Johnson v Firth [2021] NSWCA 237 (01 October 2021) (Gleeson JA at [1]; Payne JA at [2]; Brereton JA at [3])


Catchwords:


OCCUPATIONS – Legal practitioners – Solicitors – Professional negligence – Advising client – Whether solicitor settled motor accident insurance claim prematurely and at an undervalue – Whether solicitor entitled to rely on Civil Liability Act 2002 (NSW), s 5O – Whether causation of loss established – Appeal dismissed

NEGLIGENCE – Breach – Standard of care – Professional negligence – Whether solicitor acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice – Expert opinion adduced not determinative merely because not challenged on ground of irrationality – Where solicitor gave clear and repeated advice discouraging premature settlement at undervalue despite client’s perilous financial position and desire for quick settlement – Where early settlement prudent given risk of future disclosure of information adverse to claim – Where accepted offer far from so unreasonable as to warrant warning against acceptance – No breach of duty of care

NEGLIGENCE – Causation – Factual causation – Whether client would have accepted offer even if given proper advice – Competing expert opinions – Where accepted offer was slightly above mid-range of potential outcomes – Where client in precarious financial position – Where clear willingness to settle – Where risk of future disclosure of information adverse to claim – Causation not established