Smith & Anor v McCUSKER Qc

[2003] WASC 150

Supreme Court of Western Australia

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Application by defendant
4. › Leave to apply out of time
5. › Whether delay justified where statement of claim not in acceptable form
6. › O 16 r 1(1)
1. Practice and Procedure
2. › Summary judgment
3. › Application by defendant
4. › Whether cause of action has no reasonable prospect of success
5. › Break in chain of causation
6. › No evidence to support essential element
1. Tort
2. › Negligence
3. › Professional negligence
4. › Barrister's duty of care
5. › Causation
6. › Whether evidence established that plaintiff would have acted differently but for the negligent advice
7. › Loss of opportunity to pursue litigation

Quick Take

In a professional negligence claim against a barrister for failing to recommend amendment of pleadings, the plaintiff must adduce evidence establishing that the underlying claim would have succeeded — specifically, that the plaintiff would have acted differently had proper advice been given. Where all available evidence indicates the plaintiff would not have been dissuaded from their course of action, summary judgment will be granted for want of causation.