BECHARA v JAWHAR [2007] NSWCA 25 (26 February 2007)

Last Updated: 16 October 2007

NEW SOUTH WALES COURT OF APPEAL

CITATION: BECHARA v JAWHAR [2007] NSWCA 25
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40523/05

HEARING DATE(S): 10/11/2006

JUDGMENT DATE: 26 February 2007

PARTIES:
Appellant - MARIA TERESA BECHARA
Respondent - WILLIAM WAHIB JAWHAR

JUDGMENT OF: Beazley JA McColl JA Bryson JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2322/04

LOWER COURT JUDICIAL OFFICER: Judge Naughton QC

LOWER COURT DATE OF DECISION: 8 June 2005


COUNSEL:
App: R.J. Ellicott Q.C./R.N. Gye
Resp: G. Laughton SC/J. Callaway


SOLICITORS:
App: Deborah G. Marriott
Resp: Owen Hodge Lawyers


CATCHWORDS:
LEGAL PRACTITIONERS - solicitor's negligence - client seriously injured at work on 30 July 2000 commenced Common Law damages proceedings on 23 November 2001, hence deemed by then WComp Act s.151A to elect against permanent loss compensation - CLD proceedings later discontinued because no evidence of negligence - client sued solicitor claiming negligence in (a) advice whether to sue at common law or claim damages, on WComp rights, election and amount of permanent loss compensation and (b) acting on instructions to issue CLD proceedings. Client recovered damages in DCt. On appeal, consideration in detail of evidence and findings on advice given to client by solicitor, junior counsel and senior counsel - errors of fact-finding on terms of advice - found, no breach of duty having regard to terms of advice given. Consideration of - causation where clear advice not to sue was disregarded - solicitor's duty to bring proceedings where client so instructs, before enactment of LPAct 1987 s.198J. Appeal allowed.

LEGISLATION CITED:
Civil Liability Act 2002 Sched.2
Legal Profession Act 1987 s.198J
Suitors’ Fund Act 1951
Workers Compensation Act 1987 ss.66, 67 & 151A; Schedule 6 Pt.18C; Div.4 Pt.3
Workers Compensation Legislation Further Amendment Act 2001

CASES CITED:
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1
Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300
Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120
Ridehalgh v Horsefield [1994] Ch 205

DECISION:
(1) Appeal allowed with costs.
(2) Set aside judgment for the plaintiff in the District Court and in lieu thereof give judgment for the defendant with costs.
(3) The respondent is to have a Certificate under the Suitors’ Fund Act 1951.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40523 of 2005

BEAZLEY JA

McCOLL JA

BRYSON JA

MONDAY 26 February 2007

MARIA TERESA BECHARA v WILLIAM WAHIB JAWHAR

Judgment

1 BEAZLEY JA: I agree with Bryson JA.

2 McCOLL JA: I agree with Bryson JA.

3 BRYSON JA: The appellant Ms Bechara, who is a solicitor, appeals against the judgment given against her on 8 June 2005 by his Honour Judge Naughton QC, awarding the respondent Mr Jawhar damages of $146,271.00 and costs for professional negligence. On 30 July 2000 Mr Jawhar, a boilermaker and wrought iron worker, was employed by R.M. Constructions Pty Ltd as a general hand in construction work for a warehouse building then reaching completion at Bourke Road Alexandria. He suffered serious injuries, including a skull fracture with permanent brain damage, in an accident at work. He was found by workmates at the bottom of some stairs in a basement or cellar. The circumstances of the accident are not clearly known as Mr Jawhar suffered amnesia for a period of 17 days including the event in which he was injured; and no witness to the event has ever been located. On one occasion he remembered some minor details, but Mr Jawhar has no significant memory of the event.

4 Ms Bechara, acting on Mr Jawhar’s instructions, filed a Statement of Claim on 23 November 2001 in which Mr Jawhar claimed Common Law damages against R.M. Constructions Pty Ltd. The Common Law proceedings were later discontinued and Mr Jawhar did not recover any damages, but by commencing those proceedings he elected against claiming permanent loss compensation, an important part of his Workers Compensation entitlement. Mr Jawhar’s claim for damages against Ms Bechara was based on alleged professional negligence in issuing the Common Law proceedings and in advising him on his Workers Compensation entitlements and on the effect that commencing Common Law proceedings would have on them.

5 The Trial Judge made this summary of the findings about Mr Jawhar’s injury (Red 16-17):

In summary, the plaintiff's main injuries caused by the accident were:

1. A severe closed head injury with permanent cognitive, behavioural and physical deficits.

2. A probable fracture of the right shoulder with a rotator cuff tear.

3. Fractured right fifth and sixth ribs.

4. Soft tissue injuries to the neck and lower back.

5. Complete loss of smell.

6. Substantial loss of taste.

7. Tinnitus.

The injuries were complicated by significant depression and anxiety, which are continuing.

6 The Trial Judge also found (Red 17-18):

All of the plaintiff's injuries were managed conservatively both in and out of hospital. He has not had any operations and is unlikely to in the future. He has continued to take various medications and will continue to do so. In court the plaintiff presented as intelligent and articulate but periodically confused and lacking in memory. I have found that he has been like that since first consulting the defendant on 2 November 2000. The plaintiff speaks good English and with careful explanation is, and has been since 2 November 2000, I have found, capable of understanding the legal principles and factual considerations relevant to his accident and subsequent claim ... Counsel for both parties informed me that in their opinions the plaintiff was of sufficiently sound mind, memory and understanding to give instructions to his lawyers at all relevant times since the accident. I have accepted that that was so.

7 In 2000 Ms Bechara carried on sole practice at Ashfield as "Bechara and Company” and had staff, who at least at some times included an employed solicitor. After being admitted in December 1991 Ms Bechara worked for about 2 1/2 years as an employed solicitor, and from 1994 onwards she conducted her own practice as principal. She has mainly worked in the area of personal injury law including workplace, motor vehicle and public liability accident work, negligence claims and workers compensation claims, for plaintiffs and applicants. Mr Jawhar first consulted Ms Bechara for legal advice on 2 November 2000; they had not met before then. There is no finding and it would seem there is no document or event which definitively establishes the responsibilities which she undertook in her retainer, but it is plain from the Trial Judge's findings and the conduct of the parties that her professional responsibilities included advising Mr Jawhar on his rights to damages and to workers compensation, and conducting the Common Law proceedings which she commenced for him. Her retainer extended to obtaining advice of junior and senior counsel, and to instructing counsel to settle his Statement of Claim. Ms Bechara is entitled to rely on advice given to Mr Jawhar by junior counsel and by senior counsel, and to advice of counsel which Ms Bechara passed on to Mr Jawhar, as if it had been advice given by her in accordance with her retainer.

8 The Trial Judge said (Red 62):

The plaintiff sued the defendant both in tort (negligence) and in contract. Having regard to the absence of any specific instructions at the outset of the retainer the plaintiff's claim is properly to be regarded under the law of tort rather than under the law of contract. See Hawkins v Clayton (1988) 164 CLR 538, at 574-575 (per Deane J) and Vulic v Bilinsky [1983] 2 NSWLR 472, at 482-483 (per Miles J as he then was). See also Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351, at 363 (per Wilson, Toohey and Gaudron JJ).

In my opinion where a solicitor has a contractual retainer to do work which is expressly or impliedly defined by contractual arrangements the claim for professional negligence against the solicitor is properly based upon the contractual relationship and on breach of the promise to exercise due care, skill and diligence in carrying out the work which is implied in such a relationship. See Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 at 20-23 [44] to [48] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Liabilities in tort arise where there is no contractual retainer. Negligence law may create a penumbra of duty additional to contractual obligations, as risk of loss becomes reasonably foreseeable in the course of carrying out a contractual retainer. The duty to advise in the present case is within the contractual duty without resort to the penumbra: the existence of the penumbra, on which doubt was thrown in Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1 at 118 [364] by McPherson AJA, is not significant in the present appeal. On the facts of the present case it was not contended that the appellant’s duty was affected by these distinctions, and in my opinion it is not.

9 A central assumption upon which the District Court proceedings were conducted throughout by both parties and by that Court is that Mr Jawhar was not entitled, after 27 November 2001, to permanent loss compensation in respect of his injury because, according to the terms of s.151A of the Workers Compensation Act 1987, in the form which s.151A took until 27 November 2001, he was taken to have made an election to claim damages in respect of the injury from his employer by commencing proceedings in the Supreme Court to recover those damages.

10 In 2000 and for most of 2001 s.151A made provisions including the following:

151A

(1) In this section and in section 151V:

damages does not include damages to which Part 6 of the Motor Accidents Act 1988 applies or Chapter 5 of the Motor Accidents Compensation Act 1999 applies;

permanent loss compensation means compensation under Division 4 of Part 3 (Compensation for non-economic loss).

(2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both:

(a) permanent loss compensation in respect of the injury, and

(b) damages in respect of the injury from the employer liable to pay that compensation,

but is required to elect whether to claim that permanent loss compensation or those damages.

(3) The person makes that election (or is taken to have made that election):

(a) by commencing proceedings in a court to recover those damages or by accepting payment of those damages (in which case the person ceases to be entitled to permanent loss compensation in respect of the injury); or

(b) by commencing proceedings in the Compensation Court to recover that permanent loss compensation or by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury).

...

(4) An election is irrevocable...

11 Significant changes were made by the Workers Compensation Legislation Further Amendment Act 2001, the relevant parts of which took effect on 27 November 2001. These included repeal of s.151A and its replacement by a different s.151A which did not turn on the concept of actual or deemed election, by commencing proceedings for damages or otherwise. Transitional provisions gave the earlier form of s.151A continuing effect in circumstances stated in Schedule 6 Pt.18C of the Workers Compensation Act as amended by the 2001 Amendment Act; and Mr Jawhar’s claim for recovery of damages fell within those circumstances.

12 The reasons of Basten JA with whom Ipp JA agreed in Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355 (McColl JA dissenting), and the majority disposition of that appeal, show that there are or may be circumstances in which, where before 27 November 2001 a person commenced proceedings in a court to recover damages and the procedural requirements of s.151C as then in force had not been followed, commencement of the proceedings did not bring about the election or deemed election for which, on their face, the words of s.151A then provided. That decision and the opinion of the majority were not available at the times of hearing in the District Court and of argument of this appeal. The facts which took Humphreys out of s.151A were not alleged or proved in the present case. Passages in the pleadings establish that both parties in the District Court took the position that commencement of Common Law proceedings constituted an effective election within the meaning of s.151A; see Para 7 of the Statement of Claim (Red 3) and Para 7 of the Notice of Grounds of Defence (Red 11). A member of the Court of Appeal informed counsel of the possible significance of the pending decision in Humphreys in which judgment was then reserved, and later, when that decision was available, the parties were given an opportunity to make further written submissions. A written submission by Senior Counsel for the appellant sought to make an argument, on a claimed analogy with the reasoning which underlay Humphreys, for the non-application of the earlier s.151A. In my opinion the Court of Appeal should not allow a new issue of this kind to be raised in this way. There is in my opinion no reason to depart from the assumption that there was an effectual election, to which both parties adhered at all times at first instance.

13 Mr Jawhar's entitlement to weekly payments, and to other classes of compensation significantly medical expenses, was not lost on any view and he has received continuing weekly payments. The permanent loss compensation, entitlement to which ceased on making an election for damages under s.151A as in force on 22 November 2001, was defined in subs.(1) in terms which referred to compensation for non economic loss under Div.4 of Pt.3 of the Workers Compensation Act, that is to awards of lump sum compensation under s.66, which provides for the award of lump sums (which are set out in a table) for a number of permanent impairments or permanent losses, and s.67 which relates to lump sum awards for pain and suffering resulting from losses falling within s.66. The Trial Judge assessed damages on findings establishing what permanent loss compensation would have been recovered if Ms Bechara had made an application for permanent loss compensation on behalf of Mr Jawhar and that application had been determined on 1 April 2003. The Trial Judge found that the hypothetical award which would then have been made would have been $112,650.00, of which $85,150.00 was the sum of entitlements under s.66 for a number of permanent losses and impairments - brain impairment, loss of sense of smell or loss of sense of taste, impairment of neck, impairment of back, impairment of right arm at or above elbow and impairment of right leg at or above knee; and $27,500.00 was 55% of the amount available in the most extreme case under s.67. The Trial Judge also awarded sums in respect of abortive costs, fees and other expenses and prejudgment interest to reach the assessment of damages of $146,271.00. This assessment was not challenged on appeal, except in a minor respect with which it is not necessary to deal.

14 The Trial Judge based his decision on two kinds of grounds upon which in his Honour’s opinion Ms Bechara was in breach of her duty of care and incurred liability. First were the advice grounds (Red 64):

In the present case, for reasons which have already been explained, the defendant failed to advise the plaintiff properly about his right to lump sum compensation under ss.66 and 67 of the Workers Compensation Act 1987. She also, for reasons which have already been explained, failed to advise him properly about his right of election, and how it operated, pursuant to s.151A of that Act. In those respects she breached her duty of care to the plaintiff.

15 Second were the grounds relating to commencing Common Law proceedings (Red 64):

Having so failed to advise the plaintiff properly, the defendant also breached her duty of care to the plaintiff by filing the statement of claim on 23 November 2001 and thereby eliminating his rights under ss.66 and 67 of the Act.

His Honour went on:

There were no reasonable prospects of being able to prove any of the allegations of negligence contained in the statement of claim. I have found that the plaintiff knew that. It was no answer to say, as she did, that she filed the statement of claim "because the plaintiff instructed me to do so." The plaintiff had not been properly informed and advised by the defendant about the workers compensation rights that he was giving up, and that the mere filing of the statement of claim, without more, constituted, in law, an irrevocable election not to claim lump sum payments under the Act. The instructions were flawed because of the defendant's failure to properly inform and advise him. The situation was akin to the absence of "informed consent" before medical procedures are agreed to.

16 The occasions on which advice relevant to Mr Jawhar’s claim was given to him by Ms Bechara or by counsel, as found by the Trial Judge, were:

Date	Present	Conference type	Red reference
2.11.00	Appellant, Respondent and his wife	Face to face	22
21.8.01	S. Galitsky of Counsel, Appellant, Respondent, his wife, Mrs Kavidis (employee of Appellant)	Face to face	27
13.9.01	P Neil SC, Appellant, Respondent, his wife	Face to face	31
10.10.01	Appellant, Respondent, his wife	Face to face	39
21.11.01	Appellant to Respondent	Telephone	42
22.11.01	Appellant to Respondent	Telephone	47

17 The Trial Judge addressed alleged failures of Ms Bechara to advise Mr Jawhar properly about his right to lump sum compensation, and about the effect on his rights of an election pursuant to s.151A and how the right of election operated. Her retainer obliged Ms Bechara to advise Mr Jawhar about his right to lump sum compensation and about his election under s.151A and how the election operated. Her retainer also obliged her to advise Mr Jawhar on all aspects of those subjects relevant to his situation and affairs; the advice required went as far as but not further than the advice which a reasonable legal practitioner acting reasonably in carrying out a retainer to advise would have gone. As well as fulfilling the literal or implied terms of the retainer to advise, Ms Bechara was obliged to exercise general care, skill and consideration in acting on instructions of or in the interest of Mr Jawhar; this can bring with it somewhat wider fields of responsibility than the literal terms of a retainer. For Mr Jawhar to succeed it was also necessary for him to show that a breach of Ms Bechara's contractual duty to give advice caused him to give the instructions to issue the proceedings and by doing so to lose his entitlement to permanent loss compensation; involved in which is that that failure caused him to disregard the advice against issuing proceedings for damages which he received from Ms Bechara and others.

18 At the trial both parties tendered expert evidence of experienced legal practitioners with respect to aspects of the conduct of the business which Ms Bechara carried out for Mr Jawhar. Mr David Trainor, a solicitor with extensive experience in personal injury litigation, gave evidence of professional practice in the respondent's case. His reports were tendered in Ex F and Ex G. A form letter which he uses was admitted – Ex H. This form letter would inform a client in clear terms of the basic realities of the two alternative remedies, the manner in which an election is made and its irrevocable effect when made. The client is asked to sign written instructions which acknowledge receipt of the advice and clearly state which of the two courses the client instructs the solicitor to take. Among other useful advice the form letter states (Blue 1/68):

We advise as follows:

1. You have the option of either commencing a common law claim against your employer or bringing a claim for permanent impairment under the Workers Compensation Act.

2. You must make an election as to which remedy you wish to pursue. An election is made by commencing proceedings either in the District Court (in the event that a common law claim is to be brought) or in the Compensation Court of New South Wales (in the event of a permanent impairment claim).

3. Once either proceedings are filed the die is cast, and the election is irrevocable.

19 The evidence of experts is expressly referred to in the Trial Judge's reasons only in the following passage at (Red 58):

The defendant sought to have the plaintiff confirm in writing his instructions to proceed with the matter. She sought to do that by asking him to return to her signed copies of some of her post 23 November 2001 letters to him. She had taken no such steps before filing the statement of claim. I have accepted expert evidence from two Law Society accredited personal injury specialist solicitors that in 2001 it was the usual practice of solicitors in workplace accident cases to get written instructions from potential plaintiff/applicant clients as to whether they wanted to opt for common law proceedings or workers compensation, including lump sum workers compensation, proceedings, before filing initiating court process. A pro forma explicit draft letter for signature in that regard was tendered and became Exhibit “H”. As to the acceptance of evidence from expert solicitor witnesses concerning matters of common practice among competent solicitors see Permanent Trustee Australia Ltd v Boulton & Lynjoe Pty Limited (1994) 33 NSW LR 735, at 738 (per Young J, as he then was) and Miller v Cooney [2004] NSW CA 380, at [25] (per Sheller JA, with whom Hodgson and Santow JJA both agreed).

20 This passage shows that the Trial Judge did not draw on the expert evidence when reaching conclusions about what was required of Ms Bechara if she were to conform with her contractual duty with respect to the advice given to Mr Jawhar, except in the respect, which is significant but not central to the decision, of obtaining written instructions relating to election under s.151A. It must be taken that the Trial Judge acted principally on his Honour's knowledge of legal professional practice in coming to conclusions about what was required of Ms Bechara. In relation to the aspects of legal practice under consideration and the interests of Mr Jawhar which were involved, on which much litigation comes before the courts, the Trial Judge was correct to act on judicial knowledge. This would not be the correct approach for all aspects of legal practice, or for all cases about other skilled professions and occupations.

21 Submissions on behalf of Ms Bechara accepted and contended that the appropriate advice to be given to Mr Jawhar was advice which conveyed to him that if he commenced common law proceedings he would lose his rights to lump sum compensation under the Act. The appellant’s counsel contended to the effect that appropriate advice of this kind had in fact been given; and submissions attacked the Trial Judge’s findings which would show otherwise. It was submitted that it was not essential that the word “election” should be used or that the concept of election should be explained; it was contended that Mr Jawhar needed to be told that the act of commencing proceedings destroyed the right to lump sum compensation. It was also contended that it was not necessary to quantify or give estimates of the lump sums to which Mr Jawhar would have been entitled as permanent loss compensation.

22 Mr Jawhar first consulted Ms Bechara on 2 November 2000. Their conference took three hours. The Trial Judge accepted Ms Bechara’s oral evidence in chief of what took place and the advice she gave. The Trial Judge's findings about this consultation and the advice then given must now be set out at length (Red 22-24):

Various suggestions from unidentified sources were made as to how the accident might have happened. They included falling down concrete stairs, falling from scaffolding, and being the victim of some falling object. A report by a consultant clinical psychologist and neuropsychologist (Melissa Staples) dated 13 November 2002 stated (p 2):

“... It was noted that on admission to hospital that Mr Jawhar had felt dizzy/light-headed and nauseous while working alone in a basement drilling earlier on the day of the accident... The initial impression recorded in the medical notes (of The St George Hospital) was that Mr Jawhar had fallen due to possible arrhythmia (heart trouble), a neurological event or syncope (becoming unconscious for a short time because of reduced flow of blood to the brain).”

None of the above suggestions went beyond speculation.

The plaintiff first consulted the defendant for legal advice on 2 November 2000. He had not met her before. He attended with his wife. He himself had been unable to renew his driving licence since the accident. He told the defendant that he had no memory about the accident and that he did not know whether there were any witnesses or whether Work Cover had investigated the accident.

Work Cover had not investigated the accident because it had not been notified of it. The plaintiff had been taken home after the accident by one or two of Mr Choker’s employees. From home he was taken to The St George Hospital by ambulance arranged by his wife.

In her oral evidence in chief the defendant said, and I have accepted

“I said (to the plaintiff): `You have entitlements under a workers compensation claim. Those entitlements include average weekly wages for a period of 6 months if you are totally incapacitated and thereafter statutory rates will apply, which will include a rate for any dependants. You are also possibly entitled to lump sum compensation. There is a table under the Workers Compensation Act for what is called loss of a thing. You have to be permanently impaired. That’s a claim in respect of s.66. There’s also a claim for what’s called s.67. That’s for pain and suffering but you only get that if you are entitled to more than 10 per cent of the maximum payable under s.66. You are entitled to be paid your reasonable medical expenses.

With a workers compensation claim you do not need to prove that your employer was negligent. What you need to establish is that your injury was incurred in the course of your employment and that your employment was a substantial contributing factor to your injury.

With respect to a claim for ss.66 and 67 I wouldn’t be able to advise you on those entitlements until we’ve received expert medical evidence.’

I then said that, ‘The other claim you possibly have is a common law claim.’ I said, `With a common law claim you need to establish negligence against your employer.’ I said: `If you do pursue a common law claim you are entitled to be paid past and future economic loss and non-economic loss.’

I said: `With respect to the claim for economic loss there are certain thresholds you need to overcome.’ I said that, `With respect to non-economic loss there are also thresholds which you need to overcome.’ I said also: `You are entitled to claim for what’s called “domestic assistance”, whether gratuitous or paid. That assistance will need to arise because of your injuries.’

I also said that, `Under a common law claim you’re entitled to claim past and future expenses.’ I then said: `Under a workers comp claim the insurer will pay my costs. If you pursue a common law claim you will be required to pay my costs, on a solicitor/client basis, and you will need to enter into a costs agreement with me. I charge - ’ and told him my hourly rate ($280 an hour and lower for staff time).

I then said: `Because of the apparent seriousness of your injuries you should consider bringing a common law claim as you are likely to receive substantially more damages than you would under a workers compensation claim but the big problem with that is that you don’t recall how the accident happened. In those circumstances I cannot see a case of negligence against your employer unless you do in the future recall what happened to you and/or you get witnesses to say what happened to you. I would then give you further advice about whether what you recall or what these witnesses say is such as to establish negligence against your employer.’

He said: `I will make inquiries to see if there are any witnesses and whether the accident has been investigated by Work Cover.’

`Q. Did he say anything to you about common law versus workers comp?

A. Not at that time, no.

Q. Did you say anything else about the subject?

A. I don’t recall saying anything else.’”

23 The Trial Judge also referred to evidence given by Ms Bechara in answer to leading questions in cross-examination that she had referred to election of rights as between common law damages and workers compensation lump sum damages. His Honour said of this evidence (Red 25) “I have found that she had not or that, if she did, it was in a perfunctory and unsatisfactory way only.” His Honour referred to several matters in support of this finding, including the absence of reference and statement of terms of the advice on election in evidence in chief, and the absence of any reference in Ms Bechara’s extensive file notes. The Trial Judge commented on several respects in which there was an absence of detail about the amount which might possibly be recovered as lump sum entitlements. The Trial Judge did not refer to the support which the inherent probabilities appear to give to there having been some reference to election in the conference; the advice as narrated by evidence in chief referred to two different kinds of remedy and would be unintelligible unless there was some indication whether or not these two remedies were cumulative or alternative, and to how they acted together; and it appears to me to be quite improbable that a solicitor with any experience of work of this kind would not refer to there being alternatives and to the need for election. Mr Jawhar gave no account of events at the conference which might be thought to establish positively that election was not referred to or explained.

24 The Trial Judge’s finding in the sentence I have quoted is quite unfortunately expressed, as on an overall view of the Trial Judge’s reasons it is very significant to know what the finding was about whether or not election was referred to at all. Cross-examining counsel elicited evidence from her that she recalled advising Mr Jawhar generally of his rights in relation to election (Black 3/520-521) and that she could give evidence of the effect to the words used (Black 3/521); that she had a practice of giving such advice (Black 3/521): but did not elicit in detail what she had said or challenge her claim to have dealt with the subject. Ms Bechara had a forensic burden to deal with whether the advice was given and it is an unsatisfactory aspect of her evidence that she did not deal with the subject in her evidence in chief: but Mr Jawhar had a legal burden to prove that the advice was not given. The Trial Judge’s approach to this finding was not appropriately accommodated to Mr Jawhar’s onus of proof. As I see no reasonable ground for rejecting this part of Ms Bechara’s evidence, and the Trial Judge did not state a ground or clearly reject it, I am of the view that the correct finding of fact is that Ms Bechara’s evidence in cross-examination on this subject was true, and I should act on that basis.

25 The Trial Judge observed (Red 24-26):

Two things are apparent about the above advice:

1. There was no reference to election rights as between common law damages and lump sum payments under the Workers Compensation Act 1987. In particular, there was no reference to the irrevocability of an election to claim common law damages and to the point that the filing of a statement of claim itself constituted such an election.

2. The advice about lump sum entitlements did not tell the plaintiff what the maximum amounts were under ss.66 and 67 and that the actual amounts were to be quantified by percentage proportions of those maxima according to the seriousness of the relevant impairments. Nor was there any mention of the $10,000 threshold under s.67(2) for the purposes of a lump sum payment referable to pain and suffering. It was clear as at 2 November 2000, as the defendant acknowledged, that the plaintiff had serious ongoing impairments, at least to his brain.

In answer to leading questions in cross-examination the defendant said that she had, in the conference on 2 November 2000, referred to election of rights as between common law damages and workers compensation lump sum payments. I have found that she had not or that, if she did, it was in a perfunctory and unsatisfactory way only. If she had referred to the matter, or done so other than perfunctorily, it is likely that she would have said so in chief and stated the approximate terms in which she spoke. Even in cross-examination she did not state the terms of any alleged advice about election. In re-examination the point was not revisited. The defendant’s three page file note of what occurred at her conference with the plaintiff on 2 November 2000 made no reference to election under s.151A of the Workers Compensation Act 1987. If it had been mentioned it is likely that it would have been referred to in the file note. The defendant wrote no letters to the plaintiff before 21 November 2001 referring to any of his rights under the Workers Compensation Act 1987.

26 In the advice Ms Bechara told Mr Jawhar that he had entitlements to workers compensation, and gave an outline of those entitlements, including referring to a possible entitlement to lump sum compensation for permanent impairment and pain and suffering, which are the subjects of ss.66 and 67 of the Workers Compensation Act. Ms Bechara said that she would not be able to advise on those entitlements until she had received expert medical evidence. She also referred to a possible common law claim and to entitlements for damages under such a claim, and said that she could not see a case of negligence against the employer and that she could give further advice if Mr Jawhar could in the future recall what had happened or could get witnesses to say what had happened.

27 At the first conference, at which Mr Jawhar had very little information to give Ms Bechara, comprehensive detailed advice could not reasonably be given, and the Trial Judge’s characterisation of what was said on this subject as perfunctory and unsatisfactory is itself unsatisfactory. Advice on lump sum compensation, on its quantum and on election at the first conference could not possibly be satisfactory. Satisfactory advice about what he should do would have to be addressed after inquiries and whatever information was available could be seen. The effect of the finding appears to me to be that it established that at the first conference Ms Bechara referred to the election of rights as between common law damages and workers compensation lump sum payments. Events at the initial conference could not reasonably be the test overall of Ms Bechara’s liability, and the finding does establish that the subject of election was part of the advice given when Mr Jawhar was first told about the two different remedies. Ms Bechara’s advice on the first occasion was plainly against pursuing common law remedies unless further information emerged; and in this way supported pursuing only workers compensation remedies.

28 The Trial Judge's findings show that in 2001 Ms Bechara attempted to obtain information, and to promote activity by WorkCover. Findings show (Red 26-27):

On 31 January 2001 the defendant wrote to Work Cover asking it to “advise whether your Department has investigated the accident and, if so, the status of the investigation.” The letter was not answered. On 9 March 2001 the defendant sent a follow-up letter to Work Cover. It was not answered until 17 April 2001. The answer stated that “No record of the subject matter was located”, and indicated that Work Cover would not make further inquiries unless the defendant was “able to provide further details”. She was unable to do so.

On 21 May 2001 the defendant again wrote to Work Cover. She requested it to “conduct an investigation of the work accident”. She did not provide any further details of it. The letter was not answered.

By mid 2001 the plaintiff, like other New South Wales personal injury lawyers, was generally aware that significant legislative changes were imminent by which common law claims for damages arising out of workplace accidents were to be seriously curtailed. She thought, like other personal injury lawyers, that those changes would occur at some time in 2001, probably towards the end of the year. They occurred on 27 November 2001.

On 26 June 2001 the plaintiff sent letters to five of the plaintiff’s doctors, and one of his psychologists, requesting reports, including answers to 18 questions. These included (relevant to ss.66 and 67 of the Workers Compensation Act 1987):

“10. Any permanent impairment/loss of use of a limb or part of the body likely to result from the injury received, including percentage loss of function and, if applicable, the extent that any pre-existing conditions contribute to the loss.”

29 Ms Bechara arranged a conference with Mr Galitsky of counsel; the brief dated 7 August 2001 requested counsel (Red 27I-K):

“To advise generally and draft relevant documentation. Counsel is also requested to advise whether our client should consider pursuing a claim for workers compensation or a common law claim and the prospects of succeeding at common law.”

The brief did not expressly refer to lump sum payments under ss.66 and 67 as distinct from continuing weekly compensation and medical expenses, nor to election between common law damages and permanent loss compensation.

30 The conference with Mr Galitsky took place on 21 August 2001 and was attended by Mr Jawhar and his wife, Ms Bechara and her employed solicitor Ms Petroulakis (later Mrs Kavidis). The Trial Judge made these findings about the conference (Red 28-30):

Present at the conference with Mr Galitsky were the plaintiff and his wife, the defendant and the defendant’s young assistant, Catherine Petroulakis. I have accepted Mr Galitsky’s version of what happened, and what advice he gave, at the conference. His advice was not confirmed in writing.

Mr Galitsky said in his evidence in chief:

“We were all focused on the question of whether proceedings at common law should be commenced, because there was a deadline for doing so, towards the end of 2001.”

Mr Galitsky said that he had “a fairly clear recollection of the conference. He said that the plaintiff was “quite articulate and spoke quite good English.” He continued:

A great deal of time was spent trying to find out exactly what happened to the plaintiff. It was clear that he had memory impairments, which made it very difficult to find out what occurred. It was very difficult for me to get a picture of what occurred to him. It was very difficult for me to understand what task or tasks he was performing at work, and it was impossible for me to understand how it was that he sustained injury.

I told Mr Jawhar: `When you sue at common law you must demonstrate that your boss was at fault, he did something wrong or he had you doing work in circumstances which presented you with danger. I don’t know what went wrong. I don’t know what work you were doing. I don’t know what the danger was. We cannot conclude from the fact that you were injured that your boss is at fault.’

He (the plaintiff) must have asked me for an explanation. We spent a lot of time going around this question of fault.

There was a question of whether there were any witnesses, anyone who could throw light on this question. Mr Jawhar said to me: `The people at work don’t want to get involved. They fear for their jobs.’

I think I spoke to him about that problem, people not wanting to be involved. Mr Jawhar said something to the effect: `Some of the people there don’t speak English and won’t find it easy to find alternative work.’

I said: `Well it’s very much in your interest to find people at least to speak to us about your problem.’

There was quite some conversation about trying to get someone else’s evidence but I had to say to him: `On what we know at the moment, and on what we can demonstrate at the moment, we would be very hard pressed to establish a case in negligence. If you bring a case on the evidence that you have told me you will lose.’

Mr Jawhar said: `This is unfair’ and what rights did he have, ‘This is very unfair.’

I said: `This is the system. Common law requires fault.’

He asked me what rights he had. I said to him:

‘Well, you have rights under workers compensation legislation, which does not require you to prove fault. You are already receiving payments of weekly compensation and while you are unable to work these payments will continue, possibly to age of 66. As well, you may get lump sum compensation (I can’t recall if I said that or ss.66 and 67) for loss of effective parts of your body and, if you pass the threshold, also for pain and suffering. These amounts are very modest (or very mean). This is quite small in comparison to what you could get at common law.’

I don’t believe I quantified the amount under workers compensation. [I have found that he did not]. I certainly described it as ‘modest’ or `quite small’. `This is quite small in comparison to what you could get at common law.’

The plaintiff said: `I have nothing to lose by going for common law.’

I said to him: `That’s wrong. Not only do you give up the lump sum component of workers compensation, you also expose yourself to the risk of having to pay costs if you lose. On what we know of your case you will lose so you will have the burden of costs.’”

In cross-examination Mr Galitsky said: “At the time of the conference I understood that everyone at his workplace was reluctant to come forward.”

31 This passage in the Trial Judge’s findings was followed by these observations and findings critical of Mr Galitsky’s advice (Red 30-31):

Three things are apparent about the advice which Mr Galitsky so gave:

1. The advice about lump sum payments under the Workers Compensation Act 1987 was deficient in the absence of reference to what the maximum amounts payable under ss.66 and 67 were, to the principle of percentage proportions having regard to seriousness of impairments, and to the $10,000 threshold under s.67(2). Again, it was clear, and must have been to Mr Galitsky, that the plaintiff had serious ongoing impairments, at least to his brain.

2. The advice about election was unclear and incomplete. It did not indicate that if a statement of claim, claiming common law damages, was filed that of itself would constitute an irrevocable election not to claim lump sum payments under ss.66 and 67 of the Workers Compensation Act 1987. It did not indicate that if the plaintiff commenced common law proceedings and then discontinued them, as in fact occurred, he would, notwithstanding the discontinuance, not be entitled to claim lump sum payments under the Act.

3. Mr Galitsky made it clear that if a common law proceeding was commenced on the current state of the evidence it would, in his opinion, fail.

In notes made at the conference by Ms Petroulakis it was recorded that: “Work Cover investigators are not 1st class investigators” (emphasis in the original). It was further recorded that: “The amount of hard evidence you get from Work Cover is limited.” I have found that those were the general beliefs of all who were present at the conference on 21 August 2000.

32 The appellant challenged (Ground 2) the Trial Judge’s finding that advice given by Mr Galitsky of counsel on 21 August 2001 concerning election under s.151A was unclear and incomplete. The Trial Judge accepted Mr Galitsky’s evidence of the events and advice at the conference (Red 28). In the findings the Trial Judge restated, as a continuous narrative, evidence which Mr Galitsky had given in the form of questions and answers. In the Trial Judge’s restatement there is no passage which represent the following evidence given by Mr Galitsky (Black 3/577-578):

A. [Galitsky]: ... Now at this point I do recall saying to Mr Jawhar that there was a choice he had to make if he wished to take the benefits of workers compensation lump sums, he should not commence Common Law proceedings.

His Honour: Q. Sorry could you repeat that? “I recall telling him there was a choice which he had to make”?

A. Yes.

Callaway: Can we have the first person your honour?

His Honour: Q. Could you do that please?

A. I said words to the effect, “If you want to have workers compensation lump sums, you cannot commence proceedings at Common Law.”

33 When regard is had to the whole of Mr Galitsky’s evidence including this passage, the Trial Judge’s adverse observations about the advice about election do not in my opinion have a reasonable basis. The Trial Judge did not say to the effect that he rejected the omitted passage; he did not mention it at all. It is in every way improbable that Mr Galitsky, when briefed to advise generally and also to advise whether Mr Jawhar should consider pursuing a claim for workers compensation or a common law claim, did not refer to electing between the two remedies and the manner in which election took place. If he raised the subject of two remedies and did not say how entitlement to one related to entitlement to the other no-one would understand what he was saying: he would not understand what he was saying himself. There is no rational ground why, having otherwise accepted Mr Galitsky’s evidence, it should be understood that the Trial Judge rejected this passage. It is quite difficult enough to understand the Trial Judge’s observations in the light of the last passage of advice in Mr Galitsky’s evidence as narrated in the judgment (“That’s wrong. Not only etc.”); When the omitted passage is also brought to bear, it is in my opinion altogether clear that the Trial Judge’s conclusions are wrong. Mr Galitsky’s evidence of his advice about election cannot fairly be characterised as unclear and incomplete and it did indicate that Mr Jawhar could not commence common law proceedings if he wanted to have workers compensation lump sums; in language directed at a layman, this was in my opinion quite as clear and complete as a statement that filing a Statement of Claim for common law damages itself would constitute an irrevocable election not to claim lump sum payment. Mr Galitsky’s advice “If you want to have workers compensation lump sums, you cannot commence proceedings at Common Law” has my commendation for its plainness and clarity.

34 In my opinion the Trial Judge took a wrong view of the meaning and effect, and indeed of the terms of Mr Galitsky’s evidence with respect to advice on election and the effect of commencing common law proceedings. There was an error in fact finding in the Trial Judge’s not having found that Mr Galitsky advised Mr Jawhar in the terms found in Mr Galitsky’s evidence. Mr Galitsky’s having given this advice, in the presence of Ms Bechara and Mr Jawhar, has a prominent place in assessing whether Ms Bechara discharged her own professional duty.

35 Mr Jawhar also received advice in a conference with Mr P. W. Neil SC on 13 September 2001, attended by Mr Jawhar and his wife and Ms Bechara. The Trial Judge accepted Mr Neil SC’s evidence of what happened and the advice he gave at the conference. The Trial Judge made the following findings about advice given by Mr Neil SC (Red 31-34):

The plaintiff was unhappy with Mr Galitsky’s advice. At the defendant’s suggestion he agreed that she arrange a conference with senior counsel. That conference was held on the afternoon of 13 September 2001. It was with Mr P W Neil, SC. His brief was dated 10 September 2001 but was not delivered to his chambers until the morning of 13 September 2001. He said that it included 5 volumes of material. It, like Mr Galitsky’s brief, requested counsel:

“to advise generally and draft relevant documentation. Senior Counsel is also requested to advise whether our client should consider pursuing a claim for workers compensation or a common law claim and the prospects of succeeding at common law.”

Mr Neil began practice as a barrister in Sydney in 1977. He was appointed Senior Counsel in 1996. He said that his practice, both as a junior and senior barrister, was “mainly in common law, criminal law and general commercial law.

Like Mr Galitsky’s brief, the brief to Mr Neil, SC made no reference to lump sum payments under ss.66 and 67 of the Workers Compensation Act 1987, as distinct from continuing weekly compensation and medical expenses. Nor did it contain any reference to election of rights as between common law damages and such lump sum payments. The brief included copies of the reports which had been included in Mr Galitsky’s brief plus some other ones. These included a comprehensive report dated 15 August 2001 from Dr G T Bowring. He was a specialist in rehabilitation medicine who had been attending the plaintiff since 8 August 2000 at the Department of Rehabilitation Medicine at The St George Hospital.

Present at the conference with Mr Neil, SC was the plaintiff and his wife, and the defendant. I have accepted Mr Neil’s version of what happened, and what advice he gave, at the conference. Like Mr Galitsky’s advice, his also was not confirmed in writing. Mr Neil said in his evidence in chief:

“I asked the defendant in the presence of the plaintiff and his wife was there any particular matter they sought my opinion on. Ms Bechara said the plaintiff had been seriously injured and wanted to know what common law right he had in the matter to recover maximum compensation.

I was aware from the brief (perhaps histories in medical reports) that the plaintiff had a memory problem about the circumstances of the accident. Before the conference I had not been able to form any view about liability because there was nothing which assisted me to know how the accident happened. So I asked the plaintiff a number of questions - if he had any memory of the accident. He replied, `No’.

I asked him what his last memory was before the accident. He replied to the effect that it was either leaving the house or travelling to work that morning. I asked him what his first memory was after the accident. He replied either that he arrived home in a vehicle driven by two work mates or arrived home feeling very sick with head pain and generally painful symptoms around his head, neck and shoulders.

I asked if there were any witnesses to the accident. He and the defendant both answered that none had been located. I asked the plaintiff if he could say who he was working with on the project at the accident site in the period of a few days before the accident day. He gave some names which I can’t recall.

I asked what was known about the circumstances of the accident. Mr Jawhar replied to the effect that people at the work site had told him that he had been found unconscious lying at the bottom of a flight of concrete stairs which had been constructed but not tiled and which, at the time of the accident, did not lead anywhere other than down to a low level where there was a small flat area, that he’d been found there by a person or persons on the site and assisted up, but that he himself had no memory of those events.

I asked some other questions of Mr Jawhar concerning the effects of the accident upon him, and some questions arising out of some of the medical reports in the brief. He replied that his head injury was his most serious injury.

All of that took some time. I was then asked for my view of whether there were prospects of Mr Jawhar bringing common law proceedings. I was told either by the defendant or the plaintiff that a workers compensation claim had been made and was being paid and that medical expenses were being covered.

I then gave the plaintiff my advice of the opinion I’d formed. I said to them both words to the effect:

`On the material in my brief, and having regard to your instructions here, in my opinion you do not [Mr Neil’s emphasis] have a viable common law action because you cannot remember how the accident happened and there is no material, as I see it, from which we can establish how the accident happened and, therefore, I do not see how on this material we can show that you were injured as a result of the negligence of your employer. Therefore, if this position continues, my advice is that you should rely on your workers compensation entitlements because if you bring a common law action and lose [my own emphasis] you will have given up your workers compensation entitlements except for weekly payments.’

I also said to Mr Jawhar:

`Ms Bechara will be aware that I don’t practise in workers compensation and as to details of any value of your workers compensation you should rely on her or on Mr Galitsky because that is not my area.’

Mr Jawhar turned to his wife and spoke rapidly in Arabic and moved his hands and I looked at Ms Bechara. She said to me: `Mr Jawhar is very unhappy with that advice and thinks there must be something which can be done to get him full compensation.’

I said: `I understand your disappointment and I’m sorry that that’s my advice. I can’t really add to it. Also, I can’t really change it.’

I said: `I suggest, if possible, some further investigations be carried out as to the circumstances surrounding the accident.’

I said: `Ms Bechara may be able to speak to some work mates or get a private investigator to try and find out what happened, and if any further information comes to light I’ll be perfectly happy to look at it and, if required, review my opinion.’”

36 The Trial Judge made the following observations and findings about the advice given by Mr Neil SC (Red 34-36):

Four things are apparent about the advice which Mr Neil, SC so gave:

1. He disavowed any ability to advise properly about workers compensation entitlements generally. In particular, he said nothing about lump sum payments under ss.66 and 67 of the Workers Compensation Act 1987. He had not been asked to.

2. His advice about election between common law damages and “your workers compensation entitlements except for weekly payments” was wrong. His advice was that if the plaintiff commenced common law proceedings and lost then he would have “given up” his entitlements under the Act, “except for weekly payments”. The plaintiff did not have to “lose” his common law action to lose his lump sum entitlements under the Act. He lost those by simply filing a statement of claim, even if he discontinued that claim before it was determined. Mr Neil’s advice did not recognise and make clear that the mere filing of the statement of claim constituted an irrevocable election not to claim lump sum payments under ss.66 and 67 of the Act relating to injuries caused by the subject accident. I have found that the plaintiff was misled by the subject advice, as evidenced by a letter which he wrote to the defendant on 20 June 2002. I shall return to consider that letter later on.

3. Mr Neil’s advice implied that if the plaintiff commenced common law proceedings and lost he would lose his continuing right to payment of medical expenses. That was not so.

4. Like Mr Galitsky, Mr Neil, SC made it clear that if a common law proceeding was commenced on the current state of the evidence it would, in his opinion, fail.

37 The Trial Judge commented that Mr Neil SC said nothing about lump sum payments under ss 66 and 67 and that he had not been asked to. I do not understand why his Honour made this observation as the terms of Mr Neil’s advice which the Trial Judge accepted clearly show advertence to workers compensation entitlements other than weekly payments and in the context of what was being spoken of, the reference must have been lump sum compensation. The Trial Judge also observed that Mr Neil’s advice about election was wrong. While Mr Neil’s advice fell short of a full exposition, and more could have been said, what the Trial Judge regarded as a deficiency in the advice had no real significance because a reasonable person hearing the advice would think that bringing a common law action and discontinuing it is losing it, and because the reference was to having already given up workers compensation entitlements before losing the common law proceedings.

38 Mr Neil SC was not called on by his instructions or the needs of the occasion for a rigorously complete exposition of the subject of election. What he said was reasonably clear, suitable to the occasion, and unmistakable, particularly having regard to what Mr Galitsky had earlier advised. Mr Neil SC’s advice strongly reinforced other indications that Mr Jawhar should not commence common law proceedings. In assessing whether she failed in her professional duty Ms Bechara is entitled to the benefit of Mr Neil SC’s advice.

39 Further findings by the Trial Judge show that Ms Bechara communicated with WorkCover by letter of 29 August 2001, with further exchanges of correspondence in September which left open the possibility that WorkCover might take some action but indicated no more than that. The Trial Judge found (Red 36):

It was the defendant’s opinion in September 2001 that no common law proceeding should be commenced before Work Cover had responded to her letter of 11 September 2001. On 14 September 2001 she wrote to the plaintiff saying:

“We confirm Mr Neil’s advice that on the evidence available he will not recommend that you pursue a common law action. We also confirm that we are to await the investigation by Work Cover prior to advising you further with respect to a common law claim.”

40 The Trial Judge observed that Ms Bechara's letter of 14 September 2001 said nothing about the right to claim lump sum payments under ss.66 or 67, and said nothing about election of rights between the two alternatives. The Trial Judge said (Red 37):

In particular, it made no mention of the fact that the filing of a statement of claim would itself operate as an irrevocable election not to claim lump sum payments under the Act. The letter, or another one, should have made mention of those matters. In the circumstances the plaintiff’s mind was unduly focused on common law rights to the exclusion of workers compensation rights, including rights under ss.66 and 67 of the Act. I have found that that was because the defendant did not properly advise the plaintiff.

41 Serious and continuing problems attended any claim for common law damages; the Trial Judge referred to the absence of assistance from WorkCover, the inability of Mr Jawhar to recall how the accident happened and to find any witnesses and the unsuccessful outcomes of inquiries of persons whom he had suggested may have some knowledge. The Trial Judge referred to evidence of Ms Bechara which showed that at 14 September 2001 Mr Jawhar’s best course in her opinion was to pursue workers compensation rights; and the Trial Judge said (Red 37):

But she did not say that in her letter of 14 September 2001 or in any other letter. Nor did she attempt to give any explanation for not doing so. There was no evidence that at any stage she recommended to the plaintiff that he should opt for lump sum payments under ss.66 and 67 of the Workers Compensation Act 1987 (together with weekly benefits and medical expenses under the Act) rather than seek common law damages.

42 Ms Bechara gave Mr Jawhar some further advice at a conference on 10 October 2001. Mrs Jawhar attended the conference. Mr Jawhar had sent Ms Bechara a letter which requested (Red 38) "... a conference with you so you can tell me in details as to how are you going to proceed and explain what is common law and workers compensation". His letter contains passages which show that Mr Jawhar had some understanding of the difficulties in the path of the common law claim. Among the passages which show this were (Red 38) "God, I think we got buckleys in winning common law claim, if the barristers know what they are talking about, you could end up fighting a lost war, ....”; “The big question is will we win it? You and everyone else is aware of the risk involved, we need to prove my employer was negligent, something I can't do. The barristers are both sceptical of winning common law claim because of lack of witnesses and inability to prove negligence on part of the employer, also the first work cover inspector that I spoke with ...said to me ‘I suggest to you not to claim common law unless you are 100% sure of winning, otherwise it could be very risky.’” Ms Bechara disputed receiving this letter and said in oral evidence that she could not remember receiving the letter nor remember whether it was on her file. The Trial Judge found on the balance of probabilities that she did receive the letter. This was the subject of a body of submissions from both parties; I do not think the issue is of importance for the appeal, as the principal significance of the letter is what it shows about Mr Jawhar’s own understanding.

43 The Trial Judge made the following findings about events of 10 October 2001 (Red 40):

In her oral evidence the defendant said, and I have accepted, that at the conference with the plaintiff (and his wife) on 10 October 2001 the plaintiff asked her: “Can you explain to me the difference between workers compensation and common law?”. She said that she replied:

“As I have previously told you, in workers compensation your entitlements are for average weekly payments, and also possibly lump sum entitlements, as well as reasonable expenses. If you commence a common law claim, by commencing those proceedings, you will not be able, if you lose your common law proceedings [my own emphasis] to claim lump sum entitlements under the Workers Compensation Act. Mr Galitsky has given you some indication about what the lump sum entitlements are worth. I can’t add anything further.

Unless the result of the Work Cover investigation is favourable to your case, or unless we can find witnesses, or you have a recollection of how your accident occurred you should not commence common law proceedings because we can’t establish negligence against your employer.”

44 The Trial Judge made the following observations and findings (Red 40-41):

I have not accepted that the defendant had herself previously advised the plaintiff about election of rights as between a common law claim and workers compensation, including lump sum payments under the Workers Compensation Act. Nor have I accepted that Mr Galitsky had given the plaintiff any indication about “what the lump sum entitlements are worth.” Both he and the plaintiff denied that and I have accepted their denials. Otherwise, I have accepted the defendant’s above version of what she said to the plaintiff on 10 October 2001.

The defendant’s advice about election between common law and workers compensation lump sum benefits was wrong in the same way that Mr Neil’s advice was wrong. Her advice, like his, was that if the plaintiff commenced common law proceedings and lost then he would not be able to claim lump sum benefits under the Workers Compensation Act 1987. He lost the right to claim such benefits by simply filing a statement of claim, even if he discontinued that claim before it was determined. The defendant’s advice, like Mr Neil’s, did not recognise and make clear that the mere filing of the statement of claim constituted an irrevocable election not to claim lump sum payments under ss.66 and 67 of the Act relating to injuries caused by the subject accident. As I have already stated in respect of the similar advice from Mr Neil, SC, I have found that the plaintiff was misled by the subject advice, as evidenced by a letter which he wrote to the defendant on 20 June 2002. As already noted, I shall return to consider that letter later on.

By now (10 October 2001) the defendant had been given unclear, incomplete and wrong advice about election rights by Mr Galitsky (on 21 August 2001), Mr Neil, SC (on 13 September 2001) and the defendant (on 10 October 2001). In addition, he had not been sufficiently informed about the nature and extent of lump sum payments claimable under ss.66 and 67 of the Act. As counsel for the plaintiff put it in his final submissions, the plaintiff did not know what he was potentially “giving up” when the statement of claim was filed.

45 In my opinion the advice, even when taken at the most literal level, was not wrong; while more could have been said, including that discontinuing the proceedings without an adverse judgment was losing them, it was not negligence to omit to point that out; pointing that out could only mean something to a person who thought that if he discontinued proceedings he had not lost them. The advice as found did state that there would be no ability to claim lump sum entitlements if a common law claim was commenced and that this would happen “by commencing those proceedings”. This explained the matter, in my opinion, sufficiently fully and clearly to discharge this part of Ms Bechara’s professional duty. Its force is enhanced by the circumstance that both had heard Mr Galitsky give advice to the same effect.

46 On 21 November 2001 events began to happen at speed. Mr Jawhar sent Ms Bechara a fax message early in the day referring to attempts to speak with her (Red 42) “...to ask you if you have commenced common law proceeding” and referring to the expected change in the compensation law; he asked (Red 43) “Would you kindly let me know the status of the matter before the end of tomorrow, Thursday the 22nd.” The Trial Judge’s findings show that Ms Bechara feared that Mr Jawhar would sue her if she did not commence common law proceedings on his behalf before the amending legislation came into force. Ms Bechara’s assistant Ms Petroulakis attempted to obtain information from WorkCover, without success. Ms Bechara spoke to Mr Neil SC who suggested that Mr Galitsky be asked to draft a Statement of Claim and said that he would settle the draft. The Trial Judge’s findings went on (Red 44):

The defendant then telephoned the plaintiff and informed him of those things. Her evidence was that she said to the defendant:

“Mr Jawhar, as previously advised to you, if you commence common law proceedings you will make an election. You can’t go back and claim lump sum entitlements under a workers compensation claim. That election is irrevocable and occurs when I file the statement of claim. I cannot give you any guarantee that you will win a common law claim and as I have previously advised you, and Mr Galitsky and Mr Neil have advised you, on the evidence we have you do not have a common law claim.”

Although I am satisfied that the defendant referred to election in that telephone conversation I have not been satisfied that it was in the above terms. If it was it was different (without explanation) from the terms in which she put the matter when she advised the plaintiff about election on 10 October 2001. On that occasion she had indicated that the election would not be operative until the common law proceeding had been commenced and lost. Even if the terms of her advice about election were as she said, the advice was insufficient. It did not provide any detail about ss.66 and 67 of the Workers Compensation Act 1987, but needed to if the advice was to be adequate. Otherwise the plaintiff had no sufficient understanding of what he was giving up before the filing of the statement of claim.

47 The unexplained difference to which the Trial Judge referred appears to be that on 10 October 2001 Ms Bechara said to the effect (Red 40) “If you commence a common law claim, by commencing those proceedings you will not be able, if you lose your common law proceedings to claim lump sum entitlements ...”. Whereas on 22 November she said (Red 44) “.... If you commence common law proceedings you will make an election. You can’t go back and claim lump sum entitlements under a workers compensation claim. That election is irrevocable and occurs when I file the statement of claim.”

48 The Trial Judge’s observation that on 10 October 2001 Ms Bechara had indicated that the election would not be operative until the common law proceedings had been commenced and lost is a tendentious and debatable interpretation of what was said on 10 October 2001, but even if it is correct, there is no marked anomaly between what Ms Bechara says she said on the two different occasions in this respect. The reason given by the Trial Judge for not accepting her evidence of what she said on 21 November 2001 is not a sufficient cogent or reasonable ground for rejecting her evidence, and it was an error of fact not to accept it.

49 Late on 21 November 2001 Ms Bechara sent Mr Neil SC a fax message giving instructions to draft Statement of Claim and to involve Mr Galitsky in the process, and sent a corresponding message to Mr Galitsky. Counsel did not in fact make contact with each other and each prepared a draft Statement of Claim. Ms Bechara adopted Mr Neil SC’s draft; it contained allegations of negligence but there was of course no evidence to support any of those allegations.

50 Mr Galitsky drafted a Statement of Claim and sent the draft to Ms Bechara on 22 November 2001, accompanied by a note. Ms Bechara did not adopt Mr Galitsky’s draft Statement of Claim, but she read the note to Mr Jawhar in a telephone conversation also on 22 November 2001. The tenor of Mr Galitsky’s note overall is entirely adverse to filing the draft Statement of Claim which he had prepared. The Trial Judge found (Red 46-47):

Mr Galitsky’s draft statement of claim arrived in the defendant’s office first. It arrived at 9-25am on 22 November 2001 with a note in the following terms:

1. I received a fax late on 21 November requesting a Draft Statement of Claim. As I previously advised, I cannot see a successful cause of action on the facts with which I have been briefed. Mr Jawhar has no memory of what occurred and cannot explain why he was on any set of stairs. There is no explanation of why or how he fell, what caused the fall and how, if at all, any negligence or breach of duty arises.

2. I understand Mr Jawhar wishes to press common law proceedings. The consequences of failure should be stressed, both of the election that he makes (under the present regime) and the costs consequences. I consider failure inevitable.

3. I have prepared a draft Statement of Claim. I cannot recommend that it be filed. I lack the time to draw a Part 9 rule 27 Statement but particulars may be gleaned from the medical reports.

Serge Galitsky”

In his oral evidence Mr Galitsky said:

“I must have been prompted to draft a statement of claim. I did draft a very bare bones statement of claim which I faxed to Ms Bechara’s firm with a short memo saying `I do not believe this statement of claim should be filed.”

Mr Galitsky said that he could not remember what the “prompting” was.

51 The Trial Judge made the following findings and observations about this note (Red 47):

Paragraph 2 of the accompanying note referred to “election”. It seemed to link it with failure of the proposed common law action rather than with commencement of it. It therefore continued the wrong advice given in that regard by Mr Neil, SC on 13 September 2001 and by the defendant on 10 October 2001. The point is important because the defendant said that she read the note to the plaintiff before filing the statement of claim. It is therefore likely that the previous wrong advice was reinforced in the mind of the plaintiff shortly before the filing of the statement of claim.

52 This passage means that the Trial Judge found that Ms Bechara did in fact read Mr Galitsky’s note to Mr Jawhar. The Trial Judge’s observations lose whatever significance the Trial Judge attributed to them because his Honour had taken factually wrong views of the earlier advice and what it meant. On any view the Trial Judge’s observation about the effect of paragraph 2 is strained and not justified by its terms.

53 Findings by the Trial Judge (Red 49) also establish that Ms Bechara telephoned Mr Jawhar on 22 November 2001 and told him that she had received Draft Statements of Claim from counsel and:

He expressed delight and confirmed that delight in a letter wrongly dated 21 November 2001 which the defendant received at 5-12pm on 22 November 2001. On 23 November 2001 the defendant again spoke to the plaintiff by telephone and he confirmed to her that he wanted a statement of claim to be filed. She accordingly proceeded to have one filed, as already referred to.

54 The Trial Judge also found that when the Statement of Claim was filed (Red 56):

I have found that neither she nor the plaintiff had any reasonable cause to believe that any such evidence [that is, evidence in support of the allegations of negligence] would be forthcoming.

55 Referring to Mr Jawhar’s instructions on 21 November 2001 to have counsel draft a Statement of Claim and for it to be filed and served the Trial Judge found (Red 45):

I have found that the plaintiff gave that instruction because he did not know that he had any worthwhile claim for lump sum benefits under ss.66 and 67 of the Workers Compensation Act 1987. I have found that that was because he was not properly advised by the defendant.

56 This is the Trial Judge’s finding on the question of causation. His Honour later restated this finding and attributed lack of proper advice to counsel as well. The Trial Judge made the following findings about Mr Jawhar’s state of mind at the time when the Statement of Claim was filed (Red 42):

Although the plaintiff conceded in cross-examination that at the time when the statement of claim was filed (23 November 2001) he was still hoping to find the evidence he needed to prove his employer negligent, I have found that that was an objectively unrealistic hope incapable of being fulfilled. I have further found that both the plaintiff and the defendant knew that at the time. Nothing happened between the times of the conferences with Mr Galitsky on 21 August 2001 and Mr Neil, SC on 13 September 2001 and when the statement of claim was filed to improve the plaintiff’s position in proving negligence against his employer.

57 WorkCover did, it seems, take some later action, as WorkCover sent Ms Bechara some copies of statements by officers and employees of the employer; these were of no assistance. Ms Bechara took some steps in the conduct of the Common Law proceedings but these were not effectual in the absence of any basis on which to provide further and better particulars or to substantiate the allegations in the Statement of Claim. She obtained further advice from Mr Neil SC which reflected the overwhelming difficulties. She attempted to obtain written instructions from Mr Jawhar to proceed and in doing so sent Mr Jawhar a letter of 13 June 2002. The Trial Judge observed that Ms Bechara (Red 59):

... adverted to the question of election. .... She did so in terms which seemed to continue the previous wrong advice that election as between common law proceedings and lump sum payments under the Workers Compensation Act 1987 was linked to not just commencing common law proceedings but, in addition, losing them. At best her letter was ambiguous on that point. It stated:

“Furthermore, we confirm previous advice to you that by commencing common law proceedings you have made an election and if you lose your case at common law (my own emphasis) you will not be entitled to commence proceedings in the Compensation Court claiming Sections 66 (loss of use or permanent impairment of a limb or body) and 67 (pain and suffering).”

The Trial Judge also said (Red 59):

The letter did not tell the plaintiff that if he discontinued the proceeding he would not be entitled to commence proceedings in the Compensation Court for lump sum payments under ss.66 and 67 of the Workers Compensation Act 1987.

58 Thereafter senior and junior counsel and later the appellant herself refused to provide further advice having regard to s.198J of the Legal Profession Act 1987 which by then had come into effect. Mr Jawhar retained other solicitors and on their advice the common law proceedings were discontinued on 8 July 2003.

59 A number of Grounds of Appeal (3, 4, 9 and 19) in the Notice of Appeal with Appointment filed on 22 September 2005 relate to the Trial Judge’s view, expressed in a number of ways in the judgment, that there had not been advice or adequate advice to Mr Jawhar concerning the worth of his lump sum compensation claims. It is evident from the judgment overall that the Trial Judge regarded it as of prominent importance that the amount potentially involved in a claim for lump sum compensation had not been put before Mr Jawhar in a way which indicated the maximum amount, the need to pass a threshold, considerations affecting quantification and the likely quantification. These subjects did not have the importance which the Trial Judge appears to have attributed to them, as it was made altogether clear by advice which was given that the claim for lump sum compensation was potentially of value and that the alternative course of suing for common law damages should not be pursued; and sufficient information was not available to predict the amount which might be recovered. It was made plain to Mr Jawhar that the lump sum compensation rights were worth having, and in my opinion there is no reasonable basis for concluding that his decision to sue for common law damages was caused by his knowing only in a general way that the lump sum compensation rights for damages were of value, and he would not have so decided if he had had more information about their quantum. If lump sum compensation is of any value, it would not be rational to give it up no matter how much or how little that value was, in pursuit of a damages claim which could not be won.

60 In this connection it was contended on behalf of Ms Bechara that the Trial Judge was in error not to find that Mr Galitsky advised Mr Jawhar that the lump sum entitlements were worth approximately $30,000. Mr Galitsky’s own evidence does not support this quantification; the quantification is supported by evidence of Ms Bechara which the Trial Judge considered, in a manner which I regard as adequate, and did not accept. It was also contended that it was supported by a reference in a file note prepared by Ms Bechara’s assistant Ms Petroulakis (later Mrs Kavidis) but to my reading the note does not give that support.

61 In a letter of 20 June 2002 which Mr Jawhar sent to Ms Bechara, Mr Jawhar stated, among other things (Red 60):

As I understand your letter, if we go ahead with the common law claim and lose, due to the difficulties in establishing negligence on the part of my employer, I will get nothing, and will be ordered to pay the defendant’s costs, but will be able to claim weekly wages and medical expenses. However, the other option that I have at this stage is I could discontinue the common law claim, and (be) entitled to commence proceedings in the Compensation Court claiming section 66 @ 67. But the final decision will be made after we confer with Mr Serge Galitsky. Did I understand your letter correctly?

62 The Trial Judge found (Red 61):

The letter supports the inference which I have otherwise drawn that the plaintiff did not understand his election rights, and the consequences thereof, referable to s.151A of the Workers Compensation Act 1987, before instructing the defendant to commence the common law proceeding on 23 November 2001. That, I have found, was because he was not properly advised by the defendant or either of the two barristers.

63 The letter speaks according to its terms of the effect of the letter which Ms Bechara had sent to Mr Jawhar on 13 June 2002, not of the state of his mind before giving instructions to commence the common law proceedings. Further and more importantly, the test of Ms Bechara’s performance of professional duty is not whether Mr Jawhar understood or later stated that he understood what his election rights were. This is not a case where there were grounds to consider whether more than ordinary steps should be taken to ensure that advice had actually been understood by the client; Mr Jawhar, as the Trial Judge found, was not lacking in capacity or understanding. In my view the Trial Judge gave inappropriate significance to this letter and to the inference that Mr Jawhar did not understand his election rights and the consequences thereof. In my opinion the relevant question for the disposition of the issue of liability is whether Mr Jawhar was properly advised, and if he was not, whether any failure properly to advise caused him to give instructions for the issue of proceedings. The relevant question is not whether or not he was in a position to give an informed consent or was into some analogous state of mind.

64 The appeal should in my opinion be allowed on the ground that there was not in fact a breach of Ms Bechara’s professional duty with respect to advice. A further ground for allowing the appeal is that in my opinion the Trial Judge’s conclusion on causation was wrong in fact even if it ought to be supposed that there was a relevant breach of duty. Proof of causation can be elusive, and address to the subject often involves conclusions about the probable connection between events which are based on inference and views about probabilities and are difficult to support in a clearly articulated way; and it is sometimes difficult to express clearly the grounds for a clear conclusion that a finding at first instance about causation was wrong. Advice was given to Mr Jawhar, expressed in different ways but in each case unmistakably clear, from three sources and in the case of Ms Bechara repeatedly, that he should not commence proceedings. The conclusion that deficiency in the advice caused him to commence proceedings is so anomalous that it cannot be a correct conclusion on the facts. The advice against commencing proceedings was altogether unmistakable. Even if it were correct to decide that the advice was deficient in that it did not explain or did not do enough to explain to Mr Jawhar what he might recover for permanent loss compensation, and did not do enough to explain the manner and the point in the events at which he was taken to have elected against those rights, a conclusion that Ms Bechara caused Mr Jawhar to issue the common law proceedings by advising clearly that he should not do so is outside the range of the conclusions reasonably available to a tribunal of fact.

65 Even if it is correct that the advice should have included further grounds against commencing common law proceedings, the grounds on which the advice was expressly based were altogether correct and were known by Mr Jawhar to be correct, to the effect that there was no evidence to support the claim of negligence. Mr Jawhar understood the advice fully and clearly, and also understood the grounds on which it was based. The conclusion that as a matter of probabilities he would have been dissuaded from commencing proceedings if he had been told more supporting reasons for the advice, when he acted against advice in clear terms and on sound grounds which he understood, is also outside the range of conclusions reasonably available to a tribunal of fact.

66 It is altogether clear, as the Trial Judge found, that on the information and instructions available to Ms Bechara when the Statement of Claim was filed there were no reasonable prospects that Mr Jawhar would be able to prove any of the allegations of negligence contained in a Statement of Claim; and that Mr Jawhar knew that. It is also in my opinion quite clear that Mr Jawhar was advised by Ms Bechara, and also by senior counsel and junior counsel instructed by her whom Mr Jawhar saw in conferences, against commencing proceedings for damages: that he should not do that. It is also clear that Mr Jawhar gave Ms Bechara express and imperative instructions to commence the proceedings for him. In November 2001 Ms Bechara was not restrained by any statutory provision or other principle of law from complying with her client's instructions to commence proceedings; in particular her own opinion about the wisdom or utility of the client’s commencing the proceedings had no impact on whether or not it was her contractual duty under her retainer to do so. A solicitor's duty is different since the amendments to the Legal Profession Act 1987 effected by Sched.2 of the Civil Liability Act 2002 took effect on 20 March 2002. In November 2001 it was not the duty of a solicitor or a barrister in effect to decide a case by refusing to comply with the client's instructions to bring proceedings; and refusal to comply with instructions to take steps which in the lawyer's view were not in the client's best interest could expose the lawyer to liability to the client for breach of contract and conceivably to professional discipline.

67 The principle involved could be compacted into the statement that justice requires trial of cases by courts, not by barristers. The position was clearly stated in Ridehalgh v Horsefield [1994] Ch 205 at 233-234 where the Court of Appeal (Bingham MR, Rose and Waite LJJ) dealt with claims for wasted costs orders and considered the position of legal representatives as clients pursue hopeless cases. Their Lordships said at 234: "Legal representatives will, of course, whether barristers or solicitors, advise clients of the perceived weakness of their case and of the risk of failure. But clients are free to reject advice and insist that cases be litigated." This passage was referred to with approval by Lord Hobhouse of Woodborough in Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 at 143. In Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 at 321 McColl JA gave, as one of the principles appearing from the authorities on costs orders against legal practitioners: “(b) A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he or she acts for a party who pursues a claim or a defence which is plainly doomed to fail ...” (and her Honour cited several authorities including Ridehalgh.) There are perils of other kinds for legal representatives who conduct hopeless cases: they may be exposed to professional discipline or to wasted costs orders; see further decision and citations by McColl JA in Lemoto at 322 [94] to 326 [115]. A solicitor will not, whatever other perils are encountered, be liable to the client for breach of a contractual retainer if the solicitor acts upon the client’s express instructions to commence proceedings. The position of the lawyer in such a situation was addressed and discussed extracurially by Ipp JA, then a Justice of the Supreme Court of Western Australia, in his article “Lawyers’ Duties to the Court” (1998) 114 LQR 63; see particularly pages 85-86.

68 Mr Jawhar was, as the Trial Judge found, of sufficiently sound mind, memory and understanding to give instructions to his lawyers at all relevant times since the accident (Red 18) and the Trial Judge was in error to test his instructions by any consideration akin to absence of informed consent before a medical procedure is agreed to. It was not and could not be a breach of the duty of care to carry out his express instructions to issue proceedings. It would have been a breach of contract not to carry out the instructions.

69 In my opinion the Trial Judge’s conclusions were based on findings of fact which were in error to an extent which requires the judgment to be set aside. On a correct view of the facts it was not shown that the appellant was in breach of professional duty to the respondent. The Court of Appeal should order:

(1) Appeal allowed with costs.

(2) Set aside judgment for the plaintiff in the District Court and in lieu thereof give judgment for the defendant with costs.

(3) The respondent is to have a Certificate under the Suitors’ Fund Act 1951.

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AMENDMENTS:


12/10/2007 - Name of solicitor for the appellant was amended on the coversheet. - Paragraph(s) not applicable


LAST UPDATED: 12 October 2007