LLB197 Lecture Notes - Lecture 5: Ophthalmology, Pro Bono, Nanny
TOPIC 5 Cont: Competence: Standard of Care
Competence: standard of care
o Competence = “ability to use the law as a tool to help clients” (text p284). Not just knowing what the law
is. Need to be able to use it to solve problems.
o At common law the test has been whether the solicitor exercised a ‘reasonable and competent
degree of skill’
o It is an objective standard of care
o Cannot be excluded by clause in retainer
n Can be limited – but not reduced
Standard of Care: Common Law
o Hawkins v Clayton (1988) – High Court confirmed that the nature of the lawyer/client relationship
was such that breach could give rise to action in tort as well (ie damages for negligence) – duty of
care to take such action or give such advice as necessary ‘to avoid a real and foreseeable risk of
economic loss being sustained by the client’.
o Concurrent liability confirmed in Astley v Austrust (1999) 197 CLR 1.
Standard of care
The duty of care goes beyond the retainer…
“The relationship of solicitor and client … is a relationship of proximity of a kind which may well give rise to a
duty of care on the part of the solicitor which requires the taking of positive steps, beyond the
specifically agreed professional task or function, to avoid a real and foreseeable risk of economic loss being
sustained by the client.
Whether the solicitor-client relationship does give rise to a duty of care requiring the taking of such positive
steps will depend upon the nature of the particular professional task or function which is involved and the
circumstances of the case.”
-Hawkins v Clayton (1988) 164 CLR 539 at 579
Beyond the retainer…
Link to last week – duty to advise:
“It would be undesirable for the law to impose burdens on solicitors which go far beyond the duties of their
retainer and what might reasonably be expected within the scope of that retainer” - Kirby P
“…except in the rarest cases, if a solicitor can claim to have performed his retainer and executed his mandate, he
is immune from liability in tort. He holds himself out as skilled in performing his professional
duties, at being able to comply with his client's instructions. He does not hold himself out as having the
additional qualifications of a soothsayer and a nanny.” - Meagher JA
- Cousins v Cousins [1991] ANZ Conv R 245
Beyond the retainer…
Duty to warn
Curnuck v Nitschke [2001] NSWCA 176
- Tortious duties can continue where retainer ceased
- Positive duty to warn
- Relationship of PROXIMITY and REASONABLE FORESEEABILITY
Vulic v Bilinsky [1983] 2 NSWLR 472
- Duty in tort – advise of Statute of Limitations
- Roberts v Cashman [2000] NSWSC 770
- Duty to advise of alternative actions
- Does not have to ‘set off alarm bells’
–just ‘alert a reasonably competent practitioner’
Beyond the retainer…
Limits...
- Heydon v NRMA (2000) NSWCA 474
- Citicorp v O’Brien (1996) 40 NSWLR 398
- Kowalczuk v Accom Finance Pty Ltd (2008) 252 ALR 55
Required to explain the operation/effects of transactions
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Competence: standard of care: competence = ability to use the law as a tool to help clients (text p284). The duty of care goes beyond the retainer . Hawkins v clayton (1988) 164 clr 539 at 579. Link to last week duty to advise: It would be undesirable for the law to impose burdens on solicitors which go far beyond the duties of their retainer and what might reasonably be expected within the scope of that retainer - kirby p. Except in the rarest cases, if a solicitor can claim to have performed his retainer and executed his mandate, he is immune from liability in tort. He holds himself out as skilled in performing his professional duties, at being able to comply with his client"s instructions. He does not hold himself out as having the additional qualifications of a soothsayer and a nanny. - meagher ja. Cousins v cousins [1991] anz conv r 245.
