Pinpointing the notional trial date in claims against lawyers

Steve Masselos & Co v Young [2011] NSWCA 35

In defending professional negligence actions against litigation lawyers, a crucial element is the fixing of the notional trial date.

The notional trial date is the date when the plaintiff's underlying cause of action would have gone to trial were it not for the negligence of the plaintiff's lawyers.

It is vital to fix that date, because only evidence which would likely have been available to the trial judge at that time, is to be considered when assessing damages. To take into account later facts and evidence, can lead to error, as this recent NSW Court of Appeal decision shows.

Background

In 2003 the plaintiff, Mr Young, was injured on Commonwealth property when working as a security guard for a private contractor.