The present appeal preferred under Section 38 of the
Advocates Act, 1961 (for brevity, 'the Act') assails the
correctness of the order dated 15.10.2006 passed by the
Disciplinary Committee of the Bar Council of India in BCI
TR Case No.138 of 2005 whereby the said authority has
found the appellant guilty of gross negligence in discharge of
his professional service to the client and accordingly
imposed the punishment of reprimand with a further
stipulation that he shall pay a sum of Rs.5,000/- to the Bar
Council of India and an equivalent amount to the
complainant within two weeks' time from the date of receipt
of the order failing which he would stand suspended from
practising for a period of six months.
2. As the factual score would unroll, the
respondent-complainant engaged the appellant as advocate
in respect of a matrimonial dispute and during the
pendency of the matrimonial case, the wife of the
respondent breathed her last due to kidney failure in the
year 2002. The appellant advised the
complainant-respondent that as the wife had expired, there
was no justification to prosecute any further the case for
divorce and it was advisable to withdraw the said litigation.
In the meantime, the respondent engaged him to file a
complaint under Section 138 of the Negotiable Instruments
Act, 1881 (for short, 'the N.I. Act') as a cheque issued by one
Ramachandran in favour of the respondent for a sum of
Rs.75,000/- (Rupees seventy five thousand only) had been
dishonoured. It is not in dispute that the appellant thought
it appropriate not to file a complaint under the N.I. Act but
he felt it apposite to file a complaint case before the
competent Magistrate under Section 420 of the Indian Penal
Code and accordingly he did so. As is demonstrable, the
learned Magistrate directed investigation to be conducted
under Section 156(3) of the Code of Criminal Procedure.
The eventual result of the said investigation has not been
brought on record.
It is urged by Mr. Parikh that when no finding is
returned that the cheque was kept back by the appellant,
there is no gross negligence. On the contrary, as he would
submit, it was handed over to the investigating agency
which was directed by learned Magistrate to carry out the
investigation under Section 156(3) CrPC. His only fault is
that he could not get the acknowledgment.
The Constitution Bench, in the matter of Mr. 'P' an
Advocate, (supra) has ruled that mere negligence or error of
judgment on the part of an advocate would not amount to
professional misconduct. It has been further held therein
that error of judgment cannot be completely eliminated in
all human affairs and mere negligence may not necessarily
show that the advocate who is guilty of it can be charged
with misconduct. The Constitution Bench, as is
demonstrable, has drawn a distinction between 'negligence'
and the 'gross negligence'. We think it appropriate to
reproduce the said passage. It is as follows:-
“But different considerations arise where the
negligence of the Advocate is gross. It may be that
before condemning an Advocate for misconduct,
courts are inclined to examine the question as to
whether such gross negligence involves moral
turpitude or delinquency. In dealing with this
aspect of the matter, however, it is of utmost
importance to remember that the expression
"moral turpitude or delinquency" is not to receive
a narrow construction. Wherever conduct proved
against an Advocate is contrary to honesty, or
opposed to good morals, or is unethical, it may be
safely held that it involves moral turpitude. A
willful and callous disregard for the interests of
the client may, in a proper case, be characterised
as conduct unbefitting an Advocate. In dealing
with matters of professional propriety, we cannot
ignore the fact that the profession of law is an
honourable profession and it occupies a place of
pride in the liberal professions of the country.
Any conduct which makes a person unworthy to
belong to the noble fraternity of lawyers or makes
an Advocate unfit to be entrusted with the
responsible task of looking after the interests of
the litigant, must be regarded as conduct
involving moral turpitude. The
Advocates-on-record like the other members of
the Bar Advocates are Officers of the Court and
the purity of the administration of justice
depends as much on the integrity of the Judges
as on the honesty of the Bar. That is why in
dealing with the question as to whether an
Advocate has rendered himself unfit to belong to
the brotherhood at the Bar, the expression "moral
turpitude or delinquency" is not to be construed
in an unduly narrow and restricted sense.”10
[Emphasis Supplied]
16. Ms. K. Sarda Devi, learned counsel for the respondent,
per contra, would urge that the case of the respondent is
squarely covered by the dictum of the Constitution Bench
inasmuch as the Disciplinary Committee of the Bar Council
of India has held that there was gross-negligence on the
part of the appellant.
17. On a studied scrutiny of the evidence in this context,
the factual score, the act of the present appellant cannot be
treated to be in the realm of gross negligence. It would be
only one of negligence. The tenor of the impugned order, as
we notice, puts the blame on the appellant on the
foundation that he had not received the acknowledgment.
He has offered an explanation that he had given the cheque
to the police. There has been no delineation in that regard.
That apart, there is no clear cut analysis on deliberation on
gross negligence by the advocate. The Disciplinary
Committee found the appellant guilty of gross-negligence as
he had failed to get the acknowledgment from the
complainant-respondent. The examples given by the
Constitution Bench are of different nature. In the obtaining
factual matrix, therefore, we are unable to accept the
conclusion arrived at by the Disciplinary Authority of the
Bar Council of India that the negligence is gross. Hence we
are impelled not to accept the submission advanced by
learned counsel for the respondent.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3860 OF 2007
T.A. KATHIRU KUNJU
V
JACOB MATHAI & ANR
Dated:February 16, 2017.
Citation: AIR 2017 SC 1041,(2017)5 SCC 755
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Regarding the duty of an architect Windeyer J said in Voli v Inglewood Shire Council
(1963) 110 CLR 74 at 84:
An architect undertaking any work in the way of his profession accepts the
ordinary liabilities of any man who follows a skilled calling. He is bound to
exercise due care, skill and diligence. He is not required to have an
extraordinary degree of skill or the highest professional attainments. But he
must bring to the task he undertakes the competence and skill that is usual
among architects practising their profession. And he must use due care. If he
fails in these matters and the person who employed him thereby suffers
damage, he is liable to that person. This liability can be said to arise either
from a breach of his contract or in tort.22
[52] I have considered sections 9, 10, 11 and 12 of the Civil Liability Act 2003. These
sections provide:-
9 General principles
(1) A person does not breach a duty to take precautions against a risk of
harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the
person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of
the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken
precautions against a risk of harm, the court is to consider the
following (among other relevant things)—
(a) the probability that the harm would occur if care were not
taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
10 Other principles
In a proceeding relating to liability for breach of duty happening on or
after 2 December 2002—
(a) the burden of taking precautions to avoid a risk of harm
includes the burden of taking precautions to avoid similar
risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing
something in a different way does not of itself give rise to or
affect liability for the way in which the thing was done; and
(c) the subsequent taking of action that would (had the action
been taken earlier) have avoided a risk of harm does not of
itself give rise to or affect liability in relation to the risk and
does not of itself constitute an admission of liability in
connection with the risk.
11 General principles
(1) A decision that a breach of duty caused particular harm comprises the
following elements—23
(a) the breach of duty was a necessary condition of the
occurrence of the harm (factual causation);
(b) it is appropriate for the scope of the liability of the person in
breach to extend to the harm so caused (scope of liability).
(2) In deciding in an exceptional case, in accordance with established
principles, whether a breach of duty—being a breach of duty that is
established but which can not be established as satisfying subsection
(1)(a)—should be accepted as satisfying subsection (1)(a), the court is
to consider (among other relevant things) whether or not and why
responsibility for the harm should be imposed on the party in breach.
(3) If it is relevant to deciding factual causation to decide what the person
who suffered harm would have done if the person who was in breach
of the duty had not been so in breach—
(a) the matter is to be decided subjectively in the light of all
relevant circumstances, subject to paragraph (b); and
(b) any statement made by the person after suffering the harm
about what he or she would have done is inadmissible except
to the extent (if any) that the statement is against his or her
interest.
(4) For the purpose of deciding the scope of liability, the court is to
consider (among other relevant things) whether or not and why
responsibility for the harm should be imposed on the party who was
in breach of the duty.
12 Onus of proof
In deciding liability for breach of a duty, the plaintiff always bears the
onus of proving, on the balance of probabilities, any fact relevant to
the issue of causation.
[53] As I accept the evidence of Mr Fyfe I conclude that the school cannot be refused relief
against the architect. Not only has there been a breach of the contract of retainer there
has also been a breach of the duty of care and this has caused the school’s loss.
[54] I find the architect breached the duty of care owed to the school because the risk of
harm to the school by not following Mr Fyfe’s instructions was foreseeable. That is
because by not following the instructions the school would receive a basketball court
that was not full-size and the school could elect, as it did, to remedy the deficiency at a 24
substantial cost to it. In that way the risk was not insignificant and in the
circumstances a reasonable person in the position of the architect would have taken
precautions by designing the basketball court as instructed.
[55] I find it was obvious harm would occur if the instructions were not followed. Further,
the seriousness of the harm would be significant, or it could require substantial
expenditure to rectify the omission.
[56] I find the burden of taking precautions to avoid the risk of harm was minor as the
architect could have designed the required size at the same time as the balance of the
design.
[57] I do not consider the social utility of the omission of the instructions has any bearing
on deciding whether a reasonable person would have taken precautions against the risk
of harm.
[58] I find the breach of duty by the architect caused the school’s loss. I find the breach of
duty was a necessary condition of the occurrence of the harm and it is appropriate for
the scope of the liability of the architect to extend to the harm so caused.
[59] I find if the architect had not been in breach of the duty of care there would not have
been any action for the school to take as a full-size basketball court would have been
designed and built.25
[60] I find there is no good reason not to impose responsibility for the school’s loss on the
architect.
[61] I find the school has satisfied the onus of proof on the balance of probabilities that the
architect’s breach of duty caused the school’s loss.
DISTRICT COURT OF QUEENSLAND
CITATION: Christian Education Ministries – Qld Ltd v Thomson Adsett
Pty Ltd [2015] QDC 292
PARTIES: CHRISTIAN EDUCATION MINISTRIES – QLD LTD
ACN 125 183 637
(plaintiff)
v
THOMSON ADSETT PTY LTD ACN 105 314 654
(defendant)
FILE NO/S: BD 5120/2011
DIVISION: Civil
PROCEEDING: Trial
ORIGINATING
COURT:
District Court at Brisbane
DELIVERED ON: 26 November 2015
DELIVERED AT: Brisbane
HEARING DATE: 18, 19 and 20 November 2015
JUDGE: Samios DCJ
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