BECHARA v JAWHAR [2007] NSWCA 25

New South Wales Court of Appeal

CITATION: BECHARA v JAWHAR [2007] NSWCA 25 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10/11/2006

JUDGMENT DATE: 26 February 2007

JUDGMENT OF: Beazley JA at 1; McColl JA at 2; Bryson JA at 3

DECISION: (1) Appeal allowed with costs.; (2) Set aside judgment for the plaintiff in the District Court and in lieu thereof give judgment for the defendant with costs.; (3) The respondent is to have a Certificate under the Suitors' Fund Act 1951.

CATCHWORDS: LEGAL PRACTITIONERS - solicitor's negligence - client seriously injured at work on 30 July 2000 commenced Common Law damages proceedings on 23 November 2001, hence deemed by then WComp Act s.151A to elect against permanent loss compensation - CLD proceedings later discontinued because no evidence of negligence - client sued solicitor claiming negligence in (a) advice whether to sue at common law or claim damages, on WComp rights, election and amount of permanent loss compensation and (b) acting on instructions to issue CLD proceedings. Client recovered damages in DCt. On appeal, consideration in detail of evidence and findings on advice given to client by solicitor, junior counsel and senior counsel - errors of fact-finding on terms of advice - found, no breach of duty having regard to terms of advice given. Consideration of - causation where clear advice not to sue was disregarded - solicitor's duty to bring proceedings where client so instructs, before enactment of LPAct 1987 s.198J. Appeal allowed.

Civil Liability Act 2002 Sched.2 Legal Profession Act 1987 s.198J LEGISLATION CITED: Suitors' Fund Act 1951 Workers Compensation Act 1987 ss.66, 67 & 151A; Schedule 6 Pt.18C; Div.4 Pt.3 Workers Compensation Legislation Further Amendment Act 2001