Glenys June Witcombe as Executrix of the Estate of Keith Malcolm Witcombe v Talbot and Olivier

[2011] WASCA 107

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Professional Negligence
2. › Solicitors
3. › Retained to pursue personal injuries claim
4. › Delay in progression of claim due to failure to exercise due care and skill
5. › Client died before matter went to trial
6. › Whether matter would have settled or been determined by judgment prior to death but for negligence
7. › Whether client suffered loss or damage during lifetime
1. Executors and Administrators
2. › Survival of causes of action
3. › Proceedings brought by client's executor against solicitors for negligence and breach of retainer
4. › Whether causes of action vested in client during lifetime
5. › Whether loss or damage suffered during lifetime
6. › Proper construction of s 4 Law Reform (Miscellaneous Provisions) Act 1941 (WA)
7. › Whether executor can recover substantial damages for breach of contract where loss only crystallises upon death
1. Damages
2. › Remoteness
3. › Breach of solicitor's retainer
4. › Whether loss of damages that would have been recovered but for death was within contemplation of parties
5. › Whether claimed loss based on life expectancy inconsistent with known facts was too remote
1. Tort
2. › Negligence
3. › Professional negligence
4. › Solicitors
5. › Economic loss
6. › Loss of opportunity to recover damages
7. › Whether cause of action complete where value of underlying claim not diminished during lifetime

Quick Take

Where a solicitor's negligence causes delay in prosecuting a personal injury claim and the client dies before settlement or judgment, the executrix must prove on the balance of probabilities that the claim would have been resolved before death. A cause of action in tort against the solicitor does not vest in the client during lifetime if the underlying cause of action was never lost or diminished in value. Even if s 4(1) of the Law Reform (Miscellaneous Provisions) Act 1941 (WA) permits recovery of substantial contractual damages crystallising at death, the claimed loss will be too remote where it is based on a life expectancy inconsistent with the facts known at death and exceeds the true value of the underlying cause of action. The question whether s 4(1) precludes recovery of substantial contractual damages where loss crystallises only at death was left open by the majority (Pullin JA and Newnes JA expressing no opinion).