ARNOLD v HANCOCK (DAMAGES 2) [2007] NSWSC 659

New South Wales Supreme Court

CITATION : ARNOLD v HANCOCK (DAMAGES 2) [2007] NSWSC 659

HEARING DATE(S) : 23 November 2006

JUDGMENT DATE : 28 June 2007

JUDGMENT OF : Hulme J at 1

DECISION : No order

PARTIES : Jason ARNOLD Ken HANCOCK, Hancock Alldis

FILE NUMBER(S) : SC 20397/02

Plaintiff: M Elkaim SC, T Boyd COUNSEL : Defendant: GM Watson SC Cross Defendant: M Windsor

Herbert Weller SOLICITORS : Ebsworth & Ebsworth Minter Ellison

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J

Thursday, 28 June 2007

20397/02

Jason ARNOLD v Ken HANCOCK, Practising as HANCOCK ALLDIS & ORS

JUDGMENT 1 HULME J: In these proceedings, a claim against a firm of solicitors for negligence and breach of contract and a cross claim by the solicitors against a barrister they had retained, I published reasons on 24 March 2006. In those reasons I dealt with the issue of liability (subject to one possible qualification) and most of the issues as to damages. The parties were unable to reach agreement as to the outstanding issues and to the extent I felt able on the information available I sought to deal with these in reasons published on 8 September 2006. The parties remain apart and hence these reasons. 2 I held that the Plaintiff, who was injured in falling into the hopper of a concrete pumping truck, had had a good cause of action against his then employer, that negligence and breach of retainer on the part of the Defendant led to the Plaintiff losing this cause of action, that a barrister the Defendant had retained was also negligent and that the Defendant was entitled to succeed in a Cross-Claim against the barrister to the extent of 15% of the amount for which the Defendant was liable to the Plaintiff. (The Plaintiff had not himself sued the Cross-Defendant.) 3 Not having pursued his Common Law claim against his employer, the Plaintiff retained rights to Workers Compensation. It was the contention of the Defendant and Cross-Defendant that the value of these exceeded what the Plaintiff would have recovered in any Common Law action against his employer and hence he could not succeed in this claim against the Defendant. In this connection it was contended and not disputed that, as I said at [64] of my reasons of September, in valuing the Workers Compensation rights account could be taken of events occurring after any Common Law proceedings against the Plaintiff's employer would have come to trial. 4 Following the delivery of my reasons on 8 September 2006, the matter came before me again on 15 September and 23 November 2006. Remarks made on those occasions indicated that from time to time those acting on behalf of the Plaintiff have also taken the view that the consequences of my earlier reasons and calculations of the parties do or might lead to the conclusion that the value of the Workers Compensation rights exceeded the value of the Plaintiff's Common Law claim determined in accordance with my reasons with the result that the Plaintiff failed in his action. It was suggested that I could not or should not go behind these concessions. 5 Given the circumstances in which the concessions were made - in argument of a case which has not concluded, or made during the course of what were difficult calculations and debate as to the final result of reasons previously delivered or in part in giving inadequate weight to findings I had made - and because I can see no relevant prejudice which would justify any type of estoppel, I do not regard the concessions as justifying or entitling me to do other than give effect to my own conclusion as to the proper outcome of the litigation. 6 In a document that became Exhibit 30, the parties sought to set out the figures they respectively deduced from my findings as to the damages the Plaintiff would have received had a Common Law trial proceeded at the notional date of 28 February 2000 referred to in my previous reasons. Counsel for the Plaintiff ultimately accepted the Defendant's figures set out in that document. This is apparent in written submissions made on behalf of the Plaintiff and dated 20 November 2006 and the subject of other indications of being common ground at the time of the last hearing. Those figures totalled $1,704,025 made up as follows:-