Nikolaou v Papasavas, Phillips & Co [1989] HCA 11

Nikolaou v Papasavas, Phillips & Co [1989] HCA 11

Damages for loss of a cause of action through solicitor's negligence should be assessed as at the date the lost action ought to have been determined, using only information available or foreseeable at that time. Evidence of subsequent deterioration in the plaintiff’s condition is not relevant unless it assists in establishing what was known or could have been known at the assessment date. The Full Court was right to order a retrial limited to damages assessed on this basis.

Jurisdiction
Australia
Procedural Posture
Appeal / High Court of Australia—final Judgment and Order on Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['assessment of Damages' 'negligence by Solicitors' 'loss of Chance' 'personal Injuries' 'limitation of Actions']
['torts' 'professional Negligence' 'legal Practice'] ['assessment of Damages' 'negligence by Solicitors' 'loss of Chance' 'personal Injuries' 'limitation of Actions']

Case Brief

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Procedural Posture

Appeal / High Court of Australia—final Judgment and Order on Appeal

Legal Issues

  1. 1 ['What is the correct date to assess damages in an action against solicitors for negligence resulting in loss of a cause of action for personal injuries?' 'Is evidence of developments in the claimant’s condition after the time the lost action would have been heard admissible in assessing damages?' 'How should damages be quantified for loss of a chance to litigate a personal injury action?']

Ratio Decidendi

Damages for loss of a cause of action through solicitor's negligence should be assessed as at the date the lost action ought to have been determined, using only information available or foreseeable at that time. Evidence of subsequent deterioration in the plaintiff’s condition is not relevant unless it assists in establishing what was known or could have been known at the assessment date. The Full Court was right to order a retrial limited to damages assessed on this basis.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.' 'Matter remitted for proper assessment of damages, consistent with the principles stated.']