Anna is running a successful small business, 'Anna's Cat Clothing Emporium' "ACCE" selling 'the latest fashion in cat attire', which commenced in 2015. Her decorative hats and cat tuxedos are her best-selling items. In January 2019, she launched a product line called 'Puss in Boots', an extensive line of customizable cat shoes. She anticipated significant interest in the shoes but unfortunately, due to the Covid-19 pandemic and a drop in non-essential spending by consumers, Anna now has too many of the shoes in stock.

She has been a client of Heath's accounting practice since ACCE's formation in 2015. Anna would typically only have one appointment with Heath at the end of the financial year, but in this instance had several additional appointments to discuss her affairs with Heath. Anna sought advice on her business affairs, particularly with respect to her eligibility for various government grants, such as 'Job Keeper1', as well as general advice on how to keep her business afloat. Heath advised that she should restructure her business and informed her that she was able to claim job keeper payments from the federal government. As expected, Covid has had an enormous impact on her sales throughout the 2020-2021 financial year, and ACCE is now on the verge of insolvency. Anna takes Heath's advice and decides to restructure the business, without doing any further investigations. She also forgets to tell Heath about the $200,000 loan she had taken out in early 2019 to renovate her house. She couldn't afford the loan at the time, however she had counted on the success of the customizable cat shoes to cover the repayment of the loan. On double checking his records for ACCE, Heath notes that ACCE might not have been eligible for Job Keeper payments, and also notes that due to the restructuring of the business, ACCE is not eligible for a Loss Carry Back Offset2 which was introduced in late 2020. These combined issues make it highly likely that ACCE will become insolvent in the near future.

Heath is a Chartered Accountant, with the professional body requiring its members to 'always remain up to date in their technical knowledge.' Heath's poor advice seems to have arisen for several reasons. First, Heath was suffering some personal health issues, and secondly, Heath's usual process of 'staying up to date' with his knowledge was to attend various professional seminars. Heath had been unable to attend the recent professional seminars on the Loss Cary Back and Job keeper Eligibility reforms, as the price of the seminars had increased, and Heath could not afford to attend as his business had been performing poorly due to his poor health. Instead, Heath had relied upon his own interpretation from various government guides and general information he had found on the internet.

Having now properly assessed the damage to her business, Anna believes Heath's advice has not only cost her $200,000 ($100,000 each for the Loss Carry Back offset and Job Keeper advice) but could end up costing her several million more due to the loss of her business. The business is insolvent now and will have to come to an end. Anna wishes to sue Heath for $1 million in damages. Heath believes that Anna should bear some of the responsibility, since she didn't tell him about the $200,000 loan she had taken out to renovate her house, and believes that ACCE may have been able to stay afloat if he had known about the loan as he would have given her different advice.

Anna comes to you for advice, wanting to know what action(s), if any, she can take against Heath for his incorrect advice, and whether Heath can rely on any defences. Please restrict your answer to discussion of the Civil Liability Act 2003 (Qld)and the supporting common law

1)It is not essential to understand the concept other than the fact it is financial assistance provided from the government. Nonetheless, more information can be found here: JobKeeper Payment | Australian Taxation Office (ato.gov.au)

2) It is not essential to understand the concept, other than to note that it may have assisted Anna and ACCE's financial position. Nonetheless, further explanation can be found from: Loss carry back | Australian Taxation Office (ato.gov.au)