to consider the submission made by the respondents that "it is not open to draw the inference sought by the plaintiff where there was no attempt to prove by direct evidence and the principles of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 should be applied." His Honour referred to Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418; Pratt v Hawkins (1993) 32 NSWLR 319 at 323, and White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169 at 227. In Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd Handley JA said [at 418] that "inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions."

[12] His Honour noted that different considerations applied in the present case but went on to observe that "an unexplained failure to give evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted her case." In our view it is clear that his Honour was not there excluding a consideration of all of the surrounding circumstances and focusing simply upon the failure of the appellant to give relevant evidence. However he did consider that to be a significant factor in the assessment being undertaken. He went on to conclude that "[t]he inference she seeks to have drawn is no more likely than that advanced by the defendants." Contrary to the submission of the appellant his Honour considered more than the mere fact that there was a lack of direct evidence in this matter.

[13] In any event the learned trial Judge was, in our view, correct in reaching the conclusion that the appellant had not established that, had she been properly advised, she would have taken the necessary steps to protect any potential claim under the Work Health Act.

[14] The advice that should have been given to the appellant on the occasion that she saw each of the respondents must be considered in light of the circumstances that applied at the time. On each occasion she was advised or reminded of the causes of action referred to above and assistance was provided to her to pursue those causes of action. On each occasion the appellant was angry and seeking "justice". She was not complaining that she was incapacitated for work or that she had an inability or limited ability to undertake paid work because of an injury. Initially she wished to return to her job. Later she wished to get back to work as soon as possible.

[15] Whilst the matter was still in the care of the Alice Springs solicitor the appellant produced a medical certificate that had been obtained at the time of her visit to the Alice Springs Hospital in May 1995. The certificate was not directed to an injury for the purposes of the Work Health Act. It was of a kind presented to an employer to excuse a worker from being at work. It used the description "physical, emotional" injury without further explanation. From the instructions provided by the appellant to each of the solicitors it was clear that whatever physical injury the appellant had suffered it was not of a kind to cause incapacity for work. In a statement made around the relevant time the appellant said that the doctor "give me a medical certificate for one month because I so upset and my susu (breast) bruised and sore". The physical injury was a bruise to the breast. The reference to an "emotional" injury in all of the circumstances does not suggest an injury so much as a feeling of anger or upset. That was the description provided to both the Alice Springs solicitor and to the Commission. Taken in context the certificate did not disclose a compensable injury for the purposes of the Work Health Act. The certificate was not in the form required by s 82(1)(b) of the Act and regulation 12 of the Work Health Regulations as then applied and could not have been used to support a notice of claim for compensation under the Act. At most the certificate may have given rise to a basis for further enquiry to be made of medical advisers as to the possible existence of a compensable injury.

[16] If, at the time she received the medical certificate, the Alice Springs solicitor should have advised the appellant that there was a potential claim under the Work Health Act there were clearly problems that needed to be considered with regard to overlapping claims or double dipping in relation to other proceedings. On the basis of the information then available the small amount open to be recovered under the Work Health Act was most likely to have been subsumed in any claim under the Crimes (Victims Assistance) Act. There was nothing to indicate that any potential claim under the Work Health Act would exceed or even approach the limit of the amounts recoverable under the Crimes (Victims Assistance) Act. In all of the circumstances the appropriate advice to the appellant would have been to the effect that a potential claim was available under the Work Health Act but that it was most unlikely to achieve any greater benefit than was available under the other proceedings that had been advised. To pursue a Work Health claim it would have been necessary to obtain a fresh medical certificate that included a "precise diagnosis" to accompany the claim for compensation to be made pursuant to s 82 of the Work Health Act.

[17] There was good reason to have advised the appellant that, whilst proceedings may be available if a further medical examination revealed a compensable injury, such a claim was unlikely to be worth pursuing. Further, legal aid in respect of such proceedings would have been unlikely to be granted. In those circumstances it is more likely than not that the appellant would not have pursued those proceedings. This is particularly so when the provisions of each of the compensation schemes, designed to avoid overlapping compensation and double dipping were taken into account. The attention of the appellant would have been drawn to the impact on the claims available to be made of s 13 of the Crimes (Victims Assistance) Act and s 54 and s 176 of the Work Health Act.

[18] Further, the information provided to this Court and to the Court below included that the appellant was informed of her rights to pursue a Work Health claim when she saw the firm of solicitors, Ward Keller, in February 1996. Despite having become aware of the prospect of a Work Health claim at that time the appellant did not give instructions to her solicitors to lodge a claim until March 1997. The reason for her failure to act earlier was not explained.

[19] If (which is not established) the learned trial Judge erred in the approach to be adopted to this question, revisiting the issue would not lead to a different conclusion. In our opinion the appropriate advice to have provided to the appellant at the time she saw the second respondent and whilst the second respondent had carriage of the matter would have been that, whilst the Work Health proceedings may be available, they should not then be pursued for the following reasons:

(a) the entitlement to any benefit under the Work Health Act was far from clear,

(b) further information would need to be obtained including medical evidence as to the existence of a compensable injury,

(c) on the information then available no benefit not already available through other proceedings would result from Work Health proceedings and

(d) any payment or benefit received would be likely to be subject to the provisions of other legislation designed to avoid double compensation.

[20] Had the proper advice been given then, in our opinion, it has not been established on the balance of probabilities that the appellant would have instructed solicitors to protect her position by obtaining an appropriate medical certificate and by giving the required notice under the Work Health Act.

[21] The learned trial Judge found that the Commission was vicariously liable for the negligence of Ms Cox, the solicitor who conducted the clinic attended by the appellant. In its notice of contention the Commission contends that his Honour was in error in concluding that Ms Cox was negligent in her dealings with the appellant.

[22] The basis for the finding of negligence is set out in par 58 of the Reasons for Judgment in the following terms:

"If Ms Cox was possessed of broad experience in advising people who had suffered personal injury, then she would be expected to have at least recognised the possibility that the plaintiff had the benefit of the Work Health Act. She did not have that experience and thus should have acknowledged that and made such arrangements as were available for the plaintiff to be seen by another legal practitioner with the requisite skills (Vulic v Belinsky at 486). In my view Ms Cox should have recognised, even during the short time available for the interview, that the plaintiff was not someone who knew anything about the remedies that might be available to her. It was incumbent upon Ms Cox to have deferred her assessment of the plaintiff's possible remedies and eligibility for legal aid until more time could be given to the task either by herself or someone better skilled in that field of law."

[23] To determine whether Ms Cox was negligent it is necessary to appreciate the nature of the clinic attended by the appellant. People seeking assistance in such a clinic attend at the offices of the Commission at a time set aside for the clinic. The person is required to complete a form entitled "Legal Advice Form" which seeks personal details. The person then joins a queue of people seeking assistance. Ms Stone, who was at that time the manager of assignments with the Commission, gave the following evidence:

"When that person's turn occurs, they're called into a private interview room, and then they have 15 minutes approximately to give some basic facts about their matter.

And what is the purpose of this procedure?---It's basically a sifting device to enable people to get preliminary legal advice in relation to their matter, or if that legal advice cannot be given, depending on the factual circumstances given, they may be referred to another agency, or another organisation or a private practitioner."

[24] Ms Collier who was also a legal practitioner employed by the Commission at the relevant time described the purpose of the clinics as follows:

"To offer initial advice if you could offer advice and deal with someone's problem in the time allotted well and good. If it appeared to you that the person obviously needed ongoing assistance or further assistance of some form and it was the sort of matter that would - they would have a chance of qualifying for legal aid and we would give them a form. If it was the sort of matter that legal aid would not be granted for, for example small claims and so on, you would advise them of that and where else they could go to seek assistance".

[25] Ms Cox saw the appellant on 17 May 1995. She took brief instructions and then completed a file note in which she noted that the appellant "needs legal aid to assist in investigating action for damages for - unfair dismissal - HREOC action - crimes comp." In accordance with the practice of the Commission that document was then annexed to the legal advice form completed by the appellant and was filed. In the event that an application for Legal Aid was to be made (as occurred here) the form completed by the solicitor would be married up with the application and passed on to an assessor to determine whether aid would be granted. That is what occurred on this occasion.

[26] There is no evidence to suggest that Ms Cox provided advice to the appellant as to the causes of action available to her. There is no suggestion that the appellant relied upon any advice provided by Ms Cox in relation to the scope of remedies available to her. The purpose of the exercise in the circumstances of this matter was to determine whether the information provided by the appellant called for a grant of Legal Aid to assist in investigating remedies that may be available to her. Once the grant of aid was made the matter would be referred to another solicitor who would obtain detailed information, investigate the matters and provide advice to the appellant as to the remedies available to her. In the circumstances of this particular matter the role of Ms Cox in the 15 minute clinic was, as the Commission submits, to determine:

"(i) Whether the person's problem was a legal one and its general nature.

(ii) If the problem was legal whether it could be handled by the Legal Aid Commission or it was one which should be dealt with by a legal firm or other legal organisation.

(iii) If the problem was one that could be legally aided advise the person to make an application for legal aid so that the matter could be dealt with or investigated further."

[27] The purpose of the clinic, on this occasion, was not to advise the appellant of the range of remedies that might be available to her. It was not necessary to defer the matter to make arrangements for the appellant to be seen by other legal practitioners or for the matter to be deferred so that more time could be given to the task of assessing possible remedies available to the appellant. That would only eventuate if an application for aid were made and granted.

[28] There was no evidence that the appellant relied upon the advice of Ms Cox for any purpose other than for Ms Cox to determine that the problem was a legal one that could be handled by the Legal Aid Commission and therefore allow an application for Legal Aid to be processed. In particular there was no evidence that the appellant relied upon Ms Cox to identify all or any of the possible remedies available to the appellant in the circumstances that she described.

[29] In our view the learned trial Judge erred in concluding that Ms Cox was negligent.

[31] This appeal was brought against the order of the trial judge, Martin CJ, dismissing proceedings against the respondents in which the appellant claimed damages from them allegedly caused by their professional negligence in the giving of legal advice to the appellant.

[32] The first respondent, Mr Schroter, was the principal of a firm of solicitors called Poveys practising in Alice Springs. The second respondent,

Ms Carney was an associate solicitor with Poveys. The third respondent was the Northern Territory Legal Aid Commission (LAC). The appellant's case at trial was that Ms Carney, for whom Mr Schroter would be vicariously liable, and two solicitors and barristers for whom LAC would be vicariously liable, Ms Cox and Ms Davidson, had negligently failed to advise her that she had a cause of action under the Work Health Act, and that as a result the relevant limitation statute had prevented her bringing proceedings under the act, as a result of which she suffered damage.

[33] The trial judge found that Ms Carney (in Alice Springs) and Ms Cox (shortly afterwards, in Darwin) had, as alleged, negligently failed to advise the appellant of the availability of the cause of action under the Work Health Act. He found that Ms Davidson had not been negligent as alleged. However, he also held he was not satisfied on the evidence before him that if the appellant had been advised of the available cause of action she would have taken proceedings upon it. She thus had not established one of the necessary ingredients for success in her case.

[34] On appeal, the case shows two contrasting aspects. At first hearing, the appellant's argument appears persuasive. Yet, when the way in which Ms Carney dealt with the appellant is considered in some detail, she seems to have treated her with appropriate care and consideration throughout.

Ms Carney's dealings with the appellant were more extensive than those of Ms Cox who saw the appellant once only and then quite briefly. The quite full written records of Ms Carney and the necessarily shorter note made by Ms Cox read like those of competent lawyers seeking to do what was necessary for their client. However, those impressions do not themselves answer the question whether they were in breach of their duty to the appellant in not advising her, as it is common ground they did not, of the availability of the cause of action under the Work Health Act.

[35] In an effort to give full consideration to that question, I have sought to bring together and then consider all the evidence relevant to it. Before coming to that, I state the argument for the appellant in the appeal a little more fully than I have so far done.

[36] The appellant's argument was straightforward. It was that the appellant had suffered a sexual assault at work on 1 May 1995, following which she, and not the co-worker who had assaulted her, had been sacked. She had then consulted the first respondent through Ms Carney and later LAC through

Ms Cox and Ms Davidson, whose duties required them to give her reasonably competent advice as to the causes of action available to her.

[37] Ms Carney and Ms Cox had advised her that she had three separate remedies available to her, each under a different statute. Ms Davidson had acted for her, for a time, in two of the three proceedings, without considering what further actions might be available to her. The three proceedings were:

1. a claim in the Industrial Relations Court of Australia pursuant to

s 170EA of the Industrial Relations Act for unlawful termination of employment (referred to throughout these proceedings as the unfair dismissal claim);

2. an application to the Human Rights Commission pursuant to the Anti-Discrimination Act; and

3. an application to the Local Court under the Crimes (Victims Assistance) Act.

The appellant obtained remedies under each of these headings.

[38] However, it would also have been open to her to pursue a fourth cause of action, under the Work Health Act. Because she did not learn of the availability of this cause of action until after the time limited for commencing it had expired, she suffered damage for which she claimed the lawyers who had not told her of it should pay.

[39] The appellant argued that in reaching the conclusion that the appellant had not established that if she had been advised of the cause of action under the Work Health Act she would have brought proceedings on it, the trial judge placed impermissible reliance upon the fact that in her evidence the appellant had said nothing about whether she had relied on the respondents' advice in not commencing Work Health Act proceedings within time and nothing about what she would have done had she been advised within time by the respondents of the availability of proceedings under the Work Health Act.

[40] The appellant submitted that the evidence required and the trial judge should have drawn the inference that had the appellant been told of her Work Health Act cause of action she would have pursued it and succeeded on it. She was therefore entitled to the amounts that would have been ordered to be paid to her if her Work Health Act case had been brought in the ordinary course, together with various expenses she had incurred in unsuccessfully attempting to get an extension of time to bring that case. Martin CJ estimated that these amounts totalled $39,499 and that had the appellant succeeded in her case before him she would have been entitled to judgment for that amount with interest on it at the rate of 8 percent from June 1996 to the date judgment would have been given had the case been brought in the ordinary course. (June 1996 was the date agreed upon between the parties before Martin CJ as the date when the Work Health Act proceedings would have been likely to come on for hearing if they had been brought in the ordinary way. In the appeal, the appellant accepted Martin CJ's damages findings.)

The restricted nature of the appellant's case against the Legal Aid Commission at the trial and in the appeal

[41] The case litigated against the LAC at the trial was one of vicarious liability only. No case against the LAC directly, as for example, for negligent supervision of its solicitors, was either pleaded or litigated at the trial, so no such case was available in the appeal. Further, as earlier mentioned, the trial judge did not find any breach of duty by Ms Davidson. In the appeal, the appellant did not seek to revive the case against her. As a result, this court can only deal with a restricted number of the issues which we might otherwise have had to consider.

[42] Events leading up to the appellant's first meeting with Ms Carney. Because the appeal is concerned only with the claims of negligence against Ms Carney and Ms Cox and because no case was sought to be made in this court against Ms Davidson there is no need to go into the same detail as regards her as I will be doing in respect of the other two.

[43] The appellant was working for a road work company called Primary Producers Improver Pty Limited (PPI) as a traffic controller at a site some distance from Alice Springs when, on 1 May 1995, she was sexually assaulted by the employer's foreman on the site, Mr Trevor McCormack. In the assault, one of the appellant's breasts was bruised. The next day she spoke by telephone to one of the employer's managers, reporting the assault. Managers came to the site on 3 May. During the day she was told that she was sacked. She then and in following days was extremely angry and resentful that the foreman was to remain on the job and that she had been dismissed because he was more important to the employer than she was, and she said she wanted justice.

[44] She was taken to Alice Springs on 3 May 1995. She there reported the sexual assault to the police who took a statement from her (Ex 1D11). A police officer and an interpreter then went with her to the Alice Springs Hospital.

[45] The hospital records (Ex P2) show her as arriving there at 17:18, that at 17:40 a sexual assault counsellor was paged and would "come and see patient" and that she was seen at 18:45. She was attended by Dr Lu.

[46] At the end of the entry recording the results of her examination the notes say:

On examination -- whole body -- bruise along lateral side left breast

Complaining of pain over breast, rest of body no abnormalities detected -- limbs, trunk nil bruises

Treatment - panadeine -- medical certificate for 24 days

[47] As well as stating that the time of discharge was 19: 45, the records also have this note at 19:55:

After discussion the issuing of a Medical Certificate for absence from work over the coming week would be of benefit to [the appellant's] welfare.

[48] In the medical certificate which she signed, dated 3 May 1995, (2AB 883) Dr Lu said that the appellant "... in my opinion is suffering from Sexual Assault, second degree, physical, and emotional injuries.... She will be unfit for full duties on/for [the form then left a space for the specification of any limitations; this was not filled in]. This first certificate covers the period

[49] The medical certificate. There was considerable argument both at the trial and in the appeal about when the medical certificate given by Dr Lu first came to the knowledge of Ms Carney. The appellant stayed in Alice Springs from 3 May 1995 until (about) 13 May 1995. During that time she had two meetings with Ms Carney, and on each occasion it seems that she had at least one person with her. During that period, and after, Ms Carney was in touch with two women from the Alice Springs Sexual Assault Referral Centre, Ms Woodman and Ms Geoghegan, who both appear to have counselled the appellant while she was in Alice Springs. It also seems that Ms Geoghegan went with the appellant when she had her meetings with Ms Carney. I think it is also probably proper to infer that it was Ms Geoghegan of these two who was the sexual assault counsellor paged at the hospital in the evening of 3 May and who attended on the appellant. At some stage, and I infer from the evidence that it must have been before the appellant left Alice Springs on (about) 13 May 1995, Ms Geoghegan took a statement from the appellant, part of which later became Ex P30 (2AB 898) before Martin CJ.

After the Police I go to the hospital because my Susu [breast] still very sore and hot. I see Dr. Anna Lou [sic] in Emergency and she give me a medical certificate for one month because I so upset and my susu bruised and sore. I meet the Indonesian interpreter at the Hospital and the Sexual Assault Counsellor. They help me to understand that what Trevor did is no good, and is problem and that the Company may not be doing the good thing.

[51] In the index to the appeal books, Ex P30 is given the date 11 May 1995. I am not sure where this date comes from, but in any event I infer that the statement from which Ex P30 was taken is the same statement as that which was an enclosure in a letter Ms Carney wrote, dated 18 July 1995, (Ex 1D26, 2AB 881) which she there described as a "Statement [by the appellant] to Human Rights Commission 11/05/95".

[52] On 4 May, the appellant together with Ms Geoghegan and (possibly) another lady had the first of her two interviews with Ms Carney. Both the appellant and Ms Carney gave evidence of what happened at the interviews.

[53] The appellant's evidence of her interviews with Ms Carney. In examination in chief, the appellant's evidence about the interviews was as follows. She said that on the first occasion she spent more than an hour with Ms Carney, that she was very stressed, very down and very very angry and that she honestly told her everything that had happened to her. Asked why she went to Poveys she said:

...after they tell me she's a lawyer or something or by honest to tell my problem looking for justice (sic).

... what did Ms Carney tell you during the meeting with her? -- -- I no understand the law in Australia but after second time -- I remember second time when we come to Povey, Jodene Carney tell me I have unfair dismissal and I have sexual assault and couple point (sic).

[54] She was first cross-examined by Mr Tippett who was appearing for the LAC. He asked only one question about what happened between her and

Now, when you saw Ms Carney, .... you told His Honour that you were very, very angry about being sacked? -- -- Not only angry, I upset.

[55] Mr Grant, for Poveys and Ms Carney, began his cross-examination of the appellant about her meetings with Ms Carney by suggesting to her that at the first meeting on 4 May the only person with her was Ms Geoghegan. She said she did not remember. The cross-examination then proceeded:

Right. Now, when you spoke to Ms Carney, you told her that you'd been sexually assaulted by a person you work with? -- Yes.

And you told her that the managers had come out to Jim's place? You told Ms Carney that the managers from PPI had gone out to Jim's place? -- Yes.

And you told her that you thought they were going to solve the problem? -- Yes.

And that you thought they'd be either punishing or sacking Trevor Cormack (sic)? -- Yeah, in my -- yeah, at

Yes. You then told her that they'd, in fact, sacked you instead? -- Beg your pardon?

You then told Ms Carney that they'd sacked you instead? -- What "instead" --

Instead of Trevor Cormack? -- Yeah, yeah, I tell, yeah.

Yes. And you told her that you were very angry about that? -- Yes.

And that you wanted justice because you'd been sacked instead of Trevor Cormack? -- Yes."

After an interruption, the cross-examination continued:

And you didn't at any time, when you saw Ms Carney on 4 May 1995 tell her that you couldn't work? -- with PPI. I couldn't work with PPI.

So you did tell her that you couldn't work with PPI? -- In my understanding, she asked me, "Amy, can you -- can work?", I say "Not with PPI".

So she asked you -- --? -- Because they already sacked me. Why I go back to work with them?

Sorry, she asked you, could you work, is that right? -- I don't know (sic) remember that one.

So what you just said, you made up because you couldn't remember that, could you? What you just said before -- --? -- Yeah.

[56] The appellant was then asked whether she saw Ms Carney again on 12 May. She said she did not remember that. She was shown a letter dated 10 May 1995 from Ms Carney to her which she had said in examination in chief that she had not got for some months after 10 May. It was suggested to her that Ms Carney had carefully explained a letter to her on 12 May. She said she did not remember that, and then said she had never seen the letter until a week previously when her solicitor had shown it to her.

[57] One other question was asked by Mr Grant relevant to the occasions when the appellant saw Ms Carney in Alice Springs in May 1995. [For an understanding of the question it is necessary to mention here, that when the appellant returned to Darwin from Alice Springs, she obtained (limited) legal aid from the LAC which handled two of her cases (she handled the third herself) until in early 1996 she retained Ward Keller for the two cases which until then the LAC had been doing.] The question was asked several times, with somewhat differing answers. From the transcript:

... Until early 1996 when you saw Ward Keller and Dr McLaren -- --? -- Yes.

-- -- it had never crossed your mind that you couldn't work because of that assault, had it? -- Yeah, in my -- in my feel, I know I'm not strong. This honestly.

She was asked the question again and said "I no understand." Then she added:

Because that time I'm so -- -- I'm so suffer, I'm so sick, but I must force myself to looking for a job for my children because of that time my family in here. I'm suffer. You people not understand how I feel.

[58] In re-examination, the appellant was asked what involvement she had had with lawyers before she went to see Ms Carney in Alice Springs after the assault. She said she had had none except in connection with her divorce from her husband in 1993 or 1994. She also said that before she went to see Ms Carney she had known nothing of the Sexual Discrimination Act, the Industrial Relations Act or the Work Health Act. (Subject to the meaning of two unclear questions and answers, the appellant may have said that she first learnt about the Sexual Discrimination Act immediately before she first saw Ms Carney.)

[59] This was the entirety of her direct evidence concerning her meetings with Ms Carney.

[60] Ms Carney's evidence of her interviews with the appellant. Ms Carney said that the appellant was referred to her by Carolyn Woodman of the Sexual Assault Referral Centre at Alice Springs, and that when the appellant came to Ms Carney's office she was accompanied by Carolyn Geoghegan.

[61] In examination in chief, Ms Carney was asked what was the content of the appellant's attendance on her and what was the substance of her complaint. I reproduce her first three answers to these questions:

Ms Un did most of the talking. She was very angry and very distressed and she wanted a lawyer to help her...

She was furious and understandably outraged I think, because an assault had happened -- the sexual assault had happened at her workplace and the perpetrator basically was allowed to remain at work.

And she was dismissed. So, she was angry about that and rightly so in my view, so she -- we were talking about the unfairness of her dismissal in those circumstances.

And did she indicate to you what form of redress she wanted in relation to the situation? -- Well she wanted her job back. But that wasn't going to be possible because she knew that the offender was not going to be moved by the employer.

What did the plaintiff say to you to lead you to believe that she wanted her job back? -- Well, she said she wanted to return to work.

What did the plaintiff say to you in relation to her job? -- That she would not get the job back as a result of a meeting that she had had with her -- Ms Un had had with her employer, details of which she disclosed to me, wherein Ms Un was advised by the employer that she was being dismissed. That the perpetrator would stay but that she would go.

Very well. And the second limb of it what did Ms Un say to you, if anything, in relation to wanting her job back? -- She said: "I want my job back.

In further examination in chief Ms Carney said that she went on to obtain instructions as to the location of the assault, the identity of the perpetrator and what it was that he had done ("She said that he had touched her breast, squeezed her breast and made dirty comments to her.") She said that was the extent of what the appellant had told her on 4 May as to what had happened between the appellant and McCormack. At this point there was admitted into evidence a typed transcript of the notes Ms Carney had made during her attendance with Ms Un on this day, (Ex 1D9). The matters noted in Ex 1D9 were the appellant's account of what had happened after the assault, her complaints to managers, her being sacked, her asking why she and not Trevor was being sacked and of her being driven back to Alice Springs.

Now, at the time of that attendance on 4 May 1995, did the plaintiff make any statement to you in relation to her mental state? --

Did the plaintiff make any statement to you to the effect that she had previously had psychological problems? -- No.

Did the plaintiff make any statement to you as to her future intentions in relation to work? -- Only that she wanted to return to work.

Thank you. Now, during the course of that attendance on 4 May, did you receive any documents from either the plaintiff or Carol Geoghegan? -- No.

[62] Mr Reeves QC for the appellant cross-examined Ms Carney. In the part of the cross-examination in which he asked Ms Carney directly about what happened at the 4 May attendance, she agreed that it was plain that the appellant was distressed, was having difficulty communicating in English, was not a good historian and there were difficulties in obtaining instructions from her. She also agreed that although the focus of the appellant's distress was the injustice of her being sacked while the offender stayed on, as the advising lawyer she had to look at other possibilities. It was then put to her that the appellant's particular focus of attention might be masking a pending severe emotional reaction from the assault. She replied that she didn't consider that the appellant's reaction was masking some other or deeper emotional distress. She said that the appellant did not present as having a mental injury during the two attendances she had with her. She agreed that she had not turned her mind to the Work Health Act. She had earlier agreed that she had experience with that Act.

[63] Mr Reeves asked Ms Carney a number of other questions seeking her agreement to the proposition that a competent solicitor should have recognised in the course of the two attendances upon the appellant that there was a possibility of a Work Health claim. In the following question-and-answer Ms Carney both made her position clear and added some information about her first attendance on the appellant as well as about her second attendance:

And I suggest to you that a competent solicitor would not say: "Well I'll wait and see whether this injury at work results in incapacity", because by then, if that is months or years down the track, the competent solicitor would not have served the client's interest in ensuring that the client gave notice of the injury at work as soon as practicable; would the competent solicitor? -- -- sorry, but I can't necessarily accept that proposition in this context. When I see a client on 4 May, the second occasion is on 12 May; in the course of those two dealings, there was no evidence or nothing about incapacity. It may have -- may well have been the case had I continued to conduct the file and clearly I was turning my mind to getting reports and so on. It may have been in that fairly short space of time, but not in the first seven or eight days that I may have turned my mind to the Work Health Act. But when I saw this client, within seven or eight days each appointment -- no I did not turn my mind to the Work Health Act. (underlining added)

[64] Later, in re-examination, Ms Carney gave further evidence relevant to what she had said in the underlined part of her answer reproduced in the preceding paragraph. She was referred to the notes she had made during her attendance on the appellant on 4 May (Ex 1D9) and asked about the passage which said "Go back to Darwin -- contract in Katherine -- they'll call you". In regard to that, Ms Carney said that the appellant had said "That she didn't want to work with PPI in Katherine" Ms Carney also said "She told me that the employer had offered for some work in Katherine."

[65] The re-examination then proceeded with the following question and answer:

What was it about the presentation that led you to say that she wasn't manifesting an incapacity for the purposes of the Work Health Act? -- There were a number of things. One is the nature of the assault. She sustained a bruised breast. In my experience, women with those sorts of injuries are able to go back to work. Her expressive -- sorry, her outrage about what had happened in terms of the dismissal which she saw as very unfair. The fact that she would have liked to have gone back to work had it not been for the offenders still -- the perpetrator still retained by the employer.

[66] I turn next to what little direct evidence there was about the second meeting between the appellant and Ms Carney. This was on 12 May 1995. First, however, I need to mention what had happened in the interval between the two meetings.

[67] By letter dated 5 May 1995 Ms Carney wrote to PPI saying she was acting for the appellant whose instructions were that she had been sexually assaulted by PPI's foreman, that it had then been suggested to her that she should leave Alice Springs immediately and that she had been dismissed, these matters being cause for concern. Ms Carney added that the available remedies were being considered and that PPI would be further advised in due course.

[68] On or about 8 May 1995 two police statements were left at Ms Carney's office. One had been taken by the police from the appellant and the other from Mr Causon, a fellow worker who corroborated parts of her account of what had happened at the workplace. On 8 May Ms Carney herself took a statement from Mr Causon.

[69] By letter dated 10 May 1995 Ms Carney wrote to the appellant, advising her of three possible courses of action, 1. Issuing proceedings in the Industrial Relations Court for Unfair Dismissal, 2. Lodging a Complaint with the Human Rights Commission, and 3. Issuing an Application for Crimes Compensation. The letter then explained what was involved with each course of action.

[70] In regard to Unfair Dismissal the letter noted that the appellant could seek an order for reinstatement but that she had already said that she was not of a mind to pursue such a course. Ms Carney advised that the maximum compensation that the appellant could recover by this claim was the equivalent of six months salary. She continued:

The writer recalls that you mentioned that your employment was for a fixed period of time. If that is the case, the maximum amount of compensation you will receive is likely to be limited to the salary you would have received for the duration of your employment.

Ms Carney finished this section of the advising letter by saying she thought there was a viable case to run.

[71] In regard to the possible claim to the Human Rights Commission, Ms Carney said it would be necessary to research the matter more thoroughly before providing final advice as to whether there had been a breach of the Sexual Discrimination Act but an approximate estimate of the likely compensation if such a claim succeeded was something in the region of $3,000 to $10,000.

[72] As to Crimes Compensation the letter advised that the appellant was entitled to make a claim the difficulty of which would depend on whether MacCormack was charged and convicted and the compensation from which would be in the region of $3,000 to $7,000.

[73] The letter also asked for considerable further particulars in regard to the claims and concluded by saying that no action would be taken until further instructions were received.

[74] In examination in chief Ms Carney said that at the time of writing the letter of 10 May she did not think the appellant would be able to recover damages under the Crimes (Victim's Assistance) Act for economic loss because there was no economic loss at the time she wrote the letter.

[75] Ms Carney's evidence concerning her second meeting with the appellant was quite brief. In examination in chief she said she attended upon the appellant again on 12 May, that the appellant signed a claim form for the unlawful dismissal claim which Ms Carney had prepared and that Ms Carney went through her letter dated 10 May with the appellant. (This claim form was filed with the NT District Registry of the Industrial Relations Court of Australia on the same day: Ex 1D; 2AB860.)

[76] No questions were asked of Ms Carney in cross examination directly concerning her second meeting with the appellant.

[77] The appellant returns to Darwin. In examination in chief the appellant said she left Alice Springs and returned to Darwin (her usual place of residence) around about 13 May 1995. There she went to see Ms Cox in her office at the LAC on 17 May 1995.

[78] The appellant's evidence of her interview with Ms Cox. In examination in chief the appellant said that she told Ms Cox:

I come here -- I have sexual assault happened in Alice Springs and I already go to Povey and Povey and police send me to here (sic) because I live in Darwin.

Did she give you any advice or information? -- She just want me to tell all my story, so I just tell story but just ask me to come back when they call me.

And what did you tell her? -- I tell -- I tell honestly about what happened, sexual assault happened until I come to -- to (inaudible), and I'm looking for justice, I say to her.

[79] In cross examination by Mr Tippett, the appellant said that when back in Darwin she went one day to the Legal Aid office and signed a form (Ex P4) headed Legal Advice Form, dated 17 May 1995, following which she went into an office where she saw Ms Cox. She said Ms Cox "just sit down and talk to me and ask me all the question." She did not remember how long she was with Ms Cox. Following the interview with Ms Cox the appellant signed an Application For Legal Assistance. According to the form the matter in which legal assistance was sought was "sexual harassment". After this interview, the appellant did not see Ms Cox again. From then on she saw Ms Davidson.

[80] Ms Cox's notes of the interview. Ms Cox did not give evidence at the trial. The circumstances of her absence were not such as to give rise to any adverse comment about it.

[81] Tendered in evidence as part of Ex P4 was a handwritten document identified as Ms Cox's file note of her interview with the appellant. It read as follows:

Working for Primary Producers Improver as traffic controller.

Incident 1 5 95 -- foreman Trevor MacCormack sexually assaulted me (grabbed my breast kissed my face and grabbed my "pussy".) I told him off.

I told owner of Company what happened. His name is Peter Schubert -- I told on 2/5/95 -- after I was sacked.

I also rang Peter Chapman on 2/5/95 and told him everything --H/S he would see me the next day.

On 3/5 -- 3 bosses arrived 6 AM from Alice Springs.

I told everything. They offered me extra money and to fly back to Darwin.

They took me to A/Springs 10 AM to fly back to Darwin 12 PM. But I ran away to Police Stn. to make report -- Police took me to the doctor.

Advice -- Needs legal aid to assist in investigating action for damages for

[82] Further facts concerning the medical certificate of 3 May 1995. From the materials I earlier set out about this certificate, the most likely inference seems to me that it was given to Ms Geoghegan or Ms Woodman on the night of 3 May 1995. Although Ms Carney probably knew of its existence no later than 15 June 1995 (see later, pars [88] - [89]) there is no direct evidence of when it first came into her hands. It is certain however that she had it no later than 18 July 1995, because with a letter she wrote with that date to Ms Davidson at the LAC, (Ex 1D26, 2AB881) she enclosed the medical certificate, with other documents. The appellant gave no evidence of having handed the medical certificate to Ms Carney at either of their two interviews, or at any other time. Ms Carney denied having received it at either of their two interviews. A further matter of possible significance is that the certificate expired on 24 May 1995 and there is no suggestion of any further certificate being given after the appellant returned to Darwin, or indeed of her having visited either hospital or doctor in Darwin in 1995 after returning there during May 1995. The other documents enclosed with the letter to Ms Davidson of 18 July 1995 included a receipt dated 4 May 1995 for Temazepan tablets and another from a Dr Pannell for a consultation on that day.

[83] Ms Carney's remaining evidence. In examination in chief Ms Carney said that she did not see the appellant again after she returned to Darwin from Alice Springs. She had spoken to her by phone on, she thought, two or three occasions. She took steps to commence proceedings in the Industrial Relations Court.

[84] A week or so after she last saw the appellant, she became aware that the appellant had attended upon other solicitors in Darwin, (the LAC). She then wrote a letter to the appellant dated 22 May 1995. The letter said that Poveys had issued a claim in the Industrial Relations Court, that they were the solicitors on record so that the Court would deal with them and it was important that they (Poveys) receive the appellant's further instructions. The letter also said that Poveys particularly needed the appellant's advice as to whether she wished them to proceed with making a complaint to the Human Rights Commission. Ms Carney said she did not receive a reply to this letter. (It was however tendered by Mr Reeves when opening the case for the appellant at the trial: Ex P5.) Ms Carney said that she wrote a follow-up letter dated 29 May 1995. This was not answered. This letter was also tendered: Ex 1D15.

[85] Ms Carney next heard about the appellant's cases when she received two letters from the LAC. They were addressed to her in Alice Springs where she received them shortly after 6 and 7 June. One dealt with an Application for Legal Aid by the appellant in the "Criminal Injuries Compensation" matter and said that it had been granted, for disbursements only. The letter assumed that Ms Carney would have the carriage of the matter. The other document related to the Industrial Relations disputes application for legal aid by the appellant in the "Dismissal" matter. This said that legal aid was refused because the LAC took the view that Industrial Relations disputes were similar to those in the Small Claims jurisdiction, "ie, designed for people to run their own matters without the necessity of lawyers being involved."

[86] Ms Carney appears to have taken further steps in the appellant's matters on 15 June 1995. She said that she had a telephone conversation with the appellant on that day, which she thought was the first time she had spoken to her since sending the letters in May. It appears from a letter dated 16 June 1995 which she wrote to Ms Woodman at the Sexual Assault Referral Centre in Alice Springs that she had attended at Ms Woodman's office the previous day (15 June). (The appellant had said in her evidence that she had seen

Ms Woodman when the appellant was in Alice Springs.) Ms Carney, in the letter of 16 June, referred to her visit to Ms Woodman's office the previous day, said that the appellant had instructed Poveys to take both Crimes Compensation and Unlawful Dismissal proceedings, and continued:

We noted that you obtained some specific information from Ms Un in relation to matters arising from her employment and would be grateful if you would provide us with same. As requested, we enclose herewith a copy of our letter to Ms Un of the 10th May 1995 in order to assist you with providing us with the information we require.

In relation to our client's Crimes Compensation Application, we anticipate filing the Application within the next couple of weeks and ask that you provide us with a Report detailing your observations in any event. We do not require your Report immediately, but would be pleased to receive same within the next four to six weeks. Would you advise whether, in your view, Ms Carol Geoghegan would also be prepared to provide us with a Report.

Finally, we enclose by way of return Ms Un's statement of 11th May 1995 and her letter to the Human Rights and Equal Opportunities Commission."

[87] The statement referred to in the last sentence of the preceding paragraph seems to have been what was tendered at the trial as Ex P30, earlier mentioned and set out in pars [49] and [50].

[88] In cross-examining Ms Carney, Mr Reeves sought to establish that the medical certificate of 3 May 1995 was likely to have come into Ms Carney's possession on the following day when she had her first interview with the appellant. (The appellant had given no evidence about this.) Ms Carney had no recollection, but when Mr Reeves suggested to her that she must have had it, she would not agree. Mr Reeves then sought to use Ex P30 to show that Ms Carney had had the medical certificate before writing her letter of 16 June. In asking her about this, Mr Reeves referred to the Memorandum of Fees and Disbursements which Ms Carney rendered to the appellant dated 22 August 1995, one item in which was "perusal of Statement prepared by Ms Geoghegan 15th June 1995". Ms Carney said that the Statement referred to "may" have been Ex P30 but she could not be certain. (In light of the various relevant pieces of evidence, I think it is likely that the reference in the Memorandum is to a day on which Ms Carney read the statement which had previously been taken by Ms Geoghegan on 11 May, and which

Ms Carney had had from some date in May and then returned to Ms Woodman with her letter to her of 16 June 1995; see the end of par [86] above.)

[89] Whatever may have been the precise travels of the statement from which

Ex P30 came, it seems certain that Ms Carney had read it at least by 15 June 1995 and so probably knew of the existence of the medical certificate by that date. There still does not appear to be any evidence about when the medical certificate came into her possession beyond the fact that she had it on 18 July 1995 when she enclosed it with her letter of that date to

[90] Ms Carney wrote to the appellant by letter dated 19 June 1995 confirming (1) that the appellant wished Poveys to pursue matters on the appellant's behalf, (2) that the LAC had refused to grant aid for the proceedings already issued for the Unfair Dismissal claim and (3) that the LAC had granted aid for disbursements for the Crimes Compensation Application, which Poveys would shortly issue on the appellant's behalf. She reported that Poveys had not yet received a Defence from PPI in the Unfair Dismissal claim and she would advise the appellant when further information was received. The letter continued with the following relevant paragraphs:

In relation to the Crimes Compensation Application, we are presently drafting an Application and will file same at Court within the next couple of weeks. We are also making inquiries with the Alice Springs Police to ascertain whether Trevor MacCormack has been charged in relation to the offences he committed. We will also contact Ms Carolyn Woodman, Ms Carol Geoghegan and the Alice Springs Hospital and request that they provide us with Reports detailing the affects [sic] Cormack's [sic] actions have had on you. Would you please advise whether you are continuing Counselling with a Counsellor in Darwin. Would you also sign the enclosed Authorities which will enable us to obtain the Reports which are necessary to support your Crimes Compensation claim.

We note that you wrote to the Human Rights Commission earlier this month. Unless you instruct us otherwise, we will assume that you are conducting the Human Rights complaint yourself.

In relation to our discussion about legal fees, we confirm that we will not request fees from you until either your Crimes Compensation, or Industrial Relations matters have been completed. Whilst the Legal Aid Commission have refused to grant you legal aid for these matters (except for disbursements for the Crimes Compensation Application), we will only render our Account at the end of the proceedings which we will deduct once the matters have been concluded.

As discussed, it is very important that you understand this letter. Please have this letter translated, or explained to you by someone who can assist you. Would you also sign the enclosed Authorities and return them to our office.... (emphasis in original)

[91] Ms Carney went on leave from 22 June to 10 July 1995. She had not heard from the appellant before she left. On or shortly after her return she received another letter from the LAC dated 10 July 1995. At that stage

Ms Carney had drafted but not filed an Application for Assistance under the Crimes (Victims Assistance) Act. The letter from the LAC which was signed by Ms Davidson referred to Ms Carney's letter of 19 June 1995 addressed to the appellant and said that it appeared from the letter that

Ms Carney was proceeding with the Crimes Victims Assistance application. The letter advised that the grant of legal assistance for the appellant was an in-house grant and that it was anticipated that a solicitor from the LAC would represent the appellant in relation to the matters for which aid was granted. By letter dated 17 July 1995 Ms Carney then wrote to

Ms Woodman advising that Poveys were no longer instructed in relation to the appellant's Crimes Compensation proceedings and accordingly they no longer required a Report from her or Ms Geoghegan. She spoke to the appellant by telephone on the same day telling her that she (Ms Carney) was only acting re the unlawful dismissal, that may be the appellant should get a lawyer in Darwin and that she (Ms Carney) would speak to legal aid (file note; Ex.1D25).

[92] In the same file note Ms Carney recorded a telephone conversation with Ms Davidson in which Ms Carney suggested that the LAC take over the unfair dismissal case. This was because of difficulties she was experiencing -- she had still not obtained a detailed statement from the appellant and it was impossible to do so over the telephone without an interpreter -- the Crimes Compensation Application and the unfair dismissal matter were related -- the appellant's language difficulties were such that she needed an interpreter when seeing a solicitor and was certainly not capable of conducting the matter herself. Ms Davidson said she would look into whether she could get funding for the unfair dismissal action.

[93] The next day by letter dated 18 July 1995 Ms Carney wrote to Ms Davidson at the LAC. With the letter she enclosed:

Medical Certificate (and attached Medical Receipts)

a statement by the appellant to the Human Rights Commission dated 11 May 1995

a letter from Alice Springs Police (enclosing information) dated

The letter then confirmed that the LAC was conducting the appellant's Crimes Compensation Application and said that the enclosures represented all information Poveys had gathered. The letter confirmed also that the LAC would consider applying for aid in relation to the appellant's claim for unfair dismissal on the basis that she was unable to conduct the matter herself and Poveys were unable to obtain specific instructions in relation to those proceedings in light of the appellant's substantial language difficulties. The letter also requested the LAC to let Poveys know whether it was prepared to conduct those proceedings so that Poveys could in turn advise the appellant. Ms Carney also said that she would appear at a Conciliation Conference that day but that she didn't expect the matter to settle at that conference.

[94] The next day Ms Carney wrote to the appellant reporting the result of the conference (Ex 1D28). PPI had made a settlement offer. In discussing the considerations for and against accepting the offer Ms Carney pointed out there were at least three witnesses for PPI who would say that the appellant had not been dismissed but had resigned and had rejected offers of employment in other places. Ms Carney noted that she had advised the appellant that because of the experience she had suffered, reinstatement with the company was out of the question. However, she wanted the appellant to be aware that if the matter went to Court, PPI would attempt to show the Court that the appellants desire not to be reinstated was unreasonable. Ms Carney then expressed the opinion that if the matter went to hearing the appellant might obtain an award greater than the settlement offer. However, Ms Carney said she was concerned about the evidence PPI's witnesses would give. Also, a successful party in the Industrial Relations Court could not recover costs. After mentioning some other considerations concerning the wisdom or otherwise of accepting PPI's offer, Ms Carney recommended that the appellant take the letter to Ms Davidson.

[95] By letter dated 21 July 1995 Ms Carney wrote to Ms Davidson enclosing a copy of the letter of advice to the appellant and saying that the appellant would shortly call on her.

[96] While Ms Carney was waiting for confirmation that the LAC would take over the unfair dismissal proceeding she attended directions hearings because she was still the solicitor on the record. Then, by letter dated

We refer to our letter to you of 18th July 1995 and inquire as to whether the Commission has determined to take over the conduct of our client's Unfair Dismissal Claim.

We note that we have provided you with copies of correspondence forwarded to our client which confirms that there is a settlement offer in existence and that the proceedings will be listed for Hearing in the absence of Ms Un's acceptance of same. To this end, we have attempted to obtain instructions from her, but were advised late yesterday afternoon that Ms Un is overseas until late next week.

We further confirmed that, to a significant extent, the remedies available to our client are closely related. Specifically, we understand that she is pursuing an Anti Discrimination Complaint. In addition, we note that you are acting in her Crimes Compensation proceedings. Both remedies relate to the same events which also form the basis of her claim for Unfair Dismissal.

In light of the similarities of the three actions, our client's language difficulties, and the fact that she lives in Darwin, we urge the Commission to act on her behalf in her claim for Unfair Dismissal. There has been an offer of a settlement, but we have not been able to obtain instructions in relation to same because of the physical distance between our office and our client. Consequently, the matter is likely to be listed for Trial (thereby generating additional legal costs). This may prove to be unnecessary but Ms Un must receive assistance in relation to our letter in which we outlined the offer that was made, together with a number of other matters she needed to consider before accepting same. The present position, in our view, is unfortunate, and places Ms Un in a position of great disadvantage for the conduct of these proceedings.

We await your response in relation to the matters contained herein.

[97] Ms Davidson replied by fax dated 5 August 1995, saying she had had a brief discussion with the appellant about PPI's offer of settlement and that both she and the appellant thought the appellant should not accept it.

[98] Ms Carney said that she continued to chase up the Commission wanting some certainty about them taking over the file. Then, by letter dated

22 August 1995 Ms Davidson wrote to Poveys advising that legal assistance had been granted for the appellant in relation to the Industrial Relations claim. Ms Davidson said that the matter would be undertaken further on an in-house basis. She confirmed that the Commission would attend the directions hearing on 30 August 1995 and said the appellant would be advised that she should notify Poveys that she no longer required their services.

[99] On receipt of the fax from Ms Davidson Ms Carney wrote by letter dated

22 August 1995 to the appellant. She confirmed that Ms Davidson from the LAC would assist her in the proceedings against PPI and that as a result Poveys would take no further action in the matter. She gave some helpful information about what would happen in the proceedings and advised the appellant to contact Ms Davidson as soon as possible. She also enclosed a Memorandum and of Fees and Disbursements and asked that the appellant make every attempt to pay them as soon as possible if able to do so adding that if she could not, Poveys would await the outcome of her claim. She noted that the costs had been discounted. She sent a carbon copy of the letter to Ms Davidson.

[100] Thus, at this point Ms Carney knew that three matters were under way in which the appellant was seeking compensation for the sexual assault which had happened on 1 May 1995, and the unfair dismissal which followed almost immediately. The LAC was conducting two of the matters, the appellant herself the third. There is no evidence that the appellant had ever said anything to her indicating that her capacity to work had been affected by the assault and/or the dismissal. On the other hand, Ms Carney knew the appellant had received counselling in Alice Springs and had inquired whether she had continued to receive it in Darwin (see par [90]). The time limit for making a claim for compensation had not expired.

[101] From then on (except that some of Poveys' costs were later paid),

Ms Carney had no further dealings with the appellant until the negligence proceedings against Poveys, herself and the LAC were commenced.

[102] In paragraphs [62] - [65] I set out the parts of Ms Carney's evidence in which she most clearly stated the substance of her answer to the appellant's claim of negligence. I now set out the parts of Mr Reeves' cross-examination of her which were of the most value to the appellant's case.

[103] At one point Mr Reeves was cross-examining Ms Carney about Ex P30 and the following questions and answers were asked and given:

If you'd read that...it would have occurred to you that she had an incapacity for work for that period, wouldn't you? -- -- It probably would have alerted me that there was the possibility of a Work Health claim. (2AB499)

So I suggest that if you turned your mind to her entitlements under the Work Health Act, read through those documents on your file, you would have realised that she probably had an incapacity before work for the purposes of the Work Health Act for at least a month or perhaps for at least 23 days from 1 May 224 May. Would you agree with me on that? -- -- Yes, subject to the date I - I read them, yes.

Well you must have read them that some stage before 18 July when you sent the file to Ms Davidson? -- -- Sure.

So sometime between 4 May and 17 July, if you'd read those documents, it would have occurred you that she probably had a claim under the Work Health Act for incapacity for work for at least a period of 23 days, namely from 1 May to 24 May 1995?-- -- That she may have had a claim, yes." (2AB500 - 501)

So still dealing with the question of what you would have found if you'd turned your mind to the question of incapacity for work under the Work Health Act, I've put to you the chemist's receipt indicating that she was prescribed that drug, I've put to you the medical certificate indicating an unfitness for work for a period from one May to 23 May, and I put to you that paragraph of the statement indicating an injury and inability to work for a period of one month; I want to suggest to you as well that when you saw Ms Un on 4 May and 12 May, you knew that she had been working when the assault occurred, didn't you? -- -- Yes.

You knew that she'd been dismissed as a result of it? -- -- Yes.

You knew that that action in itself, that is the repudiation of a work contract based upon her being the victim of an assault, was very likely to have been a wrongful repudiation of the contract, didn't you? -- -- I think so, yes.

You knew that that itself could give rise to a claim under the Work Health Act, didn't you? -- -- I think so, yes.

You knew that she wasn't working on 4 May and 12 May when you saw her, didn't you? -- -- Yes.

In the circumstances, it really wasn't open to her to go back to work, was it? That work? -- -- Yes, that's right.

And you knew once she left Alice Springs she went back to Darwin? -- -- Yes.

Because you had telephone contact with her in Darwin in the succeeding months? -- -- Yep.

And did it occur to you to check whether she'd got back to work when you had that telephone contact with her?-- -- I can't remember.

But you could have asked if you were considering a claim --? -- --I-I may have -

-- -- her entitlements to a claim under the Work Health Act for incapacity for work?-- -- Yep.

And you would agree, wouldn't you, that you - if you'd turned your mind you should have asked that question of her? -- -- Yes, I'd agree with that." (2AB502 - 503)

[104] What I have intended to set out so far is all the evidence bearing upon the negligence cases maintained in the appeal by the appellant against Ms Carney and Ms Cox. This takes the narrative to August 1995. Since the appellant does not in the appeal seek to make a case against Ms Davidson I do not in the further narrative go into detail about her. This means that a reader will not get a full picture of Ms Davidson's part of the case, but since it is unnecessary to give that full picture I will not take up the space to do so.

[105] Events after August 1995. In the appeal, the court was told by counsel for Ms Carney, without objection from the appellant, that the unfair dismissal claim in the Industrial Relations Court was settled in October 1995 for $1500. I infer that this somewhat low figure was accepted because of the reasons set out in Ms Carney's letter of 19 July 1995, Ex 1D28: see par [94 above.

[106] In February 1996 the appellant went to the firm of Ward Keller who from then on conducted her proceedings. They advised her that she might have a claim under the Work Health Act. They wrote to Dr McLaren, a psychiatrist, seeking his opinion about her capacity to work. It seems that he first saw her on 4 June 1996.

[107] In a report dated 7 June 1996, Dr McLaren recorded the history given to him by the appellant. I extract a few presently relevant sentences from the report:

On questioning Ms Un said that she is currently very depressed over a court case for sexual assault. She said she feels irritable and cannot sleep properly. .....Her symptoms began in May 1995 when she was working on a road construction gang out of Alice Springs.....When she left Alice Springs, she still felt rather scared but was very relieved to get back to Darwin but says she has not yet returned to normal.....At present, she feels she could not work and is not looking for work. She is greatly preoccupied with a sense of injustice as she said that she was removed from the job but the man was allowed to continue working......In my view she is not presently fit for work and I cannot provide any indication as to when she will be......I think it is essential in this case the legal resolution be obtained as soon as possible......

[108] Dr McLaren gave six further reports on the appellant's condition, in 1997, 1998, 1999 and 2000.

[109] Pursuant to a Settlement Agreement dated September 1996 (which appeared in the appeal papers as Ex 1D1, 2AB 755) between the appellant and PPI, the appellant received $22,000 in settlement of her complaint against PPI under the Anti-Discrimination Act. Paragraph 1 of the Settlement Agreement said

It is specifically agreed that no part of the said sum represents a payment to the Complainant by way of any loss of income arising out of her complaint against the Respondent, or at all.

The complainant, notwithstanding the [confidentiality] provisions of paragraph 4 hereof, may rely on the facts, matters or circumstances of the allegations that may be relevant to any right the Complainant may have under the Work Health Act, which is denied by the Respondents.

[110] According to the final version of the appellant's statement of claim in the proceedings presently under appeal, she instructed Ward Keller in March 1997 to bring proceedings under the Work Health Act. Counsel for

Ms Carney in the course of argument in this court said that the claim document was delivered on 25 March 1997 and the application for compensation under the Work Health Act was made on 8 May 1997. In those proceedings an application was made for extension of time for bringing them.

[111] Not many details of what happened in the proceedings in the Work Health Court were put in evidence before Martin CJ. Presumably, the extension application was made pursuant to s 182(3) which provided that failure to make a claim within the six months period required by subsection (1) was not a bar to the maintenance of the proceedings, if the court found the failure was occasioned by mistake, ignorance of the disease, absence from the Territory or other reasonable cause. There is no material available in the appeal papers in this court explaining why there was a period apparently of over a year between the appellant's first retaining of Ward Keller and the commencement of her proceedings in the Work Health Court.

[112] In the proceedings in the Work Health Court the appellant was cross-examined upon an affidavit she had made in support of her case. Some paragraphs of the affidavit and some pages from the transcript of the cross-examination later became evidence in the trial before Martin CJ (Exts 3D2, 3, 4, 1D3, 4 and 5). In paragraph 20 of the affidavit the appellant said:

It was not until some months after I settled my Complaint to the Anti-Discrimination Commission on 20 September 1996 that I realised I was not getting better and that my ability to work was being affected for a long period. I did not work between 3 May 1995 and 20 September 1996, and over most of that time this was because I felt too frightened and anxious to consider looking for work, but I always thought that this would be a temporary state of affairs and that I would get better.

[113] It soon became apparent that the appellant's assertion about not working between the two dates she had given was quite wrong. She had intermittently had a number of jobs for which she was paid. When she began her evidence in chief in the Work Health Court, her counsel led from her some corrections to it. It is difficult to tell from the fragmentary evidence put before Martin CJ from the Work Health Court whether the cross-examination obtained further corrections from her than had been led from her by her counsel. It seems however that when the trial before

Martin CJ. began the appellant's statement of claim alleged that for the period from 4 May 1995 to 3 November 1995 the appellant had been unable to work at all.

[114] The Work Health Court dismissed the appellant's application for extension of time on 18 December 1997. An appeal from this decision was dismissed on 14 May 1998.

[115] The proceedings from which this appeal arises were commenced in 1998.

[116] On 22 February 1999, the appellant's proceedings under the Crimes (Victims Assistance) Act were settled. By consent, the Local Court ordered that an assistance certificate issue certifying that the Northern Territory pay to the appellant $18,000 by way of assistance for injury.

[117] The hearing began on Monday 27 March 2000 and continued until it was adjourned on the following Thursday 30 March..

[118] The chief matters which need to be mentioned in addition to what has previously been set out concern the psychiatric opinions which were before the court and the further evidence concerning the work history of the appellant. For psychiatric evidence, the appellant relied on the written and oral evidence of Dr McLaren, the psychiatrist earlier mentioned who had reported on her on a number of occasions, and the respondents on Doctors Kalnins and Kutlaca. The further evidence showed, inter alia, that the appellant had obtained casual but regular work for two hours a day, five days a week as early as June 1995 running through to December 1995, as well as other work apparently not the subject of evidence in the Work Health Court. Significant parts of her work history had not been disclosed by her to Dr McLaren. Acceptance of his opinion was very important to her chances of obtaining any more than a very modest amount of damages for the incapacity aspect of her negligence claim.

[119] The comment of Martin CJ upon this seems to me to have been amply justified:

The history of the plaintiff's work obtained by Dr McLaren was sorely deficient both as to her pattern of employment before and after May 1995. That deficiency causes me to call the doctor's opinion into question.

[120] On the other hand, the opinions of Drs Kalnins and Kutlaca, given in the light of the further evidence which emerged at the trial, were much less favourable to her on the question of the extent of any incapacity arising in the course or out of her employment with PPI.

[121] On Thursday 30 March 2000 it became necessary to adjourn the proceedings.

[122] The next day of hearing was 5 March 2001. Various pleading matters were put in order on that day; also, Mr Reeves made two points about the damages aspect of the appellant's case. 1. He reminded the trial judge that on the previous occasion it had been agreed between the parties that the assessment was based in part on "when it was that the original proceedings if unaffected by the time limit problems, would have got to hearing before the Work Health Court" and that that date had been agreed as 30 June 1996. 2. He said that "the second stage is an assessment of the value of that lost chance".

[123] Further evidence was then taken on 5, 6, 7 and 8 March 2001. At the end of the oral evidence Counsel for the LAC tendered documents relating to the three proceedings pursuant to which the appellant had received moneys on settlement. The object of the tender was to found or to fortify submissions that the settlement moneys should be taken into account to reduce any damages to which Martin CJ might find her entitled. The tender was objected to on the ground of relevance. This led to argument which continued into the following day, but which could not be completed on that day. Martin CJ ordered the filing of written submissions on the issues raised by the tender. The submissions were based upon s 54 and s 176 of the Work Health Act.

[124] On 1 August 2001 Martin CJ delivered his decision (reported at (2001)

[2001] NTSC 62; 163 FLR 221) on both the argument as to relevance and the point of substance which underlay it. (The headnote to the report indicates the case had been in court again on 6 April, but the appeal papers do not show what, if anything, happened on that day.)

[125] In his reasons for his 1 August decision, Martin CJ considered the terms of the Workplace Relations Act 1996 (Cth)[1], the Anti-Discrimination Act 1992 (NT), the Crimes (Victims Assistance) Act 1982 (NT), the Work Health Act (NT) and a common-law argument. His conclusion was that none of the tendered evidence was relevant, and that none of the settlement amounts received by the appellant should be taken into account in assessing any damages she might recover.

[126] In reaching these conclusions he first considered the submissions based on

s 54 and s 176 of the Work Health Act and then whether any set-off might be available to the respondents at common law.

[127] In regard to the statutory arguments in their application to the unfair dismissal and the antidiscrimination claims, he said:

I accept the plaintiff's submission that the unfair dismissal claim was not based upon injury, but rather upon her being unfairly dismissed from her employment, and that the anti-discrimination claim was not based upon injury, but rather upon the provisions of the Anti-Discrimination Act which prohibits sexual discrimination or harassment and gives the Commissioner the power to award damages to a person like the plaintiff who makes a complaint under that the Act" (at 223).

[128] Then, as to the claim under the Crimes (Victim's Assistance) Act he said that in his view s 176 of the Work Health Act could only apply if the appellant had taken proceedings against the deceased Mr McCormack to recover damages, which she had not done. As to s 54 of the Work Health Act, none of the evidence already before him or proposed to be before him showed how the $18,000 for which the appellant had settled her claim was made up, and in the absence of such evidence, the section could not apply.

[129] He next considered the question whether any of the amounts paid to the appellant were deductible under common law principles. He noted that the appellant's claim was for damages for the loss of a chance to claim entitlements under the Work Health Act which were available to the worker who proved "injury" and resultant "incapacity" (at 225).

[130] As to the unfair dismissal claim he agreed with a qualified concession made on behalf of the appellant to the effect that:

.....only such part of the unfair dismissal claim, if any, as relates to loss of earnings could be deducted from any damages awarded to the plaintiff in this case under common-law. There is no evidence detailed to that point and without it the document is irrelevant" (at 225-6).

[131] Martin CJ then summarised the opposing arguments in regard to the other two payments: the appellant had submitted neither was deductible to any extent; neither related to incapacity arising from injury within the meaning of the Work Health Act; the antidiscrimination claim had been settled on the basis that no part of the $22,000 represented a payment by way of loss of income, and, in regard to the CVA claim, no part of the $18,000 had been shown to be related to incapacity: the respondents had submitted that the payments were deductible; there was an overlap between the benefits and the anti-discrimination claim "especially where the employer was liable for the unfair dismissal claim,... and would have been responsible for the work health claim" (at 225).

[132] Martin CJ, basing himself on a series of authorities, said that the anti-discrimination and CVA payments were not shown to be for incapacity for any injury compensable under the Work Health Act. Nor did any of the documents show any overlap between a possible recovery for distress under the anti-discrimination and CVA claims and a possible recovery for distress in the negligence proceeding then before him.

[133] Martin CJ therefore rejected the tender of all the documents in question. He added that he had chosen to deal with the substance of the matters rather than deal with a submission by the appellant that the pleadings had not permitted the respondents to raise the point anyway. He said that even if the issue had been properly raised on the pleadings, the result must have been the same, ultimately (at 226).

Martin CJ's reasons for final judgment delivered January 2002

[134] Findings of breach of duty... Martin CJ said that the appellant's background, the fact that English was not her native language and the circumstances as known to the legal practitioners when she came to seek their advice, required them to take special care to gather detailed information regarding the circumstances surrounding her complaints.

[135] In regard to Ms Carney, he said that the appellant's instructions amounted to a request for advice as to any and all remedies available to her and that the evidence showed that she did not weigh up all the information in her possession (as at the time her retainer ended) or turn her mind to the possibility of a Work Health claim. He then said:

[54] I consider Ms Carney should have recognised that there was a least a possibility of the plaintiff falling within the provisions of the Work Health Act prior to their terminating their general instructions to advise in mid-July. Ms Carney should have recognised and advised the plaintiff as to that possibility and sought to obtain the plaintiff's further instructions. The first defendant is vicariously liable for her breach. All that was required to be done under the Act at that stage was the taking of a relatively simple and inexpensive step to protect the plaintiff's possible rights.

[136] In regard to Ms Cox, Martin CJ was of the view that her relationship with the appellant, in the circumstances of the interview, was that of solicitor and client and in giving legal advice she came under the common law duty of care. He went on:

Ms Cox was required to bring to the task assigned to her the competence and skill that is usual among solicitors practising their profession in the circumstances in which she interviewed the plaintiff. By giving the advice which she did Ms Cox held herself out to be competent to give it.

[58] If Ms Cox was possessed of broad experience in advising people who had suffered personal injury, then she would be expected to have at least recognised the possibility that the plaintiff had the benefit of the Work Health Act. She did not have that experience and thus should have acknowledged that and made such arrangements as were available for the plaintiff to be seen by another legal practitioner with the requisite skills (Vulic v Belinsky at p486). In my view Ms Cox should have recognised, even during the short time available for the interview, that the plaintiff was not someone who knew anything about the remedies that might be available to her. It was incumbent upon Ms Cox to have deferred her assessment of the plaintiff's possible remedies and eligibility for legal aid until more time could be given to the task either by herself or someone better skilled in that field of law.

[137] Martin CJ said Ms Davidson was in a different position. She was working within the area for which the Commission had granted legal aid. The LAC was not employing her to give general advice, nor had she been given instructions by the appellant to give general advice.

[138] Martin CJ then observed that perhaps the LAC had failed in its duty of care to the appellant by the way it conducted itself in giving assistance to people who sought its services. However, he could make no finding about that, as it had not been put forward before him. In any event, he said, the LAC was vicariously liable for Ms Cox's breach of duty.

[139] In summarising his views about breach of duty, Martin CJ emphasised that the breach by the two solicitors lay in their failure to recognise the possibility, on the information before them, that the appellant had a remedy under the Work Health Act for incapacity, even although at the time they saw the appellant the possible incapacity seemed inconsequential. He remarked that it is common for an injury which seems minor at the time it happens to be the cause of significant incapacity at a later time. In view of the importance in the Territory of a worker's rights under the Work Health Act he expressed the opinion that:

[64] It seems to me that a solicitor confronted with a client seeking advice in relation to remedies arising from an injury sustained at the workplace, especially when coupled with medical evidence that the client has suffered an incapacity as a possible consequence of injury, should recognise that the Work Health Act may provide a remedy and thus take the required steps to preserve the client's prospects of entitlement under it.

[140] Finding on causation. Martin CJ referred to the fact that the appellant had not given evidence about what she would have done if she had been advised by Ms Carney or Ms Cox that a Work Health Act claim might be available to her. The submission made on her behalf at the trial was that the court should draw an inference from all the facts in the case that she would have pursued any remedy available to her under the Work Health Act had she been advised that she might succeed in obtaining such remedy. He also referred to a submission made on behalf of the solicitors that it was not open to him to draw an inference in favour of the appellant when she had not given any evidence herself of what she would have done if properly advised.

[141] After considering Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332, the Chief Justice concluded that the inference the appellant sought to have drawn was no more likely than that advanced by the solicitors.

[142] Failure of appellant's case; provisional finding on damages. It followed from Martin CJ's finding on causation that the appellant's case must fail. However, in case he was wrong about causation, he assessed damages.

[143] In approaching the assessment of damages, Martin CJ took the view that if the appellant's case under the Work Health Act would certainly have succeeded then the amount of damages would be what she would have been awarded pursuant to that case, but if the case was less than certain to succeed but not in the class that could not have succeeded the court would have to assess the value of the appellant's lost opportunity as was done in Kitchen v Royal Air Force Association (1958) 1 WLR 563. He then gave reasons why he thought the appellant's case would have succeeded. Saying that he was adopting the principles in Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351 and Nikolaou v Papasavas Phillips &Co [1989] HCA 11; (1988) 166 CLR 394, and noting that it had not been submitted there should be any different approach to damages because the appellant's case against Ms Carney was based on contract and against the LAC on tort he found that the appellant would have obtained compensation.

[144] However, this compensation would, in his opinion, have been quite limited. In reaching this conclusion, he said:

I consider that the plaintiff would have succeeded in demonstrating total incapacity for a period covered by the medical certificate, and after taking into account the evidence of Dr Kalnins, the period would have been extended by about a further month. Beyond that the evidence does not show, on the balance of probabilities, that the plaintiff was incapacitated. She was not employed full-time or at all for many periods after that, but as of June 1996 the Court could not be satisfied that that was due to relevant incapacity. As at that date there was no basis upon which the Court could have made an order for continuing payment of compensation for incapacity.

[145] On this basis, he allowed her eight weeks for total incapacity to 28 June 1995, which with adjustments came to $7,102, and medical expenses agreed at $318. The appellant's costs in her unsuccessful proceedings in the Work Health Court were $10,000, and in her unsuccessful appeal $8,000, and she had been ordered to pay PPI's costs in the two courts of $6,515 and $7,564. The total of these costs was $32,079. Thus, had the appellant succeeded at the trial, the trial judge would have entered judgment for the total of $7,102, $318 and $32,079, together with interest at 8 percent to be paid from

June 1996 to date of judgment "on the award for loss of chance" (presumably $7,102) and from the date upon which she made payment of each item of costs outlaid by her.

[146] Because, as I understand, neither the appellant nor the respondents argued that the trial judge's assessment of damages should be disturbed, if the appellant were to succeed on liability, it is not necessary to examine the reasoning leading to the amounts set out in the preceding paragraph. However, I should record that the trial judge made his assessment after a careful analysis of the lengthy evidence which had been put before him concerning damages. He did not think the appellant had been truthful in her account of her job history. As earlier mentioned, one consequence of this was that he felt unable to accept Dr McLaren's opinion evidence, as his opinions had been formed on the basis of the quite incomplete history given to him by the appellant, and he had been reluctant to modify it in a way the judge thought necessary, when he was given a more accurate account to work with when in the witness box. The conclusion the judge reached on the extent of the appellant's incapacity was principally based on his understanding, after analysis, of Dr Kalnins' evidence.

The submissions in the appeal and consideration of them

[147] Breach of duty. The questions whether Ms Carney or Ms Cox or both of them had been in breach of duty are logically the first questions to be dealt with in considering the appeal, (although they were not argued by the respondents, pursuant to notices of contention, until after the appellant had in opening address argued the causation point).

[148] The respondents' submissions on duty were generally to the effect that there was nothing in the facts as known either to Ms Carney or Ms Cox, at the time they had a duty to advise the appellant of any causes of action which might be available to her, which should have caused them to consider the possibility that the Work Health Act might be applicable. These submissions were substantially the same as those which were made to the trial judge. Since I think that the way in which Martin CJ dealt with these submissions so far as they concerned Ms Carney was quite appropriate in the circumstances I see no need to go over in detail the ground which he covered and which I have abstracted in par [135] above. During the course of her retainer Ms Carney had information in her possession that the appellant had suffered an injury at work, that a medical practitioner had certified that for a limited period she was unable to work, that she had seen another medical practitioner (2AB 940) and that she had been receiving counselling as a result of the injury. She had also agreed in cross-examination that she had had experience of Work Health Act cases and that had she considered all the material in her possession she would have thought that there was a possibility that the appellant might have a Work Health Act claim. Martin CJ relied on these matters, describing them somewhat more fully than I have done in coming to his conclusion about breach of duty, and in my opinion he was right in doing so.

[149] The position was somewhat different in regard to Ms Cox. She was concerned with the appellant on only the one occasion after which any responsibility for further consideration of the appellant's general position lay with the LAC (the direct as distinct from the vicarious responsibility of which was not as I have earlier mentioned the subject of litigation). Nevertheless, her record of her interview with the appellant shows that she knew of the appellant's employment, an injury in the course of the employment and the fact that the circumstances of the injury had deeply disturbed the appellant. In Ms Cox's defence it was said that the way in which, in her observation, this deep disturbance manifested itself, did not suggest potential incapacity on the part of the appellant but a simple and understandably angry wish to obtain whatever justice she could get from PPI by legal proceedings to compensate for her feelings of outrage. I see considerable force in this, but I also bear in mind that in all Australian jurisdictions workers compensation is a matter of basic importance and that this is particularly so in the Northern Territory which earlier than most Australian jurisdictions began to restrict workers common law rights, leaving the Work Health Act the main recourse for injured workers in many circumstances. Although Ms Cox's main legal experience was said to lie in fields other than that of the Work Health Act, I think that in the circumstances of the Northern Territory she should have been sufficiently aware of the possibilities under the Work Health Act to have realised that those possibilities should be mentioned to the appellant. (This is an additional consideration in the case of Ms Carney also.)

[150] Causation. The appellant argued, in the simple manner I mentioned towards the beginning of these reasons, that the appellant's history and her actions in regard to the causes of action of which she was advised, required the inference that had she been told of the possibility of a Work Health Act claim, she would have pursued it.

[151] For the appellant it was also argued that there was an error in the trial judge's approach to the question. It was said that he reasoned directly from the fact that the appellant had not given evidence of what she would have done had she been advised concerning the Work Health Act to the conclusion that she had not discharged the onus of proving that she would have taken Work Health Act proceedings in those circumstances. In my opinion, the trial judge's reasons make it clear that that was not the way in which he arrived at his conclusion. Rather, after taking all the evidence into account he found that he was not satisfied by the evidence that the appellant would have taken Work Health Act proceedings had the advice been given which he considered should have been given.

[152] The main arguments for the respondents depended on their submissions concerning the Industrial Relations Act, the Anti-Discrimination Act and the Crimes (Victims Assistance) Act. These submissions went to the issues both of causal connection between the respondents' breaches of duty (if that were found against them) and the appellant's damage, and to damage itself.

[153] The general effect of the argument as to causal connection was that if the appellant had been advised of the potential Work Health Act cause of action, the proper advice to have given was that everything that could be obtained under such an action could be more easily obtained through the other three causes of action available to the appellant. The argument was that at the time when the advice would have been given, the facts supporting any Work Health Act proceeding, which would have depended on establishing incapacity, were at the best skimpy and could not at that time have founded an award of any significance. Therefore, the appellant, acting sensibly, would not have taken any steps under the Work Health Act.

[154] I do not think the foregoing argument should be accepted, because I do not think the major premise is correct. In my view the amounts recoverable by a claiming party under the Work Health Act, the Anti-Discrimination Act and the Victims Assistance Act are independent of one another, although in some circumstances they may overlap. I agree with the conclusions reached by Martin C. J. in his decision of 1 August 2001 in this respect, and generally with his reasons, which I have earlier summarised, for those conclusions.

[155] Another argument for the respondents was that if proceedings were commenced in the six months following the assault suffered by the appellant, they would at that stage have been very speculative and have put the appellant at risk as to the costs, which she would be unlikely to have undertaken. The premises of this argument seem to be soundly based on the relevant sections of the Work Health Act as it stood in 1995. Section 182 would have obliged the appellant to make a claim for compensation within six months after the occurrence of the injury. The claim for compensation spoken of in s 182 was that referred to in s 80(2) and s 82. Pursuant to s 85 once the employer received that claim for compensation, the employer was obliged either to accept liability, defer accepting liability or dispute liability for compensation. The deferral of liability was possible only for a limited time and eventually the employer had either to accept or dispute liability. In the circumstances of the present case, there were two possibilities: (1) the employer may have accepted the appellant's claim and (2) the employer may have disputed it. In the latter event, the appellant would have had to take proceedings for the recovery under the Act of compensation as described in s 182. Section 104(3) required that such proceedings be commenced not later than 28 days after notice under s 85 of the decision to dispute liability was received by the appellant. Section 104 (3), in terms similar to those in

s 182(3) already referred to, provided that failure to make a claim within the 28 days specified by subsection (3) was not a bar to the commencement of the proceedings if it were found that the failure was occasioned by mistake, ignorance of the disease, absence from the Territory or other reasonable cause.

[156] Bearing these matters in mind, it seems to me that the prudent advice that the appellant should have been given was that she had a possible claim under the Work Health Act, that so far as could be seen at the time the advice was being given, that claim might never have any particular significance, but to guard against the possibility that it might, a claim should be made in the prescribed form pursuant to s 82; then, if the employer disputed the claim, there should be an immediate review, in the light of all then available information and possibilities, of the question whether proceedings should be commenced within the 28 days prescribed by s 104(3).

[157] What I have said in the previous paragraph involves nonacceptance of the primary submissions of the appellant and partial acceptance of those of the respondents on the causal question. Also in that paragraph I have set out what in my opinion was the prudent advice which should have been given by a reasonably competent practitioner to the appellant in the circumstances of her case as they were in May 1995 (as regards both Ms Carney and Ms Cox) and from May 1995 until August 1995 (when Ms Carney's retainer came to an end) as regards Ms Carney.

[158] The questions that then become necessary to consider seem to me to be somewhat more complicated than the submission for the respondents recognises. They seem to me to be as follows. (1) Can this court be satisfied that if what I have called the prudent advice had been given to the appellant, she would have instructed her legal representative to serve a claim form on the employer within six months of the assault? (2) If the answer to question (1) is yes, should the court conclude that the employer would have disputed liability? (3) If the answer to question (2) is yes, can the court, on all the material before it, conclude on the probabilities, on the civil onus of proof, that the appellant would have instructed her legal representative to commence proceedings in the Work Health Court? On the other hand, (4) if the answer to question (1) is no, what are the consequences for the appellant's case on appeal? The essential questions can be stated more generally: (5) Did the failure to give the advice which in my opinion should have been given cause or contribute to any damage to the appellant? Or, putting what I think is this same question slightly differently if the employer disputed the claim, (6) Is it is open to the court to infer that if the prudent advice had been given, the appellant would have instituted proceedings under the Work Health Act within 28 days of receiving notice from the employer that the employer was disputing her claim?

[159] In my opinion, the answer to question (1), on the probabilities, is yes. It would have been sensible to take this first step in safeguarding the appellant's position against the possibility that what was, during the six months after the assault on her, a relatively insignificant partial incapacity claim, might as time passed become a more important one. The appellant was anxious to take every step against the employer that was open to her, and taking this first step would not have been expensive. I think it is more probable than not that the prudent nature of this first step, the comparative small cost of it and her feeling of grievance against her employer would have combined to lead her to have the notice served.

[160] On the evidence before this Court, I think the answer to question (2) is also yes, on the probabilities. The evidence shows that the employer disputed the unfair dismissal claim, that Ms Carney was apprehensive about the evidence that she understood the employer to be collecting in opposition to the claim and that that claim was settled for a comparatively small amount. The fact that the employer was combative, taken together with ordinary experience of the way in which doubtful claims are handled by employers (and it is likely the employer would have seen this as a doubtful claim if made within the six months after the assault) satisfy me, on the civil standard of proof, that it is more likely than not that the employer would have disputed a claim by the appellant.

[161] I approach the answer to question (3) on the basis that it is asked in relation to the six months after the assault on the appellant, that is, the six months ending either on 1 or 3 November 1995. During the last four months of that time the appellant was working two hours a day five days a week. It was in November that Ms Davidson was doing the unfair dismissal claim for the appellant. From one tiny piece of evidence in the appeal papers (2AB 940) it seems that the appellant told Mrs Davidson about this time of her having obtained the work mentioned two sentences ago. Whether the piece of evidence just referred to means what I have taken it to mean or not, it was the fact at that time. In any event, and leaving that evidence out of account, a prudent legal adviser looking at the situation of the appellant during the six months ending on either 1 or 3 November, would not in my opinion have regarded a Work Health claim as a particularly worthwhile one for the appellant to pursue. As things would have appeared to the prudent legal adviser at that time, at best the appellant stood to gain a small incapacity award and at worst could incur considerable costs were she to lose. On the other hand she had available to her much more promising causes of action. If the appellant had been given the advice that I think at that stage she should have been given, would she have nevertheless decided to instruct her legal representative to commence Work Health proceedings? I do not think I can reasonably be satisfied that she would have done so. When this point of trying to decide what the appellant would have done in hypothetical circumstances is reached, it seems to me that I am passing from an area of already rather elaborate hypothesis to one of speculation. In answer to the question, would the appellant have commenced proceedings, it seems to me that the most reasonable answer, unsatisfying though it is, is that she may or equally she may not.

[162] Having reached this conclusion, it is unnecessary to consider question (4) set out above.

[163] Restating my conclusion on causation, it is that the materials before the trial judge were not, in my opinion, sufficient to justify him in finding in the appellant's favour.

[164] Damage. In view of my conclusion on causation, it is unnecessary to consider this aspect of the tort of negligence. I mentioned earlier that I understood that the parties were content to accept the damages arrived at by the trial judge, if the respondents or either of them should be held liable for negligence. It may be that in saying this I have not fully understood the position of the respondents. In case I am wrong in my understanding of their position, I should perhaps note that I have not given any consideration, one way or the other, to the correctness of otherwise of the trial judge's damages methodology and calculations.

[165] In my opinion the appeal should be dismissed with costs.

[1] This court's attention was not drawn to the fact that the Act in force at the relevant time was the Industrial Relations Act. The Workplace Relations Act came into force in 1996. It seems that Martin CJ's attention was not drawn to this either.