Australia: Why did a negligence claim against solicitors fail?

Last Updated: 14 May 2019
Article by Melissa Fenton and Felicity Parkhill

In brief - Supreme Court highlights the necessity of identifying the risk of harm in negligence claims

In the decision of Liprini v McIntyre [2019] NSWSC 355, the Supreme Court highlighted that in a claim for negligence, the parties must identify a risk of harm that could arise due to the actions or inactions alleged.

Solicitors sued for damages by client who claimed negligence in handling of will dispute

The case arose from a bitter dispute between the claimant and his younger brother regarding the administration of their parents' wills. The plaintiff, Kevin Liprini, was excluded from both his father James and his mother Anne's wills. His brother, Dr Allan Liprini, was appointed executor and beneficiary of both estates. Following the death of James Liprini on 21 January 2005, Redmond Hale Simpson (RHS), on behalf of the plaintiff, commenced proceedings under the Family Provision Act 1982 (now repealed) claiming provision out of the estate. Those proceedings were not yet finalised when his mother died on 26 November 2006. A mediation regarding the estate of the father took place on 6 December 2007, where the plaintiff was represented by RHS. Here, the parties reached agreement that a substantial provision would be made to the plaintiff, a provision which was intended to include his mother's estate as well. Dr Liprini never made the payment, and the plaintiff was paid a lesser sum out of his brother's bankrupt estate.

Kevin brought a claim, which is the basis of this case, against his solicitors RHS. He alleged that they failed to provide him legal services in accordance with a reasonable standard of care, skill and diligence, by not commencing proceedings, inclusive of his mother's estate, prior to the mediation taking place. He alleged that the orders formulated at the mediation negligently created a risk of harm for the plaintiff, which caused him financial loss and damage.

No risk of harm identified, no breach of duty of care established

In accordance with part 1A of the Civil Liability Act 2002 concerning negligence, Simpson AJ identified the three principal questions before the court to be:

  1. Whether RHS were in breach of their duty of care
  2. If they were, whether that breach was the cause of any loss or damage to Kevin
  3. The quantification of any such loss

Her Honour noted that any claim in negligence (once a duty is established) starts with the proposition that there exists a risk of harm. This was the fundamental question to be addressed - what was the risk of harm? Neither party at any stage attempted to identify the risk of harm that could arise from the failure to commence proceedings prior to the mediation. She held that the plaintiff achieved the exact result he would have achieved had proceedings been formally commenced.

In any case, the plaintiff's claim was based on an unsustainable proposition. It was unlikely that Dr Liprini would have made the payment to his brother whether proceedings had been commenced or not, and as such there was no chance that the plaintiff would have recovered the entirety of the $770,000 he was claiming.

As such, her Honour held that the plaintiff's case failed at the first barrier - identification of the risk of harm. The plaintiff failed to establish any breach of duty by the failure to take the precaution of commencing proceedings in relation to his mother's estate. Further, none of the expert evidence established that the failure to commence proceedings before the mediation constituted a failure by RHS to exercise care and skill to the standard of a reasonably competent and skilled legal practitioner.

The statement of claim was dismissed and the judgment awarded to the defendants, with the plaintiff to pay the defendants' costs.

Lessons for lawyers from the Liprini v McIntyre decision

The decision reminds us of the standard and duty of care for legal practitioners. Her Honour reiterated this standard citing (at [64]) Rogers v Whitaker (1992) 175 CLR 479, "The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill." A solicitor is obliged to comply with a client's instructions unless there is a compelling reason (illegality or impracticality) for not doing so.

The fact that the plaintiff in the Liprini v McIntyre case did not achieve the desired result was not due to the negligence of RHS.

Melissa Fenton Felicity Parkhill
Insurance and reinsurance
Colin Biggers & Paisley

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