Client wins professional negligence case against solicitors at VCAT

Such a result is a rare turn up for the books. It would be an interesting exercise to think when a client last won compensation after a hearing down there. What’s more, the American client didn’t bother with representation, didn’t come to Australia for the hearing, and still won based on a statutory declaration he presumably put in the post. The case is L. Scott Turner v DCL [2007] VCAT 1296. Essentially, Senior Member Howell found that the solicitors did nothing much that was useful, and seems to have ordered the refund of fees charged as damages according to the principle in Heywood v Wellers (a firm) [1976] QB 446. As Walmsley et. al put it in their excellent Professional Liability in Australia,where the professional’s breach of contract in respect of that part of the work for which fees are to be paid renders the professional’s services valueless or useless, he or she is not entitled to payment.’ This small case is exactly the kind of case the Legal Practice List is set up to deal with efficiently (which is not to say that it is unable to deal with much more complicated matters). It is a matter of continual surprise to me how rarely its jurisdiction is successfully invoked.Qantas lost the Turners’ suitcase while they were holidaying in Australia. The Turners claimed its contents were worth some $12,000. They retained the solicitors who lodged a claim with Qantas which relied on the Civil Aviation (Carriers Liability) Act 1959 to limit its liability to $1,600 per passenger. The Turners instructed the rejection of an offer of $3,200, but without having received advice about the Act, saying they thought more could be squeezed out of Qantas by the threat of adverse publicity in the context of the media attention then being attracted to baggage theft. The solicitors refused to pursue Qantas further unless the opinion of a barrister experienced in aviation law could be procured. The Turners refused to countenance such an expense. There was a standoff during which the solicitors apologised for delay.

Then the solicitors, a bit less than 18 months after the retainer, terminated the retainer on the basis of a breakdown in communications and a loss of confidence in the firm by the clients. Senior Member Howell found that advice of counsel was unnecessary on such a simple point, and a competent solicitor would simply have looked up the Act, advised that $3,200 was the most the Turners were going to get, asked Qantas for more, but if, as was very likely, Qantas said no, advised the Turners to take the $3,200. Instead, the solicitors carefully avoided giving advice, and let the matter drift aimlessly. Of the $2,000 paid by the Turners to the solicitors, the solicitors were justified in charging only $700, and Senior Member Howell ordered the payment of the balance back to the Turners.

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