Osei v P K Simpson Pty Ltd [2022] NSWCA 13

Osei v P K Simpson Pty Ltd [2022] NSWCA 13

The damages awarded for professional negligence leading to economic loss of a chance to recover greater workers compensation benefits do not constitute 'personal injury damages' within the meaning of s 11 Civil Liability Act 2002 (NSW), and the costs cap in cl 2 Sch 1 Legal Profession Uniform Law Application Act 2014 does not apply; the primary judge erred in capping the costs.

Parties
Appellant: Kofi Osei; First Respondent: P K Simpson & Co Pty Ltd; Second Respondent: William Carney
Jurisdiction
Australia
Judgment Date
14 February 2022
Procedural Posture
Appeal / Application for Leave to Appeal and Appeal
Outcome
Leave to appeal granted on ground 4 (costs cap); appeal allowed in part; otherwise, leave to appeal refused; orders made in District Court varied to remove costs cap; respondents ordered to pay appellant's costs of application for leave to appeal and the appeal.
Legal Topics
Negligence—breach by Legal Practitioners, Loss of Chance—assessment of Discount, Legal Costs Capping—interpretation of 'personal Injury Damages', Statutory Interpretation
Tort Law Professional Negligence Legal Costs Negligence—breach by Legal Practitioners Loss of Chance—assessment of Discount Legal Costs Capping—interpretation of 'personal Injury Damages' Statutory Interpretation

Case Brief

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Parties

Kofi Osei

Appellant

P K Simpson & Co Pty Ltd

First Respondent

William Carney

Second Respondent

Procedural Posture

Appeal / Application for Leave to Appeal and Appeal

Legal Issues

  1. 1 Whether the primary judge erred in assessing a 40% discount for loss of chance (ground 3)
  2. 2 Whether the damages awarded were 'personal injury damages' as defined in s 11 Civil Liability Act 2002 (NSW), and whether the costs cap in cl 2 Sch 1 Legal Profession Uniform Law Application Act 2014 applies (ground 4)
  3. 3 What order should be made as to costs of the application for leave to appeal and appeal

Ratio Decidendi

The damages awarded for professional negligence leading to economic loss of a chance to recover greater workers compensation benefits do not constitute 'personal injury damages' within the meaning of s 11 Civil Liability Act 2002 (NSW), and the costs cap in cl 2 Sch 1 Legal Profession Uniform Law Application Act 2014 does not apply; the primary judge erred in capping the costs.

Court Disposition

Leave to appeal granted on ground 4 (costs cap); appeal allowed in part; otherwise, leave to appeal refused; orders made in District Court varied to remove costs cap; respondents ordered to pay appellant's costs of application for leave to appeal and the appeal.

Orders

  • Grant the applicant leave to appeal on ground 4 of the proposed 'revised draft notice of appeal' dated 18 October 2021.
  • Otherwise dismiss the applicant's summons for leave to appeal.