BURT and ANOR v WARE [1998] NSWCA 48

BURT and ANOR v WARE [1998] NSWCA 48

Where a solicitor has conveyed essential advice orally and taken care to ensure it is understood, the absence of written advice does not constitute negligence if there is no evidence the client failed to understand or that confusion was or should have been apparent to the solicitor.

Parties
Appellant: Burt; Respondent: Ware
Jurisdiction
Australia
Judgment Date
28 October 1998
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal upheld; cross-appeal dismissed; verdict for the defendants; respondent to pay costs.
Legal Topics
Negligence of Solicitors, Client Advice, Extinguishment of Workers Compensation Rights, Oral Vs Written Advice in Settlement
Tort Law Professional Negligence Negligence of Solicitors Client Advice Extinguishment of Workers Compensation Rights Oral Vs Written Advice in Settlement

Case Brief

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Parties

Burt

Appellant

Ware

Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the solicitors were negligent for failing to communicate in writing that settlement would extinguish the client's workers compensation rights
  2. 2 Whether oral advice is sufficient to discharge the solicitor's duty in these circumstances

Ratio Decidendi

Where a solicitor has conveyed essential advice orally and taken care to ensure it is understood, the absence of written advice does not constitute negligence if there is no evidence the client failed to understand or that confusion was or should have been apparent to the solicitor.

Court Disposition

Appeal upheld; cross-appeal dismissed; verdict for the defendants; respondent to pay costs.

Orders

  • Judgment and orders of 3 November 1997 set aside
  • Verdict for the defendants in the proceedings below