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[2022] WASC 164
General information, not legal advice.
Supreme Court of WA
2022-05-10
Original judgment source is linked above.
1 This was an application by all defendants to strike out the plaintiff's statement of claim with leave to replead refused. At the conclusion of the hearing I indicated I would make orders sought by the defendants. For reasons which follow, I was satisfied that the plaintiff did not have a cause of action, either as pleaded or at all. The statement of claim which led to these applications was filed on 14 December 2021. It runs to 100 pages and it can best be described as a very difficult document. Prior to the hearing, the plaintiff lodged a document described by her as 'Affidavit of Annexure A of the Affidavit of the Plaintiff'. This document appears to be a further reamended statement of claim. That was certainly the way it was treated by counsel for the defendants. If anything, it is an even more difficult document to understand than the amended statement of claim. Nonetheless, counsel proceeded on the basis that document (which I will described as FRSOC) is the document which best sets out the plaintiff's claim.
2 There are some undisputed facts and they can be summarised as follows. The plaintiff was hit by a car when riding her bike on 12 June 2013. On or around 12 February 2016, the plaintiff engaged the first defendant to represent her in relation to a claim against the driver of the vehicle and the Insurance Commission of Western Australia (ICWA). The second defendant is a barrister and was engaged to represent the plaintiff at trial. The third defendant is also a firm of solicitors and it was retained by ICWA to act for the driver of the vehicle, Mr Lyle. On 24 May 2016, the plaintiff issued proceedings out of the District Court claiming damages for personal injuries from Mr Lyle based on the contention that his negligent driving caused the plaintiff injury, loss and damage. The action was tried before Braddock DCJ between 15 and 22 November 2017. Prior to trial, Mr Lyle admitted liability for negligence. He pleaded the accident was contributed to by the plaintiff's negligence. This was one of the major issues at trial. The other major issue was the extent of the plaintiff's injuries. Mr Lyle alleged there were pre-existing conditions which caused or contributed to the plaintiff's disabilities and it was also alleged she had failed to mitigate her loss by unreasonably refusing to take medication to ameliorate her psychological symptoms.
3 Braddock DCJ sat to deliver her reasons on 17 December 2018. Prior to doing so she let the parties' lawyers have an advanced copy of the decision. Armed with that copy of the reasons, the parties were aware, first, that her Honour had determined the plaintiff's own negligence, assessed at 30%, was a cause of the accident and second, that there were a number of mathematical errors in her Honour's assessment of the quantum. At the hearing, when the mathematical errors were pointed out to her Honour, the parties were invited to confer. Her Honour indicated she would deliver her reasons on 19 December 2018.
4 The parties duly conferred and reached complete agreement on what damages the judge had determined having regard to the ratio of her Honour's reasons. It was agreed that:
(a) the plaintiff's damages had been assessed at $808,644, inclusive of special damages prepaid by ICWA;
(b) from that, 30% was to be deducted to account for contributory negligence which produced a sub-total of $566,050.80; and
(c) from this figure then had to be deducted advanced payments made by ICWA to the plaintiff following the accident (being money the plaintiff had already been paid or money that had been paid to service providers on her behalf) which produced a sum of $458,178.80 as Mr Lyle's outstanding liability to the plaintiff.
5 The third defendant captured this consensus in a draft letter sent to the judge inviting her Honour to correct her draft reasons. This letter was sent with the approval of the first defendant. The parties then attended before the judge on 19 December 2018. Her Honour then delivered her corrected reasons.
6 Prior to trial, Mr Lyle (through ICWA), had made an O 24A of the Rules of the Supreme Court 1971 (WA) offer of $500,000, plus costs. The terms of this offer were such that the plaintiff would actually receive $500,000 in hand and keep the advanced payments made by ICWA.
7 At the hearing on 19 December 2018, the second defendant, acting as counsel, sought to have a judgment entered for the amount of the assessed damages, less the 30% for contributory negligence, without also taking off the advanced payments by ICWA. Perhaps not surprisingly, the judge declined to make such an order. Counsel then attempted to persuade the judge that an adverse costs order ought not be made against the plaintiff. Again he failed. The second defendant's efforts could best be described as heroic. In making the submissions he did, he was faced by insuperable obstacles.
8 The plaintiff appealed against the judge's decision. She was unrepresented at the appeal. The grounds of appeal were comprehensive - she took issue with every aspect of Braddock DCJ's decision. Her appeal was dismissed. She now seeks to sue not only her own legal representatives but the third defendant as the solicitors for Mr Lyle and ICWA.
9 It is convenient to begin with the third defendant. There is no basis in the FRSOC to establish the third defendant owed a duty of care to the plaintiff. It would be extraordinary if that were the case. It may well be that in certain circumstances a plea of conspiracy could attach liability to the third defendant but there are no material facts pleaded which could lead to such a conclusion in this case. Mr Lyle, through ICWA, no doubt advised by the third defendant made what turned out to be a very generous offer. The decision of Braddock DCJ makes it plain just how generous that offer was. Under no circumstances could the plaintiff have any complaint or any cause of action against the third defendant. Summary judgment should be entered for the third defendant against the plaintiff.
10 As to the second defendant, he is entitled to advocate's immunity. But even if that were not the case, the plaintiff's allegations appear to be that the second defendant omitted to put relevant evidence before the trial judge or that he was unprepared for trial. There is no substance in either of these submissions. The judgment of Braddock DCJ makes it plain that the plaintiff's case and all aspects of it were put before the trial judge. There is nothing in the FRSOC which suggests otherwise. Quite simply, there is nothing more the second defendant could have done. No claim lies against him and summary judgment should be entered in his favour.
11 Insofar as the first defendant is concerned, there appear to be three main allegations levelled by the plaintiff. The first is the alleged failure to tender and disclose certain information or evidence at trial or to counsel. The second is the alleged failure to provide advice on the O 24A offer or to correct alleged false statements made by the third defendant with respect to the O 24A offer. Third, there are allegations in relation to the first defendant not acting for the plaintiff in relation to the appeal. The first and third of these two complaints can be disposed of quite simply. There are no material facts pleaded in the statement of claim which could lead to a conclusion that the first defendant failed in any respect in relation to the plaintiff's claim. Again, it is enough to refer to the decision of Braddock DCJ. There were no gaps in the evidence. There is nothing in the FRSOC which would support such an allegation. As to the appeal, there was no obligation on the first defendant to act for the plaintiff on appeal. The appeal was hopeless. Doubtless the first defendant recognised that fact and advised the plaintiff accordingly. But even if the appeal had merit there was no duty on the first defendant to act for the plaintiff. Such a duty does not arise even when there has been a pre-existing solicitor/client relationship.
12 In relation to the O 24A offer, pars 6, 6.1(e) - (g) and 6.4(ee) - (gg) allege the first defendant failed to provide proper advice with respect to the O 24A offer. That issue was considered by the Court of Appeal in their decision: Wreford v Lyle [No 3] [2021] WASCA 20 at [329]. The court noted there did not appear to be any misunderstanding on the plaintiff's part of the offer or its practical effect. That really is the end of the matter. The issue cannot be revisited. There is no available cause of action against the first defendant on this issue.
13 During the course of her oral submissions, the plaintiff made two points. First, she said on a number of occasions she was not seeking to relitigate the District Court action. With respect, that is precisely what she is seeking to do. These proceedings are an abuse of process and ought not be permitted to continue on that basis alone. Second, the plaintiff maintained there was an arithmetical error in the calculations of Braddock DCJ which all defendants left uncorrected. She attempted to explain this submission on a number of occasions. Having looked again at the calculations and the way in which damages were ultimately assessed, I cannot see there is any error. Moreover, after the draft reasons were provided, the parties conferred and presented the trial judge with an agreed position. It was not a particularly difficult calculation and I can see nothing in the evidence to suggest it was wrong in any way. The plaintiff has simply failed to make good her claims.
14 The plaintiff's action is entirely without merit. There should be summary judgment for each of the defendants against the plaintiff. Any party who wishes to make submissions in relation to costs should file short written submissions within seven days of the publication of these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.