HANCOCK v ARNOLD; DODD v ARNOLD [2008] NSWCA 254

New South Wales Court of Appeal

CITATION: HANCOCK v ARNOLD; DODD v ARNOLD [2008] NSWCA 254

HEARING DATE(S): 17 July 2008

JUDGMENT DATE: 15 October 2008

JUDGMENT OF: Ipp JA at 1; McColl JA at 2; Basten JA at 3

In relation to the appeal by the solicitors in matter No. 40619/07:

(1) Allow the appeal and set aside the orders made in the Common Law Division on 24 August 2007.

(2) In place thereof,

(a) give judgment for the defendant on the plaintiff's claim; (b) order the plaintiff to pay the defendant's costs of the claim.

(3) Dismiss the cross-appeal brought by the first respondent (Jason Arnold).

(4) Order the first respondent to pay the appellant's costs of the appeal and cross-appeal.

DECISION: (5) Grant each respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of their costs of the appeal.

In relation to the appeal by the barrister in matter No. 40639/07:

(1) Allow the appeal and set aside the judgment and orders made on the cross-claim on 24 August 2007 and the costs order on the cross-claim made on 13 September 2007.

(2) In lieu thereof,

(a) give judgment for the cross-defendant on the cross-claim, and (b) order that the cross-claimants pay the cross-defendant's costs of the cross-claim.

(3) Order the respondents to pay the appellant's costs of the appeal.

(4) Grant the respondents a certificate under the Suitors' Fund Act 1951 (NSW) in respect of their costs of the appeal.

CATCHWORDS: DAMAGES – differences between common law damages claim and workers' compensation claim – whether common law damages claim more beneficial for plaintiff – Motor Accidents Act 1988 (NSW) ss 43, 43A – Workers Compensation Act 1987 (NSW) s 151A - LEGAL PRACTITIONERS – whether breach of duty of care to client by solicitor and barrister – failure to advise about common law damages claim under the Motor Accidents Act 1988 (NSW) – where advice given about workers' compensation claim and where claim settled – where plaintiff lost interest in pursuing damages claim – whether solicitor and barrister gave adequate advice about superannuation, future out-of-pocket expenses and future economic loss – whether failure to advise caused loss to plaintiff – whether implied term in retainer to give definitive advice by specific date – obligation to provide timely advice – Motor Accidents Act 1988 (NSW) ss 43, 43A – Workers Compensation Act 1987 (NSW) s 151A - WORKERS' COMPENSATION – motor vehicle accident – differences between workers' compensation claim and common law damages claim – Motor Accidents Act 1988 (NSW) ss 43, 43A – Workers Compensation Act 1987 (NSW) s 151A