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British legal perspectiveEdit
In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. The usual rules rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. This specialised set of rules determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise.
The relationship between contract and tortEdit
In principle, the tortious liability runs in parallel to liability in contract. Subject to the rules of privity of contract, one who has entered into a contract can sue or be sued on the contract which will set out the terms of the service to be provided by the professional person, and if there is no express term to this effect, there will be an implied term that the service will be performed with reasonable care and skill, per s13 Supply of Goods and Services Act 1982. The standard of care required to satisfy this contractual obligation is the same as in negligence, but the circumstances in which each liability may arise differ in that contracts are voluntarily created between the parties, while the duty of care is imposed by operation of law. However, suppose that a solicitor contracts with a medical expert to prepare a report for the purposes of personal injury litigation. The beneficiary of this work will be the client but there is no direct contractual relationship between the expert and the client. It may therefore be argued that since the parties have decided to arrange their relationships to avoid direct contractual obligations, the client should not be permitted to sue in tort, bypassing the privity rule and any exclusion clauses in the contract. In Henderson v Merrett Syndicates Ltd. (1995) 2 AC 145 the potential effectiveness of this argument was acknowledged in a case where there was a formalised structure of agent and sub-agent, but the general scope of this potential limitation remains unclear. However, it is clear that if there is concurrent liability in contract and tort, the quantum of damages is limited to the actual loss suffered and does not increase because there are two causes of action. In Thake v Maurice (1986) QB 644 a railway guard and his wife had five children living in a three-bedroomed council house and were unwilling to have further children. Thake consulted the surgeon who made it clear that a vasectomy was final and that Thake after the operation would become permanently sterile. Although the vasectomy was properly performed, the effect of this operation was naturally reversed and, not unexpectedly, Mrs. Thake conceived and a daughter was born. It was held that, applying the objective standard, the surgeon had contracted not merely to perform a vasectomy but had contracted to make Mr. Thake irreversibly sterile. The judge relied on the consent forms which stated that the vasectomy would be final. The claim was brought in contract and in tort. Peter Pain J. found that there was no reason why public policy prevented the recovery of expenses arising from the birth of a healthy child. He awarded damages in respect of the expenses of the birth and the mother's loss of wages but refused damages for the pain and distress of labour holding that these were off set by the joy occasioned by the birth. He did, however, award damages in an agreed sum for the child's upkeep to its seventeenth birthday. The Court of Appeal held that damages should be awarded for pain and suffering "per the majority" in tort rather than contract. The joy of having the child could be set off against the time, trouble and care in the upbringing of the child but not against prenatal pain and distress. For the latter, damages should be awarded. The case is also interesting because there was an alternative interpretation of the consent form. After sterilisation, some couples want to change their minds because their children have died or because they are seeing better days. Instead of the surgeon giving a guarantee of irreversible sterility which depended on the way in which human tissue healed, the warning of finality could be aimed at telling both husband and wife that they could not change their mind later and complain if the spouse had become permanently sterile.
Even though the general objective standard of care cannot come down, it can be raised where the individual defendant has expressly or impliedly represented skills and abilities in excess of the ordinary person. It is an unfortunate fact of life that some professionals prove to be negligent because even those with the most experience can make a mistake. The consequences to their clients can be disastrous. Thus, professionals providing services in a wide range of situations, from surveyors and estate agents to doctors, solicitors, accountants, financial services providers, Information Technology professionals, patent agents, etc., will be judged by the standards of those claiming to have that same set of skills and abilities. This is the basis of the Bolam Test for medical negligence derived from Bolam v Friern Hospital (1957) 1 WLR 583. This test is not significantly different from the test used in any other professional negligence litigation, but it causes greater difficulty for the courts than would a claim against, say, a lawyer or an accountant, because of the technical issues involved. In addition, Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. (1964) AC 465 created the rule of "reasonable reliance" by the claimant on the skills of the defendant.
- "Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise."
Cases of professional liability blur the distinction between acts and statements, e.g. a medical specialist prepares a report for personal injury litigation, which can be characterised as a statement, but it must be based on the prior acts of carrying out a review of the medical records and performing a physical examination of the client. Actions nominally based on Hedley Byrne by definition include negligent acts or omissions, even though the ratio decidendi of Hedley Byrne was cast in terms of liability for statements. In Caparo Industries plc. v Dickman (1990) 2 AC 605 the criteria for a duty of care in giving advice were stated in more restricted terms:
- "What can be deduced from the Hedley Byrne case, therefore, is that the necessary relationship between the maker of a statement or giver of advice (the adviser) and the recipient who acts in reliance on it (the advisee) may typically be held to exist where (1) the advice is required for a purpose, whether particularly specified or generally described, which is made known, either actually or inferentially, to the adviser at the time when the advice is given, (2) the adviser knows, either actually or inferentially, that his advice will be communicated to the advisee, either specifically or as a member of an ascertainable class, in order that it should be used by the advisee for that purpose, (3) it is known, either actually or inferentially, that the advice so communicated is likely to be acted on by the advisee for that purpose without independent inquiry and (4) it is so acted on by the advisee to his detriment."
Following Caparo, the Court of Appeal in James McNaughton Papers Group Ltd. v Hicks Anderson & Co. (1991) 1 AER 134 adopted a more restricted approach, focusing in the adviser's actual and constructive knowledge of the purpose for which the statement was made. Thus, the duty was to be limited to transactions or types of transactions where the adviser knew or ought to have known that the advisee would rely on the statement in connection with that transaction without obtaining independent advice. It also had to be shown that the advisee did in fact reasonably rely on the statement without using his own judgment or obtaining independent advice. In Henderson v Merrett Syndicates Ltd. the Lords reasserted the underlying principle that liability under Hedley Byrne was a voluntary assumption of responsibility for performing the given task by a person rendering professional or quasi-professional services irrespective of whether there was a contractual relationship between the parties.
- For a full explanation, see Bolam Test
Medical negligence differs from other litigation because the claimant must rely on expert medical evidence to establish all the major elements of liability. Causation is particularly difficult to prove because the effects of the allegedly negligent treatment must be distinguished from those of the patient's underlying condition which gave rise to the need for treatment. Further, the assessment of damages is often complicated because the court must compare the claimant's actual condition and prognosis with the hypothetical condition and prognosis if the patient had received competent medical treatment. The court must only compensate for the injuries caused by negligent treatment, not for any underlying condition. In Bolam McNair J. stated at 587, that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men." Later, at 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." To determine whether a body of opinion is responsible, reasonable or respectable, the judge will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter. For example, in Hucks v Cole reported in (1993) 4 Med. L.R. 393, a doctor failed to treat a patient who was suffering from septic places on her skin with penicillin even though he knew there was a risk of puerperal fever. Sachs LJ.. said at 397:
- "When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risk, the court must anxiously examine that lacuna—particularly if the risk can be easily and inexpensively avoided. If the court finds, on an analysis of the reasons given for not taking those precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence. In such a case the practice will no doubt thereafter be altered to the benefit of patients."
Similarly, in Edward Wong Finance Co. Ltd. v Johnson Stokes & Master (1984) 1 AC 296, solicitors had completed a mortgage transaction in "Hong Kong style" rather than in the English style. The fact that this style was almost universally adopted in Hong Kong did not make it reasonable or responsible because it did not guard against the risk of fraud. Thus, the solicitors were liable for negligence because they should have taken precautions against an obvious risk. But, the Lords in Bolitho v City and Hackney Health Authority (1997) 4 AER 771 held that it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable.Professional standards