MURPHY v MILLER [1998] NSWCA 150

MURPHY v MILLER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and BEAZLEY JJA 29 May 1998, 16 October 1998

[1998] NSWCA 150

SOLICITOR'S NEGLIGENCE — CLIENT'S ACTION NOT COMMENCED IN TIME

RESPONDENT INJURED IN RESTAURANT FIRE — ADVISED OF POSSIBLE ACTION IN COMMON LAW AGAINST RESTAURANT OWNERS — CLAIM NOT COMMENCED IN TIME — trial judge found appellant solicitor, after accepting instructions to proceed with common law claim, negligently allowed the limitation period to expire — when awarding damages, a "broad brush approach " was applied to establish the prospect of success and recovery of moneys in the civil action.

On appeal the appellant submitted that:

1. the appellant did not breach his duty to the respondent;

2. alternatively, if the appellant was in breach, the respondent did not suffer damage because she had not established she had any reasonable chance of success in the Common Law action or any reasonable chance of recovering any moneys from the prospective defendants even if she did obtain judgment;

3. the trial judge's allowance for economic loss should have been less.

On the cross-appeal the cross appellant/respondent submitted:

1. in assessing damages the trial judge should have:

a) awarded more for general damages; and, b) included a Griffiths v Kerkemeyer allowance;

2. the trial judge erred in not awarding indemnity costs.

Held:

1. on the evidence it was proper for the trial judge to find that the appellant was on a continuing retainer to conduct a common law action for the respondent and that he breached this duty by not at least filing a statement of claim to preserve the respondent's position;

2. with the evidence indicating that there was an arguable case for occupiers' negligence and that another fire victim had succeeded in a civil action for damages, the respondent's chances of obtaining judgment would have been good if proceedings commenced in due time;