2nd edition of Professional Liability in Australia reviewed

I was already a fan of the first edition of Judge Stephen Walmsley SC, Alister Abadee, and Ben Zipser‘s excellent Professional Liability in Australia, published by Thomson, and had been waiting for the new edition with interest. I got myself a copy the other day. It’s good, and there are substantial additions since the first edition, including a lot on expert evidence, a new bit on professional discipline, analysis of the Financial Services Reform Act, 2001, analysis of the cases on the civil liability acts and a good analysis of proportionate liability.

It is a text which delves into all of the legislation which clusters around professional liability these days and grapples with it, a thankless task for an Australian text writer compelled to read and understand all of the states’ and territories’ regimes and then synthesise them. So the availability of compensation in professional discipline regimes is treated properly, as is the effect of professional standards legislation, which caps liability for scheme mebers. The research is wide-ranging and thorough: a VCAT decision is cited. It is written from a practical perspective rather than a theoretical perspective. There is not the over-reliance on English authority which sometimes characterises texts in this area. The writing tends to take positions rather than carrying on at great length about parallel or divergent lines of authorities without suggesting which is to be preferred. One suspects that bad decisions have simply been ignored in the hope that they will be forgotten. If only more text writers would operate in this fashion.

Professional negligence is one of those areas of law in which everyone claims to be a specialist. There are, for example, 387 barristers at the Victorian Bar who claim on their web profile to practise in professional negligence. Then there are undoubtedly many others, like me, who haven’t listed their practice areas using the scheme which allows for searching like that.

Thomson has kindly offered a 10% discount for readers of this blog if you go to their bookshop at 160 William St, Melbourne. Alternatively, the book can be purchased online, for $220 inclusive of postage and handling.

One might think that professional negligence is a simple application of the law of negligence, part of the repertoire of a common lawyer. Obviously, that is not true of claims against insurance brokers, which usually now require a knowledge of the financial services legislation. Even to the extent that is true, it is still helpful to have a book which articulates how the courts have applied the general principles to professional negligence cases, and the authors have really done a lot of hard work to that end. It is apparent that they have pored over the big cases which many of us never quite find the time to read carefully, like the Duke Group litigation, and Daniels v Anderson, and slotted in the insights obtained throughout the text. This text has the advantage of an outstanding section on general principles, written by Ben Zipser, and chapters full of detail about specific lines of professional negligence which are well cross-referenced to the general principles chapter but relatively self-sufficient so that it is unnecessary to be constantly flicking back and forth between the general and the applied chapters. The following professions are each covered in remarkable detail:

  • doctors,
  • solicitors,
  • barristers,
  • accountants,
  • auditors,
  • architects,
  • engineers,
  • surveyors,
  • builders,
  • valuers,
  • stockbrokers,
  • finance brokers,
  • insurance brokers and
  • financial services licensees more generally.

But it is no longer true that professional negligence is just an application of the law of negligence. There is of course contract to contend with, and even if that’s not news to many competent lawyers, they might not be so familiar with legislation which modifies the law of contract where there are ‘concurrent and coextensive’ duties of care owed in contract and in tort, passed to undo the High Court’s decision in Astley v Austrust Pty Ltd (1999) 197 CLR 1. That legislation sanctions a plea of contributory negligence to a professional negligence claim framed in contract. And then there is recent legislation which says that contributory negligence may reduce the plaintiff’s claim by 100%. And legislation which allows, effectively, contributory negligence to be raised as a defence to a misleading or deceptive conduct claim under s. 52 of the Trade Practices Act, 1974 (Cth.), but not under ss. 53-59, and only in claims which arose on or after 26 July 2004.

And there is the law of agency, the law of fiduciary duties, the laws of misleading or deceptive conduct, the law of partnership, the law of liability insurance, and, often enough, the law of bankruptcy to be contended with. Those things, in their combined application to professional liability do produce a distinct body of law worthy of a text. On the other hand, the law is not necessarily consistent in its application across the professions, which is why the detailed separate treatment of the different professions in this text is so helpful.

And then there’s the phenomenon of proportionate liability which has come into force since the last edition, and which is essential for any professional negligence lawyer to have a grip on. Ben Zipser has done a good job of summarising the proportionate liability regimes, though any text which tries to tackle all of the regimes at once is going to have some shortcomings for the practitioner who needs answers in relation to a particular matter in a particular jurisdiction. There is no old-fashioned contribution under s. 23B of the Wrongs Act, 1958 (Vic.) allowed in proportionate liability claims, but what is and what is not an apportionable claim is likely to remain uncertain for some time, especially where there are mixed claims at common law, under the Fair Trading Act, 1958 (Vic.) and under Commonwealth statutes which proscribe misleading or deceptive conduct. So the examples of contribution scenarios in the solicitors’ liability chapter, for example, will remain useful, and is an example of how practitioner-friendly this text is. Examples from cases are provided separately of contribution between barristers and solicitors, valuers and solicitors, accountants and solicitors, and successive firms of solicitors.

I am not the kind of reviewer who goes out of his way to note errors, however there are a couple which are worth noting for Victorian practitioners. An example of the thoroughness of the text writers is their treatment of the lawyers’ disciplinary tribunals’ power to award compensation, but the text seems to suggest at p. 555 that VCAT’s power to award compensation is not limited to $25,000 as it is in NSW, which is not correct. And on the same page, it is suggested that advocates’ immunity is no defence to a claim for compensation in VCAT, which is certainly not the view of VCAT’s Legal Practice List, where I have regularly had matters struck out under the immunity. Finally, though there is a paragraph in the chapter on solicitors devoted to statutory prohibitions on contracting out of liability, there is no reference to a provision hidden away in the Legal Profession Act, 2004 (Vic.) (s. 7.2.11(3)) which prohibits the contracting out in advance of liability for any ‘loss or damage caused to the client in connection with legal services’.

These little errors should not distract attention from the fact that this is an outstanding text, packed with practical information which is readily accessible and written in a way which is easy to understand.

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