Simply Irresistible Pty Ltd v Couper & Ors

[2012] VSCA 128

Victorian Court of Appeal

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Interrogate

Catchwords

1. Legal Practitioners
2. › Solicitor
3. › Breach of retainer
4. › Negligence
5. › Failure to advise on exercise of option to purchase land
6. › Whether breach caused loss
7. › Whether client would have acted differently if properly advised
1. Damages
2. › Causation
3. › Solicitor's negligence
4. › Loss of opportunity
5. › Whether subjective intention of client established on balance of probabilities
6. › Whether trial judge erred in finding breach did not cause loss
1. Appeal
2. › Standard of appellate review
3. › Findings of fact based on credibility
4. › Whether findings glaringly improbable or contrary to compelling inferences
5. › Fox v Percy [2003] HCA 22

Quick Take

In solicitor's negligence cases alleging failure to advise, causation turns on the subjective state of mind of the client — whether they would have acted differently if properly advised — not on an objective test of what a prudent client would have done. A trial judge may rely on events occurring after the alleged breach as evidence of the client's state of mind prior to the breach, for the purpose of evaluating credibility. It remains an open question whether the reversed evidentiary onus applicable in medical negligence warning cases extends to solicitors' negligent advice.