The central element of the test for professional negligence is that a person is not liable if they acted in a manner that was widely accepted. However, widely accepted practice is limited to "competent professional practice". It is not a defence to say that inadequate behaviour was widely accepted. And the Court can impose its own view if it considers widely accepted, competent, peer professional opinion to be "irrational".

Quite what irrational will mean as a legal concept remains to be seen in the Courts, but ultimately this ensures that professions are subject to the scrutiny of the Court and cannot simply set their own standards.

Changes in personal injury law do not change a professional's duty to warn of risk. People cannot take too much comfort in the possibility of defending a claim by suggesting that a risk was obvious. It is much safer to provide comprehensive advice in the first place, and to be able to demonstrate that the advice was actually given. Hence it is usually suggested to give written advice.

An apology no longer constitutes an express or implied admission of fault. In the past, many professionals have hesitated to apologise for fear that the apology might be interpreted by a Court as an admission of liability.

If national professional standards are introduced, compulsory professional indemnity insurance will be linked with high level caps on the extent of professional liability and professionals will be required to hold professional indemnity insurance at a level to cover consumer claims.

Reproduced from In Touch With The Law, published by the Law Society of NSW