GPs can be sued but what about lawyers?
Published on June 1, 2021 by Bill Madden
This article was first published by Australian Doctor. Read the original here.
It is easy enough to misunderstand some parts of the law — even for lawyers.
For doctors, the misunderstandings sometimes appear to be tied in with a sense of legal vulnerability or even of unfairness.
Examples of vulnerability might include concerns about the legal implications of apologies, or the sense of exposure when providing ‘good Samaritan’ emergency care.
In both examples, civil liability law reforms have sought to reassure doctors.
As for unfairness, still mentioned on occasion is the perception that lawyers have various immunities: in other words, special legal protections from negligence claims and the compensation process that are not equally available to doctors and the rest of society.
Is that perception accurate?
Australian law had for many years recognised the concept of advocates’ immunity.
But about five years ago, the scope of that immunity was recognised as being quite narrow. It was the result of a 2016 High Court decision titled Attwells vs Jackson Lalic Lawyers Pty Limited.1
The court was looking at a claim by Attwells against a firm of lawyers. Attwells alleged that they had settled on unfavourable grounds litigation to enforce a guarantee and that this was the result of the negligent advice of their lawyers.
The High Court’s ruling did not entirely do away with the concept of an advocate’s immunity from a civil claim for compensation.
All members of the High Court agreed that there was merit in upholding advocates’ immunity.
Note, this was not in order to benefit the advocate but for the protection of the public interest in the finality and certainty of judicial decisions, by preventing ‘collateral’ attacks (not appeals) which might seek to argue that the judicial decision was wrong.
Officers of the court — judges and advocates — therefore do operate under an immunity from civil actions.
However, it is important to stress that for lawyers, this immunity is only when there is a fundamental connection between their work and the judge’s subsequent determination of the case.
In the Attwells case, the litigation the company was pursuing was not finalised by way of a court decision, it was settled before it reached that point. That is a fundamental distinction.
Work by lawyers (and it is probably fair to say the great majority of their work) such as advice to settle a case or concerning transactions is not the subject of an immunity from a civil action seeking compensation.
So a lawyer, like a doctor, can be successfully sued if this advice is not provided with reasonable care.
Immunity is not carte blanche
In these cases, lawyers work under the same regime as doctors.
That regime includes having a ‘defence’ to a claim if there is persuasive evidence that the lawyer acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
It must be stressed that this is the NSW wording for the peer-opinion defence; there are some variations across the Australian states and territories.
But the other point to be made here is that for lawyers — just as it is for doctors — there is no immunity from disciplinary actions alleging professional misconduct. They can be ‘struck off’ or more accurately, disbarred.
To reiterate, the immunity for lawyers is quite narrow — it is immunity from civil prosecution where there is a fundamental connection between their work and the judge’s determination of a case.
And this legal immunity appears to apply to a doctor who gives incorrect ‘medical opinion’ evidence during a court hearing, which contributes to a judge’s determination of the case.
It is therefore not easy to discern any remaining unfairness for doctors, compared to lawyers, in respect of immunities.