Dew v Richardson [1999] QSC 192

( IN THE SUPREME COURT OF QUEENSLAND Writ No. 4159 of 1997 Brisbane BETWEEN: BRETT ROBERT DEW Plaintiff AND: WAYNE RICHARDSON Defendant REASONS FOR JUDGMENT - CHESTERMAN J Judgment delivered 18 August 1999 CATCHWORDS: LEGAL PRACTITIONERS - solicitor and client - negligence- retainer - duties and liabilities - whether defendant negligently, and in breach of implied term of retainer advised plaintiff to accept inadequate settlement offer - whether solicitor's duties, in compromising litigation, extend beyond informing and advising. Counsel: Solicitors: Hearing Date: NEGLIGENCE - proof - weight and credibility of witnesses - whether the client's evidence must be accepted in the absence of a written note of the communication between solicitor and client - whether defendant's attempts to post date attendance notes affected credit - damages - assessment of damages based on loss of opportunity to bring action to trial. Mr D Atkinson for the plaintiff Mr K Wilson for the defendant Watling Roche for the plaintiff McInnes Wilson for the defendant 21-23 July 1999 -- 1 of 27 -- ( IN THE SUPREME COURT OF QUEENSLAND Writ No. 4159 of 1997 Brisbane BETWEEN: AND: BRETT ROBERT DEW WAYNE RICHARDSON REASONS FOR JUDGMENT - CHESTERMAN J Judgment delivered 18 August 1999 Plaintiff Defendant The plaintiff is a thirty-one year old man of limited education who was in regular employment as a labourer until 9 December, 1993 when he suffered a back injury in the course of lifting a heavy carton. He had been employed by Hare & Forbes Pty Ltd ("the employer") as a storeman. He was then aged twenty-six, having been born on 23 September, 1967. The plaintiff has not worked since his injury. Initially he received workers' compensation and, subsequent to a modest lump sum payment, he has been in receipt of social security. 2 At all relevant times the defendant was a solicitor who carried on a sole practice from . premises in the suburb of Hawthorne, not far from where the plaintiff lived. In February 1994 the plaintiff retained the defendant to advise and act for him in relation to his injuries. On 30 June, 1995 the defendant instigated action 1644 of 1995 in the District Court in which the plaintiff claimed $200,000.00 damages against the employer. 3 That company sold engineering and woodworking equipment such as lathes and various types of saws. The equipment, packed in containers which were loaded on pallets, -- 2 of 27 -- 2 was delivered to its premises by truck. When trucks arrived the pallets would be unloaded by forklift and placed on the ground adjacent to an empty pallet owned by the employer. The plaintiff, in his role of storeman, would physically transfer the packages from one pallet to the other. The cartons varied in weight. On the day of his injury the plaintiff was lifting an item of equipment weighing, he estimated, 130 kilograms. In effecting the transfer, the plaintiff twisted his trunk and suffered immediate pain in his back. 4 The case alleged in the District Court was that the employer was negligent in no~ providing assistance to lift the heavier cartons. 5 By letter dated 22 November, 1995 Carter N~well, solicitors representing the employer offered to settle the plaintiffs claim by the payment of$100,000.00 clear of any moneys the () plaintiff had to refund to the Workers' Coml'~nsation Board, together with his party and party costs to the date of the offer. On 24 November, 1995 the defendant made a counter-offer to settle for the sum of $135,000.00, otherwise on the same terms. By letter dated 7 December, 1995 and sent by facsimile transmission, Carter Newell offered $115,000.00. Enclosed with the letter was a form of release which acknowledged receipt of the money in full and final C) settlement, satisfaction and discharge of his claim against the employer. The plaintiff signed the release on 8 December, 1995 and has been paid the agreed amount. C) 6 The plaintiff claims that the defendant negligently, and in breach of an implied term in his retainer: (a) advised him to accept the employer's offer of$115,000.00; (b) failed to advise him to reject the offer as being inadequate; (c) failed to advise him that if his action against the employer were pursued to judgment he would receive an amount substantially in excess of$115,000.00. -- 3 of 27 -- ( .' 3 The plaintiff further claims he compromised his action against the employer because of advice given by the defendant that, in effect, the amount offered was as much as he could expect to recover and that his action may have failed. It is the plaintiffs case that the nature of his injuries is such as to make $115,000.00 wholly inadequate as recompense and that the claim against the employer was a strong one. 7 The statement of claim pleads a number of particulars by reason of which it is alleged the defendant was negligent in proffering advice to accept the offered sum. It identifies as failures by the defendant: (a) (b) not obtaining counsel's opinion in relation to the award of damages likely to be recovered; failing to obtain further medical reports and to require the plaintiff to undergo further examinations; and (c) failing to advise the defendant with respect to these matters. 8 Two factors led to the considerable simplification of the trial. The first was that it was (. common ground that the plaintiff had an unassailable case against the employer for damages for failing to provide a safe system of work. Counsel for the defendant readily accepted that the employer was negligent in not providing human or mechanical assistance when the plaintiff was required to lift heavy cartons. Moreover, it was accepted that the defendant held that view of the plaintiffs prospects against the employer during the performance of his retainer. The second is that the defendant accepts that the amount offered to settle the action against the employer was inadequate and that the plaintiff ought not to have been advised to accept it. The defendant's case is that he told the plaintiff the offer was too low and that he ought to press on with his action and obtain further medical reports before proceeding to trial. The -- 4 of 27 -- I 4 defendant contends that the plaintiff disregarded his advice because of his straitened fmancial circumstances which compelled him to accept the paltry sum on offer. 9 What might have been a complicated case concerned with the duties of a solicitor to give advice to a client claiming damages for personal injuries with respect to an offer to settle that claim has become a straight forward dispute on credit. Questions of what advice ought to have been given with respect to the offer, and what inquiries ought to have been made prior to giving advice about the offer have become irrelevant. The nature of the difficulties inherent in such a case are eloquently expressed in the headnote to Karpenko v. Paroian, Courey, () Cohen & Houston (1981) 117 DLR (3d) 383. They are also discussed in Campbell v. Gibson & Gibson (1992) 8 SR (WA) 263 and are mentioned in Cordery on Solicitors, paragraph 377. 0 For this case it is enough to say if the defendant advised the plaintiff to accept the employer's offer he was negligent. 10 I was referred to the judgment of Denning LJ in Griffiths v. Evans [1953] 1 WLR 1424 at 1428 at which the judge said: " ... I would observe that where there is a difference between a solicitor and his client ... the courts have said, for the last 100 years or more, that the word of the client is to be preferred to the word of the solicitor, or, at any rate, more weight is to be given to it ... The reason is plain. It is because the client is ignorant and the solicitor is, or should be, learned. If the solicitor does not take the precaution of getting a written retainer he has only himself to thank for being at variance with his client over it and must take the consequences." The judgment was a dissenting one. The other Lord Justices merely noted that the solicitor's evidence had been accepted by the trial judge and, conventionally, decided the case in accordance with the finding on credit. I cannot accept it is a principle of law that wherever a solicitor and his client disagree about the terms of a retainer (or advice) and the solicitor has not made a written note of the communication the client's evidence must be accepted. Findings of fact, especially those based upon an opinion as to the creditworthiness of c) -- 5 of 27 -- (\ \ 11 5 witnesses, are to be made from a careful and objective examination of the evidence adduced with respect to those facts. To introduce the notion that in a given circumstance facts must be found a certain way is to replace justice in the individual case determined by the application of legal principle to idiosyncratic facts with the arbitrariness of a determination made by reference to a mindless ritual. I approach the critical question on the basis that both client and solicitor, plaintiff and defendant, have an equal right to be believed. Which of their respective versions is to be accepted will depend upon the persuasiveness of their evidence as judged by surrounding, objective circumstances. The plaintiff pleaded in paragraph 12 of his statement of claim that: "On or about 28th day of November 1995 the employer did offer and the Plaintiff, on the advice ... of the Defendant, did accept an offer to compromise his causes of action against the employer ... " 12 The plaintiff originally particularised the advice as having been given on 7 December, 1995 to the effect that the plaintiff: "should accept the offer because the ... chances of winning were slim and ... the Plaintiff could come out with less (than the settlement offer) or lose the case ... it could take another 2 to 3 years for the matter to get to court and ... it would be in the Plaintiff's best interest to accept the offer." At trial the particulars were amended to identify two occasions, 7 December, 1995 and 24 November, 1995, on which the advice was given. On 7 December the advice was said to be that: "The Plaintiff should accept the settlement offer of $115,000.00 clear of the refund to Workers' Compensation plus party and party costs and outlays" and that "it was in the Plaintiff's best interest to accept that offer". The advice given on 24 November was that the plaintiff's: "highest possible damages award was $135,000.00". -- 6 of 27 -- 6 13 The sequence of events comprising the negotiation for the compromise are clearly established by the exchange of correspondence and the execution of the release which constitutes the actual compromise. 14 The plaintiff s evidence-in-chief (T20.50-21.32) was: "My wife and I had been called down to his office ... so we'd gone down there. It was around lunch time. He said he'd been negotiating and had put an amount to them and negotiated and come back with around 115 ... We spent probably around half an hour to three quarters of an hour with him discussing while he was sort of negotiating backwards and forwards to the other party and then the final agreement was 115 which the advice was he thought that we should take that ... if it would go to Court ... I think we should be sort of happy with what we got because it would come out - most likely we would come out with less money than what we've got if we went to Court and it would go on for probably another two or three years, it would carry on for, plus it would be costing more money for doctors' reports and it would carry on ... Well ... we went home and we had a talk about it and we ... thought, ... if that's the case, if we are going to come out with less going to Court ... we should take it ... I ... talked to Mr Richardson back over the phone and says yes ... we'll take that settlement. So we went down to the office and signed up some papers". 15 In cross-examination the plaintiff confirmed that the negotiations to settle his action and the advice given about the settlement occurred on one occasion, that being the day on which the plaintiff signed the discharge. That was 8 December, 1995. 16 It will be noted that the plaintiffs account does not include any reference to the defendant's advising him that his prospects of success in his action against the employer were slim or that he might lose the case. This had been the subject of a particular, as I have already mentioned. It had also been asserted in an answer given by the plaintiffto an interrogatory. In cross-examination the plaintiff confirmed that that advice had been given (T30.28-.40). This evidence is not easy to reconcile with other answers given by the plaintiff, that he could not recall the defendant ever giving advice about prospects of success and, more positively, that the defendant had not given such advice (T28.30, 29.5, 29.38). C) C) CJ C) -- 7 of 27 -- 7 17 The plaintiff's recollection of events does not sit comfortably with the sequence that appears from the documents. Carter Newell made the first offer by letter dated 22 November, 1995. It bears a receipt date stamp of24 November, 1995. The plaintiff's counter-offer made on his behalf by the defendant is dated 24 November. If the plaintiff is correct and he discussed settlement with the defendant only on 7 (or 8) December the counter-offer must have been sent by the defendant without reference to his client and without instructions. If, as one would think more likely, the counter-offer was the result of a discussion between them ( in which instructions were given to make the counter-offer, the plaintiffs account becomes doubtful. 18 The plaintiffs wife gave corroborative evidence. She rem~mbers receiving a telephone call from the defendant "about November when he rang for us to go down and see him, about an offer". When they arrived the defendant told them "the other side have come through with an offer" but the plaintiff and Mrs Dew thought the amount insufficient. The result was they "went for ... a higher amount". The response was an offer of$115,000.00. i / The defendant asked them what they thought of the offer but Mr & Mrs Dew were not sure. . (/ They asked Mr Richardson for his opinion "and he seemed ... that he was quite happy with that offer. He thought if we went ahead or went to court we'd get less ... and [he] said ... 'It's a good offer ... you can take it and get on with your life or you could take years to go to Court"'. The conversation concluded with the defendant telling the plaintiff and his wife to go home and think about the offer. They did and decided to accept the offer because the defendant "was quite happy with that amount". 19 It will be observed that this account, too, has the negotiation and settlement occurring on the same day. -- 8 of 27 -- 8 20 The defendant's evidence was quite different. It was that he received the letter from Carter Newell on 24 November, 1995 and telephoned the plaintiff. An appointment was made to meet at 12 o'clock that day. The meeting lasted about an hour. The defendant gave the plaintiff a copy of Carter Newell's letter together with its enclosures: the formal offer to settle and two reports from Dr Morris. The letter said: "We enclose by way of service on the plaintiff an offer to settle this matter in: the sum of $100,000.00 clear of the refund plus party and party costs to the date of this offer. We further enclose the following [two reports from Dr Morris]. In our opinion, the court is likely to accept the opinion of Dr Boys as the middle ground of the differing opinions of the orthopaedic surgeons. On that basis, the plaintiffs award for damages is likely to be as follows: ... $99,889.00. Given the plaintiff's previous experience in these matters and his knowledge of the weight of the item which he alleges he was moving ... we are confident that the court will apportion at least a 10% contributory negligence component on the plaintiff ... The above offer is made with a view to finalising this action at an early opportunity. Would you please provide the plaintiff s response or alternatively contact the writer to discuss this matter at your convenience". The defendant "went through the letter with [the plaintiff] specifically with respect to contributory negligence and ... told him that ... it was irrelevant to his claim ... Because he had extremely good prospects and there was no prospects of him losing it". The defendant then discussed the offer itself, its amount and the legal consequences of an offer to settle. He then drew attention to Dr Morris's reports, pointing out the relevant section which expressed the doctor's opinion that the plaintiff had suffered a total permanent disability of his whole body of twenty-five per cent. The plaintiff asked whether he should accept the offer. The defendant replied that if Dr Morris's opinion was accepted the plaintiff would recover substantially more. () lJ c) -- 9 of 27 -- 9 21 On 9 November, 1994 the defendant had briefed counsel to provide an advice on quantum. The advice was delivered on 27 April, 1995. Based upon the information then available, counsel advised the damages would be assessed: (a) for general damages including interest at between $15,000.00 and $20,000.00; (b) for past economic loss of $26,880; (c) for interest on that amount, of$1,046.00; (d) for future economic loss - $40,000.00; ( (e) a further unspecified sum for the provision of household assistance; (f) for the Fox v. Wood component of income tax deducted from compensation ,/ ( payments of$2,753.50; " (g) special damages calculated to be $5,559.45 plus whatever other expenses the plaintiff could prove; (h) less the amount due to be refunded to Workers' Compensation of$22,236.73. It will be seen that the advice postulated an award of something between $91,000.00 and ( $96,000.00 from which the refund would have to be paid. 22 During their discussion the defendant took the opinion from his file and showed it to the plaintiff. He explained the medical evidence that had been briefed and that Dr Morris's opinion substantially changed the tenor of that evidence. As well he noted that a further report from Dr Boys had been received since the receipt of the advice. The defendant explained that the changes meant that the amount advised by counsel was inaccurately low. He drew attention to Carter Newell's contention that a court would find the level of disability to be something in the "middle" of the differing medical opinions and that it would be advisable to obtain a further report from another orthopaedic specialist. The defendant recommended -- 10 of 27 -- 10 Dr Gillett whose report, together with the others, should be submitted to counsel for an updated opinion. 23 The plaintiff became concerned with the delay that would be occasioned by undergoing further medical examinations and briefing counsel who had taken some months to deliver his opinion. The defendant understood from making other appointments that three months would elapse before Dr Gillett could examine the plaintiff who said that "he was doing it pretty tough financially and that was creating a lot of stress for him". He said that if he could recover $100,000.00 actually in his hand he would be "more than happy to settle". The defendant explained that the offer would not yield that amount because money had to· be repaid to the Department of Social Security and that solicitor and own client costs would be C) greater than the amount paid pursuant to the offer. The upshot was that the plaintiff instructed the defendant to attempt to obtain $100,000.00 "clear" and, specifically, to make a counter- offer of $135,000.00. 24 When the interview terminated the defendant went to his secretary's desk and dictated the formal offer document and accompanying letter which was typed on the spot. This was C) done to ensure that the letter was posted that same day to accommodate the plaintiff s desire for haste. Ordinarily the defendant would have dictated the contents of the document onto a tape which would have been put with the other work awaiting transcription and typed after a delay of two or three days. 25 On 28 November the defendant spoke to Mr Kelly, the solicitor at Carter Newell who was handling the matter, and asked when he might expect a reply to the counter-offer. On 7 December the defendant spoke again by telephone with Mr Kelly. An offer was made in the terms which were ultimately accepted. The defendant then telephoned the plaintiff s home and spoke to Mrs Dew. He relayed the offer and was told that the plaintiff would ring back. -- 11 of 27 -- 11 He did and the defendant told him what the offer was. The plaintiff said he wanted to accept it but the defendant advised that the amount was too low and that he should think about it and discuss with his wife whether he should accept it. A little later the plaintiff rang back. He said he had discussed the matter with his wife and he "definitely wanted to settle". The defendant then rang Carter Newell and ac.cepted the offer. Subsequently, at 5:40 pm on 7 December, Carter Newell· sent by facsimile transmission a letter confirming the terms of the settlement and a form of discharge to be signed by the plaintiff. Neither the plaintiff nor his wife attended the defendant's offices on 7 December. The next day, 8 December, the plaintiff attended and signed the discharge. Mrs Dew may have come with him. 26 The defendant denied telling the plaintiff that his chances of winning his action against the employer were slim; or that if his case went to court he could lose it altogether; or that he should be happy with the amount offered. 27 A further conversation should be mentioned. Some time in the second half of 1996 I ( ) when the plaintiff was again in the defendant's office in connection with another retainer, the defendant said to him that he should not have settled his personal injuries claim for such a low (\ amount. The plaintiff's response was that "he had no choice at the time". The plaintiff agreed such a conversation occurred. He explained his answer as meaning that his lack of choice arose from the defendant's advice that he should settle on the terms offered. He agreed he did not explain that to the defendant. 28 I prefer the defendant's version of events. His evidence was the more convincing and I accept it. I do not rely primarily upon the manner in which the witnesses gave evidence though the defendant's demeanour was more impressive. There are reasons why the plaintiff might not appear as credible as the defendant. He is not familiar with courts or the way in -- 12 of 27 -- 12 which they do business. The defendant has that advantage. The plaintiff is a man of limited education and occupational experience. He has not worked since his accident in December 1993. Medical evidence suggests that the plaintiff has become depressed and lost self- confidence as the result of his continued disability and unemployment. Given these factors it would not be fair to judge between him and the defendant on appearances. 29 Three factors incline me to accept the defendant's evidence. The first is the conversation between plaintiff and defendant in which the latter remarked that the plaintiff had settled too cheaply. The admitted response "I had no choice" is consistent with the C) defendant's account that the plaintiff agreed to accept the employer's offer because he was in great fmancial distress. The answer connotes agreement that the amount was inadequate but ('I i ,,/ I that circumstances forced its acceptance. The response is startlingly inconsistent with the plaintiff s history which is that he had been told the offer was a good one and more than could be expected if the action went to trial. If the plaintiff was subsequently told the amount was inadequate he would not have acquiesced but would have remonstrated with the defendant and reminded him of his earlier advice, on which he acted, that the sum was proper recompense. He may have expressed anger, he would certainly have expressed surprise. Neither emotion emerges in the narration of the C) conversation. 30 The second factor is the assertion that the defendant reinforced the advice to accept the offer by suggesting there was considerable doubt that the plaintiff would succeed against the employer. The prospects of success were said to be "slim". It is, I think, significant that the plaintiff resiled from this part of his account. The amended particulars deleted reference to that part of the advice and the plaintiff did not mention it in chief. He was virtually obliged to affirm it in cross-examination when confronted with his answer to interrogatories. It is not ----------- -- 13 of 27 -- 13 credible that the defendant would have given such advice after the receipt of the letter from Carter Newell which half-heartedly argued that the court would "apportion at least a 10 per cent contributory negligence component on the plaintiff'. The offer itself did not reflect any reduction in the damages assessed as being appropriate to the plaintiff s condition. Whatever the defendant's view of the plaintiffs prospects before he received the letter, having got it, he knew that the plaintiff could certainly recover ninety per cent of the value of his claim. The defendant had no reason to denigrate the plaintiffs prospects of success. The plaintiff ( was, in the end, reluctant to say he had done so. 31 The third factor is the impossibility of accepting that negotiations for the settlement ( ) occurred on one day as the plaintiff and his wife stated. On Mr Dew's version the making of the counter-offer must have occurred without instructions. I think this most unlikely. On . Mrs Dew's version the defendant was instructed, at least impliedly, "to go for a higher amount", but the offer, counter-offer and final offer were all made on the one day. This is clearly wrong. The defendant's account fits in with the objectively ascertained events. The C ) plaintiff s is irreconcilable with them, whether the alleged conversation occurred on 24 November or 7 December. 32 There are other matters which tend to corroborate the defendant. There does appear to have been some urgency about the defendant's attempts to elicit an offer which would yield the plaintiff $100,000.00 clear of refunds. Urgency is explicable if the offer were being sought to alleviate the plaintiff's pressing poverty: Nothing else in the known circumstances would explain the urgency which is shown by: • the immediate preparation and dispatch of the counter-offer on the day the first offer was received; -- 14 of 27 -- 14 • on 27 November the defendant telephoned Mr Kelly and asked when he might expect a response to his offer; • on 30 November the Department of Social Security advised by facsimile transmission the amount of the refund due to the Department. The facsimile must have been sent in response to an enquiry made by the defendant but it is not clear when the enquiry was made. On 7 December Carter Newell conveyed the final offer orally. After the defendant received the plaintiffs ,r-\; instructions to accept it he telephoned Mr Kelly who then sent the offer "-_ ! documents by facsimile. Mr Kelly wrote on the letter, in hand, "The release will have to be returned ASAP to get the funds before Xmas"; • the discharge was signed on 8 December and sent by facsimile transmission to Carter Newell; • when the Workers' Compensation Board advised that cheques to effect settlement had been drawn and were signed, they were sent by courier to the defendant. 33 There is corroboration for the plaintiffs financial predicament. He furnished the defendant with a written statement dated 22 September, 1995 setting out the circumstances of his accident and its personal consequences. In it the plaintiff wrote: "[My wife] has had a lot of work to do and this has caused a lot of stress which caused her to have a miscarriage ... with worrying about money and trying to cope with the future ... I have lost money on wages because workers' compensation pay only a percentage and now sickness benefit is much less than what I was earning ... $245.00 difference a week. I have had to borrow money from my mother to pay for registration on the car for the past two years ... she has had to pay power bills for us because we had our power cut [off] because lack of money, borrowed money just to help us out with everyday things petrol, food, phone ... ". C) C~) () -- 15 of 27 -- ( 15 34 The defendant's counsel relied also on evidence that the plaintiff was being pursued throughout 1995 by two finance companies from whom he had borrowed money. I do not attach much significance to this because the defendant had reached agreement on the plaintiffs behalf that they would be paid out of the proceeds of the action. The plaintiff was thereafter relieved of the need to obtain money urgently to pay the finance companies. 35 In cross-examination the plaintiff conceded salient aspects of the defendant's evidence. He accepted: • • that there was a meeting between him and the defendant on 24 November, 1995 and it had lasted about an hour; at that meeting he was shown Dr Morris' reports; • the defendant "probably" recommended that he be examined by another orthopaedic surgeon. In context "another" orthopaedic surgeon would be one other than Dr Boys or Dr Morris; • • at the meeting he and the defendant discussed what sum would have to be paid for him to retain $100,000.00 for himself; that on 7 December he spoke by telephone to the defen~ant and instructed him to accept the offer of $115,000.00 clear of the refund and that he did not, on that day, go to the defendant's office. These concessions, the effect of which is that significant parts of the defendant's evidence are true, increase my reluctance to accept the reliability of the plaintiff's evidence on the critical question: was the plaintiff s decision to accept the offer motivated by his precarious finances or by the defendant's advice that he could do no better? 36 Counsel for the plaintiff mounted a strong attack on the defendant's credit based upon attempts to post date diary notes of his attendances on the plaintiff in order to make them -- 16 of 27 -- 16 appear contemporaneous when in fact they were compiled about fourteen months after the events they purport to record. 37 The point arose in this way. In about February or March 1997 the plaintiff became dissatisfied with the manner in which the defendant was performing his retainer on another matter also connected to the plaintiffs injury. The plaintiff consulted his present solicitors and transferred instructions to them. They contacted the defendant and asked him to send his file and the file in respect of the plaintiffs action againstthe employer. Something, which did not clearly emerge in the evidence, in the manner of the communication from the new C-j solicitors caused the defendant to take alarm. It remained his opinion that the plaintiff's claim against the employer was worth more than the amount for which he had settled. He must have () suspected that the discrepancy would become a source of controversy with the new solicitors. It is, I suppose, difficult to see why those solicitors would want the defunct file except to investigate the circumstances of the settlement. In any event the defendant composed two memoranda purporting to record the substance of the meetings he had had with the plaintiff on 24 November and 7 December, 1995. He put those respective dates on the notes. The one dated 24 November, 1995 reads: "$115,000.00 clear of refund and costs will settle. My advising should now obtain further specialist report because of difference in reports, too low, instructed put in offer". The one of 7 December reads: "Personal attendance on telephone with Brett Dew. Discussed generally. Offer too low. Will accept under extreme financial difficulty". 38 The defendant is adamant that the content of those notes accurately expresses in condensed form the terms of the conversations he had with the plaintiff on those dates. He frankly admits the records were not made at the time of the conversations. He had the notes ------------------ -- 17 of 27 -- 17 placed in the appropriate position in the file which was, of course, compiled chronologically. Before s~nding it to the new solicitors he spoke to a representative of his professional indemnity insurers. During that communication he realised that to have sent the file containing those notes would have been to practise a deception. Accordingly he gave instructions to his secretary to remove them from the file which was to be photocopied in its entirety. The photocopied file was to be sent to his insurers and the original sent to the new solicitors. His instructions were incompletely carried out and a photocopy of the diary note (' dated 7 December went with the original file to the solicitors. 39 From these facts, counsel for the plaintiff argues vigorously that the defendant has (\ acted discreditably and the veracity of his evidence is called in question. The defendant's conduct would have been reprehensible had he intended to mislead the new solicitors as to the existence of contemporaneous records indicating that the plaintiff had accepted an offer contrary to advice and because of his personal circumstances. I am satisfied that the defendant realised the inappropriateness of that course of conduct and abandoned it. The retention in C the file of the note of 7 December was the result of an error and was not part of a deliberate attempt to mislead the plaintiff s advisors. The defendant was commendably frank in his explanation of what had happened. The misguided attempt to produce a self-serving record of events does not persuade me to disbelieve the defendant. I place no reliance at all upon the two notes but the other reasons I have explained lead me to conclude that the defendant's evidence should be preferred to that of the plaintiff and his wife. 40 The plaintiff also argues that the defendant's recollection of his telephone conversation with the plaintiff on 7 December is implausible. It is unlikely, the argument runs, that the defendant would have refused to accept the plaintiff s instructions to accept the offer because it was too low when he had earlier specifically discussed with the plaintiff what amount would -- 18 of 27 -- 18 / be acceptable and had pitched the counter-offer so as to invite an offer in the very amount put forward by Carter Newell. There is some force in the submission and it may be the defendant has overstated the severity of his caution but I am satisfied that he did warn the plaintiff that the amount was less than the claim was worth. The plaintiff was determined to accept because of impatience to escape his impecuniosity. 41 The consequence of preferring the defendant's evidence is that I find the plaintiff was advised, prior to accepting the employer's offer to settle the action against it, that $115,000.00 clear of the refund to be made to the Workers' Compensation Board together with taxed costs of the action to the date of the offer was not sufficient compensation, and that the offer should be rejected. The plaintiff was not told what amount would be reasonable to accept but was advised that he should undergo further medical examination with a view to obtaining further advice from counsel on the point. For his own reasons the plaintiff desired to compromise his action as soon as possible even though to do so would result in a smaller payment than if he persisted with the litigation. 42 In these circumstances the defendant was not negligent. A solicitor who has accurately c~) explained the position to his client but is nevertheless instructed to proceed with a particular I . course of action is not responsible in law for loss the client suffers by reason of that conduct. "'--) This is the view of Halsbury's Laws ofEngland, 4th edition, volume 44, paragraph 136 citing as authority Lee v. Dickson [1863] 3 F&F 744. It is also the view of the authors of Jackson & Powell on Professional Negligence, 3rd edition, paragraph 4-71 who say: "The solicitor has a duty to advise on the legal hazards of the transaction but no more." relying upon the judgment of Lincoln J in Dutfield v. Gilbert H Stephens & Sons (1988) 18 Fam Law 473 at 474 to this effect: -- 19 of 27 -- 19 "It was the duty of the solicitor to inform and advise, ensuring that the information and advice was understood by the client. It was not part of his duty of care to force his advice on the client". I agree with these views. A solicitor's role is to advise. In the absence of express instructions he does not undertake the conduct of the client's affairs. The court should be most reluctant to recognise any exception to this principle in the case of compromises of litigation. The policy of the courts has consistently been to encourage litigants to come to terms rather than insist upon curial adjudication. Consensual outcomes reduce the level of disharmony in ( society and conserve the resources both of litigants themselves and the community which funds the courts. The court should not discourage settlement by making solicitors liable in (i damages to a client who was adequately advised about a compromise but later regrets his bargain. 43 The plaintiff does not argue that the defendant was negligent if he gave the advice he asserts. The plaintiffs case is that the advice given was very different. Quite rightly, it is not submitted that a solicitor, asked to give advice about the offer made by Carter Newell in the ( circumstances as I have described them, should have done more than the defendant did. 44 This conclusion is enough to dispose of the action but I will deal briefly with the extent of the plaintiff sloss. 45 The assessment of damages must proceed on the assumption that the plaintiff was advised against accepting the offer and that he acted on the advice. There is some slight evidence that he would have done so. The exercise is artificial because it predicates the defendant would have given the advice that I have found he gave, and that the plaintiff would have acted, hypothetically, differently from the manner in which he in fact acted. The assessment also assumes that the action would have proceeded to trial in the first quarter of -- 20 of 27 -- 20 1997 despite the presence of family and economic pressures together forming an inducement for the plaintiff to compromise the action as soon as he reasonably could. The parties are agreed that the action could have been tried at the beginning of 1997. Presumably the concession is that a trial could have been had in the District Court, the maximum monetary jurisdiction of which was $250,000.00. Had the plaintiff, or his solicitor, thought the claim might yield an award in excess of that amount it would have been necessary to transfer the action to the Supreme Court which may have delayed the trial for some months. Whether the plaintiff would have agreed to that course with its attendant delay is a matter of conjecture. He may well have preferred to settle for a figure somewhere near the limit of the District Court's jurisdiction. C) 46 There is another difficulty. There is considerable divergence between the medical specialists as to the true severity of the plaintiff's injury and the extent to which it has disabled him from working and from enjoying life. At one extreme it is put that there is very little wrong with the plaintiff who is deliberately misstating his condition to inflate the assessment of damages. Other doctors think the plaintiffhas severe chronic pain syndrome which has () rendered him wretched and permanently unemployable. These difficulties make the derivation of an assessment of damages pure guesswork. I will C) assess damages on the best view for the plaintiff and then discount the amount by a factor of fifty per cent, a figure which is a little higher than the one suggested by counsel for the plaintiff. The discount will take account of the chances: (a) that the plaintiff might have been viewed unfavourably by the Court; (b) that the plaintiff was to some degree contributorily negligent; or (c) that the claim may have settled for less than its true value. -- 21 of 27 -- 21 47 In assessing the value of the claim which was lost by the (assurned) negligence of the defendant, the Court is not limited to the evidence actually obtained as at the date of loss, but can have regard to the evidence that, foreseeably, would have been available when the matter notionally came on for trial: see Nikolaou v. Papasavas Phillips & Co (1989) 166 CLR 394 at 404. 48 In a report dated 29 March, 1994 Dr Nutting, orthopaedic surgeon, recorded the plaintiff s complaints as low back pain radiating bilaterally into his loins and down his left / leg. Sneezing and coughing accentuated back pain and sitting caused sharp discomfort. I l Examination revealed that the plaintiff was tender at the lurnbo-sacral junction with some pain ( on hyperextension. There was no muscle spasm and the plaintiff could raise both legs to ninety degrees. There was no neurological deficit. Dr Nutting thought that it was "early days in his pathological process" and that the plaintiff should undergo a course of therapy to strengthen the appropriate muscles. 49 Dr Nutting reported again, on 12 April, 1994 to the Workers' Compensation Board ( that the plaintiff complained that the simplest of exercises designed to strengthen his back caused pain. The doctor was quite surprised that the plaintiff did not improve and advised that he should persevere with his therapy. On 23 June, 1994 Dr Nutting reported that he had "no suggestion as to why his symptoms persist at the level that he reports at this stage". 50 On 22 July, 1994 Dr Boys, orthopaedic surgeon, reported to the Workers' Compensation Board that the plaintiff continued to complain of considerable low back pain and left sciatic discomfort. The pain was aggravated by prolonged sitting or standing. He could not bend or lift. He walked slowly and experienced discomfort standing up from a chair. Spinal movements were restricted. He thought the plaintiff had suffered a disc protrusion at the level L5-_S 1. Dr Boys thought the plaintiff could not return to work as a -- 22 of 27 -- , . 22 storeman and that his position was stable. He assessed disability at ten per cent of bodily function. Dr Boys again examined the plaintiff and submitted a report on 11 August, 1995. In it he noted that the plaintiff manifested an increased level of symptoms. He complained of constant discomfort in his lower lumbar spine extending to the buttocks with intermittent discomfort extending to the left calf. His functional capacities had deteriorated. The length oftime for which he could sit or stand without discomfort had decreased. Dr Boys diagnosed: "Persistent mechanical low back pain, L5-S 1 intervertebral disc derangement, magnified illness behaviour ... The current levels of symptom reporting are disproportionate to the orthopaedic condition evident. I do not believe that this man's back condition would preclude return to full time or part time appropriate employment ... I believe that Mr Dew would be fit for light, unskilled or light semi-skilled employment ... he will experience sporadic mechanical low back pain reflecting instability of the lumbo-sacral disc with those occupations requiring repetitive bending or lifting activities. I believe that some exaggeration of symptoms exists ... " 51 Another orthopaedic surgeon, Dr Day, examinated the plaintiff on two occasions and reported on 4 April, 1997 and 10 July, 1998. In his second report Dr Day expressed the opinion that the plaintiff had slowly accelerating degenerative changes in his lower lumbar spine as a result of his injury. Surgery was not recommended. He thought the plaintiff could not work as a storeman or heavy labourer but may be capable of lighter work. He assessed the plaintiff as having a permanent partial disability equalling fifteen per cent of entire body function. 52 Dr Morris, who initially examined the plaintiff at the request of Carter Newell in September, 1995, thought the plaintiff had ruptured his L5-S1 disc and was severely incapacitated. He had virtually no movement in his spine and was not fit for any work. The disability was assessed at twenty-five per cent oftotal body function. In July 1998, Dr Morris expressed a revised opinion. He thought the plaintiff had a disability of about fifteen per cent -- 23 of 27 -- , ( ( ) 53 23 loss of function. The earlier, higher, estimate was based upon the degree of muscle spasm present on the occasion when Dr Morris first examined the plaintiff. I should interpolate here that the defendant gave evidence, which the plaintiff denied, that he had said to the defendant after his claim settled that he could induce muscle spasm before a medical examination by carrying bricks in a wheelbarrow. Dr Morris noted that no other doctor who examined the plaintiff had noticed such a degree of spasm as he had seen. For that reason he revised his estimate of disability downwards. Dr Downes, another orthopaedic surgeon, also examined the plaintiff. His opinion can be summarised in his own words from his report of 10 July, 1997: " ... there is very little wrong with this man and the presentation today is one of extreme exaggeration." The plaintiff argues that Dr Downes' evidence would not have been known to the defendant by January 1997. 54 Dr Mulholland, psychiatrist, thought the plaintiff had a chronic pain disorder secondary to an L5-S 1 disc injury and had developed a major depressive episode. The plaintiff had become dependent upon drugs prescribed for his ongoing pain and was taking an excessive amount of strong analgesics and relaxants. As well he was drinking too much and smoking cannabis. Dr Mulholland thought the plaintiff was unable to work due to a combination of his chronic pain disorder and depression. Nor was he fit to undergo vocational retraining. Dr Mulholland thought the plaintiffs condition was permanent. 55 The defendant argued that Dr Mulholland's opinions should be disregarded because the plaintiff had not complained of any psychiatric symptom to the defendant and no such symptom had occurred by 7 December, 1995. However, the plaintiff first sought treatment for this aspect of his condition in December 1996, shortly before the notional trial would have -- 24 of 27 -- · , 24 occurred. On the postulation that the plaintiff continued his action to trial his psychiatric symptoms would have been noted before damages were assessed. Of course, a late amendment to claim such an injury would have led to the adjournment of the trial, an adverse costs order and further delay. It is impossible to know what choice the plaintiff would have made: whether to forego mention of his depression to obtain an early verdict or whether he would have suffered the consequences of raising the matter late in order to obtain the chance of a higher verdict. I will proceed on the basis that Dr Mulholland's evidence is ofthe type that would have been available at trial but apply to it the discount factor already mentioned to allow for the chance that it would not have been utilised. 56 Mrs Coles, an occupational therapist, reported that the plaintiff was and would remain unemployable. His injury had had a substantial impact on virtually every aspect of his - lifestyle. He was depressed and lacked self-confidence. He needed assistance to perform routine domestic activities. 57 The plaintiff himself gave an account of persistent pain, discomfort and disability. He appeared depressed during his time in the witness box. He was educated to Grade 10. His employment record, which is good, is of working in labouring activities. His enjoyment of life has been all but destroyed. 58 The difficulties of an assessment are obvious. The range of possible outcomes is great. I propose to ignore Dr Downes' opinion and, with two exceptions, adopt the figures advanced by counsel for the plaintiff in the notional assessment of damages, but then discount them by the percentage I have indicated. The assessment proceeds on the basis that the plaintiff has a moderate disability which has caused ongoing pain and impaired function and which will preclude the plaintiff from engaging in work of the type he used to perform. It also accepts ----_.. --------- ~I , l) ( ) -- 25 of 27 -- 25 that the plaintiff is depressed as a result of his physical disability and is not a candidate for retraining until the depression is overcome. Once the notional litigation was out of the way the plaintiff would have had no motivation to remain disabled but would have had an incentive to make something of his life. The figure advanced on behalf of the plaintiff for future economic loss predicates he will never work again. I think this is too pessimistic and that the plaintiff would have been found to have some residual earning capacity once he recovered from his chronic pain and depression. I would assess this component at $250,000.00. The other alteration I would make is to future care for which I allow $10,000.00 on the basis that some recovery in the plaintiffs capacity for self-care would ( follow the conclusion of litigation. The assessment would thus be: Pain, suffering and loss of amenities $ 50,000.00 Illterest at 2% for 2 years, on 1/3 $ 660.00 Past economic loss $ 39,239.40 Calculated at $384.70 net per week over 102 weeks Interest on past economic loss $ 4,708.73 ( Loss of past superannuation benefits $ 4,463.93 " Interest on past superannuation $ 535.67 Future economic loss $250,000.00 Loss of future superannuation benefits $ 27,191.00 Past Griffiths v. Kerkemeyer $ 4,000.00 Interest on Griffiths v. Kerkemeyer $ 480.00 Special damages $ 4,000.00 Interest on special damages $ 480.00 Foxv. Wood $ 2,753.50 -- 26 of 27 -- Future Griffiths v. Kerkemeyer Sub-Total Less refund to W.C.B.Q. Total 26 $ 10,000.00 $398,512.23 $ 22,411.00 $376,101.23 This figure should be reduced by fifty per cent giving a notional value to the lost claim of $188,050.00. The plaintiff in fact received $115,000.00. The measure ofloss is therefore $73,050.00. 59 For the reasons earlier given there will be judgment for the defendant against the plaintiff. I order the plaintiff to pay the defendant's taxed costs of the action. . r. () ('. -- 27 of 27 --