Omoregie v Peter Kaiser Simpson and P K Simpson & Co Pty Ltd trading as P K Simpson & Co [2007] NSWCA 202

New South Wales Court of Appeal

CITATION: Omoregie v Peter Kaiser Simpson and P K Simpson & Co Pty Ltd trading as P K Simpson & Co [2007] NSWCA 202

HEARING DATE(S): 18 June 2007

JUDGMENT DATE: 16 August 2007

JUDGMENT OF: Santow JA at 1; Tobias JA at 2; Handley AJA at 46

DECISION: (a) Leave to appeal refused; (b) Summons for leave to appeal dated 13 November 2006 dismissed with costs

CATCHWORDS: LEGAL PRACTITIONERS – Liability for Negligence – Motor Accident – Where there was a successful Workers Compensation claim but solicitor failed to institute proceedings under the Motor Accidents Act for same injury – Where Motor Accidents claim likely to have been successful – Assessment of damages – Whether damages against solicitor should take into account requirement to repay Wokers Compensation out of any damages awarded for the original injury – Where likely award for damages for original injury would be less than Workers Compensation to be repaid – APPEAL AND NEW TRIAL – Where indemnity costs ordered at trial due to rejection of Calderbank offer – Where not possible for notional damages to exceed award requried to avoid further indemnity costs – Where new trial would be futile and contrary to claimant's interests - Supreme Court Rules 1 970 Pt 51 r 23(1).

Motor Accidents Act 1988 LEGISLATION CITED: Workers Compensation Act 1987 Supreme Court Rules 1970

CASES CITED: Kempsey District Hospital v Thackham (1995) 36 NSWLR 492

Peggy Omoregie PARTIES: Peter Kaiser Simpson P K Simpson & Co Pty Ltd t/as P K Simpson & Co

FILE NUMBER(S): CA 040507/06

COUNSEL: Cl: T McKenzie / Beukes Opp: G Curtin

SOLICITORS: Cl: Matthews Dooley & Gibson, Blacktown Opp: Colin Biggers & Paisley