Hatzigeorgiou v Baker [1999] NSWSC 134 (3 March 1999)

Last Updated: 3 March 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Hatzigeorgiou v Baker [1999] NSWSC 134

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 11670/90

HEARING DATE{S): 15 February 1999-24 February 1999

JUDGMENT DATE: 03/03/1999

PARTIES:

Milton Hatzigeorgiou and Elias Hatzigeorgiou, Executors in the Estate of the Late Con Hatzigeorgiou (Plaintiffs)

Warwick Baker (Defendant)

JUDGMENT OF: Studdert J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

A. Howen/K. Hawes (Plaintiffs)

R. Kaye (Defendant)

SOLICITORS:

Photios Vouroudis & Co (Plaintiffs)

Mallesons Stephen Jaques (Defendant)

CATCHWORDS:

NEGLIGENCE

solicitor and client

Alternative rights of client to sue at common law and to recover workers' compensation benefits

limit to common law damages insurance cover under statutory workers' compensation policy

whether appropriate advice given

whether client would have acted on further advice

responsibility for delay.

DAMAGES

assessment by reference to delay.

ACTS CITED:

Law Reform (Miscellaneous Provisions) Act, 1944

Workers' Compensation Act

Legal Services Commission Act

Supreme Court Act

DECISION:

See para 110

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

STUDDERT J

Wednesday 3 March 1999

11670/90 MILTON HATZIGEORGIOU AND ELIAS HATZIGEORGIOU, EXECUTORS IN THE ESTATE OF THE LATE CON HATZIGEORGIOU v WARWICK BAKER

JUDGMENT

1 HIS HONOUR: In proceedings commenced in 1990 the late Con Hatzigeorgiou (to whom I shall refer in this judgment as "the deceased") sued Warwick Baker. During his lifetime the deceased engaged the services of the defendant as his solicitor, and the defendant acted for him for some twelve years up until November 1989. Central to the cause now before this Court is the allegation that the defendant failed to exercise due care in the discharge of his professional responsibilities towards the deceased.

2 When he began these proceedings the deceased was unrepresented. Apparently he prepared the statement of claim which was filed and this document was plainly defective in many respects. Following the death of the deceased on 3 November 1993, the plaintiffs Elias Hatzigeorgiou and Milton Hatzigeorgiou assumed the conduct of the cause as plaintiffs. The statement of claim, even in its amended form, is defective and it contains no assertion to this effect, but presumably the claim has been pursued by the plaintiffs as executors of the estate of the deceased and pursuant to the Law Reform (Miscellaneous Provisions) Act, 1944. No point was taken by the defendant as to the form of the pleading before this Court and the hearing proceeded upon the basis I have indicated.

3 The amended statement of claim filed by the solicitors for the executors recast the allegations of negligence to be relied upon and when the hearing began Mr Howen of counsel, for the plaintiffs, presented yet further amended particulars of negligence and these were the focus of the trial as it proceeded.

The deceased sustains injury at work

4 As at 8 August 1977 the deceased was employed as an apprentice panel beater by Nickolas Koumandakis and Nickolasi Petrou, trading as KNP Smash Repairs ("the employers"). On that date the deceased sustained burn injuries at the employers' panel beating shop after paint thinners were spilt on him and his clothing was ignited with a cigarette lighter. The injuries were serious and the deceased was admitted to hospital. The employers invited the deceased to complete a claim form for workers' compensation benefits which contained a false account as to the circumstances in which the burns had been sustained. It appears that the employers were concerned that the true account of those circumstances may have lead their workers' compensation insurer to decline liability under the statutory form of policy which they had. The employers' report of injury (Exhibit 2) contained the following description of injury:

"The injured was welding under a car, he had a bit of paint on his overalls from the previous day, that probably caused the hole [sic] fire."

5 The true position, as eventually found by Allen J, was that "what was intended by all concerned to be no more than harmless horseplay" occurred, during the course of which the contents of a bucket that included paint thinners was tipped on the deceased and afterwards one of the employers lit his cigarette lighter near the deceased's clothing. The clothing then ignited.

6 The deceased was admitted to hospital for treatment and remained there for approximately six weeks.

The deceased consults the defendant

7 The defendant gave evidence as to the circumstances in which he was instructed, as to the advice he gave the deceased, and as to the instructions of the deceased. Whilst the plaintiffs were not able to challenge the defendant's evidence on those matters by direct evidence, Mr Howen submitted that I should not accept the defendant's account as to those matters and indeed generally, particularly where there was absent any file note or written advice of a confirmatory nature.

8 The defendant was in the witness box for best part of four days and in that period he was subjected to very searching cross examination. Throughout this experience the defendant conducted himself with calm and dignity. I was impressed with him as a witness and I formed the assessment not only that he was an honest witness but that he was essentially a reliable one.

9 I accept as reliable the defendant's account as to the advice he gave to the deceased and as to the instructions the deceased gave him. I shall proceed to summarise the defendant's evidence as it bears upon those matters.

10 The defendant was first approached about the deceased's work injury by the latter's then de facto wife. There is no need to dwell on that meeting but subsequently the defendant saw the deceased for the first time in his office in York Street in September 1977. The deceased told the defendant that he had been burned at work by having thinners spilled on him and that the thinners were then set alight. The deceased explained there had been some skylarking going on. The deceased handed the defendant an insurance form, presumably that to which I have already referred. The deceased said that was not the way the accident had happened and the defendant advised the deceased not to submit a claim form with the wrong version. The defendant advised the deceased he would have a claim either for workers' compensation benefits or for damages and the deceased told the defendant that he had not been paid by his employers since the date of injury. The defendant advised the deceased to fill in a Legal Aid claim form.

11 The claim form was duly obtained and the defendant met the deceased in his office once again. On this occasion the defendant said the deceased gave him a more detailed explanation as to the circumstances in which he had been injured and the defendant said that he gave the deceased advice as follows:

"I said to him it sounded as though he might have a damages claim against Koumandakis personally, but that it didn't sound like an ordinary workers' compensation claim because it sounded to me more like an assault with intention that he be set on fire. I said it also sounded as though it was the sort of activity that might not be covered by an ordinary workers' compensation policy because there was not only skylarking going on, but it seemed to be to me that the activity that had been going on might have been outside the normal work situation or outside the sort of work activities that might have been covered by the employer's policy. I said we'd have to make a lot more inquiries but we'd have to take statements from all the witnesses we could lay hands on. I suggested to him that we ought to make a workers' compensation claim for his lost income to test the water to see what sort of a reaction we got when the claim was brought against the insurer, and shortly, during the course of that discussion he spoke to me about some plans that he had and that he said he was looking to go back to work. That's all that was said at that stage about employment. And I then said, `Well, give me some instructions to bring a workers' compensation claim and we'll see what that produces.' He gave me instructions to bring a workers' compensation claim."

12 There was a later meeting just before the defendant filed an Application for Determination in the Workers' Compensation Commission. At that meeting the deceased informed the defendant that he had a position at La Parisienne restaurant and that he was earning more than he would have been in his pre-injury employment. Hence the Application for Determination was for a closed period only.

13 Then early in 1978 the defendant described a long conference with the deceased in which he gave advice as follows:

"... I told him that workers' compensation was a mean system because people who were injured at work generally only got weekly workers' compensation and they didn't get any more than that. That the system was designed to give them weekly compensation to replace wages when they couldn't work or to give them a top up if they were able to, if they were earning less than they had been formerly. It didn't give them at that stage anything in the nature of a large sum at one go for injuries they'd suffered or for wounds and burns that he had suffered. I told him that it depended. He had to be injured in the course of his job to get that benefit and that he had to be disabled or incapacitated at that stage, but he had to be unable to work or to be partly unable to work in order to get weekly compensation payments.

I told him that we had seen, by that stage we had spoken to a large number of witnesses. We had a much clearer idea of what had happened than in our earlier meetings. That I thought the situation was very risky for him at that stage because it was still fairly clear that his remedies were against his employers personally as opposed to the employers' insurer and my recollection is that I told him that we'd already had some sort of hint from some source that the workers' compensation insurer wasn't going to pay his wages. He asked me about getting a large sum of money and I said to him that that came from proceedings in either the Supreme Court or the District Court and I said that was damages and that that in turn was very dangerous and that's where I started, that's where I said to him, `Look, litigation or starting case claims in the District Court or the Supreme Court is a bit like getting on a tiger. Once you get on it's very difficult to get off without being bitten.' Now, I explained to him, I said to him that common law damages would give him large compensation for his injuries and that he wouldn't get any lump sum compensation through the workers' compensation system. I said he ought to be very careful before he started anything in common law because you shouldn't start common law proceedings unless you are fairly confident that there was an insurance company going to pick up the tab. And at that stage I was very unconfident that there was any chance of the insurer being a party to any claim in the District Court or the Supreme Court.

Q. Did you tell him why you held that view?

A. Yes, because I explained to him that it was the same, likely to be the same insurer that he sued as in the Workers' Compensation Commission but that was under a different hat.

Q. And did you then proceed to say anything to him about why the insurance company might not have to pay?

A. I said to him that from the way he and others had described the way he was burned it seemed to me then that his employer had stepped outside the insurance policy that was going to provide cover for his injuries. I also talked about the attempted fraud and that the impact that that might have on the insurance company's response to the claim for compensation and possibly also if he brought a claim for damages. I told him at that stage that both of those situations were unclear in outcome for him because of what we'd heard from - my recollection is now it was from the solicitors for the insurer. At that stage I suggested that he didn't start common law proceedings and that we should run the workers' compensation proceedings just to see what the result was. He asked me more about the workers' compensation and I said to him at that stage that - Oh, at that stage I think he told me that he was running the possibility of having to go, have more surgery for skin rafts. He told me that somewhat earlier in the meeting, that meeting or the earlier meeting, that when that happened the advice I gave to him was that what I saw in workers' compensation was possibly a string of individual claims for short term periods of compensation whether it was total or partial because he was then back at work and that I expected that if his claim was against either the workers' compensation insurer or his employers ultimately, if they weren't covered by the policy, that there'd be an argument about paying his compensation or at least an argument was possible when he put a claim in. I said it all depended very much on how he, what sort of recovery he made and whether his injuries became stable.

Q. Was there any discussion either emanating from you or him inquiring as to the relationship between benefits under the workers' compensation legislation and any remedies in common law proceedings?

A. Yes. I sought to explain the difference between the two.

Q. Could you tell us as best you can what you said please?

A. I said something along the lines that workers' compensation gave weekly benefits and paid his medical bills for treatment, but that it was different from damages in the District Court or the Supreme Court because that gave you an one off settlement and that it compensated you or gave you lost wages both in the past and in the future and it gave you compensation on one occasion for the injury you'd suffered, pain and suffering and that also that once you got a judgment in the District Court or the Supreme Court that was an end to your workers' compensation. You couldn't go back after you got the judgment because it stood in place of your workers' compensation entitlement. I also told him about the principle of not being able to have more than one bite of the cherry and that's when I told him about, that if social security benefits you received if you had them while you were waiting for your judgment. You had to pay back your medical bills and you had to pay back any workers' compensation you'd received before the judgment was handed down."

14 According to the defendant, the deceased rejected the prospect of making a succession of claims in the Workers' Compensation Commission and said:

"'I don't want to have anything more to do with the two Nicks. The less I come into contact with them or have anything at all to do with them, the better. I don't want to be involved with them in making claims for weekly compensation from time to time if I am not well or something very similar to that.'

Q. Did he elaborate on that at all?

A. Not that I can recall. He spoke about the common law possibility.

Q. Yes. Could you tell us what he said please?

A. He said, `I want my compensation all in one go. I don't want to be - I don't want to come backwards and forwards.'"

The proceedings in the Workers' Compensation Commission

15 On the return date in the Workers' Compensation Commission when the application first became before the Commission in June 1978, the proceedings were adjourned until September of that year. By that time the employers had filed no answer but the insurer was represented on the adjourned date, having declined liability under the policy. The proceedings were further adjourned to enable the employers to obtain legal advice because of their potential personal liability to the deceased.

16 On this September 1978 date there was a further discussion about the deceased's workers' compensation rights in which the deceased, the defendant and Mr Neale of counsel, who was then appearing for the deceased, participated. The defendant said that he explained to the deceased, or Mr Neale did, that the deceased had a compensation claim "that looked as though he would have a remedy for a long time, if not forever, in the Compensation Court if he was ever disabled again". However it was further explained that the present claim was a closed period claim. The deceased responded to this advice in words to this effect: "I am not really interested in these short claims in this court.".

17 Eventually the claim in the Workers' Compensation Commission was heard by the then Chairman, Judge Langsworth QC, and resulted in an award in the deceased's favour on 14 February 1979. That award was for a closed period from 8 August 1977 until 31 October 1977. The insurer resisted payment but the defendant made representations to the Commission and eventually the insurer satisfied the award.

18 However it does not appear that in doing so the insurer made any admission and the proceedings before the Workers' Compensation Commission left open the issue as to the insurer's obligation to indemnify the employers in respect of future claims presented by the deceased and in particular in relation to the claim he embarked upon at common law.

The proceedings against the employers at common law

19 The defendant gave advice to the deceased about his prospects at common law in words to the following effect:

"I think you will win in a claim against your employers, but because of the way your injuries occurred you may not get anything from the insurance company. You may have to go against your employers themselves. We don't know whether they have the money to pay him or not."

20 In giving instructions to proceed at common law the deceased said to the defendant: "I want a lump sum."

21 So it was that counsel was briefed to draw a statement of claim which was filed in the Supreme Court on 5 May 1978. The deceased in the statement of claim pleaded his case against the defendants in negligence and he also sued the first defendant, Koumandakis, in assault since that defendant allegedly ignited his clothing. Each of the defendants was apparently separately represented and the workers' compensation insurer was joined as a cross defendant. That insurer denied any liability to indemnify the defendants.

22 A trial in these proceedings did not take place until 1989, some eleven years after the statement of claim was filed, and it is necessary to trace the history of these proceedings in some detail.

23 The defendant failed to appear at several directions hearings in 1980 and 1981 but his evidence satisfies me that this led to no appreciable delay, because he was not in a position to take a date for trial at the time of those directions hearings. This was because the deceased had not given him the particulars of earnings necessary to permit of the preparation of proper particulars under Practice Note 19. (The deceased had a large number of employers after the end of 1977.)

24 Eventually a hearing date was fixed for 9 June 1982 and the matter was prepared for trial. Senior counsel briefed in the matter returned his brief shortly before the trial date and senior counsel who replaced him advised that the deceased's wife, from whom the deceased was by then estranged, was an essential witness. Mrs Hatzigeorgiou was not available because of her then advanced state of pregnancy and on the plaintiff's application the trial date was vacated. The terms upon which the date was vacated were that the deceased could seek a new date on two days notice, and it was the defendant's understanding, expressed in this Court, that a trial date approximately two months thereafter could have been allocated.

25 Senior counsel in advising of the need to call Mrs Hatzigeorgiou also advised of the need for expert evidence concerning the paint thinners and the quantity that had burnt the skivvy the deceased had been wearing at the time of the fire. This contemplated expert evidence called for scientific examination of the remnants of the cotton skivvy. To qualify an appropriate expert took an extraordinary time, and it was not until 4 February 1986 that the expert's report became available.

26 Even then the defendant did not seek a hearing date, and it was not until December 1987 that he filed a notice to set down for hearing and fresh Pt 33 particulars. In filing the notice at this time the defendant overlooked the order that had been made in June 1982 which would have permitted him to apply for a hearing date on two days notice to the other parties.

27 The cause was set down for hearing on 19 September 1988 when there was a further adjournment because the defendant Koumandakis was not legally represented. He was afforded an opportunity to apply for legal aid. The matter was adjourned yet again on 21 October 1988 at which time consideration was being given to a separate trial on the issue between the defendants and the insurer as to the formers' right to indemnity under the statutory policy.

28 Eventually the cause proceeded to hearing before Allen J in April 1989 and his Honour delivered judgment in favour of the deceased against the defendants on 6 September 1989, awarding damages, inclusive of interest, in the sum of $324,872. His Honour also ordered that the insurer indemnify the defendants in respect of their liability to the extent of the cover afforded to them under the statutory policy in the sum of $100,000. His Honour ordered the defendants to pay the deceased's costs and there were other orders made to which it is unnecessary to refer for present purposes.

29 Neither defendant had assets against which the judgment could be enforced and the only money made available to the deceased to satisfy the judgment was the sum of $100,000 under the statutory policy. The deceased had enjoyed a grant of legal aid and was called upon to account to the statutory authority out of that sum. Eventually, after a dispute as to quantum, the legal aid authority agreed to accept $25,125 in satisfaction of its claim. This left a balance of $74,875 available to the deceased. The deceased refused to accept that sum, apparently by reason of concern that receipt would prejudice his pursuit of the balance of the judgment debt, but eventually the nett proceeds of the policy payment were received by his estate.

The admissibility of expert evidence

30 In the course of the presentation of the plaintiffs' case, Mr Howen introduced two witnesses to give expert evidence. The first of those was Mr Stephen O'Halloran, a solicitor of this court with lengthy experience in the field with which this cause is concerned. Mr Kaye raised no objection to his qualifications nor as to the relevant evidence which Mr Howen sought to introduce and did introduce. Mr O'Halloran's report was tendered in evidence as Exhibit D and he was also asked questions directed to the further amended particulars of negligence presented when the hearing began.

31 Mr Howen also sought to introduce evidence from the former Chief Judge of the Compensation Court, Mr Frank Roland McGrath, OBE. Mr Kaye objected to the introduction of the evidence of this witness, but it was received subject to objection, and on the basis I would rule upon its admissibility in the course of this judgment. Having regard to the conclusions I have reached on factual issues critical to my approach to this case, the issue of the admissibility of Mr McGrath's evidence does not assume practical significance. Nevertheless for completion, I address the issue.

32 The evidence of the former judge was contained essentially in his report, Exhibit F. This report dealt largely with the same subject matter as that addressed by Mr O'Halloran. Where Mr McGrath differed from Mr O'Halloran was in the evidence he gave concerning what, in his opinion, ought to have been done at the time instructions were first received by the defendant. Mr McGrath considered that the defendant should, at the outset, have made inquiries to ascertain the insurance cover enjoyed by the employers.

33 The authorities make it plain that expert evidence may be called to prove what is common practice amongst solicitors of good repute. Mr O'Halloran gave evidence that fell within that principle when he addressed the issue as to when inquiry about insurance first became warranted.

34 Mr Kaye however submitted that Mr McGrath was not qualified to give evidence as to that matter. As the former judge acknowledged, he practised as a solicitor only for a period of eighteen months before his admission to the Bar in 1951 and the pursuit of his distinguished career as a barrister and subsequently as a judge.

35 For relevant purposes the particular expertise of Mr McGrath is, in my opinion, to be distinguished from that of Mr O'Halloran. I do not consider the former judge to be qualified, in strictness, to give evidence as to what was common practice amongst solicitors of good repute either in 1978 or subsequently. Indeed the witness acknowledged this himself when in cross examination, and having been directed to the evidence of Mr O'Halloran, Mr McGrath said, referring to evidence as to the practice in 1977 and 1978:

"Well at that stage I couldn't say whether it was general practice because I was not in practice at that stage myself."

36 I conclude that the evidence that Mr McGrath gave as to what ought to have been done by the defendant upon receipt of instructions was not admissible and I cannot act upon that evidence in this case.

37 There is often a fine line to be drawn between what is and what is not admissible in the nature of expert evidence. Mr McGrath unquestionably had a wealth of experience upon which to draw in expressing the conclusions he did express in his report, but the content of the report in large part addresses matters that I must determine and which are not appropriate issues for expert evidence. However persuasive I might consider Mr McGrath's opinions, heeding my regard for his experience in the law, it does not seem to me that I should treat their expression as evidence in this case.

38 I do not intend to convey that a former judge of a court could never be qualified to give expert evidence. Indeed the contrary was recognised in Scott v Echegary (1991) ATR 81-120, 69,129 at 69,133 where Mahoney JA, with whose judgment Gleeson CJ and Kirby P agreed, observed in a case that required a determination of the measure of damages in common law proceedings at a particular time in the past, and the value of workers' compensation rights at the same time, that expert evidence would ordinarily be required as to those matters absent a contrary agreement between the parties to the litigation. See also Williams & Ors v Bodewes (unreported, Court of Appeal, 1 October 1997).

39 It seems to me that in the present case the former judge was qualified to quantify past entitlements to workers' compensation benefits given particular assumptions, although it would be for this Court to find whether such assumptions were established on the evidence. Through Mr McGrath a schedule of rates of payments was properly introduced, as was the "Jamberoo Schedule", to which resort was apparently had in the Compensation Court in awarding interest in respect of awards in that court.

The defendant's duty of care and the alleged breaches of duty considered

40 By reason of the solicitor/client relationship the defendant owed to the deceased a duty to exercise reasonable care in the pursuit of the deceased's instructions. The defendant's responsibility was to do that which the reasonable competent practitioner would do having regard to the standards normally adopted in his profession: see Midland Bank v Hett Stubbs and Kemp [1979] 1 Ch 384 at 403.

41 In the present case it is submitted that the defendant was in breach of his duty of care in a number of ways. I set out the particulars of negligence in their ultimate amended form:

a. The Defendant failed to advise the deceased of the consequences of electing to commence proceedings for common law damages compared to the Defendant's rights under the Workers Compensation Act 1926.

b. The Defendant failed to advise the deceased that in 1977 employers were only required to have a level of indemnity of $100,000 for the common law extension to a contract of insurance for workers' compensation.

c. The Defendant failed to consider the possibility of the employers' contract of insurance being insufficient to cover a possible award of common law damages and failed to communicate to the deceased the possibility of not being able to recover the entire verdict in common law from the employer's insurer.

d. The Defendant failed to make any timely enquiry in relation to the particulars of the employers' common law extension in their contract of insurance relating to workers' compensation.

e. The Defendant failed to make timely or proper enquiries in relation to the assets owned by the deceased's employers or advise the deceased of the need to consider the financial position of the employers.

f. The Defendant failed to advise the deceased that he could make an application for periodic benefits of workers' compensation which would remain payable up to the date of any judgment for common law damages.

g. The Defendant failed to advise the deceased that if the deceased received a verdict in the common law proceedings, any periodic benefits received under the Workers' Compensation Act 1926 would be repaid from the common law damages received.

h. The Defendant failed to advise the deceased of the consequences on his rights under the Workers Compensation Act 1926 if the deceased received a verdict for common law damages.

i. Once the Defendant became aware of the limit on the employers' common law extension to the contract of insurance, the Defendant failed to give advice to the deceased as to his options in either discontinuing the common law action or proceeding to a hearing.

j. The Defendant caused delay in the prosecution of the deceased's action in the Supreme Court of New South Wales.

k. The Defendant failed to take steps to enforce the judgment of Justice Allen in relation to the award of damages or costs in favour of the deceased.

42 Of the above particulars Mr Howen informed the Court that he did not pursue particular (e) but the balance of the particulars call for consideration now.

Particulars (a), (f), (g) and (h)

43 It is convenient to consider the matters particularised in (a), (f), (g) and (h) together.

44 I set out earlier the evidence that the defendant gave as to the terms of the advice given to the deceased and I accept that such advice was in fact conveyed. The defendant's evidence satisfies me that he gave the deceased adequate advice on the matters the subject of these particulars, and that such advice was given by early 1978. I am satisfied that the deceased made it plain to the defendant at that time that he wanted to pursue lump sum damages at common law and was not interested in the pursuit of periodic claims under the Workers' Compensation Act.

45 Those clear instructions did not however, in my opinion, relieve the defendant of the duty to consider from time to time whether the deceased had rights under the Workers' Compensation Act, particularly in circumstances where, as in this case, the claim at common law took so long to be heard. There came a time, which I shall presently identify, by which the defendant should, in my opinion, have advised the deceased of the pursuit of the workers' compensation benefits as a possible alternative to proceeding with his claim for damages at common law. However that was much later in the relationship and I shall identify that time shortly.

Particular (b)

46 It was the position that in 1977 the workers' compensation legislation made it compulsory for employers to have a policy of insurance with a common law extension of no less than $100,000. Whether an employer insured against its common law risk for more than $100,000 was optional.

47 I find that the defendant did not advise the deceased in 1977 of the statutory limit imposed, but I am not satisfied that he was negligent in failing to give such advice then. At that time common law damages attracted in claims for personal injuries were very much less than they were when the deceased's cause was eventually heard. I accept the evidence given by Mr O'Halloran, an experienced solicitor in this field, that in 1977 a reasonably competent solicitor would not have been concerned with the statutory limit of indemnity. I accept that as the deceased presented in 1977 the statutory limit would have appeared to be more than adequate to meet the deceased's claim. By the time the Application for Determination was filed in the Workers' Compensation Commission on 2 December 1977 the deceased was back at work, earning more than he had been as an apprentice panel beater, and the medical prognosis was reasonable. I do not therefore consider that the defendant was in breach of his duty of care to the deceased in not telling him of the statutory limit in 1977.

Particulars (c) and (d)

48 At the outset of course the defendant alerted the deceased to the risk that any award of common law damages may have to be satisfied, if at all, by resort to the assets of the employers themselves. I am satisfied that the deceased was made aware before any proceedings were brought, either under the statute or at common law, that there was a real risk that the insurer may avoid liability.

49 As the deceased's solicitor however, I consider the defendant was under an obligation to alert the deceased to the risk that common law damages properly recoverable, could exceed the statutory limit, once such risk ought reasonably to have been perceived. The defendant knew at all relevant times that the employers were only required by statute to ensure in respect of their common law risk for $100,000, so that once there was the risk that damages might exceed that limit, I am satisfied that the defendant owed the deceased a duty to inquire as to the level of insurance and to alert the deceased to it.

50 It does not seem to me that there was an obligation on the defendant to make the inquiry indicated or to alert the deceased to the level of insurance at any time prior to the hearing date appointed in this court for 9 June 1982. Looking at the particulars filed pursuant to Practice Note 19 and dated 22 January 1982, the deceased was claiming out of pocket expenses of approximately $4000 and loss of income in approximately the same amount. Even allowing for a claim for future loss of earning capacity and general damages for the non economic aspects, it was not unreasonable for the defendant to consider in 1982 that the compulsory statutory cover would have been more than adequate to satisfy a successful claim by the deceased. As to this I do not overlook the evidence that senior counsel advised shortly before the hearing date in 1982 that it would be difficult to establish any claim for future loss of earning capacity.

51 However as the delay in the hearing thereafter increased so too did the possible verdict range. There is no doubt that damages became inflated in the 1980s and 1990s for a variety of reasons which it is unnecessary to explore or record in the present context.

52 It seems to me that there came a point of time when the defendant ought reasonably to have perceived a risk that the deceased's damages could exceed $100,000. This point of time had certainly been reached by 19 September 1988 when, as Exhibit 10 records, Mr Puckeridge of Queen's Counsel, then briefed to appear for the deceased, advised that settlement of his claim be explored with an opening figure of $150,000. It was shortly thereafter, on 6 October 1988, that the defendant was alerted through a message conveyed by counsel that the relevant policy had a limit of $100,000. The defendant confirmed that by inspecting the policy on 7 October 1988.

53 Mr Milton Hatzigeorgiou gave evidence that Mr Puckeridge's recommendation as to an approach to settlement was made in conference "some time in 1987" but I consider he is mistaken. The defendant's evidence in point is supported by his file note, Exhibit 10, and I find that senior counsel's recommendation was made on 19 September 1988.

54 I am satisfied that once the defendant became aware of the limit of the insurance cover he informed the deceased, and I accept his evidence that he advised the deceased that if he recovered more than $100,000, or if the insurer was not held liable under the policy, the deceased would be dependent upon recourse to his former employers to satisfy any verdict.

55 The defendant did not go on to advise the deceased at this stage that rather than proceed with his common law claim in such circumstances he might discontinue it, and pursue his remedies under the Workers' Compensation Act.

56 It was the defendant's evidence that he gave consideration in October 1988 to discontinuing the common law proceedings, but he decided against that course for reasons which he expressed in his evidence (T 204-206):

"[I] decided there were too many penalties or that Con would face real penalties as to costs and I also had - sorry.

Q. If we could just deal with it one at a time. Was there anything about his medical history or your observations as to his physical ability or disability which played a part in your consideration of that matter?

A. Yes.

Q. And what was that?

A. It being either no treatment for injuries in the period between the June adjournment date and time we were told of the cap or if there had been I hadn't been advised of it. The only medical issue that had arisen had been a matter involving his GP, Dr Borden, who told me at one stage, and I can't recall when that was, he said, `He has had something like a boil', I can't remember the expression used `or a boil or an outbreak on his belly where his belt is tight. I have given him cream for that.' And that was the skin I think, he said the skin is devitalised. That was the end of my dealings with Dr Borden otherwise there was no referral to or there was no seeking of any medical treatment in that time.

Q. I had asked you to give consideration to the medical history that when you had in mind when giving consideration to the possibility of discontinuing. Was there anything that you observed yourself about Mr Hatzigeorgiou that played a part in your decision making?

A. I saw Mr Hatzigeorgiou from time to time. He came into my office. I think we'd walked up to court or we'd been - we walked somewhere together on a couple of occasions. We had a number of meetings on a fairly informal basis where we sat down and drank coffee and smoked and chatted over his health or about his health and although he had certainly put on some weight, he walked as fast as I did and I didn't notice anything that suggested that he wasn't able to conduct his normal operations, normal affairs.

Q. Also in the course of your consideration as to whether or not to discontinue the claims, was there anything by way of his, that is Mr Hatzigeorgiou's instructions, that played a role in your consideration?

A. Sorry. I didn't understand that question.

Q. Is there anything that you recall in terms of Mr Hatzigeorgiou's earlier instructions to you as to the carriage of his legal matters that influenced you in your considerations?

A. Yes.

Q. What were they?

A. When we'd be talking very early, that is in about the time of the Compensation Court proceedings, Mr Hatzigeorgiou had been adamant against workers' compensation proceedings and at the time of the workers' compensation proceedings he'd said something along the lines, `I am sick and tired of these sort of proceedings. I don't want to become involved in them again. I want to go through the Supreme Court.'

Q. Were comments of that nature expressed by Mr Hatzigeorgiou after 1979?

A. No. I don't think they were. We didn't - I don't think we discussed directly bringing further workers' compensation proceedings after that.

...................

Q. And you had referred to the question of costs. In what manner did that issue bear upon your consideration?

A. I expected that if we discontinued there'd be a substantial claim for costs against Mr Hatzigeorgiou. The defendants between them had had eight firms of solicitors acting for them at different times and I believe they'd had counsel on a number of occasions and there'd been quite a number of court attendances for various purposes so that I expected that be a very substantial bill had been run up.

Q. And at the time that you considered that issue did you have any information available to you which suggested Mr Petrou, one of the co-defendants in the suit, was suffering under any financial disability at the time?

A. Not that I can recall.

HIS HONOUR: Q. Did you have any evidence about that one way or the other, Mr Baker?

A. Not that I - no."

57 I accept that the defendant did give consideration to the discontinuance of the common law proceedings weighing the matters he instanced. It was reasonable that he take those matters into account but it seems to me, whatever weight he attached to those considerations, his responsibility to the deceased nevertheless required that he advise the deceased of his possible options, and give him advice as to what he might reasonably hope to recover if he was permitted to discontinue the proceedings at common law and return to the Workers' Compensation Commission. I accept the evidence which Mr O'Halloran gave on this issue. I find further that the defendant was in breach of his duty of care to the deceased in not advising him as to the possible alternative course, so as to permit the deceased to make an informed decision as to how and where he should proceed.

58 Mr Howen has submitted that this case should attract an award of damages based upon the value of the deceased's workers' compensation rights for the period immediately beyond the date of his award in that jurisdiction in February 1979 until the time of his death in November 1993. He submitted that the findings made by Allen J as to the deceased's incapacity over the period to the date of trial would support an assessment of the value of such rights at the maximum weekly rate throughout. Further, he submitted that the evidence of Mr Milton Hatzigeorgiou and of Dr Piliotis establishes that the deceased's condition, and hence his capacity for work, only deteriorated between the date of judgment and the date of death. On this approach Mr Howen submitted a schedule quantifying the lost entitlement at $118,993.20. He submitted an award of that magnitude would have attracted interest in the Compensation Court according to the "Jamberoo Schedule" in the sum of $78,533. Those figures, of course, are calculated on gross weekly payments and would require adjustment here allowing for the incidence of taxation and for the payment that was made by the insurer after judgment.

59 There is however a more fundamental difficulty with Mr Howen's submission. It is for the plaintiffs to prove that the negligence I have found in failing to remind the deceased of, and to fully advise him of, his workers' compensation rights was causative of loss. Assuming the defendant had given the deceased the advice I find he should have given, would the deceased have decided to abandon his common law claim and go to the Compensation Court?

60 I consider this is improbable but since I am dealing with a hypothetical event that does not necessary determine the matter. I am required to determine the degree of probability that he would have decided to return to his workers' compensation rights, had he been properly advised, and to assess the value of the chance of his having done so: see Malec v JC Hutton Pty Limited [1990] HCA 20; [1990] 169 CLR 638 at 642-643; and Sellars v Adelaide Petroleum NL [1994] HCA 4; [1992-94] 179 CLR 332 at 350-355.

61 I regard the chance of the deceased having decided upon proper advice to return to the Compensation Court to be highly unlikely, and indeed to be so low as to be speculative. I so conclude for a number of reasons:

(i) the firm instructions given at the outset to seek damages at common law, given at a time when there was a doubt recognised by the deceased that the insurer would have any liability at all;

(ii) the fact that an award in the Compensation Court would have included nothing by way of lump sum for pain and suffering, and the deceased's desire to have compensation for this;

(iii) the deceased's unreal perception of the value of his claim. He told the defendant he believed his claim was worth between $800,000 and $1.2 million at common law;

(iv) proper advice would have alerted the deceased to the possibility, notwithstanding eventual payment of the earlier closed period award, that the insurer might avoid liability under the policy;

(v) the deceased demonstrated a distrust for his legal advisers in 1988. He went so far as to accuse his counsel of being corrupt and to be conspiring with the insurer. In consequence he rejected the advice as to settlement given by Mr Puckeridge of Queen's Counsel. Indeed the defendant's file note dated 25 October 1988 records that having reflected upon his attitude towards settlement, the deceased instructed the defendant that he wanted $600,000 by way of settlement, comprising $300,000 for loss of wages and $300,000 for damages.

(vi) it seems to me that any advice given by the defendant closely following the advice of senior counsel was no less likely to influence the deceased;

(vii) by 1988 the deceased had been waiting ten years for his claim for damages to be heard. To change courts in 1988 would have involved further significant delay;

(viii) it would have been necessary to advise the deceased that there may be a very heavy costs penalty in walking away from the common law claim.

62 Having regard to the above matters, I do not consider that had the defendant given the appropriate advice concerning the Compensation Court option in 1988 this would have deflected the deceased from his resolve to pursue his claim in the Supreme Court.

63 It does not follow however that the plaintiffs are here without remedy, because of the significance of the delay in the common law proceedings. However, before addressing that issue it is convenient to address the last of the particulars of negligence advanced by Mr Howen.

Particular (k)

64 It is submitted that the deceased was negligent in failing to take steps to enforce the judgment of this court in relation to the award of damages and costs.

65 Proceedings on the judgment were stayed by order of the trial judge until 6 October 1989. The defendant's instructions were withdrawn on 20 November 1989. It follows that the defendant had some six weeks to act in seeking to enforce the judgment concerning damages and costs.

66 The defendant was by no means idle following the judgment. The activity of the defendant is reflected by the documents to be found in Exhibit 20.

67 Following the judgment the defendant had to address and did address a number of issues:

(i) what could be done to enforce the judgment;

(ii) what was to be done about the pending appeal;

(iii) what was the deceased's obligation to the Legal Aid Commission.

68 Exhibit 20 satisfies me that the defendant approached his responsibilities to the deceased with due care between the date of the judgment and the date that his instructions were withdrawn. I do not consider that he ought reasonably to have been expected to have done more than he did do in the limited time available to him prior to 20 November 1989. Accordingly this head of negligence has not been established.

Particular (j)

69 Earlier I traced in outline the history of the common law action from its commencement in May 1978 until the hearing some eleven years later.

70 I am satisfied that the defendant had a duty to exercise reasonable care in an endeavour to have the case listed for hearing as soon as was reasonably practicable. Clearly delay may occur in the interlocutory stages of proceedings which a solicitor for a party cannot effectively control. The progress of a cause can be slowed by complications, as for instance where a party is applying for legal aid. Interlocutory applications inevitably slow the progress of a cause.

71 In this case the defendant failed to attend several directions hearings before the hearing date vacated in 1982. However I am not persuaded those oversights were causative of discernible delay. Notwithstanding Mr Howen's submission to the contrary, I am not satisfied that there was delay caused by negligence of the defendant in the progress of the matter up to 9 June 1982.

72 However there was gross delay thereafter and I find that responsibility for the delay has to be attributed to the defendant. In my opinion it was unreasonable to wait so long for the expert's report. Allowing for the fact that there were amendments to the pleadings, interrogatories and other events referred to in the agreed chronology, it seems to me that had the defendant exercised that degree of care as was reasonably to be expected of him in having this matter brought to trial, it should have been heard by mid 1984, that is to say approximately five years before it was. The delay cannot be excused by difficulties in qualifying a suitable expert nor by reference to the plight in which the defendant found himself by reason of being overworked during the relevant period.

73 I do not understand Mr Kaye to have submitted to the contrary but in any event I am satisfied that negligence by reason of delay has been proved against the defendant.

74 Mr Kaye submitted however that I should find that the deceased contributed to the delay and that I should accordingly find contributory negligence. Counsel referred me to para 4(d) of the defence filed wherein it was asserted that:

"The defendant repeats and relies upon the finding of Mr Justice Allen that both the late Mr Hatzigeorgiou and the defendant bore joint responsibility for the delay."

75 That sub-paragraph is not apt as a pleading by way of contributory negligence, which pleading is required by Pt 15 r 14 of the Rules of Court. Moreover, no particulars of a defence of contributory negligence have been given as required by Pt 16 r 4. I put to one side those difficulties confronting the defendant on this issue and turn to consider whether the defence of contributory negligence could be maintained in any event.

76 Allen J made a finding referred to in para 4(d) of the defence when considering the deceased's claim for interest in the earlier cause. What his Honour said was this:

"But I do not allow interest from the time of the occurrence of the accident - nor indeed from the time when the proceedings for damages were commenced. There has been gross delay in the proceedings being brought to trial. Much of that delay is to be attributed to lack of drive being demonstrated not only by the plaintiff personally but also by his solicitors. In the result the general damages which have been awarded are a reflection of money values which are markedly different from the values which would have been in force at the time when these proceedings, if prosecuted with due diligence, would have come on for trial."

77 For the purposes of his judgment his Honour was considering delay over the entire period that the cause was on foot, some eleven years. It is clear that the deceased was responsible for delay before the cause was first listed for hearing in 1982 because he failed to furnish required particulars of his post injury work history. However the evidence does not persuade me that any efforts the defendant made to have the cause progress to hearing thereafter were frustrated either by any activity or inactivity of the deceased.

78 I have considered the evidence that the defendant gave and I have considered the documentary evidence. None of this evidence indicates to me that the deceased failed to co-operate with the defendant at any time after the hearing date was vacated in June 1982. There was no failure to attend a medical appointment nor was there any failure to attend any conference appointed such as might have delayed the progress of the matter. File notes record that the deceased kept the defendant informed as to his work history and his progress: see, for example, Exhibits V, W, Z, AA, BB, DD, EE, JJ, KK, NN and QQ.

79 It would be for the defendant to prove contributory negligence and in this context requisite proof would require the defendant to establish that the plaintiff contributed to the relevant period of delay that I have found. The defendant has failed to prove such contribution.

80 I conclude therefore that the deceased was deprived of the benefit of a judgment in the proceedings for five years by reason of delay for which the defendant was responsible.

81 It seems to me to be a correct approach to the assessment of damages to compensate for that deprivation. What the deceased lost was resort to the judgment sum he would have recovered over a period of five years.

82 Mr Howen had submitted two alternative approaches to the assessment of damages. The first of those I have already considered and rejected, finding as I do that the deceased would not have been prompted by appropriate advice to change courts. Mr Howen's alternative submission was that a finding of negligence against the defendant should result in an assessment of damages against him in the amount of the judgment to the extent that it remains unsatisfied. In my opinion that submission cannot be sustained, because I do not find that shortfall to be the measure of the harm caused by the defendant's negligence. In my view it plainly is not.

83 Ultimately neither Mr Kaye nor Mr Howen submitted it would be erroneous to approach the assessment of damages in the manner I have indicated, although there were competing submissions concerning the deceased's contribution to the delay, what should be deducted for legal aid, and how interest should be calculated.

84 Had damages been assessed in this case in the middle of 1984 I am satisfied on the balance of probabilities they would have been assessed at a figure in excess of $100,000 but less than $324,872. In so concluding, I am mindful of the findings relevant to damages that were made by Allen J in 1989, and which counsel agreed I should adopt for the purposes of this trial.

85 Before Allen J, the medical, hospital and like expenses were agreed at $4291.68. His Honour found wage loss to the end of 1981 of $9639. Between 1 January 1982 and 11 September 1985 his Honour found a wage loss of $17,017. For the period from 1 January 1982 to 30 June 1984, on a pro rata basis, the loss was to be measured at $11,330 approximately by reference to his Honour's approach. Hence wage loss and out of pocket expenses as at 30 June 1984 would have attracted an allowance of $25,260, in round figures.

86 His Honour found an ongoing loss of $135 per week in 1989 but the loss in 1984 he had found to be less, of the order of $87 per week. To compensate for a loss of that order to age sixty-five, the plaintiff being in 1984 twenty-six years of age, would have required, on the three percent tables, after a discount of fifteen percent for the vicissitudes, the sum of $89,333.

87 For what are essentially the economic aspects and adopting Allen J's findings, the case would have attracted the following allowances (omitting cents):

Medical and hospital expenses $4,291

Past loss of wages 20,969

Allowance for future economic loss 89,333

$114,593

88 Again, having regard to his Honour's findings as to the nature and extent of the injuries sustained and their effect upon the plaintiff, it seems to me that the case in 1984 would have attracted by way of general damages for the non-economic aspects, approximately $60,000.

89 On this approach, total damages that would have been assessed would have been of the order of $174,593 and that assessment would, of course, have attracted interest.

90 I acknowledge the artificiality of the assessment I have just undertaken. However whether I adopt that approach or not, I am satisfied that had damages been assessed in June 1984, on the basis of the relevant findings of Allen J, which counsel have invited me to accept, the damages recovered would certainly have been no less than $100,000.

91 It follows that had the cause proceeded to trial in the middle of 1984, the deceased would have received the sum of $100,000 earlier, less whatever was deducted under the relevant legal aid scheme.

92 It is impossible to determine with precision what the Legal Aid Commission would have claimed from the verdict in 1984. In 1989 it sought to recover initially $81,093 which was one-quarter of the gross judgment sum. It subsequently reduced that claim to $50,000 and eventually settled for $25,125.

93 As the Legal Services Commission Act stood in 1984, s 46 provided:

"46. (1) Except as provided by subsection (2C)(a), a legally assisted person shall not be liable to make any payment to the Commission or a private legal practitioner in respect of the costs and expenses of the legal services provided to him as a legally assisted person in excess of the amount of the contribution, if any, determined by the Commission under section 36(1)(a) in respect of the provision of those legal services.

(2) Where a legally assisted person receives an amount of money as a consequence of the provision of legal services to him as a legally assisted person, the Commission shall determine the amount payable by him in respect of the costs and expenses of the legal services.

(2A) The amount determined under subsection (2) in respect of a legally assisted person shall not exceed -

(a) where the amount of money received by him does not exceed the prescribed amount - one-third of the amount of money received by him; or

(b) where the amount of money received by him exceeds the prescribed amount - an amount equal to the sum of one-third of the prescribed amount and the amount of money received by him in excess of the prescribed amount.

(2B) For the purposes of subsection (2A), the prescribed amount is $6000 or such other amount as the Commission may from time to time determine."

94 The certificate evidencing the grant of legal aid in this case to the deceased forms part of Exhibit 21. It records that the deceased was called upon to make no actual contribution at the time of the grant on 25 October 1977 and the form of the certificate was called in aid in disputing the assessment of the deceased's liability in 1989.

95 Whilst the Legal Aid Commission may, under s 46 as it then provided, have looked for as much as one-third of the sum of $100,000 had it been available in 1984, it is possible also, since the gross judgment would have been substantially less in 1984 than it was in 1989, that the Commission would have been less demanding in 1984 than it proved to be ultimately in 1989.

96 Doing the best I can I propose to approach my assessment on the basis that the Legal Aid Commission would have determined the amount payable from the judgment in 1984 to have been $25,000. Accordingly, the nett sum which the deceased would have had available for his use I find on the probabilities would have been $75,000.

97 It seems to me that I should compensate the plaintiffs for the loss of the use of that sum for five years from 1 July 1984 onwards. No interest rates have been put before me. One measure of calculation would be to use the rates prescribed under Schedule J of the Rules of Court. Mr Howen invited that approach; Mr Kaye submitted that the rates in the schedule may not have reflected what was commercially available at the relevant time.

98 There is, of course, no evidence before me as to how the deceased would have invested this sum, had he enjoyed access to it in 1984. He may not have invested it at all but spent it either on necessities or luxuries. Nevertheless, it seems to me that I can arrive at no fairer measure of damages than to compensate for the loss of the investment potential of the sum of $75,000. I do not propose to employ the Schedule J rates rigidly, but, guided by those rates, I assess compensation by awarding sixteen percent of $75,000 for five years. On this approach I assess damages in this case at $60,000.

99 That sum is the measure of compensation for the loss suffered over a five year period ending in 1989 and I am asked to award interest on that sum pursuant to s 94 of the Supreme Court Act.

100 Mr Kaye has submitted that I should limit the period for which I award interest because of the delay that occurred in the present proceedings. Exhibit 22 is an agreed chronology of the history of this action and it is plain from studying the exhibit that the delay was very considerable.

101 The deceased filed the statement of claim on 2 April 1990. Following his death an order was made appointing the plaintiffs to represent the estate for the purposes of this cause and the amended statement of claim, to which I earlier referred, was not filed until March 1995. I do not propose to record the detail contained in the chronology but a consideration of it compels the conclusion that the very considerable delay must be attributed to the plaintiffs. Their failure to take necessary steps frustrated an earlier hearing of this cause. When eventually a hearing date was allocated for 11 February 1997 the plaintiffs sought an adjournment then so that a belated effort could be made to execute the judgment in the earlier proceedings against the defendant Koumandakis.

102 Whilst the power to award interest under s 94 of the Supreme Court Act is a discretionary power, the discretion has to be exercised judicially: see Bennett v Jones (1977) 2 NSWLR 355 and Marsland v Andjelic [No. 2] (1993) 32 NSWLR 649 at 652. In the exercise of that discretion it is generally a most important consideration that the plaintiffs have been deprived of the use of the sum of money awarded by way of damages, whilst the defendant has been able to enjoy the continued use of such sum. However that is not necessarily the only consideration, and where, as in this case, there has been gross delay in the pursuit of a claim, it seems to me that this should be brought into account. It is to be appreciated that the present case is unlike a claim for damages for personal injuries where it has long since been recognised that delay has an impact by inflating damages, but nevertheless there are other consequences of delay in a case such as this.

103 To award interest for the full period approaching nine years, would be a disincentive to the objective to be encouraged by the court, namely to bring litigation to an end as expeditiously as is reasonably possible. This policy consideration was referred to as a factor bearing upon the award of interest by Goff J (as he then was) in BP Exploration Co v Hunt (1979) 1 WLR 783 at 847 and by Kirby P (as he then was) in Bryce v Tapalis (unreported, Court of Appeal, 10 February 1989). This policy consideration is, in my opinion, a relevant consideration in this case.

104 It is also to be heeded that the plaintiffs' failure to give particulars of the claim for damages within a reasonable period, and such failure is evident on a study of Exhibit 21, must inevitably have frustrated any attempt the defendant might otherwise have sought to make to quantify his potential liability and to consider compromise. I observe that when the claim for damages was particularised, this was done on a basis not established at the hearing.

105 With the above considerations in mind, but allowing for inevitable delay not attributable to the plaintiffs by reason of the death of the deceased, I have come to the conclusion that I should allow interest for a period of five years only. Rates under Schedule J have fallen appreciably over the period since these proceedings were commenced in April 1990 and I take that into account in allowing interest on the damages assessed at fifteen percent for five years. I award interest therefore in the sum of $45,000.

106 Accordingly I arrive at the figure of $105,000 as the sum for which judgment is to be entered.

Costs

107 When the hearing date appointed for this cause in February 1997 was vacated in the circumstances to which I have already referred, the costs of the adjournment were reserved. Mr Kaye has submitted that the plaintiffs should bear the defendant's costs in relation to that adjournment and Mr Howen has not sought to argue to the contrary.

108 That the proceedings were adjourned on 11 February 1997 was through no fault of the defendant and justice requires that I order the plaintiffs to pay the defendant's costs thrown away by reason of that adjournment.

109 Since the plaintiff has succeeded in this cause, it seems to me that costs should otherwise follow the event.

Formal orders

110 1. Judgment for the plaintiffs in the sum of $105,000.

2. I order the plaintiffs to pay the defendant's costs thrown away by reason of the vacation of the hearing date appointed for 11 February 1997.

3. Save for such costs, I order the defendant to pay the plaintiffs' costs of the cause.

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LAST UPDATED: 03/03/1999