LLB197 Lecture Notes - Lecture 6: William Gummow, Arraignment, Indemnity
TOPIC 5 Cont: Standard of Care: Statute
Civil Liability Act 2002 (NSW) s 50
(1) A person practising a profession (“a professional”) does not incur a liability in negligence arising from
the provisional service if it established that the professional acted in a manner that (at the time the
service was provided) was widely accepted in Australia by peer professional opinion as competent
professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court
considers that the opinion is irrational.
(3) The fact that there is differing peer professional opinions widely accepted in Australia concerning a
matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of
this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
Cases seem to indicate that s 50 is a workable defence:
-“Section 50 has the effect that, if the defendant’s conduct accorded with professional practice regarded
as accepted by some (more fully, if he “acted in a manner that… was widely accepted… by peer
professional opinion as competent professional practice”), then subject to rationality that professional
practice sets the standard of care. In this sense, s 50 provides a defence.”
-“The standard of care will be that determined by the court with guidance from evidence of acceptable
professional practice unless it is established (in practice, byt the defendant) that the defendant acted
according to professional practice widely accepted by (rational) peer professional opinion.” [emphasis
added]
oDobler v Halverson [2007] NSWCA 335 at 59-60 [Doctor Case]
Advocates immunity from negligence (text pp.297-302)
A barrister cannot be sued by his or her client for negligence in the conduct of a case, in court or in
work out of court which leads to a decision affecting the conduct of a case in court.
- Giannarelli v Wraith (1988) 165 CLR 543
- Arthur JS Hall & Co (a firm) v Simons (2002) - HL
*revoked the doctrine in UK
- D’Orta- Ekanaike v Victoria Legal Aid (2005) 79 ALJR 755
Also applies to solicitor-advocates
Advocate’s Immunity
D’Orta- Ekanaike v Victoria Legal Aid (2005) 79 ALJR 755
- Post D’Orta cases – see text pp 300- 302.
- Immunity also applies to solicitor-advocates
- 25 August, 2015, NSW Court of Appeal handed down a decision in White v Forster [2015] NSWCA 245
which confirmed the immunity BUT made mention of special leave to appeal to High Court having been granted
in Jackson Lalic Lawyers Pty Ltd v Atwells [2014] NSWCA 433 - may see change in near future.
Duty of competence
o Continuing Professional Development (see text p. 302-303) (Uniform CPD Rules)
-Must complete 10 units each year
- At least 1 each of:
Ethics and Professional Responsibility; Practice Management and Business skills; Professional Skills;
Substantive Law (r 6 Uniform CPD Rules (Solicitors))
- A lawyer fit to remain on the roll “must make reasonable efforts to keep up with current
developments in his field of practice”
- LS NSW v Moulton [1981] 2 23 NSWLR 736 at 751
Insurance
• S. 211 Uniform Law - An Australian legal practitioner must not engage in legal practice…unless the
practitioner holds or is covered by an approved insurance policy for this jurisdiction.
• S. 45(1)(b) Uniform Law – practising certificate must not be granted or renewed unless relevant satisfied that,
if required, professional indemnity insurance is in place or will be by time of
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Cases seem to indicate that s 50 is a workable defence: In this sense, s 50 provides a defence. Giannarelli v wraith (1988) 165 clr 543. Arthur js hall & co (a firm) v simons (2002) - hl. D"orta- ekanaike v victoria legal aid (2005) 79 aljr 755. Post d"orta cases see text pp 300- 302. Duty of competence: continuing professional development (see text p. 302-303) (uniform cpd rules) Ethics and professional responsibility; practice management and business skills; professional skills; Substantive law (r 6 uniform cpd rules (solicitors)) A lawyer fit to remain on the roll must make reasonable efforts to keep up with current developments in his field of practice . Ls nsw v moulton [1981] 2 23 nswlr 736 at 751. Cgu insurance ltd v porthouse [2008] hca 30: must advise honestly about potential claims, barrister personally liable.
