Professional Negligence
4. Conduct of the Defendant
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 24 Aug 2015
- As a professional you are expected to meet a certain standard of conduct when providing professional services to a client. First and foremost you must observe your duty of care as a professional.
- When deciding if a professional owes a duty of care to a plaintiff the court considers the elements listed under section 5B of the Civil Liability Act 2002 (NSW). This includes whether:
- the risk of harm was foreseeable;
- the risk was significant; and
- whether a reasonable person in the professionals' position would have acted the same way as the professional or whether they would have taken precautions against the risk.
- The court takes into account all relevant considerations including:
- the probability that the harm or loss would occur if care was not taken;
- the likely seriousness of the harm;
- the burden of taking precautions to avoid the risk of harm; and
- the social utility of the activity that created the risk of harm.
- As a professional you may have a range of defences available to you for breaching the expected standard of care.
- Under section 5O of the Civil Liability Act 2002 (NSW) a professional will not be held liable if it is established that they acted in a manner that was widely accepted by peer professional opinion as a competent professional practice in Australia at the time. For example an electrician fixing a light in a house is expected to use the standard of care of a reasonable electrician.
- Although peer professional opinion does not have to be unanimous to be considered widely accepted it cannot be relied on if the court considers that the peer professional opinion is irrational.
- Provisions regarding warnings about obvious risks of death or personal injury do not apply with respect to professional services. This means a defendant has a duty to explicitly (directly) warn a plaintiff of any risk of personal injury that may result from the provision of a particular service.
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