Now here’s a salutary tale. It concerns a couple of Hellenic lads (Sydney solicitor Spero Pitsikas and barrister James Conomos) who advised one Eva Kolavo to litigate after her unfortunate experience on a package tour of Spain in 1996.
The litigation was a disaster and so too was her subsequent action against Pitsikas and Conomos in professional negligence. Ultimately, the NSW Court of Appeal came to the rescue, where Justices Cripps, Stein and Santow recently found that both the solicitor and the barrister failed to advise Mrs Kolavo that her case was “hopeless” and they were generally “derelict in their duty to her”. This “amounted to a failure to exercise reasonable care and skill in the provision of professional advice”.
Mrs Kolavo’s troubles began when she decided to save money by sharing a room while on holiday and staying at the Hotel Praga in Madrid. Apparently her co-habitue, Ms Anisetta Krueger took a strong dislike to Mrs Kolavo’s toilet habits. This resulted in an unprovoked attack, a hair-tearing brawl, in which Krueger sunk her choppers into Kolavo’s left little finger, almost severing it.
In March 1997 Mrs Kolavo consulted Spero Pitsikas and was referred to a solicitor at the firm, Mr Comino. He advised her she didn’t have much of a case. However, Jim Conomos of counsel was confident she did have a case against both the travel agent (Dial-A-Coach Group Pty Ltd) and the tour operator (Circuit Travel Pty Ltd).
This was curious since the tour operator’s brochure clearly stated under Tour Conditions – Responsibility:
“The Company shall in no circumstances whatsoever be liable to the client or any person travelling with him for –
1. Any death, personal injury, sickness, accident, loss, delay, increased expense, consequential loss or any misadventure howsoever caused.
2. Any act, ommission, default of any hotelier, carrier or other person or by any servant or agent employed by them who may be engaged or concerned in the provision of accommodation, refreshment, carriage facility or service for the client or for any person travelling with him howsoever caused.
3. In this condition “howsoever caused” includes negligence on the part of any person.”
When Kolavo finally went to court in March 1998, District Court Judge Naughton didn’t accept her version of events. He dismissed her claims of negligence and breach of contract, concluding, “it was not reasonably foreseeable that the fight which occurred, would occur.”
Kolavo then commenced professional negligence proceedings against Pitsikas and barrister Conomos on the basis that they had poorly advised her in law.
The case was heard in November 2001 by Acting District Court Judge Helen Gamble (Professor of Law and former Dean of the Faculty of Law, University of Wollongong). She held that the lawyers were not in breach of any legal obligation to their client.
Kolavo appealed and this time she was on the money.
In his leading judgment last month, Jerrold Cripps was critical not only of the respondents, but also of poor Professor Gamble.
“The learned trial judge appeared to be of the view that because the second respondent [Conomos] believed the advice he gave was correct, that was an end of the matter… She did not address the question whether the advice given by the second respondent and adopted by the first respondent [Pitsikas] was relevantly negligent.”
”... the learned trial judge misdirected herself by failing properly to address the essential issue in the case, by making findings that were nor reasonably open, by wrongly rejecting evidence that the appellant wished to give concerning her reliance on the advice given, and when called upon to allow amendments to the statement of claim, misapplied her discretion.”
The court awarded Kolavo $11,000 in damages for distress, discomfort, disappointment and inconvenience.
The respondent lawyers were ordered to pay all of Kolavo’s costs, to re-imburse her the $31,305.01 she paid to the Tour Operator in respect of Judge Gamble’s findings and to indemnify her against costs payable to the travel agent as a result of Judge Naughton’s orders.
Acting Judge Gamble is not Greek.