Claim Against Lawyers for Expired Limitation Period

Claim Against Lawyers for Expired Limitation Period



Professional Negligence – Claim Against Lawyers for Expired Limitation Period

Aitken Wilson Lawyers were successful in acting for the Plaintiff in the recent case of Horne v Gilshenan & Luton [2010] QDC 491. This litigation involving lawyers’ professional negligence, highlights the importance of solicitors vigilance in acting in the best interests of their clients and ensuring all claims are filed within the relevant limitation period, as well as the rights conferred on clients when they are neglected by their law firm. The plaintiff, Mr Horne, successfully sued the law firm in this civil litigation, representing him in a personal injuries claim against the Brisbane Airport Corporation (BAC) when the lawyers failed to file a claim before the limitation period expired. As a result of their failure Mr Horne was unable to recover damages against the BAC.

The Original Personal Injuries Claim

Mr Horne, 62 years old at the time of proceedings, was a self-employed taxi driver who suffered injuries to his shoulder and an adjustment disorder as a result of a fall after stepping in a defect in a bitumen road within the taxi feeder rank at the Brisbane Domestic Airport on 17 October 2002. For his injuries, Mr Horne was treated in the Emergency Department of Princess Alexandra Hospital ,was given a cortisone injection and later underwent surgery on his right shoulder, which was not able to fully recover due to issues with blood supply where the stitches were placed.

He retained solicitors to prosecute a common law damages claim against the BAC but changed solicitors to the defendants (Gilshenan & Luton) in May 2004, who then failed to file the claim before the limitation period expired. This case for professional negligence was against Gilshenan & Luton to recover damages for the loss suffered due to their negligence and breach of duty.

Determination of Compensation – Professional Negligence claim

Devereaux SC DCJ referred to Brennan J’s judgement in Johnson v Perez (1988) 166 CLR 351:

‘When a plaintiff loses his original cause of action by the negligence of his solicitor, what is the extent of his loss? He has lost the monetary compensation for his personal injuries which he would have received at the time when he would have received it but for the solicitor’s negligence. That being the extent of the plaintiff’s loss, a court which seeks to put him back in the “same position” must assess, as best it can, whether or not the cause of action would have yielded a judgment or a settlement and, if so, how much the plaintiff would have received and when. It may be necessary to conduct a trial within a trial to determine what the cause of action would have produced. That is what the cause of action was worth to the plaintiff.’

Therefore in assessing whether Mr Horne was owed damages by his former law firm, it was necessary to determine whether his original claim for personal injuries against the BAC would have been successful, as the defendants argued that their failure to file the claim was of no consequence because the claim itself had no prospects of success. They argued that there was no breach of duty by the BAC  to have maintained or repaired the part of the road where Mr Horne fell and that even if some liability could be established, his prospects of success were still minimal. Further, it was argued that Mr Horne’s case would have suffered due to issues with his credibility and contributory negligence and that any claim would have been futile anyway, as the damages awarded would have been insignificant.

Outcome of Proceedings Against the Solicitors

Devereaux SC DCJ determined that while there were inconsistencies in Mr Horne’s story in regard to the events surrounding his injuries, the hole in the ground was somewhat obscured due to leaf litter and “dappled light”. He then went on to examine what (if any) duty was owed to Mr Horne by the BAC in regard to the hole in the road. He determined that while the risk of such an injury occurring due to the hole was slight, it was of “considerable magnitude” and could lead to economic loss. However he remarked that it was “far from clear” that a court would be satisfied that the BAC was in breach of their duty to Mr Horne and even if they did conclude this, issues with respect to contributory negligence would be raised where they believed Mr Horne was simply not paying attention and potentially contributed to the severity of his injuries.

There were further issues for Devereaux SC DCJ to consider in determining a suitable outcome as Mr Horne had a history of medical and psychological issues that may have played a role in his ability to work in the future and the severity of his injuries. There were conflicting medical reports provided in regard to his physical state and the possibility of exaggeration of his injuries and already existing ailments. However Devereaux SC DCJ came to the conclusion that had a court heard Mr Horne’s initial claim, it would have determined that he suffered, as a result of his fall combined with his existing conditions and that he should be compensated.

Essentially Devereaux SC DCJ determined that Mr Horne had approximately one third of a chance in succeeding in his original claim against the BAC for injuries. Therefore, in determining the damages he was entitled to receive from the defendants due to their negligence in pursuing his claim, one third of the figure determined as appropriate for a successful personal injuries claim in that instance was awarded to Mr Horne (that being $61,601.56 plus interest).

The lesson from this case is clear, the failure of a solicitor to take appropriate action in furthering the best interests of their client can have serious consequences, even where that negligence only prevents a claim that may have had limited prospects for success in the first place.

Office Location and Contact Details


Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311


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