Professional Liability in Australia 2nd Edition

“[A] notable addition to Australian legal literature on a subject of contemporary importance. It is a book that should be in the library of every common lawyer.”
The Hon Michael H McHugh AC QC in the Foreword to the first edition.

Professional Liability in Australia, 2nd Edition provides readers with a comprehensive and definitive analysis of the law of professional liability in Australia. This work is also a practical guide to prosecuting or defending claims, including examples of statement of claims, defences, interrogatories and a helpful litigation checklist.

Following a chapter on general principles, each chapter explores a different profession, including doctors, solicitors, barristers, accountants and auditors, building professionals, valuers and financial services professionals. The text covers essential topics within each profession, such as: duties owed to clients and third parties; standard of care and skill required; principles of liability; liability for breach of duty; defences available; and damages.

Special features of the second edition include:
· a discussion of expert evidence in relation to professional liability;
· a significantly expanded consideration of the exposure of professionals to disciplinary sanctions;
· a review of the reforms enacted by the Financial Services Reform Act 2001 and their effect on the professional obligations of financial services professionals;
· a comprehensive review of the effect of the Civil Liability Acts in each State and Territory jurisdiction on claims against professionals and analysis of case law that has arisen in relation to the legislation;
· a proposal to introduce a “forensic judgment” rule to replace the common law immunity of advocates should that immunity be abolished; and
· a review of changes to federal legislation dealing with consumer protection, which introduce contributory fault and proportionate liability.

Recently cited in:

Einstein J at [92] in Macquarie Bank Ltd v Meinhardt (NSW) Pty Ltd [2010] NSWSC 1320

“These authorities and the relevant principles are considered by S Walmsley, A Abadee and B Zipser, Professional Liability in Australia (Thomson Lawbook Co, 2nd ed, 2007) at [6.510]. The authors correctly recognise that in particular cases there may be actual reliance by an owner of a property on the sub-contractor, or the assumption of responsibility by a sub-contractor, or other matters establishing the existence of a duty of care owed by a sub-contract to an owner in particular cases (such as McPhee), but that if the case does not fall into such a category an owner will not usually have a remedy in tort against the sub-contractor.” 

From: (2008) 82 ALJ 417
Reviewed by PWY

This is the second edition of a work which was first published in 2002, but does not appear to have been the subject of prior review in the Journal.

Professional liability is a subject which has considerably increased in importance over the past decade. There is no doubt that professional negligence is now a major part of the work of the common law courts. Indeed the growth has been so great that the legislature in most States and Territories has had to step in to stem the flow of cases lest we become a community without doctors and hospitals and with legal and accounting fees much higher than the community can afford to enable professionals to pay their insurance premiums.

The increase in available material between the first and second editions of this work is
demonstrated by the fact that the first edition contained 771 pages, the second contains 1,022 pages – an increase of one third.

The present work, written by a District Court judge and two barristers, all of whom are
particularly familiar with the subject as it is played out in the courts of New south Wales have
presented in this volume a thorough treatment of this type pf case.

After a general chapter, Chapter 1, the chapters are arranged by profession, in the order: doctors, solicitors, barristers, accountants and auditors, building professionals, valuers and financial services professionals. This may, however, give a misleading impression. Chapter 1 consists of 228 pages and is a very comprehensive treatment of the subject of professional liability. It also contains a discussion of modern problems such as the application of the statute law on proportionate liability.

It is rather difficult to review the work as it is replete with paragraphs delving into relatively
obscure corners of the subject such as whether children who have the capacity to consent to medical treatment also have the capacity to decide to refuse it. What can be said is that the book goes into each aspect of the subject in great detail and one would be unlucky not to find some guidance on any particular point somewhere within the book.

Lest it be thought that the book is a mere collection of paragraphs on ephemeral matters, it must be said that there is a fair amount of material including many examples of the sort of conduct which may well be held to constitute a breach of the duty of care owed to clients or patients by professionals of good standing.

This is a very useful book, almost an encyclopaedia on the subject, which would usefully find a place on the shelves of all common law litigators.

Product Reviews

• Review : (2008) 82 ALJ 417 at 419 [PDF 141010]
• Review: Aus Law Librarian Vol 17. No.4 2009 [PDF 80870]
• Review: Bar News Summer 07/08 [PDF 353060]
• Review: Ethos March 03 [PDF 135440]
• Review: http://lawyerslawyer.net [PDF 14920]