The penumbral duty of care — is a principled approach possible?

It is trite law that in Australia, a solicitor engaged by a client is

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under concurrent obligations in both contract and tort to exercise care, diligence and skill in performing the scope of the retainer. In Hawkins v Clayton, the High Court held that in certain circumstances, the tortious duty owed to a client might extend beyond the parameters of the retainer and require a solicitor to take positive steps to avoid a client sustaining any real and foreseeable economic loss. Such an obligation has been termed the solicitor’s ‘penumbral duty of care’. This article considers the circumstances in which a court will extend the tortious duty of care of a solicitor beyond the four corners of the solicitor-client retainer to impose upon the solicitor a duty to avoid any real and foreseeable financial loss, requiring in some circumstances that the solicitor provide financial advice, and whether a principled approach to this issue can be distilled from the cases. This

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article appears in the Tort Law Journal: Chan L, A Penumbral Duty of care – is a principled approach

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possible? (2013) 21 TLJ 106. Click here to read the article in full.