In Watson v E & E [2008] VSC 510, Justice Beach endorsed, “in passing”, some dicta to the effect that expert evidence is rarely helpful in defining the content of a lawyer’s duty of care to a client:
132 In making conclusions on the issue of breach of duty, I have not overlooked the evidence of Mr Andrew Joseph. Mr Joseph is a solicitor who gave evidence on behalf of the plaintiffs. His evidence was supportive of the plaintiffs’ case on breach of duty.[167] However, Mr Joseph’s evidence was predicated upon an assumption that GMM and FCG became clients of Ebsworths as at 9 February 2001 and that Mr Watson and Mr Gibson (who he also refers to as “clients”) were clients of the firm either at that time or at some time prior to 7 September 2001. I have found the facts to be different from those which Mr Joseph was asked to assume. Further, Mr Joseph’s opinion was predicated on a briefing of the facts which was too high level in its generality to render his opinion of assistance. In the circumstances, his evidence does not assist in the resolution of this proceeding. In passing, I endorse the dicta of Oliver J in Midland Bank Trust Co Limited v Hett, Stubbs & Kemp (a firm):[168]
“I must say that I doubt the value, or even the admissibility, of this sort of evidence, which seems to be becoming customary in cases of this type. The extent of the legal duty in any given situation must, I think, be a question of law for the court. Clearly, if there is some practice in a particular profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage, evidence of that can and ought to be received. But evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks that he would have done had he been placed, hypothetically and without the benefit of hindsight, in the position of the defendants, is of little assistance to the court; whilst evidence of the witness’ view of what, as a matter of law, the solicitor’s duty was in the particular circumstances of the case is, I should have thought, inadmissible, for that is the very question which it is the court’s function to decide.”[169]
[168] [1979] 1 Ch 384 at 402.
[169] See also the Full Federal Court decision Yates v Boland (1998) 157 ALR 30 at 56 wherein the Court said: “We think that a court is well placed to determine the liability in negligence of a legal practitioner without the aid of such evidence where questions of particular practices do not arise” – but note the substantial criticism that decision received in the High Court in respect of other issues in Boland v Yates (1999) 167 CLR 575 (see in particular the judgment of Gummow J at paragraph [114]).
