Johnson v Firth

1. [1]

   GLEESON JA: I agree with Brereton JA.

2. [2]

   PAYNE JA: I agree with Brereton JA.

3. [3]

   BRERETON JA: On 22 May 2016, the appellant Benjamin Johnson was involved in a motor vehicle accident while riding as a pillion passenger on a motorcycle that collided with a car. He incurred severe back injuries and was treated with a L1 to L3 fusion. Having previously retained other lawyers, who lodged on his behalf a claim against GIO Insurance for compensation under the (NSW) Motor Accidents Compensation Act 1999, on 22 August 2016 he transferred his instructions to the second respondent Firths The Compensation Lawyers, of whom the first respondent Mr Stephen Firth is the principal; it is convenient to refer to the respondents compendiously as “Firths”. Following an informal settlement conference on 13 December 2016, Mr Johnson’s claim was settled on 14 December 2016, for $500,000 inclusive of costs, out of which Mr Johnson received $350,000 nett in the hand. On 21 December 2018, Mr Johnson commenced proceedings against Firths in the District Court for damages for professional negligence, complaining that they had settled his claim prematurely and at an undervalue. On 17 July 2020, Curtis ADCJ gave judgment for the defendants, holding that he was not persuaded that Firths were negligent, nor that, even if they were, that any such negligence had caused Mr Johnson loss. [1] From that judgment, Mr Johnson appeals to this court.

Background

1. [4]

   At the date of the accident in 2016, Mr Johnson was a few days short of 38 years of age. By 2012, he had commenced working intermittently as a casual labourer and truck driver. [2] His tax returns disclose nett earnings of $880 per week for the financial year ending in 2013, $526 per week for 2014, $10 per week for 2015, and $400 per week for 2016. [3] He had smoked marijuana for many years, and became addicted to “ice” in 2013; he remained addicted in June 2017, and the trial judge attributed the diminution in his earnings to that addiction. [4] He had a criminal record: possessing drugs (2006), uttering counterfeit notes (May 2014), uttering counterfeit notes (March 2015), goods in custody (March 2015), driving under the influence of drugs (September 2015), driving under the influence of drugs (December 2015), supply prohibited substance (April 2016), and goods in custody (May 2016). As a result of the driving offences, his driving licence was suspended between January 2014 and June 2015, and again between May 2016 and January 2017, [5] with the consequence that he was unable to engage in work as a truck driver during those periods, including at the time of the accident. According to him, immediately before the accident he was working “very sporadically”, “a day here, a day there”, “maybe two days a week, three days a week”. [6]

2. [5]

   Following the accident, Mr Johnson retained Brydens, who lodged a claim form on his behalf on 15 June 2016. The insurer did not dispute liability. On 8 August 2016, Brydens applied for an advance financial hardship payment from the insurer for Mr Johnson.

3. [6]

   On 22 August 2016, Mr Johnson transferred his instructions to Firths. In an email on 24 August 2016, he wrote:

4. [7]

   On 25 August 2016, Firths agreed to lend Mr Johnson $2,000, and on 31 August he sought a further advance and was lent an additional $2,000. [7] On or about 5 September 2016, Mr Johnson separated from his partner. [8] He sent an email to Firths stating: [9]

5. [8]

   Firths agreed to advance a further $1,500. On 6 September 2016, Firths pursued the application to GIO for an advance hardship payment, and on 16 September 2016, the insurer requested further financial details so that it could consider that application. On 30 September 2016, in circumstances in which he had been “cut off [C]entrelink”, and needed money to move to live with his mother in Batemans Bay, he requested a further loan; Firths advanced a further $1,500. [10]

6. [9]

   On 5 October 2016, Mr Johnson requested an advance of a further $5,000 to retain lawyers in respect of criminal proceedings pending against him, in respect of a charge of goods in custody and multiple breaches of bonds, in respect of which he had been advised that he was facing between twelve months’ and three years’ imprisonment. Firths refused to advance the money, and Mr Johnson said that if he could find solicitors who would act for him in the criminal matter, he would transfer his compensation claim to them as well. Firths offered to act for him in the criminal matter. [11]

7. [10]

   In an email of 12 October 2016, Mr Johnson informed Firths that the criminal matter had been adjourned for twelve weeks, and asked: [12]

8. [11]

   On 13 October 2016, Firths sent further documents, in support of the application for an advance hardship payment, to the insurer. On 14 October 2016, Mr Johnson asked Mr Firth when he could expect an answer regarding the hardship payment. Mr Firth responded on the same day that the application had been submitted on 13 October 2016 and he would allow a couple of weeks. On 14 October 2016, Mr Johnson asked whether Mr Firth thought it would be approved “because [I] really am doing it hard”, and on 17 October 2016 Mr Firth responded “Unfortunately I am not overly confident of success … We understand you are doing it tough”. This prompted an email from Mr Johnson on 18 October 2016:

9. [12]

   Mr Firth responded on 19 October 2016 that there appeared to have been a misunderstanding: his guarded view related to the hardship application, not to ultimate success, of which he had “no doubt” that Mr Johnson would succeed and recover substantial compensation.

10. [13]

    On 20 October 2016, Mr Johnson asked Firths for a “substantial loan”, asserting that although he had not been working for a few months prior to the accident, “if you look through my employment history over the last few years I would consider my status reasonably stable.” [13] Mr Firth responded pointing out that in the absence of tax returns, which he had not provided, it would be difficult to sustain a significant claim for economic loss.

11. [14]

    In an email on 21 October 2016, pressing Firths for a further loan, Mr Johnson concluded (emphasis added): “Thank you and I really hope that we can all look forward to a successful settlement in the near future”. He also left a message, requesting that Mr Firth “email him an estimated settlement date”. In a further email, apologising for his reaction on 6 October 2016, Mr Johnson described himself as “homeless” and “struggling to survive”, and, asserting that his tax returns would confirm his work history, continued to press for a loan. Mr Firth replied that the tax returns would not affect his unwillingness to provide a further loan, but might well increase the prospects of his hardship application. In a telephone conversation that day, Mr Johnson asked “Do we have a settlement date?”, and Mr Firth replied “No”. In a further letter, Mr Firth conveyed a request from GIO for further information in connection with the hardship claim, advising Mr Johnson that he would not normally advise providing some of the information and authorities requested “but you are desperate and I imagine you don’t really care as long as you get your hands on their money”, and concluding:

12. [15]

    Mr Johnson responded:

13. [16]

    In yet another letter, in response to further requests for a loan, Mr Firth confirmed that “Unfortunately no, after what you said, there is no way I would consider lending you any more money.”

14. [17]

    On 9 November 2016, Mr Johnson sent Firths another email “begging” for a further loan, stating that that he was “really doing it hard”, that “I can’t even afford to eat this fortnight”, and that he was “really worried” that he was “gunna have to sacrifice food for medication or taxi to physio”. [14] Mr Firth agreed “[a]gainst my better judgment” to lend a further $1,000, “on the strict condition that this is the very last loan that you will request and that I will make.” [15]

15. [18]

    On or about 10 November 2016, application was made on behalf of Mr Johnson for a loan from Brisbane Finance Pty Ltd, a private lender. [16] On 22 November 2016, Mr Johnson forwarded to Firths information about his outstanding debts, including to the Office of State Revenue for $12,766. On 29 November 2016, Mr Johnson having decided to proceed with the hardship application, Firths provided the financial information and authorities that had been requested by the insurer.

16. [19]

    Reference has been made above to Mr Johnson’s inquiry on 21 October 2016 as to whether a settlement date had been arranged, and his email of the same date anticipating (emphasis added) “a successful settlement in the near future”. [17] On 30 November 2016, Mr Johnson was seen by Dr Pierides for the insurer, who told him that he was assessed at 20% whole person impairment. On 1 December 2016, Firths wrote to GIO seeking confirmation that there would be no issue that Mr Johnson exceeded the threshold, and stating “Once that concession is made it should be possible to resolve the matter by negotiation and we look forward to hearing from you in that regard.” That confirmation was given by telephone on 5 December 2016, when arrangements for an informal settlement conference were also discussed, with a range of dates between 13 December 2016 and 23 December 2016 being offered. Mr Firth informed Mr Johnson of these developments in a telephone conversation that day, in the course of which aspects of his damages claim were also discussed, including that non-economic loss was in the range $200,000 to $250,000. On the morning of 6 December 2016, Firths telephoned GIO and an informal settlement conference was appointed for 13 December 2016 at Firths’ offices. Mr Firth then sent a letter to Mr Johnson, relevantly as follows:

17. [20]

    Mr Johnson responded that he would like $700,000 clear, and that he did not think that he would settle for less than $600,000 clear. [18] Mr Firth replied:

18. [21]

    Later that day, Mr Johnson asked Mr Firth what he expected the insurer’s offer would be. Mr Firth told him it “won’t be as much as you were hoping for”, and that he was concerned that he was so desperate for money that he would take any offer presented; he also expressed doubts as to the authenticity of a letter which Mr Johnson had provided, ostensibly from a prospective employer Total Personnel, confirming an offer of employment said to have been made before the accident.

19. [22]

    At 9.01am on 7 December 2016, Firths sent an email to Mr Johnson:

20. [23]

    Mr Johnson replied at 9.32am, thanking Mr Firth for the response but stating that he was “highly disappointed” by his choice of words, in particular the suggestion that “I’m desperate for money and that I will take any offer that is presented.” A file note made by another solicitor at Firths on 7 December 2016 of a conversation with Mr Johnson at 9.40am that day recorded (emphasis added): [19]

21. [24]

    At 11.34am, Mr Firth replied to Mr Johnson’s 9.32am email (emphasis added):

22. [25]

    A postscript confirmed Mr Firth’s reservations about the authenticity of the letter from Total Personnel.

23. [26]

    Late on 7 December 2016, Mr Johnson requested that he be advised of a rough figure that he could hope for if he were to settle. On Thursday 8 December 2016, at 10.19am, Mr Johnson asked for a further loan of $2,000 “[n]ow its [sic] so close to settled” (emphasis added), saying that he was anxious to “jump on a plane … and go stay with a mate up in qld” for a few days, for his safety and welfare. [20] He pressed his request at 11.28am (emphasis added): [21]

24. [27]

    Mr Firth endorsed on a hard copy of that email: [22]

25. [28]

    At 11.54am, Mr Firth responded that he could not provide a figure as requested at that stage:

26. [29]

    He observed that Mr Johnson’s driving disqualifications, criminal record, and the possibility of future imprisonment (as a result of an outstanding break and enter charge) were relevant to the claim for lost earning capacity, and that he had not yet received a copy of the report of Dr Pierides, who had examined Mr Johnson for the insurer on 30 November 2016. [23] The letter included:

27. [30]

    It continued:

28. [31]

    The letter concluded: [24]

29. [32]

    At 11.56am, Mr Firth replied to Mr Johnson’s request for another loan, stating that he was sympathetic, but concerned, and continued: [25]

30. [33]

    At 12:12pm, Mr Johnson replied in an email which asserted that the job with Total Personnel was not going to be a driving job but as an “offsider”; that he was undertaking the “merit program” and had been told there was little chance that he would go to gaol; that he would contact Damir at Total Personnel and have a confirmatory letter concerning the offer of employment sent through; and that he was in a dangerous situation (due to threats, said to be instigated by his ex-partner). The email included the following sentence, which assumes importance in his case: [26]

31. [34]

    However it also included this passage (emphasis added):

32. [35]

    In the course of the day, the insurer formally conceded that Mr Johnson’s whole person impairment was greater than 10%, and thus above the threshold for non-economic loss. At 12:21pm, Mr Firth sent an email to Mr Johnson advising him of this and adding: [27]

33. [36]

    At 12:46pm, Mr Firth sent Mr Johnson an email confirming that his staff had spoken to Damir of Total Personnel, who had confirmed in part Mr Johnson’s instructions, but that the job on offer had been as a truckdriver, not an offsider.

34. [37]

    At 1:06pm, having received Dr Pierides’ assessment that Mr Johnson had a 20% whole person impairment, Mr Firth sent a letter to Mr Johnson containing his advice “as to the amount the other side is likely to offer you at the settlement conference.” Mr Firth confirmed that he had advised Mr Johnson that his claim for non-economic loss should be in the range of $200,000 to $250,000, but that the insurer would likely only allow “$150,000 and certainly no more than $200,000”; nothing for past loss of earnings because Mr Johnson was disqualified from driving; a buffer of $50,000 and no more than $100,000 on account of loss of future earning capacity; nothing for past gratuitous care; and $2,000 or $3,000 for future medical expenses. The letter continued (emphasis added): [28]

35. [38]

    At 12.59pm, desperate for another loan, Mr Johnson made an offer – which Mr Firth rebuffed – to make a statutory declaration committing to remain with Firths until the proceedings were completed.

36. [39]

    Later that day, Mr Firth informed Mr Johnson that he had now received a report from his general practitioner Dr Tran: [29]

37. [40]

    Mr Firth also informed Mr Johnson:

38. [41]

    The settlement conference took place on 13 December 2016. The course of negotiations was documented in contemporaneous file notes of Firths, and in a letter sent by Mr Firth to Mr Johnson the following day, which his Honour accepted as an accurate record. [30] Mr Johnson had indicated that he was looking for $350,000 clear to him in hand, and Mr Firth advised him that in order to achieve that result they would need a settlement of at least $500,000 all inclusive. The insurer made an opening offer of $150,000 inclusive of costs, which Mr Firth countered with an offer to accept $750,000 plus costs. Offers were thereafter exchanged, and ultimately the highest offer made by the insurer was $400,000 inclusive of costs. Mr Firth made a final offer of $600,000 inclusive of costs, which was not accepted. Mr Johnson said that he wanted to accept the offer of $400,000, because of the financial pressure he was under, but Mr Firth advised him against that course, because he anticipated that a better offer would be made in the next week or so. [31] When Mr Johnson remained inclined to accept the offer, because of his financial circumstances, Mr Firth offered to lend him a further $5,000 to help tide him over the Christmas period. On that basis, Mr Johnson accepted Mr Firth’s advice not to accept the last offer made at the conference.

39. [42]

    On the morning of 14 December 2016, Mr Firth sent Mr Johnson a letter summarising what had happened: [32]

40. [43]

    In the course of 14 December 2016, as Mr Firth had anticipated, the insurer made a further offer, of $475,000, inclusive of costs. Mr Firth spoke to Mr Johnson, who said “I think we should take that”; but Mr Firth suggested countering with $525,000, with a view to settling at $500,000 inclusive; Mr Johnson agreed. Mr Firth then wrote to Mr Johnson, advising of the increased offer, and that:

41. [44]

    As Mr Firth had predicted, the insurer made a “final offer” of $500,000 inclusive of costs. Mr Firth’s diary note records that he advised Mr Johnson that “if he proceeded further he could get more”, about the preclusion period, that he would receive $350,000 in the hand, and that he should take his time to think about it. In a follow-up letter of the same date, Mr Firth advised Mr Johnson: [33]

42. [45]

    The letter noted:

43. [46]

    Later that day, Mr Johnson instructed Mr Firth to accept the offer:

44. [47]

    So instructed, Mr Firth accepted the offer. He wrote to Mr Johnson reporting and enclosing authorities.

45. [48]

    On 21 December 2016, Mr Johnson executed a written “Authority to Settle”, in which he authorised Firths to settle his claim for $500,000 all inclusive, on the basis of advice that he should receive $350,000 clear in the hand, and that:

46. [49]

    Also on 21 December 2016, Firths agreed to advance Mr Johnson a further $10,000. On 9 January 2017, Mr Johnson sent an email to Mr Firth, requesting a further advance and stating: [34]

47. [50]

    Firths advanced a further $5,000; and on 18 January 2017, yet a further $22,000, to purchase, among other things, a car, and to apply for licences to drive “multi-combination” trucks, trucks carrying “dangerous goods”, and confined space forklifts, in circumstances where Mr Johnson again told Mr Firth that “I now have a licence and a job”. On 19 January 2017, his general practitioner Dr Tran certified that Mr Johnson was “medically fit to return to full occupational duties from tomorrow”. [35] He received the balance of the settlement sum, amounting to $329,209.32 (after deduction of the further advance of $22,000) on 23 January 2017.

48. [51]

    Since December 2016, Mr Johnson has sought no treatment in relation to his injuries. [36] In respect of the criminal proceedings against him, Mr Johnson was ultimately convicted in December 2019 and sentenced on 23 March 2020 to a term of imprisonment.

Breach of Duty (Appeal Grounds 1, 2, 3, 4, 5; Contention 1)

1. [52]

   The trial judge found that Firths did not breach their duty of care, because they conducted the claim “in a manner which would be widely accepted in Australia, and in New South Wales as competent and professional” for the purposes of (NSW) Civil Liability Act 2002, s 5O. [37] In so doing, his Honour accepted the expert opinion of Mr Thomas Goudkamp, relied on by Firths, in preference to that of Dr Paul Wholohan, who was qualified on behalf of Mr Johnson.

2. [53]

   By a Notice of Contention, the respondents contend, in effect, that in circumstances where s 5O(1) was pleaded in their defence, and irrationality was not pleaded in any reply, nor was it put to Mr Goudkamp, nor otherwise advanced, that his opinion was irrational, the respondents could not be held liable in negligence. I do not accept this contention. A defence under s 5O is not sustained merely by having a professional witness endorse a defendant’s conduct as “widely accepted by peer professional opinion as competent professional practice”. This contention conflates the question of irrationality of the professional practice (which is what s 5O(2) is directed to) with irrationality of the evidence. An expert opinion may be rejected on many grounds other than that it is irrational. As Leeming JA observed in South Western Sydney Local Health District v Gould: [38]

3. [54]

   His Honour added: [39]

4. [55]

   One of the many reasons, apart from irrationality, that an opinion expressed in terms of s 5O(1) may not survive is, as Leeming JA pointed out, that the assumptions underlying it are not established. [40]

5. [56]

   Mr Johnson’s case was that his claim was allowed to be settled prematurely, when it had not been properly investigated and Firths had not advised him what his case was in fact potentially worth (as distinct from what the insurer might offer), at a substantial undervalue. Reduced to its essence, the complaint was that Firths should not have permitted the settlement conference to proceed when it did, but should have obtained further medical (neurological) opinion, which would likely have revealed more serious impairment, and in any event should not have settled until they had been able to form and express an opinion as to what the claim was worth if it proceeded to assessment.

6. [57]

   Mr Goudkamp agreed, and it was not in dispute, that a fundamental aspect of the role and duty of a solicitor acting for a claimant in such a matter is to advise their client as to what they would likely receive on CARS assessment. For Mr Johnson, it was complained that Firths never did this. However, whether in the circumstances proceeding to a settlement conference, and ultimately settling the matter, involved departure from competent professional practice requires that regard be had to whole of the circumstances, including the stage the proceedings had reached, the instructions of the client, and the advice that was in fact given.

7. [58]

   The proceedings were at an early stage. In particular, medico-legal opinions had not been obtained on behalf of Mr Johnson. Firths explained to Mr Johnson that ordinarily they would have liked more time to prepare the matter, including to qualify an independent specialist, and that an opinion from a specialist might influence the outcome favourably to him. It was explained that while normally such a report would be obtained before a settlement conference, in this case there had not been time, given that the conference had been arranged at short notice. Thus it was made clear to Mr Johnson that he might improve his position by waiting.

8. [59]

   The trial judge found that the timing of the settlement conference was driven by Mr Johnson’s desire for an early settlement, given his desperate financial circumstances. In various different ways, grounds 1, 2, 3, and 4(a) impugned that conclusion. The appellant places great weight on the sentence in Mr Johnson’s 8 December 2016 email, “if your [sic] not sure if the case will be ready by next tuesday, best we postpone the hearing then”. The appellant also complains that the trial judge did not address his submission that the conclusions and inferences for which Mr Johnson contends – that he was not the driving force for settlement and was happy for the conference to be deferred – may more comfortably be drawn given that Mr Firth did not give evidence to explain why they should not. It is said that his Honour’s conclusion was contrary to the tenor of the correspondence.

9. [60]

   However, the sentence in the 12:12pm email of 8 December 2016 must be seen in the context of the other exchanges on that day and the previous day, the events of 13 and 14 December 2016, and the whole of the correspondence commencing from 21 October 2016. This includes his instructions (recorded in Mr Firth’s email of 6 December 2016, and presumably given in their telephone conversation the preceding day) to arrange an informal settlement conference, and that the earliest available date was accepted because of the circumstances – which self-evidently were Mr Johnson’s dire financial position – and Mr Firth’s repeated advice to the effect that he should not “throw away” his case for the sake of an early settlement. The urgency of a settlement from Mr Johnson’s perspective emerges from his own correspondence, his inquiries (on 21 October 2016) about a date for settlement, his repeated requests for loans, his expressed high degree of confidence that the matter would settle, and his threats to take his instructions elsewhere if it did not. Mr Johnson conceded that he was “desperate” to get money as soon as he could. [41] Other than the solitary sentence in the 8 December 2016 email, there is nothing to indicate that he wanted to have the settlement conference deferred: in particular, he himself gave no evidence that he wished to defer it. Although he gave evidence – which is impossible to reconcile with Firths’ letter of 8 December 2016 – that he had no idea how the damages were calculated, he gave none to suggest that he was an unwilling or reluctant participant in the conference, or that he was not keen for it to proceed. His failure to give such evidence is at least as eloquent as Mr Firth’s absence. There was no error in his Honour’s conclusion to the effect that Mr Johnson wanted a settlement as quickly as possible, and so instructed Firths.

10. [61]

    Grounds 4(b), 4(c), and 5 complain in substance that his Honour erroneously failed to find that Firths failed to advise Mr Johnson what his claim was worth, and that this constituted a negligent departure from proper professional practice.

11. [62]

    Before the conference, Mr Johnson had some indication from Firths, in their 7 December 2016 advice, [42] of the value of his case. While that advice was expressed to be as “to the amount the other side is likely to offer you at the settlement conference”, and not in terms as to what the case was worth upon ultimate assessment, it contained substantial elements of the latter: in particular, Mr Johnson was told that Mr Firth’s opinion was that his claim for non-economic loss should be in the range of $200,000 to $250,000, but that the insurer would probably only allow $150,000 and certainly no more than $200,000. That must be seen in the context that Mr Johnson had started from a position where he wanted $700,000, or at least $600,000, inclusive. The general tenor of Firths’ advice was that the insurer would offer less than the true value of the claim. The whole of the correspondence, and the conduct of the negotiations, is redolent with Mr Firth doing what he could, even at the risk of alienating his client, to strengthen his resolve, so that he would not merely accept whatever was offered and “throw away his case”. If the client instructed him to accept an offer which was unreasonably low, that would have called for strong advice; but as explained later, the offer was well within the range. When asked whether he would have advised Mr Johnson to accept the final offer, Mr Goudkamp said, “knowing what I know now about his past … and what happened since the accident, I’d advise him to take it.” [43] That evidence was not challenged.

12. [63]

    The appellant argued that, having regard to Mr Johnson’s instructions that he was doubtful about his capacity to return to work, Dr Tran’s opinion that he would not work for “at least another six months”, and that Dr Pierides who gave a more optimistic opinion for the insurer was “a notoriously unsympathetic medico-legal practitioner”, Firths should have obtained a report from Dr Darwish, or qualified a medico-legal specialist. Against that has to be weighed the instructions recorded in Firths’ 14 December 2016 letter that Mr Johnson was planning on returning to work as soon as he was eligible to regain his licence in January 2017, and that it had been explained to him that a report from a specialist might be beneficial and would ordinarily be obtained before a settlement conference, but that time had not permitted this. Also to be factored in is the likelihood that between the time of the settlement conference and an assessment (which it was accepted would have taken place in about June 2017), the insurer would have learned of Mr Johnson’s criminal record and drug addiction, which would have adversely impacted his claim, particularly in respect of lost earning capacity. Mr Goudkamp gave evidence that it may be prudent to attempt to settle a case “early” (that is, to “strike while the iron is hot”) where there is a risk that the recoverable damages might be adversely affected “by subsequent events and subsequent knowledge.” [44] This was such a case, because of the risk that the insurer would learn more about Mr Johnson’s employment history, drug addiction, and criminal record. [45] The appellant’s expert Mr Wholohan also accepted that this was a valid concern. [46]

13. [64]

    Before the informal settlement conference, Mr Firth had advised Mr Johnson that he did not have to settle at the conference; that there would be other opportunities for settlement; that he may be able to do better further down the track; and that his ordinary practice was to obtain medico-legal reports before a settlement conference, and that a favourable opinion might increase the outcome. Mr Johnson was well apprised that if the matter proceeded, he might well obtain more, though he might also obtain less. He acknowledged in the authority to settle of 21 December 2016 that he did not have to accept the offer. The closing submissions on his behalf to the trial judge included that he understood that his case “may have greater value” if prepared further.

14. [65]

    Having regard to all those considerations, in my view no error has been shown in his Honour’s conclusion that in permitting the matter to be settled as and when it was, Firths did not depart from competent professional practice. It is plain that Mr Johnson desired a quick settlement, and that Mr Firth did his utmost to discourage him from doing so at a serious undervalue. While ordinarily it is prudent practice for advice to be given before a settlement conference as to the compensation likely to be recoverable upon assessment, in the context of the urgency with which this conference was arranged and conducted at an early stage of proceedings, Mr Johnson’s dire financial circumstances and desire for an early settlement, the advice that a medico-legal opinion had not been obtained because of the urgency, but that if obtained it might improve his position, the advice as to quantum that was given in Firths’ 8 December 2016 letter, the repeated counselling of Mr Johnson by Mr Firth against “throwing away” his case (to the point of alienating him and also offering to provide a further loan if necessary), the clear advice that he did not have to accept any offer and might (but also might not) improve his position by waiting, the risk that the insurer might learn of matters adverse to his claim, and (importantly) the circumstance that the offer ultimately accepted was (as explained below) far from being so unreasonable as to require a warning against acceptance, it was not imprudent to proceed with the settlement conference, nor to fail to advise against acceptance of the final offer made the following day – notwithstanding that Mr Johnson had indicated in passing in his 8 December 2016 email that the settlement conference could be postponed if necessary.

Causation (Appeal Grounds 6, 7)

1. [66]

   The trial judge found that Mr Johnson had not established that any negligence on the part of Firths had caused him loss. [47]

2. [67]

   In this case, the question of what would have eventuated had Mr Johnson been properly advised (assuming that he was not) involves three elements, the first two of which are closely related:

   1. (1)

      what would he probably have received upon CARS assessment if the matter was not settled;

   2. (2)

      what advice should he have been given; and

   3. (3)

      would he have taken the offer, regardless of advice that he might recover (much) more on CARS assessment.

3. [68]

   Dr Wholohan gave evidence that Mr Johnson’s claim was worth about $740,000 plus costs, comprising $250,000 for non-economic loss, $30,000 for past medical expenses, $25,000 for future medical expenses, $30,000 past economic loss (calculated as $550 per week for 104 weeks, discounted by 50% for the fact that he was not working at the date of the accident), $332,775 future economic loss (calculated as $500 per week for 27 years, discounted by 15% for vicissitudes), $36,605 lost superannuation, $10,920 for past gratuitous assistance, and $25,000 for future domestic assistance.

4. [69]

   Mr Goudkamp gave evidence that the range of compensation which Mr Johnson might have recovered on assessment was from $350,000 plus regulated costs of $25,000 (low range), $450,000 plus costs (medium range), to $540,000 plus costs (high range). In cross-examination he accepted that a buffer of $50,000 for future economic loss was low; [48] his resting position after cross-examination was that he would allow a buffer in the order of about $150,000 for future economic loss, and between $175,000 and $200,000 for non-economic loss. [49] For past care, he proposed $8,000 (low range), $11,000 (mid-range), and $15,000 (top range); for future care, $25,000, $35,000, and $50,000; and for future medical expenses, $25,000, $30,000, and $35,000. [50] Those midrange figures total $76,000, and when added to non-economic loss of $200,000 and future economic loss of $150,000, amount to $426,000, plus costs – his mid-range figure of $450,000 inclusive of costs therefore included an additional $24,000.

5. [70]

   The significant difference between the experts was their assumptions as to earning capacity. The trial judge preferred Mr Goudkamp’s opinion, for the reason that “Dr Wholohan’s assumptions as to past and future loss took insufficient account of whether Mr. Johnson’s repeated driving disqualifications, drug addiction and criminal history would have militated against the exercise of his earning capacity had he remained uninjured.” [51]

6. [71]

   Ground 6 complained in substance that his Honour erred in assessing the damages which Mr Johnson would likely have recovered in his claim, and Ground 7 that his Honour gave inadequate reasons for preferring the evidence of Mr Goudkamp to that of Dr Wholohan. The appellant submitted that the evidence established that he had the capacity to earn in the vicinity of $1,200 to $1,300 nett per week, and that his Honour failed to allow for the evidence that the putative employer had offered work other than as a truck driver.

7. [72]

   However, although Mr Johnson had instructed Firths that he had been offered work starting in June 2016, and that such work was as an offsider and not as a driver, the prospective employer Mr Damir, when followed-up by Mr Firth, said that the work was for a truck driver; [52] thus it was not work as an offsider that could be performed without a driving licence. Moreover, his recent employment history did not support such a capacity; over the three years before the accident he had earned about $320 nett per week on average. Dr Wholohan had proceeded on an incorrect assumption that the income of $32,000 disclosed in his 2015 return was attributable to personal exertion earnings, when, but for about $500, it was substantially comprised of Centrelink and superannuation payments. [53] Further, in January 2017, Mr Johnson was certified by his general practitioner Dr Tran as fit to return to full occupational duties, casting doubt on the viability of any claim for lost earning capacity thereafter. For those reasons, his Honour was entitled to prefer Mr Goudkamp’s more conservative assessment of Mr Johnson’s earning capacity. The reason expressed by his Honour, as quoted above, was commendably concise, but wholly sufficient.

8. [73]

   Accordingly, no error has been shown in his Honour’s preference for Mr Goudkamp’s opinion that the likely value of Mr Johnson’s claim was between $375,000 inclusive and $565,000 inclusive, with the mid-range being $475,000 inclusive of costs. The actual settlement of $500,000 inclusive of costs was, therefore, superior to the mid-range in his assessment.

9. [74]

   It follows that the insurer’s final offer, which Mr Johnson accepted, far from being one that was so insufficient that he ought to have been warned against accepting it, was one in respect of which proper advice to Mr Johnson would have been that it was well within the range of potential outcomes and perhaps slightly better than the middle of the range, and that while he might obtain more at assessment, he might also receive less, but that his solicitor/client costs would increase, so that the nett amount to him in hand would reduce commensurately.

10. [75]

    So advised, Mr Johnson would have accepted the offer. But in my opinion, even if he had been advised that he might well obtain much more by waiting for an assessment, it would have made no difference: he would still have accepted the best offer Mr Firth was able to extract in the short term. There is a very strong inference that even if he had been advised that he might obtain $700,000 plus costs upon assessment in another six months, he would have accepted whatever was on offer. His attitude was informed by his precarious financial circumstances, and the risk that information adverse to him would become known to the insurer before assessment. In circumstances where his starting position had been $700,000 plus costs and he thought he would not settle for less than $600,000 plus costs, he was on 8 December 2016 “99.9% certain it will settle on tuesday”. Only by offering him further financial support to tide him over Christmas was Mr Firth able to dissuade him from accepting the insurer’s offer at the settlement conference. When the insurer reverted with a further offer the following morning, Mr Johnson wished to accept it, but Mr Firth dissuaded him again, on the basis that a counteroffer would be made. When that counteroffer produced a further offer assuring Mr Johnson of $350,000 clear, his instructions were “Take that offer. 100%. 100 million%”. Advice that he might obtain a substantially greater amount on CARS assessment more than six months later would not have dissuaded Mr Johnson from accepting that offer.

11. [76]

    No error has been shown, therefore, in his Honour’s conclusion that Mr Johnson did not establish that any negligence on Firths’ part caused him loss. On the evidence which the trial judge accepted and was entitled to accept, had the matter proceeded to assessment, he would probably have recovered in the order of $475,000 inclusive of costs; he in fact recovered $500,000. Moreover, properly advised as to the value of his claim, he would have accepted the insurer’s final offer. And even if advised that his case might prove to be worth substantially more than the offer, he would still have done so.

Conclusion

1. [77]

   It follows that no error has been established in his Honour’s conclusion that Firths were not shown to have acted otherwise than in accordance with competent professional practice, and that even if they had, no departure from such practice occasioned Mr Johnson any loss.

2. [78]

   I propose that the appeal be dismissed, with costs.