Written by Peter CarterFebruary 5, 2011
It began in the taxi feeder rank at Brisbane airport in October 2002 when the driver was enjoying a lull and was eating a banana at the time he stepped into a hole in the kerb and injured his right shoulder.
The wounded Colin Horne had surgery and saw Murphy Schmidt, then Gilshennan & Luton who became the defendants in the action because Colin’s personal injury claim against the airport owners was not started in court.
It ended in the District Court in December with a $60,000 verdict* for Horne but accompanied by the bitter taste of an order that he pay Gilshennan & Luton’s legal costs. Conducting a trial within a trial, the court had to calculate what another court would hypothetically have concluded in a claim against the airport company (BAC).
The hole in the kerb was concealed by leaves and by shadow. The feeder rank was for its commercial benefit as well as taxi drivers who used it. BAC ought to have foreseen the risk of injury and the consequences of which was “of considerable magnitude” even though the risk itself was slight.
The case, decided the judge, was not hopeless and would have had some prospects of success against BAC.
There was not a great difference between the opinion of his treating orthopaedic surgeon, Dr Robinson who assessed his ongoing impairment as a result of the shoulder injury at about 6% and that of Dr Stedman. Horne had many prior ailments – including prior injuries to both shoulders, syndromes and psychological upsets. But the judge thought, preferring Dr Robinson’s evidence -he is an upper limb specialist – to that of Dr Stedman that the prior pathology had not made a disability to his right shoulder inevitable regardless of the taxi rank fall.
Age 67 at the time of hearing, three years future loss of income (until age 70) was allowed, discounted for contingencies by 40%. Past losses were discounted 30%. Total potential damages were assessed at $180,000. So what was the plaintiff entitled to as damages for his loss of a chance of receiving $180,000 in a trial against BAC?
The defendant solicitors argued “not only that the plaintiff had no prospects of success against BAC at trial but also that there was no prospect of a settlement, given the robust denial of liability and BAC’s unyielding attitude”. His Honour reviewed the relevant cases where an action was lost because of the solicitor’s negligence, and concluded that the “prospects rarely exceed a two-thirds chance”.
In this case, the taxi drivers prospects against BAC, according to his honour, were no better than one third. The judgment was for a third of the $180,000 assessed, namely $60,000.
The solicitors’ negligence claim was started in 2007. It appears that they made an offer to settle as early as December 2008. The offer must have been at least to pay the judgment sum, as Horne was ordered to pay their legal costs from then through the four-day trial to judgment.
* Horne v Gilshenan & Luton  QDC 491