Hammond v Stern [2014] NSWSC 864

Hammond v Stern [2014] NSWSC 864

Damages recovered in a professional negligence claim founded on lawyers' failure properly to pursue claims arising from a personal injury are damages that "relate to the death of or injury to a person". The relevant claim was the damages actually recovered from the lawyers, not the underlying lost causes of action, and ss 3 and 3B of the Civil Liability Act 2002 (NSW) did not exclude those damages from the imported definition. Because the appellant's recovered amount did not exceed $100,000, s 338 of the Legal Profession Act 2004 (NSW) operated to restrict the recoverable costs.

Jurisdiction
Australia
Judgment Date
27 June 2014
Procedural Posture
Civil Appeal From a Decision of an Associate Judge Concerning Costs in a Professional Negligence Claim / Appeal by Notice of Motion Pursuant to R 49.4 of the Uniform Civil Procedure Rules 2005; Time to Institute the Appeal Extended Pursuant to R 49.8(4)
Outcome
Appeal dismissed; time to institute the appeal extended; appellant ordered to pay the respondents' costs of the appeal.
Legal Topics
['costs Limitation for Personal Injury Damages' 'meaning of Personal Injury Damages' 'construction of the Phrase "relate To"' 'professional Negligence Arising From Failure to Pursue Personal Injury Claims' 'importation of Civil Liability Act Definition Into Legal Profession Act']
['civil Procedure' 'costs' 'legal Profession' 'professional Negligence' 'statutory Interpretation' 'personal Injury'] ['costs Limitation for Personal Injury Damages' 'meaning of Personal Injury Damages' 'construction of the Phrase "relate To"' 'professional Negligence Arising From Failure to Pursue Personal Injury Claims' 'importation of Civil Liability Act Definition Into Legal Profession Act']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Appeal From a Decision of an Associate Judge Concerning Costs in a Professional Negligence Claim / Appeal by Notice of Motion Pursuant to R 49.4 of the Uniform Civil Procedure Rules 2005; Time to Institute the Appeal Extended Pursuant to R 49.8(4)

Legal Issues

  1. 1 ["Whether s 338 of the Legal Profession Act 2004 (NSW) limits costs recoverable in a professional negligence claim founded on lawyers' failure properly to pursue claims arising from a personal injury." 'Whether damages recovered in such a professional negligence claim are damages that "relate to the death of or injury to a person" within the imported definition of "personal injury damages".' "Whether ss 3 and 3B of the Civil Liability Act 2002 (NSW) exclude the appellant's claim from the costs limitation provision because the underlying lost claims included workers compensation rights."]

Ratio Decidendi

Damages recovered in a professional negligence claim founded on lawyers' failure properly to pursue claims arising from a personal injury are damages that "relate to the death of or injury to a person". The relevant claim was the damages actually recovered from the lawyers, not the underlying lost causes of action, and ss 3 and 3B of the Civil Liability Act 2002 (NSW) did not exclude those damages from the imported definition. Because the appellant's recovered amount did not exceed $100,000, s 338 of the Legal Profession Act 2004 (NSW) operated to restrict the recoverable costs.

Court Disposition

Appeal dismissed; time to institute the appeal extended; appellant ordered to pay the respondents' costs of the appeal.

Orders

  • ['Pursuant to r 49.8(4) of the Uniform Civil Procedure Rules, time to institute an appeal is extended to the date of the filing of the notice of motion.' 'The appeal is dismissed.' 'The appellant must pay the costs of the respondents of the appeal.']