Apportionment of liability in claims involving solicitors and barristers

Sep 2021 | Insurance

Where a professional negligence claim is made against a solicitor or barrister, it may be open for that party to attempt to attribute some or all of the alleged losses to a third party. If a solicitor and a barrister are both retained by a client, instances can arise where one of them may plead that the other caused the client’s alleged loss.

The extent to which a solicitor or barrister may be able to reduce their exposure by attributing liability to the other, will turn on the particular facts of each case. The case law, to which we refer below, does however illuminate important points of principle taken into account when considering how liability may be apportioned.

Proportionate liability regimes

The statutory proportionate liability regimes have been enacted at a Commonwealth level, and in each state and territory. The proportionate liability regimes allow the court to apportion liability to each wrongdoer according to the extent of their respective responsibility, provided the plaintiff’s claims are apportionable. If the court finds there are multiple wrongdoers, it becomes the plaintiff’s responsibility to recover the total loss from each respective wrongdoer (as opposed to being a defendant’s responsibility to seek contribution from other wrongdoers).¹

All state and territory-based schemes apart from South Australia define ‘apportionable claim’ as a claim for damages for economic loss or property damage arising from a breach or a failure to take reasonable care (or in Queensland, a breach of a duty of care) in contract or tort, or for damages under the misleading or deceptive conduct provisions of each state and territory’s consumer laws.

Claims against solicitors and barristers generally fall under one or more of the above headings, and therefore arguments of apportionment can arise.

The Australian Consumer Law (ACL) does not expressly provide for proportionate liability to apply in respect of claims for breaches of guarantees in consumer transactions, but s 275 of the ACL may allow the states’ proportionate liability regimes to be applied to such claims.

Concurrent wrongdoers

A concurrent wrongdoer is generally defined as a person who is one of two or more persons whose acts or omissions caused, independently of each other or jointly,² the loss or damage that is the subject of the claim.

It does not matter if the concurrent wrongdoer is insolvent, being wound up or has ceased to exist.³ It also does not matter if the concurrent wrongdoer’s act or omission is not the same as the act or omission of the defendant seeking the benefit of the proportionate liability provisions. A party can be a concurrent wrongdoer if their acts or omissions have caused the same loss, even if their liability to the plaintiff does not arise from a breach or a failure to take reasonable care.⁴

Queensland’s consumer carveout

There is a carveout in Queensland and the Australian Capital Territory legislation that provides that claims in which the plaintiff is a consumer are not apportionable. The consumer carveout does not apply in New South Wales and Victoria.

The definition of consumer in s 29 of the Civil Liability Act 2003 (Qld)⁵ is as follows:

‘an individual whose claim is based on rights relating to goods or services, or both, in circumstances where the particular goods or services:

are being acquired for personal, domestic or household use or consumption; or
relate to advice given by a professional to the individual for the individual’s use, other than for a business carried on by the individual whether solely or as a member of a business partnership.’

In claims involving solicitors and barristers, it is not uncommon for a plaintiff that is an individual (as opposed to a corporation) to be a consumer within the second limb of the definition above. In those instances, while the claim may not be apportionable, rights of contribution between a defendant solicitor and barrister may arise under s 6(c) of the Law Reform Act 1995 (Qld) should either of the wrongdoers discharge the whole of the plaintiff’s liability.

If contribution proceedings are commenced, the amount recoverable against each wrongdoer will be what the court finds just and equitable having regard to the extent of each party’s responsibility for the damage (which is a similar test to that applied under the proportionate liability regime, discussed below).

Determining liability between concurrent wrongdoers

The wording of each scheme’s proportionate liability provisions concerning the assessment of a concurrent wrongdoer’s proportional share of the loss is similar, with the wording varying between ‘just and equitable’,⁶ ‘just’,⁷ and ‘fair and equitable’⁸.

Generally speaking, in claims involving both solicitors and barristers, the court will assess the degree of culpability of the solicitor and the barrister, by reference to:

the degree of departure from their duties of care to the client; and
the relative importance of the acts of the solicitor and barrister in causing the economic loss suffered by the plaintiff.

One of the key considerations when undertaking that assessment is the scope of the solicitor’s and barrister’s retainers. For example, in Pritchard (t/as Pritchard Law Group) v DJZ Constructions Pty Ltd⁹ the court held that the barrister’s liability was less than the solicitor’s due to the barrister’s more limited and specific involvement.

It is often the case that a barrister’s retainer will be narrower than a solicitor’s, relating to providing advice on a specific issue or preparing and attending a hearing or dispute resolution process. A solicitor will typically be engaged more generally in a matter. A more limited retainer can work in the barrister’s favour when the court determines their respective culpability.

A court may also take into account the degree of reliance by the solicitor on the barrister. It is not open for a solicitor to passively pass on a barrister’s advice to the client without having considered it. For example, in Osei v PK Simpson & Co Pty Ltd and Carney¹⁰, which related to a barrister’s advice to settle a worker’s compensation claim, the barrister was found to have breached his duty of care to the plaintiff by providing wrong and incomplete advice. However, the solicitor was also found to have breached his duty to the plaintiff by failing to correct that advice. In relation to that part of the claim, the Court held that it would have been just to apportion liability between the solicitor and barrister equally. However, liability was ultimately apportioned 70% to the solicitor and 30% to the barrister on the basis of separate advice provided by the solicitor which was ultimately found to have been negligent.

Case examples

While the following two cases do not involve apportionment of liability within the statutory scheme, they provide some useful guidance regarding how liability may be apportioned in different circumstances.

In Macrae v Stevens,¹¹ the Court considered a solicitor’s and barrister’s liability for advice to a client about the expiration of a limitation period in a personal injuries matter. The barrister failed to advise that the limitation period was expiring in a month, and negligently advised that the proceedings could only be commenced in Queensland, when they could have been brought in New South Wales where the limitation period was 6 years, as opposed to 3 years. The Court held that:

Advocate’s immunity did not apply as the barrister’s advice was not advice that would lead to a decision affecting the conduct of the case in court;
It would have been inclined to assess liability at 50% each; and
However, in light of the barrister’s advice regarding the forum for the proceedings which the plaintiff continued to rely on after the expiration of the limitation period in Queensland, liability was apportioned 60% to the barrister and 40% to the solicitor.

In NRMA Ltd v Morgan,¹² the Court considered the culpability of solicitors and a barrister in relation to an alleged negligent failure to advise a client during a client conference and subsequently. The Court held that if the barrister did not provide fulsome advice in relation to a question asked by the client, the solicitors should have ensured the question was adequately addressed. The barrister sought to assert he had only periodical and specific involvement in comparison to the solicitors, pointing to matters such as the difference in their fees. The Court held that was 'not of much significance' and the solicitors’ and barrister’s culpability should be regarded as equal, for the ongoing failure to appropriately advise the client.

Liability to the plaintiff

In addition to having contributed to causing the alleged loss, a concurrent wrongdoer must also have a legal liability to the plaintiff for that loss. That was outlined by the New South Wales Court of Appeal in Trajkovski v Simpson¹³ as follows:

'It is inherent in the notion of “concurrent wrongdoer” that the plaintiff has, or had, a good — albeit not necessarily recoverable — cause of action sounding in damages against the alleged concurrent wrongdoer.'

In claims involving a solicitor and barrister, this is particularly relevant in circumstances where a barrister may be more readily able to rely on advocate’s immunity in complete defence to a claim. A solicitor, on the other hand, may be exposed to claims that are not caught by the immunity.

The case of Day v Rogers¹⁴ illustrates that while a solicitor’s and barrister’s conduct may be found to be equally causative of a plaintiff’s loss, a barrister may ultimately avoid a finding that they were a concurrent wrongdoer, on the basis of advocate’s immunity.

In that case, the plaintiff brought a claim against the solicitor and the barrister in relation to their representation of him in family court proceedings. At first instance,¹⁵responsibility was apportioned equally between the solicitor and the barrister for the plaintiff’s wasted costs of the underlying proceedings. That finding was made on the basis that both the solicitor and barrister had failed to appropriately advise the plaintiff of the evidence required to support his claim and advised him to commence proceedings based on a misconceived cause of action.

The barrister successfully appealed the first instance decision on the basis that advocate’s immunity provided an entire defence to the claim. The Court held that while the barrister’s impugned conduct may have been causative of the plaintiff’s loss, it fell within the scope of the immunity.

Conclusion

This issue is important to solicitors, barristers and their insurers in the defence of claims. When a solicitor and barrister have been retained on behalf of a client, there may be a basis to argue that liability should be apportioned between the two. The strength of that defence will turn on the facts of each case, but will depend on the relative acts of the solicitor and barrister in causing the economic loss suffered by the plaintiff.

When acting in defence of claims against solicitors and barristers, careful regard should be had to ascertaining whether a third party may have caused or contributed to a plaintiff’s losses. If a claim is apportionable, that third party’s conduct should be raised with the plaintiff’s solicitors and pleaded in any defence. If the claim is not apportionable, to protect a client’s position, it may be necessary to commence third party proceedings against a third party wrongdoer.

¹ As outlined in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 at [10].
² Queensland and South Australia omit the term ‘jointly’ in their definition of concurrent wrongdoer.
³ See Civil Liability Act 2002 (NSW) s 34(2) (‘CLA (NSW)’); Civil Law (Wrongs) Act 2002 (ACT) s 107D(1) (‘CLA (ACT)’); Proportionate Liability Act 2005 (NT) s 6(1)) (‘PLA (NT)’); Civil Liability Act 2002 (Tas) s 43A(2) (‘CLA (Tas)’); Wrongs Act 1958 (Vic) s 24AH(1) (‘WA (Vic)’); Civil Liability Act 2002 (WA) s 5AI (‘CLA (WA)’).
⁴ Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 at [18].
⁵ A similar definition is included in s 107C of the CLA (ACT).
⁶ CLA (Qld) s 31(1)(a).
⁷ CLA (Tas) s 43B(1)(a); CLA (WA) s 5AK(1)(a); CLA (NSW) s 35(1)(a); PLA (NT) s 13(1)(a); CLA (ACT) s 107F(1)(a); Australian Securities and Investments Commission Act 2001 s 12GR(1)(a); Corporations Act s 1041N(1)(a); Competition and Consumer Act 2010 s 87CD(1)(a).
⁸ Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 8(2).
⁹ [2012] NSWCA 413.
¹⁰ [2021] NSWDC 74.
¹¹ (1996) Aust Torts Report 81-405.
¹² (1999) 31 ACSR 435.
¹³ [2019] NSWCA 52.
¹⁴ [2011] NSWCA 124.
¹⁵ [2010] NSWCA 206.

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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.