Date: Wed, 30 Jul 2008 14:16

From: Neil Foster

Subject: HCA on Professional Negligence Insurance

As I quickly read the HC judgement the barrister made 2 mistakes. When consulted in June 2001 he advised that the worker's injury (which was incurred in the unusual circumstances that he was undertaking community service as part of a sentence imposed for a crime) was not governed by the restrictions on common law damages imposed by the Workers Compensation Act 1987. Then it became known in the legal community that the Government was proposing to introduce amendments to the WCA which would govern any claim covered by that Act lodged on or after 27 Nov 2001; and apparently the barrister was asked on 26 November 2001 to draft a statement of claim. At that stage he was presumably acting on his erroneous earlier opinion that the WCA did not govern the claim at all. But after the statement of claim was filed it became clear that he was wrong, because an obscure statute (the Crimes (Administration of Sentences) Act 1999) meant that injuries incurred on community service were governed by the WCA.

Presumably the logic in the negligence claim was (1) if the correct opinion had been given in June 2001 it would have been known that the WCA governed the claim; (2) hence once it became known that on 27 Nov 2001 a harsher regime for damages was about to be introduced, a careful barrister (or at least the worker's solicitor, acting on the advice of that careful barrister) would have filed the claim by 26 Nov; (3) the court accepted that if the claim had been filed before 27 Nov the worker would have been entitled to recover, but not afterwards (the difference had to do with a higher threshold for bodily harm that had to be satisfied under the new regime).

I suppose now that I reflect on it a bit more that the barrister should have been aware there was at least a major question mark over whether he could be sued for the clearly wrong advice he had previously given - so one could argue that it was not unreasonable that the possibility of the action have been disclosed. But I don't know enough about insurance companies to speculate as to what the company would have done if the risk had been revealed. Such insurance is required by statute - what does the company do? Put up the premium for the individual barrister?

Regards
Neil F

Neil Foster
Senior Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> "Tettenborn, A" 07/30/08 6:23 PM >>>

As a matter of interest, what was the negligence claim against the barrister? How had he allegedly been at fault?

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