Stephen Warne on professional negligence, regulation and discipline around the world

The Australian Professional Liability Blog random header image

Entries Tagged as 'defences'

A defendant seeking in Victoria to join a concurrent wrongdoer need not establish a prima facie case by evidence

July 7th, 2016 · No Comments

Here is a link to a presentation by Ross Macaw QC on proportionate liability.  It is produced by benchTV, an enhancement to the long-excellent new case notification service, Benchmark, provided by AR Connoly & Co in Sydney.  Mr Macaw considers Justice John Dixon’s beautifully written judgment in Fabfloor (Vic) Pty Ltd v BNY Trust Company of […]

[

Tags: "professional negligence" · defences · Negligence · Proportionate Liability

What is the duty of care in tort of a man with florid paranoid schizophrenia?

March 19th, 2016 · No Comments

Some cases are just dead interesting.  Dunnage v Randall [2016] 2 WLR 839, [2015] WLR(D) 287, [2015] EWCA Civ 673 is one of them.  A man sued the estate of his late uncle for compensation for injuries he suffered when his uncle poured petrol on himself and set it alight.  Despite the man’s efforts to prevent […]

[

Tags: defences · mental illness · Negligence

Judge puts solicitors’ negligence case on ice pending outcome of High Court challenge to advocates’ immunity

March 18th, 2016 · No Comments

In Cairncross v Anderson [2016] NSWSC 258, Justice Button was asked to summarily dismiss a negligence claim against a solicitor on the basis that it was doomed to fail by virtue of the solicitors having taken the defence of advocates’ immunity.  The negligence is said to have arisen in the course of the Great Southern proceedings in […]

[

Tags: Advocates' Immunity · Barristers' immunity · defences · Forensic immunity · Negligence

Advocates’ immunity summarily defeats claim alleging negligent advice to settle

June 13th, 2014 · 1 Comment

I once spent a long time writing an article called ‘Compromise of litigation and lawyers’ liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care’ which was published in the Torts Law Journal when it was edited by Professor Luntz ((2002) 10 TLJ 167), and I acted for […]

[

Tags: Advocates' Immunity · Barristers' immunity · defences · Forensic immunity · Negligence · Out of court settlements

Plaintiffs have no duty to mitigate their losses

July 7th, 2011 · No Comments

I bet the headline got your attention.  But it’s true: I’ve been looking up the law of mitigation these last few days.  And now the Queensland Court of Appeal’s Acting Justice of Appeal Margaret Wilson, with whom President Margaret McMurdo agreed, has concisely reiterated why in  Pialba Commercial Gardens Pty Ltd v Braxco Pty Ltd […]

[

Tags: Causation · defences · Negligence

A new advocates’ immunity case

November 20th, 2010 · 1 Comment

On the 6th of last month, Justice Hislop of the New South Wales Supreme Court found a professional negligence claim against a solicitor to be defeated by the defence of advocates’ immunity in Gattellaro v Spencer [2010] NSWSC 1122.  Nothing particularly exciting about the decision, but I did learn a new word: ‘cerebration’.  I looked […]

[

Tags: Advocates' Immunity · Barristers' immunity · defences · Forensic immunity · Negligence

Fraudster’s negligence claim against appeal counsel permanently stayed as collateral attack abuse of process

July 4th, 2010 · 1 Comment

Update, 16 August 2010: Justice Emerton’s decision dismissing the appeal is at [2010] VSC 351. Original post: In Walsh v Croucher [2010] VSC 296, a convicted fraudster who was, at least in about the year 2000, a bald-faced, opportunistic, calculating and manipulative liar (see R v Walsh [2002] VSCA 98 and R v Walsh [2000] […]

[

Tags: Abuse of process · Advocates' Immunity · Barristers' immunity · defences · Forensic immunity · Negligence

The construction of the full common law release

April 24th, 2009 · No Comments

Litigation was settled for several million dollars. The release said ‘5. The plaintiffs hereby release the defendants from all claims, actions, suits, demands arising from or in any way connected with the Proceedings, the allegations contained in the Statement of Claim and of the liquidation of the third plaintiff.’ That’s the kind of release you […]

[

Tags: defences · Negligence · Out of court settlements

Negligence claim against solicitor is a relevant factor in a limitation period extension application, part II

April 23rd, 2009 · No Comments

I posted about this issue, as it arose in a 2007 decision of Justice Forrest, here. Since May 2003, certain Victorian actions for personal injury must be brought within 3 years after the injury was discovered to be attributable to the defendant’s negligence, or 12 years after the allegedly negligence conduct, whichever comes first.  Previously […]

[

Tags: defences · doctors · Limitations of actions · Negligence

More on the solicitor’s ‘penumbral’ duty of care (or lack of it)

April 15th, 2009 · No Comments

Ever since Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1, the solicitor’s penumbral duty of care, orthodoxy since Hawkins v Clayton (1988) 164 CLR 539, has been looking shaky. The reference to the penumbral duty of care is a reference to the proposition that lawyers may owe duties in tort to take […]

[

Tags: defences · Negligence · Retainers