Tort; Negligence; duty of care; liability of professionals.
Facts: Mrs Brasier asked Clayton, her solicitor, to prepare a will for her. In the will, Brasier named Hawkins as executor and principal beneficiary of her estate. Brasier left the will with Clayton for safekeeping. Brasier died, but although Clayton knew of her death, he did not contact Hawkins until six years later. By that time, the house, which was the main asset in the estate, had fallen into disrepair and was worth much less than it had been. Hawkins sued Clayton in Negligence for damages.
Issue: Was Clayton liable in Negligence for his delay in contacting the plaintiff?
Decision: Clayton was liable in Negligence.
Reason: By a majority of three to two the court held that, as a professional provider of services, the solicitor owed his client Hawkins a duty to find him without delay and inform him that he was executor and principal beneficiary of the will. Clayton had failed in this duty and Hawkins was entitled to recover damages to compensate for his economic loss.
Note: In Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159 the High Court held a solicitor liable when that solicitor prepared a will negligently and as a result it was legally invalid. The plaintiff lost the benefit she would have obtained under the will. Although the plaintiff was not the solicitor's client, the court held that the solicitor owed the plaintiff a duty of care.