The Tort of Professional Negligence
Introduction
Professional negligence however has a higher threshold than normal negligence under common law. This is because in this case, the defendant presents themselves as having above average skills or ability concerning the subject matter. Under normal tort, the general rule is to establish whether there was a duty of care owed and if in fact that duty of care was breached. The standard rule applicable in determining a breach is whether a reasonable person would have done so under similar conditions. Professionals on the other hand hold an all together different mantle owing to the services they provide for as professionals, they do hold more than average abilities in their professions which translates to their gaining a certain amount of increased faith from their clients.
Common law has determined this ability and has thus determined that the standard of care cannot generally go down. However, where an individual show cases either expressly or impliedly a certain amount of excessive skill or ability than that which an average person would, then the standard of care in this case would increase to a certain degree (Weir, 2002). Common law has also acknowledged the fact that while this standard of care is raised, these people are still also ordinary persons prone to mistakes. Thus, professional negligence comes in to mediate this dilemma.
Professional negligence test
Common law has determined that unfortunately, even the best in the processional field are prone to mistakes. These mistakes can prove disastrous to their clients who have a certain degree of increased faith in them. Thus, the courts have determined that professionals in fields such as medicine, legal, accounting and financing and others shall be judged based on the standards of other professionals claiming to have similar abilities and skills (Harlow, 2005).
This type of test referred to as the Bolam test, was first established under the common law medical negligence case of Bolam v Friern Hospital (1957) 1 WLR 583. This case determined the threshold on which a professional owed his client the duty of care in their capacity as a professional. However, this test had some technical problems as far as some professions were concerned such as in the legal field or financial field where often than not statements uttered by the profession would lead to losses (Lunney & Oliphant, 2008). Common law however created precedence in this case by adding the ‘reasonable reliance’ rule. This was established in Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465 case. In this case, Lord Morris of Borth-Y-Gest and other four judges found that "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." The precedence in this case was mostly applicable in professions where the giving of advice was a requirement such as in the legal of financial profession. But making professionals liable merely for their statements meant that this was a wide area with which professionals would seek to omit certain statements or act negligently (City Law School, 2010). The courts thus narrowed down the duty of care where the giving of advice was concerned.
The courts then established the ‘Caparo’ test in Caparo Industries plc. v Dickman (1990) 2 AC 605. In this case, Lord Bridge of Harwich established that “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."
The courts added another restriction James McNaughton Papers Group Ltd. v Hicks Anderson & Co. (1991) 1 AER 134 by focusing on the statement made by the profession and their actual knowledge on that particular subject as well as the purpose for which the statement was made. The courts would then examine if the advisee blindly relied on this advice. This would then determine the threshold of the professionals duty of care.
Conclusion
Common law has over the years determined and acknowledged that negligence performed by professionals had to have a different judgment threshold as compared to other negligence torts. Through case law, common law has been able to create standards that have been able to benefit the complainants whose duty of care was breached but also the professionals. For, while they may have above average knowledge in their respective fields, are still prone to human error.
References
City Law School (London, England). (2010). Professional negligence litigation in practice. Oxford, Oxford University Press.
Harlow, C. (2005). Understanding tort law. London, Sweet & Maxwell.
Lunney, M., & Oliphant, K. (2008). Tort law: text and materials. Oxford, Oxford University Press.
Weir, T. (2002). Tort law. Oxford [u.a.], Oxford Univ. Press.
