Hamze v Bradstreet [2007] NSWDC 54

Hamze v Bradstreet [2007] NSWDC 54

Even assuming the solicitor gave advice in accordance with his usual practice, the advice was insufficient and breached the duty of care owed to the plaintiff. However, the plaintiff did not prove on the balance of probabilities that, if adequately advised before 26 November 2001, he would have instructed commencement of common law proceedings, given the substantial threshold and costs risks and the benefits of retaining workers compensation rights. Causation was therefore not established and judgment was entered for the defendant.

Jurisdiction
Australia
Judgment Date
05 April 2007
Procedural Posture
Civil Claim Against Former Solicitor for Breach of Duty of Care and Breach of Retainer Arising From Failure to Advise on or Commence Common Law Proceedings Before Legislative Changes to Workers Compensation Law / Judgment After Hearing
Outcome
Judgment for the defendant because the plaintiff did not establish that he lost a chance.
Legal Topics
["solicitor's Duty to Advise" 'failure to Commence Proceedings Before Legislative Change' 'causation' 'loss of Chance' 'assessment of Damages' 'common Law Work Injury Proceedings']
['professional Negligence' 'workers Compensation' 'civil Liability' 'legal Practitioners'] ["solicitor's Duty to Advise" 'failure to Commence Proceedings Before Legislative Change' 'causation' 'loss of Chance' 'assessment of Damages' 'common Law Work Injury Proceedings']

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Procedural Posture

Civil Claim Against Former Solicitor for Breach of Duty of Care and Breach of Retainer Arising From Failure to Advise on or Commence Common Law Proceedings Before Legislative Changes to Workers Compensation Law / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the defendant solicitor breached a duty of care or retainer by failing to give sufficient advice about the plaintiff's common law rights against Sydney Slitting Company and the effect of the 26 November 2001 deadline." 'Whether, if adequately advised, the plaintiff would on the balance of probabilities have instructed the commencement of common law proceedings against Sydney Slitting Company before 27 November 2001.' 'If causation were established, what value should be assigned to the lost opportunity to bring common law proceedings and what offsets should be made for retained workers compensation rights.']

Ratio Decidendi

Even assuming the solicitor gave advice in accordance with his usual practice, the advice was insufficient and breached the duty of care owed to the plaintiff. However, the plaintiff did not prove on the balance of probabilities that, if adequately advised before 26 November 2001, he would have instructed commencement of common law proceedings, given the substantial threshold and costs risks and the benefits of retaining workers compensation rights. Causation was therefore not established and judgment was entered for the defendant.

Court Disposition

Judgment for the defendant because the plaintiff did not establish that he lost a chance.

Orders

  • ['Judgment for the defendant.' 'The Court will hear the parties on the issue of costs.']