CULLEN v SEMA [1998] NSWCA 65

CULLEN v SEMA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, POWELL and STEIN JJA 11 June 1998, 4 November 1998

[1998] NSWCA 65

PROFESSIONAL NEGLIGENCE — SOLICITOR — COMMENCEMENT OF COMMON LAW PROCEEDINGS EXTINGUISHED RIGHT TO DAMAGES AT WORKERS COMPENSATION — WHETHER SUFFICIENT EVIDENCE TO MAKE ASSESSMENT OF VALUE OF LOSS — TRIAL JUDGE ENTITLED TO MAKE AN ASSESSMENT OF LIKELY DAMAGES WITHOUT EXPERT EVIDENCE

In the District Court the plaintiff (respondent) brought an action against the defendant (a solicitor who acted for him in a claim for damages for injuries) for damages for professional negligence. On the advice of the defendant (appellant) the plaintiff commenced common law proceedings before his right to workers compensation was determined, thereby precluding him from obtaining general damages at common law and extinguishing his right to obtain lump sum payments under s66 and s67 of the Workers Compensation Act 1987. The trial judge found that the solicitor had been negligent and awarded the plaintiff damages in the sum of $46,379. The defendant appealed. The respondent filed a cross-appeal arguing that the award of damages should have been greater.

The issues on appeal fall into 2 categories:

1. Whether there was sufficient material before the trial judge on which to base the assessment of the value of the loss suffered by the plaintiff,

2. Whether the methods used by the trial judge to assess the value of the lump sums that the plaintiff would have obtained at common law and at workers compensation were inconsistent.

Held on appeal:

1. The plaintiff was not required to show that the sum of the likely s66 and s67 amounts was greater than the settlement figure.

2. There was ample evidence from the plaintiff, including expert medical opinion, of the facts concerning his injuries and their effects on him. These were the primary materials a worker would need to put before the Compensation Court. The judge did not require expert evidence about the likely figure the Compensation Court would have awarded as a pre-requisite to forming an opinion. Williams v Bodewes did not establish any general rule about the necessity of expert evidence for the making of such an assessment by a judge in another jurisdiction.