New South Wales Supreme Court CITATION : ARNOLD v HANCOCK & ORS [2006] NSWSC 156 HEARING DATE(S) : 30.5.05-6.6.05 JUDGMENT DATE : 24 March 2006 JUDGMENT OF : Hulme J at 1 DECISION : Orders deferred PARTIES : Jason Arnold Ken Hancock, John Hill practising as Hancock Alldis FILE NUMBER(S) : SC 20397/02 Plaintiff: W Kearns SC; T Boyd COUNSEL : Defendant: P Maiden Cross Defendant: M Windsor Plaintiff: Herbert Weller SOLICITORS : Defendant: Hunt & Hunt Cross Defendant: PricewaterhouseCoopers Legal - 47 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HULME J Friday, 24 March 2006 20397/02 Jason ARNOLD v Ken HANCOCK, Practising as HANCOCK ALLDIS & ORS JUDGMENT 1 HULME J: The nature of the case is such that there is virtue in dividing these reasons into sections and, so far as possible, trying to separate various areas of evidence and issues. Comprehensive and watertight division is not possible but the following headings and paragraph references will provide some guide:- 1. Introduction and the circumstances in which the Plaintiff was injured. 2 2 The Documentary Records and Communications between the Plaintiff and Mr Honeyman – June 1994 to late 1995. 27 3 Legal Fees and Correspondence re Retainer Termination. 69 4 The October 1994 and November 1995 conferences – the Plaintiff. 90 5 The October 1994 and November 1995 conferences – Mr Dodd. 111 6 The October 1994 and November 1995 conferences – Mr Honeyman. 142 7. Other evidence – Mr Dodd. 159 8 Other evidence – Mr Honeyman. 170 9 The Plaintiff's Evidence concerning events circa 1996. 181 10 Pre-accident circumstances of the Plaintiff. 189 11 Post-accident circumstances of the Plaintiff. 193 12 The Plaintiff's Traffic and Custodial History. 209 13 Medical and Other Reports about the Plaintiff. 219 14 Earnings and Earning Capacity. 235 15 1999 and Later Events. 243 16 Expert Legal Reports 244 17 Conclusions. 251 18 Damages if assessed in February 2000 353 19 Damages in 2006 383 20 Apportionment 399 Introduction and the Circumstances in which the Plaintiff was injured. 2 On 6 June 1994 the Plaintiff was employed by an organisation trading under the name Constable Brothers, which carried on a concrete pumping business. On that day he was operating a concrete pump and associated boom mounted on a heavy truck. The operation involved concrete being deposited out of a concrete delivery truck via a chute into a hopper mounted above the pump. At the bottom of the hopper was a pump and just above that there were what was referred to as paddles. These seem to have been the protrusions on an augur which operated on a horizontal axis and kept the concrete in the hopper moving, possibly towards the entrance to the pump. 3 At the top of the hopper was a grate. The particular load of concrete being handled at the time was a relatively dry mix. The Plaintiff stepped from the vicinity of the controls he had been operating onto the grate with a view to shaking the chute so as to dislodge some concrete which had stopped in the chute. 4 In the course of this activity his left leg slipped into the hopper and was so severely injured it had to be amputated above the knee. 5 Some short time later, acting on the Plaintiff's behalf, the Plaintiff's father engaged the Defendants, a firm of solicitors. The Plaintiff claims that their retainer was "to act for him generally in relation to his claim for compensation for his serious injuries" including, inter alia, to exercise due care, skill and diligence and to advise and prosecute a claim for compensation under the Motor Accidents Act if appropriate and to initiate action and to undertake enquiries in order to properly discharge their duty to him. Mr Honeyman of that firm and a barrister John Dodd who was instructed by the solicitors gave the Plaintiff advice. 6 The Plaintiff claims that the Defendants failed to exercise due care, skill and diligence, that the advice he was given was, in part inadequate, and in part wrong, that the Defendants failed to prosecute a claim for compensation under the Motor Accidents Act, failed to undertake enquiries and that in consequence no such proceedings were commenced against Mrs Constable the owner of truck and he has suffered loss. 7 The Defendants admit a retainer in the words quoted above but deny the more particular allegations in that regard, deny any fault and also contend that any loss the Plaintiff suffered was caused or contributed to by the Plaintiff's own negligence, breach of the retainer and breach of fiduciary duty. 8 The Plaintiff has not sued Mr Dodd but the Defendants have, asserting that if there were any negligence on their part, Mr Dodd breached the terms of his retainer by failing to properly advise the Plaintiff or the Defendants and alternatively breached a duty of care and fiduciary duty he is said to have owed the Defendants. The Defendants claim contribution or indemnity under the Law Reform (Miscellaneous Provisions) Act, damages "including contractual damages", interest and costs 9 Before I turn to the details of the relationship and communications between the parties it is appropriate to say something more about the circumstances and sequelae of the Plaintiff's accident and of his employment, at least up to the stage where the Defendants' involvement in the prosecution of the Plaintiff's claim ceased. 10 The grate was of steel and consisted of parallel bars running in only one direction inside a rectangular frame. The Plaintiff estimated the size of the whole grate to be about 3 feet by 1½ feet, and while my impression from photographs of the grate is that it was longer than 1½ feet on its shorter side, 18 inches is easily long enough to accommodate a person's boot or shoe. The parallel bars were estimated to be just over 80mm apart except at the ends where the gap, prior to the Plaintiff's accident, was about 120 to 125 mm. It was through one of these end gaps that the Plaintiff's leg slipped into the hopper. The Plaintiff was not sure, but the probability is that his falling through the grate occurred after he had done some shaking of the chute. The grate was near a platform on which a person controlling the concrete pumping would normally stand. 11 On 17 May 1994 the Plaintiff had been issued with a learner's permit to drive a power crane. Mr Constable's name is recorded on the copy of the permit that was in evidence and this, and the photographs of the truck, concrete pump and boom lead to the conclusion that the permit was obtained with a view to the Plaintiff being legally able to operate equipment of the type wherein he suffered injury. One of the conditions of the permit included an acknowledgment that the Plaintiff had read and had knowledge of the provisions of the regulations which relate to the type of work. 12 In evidence the Plaintiff agreed that incidental to the obtaining of such a permit he had had to read an instruction manual or other document in respect of the work and that that document told him about safety requirements of working a concrete pump. He said he would have read about the receiving hopper on a power pump. 13 He said that he was not aware that he was not to stand on the grate. He denied that Mr Constable had directed him not to walk on it and claimed that Mr Constable had in fact done so himself. 14 Mr Constable said that he was aware that people did, from time to time, stand on grates. He said that he had instructed the Plaintiff that the latter was not to do so. I can find no satisfactory basis for distinguishing between the credibility or reliability of these inconsistent versions and, accordingly, can make no finding as to which account was accurate. 15 There was in evidence a Code of Practice for Pumping Concrete which commenced on 1 March 1994. That document became Exhibit H and contains a clause in the following terms:- "3.17 Receiving hopper …………………………. A hinged grill should be provided to prevent access to dangerous moving parts such as feed or agitator mechanisms and value gear. The grill should be constructed of parallel bars, spaced so that it is not possible for a person's hand to become trapped. Spacing should not exceed 70mm and the distance from the grating to moving parts should be at least 150mm. Keep hands, arms, legs and feet away from the hopper grate whenever the pump is running. Never remove the hopper grate while the pump is running and never stand or walk on the hopper grate regardless of whether the pump is running or not." 16 Although in re-examination the Plaintiff seemed to accept, albeit with considerable doubt, that that was a copy of the book kept by his employer prior to the accident, those doubts, some expressed earlier and Mr Constable's evidence querying whether that book was out, by which I understand available or possessed by him, at the time makes me disinclined to find that the Plaintiff had in fact read it. On the other hand, I accept that the Plaintiff would have read something detailing safety considerations, be that a booklet or whatever manual or book that would have been in the office of his employer prior to the accident. 17 It should also be mentioned that the Plaintiff said that when he stood on the grate the pump wasn't going and although the paddles had not yet stopped moving in due course they would have in consequence of the pump being stopped. In cross-examination his answers indicate some uncertainty about this. He also claimed that he had moved to "off" a gear lever which controlled the paddles although again he claimed that their stopping would not have been instantaneous. Later he accepted that he may not have turned off the rotating device inside the hopper. 18 He also said that he did not think that when standing on the grate he remained in possession of a hand-held switch that controlled the pump. On the other hand, Mr Constable, who was on site said that he turned off the paddles and retrieved from under the Plaintiff while still injured in the hopper the hand-held switch. In a statement obtained by Mr Honeyman from an investigator, an eye-witness, a Mr Hartmann also claimed to have pressed a button to stop the paddles. 19 Upon the basis that these uninjured people are likely to have better recollections than the then traumatised Plaintiff, I think the probability is that the Plaintiff did not turn the pump off before stepping onto the grate and that Mr Constable did retrieve the hand-held switch from under the Plaintiff's body. The latter finding leads to the inference that, immediately before falling into the hopper, the Plaintiff had the switch in his hand. 20 The plaintiff agreed that the chute could have been shaken while he was standing on the ground but said that it would have been more than a hassle for it to have been done that way and to do so would have involved him reaching up above his head. 21 There was also evidence that the Plaintiff had assisted Mr Constable in making the grate in use on the day of his accident although Mr Constable said that it followed exactly the pattern of one which had been there previously. Be that as it may, the Plaintiff had plenty of experience with the truck and hopper he was using that day and opportunity to see the size and characteristics of the grate. 22 I do not regard the matters to which I have referred as permitting any other conclusion but that the Plaintiff was entitled to succeed against Mrs Constable in an action for negligence arising from the use and operation of the truck. The grate formed an obvious platform on which to stand to attend to the sort of problem with which the Plaintiff was attempting to deal and, so long as a person's foot was placed and remained across the bars, a platform on which a person could stand with relative safety. Had the spacing been in accordance with clause 3.17 of the Code of Practice there was probably little danger that even if his foot, no doubt encased in a shoe or work boot, was along the bars, it would slip into the hopper and suffer the serious injury which contact with moving mechanism in there was liable to cause. 23 As it was, the failure to adhere both to the standards applicable, and to what in my view were elementary precautions in making the spaces between the bars narrow enough to preclude entry by a slipping foot were causes of the Plaintiff's injury for which Mrs Constable was liable. It was not suggested that any narrowing of the spaces of the nature just discussed would have interfered, certainly not interfered significantly, in the concrete pumping operation and in those circumstances, to leave the grate as it was, was negligent. 24 It was faintly argued that, had the Plaintiff proceeded against Mrs Constable in a motor vehicle claim, he would have been held to be guilty of contributory negligence. Attention was drawn to the obviousness of the danger, the warning in the Code of Practice, the Plaintiff's acknowledgment that he had knowledge of the provisions of the regulations and Mr Constable's evidence that the Plaintiff had been instructed not to stand on the grate. Having regard to all of this, and notwithstanding the imprecision in a deal of it so far as the current issue is concerned, I think the probability is that the Plaintiff had knowledge that it was regarded as undesirable that he stand on the grate, at least while the paddles were moving. Nevertheless I am satisfied that the Plaintiff was not, and would not have been held to be, guilty of contributory negligence. His actions in standing on the grate should, I think be regarded as those of "inadvertence, inattention or misjudgement" not amounting to contributory negligence – c.f. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310. The physical nature of the grate was such that a grown man could, with a modicum of care, stand on the grate without any likelihood of falling in. 25 Although as the result of the recent decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 a different conclusion might now be reached, there can be no doubt that in 1995 and 2000, the times with which I am principally concerned, the accident would have been regarded as occurring in the course of the "use and operation" of the vehicle – NRMA Insurance Limited v NSW Grain Corporation (1995) 22 MVR 317, Mercantile Mutual Insurance (Aust) Limited v Moulding (1995) 22 MVR 325 and the cases therein cited, and Allianz Australia Insurance Limited v GSF Australia Pty Limited [2003] NSWCA 174 and I am satisfied that had proceedings been instituted at the appropriate time by the Plaintiff against Mrs Constable for negligence he would have succeeded on the issue of liability and, subject to any question of repayment of Workers Compensation and other moneys refundable, have succeeded in obtaining a verdict. 26 It may be convenient to observe that my view of the Plaintiff's prospects of success on the issue of liability against Mrs Constable echoes that which Mr Dodd said that he formed very early in the piece. Mr Honeyman said that liability was not an issue in the minds of he and Mr Dodd. He certainly can speak for himself in that regard. The Documentary Records and Communications between the Plaintiff and Mr Honeyman – June 1994 to late 1995 27 Within a week of the accident, viz. on 10 June 1994, the Plaintiff's father made contact with Mr Honeyman, an employee of the Defendant firm of solicitors. Events that occurred during the ensuing months included the following. 28 On 14 June 1994, Mr Honeyman sent a brief to Mr Dodd inviting "any preliminary comments, advice or suggestions". Some such advice, particularly as to the obtaining of evidence, was given and implemented. Inter alia, and at least initially at the expense of the Defendant firm, a private investigator was engaged on 4 July. By letter of 11 July the private investigator, MDK and Associates reported. The report included a 39 paragraph statement from the Plaintiff, a report of a recorded interview with a civil engineer and a statement by a crane driver both of whom had been working at the site at the time. The record of the interview and the statement dealt with, inter alia and in moderate detail, the topic of the grate over the hopper, the spacing of the bars in it and the gap at the side of the grate. The report itself directed attention to a statement of the crane driver to the effect, "I suppose if the guarding was satisfactory, there is no way his leg could have gone in". 29 On 12 July, Mr Honeyman spoke to the Plaintiff. Mr Honeyman's file note includes the following:- "(The Plaintiff) said that Brian Rose from MMI had also contacted him just spelling out what would happen in regard to the claim. He indicated to our client that workers comp could be pursued for a maximum of $160,000 plus ongoing expenses or it might be possible for him to start another type of claim. I discussed these possibilities with Jason at some length and indicated that based on the prospect of Common Law claim it was necessary for us to consider each option carefully although we do not have to do this in a hurry." 30 Mr Honeyman also wrote to the Plaintiff seeking information as to names of doctors etc. and enclosing blank authorities for signature. These were received, and forwarded, monies for reports from the Westmead Hospital and Dr Wong forwarded and reports from these persons received. 31 On 15 September 1994, Mr Honeyman had a conference with the Plaintiff. Mr Honeyman's file note is in terms:- "In accord with handwritten notes taken particularly detailing work history. (sic) I indicated to Jason that it may well be that we have two causes of action, being workers compensation and common law for negligence against the employer and that we would discuss this further in conference with John Dodd of Counsel probably early in the new year. I gave him some advice as to how the system worked and indicated that any settlement on a common law claim if applicable would combine his workers compensation matter. If not settled, the matter could take approximately 3 maybe 4 years. Settlement itself or the hearing would depend on his stability in any event and that in turn would only occur once we had a clear economic picture of his future." 32 Following this Mr Honeyman made further contact with doctors and MMI who apparently were the Workers Compensation insurers of the Plaintiff's employers. On 5 October 1994 MMI wrote, referring to an entitlement under Section 66 of the Workers' Compensation Act. The letter enclosed a copy of a statement the Plaintiff had made to an MMI investigator and noted, as indeed an earlier file memo did, that Mr Honeyman was considering a Common Law claim against the CTP insurer of the vehicle, the registration number of which was given. The letter notes that such a claim would need to be made within 6 months of the date of the accident. 33 On 13 October, Mr Honeyman wrote to Mr Dodd referring to the preliminary brief still held, enclosing copies of the MDK & Associates report, the letter of 5 October and a copy of the statement supplied by MMI and seeking a conference "As to outlining the procedures under Section 66 and 67 and to discuss more fully the possibility of a Common Law claim and if so the matters to be attended to in regard thereto". 34 On 17 October 1994 a conference between the Plaintiff and Messrs Honeyman and Dodd was held when some further documents including a report of Dr Wong of 16 August and a Westmead Hospital report of 10 October were given to counsel. Mr Honeyman's handwritten notes of the conference include the following:- "1. Employer Robert Trevor Frederick Constable 3. Income $400-$600/wk pre accident. 4. Max rate $421.60 with 2 children & depend spouse ____ Robert drives one truck. Darryl Day drives other truck I think he's on about $800/wk. Other Coys: 1 W and D Mobile 2 East Coast …… Lodge M/Accidents claim" 35 Mr Honeyman's file also includes a typed "Memo to File" concerning the conference. That document includes the following:- "The claim raises a number of important issues which requires (sic) attention and John is to consider these and advise. If we proceed under Workers Comp it should be that Jason might get amount $160,000 plus ongoing weekly payments plus access to all medicals forever including any remedial or updated version of the artificial leg. However, if we elect to proceed under the Motor Accidents Act, firstly we have got to make that election by lodging a claim form within 6 months and once we do elect then our rights under Workers Comp could be limited. To proceed under that Act, we have to show that the accident happened in the course of or use or operation of a motor vehicle by the owner or driver and this could be a little difficult although could quite properly come under that Act. If so, Jason would roughly be entitled to about the same lump sum amount being about $160,000.00 or 2/3 or the worst possibly case through the maximum at present being $220,000.00 and would be entitled to an economic component which might not be all that great in that he will probably be able to find other work and would be limited to the difference between his current rate of pay and the work yet to be located in terms of his future economic loss. He would also receive a component for future medical but not unlimited ongoing medicals as under Workers Comp. His rights to future economic loss however would be a lump sum and might be a bigger package than would otherwise be available under W/C. The third possibility is that our client might have a common law claim for negligence on the employer's behalf for failing to maintain a safe system of work." (My emphasis) 36 Mr Dodd's notes of the conference include notes to the following effect. (It is difficult to reproduce the exact form or order of them):- " Economic $400 - $600 pw. Had just obtained 3B Licence to drive truck. More Money $900 - $1200 per week Darrell Day – driver of other truck Letter to RTA re missing 3A from employer (Subpoena personnel file) -------------------------------------------------------------------------------- Biggest W & D Mobile East Coast Concrete Pumping Comparables" 37 The Plaintiff, Mr Honeyman and Mr Dodd all gave oral evidence concerning this conference, and a second one between the three of them held in November 1995. The Plaintiff and Mr Honeyman also gave evidence as to conversations which did not involve Mr Dodd. However, I am satisfied that recollections were not all perfect in relation to all of these matters and it is convenient to concentrate initially on what the contemporaneous documents record and matters about which there was no disagreement before turning to the oral evidence. 38 That said, before departing far from the contemporaneous and almost contemporaneous notes of the conference, I draw attention to the differences between the notes of Mr Dodd and Mr Honeyman concerning the topic of earnings of the Plaintiff and others and to those parts of the "Memo to File" which suggest that a number of the components of any verdict in a motor vehicle claim might well not result in any significant sum of money over and above that recoverable in Workers' Compensation proceedings. 39 Following the conference Mr Honeyman continued with enquiries including to Dr Wong, MMI (as to the name of the Plaintiff's employer), and the RTA. He made no enquiries of or concerning W & D Mobile, East Coast, Darryl (or Darrell) Day or of Mr Constable as to the earnings that might have been or become available to the Plaintiff. 40 On 25 October 1994, MMI wrote to Mr Honeyman advising that the correct name of their insured was "Constable Bros Concrete Pumping". 41 On 4 November Mr Honeyman wrote to Mr Dodd enclosing a copy of Dr Wong's report of 26 October and saying that his recollection was Mr Dodd was to consider various aspect of the claim and discuss further and inviting a response. Handwritten notations on the copy of the letter in Mr Honeyman's file indicate that Mr Dodd responded. 42 On 15 November 1994, certificates under the Traffic Act and the Motor Accidents Act were sent by Mr Honeyman to Mr Dodd. 43 On 15 December 1994 Mr Dodd provided a formal advice directed primarily to the Plaintiff's Workers Compensation claim but including the following:- "The identity of the client's employer has yet to be established, although I note that the client has a recollection that his employer was Robert Trevor Fredrick Constable t/as Constable Bros Concrete Pumping. I note this is to be checked by reference to the client' s Group Certificates. In any event, the owner of the motor vehicle is recorded as Denise Anne Lynne Constable who is presumably not the client's employer, but may well be a member of a partnership who is indeed the client's employer. At this stage I suggest that Motor Accidents Act Claim Form be served on Denise Constable and AMP Insurance. This is a necessary precursor to any Motor Accidents Act litigation. … Before any lump sum compensation is accepted, it is essential for the identity of the client's employer to be properly ascertained to ensure that there is no suggestion of an election under Section 151A." 44 (AMP Insurance seems to have been the third party insurer of the concrete pumping truck.) 45 On 3 February Mr Honeyman sent a copy of this advice to the Plaintiff. 46 Between February and August 1995 Mr Honeyman had a number of communications with MMI, most relating to settlement of aspects of the Plaintiff's Workers Compensation claim. On 1 August 1995, Mr Honeyman wrote to MMI accepting an offer from that organisation but noting that at that stage no proceedings had as yet been commenced. 47 Implementation of the settlement took some time. The response to the letter of 1 August came from Messrs Sparke Helmore on 22 August saying that they were now instructed and advising that an Application would need to be filed and served and Terms of Settlement drafted, executed and filed. The Application was filed on 1 September. Terms of Settlement forwarded by Sparke Helmore on 8 September were filed and served on 12 or 13 September. On 13 October Mr Honeyman wrote to Sparke Helmore expressing the Plaintiff's concern at delay and asking for payment. By letter dated 24 October, Sparke Helmore sent a cheque in the sum of $161,666 broken down as follows:- · $88,020 in respect of a 90% loss of use of the left leg at or above the knee. · $6,126 interest on the section 66 amount. · $65,250 pursuant to section 67 for pain and suffering. · $2,270 being interest on half the section 67 amount. 48 During the first 9 months of so of 1995 there were also a number of conversations between Mr Honeyman and the Plaintiff. In January 1995 the Plaintiff had received notification from the Department of Veteran's Affairs advising him of an obligation to pay for treatment provided and on 5 February giving him an estimate of $89,973.38 for future prosthetic costs. That amount was calculated upon the basis of replacement every 2 years – 24 times - at a cost of $2,866 each time, and some costs for maintenance and socks. 49 On 6 February 1995 the Plaintiff rang Mr Honeyman about these letters, enquiring about progress and indicating that he was anxious to obtain some money. Mr Honeyman said that he would take steps to commence a Workers Compensation application for determination and indicated that that those proceedings might take up to six to nine months. 50 In a later call from Mr Honeyman and then a conference in March, the Plaintiff asserted that there was error in the estimate of future prosthetic costs, that in the calculation of the $89,973 the prosthesis costs were discounted, and said that once his claim was completed the cost would be about $15,000 per time. Multiplied by the 24 replacement occasions referred to in the Department's letter, this indicated a cost, which Mr Honeyman recorded as potentially $300,000. 51 On 11 April and 1 May 1995 the Plaintiff sought updated advice as to progress with MMI. On the latter occasion there was also some discussion concerning custody of the Plaintiff's children. A memo to file of 25 May indicates the Plaintiff called, received a progress report and "agreed that it would be better to wait a couple of weeks more to see if we can get a bit more money." 52 A memo of Mr Honeyman of 20 June records 2 conversations with the Plaintiff in one of which the latter was advised that Mr Honeyman thought it would be at least 2 months before anything positive would happen in terms of lump sum payments. 53 A file note of 4 July records that Mr Honeyman again phoned the Plaintiff concerning the negotiations with MMI and that the Plaintiff was willing to wait a further period. On 19 July, the Plaintiff phoned enquiring as to progress. File memos of 28 July and 1 August indicate that the dispute between the Plaintiff and MMI at that stage concerned an amount of $3,000, that Mr Dodd thought it not worth arguing over and that the Plaintiff agreed to accept the lesser amount. 54 On 30 August 1995 Mr Honeyman wrote to the Plaintiff, observing in relation to the Workers Compensation claim, "hopefully the matter can then be resolved without any further delay to you" and "please be assured however that we are, to the best of our own ability, protecting both your interests and attempting to have the matter resolved as quickly as reasonably possible". 55 It is apparent that during the period the plaintiff was also wishing to spend some of the money he was to receive. File notes of September reflect attempts by the Plaintiff to acquire motor vehicles in advance of receipt of the compensation moneys and Mr Honeyman communicating with 2 car dealers and one credit card provider on the Plaintiff's behalf. There seem to have been numerous phone calls with the Plaintiff and others in this connection. 56 During this period some attention was also being given to the possible Common Law claim. On 7 April, Mr Honeyman forwarded to the AMP the Plaintiff's Motor Accident Personal Injury Claim Form, noting that it has not been submitted within the statutory time, and saying that instructions had been obtained on 15 March to complete it. A file note of 30 March indicates that Mr Honeyman had previously spoken to Denise Constable concerning the contents of the Statement of Earnings in that document and one of 4 April refers to a phone call with the Plaintiff in this regard. In the Statement (or Certificate) of Earnings Denise Constable describes the Plaintiff's duties as "concrete pump linesman – trainee operator" and shows his average weekly earnings to have been $546.00 gross and $426.00 net. 57 In a letter of 30 August 1995 to the Plaintiff, Mr Honeyman enclosed a copy of a letter from the AMP which had been received on 10 August and which sought information additional to that which had been included in the Personal Injury Claim Form. On 31 August Mr Honeyman had a conference with the Plaintiff and advised that he could not take the claim against AMP further without information from the Plaintiff. On that occasion the Plaintiff advised Mr Honeyman of further health consequences of his accident, including the possibility of further operation. 58 Documents also indicate that Mr Dodd was being kept apprised of most matters. On 15 May copies of a letter from MMI of 5 May and an enclosed report from a Dr Ellliott were forwarded to Mr Dodd and on 22 May he apparently gave advice to Mr Honeyman concerning an offer contained in the MMI letter. 59 On 22 June Mr Honeyman again wrote to Mr Dodd seeking advice, apparently provided on 29 June and 28 July. 60 On 26 October 1995 there was a conference which included the Plaintiff Mr Honeyman and a loss assessor engaged on behalf of the AMP. On that occasion Mr Honeyman handed the Plaintiff the MMI cheque. A file memo recording that conference includes the following:- "Jason advised … that the day before the accident he received a letter from the RTA indicating that he can go straight onto a 3B licence which meant apparently he could drive the truck rather than be the linesman or offsider. He said therefore the pay would be between $900 and $1200 a week gross, rather than what he was receiving. … I gave (Jason) a brief rundown on the procedure under the Motor Accidents Act and indicated that it may well be that, especially as he has to repay the workers' comp component if we are successful at Common Law, that a claim may just not be worthwhile and he may be just better off on the workers' comp benefits scheme especially if we can make an application to increase that if we can show that he is entitled to a bigger income. I said that I would arrange to have him speak with John Dodd and me about that in the next few weeks. He was to arrange payment of the car today for which we gave an Irrevocable Authority and I pointed out to him that he would have to bill us (sic) for the work outside the Workers' Comp claim and would also ask that he provide and set aside some moneys in relation to the Common Law claim especially report fees etc and he said that would be fine." 61 On 27 October 1995 a "Brief to Advise on Quantum" was forwarded to Mr Dodd. In the observations Mr Honeyman remarked:- "Counsel's instructing solicitor has arranged a conference with Counsel to generally outline to our client the options now available to him if he is to continue with the CTP claim. We have explained to our client that from any CTP settlement will be deducted the workers' compensation payment and that it may well be that on the deductibles he would not receive any more for pain and suffering than that already received under the Workers' Compensation entitlement. Our client indicates that the day before the accident, he received from the RTA confirmation that he could apply direct for what is known as a 3B licence which apparently would enable him to drive the truck rather than act as linesman or offsider. The effect of this he said would enable him to obtain somewhere between $900 and $1200 per week gross. We would be obliged if Counsel could consider the figures with a view to advising in conference whether he sees it as of value to continue with the motor accidents claim and generally advising our client in regard to quantum." 62 In early November 1995, a more detailed request for information was received by Mr Honeyman from investigators acting on behalf of AMP Insurance and apparently forwarded to the Plaintiff. 63 A second conference between the Plaintiff, Mr Honeyman and Mr Dodd was held on 13 November 1995. The Plaintiff thought his girlfriend, Jenny Buck was also present but Messrs Dodd and Honeyman did not agree and I am not persuaded that she was. Mr Dodd's notes, made partly shortly before this conference and partly during it, make reference to the Workers Compensation lump sum of $161,666 being equivalent to 68.79% of a most extreme case under the Motor Accidents Act. They show a calculation of $234,000 apparently based on an amount of $300 (being $450 less $150) per week and the 5% tables for 40 years less 15% for vicissitudes, and a further calculation resulting in $429,000 derived from a sum of $550 (being $750 net less $200) per week. An arrow indicates some connection between one or both of the figures of $450 and $750 net to amounts of $900 to $1200. 64 There is reference to a "comp" rate of $364 net per week and some calculations showing the result of reducing a figure of $500 by amounts of $200 and $300. For all practical purposes nothing else appears on this document. 65 Mr Honeyman's file memo relating to the conference says simply:- "With view to consideration as to whether proceedings in Common Law should be continued having regard to settlement of Workers Compensation matters. Discussed in conference: 1. Need to obtain details as to the availability of work as a driver and rate of pay. 2. Details required of Jason's earnings. 3. Need to get group certificates of comparable employees with names blocked out from June 1994 to June 1995 in work as an operator. Jason suggested Eastcoast at Glossodia and W & D at Oakville. He says that W & D pay more and that Eastcoast only use a line pump. 4. John pointed out that if Jason redeemed his workers comp for a common law claim he would be out of the Social Security system probably for 5 years until he was about 30. 5. Jason said he still suffers anaemia and a back injury. He was seeing a Doctor at Westmead for anaemia but does not see him anymore." 66 Mr Honeyman wrote to the Plaintiff on 20 December 1995. In this document, Mr Honeyman refers to the conference and the letter continues:- "We note also our conference with you and Counsel, John Dodd, … We confirm that whilst we have commenced proceedings on the common law claim, we are not totally confident yet that the net amount and the benefits to be derived from the claim, if it continues, would outweigh what is already occurring. As advised to you in conference, any success in the Common Law proceedings would involve a redemption or payback of the workers compensation amount. It would also preclude you from obtaining social security for a substantial period, probably for 5 years or so. Any Common Law claim settlement would also require that any future ongoing medical costs would be borne by you personally. However, we had indicated that the claim is certainly worth considering further and for that purpose we intend to obtain comparable wage earnings for the two other employers, Eastcoast and W & D, noted by you. We recall that you were to provide to us details of their addresses and phone numbers so that we could pursue this and we would be much obliged if you could please follow this up and advise Nicole of this office as soon as possible." 67 (In evidence, Mr Honeyman explained that what he meant by "we have commenced proceedings" was that he had sent to the AMP the Plaintiff's Motor Accident Personal Injury Claim Form.) 68 In the letter Mr Honeyman went on to observe that the motor vehicle insurers were entitled to reasonable information pertaining to the claim and recommended that the Plaintiff provide the information that had been requested by the insurer's investigator. Legal Fees and Correspondence re Retainer Termination 69 On 27 October 1995, Mr Honeyman also sent to the Plaintiff an account. The correspondence from this time onwards deals both with the progress or possible progress of the Plaintiff's motor vehicle claim and payment of the Defendants' fees. 70 The account was for work described as unrelated to the Application for Determination in the Workers Compensation Commission amounting to $1,650 and a further sum of $2,000 for anticipated disbursements in relation to the motor accident claim. The account included a notation that any disbursements relating to the Workers Compensation claim which were disallowed would be billed separately. (An account for those fees had been sent to Messrs Sparke Helmore on 12 September.) It may be that there was a letter with this account of 27 October. Subsequent correspondence refers to one but there is not such a letter in the copy of the solicitor's file which was tendered. Also on 9 November 1995, according to a later letter of 19 February 1996, Mr Honeyman wrote to the Plaintiff but no letter of that date appears to be in evidence. 71 In his letter of 20 December 1995, other aspects of which I have quoted above, Mr Honeyman also recorded that the firm's account of 27 October totalling $3,650 was still outstanding notwithstanding a recollection that the Plaintiff was intending to arrange payment immediately after clearance of the MMI cheque and asked for payment by return. 72 On 12 January 1996, Mr Honeyman wrote again asking the Plaintiff to telephone to discuss the previous letters of 27 October and 20 December. 73 On 15 February 1996 Mr Honeyman spoke to the Plaintiff. The file note recording this conversation reads:- "Telephone call to Jason. Finally with some success on 15 February 1996 he confirmed he was still living at William Street, Richmond but that he had received no mail whatever from us. I expressed surprise of this and asked how I could guarantee some mail might be forwarded so that it would be received and we agreed that I would send it to his mother's address at Bathurst Street within the next day or two. I asked that he keep a note that if nothing had arrived by next Wednesday, 21 February, he was to telephone me so that we can yet make further arrangements." 74 On 19 February 1996 Mr Honeyman wrote forwarding copies of letters of 27 October, 9 November, 20 December and 12 January. In the letter the Plaintiff was asked to consider all the previous correspondence carefully and, given the period which had intervened, to pay the outstanding account. Mr Honeyman also said:- "It particularly concerns us that we have been formerly (sic) unable to commence proceedings in regard to the possible Common Law claim until we receive the information requested in our attached letters." 75 On 28 February Mr Honeyman wrote again asking the Plaintiff to contact him urgently if the Plaintiff was having any difficulties in regard to payment of fees or dealing with the correspondence previously forwarded. Mr Honeyman also said, "your claim is otherwise being jeopardised". 76 On 5 March Mr Honeyman spoke by telephone to the Plaintiff. According to Mr Honeyman's file note, the Plaintiff said that he only got the paperwork "yesterday". 77 On 7 March the Plaintiff, and Mr Honeyman had a further conference. Jenny Buck was present. Mr Honeyman's file note includes the following:- "Client appeared to have a vague recollection of matters previously discussed in conference with Counsel so I went through those again. Spelling out income detail the options available in regard to the future carriage of this matter. I confirmed that it could simply stay as it is and he could stay on the workers compensation system or we could consider formally commencing proceedings and I reminded him of the time limits for commencement of those proceedings and confirmed that from any settlement or order the amount paid for workers compensation moneys would be deducted. I had fears about his handling the monies paid to him when he gave me explanations as to what had happened to him over the last 5 or 6 months. He said he had basically gone feral and gone off the air. He did not offer any further explanation so I did not seek it, although I get the view he may have been mixing with a group of people who had befriended him as a result of his obtaining the money. He said he had lent a substantial amount of the money to "friends" but I shouldn't worry about that because he had "got it down in writing and it was all legal". That concerned me a great deal but he appeared not to wish to discuss that any further. He indicated that he had been to Queensland for some time, had brought a Stingray Corvette car for $28,000. It had blown up on the way back from Queensland and he had it towed to Sydney. He spent about $8,000 getting the motor repaired and also brought (sic) a number of other things. It concerned me and I expressed my concern that if we did commence common law proceedings and he did receive further money, then it was quite likely the same situation would arise again. Whereas at least with the workers compensation proceedings he is in effect protected from himself because he is on the system which would pay expenses and compensation as it falls due. If common law claim is successful and he received a further lump sum, I have fears that it might disappear quite quickly. He promised certain things as set out in my letter today to him. 78 On 11 March 1996 Mr Honeyman wrote again, saying inter alia:- "We note that you have not yet completed the questionnaire from the representative of the insurer… We note you were also to check with the RTA to establish whether it has a record … which confirmed that you could proceed to a 3B truck licence… We note you also have a copy of our account of 27 October 1995 and have indicated also that you will arrange payment by the 13th inst. … It will be necessary for us to carry out substantial further work shortly in relation to the possibility of a common law claim and confirm we are unable to do so without receiving funds for the work previously carried out. We note that if proceedings are to be considered, then it will be necessary to formally commence those this month. Proceedings would otherwise be out of time. The Court Rules prevent us from commencing proceedings until we have undertaken all steps to co-operate with the insurer in relation to answering particulars. …" 79 On 20 March, on behalf of the Plaintiff, Jenny Buck faxed to Mr Honeyman answers to most of the 79 questions posed by AMP Insurance's investigators. 80 On 25 March Mr Honeyman wrote again to the Plaintiff advising of a number of unsuccessful attempts to contact the Plaintiff to obtain answers to some of the questions left unanswered by Ms Buck and advising that those questions seemed to have been reasonably made and important. The letter included the following:- "We confirm our advice to both of you in conference on 7 March and to Jason previously that the insurer has the right to seek answers to reasonable questions and if these are not provided then we cannot commence proceedings. The Motor Accident Act provides for this quite clearly. If the proceedings are not commenced by 7 April next you are technically out of time and an explanation has to be given to the Court as to why delay occurred. It is quite possible that they would not be reasonable in which case the proceedings would not be allowed to continue. You can appreciate the writer is concerned of this possibility and to spell it out very clearly to you the matters as they stand. The writer has now on a number of occasions requested payment of our account which is now 5 months in arrears. We note in a conference with you and Jenny on 7 March that you indicated that you would arrange payment by the 13th. We simply cannot proceed to fund the matter to the extent that has been required especially as a considerable sum has already been paid to you in relation to the workers compensation claim such that you should be in funds to assist with out-of-pocket expenses in relation to this proposed claim and payment of the account in relation to the workers compensation matter previously rendered to you. We enclose draft Statement of Claim showing particulars. Would you please also carefully check the draft and indicate to us whether you wish any alterations to any part of it. Your advice by urgent return telephone would be appreciated. It is imperative that you provide us with:- 1. Payment of our costs as mentioned previously, and 2. Answers to the questions set out above. Unless these are provided we cannot commence proceedings. If we do not commence proceedings within the due time we confirm the risks to your claim as also set out above." 81 On 15 April Mr Honeyman wrote to investigators acting on behalf of the AMP providing answers to all but about 12 of the 79 questions which had been asked. Apart from changing "to be answered" to "to be advised" the answers supplied to the AMP were for all practical purposes identical with those supplied by Ms Buck. 82 On 26 April 1996 Mr Honeyman had a telephone conversation with Ms Buck. His file note includes the following:- "(Ms Buck) said that she and Jason separated at around Christmas although they still speak to each other and she has seen him from time to time. She said that one of our letters she noticed was still in his car unopened about 2 weeks after he picked it up. I suggested that perhaps part of Jason's problem is that he didn't want to come to the reality of what had happened or could not and that any correspondence or approach from me brings the accident back home to him. She said that this could well be the situation… I said that I had prepared a letter to send to Jason in effect terminating instructions. She said in that regard that Jason was fully appreciative of everything that we had done and that she knew that he was very happy with me and with our firm… She suggested that she contact him within the next week or so and have a further discussion about his obligations. I said I would agree to this for a week or so… 83 A letter in Exhibit Q seems to be the letter referred to in the phone call. It is in similar terms to one sent on 10 May but bears 2 handwritten lines drawn more or less vertically through it. 84 The letter of 10 May included the following:- "We regret that we can no longer act for you unless you are in a position to let us have instructions as required. Unless we hear from you to the contrary within 10 days from today, we intend to formally terminate instructions… We have drafted statement of claim but are unable to formally file it until we obtain your instructions to so do… In the meantime, we enclose actual account for fees incurred to date and irrespective of whether we continue to act on your behalf, we ask that you let us have payment on or before Friday 24 May next. We confirm any claim you may have in relation to the Motor Accidents Act may be further prejudiced or jeopardised by your continued failing to provide instructions…" 85 The account enclosed was for a total sum of $6,439 made up of $1,650 "costs pursuant to detailed analysis – 27.10.95", $964 for disbursements and $3,825 described as:- "To our costs subsequent (to 27.10.95) as documented by correspondence to you, to insurer's investigator, including conference with you and investigator, provision of statement, updates with you, insurer and investigator, substantive brief to Counsel, arrangements for conference, attending with you and Counsel Sydney conference, advice to you thereafter, formulating comparable wages, letters to comparable employers, discussions and updates with you and Jenny – 25.5 hours - $150.00 per hour." 86 In evidence Mr Honeyman conceded that in fact he had not formulated comparable wages, and not written letters to comparable employers and that charges for this work should not have been made. 87 On 18 June 1996 Mr Honeyman wrote again. He noted he had not received any reply or response to his letter of 10 May and observed:- "Based on our not receiving any reply whatever, I take the formal view that we are not to continue in any way with the claim and I wish to record that with you now formally." 88 After a somewhat detailed explanation of his stance, in the letter Mr Honeyman also advised:- "Regrettably if payment is not made, the writer will withdraw from carriage of the matter and enforce (sic) proceedings (for costs) will be commenced." 89 The letter of 18 June 1996 was returned to sender. The October 1994 and November 1995 conferences - Plaintiff 90 Asked what advice he was given in the first conference with Counsel, the Plaintiff said "pretty much the same as I was told by Mr Honeyman". In this answer he was referring to an earlier one to the effect that his first advice from Mr Honeyman was that he was entitled to a Workers Compensation lump sum "or" – the Plaintiff's word – a motor vehicle accident payout. At that earlier time the Plaintiff told Mr Honeyman to proceed with both. 91 The Plaintiff agreed at that conference Mr Dodd said words to the effect of "Let's see what we can get under the Workers Compensation Act first", get things started for a claim under the Motor Accidents Act, and then decide whether to pursue the Motor Accidents Act claim. The Plaintiff understood that there was a possibility of a Motor Accident Act claim after he had received Workers Compensation and that receipt of the compensation first did not stop him bringing a motor accident or negligence claim although he also said that he was told that he couldn't have both. The Plaintiff was conscious of Mr Dodd also having identified the need to get further information. 92 Still dealing with the October 1994 conference, the Plaintiff said that he had been advised by both Mr Honeyman and counsel that he would be better off to stay with his Workers Compensation and he was given figures "something like $250 to $400, I would have had to pay back $160,000 out roughly". I have no doubt in this answer the Plaintiff was confusing the first and second conference with Mr Dodd. 93 Asked what was said at the second conference the Plaintiff said that he was advised by both Mr Honeyman and counsel and the advice given was:- "I was better off to stay with workers comp, because I could lose it. … He had figures written down. … it was more or less – if I went for it and lost it, I would lose everything." 94 The Plaintiff said he saw the figures written down and identified what were clearly established to be Mr Dodd's notes to which I have referred above. 95 The Plaintiff said that the 250 and the 400 – he was obviously talking of thousands – may not have been the exact figures but were close. He said he was also advised that he would receive no more for pain and suffering than he had already received. According to the Plaintiff:- "Mr Dodd said, if I took the matter to a civil court, win or lose, if I won I would have to pay back my lump sum, I would not get my weekly pay or my medical bills, I had already been paid for pain and suffering, so there was none of that, I think because my wages had been covered by workers comp, there was no back pay, I could go for loss of earnings, I am pretty sure." 96 The Plaintiff said he told the lawyers to look into his wages, that he had just received a letter from the RTA about a 3B truck licence and in a couple of weeks his pay would have gone up to between $900 and $1200 per week. According to the Plaintiff Mr Dodd was somewhat unbelieving about those figures and the Plaintiff told him he could look into it by ringing Robert Constable or a couple of other concrete companies. The Plaintiff said he remembered Mr Dodd asking him about other workers who would be doing the job the Plaintiff would have done if he had a 3B licence and said he provided the names on that day. 97 The Plaintiff agreed that Mr Dodd said to supply Mr Honeyman with details of the persons earning the higher income which the Plaintiff said he could earn with a truck licence so that Mr Honeyman could contact W & D Mobile and East Coast, the employers of these people and get details of their earnings. The Plaintiff understood that the further material from these other employers had to be obtained to ensure that there was a proper basis for making a claim for the larger sum of money. 98 The Plaintiff agreed that the purpose of the second conference with Mr Dodd was to see what could be done to advance the motor accidents claim, what information should be obtained to get the claim under way and if the information was not already available to follow it up. The Plaintiff also understood that a purpose of the conference was to see whether he should stay with his Workers Compensation rights. 99 The Plaintiff denied that during the course of the second conference that Mr Dodd was setting out for the Plaintiff an assessment of parts of the value of his case. The Plaintiff did understand Mr Dodd was trying to make an assessment about whether it was appropriate to bring a motor accidents claim, that Mr Dodd needed information from the Plaintiff to assist in that task and also information from other people. The Plaintiff also understood that at the end of the conference further information had yet to be obtained. 100 Taken during cross-examination to matters in detail, the Plaintiff said he could not recall whether Mr Dodd had told him at this conference that he was entitled to money for pain and suffering. The Plaintiff did recall Mr Dodd saying that if he were to get money for pain and suffering it was about the equivalent of what he had already received from Workers Compensation amount of $161,666. 101 The Plaintiff agreed there was discussion about past loss of income and Mr Dodd saying words to the effect that that was effectively a nil gain. There was a difference but it was a minimal one (between any amount to be awarded at Common Law and pre-award Workers Compensation). 102 The Plaintiff agreed that the next topic discussed was future economic loss and there was discussion about the fact the Plaintiff might have received $450.00 net per week before the accident and that some assumption had to be made about what he might still be able to earn. The Plaintiff did not recall mention of $150 per week in that regard but did recall Mr Dodd saying words to the effect "that leaves you with a net loss of $300 per week". The Plaintiff agreed that Mr Dodd had said words to the effect:- "If we take $300 per week for the balance of your working life and apply the formula with a 5 per cent multiplier, and then we reduce that figure by 15 per cent for uncertainties" - what he might have referred to as vicissitudes - "then the approximate figure you could receive for future economic loss, if you are successful in the motor accidents claim, is $234,000"? 103 The Plaintiff agreed that he understood the figure of $234,000 was based on assumptions that he was receiving $450 per week net, and that he could still do some work. He also understood that some reduction had to be made to account for uncertainties of life and that the figure of $234,000 was for his potential future economic loss. The Plaintiff had no recall of Mr Dodd mentioning figures of 20 or 25% for vicissitudes. 104 The Plaintiff also recalled Mr Dodd having referred to an assumption that the Plaintiff could earn $200 per week and on that basis would have a loss of $550 per week after tax. Allowing for vicissitudes, if the Plaintiff was successful in his motor vehicle claim, then the figure for future loss of earnings would be $429,000. 105 The Plaintiff agreed that he understood that when Mr Dodd, made the calculation to reach the figure of $234,000 that was based on, in part, the income the Plaintiff had been receiving or may have been receiving had he continued to work for Constables and that the higher figure of $429,000 was based in part on what the Plaintiff hoped to receive if he could earn what the people at East Coast and W&D were earning. In another answer the Plaintiff agreed that he had understood that the calculations Mr Dodd had made were calculations based on the Plaintiff's future loss of income. 106 However the Plaintiff would not agree that it was his understanding during that conference that the figures of $234,000 and the second figure of $429,000 were amounts for (only) future loss of income. When asked, "It was the loss of income that you might have received from working in the future?" the Plaintiff replied:- "Not loss of income, that's what I would have got full stop. You say loss of income and that's not what he said. He said that's what I would get in court full stop. No medical bills, no nothing." 107 Challenged on that last answer, the Plaintiff was adamant that he was not told that if he succeeded in a motor vehicle claim, an allowance (over and above the $234,000, $429,000 or other amount similarly calculated) would be made for the cost of prostheses and other medical expenses. 108 On the other hand the Plaintiff did understand that if he remained on Workers Compensation the amount of that would vary depending on how much he earned and how many children he had but that he could keep his entitlement to medical expenses. 109 Asked whether he recalled that Mr Dodd had said that if this larger claim for future loss of income can be substantiated or made out, it would be better to pursue a motor accidents claim because you'd be around $200,000 ahead, the Plaintiff said "No". 110 The Plaintiff gave evidence that during the course of the conference Mr Honeyman did not say much but was agreeing with what Mr Dodd said. Also it was during this conference that the Plaintiff formed the view that Mr Honeyman was not doing his job and had shown a lack of care for the Plaintiff's motor accident claim. The October 1994 and November 1995 conferences – Mr Dodd 111 Mr Dodd said that prior to the start of the conference on 17 October 1994, he reviewed the papers he had and, based upon reading in the investigation report about the dimensions of the grate over the hopper, formed the view that, in addition to his Workers Compensation rights, the Plaintiff had a good Common Law cause of action, the only question regarding that claim being whether it was an industrial accident or a motor accident, a distinction which had implications as far as the election provisions in the Workers Compensation Act were concerned. If an industrial accident, acceptance of lump sum compensation precluded a Common Law claim against the employer. 112 During the conference Mr Dodd received personal information about the Plaintiff, his pre-accident activities, employment history and some intentions for the future. Notes and sketches made by Mr Dodd also indicate discussion about the circumstances of the accident and consideration of possibly applicable or analogous regulatory provisions. There was discussion as to the identity of the Plaintiff's employer, group certificates and Mr Dodd told Mr Honeyman that statutory certificates under ss12 and 36 of the Roads and Traffic Act were needed. 113 Mr Dodd was told that the Plaintiff's pre-injury usual rate of pay was between $400 and $600 a week but that the Plaintiff had just obtained his 3B licence to drive a truck, which would result in him earning more money, somewhere in the order of $900 to $1,200 a week. A Mr Darryl Day was nominated as the driver of a second truck run by the Plaintiff's employer. 114 Mr Dodd asked if there was work available from other employers and the Plaintiff told him that the biggest operator in the concrete pumping industry was W & D Mobile, and there was another company called East Coast. Mr Dodd made a note "comparables", intended to indicate the need to obtain comparable earning figures from those employers. 115 Mr Dodd advised that there should be set in train, firstly, the claim for lump sum benefits under ss66 and 67 of the Workers Compensation Act for the loss of use of his leg and pain and suffering and for interest under that Act. Mr Dodd told the Plaintiff that he had a good Common Law case and that very soon a claim form under the Motor Accidents Act should be filed to set that in train as well, and then they should reassess as the matter progressed with the Workers Compensation claim as to which way to go. 116 Mr Dodd said that either the Plaintiff or Mr Honeyman was to obtain the group certificates from the employer, and that Mr Honeyman was to obtain the sections 12 and 36 certificates. Although the answer was not completely clear, Mr Dodd seemed to say that Mr Honeyman was also to make inquiries about potential earnings from other employers. Under cross-examination Mr Dodd also said that he was not sure whether he had suggested Mr Honeyman make these enquiries, adding that Mr Honeyman was taking notes throughout the conference and that usually the latter would take notes and follow things up. 117 Mr Dodd said that the point of the November 1995 conference was to discuss what needed to be done, and whether to thereafter proceed with a claim under the Motor Accidents Act. At the beginning he told the Plaintiff that "The reason why we are here is now that you've got your Workers Compensation lump sums, to work out which is the best way to go, and whether to bring a motor accidents claim". 118 Prior to the conference commencing Mr Dodd calculated and noted that the $161,666 the Plaintiff had received by way of lump sum Workers compensation payments was equivalent to 68.79% of a most extreme case under the Motor Accidents Act. There was discussion about this, Mr Dodd saying that he considered that the Plaintiff's non-economic loss in his motor accidents claim would be assessed at about that amount in the order of two-thirds to 70 per cent in the most extreme case. Therefore, there was little difference between what he received and what he could potentially receive in the motor accidents claim for non-economic loss components. Mr Dodd made no calculation of interest on this head of damage because of the statutory provision precluding it. 119 Mr Dodd then said to the Plaintiff that he had received compensation benefits to date and that they would largely contra his entitlement to past economic loss. Later Mr Dodd said that he had told the Plaintiff that there was a nil or minimal gain. It was inconsequential to Mr Dodd, there being nothing that would make a difference in the decision-making that the Plaintiff would eventually have to undertake. 120 Referring to exhibit E, his handwritten notes of this conference, Mr Dodd said that he produced the earning capacity figures in front of the Plaintiff telling the latter that, so far as future economic loss was concerned, his comparable earnings were 450 a week, he had a residual capacity to earn 150, that would lead to a differential of 300 and that on the 5 per cent tables for the 40 years left of his working life, with 15 per cent for vicissitudes, that was equal to $234,000. He also told the Plaintiff that the "standard model deduction for vicissitudes was 15% but over such a long period of 40 years a judge might deduct up to 20 to 25 per cent". 121 Mr Arnold again raised having obtained his 3B truck licence. Mr Dodd told the Plaintiff that assuming that what he said was correct and that his probable weekly earnings, but for injury, were $900 to $1,200 gross per week, that led to a net figure of $750 per week, less a residual earning capacity of $200 a week gave a differential of $550 and on the same basis of the 5 per cent tables, et cetera, would lead to a future economic loss component of $429,000. Mr Dodd said that during these calculations and remarks he was using a calculator and a Furcer Crestani actuarial reference document containing multiplying factors, tax and interest rates and like information. The $750, according to Mr Dodd corresponded approximately to $1,100 per week gross. 122 Mr Dodd said that he told the Plaintiff that "if we are able to substantiate (those figures) then there would be no question of bringing a Motor Accidents Act claim because for the extra 200,000 if he happened to give something away by way of finalising his entitlement to medical expenses by settling his Motor Accidents claim, then was still a couple of hundred thousand ahead". 123 Mr Dodd also noted that the Plaintiff's compensation rate at the time, after tax, was $364 net per week. He also "told Mr Arnold further regarding medical expenses that he had been paid all those to date and they would have to go back to the Workers Comp insurer. And regarding future expenses he would get an allowance for those in the Motor Accidents claim, and once that claim came to an end then he would be on his own". 124 Mr Dodd said that, although he had not noted the matter he specifically recalled that in response the Plaintiff said "That's no good. If my prosthesis (or leg) gets wet it warps and needs to be replaced and costs $9,000 a time." During the conference the Plaintiff became agitated about this topic. 125 In the conference Mr Dodd told the Plaintiff that if he stayed in the Workers Compensation system he would be entitled to have his medical expenses met when they occurred until he dropped dead. One option was to proceed with his Motor Accidents claim, to bring his rights to an end and get an allowance for any future medical expenses, and another option was to stay in the Workers Compensation system and get his medical expenses met from time to time as they arose. 126 Mr Dodd went on to explain the Plaintiff's entitlement to weekly compensation payments as he saw them, referring to a gross rate of pay of $500 a week, possible earnings of $200 and $300 a week and the effect to such amounts on compensation, this situation continuing until the Plaintiff turned 66 but also subject to how many wives and children the Plaintiff had. 127 Mr Dodd said that because he still didn't have the comparable earnings details he specifically gave Mr Honeyman a list of inquiries to make, including the Plaintiff's earnings details from working for Constable Bros, the earnings details of the other employees working as truck drivers for W&D and East Coast, and some information about the availability of such work. He agreed he had heard Mr Honeyman say to Mr Arnold words to the effect, "We'll need the group certificates from your mates. Come back with those and the 3B letters" but added that he, i.e. Mr Dodd "also gave Mr Honeyman the points that I'd mentioned for him to follow up – that is, to make the inquiries direct". Mr Dodd gave evidence that he had said that when these were obtained, he could fully advise, he anticipated, probably early in the New Year. 128 He did not suggest to Mr Honeyman that he ought to get him material from the supplier of the plaintiff's prosthetic device as, he said, he already had information from the then supplier, the Repatriation Department of the Commonwealth. He said that his recollection was they had actually carried out a calculation of future supply and his recollection was up to $89,000, although he wasn't completely satisfied with the way the figures were calculated. However the figure provided some idea. Later he said that the "$98,000" (sic) wasn't much at all compared with his Workers Compensation rights (I infer, in respect of medical expenses). Mr Dodd did not detail the basis of his dissatisfaction with the method of calculation. 129 Mr Dodd said that he did not give any information or advice about the quantum of superannuation entitlements because that's very much dependent upon the extent of the economic loss and not knowing what the economic loss was, he couldn't work out the superannuation entitlements. According to Mr Dodd, for practical purposes the allowance for superannuation would be 9 or 10 per cent of the economic loss. 130 Mr Dodd also gave no advice as to potential entitlement to benefits pursuant to Griffiths v Kirkmeyer (1977) 139 CLR 161, there being no indication that there was any need for domestic assistance and also because of the threshold under s72 of the Motor Accidents Act. Nor did Mr Dodd give any information and advice to Mr Arnold about entitlements pursuant to Fox v Wood (1981) 148 CLR 438because they were talking about only 18 months post-injury, he didn't have any Workers Compensation list of payments, the Plaintiff would have been paid his award rate of pay for the first six months and the compensation rate with a wife and two children thereafter and thus the amount would be minimal, particularly compared with the figures for non-economic loss, future economic loss, and future medical expenses. Challenged, Mr Dodd retreated somewhat from the proposition that he did not have information as to the weekly amount of compensation. 131 Mr Dodd did tell the Plaintiff that if he settled his motor vehicle claim then he would be excluded from social security benefits for about five years. Mr Dodd also said that he remembered saying words to Mr Arnold, "You have prospects of a good chance, at least a couple of hundred thousand dollars better" in terms of his economic loss. 132 Mr Dodd denied telling the Plaintiff that if he commenced proceedings to claim Common Law damages and he lost those proceedings, he would lose everything, including his right to ongoing weekly payments of Workers Compensation benefits. Although agreeing that he had told the Plaintiff that his claim was worth in the range of $200,000 to $400,000 regarding future economic loss, Mr Dodd denied saying that was the value of the claim overall. Mr Dodd denied advising Mr Arnold that he would be better off retaining his Workers Compensation rights and did not advise him that he should or should not pursue a motor accidents claim. 133 Mr Dodd said that he didn't even give a preliminary view as to how the matter was to proceed. That is, it was a series of calculations which would then lead to further inquiries and then he could actually express a view. He had given such a range for, for example, the future economic loss. 134 Mr Dodd said that the reason he didn't advise the Plaintiff during the course of that second conference as to why he should or should not pursue a motor accidents claim or stay on Workers Compensation was because he had been asked to advise as to quantum, and simply didn't have the information available to fully advise, so that Mr Arnold could then make an informed decision and give instructions. Mr Dodd said that the missing information was primarily the wage information from other employers and their workers and the availability of such work 135 Mr Dodd said that if the information had come up at a $400,000 figure for future economic loss, then there would be strong advice from him to pursue such a claim but at the lower figure it would be up to the Plaintiff which way he wanted to go. 136 Challenged, Mr Dodd accepted that he could have advised the Plaintiff on the basis of the information he was given but said that that would have resulted in a wide variety of potential outcomes. 137 Mr Dodd said that he could not recall any discussion of the possibility of losing a Common Law case and the Plaintiff having to pay the other side's costs. This was because the possibility of losing wasn't realistic. 138 Asked whether he had directed attention to the topic of how well or badly the Plaintiff was coping with his artificial leg, Mr Dodd said that it was discussed, but he could not recall the detail and had obviously not made a note of it. Mr Dodd said that the Plaintiff raised the problems of it having to be replaced and that when the leg became wet it warped, which meant he couldn't walk probably and therefore it had to get replaced each time. As regard the interaction between the socket and his stump, Mr Dodd said that he could not recall one way or the other. 139 Asked would not the topic of the interaction between the stump and the artificial leg have been significant in terms of his future earning capacity, or his residual earning capacity, Mr Dodd said:- "Not particularly, in my mind, because anyone with an artificial limb is always thinking about sit-down jobs in any event. That is, you can't say, "Well, you have got an artificial leg, therefore you can walk around, you would be able to do a job that involves walking around", because it's always the case that people have problems with their stump and interaction with the socket. But in terms of sitting down-type jobs, or working in factories or driving a truck, depending on which foot you are using for what, then as to whether you are having one problem or the other, as far as your stump is concerned, usually doesn't make much of a difference. But we're talking about something that is, if I can put it, down the track. That is, we weren't making any decisions at this stage as opposed to a firm decision to get the information as to which way to go." 140 Asked whether the question of the real value of future medical expenses was something that needed to be looked at, Mr Dodd said, "Yes, eventually." 141 After that second conference, Mr Honeyman never contacted Mr Dodd to discuss Mr Arnold's claim. The October 1994 and November 1995 Conferences – Mr Honeyman 142 Mr Honeyman said that he had only a general recollection of what was discussed at the conference on 17 October 1994, but the thrust was that Mr Dodd went through the figures and time limitations, how to proceed with a Workers Comp claim and the alternatives of a Motor Accidents and employer claim. There was discussion regarding the lodging of a claim form pursuant to the Motor Accidents Act, of the need to show some negligence on behalf of the employer, or on behalf of the owner of the motor vehicle. There a discussion about the benefits that would be received under the Workers Compensation Act including all medical costs, prostheses costs, weekly payments and in respect of the lump sums under the sections of the Act which gave rise to lump sum payments and about how to go about making claims under sections 66 and 67 of the Workers Compensation Act. Mr Dodd particularly made reference to the fact that if he proceeded or if a motor accidents claim was to be considered that he would probably be getting roughly about the same component for general damages as he calculated he would probably get under the ss66 and 67 system for Workers Comp. 143 Mr Honeyman also agreed that at this conference Mr Dodd had advised that the Plaintiff's economic loss component might not be all that great because he probably would be able to find other work. 144 Originally Mr Honeyman said that he was sure that in this conference the Plaintiff did not advise that he had obtained his 3B licence, or a right to obtain it although later he said that he could not deny this occurred. Nor could he deny that the Plaintiff said that he could have earned $900 to $1,200 per week. Mr Honeyman could not recall whether the Plaintiff gave the name of Darryl Day as a comparable employee or whether the Plaintiff mentioned the name of other organisations that could be inquired of to ascertain earnings of people doing comparable work. 145 Asked his memory of the second conference, Mr Honeyman said that Mr Dodd spoke about the differences between staying on Workers Comp and getting on to a Motor Accidents claim, and when in the course of going through figures and doing comparables, Mr Dodd said to the Plaintiff words to the effect that "If you proceed with a Common Law claim, then there will be an allowance for your medicals, but if you stay on Workers Comp you will be covered until you drop dead, on medicals, so your prostheses, be it that they go up and improve and cost more money over the period of your life, everything will be covered 100 per cent under Workers Comp." 146 Mr Honeyman could not remember any discussion about the Motor Accidents claim not succeeding or what would occur in that eventuality. 147 There was discussion that in the event that he proceeded with and obtained money under the Motor Accident claim, he'd have to repay his Workers Comp and he'd be out of the system for a period of time, Mr Honeyman thought Mr Dodd mentioned about five years or so in this connection so far as an economic component was concerned. 148 According to Mr Honeyman, the Plaintiff "expressed a real concern at that time that he didn't want to be in a position where he'd have to pay out, I think, $9,000 or whatever at a time for a new prosthesis. He did express genuine concern about the possibility that might happen to him". 149 In cross-examination Mr Honeyman agreed that an account Mr Dodd had given as to the conference in November 1995 was accurate. That account became Exhibit 4 and after reciting conversations dealing with future earnings and the calculation of the sums of the $234,000 and $429,000 figures and the consequences of receipt of income in addition to Workers Compensation, the document recounted the following:- Dodd: "If you're successful in a Motor Accidents Act claim, you'll receive a lump sum for future medical expenses, and then you're on your own." Arnold: "That's no good, my prosthetic leg costs $9,000 a time. If it gets wet, it warps, and I need to get it replaced." Dodd: "Well, if you stay with workers comp, you will get a replacement prosthesis until you drop dead." Dodd: "If you run a Motor Accidents claim an allowance will be made in that claim for the costs of these items. If you stay in the Workers Compensation system those items will be paid for when you need them. If you run a motor accidents claim you will not be entitled to receive Social Services for about 5 years." 150 Mr Honeyman agreed that a purpose of the second conference was to assess and consider so far as could be done whether it was worthwhile pursuing a Common Law claim, particularly in light of the information that the Plaintiff would have had a 3B licence and that meant higher pay. 151 Mr Honeyman said that the Plaintiff was told that whatever he got for past economic loss would effectively be cancelled out by what he had already received by way of weekly payments. The Plaintiff was also told non-economic loss was not a real benefit because it equalled what he's already received. 152 In cross-examination Mr Honeyman agreed that the Plaintiff was not told anything about past or future loss of superannuation, not told anything about Fox v Wood component of damages, and not told anything about Griffiths v Kirkmeyer damages. 153 Mr Honeyman agreed that the Plaintiff was given examples of $234,000 and $400,000 and told he could be off social services for some years. Mr Honeyman agreed that the Plaintiff was not given any other advice about any other lump sum that would come into his pocket. Future economic loss was discussed and future medicals were "generally discussed" but no figure for future out-of-pocket expenses was mentioned. 154 Mr Honeyman agreed that the Plaintiff was told that if he took the Common Law claim, he would lose all his Workers Compensation benefits and that he could get Social Service benefits (only) after about five years. 155 Mr Honeyman would not agree that when the Plaintiff left the conference and, assuming he understood what he had been told, he would have understood that if he brought a Common Law claim, he could get $200,000 to $400,000 plus either nothing, because he hadn't been told anything about it, or an unknown amount for future out of pocket expenses, and he would lose all his compensation benefits. Mr Honeyman gave as some explanation for his rejection of the proposition that things mentioned weren't finalised: They were intended to form part of a third conference, once we "set up his economic loss", i.e. once exact details had been obtained of the matters Mr Dodd sought. 156 He said that he thought liability was discussed in the second conference in that Mr Dodd said that "We'll get up on liability". There was also talk about whether there was a small amount for contributory negligence. Mr Honeyman said that liability was not an issue in their minds at the time. 157 Mr Honeyman recalled that the Plaintiff did become agitated at one point during the conference. Asked what it was that appeared to irritate the Plaintiff Mr Honeyman said that no amount of discussion of money seemed to appease him. He seemed to have the view that the claim was worth millions of dollars, and he became irritated that the amounts being discussed in the eyes of both jurisdictions (sic) were going to be less than that. Mr Honeyman later said that the Plaintiff never said what he thought the claim was worth, other than he had a conception of it being considerably greater than the figures that were discussed by Mr Dodd. That was the "millions" to which Mr Honeyman had earlier referred. 158 Later there came into evidence a further statement of Mr Honeyman in which he said that when giving evidence he was, for reasons which I may describe as of a personal nature, finding it difficult emotionally and had since reflected on evidence he had given. In this statement, which became Exhibit 15, he said that he had a memory that when the Plaintiff first became agitated Mr Dodd said to him words to the effect, "You have prospects of a good chance, at least a couple of hundred thousand dollars better" and that Mr Honeyman also said, "We will need the group certificates from your mates. Come back with those and the 3B letters". Other evidence – Mr Dodd 159 At all times relevant to these proceedings, Mr Dodd was experienced, probably one can say very experienced, in the fields of Workers Compensation and personal injury litigation. Mr Dodd said that he had some recall of the Plaintiff in consequence of, inter alia, the severity of his injuries and notes he made during the conferences with the Plaintiff on 17 October 1994 and 13 November 1995. It is apparent that, in addition to those notes, some of the documents sent to him by Mr Honeyman bear underlining or the like and notes Mr Dodd made when perusing them. 160 Between the first and second conferences Mr Dodd resolved the doubts he had earlier had on the question whether the accident the plaintiff suffered was one which came within the purview of the Motor Accidents Act. This followed what he described as hitting the books on the meaning of "use or operation" of a vehicle. 161 Mr Dodd took the view that although the Plaintiff had a certainly significant disability a trial judge was not going to find him to be totally incapacitated forever, saying that the opinion from his treating specialist was that from August/October 1994 the Plaintiff had some residual earning capacity, and that in the first conference the Plaintiff had said that he intended to go to Queensland to buy and run a pub. 162 When it was suggested that the possibility of a 25 per cent discount for vicissitudes on future economic loss was a very high figure, Mr Dodd responded that it had happened to him in running a case, and it reflected a 40-year period regarding economic loss. 163 Mr Dodd agreed that the Fox v Wood component of damages usually approximates 15 per cent of the weekly payments of compensation. 164 Mr Dodd rejected the suggestion that the negative aspects of the Plaintiff's claim were unduly emphasised during the second conference. In support of his stance he said that he did the best he could with what (information) he was told and his advice was "if we can substantiate the $400,000 figure, … it was an obvious way to go about doing a motor accidents claim. 165 He said that there are three major factors: non-economic loss, future economic loss and future medical expenses and went on:- "The future medical expenses is the big unknown, because you can get an allowance, and it might be an allowance of $150,000 or $200,000, whatever the figure is, in your motor accidents claim, and if technology changes and you need something expensive, then you might not be able to afford it. The non-economic loss with a nil gain, that left the big differential between going one way or the other, the future economic loss component. As I advised, if we could substantiate the bigger claim, if he was $200,000 ahead on that part of his claim, then who cares about whether the medical expenses are enough or not, because you are so far ahead of your workers compensation rights, as I said to Mr Kearns, it would be obvious to go that way." 166 He agreed that no figure was put down by way of lump sum for future medicals, saying that at that stage he wasn't fully advising. Mr Dodd went on:- "I was looking at the big differential between the two. Because as far as the - if anything, your Honour, as far as the medical expenses were concerned, we already had the indication from the Department of Veterans Affairs which only came up to $98,000 (sic) worth, which wasn't much at all, quite simply, but it seemed to be calculated at least to some extent, and so if one did do that, then his net common law rights would be $300,000 or $400,000 which, for a 23-year-old facing the next 50 years wasn't much as compared with his workers comp rights." 167 Mr Dodd also gave some evidence as to when proceedings, had they been instituted by the Plaintiff would have come on for hearing. This evidence was to the effect that if a Statement of Claim had been filed in June 1996, a trial would probably have occurred about 3 to 3½ years later, probably spilling into 2000. Mr Dodd's evidence in this regard was accepted by all parties subject, in the case of the Plaintiff, that the latter did not accept the institution of proceedings should have been delayed until mid-2000. The likelihood is that if proceedings had been commenced, this would have occurred in about mid 1996 and accordingly I shall proceed on the basis that any trial would have occurred in early 2000. 168 Some reference should also be made to Mr Dodd's manner. During the course of submissions, counsel for the Plaintiff remarked:- KEARNS: "If Mr Dodd spoke in the conference the way he spoke in the witness box, there would have been so much information going or not going into the plaintiff's head he could not possibly have absorbed it all." H H: "You mean his speed of movement and talk?" KEARNS: "Absolutely, your Honour. It became quite impossible at times to cross-examine him, because although in some answers he gave a direct answer to the question, there was so much added onto it that one just couldn't keep up with it. Now, how was the plaintiff going to keep up with that sort of advice that he was being given?" 169 There is much truth in the sentiments or submissions expressed by Mr Kearns. I found that Mr Dodd's speed of expression and degree of detail made his evidence at times quite difficult to follow and I am vastly better qualified to understand than the Plaintiff would have been. Of course, Mr Dodd's evidence was given in 2005 whereas he was speaking to the Plaintiff 10 years earlier and in different surroundings. However, it seems to me likely that these characteristics were also present in the 1994 and 1995 conferences. Other Evidence - Mr Honeyman 170 Mr Honeyman was admitted to practice in 1975, having been articled to the Defendant firm. After admission he continued as an employed solicitor till he became a partner in 1979. He remained as a partner until 1990, and then, after a 6 month break returned to the firm as an employee, a position he occupied at the time with which these proceedings are concerned. Asked about his experience, Mr Honeyman said that he had a grounding in Workers Compensation and motor vehicle accident litigation to the extent that he felt competent to be able to discuss and give advice. He gave such advice about motor accident legislation and to a lesser degree Workers Compensation through the period 1979 to 1994. 171 It is clear that Mr Honeyman's understanding at the conclusion of the second conference was that the 3B licence or the RTA letter relating to it and the Plaintiff's group certificates were to be obtained as was more information or confirmation from other organisations about comparable earnings. This was then to be provided to Mr Dodd for him to further advise. It never was. 172 Mr Honeyman was not clear about the respective roles of himself and the Plaintiff in this information gathering activity. In some of his evidence he seemed to indicate that the Plaintiff was to obtain it all but elsewhere it seemed that the Plaintiff's duties so far as the comparable earnings were concerned was merely to provide Mr Honeyman with the addresses and phone numbers of other concreting organisations. That is what is said in Mr Honeyman's letter of 20 December 1995 at least so far as "Eastcoast and W & D" are concerned. Mr Honeyman conceded that he had not looked up the phone book to find the address of W & D at any time although he also said that he had a pretty good idea where to find them. It is a reasonable inference from the totality of his evidence that he could also have sought the address of Eastcoast by a similar method. 173 It should also be mentioned that contained in Exhibit Q, the exhibit copy of Mr Honeyman's file, between documents of 25 and 29 March 1996 is a note in Mr Honeyman's handwriting, which was for a time referred to and became MFI 11. It contained a note to the effect "P E L $15,000" and also the name, address and phone numbers for W & D and Mobile Concrete Pumps. Mr Honeyman could not recall the circumstances of how that note came into existence. He agreed that "P E L" stood for past economic loss and said that the note could have been made in the second conference although he also recalled reference in the conference to past economic loss being a nil gain. He gave no evidence of any later occasion when past economic loss, certainly loss in an amount of $15,000, was discussed. 174 As I have said, Mr Honeyman's evidence was that he had not in fact written any letters to W & D or Eastcoast and none were tendered notwithstanding that all parties have had access to his file. 175 Mr Honeyman was asked a number of questions to the effect that it would have been easy to put in writing to the Plaintiff advice as to various matters. Mr Honeyman indicated that the economic side made it difficult to give an overall assessment. The suggestion of a valuation of the future medical expenses in relation to his prosthesis was met with a response to the effect that that would have taken a lot more enquiry and it was too early in the proceedings, it not being clear whether the Plaintiff wanted to proceed. 176 When it was put to Mr Honeyman in the context of the second conference and immediately thereafter that he was going to do whatever needed to be done to protect the Plaintiff's Common Law rights, Mr Honeyman replied, "To explore his Common Law rights". 177 Taken to the letter of 20 December 1995 and the remarks in it that "We are not totally confident yet that the net amount of any benefit to be derived from that claim, if it continues, would outweigh what is already occurring", Mr Honeyman said that other advice contrary to that or qualifying it was given. He said that in writing, in conference and by telephone, advice was offered to the Plaintiff over the course of the matter, subject to getting the details he and Mr Dodd wanted, that it would be worthwhile pursuing his Common Law claim. Invited to produce any such writing he could find, none beyond the documents to which I have referred were produced. Nor was there evidence beyond that to which I have referred of advice given orally or in conference. 178 Remark might be made also concerning the contents of the draft Statement of Claim sent by Mr Honeyman to the Plaintiff and which the Plaintiff was asked to "carefully check … and indicate to us whether you wish any alterations to any part of it". Despite Mr Honeyman being in possession of a deal of information as to how the accident had happened the document was blank as to the particulars of negligence. It contained no particulars of out-of-pocket expenses beyond the statement that up to date particulars would be supplied prior to the hearing, no claim for past economic loss and, so far as the future was concerned, an allegation that the Plaintiff had suffered "substantial diminution in his future earning capacity". The Particulars of Injuries given were: "a. Traumatic amputation of left leg at or above the knee b. Soft tissue injuries to left thigh c. Post traumatic stress disorder which presented as irritability, anger and emotional numbness" 179 Finally, in this section, I should mention that in Exhibit 15 Mr Honeyman also said that he had said to the Plaintiff, "Remember that John (Dodd) said that you had reasonable prospects. Let's get on and get it going. Deposit those monies you promised to pay for the MDK report, filing fees and John Dodd". Mr Honeyman said – and this would seem to have been on 7 March 1996 - that he also spoke to the Plaintiff about the expending of the lump sum he had received and told him that he would have to manage his money. Mr Honeyman continued that after these discussions the Plaintiff became settled, said that he would get details of the comparable employees, would fix Mr Honeyman up for the money, answer the particulars and send in the 3B letters. 180 Cross-examined, Mr Honeyman agreed that some directions had been given concerning the conduct of the case including the preparation of statements by the parties, that he had prepared a statement, applying a lot of care in that preparation and that the statement in Exhibit 15 about the prospects of a good chance does not appear in his earlier statement. The Plaintiff's evidence concerning events circa 1996 181 In his evidence the Plaintiff acknowledged that he had ignored a number of the letters he had received from Mr Honeyman in late 1995 and early 1996, leaving some unopened and unread. Others he did not deal with. 182 The Plaintiff agreed also that he had promised in October to provide the answers requested by the AMP and to pay the Defendants their outstanding account and had failed to do so. He acknowledged that he had received a letter of 25 March from Mr Honeyman to the effect that proceedings had to be commenced by 7 April 1996 and enclosing a draft statement of claim. He said that he did not read the document and gave no instructions for it to be filed. 183 The Plaintiff acknowledged receiving the letter of 20 December 1995 from Messrs Hancock Alldis and, at least at one stage, that he did nothing when he received it. Later, the Plaintiff said that he had provided the information requested in the solicitor's letter of 20 December 1995 although the terms of his answer do not make clear whether this was before or after the 20 December letter. Clearly, either personally or via Ms Buck, he would seem to have provided at least some. 184 The Plaintiff was taken on a number of occasions to the topic of his reasons for not responding to the correspondence. His answers were not all identical but there was a deal of consistency about them. He said that he was not happy about risking his Workers Compensation payments. He was undecided what to do because the solicitors being undecided did not help him. He had become disheartened, the solicitor appeared to be writing letters for no reason. The Plaintiff acknowledged receipt of some letters advising that time was running out to sue for motor accidents, but his attitude remained the same "I did not know what to do. I was not keen on chasing the motor vehicle accident. It seemed too risky at the time. … I could not afford to lose my medicals." He said the lump sum of $250,000 to $400,000 would not even cover his medicals. 185 Elsewhere the Plaintiff said that the reason he failed to open Mr Honeyman's letters was the latter's lack of care, that he had put no effort in, the Plaintiff was unhappy with his work and all his letters were the same. He said that the reason he gave no instructions to file the statement of claim was that he had lost interest in Mr Honeyman who was not helping him in any way. Asked if he could have gone to another solicitor the Plaintiff responded, "and go through all this again." Challenged about answers to the effect that Mr Honeyman had done nothing and that the letters Mr Honeyman sent indicated that there was no work being done – answers which were firmly, and I have no doubt, honestly given - and having had his attention drawn to the preparation of the statement of claim, the Plaintiff said that "anything" might be a bit harsh but Mr Honeyman did not do a great deal, was of no help to the Plaintiff and confused him more than anything. At another stage the Plaintiff gave as his reason for not opening all the letters he received from Mr Honeyman "because it was now '96 so nearly 2 years I have been mucked around by this solicitor, and I'm still being mucked around by him now. I'd lost interest in opening his letters… I'd lost interest because of him; no other reason". 186 The Plaintiff denied that the reason he had done nothing to progress any Motor Vehicle Accident claim following the November 1995 conference was because he was comfortable staying with the Workers Compensation system although he also acknowledged that he was worried about losing his compensation if he went to court. 187 The Plaintiff said that by the end of 1995 he was reluctant to commence a claim. At least by the middle of 1996 he had decided not to proceed to bring a claim. This decision was made because of what the Plaintiff perceived to be a lack of activity on the part of Mr Honeyman. 188 Asked why he had not paid Mr Honeyman's fees, the Plaintiff gave a reason similar to that which he gave for not responding to the correspondence. At one stage he said that he had an intention to pay Mr Honeyman in the future "when he started doing his job" and, asked in re-examination why he had not paid Mr Honeyman as he had said he would the Plaintiff responded:- "Because I don't think he had my best interests at heart. He wasn't helpful, they didn't explain things, and I wasn't overly keen on a big case then. I was chasing a bit of money to lose a lot of money, as far as I could work out. Pre-Accident Circumstances of the Plaintiff 189 The Plaintiff was born on 16 March 1971. He left school halfway through year 11 having been in the top of 8 classes in mathematics. His worst subject was English and for this subject he was in the third highest of 8 classes. He agreed he had done very well at school up until year 10. His leaving was in response to an offer to undertake bricklaying and he has worked as a barman and on security in a hotel. At one stage it was his intention to join the police force when he turned 21 but then changed his mind. Apart from the hotel work, which seems to have been relatively minor, prior the accident the work he had done was all of a manual nature. The work had been bricklaying, roof tiling and concreting. The Plaintiff enjoyed outdoor work. Work indoors did not interest him. He seems to have had a number of employers but his evidence that he worked for Constables on a number of occasions suggests, and Mr and Mrs Constable confirmed, that the Plaintiff was a good employee. The firm had asked the Plaintiff to return to work for them to train as an equipment operator and Mr Constable opined firmly that the Plaintiff would have obtained his full ticket to operate the crane within 2 days but for the accident. The firm would liked to have kept him on and if he had been able to work after the accident, a position for him would have been made available. 190 I have made reference to conversations between the Plaintiff and one or both of Mr Honeyman and Mr Dodd or notes of such conversations concerning the Plaintiff obtaining a 3B driving licence. The Plaintiff's evidence as to what had occurred in this regard was that he had a 3A licence or permit entitling him to drive a 5 tonne or thereabouts truck, that before the accident he had been to a driving school for lessons to obtain his 3B licence and that, just before his accident he had received a letter from the RTA saying that he could do the test for a 3B licence. This was the licence which, according to the Plaintiff, entitled him to drive any rigid vehicle (including a concrete pumping truck). No such letter was produced, the Plaintiff saying that he had looked but could not find it. Nor were there any documents from the RTA supporting the Plaintiff's claim which, unsurprisingly was the subject of challenge. Given the importance of this letter, both in 1995 and now, and other aspects of the Plaintiff's record with the RTA to which I refer below, this absence of corroboration requires that the claim be treated with a degree of scepticism. Nevertheless, I do accept the Plaintiff's evidence to which I have referred. The acceptance of that evidence and common experience leads to the inference that, subject to the impact of Plaintiff's driving record to which I refer below, the Plaintiff would also very probably have obtained his 3B licence, if not on the first attempt, within a reasonably short period. 191 On or about 17 May 1994 the plaintiff had also received authorisation to work as a trainee power crane driver. It was in this connection that he read instructions about the safety requirements incidental to working a concrete pump. 192 Prior to the accident the Plaintiff water-skied, played golf (with a handicap of about 21 or 22), and competitive tennis and fished both in rivers and on the beach. Post-Accident Circumstances of the Plaintiff 193 Taken to the circumstances of the accident themselves, the Plaintiff said that his leg had been in the hopper for an hour and a half and the pain, on the scale of 1 to 10, was at 10 during this period. Eventually the pain was numbed by medication. He was extricated from the hopper, flown to hospital and there he had a number of operations including what would seem to have been progressive amputations until in the end he lost that part of his leg as commenced just above the knee. The medication took the high edge off the pain but did not stop it. 194 The pain including some phantom pain where his left leg had been continued in hospital, varying between 7 and 10 on the scale. When the Plaintiff left hospital after about a month the pain stayed for some time at 10 out of 10 but then at its best went down to 5 or 6. The pain continued for at least 3 years and even then it was 10 out of 10 a couple of times a month for days at a time. For some time when he had been 4 or 5 nights without sleep because of pain, he would get his mother to drive into the hospital and receive morphine. 195 The phantom pain continued through 1997, 1998 and 1999 in a similar pattern. 196 He has also experienced cramps which had become progressively worse over the years after he came out of hospital. Asked to rate the scale of pain, he said 20 out of 10. The cramps tended to not last long but "they dropped me to the floor". 197 The Plaintiff wears a prosthesis to replace his severed leg. Problems he has had have been ulcers, wear and tear and cuts. The prosthesis is such that the top of it is around his groin and buttocks area and the ulcers have been mainly in those areas. A red rub mark is a precursor to the ulcers and this will start to develop after he walks perhaps 50 metres. Taking the leg off prevents this mark developing into an ulcer. The ulcers or marks where there is no weight become itchy but those that take the weight, the Plaintiff described as like walking on a razor blade. 198 The prosthesis has been replaced on average every 2 or 3 years. That which he presently has is computerised and on that account cannot be allowed to become wet. The Plaintiff wishes to have a second one which can. 199 The Plaintiff described the ulcers when they first occur as like a blister with the top level of skin broken off and, if not dealt with, tends to turn from a blister into an infection. He said there is no medication or cream which can be used because these tend to soften the skin and make things worse. It seems clear that this problem with the stump has continued. Asked why he could not work as a storeman, the Plaintiff said "Because I last about half an hour on my leg. Two days down at this court and it's covered in red sores already, from walking from the train station to here". His unchallenged evidence as to limitations on playing golf is to similar effect. The solution to the signs of an incipient ulcer is to take the prosthesis off. 200 The Plaintiff said that when the loss of his leg sunk in, he felt upset, disappointed and robbed but in a way was lucky he didn't go into the machine completely. He felt cheated and robbed of the things he was no longer able to do. 201 The Plaintiff said that a couple of years after the accident he re-commenced playing golf. Initially walking around a golf course had been too painful to do at all and when he resumed he did not play a lot because of the pain. He used a buggy but because of the pain which "hurt like hell", playing once a month was enough. 202 He also recommenced fishing although this is limited to jetty or boat fishing. He bought a boat with an outboard motor and then in 1994 the Plaintiff built a fishing boat for himself although he needs someone else to go with him to put the boat in the water. It is at least partly in this connection that the Plaintiff desires a waterproof prosthesis in addition to his present computerised one. 203 Not long after the Plaintiff came out of hospital he commenced to drink a lot because alcohol was "about the only thing that will stop the pain. Plus it took away a bit of the reality to it I guess." This continued for a good couple of years. About 6 months after coming out of hospital he also associated for a couple of years with a motor cycle group because of their different lifestyle and a deal of partying and drinking. 204 In his statement of 11 July 1994, obtained by MDK and Associates, the Plaintiff said that he could not sleep properly and the accident had affected him emotionally. In evidence he said that emotionally he was all right in January 1996. 205 However, the Plaintiff also said that he was using amphetamines at that time although he denied that his mind was affected by this drug or that it caused him to behave irrationally, not to accept advice and not to pay fines, a matter to which I shall return below. He denied that he was using amphetamines throughout 1996 and said that he was pretty sure he was not using them in at the time of a meeting between Ms Buck, Mr Honeyman and himself which occurred in early March 1996. In re-examination he said that the reason he took speed was that it was a good pain and reality relief and that he had taken it for a few months commencing in 1995 or early 1996. Earlier, taken to a note by Mr Honeyman in March 1996 to the effect that the Plaintiff had then gone "feral" the Plaintiff said that he thought his father might have passed those words onto Mr Honeyman and that those two had joined together and no-one helped him. 206 In early 1997 arrangements were made for the Plaintiff to have a psychological assessment. He kept one appointment but did not turn up for a more detailed consultation because he did not see a reason to talk to a psychologist at that stage. The Plaintiff said that he had not felt comfortable at the first consultation where the psychologist wanted to know a lot about his feelings. Notwithstanding some consultations to which I am about to refer it is clear that the Plaintiff has not liked to talk about his emotional problems. 207 By 1998 the Plaintiff had moved to Queensland and while there was from time to time attending doctors at Norah Village Medical Centre for an anxiety or emotional state, being treated initially with Zoloft. The emotional anxiety problems for which he consulted Queensland doctors were evidenced by shortness of breath and pins and needles which had developed in 1996 or 1997. The Zoloft reduced the anxiety attacks a bit. In about 1998, at a time when he was complaining of panic attacks which had occurred for about 1 year, he saw a psychiatrist Dr Wright. 208 Because it may be thought to have a bearing on the Plaintiff's mind-set in and about 1996 it should be mentioned that he said he had no idea by what time the $161,600 he had received by way of lump sum compensation had been expended but he had no funds by 1997-98. The Plaintiff's Traffic and Custodial History 209 Two further factors which should be mentioned are the Plaintiff's traffic and custodial history. A Traffic Record Report from the Roads and Traffic Authority indicates that the Plaintiff was first issued with an unrestricted licence in March 1990. Offences of failing to give a proper or timely signal, not complying with conditions of a restricted licence and driving contrary to a stop sign had previously been committed. 210 In May 1990 the Plaintiff was convicted and fined for exceeding the speed limit by between 30 and 45 kph and in September 1990 his licence was cancelled for non-payment of a fine. 211 In February 1991 a further unrestricted licence was issued. In April 1991 and February 1992 he received traffic infringement notices for not wearing a seat belt and exceeding the speed limit by between 15 and 30 kph. In June 1992 his licence was again cancelled for non-payment of a fine. 212 In March 1993 he received a traffic infringement notice for unlicensed driving or riding. In August 1993 a further unrestricted licence was issued. In November 1993 he was fined for driving an unregistered and uninsured motor vehicle although a charge of driving after his licence had been cancelled was dismissed under s556A. 213 In February 1994 there was a further fine default cancellation of his licence and in April he was again issued with an unrestricted licence. As has been said, his accident happened in June 1994. 214 In February 1996 there was another fine default cancellation of his licence although it is not apparent from the RTA records what fine that may have related to. On 8 May 1996 he was again issued with an unrestricted licence. Later that month he was fined for negligent driving and failing to stop after an accident, events that appear to have occurred in February of that year. 215 1997 was a bad year. The RTA Report show his convictions to have been:- April Driving with a middle range concentration of alcohol May Driving with a low range concentration of alcohol July Not wearing a seat belt Exceeding the speed limit by between 15 and 30 kph Exceeding the speed limit by not more than 15 kph Negligent driving Aug Driving with a low range concentration of alcohol Driving whilst disqualified (in consequence of the April and May convictions) 216 In February 2001 he was convicted of driving, in June 2000, with a low range concentration of alcohol and after his licence was cancelled or refused. 217 In January 2003 he was convicted of, in November 2002, exceeding the speed limit by between 30 and 45 kph, driving with a middle range concentration of alcohol and, on 2 occasions, driving whilst disqualified. 218 Included in the penalties imposed on the Plaintiff over the years were a 14 days gaol sentence, imposed in August 1997, for driving whilst disqualified, and in 2003, a number of 9 months gaol sentences. In about 1997 he also spent a few days in prison for non-payment of one or more fines imposed in Queensland for speeding. Medical and other Reports about the Plaintiff 219 A Discharge Summary from the Westmead Hospital, in addition to mentioning matters that could be regarded as normal incidents of an amputation such as that suffered by the Plaintiff records that he had been reviewed by a clinical psychologist for post-traumatic stress disorder which presented as irritability, anger and emotional numbness. A report of Dr Marosszeky of that hospital's Department of Rehabilitation Medicine of 10 October 1994 addressed to Hancock Alldis recommended occupational rehabilitation under the supervision of the Commonwealth Rehabilitation Service. 220 In a report of 16 August 1994, Dr Wong, who had performed all or most of the surgery on the Plaintiff, recorded that the Plaintiff's stump was satisfactory and that he had certified the Plaintiff fit for light duties on 17 August 1994. Dr Wong also remarked that "As he was only interested in outdoor work, I advised him to see the Rehabilitation Physician for vocational guidance. In a report of 26 October 1994, Dr Wong observed that he had recently seen the Plaintiff, that he had been having rehabilitation and had no complaint, that the stump was satisfactory, that there was no significant pain or tenderness in it and that the soft tissues remained healed. Both of these reports were addressed to the Defendants. 221 In a further report of 3 September 2003 addressed to Herbert Weller, Solicitors, Dr Wong recorded that the Plaintiff had been doing quite well, that the stump was good and that the Plaintiff remained fit for work not involving excessive standing or walking. However Dr Wong also said that he could not exclude the possibility that some back-ache and right knee pain of which the Plaintiff complained might be due to the not completely natural gait consequent on wearing the prosthesis. 222 In that connection, I should record that the Plaintiff's gait exhibited a limp which was a lot worse than a slight limp. 223 While not taken to the detail of Dr Wong's report, nor cross-examined about any inconsistency between Dr Wong's statement that the stump was good and his own evidence about what happened when it was used – though it must be recognised that the Plaintiff said the ulceration was mainly in or around the groin - the Plaintiff said the he had told Dr Wong the truth on the last occasion he saw the doctor, that is in the last 2-3 years. 224 In a report of 27 March 1995 to MMI Insurance Group, Dr Elliott, an Orthopaedic Surgeon remarked that the Plaintiff's general health was good, that he took moderate analgesics, complained of moderate pain in the stump and phantom limb pains, that the prosthesis was slightly loose due to muscle wasting, and that there was extensive scarring over part of the stump which was very tender to palpation. Dr Elliott observed that it was possible the stump might need revision and concluded:- "I think rehabilitation will be difficult as he is not keen on any form of office employment." 225 In a report of 3 September 2003 addressed to Herbert Weller, Dr Elliott remarked, inter alia:- "He continues to have problems with his stump and some chaffing at the top of the prosthesis around the buttock area. He has difficulty with prolonged standing and walking any significant distances. In himself he does not feel well. He is unfit and is prone to anxiety attacks. He takes anti-depressants. … "The prosthetic leg seems to work well, but there is evidence of abrasion to the buttock area and the stump is still moderately tender, although I could define no obvious trigger point and I think it unlikely that he has a neuroma. … At the present, I do not think that he will require any further surgery to the stump." 226 A report of 27 February 1997 of Craig Holt, the psychologist who the Plaintiff saw at about that time, records that the Plaintiff presented with the following difficulties:- "1. Pain …. 2. Anger – Jason reported he was on a "very short fuse". He reported having a temper prior to his injury but this was much worse now. He stated that this anger can be brought on by trivial things and it appears from his statements he is suffering from free floating anger. He reported that he tends to lash out and act out the anger at his girlfriend or at any one who he perceives provokes him. 3. Grief at loss of function – Jason reported that he is experiencing considerable grief at his loss of activities… 4. Symptoms of Post Traumatic Stress Disorder Jason stated that he tends to have "cold shivers" when discussing his accident. This has remained since the accident. He stated that he was drinking heavily… He described his current alcohol consumption as moderate. At this stage I have not formally assessed Jason and it is my opinion that he is suffering from post traumatic stress disorder with adjustment difficulties and depression. He would benefit from post trauma counselling, desensitisation of the original trauma, anger management, cognitive behaviour therapy and therapy for grief. However, as he has not attended the second assessment session, at this stage I am unable to provide any further details." 227 In a report of 26 August 2003, Mr Holt recorded that the Plaintiff reported still suffering from a range of complaints including chronic pain, mood management difficulties, grief, substance (in the form of caffeine and nicotine) abuse, sleep disturbance and relationship difficulties. Mr Holt's diagnosis and conclusions included the following:- "Mr Arnold's presentation, history and symptomatology is consistent with Post Traumatic Stress Disorder (in remission). It appears that he is currently suffering from anxious and depressed mood and is attempting to medicate his mood with caffeine and nicotine. It appears that Mr Arnold's condition has not improved since my original assessment of 23 January 1997. He reports that he has tried a range of techniques himself and tends to focus on managing his condition himself. I do not consider that Mr Arnold would benefit from any further rehabilitation interventions at this time. I note that he is currently engaged in an anger management program which should be useful… … He is currently receiving assistance from his general practitioner regarding medication for depression and this should continue." 228 On behalf of the Defendant or Cross Defendant there was tendered a WorkCover Authority Accredited Rehabilitation Provider report of December 1994 which indicated that no rehabilitation had been provided because the Plaintiff was not compliant. There was also an extensive report from a Trevor Hawkins, a vocational psychologist who had seen the Plaintiff on 6 April 2004. 229 Mr Hawkins reported that the results of tests he had administered to the Plaintiff placed him in the average range in many areas, an exception being spelling and grammar where he was below average. Mr Hawkins opined that, based purely on the results of cognitive assessment the Plaintiff's abilities were considerable and he had the potential to train for and gain entry to a range of jobs. Mr Hawkins listed many although it is to be observed that all involved principally, and most involved exclusively, indoor work. Responding to statements by the Plaintiff to the effect that he needed to be his own boss so he could control both his hours and his job description, Mr Hawkins observed, "Had he been more involved in the vocational rehabilitation process it would have become obvious to him that his rehabilitation provider could have negotiated appropriate duties and hours with an employer for him, taking into consideration the reported restrictions". In his conclusion Mr Hawkins said that, "From a purely vocational and cognitive perspective however, Mr Arnold is deemed to be significantly employable". It is clear that Mr Hawkins thought that that had been the situation for virtually all of the time since the Plaintiff's accident. 230 It is shown or to be inferred from the contents of Exhibit O that Mr Honeyman received the Discharge Summary, Dr Marosszeky's report, and Dr Wong's reports of 16 August and 26 October 1994 not long after the dates they bear. Dr Elliott's report of 27 March 1995 was sent to Mr Honeyman on 5 May 1995. Soon after receipt, copies were forwarded or handed to Mr Dodd. 231 A report from the Department of Veteran's Affairs assessing the prosthesis costs at $89,973, the Plaintiff's comments upon it and Mr Honeyman's notes of potential costs in that regard of $300,000 have been referred to earlier. 232 There was also in evidence a report from the Appliance and Limb Centre (International) Pty Ltd dated 5 December 2003 dealing with the current and future prosthetic requirements of the Plaintiff. That report showed, inter alia:- (i) that the Plaintiff had at least one prosthesis prior to 30 October 1994; (ii) that adjustments to that prosthesis in October 1994 cost $1,065.95; (iii) that on 30 November 1994 the Plaintiff was supplied with a "left modular above-knee prosthesis with ischial containment socket, 4-bar knee and Seattle Light foot" at a cost of $6,345.95; (iv) that on 26 May 1995, the Plaintiff was supplied with a "left modular above-knee prosthesis with ischial containment socket, hydraulic knee and Flex Walk foot" at a cost of $12,171.20; (v) that in the period 30 October 1994 to 28 August 1995 the cost of other maintenance and sundries was $564.50; (vi) that between 28 August 1995 and 8 June 2000, the Appliance and Limb Centre seems to have provided nothing to the Plaintiff; (vii) that on 8 June 2000 the Plaintiff was supplied with a "left modular above-knee prosthesis with ischial containment socket, Iceross suspension system and C-Leg electronic components" at a cost of $44,742.00; (viii) that on 30 October 2001, the Plaintiff was supplied with a "left modular above-knee socket replacement with ischial containment and IPOS valve" at a cost of $4,854.00. (ix) that the next supply of a prosthesis after 8 June 2000 was on 22 September 2003, and this was of a "left modular above-knee prosthesis with electronic C-Leg incorporating C-Walk foot, 3C100 knee, batteries and battery charger with an ischial containment socket system" at a cost of $49,072.00; and (x) that between 8 June 2000 and 22 September 2003 the cost of maintenance, supply of parts, including due to breakage and of sundry items other than the socket replacement referred to in (viii) was $6,318.89. 233 The report went on to refer to what it describes as current and future requirements. The major components in this regard were:- (1) A full recreational limb every 2 years; recreational waterproof limb with a Seattle foot - $9,939.00. (2) A full spare limb replacement every 3 years. Left modular AK prosthesis with Flex Walk foot, mauch XG hydraulic knee, ischial containment socket, silicone suspension system and titanium components - $22,915.00. (3) Modular Otto Bock Electronic "C Leg" every 3 years. Left modular AK prosthesis with C-Leg package, 3 C100 electronic knee ischial containment socket, silicone suspension system and titanium components - $51,870.00. (4) Above-knee socket replacements every 18 months. (4.1) C-Leg with ischial containment socket and silicone suspension system - $9,548.00. (4.2) Spare modular prosthesis with Flex Walk foot, ischial containment socket and silicone suspension - $8,891.00. 234 The report went on to explain that the electronic prosthesis required service every 12 months during which time it would not be available to the Plaintiff for approximately 3-4 weeks during which time he would need to utilise item 2. In oral evidence Mr Brown the author of the report indicated that item 1 was a much more basic piece of equipment. Earnings and Earning Capacity 235 During the course of his evidence the Plaintiff agreed that from about 3 months after the accident until the year 2000 he was capable of performing a wide variety of tasks, including driving an automatic motor vehicle and plant, doing woodwork, carpentry and furniture repairs, writing, reading, taking telephone calls, working in a fishing tackle shop and carrying out domestic repairs. 236 Earlier, in evidence-in-chief, the Plaintiff had agreed that subject to obtaining his 3B licence he would have been able to drive a concrete agitator after the accident if the vehicle had been automatic and that "to start off with" Mr Constable offered to obtain an automatic vehicle that the Plaintiff could drive with his prosthesis. On 24 May 1995 the Plaintiff in fact obtained his full Certificate of Competency in the operation of a Concrete Placing Boom. 237 However, when asking the Plaintiff many questions as to whether he could perform various tasks, the cross-examiner did not go further and ask the Plaintiff for how long he could perform them. Both in re-examination and elsewhere, the Plaintiff was very firm in his evidence that the condition of his stump was such that he could not stand or walk or sit for long, or perhaps more accurately, more than moderate, periods saying, inter alia, that his leg became sore in the car after about 20 minutes. It was when denying a capacity to work in many occupations such as in a hardware store, as a storeman or yard-hand because of the speed at which sores develop on his leg that the Plaintiff made the remark, "2 days down at this court and it's covered in red sores already, from walking from the train station to here." The tenor of the Plaintiff's evidence was that he could not carry out the various jobs for long enough at a time to be acceptable to an employer. 238 The Plaintiff said that while he could do the maths he would not choose to work in an office taking orders for concrete. He said that he could not be inside all day and, taken back to the possibility of working in a fishing tackle shop said that he could probably do it but, "There is a big difference between doing it and when I worked, I enjoyed work. I went to work to enjoy it not as a punishment". 239 The Plaintiff had some contact with the Commonwealth Rehabilitation Service both at Richmond and Tweed Heads (or Coffs Harbour). It seems that at least initially a reason he did not pursue contact with that Service was that he went to Queensland. Later – some time before 2000 - the Service offered him work of packing tissues in a box, an offer he declined. Asked why, the Plaintiff's reaction was telling. He broke down as he concluded his answer, viz:- "Why? Because I didn't do it before the accident. Eight, nine years I worked before the accident always outside six, seven days a week, a labourer. After the accident now they want to make me pack tissues into boxes. No. That's degrading." 240 One issue which arose was whether the Plaintiff had worked or been in any form of actual or potentially remunerative employment since the accident. The Plaintiff acknowledged that he had made statements to the effect that he had been when he saw Dr Wright and when he answered questions asked of him by a Corrective Services officer in August 1997. However, the Plaintiff maintained that these statements were untrue. If one accepts what the Plaintiff said in evidence it is clear that his reason for not being truthful with Dr Wright was because of embarrassment in not working and being on Workers' Compensation. 241 Before me the Plaintiff's evidence was that he had never worked since the date of his accident and at least up to 1999 or 2000 – the question was not clear - had not tried to get work. He denied that he had determined not to return to work. He has in fact continued to receive Workers Compensation payments and his medical and hospital bills and the costs of the supply of his prosthetic leg have been met by the Workers Compensation insurer of Constables. 242 I refer later in these Reasons to the limited direct evidence there was as to the actual earnings of concrete pump employees and I can omit further reference to that evidence here. The Plaintiff did say that if he advanced to owning a concrete pumping business he could earn "a hell of a lot more" than $900 to $1,200 per week. 1999 and later Events 243 In about 1999 MMI made an approach to the Plaintiff inviting him to redeem his Workers Compensation payments by accepting a lump sum. The Plaintiff was in Queensland at the time and consulted a firm of lawyers in Coolangatta by the name of "Woodward". They organised an actuarial report which the Plaintiff was shown and which gave a valuation of future loss of income, loss of superannuation and future costs of medical treatment at $868,233, made up of, approximately, $385,000 for future loss of income, $32,000 for loss of superannuation, and $485,000 for future cost of medical treatment. The Plaintiff said that if Mr Honeyman had given him advice to the effect that his Motor Accident claim might be worth of that order but he would lose his compensation rights, he would have proceeded with his Motor Accident claim. According to the Plaintiff – and there was no contrary evidence - neither he nor Woodwards spoke to the other about bringing a claim against Mrs Constable's motor vehicle insurer. (It may be noted that the actuarial report was admitted on only a limited basis – T24.) Expert Legal Reports 244 Included in the evidence before me were 2 expert reports from qualified lawyers. One, tendered on behalf of the Plaintiff, was by a Mr David Hooper, a solicitor. For about 11 years Mr Hooper was employed by GIO Australia as a Legal Officer, dealing with Workers' Compensation, Motor Accident and other personal injury claims. Subsequently, Mr Hooper has been involved in similar litigation as an employee of 2 firms of solicitors working in the same fields. 245 Mr Hooper's report extended to some 42 pages plus schedules and canvassed the obligations of the Plaintiff's employers, the relevant statutory provisions, the obligations of solicitors who undertook personal injury litigation, and the Plaintiff's circumstances and some of the documents to which I have referred above. Largely because they are irrelevant to the issues which ultimately arise in these proceedings, I find it unnecessary to refer to many aspects of Mr Hooper's report and the evidence he gave, some of which qualified appreciably part of his report. However, some of Mr Hooper's opinions were:- (i) "…the Plaintiff should have been advised that, except in unusual circumstances, such as where the Plaintiff may be entirely at fault … then common law damages are usually of much more value in overall economic terms than solely relying on workers compensation benefits". (ii) The tenor of some correspondence from the Defendants was that there was no significant economic difference between the two. (iii) It was the Defendant's role to resolve the issues of relative commercial values and costs in such a fashion as to make such issues comprehensible to a layman such as the Plaintiff. (iv) "… the Defendants at no time truly informed the Plaintiff of the relative commercial value of his common law rights to damages as opposed to the Plaintiff remaining solely on workers compensation benefits. … In none of (18) letters did the solicitors make any attempt to inform the Plaintiff of the substantive value of the relative rights the Plaintiff possessed in relation to his accident". (v) The statements or suggestions in the correspondence of 1996 that the time limit for commencing proceedings was 7 April 1996 were wrong or at least misleading in that, while a full and satisfactory explanation would be required if proceedings were commenced later, there was no mention (or recognition) that the correct limitation date for commencing proceedings was December 1997. 246 I should add that Mr Hooper conceded that at least to some extent his opinions reflected the view that the conference of November 1995 was one in which final advice was being given. However, I did not understand him to retreat from the opinions to which I have referred. 247 During the course of his evidence, questions were also asked of Mr Hooper concerning applications to extend the limitation period so as to permit the commencement of proceedings after, in the Plaintiff's case, December 1997. Mr Hooper said that in his experience, such applications were opposed by defendants in 99.9% of cases, the costs on a plaintiff's side would be of the order of $15-20,000 or more and whatever the result, a plaintiff would almost invariably be ordered to pay a defendant's costs. These figures for costs included an allowance for senior counsel which, I may say at this stage, I would regard as extravagant and unnecessary. However, that is not to deny that a plaintiff who engaged Mr Hooper, or a number of other solicitors, would not have had to pay such charges. Plaintiffs are not very often in a position to argue with their lawyers as to the proper way to prepare for, and run, an application to a court. 248 The second legal opinion tendered was from Mr Larry King SC, and was tendered on behalf of the Cross-Defendant. Mr King is very experienced in the fields of Workers Compensation and personal injury litigation. Included in Mr King's conclusions was the following:- (i) That Mr Dodd acted as a competent barrister; (ii) In the November 1995 conference, the focus was on a comparison between the value of the plaintiff's Workers Compensation rights and the value of a Motor Accidents Act claim; (iii) It would have been necessary "in the fullness of time, but within the limitation period (which Mr King identified as expiring in 1997) to consider how strong the case on negligence and how substantial the risks of a finding of contributory negligence were to enable a final comparison of the two entitlements to be made"; and (iv) Mr Dodd's statement showed "that he gave relevant advice for the purposes of the quantification exercise and left it to Mr Honeyman … to do … the 'leg work' and …consistent with the roles of barristers and solicitors …there was no obligation upon the barrister to do more …". 249 Mr King also advised to the effect that in none of the respects specified in the Cross-Claim as particulars of breach was Mr Dodd at fault. I do not regard it as necessary to set out most of these or Mr King's responses, except in the case of two. As to these 2, the allegations were:- "(f) failing to properly advise the cross-claimants of the plaintiff's rights in all of the circumstances; (g) failing to properly advise the cross-claimants of the quantum of the plaintiff's compensation options;" 250 Mr King's responses to these particulars were:- "(f) I do not agree … . (g) From what I have seen I think that this is an allegation not supported by the evidence and in any event it concerns a topic about which an experienced solicitor would not need advice." Conclusions 251 Against this background I turn to the issues which arise. Firstly, I am satisfied that all of the witnesses at all times were endeavouring to tell the truth. The Plaintiff was the only one whose credibility was the subject of significant attack. He obviously has a substantial interest in the outcome of the proceedings and conceded that he had told some untruths in the past. His resort to drink and amphetamines, his driving history and other actions in the years following his accident all provide indications of a degree of instability or irrationality, and this whatever reasons there may have been operative at the time. Since at least the time "Reach for the Sky" was written, it is common knowledge that the loss of a leg (or two) does not necessarily prevent persons so afflicted performing gainful work. Yet the Plaintiff, if he is to be believed, has earned nothing during the last 10 or so years. 252 There are undoubtedly some inconsistencies in the Plaintiff's evidence. In some respects his evidence is contrary to evidence given by others or in documents. The matters to which I have referred require that scepticism be exercised. Nevertheless, I formed a very favourable view of the Plaintiff's honesty when he was in the witness box. He was undoubtedly frustrated at times but on many occasions he seemed to me to give freely answers which, had he been seeking to dissemble, he would not have given. Whether it was or is wise or reasonable for him to be embarrassed at his situation or to take the attitude that he has to packing tissues or disclosing that he is unemployed and on Workers Compensation, I have no doubt that he genuinely has felt and feels the way his evidence indicated. 253 I am satisfied also that all of the witnesses are generally reliable. That is not to say that I accept all that has been said. The inconsistencies make this impossible. However in addressing the inconsistencies which are of consequence, and subject to one matter, I do so without any inclination to think that one witness is generally less reliable than another. The reservation to which I refer arises from some of Mr Honeyman's 1994 to 1996 documentation. That indicates less than a desirable attention to detail. 254 Secondly, I am satisfied that the Defendants, through Mr Honeyman, did breach their obligations to the Plaintiff. The Defence concedes that the Defendants' retainer was "to act for him (the Plaintiff) generally in relation to his claim for compensation for his serious injuries". I would regard as implicit in this an obligation to advise but even if this be wrong, the content of the 2 conferences with Mr Dodd and the communications between the Plaintiff and Mr Honeyman during the period prior to the November 1995 conference make it clear that the Defendants' obligations included an obligation to advise. Mr Honeyman's reference to "explor(ing the Plaintiff's) Common Law rights" tends in the same direction. 255 It is implicit that that obligation extended, assuming it was possible to do so, to so advise within a reasonable time. In the circumstances of the case it is not necessary for me to rely on the time limits which applied at the time either to forward a Notification of Claim to the AMP Society as insurer of Mrs Constable's vehicle or to commence proceedings. It is sufficient for present purposes to conclude that the nature of the task was such that the period from either the time that Mr Honeyman was instructed or the first conference with Mr Dodd to the time of the second conference in November 1995 was more than a reasonable time. 256 Although that conclusion perhaps makes unnecessary a consideration of what the cause or causes of Mr Honeyman's delay were, it seems to me that in that cause there was also a breach of Mr Honeyman's obligations. For the reason why the Plaintiff was not fully advised at the time of the second conference with Mr Dodd was that more information was, or was thought to be, needed. 257 I would regard as implicit in the retainer "to act for him (the Plaintiff) generally in relation to his claim for compensation for his serious injuries" not merely an obligation to advise but also to undertake elementary (and perhaps not greatly expensive) enquiries so as to be in a position to advise, but even if this be wrong, the content of the 2 conferences with Mr Dodd and the communications between the Plaintiff and Mr Honeyman during the period lead to the conclusion that during the period mentioned the Defendants' obligations included the aspects I have mentioned. I conclude also that Mr Honeyman's retainer required the exercise of such care, skill and diligence as is reasonably to be expected of a solicitor who practices in the field of employment related, or motor accident, personal injury litigation. 258 From no later than the October 1994 conference it should have been obvious to Mr Honeyman that if a Common Law claim by the Plaintiff was to be worth significantly more than his Workers Compensation rights, the vast bulk of any difference was likely to lie in the area of economic loss. There was nothing else, once one concluded, as according to Mr Honeyman's evidence Mr Dodd did at the first conference, that the Plaintiff would probably receive in any such claim about the same component for general damages as he would probably get under ss 66 and 67 of the Workers Compensation Act. Although somewhat elliptical, Mr Honeyman's Memo to File concerning that conference is to similar effect and by its silence also indicates that there was no other head of damage likely to be productive of any large sum. 259 Furthermore, it is clear from Mr Dodd's notes of that October 1994 conference, and to a lesser extent from Mr Honeyman's own handwritten notes, that the topic of the Plaintiff's potential future earnings, as distinct from what he had earned in the past was raised, and that there was a substantial difference between the two. In any event, it should have been obvious to any lawyer who concerned himself with personal injury litigation that the topic was one requiring investigation before advice on the topic of whether a Common Law claim should be pursued could be given. That is not to say that I disagree with Mr Hooper's opinion that except in unusual circumstances, Common Law damages are usually of more value than Workers Compensation benefits. I don't. However, advice other than of a preliminary and general nature required investigation first. 260 Even if the topic of comparable or the Plaintiff's potential earnings had not been raised by Mr Dodd, they are so important to any meaningful advice that could be given to someone in the Plaintiff's position in the period with which I am presently concerned, that Mr Honeyman should have made enquiries of the Plaintiff concerning them. No doubt had he done so, he would have received the same information as Mr Dodd did in both the first and second conference and to which Mr Honeyman referred in his 27 October 1995 Brief to Advise. 261 It is elementary also that prudence required that what the Plaintiff said on the topic should be checked and, if possible, confirmatory evidence admissible in a trial obtained. Of course, advice simply on the basis of instructions could have been given but there was plenty of time after October 1994 for the further enquiries to have been made. The nature of them was simple and, one may reasonably conclude, at least in the first instance inexpensive, consisting of probably a limited amount of reference to phone books or the like and a limited number of telephone calls or letters or both on a simple topic. 262 Why Mr Honeyman did not have notes of the October 1994 conference which contained information about earnings in the concrete pumping industry as Mr Dodd's did was not the subject of evidence and is not apparent. I incline to the view that not to have recorded that information in or immediately after that conference was a breach of his obligations to the Plaintiff but whether this be so or not, his failure to obtain it, and then to pursue confirmation of it in the months before or following the earlier conference, and certainly well before November 1995 was itself a breach of the duties he owed the Plaintiff. In this connection it is relevant to bear in mind that the hopefully supporting information was within the knowledge of others who had no obligation to assist. Although, particularly if they were apprised of the Plaintiff's situation, I think common decency would have led them to assist, it might well be that efforts would be required to persuade them to do so, or at least do so sooner rather than later and there was the potential for those efforts to take time. 263 It is to be observed also that Mr Honeyman did not in the period prior to November 1995, obtain confirmation of the figure of about $800 per week recorded in his own handwritten notes of the 1994 conference, which note also records the names of W & D Mobile and East Coast. Why he did not make these further enquiries is not clear and probably doesn't matter. However the observation in his Memo to File of the first conference, "he will probably …be limited to the difference between his current rate of pay and the work yet to be located in terms of his future economic loss", may well be at least part of the explanation. The statement, in excluding the Plaintiff's potential for higher earnings in his pre-injury or other occupation, is clearly wrong. 264 The evidence makes it clear that it was the absence of information from W & D Mobile, East Coast or similar sources which was the greatest cause of the omission to advise the Plaintiff fully in the November 1995 conference. 265 To some extent, Mr Honeyman's failures to which I have referred were overcome on 26 October 1995 when he did record information from the Plaintiff that the latter's earnings might soon have been $900 to $1,200 per week – information which was repeated in the conference of 13 November 1995. However, prior to the latter date Mr Honeyman had still not sought corroboration or admissible evidence of what the Plaintiff said and, for similar reasons, this also amounted to a breach, or a continuation of a breach, of his obligations. Nor did Mr Honeyman seek that material in the weeks that followed the conference and, although at some stage he was relieved by the Plaintiff's conduct of pursuing the matter, that relief did not follow the November conference immediately. 266 As I have indicated, Mr Honeyman's evidence was that following the November conference, the Plaintiff was to obtain some or all of the further information that was needed. His letter of 20 December 1995 suggests that it was only addresses and phone numbers that the Plaintiff was to provide. However, the note MFI 11 in Exhibit Q and Mr Honeyman's concession that that document could have been made in the November conference with Mr Dodd casts some doubt on this being the situation. There is the Plaintiff's evidence that he provided, at some unspecified time, the information requested. There is also Mr Dodd's evidence the tenor of which was that he had advised that Mr Honeyman should make many of the enquires direct. 267 Given the terms of the 20 December letter, I incline to the view that there was some arrangement between the Plaintiff and Mr Honeyman whereby the Plaintiff agreed to obtain the addresses and phone numbers of concrete pumping employers. However, Mr Dodd's evidence makes it clear that Mr Honeyman had been given the task of making many of these enquiries direct and, given the delay that had occurred, I do not regard the arrangement as relieving Mr Honeyman of the obligation to himself take whatever steps he could to obtain the information from such employers. As both W & D Mobile and East Coast Concrete Pumping were referred to in Mr Honeyman's notes of the November 1995 conference and were operating business organisations, it is to be inferred that a search of the phone book for them would have been successful. And even if there was an arrangement made in the November 1995 conference that the Plaintiff would supply the names of employees of these organisations, that also would not have prevented, or delayed for long, Mr Honeyman from making the appropriate enquiries even without the names of those employees. 268 The statement in that last sentence may also be made in relation to Constable Brothers, who employed Mr Day and with whom Mr Honeyman in fact had direct contact prior to 30 March 1995. 269 Counsel for the Plaintiff further contended that the Defendant's negligence included the following:- (i) The Plaintiff was not given any advice as to liability or the prospects of success in a Common Law action; (ii) The Plaintiff was not given any evaluation of his Common Law case. (I take this complaint to refer to an amount of likely damages); (iii) The Plaintiff was given no advice as the Griffiths v Kerkemeyer component of damages; (iv) The Plaintiff was given no advice as to the Fox v Wood component of damages. (v) The Plaintiff was given no advice as to past or future superannuation; (vi) The Plaintiff was given either no advice or specific figure for future out-of-pocket expenses; (vii) The only capital sum(s) of which the Plaintiff was advised, viz those for future economic loss, were given to him when he was in a state of agitation; and (viii) Mr Honeyman failed to obtain a report from the supplier of the Plaintiff's prosthesis which would have established the Plaintiff's past, present and ongoing needs and the costs thereof. 270 That the third and fourth of the above propositions are factually correct is clear. However, as Mr Dodd said, there was nothing to suggest that the Plaintiff was entitled to anything under the Griffiths v Kirkemeyer principle and the Fox v Wood component was small. In these circumstances there was no occasion to mention the first and, once a decision was made to defer advising until more information on the economic loss issue was available, little point in mentioning the second. Indeed, I take the view that the Fox v Wood component was so small that I am not persuaded that, in the circumstances, it was material. 271 I do not take the same view in relation to the fifth topic, that of superannuation. Accepting Mr Dodd's evidence that the allowance for superannuation would be of the order of 9 to 10% of the (other) economic loss components, once they were calculated as of the order of $234,000 to $429,000, the value of the superannuation component was material and something which may well have had an influence on any decision the Plaintiff had to make. Even on the basis of the qualified and limited advice which the Plaintiff was given in, and prior to, the conference of November 1995, he should have been given information to the effect that the figures mentioned were, on account of superannuation, liable to be increased to the extent reflecting the relevant legislation at the time. Although at the time the benefit was 5%, it was known that the legislation provided that it was to increase to 9% for the years 2002-2003 and following for employees of employers such as Constable Brothers seems to have been – see 1996 Australian Tax Handbook, par 68-040 and 100-585. Even at the lower level the amount involved was such that the Plaintiff should have been advised of it. 272 In saying what I have in the preceding paragraph, I do not ignore the evidence that Mr Dodd, and possibly Mr Honeyman, had decided that there should be a later occasion when final advice would be given. However, given that advice as to the lump sum value of lost earning capacity was being given, albeit on the basis of assumptions, that advice was calculated to mislead unless it extended to the full quantification of the value of the lost capacity or it was made clear that it was subject to increase on account of superannuation. In my judgment the advice as to quantification in the sums of $234,000 and $429,000 was in fact misleading and did mislead in this case. Furthermore, although the calculations were done, and the Plaintiff informed, by Mr Dodd during the conference, this was in the presence of Mr Honeyman who, having elected to participate in the field of personal accident litigation, was or should have been aware of the relevant superannuation legislation, that any verdict for the Plaintiff would include an amount calculated in accordance with the legislation. In the circumstances that prevailed, Mr Honeyman was under an obligation during the conference to ensure the Plaintiff was given one or other types of the further information to which I have referred. In this respect also there was a breach of his obligations to the Plaintiff. 273 On the sixth topic, that of future out-of-pocket expenses, I again regard Mr Honeyman's activity prior to the November 1995 conference as inadequate and a breach of his obligations to the Plaintiff. At some stage the question of the likely amount of any verdict the Plaintiff might receive was bound to arise. By no later than March 1995 Mr Honeyman was in possession of an estimate from the Department of Veterans Affairs of $89,973 for future prosthetic costs and information from the Plaintiff that the base figure used in the calculations was discounted, the total grossly understated and the cost potentially $300,000. The difference was such as to require investigation. None had been done. A likely method of obtaining further reliable information was the simple expedient of a letter or phone call to the supplier of the Plaintiff's prosthesis and between March and November there was plenty of time for this to occur. Had those enquiries been made, it seems to me virtually certain that Mr Honeyman would have been informed of the cost of prostheses supplied to that time as disclosed in the Appliance and Limb Centre report to which I have referred. After all it is in the commercial interest of that organisation to ensure that persons who use its services are suitably funded. Awareness of the changes from $2,800 odd to $6,000 odd to $12,000 odd per prosthesis should have inspired a request for more information at least so far as the future was concerned.. 274 Mr Honeyman suggested that it was too early in the proceedings for this investigation to be done, it not being clear whether the Plaintiff wished to proceed. Given the acceptance of an obligation to advise, that is not an adequate reason not to do what was reasonably necessary to give advice. Nor is the fact that as at November 1995, the Defendant's had not been put in funds by the Plaintiff relevant. The costs of the likely enquiries necessary would not have been large and, having regard to the history of dealings between the Plaintiff and Mr Honeyman the stage had not been reached where any obligations Mr Honeyman had to advise and pursue inexpensive enquiries were conditional on prior receipt of funds from the Plaintiff. 275 It must, of course, be recognised that any lump sum awarded on account of the ongoing cost of prostheses would be but an estimate of the present value of the cost the Plaintiff would have to incur for them over his lifetime. In one sense, there would thus be no gain to him in receiving such a lump sum. On the other hand, the possession of such a lump sum, while it is capable of being dissipated, also possesses some advantages and someone in the Plaintiff's position was entitled to be advised as to what that sum would probably be in order that he could, so far as lay in the power of himself and his legal advisers, obtain it if he wished to do so. 276 Before I deal specifically with the complaints listed in the other numbered sub-paragraphs, it is appropriate to refer to a number of features of or incidental to the November conference. Firstly, it was held almost 10 years before the parties came to give evidence about it and, although a lesser number, still a number of years before there was occasion to record in detail, as opposed to in the broad, much of what was said. Furthermore, at the time it was regarded by Mr Dodd and Mr Honeyman as not final. Possibilities of reconstruction, honest or dishonest, a natural tendency to become certain in what may have originally been an imperfect recollection, and to think that what should have been said was said are matters which I must bear in mind. 277 Secondly, given the limited nature of the information available, one wonders why the conference was held at all. Even on the basis of Mr Honeyman's mistaken belief that that the information to the effect that the Plaintiff's potential earnings were $900 to $1,200 was new there was no corroboration of those figures. True it is that Mr Dodd could have been asked to advise on the assumption that those figures were correct but there is no evidence that he was asked to do so. The probability is that he was not. 278 Thirdly, there seems little doubt that, as I think, from the time of the conference, but certainly from soon after it, the Plaintiff's interest in pursuing any Common Law claim waned and then ceased. Although there are other possible explanations, I regard his response to correspondence from Mr Honeyman as eloquent testimony in that regard. 279 Fourthly, there seems to have been, at most, little attention paid during the conference to a number of matters. As has been said, superannuation was not referred to. Another was the extent of the Plaintiff's disability and how he coped with the prosthesis, a matter clearly relevant to any residual earning capacity. A third was the cost of prostheses in the future. The topic does not figure in either Mr Dodd's or Mr Honeyman's notes of the conference and Mr Dodd's evidence about the Departmental estimate coming to only "$98,000" (sic) being not much and without any reference to a higher figure of which the Plaintiff had advised Mr Honeyman, suggests also that there was no mention, or probably thought, of any figure other than the Departmental one. Mr Dodd's evidence to the effect that "if he was $200,000 ahead on that part of the claim, then who cares about whether the medical expenses are enough or not …", points in the same direction, for the difference between $98,000 and $300,000 or thereabouts (even if discounted) would clearly have a major impact on any $200,000 surplus. Mr Honeyman's evidence to the effect that the Plaintiff was not given any other advice about any lump sum other than the $234,000 and $400,000 and Mr Dodd's agreement that no figure was put down by way of lump sum for future medicals persuade me that no figure on this account was mentioned and also argues for there having been no, or no substantial, discussion of any allowance for future medical expenses. I conclude there was not. 280 And this seems to be so notwithstanding that the Plaintiff, as Mr Dodd and Mr Honeyman both said, raised as the cost of replacing his prosthesis the sum of $9,000 and, according to Mr Dodd whose evidence I accept on this topic, became agitated at that stage. In that connection I was not impressed by the explanation Mr Honeyman gave for the Plaintiff becoming upset, viz. that he seemed to think his claim was worth millions. Inter alia, there is no other persuasive indication of this being the Plaintiff's approach. 281 Fifthly, mention should be made of Mr Dodd's evidence at T440 to the effect that he "told Mr Arnold further regarding medical expenses that he had been paid all those to date and they would have to go back to the Workers Comp insurer. And regarding future expenses he would get an allowance for those in the motor accidents claim, and once that claim came to an end then he would be on his own" and it was then the Plaintiff became upset. Such advice is misleading in that it suggests that the Plaintiff would not also receive as a component of any verdict an allowance for the past medical expenses he would have to refund whereas there clearly would have been such an allowance. 282 It is also appropriate to reflect on the inherent probabilities. Given that one of the subjects of both conferences with counsel was consideration of a Common Law claim, it is inconceivable that the issue of liability was not addressed. Any such consideration would inevitably lead to the conclusion that the Plaintiff was bound to succeed and it strikes me as inconceivable that that would not have been said by a counsel with Mr Dodd's experience in at least one of the conferences. Furthermore, all persons practicing in the area know that any verdict is made up of damages awarded under a number of heads most of which have been referred to in these reasons. One cannot simply address a claim in its totality without giving consideration to the individual heads of damage or "parts" that might be relevant. It is inconceivable that Mr Dodd was addressing the claim except by reference to one or more such parts. Furthermore, had the Plaintiff pursued his claim, he would so obviously have been entitled to damages under the headings of future economic loss and future out-of-pocket expenses, that it is inconceivable that Mr Dodd could have consciously told the Plaintiff that the amount calculated by reference to lost income or earning capacity was "what (he) would have got full stop" or anything along those lines. 283 The inherent probabilities are also against Mr Dodd having made any such statement to the Plaintiff consciously or unconsciously although it must be conceded that the same can be said of Mr Dodd's statement that I have quoted from page 440 of the transcript. 284 The figures that everyone agrees were mentioned argue against Mr Dodd having advised the Plaintiff in any unqualified way to the effect that he "was better off to stay with Workers Comp". So, compellingly, do the terms of the correspondence and history of events over the ensuing 6 months. 285 Attention to the inherent probabilities mean that one should recognise the possibility that the Plaintiff, had he pursued the Common Law claim in contemplation could, at least in substance, "lose everything". However that would occur not, as the Plaintiff suggested, "if I went for it and lost it", but rather if he won but was assessed at having lost only a very small amount of his earning capacity, and did not receive a large sum for future out-of-pocket expenses, so that he recovered a verdict but a small one. It is only by winning that he would have lost his Workers' Compensation rights. 286 This attention to the inherent probabilities and the other matters to which I have referred leads me to the conclusion that, notwithstanding my views as to the honesty of the Plaintiff's evidence, I remain unpersuaded – and the onus of proof is on him – that he was advised to the effect that he would be better off to stay on Workers' Compensation, and might "lose everything". I have already concluded that it is inconceivable that Mr Dodd could have consciously told the Plaintiff that the amounts of $234,000 and $429,000 or so calculated by reference to lost income or earning capacity were "what (he) would have got full stop" or anything along those lines. I think the inherent probabilities are also so strongly against Mr Dodd having unconsciously done so that I should find he did not. 287 The strength of the inherent probabilities also leads me to the view that, despite Mr Dodd's own evidence I should conclude Mr Dodd did not advise the Plaintiff in the terms quoted from page 440 of the transcript. 288 On the other hand, it seems to me probable that figures of $234,000 to $429,000 "full stop" are what the Plaintiff believed, following the November 1995 conference to be the situation. His actions or inertia thereafter are strongly suggestive of a belief that the claim was not worth pursuing. The absence of mention of any sum to cover future out-of-pocket expenses, particularly the cost of prosthetic replacements, the scant attention that topic seems to have received in the conference and the Plaintiff's obvious concern in the conference as to how those costs were to be met certainly explain how this belief could have come about. Particularly is this so when nowhere in the evidence of Mr Honeyman or Mr Dodd is there any statement to the effect that either responded to the Plaintiff's concern by saying words to the effect, not merely that there would be an allowance for future out-of-pocket expenses but one large enough to cover the reasonable costs of replacement, even if that cost was $9,000 a time. Except by general reference to an allowance for future out-of-pocket expenses, which the Plaintiff's concern at the time suggested he did not fully understand, neither Mr Dodd nor Mr Honeyman responded to that concern except by repeating the advice the Plaintiff had either not understood and/or which concerned him. 289 Whilst the probabilities do favour the evidence of Mr Dodd and Mr Honeyman that the Plaintiff was also told that there would be an allowance in any verdict for future medicals or out-of-pocket expenses and I find this occurred, I am satisfied that they did not advise the Plaintiff that that allowance would be of sufficient size to cover the reasonable costs of replacement, whatever that cost should, at the time of advice or trial, be shown to be. Although I accept that this is not the only possible explanation for the Plaintiff's state of agitation during the conference, or belief afterwards that the figures derived from valuing his lost earnings were all he would receive, the totality of evidence as to what was said and what occurred, leads me to the view that it at least probable. To the extent that I accept that the Plaintiff was told that there would be an allowance for future medical of out-of-pocked expenses. I do not regard his evidence quoted at about [94] above and commencing "Mr Dodd said, if I took the matter" as accurate. Otherwise I accept it as substantially accurate.. 290 In this area of the November 1995 conference, there remains an issue of whether Mr Dodd did give any advice favouring the making of a Common Law claim. Mr Dodd said that he told the Plaintiff that if he could substantiate the (higher) figures, there would be no question of bringing a claim". I infer Mr Dodd meant "of not bringing a claim". The Plaintiff denies this. In evidence Mr Dodd also said that he told the Plaintiff that the latter had prospects of a good chance of a couple of hundred thousand. However, Mr Dodd also said that he did not even give a preliminary view as to how the matter was to proceed or advise which way to go and, although this is not strictly inconsistent with his other evidence to which I have just referred, it does not sit happily with it. And, although I place no great weight on the fact, any suggestion that Mr Dodd did advise the commencement of proceedings, even on a conditional basis, derives no support from Mr Honeyman's letter of 20 December. In the result I am disposed to accept the Plaintiff's evidence that no advice of the nature referred to in this paragraph was given although obviously there was pointed out to the Plaintiff the figures of $234,000 to $429,000 as the potential range of damages for loss of future earning capacity (depending on what potential earnings could be established and subject to the discount for vicissitudes not exceeding 15%), and that there would also be an allowance for future out-of-pocket or prostheses costs. Implicit in this conclusion is that the Plaintiff was told something to the effect that he had "prospects" or a "chance" of a couple of hundred thousand. The lack of much positive in Mr Honeyman's letter of 20 December and the Plaintiff's attitude to the claim from the time of the November 1995 conference leads me to the inclination that the Plaintiff was not told he had a "good chance" except possibly in a very qualified way. Although I do not need to rely on it, I should add in this connection that the circumstances in which those parts of Exhibit 15 as are presently relevant came into existence do detract from their weight. 291 The totality of the evidence also persuades me that, contrary to Mr Honeyman's evidence, including Exhibit 15, no advice contrary to or qualifying the observation in the letter of 20 December 1995 that, "We are not totally confident yet that the net amount of any benefit to be derived from that claim (the motor accident claim) would outweigh what is already occurring" was given. 292 I would add also that my consideration of the matter makes very understandable the Plaintiff's answers to the effect that Mr Honeyman had done nothing. Despite Mr Honeyman:- · having received details of the accident soon after mid 1994, · having received by or in October 1994 details of the Plaintiff's earnings and potential earnings and of persons or concrete pumping organisations who could confirm this, · having been informed by the Plaintiff in March 1995, and with credible detail, that the only professional assessment of the future cost of prostheses was too low, and · having informed the Plaintiff that the November conference was for the purpose of Mr Dodd advising whether a Common Law claim was worthwhile (a purpose Mr Dodd reaffirmed at the beginning of the conference), by the end of that conference, the issue last mentioned remained unresolved, no written advice on liability had been received, nothing had been done to determine which view of future prosthetic costs was correct and what those costs would be and no advice given in this respect or as to the amount likely to be received to cover future prostheses costs, none of the earnings details had been checked, the Plaintiff was being told that final advice would have to be postponed until this occurred, and the Plaintiff was being asked to provide matters as elementary as addresses and phone numbers of the organisations he had nominated in October 1994. 293 Of course, the Workers Compensation claim had by then been determined and money's received. However, even that had taken some 16 months since the accident and 12 months since Mr Dodd's advice in the first conference. Despite Mr Honeyman informing the Plaintiff on 6 February 1995 that he would take steps to commence a Workers Compensation application, he did not do this until 1 September of that year. 294 I return then to the eight numbered sub-paragraphs of negligence set out in paragraph 269 above upon which counsel for the Plaintiff relied. In paragraphs 270-275 above, I have made specific reference to sub-paragraphs (iii) to (vi). I would add to my conclusions in respect of that last mentioned sub-paragraph that I am satisfied that although the Plaintiff was given some advice in respect of future out-of-pocket expenses, no specific figure was given, nor was the Plaintiff properly advised of the extent of his entitlement. 295 So far as the balance of the sub-paragraphs are concerned, the forgoing discussion makes it apparent that I do not regard the allegation in sub-paragraph (i) as made out. I think the Plaintiff was given such advice. On the other hand, I am satisfied that, as alleged in sub-paragraph (ii), he was not given any evaluation of any Common Law case in the sense of a likely amount of damages. Sub-paragraph (ii) is made out. The allegation in sub-paragraph (vii) is not established. I am not satisfied that the Plaintiff's agitation was at the time as suggested in this sub-paragraph. It was at another time to which I have referred. The allegation in sub-paragraph (viii) is established. I may add that it is clear from the history of the correspondence which I have given that, at no time was the Plaintiff given a simple written advice summarising the fact or extent, with or without qualifications, of his prospects of success, or the amount of any likely award of damages, in any Common Law claim. 296 The question then arises whether, as contended in the Cross-Claim, Mr Dodd breached the terms of his retainer or breached any duty of care or fiduciary duty he owed the Defendants. 297 It is clear that Mr Dodd regarded the information available to him as inadequate on which to base any final or comprehensive advice. There was nothing unreasonable so far as Mr Dodd was concerned in taking that view. He was not responsible for the absence of the information he regarded as necessary. And while he could have given advice on the basis of instructions or assumptions it seems clear that Mr Honeyman never asked that this occur. If there was at any stage an obligation under the Defendant's retainer of Mr Dodd that he provide any final or comprehensive advice to the Plaintiff on or about 19 November 1995, that obligation was either waived or varied by Mr Honeyman's acquiescence in the proposal that the advice be deferred until further instructions were received. The same may be said in relation to any duty to advise that Mr Dodd may have owed the Defendants. 298 On the other hand there were some areas where Mr Dodd should have gone further than he did in the November 1995 conference. I have already observed that the advice given as to the lump sum value of lost earning capacity was misleading in that there was no reference to a further entitlement on account of superannuation. Mr Dodd should also have explored the issue of the cost of future prosthesis replacement. Although it might have been reasonable to accept the Departmental $89,973 estimate had nothing else been said, the contrast between the Plaintiff's statement that each replacement cost $9,000 a time and the figure of $2,866 in the Departmental estimate and on which the $89,973 was based, required at least enough attention to the topic to allay the Plaintiff's concerns and to make it clear that, whatever the reasonable replacement cost should be, an amount sufficient to cover this would be included in any verdict. Given the Plaintiff's presence and availability to provide further information or confirmation on the topic, it would not have been reasonable to simply note the difference and in a later advice point it out to Mr Honeyman as something to be pursued. No opinion as to a likely final verdict or range of verdicts could be given without this discrepancy being first addressed. 299 As I have said, circa [288] above, I am satisfied also that Mr Dodd did not advise the Plaintiff that that allowance would be of sufficient size to cover the reasonable costs of replacement, whatever that cost should, at the time of advice or trial, be shown to be. Although the evidence is sketchy, I incline to the view also that Mr Dodd did not enquire of the Plaintiff as to how he coped with his prosthesis and merely proceeded on the basis that it is always the case that people have problems with their stumps - in effect, that none are worse than others. The Plaintiff's situation in this regard was clearly relevant to any assessment of his residual earning capacity and accordingly Mr Dodd should have made enquiry and not simply assumed. 300 In so concluding, I do not proceed on the basis that a counsel in Mr Dodd's situation is always, or indeed commonly, bound to review a Plaintiff's medical condition and to check whether the medical reports available are correct. However there were only 2 potentially significant and ongoing medical issues – post-traumatic stress disorder and the condition of the amputated leg. At the time of the conference, there had been no mention of the former later than the Plaintiff's discharge summary but the latter at least was very important to any assessment of future economic loss which Mr Dodd reduced on account of the Plaintiff's residual earning capacity by between about 26 and 33 percent or, by comparison with the Plaintiff's pre-accident net income, between 33 and 44 percent. While Mr Dodd was not in possession of the amount of evidence I am, he did have the reports of Dr Wong and Dr Elliott in both of which there are observations to the effect that the Plaintiff was interested in only outdoor work and in the latest of these, Dr Eliott recorded that the stump was "very tender to palpation". The Plaintiff had not worked since the accident. It is these circumstances which lead me to the view that the Mr Dodd should have addressed the situation of the Plaintiff's leg insofar as it may have borne on his future earning capacity. Had he done so, I think it improbable that he could have come up with a residual earning capacity as high as he did. Certainly is this so in respect of the relatively unqualified valuation of it. There seems to have been no recognition in the calculations or otherwise that it might have been nil or less than $150 per week. Furthermore, the basis for the figures Mr Dodd used seems to have lain not in any matter relevant to the determination to the Plaintiff's residual earning capacity but rather in either the income figures he was using or in assumptions about "anyone with an artificial limb" – see the passage quoted from his evidence at paragraph 139 above. 301 In the immediately preceding paragraphs, I have used the expression that Mr Dodd "should" have done things. I have arrived at this conclusion in light of submissions advanced on behalf of Mr Dodd, and which I accept, that:- (i) A barrister is bound to exercise due care, skill and diligence bringing to the task the competence and skill reasonably expected of barristers practising their profession and taking proper care - Heydon v NRMA Ltd (2000) 51 NSWLR 1 at [146], [362]; (ii) Like other professionals, a barrister is required to do not more than reasonable in all the circumstances, which does not amount to perfections – Rosenberg v Percival (2001) 205 CLR 434 at [68], [219], Sullivan v Moody (2001) 75 ALJR 1570 at [42] (iii) Errors of judgment are not actionable. In the nature of things, an action against a barrister who acts honestly and carefully is very unlikely to succeed – Saif Ali v Sydney Mitchell & Co (1980) AC 198 at 214. 302 In my view, and notwithstanding the opinion of Mr Larry King SC, Mr Dodd offended against these standards when he:- (i) provided lump sum figures for future economic loss without reference to the topic of these sums being increased on account of superannuation; (ii) made assumptions for the purposes of those calculations without making inquiries of the Plaintiff as to the situation of the Plaintiff's stump, the impact of the prosthesis, and the Plaintiff's ability on those accounts to maintain a work situation; (iii) failed to advise or make clear to the Plaintiff that in any proceedings there would be an allowance for future out-of-pocked expenses which would reflect the cost of prosthesis replacement whatever that cost should be shown at the time of trial to be. 303 It was also submitted on Mr Dodd's behalf that a barrister's duty is to advise on specific and identified questions, a proposition which I accept and which derives support from Heydon v NRMA Ltd at [309] and [417]. 304 However, Mr Dodd's brief was to "generally advis(e) … in regard to quantum". The only sensible meaning of this is that the brief sought advice as to the amount likely to be received and this was the task on which Mr Dodd embarked. In the circumstances, Mr Dodd is not to be criticised for not completing the task but to the extent to which he embarked on the task, his obligations extended to all material components of those damages. Furthermore, having entered upon the issue of an award for future economic loss, he could not properly leave the topic in a misleading state. He embarked on an assessment of the value of the loss of the Plaintiff's earning capacity so he was under an obligation to consider the information reasonably available to him. That included loss of superannuation. Another incident of the task as embarked upon in conference was the topic of an allowance for future out-of-pocket expenses. Mr Dodd was in possession of inconsistent pieces of information on the topic. On this aspect also he was obliged to consider the information reasonably available to him and to deal properly with obvious concerns. 305 I should add that the question of counsels' immunity from suit was also raised, reference being made to the decision of the High Court in D'Orta - Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755 and a number of other decisions. However, the High Court made it clear in the decision just mentioned that the protection was for work done in court or work done out of court which leads to a decision affecting the conduct of the case in court – see at [86]. The matters in respect of which complaint is made either against Mr Dodd, or for that matter against Mr Honeyman, are not within this description and accordingly counsel's immunity from suit is not a matter relevant in this case. While undoubtedly the advisability of commencing proceedings was a matter that was, at least impliedly, within the ambit of Mr Dodd's brief, that is not enough to bring Mr Dodd's work within the scope of the immunity. See Saif Ali v Sydney Mitchell & Co (1980) AC 189 at p211. 306 On the topic of the Cross-Defendant's liability his counsel, Mr Windsor, raised in written submissions of which he can be proud 2 further issues. He submitted firstly that, whatever the Cross-Defendant's duties to the Plaintiff may have been, he owed no duty to the Defendant/Cross-Claimant. Secondly, he contended that the plaintiff's decision not to persist with a motor accident claim was not due to any conduct on the part of the Cross-Defendant but by the Plaintiff's perception of lack of activity on the part of Mr Honeyman and the latter's conduct or inactivity was not the result of the Cross-Defendant's actions. 307 Consideration of the second of these submissions can be deferred. So far as the first is concerned, the only duty pleaded in the Cross-Claim is a "duty of care and a fiduciary duty to the Cross Claimant to ensure that he performed his obligations and all incidental matters arising from the retainer in the manner of a competent barrister". It was also alleged that there was "a condition of the Cross-Defendant's retainer (presumably flowing from the brief to advise) that he would exercise the care and skill of a competent barrister" and, "if the Plaintiff's allegations of negligence against the Cross-Claimant are established …then the Cross-Defendant breached the terms of his retainer". 308 In judging whether Mr Dodd owed any duty to the Defendants/Cross-Claimants, it is relevant to bear in mind that their loss, if any would have been of a financial nature, not physical injury. They did not suffer from any special vulnerability which commonly is a prerequisite to the existence of a duty such as that alleged – Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [23], [31], [80], [212]. The topics upon which advice was being sought were all ones of which one would expect every solicitor practicing in the field to be aware. Furthermore, I see no other circumstance which would tend to argue for the existence of a Common Law duty such as is alleged. 309 Nor is there any basis for the claim that there is a fiduciary duty. The foundation for the claim for the existence of a condition that the care and skill of an experienced barrister is not clear. No contract is alleged and although no doubt the solicitors were entitled to expect that such care and skill would be exercised, nothing has been advanced as to why that expectation should give rise to, or be accompanied by, some legal obligation or liability if the expectation was not realised. 310 In the Cross-Claim the Defendants also made a claim for contribution under the Law Reform (Miscellaneous Provisions) Act 1946 for contribution or indemnity. There can be no doubt that Mr Dodd did owe obligations in tort to the Plaintiff and, if both he and the Defendant's have breached their duties to the Plaintiff, then there exists foundation for allowing such a claim to succeed notwithstanding the absence of an express allegation that the Cross-Defendant owed a duty to the Plaintiff. But before that aspect is pursued it is appropriate to reflect on the Plaintiff's actions and the significance of any defaults on the part of the Defendant or Cross Defendant to them. 311 As has been said, the November 1995 conference concluded with further and more definitive advice being contemplated. In opposition to the Plaintiff's claim it was submitted that ultimately it was conduct and inaction on the part of the Plaintiff which led to no such advice being obtained and proceedings against Mrs Constable not being instituted. It was submitted that insofar as the Plaintiff did not commence the contemplated Motor Vehicle Act proceedings against Mrs Constable in 1996, he was the author of his own misfortune. Furthermore, it is submitted that it has not been shown that the Plaintiff could not have commenced proceedings later, seeking an extension of the limitation period to do so. 312 In my opinion the latter suggestion is unrealistic and the Plaintiff's conduct in not seeking an extension of the limitation period not unreasonable. The costs of such an application would have been not insubstantial, as Mr Hooper's evidence makes clear, and there was no guarantee, and perhaps even probability, of success. The Plaintiff's decision not to commence proceedings in 1996 was deliberate, reflecting a choice to prefer his Workers' Compensation rights and in circumstances where he was receiving legal advice and a court, asked to extend time, might well have taken the view that there were no adequate grounds to do so. Insofar as the Plaintiff may in such an application have complained about the quality of the advice he had received at the time of making his choice, he may well have been left to pursue such rights against those advising as he had. Furthermore, relevant to any suggestion that the Plaintiff's conduct in not seeking an extension of time was unreasonable seems to me the question of whether he was even advised to, or that he could, do so. There is no evidence to this effect. 313 It is also not unreasonable to think that, no action against Constable Brothers having been commenced, the insurer of that organisation took no steps, by surveillance or medical examination during the period between 1996 and, say 1999 when the Plaintiff consulted other solicitors in response to the proposal from MMI to consider the Plaintiff's situation and which is the earliest time that any application for an extension of time would have been made. While I have been impressed by the Plaintiff, that view has been reached in light of the evidence in the trial before me and, to a lesser extent, the way the trial has been conducted. It cannot be assumed that in an application to extend time, the respondent to such an application would have conceded that there was no prejudice in not having been sensibly able to make checks on the Plaintiff. 314 The claim that it was conduct and inaction on the part of the Plaintiff which led to no further advice being obtained and proceedings against Mrs Constable not being instituted, that thus he is the author of the situation in which he finds himself and any loss is not causally related to conduct of the Defendant requires further attention. Clearly the Plaintiff could have waited longer for, hopefully definitive, further advice from Mr Honeyman and Mr Dodd or gone to another solicitor and calm reflection and the benefit of hindsight indicate that he may well have been wise to do so. 315 However, in the circumstances he was in, I do not regard his actions as unreasonable. Firstly, while I do not forget that Mr Dodd's involvement with the Plaintiff was limited, and his direct involvement even more so, 2 lawyers had had over 12 months to consider the Plaintiff's situation. As seen from the Plaintiff's perspective, their performance had not been such as to inspire any confidence that he would receive definitive advice within a further reasonable or short period. It had been indicated to the Plaintiff on a number of occasions – 26 October 1995, 13 November 1995, 20 December 1995 that they were not confident, and by inference had considerable doubts, whether a motor vehicle claim would be worthwhile. Viewed through his eyes at the time, such a claim would, at best, have involved uncertainty whether the cost of prostheses would be covered during the rest of his life. 316 And although the Plaintiff did understand at the end of the conference that further information had yet to be obtained, that further information was but confirmation of that which had led to the higher of Mr Dodd's calculations. It was not information that, at least so far as the Plaintiff was aware, was liable to increase the highest figure that Mr Dodd had mentioned. 317 Whether or not the Plaintiff suffered from post-traumatic stress disorder, the loss of his leg at his age and with his interests in the outdoors must have been very traumatic. Not all people cope well with uncertainty and while some is a necessary incident of many activities in life, it does not seem to me that the Plaintiff was unreasonable to say that enough was enough in that connection and to accept in his mind the certainty of Workers Compensation and put out of consideration the uncertainty of a Motor Vehicle claim. Furthermore, although it is not unlikely that the Plaintiff's decision was inspired at least in part by a mistaken belief that all he would receive from any Motor Accidents Act claim was a figure calculated only by reference to his loss of earning capacity and not increased by an allowance (or perhaps adequate allowance) for future prosthesis costs, I have no doubt that contributing factors included Mr Honeyman's delays, the absence of a clear statement that there would be an allowance for out-of-pocket expenses sufficiently large to cover prosthesis replacement whatever that cost reasonably appeared at the time of trial to be, and the fact that $429,000 was indicated as the maximum he could receive on account of lost income. The last of these matters was a reflection of the offending to which I have referred in paragraphs (i) and (ii) circa paragraph [304] above 318 Thus, subject to what follows, in the events that happened, the Plaintiff's failure to commence proceedings was a consequence of Mr Honeyman's breaches of duty to the Plaintiff. In so concluding, I have not found it necessary to rely on the opinions of Mr Hooper. Those opinions, which I accept, strengthen the conclusions at which I have arrived. 319 With a similar qualification, the Plaintiff's failure to commence proceedings was a consequence of Mr Dodd's breaches of duty to the Plaintiff. In so concluding, I should expressly reject a submission by counsel for the Cross Defendant that no causal connection was established between anything Mr Dodd did or did not do. In support of the submission reliance was placed on the following evidence by the Plaintiff:- "Q. You decided, did you not, at least by the middle of 1996, that because of what you perceived to be the lack of activity on the part of Mr Honeyman, that you were not going to proceed to bring a motor accidents claim? A. Yes." 320 As a statement of the exclusive factor(s) which led to the Plaintiff's decision at that time not to pursue Common Law proceedings, I do not accept the evidence. I have no doubt that there were a series of factors which operated, including actions by Mr Dodd. 321 It is however also necessary to consider, as best one can, what would have been the situation had these breaches not occurred. This includes making an assessment of the advice Mr Dodd would probably have given. That would not necessarily, and in my view probably would not have, involved specific mention of all components reflected in a verdict. Some approximations had necessarily to be made, e.g. the Plaintiff's residual earning capacity. And once that conclusion was reached, it was likely, and in my view not inappropriate that amounts, relatively minor either in themselves or when taken into account with other amounts, be ignored. The value of past loss of superannuation and the Fox v Wood component fall into this category. So probably does past economic loss except insofar as an increase in income would have been achieved. I deal with that possibility and its consequences later. 322 Mr Dodd took the view that the damages for non-economic loss would approximately equal what the Plaintiff had received under s66 and s67 of the Workers Compensation Act and, because of the obligation to refund, allowed nothing on this account in his assessment of what was likely to be recovered in any motor accident claim. It was not unreasonable for Mr Dodd to take that view. 323 Except for a little from Mrs Constable, no evidence was called before me as to what the response of Mr or Mrs Constable, Darryl Day, W & D Mobile or East Coast Concrete Pumping or any other such person would have been to any of the enquiries that should have been made by Mr Honeyman. Almost the only evidence which bears on the topic is some evidence of Mrs Constable to the effect that in the financial year ending 30 June 1999 the average weekly earnings paid by Constable Brothers to a pump operator were, she thought, approximately $1,000, together with superannuation in accordance with the Commonwealth legislation. Mrs Constable said that obtaining his full crane operator's ticket would, but obtaining his 3B driving licence would not, have resulted in an increase in pay from what the Plaintiff was receiving pre-accident. Mr Constable's evidence leads me to the view that obtaining the crane operator's ticket would have been within a matter days after the accident although there is not evidence that any increase in pay would have been immediate. 324 There was also in evidence information from the New South Wales Department of Commerce detailing award rates for Mobile Concrete Pump Operators. As is usual in the case of such awards, there were numerous limitations and extra entitlements which might be payable. No counsel sought to take me through all of these. However it does seem that the award rate was much less than the figure advanced by Mrs Constable. Nevertheless, I do not find in that fact reason for not accepting what Mrs Constable had to say. She was not challenged on it. 325 Mrs Constable's evidence referred to the year ending 30 June 1999. To derive figures for other years, the Plaintiff's counsel adopted a discount or addition of 3% from Mrs Constable's figure. That seems a reasonable approach and I propose to adopt it. If applied cumulatively, it leads to a figure of about $885 per week gross and $634 net for the year ended 30 June 1995. (On behalf of the Cross-Defendant a figure of $600 net was suggested although the basis of that is not apparent.) I may perhaps add that, although I do not regard what the Plaintiff said in this regard as evidence of the truth of the facts, $885 is above the Plaintiff's estimate that another employee of Constables, Mr Brown was on an income of about $800 per week, but below the Plaintiff's estimate of what other employees in the industry were earning, viz $900 to $1,200 per week. 326 There being no other, I accordingly approach the issue of what advice as to the value of his lost earning capacity the Plaintiff would have received in November 1995 or thereabouts had Mr Honeyman carried out his preparation properly on the basis of Mrs Constable's evidence and the discount to which I have just referred. 327 To derive net figures, I have multiplied the gross weekly figures so derived by 52.14 weeks, taken the tax figures and Medicare levy rates from the back of the ATP Australian Tax Handbook for each of the years, and divided the result by 52.14. The following table sets out the results which I need to use:- Year Gross Weekly Gross Annual Tax M'care Net Weekly 1994-5 885 46,144 12,443.92 646.01 633.95 1995-6 913 1996-7 941 1997-8 970 1998-9 1000 1999-2000 1030 53,704 15,842.88 805.56 710.69 328 The appropriate multiplier to determine the present value of $1 per week for 40 years is 917.5. Mr Dodd was correct to use a discount for vicissitudes and nothing less than 15% was appropriate. Applying these figures to a net weekly income of $634 would lead to a figure of $494,440. $634 x 917.5 x .85 = $494,440 329 Had the information as to earning capacity been available it is to be inferred from Mr Dodd's evidence that he would have made a calculation of the value of lost future superannuation. Although as I have said the compulsory rate of superannuation in November 1995 was 5% and under the legislation then in force superannuation contributions were not to be 9% until the 2002-2003 year, it is sufficiently accurate for present purposes to use that latter figure throughout the assumed working life of 40 years. An appropriate assessment of the value of the loss of superannuation upon the basis of the figures just mentioned is $44,500:- $494,440 x 9% = $44,499.60 330 Mr Dodd took the view that a Court would be likely to assess the Plaintiff as having some residual earning capacity and adopted $150 and $200 in this regard. If those figures are taken into account, the 1995 present value of the Plaintiff's lost earning capacity is ($634 - $150) x 917.5 x .85 = $377,459.50 or ($634 - $200) x 917.5 x .85 = $338,465.75 and his loss of superannuation:- $377,459.50 x 9% = $33,971.35 or $338,465.75 x 9% = $30,461.92 331 As might be expected, given the starting figures, both of the values for lost earning capacity are less than the $429,000 arrived at by Mr Dodd in the calculation he did using a starting point of $750 net per week – a figure which approximated $1,110 per week gross – and deducting $200 on account of residual earning capacity. 332 The difference between the amount the Plaintiff was receiving by way of Workers Compensation payments and $913 per week ($634 net) is such that the approximate value of this should, and probably would, have been calculated had all the information been available. To take account of incidental complications, such as some delay in the Plaintiff's income increasing and the fact that his Workers Compensation payments for some time equalled his net pre-injury salary, a 12 months time period is close enough for present purposes. The appropriate calculation of this loss is:- ($634 - $364) x 52.14 = $14,077.80 333 In the document wherein the cost of replacement of prostheses during the Plaintiff's lifetime is estimated at $89,973.38, an allowance is made for maintenance and stump socks totalling $432 per year. Prosthesis replacement is estimated as required every 2 years or 24 times during what is there said to be the length of the Plaintiff's life expectancy – 49.14 years. 334 Born on 16 March 1971, the Plaintiff was 24 in November 1995. His life expectancy was, according to the prosthesis calculation, 49 years. According to paragraph 10.117 of the Law Book Company's Personal Injury Law Manual, the ABS Publication, "Deaths, Australia 2003", based on information collected during 2000 to 2002, his life expectancy was 54.8 years. Adopting an approximate median of 52 years, the appropriate multiplier on the 5% tables to assess the 1989 present value of the cost of prosthesis and sock replacement and servicing would be 984.9. 335 Although the Plaintiff told Mr Honeyman that prostheses cost about $15,000 per time, the Plaintiff told Mr Dodd that it was $9,000. Subject to one matter, given that the onus is on the Plaintiff, there was no basis for Mr Dodd adopting the higher figure. Converting the (2 yearly) $9,000 figure and the annual $432 to weekly figures, the result is $94.60 per week. Applying to this figure the multiplier of 984.9, the 1995 present value of the replacement cost of the Plaintiff's prostheses (including socks and maintenance) was $93,171. 336 However, if Mr Honeyman had made the enquires he should have so far as prostheses were concerned, he would have found out that costs were significantly higher than those I have just used. As is apparent in Exhibit K, the cost of maintenance and socks etc in the 10 months period October 1994 to August 1995 was $564.50 - $677.40 per annum. The cost of the prosthesis in May 1995 was $12,171.20. Upon the basis that prostheses have to be replaced every 2 years, the cost of prostheses etc works out at $6,763 per year or $129.71 per week. (I have adopted the period of 2 years because that is the period stated in the report from the Department of Veterans Affairs, and the period stated in the Appliance and Limb Centre report for the replacement of the recreational limb. The longer replacement time for what seem to be more technologically advanced limbs seems to be accompanied by substantially greater capital and maintenance costs. I have also put to one side the fact that the May 1995 prosthesis was only 6 months after an earlier, presumably temporary, prosthesis and the reference in Exhibit K to prices increasing.) 337 I should perhaps add that the evidence does not permit me to conclude that any occasion for the Plaintiff to have a second recreational waterproof limb was in 1995 known or would have been known if enquiries had been made, either of the Plaintiff or of the Appliance and Limb Centre. 338 Applying to the sum of $129.71 the multiplier of 984.9, the 1995 present value of the prosthesis cost during the Plaintiff's anticipated lifetime is $127,751. 339 Thus if Mr Dodd had had in November 1995 the information he should have had, his advice as to the value of the Plaintiff's common Law claim (putting aside moneys liable to be refunded or offset) would have fallen within a range indicated by the following:- $494,440 + $44,499 + $14,077 + $127,751 = $680,767 $377,459 + $33,971 + $14,077 + $127,751 = $553,258 $338,465 + $30,461 + $14,077 + $127,751 = $510,754 340 However it must be recognised that Mr Dodd took the view that a court was likely to have regarded the Plaintiff as having some residual earning capacity. His view was without the benefit of the further enquiries that he should have made of the Plaintiff but I doubt if he would have taken a different view on that issue of some residual capacity even if he had made those enquiries. It must be borne in mind that the Plaintiff's post-accident history was much shorter then than it is now. That said, I have expressed the view that if Mr Dodd had made the appropriate enquiries, it is improbable that he could have come up with a residual earning capacity as high as he did, certainly in respect of the apparent definite valuation of it. (I should perhaps add that, while in my view both Mr Dodd and Mr Honeyman should have raised with the Plaintiff his capacity to work and, in that connection the condition of his stump, on the issue of whether the Plaintiff had, or a court would regard him as having, a residual earning capacity, Mr Honeyman was entitled to defer to Mr Dodd's view.) 341 Thus I regard it as unlikely that Mr Dodd would have included in the range of possible damages – putting aside moneys that would effectively be offset by repayments - an amount as high as $680,767. The probabilities are that if Mr Dodd had had the information then available and which Mr Honeyman should have obtained, Mr Dodd would have estimated the likely damages, again ignoring moneys that would effectively be offset by repayments, as within the range of about $510,000 to $553,000 or thereabouts. 342 Both of these figures are a long way short of the figure of $868,233 referred to in the actuarial report which the Plaintiff saw in about 1999 and which was reflected in his evidence that if Mr Honeyman had given him advice to the effect that his motor accident claim might be worth of that order but he would lose his compensation rights, he would have proceeded with his motor accident claim. While the extent of the difference between Mr Dodd's figures of $234,000 and $429,000 plus an unquantified amount on account of future out-of-pocket expenses on the one hand and $868,233 are such that it would not be difficult to accept the Plaintiff's evidence to which I have just referred, the difference between Mr Dodd's figures and $510,000 to $553,000 is much smaller. 343 (Before turning to the issues that next arise and although the limited basis upon which the actuarial report was admitted into evidence makes it unnecessary that I compare it with the figures at which I have arrived, having regard to the Plaintiff's experience with lawyers, it is not inappropriate that I add the following. Compared with the figures of $338,465 and $377,459 referred to above, the actuary assessed the value of the Plaintiff's loss of future income at $385,399. For most of the period under consideration he used an assumed net loss of income of $435.82 per week, not far from the lesser figure I used, albeit he derived it on the basis of Average Weekly Earnings, Males Full - Time Adults, Ordinary Time Earnings as published by the Australian Bureau of Statistics and assuming the Plaintiff had no residual earning capacity. The actuary assumed a period of only 36 years. However, he would seem not to have made any allowance for the vicissitudes of life, whereas I have allowed a 15% discount on that account. It is that factor which contributes most to the difference in ultimate result so far as future earnings are concerned. 344 The actuary's allowance for loss of superannuation of $32,489 is close to the figures I have used. His allowance for the future cost of medical treatment of $450,345 is much higher than the $93,171 at which I have arrived. The major difference lies in the fact that he has allowed for the cost of 3 separate artificial limbs which seem to be items (1), (2), (3) in Exhibit K and the other items referred to in that exhibit. 345 This works out at an average annual replacement cost of or about $16,981. The actuary also allowed repair and maintenance costs at an average figure of $5,306 together with further amounts for airfares and stump sock and other incidental items. The evidence before me did not provide any foundation for the conclusion that, as at November 1995, many of the items which the actuary took into account were or should have been known to Mr Honeyman or Mr Dodd.) 346 I return to the question of what impact advice such as I have concluded would have been given would have had on the Plaintiff. He had, of course, 2 options. He could have elected to stay with his Worker's Compensation rights in which case he would be in the situation he is in now and has suffered no loss through any fault of the Defendants or Cross-Defendant. Alternatively he could have chosen to pursue Common Law proceedings. 347 I do not draw any inferences adverse to the Plaintiff from the fact that he has not given evidence as to what the impact of advice such as I have contemplated would have been. Given the existence of the $868,233 figure, and the way the case was presented on his behalf, he was not asked and there is no reason to think that the absence of any such questions was because the answers would have hurt him. 348 My inclination is to think that probably the extra $100,000 or so involved in an assessment of the order of $510,000 to $553,000 rather than the figure of $429,000 would have induced the Plaintiff to pursue the Common Law route, particularly if that assessment was indicated as fairly firm as the product of corroborative information as to the availability of a higher income had the accident not occurred. The Plaintiff's delay in deciding against the Common Law route when the assessment included a top figure of $429,000 argues in that direction. However it is not only a change in the final figure which, in my view would have occurred had the lawyers' tasks been performed without breach of their obligations. 349 The figures of $510,000 to $553,000 include a calculated capital sum representing the value of the prostheses etc at the rate they were costing at that time. It strikes me as likely that if advice on the basis of the information Mr Dodd should have had available to him in November 1995 was being given the Plaintiff would have been made aware of the fact of calculation, that the basis of it included the actual cost of prostheses replacement, and of the fact that the figures of $510,000 or $553,000 or whatever amount was finally awarded included or would include not only an allowance for future prostheses and medical expenses but an allowance based upon the upon the actual up-to–date cost of replacement of the prostheses. There is no doubt that possible inability to fund these replacements was a major concern the Plaintiff had and, for one reason or another, this was not addressed and the advice which should, and I think would, have been given would have been calculated to allay concerns arising from replacement costs well in excess of the $2,866 on which the $89,973 was based. Such advice would probably also have avoided the Plaintiff's belief that the sums at which Mr Dodd arrived on the basis of future lost earnings were what the Plaintiff would receive "full stop" and the cost of future prostheses had to be met out of these. 350 These further matters strengthen my view that, had Mr Honeyman's omissions not occurred, the Plaintiff would have instituted Common Law proceedings. 351 Though some, but not all, of the factors are different, for largely similar reasons I also take the view that, even if all he had was the inadequate information Mr Honeyman provided, if Mr Dodd not failed in the respects listed in paragraphs (i) to (iii) circa paragraph 301 above, the Plaintiff would have elected to proceed at Common Law. 352 I turn then to the question of damages. Although this may not be the only method of assessing them, I shall follow that used by the parties of considering what was likely to be the amount of a verdict had Common Law proceedings been brought, and then make allowance for the value of the Workers' Compensation rights which have in fact been retained but which would have been lost had such a verdict occurred. In light of my finding that any Common Law proceedings would have been commenced in mid 1996, the parties all accepted Mr Dodd's evidence that these would have come on for hearing in early 2000. Damages if assessed in February 2000 353 I should acknowledge at the outset that in considering what award of damages would probably have been made in February 2000, I am required to assess the matter as if it had proceeded to trial at that time and subsequent events and evidence are only relevant insofar as they indicate what assessments would have been made then. I desire to make clear that any use by me of the present tense should not be taken as a departure from the approach recorded in this paragraph. I also do not ignore the possibility that any proceedings may have been settled. However, the time of trial seems as likely a time in that regard as any other. If a precise date is needed, the 29 February 2000 would be appropriate. 354 During the hearing I indicated to counsel my preference for leaving calculations consequent on what I may call primary decisions to be made by them or their advisers and accordingly shall largely restrict what I now say to those primary decisions. Because of changes that occurred since November 1995, such findings will differ to some extent from my conclusions as to the bases upon which advice at that time would have been given. 355 It is common ground that by February 2000 $273,000 was the amount awardable under s79 of the Motor Accidents Act for a most extreme case – see Motor Accidents (determination of Non-Economic Loss) Order, No. 10. I am not persuaded that the Plaintiff's injury put him as far up the scale as Mr Dodd seemed disposed to think, nor even at the 67.5% level suggested in written submissions on behalf of the Cross-Defendant who largely made the running by way of resisting the claim for damages. I would assess the Plaintiff's loss on this account as 60% of the $273,000 figure. 356 The Plaintiff's potential earning capacity had the accident not occurred should be calculated on the basis of a gross income of $1,030 per week. In the table appearing earlier in these reasons, I have set out what the corresponding net earnings appear to be – say $634 per week. Calculations should be done on the basis that he would have worked for 36 years from February 1990, i.e. till the end of February 1026 when he will be 2 weeks short of 65. The multiplier for 36 years is, according to the tables at paragraph 10.50 in the Law Book Company's Personal Injury Law Manual, 884.8. 357 An issue which arises is whether the discount for vicissitudes should be 15%, the usual figure and that which Mr Dodd used or some higher figure. Relevant in this regard is not only the lengthy period under consideration but also the Plaintiff's traffic record and his conduct following the accident that may fairly be characterised as irresponsible. His driving history pre-accident provides grounds for arguing that not all that occurred post accident in these respects was a consequence of the accident. However, the conclusion at which I have arrived is that 15% is the appropriate figure to allow. The Plaintiff gave evidence to the effect that the earnings of owners of concrete pumps were considerably in excess of those of employees and while there is no basis for concluding that the Plaintiff would probably become such an owner, it is wrong to look only to events that may have reduced the plaintiff's earning potential. 358 The Plaintiff's residual earning capacity is a more difficult question. On behalf of the Defendants and Cross-Defendant it was submitted that this was substantial and not less than $350 per week. I do not agree. 359 In this connection I accept the Plaintiff's evidence as to the impact on him of use of his prosthesis. While this evidence was not supported to the extent one might have expected by medical evidence, neither did the Defendants or Cross-Defendant call any to the contrary. Dr Wong's reports argue against what the Plaintiff said but Dr Elliott's provide the Plaintiff with significant support. Furthermore, I found some of the Plaintiff's evidence on the topic particularly impressive. In this regard I include his statement that his leg was covered in red sores from 2 days' attendance at court – evidence which could very readily have been challenged or, if it was wrong disproved, but was not. In fact the Plaintiff's evidence as to the impact on him of the prosthesis was not challenged at all. 360 This acceptance of the Plaintiff's evidence leads me to the conclusion that he could not obtain work as an employee. In arriving at that conclusion, I do not ignore the evidence of Mr Hawkins. However, I think the probabilities are that any employer would be unwilling to give the Plaintiff the flexibility which the Plaintiff's evidence indicates he needs. 361 I also incline to the view that, given the Plaintiff's history and choice to work outdoors, it would be unreasonable to expect him to embark upon employment which kept him inside a shop or office full time or to do something such as simply packing. "Degrading" may not be a fair description of packing but I do not believe that a negligent defendant is entitled to expect someone injured by his negligence to expect that person to do anything, just so long as it is remunerative. Although I do not rely on it, comparison may be made with the reference to demeaning work in s43A of the Workers Compensation Act. 362 Furthermore, although again I have not had to rely on it, relevant in this connection is that I do not believe the Plaintiff's mind-set would permit him to remain as a counter-clerk of salesman or the like. I appreciate that there must be limit to the extent such an attitude can be allowed to influence decisions in this regard but with the Plaintiff's beliefs, genuinely held, as to what he from before the accident, saw as his way of life, I do not believe that he could force himself sufficiently to carry out such occupations satisfactorily. 363 On the other hand, the Plaintiff's evidence as to his capabilities, argues in favour of him being able to engage in some remunerative employment. Woodwork, carpentry, furniture repairs and at least some boat building are among his skills and, suitably located and with suitable tools and workshop, there seems no reason why he could not earn some money using these skills, even if work has to be slowed or regularly interrupted to cope with the demands of removal or replacement of his leg, or rest. Insofar as attention is confined to these matters, I would not be persuaded that the Plaintiff has established a complete loss of all earning capacity. 364 However, there are also considerations incidental to the establishing of such a workshop. Finding a location where both work and, at a reasonable cost, space is available is likely to be one and not necessarily easy. Some expense would be involved in establishing, and continuing to operate, such a workshop which may well have to be set up so as to enable work to be done standing or seated. 365 Although it seems to me that the establishment and operation of this sort of business should be practicable, the actual doing of it by someone in the Plaintiff's situation, without prior practical experience in any such business, is not a matter of general experience or a matter upon which there was any evidence. Nor is there evidence of what risks, such as an on-going liability for rent, there may be. 366 In the Plaintiff's situation, any assessment of an earning potential is fraught with uncertainty. Certainly no finding as to a particular course of remunerative employment could be made on the balance of probabilities. Quite apart from what he can do, there is the issue of whether opportunities to use that ability will arise or can be found – a matter upon which there is little evidence. However, equally it seems to me that a finding that the Plaintiff, except as a matter of choice, will probably never earn anything is not justified. However, I am persuaded that such earning capacity as he has left is low, whatever his efforts, and unlikely to be productive of much income. He has not persuaded me that his residual capacity is less than $100 per week but I would not assess it as higher. Damages for loss of earning capacity should be assessed on that basis. 367 In arriving at these conclusions, I do not ignore the fact that operating in a workshop such as I have contemplated is, at least to some extent, indoors. However, it is likely to be less so than many other jobs, particularly if the Plaintiff is his own boss. Nor have I ignored the report of Mr Hawkins, the vocational psychologist. However, I do not accept much of what Mr Hawkins said. I do not regard it as necessary to indulge in a comprehensive critique of the report but the following indicates some of my reasons. 368 Firstly, whether or not the Plaintiff will not have the large capital sum that Mr Hawkins envisages in part of his report, the Plaintiff may be well advised not to risk such capital in the sort of business ventures contemplated. Secondly, most of the jobs Mr Hawkins mentions are so removed from the Plaintiff's past interests and my findings as to the Plaintiff's limitations that not only do I regard it as unreasonable to expect the Plaintiff to do them but that they are suggested is an indication that Mr Hawkins seems to have placed too much emphasis on the Plaintiff's intellectual abilities and not enough on his physical or psychological limitations. Examples are Betting Agency counter clerk, Production Recording clerk, Tour Guide and Word Processing Operator. Nor do I accept the suggestion that "had (the Plaintiff) been more involved in the vocational rehabilitation process it would have become obvious to him that his rehabilitation provider could have negotiated appropriate duties and hours with an employer for him, taking into consideration the reported restrictions". Such a statement does not seem to me consistent with the Plaintiff's limitations as I have found them. Also, I would take a great deal of persuading that employers, except in industries where work is very unattractive, are so understanding. 369 Despite my recognition in the opening paragraph of this section of my reasons that the time at which damages should be assessed is early 2000 and of the limits to which evidence of subsequent events can be used, I should say more in respect of the matters adverted to in my consideration of this topic. The evidence as to the impact on his stump of walking to court is obviously of events in 2005. It is the evidence of the Plaintiff having built a boat in 1994 that leads me directly or indirectly to some of the other conclusions just expressed. However, the Plaintiff's accident happened in 1994. The probability is that the condition of his stump, his disabilities and the impact of his prosthesis stabilised before 2000 and what he could and could not do in 2004 and 2005 were things he could and could not do in 2000 also. 370 Allowance for loss of superannuation, pre-verdict loss of earnings and Fox v Wood can be calculated from findings I have made or matters of record such as the Plaintiff's Workers' Compensation payments. There is no basis for any Griffiths v Kerkemeyer damages. Out of pocket expenses to the date of assumed hearing will also be a matter of record. (The exhibit setting these out does not detail the extent to which these were before or after February 2000.) Amounts to be paid back are also a matter of record. 371 The allowance likely to have been made in early 2000 for future prostheses or other out-of-pocket expenses is a matter to which I must expressly advert. Exhibit K, the report from the Appliance and Limb Centre makes it apparent that the costs associated with the provision of prostheses has been much greater than would have been apparent in November 1995. The difference in cost between the prostheses supplied in 1995 and 2000, together with the difference in description indicates that the latter reflects a quantum leap in technology. At least to the extent that the higher costs were incurred, they arose first on 8 June 2000 and it was submitted that they should not be allowed in an assessment notionally made in February 2000. However Mr Brown, the author of Exhibit K gave evidence that the newer type of prosthesis had become available in early 1998. Any half-decent preparation of the Plaintiff's case for trial in 2000 would have involved the obtaining of a report as to likely future costs, probably from the Appliance and Limb Centre, and in this situation it is appropriate to take into account much of the information in Exhibit K for the purposes of determining the damages likely to have been recovered in February 2000. Allowance will have to be made for changes in costs over time but the exhibit provides some indications of these and Mr Brown provided other information in this regard. While I do not believe that all of the post-February 2000 costs should be reflected in the assessment required, in principle, I regard the exhibit as throwing light on the February 2000 assessment. 372 The information that was, or I infer would have been, available in February 2000 is that for the period 31 October 1994 to 8 June 2000 and, subject to the qualifications that follow, that contained in pages 3 and 4 of the report, exhibit K. One qualification relates to costs which it is clear increased between February 2000 and the date of the report, December 2003. The cost of item 3 on the third page should be taken as at February 2000 as $44,742, the cost of the prosthesis supplied on 8 June 2000. Reflecting evidence given by Mr Brown and not challenged, the cost of the other items should be adjusted by 3% per annum. Where a range of figures is given, e.g. "7 – 10 hours", the mid-point should be used. No allowance should be made for the extended warranty plan. 373 There should not be included in the Plaintiff's damages any other of the amounts appearing on page 2 of the exhibit, except insofar as the items are reflected on pages 1, 3 or 4 or what follows. As specific items or costs I am not persuaded that they would have been in contemplation in February 2000. On the other hand, as with any mechanical or physical objects, breakages as distinct from usual servicing, occur. In accordance with experience in other fields, I would not anticipate these to be covered by any warranty and some allowance should be made for them. It is known that stumps sometimes change and I would infer that sockets need adjusting in consequence. Labour costs for repairs and maintenance are already included in the report and I would allow another $500 per year on account of "parts". 374 Implicit in what I have said is rejection of the submission that as Mr Brown's report was generated in December 2003, the increases in costs did not occur until after the notional date of trial and Mr Brown did not say that as at February 2000 he was aware of the likely future cost of the Plaintiff's prosthetic needs, I should not assess the Plaintiff's claim in this regard by reference to the Appliance and Limb Centre report but by reference to the $89,000 odd assessment. The submission ignores the fact that there was plenty of time between the introduction of the advanced limb, as Mr Brown said in late 1997 or early 1998 and early 2000 for these matters to be known and, as I think would have occurred, introduced into evidence in early 2000. 375 I have wondered whether the full spare limb, item 2 on the third page, was not a little extravagant in light of the limited period that use of that item seems to be required. However, the need for or use of the 3 prostheses was explained and I have concluded that the claim is reasonable. I may perhaps add that there was no challenge by the Defendant or Cross-Defendant to the content of the exhibit. Although I do not need to rely on this, having reached my conclusion on other grounds, it may well be that this absence of challenge was tactical as a the Cross-Defendant's submissions claimed a deduction for the costs set out in the report. 376 I should also add that there was evidence that the Plaintiff does not in fact have a recreational, and perhaps the second, limb referred to on page 3 of Exhibit K. I do not regard that evidence as evidence that would have been available in February 2000 or such as to create doubt on what the Court would then have done. Accordingly, in any calculation of the damages that would have been awarded in 2000, this evidence should be ignored. 377 In light of a submission made in paragraph 119 of the Cross-Defendant's submissions, I indicate that there should be no discount in the calculation of this component for vicissitudes. The considerations that apply are quite different from those relevant to an assessment of lost earning capacity. 378 In February 2000 the Plaintiff was then 28. His life expectancy, according to the Life Tables at paragraph 10.117 in the Personal Injury Law Manual was then 51 years. An appropriate multiplier, according to paragraph 10.50 of the publication, was 978.4. 379 The Plaintiff's counsel also made a claim for cost of future treatment at the rate of $50 per week, or approximately $50,000. There is no specific evidence supporting such a claim although Dr Wong's report of September 2003 indicates that the Plaintiff then complained of back ache and right knee pain and that this may be due to the Plaintiff's not completely natural gait. September 2003 is not February 2000 but again I would not expect there to have been any substantial difference. I have remarked on the quality of the Plaintiff's limp which I accept to be genuine. In light of experience both generally and in the work in the Common Law Division, I think that I can take judicial notice of the fact that non-natural gaits have a tendency to cause problems in other parts of the body, particularly the spine and, both on this account and of the situation of the amputated limb, any assessment made in February 2000 should have included some allowance for the cost of future medical treatment. Evidence of when, and how much treatment in this regard should be could have at best have been very imprecise but future treatment could well include operations. 380 The Plaintiff has clearly required other medical or psychiatric treatment since the accident which I am satisfied flows from it. I am satisfied that something should and would have been allowed on this account in February 2000 for the future. The determination of amount is more difficult. Indeed it is impossible to determine with precision. An allowance of a lump sum cushion of $10,000 seems to me appropriate. 381 One matter which arises although not the subject of any express reference by counsel is travelling expenses. Exhibit S records that $24,706.48 was paid by the Workers Compensation insurer on this account. The report, Exhibit K, said that the Plaintiff would have to be in Sydney for attention to the prostheses. He gave his address as Barney's Point, which seems to be near Gladstone and therefore some substantial distance from Sydney. These matters would lead me to the view that something should have been included in any 2000 verdict for ongoing expenses in this regard. I would anticipate that the parties could agree on an appropriate figure but if not, the nature of the topic is such that I would either allow further evidence or, if necessary, make a decision on such evidence as I have. 382 These findings are, I think, all that are necessary to enable the parties to calculate the damages which, I my view, are what the Plaintiff would have recovered in Common Law proceedings had they been instituted and come on for trial in February 2000. Damages in 2006 383 It is appropriate to recognise that any Motor Vehicle proceedings may have been settled. However, earlier remarks lead me to the view that the Plaintiff's entitlement would not have discounted on grounds of doubts about liability. Residual earning capacity is an area which was likely to be contentious but it is also an area where the Plaintiff had a claim higher than I have allowed. No other area justified any appreciable compromise and in these circumstances, the assessment of the Plaintiff's damages here should proceed on the basis that, in any proceeding he instituted he would on 28 February 2000 have recovered a verdict calculated in accordance with the immediately preceding section of these Reasons. 384 However, in these proceedings allowance has to be made for events which have supervened since February 2000. One is that the Plaintiff's Workers Compensation rights have and will continue, whereas they would not have had the Plaintiff succeeded in a Common Law action in February 2000. To avoid the Plaintiff being doubly compensated, these rights have to be valued and an appropriate deduction made. 385 To the extent to which payments have been made pursuant to these rights, the determination of the deduction is clear. To the extent to which the rights continue, that is not necessarily so. It was submitted on behalf of the Cross-Defendant that as the Plaintiff was continuing to receive weekly Workers Compensation payments of $457.57 per week, one should take the net portion of this – which was estimated at about $380 per week – multiply this by 1059.2 the multiplier in the 3% tables appropriate to payment until the Plaintiff turned 66, i.e.31 years from the time of trial, discount the result by 15% for vicissitudes and deduct the figure so arrived at from the moneys to which the Plaintiff would otherwise be held entitled. The amount of the deduction was calculated to be $342,121.60. 386 Some elements of this calculation may be accepted. For practical purposes, the Workers Compensation legislation provides that payments for those who are and remain entitled to receive them should continue until age 66. The 3% multiplier for the period contemplated, 31 years, is 1059.2. And harsh though it may seem when the present value of the Plaintiff's losses is calculated using the 5% tables dictated by Parliament – and therefore a lower multiplier - 3% and a the multiplier of 1059.2 do seem to be those which must be used. (I should add that, correctly I think, no-one suggested that the matter came within the provisions of the Civil Liability Act, which might well have required a 5% multiplier to be used.) 387 However, I have reservations as to the remainder of the figures in the calculation. Firstly, there was evidence that the Plaintiff has children. The amount of Worker's Compensation payments are liable to be affected by this fact. Hence one would expect that the rate of compensation payable will decrease as the children age. The parties did not address this and should have an opportunity to do so. 388 A question arises whether 15% is an adequate discount for vicissitudes. Putting aside the somewhat inconsistent submission of the Cross-Defendant when addressing the Plaintiff's entitlement that the discount should be 20-25%, since I have rejected that and decided that that discount should be 15%, the Plaintiff's entitlement to Workers Compensation is affected by additional factors, including that Constable Brothers or their insurer are entitled to seek to have the compensation payments terminated. They are not parties to these proceedings and not bound by my decisions. While I have reached a conclusion as to the Plaintiff's residual earning capacity, a different tribunal might take a difference view. Advances in prostheses – Mr Brown referred to one imminent – might alleviate the problems which the Plaintiff has heretofore suffered so as to enable him to do more work than he can on my assessment and to earn at a rate which will affect his weekly compensation entitlement. While I must make a decision upon the basis of the evidence now, the Workers Compensation tribunals are not so limited. In light of these factors, it seems to me that the discount for vicissitudes should be higher than I have allowed in other areas. Although precision is impossible a decision is required and I add 2½ % so as to make the discount in the calculation of this item 17.5%. 389 It was also submitted that there should be deducted from the moneys to which the Plaintiff would otherwise be held entitled a sum reflecting the report as to the Plaintiff's prostheses and associated needs. The submission was: "Mr Brown's allowances equate to $42,190.40 per annum ($811.35 per week). Assuming, (by reference to the life tables) that the Plaintiff has a residual life expectancy of 44 years and discounting at 3% for the whole of that period (1,284.5) and allowing 15% for vicissitudes the further reduction for future medicals should be $885,852.15." 390 I prefer to deal with the matter this way. For the future, and subject to the remarks that follow, there should be a deduction determined as follows:- (i) Subject to sub-paragraph (ii), it should cover the same items of equipment, service etc as have been included in the calculation of the corresponding head of damages. (ii) Only one half, rather than the full amount, of the cost of items 1 and 2 on page 3 of Exhibit K should be brought into account (iii) Otherwise, the cost of the items should be increased by 3% per complete year from the date of Mr Brown's report until now. (iv) In determining the present value, the discount rate used should be 3%. (v) The Plaintiff's life expectancy and the corresponding multiplier taken from the same tables as I have referred to previously are 44.4 years and about 1290 respectively. (v) There should be no discount for vicissitudes (as there should be none when the value of the corresponding component of damages is assessed). 391 The reason I have limited the cost of items 1 and 2 is that, although I regard the supply of them as reasonably required, particularly when viewed as at February 2000, given that the Plaintiff had done without them to the time of trial before me, I am by no means sure that he will in fact enjoy the benefits of both of them throughout the balance of his lifetime. There is also a question whether the requirements of the Workers Compensation Act for the provision of these prostheses in addition to the one he presently has, will be met or, if there is a dispute on the issue, will be found to have been met. 392 It was also submitted that a deduction should be allowed on account of the solicitor/client costs the Plaintiff would have incurred and which, in practical terms, he would have reduced any verdict he received. Mr Honeyman gave evidence that such costs would be likely to have been of the order of $15,000. In principle I agree with the submission. As demonstrated in cross-examination, this amount may well have been less but it also may have been more. In these circumstances, I regard $15,000 as an appropriate allowance to be made. 393 On the other side of the ledger so to speak, the Plaintiff is entitled to interest on the amount of the verdict which he should, and but for the Defendant's defaults would, have received pursuant to a trial commenced in February 2000. This course was opposed upon a number of grounds. One is that judgment in any such proceedings may not have been brought down for some months. That possibility exists but so does the possibility that the judgment might have been by consent or ex tempore. And if judgment was delayed, then it is probable that various elements of the damages would have been calculated, not by reference to a date in February 2000 but the date of delivery of any reserved judgment or a date closely following. A discount for vicissitudes would not have applied to damages for loss of earning capacity between the hearing and the date of any delayed judgment. Perfection is not possible in the selection of the date when judgment would have been given but it seems to me that the date of trial is as likely a date as any other and provides a reasonable basis for assessment. It also avoids the other complications to which I have referred. 394 A second ground of opposition to an award of interest is that the Plaintiff may have spent any moneys he received and not have used it to earn income. That also may be accepted. However, an award of interest is not merely to replace income that might have been earned but to compensate a Plaintiff for the loss of use of moneys to which he was entitled, the freedom of that use being a benefit however the money be employed. It might, as Priestley JA said in a passage in Tipper v Williams (Unreported, Court of Appeal, 12 May 1993) on which the Cross-Defendant relied have been employed it the purchase of a house rather than to earn taxable income. However, in light of the historical record of how house prices in New South Wales have moved, it could hardly be said that such use would have been of no benefit to the Plaintiff. Priestly JA gave as another example the purchase of shares carrying franked dividends. 395 In that case Clarke JA with whom Meagher JA agreed on the point, thought that any award of interest should have been at a lower than usual rate to reflect the fact that the plaintiff in that case would have had to pay tax on any investment of verdict moneys. It may be that their Honours were influenced by an acceptance of the proposition by opposing counsel and to which Clarke JA referred. However, as Priestly JA pointed out, earning taxable income was not the only way the verdict moneys could have been employed. There is no evidence before me as to what the Plaintiff would have done with any verdict he might have received and I am not persuaded that proper compensation does not lead to interest being awarded at the usual rates. When consideration is given to the possibilities of what the Plaintiff may have done with any verdict moneys - , there is certainly no probability that they, or even, most of them, would have been used so as to make any income earned taxable. 396 And even if one concluded that some of the moneys would have been so used, what conclusion should be reached as to the proportion of the moneys that would have been so employed, or the rate at which income would have been earned, or the rate at which tax would have been payable? The awarding of interest is discretionary. It strikes me that the approach of Clarke and Meagher JJA in Tipper v Williams is contrary to that generally adopted when the issue of the awarding of interest arises – see M.B.P. (S.A.) Proprietary Limited v Gogic (1991) 171 CLR 657 at 666 - but whether that be so or not, as a matter of discretion I am of the view that the Plaintiff's damages to be awarded by me should include interest at the usual Court rates on the damages he would have been awarded in proceedings in February 2000. That approach best reflects the principal considerations bearing on the payment of interest - that the Plaintiff has been kept out of his money and (perhaps) that the Defendant has had the advantage of the use of it – see Bennett v Jones (1977) 2 NSWLR 355, Metro Meat Industry BD v Williams (1991) 24 NSWLR 54. 397 Although there was no express evidence that the amount of any judgment would have been paid within 28 days, thus avoiding any liability for interest during that period, equally the Plaintiff has not persuaded me that there would have been no such payment. Accordingly interest should be calculated from and including 27 March 2000. 398 Again, I think that I have said enough to enable the calculations incidental to this section of my reasons to be effected. My intention is to publish these reasons and afford the parties the opportunity of carrying out the calculations required. If anything has been omitted, it can be raised. There are also one or two matters to which I have referred that were not canvassed during the course of submissions. The parties should feel free to raise these also, on appropriate notice to opponents. They should feel appropriate to take the same stance in the case of accidental errors if it is thought there are any. Apportionment 399 Unless it should turn out that the amounts to be deducted exceed those for which the Plaintiff is entitled to credit, the findings I have made lead to the conclusion that the Plaintiff has suffered damage in consequence of negligence of both the Defendants and the Cross-Defendant. Although the Plaintiff has not sued the latter, the claim by the Defendants for contribution means that I must assess their respective responsibilities for the Plaintiff's loss. 400 By far the greatest responsibility lies on the Defendants because of the duration, and magnitude of Mr Honeyman's omissions by comparison with what reasonable care required. These defaults were not such as can be laid at counsel's door. Mr Dodd's failures may not have occurred at all but for Mr Honeyman's omissions but be that as it may, they were much more minor in character, lesser departures from the standard of what was reasonable and, while contributing to what occurred, had a significantly lesser part to play. I regard it as just and equitable that the Defendants recover from Mr Dodd, 15% of the damages they must pay the Plaintiff. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.