WILLIAMS and ORS t/as HARRIS WHEELER v BODEWES [1997] NSWCA 346

WILLIAMS and ORS t/as HARRIS WHEELER v BODEWES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COMMON LAW DIVISION

MASON P, COLE and STEIN JJA 15 September 1997, 1 October 1997 [1997] NSWCA 346

Professional Negligence — solicitors — industrial negligence claim statute barred — quantum of damage — trial judge entitled in the circumstances to make an assessment of likely damages without expert evidence

The respondent fell down a staircase at work but due to his solicitor's negligence his claim against his employer for breach of a statutory or common law duty to fence the staircase was statute-barred. The respondent sued his solicitor for negligence. At the trial, the judge found that the respondent's claim against the employer could have been made out assessed the respondent's damages without requiring expert evidence and made a deduction for workers' compensation payments received by the respondent.

On appeal:

The appellant contended that the trial judge was not entitled to:

(1) find a breach of the employer's duty to the respondent; (2) assess damages lost by the respondent without expert evidence; or (3) deduct the value of the respondent's redemption of his workers' compensation entitlements from the verdict.

Held:

The trial judge was, in the circumstances, entitled to find that the facts amounting to a breach of the employer's duty to the respondent were made out; assess the respondent's loss by determining his damages without expert evidence; and deduct workers' compensation entitlements from his total damages.

Scott v Echegaray 1991 ATR 81-120

Nicholaou v Papasavas, Phillips & Co (1988-1989) 166 CLR 394 Tutunkoff v Thiele (1975) 11 SASR

Johnson v Perez(1988) 166 CLR 351 considered.

Mason P I agree with Cole JA and Stein JA.

Cole JA The material facts are set out in the judgment of Stein JA.