Professional Liability Guide
CHAPTER 3 – DEFENCES
However, by way of contrast, decisions of the Financial Industry Complaints Service are not subject to the proportionate liability regime. This was held in Wealthcare Financial Planning Pty Ltd v Financial Industry Complaints Service Limited 238 because panel members reach their decisions based on what is fair in all the circumstances, having regard to the legal authority. A consideration of what is ‘fair’ is a different test from a consideration of what is ‘just and equitable’, as is enshrined in the various State and Federal proportionate liability schemes. Peer professional opinion As discussed in chapter 1, civil liability legislation in most States and Territories governs the standard of care owed by professionals (with some variation in the wording). A professional does not breach a duty arising from the provision of a professional service if the professional acted at the time of providing the service in a way that was widely accepted by a significant number of respected practitioners in the field as competent professional practice. 239 This is known as ‘peer professional opinion’. While commonly characterised as a defence, the New South Wales Court of Appeal recently confirmed in Sparks v Hobson; Gray v Hobson 240 that section 5O of the Civil Liability Act 2002 (NSW) is not a ‘defence’ as such. This is because if the defendant successfully raised it, it would render proving the elements of section 5B obsolete. However, the Court acknowledged that, in practice, it is necessary to raise it during a trial with all the other evidence to be weighed by the trial judge. The fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent one or more (or all) of the opinions being relied on for the purposes of the defence. Also, the respective provisions expressly state that peer professional opinion does not have to be universally accepted to be considered widely accepted. However, the provisions also provide that peer professional opinion cannot be relied on if the Court considers the opinion irrational or contrary to a written law. Also, it does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information (in relation to the risk of harm to a person) that is associated with the provision of a professional service by a professional.
In Grinham v Tabro Meats Pty Ltd , Forrest J described the requirements of peer professional opinion under the Victorian legislation, as follows:
‘Peer professional opinion is directed to acceptance or otherwise of the manner in which the professional acted in the circumstances confronting the defendant. It is to this issue that the opinions of the other professionals in the field are directed. It may be that in some cases an opinion is based upon hypothetical analysis rather than one actually encountered in practice. Whilst this factor may go to the quality of the opinion expressed, what matters is the opinion of the other professionals as to the way in which the defendant carried out or failed to carry out the professional tasks impugned in the proceeding.’ 241
238 (2009) 69 ASCR 418. 239 CLA (Qld) s 22; CLA (NSW) s 5O(1); Wrongs Act (Vic) ss 57–60; CLA (Tas) ss 21–22; CLA (SA) ss 40–41; CLA (WA) ss 5PA–5PB.
240 (2018) 361 ALR 115. 241 [2012] VSC 491 [181].
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