Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

The duty owed by a medical professional was described by the High Court in Rogers v Whitaker as follows:

‘The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case.’ 45

In a similar vein, the duty owed in the case of an architect was described by Windeyer J in Voli v Inglewood Shire Council as:

‘An architect undertaking any work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among architects practising their profession.’ 46

In Heydon v NRMA Ltd, the duty of solicitors and barristers was described as follows:

‘In each case the duty is to apply the relevant degree of skill and exercise reasonable care to carrying out the task. There is no implied undertaking that the advice is correct, but only that the requisite degree of professional skill and care has been exercised in the giving of the advice.’ 47 Similarly, in Pullen v Gutteridge Haskins and Davey Pty Ltd, 48 the Victorian Court of Appeal said in the case of an engineer’s engagement that the matter of reliance, which will often be important in determining the existence of relevant proximity, need not be pleaded or proved where there is a relationship between a professional and their client. The Court said that a duty of care is implicit in such a relationship, as is reliance (it was manifest beyond argument that a client would rely on a professional). These are but a few examples of the courts’ application of the principles of duty of care to professionals. A duty of this nature – that is, to exercise reasonable care and skill – will apply to any professional practising within their profession. The duty is, as noted above, concurrent and coextensive with an implied duty in contract. That said, the fact that the causes of action in tort and contract may be concurrent does not mean that their incidents are necessarily the same. Although the retainer contract will be an important indicator of the nature of the relationship that gives rise to the common law duty of care, it will not chart the parameters of that duty exclusively. 49 In appropriate circumstances, a tortious duty of care may require positive steps beyond the specifically agreed professional task or function if such steps are necessary to avoid a real and foreseeable risk of economic loss to the client. 50

45 (1992) 175 CLR 479, 483. 46 (1963) 110 CLR 74, 84. 47 (2000) 51 NSWLR 1, 53–54. 48 [1993] 1 VR 27, 39. 49 Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642, 652.

50 Hawkins v Clayton (1988) 164 CLR 539, 579 distinguished in Re Matcove Pty Ltd [2020] NSWSC 625; Cavenham Pty Ltd v Robert Bax & Associates [2011] QSC 348 [28] and on appeal Robert Bax & Associates v Cavenham Pty Ltd [2013] 1 Qd R 476, 490.

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