New South Wales District Court CITATION: Hariss v Konstantinidis trading as Konstan Lawyers [2007] NSWDC 124 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 30 April 2007, 1 May 2007, 2 May 2007, 3 May 2007 JUDGMENT DATE: 21 June 2007 JURISDICTION: Civil JUDGMENT OF: Hungerford ADCJ at 1 DECISION: Verdict for the defendant.; Plaintiff to pay the defendant's costs of the action. CATCHWORDS: LEGAL PRACTITIONERS - whether solicitor negligent - client injured at work on 11 November 1995 - liability of solicitor in failing to advise common law rights and election provisions under Workers Compensation Act 1987 - expiration of limitation period on 12 November 1998 - workers compensation benefits commuted on 8 April 1999 - loss of both common law damages and future workers compensation benefits - whether client able to make an informed decision on advice given - solicitor not negligent. LEGISLATION CITED: Workers Compensation Act 1987, ss66, 67, 68(1), 68A, 151A(2), 151A(3), 151D(2), 151G, 151H Evidence Act 1995, ss76, 79 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 Cheng Peng v PM Industries Pty Ltd (unreported, NSWSC, 31 October 1996) Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Dunn v Firth [2003] NSWCA 280 Maricair v Principal & Councillors of Wesley College (2000) 19 NSWCCR 368 CASES CITED: Midland Trust Bank Co Ltd v Hett Stubbs & Kemp [1979] Ch 384 Nicol v Allyacht Spars Pty Limited (1987) 163 CLR 611 North Broken Hill Ltd v Vockins (1999) 19 NSWCCR 193 O'Brien v Gillespie (1997) 41 NSWLR 549 O'Connor v Commissioner for Government Transport (1959) 100 CLR 225 Rabelais Pty Ltd v Cameron (unreported, NSWSC, 8 February 1993) Sungravure Pty Ltd v Meani (1964) 110 CLR 24 PARTIES: Adi Hariss - plaintiff Simon Konstantinidis trading as Konstan Lawyers - defendant FILE NUMBER(S): Matter No. 1274 of 2005 COUNSEL: Mr K Andrews for the plaintiff Mr G Craddock for the defendant SOLICITORS: Keddies for the plaintiff Henry Davis York for the defendant JUDGMENT 1 The loss of an opportunity to take common law proceedings by an employee injured at the workplace on 11 November 1995 for the alleged negligence of the employer gave rise to this action against the employee's former solicitor in failing to advise and properly investigate the circumstances so that the employee could make an informed decision in pursuing appropriate entitlements. As it happened, an application was made for compensation under the Workers Compensation Act 1987 but, as it was claimed, before any relevant advice was given the limitation period within which any common law damages claim was to be brought expired. In addition, the settlement of the employee's workers compensation claim by a lump sum commutation of benefits resulted in the employee having no further rights to relief under the Workers Compensation Act or any entitlement to recover modified damages at common law in respect of the injury. Further remedies against the employer were, therefore, unavailable to the employee to recover what was said to be the true measure of loss from the workplace injury by reason of the solicitor's negligent conduct. The present action against the solicitor sought to recoup that loss. The parties 2 The plaintiff, Adi Hariss, was born on 1 January 1964 in the town of Ciawi in West Java. He never attended school and at the age of 14 years moved to Jakarta in Indonesia and supported himself by selling newspapers; he lived on the streets. After meeting in Jakarta a person identified as "David", who was a diamond collector and businessman in antiques, he came with David to Australia and spent two days with him in Melbourne before they both travelled to Nimbin in New South Wales. Eventually, David left Nimbin but gave the plaintiff $US300,000 for living expenses which, as the plaintiff said, was "more than enough". The plaintiff stayed in Nimbin for a time and then moved to live with an aboriginal community in Queensland for four or five years before moving to Sydney. 3 In February 1985, the plaintiff obtained employment with W J Brookvale as an operator moulding fibreglass until November 1987. During that period he came under the notice of the Department of Immigration and Ethnic Affairs when he was arrested in March 1985 for using offensive language and was unable to identify himself because his travel documents were said to have been stolen – the Department took steps to deport the plaintiff but released him into the community. He then was employed as a sheet metal worker at a factory at Dee Why West from November 1987 to December 1989. From August 1990 to November 1991 he was employed as a moulding operator at Mortdale having, despite initial refusals and bridging visas, been granted by the Department of Immigration a visa to engage in employment from October 1990. However, he was unemployed between March 1991 and August 1994 and received social security payments. He resided at various places in Parramatta, Marrickville and Manly and from time-to-time lived with a friend, Christine Milligan. 4 While unemployed, the plaintiff said he was assaulted on 23 July 1992 and sustained a laceration to his lower lip and a broken jaw – he received treatment at Royal Prince Alfred Hospital. On 12 January 1993 he was admitted again to hospital suffering from stomach pain. 5 On 28 August 1995 the plaintiff obtained temporary employment with the Central Sydney Area Health Service working as a technical aide at the Concord Repatriation General Hospital on a full-time basis. His duties covered the sterilisation of instruments, the lifting of equipment no more than five kilograms in weight and placing cotton bags of dirty laundry weighing up to 30 kilograms onto a trolley. It was here that the subject November 1995 injury occurred to the plaintiff's back. 6 On 4 March 1987 while in the Villawood Detention Centre, after being arrested at Manly on 24 December 1986, the plaintiff wrote to the Department of Immigration and Ethnic Affairs seeking release to enable him to engage in useful employment. The letter was written in English by the plaintiff in a neat and clear style. It included comments such as – "My health is getting worse day by day. I am an x-drug addict"; "since my detention, especially in the last few days I have gone from bad to worse regarding my health"; "I am under immense health and mental pressure"; and "I will find a decent job and nurse myself back to health". In response to questions concerning his then state of health, the plaintiff gave the following somewhat contradictory evidence: Q. And just past the middle of the page you wrote, on 4 March 1987, "My health is getting worse day by day"? A. Mm. Q. "I am an ex drug addict"? A. Yes. Q. And that was true? A. Yes after I'm sick because I can't afford to pay doctor $140, if I have to go to get the morphine, I have to pay $140 to the doctor, cash and then $140, I have to wait again at the claim to Medicare and might be back about $80 or $85 so cost me more than $50 and so it's better I go by it on the street, only $20 or $10 each, probably. Q. And you're there talking about heroin are you? A. Yes heroin or morphine, what I need for my back. Q. Is that why you wrote on 4 March 1987-- A. Yes. Q. --in this letter-- A. Yes. Q. --to immigration-- A. Yes. That time I was addicted. Q. –"I am an ex drug addict?" A. Yes. Q. Was that because you needed to use heroin because of the pain in your back? A. No, no not that one. Not that one. Not this one. This one I been experience in this country you ..(not transcribable).. to learn to look after the drug addict. How to use properly. How to not OD. How to ..(not transcribable).. we have to give understanding to the people no understand. So keep away from the accident like anything. … Q. Did you write that because prior to writing that letter you had been addicted to heroin? A. Not addicted very well. I can like now stop like this. Only the Australian people they don't know how to stop. So we have to give advice if they want to stop. That's what I'm doing now. Helping people. 7 The plaintiff when cross-examined about his use of heroin or morphine and his criminal history with periods in gaol resisted, somewhat vehemently, many questions, as he said, "It's nothing to do with this case"; "I don't have to answer you"; and "that is something wrong, it's not my name". Even so, a Probation and Parole Service Pre-sentence Report of 5 July 2001 referred to his drug use for the past 15 years and several convictions for shoplifting and stealing; he had committed a number of drug offences. Again, he became visibly angry and forceful when tested in cross-examination about the assault on 23 July 1992 and treatment at Royal Prince Alfred Hospital for a laceration to his lower lip as referred to in his examination-in-chief. Although no mention of a back injury was made, the plaintiff heatedly responded about that incident in this way: A. I don't know, you can check up the record in there, but I am never ever have back pain or ..(not transcribable).. very fit person, never sick, only after I am work at the Concord Hospital that I got a back problem. Never ever in Australia or anywhere country, I have back pain. 8 The plaintiff was adamant he never had back pain before the November 1995 incident at Concord Hospital. However, the admission summary sheet of Royal Prince Alfred Hospital on 23 July 1992 noted a principal diagnosis of "Assault – laceration of lower lip, low back pain, abrasions"; the radiological report of 24 July 1992 by Dr Kuan of an x-ray of the plaintiff's lumbosacral spine and sacroiliac joints noted "there is a scoliosis convex to the left. No fracture detected." The plaintiff maintained when asked whether he had the x-ray – "I don't know … I don't think so, and this one the spell is wrong name, and not my name this one …". The hospital records showed the plaintiff's surname as "Harris" and not "Hariss" but the date of birth and address were correct. Despite the denial and description of the records by the plaintiff as "rubbish", I think they related to the plaintiff. 9 On 12 January 1993, the plaintiff again attended Royal Prince Alfred Hospital and complained, as he said, of "pain". The hospital's outpatient notes recorded on examination – "Young man in pain … still in pain on movement, moves legs normally, pain felt in left sciatic region. Muscular pain most likely …" The plaintiff, having in mind his evidence-in-chief about going to the hospital on 12 January 1993 with stomach pain, nevertheless said "I don't know, I don't remember". 10 After agreeing earlier to commencing work at Concord Hospital in August 1995, the plaintiff, in cross-examination responded "I don't remember the time sir, I repeat again, I don't remember the past time my memory is very bad." When asked how long it was after starting work at Concord Hospital pain was first felt in his back, he said "I don't remember, I don't know … No idea." 11 Before leaving the position of the plaintiff before the injury at Concord Hospital on 11 November 1995, it is appropriate to refer to his immigration status in Australia. There was very little evidence of this, other than from the plaintiff himself as to periods of detention and bridging visas to enable temporary residence and permission to work. In the Probation and Parole Service Pre-sentence Report of 5 July 2001 it was commented that the plaintiff "has been classified as an 'unlawful' person since February 2001 but is eligible for a Bridging Visa". The present situation was not readily discernible from the evidence in any definitive way, but presumably his status and ability to engage in employment were settled on 12 September 2001 when it was asserted the plaintiff was granted a permanent resident visa. Of some note, however, is that in his employment application to work at Concord Hospital dated 28 August 1995 the plaintiff stated he was an Australian citizen – that to the plaintiff's knowledge could not have been true. 12 The plaintiff gave his evidence in English and no difficulties of understanding in that respect arose. Indeed, he said his ability to read and write English was better than in the Indonesian language where he had some difficulties and did not really understand it. He also spoke some Arabic and Malay. 13 The defendant, Simon Konstantinidis trading as Konstan Lawyers, was the firm consulted by the plaintiff on 6 May 1997 regarding the injuries he sustained at Concord Hospital on 11 November 1995. The defendant allocated the handling of the matter to Anita Vayanos, who was employed as a paralegal. Ms Vayanos had previously worked as a law clerk for Egisto & Romano Solicitors in Five Dock from 1994 and then as a paralegal for TS Menounos & Associates in Hurstville from 23 August 1995 to 6 June 1996. She commenced employment with the defendant in Marrickville on 11 June 1996; after completing a Diploma in Law (Solicitors Admissions Board) in 1996, she was admitted as a Solicitor of the Supreme Court of New South Wales on 28 August 1998. During employment with the defendant until 20 April 2000, she practised in conveyancing, family law and high volume workers compensation and personal injury litigation. She then was an employed solicitor with Demestre & Co from 2 May 2000 until 30 October 2005 in undertaking high volume workers compensation and personal injury litigation and family law. Since joining her present firm, Gretch Partners Solicitors, in November 2005 she practises primarily in family law litigation as a result of a reduction in the availability of personal injury matters. 14 Ms Vayanos was first contacted by the defendant's solicitors, Henry Davis York, to provide details in relation to the present action in late-2005 or early 2006 when she had discussions and access to the file concerning the plaintiff. She was requested to provide an affidavit as to her involvement in the week before this trial commenced on 30 April 2007 and an affidavit was so sworn on 29 April 2007. 15 Ready agreement was given by Ms Vayanos that at the first consultation with a client such as the plaintiff the purpose was to determine whether there was a cause of action which required a consideration of both liability and quantum, although that had to be qualified by the need for a process to obtain the details first and then the medical evidence. In the plaintiff's case, Ms Vayanos said she followed her usual practice. However, she did concede that her file note of the first consultation with him on 6 May 1997 was "brief" in that it simply referred to the employer as Concord Hospital; nature and conditions of the employment in lifting linen and contamination containers when felt pain in the back; probable cause of pain being bending, lifting and twisting; pain to left side of back extending to left leg and foot; physiotherapist being seen; and not currently being paid weekly benefits. She agreed the term "nature and conditions of employment" was a term commonly used in workers compensation matters. Also, on the defendant's "New File Request" form the matter details were noted as "Workers Comp – Concord Hospital" with the plaintiff being required to pay disbursements direct for workers compensation. 16 The affidavit of Ms Vayanos was quite detailed and extensive; it stated events by reference to various documents in the defendant's file which was admitted into evidence. Not insignificantly, Ms Vayanos agreed there was nowhere in the file the conversations between her and the plaintiff as set out in the affidavit and that those conversations were her best endeavour to recollect what might have been said. In response to a challenge to her recollection after so many years, particularly in light of the hundreds of files handled, Ms Vayanos described the plaintiff as a "character" who was unique, difficult to forget and who attended the office unannounced on a regular basis. For instance, she said the plaintiff "sometimes … would make very clear to me that he had had a shower that particular week so he could attend." She added: There are some files that you do have very good recollection and if you do hundreds of matters that most of them will wash over you but when you're confronted with your file in your handwriting that you had from commencement and a character that is a client is easier to recall what happened in a matter than if it was the run of the mill case where – that you only saw them a couple of times during the course of acting for them. ... What triggered my memory were the events – different things on the file and to the best of my recollection I have pieced what dates I believe that these conversations occurred. 17 The plaintiff presented with an unkempt appearance and who was repeatedly intent, as he had been in the interviews with Ms Vayanos and in responding to questions about how he was injured at work, in having his employer charged with negligence and the manager sent to gaol for contamination from a claimed faulty and unsafe sterilisation process. He sat uneasily during his evidence and showed some indignation when asked how he was inured and his resultant condition. One may readily describe him as a "character" as Ms Vayanos did, certainly "colourful" in his manner, and, I think, someone not easy to forget after being seen on a regular basis. Even so, it is appropriate to temper with caution after the lapse of a few years the recorded conversations by Ms Vayanos of what the plaintiff told her. However, the thrust and effect of what the plaintiff was said to have told her were maintained in her evidence. Incident causing personal injury to the plaintiff 18 The plaintiff described the nature of the duties performed as a technical aide at Concord Hospital after commencing employment on 28 August 1995. Training was received in sterilisation procedures but in no other aspects of the work. He tended to be vague and disjointed in doing so, he was not a good historian, but it seemed that one of his regular jobs was to move dirty laundry in cotton bags by lifting the bags about one metre from the ground onto a trolley and pushing the loaded trolley about 200 metres for the laundry to be sterilised. Each bag was said to have weighed more than 30 kilograms and on an average day something like 28 bags were lifted. He spoke to the manager during October 1995 and told him the bags were too heavy to lift but nothing was done. Then, in November 1995, it was later clarified as 11 November, as the plaintiff was lifting a bag he said, "I couldn't move … My back like couldn't move when after lifting my back couldn't move and pain and in the morning I go to the doctor". The doctor was a general practitioner, Dr M Piliotis. 19 Although the plaintiff said he attended Dr Piliotis on the same day as the incident and had an x-ray of his back, Dr Piliotis in a report dated 9 September 1997 to the defendant referred to the first attendance as being on 1 December 1995 after he went to Royal Prince Alfred Hospital by ambulance on 27 November 1995 when the on-going low back pain became much worse. Dr Piliotis arranged for an x-ray of the lumbo sacral spine on 1 December 1995 which showed "a mild tilt of the spine to the right compatible with muscle spasm … marginal osteophytes of the lower three vertebra but no significant bone abnormalities are seen and the disc spaces, facet joints and sacroiliac joints appear normal". However, from a CT scan on 7 December 1995 of the lumbar spine ordered by Dr Piliotis he reported it showed "facet joint degenerative change at 3/4" and "a disc prolapse at L5/S1 with indentation of the left L5 and left S1 nerve root." A diagnosis was made of "an L5/S1 disc prolapse with left L5 and S1 nerve root entrapment" as a result of the lifting injury at work in November 1995. Dr Piliotis reviewed the plaintiff on 8 December 1995 and gave him a certificate for light duties. That position was confirmed by Dr Piliotis on reviewing the plaintiff on 12 December 1995 as he was managing with light duties. 20 The plaintiff said he was away from work for some days, presumably returning on light duties about 9 December 1995, but after a couple of days he said the manager at work put him back on his pre-injury heavy lifting duties which he performed until May 1997. During that period the plaintiff said he had back pain "all the time" and it started to get "worse" with pain radiating down his left leg. 21 In early-May 1997, the plaintiff said with his back in doing the heavy lifting at Concord Hospital that "I collapse after that, couldn't work any more". He has not returned to work at the hospital nor in any other employment. The plaintiff agreed in examination-in-chief that Central Sydney Area Health Service terminated his employment at Concord Hospital but from a Termination of Employment Advice it appears in fact he terminated the employment effective as of 26 June 1998 and that was confirmed in a Centrelink Employment Separation Certificate dated 29 June 1998 showing the plaintiff voluntarily resigned on 26 June 1998. 22 Dr Piliotis reported that the plaintiff on 8 May 1997 experienced a sudden exacerbation of his back pain and on seeing him on 16 May 1997 noted "obvious distress due to the severity of his pain"; Dr Piliotis referred him to the Emergency Department at Royal Prince Alfred Hospital. When reviewed at the hospital, medication was prescribed and he was discharged for continued bed rest at home. After a further review by Dr Piliotis, the plaintiff had another x-ray which revealed spondylitic degeneration and narrowing of the spinal canal; physiotherapy was arranged. Dr Piliotis certified the plaintiff as unfit for any form of work. 23 On review by Dr Piliotis on 24 July 1997, the plaintiff stated physiotherapy was not really helping his condition. The doctor reported: In particular he had felt on-going pain in the left lower back region with radiation down the posterior aspect of the left thigh and left leg with associated numbness. He had experienced considerable difficulties in sleeping and was attending physiotherapy twice weekly and taking Digesic tablets for the pain. The pain was felt to be exacerbated by coughing and sneezing. 24 Dr Piliotis referred the plaintiff to an orthopaedic surgeon, Dr John Bentivoglio, for assessment and, in particular, for consideration of decompressive spinal surgery. Dr Piliotis concluded that the plaintiff's long-term prognosis depended on the result of any such surgery but "he would certainly be unfit to return to any form of manual labour in the future involving significant lifting and bending." 25 After employment at Concord Hospital was terminated, the plaintiff lived at a hostel called Kendall Home. Then, although the dates and duration were not made clear, he came under notice of the police and was charged with a number of criminal offences involving the use of drugs for which he served imprisonment. Latter, he was released from Cessnock gaol during December 2002 and commenced a methadone programme to rid his heroin habit. 26 The plaintiff said his back problems have continued to the present time and he had pain in the back "all the time" as he had also in the left leg which prevented him from concentrating; he took Panadeine Forte and Valium on a daily basis and consulted his general practitioner, now either Dr Harry Huber or Dr Salim, once a fortnight. He ceased physiotherapy three years ago because it did not help. 27 Socially, the plaintiff said he was not involved and occupied his time by shopping and, at his doctor's suggestion, kept active by walking. Friends carried the shopping bags for him and sometimes did his clothes washing, ironing and cleaning of his one bedroom home unit which he said he could not do – the total time occupied in those tasks by friends was about one to one and a quarter hours per week. 28 The plaintiff was firm in the view that he had been unable to work since he left Concord Hospital because of his back problem but for which he would have continued that employment, which he enjoyed, and stayed in Australia where he had a "good future". As to the possibility of surgery, as suggested by Dr Bentivoglio to relieve the back problem, the plaintiff said he was told the success rate is only 40 per cent and he was not prepared to have the operation at that degree of risk for fear of ending up in a wheelchair. It is instructive, however, as to the plaintiff's attitude and approach to work to refer to a memorandum dated 26 February 1997 from his manager at Concord Hospital to the Human Resource Services Manager concerning several incidents at the workplace involving the plaintiff since he commenced in August 1995. The incidents related to attending for duty smelling of alcohol, smoking marijuana on duty, unauthorised absence from work, unmanageable and aggressive behaviour towards a supervisor, refusal to carry out an instruction by a supervisor and abusive and aggressive behaviour to supervisors and staff. The memorandum concluded: I have concerns with Mr Hariss continuing and deteriorating disruptive behaviour and insubordinate attitude. He is a difficult person to manage and has an aggressive manner and a very short temper which causes many staff to feel intimidated. He has been moved from certain sections where his performance has been the subject of concern and he has clashed with all supervisors at one stage or another in his brief employment with the department. 29 Significantly, it was recorded that on 25 February 1997 the plaintiff refused to continue work and requested medical advice because "he felt he was being overworked". However, when the supervisor attempted to discuss the situation with him he "erupted into the stream of abuse and aggression usually displayed in such discussions". The memorandum added: His manner was agitated, his demeanour aggressive and his language foul. He marched out of the room slamming doors as he usually does and shouting as he left only to return and commence the stream of abuse and aggression towards supervisors, staff and myself. The discussion culminated with Mr Hariss telling me to 'fuck off' whilst displaying an overtly aggressive stance. He departed from my office and slammed the door so hard I felt compelled to check it for damage, there was none fortunately. 30 The relevance for present purposes of those matters is the cogency of the plaintiff's assertion as to how he injured his back on 11 November 1995 by a claimed unsafe system of work over a period of some months and, more importantly, whether in fact the employer had failed to take reasonable steps for his safety in the workplace in the method of work adopted. One may, as I do, seriously doubt the plaintiff's narration of the events causing him injury at work, particularly when he shortly thereafter returned to full duties which he continued to do for about 18 months until May 1997 when he ceased work and sought compensation. Ms Vayanos, as will be seen, had some doubt about the ability in common law proceedings to establish negligence in the employer. The history of prior back pain in July 1992 and January 1993, despite the plaintiff's denial, seriously adds to the doubt and to his credibility. The doubt was compounded in cross-examination by the plaintiff's reliance on lack of memory concerning details of when he first felt pain in his back and his constant speaking over the cross-examiner's questions in a forceful and argumentative fashion when tested on this aspect. 31 In the result, I have formed the view that the plaintiff had, even if his evidence of the incident and nature of the work be accepted, barely an even chance in establishing negligence in Concord Hospital as his employer for an unsafe system of work. There may be no doubt, according to the medical evidence to which I will come, that the plaintiff has pathology in his back resulting in disability. But, how and when that occurred are far from comfortably established on the probabilities. The plaintiff's work behaviour, lifestyle, drug abuse, detention and immigration difficulties complicate any assessment. Medical opinion of plaintiff's condition 32 The plaintiff first consulted Dr Bentivoglio on referral by Dr Piliotis on 30 July 1997 when the symptoms in his back worsened dramatically in May 1997 after the incident at work in November 1995 when back pain was experienced. Dr Bentivoglio arranged for a CT scan which he said "shows that he has a discal abnormality at the L5/S1 level on the left side … accounting for his symptoms." The plaintiff was reviewed from time-to-time by Dr Bentivoglio who considered more aggressive lines of treatment than physiotherapy were required to lessen the continuing symptoms, which fluctuated in severity, of low back pain radiating down to the left leg and foot region. In a report to Dr Piliotis of 30 January 1998, Dr Bentivoglio noted the plaintiff was not anxious to have such more aggressive treatment and, in the absence of operative treatment to excise the L5/S1 disc which would not render him entirely asymptomatic, there was little that could be done to lessen the complaints. Dr Bentivoglio last saw the plaintiff on 24 April 1998 and, in a report to the defendant dated that day, said a history was obtained of "lifting an object at work around October 1995 when he experienced back pain … not had problems with his back prior to that". The opinion was then expressed: This gentleman would have developed an L5/S1 disc lesion as a result of the repeated bending he had to do at work. He still has evidence of ongoing nerve root irritation … will always need to avoid activities which are arduous in nature or which require him to do bending and twisting movements of his back … I would assess that this gentleman has a 20 per cent permanent impairment of his back and a 15 per cent permanent loss of efficient use of his left lower limb at or above the knee region (taking into consideration any loss he has below the level of the knee region) as a result of referred symptoms into his lower limbs. 33 In a report dated 9 September 1997 to the defendant, Dr Piliotis detailed a history of the plaintiff in November 1995 "lifting rubbish at work when he injured his lower back". After clinical examination and review of the radiological investigations, Dr Piliotis diagnosed an L5/S1 disc prolapse with L5 and S1 nerve root entrapment. He summarised the position and gave a prognosis as follows: In summary the abovenamed patient sustained an intervertebral disc prolapse at the L5/S1 level with irritation of the left L5 and S1 nerve roots as a result of a lifting injury sustained at work in November 1995. His presentation was consistent with the history provided by the patient. He had originally made gradual improvement with rest and physiotherapy and he had made a gradual return to full duties. Due to continuing heavy lifting and bending at work the patient sustained exacerbation of this condition to a marked degree and this has rendered him considerably disabled and incapacitated with respect to any form of employment. He does not appear to have made significant improvement with physiotherapy and I feel that it likely he will require some form of decompressive surgery in the future. I understand that this is also the view of Dr Bentivoglio … The patient's long-term prognosis will depend on the result of any such surgery. He would certainly be unfit to return to any form of manual labour in the future involving significant lifting and bending. 34 Dr Christine Harris, a consultant physician in occupational medicine, examined the plaintiff on 11 July 1997 for the then employer's workers compensation insurer. After noting "a very vague history of gradual onset of low back pain in November 1995 associated with heavy lifting at work", in a report of the same day she opined that the plaintiff "has certainly got degenerative changes in the lumbar and lumbo-sacral spine and as such symptoms may have been precipitated by the nature of the work which he was doing." Dr Harris considered the plaintiff not fit for his pre-injury employment and only for light duties without extensive bending, lifting and twisting. She concluded his condition was "due to underlying degenerative/constitutional changes in his spine but significant contribution due to the nature of his work cannot be excluded at this point". 35 An orthopaedic surgeon, Dr Frank Machart, examined the plaintiff on 23 July 1998 for the employer's workers compensation solicitors and reported on 25 July 1998. He opened with the comment that the plaintiff "was a poor historian … claimed inability to remember details of his condition or treatment … claimed he had a poor memory and could not remember what job he was doing prior to his taking a job at Concord Hospital as a technical aide in 1995. … eventually remember that he worked as a machine operator at some stage." Dr Machart thought the details that were provided made it appear that the back pain developed gradually as opposed to a single injury causing disability. After taking a history, making a clinical examination and viewing radiological evidence, Dr Machart gave an opinion of "mild to moderate degenerative changes in his lumbar spine … evidence of a small disc protrusion … presentation today not in keeping with the mild severity of his condition noted radiologically". It was then added: My assessment is that this gentleman has constitutional degenerative changes in his back. It is not clear, but it is possible, that a disc protrusion at the lumbo-sacral junction has occurred as a result of his activities in November 1995. Acceptance of this scenario is dependent on due consideration as to whether Mr Hariss is a true witness to his condition. There are discrepancies in my examination of Mr Hariss that cast a shadow of doubt as to whether this is the case. The small disc protrusion at L5/S1, in my opinion, could have given symptoms of temporary nature and gradual improvement would be expected with treatment, i.e. rest. There is no indication with this type of pathology that deterioration would have occurred without any further provoking or aggravating activity to the extent that Mr Hariss portrays. 36 Dr Machart considered the plaintiff not fit for heavy labouring work but fit for light work of a sedentary nature such as office work, deskwork, courier work, ticket collection, gatekeeping and light cleaning. No treatment, and specifically not surgery, was recommended. For the future, some degree of back pain of a non-severe nature may be expected. 37 Dr Richard Johnston, a surgeon, examined the plaintiff on 14 September 1998 for the workers compensation insurer and reported on 15 September 1998. A past medical history from the plaintiff of good health and with no lower back pain or lower back injury prior to 1995 was recorded. A social history of smoking 10 cigarettes a day and taking occasional alcohol was recorded also but with no mention of illicit drug use. Dr Johnston noted on examination that the plaintiff "walks and moves in a most bizarre gait … He has a walking stick but having watched him enter the waiting and consulting room his walking stick does not seem to contribute to weight bearing … without his walking stick he can stand independently on both feet, he can stand straight and walks normally but cautiously." 38 Dr Johnston accepted that the plaintiff did sustain a lower back injury in 1995 which was aggravated in 1997 at work. Mild to moderate degenerative changes were seen in the lumbar spine from the x-rays and CT scan with discal pathology at the L5/S1 level and L5 nerve root damage on the left side. He considered the employment at Concord Hospital was a substantial contributing factor to the plaintiff's condition. Fitness for employment was reduced and resultant partial incapacity with an inability to engage in repeated lower back flexion or lifting any weight in excess of 10 kilograms. The prognosis was poor. 39 Dr Johnston assessed the plaintiff as having a 15 per cent permanent impairment of the back compared to a most extreme case and a permanent loss of use of his left leg at or above the knee of between 5 and 10 per cent; previous asymptomatic degenerative disease was considered to contribute to 5 per cent of the total loss or impairment. Even so, and accepting the plaintiff had a genuine lower back problem, Dr Johnston thought "his presentation today suggests a significant level of exaggeration and embellishment". 40 The defendant had the plaintiff examined by Dr Alan Searle, a consultant orthopaedic surgeon, on 15 November 1997. Again, there was no history given of any symptoms or injury to the back prior to the November 1995 work injury or of any abuse of drugs. In his report of 27 November 1997, Dr Searle expressed this view: The lifting injury at work in November 1995 caused a prolapse of the L5-S1 disc and a bulge of the L4-5 disc. These disc lesions may have been predisposed by some degenerative change before the actual lifting injury. The degenerative changes which are apparent on his x-rays were caused by the general nature and conditions of his employment. These degenerative changes were also aggravated by the injury in November 1995. The symptoms and disability resulting from the aggravation of his lumbar spondylosis and the disc lesions are persistent and permanent, and together with the psychiatric complication they cause a severe degree of disability. He is permanently unfit for work which requires prolonged sitting or prolonged standing, lifting or repeated bending, or regularly travelling moderate distances. With regard to prognosis there will be a gradual increase in the symptoms and disability with the passage of time as the degenerative changes progress. Treatment will continue to be conservative, as at present, and current treatment costs will continue indefinitely. However he is at risk of a further major protrusion of either disc, possibly with minimal stress on the lumbar spine. If this should occur he may need surgical treatment in the form of a disc excision. This would cost $10,400.00 in today's terms including hospital, surgical and anaesthetic fees. 41 Dr Searle considered the November 1995 work injury resulted in a 30 per cent permanent impairment of the back and 10 per cent permanent loss of efficient use of the left leg at or above the knee to include the whole limb. 42 Dr Searle reviewed the plaintiff on 24 February 1999 for the defendant and in a report of 2 March 1999 said his opinion was unchanged. He added that the plaintiff was "severely disabled and is probably unemployable"; he had a 40 per cent possibility for disc excision in the future. Dr Searle added that degenerative changes accounted for no more than one per cent of the plaintiff's impairment. 43 On 22 January 1998, Dr James Bodel, an orthopaedic surgeon, saw the plaintiff at the request of the workers compensation insurer. In a report dated 2 February 1998, he found the plaintiff was left with a 15 per cent overall permanent impairment of function in the back; he said one-third was due to constitutional factors unrelated to work and the remaining two-thirds due to the specific injury that occurred at work in November 1995. Also, Dr Bodel found a 5 per cent overall permanent loss of efficient use of the left leg at or above the knee, incorporating an assessment for permanent loss of efficient use of the left leg below the knee including the foot; he considered it to be a work-related injury. 44 In a fuller report on the same day, Dr Bodel set out the history taken, clinical examination and radiological investigations. He considered the disc rupture at L5/S1 to have resulted from the November 1995 work incident as aggravated by the nature and work conditions subsequently. He thought the plaintiff's complaints to be quite genuine so that he was not fit to return to the pre-injury work. Although surgery was not then indicated, it may be considered in the future; in the meantime, an exercise programme was encouraged. 45 Dr Bodel examined the plaintiff again on 24 June 2005 for the plaintiff's present solicitors in this professional negligence claim. Effectively, the earlier expressed opinion was repeated other than adding a guarded prognosis against a return to any form of paid employment because of a lack of transferable skills. Also, domestic assistance was estimated at about four hours per week for household maintenance and cleaning. 46 The absence from the medical reports of any history given by the plaintiff of the back pain experienced in July 1992 and January 1993 must be of concern in determining a causal link between the nature of the work and the plaintiff's condition, as were the references in the reports to degenerative change and constitutional factors affecting his back. Dr Bodel gave oral evidence and, to some extent, those matters were addressed. This evidence included: Q. Having regard to the findings at both 1998 and 2005 would you agree that it's likely that having regard to the development of a limp, the further diminution of the circumference of the left calf and the observation of a 2 level disc rupture or two disc ruptures in 2005 as against one in 1998 that the man's condition in 2005 represents the process of the degenerative condition that he had and that you opined upon as being present prior to the incident that he had at work? A. That's an interpretation, yes, I would accept that. ... Q. If you were to assume that he presented at a hospital, Royal Prince Alfred Hospital, in I think June of 1992? A. Yes. Q. And again in 1993? A. Yes. Q. And made complaints of back pain together with other matters? A. Yep. Q. Would that fit with a pattern of degenerative change in his spine over a period between 1992 and about 2005 when you last saw him? A. That's an explanation but were any x-rays taken at that time, because really the diagnosis of a degenerative process would need to have some sort of imaging to be able to determine that that's the case. The gentleman was still in his 20s at the time that you're referring to. As I said earlier, it's unusual to have significant lumbar degenerative change at that age. ... Q. But if it was symptomatic then assuming in this man the degenerative condition that he had was symptomatic in 1992 and 1993 would you agree with the proposition that the ingestion of heroin may mask those symptoms in that man? A. Yes, heroin is a pain reliever, probably the most potent that we have. Q. A degenerative spinal condition might become symptomatic without any traumatic episode, is that right? A. Yes, correct. Q. If one has a degenerative spinal condition earlier than the general run of the population there is a greater chance that that degenerative condition will ultimately become symptomatic causing pain, discomfort and affecting if one is engaged especially in physical labour affecting one's capacity to work in a physical kind of job? A. Yes, with increasing symptoms associated with degenerative change on the assumption that that's what's causing his increasing symptoms, yes, it would be increasingly difficult for him to work in physical labouring work. Q. Without any traumatic episode such a degenerative condition may become symptomatic and force an individual who has such a condition to cease doing physical labour? A. Yes. 47 The plaintiff, as I have earlier said, clearly has a spinal disability. However, there are on the medical evidence in this case issues in proceedings at common law as to its causal connection with the work at Concord Hospital, even if the employer be found negligent, and the degree of seriousness of the injury. Those were matters very much in the mind of Ms Vayanos in acting for the plaintiff and advising on the choice between him seeking workers compensation or modified common law damages. For instance, as Dr Piliotis recorded, the x-ray of the plaintiff's lumbar spine on 1 December 1995, a few weeks after the alleged work incident, showed "a mild tilt of the spine to the right compatible with muscle spasm … no significant bone abnormalities are seen and the disc spaces, facet joints and sacroiliac joints appear normal" – that would seem consistent with the x-ray taken on 24 July 1992 which showed "a scoliosis convex to the left. No fracture detected" – and a CT scan, a perhaps more informative guide, of the lumbar spine on 7 December 1995 disclosed "facet joint degenerative change is noted at 3/4. At 4/5 there is a disc prolapse at L5/S1 with indentation of the L5 and S1 nerve root". 48 Those developments in pathology were, on Dr Bodel's evidence, consistent with an early degenerative condition by engaging in physical labouring work even absent any traumatic episode. As I understand it, even absent also any negligent conduct by the employer requiring physical labouring work to be done. Indeed, Dr Harris referred to "degenerative changes … precipitated by the nature of the work" and Dr Machart thought the back pain developed gradually rather than from a discrete incident where the plaintiff had constitutional degenerative changes in his back. Dr Machart, however, did accept the possibility the disc protrusion occurred from the November 1995 lifting activities but that that was dependent on the plaintiff being a true witness to his condition. Dr Bentivoglio, the treating specialist, considered the L5/S1 disc lesion developed from the repeated bending by the plaintiff at work. Dr Piliotis, the treating general practitioner, on the other hand, attributed the injury to the November 1995 incident. 49 Dr Johnston, Dr Searle and Dr Bodel, qualified either by the defendant as the plaintiff's then solicitors or by the workers compensation insurer, all related the plaintiff's back condition to the November 1995 work incident in the context of the nature and conditions of the work according to the history given by the plaintiff. Of course, that was in the absence of knowledge about the 1992 and 1993 complaints of back pain and the dependence on heroin for about 15 years. Also, Dr Johnston in September 1998 noted presentation by the plaintiff suggesting a "significant level of exaggeration and embellishment". 50 In April 1998, Dr Bentivoglio assessed the plaintiff as having a 20 per cent permanent impairment of his back and a 15 per cent permanent loss of efficient use of his left leg. In September 1998, Dr Johnston assessed a 15 per cent permanent impairment of the back and between 5 and 10 per cent permanent loss of use of the left leg. In November 1997, Dr Searle assessed a 30 per cent permanent impairment of the plaintiff's back and a 10 per cent permanent loss of efficient use of the left leg. In January 1998, Dr Bodel assessed a 15 per cent permanent impairment of the back and a 5 per cent permanent loss of efficient use of the left leg; those assessments by Dr Bodel were attributed as to one-third from constitutional changes unrelated to work and the remaining two-thirds to the November 1995 work incident. 51 Rather then acceptance of one assessment over the others, it would seem reasonable to take into account all assessments of permanent loss or impairment related to the work concerned as showing, overall, about 15 to 20 per cent permanent impairment of the plaintiff's back and about a 5 to 10 per cent permanent loss in the efficient use of the left leg. Workers compensation benefits 52 The plaintiff was paid wages by his employer following the November 1995 incident for absences due to the injury until he ceased work in early-May 1997. However, weekly payments of workers compensation were not made because, on enquiry by Ms Vayanos on 13 June 1997, the plaintiff had not completed a claim form until 6 June 1997 and it was then being processed with GIO General Limited as the insurer. On 15 July 1997, GIO accepted liability for the workers compensation claim and weekly payments together with payment of medical expenses were made. 53 On 23 December 1997, Ms Vayanos wrote to the insurer claiming lump sum compensation pursuant to the Workers Compensation Act – s 66 for 30 per cent permanent impairment of the back in the amount of $18,000 and for 10 per cent permanent loss of efficient use of the left leg at or above the knee in the amount of $7,500; and s 67 for pain and suffering. Dr Searle's opinion was relied upon. On 20 February 1998 the insurer offered to settle the s 66 claim as to $6,000 for 10 per cent impairment of the back and $3,750 for 5 per cent impairment of the left leg – that counter offer was no doubt based upon the assessment by Dr Bodel made in January 1998. At this time, the plaintiff was in the Villawood Detention Centre but on 3 March 1998 he instructed Ms Vayanos to reject the counter offer by the insurer. Conciliation of the issue was proposed on behalf of the plaintiff on 26 March 1998 but on 3 April 1998 the workers compensation Resolution Service decided that the dispute was more appropriate for determination by the Compensation Court of New South Wales. The insurer on 14 April 1998 advised it was not prepared to increase its previous offer. On 24 April 1998, after instructions from the plaintiff, Ms Vayanos filed an application in the Compensation Court for relief under ss 66 and 67 in the terms originally proposed to the insurer and quantifying the s 67 claim at 75 per cent of a most extreme case. Otherwise, the plaintiff continued to receive weekly benefits plus medical expenses. 54 It was during this period of the chronology that the parties exchanged the reports of Dr Bentivoglio, Dr Searle, Dr Harris, Dr Frances Doull (radiologist as to CT scans on 20 May and 4 August 1997) and Dr Piliotis. 55 On 26 June 1998, when the plaintiff resigned his employment, the insurer ceased payments of weekly compensation benefits but those payments were restored on the plaintiff completing an employment declaration for payment direct to him rather than through the employer. 56 The hearing of the application under ss 66 and 67 occurred in the Compensation Court on 8 April 1999 and was settled in the sum of $100,000 by way of a commutation approved by Hughes CCJ. The settlement monies were paid to the plaintiff on 29 April 1999. 57 It was common ground that the benefits received by the plaintiff under the Workers Compensation Act totalled $137,403.45 made up of $12,652.74 for out of pocket expenses, $24,750.71 for wages and $100,000.00 commutation benefit. Relationship between the parties 58 As indicated, the plaintiff retained the defendant on 6 May 1997 in relation to the injury sustained by him at Concord Hospital on 11 November 1995. He was seen by Ms Vayanos. She deposed that the plaintiff consulted the defendant because he had problems with money after his weekly compensation payments were stopped and legal advice was sought. From this initial meeting, as noted earlier, Ms Vayanos contacted the employer and weekly benefits were resumed shortly thereafter. 59 At the first meeting, the plaintiff accepted that Ms Vayanos asked him how the incident concerning his back occurred. Ms Vayanos recorded a view that the injury appeared to have arisen from the nature and conditions of the work rather than an isolated incident. I interpose that that view receives support, as I have earlier said, from most of the medical opinion. Ms Vayanos said she followed her usual practice by obtaining from the plaintiff his contact details, documentation held, letters from the employer and insurer and authority to access medical records. 60 Ms Vayanos said at the initial meeting, although the plaintiff had an accent, she had no difficulty in understanding him as she was familiar with clients who had English as a second language; she was satisfied he understood her as he responded to all questions appropriately and never requested an interpreter. 61 Ms Vayanos deposed to the following conversation at the first meeting: Hariss: My friends have suffered injuries at work and they got money. They [meaning his employer] were negligent. The trolleys didn't work. They didn't give my any help. Me: that might be right, but to succeed when the employer is at fault, you must have a serious enough injury to get the money. If you fail to show this, you will lose your case and you lose your rights to claim any lump sum payments in a workers compensation claim. We'll have to see what the medicals show. We have three years form the date of the injury to claim negligence. 62 The plaintiff denied the reference to friends getting money and he did not remember talking about the trolleys. However, he agreed Ms Vayanos referred to this need for the injury to be serious enough, according to the medicals, to succeed when the employer was at fault; but he did not remember Ms Vayanos saying if he failed to show that he would lose the case and the right to claim lump sum workers compensation. He said she told him there were 12 months from the date of injury to claim negligence. 63 Ms Vayanos said she recalled the plaintiff repeatedly referred to Concord Hospital being "negligent" and they had a conversation, accepted in terms by the plaintiff, to the following effect: Hariss: the hospital is negligent, they didn't provide me with any trolleys for the heavy linen. Also I have done a sterilisation course and got my certificate. I know how to sterilise and they are not doing it properly. Me: Whether the hospital is sterilising properly is not relevant. 64 Ms Vayanos gave evidence that throughout 1997 and 1998 she had conversations with the plaintiff during his frequent visits to the defendant's office when he referred to a need for money and of being "sick of Australia. I want to go home to Indonesia. I want my money. Then I will go." The plaintiff said "I don't say it like that. I fighting to stay in Australia so long and until I get it now." Of course, at this time the plaintiff's resident status was far from settled, he had been in detention as an illegal immigrant, was subject to deportation orders, had served terms in prison for drug offences and it was not until 12 September 2001 he was granted permanent resident status. In acknowledging this, the plaintiff said if he were deported to Indonesia "I will sue from there." 65 The plaintiff maintained that Ms Vayanos did not explain to him the difference between workers compensation and common law at all. He said "I don't understand at all, I just say to them, 'I want you to charge him with the negligence and if you could … have to put him in the gaol'". Against that, Ms Vayanos said on more than one occasion she informed the plaintiff, who said "OK", to this effect: Adi, there is a difference between the Compensation Court and common law. In the Compensation Court, you can get a lump sum for injuries for your back, arms and legs and you can also get weekly payments. You don't have to prove that your employer was negligent. Only that you were injured at work and that your injury is the type that you can get money for under the Workers Compensation Act. With a common law matter you might get a bigger lump sum but if you lose at common law you lose everything. I don't think your injuries are bad enough for a common law claim. Let's see what the medical reports say. 66 Ms Vayanos said she also advised the plaintiff, who again said "OK", to this effect: "Adi, the medical evidence doesn't support a claim in negligence or common law as it is referred to. You need to meet the threshold for common law and the medical evidence does not support that. You have problems with your back which are not related to work. We are getting further medical reports. Your employer may be negligent, but if you injuries are not severe enough, you are not going to get any money at common law." 67 In December 1997, after receipt of Dr Searle's report of 27 November 1997, Ms Vayanos confirmed her earlier advice to the plaintiff as to the seriousness of his injuries not supporting a negligence claim and advising continuation of the workers compensation claim with a review on receipt of more medical evidence. She recommended commencing proceedings in the Compensation Court on the basis that although the plaintiff may not get as much money the outcome would be more certain for him. She said the plaintiff responded by saying: I'm hurting, I have no money. I need money to live. I don't know if I am staying in Australia or not. I need my money quickly … I want to be certain about getting my money. I want my money." 68 On 3 March 1998, Ms Vayanos briefed Mr Malcolm Choat of counsel to advise and appear generally. Although the brief was entitled "In the Compensation Court of New South Wales," Ms Vayanos said that having briefed Mr Choat on numerous occasions she knew that if the evidence indicated possible common law proceedings then he would raise that issue. 69 Mr Choat provided a preliminary advice on 7 March 1998 relating to the offer of settlement then existing from the employer as to s 66 of the Workers Compensation Act and suggesting further details be given to the employer as to the s 67 claim; a report from Dr Bentivoglio as the treating specialist on further examination of the plaintiff should be obtained. The plaintiff was provided with a copy of counsel's advice. 70 Having in mind the plaintiff's continuing problems with money and immigration issues, Ms Vayanos considered the Compensation Court proceedings should be commenced before obtaining Dr Bentivoglio's report. And, so, on the plaintiff's instructions, she filed on 24 April 1998 the application for determination in the Compensation Court. Progressively thereafter, she forwarded to Mr Choat copies of medical reports obtained for the plaintiff and those served by the employer. 71 On 10 August 1998, Mr Choat conferred with the plaintiff and Ms Vayanos; counsel provided a written advice on 11 August 1998. Not insignificantly, counsel noted the plaintiff to be a "vague historian" and with discrepancies in relation to dates of injury and presentation of pain in the back and leg. Ms Vayanos recalled Mr Choat commenting during the conference that a common law claim was not feasible because the medical opinions did not support a conclusion that the claim would exceed the necessary common law thresholds – proceeding by way of workers compensation was recommended. Indeed, in the advice, counsel noted the claim to be limited to ss 66 and 67. 72 It ought be noted that on 15 September 1998 the employer's solicitors served on the defendant a copy of a radiological report from Dr J Talbot-Stern of the plaintiff's lumbosacral spine on 16 May 1997. It stated: There is mild scoliosis of the lumbar spine, with convexity to the left. No fracture or dislocation of the lumbar spine is seen. The disc heights are preserved. No abnormality is seen in the part of the sacrum which is visible. 73 That report is consistent with the radiological report by Dr Kuan at Royal Prince Alfred Hospital on 24 July 1992 referred to earlier following the alleged assault on the plaintiff at that time. 74 Importantly, with the service on the defendant of the reports by Dr Kuan, Dr Talbot-Stern and Dr Johnston, Ms Vayanos became concerned about the plaintiff's credibility with the varying histories he had given and failure to advise previous injury to his back. Shortly after 28 September 1998, the plaintiff attended the defendant's office and spoke to Ms Vayanos. She reported, again, his anxiety for money with certainty because he may have to leave Australia. The opportunity was taken by her, as she said, to further explain the situation when injury be sustained at work as between workers compensation benefits and damages at common law. The explanation was somewhat detailed and lengthy; there is no need to repeat it as it is fully set out in Ms Vayanos' affidavit. Suffice it to say it covered the two different forms of relief, what was required for each and the implications of obtaining one over the other. Importantly also, the three year limitation period within which common law proceedings had to be commenced was mentioned. The plaintiff was said by Ms Vayanos to be against an operation; although he said the employer was negligent and caused his injury, "because I might have to leave Australia I need my money quick." She suggested a second opinion be obtained from counsel. 75 It may be noted here that the limitation period for common law proceedings expired on 12 November 1998. 76 A conference was arranged with Mr Choat for the "second opinion" on 10 December 1998. An interpreter was organised to attend, consistent with the then practice in the Compensation Court for persons with English as a second language, but the interpreter failed to do so. Even so, the plaintiff has consistently maintained he can speak and understand English and his evidence in the present proceedings was given without an interpreter. The conference proceeded on the basis of Mr Choat being requested to advise as to the prospects of the plaintiff succeeding in an action for damages at common law. The oral advice given in conference was confirmed in writing on 11 December 1998. On 7 January 1999, an interpreter in the Indonesian language interpreted the written document into the Indonesian language and certified the plaintiff's acceptance of an understanding of the contents. Ms Vayanos had the interpreter and the plaintiff sign the written advice to that effect and she also, paragraph by paragraph, had the plaintiff state his understanding of what it meant – she was thereupon satisfied he did in fact understand the advice. 77 Mr Choat's advice was comprehensive and specific to the issue. I do not repeat it, other than to mention his view that modified common law damages under s 151G of the Workers Compensation Act for non-economic loss may not greatly exceed the lump sum available under ss 66 and 67 which he put at $50,000, particularly when costs are taken into account; also, counsel referred to the threshold in s 151H to attract the major component of any negligence claim for economic loss as requiring the compensation otherwise payable under s 66 to be not less than $33,075. Mr Choat reasoned that acceptance of the insurance company's doctors meant that the s 66 claim would fall short of $33,075; even if Dr Bentivoglio as the treating specialist were accepted the s 66 lump sum would only be $30,759.75, obviously short of the threshold for economic loss damages; and the most favourable s 66 assessment by Dr Searle would give $33,736.50, only just over the threshold, but applying a deduction as required by s 68A for the pre-existing or degenerative changes of, say, 10 per cent, would mean Dr Searle's assessment would not exceed the necessary threshold. 78 Mr Choat considered there was no certainty in the plaintiff in common law proceedings succeeding to show negligence of the employer. However, on the fact as briefed he saw probable success, although a favourable report from an expert as to the work requirements would have to be obtained. That was never done nor was it done for the proceedings before me, but I do not think it to be a necessary course in any event. 79 Mr Choat concluded his advice by stating: The applicant, were he to succeed at common law, would probably be entitled to sizeable damages. However, there is no guarantee that the applicant will succeed in any common law proceedings. As matters currently stand, he probably will not be entitled to damages for economic loss under section 151H, at the very least. In my view, the best interests of the applicant would be served in simply pursuing his rights under sections 66 and 67. If he does decide to commence proceedings at common law, the applicant would have to be advised of the costs penalty associated with such a step. Furthermore, the applicant will have to be advised that, in commencing common law proceedings, he makes an election under section 151A. This will have the effect of preventing him from ever claiming lump sum compensation under sections 66 and 67. 80 The plaintiff's evidence in responding to the advice of Mr Choat and being shown the written version, said – "Yeah I told them, I said, 'I can't read, I can nothing, because I am on painful, if you could adjourn this case'. Adjourn the case, yes, because I was too painful. But no, no, no, he said, we keep going, nearly finished." 81 Ms Vayanos said that at the 7 January 1999 conference she obtained written instructions from the plaintiff which instructed the defendant, based on Mr Choat's advice, as the document said, "to continue my claim for compensation in the Compensation Court not the District Court/common law". The interpreter certified he interpreted the instructions document from the English language to the Indonesian language and that the plaintiff indicated he understood its contents. 82 The Compensation Court proceedings were listed for hearing on 8 April 1999. However, the day before Mr Choat became engaged elsewhere and Ms Helen Wall of counsel was briefed for the plaintiff. Significantly, at the Compensation Court Ms Wall, according to Ms Vayanos but denied by the plaintiff, again raised with the plaintiff the option of common law proceedings. Settlement discussions between the plaintiff and the employer then occurred, during which Ms Vayanos said Ms Wall advised the plaintiff that settlement of the workers compensation claim by a commutation would result in the abandonment of his rights to sue at common law. Ms Wall also advised the plaintiff not to agree to a commutation because he may be required, according to the medical opinion, to have surgery to his back so that he would thereby forfeit all future weekly benefits, medical expenses and lump sum payments. Ms Vayanos said the plaintiff indicated he wanted to "finish my compensation and get money because I don't know what the immigration tribunal will do." 83 The plaintiff denied any such discussions occurred. Indeed, he said if he had been told before the proceedings in the Compensation Court that if he went to common law in the District Court he may get $50,000 more he would have done so. In any event, he said just before the hearing he told Ms Wall and Ms Vayanos that he wanted the proceedings adjourned. Ms Vayanos denied he said that or anything to that effect. 84 The settlement discussions eventually resulted in an offer to the plaintiff of a lump sum commutation of $100,000. the settlement was reduced to writing and the plaintiff and an interpreter signed them as instructions to Ms Vayanos to settle. The document detailed the settlement payment, liability of the plaintiff for payment of expenses outstanding and closure of future rights against the employer. 85 The plaintiff signed also, after ti was read to him by an interpreter, a consent to application for commutation form which, relevantly, acknowledged that Ms Wall had explained to him its effect, that payment of the lump sum would end his entitlements to workers compensation in respect of his injury and that the employer was released from liability at common law or for breach of statutory duty. Nevertheless, the plaintiff in evidence said he did not read or understand the document and simply signed what was put in front of him. In fact, he went so far as to allege that both Ms Wall and Ms Vayanos "trick me". 86 The matter then went before Hughes CCJ and Ms Wall called the plaintiff to give evidence. The hearing proceeded in the usual way and the medical reports were admitted into evidence. The following relevant evidence was then given by the plaintiff: Q. Do you also understand that if his Honour approves this application it would be a full and final settlement against Concord Hospital? A. I understand that. Q. You cannot come back for any weekly compensation, medical expenses or lump sum damages? A. I understand that. Q. You cannot come back for your back, leg or any other parts of your body against Concord Hospital? A. I understand that. Q. I show you a form called consent to commutation and short minutes of order. Mr Hariss if you look at the first form and turn it over, if you turn to the back of the first form, is that your signature down at the bottom near the word worker? A. Yes. Q. Did you sign that after I explained the form to you through your interpreter? A. Yes correct. Q. Did you understand the contents of that form? A. I do, I understand. Q. The second form, the short minutes, did I also explain that form to you through your interpreter? A. Yes it has been explained. Q. Do you understand the contents of that document? A. Yes I do. … Q. Mr Hariss, if his Honour approves this application, do you wish to use some of the money, about $40,000 to set up some kind of business selling Asian food which you have already checked out and done some figures relation to? A. Correct. Q. You would prefer to have the lump sum so you can set up a business than continue on the weekly compensation? A. Correct. Q. You feel you could work for short periods in the business but also employ somebody else to carry on the main business of that shop? A. Correct. Q. On that basis do you ask his Honour to approve this application? A. Correct. 87 Hughes CCJ then decided: Having read the medical reports and listening to the evidence of the worker I am satisfied that this is proper for commutation. Furthermore I am satisfied it is in the best interests of the worker if I approve the commutation and I therefore approve the commutation and find that it is in the worker's best interest. I initial the short minutes." 88 Mr Choat and Ms Wall swore affidavits both effectively saying they had no independent recollection of the plaintiff. Mr Choat added that at the time of his conference with the plaintiff on 10 December 1998, if the injury occurred in November 1995, that the limitation period had expired but that would not have concerned him because he considered at the time that an extension of time would have been readily granted. Neither deponent was required for cross-examination. 89 The relationship between the parties in terms of the defendant's conduct in acting for the plaintiff was the subject of evidence in a report form Richard Smith, a solicitor and principal of Smith & Smith Attorneys in Lismore. Mr Smith was employed by the GIO from 1972 to 1985 and was a barrister from 1985 to 2003 involved in personal injury litigation mainly for plaintiffs in the Supreme Court and the District Court; in 2003 he became self-employed as a solicitor. His report was relied upon by the plaintiff to show that the defendant was negligent in acting for him by failing to investigate and advise as to the possibility of common law proceedings until after the limitation period had expired thereby depriving him of making an informed election. The report was the subject of strong objection by the defendant but it was admitted conditionally with leave to argue its admissibility during final submissions. 90 Whilst I have found the report of Mr Smith instructive, I have decided that the only proper course is to reject its admissibility as evidence. In doing so, I respectfully adopt the reasoning of Levine J in O'Brien v Gillespie (1997) 41 NSWLR 549 which, in my view, is directly apposite to the present case. His Honour, in a manner consistent with the task undertaken here by Mr Smith, remarked (at 551): It appears to me that Mr Penhall has been asked a series of questions in his capacity merely as one solicitor leading to the expressions of opinion and comment upon the conduct of another solicitor. There is no material in Mr Penhall's affidavit in terms of his training, study or experience, in my view, to elevate him to be a person with the requisite specialised knowledge based upon those qualifications within the meaning of s 79 ( Evidence Act 1995) nor was any such evidence sought to be adduced. 91 Mr Smith's stated relevant experience, in effect, was as a solicitor and barrister engaged in personal injury litigation. Nowhere, however, did he set out his specialised knowledge from training, study or experience to enable s 79 of the Evidence Act to operate to overcome the exclusionary opinion rule in s 76. As Hodgson J said in Rabelais Pty Ltd v Cameron (unreported, NSWSC 8 February 1993) – "What this duty requires in the particular circumstances of each case is a matter for the Court to determine. In coming to this decision, the Court may be assisted by expert evidence. Certainly, such evidence may go to professional standards laid down by a professional institute or regularly practised: see Midland Trust Bank Co Ltd v Hett Stubbs & Kemp [1979] Ch 384 at 402." Mr Smith's opinion was not so based. 92 Following the Compensation Court proceedings on 8 April 1999, it was not until three and a half years later on 12 September 2002 that the plaintiff attended the defendant's office seeking advice as to further entitlements he may have against Concord Hospital as his employer and GIO as the insurer. Apparently, as recorded in a file note held by the defendant, the plaintiff complained "he cannot work because of his injuries and he continues to be disabled by back pain and left leg pain." The solicitor who saw him, identified as "KRR", advised that he had no further rights against the hospital and its insurer after the commutation was approved by the Compensation Court. He was, however, informed of a right to have an independent solicitor review the matter to ascertain if there was an action against the defendant or counsel appearing for him and, for that purpose, the defendant would make the file available. I was informed that the plaintiff retained his present solicitors, Keddies Litigation Lawyers, on 26 September 2002 and this action was then commenced by statement of claim filed on 8 April 2005. It may be observed that, given the Compensation Court commutation proceedings on 8 April 1999, this present action against the defendant for professional negligence was brought the day before the six-year limitation period expired on 9 April 2005. The claim and the defence 93 As intimated earlier, the claim is brought against the defendant for professional negligence. It was agreed by the defendant that he had a duty to the plaintiff to properly investigate and advise him in relation to the appropriate relief, either workers compensation or modified common law damages, arising out of the workplace injury. The duty arose from the ordinary duty of care of a professional to a client and from the agreement under which the defendant was retained to act for the plaintiff in relation to his entitlements but nothing turns in this case from the distinction between the claim in tort or in contract. The particulars pleaded of negligence were the same as those pleaded for breach of contract as a result of which it was pleaded that the plaintiff suffered a loss of opportunity to pursue a claim for modified common law damages pursuant to the Workers Compensation Act. Damages, interest and costs were sought. 94 The defendant denied any breach of duty and did not admit the plaintiff was injured at work at Concord Hospital on 11 November 1995 or that he thereby suffered loss and damage. 95 Counsel for the plaintiff, Mr K Andrews, put the essence of the plaintiff's case as being a failure by the defendant to properly investigate and give appropriate advice so that he could make an informed decision whether to continue with workers compensation or claim modified damages at common law; by allowing proceedings in the Compensation Court leading to a commutation meant the defendant had wrongly put the plaintiff in the position of having elected to forfeit his common law rights – the plaintiff's position is that he would have succeeded at common law but was not advised by the defendant to take such action. The expiration of the limitation period on 12 November 1998 as to a common law claim was in the absence of any advice from the defendant regarding his common law entitlements. 96 Mr Andrews frankly acknowledged the plaintiff's immigration problems and uncertain resident status but he did engage in gainful employment and was granted the right to work. It is true the plaintiff had an extensive criminal record and was a long-time drug addict. Counsel, however, emphasised his entitlement to appropriate advice from the defendant as to remedies for the injuries sustained. The only advice given in that respect was the advice from counsel in January 1999 but that was outside the limitation period. 97 Mr G Craddock of counsel for the defendant readily admitted the defendant's expertise to advise clients about recompense for personal injuries at common law and workers compensation. Indeed, counsel conceded that if the history and instructions given by the plaintiff as to the work incident be accepted by a common law judge then it was likely for a finding of a breach by the employer of the duty of care to provide a safe system of work. Even so, counsel argued that on the plaintiff first retaining the defendant to act for him the question of common law damages was investigated and pursued and the defendant did not limit steps to a workers compensation matter; rather, said counsel, the issue remained open. The question of common law damages, including the limitation period, was discussed by Ms Vayanos with the plaintiff so that he was well aware of the position and understood common law damages was likely to provide more money than workers compensation. However, and properly so on the facts, in the continuing discussions between Ms Vayanos and the plaintiff she advised him that his degree of success at common law was borderline in terms of establishing negligence in Concord Hospital and, in any event, the nature of his injuries in terms of seriousness appeared below the thresholds in the statute so as to excluded valuable benefits at common law for economic loss. Counsel was briefed to advise in March 1998, before the limitation period expired, and that advice confirmed the concern of Ms Vayanos; the application for determination in the Compensation Court was then filed on the plaintiff's instructions. 98 Albeit after the limitation period expired about one month earlier, a further conference with counsel was held at which the plaintiff was advised that his best interests would be served by pursuing the workers compensation proceedings because whilst a breach of the duty of care may be established the state of the medical evidence made it unlikely the thresholds would be exceeded or there was a substantial risk they would not. Mr Craddock put that even at that time it was almost certain, later modified to probable, that if the plaintiff elected for common law then leave would be granted to extend time to bring such proceedings; nevertheless, the plaintiff opted to continue the workers compensation claim by reason of the advice given and it was no part of his decision-making process that the limitation period had expired. Therefore, submitted counsel, even if there were a breach of the duty by the defendant it was causative of nothing. 99 The signing of counsel's written advice, as certified by an interpreter and the giving of written instructions to the defendant to proceed with workers compensation rather than initiating a common law action meant that the plaintiff had made his decision how to proceed. The position, on Mr Craddock's approach, was put beyond doubt when he insisted on accepting the settlement offer by way of commutation in the Compensation Court even though his then counsel advised not to do so because of the likelihood of surgery being required to his back – the plaintiff was adamant he would not undergo surgery and because of his need for money wanted a certain outcome having in mind also the pending hearing into his residence status. The hearing in the Compensation Court before Hughes CCJ showed that the plaintiff wished to settle and understood the implications for his rights in doing so. 100 In short, Mr Craddock submitted that the defendant properly investigated the case, the option between common law and workers compensation was considered, advice was given to the plaintiff, counsel briefed to advise and appear and the matter settled in the Compensation Court by the approval of the Court. The defendant had not failed to properly advise. 101 Given liability in the defendant, Mr Andrews submitted an assessment of modified common law damages at $535,547.53 minus a 20 per cent loss of chance of $107,109.50 to give a net amount of $428,438.03. With a deduction of $137,403.45 for workers compensation benefits received, the resultant damages claimed against the defendant were $291,034.58 plus interest at the Court rate of 9 per cent per annum. In fairness, Mr Andrews conceded that such damages would arise in "the perfect world with the perfect case … based on the medical evidence and the nature of the injury." Then, even allowing for a 20 per cent reduction for loss of chance, counsel put alternative submissions at lower amounts for the various heads of damage from this "perfect case" approach. 102 Mr Craddock took serious issue with the assessment of any damages. In particular, counsel challenged the non economic loss claim as unsupported by the evidence; that past economic loss could in the circumstances only be dealt with by a buffer because the plaintiff made no real attempt to identify the periods when he was able to work but could not do so; future economic loss should be subject to, say, a 40 per cent reduction for vicissitudes rather than the usual 15 per cent; and past and future domestic assistance was at most one hour per week on the plaintiff's own evidence. In the result, an appropriate alternative calculation "in rough terms, and very rough terms" would about halve the calculation by Mr Andrews. Statutory scheme 103 The provisions of the Workers Compensation Act in presently relevant respects at the time these events arose may be shortly stated. A person to whom compensation is payable in respect of a work injury is not entitled to both permanent loss compensation and damages from the liable employer but is required to elect between those benefits: s 151A(2). An election is made by commencing proceedings in a common law court to recover those damages or by accepting payment of that permanent loss compensation (on either election, the entitlement to recover the other remedy is lost): s 151A(3). A person to whom compensation is payable is not entitled to commence proceedings for damages in a common law court in respect of an injury against the employer more than three years after the date on which the injury was received, except with the leave of the court: s 151D(2). Lump sum compensation for the permanent loss of a part of the body is an amount equal to the percentage of the amounts prescribed as at the date of injury: s 66(1), (2), s 68(1) and s 68A(1). Lump sum compensation for pain and suffering resulting from the loss is an amount proportionate to the amount specified for a most extreme case as at the date of injury: s 67(1). 104 The statute prescribes modified common law damages in Div 3 of Pt 3 (ss 151E to 151T, inclusive). A court may not award damages contrary to Div 3: s 151F. Damages may be awarded for non-economic loss as a proportion of the maximum amount for a most extreme case of $218,700: s 151G(2) and (3). If the loss so assessed is $38,600 or less no damages are to be awarded for non-economic loss: s 151G(4). If the amount of loss is assessed between $38,600 and $51,450 the awarded damages are to be calculated according to a formula: s 151G(5). If the worker has not received a "serious" injury then no damages are to be awarded for economic loss: s 151H(1). A serious injury is an injury for which damages are to be awarded of not less than $51,450: s 151H(2A)(b). 105 From that scheme, it will be seen that the plaintiff made his election not to pursue modified common law damages when he accepted payment of the lump sum permanent loss compensation by way of commutation on 29 April 1999. The limitation period had expired on 12 November 1998 and, so, even if leave to extend the period would have been granted, he thereupon ceased to be able to recover damages in respect of his injury. Of course, the commutation meant he ceased to have any further entitlements to workers compensation benefits. That meant the plaintiff had a three-week period during which he could reflect upon the implications of banking the commutation cheque from the GIO thus electing not to pursue his common law rights against Concord Hospital: see Dunn v Firth [2003] NSWCA 280 in para [6] per Beazley JA, with whom Tobias JA and Davies AJA agreed. Whether duty of care breached by defendant – limitation period 106 As a general proposition, my view is that a solicitor has a duty of care to a client to advise about any applicable limitation period and of the consequences in failing to meet it so that the client may make an informed decision within the limitation period. However, it is my view also that the duty is not absolute in the sense that it is relevant in determining any breach of the duty to consider the content of the duty and the context in which it arises. 107 Here, Ms Vayanos said that at the second meeting with the plaintiff on 6 May 1997, on the plaintiff raising the question of the negligence of Concord Hospital in supplying trolleys which were broken, she informed him there was a period of three years from the date of injury to claim negligence. The plaintiff accepted the limitation period was discussed but said he was told it was 12 months, which meant he took it that the period had already then expired in November 1996 – the limitation point could not therefore be said to be a continuing factor in his mind and where, of course, he thereafter continuously emphasised to Ms Vayanos his need for money and certainty in a situation where his residence in Australia was unsettled and deportation to Indonesia was possible. I prefer and accept the evidence of Ms Vayanos on this aspect so that I find she did advise the plaintiff of the limitation period to bring a common law negligence claim but where the plaintiff was more concerned with obtaining some money and with certainty. That is the context. 108 The content of the duty is to be seen where the expiry of the limitation period was not an irrevocable termination of rights but subject to extension by leave of the Court under s 151D(2) of the Workers Compensation Act. Although dismissing an application to extend time under the section, Greenwood M in Cheng Peng v PM Industries Pty Ltd (unreported, NSWSC, 31 October 1996) reasoned: Whilst the onus that the plaintiff would have to discharge in order to bring these proceedings in the circumstances of only being six months out of time is indeed a light one and any reasonable explanation would in itself have enabled time to be extended, in the circumstances where the plaintiff puts forward an excuse which begs common sense and which in my view is doing no more than trifling with the court, it cannot be said that it is just and reasonable to extend the time within which to bring the action. 109 In the present case, I do not see the circumstances as they existed after 12 November 1998 if the plaintiff had wished then to bring a common law claim as being contrary to common sense or as would trifle with the Court. That position, I think, existed up to 29 April 1999 when the plaintiff accepted the commutation payment by banking the cheque thereby making the election under s 151A(3) to forego common law damages. 110 Also, of course, the expiration of a limitation period is not a complete bar to the bringing of an action, being a procedural provision, as a defendant may decide not to plead it as a defence: see North Broken Hill Ltd v Vockins (1999) 19 NSWCCR 193 and Maricair v Principal & Councillors of Wesley College (2000) 19 NSWCCR 368. 111 Ms Vayanos continued to be sensitive to the limitation period and, although she forwarded a brief to Mr Choat in relation to proposed workers compensation proceedings on 3 March 1998, it was in the context of initiating court proceedings as a basis for the plaintiff to stay in Australia and not be deported while those proceedings were current. That was according to advice to her from the plaintiff's immigration solicitor, Mr Brett Slater. Of course, the institution of workers compensation proceedings did not constitute an election by the plaintiff under s 151A(3) whereas the commencement of common law proceedings would have removed his right to obtain the valuable benefits of lump sum permanent loss compensation under ss 66 and 67 of the Workers Compensation Act. On instructions from the plaintiff, Ms Vayanos filed the application for the workers compensation lump sum benefits on 24 April 1998. In the meantime, on 21 April 1998, Ms Vayanos said she again raised with the plaintiff in a telephone conversation her advice to pursue workers compensation benefits rather than common law damages in view of emerging problems in the medical reports about the degree of seriousness of his injuries and meeting the thresholds in ss 151G and 151H of the Workers Compensation Act. I accept her evidence as to those aspects. 112 Importantly, on 10 August 1998 in conference with Mr Choat, Ms Vayanos gave evidence he said to the plaintiff that common law proceedings were not feasible because the medical opinion did not support the conclusion that the thresholds would be met. 113 Again, at a conference with the plaintiff in late-September 1998, Ms Vayanos said she informed him of the three-year limitation period for common law proceedings in negligence but he repeated his need for money quickly as he might have to leave Australia quickly. Ms Vayanos suggested Mr Choat be asked for an opinion as she saw some doubt in establishing the negligence of Concord Hospital and, in any event, the medical opinions caused her concern in relation to the seriousness of the injury, particularly in light of the vague history given by the plaintiff and the mention of prior back injuries in 1992 and 1993. 114 Ms Vayanos arranged on 30 November 1998, albeit a couple of weeks after the end of the limitation period, for a conference with counsel on 10 December 1998. That conference, as Ms Vayanos said and as is apparent from Mr Choat's written confirmation of his advice on 11 December 1998, was clearly concerned with the specific issue of the two options of common law and workers compensation proceedings in mind. The advice was forwarded to the plaintiff on 21 December 1998 and on 7 January 1999 he attended Ms Vayanos with an interpreter to consider it. Mr Choat advised in favour of pursuing workers compensation proceedings rather than common law. That is what then occurred culminating in the Compensation Court proceedings on 8 April 1999. 115 To that extent it may have been necessary, a reasonable explanation for delaying any common law claim after the limitation period expired was the developing and then somewhat uncertain state of the material, medical opinions and particulars of any negligence, necessary to support such a claim. Also, of course, and as it always appeared to Ms Vayanos from that material, the plaintiff's injury stemmed from the alleged unsafe nature of his physical work which was spread during his employment from August 1995 to May 1997 when he said he could no longer work – thus, arguably, the limitation period did not expire until May 2000. 116 Mr Andrews short point was that the advice of Mr Choat was after the limitation period had expired so that the defendant had breached his duty. Mr Craddock submitted that if the plaintiff had then elected to pursue common law an extension of time would almost certainly have been granted and, in any event, the limitation period formed no part of the plaintiff's decision-making process. 117 In my view, the circumstances as they developed in terms of the content of the duty disclosed that the defendant did in fact advise the plaintiff of the three-year limitation period and that as late as the election by him in April 1999 an extension of time if he wished to pursue common law would more than likely have been allowed. But, I stress, it was no part of his thinking in the period leading up to 12 November 1998 given his personal immigration difficulties. Therefore, I conclude, the limitation point was not relevantly operative as being a breach of duty by the defendant. In any event, the limitation period as to a claim based on the unsafe nature and conditions of the work did not expire until May 2000. Whether duty of care breached by defendant – duty to advise generally 118 Given the unchallenged existence of a duty of care owed by the defendant to the plaintiff, as Mr Andrews put, the starting point in determining the issues is the content of the duty. In Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454, Tobias JA (with whom Giles JA agreed) said: 111 The simple fact is that the appellant was entitled to have his common law entitlements properly investigated, appropriate medical evidence obtained and advice, if appropriate, as to how his case might be affected by his drug taking and other aspects in respect of which the solicitor expressed concern. All these matters would need to have been explained to him in a manner that enabled him to come to a rational and informed decision … 119 Although in the minority in Chamberlain v Ormsby, Basten JA commented (in para [136]) in terms of principle that "in order to know what a plaintiff would do, if given advice with respect to a common law claim, it is necessary to identify each of the relevant considerations, including the value of workers compensation payments which would be deducted or would cease; the chances of proving negligence and the likely damages if a claim were successful." 120 If the evidence of Ms Vayanos be accepted then I am satisfied the plaintiff had been appropriately advised to enable him to reach a rational and informed decision as to the course which he wished to take. If the plaintiff be accepted then no such advice was given. This raises the important aspect as a very live issue of the credibility of the plaintiff against that of Ms Vayanos in recalling the detail of the conversations between them in the somewhat lengthy development of the events. I have earlier said it to be appropriate to view Ms Vayanos' detailed evidence of the conversations with caution but where the effect and thrust of them was maintained by her. For reasons given below, I prefer and accept what Ms Vayanos said over that stated by the plaintiff. 121 I consider the plaintiff an unreliable witness who was vague and evasive in his answers. He seemed intent to put the best possible position in his own interests but when challenged relied on being unable to remember because of a bad memory, gave confused and meaningless answers or simply disagreed in an aggressive manner. The outright denial of any problems with his back before the November 1995 incident at Concord Hospital, despite the recorded history supported by radiological evidence of back pain in 1992 and 1993 on presentation to Royal Prince Alfred Hospital, illustrates the point. It was in respect of that period when he admitted to the use of heroin to ease his back pain. And yet in the various attendances he had with medical practitioners after the alleged November 1995 injury there was no mention by him, certainly none recorded in the reports, of prior back pain. 122 Significantly, the plaintiff's persistent assertion throughout his relationship with the defendant through Ms Vayanos that he did not understand and all that he wanted was for the manager at Concord Hospital to be charged with negligence and sent to gaol defies reasonable belief. He was concerned with obtaining money and wanted it quickly in light of the possibility of deportation to Indonesia as an illegal immigrant. His long-standing use of illicit drugs and criminal activities does not support the acceptance of his narration of events, particularly where documentary evidence to the contrary exists. For instance, the file note of the manager at Concord Hospital of the plaintiff's conduct and behaviour in the workplace bespeaks of a difficult employee at odds with work colleagues. 123 Notwithstanding the documentary advices from Mr Choat in March 1998, August 1998 and January 1999 concerning the plaintiff's respective entitlements, all of which were provided to the plaintiff, he maintained in evidence to not understanding or not having been informed. Indeed, he maintained that position as to the January 1999 advice; and that was so even though he read it, an interpreter read it to him, Ms Vayanos explained it paragraph by paragraph and he signed it as having understood it. The consequent written instructions to the defendant to proceed with workers compensation proceedings rather than common law signed by him with the benefit of an interpreter brought his evidence that he just signed documents when asked without either having read or understood them because he was sick and in pain. I do not think his responses in those respects were credible. 124 Perhaps the ultimate test was the events at the Compensation Court on 8 April 1999. The plaintiff said he asked Ms Vayanos and Ms Wall to obtain an adjournment of the proceedings but no action was taken. But, according to Ms Vayanos, Ms Wall advised the plaintiff not to accept the commutation settlement because of the possible need for surgery to his back and she advised him that a settlement would lead to abandonment of common law rights – he denied that advice and signed, though an interpreter, instructions to settle and a consent to application for commutation. In the following hearing before Hughes CCJ, the plaintiff's evidence made it plain what he had been relevantly advised, that he understood the position and wished to settle on the terms agreed. Indeed, his Honour was so satisfied and approved the settlement by a commutation. The plaintiff's evidence before me, however, was to deny having been asked the questions concerned in the Compensation Court proceedings. That just cannot have been so. 125 To accept the plaintiff's evidence here would be to negate what I consider rationally emerges from Ms Vayanos' evidence, supported as it was by documentary material. What emerges from her evidence is that from the first meeting with the plaintiff in May 1997 she attended to his case by obtaining the re-commencement of his workers compensation weekly payments, arranged for further examination by and reports from medical specialists as to his condition, briefed counsel in a timely way to advise about his entitlements at both workers compensation and common law, regularly conferred with the plaintiff and explained the difference between workers compensation and common law damages. Importantly, she advised against commencing common law proceedings, properly in my view, because of the then election against lump sum workers compensation benefits in a situation where there was some doubt, with which I agree, about negligence being established in the employer and, in any event, that the seriousness of the plaintiff's condition on the medical reports was insufficient to meed the thresholds in ss 151G and 151H of the Workers Compensation Act to achieve more beneficial damages. As it turned out, the concerns of Ms Vayanos were affirmed by Mr Choat's advices, particularly that in January 1999. All of this was in a context where the plaintiff wanted money quickly and with certainty. In the circumstances, I do not think it could be said the plaintiff would have acted any differently from what he did. 126 At the settlement discussions, the plaintiff said he wanted an amount of $125,000 but apparently Ms Wall was only able to obtain $100,000 from the insurer. He then accepted that amount which, after reading the medical reports, Hughes CCJ approved as being in the "best interests" of the plaintiff. 127 In the result, I am not satisfied the plaintiff has established that the defendant breached his duty of care towards him. I find positively that the defendant behaved with due and proper professional conduct in the handling of the plaintiff's case. The present action must therefore fail. Negligence of the employer 128 The finding made makes it strictly unnecessary to consider the negligence of Concord Hospital as the employer in any notional common law trial which may have been brought by the plaintiff. However, this aspect was fully argued and, so, I feel bound to shortly say something about it. 129 Earlier, I expressed the view that on the facts the plaintiff had barely an even chance in establishing negligence of the employer for an unsafe system of work. The evidence of the plaintiff himself would be crucial in this respect. However, I do not consider it reaches a sufficient level of credibility or cogency on the probabilities to make out a case. 130 The plaintiff's narration of what occurred, originally said to be in October 1995 but later refined as 11 November 1995, was vague and lacking in detail. It is true he was lifting a bag of soiled linen onto a trolley and that the trolley was broken when he felt pain in his back, but really no more appears than that. How and in what way, one may ask, was the employer negligent. It is true that an employer has a duty to provide a safe place and system of work for an employee exercising reasonable care for his own safety and it may be added that the duty is of a relatively high degree and non-delegable in nature: see Nicol v Allyacht Spars Pty Limited (1987) 163 CLR 611; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; and O'Connor v Commissioner for Government Transport (1959) 100 CLR 225. As Windeyer J observed in Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 36: A safe system of work is one that is safe for an average workman taking reasonable care for his own safety. 131 The established system of work is far from clear from the plaintiff's evidence and the effect of the broken trolley, even how it was broken, was not stated. The plaintiff said he found the work too heavy – and that may well have been so for him, particularly if he had, as the medical reports suggest, a pre-existing injury with constitutional/degenerative changes in his low back. But, in my view, that does not mean there was necessarily an unsafe system of work, rather it shows the work was unsuitable for the plaintiff himself. I find no negligence to have been shown in Concord Hospital as the employer so that any common law claim for damages arising out of the November 1995 incident would have to be unsuccessful. 132 Of course, workers compensation is provided as the available remedy where an employee suffers injury arising out of or in the course of employment even absent negligence or fault in the employer. An injury so sustained from the nature and conditions of work, particularly over a period of time, is the classic situation for the application of workers compensation relief. Here, the medical reports support this approach. Damages 133 Ordinarily, and though liability in a defendant not be found, one would proceed to assess damages in the event the matter were to go further. However, in the particular circumstances of this case, in light of the findings made, my view is that to do so would not be appropriate. I will not do so because I see no utility in it. 134 A principal finding against the plaintiff has been his credibility. Also, a view of the medical reports, as recited earlier, would indicate to me a lack of support for the total incapacity and unemployability claimed by the plaintiff in his evidence to such an extent that the thresholds set out in ss 151G and 151H of the Workers Compensation Act for modified common law damages have not been exceeded. Whether that be so depends very much, it seems to me, on findings as to the plaintiff's evidence. In light of my findings, I simply see no utility in my going further to assess damages. I think it would be unfair to the plaintiff to so do if otherwise he were successful in establishing liability against the defendant and for the negligence of the employer. Conclusion and orders 135 For the foregoing reasons, I conclude that the defendant did not breach his professional duty towards the plaintiff in the handling of the plaintiff's case arising out of the alleged incident at Concord Hospital in November 1995. The plaintiff's claim must fail and the defendant is entitled to a verdict accordingly. 136 I will hear the parties on costs before making final orders. ********** 29/06/2007 - Final orders made. - Paragraph(s) Final orders:1) Verdict and judgment for the defendant against the plaintiff.2) Plaintiff to pay the defendant's costs of the action. 18/09/2008 - Judgment titled amended due to database issues. - Paragraph(s) None. 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