Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

Justice Barrett concluded there was a ‘very significantly greater degree of culpability on the part of Lotteries and a very significantly stronger causative force in Lotteries’ conduct’. 224

Accordingly, Barrett J held that the New South Wales State Lottery was responsible for 90% of the loss and the newsagency 10%.

By way of further example, in claims involving both solicitors and barristers, the court will assess the degree of culpability of the solicitor and the barrister by reference to:

1. the degree of departure from their duties of care to the client; and 2. the relative importance of the acts of the solicitor and barrister in causing the economic loss suffered by the plaintiff. One of the key considerations when undertaking that assessment is the scope of the solicitor’s and barrister’s retainers. For example, in Pritchard (t/as Pritchard Law Group) v DJZ Constructions Pty Ltd, 225 the Court held that the barrister’s liability was less than the solicitor’s due to the barrister’s more limited and specific involvement. It is often the case that a barrister’s retainer will be narrower than a solicitor’s, relating to providing advice on a specific issue or preparing and attending a hearing or dispute resolution process. A solicitor will typically be engaged more generally in a matter. A more limited retainer can work in the barrister’s favour when the Court determines their respective culpability. The Court may also consider the degree of reliance by the solicitor on the barrister. It is not open for a solicitor to pass on a barrister’s advice passively to the client without considering it. For example, in Osei v PK Simpson & Co Pty Ltd and Carney, 226 which related to a barrister’s advice to settle a workers’ compensation claim, the barrister was found to have breached his duty of care to the plaintiff by providing wrong and incomplete advice. However, the solicitor was also found to have breached his duty to the plaintiff by failing to correct that advice. In relation to that part of the claim, the Court held that it would have been just to apportion liability between the solicitor and barrister equally. However, the Court ultimately apportioned 70% liability to the solicitor and 30% to the barrister based on the separate advice provided by the solicitor that the Court deemed negligent. Application to contractual breaches In Yates v Mobile Marine Repairs Pty Ltd , 227 a case referred to in both Reinhold decisions, it was determined that the proportionate liability regime may be applicable for a breach of a contractual obligation, but only if the contractual obligation involves a duty to ensure that the work is undertaken with due care, skill and diligence. The case involved faulty repair work on a luxury game fishing vessel called The Eagle . The owner of The Eagle sued Mobile Marine Repairs (the repairer) and MAN Automotive Imports Pty Ltd, the authorised agent for the German company that had manufactured the faulty engine installed by the repairer in The Eagle . The problems with the engine in The Eagle were so bad that the engine had to be removed and replaced. It was determined that the claim was an ‘ apportionable claim ’ under the New South Wales regime.

224 Ibid [74]. 225 [2012] NSWCA 413. 226 [2021] NSWDC 74. This principle remained unchanged in the appeal decision of Osei v PK Simpson & Co Pty Ltd (2022) 106 NSWLR 458. 227 [2007] NSWSC 1463.

40

www.carternewell.com