Pool (a pseudonym) v Trustees of the Marist Brothers Property Group & Anor (No 3) [2021] ACTSC 89 (available on JADE) involved an unsucessful claim by the plaintiff against his former solicitor asserting negligence arising from settlements of the plaintiff’s claim for historical child sex abuse.
In 2010 the plaintiff settled his claim against the first defendant for the sum of $80,000 inclusive of costs. The net benefit to the plaintiff was approximately $42,000. The plaintiff says that the second defendant “improperly pressured” him to reach the settlement and noted that he had previously been advised that his claim was worth about $250,000 plus costs. The improper pressure was said to arise from the contents of an expert report by a Dr Brown, a consultant psychiatrist who had prepared a report on behalf of the defendants. The report, in its history, recorded earlier abuse of the plaintiff by a member of his family. The plaintiff asserts that the second defendant said the report was so harmful to the plaintiff’s case that he ought to settle for the $80,000.
Further compensation was recovered in 2017 when the claim was reopened following amendments to the relevant limitation legislation.
The plaintiff’s claim against his former solicitor in relation to the first settlement failed on limitation expiry grounds, the Court having held that the action against the solicitor was not covered by the child sexual abuse limitation amendments. At [44]:
However no matter how beneficially I interpret s 21C I cannot import into it a meaning which its plain words do not allow. This section was introduced to allow persons who had been abused as children to sue their abusers, or their abusers’ employers, for damages notwithstanding the passage of time. The section is addressed at providing a means of redress to victims of abuse. The beneficial interpretation might cater for, perhaps, definitions of sexual abuse or relationships of abusers to their employers. But it does not, in my view, extend to a professional negligence action, notwithstanding that the original proceedings substantially arose from sexual abuse to the plaintiff as a child.
The primary judge went on to address (obiter) the position had the limitation period not expired and said at [57] that the Court would easily have easily found that the second defendant breached, in tort and contract, his retainer with the plaintiff, for reasons summarised at [56] (in respect of the first settlement).
However no breach of retainer was established concerning the second defendant’s actions on behalf of the plaintiff in 2017 (see [82]).