ATMA LIMITATION OF LIABILITY SCHEME INFORMATION SHEET

Transcription

1 ATMA LIMITATION OF LIABILITY SCHEME INFORMATION SHEET Updated 22 November 2012

2 SCHEME OVERVIEW The ATMA Limitation of Liability Scheme has been approved by the Professional Standards Council (PSC) under the Professional Standards Act 2003 (Vic). This gives ATMA Scheme Members limited liability. However it comes at a cost regulation of ATMA by the PSC. This initiative highlights the benefits of membership of ATMA. Status of Scheme The Scheme will start on 1 January About the Scheme Subject to very limited exceptions, the Scheme caps the occupational liability of each Scheme Member at $1 million, to the extent that liability can be limited under the Professional Standards Act 2003 (Vic). Be Prepared To get you ready for the start date, we have prepared this Information Sheet. However details of the Scheme appear on our website and will be regularly updated. Scheme Membership As from the start date, all ATMA members with current ATMA Public Practising Certificates who have complied with all ATMA requirements including payment of all fees, completion of all documents and attendance at all workshops (Eligible Members) will automatically become Scheme Members, subject to compliance with the Scheme requirements. The Scheme requires all Eligible Members (irrespective of partnership or employment status) to be Scheme Members. 2

3 Contents What is a Limitation of Liability Scheme? 4 Statutory Exclusions 5 Scheme approval 4 Single Cause of Action 5 Our Scheme 4 Insurance Exclusions 5 Commencement Date 4 Event Date versus Claim Date 5 Who is covered? 4 Application in other Australian states or territories? 6 Exemption 4 Cap can be increased 6 Eligible Members 4 No contracting out 6 All Eligible principals must be Scheme Members 4 Disclosure to Clients 6 All Eligible Employees must be Scheme Members 4 Documents requiring Disclosure 6 Scheme Membership 4 Documents not requiring Disclosure 6 How will the Scheme work? 5 Disclaimer 6 Monetary Ceiling 5 Type of Liability 5 3

4 What is a Limitation of Liability Scheme? The Professional Standards legislation provides for schemes to limit the liability of members of occupational associations. The legislation is state based, and the relevant Act for us is the (Victorian) Professional Standards Act 2003 (Act). The relevant regulations are the Professional Standards Regulations 2007 (Vic) (Regulations). For our Scheme to be approved ATMA has demonstrated a high commitment to professional standards and consumer protection; implemented comprehensive risk management strategies and set professional indemnity insurance standards. Following approval, we will continue to be monitored and audited by the PSC, so ATMA and all Scheme Members must be compliant at all times. Scheme Approval Under the Act, the following has occurred before our Scheme was approved: (a) the scheme was prepared together with a scheme application; (b) the scheme and scheme application were submitted to the PSC (c) the proposed scheme was subject to a 28 day period of public notification and comments and submissions were invited; (d) the scheme was reviewed and approved by the PSC; (e) the scheme was submitted to the Vic Attorney- General by the PSC; (f) the scheme was published in the Government Gazette. (g) the Scheme commences not earlier than 2 months from the date of publication. We have achieved all these goals and our scheme will commence on 1 January Our Scheme This is available on our website together with a two-page summary. Both documents should be read in full by all Scheme Members (you) and a copy of the Scheme must be given to clients and prospective clients on request. You must also read all other Scheme documents on our website including your Disclosure requirements. Commencement Date The start date is 1 January Who is covered? The Scheme covers all members holding current ATMA Public Practice Certificates (PPC), who have complied with all ATMA requirements (Eligible Members) and who have not been exempted from participation in the Scheme. Exemption The Scheme will not apply to any Eligible Member who has applied to ATMA for exemption and has satisfied ATMA that exemption is necessary or desirable. A person who is exempted from participation in the Scheme does not have limited liability. Eligible Members All ATMA members who hold a current PPC and who have satisfied all ATMA requirements in relation to public practice workshops, membership fees, PPC fees, 4 insurance, CPD, annual PPC declarations and have no outstanding notices, requests or demands from ATMA. All Eligible Principals must be Scheme Members For an accounting practice to gain the full benefit of the Scheme and the limitation of liability, all Eligible Member principals (including partners and directors) must be Scheme Members. For example, an accounting practice might have 5 principals, 4 of whom are Scheme Members, but the 5th (being an Eligible Member) is not. If a successful claim is made against the 5th principal, he or she might be liable for the full amount of the claim, but could be entitled to bring a contribution claim against all other principals to contribute to the balance of the claim which exceeds the monetary limit of the insurance policy held by the accounting practice. This would undermine the effectiveness of the limitation of liability cap. All Eligible Employees must be Scheme Members Issues might also arise if an employee is an Eligible Member but is not a Scheme Member. If a claim is brought against the employee, the principal/s (as the employer) could be vicariously liable for the employee s act or omission committed in the course of employment, and might not be able to rely on the limitation of liability cap. Therefore, accounting practices wishing to benefit from the limitation of liability should ensure that: All Scheme Members (both principals and employees) renew their membership of ATMA and PPC on an annual basis; and All new Eligible Members (both principals and employees) immediately become Scheme Members. Scheme Membership Eligible Members automatically become Scheme Members on 1 January 2013 (the Commencement Date), unless exempted from the Scheme. Any member who holds a PPC on the Commencement Date, but has not complied with all ATMA requirements as at that date, will automatically become a Scheme Member when they become compliant. Any member, who, after the Commencement Date, is issued with a PPC and is compliant with all ATMA requirements on that date, automatically becomes a Scheme Member on the date of issue of the PPC. Your limited liability commences on the date you become a Scheme Member. Most current PPC members will become Scheme Members on the Commencement Date. Current PPC members who are not compliant on the Commencement Date will become Scheme Members on the date of compliance and new PPC members (subject to compliance) will become Scheme Members on the date of their PPC. ATMA will maintain a register of all current Scheme Members and you will be notified when you become a Scheme Member and the date of your Scheme Membership. For the year commencing 1 January 2013 your membership fees (for all members and not just Scheme Members) include the annual fee payable to the PSC per Scheme Member plus the cost of administering the Scheme, which is for the benefit of all members.

5 How will the Scheme work? In principle, if proceedings are brought against you (if a Scheme Member at the Event Date) for an amount exceeding $1 million relating to occupational liability for damages arising from a single cause of action and you can show that: (a) you had an insurance policy, at the Event Date, insuring you against occupational liability to which the cause of action relates; and (b) the amount payable under the insurance policy was not less than $ 1 million, the Court, in awarding damages, will limit those damages to $ 1 million. If you cannot satisfy the Court that on the date of the cause of action (Event Date) you were a Scheme Member, had the requisite insurance and had made the requisite Disclosure (see below), you cannot rely on the Scheme to limit your liability to $ 1 million. Under the Scheme, the maximum amount payable to the claimant (pre sumably your client or former client) is limited to $1,000,000 - which includes the total amount the claimant can recover for damages, costs, interest etc. If your costs (known as defence costs) are, say, $80,000 you will be out of pocket to that extent (once the $1,000,000 limit has been reached or exceeded) unless your insurance either exceeds $1,000,000 or is exclusive of defence costs (which means the insurer will pay reasonable and approved defence costs to you in addition to the $1,000,000 you must pay to the claimant). ATMA has negotiated a policy with Express Insurance (available on the ATMA website) which complies with the requirements of both the TPB and the PSC and where the normal cover of $1,000,000 is exclusive of defence costs so that you will be reimbursed for your defence costs (but subject to the policy wording). Monetary Ceiling The Scheme will limit to $ 1 million the occupational liability of Scheme Members for damages arising from a single cause of action to the extent that liability can be limited under the Act. Type of Liability Occupational liability is defined in the Act as civil liability arising (in tort, contract or under statute) directly or vicariously from anything done or omitted to be done by a Scheme Member acting in the performance of his or her occupation. Statutory Exclusions The Act applies to liability in damages arising under the law of torts; or for breach of a contractual duty of care; or under statute. The Act (and, therefore the Scheme) does not, relevantly, apply to liability for damages arising from: Death or personal injury; An intentional tort; A breach of trust; Fraud or dishonesty; or Liability which may be the subject of proceedings under section 110 of the Transfer of Land Act Single cause of action Clause 1.1 of the ATMA Scheme limits the occupational liability of a Scheme Member for damages arising from a single cause of action to $1 million. 5 Most professional indemnity policies have a broad aggregation provision which means that a series of related acts or omissions or a series of related matters or transactions will be regarded as one loss under the Policy. This means that the policy limit of $1 million applies to one loss which could include a number of different causes of action and be based on a number of different acts or omissions. Scheme Members should note that: Claims by a number of persons who have a joint interest in a cause of action are treated as a single claim for the purposes of the Act, despite the fact that they may also have several interests; and Two or more claims by the same person arising out of a single event against Scheme Members and who are associated persons (that is partners or employees of the same employer or are employer and employee) are to be treated as a single claim for the purposes of the Act. While we are not aware of any decided case in which an occupational liability scheme has been tested in court, there is an incongruity between the Scheme and most professional indemnity policies, so a policy may treat multiple causes of action differently from the Scheme and aggregate more than one claim as one loss. While the Scheme might limit liability to $1,000,000 for each cause of action, the policy might only cover one such loss and not all. Fortunately, most insurance policies (including Express Insurance) provide for at least one reinstatement of the sum insured (this means that once the cover of $1,000,000 has been exhausted, at least one further cover of $1,000,000 is available during the policy year). Insurance Exclusions Most policies contain exclusions where insurers will not pay the insured any sum under the policy, for example, if a claim arises as a result of fraud or dishonesty. Where an exclusion applies, you cannot satisfy a Court that you have the benefit of an insurance policy and the Scheme will not apply leaving you exposed to full legal liability in respect of the claim. Event Date vs. Claim Date The Scheme will limit liability arising from an act or omission where you were a Scheme Member at the Relevant Time being the time the act or omission occurred on which the cause of action is founded (Event Date). There are many situations in which the Event Date will be a number of years before a claim against you is made (Claim Date). For example, tax advice may be given on 30 June 2013 but damage may not be suffered by the client until May 2016 when an adverse assessment is received. Here, the Event Date would be 30 June 2013 but the Claim Date would be June or July If the Event Date occurred before 1 January 2013, the Scheme will not apply, even though you are a Scheme Member on the Claim Date. If you are a Scheme Member on the Event Date and have the requisite Insurance on that date, but don t have Insurance (including run-off insurance) on the Claim Date you will have limited liability but will not be insured. To limit this discrepancy between the Scheme and insurance, ATMA have negotiated run-off insurance. In the Express Insurance policy, run-off insurance is available (as an extra), for up to 6 years from the date you retire from practice. In certain situations 6 years may

6 not be sufficient and you should obtain your own insurance advice as to whether a longer period of run-off insurance is necessary. Application in other Australian states & territories? The Scheme will apply in all States and Territories except Tasmania. Cap can be increased ATMA has discretionary authority, on application by a Scheme Member, to specify a higher maximum amount of liability than $1 million either in all cases or in any specified case or class of case, not exceeding $100 million. No contracting out The Act prohibits contracting out of the Scheme. Disclosure to Clients You must disclose your limited liability status. The Act and Regulations prescribe the following form of statement: Liability limited by a scheme approved under Professional Standards Legislation. This statement must be printed in a size equal or greater than Times New Roman 8 point. Generally, disclosure should appear on all documents given to clients or prospective clients to promote or advertise the Scheme Member or their business, including websites (see below). Also, on request by a client or prospective client, you must make available to them a copy of the Scheme which is available on the ATMA website. You may also elect to display an optional PSC Cover of Excellence logo. Use of this symbol shows that you are part of an association that has an approved scheme. However, the logo does not replace the requirement for disclosure to clients. The logo is not used to disclose limited liability, but to further indicate that you are part of a scheme that strives for higher excellence and quality service. The use of the logo must conform to prescribed placement, colour and size requirements. ATMA can provide further information. You cannot rely on the Scheme to limit your liability if before the time at which the act or omission giving rise to the cause of action occurred, you did not give to your client a document that carried the required disclosure statement. A failure to make such a disclosure is also an offence under the Act (see below. As is a failure to provide a copy of the Scheme on demand. Further details of Disclosure requirements are contained on our website, as well as below. DOCUMENTS REQUIRING DISCLOSURE Documents (written advice, plans, drawings, specifications and other) produced for clients not accompanied by another document containing a disclosure statement; ; Fax cover sheets; Letterheads and letters signed by you or on your behalf; Memorandum of fees and invoices not accompanied by another document containing a disclosure statement; Websites; and Newsletters and other publications. DOCUMENTS NOT REQUIRING DISCLOSURE Advertisements in print media, directory listings and similar forms of promotion or advertising: and Business cards. Failure to disclose may result in a financial penalty and will deprive you of the benefit of limited liability. DISCLAIMER The information in this Information Sheet regarding the ATMA Limitation of Liability Scheme is intended to be a general guide only. The information is not intended to constitute professional or legal advice, and you should make your own enquiries and assessment. ATMA expressly disclaims any and all liability for any loss or damage arising from reliance upon any information in this Information Sheet. 6