Complex features exist when raising a professional negligence claim following advice or default from a lawyer or a doctor.

At Aylward Game Solicitors, we examine your claim and can assist you to see if your legal or financial representative have been negligent in providing you with the type of skill, standard, service and care as provided by the law.

We recognise that in most cases this type of failure leads to an enormous economic loss to which you may be entitled to a remedy and or compensation.

With a nominal fee of $440 (Inc. GST), we sit down with you and preliminary examine your case and should there be a reasonable cause of action, we can then properly advise you on the course of action to be taken and the costs associated with it, or alternatively, would tell you straight up, if you may not have a reasonable case at all.

CAUSAL CONNECTIONS AND NEGLIGENCE

We are going to examine here the merits of cases in which the causal connection was made out and eventually reasoned by the court to hand down the decision for the plaintiffs in this complex and controversial area of law.

IS CONTRIBUTORY NEGLIGENCE REALLY RELEVANT?

For a successful professional negligence claim to be made out, the judges over the years have attempted to eliminate those consequences of the defendant’s conduct upon which he or she should not be held liable. This is partly to avoid injustice to the defendant for what ordinarily falls outside the foreseeability of the defendant. It is the author’s view that doing otherwise and allowing all claims for professional negligence to advance would simply open the floodgate to bring in claims some that may not meet the minimum threshold of the professional negligence criteria.

Notwithstanding, it has always been the defense’s question as to whether the conduct of the plaintiff that led to his/her loss should be taken into account in establishing the negligence and the quantum of damages to be awarded.

The fact is that the courts in finding a judgment for the plaintiff and whether plaintiff’s conduct muddied with plaintiff’s contributory negligence would invoke reasonableness, meaning, it is not only the question whether the defendant’s conduct in extending his/her services with reasonable care to the plaintiff was reasonable but also if the plaintiff’s conduct in the circumstances was reasonable too.

There are various statutes throughout Australia to this point. Basically, the civil liability statutes have incorporated the requirement that the same standard of care is applied to plaintiffs as to defendants. One of these Statutes is s5R1 of Civil Liability Act 2002 (NSW). It reads as:

⮚ “the principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.”

In light of the above, it is now recognized by both the common law and the statutes that in deciding the quantum of damages in favor of plaintiffs the reasonableness of the plaintiff’s conduct is judged by reference to all the circumstances of the case. The condition laid down here is akin to the famous law maxim that, “he who seeks equity must come with clean hands.” The difference though is that in negligence cases the unreasonable conduct of the plaintiffs does not extinguish their claims in total in cases where the negligent action is established. It only affects the quantum of damages to be decided and awarded, and the plaintiff, if found contributorily responsible for the eventuated harm suffered by him or her, is precluded from making a full claim for damages against a defendant.

Overall, it is the author’s view that contributory negligence cannot be used as a sword to extinguish the plaintiff’s claim, and it may only affect the quantum of damages under certain circumstances.

TO WHAT EXTENT LAWYERS CAN BE HELD RESPONSIBLE FOR THEIR NEGLIGENCE ADVICE OR DEFAULT IN GIVING THE RIGHT ADVICE?

To answer this question, it is perhaps prudent to first examine what type of loss the plaintiff has suffered. For an easy understanding, let’s consider an economic loss first, and under what circumstances it can be said that the advice of a professional such as a lawyer has been negligent causing the plaintiff to suffer the loss. The case in point is Abu-Mahmoud v Consolidated Lawyers [2016] NSWCA 4 (4 February 2016). In that case, due to the negligent advice given by the plaintiff’s lawyer in relation to the restructuring scheme the plaintiff suffered a substantial loss. The primary judge found that the loss was caused by the plaintiff’s lawyer’s negligence which led to a number of foreseeable legal consequences which were and should have been within the plaintiff’s lawyer’s reasonable contemplation.

In another landmark case of Kenny Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25, the High Court held that:

⮚ “…where economic loss is said to have resulted from a transaction entered into in reliance upon negligent advice or information the approach of this court has not been confined to looking at the immediate situation brought about by the entry into the transaction. This is because, as was pointed out in Wardley Australia Ltd v Western Australia, “[w}ith economic loss, as with other forms of damage, there has to be some actual damage and not simply

“[p]rospective loss and where a transaction involves benefits and burdens, “no loss is suffered until it is reasonably ascertainable that, by bearing the burdens, the plaintiff is worse off than if he had not entered into the transaction.”

TO WHAT EXTENT DOCTORS CAN BE HELD RESPONSIBLE FOR THEIR NEGLIGENCE ADVICE OR DEFAULT IN GIVING THE RIGHT ADVICE?

When it comes to the cases of negligence on the part of a medical professional such as a doctor, the basic elements of duty of care and foreseeability of risk is unlikely to be different when considering whether the doctor has breached his/her duty causing the plaintiff to suffer loss.

An example of this is when the doctor has a duty to inform the patient of the foreseeable risk but fails to do so. Nevertheless, in considering the issues here one cannot discount the question of causation, and that question is not answered in a legal vacuum but in the legal framework in which it arises. The case in point is Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998). In that case, the plaintiff underwent surgery at the hands of the defendant without warning as to the possible consequences should her esophagus be perforated and infection set in. That is what happened and, in consequence, the plaintiff suffered damage to her laryngeal nerves, paralysis of her right vocal cord, and voice loss.

The defendant contended that there was no causal connection between his failure to give adequate warning of the risks involved in the surgery and the damage suffered by the plaintiff. The contention was made in a context in which it is clear that the surgery was performed with skill and care and the infection which set in and led to the injuries which the plaintiff sustained was a random event which might occur no matter when and by whom the surgery was performed. The court disagreed.

The fact that the defendant was under a duty to inform the plaintiff of the possible consequences in the event of the perforation of her esophagus and subsequent infection, including the possibility of damage to her voice, was not disputed. The duty was called into existence because of the foreseeability of that very risk. The court also rejected the defendant’s contention that the degree of risk- as distinct from the nature of the risk- was the same regardless of the experience of the surgeon concerned.

Nevertheless, in the author’s view, in considering the professional negligence claim and the causation question, the following can be of assistance:

⮚ Proof of a cause of action in negligence or contract requires the plaintiff to prove that the breach of duty by the defendant caused the particular damage that the plaintiff suffered;

⮚ In civil cases, causation theory operates on the hypothesis that the defendant has breached a duty owed to the plaintiff and that the plaintiff has suffered injury;

⮚ Causation theory insists that the plaintiff prove that the injury is relevantly connected to the breach of duty; and

⮚ The existence of the relevant causal connection is determined according to common sense ideas and not according to philosophical or scientific theories of causation.

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2016/4.html?context=1;query=Abu-Mahmoud%20v%20Consolidated%20Lawyers%20;mask_path=

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1998/55.html?context=1;query=chappel%20v%20hart;mask_path=