[Home] [Help] [Databases] [WorldLII] [Feedback]
	Alternative Law Journal

Time to abolish lawyers’ immunity from suit

While surgeons may be liable for negligence in the operating theatre, lawyers remain immune from such actions in their theatre – the courtroom – but public policy considerations appear to render this distinction difficult to support.

Simone Brookes

Simone Brookes is a Monash University law student.

Why should a surgeon who loses a case because their lawyer has failed to read a brief not have as much right to be compensated as the lawyer when the surgeon leaves a swab inside him?[1]

It is a matter of some annoyance to members of the medical profession that lawyers (as represented by judges) uphold an immunity from suit for negligence, which affects their own profession. Meanwhile, medical practitioners remain liable for negligence and have no choice but to give lawyers the final say on matters of medical practice, as it is for the court to determine the standard of care required of a professional in each individual case.[2] This article examines the line of argument ‘if it’s good enough for one, it’s good enough for the other’ and shows how that proposition adds further fuel to the case for the abolition of the advocate’s immunity from suit.

Under the common law, Australian barristers and solicitors are immune from claims for negligence in the course of advocacy and in relation to pre-trial work intimately connected with the presentation of a case in court.[3] They are not subject to a duty of care in respect of any act or omission in the conduct of a client’s case in court, or in the making of preliminary decisions affecting the way in which the case will be conducted when it comes to a hearing.[4] This position is reinforced by statute.[5]

No member of the medical profession is immune from being sued for professional negligence. Medical practitioners may be found negligent if a plaintiff can successfully prove on the balance of probabilities that they were owed a duty of care, that the required standard of care was not met, and that the breach of the duty of care caused loss or damage to them which was reasonably foreseeable.[6] Medical practitioners may be sued for failing to meet reasonable standards of work, for example, in relation to the examination, diagnosis, and treatment of a patient.[7]

Apart from this special area of immunity, lawyers are liable for professional negligence in the same way as members of the medical profession. One may ask why, if ‘high risk’ legal advocates are immune from negligence, the same does not apply to ‘high risk’ medical practitioners, such as surgeons.

Duties of the advocate

The primary basis for justifying an immunity from negligence within the legal profession is to maintain the advocates’ duty to the court over and above their duty to the client. Duties relating to the court include efforts by an advocate not to prolong cases, to prune irrelevancies, not to mislead the court and to cite relevant precedents even if they are against their clients’ interests.[8] Justice in the interests of the general public is considered to be of greater importance than justice to the individual, so that duty to the court takes precedence. A lawyer must attempt to advance the interests of their client within the wider sphere of their loyalty to the legal system.[9]

Further, rules of the bar associations make clear the advocate’s duty to endeavour to control client conduct. The rules require the advocate, in effect, to pressure the client not to mislead the court. This is over and above the lawyer personally misleading the court.

There is a concern that the advocate’s overriding duty to the court will be compromised if the immunity from negligence actions is removed. Lawyers could become so concerned for the rights of their clients, or afraid of being sued by them, that they might fail to observe their duty to the court. Exposure to liability could increase the incidence of lawyers adopting ‘client-advocate’ roles.[10] Lawyers might be tempted to pursue the goals of a client by whatever legal means available, thereby overriding their duty to the court. For example, they could prolong litigation through such means as creating delay and expense in order to hinder the enforcement of legal claims against their client.

In high pressure situations, the independent judgment of a lawyer could be compromised. This could lead to the adoption of over-cautious tactics such as the excessive calling of witnesses and the protraction of cross-examinations. The backlog of litigation would continue to rise.

Are these concerns justified? Those who argue for the removal of the lawyer’s immunity from suit for negligence suggest that the advocate’s duty need not be compromised by the threat of negligence proceedings. In the event of such actions, judges would appropriately direct juries whether an advocate had failed to use the standard of care which a reasonably competent practitioner should be expected to use, or had merely made a non-negligent error of judgment. Advocates could be exempted from liability for making errors in high pressure situations, as judges would take into account the conditions under which they were working.[11] Inefficient practices could be controlled by judges who had the authority to limit the asking of unnecessary questions and the calling of unnecessary witnesses.[12] Further, if the advocate erred on the side of observing their ethical duty to the court and lost their case as a result, the judge in a subsequent damages action alleging a lawyer’s negligence could take a ‘protective’ approach which would recognise the difficulties created by conflicts of interest and, notionally, at least, would set the standard of care at a lower level.

Duties of the medical practitioner

The current lack of immunity within the medical profession suggests that a greater emphasis is placed on the health of individual patients, than on the wellbeing of society.[13] However, there are some exceptions to this proposition. For example, it has been held that the importance of confidential communications between a patient and health care provider may be outweighed by the public interest in the protection of third parties from serious harm.[14] Further, the illegality of mercy killing in all Australian jurisdictions tends to indicate that medical practitioners owe the community a duty to abide by the law, even if that means they are unable to pursue the interests of an individual patient.

In the context of medical litigation, the distinction between negligence and a mere error of judgment is well established.[15] An error of clinical judgment may not be negligent where reasonable professional skill and care was exercised in forming the clinical judgment.[16]

If an immunity is justified for advocates, considerations suggest it should be equally applicable to surgeons. Surgeons remain liable for negligence, even though the extra pressures under which they work could potentially have more disastrous ‘life or death’ consequences than could arise for advocates under similar high pressure conditions. Further, they could be deterred from using their best judgment to take a risk to save life or limb as a result of a fear that if they were to make a mistake, it would result in an action by a patient or the patient’s family.

It is clear that a lack of immunity within the legal and medical systems would be equally likely to result in overcautious practices. The fact that surgeons in the theatre remain liable for professional negligence whilst lawyers in court do not, may indicate that there is a greater public interest in the efficient administration of justice than in health care.[17]

In particular, ‘defensive medicine’ is a tactic that has been adopted by medical practitioners in order to avoid liability in negligence. It may involve undertaking additional procedures such as taking more time to explain risks, arranging for more frequent consultations and organising unnecessary diagnostic tests. This approach aims to make a patient aware of all the risks of treatment, as there is no cause of action in negligence if a patient accepts treatment knowing what might occur. However, there is a danger that excessive and unnecessary medical procedures will lead to the wasting of resources.

It may be argued that an immunity could be justified with respect to medical practices aimed at improving the overall health of the general community. Such a proposal has been suggested in relation to pathology screening services.[18] Proposals in favour of a statutory immunity for screening services suggest that liability for negligence within the medical profession should not exist in certain instances where:

Conversely, it may be argued that if quality assurance programs and benchmark standards could be properly managed, there would be no need for a statutory immunity for screening services. Negligent conduct should not necessarily be excused simply because a procedure has a recognised error rate.[20] Such views emphasise that the right of an individual to sue for negligence is central to our legal system.

The public interest in finalising litigation

There is a concern that public confidence in the judicial system would falter if the legal immunity were abolished.[21] The strong public interest in finalising litigation must be balanced against the notion that a person who has been wronged as a result of a negligent action should be able to seek redress.

Lawyers fear that a flood of litigation would result. However, in reality, it is unlikely that most people would have the will, finance, or time, to go through the court process a second time. Only those involved in cases where a seriously unjust result was obtained would be keen to maintain an action in negligence, as worthless and insubstantial claims usually fail.

The public confidence concern is equally, if not more, applicable to the medical profession. First, the health of individuals might be jeopardised if they were to be deterred from seeking medical help as a result of negative publicity within the medical profession. However, it may be argued that this consideration is not relevant to those cases where medical care is not optional. Second, there is a real risk that if surgeons were found liable for negligent operations, it might deter other practitioners from undertaking such procedures. Medical fields where high levels of legal action were reported might result in practitioners avoiding high risk areas of medicine.

The fear that medical practitioners have of litigation is compounded by the knowledge that there is an adverse effect on the practices of doctors who are sued. Even if a plaintiff is unsuccessful, the mere fact that a doctor has been involved in court may have psychological, social and economic impacts on their life.

‘Cab-rank’ principle

The ‘cab-rank’ principle requires advocates to accept a client who desires their services within their field of practice and can pay their fee. Today the application of this principle is limited. In practice, it will only apply in order to prevent a barrister from refusing a solicitor’s instructions in a field of law within which he practises because ‘he does not like the solicitor or the solicitor’s client, or the nature of a lawful claim or ground of defence of which that client wishes to avail himself’.[22] Therefore, advocates have a fair degree of freedom to select their clients.

In most medical negligence cases, a duty of care is owed by the person treating the patient and by the incorporated health facility where treatment is given. The need for an immunity from negligence within the medical system may be strengthened where a medical practitioner has no choice but to provide medical assistance. They may come under a duty to treat a person who is not already their patient and is in need of emergency care.[23] If the practitioner does not have reasonable cause for refusing treatment, a cause of action will arise if it was within their capacity to provide such treatment and the requisite proximity criteria are satisfied.[24] Further, there is some statutory support which suggests that a medical practitioner will be liable for ‘unsatisfactory professional conduct’ if they refuse or fail to attend to a person for the purpose of rendering medical assistance where they have reason to believe that that person is in need of urgent attention.[25]

Conclusion

It is not fair that an injured member of the public should be denied compensation from their lawyer when they can recover compensation from their doctor. While lawyers and doctors are not in direct competition with each other, professional people are paid on the basis that they will provide a quality service, and if they are negligent in providing that service they should be liable to pay compensation.

The legal immunity granted to advocates should be abolished. Present public policy considerations are not of sufficient weight to justify a legal immunity from suit for professional negligence. If the immunity were abolished, various procedures could be implemented to maintain a just and efficient legal system. Judges would need to ensure that advocates respected their duty to the court and, where that duty conflicted with duty to the client, that the former duty took precedence, thereby protecting the advocate from suit in appropriate cases. Additionally, it would be necessary for judges to take a more active role in advising juries whether a defendant had been negligent or had merely made a non-negligent error. This distinction has been established in the medical system and obviates the need for a legal immunity to be extended to medical practitioners.

References

[1] Masel, Geoffrey, Professional Negligence of Lawyers, Accountants, Bankers and Brokers, CCH Australia Ltd, 1989, 2nd edn, p.192.
[2] Rogers v Whitaker (1992) 175 CLR 479.
[3] Giannarelli v Wraith (1988) 165 CLR 543.
[4] Giannarelli v Wraith above, at 579.
[5] See s.442(1) of the Legal Practice Act 1996 (Vic).
[6] Victoria, Parliament, Law Reform Committee, The Legal Liability of Health Service Providers: Final Report, Melbourne, 1997, p.10.
[7] Australian Professional Liability — Medical, CCH Australia Ltd, p.26,753.
[8] Luntz, Harold and Hambly, David, Cases and Commentary, Butterworths, 1995, 4th edn, p.178.
[9] Ramsay, Ian, ‘Ethical Perspectives on the Practice of Business Law’, Law Society Journal, p.60.
[10] Ramsay, Ian, above, p.61.
[11] Victoria, Law Reform Commission, ‘Accountability Through Legal Action: Liability for ‘In-court’ Action’ in Accountability, Discussion Paper 24, July 1991, p.19.
[12] Victoria, Law Reform Commission, above, pp.18-20.
[13] Victoria, Parliament, above, ref. 6, p.30.
[14] Tarasoff v Regents of the University of California (1976) 551 P2d 334. In that case it was held that the therapist had a positive duty to exercise reasonable care to protect the foreseeable victim.
[15] Heerey, P.C., ‘Looking Over the Advocate’s Shoulder: An Australian View of Rondel v Worsley’ (1968) 42 ALJ 3 at 7.
[16] Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 (HL), Darley v Shale (1993) 4 Med LR 161.
[17] Victoria, Law Reform Commission, above, ref. 11, p.20.
[18] Victoria, Parliament, above, ref. 6, pp.30-2.
[19] Victoria, Parliament, above, ref. 6, pp.30-2.
[20] Victoria, Parliament, above, ref. 6, pp.30-2.
[21] This discussion draws on the considerations expressed in Giannarelli v Wraith (1988) 165 CLR 543.
[22] Ross, S. and MacFarlane, P., Lawyers Responsibility and Accountability: Cases, Problems and Commentary, Butterworths, 1997, p.330.
[23] Woods v Lowns (1995) 36 NSWLR 344.
[24] Woods v Lowns above.
[25] Section 37, Medical Practice Act 1992 (NSW).