[co-authors: John Dillon; Emma Oberg]
The Court of Appeal decision in Liddy v Bazley  NSWCA 319 is a reminder that a failure to commence proceedings within the limitation period will not necessarily sound in damages.
Mr Bazley, a prison officer at Parklea Prison, was assaulted and held hostage during a riot. As a result Mr Bazley was diagnosed with post-traumatic stress disorder. He retained solicitors but proceedings were not commenced within the limitation period. He sued his solicitors.
In the District Court, Williams DCJ upheld Mr Bazley’s claim and gave judgment in the amount of $270,019, being the value of the opportunity lost by the failure to commence proceedings. However, the Court of Appeal agreed with the solicitors’ submission that Mr Bazley would have been better off receiving workers’ compensation benefits and, if properly advised, would not have pursued the proceedings. The true breach in this case was that the solicitors failed to properly advise Mr Bazley not to commence proceedings. As a result, there was no loss.