You should always be aware of the risks when a matter moves into unfamiliar territory beyond your expertise. This often happens where the matter starts within a practitioner’s normal area of practice but subsequently takes a turn into another area. Sometimes the practitioner thinks ‘it can’t be that different’ from the area familiar to them.
One claim arose where a man died as a result of injuries received in a brawl. The man’s family retained the practitioner, who was an experienced lawyer practising mainly in the criminal area, to act for them at the subsequent coronial inquest. The practitioner was also retained to act in a claim for compensation to the Victims of Crime Assistance Tribunal (VOCAT).
At the conclusion of the coronial inquest three years after the man’s death, the coroner found that a particular individual punched the deceased. This resulted in the man falling and hitting his head, which is what killed him. The coroner’s conclusion was somewhat speculative, as he noted many witnesses gave conflicting statements and it was difficult to reconcile their accounts.
The practitioner was then retained by members of the man’s family to act in potential nervous shock claims arising out of the man’s death. He agreed to act despite not having expertise in personal injury litigation. The practitioner was also alleged to have been retained to act for the man’s child in a potential dependency claim.
Although the practitioner briefed counsel and obtained advice at different times, the personal injury claims were not handled in an organised manner. Instructions and the retainers were not properly documented and it was impossible to tell from the file what specifically the practitioner was retained to do in the personal injury claims, for which members of the family, and when. There was a lack of file notes to support the practitioner’s recollection of what he said as well as no evidence the practitioner properly understood and documented the applicable time limits.
There were also various delays in obtaining advice from counsel, identifying the correct defendants, and issuing and serving proceedings. The proceedings were not drawn by counsel.
Subsequently, the proceedings were dismissed when they were held to be out of time under the Limitation of Actions Act 1958 (Vic). The claimants then sued the practitioner for the lost chance of obtaining damages.
These were very difficult claims that needed to be handled by a practitioner experienced in the personal injury area.
