Where a solicitor negligently fails to advise a client about the likely costs of litigation or the costs implications of rejecting a settlement offer, the client must prove on the balance of probabilities that, if properly advised, she would have acted differently. The trial judge's assessment of what the client would have done is a finding of fact entitled to appellate deference under Fox v Percy, even where the assessment involves a hypothetical inquiry. However, Debelle J's dissent highlights that a trial judge must account for the fact that the client's conduct occurred without the benefit of the very advice the solicitor was obliged to provide, and must not criticise the client for failing to inquire about the matter on which the solicitor breached his duty.
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