Cormie v Orchard & Anor [2002] QSC 277

SUPREME COURT OF QUEENSLAND CITATION: Cormie v Orchard [2002] QSC 277 PARTIES: ANNETTE CHRISTINE CORMIE (plaintiff) MARK RAYMOND ORCHARD (first defendant) EBSWORTH & EBSWORTH (a firm) (second defendant) FILE NO: S12033 of 1998 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 13 September 2002 DELIVERED AT: Brisbane HEARING DATE: 15, 16, 17, 18, 19, 22, 23, 24 April 2002 JUDGE: Ambrose J ORDER: I give judgment for the defendant. I order that the plaintiff pay to the defendant his costs of and incidental to the action to be assessed on the standard basis. CATCHWORDS: NEGLIGENCE – professional negligence – claim for damages for professional negligence against solicitor for loss of chance – where plaintiff engaged defendant to institute claim for damages for personal injury – where defendant prepared file and recommended plaintiff engage NSW solicitors to file claim – where claim filed out of time – where plaintiff forced to settle for much smaller amount than originally offered – whether plaintiff unclear as to exact date in intitial instructions – whether defendant negligent for not checking date – whether plaintiff lost chance DAMAGES – Loss of chance – calculation of lost chance Limitation Act 1969 (NSW) Griffith v Kirkemeyer (1976) 139 CLR 161, considered COUNSEL: Mr G Mullins for the plaintiff Mr J M McDougall with Mr J M Rosengren for the defendants SOLICITORS: Quinn and Scattini for the plaintiff -- 1 of 12 -- 2 Quinlan Miller and Treston for the defendants [1] The plaintiff sues the first defendant (“the defendant”), her former solicitor, for damages for professional negligence. At all times material to the professional relationship between the plaintiff and defendant, the plaintiff lived at Pittsworth and the defendant practiced as a solicitor in Toowoomba. [2] In 1988 and 1989, the defendant had acted for the plaintiff in connection with family law matters. [3] In October 1990, the plaintiff sought legal advice from the defendant in connection with an injury she had allegedly suffered at Moree in New South Wales in July 1985. She visited the defendant in his office on 19 October 1990 and gave him instructions over a period of 1.75 hours. The defendant recorded those instructions in writing a copy of which is document no. 5 in Ex 9; the original handwritten record is Ex 9A. [4] The plaintiff gave evidence that she instructed the defendant that she had slipped and fallen and injured her spine when she had been working in Moree. She said she gave him details of her injuries and he asked her for details of the “actual accident”. She said the defendant “wanted to know when the accident happened and how it happened”. She said she informed the defendant that she had slipped in a pool of water on a highly polished floor when she was working in Moree and visiting a “proclaimed place”. Importantly she said that she gave the defendant “an approximation of when I thought it happened”. She said that the defendant asked her whether she remembered the date of the accident and that she informed him that she had no idea what the date was and she could only give him an approximation of that date. She said that she told the defendant that she thought “it was approximately two weeks after I started work as a family support worker in Moree”. She said that she could not give him the exact date of her injury but told him that she had started work late in June 1985. She said that she informed the defendant that she thought it was around a Tuesday but she could not be sure. She said that she kept telling the defendant that she had no idea really what the date of her injury was but kept “reiterating that it was approximately two weeks after I started work”. [5] She then gave evidence that the defendant “gave a number of dates or proffered a number of dates to me in the hope that it might prompt my memory”. She said that she told him “look I’m sorry I have no idea, what, you know, what the dates were”. She said that the defendant replied that he had to have a date and that he would put down “the 16th of July” and he would check that date later. [6] The plaintiff went on to swear that the defendant in fact asked her whether the date of her accident was 16 July 1985 to which she replied, that she did not have a clue whether it was that date. She said that she had started off by telling the defendant the year of her injury. She said that she was generally not much good at remembering dates by herself. [7] The plaintiff then went on to say that on this first visit, she had informed the defendant that she had written the day that she had suffered injury in her work diary and further informed him that there may have been an article in the local paper and that surely the proclaimed place would have something in its monthly records or -- 2 of 12 -- 3 weekly records which were kept. She said that as she gave these instructions to the defendant he was writing something down although he never prepared a statement which was given to her to read through and sign. She said that she had never seen the written record of her instructions made by the defendant while the defendant was still acting for her. [8] She said that she instructed the defendant that there were aboriginal people present at the place and time of her injury and that a supervisor named Heather McDonald was also present. She said that the defendant informed her that Heather McDonald would be a key witness in her case and asked whether it would be possible for the plaintiff to find her or get in touch with her. She said the defendant told her that if she was unable to do this he would attempt to discover her whereabouts by searching the electoral rolls. [9] She said that, all told, she was in the defendant's office for approximately one hour. [10] The defendant gave evidence flatly contradicting this evidence given by the plaintiff. Moreover through him was tendered what he said was his handwritten contemporaneous record of instructions he took from the plaintiff on 19 October 1990. According to the defendant, the plaintiff expressed no doubt whatever as to the time and place of her injury which he faithfully recorded in his handwritten record which is Ex 9A. [11] It is clear from his version of the discussions that the plaintiff informed him that she was injured at the “proclaimed place” on 16 July 1985. [12] The critical question for determination in this case is whether when she gave instructions to the defendant the plaintiff did express uncertainty as to the precise time of her injury as she said in evidence or whether she expressed no uncertainty and specifically instructed the defendant that she was injured on 16 July 1985 as the defendant asserts. [13] As events unfolded over a period of about 8 months in preparing to institute proceedings on behalf of the plaintiff ,the defendant eventually advised her that she might be better represented by solicitors in Moree whom she had previously retained in connection with other matters while living there. The defendant says that accepting the plaintiff’s instructions he assumed that the proceedings in New South Wales (which had a six year limitation period for personal injury actions) would have to be instituted prior to 16 July 1991. [14] Eventually on 6 June 1991 at the request of the plaintiff the defendant forwarded his file relating to the plaintiff to Messrs Cole & Butler solicitors in Moree. The covering letter stated that the plaintiff had suffered injury on 16 July 1985 at Moree. He pointed out the approaching expiration of the limitation period and asked that those solicitors ensure that proceedings were commenced prior to such expiration. The Moree solicitors had received part of that file prior to Ms Spain of that office contacting the defendant’s office by telephone on 13 June 1985 to request the brief sent to Counsel who advised that the plaintiff pursue her action in New South Wales. Ms Spain took further instructions from the plaintiff by telephone on 19 and 21 June 1991. [15] The Moree solicitors in fact issued proceedings claiming damages for personal injury against both the occupiers of the premises in which the plaintiff said she was -- 3 of 12 -- 4 injured and her employers because she said she had injured herself in the course of her employment. These proceedings were instituted on 15 July 1991. [16] Prior to forwarding his file relating to the plaintiff’s instructions to the Moree solicitors the defendant had made inquiries and had taken steps which had to be taken in my view before proceedings could properly be instituted. It is unnecessary to enumerate those steps but efforts had been made to negotiate a settlement of the plaintiff’s claim with the insurer of the occupiers of the place where she said she had slipped and injured her back. Medical reports had been obtained from various doctors and other persons who had been involved in assisting the plaintiff with respect to her injured back. She had provided detailed statements as to quantum. Again it is unnecessary at this stage to deal in detail with those steps. In any event all results of the defendant’s inquiries were forwarded to the Moree solicitors who undertook preparation of the proceedings commenced on 15 July 1991. [17] It is not entirely clear to me on the evidence precisely why the Moree solicitors decided they should join the plaintiff’s employer as defendant to her proceedings. The plaintiff had no funds or least not many funds to pay for the action commenced in a District Court and transferred to the Supreme Court. Proceedings for Workers’ Compensation were later taken with a view to acquiring funds that might be used to progress the Common Law claim, however, on the material, there would seem to have been little evidence to support a common law claim against her employer. [18] However that may be, between July 1991, when the Common Law action was commenced, and November 1995, when proceedings in the Compensation Court (NSW) were heard in Brisbane, there were various settlement conferences held having regard to evidence then available on the issues of both liability and quantum. In September 1995, the solicitors for the occupiers offered $150,000 to the plaintiff inclusive of costs in full settlement of her claim in negligence. [19] In the course of the Compensation Court hearing in Brisbane in November 1995 a diary subpoenaed by Workers’ Compensation from the plaintiff’s employer in Moree at the time of her injury was tendered . For the first time it apparently then emerged to her then solicitors that the plaintiff had kept a daily diary. Although it seems to me uncertain on the evidence whether entries made in it were made on the date under which they were entered; some probably were and others probably were not. The important entry contained in the diary however was one purporting to have been made either on 3 July 1985 or at least recorded under that date. It recorded that it was on that day that the plaintiff was to visit or had visited the place where she said she suffered a back injury and not 16 July 1995, the date which according to the defendant she had informed him without any equivocation was the date of her injury. Interestingly, the diary contained no record of any such injury and no claim for Workers’ Compensation was made while she was employed in Moree and no report of such injury was kept by the occupiers – or by her employer – if one was ever made, which seems unlikely. In fact, she first made a claim for Workers’ Compensation for her alleged injury in 1992. [20] A record of the cross-examination of the plaintiff at the Compensation Court hearing on 2 November 1995 suggests that at that time at least the plaintiff had forgotten about her diary. It seems she was taken by surprise that she had entered in her diary in her own handwriting, that she was to visit or had visited the place where she said she injured her back, not on 16 July 1985, but, on 3 July 1985. I refer to -- 4 of 12 -- 5 the transcript of the Compensation Court proceedings Ex 16 at p 59 and to the evidence given to this effect by Ms Walsh who acted for her in those proceedings. [21] The principal contentions of the plaintiff are: A. She made it clear to the defendant that she was unaware of the date of her injury and he was negligent in not making further inquiries to ascertain that date to ensure that her action was commenced within the limitation period. B. If she did in fact specify a date of injury he was negligent in failing to observe a date in a medical report obtained in the course of assembling evidence prior to instituting proceedings which was inconsistent with the date of injury she did specify and was further negligent in failing then to make further inquiries. C. Whether or not she succeeds on contentions 1 and 2, the defendant was negligent in failing to advise her to retain a solicitor in New South Wales three or four months before the expiration of six years from the date he asserts she specified as the date of her injury. A. DID SHE SPECIFY 16 JULY 1985 AS THE DATE OF HER INJURY [22] I have examined carefully the contemporaneous record written out by the defendant as the plaintiff gave him instructions on 19 October 1990. [23] An assessment of the credibility/reliability of the plaintiff and that of the defendant in this case is critical to the determination of whether the plaintiff informed the defendant unequivocally of the date of her injury on 19 October 1990 as the defendant asserts or whether as she asserts she made it clear to him that she was quite uncertain of that date. [24] I have no hesitation in preferring the evidence of the defendant to that of the plaintiff on this issue. The notes taken are detailed and precise. Suggestion made by the plaintiff that after being informed that she had “no idea” of the date of her accident the defendant simply plucked out of the air the date 16 July 1985 indicating that that date could be checked out later and then made no further inquiries to “check out” the correctness of that date to my mind is so improbable as to warrant its rejection out of hand. [25] Such conduct on the part of the defendant on 19 October 1990 and subsequently until June 1991 would be completely inconsistent with other aspects of his conduct recorded contemporaneously in his file which is Ex 9 which demonstrate a careful and indeed meticulous adherence to the making and recording of relevant inquiries and the collation of facts essential to progress the plaintiff’s claim. [26] I observe only that I was unimpressed, not merely with the content of the evidence given by the plaintiff, but also with the manner in which she gave it. In many respects I found her to be an evasive and unconvincing witness particularly with respect to her attempt to explain away evidence which she gave in the Compensation Court of New South Wales in Brisbane on 2 November 1995 containing the implication that the cause of her fall was related to the disrepair of the verandah floor. She made no mention of slipping in water on a polished floor – vide Ex 16 at p 14. Photographs of the floor which she took in anticipation of litigation showing it to be broken and in disrepair were tendered upon this trial – -- 5 of 12 -- 6 vide Ex 4. The matters depicted in them and the comments written on the back of them by the plaintiff seem to have little relevance to her assertion that she slipped in water on the polished verandah floor, a significant distance away from an area of disrepair which she photographed and described as her action progressed. On the other hand, I was favourably impressed with the manner in which the defendant gave evidence, the content of which as might be expected was consistent with his contemporaneous handwritten record of the instructions given to him by the plaintiff on 19 October 1990. [27] Counsel for the plaintiff advanced every argument which could possibly be advanced to support her case and although it is perhaps unnecessary to deal with them in detail, it is appropriate, I think, to deal with the more strongly pressed contentions. [28] I am satisfied from what the plaintiff said in the evidence she gave in the Compensation Court hearing on 2 November 1995 when confronted with the content of her diary, that in asserting that she was injured on 16 July 1985 she had done her very best to work out that date having regard to what she learnt from Dr Whitnall’s records of her attendance upon him on 23 July 1985 in respect of low back pain sustained when she fell at work. The plaintiff was clearly of the view that she had visited Dr Whitnall on a Tuesday in respect of an injury which she suffered two to two and half weeks after commencing employment. This was the explanation she gave on oath on the Compensation Court hearing when confronted with the entry in her diary purporting to record her visit to the place where she said she was injured on 3 July 1985. 23 July 1985 was in fact a Tuesday. Her visit to Dr Whitnall is recorded in that same diary as having been booked for 23 July 1985 and visits for physiotherapy are recorded in that same diary for 25 and 26 July 1985. [29] According to Ms Shearman, the plaintiff’s solicitor in New South Wales who acted for her between June 1991 and November 1995, after the plaintiff had been cross- examined in the Compensation Court on 2 November 1995, they discussed the effect of the diary entry of 3 July 1985. The plaintiff informed her that she believed that she had commenced employment at the end of June or beginning of July 1985 and that she had her accident approximately two weeks later. She said that she had spoken to the defendant and “that was how they came to the date which they thought was either the 16th or 14th July 1985”. Her solicitor then raised “the option” that the plaintiff had of suing the defendant, advising however that to sue would be “a tenuous proposition” in view of the instructions she had given. The version of events in the defendant’s office on 19 October 1990 which she gave upon this trial differs significantly from the version she gave to her solicitor Ms Shearman in November 1995. [30] Dr Porter probably first became aware of the plaintiff’s visit to Dr Whitnall of 23 July 1985 when he received Dr Whitnall’s record of her examination and treatment by him in Moree after she commenced consulting him at Pittsworth in 1986. It is interesting to note that the plaintiff’s first complaint of back pains to Dr Porter was made on 20 May 1989 – about three years after she first consulted him as her general medical practitioner. Although Dr Porter had lost his notes relating to the symptoms which the plaintiff relayed to him between 1986 and August 1990, I infer that between May 1989 and August 1990 reference would have been made to the occasion on which she visited Dr Whitnall in Moree for treatment for back pain suffered as a result of her fall “at work”. -- 6 of 12 -- 7 [31] I am satisfied upon the whole of the material that relying upon Dr Whitnall’s record of her attendance on him on 23 July 1985 of which she became aware between May 1989 and August 1990 the plaintiff in October 1990 did her best to reconstruct the events of so long ago to arrive at the date on which she claimed to have been injured. I am satisfied that she did unequivocally inform the defendant that she was injured on 16 July 1985. I am satisfied that she gave him no indication that she was in any way uncertain about that date. She was however, clearly in error if the entry in her diary was correct. I am satisfied that she made no mention to the defendant of the existence of any diary and no suggestion of inquiries that might be made to confirm her instructions as to the date of her injury. [32] On 6 June 1995, she swore an affidavit in her action then pending in the Supreme Court of New South Wales, which was filed on 19 June 1995, in which she unequivocally asserted that she suffered her fall on 16 July 1985 (Vide Ex. 26). I infer that when she swore that affidavit she did in fact still believe that she did fall on that date. I further infer that she had maintained that belief continuously from a time prior to 19 October 1990. [33] I reject the evidence she gave concerning the instructions relating to the date of her injury which she gave to the defendant on 19 October 1990. I am unpersuaded that she said anything to him on that occasion which would cause him to have any doubt as to the accuracy of her instructions as to the date of her injury. I think it likely that she conceived the version of instructions she gave to the defendant which she advanced in this action only after discussing with Ms Shearman the matters I have referred to in para [29] after her cross-examination in the Compensation Court on 2 November 1995. She then seemed ready to blame the defendant for the error she had apparently made by suggesting that they were both responsible for selecting 16 July 1985 as the date of her injury because she “had stressed to” the defendant that she was not sure about that date. I observed that when giving evidence she was very definite about many matters; particularly with respect to the content of the instructions she gave to the defendant. I assume that she probably adopted the same attitude when she gave her instructions to him on 19 October 1990 and gave him no reason whatever to have any doubt about their accuracy. [34] I am unpersuaded that the defendant was guilty of negligence in failing to have or to express any doubt as to the correctness of the date specifically given to him or in failing then to spend time and incur expense to confirm that date by making further inquiries. In any event, enquiries promptly made of the occupier and the plaintiff’s employer by her New South Wales solicitors failed to elicit from them any information relevant to the date of her injury until 1994. In this respect, I am comforted by the expert evidence of Mr Behan called on behalf of the plaintiff as to the professional obligations upon the defendant in the circumstances. B. FAILURE TO OBSERVE DATE MENTIONED IN MEDICAL REPORT INCONSISTENT WITH DATE SPECIFIED [35] Among the many medical reports received by the defendant was one dated 3 November 1990, from Dr Porter. This report recorded that she had seen Dr Whitnall at Moree on 23 July 1985. The report then continued – “According to his notes she had slipped at work 10 days earlier and landed on her coccyx. Some of his notes are illegible to me. Over the 10 days the pain had become worse. …”. -- 7 of 12 -- 8 [36] It is contended that when he received a medical report in these terms about a fortnight after he had taken instructions from the plaintiff that she injured her back on 16 July 1985, the defendant was negligent in failing to observe that an entry apparently in the record kept by Dr Whitnall on its face was inconsistent with the date the plaintiff specified as the date of her injury. It is said that he was negligent in failing to notice or apprehend that it was 13 July 1985 which was a date “10 days earlier” than her visit to the doctor and not 16 July 1985, the date which she had specified to the defendant. It is contended that had he carefully perused Dr Porter’s medical report, the defendant should have noticed this inconsistency between the medical record to which Dr Porter referred and to the specific instruction given by the plaintiff. It is contended that had he done this he should then have brought this to the attention of the plaintiff – perhaps taking the opportunity to advise her of the effect of the statute of limitations on her right to institute proceedings for the injury she suffered. [37] In fact, of course, 13 July 1985 was a Saturday. Even if this perceived inconsistency had been drawn to the plaintiff’s attention, reference to any calendar would indicate that the doctor had asserted that she had injured herself on a Saturday morning. It is perfectly plain on the evidence that she did not work on Saturdays. In my view, it is more than likely that even had the defendant observed this discrepancy and brought it to the attention of the plaintiff she would have attributed this observation to simply an error on the part of the doctor when compiling his records. Whether the plaintiff had suffered her injury seven days or 10 days before she attended him for treatment would have had little relevance one might think to the clinical evaluation of her medical condition or the prescription of treatment for it. [38] In my view, it is easy to be wise after the event. [39] All the solicitors in New South Wales who acted for the plaintiff after the defendant had forwarded his file to the Moree solicitors also had the opportunity to peruse the medical reports procured by the defendant. There is no evidence that any of them took the view that doctor Whitnall’s record raised any doubt as to the correctness of the date which the plaintiff specified to be the date of her injury on the occasions when she gave evidence orally before the Compensation Court or when she made her affidavit filed in the Supreme Court of New South Wales in June 1995. [40] It is not every oversight or inadvertence on the part of a solicitor which will amount to professional negligence. Not all errors of judgment will amount to professional negligence in any profession. I am satisfied that when he received the various medical reports, the defendant was more interested in the expert opinions expressed concerning the plaintiff’s back condition and its aetiology than he was in reconciling the date specified by the plaintiff as the date of her injury with what Dr Whitnall had recorded for his own purposes on his patient’s record as to the fall occurring 10 days earlier rather than seven days earlier. [41] I am unpersuaded that the defendant was guilty of negligence in failing to perceive and note the apparent inconsistency between what was said to be recorded in Dr Whitnall’s notes and the specific instructions he had received from the plaintiff. [42] There is no evidence, of course, as to precisely what the plaintiff did tell Dr Whitnall was the date of her injury. Had she told him that her injury occurred on 3 July 1985 one might have expected that Dr Whitnall would have recorded not that -- 8 of 12 -- 9 she had hurt herself at work 10 days earlier but indeed that she had hurt herself at work 20 days earlier. [43] In my judgment, failure of the defendant (or any of the other solicitors subsequently) to observe the inconsistency between the date specified by the plaintiff and the date recorded apparently in Dr Whitnall’s medical records and to embark upon further enquiries although undoubtedly unfortunate for the plaintiff does not amount to professional negligence. C. FAILURE TO ADVISE THE PLAINTIFF THREE OR FOUR MONTHS EARLIER TO RETAIN A SOLICITOR IN NEW SOUTH WALES [44] Being wise after the event, of course, had the Moree solicitors instituted proceedings a fortnight earlier than the plaintiff’s instructions made necessary, the operation of the Limitation Act on her right to sue for an injury suffered on 3 July 1985 would, quite by chance, have been avoided. Had the defendant forwarded his file to the Moree solicitors, perhaps a month or two earlier, the operation of the Limitation Act, quite by chance and without any conscious endeavour on his part, may have been avoided. I am unpersuaded however that in light of the firm instructions given by the plaintiff, both to the defendant when he acted for her in Queensland and later to her solicitors in New South Wales, as late as June 1995, that the date of her injury was 16 July 1985, it can be said that the defendant breached the professional duty he owed to her as her solicitor in relying upon those instructions. [45] Undoubtedly, it would have been prudent for the defendant to have sent his file to the plaintiff’s Moree solicitors prior to 6 June 1991. It is clear, however, that the Moree solicitors could certainly have instituted proceedings before the end of June 1991. They also however proceeded on the basis of the instructions the plaintiff had given that she was in fact injured on 16 July 1985. Between 19 October 1990 and 2 November 1995, the plaintiff had never departed from those instructions. In my view, it cannot be said and indeed Mr Behan did not suggest that the institution of proceedings towards the end of a limitation period – at least if there is no reason whatever to doubt the correctness of the date given for the arising of the cause of action is in itself negligent. If there were any reason to doubt instructions given as to the date or cause of action arose, it may well be prudential to not postpone institution of proceedings until the day before the expiration of the limitation period. However, it was not the defendant who postponed the institution of proceedings until the last day, it was the plaintiff’s solicitors in Moree. They did so with a view to suing not merely the occupiers of the place where the plaintiff asserts she suffered injury but also her employers. As I have already indicated, it is unclear why the employer was added as a party to her common law claim for damages albeit one can understand why the claim for worker’s compensation was made to put the plaintiff in funds to assist in pursuit of her common law claim. [46] The proceedings were instituted on Monday 15 July 1991, one day before the expiration of the limitation period on 16 July 1991. [47] Had the proceedings been instituted a fortnight earlier on 1 July 1991, then of course quite by chance they would have been instituted within the limitation period which expired on Wednesday 3 July 1991. -- 9 of 12 -- 10 [48] A good deal of evidence was led from the plaintiff on the quantum of damages she would probably have recovered had her action gone to trial successfully on the agreed notional trial date of 30 June 1996. It is contended on her behalf that she would have received an award of damages totalling $438,000. Of this sum, it is said general damages would have been assessed at $60,000. It is said that past economic loss would have been assessed at $130,000, future economic loss at $141,000, and past and future Griffiths v Kerkemeyer damages at about $29,000. [49] While there would have been no question of contributory negligence had the evidence of the plaintiff and that of Heather McDonald been accepted, there would in my view have been some prospect of the plaintiff failing altogether on the issue of liability. The only evidence that she ever told anybody about any back injury (apart from Dr Whitnall) would be that of Heather McDonald. It is interesting to note that when eventually contact was made with Heather McDonald before a statement was obtained from her, she was fully informed as to the assertions made by the plaintiff concerning her injury; in effect she merely confirmed them. [50] It emerges from the record of the Compensation Court that her demeanour left something to be desired and as a consequence of advice received from her counsel, her application was discontinued or withdrawn. Interestingly, it was withdrawn not because of any problem with the date of her injury – which was irrelevant upon the Workers’ Compensation claim. There was a good deal of medical evidence given concerning her incapacity as a consequence of her alleged back injury and a video showed her engaging in activity inconsistent with the lack of capacity which she swore to in the hearing. [51] Prior to that worker’s compensation claim coming on for hearing, the solicitors for the defendant had made an offer to the plaintiff to settle her action in full for $150,000 (inclusive of costs). That offer “lay on the table” from 29 September 1995 to 2 November 1995. [52] On 29 September 1995, she was advised by her solicitor Ms Walsh that the offer was a reasonable offer. She had difficulties in the light of medical evidence in demonstrating that many of the symptoms of which she complained were not attributable to a degenerative condition of her spine which may have been accelerated and/or aggravated by any trauma she suffered when she allegedly slipped and fell. Years had gone by between the time she ceased to receive any treatment from Dr Whitnall for pain resulting from her fall at work and when she started to complain of lower back pain when she settled in Pittsworth. There was a conflict of medical opinion with respect to the part played by her fall in her symptomology – as is not unusual in cases of this kind. [53] The plaintiff did not report any injury to her employers or make any claim for worker’s compensation. She did not take any time off work for a period of about nine months after her alleged injury. Her employment was terminated because of the unacceptable performance of the work she was employed to do. When her employment was terminated in March 1986 the plaintiff moved to Pittsworth intending to take up full time study. The plaintiff sought no medical treatment for any back condition between 30 August 1985 when she last saw Dr Whitnall and 14 July 1986 when she saw a chiropractor, Mr Barham in Toowoomba. In this period she had attended Dr Whitnall on a number of occasions without complaining of any low back pain. -- 10 of 12 -- 11 [54] When she attended a chiropractor for back treatment she complained of pain in the mid thoracic region. She said she had had such pain there from 1982. According to the plaintiff she required home help and assistance only from 1992 – seven years after her alleged back injury on 16 July 1985 (or 3 July 1985). [55] The first time she complained of low back pain was to Dr Porter on 20 May 1989. The leg pain that she reported to Drs Ingram and Ivers was said to have arisen when she tripped when playing with her dog in March 1989. In giving a history of back complaint she did not mention to Dr Ivers anything about a fall in July 1985; she told him that her back problems commenced after she fell playing with her dog in March 1989. [56] In April 1991, the plaintiff advised the defendant that her back problems commenced in November 1989 (Ex 9). [57] It emerged from the evidence given by Dr R L Atkinson in the Compensation Court that he had seen her in a pain management clinic. He concluded that she did have a disc protrusion which was consistent with “the incident in July 1985” in the absence of any previous injury to her back. He said that the “objective underlying problem” was “enhanced by her odd personality”. He expressed the view that the pain of which she complained was “out of proportion to the tissue damage” and that her reaction was at times “rather bizarre ”. It emerged that she had been subjected to stress as a consequence of the breakdown of her marriage and some problems she perceived with raising her daughter in Pittsworth. Dr Atkinson conceded that the plaintiff’s back condition may have reached the stage which it had at the time of her compensation hearing without her sustaining any fall whatever. He conceded that any fall may not have had any real connection of significance with the symptoms of which she was then complaining. [58] I do not propose to deal in detail with the various medical reports and the evidence given in both the Compensation Court and in this Court. [59] It is clear, in my view, that the plaintiff had significant problems to overcome on the evidence in demonstrating that as a consequence of her alleged injury in July 1985 she suffered the losses for which she now contends. The defendants in her notional action of course would have had to have taken the plaintiff as they found her. To the extent that her disability was attributable to her “strange personality” or to any functional overlay it would of course still be compensable. [60] At the end of the day however it seems to me that it would be quite unlikely that the plaintiff would recover a sum anywhere in the vicinity of that for which she now contends. [61] The solicitors for the defendants were obviously well aware of the strengths and weaknesses of her case – both on liability and quantum. They made an offer of $150,000 (inclusive of costs). She hoped to obtain an increase in that offer and had the diary not been produced in the Compensation Court leading to the limitations point problem, it may be perhaps that the offer would have been increased to some extent. It was the performance of the plaintiff before the Compensation Court and the discovery of her diary which of course led to the withdrawal of that offer. However she said that she would have accepted that offer rather than proceed with a hearing in court. -- 11 of 12 -- 12 [62] Eventually, the plaintiff settled her common law action for the sum of $60,000 (which included costs) and for the payment to her solicitors of the costs she incurred in the Compensation Court. [63] In my view, the best evidence of the worth or value of the plaintiff’s chance of succeeding in her action in the Supreme Court of New South Wales, if one ignores the limitation point that arose only on 2 November 1995, is the sum which she was offered in September 1995 and advised by her solicitors was a reasonable sum to settle her action. [64] It may be perhaps that the defendants would have increased their offer marginally. Giving the plaintiff the benefit of the doubt, I infer that they may have increased their offer to perhaps $175,000 (costs inclusive). [65] I assess the value of the plaintiff’s lost chance to successfully pursue her action against the defendants in New South Wales in the sum of $175,000. She has received however, the sum of $60,000 in addition to her costs incurred in the Compensation Court. For the purpose of assessment of damages in this case I disregard those costs. All told, therefore, I assess the value of the plaintiff’s lost chance of recovering damage diminished by the amount of $60,000 she received in settlement from the defendants in the sum of $115,000. [66] I give judgment for the defendant. [67] I order that the plaintiff pay to the defendant his costs of and incidental to the action to be assessed on the standard basis. -- 12 of 12 --