CLARKE v BEVERSTOCK [1999] NSWCA 473

New South Wales Court of Appeal CITATION : CLARKE v BEVERSTOCK [1999] NSWCA 473 FILE NUMBER(S) : CA 40918/97 HEARING DATE(S) : 18 March 1999 1 September 1999 JUDGMENT DATE : 23 December 1999

JUSTIN PETER CLARKE PARTIES : v JOHN THOMAS BEVERSTOCK JUDGMENT OF : Handley JA at 1; Sheller JA at 38; Giles JA at 39

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : 20332/95 LOWER COURT JUDICIAL OFFICER : Finnane AJ

COUNSEL : D L Williams/D Banwell (Appellant) R J Colquhoun (Respondent) and Ms D Fitzsimons on 18.3.99 SOLICITORS : Minter Ellison (Appellant) Robert Johns & Company, Bowal (Respondent) CATCHWORDS : NEGLIGENCE - solicitor - rail worker injured at work - settlement of claims for damages and compensation - solicitor sued for negligence in advising settlement - whether evidence supported trial Judge's finding that common law claim had 50:50 chance of success - whether solicitor negligent in negotiating redemption without taking into account s 11(2) entitlement ACTS CITED : Workers' Compensation Act 1926 CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167 DECISION : Appeal allowed with costs - orders made

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40918/97 CLD 20332/95 HANDLEY JA SHELLER JA GILES JA

23 December 1999

JUSTIN PETER CLARKE v JOHN THOMAS BEVERSTOCK NEGLIGENCE - solicitor - rail worker injured at work - settlement of claims for damages and compensation - solicitor sued for negligence in advising settlement - whether evidence supported trial Judge's finding that common law claim had 50:50 chance of success - whether solicitor negligent in negotiating redemption without taking into account s 11(2) entitlement The respondent worker brought an action for damages and proceedings for compensation for injuries sustained at work against his employer, the State Rail Authority. In 1991 both proceedings were settled, the compensation claim being redeemed for $37,500 and the common law action for $12,500 inclusive of costs. In 1995 the respondent worker successfully sued his former solicitor for negligence in advising and negotiating the settlement, the trial Judge finding that the worker had a 50:50 chance of succeeding in his common law action, and that the solicitor had been negligent in negotiating the redemption without regard to s 11(2) of the Workers' Compensation Act 1926. Damages were awarded. The solicitor appealed, and the issues in the appeal were whether the trial Judge's finding that the worker had a 50:50 success rate could be sustained, whether on the medical evidence the solicitor had been negligent in advising settlement, and whether the solicitor had been negligent in failing to consider the worker's entitlement under s 11(2). HELD: allowing the appeal: (1) The common law action had negligible prospects of success, and the solicitor had not been negligent in advising the settlement of the common law action. (2) The solicitor had been negligent in failing to consider the worker's entitlement under s 11(2) and in negotiating a redemption at only 74% of the maximum figure. ORDERS (1) Appeal allowed with costs; (2) Set aside the judgment of the Common Law Division and in lieu thereof substitute judgment for the plaintiff for $26,701.25 and costs with effect from 10 December 1997; (3) Costs to be set off; (4) The respondent to have a certificate under the Suitors Fund Act.