Wahba v Carroll & O’Dea Lawyers [2018] NSWDC 128

District Court New South Wales

Medium Neutral Citation: Wahba v Carroll & O'Dea Lawyers [2018] NSWDC 128 Hearing dates: 6, 7 and 8 November 2017; 15 February 2018; 6 April 2018; 1 May 2018 Date of orders: 22 May 2018 Decision date: 22 May 2018 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the second defendant. (2) Plaintiff pay the second defendant's costs. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days. Catchwords: TORT – professional negligence - plaintiff trips while disembarking from an aircraft in Queensland – plaintiff consults solicitors who allow the two-year limitation period under s 28 Civil Aviation (Carrier's Liability) Act 1959 (Cth) to elapse, in the erroneous belief that the Civil Liability Act 2002 (NSW) applied – plaintiff brings a claim for professional negligence for loss of a chance to bring an action for damages for personal injury of a substantial nature, including a claim for past and future home care – breach of duty of care admitted - whether the second defendant's breach of duty caused a loss to the plaintiff of a cause of action of any value - adverse findings as to plaintiff's credit and concerning the absence of medical evidence of anything other than inconsequential injury – assessment of damages for the purpose of determination of loss of the chance claimed by the plaintiff to recover very substantial damages - whether the claim falls for assessment at large or pursuant to civil liability legislation – prior decision of the District Court of New South Wales in favour of the latter (Arefin v Thai Airways International Public Company Ltd (New South Wales District Court, 21 August 2007, unreported) – implications arising from method of assessment of damages under civil liability legislation in Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438 – correct approach to damages assessment is to make the assessment conformably with civil liability legislation – plaintiff's damages, if assessed under civil liability legislation restricted to past out of pockets at best – failure to meet non-economic loss or to be entitled to past or future care – plaintiff unable to establish loss of the chance particularised as arising - judgment for the defendant Legislation Cited: Aviation Legislation Amendment (Liability and Insurance) Bill 2012 (Cth) Civil Aviation (Carrier's Liability) Act 1959 (Cth), ss 25K, 25L, 28, 35 and 36 Civil Liability Act 2002 (NSW), s 35 Civil Liability Act (Qld) Commonwealth of Australia Constitution Act 1900 (Cth), s 109 Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929, Art 17 Judiciary Act 1903 (Cth), ss 39, 78B, 79 and 80 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1 and 42.35 Cases Cited: Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 Arefin v Thai Airways International Public Company Ltd (District Court of New South Wales, 21 August 2007, unreported) Cockle v Isaksen (1957) 99 CLR 155 Federated Amalgamated Government Railway and Tramway Service Association v The New South Wales Railway Traffic Employees' Association (1906) 4 CLR 488 Feletti v Contoulas [2000] NSWCA 59 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 Gulic v O'Neil [2011] NSWCA 361 La Macchaia v Minister for Primary Industries and Energy (1992) 110 ALR 201 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 McKenna v Avior Pty Ltd [1981] WAR 255 Nominal Defendant v Kostic [2007] NSWCA 5 Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438 Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 Povey v Qantas Airways Ltd (2004) 223 CLR 189 R v Logue (NSW Court of Criminal Appeal, 31 March 1994, unreported) SAS Trustee Corporation v Rossetti [2018] NSWCA 68 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 Watson v Meyer [2013] NSWCA 243 Texts Cited: Department of Infrastructure, Transport, Regional Development and Local Government, "Review of Carriers' Liability and Insurance – Discussion Paper" (May 2009) Gerald Ng, "Damages for personal injury sustained during international carriage by air", 2010, Law Society Journal 66 Category: Principal judgment Parties: Plaintiff: Mona Wahba First Defendant: Sydney Airport Corporation Limited Second Defendant: P. A. Carroll & D. B. Farah & H. G. Harrison & R. P. Higgins & H. Indari & A. O'Dea & P. Punch trading as Carroll & O'Dea Representation: Counsel: Plaintiff: Mr M Thompson Second Defendant: Mr D Lloyd