Professional Negligence

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Professional Negligence

What is Professional Negligence?

Looking at the big picture, professional negligence occurs when a professional (i.e. a solicitor, accountant, architect etc) fails in his responsibilities to the required standard. A professional may face claims based on the following breaches.

  • Breach of a Contractual Term
  • Breach of a duty of care (within the tort of negligence)
  • Breach of Fiduciary Duty
  • Breach of Statutory Duty

What this page will primarily look at is the breach of a duty of care within the tort of negligence. This includes the elements of the tort, the factual and legal causation.

The starting point for the modern tort of negligence goes back to Donoghue v Stevenson. This case involved the Claimant finding a decomposed snail within a bottle of ginger beer and because of it suffered shock and gastro-enteritis. Lord Atkin’s put forward the following comments relating to duties of care.

In English Law there must be, an is, some general conception of relations giving rise to a duty of care…The liability for negligence, whether you style it such or treat it as in other systems as a species of ‘culpa’, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy…you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who…is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts of omissions which are called in question[1]

Elements of the tort of negligence

Following the statement of Lord Atkin it is possible to break the tort into 3 points that need to be established. They are as follows:

  • The defendant owed a duty to the claimant
  • The defendant breached the duty owed to the claimant
  • The defendant’s breach of duty caused the claimant to suffer recoverable loss

The Duty of Care

The laws surrounding the duty of care are quite varied and there are a number of tests which have been created to ascertain whether a duty is owed to them.

The starting point for any duty of care discussion is the test established in Caparo Industries v Dickman[2]. This test asks whether:

  1. The damage which occurs is forseeable.
  2. There is a sufficiently proximate relationship between the parties.
  3. It is fair, just an reasonable in all the circumstances to impose a duty of care.

The next test to consider is that of Henderson v Merrett Syndicates Ltd[3]. Within this test the question is asked whether the defendant has undertaken a responsibility towards the claimant to exercise reasonable care and skill.

The Final test is where the law recognises cases where duties  are owed by comparing them with existing cases where a duty of care is owed.

It is unfortunate that there is no legislation pinning down exactly when a duty of care arises in situations however by this point the level of case law is quite considerable so in more occasions than not a duty will likely to have been established.

The Breach of Duty

A person who owes a duty of care at common law will breach it if they fail to use reasonable care when performing their duty. When asked what exactly reasonable care is, this is the standard of a hypothetical “reasonable man”

The definition of reasonable man comes from the case of Hall v Brooklands Auto-Racing Club and is as follows:

The person concerned is sometimes described as ‘the man in the street,’ or ‘the man in the Clapham omnibus’…such a man taking a ticket to see a cricket match at Lord’s would know quite well that he was not going to be encased in a steel frame which would protect him from the one in a million chance of a cricket ball dropping on his head.[4]

However it should be noted that in certain cases the standard of care required by the defendant will be heightened. In this case the standard of care applied to professionals is that of a “reasonable professional”, i.e. in professional negligence claim against a lawyer it would be of a reasonable lawyer rather than the reasonable man. This is known as the Bolam test and originates from Bolam v Friern Hospital Management Committee.[5]

There are no degrees of negligence when it comes to considering whether a breach of duty has occurred. The defendant will have either taken reasonable care (be it professional or that of the reasonable man) or he won’t have.

Has the breach caused the Claimant to suffer loss

The Claimant must show that the defendant’s negligence caused the claimant to suffer loss. The idea of Causation is broken down into two categories factual causation and legal causation. Both need to be satisfied for liability to be established.

Factual Causation

The Claimant needs to show that they sustained loss as a matter of fact due to the defendant’s negligence.  I.e. But for the defendant’s carelessness the claimant would not have suffered any loss.

So the claim will fail if:

  1. the claimant would have suffered loss in the absence of the defendant’s negligence
  2. the true cause of the loss was something other than defendant’s carelessness

If a combination of events caused the loss (and negligence was responsible for only one of those events) the court needs to decide whether the other events broke the chain of causation between the negligence and the loss. The court will consider there to be a break when there is a new (and independent) cause of the loss. (As in it was not the effective cause of that loss)[6]

The Claimant cannot merely prove that the defendant increased the risk of sustaining loss.[7]

Legal Causation

Even if the but for test is passed, this does not mean that there is automatically confirmation of causation. They also need to show that the negligence was legally the cause of the claimant’s loss.  The clearest example is that is within the Judgment of Lord Hoffman within Banque Bruxelles Lambert v Eagle Star Insurance Co[8].

A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee.He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.

In this instance the doctor is not liable as the injury the mountaineer sustained was not within the scope of the doctor’s duty when he inspected the mountaineers knee.

Foreseeability

A third strand of causation but primarily linked with legal causation is that of foreseeability. The claimant’s loss must have been a foreseeable consequence of the defendant’s breach of duty.  The loss must be reasonably foreseeable to be recoverable.

What Next?

If all of the tests which are mentioned above are passed then there is potentially a claim for professional negligence available to you. If you feel someone has been professional negligent and you have suffered loss then please do not hesitate to contact us on 0800 014 8727 or you can fill out our online form and we will call you back at a time to suit you to give you a second opinion.