PROFESSIONAL NEGLIGENCE

LAW OF TORTS PROJECT

MANSI TIWARI

SEMESTER – 1

ROLL NUMBER - 2019061

NAME OF FACULTY – Ms. B. V. S. SUNEETHA

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM

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Acknowledgement

I would sincerely like to put forward my heartfelt appreciation to our respected Law of Torts
professor, Ms. B. V. S. Suneetha for giving me the golden opportunity to take up this project
regarding Professional Negligence. I have tried my best to collect information for this project
in various possible ways to depict a clear picture about the given project topic.

I would also like to thank DSNLU, for providing me with all the required materials and my
friends, who helped me in finishing this project within the limited time.

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Table of contents

 Abstract………………………………………………………………………………. 4
 Introduction …………………………………………………………………………...5
 Negligence by professionals…………………………………………………………..7
 Elements for the tort of Professional Negligence…………………………………… 10
 Types of Professional Negligence …………………………………………………...11
 Professional Negligence in the medical field………………………………………...13
 Professional Negligence and the Legal Field ………………………………………..15
 Definition Of Professional …………………………………………………………..23
 Professional Malpractice……………………………………………………………. 24
 Professional and Industry Standards…………………………………………………28

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ABSTRACT

In the law of negligence, professionals such as lawyers, doctors, architects and others are
included in the category of persons professing some special skill or skilled persons generally.
Any task which is required to be performed with a special skill would generally be admitted
or undertaken to be performed only if the person possesses the requisite skill for performing
the task. The duty of the professional is to use such care as would be used by others in the
same profession.

Any reasonable man entering into a profession which requires a particular level of learning to
be called a professional of that branch, impliedly assures the person dealing with him that the
skill which he professes to possess shall be exercised and exercised with reasonable degree of
care and caution. He does not assure his client of the result. A lawyer does not tell his client
that the client shall win the case in all circumstances. The only assurance with such a
professional can give or can be understood to have given by implication is that he is
possessed of the requisite skill with reasonable competence.

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INTRODUCTION

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. It could also be
defined as “the failure of one rendering professional services to exercise that degree of skill
and learning commonly applied under all the circumstances in the community by the average
prudent reputable member of the profession with the result of injury, loss, or damage to the
recipient of those services.” 1

OBJECTIVE OF STUDY

This project discusses the elements that amount to the tort of Professional Negligence along
with various landmark cases for a better understanding of this particular tort. Special
coverage of Professional Negligence with respect to the medical felid has been done.

SIGNIFICANCE AND BENEFIT OF STUDY

This study helps us understand the exceptions and rules for the tort of Professional
Negligence via various important cases for a better understanding of this tort. It is important
since this particular tort covers disputes involving all manner of professionals, including
accountants, engineers, architects, barristers, financial advisers, doctors so on and so forth.

1
http://definitions.uslegal.com/p/professional-negligence/

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RESEARCH METHODOLOGY

The research methodology used in the course of this project is Doctrinal Research.

TYPES OF RESEARCH

This research is a critical and an explanatory study.

RESEARCH QUESTION

1. Whether nowadays the professionals need to stick to professional ethics or not?

2. Whether or not we can compare professional negligence to professional ethics?

SUMMARY OF THE PROJECT

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.

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NEGLIGENCE BY PROFESSIONALS

An act or misconduct also called malpractice where professionals like medical practitioners,
lawyers, accountants, architects etc fail to exercise their duties effectively and which results
in damages to clients. It can be due to negligence, ignorance or intentionally. It cannot be
proved just by the patient’s judgment unless it is very obvious but a legal declaration has to
be made by an expert of the same profession that the professional failed to meet the basic
standards while performing the act. The accuse has the right to defend the judgment in the
court of law.

What is professional negligence?

Professional negligence is a breach of the duty of care between professionals and their
clients. The duty of care is a common law arrangement where the client expects a level of
professionalism and standards commonly held by those in the profession. The most common
term for medical professional negligence is medical malpractice. For this instance, the
patient expects the doctor and his subordinates to adhere to standards that would prevent
undue harm and distress to patients under his or her care. Negligence on the part of the
doctor while performing his duties as a professional is malpractice, which breaches the duty
of care that the patient has put in the doctor and will involve legal penalties.

What is a “duty of care”?

Duty of care is a broad legal definition that protects individuals from others that engage in
activities that could potentially harm others if proper precautions are not taken. This ranges
from operating a moving vehicle to performing surgery. This also covers situations where
individuals may suffer economic or emotional damage due to poor advice or conduct. a
manufacturer has a duty of care to the consumer as the consumer will assume that product he
or she is buying is safe and adheres to standards set by the government and common
practices. The standard for this was set in the case of Donoghue v Stevenson where a ginger
beer manufacturer allowed a snail into Stevenson’s bottle. British courts ruled that Stevenson

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was owed a duty of care by Donoghue to ensure the safety of his manufacturing process to
his customers.

What are other forms of professional negligence?

A lawyer may engage in legal malpractice if he not only deploys a questionable legal strategy
but also makes critical errors that no “reasonable attorney” would make. In a case such as
this, an expert witness may be necessary to prove that the lawyer was negligent and breached
his duty of care with his client. Similarly, any instance where a client relies on a professional
to fulfill his or her duty of care can be a form of professional negligence if the professional
commits an egregious breach of conduct. by this definition, a professional that dispenses
poor investing advice while breaching the common duty of care placed in financial advisors,
then the client is entitled to damages. If a mental health professional behaves unethically and
violates common
practice, than he too has engaged in malpractice. Lastly, builders and architects maintain a
duty of care with owners and tenants to ensure that the building they erect will adhere to
government regulations and common practices for the construction of buildings
Medical malpractice refers to professional negligence by a health care professional or
provider in which treatment provided was substandard, and caused harm, injury or death to a
patient. In the majority of cases, the medical malpractice or negligence involved a medical
error, possibly in diagnosis, medication dosage, health management, treatment or aftercare.
The error may have been because nothing was done (an act of omission), or a negligent act.
[3] Thus, Medical malpractice is Professional Negligence by act or omission by a health care
provider, in which care provided deviates from accepted standards of practice in the medical
community and causes injury or death to the patient. Standards and regulations for medical
malpractice vary by country and jurisdiction within countries. Medical professionals are
required to maintain professional liability insurance to offset the risk and costs of lawsuits
based on medical malpractice. A person who alleges negligent medical malpractice must
prove four elements: (1) Failure to provide proper standard of care (2) An injury was an
outcome of negligence (3) The injury resulted in significant damage (4) The injury was
caused in fact and proximately caused by the substandard conduct. The burden of proving
these elements is on the plaintiff in a malpractice lawsuit.

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Professionals are persons professing some special skill. Any task which is required to be
performed with special skill and knowledge in the matter would generally be undertaken to
be performed only if the person possesses the requisite skill and knowledge for performing
that task. It has further been explained by the Apex Court in the case of Jacob Mathew v.
State of Punjab2 that any reasonable man entering into a profession which requires a
particular level of learning to be called a professional of that branch impliedly assures the
person dealing with him that the skill which he professes to possess shall be exercised with a
reasonable degree of care and caution. However, there are no assurances given with respect to
the end result and only with respect to the requisite skill in his/her branch of profession is
given along with the presence of reasonable competence.

Also, it was observed in the celebrated case of Bolam v. Friern Hospital Management
Committee3 that the test for negligence is with respect to an ordinary skilled man exercising
and professing to have that special skill and the man need not possess the highest expert skill.
This stand was further established and elaborated in the case of Eckersley v. Binnie4.

The degree of skill and care required has been explained at length in the Halsbury’s Laws of
England5. Deviation from normal practice is held not necessarily evidence of negligence. To
establish liability on that basis it must be shown:

1) That there is a usual and normal practice;

2) That the defendant had not adopted it;

3) That the course in fact adopted is one no professional man of ordinary skill would have
taken had he been acting with ordinary care.

2
A.I.R. 2005 S.C. 3180
3
[1957] 1 W.L.R. 582, 586
4
[1988] 18 Con. L.R. 1,79, quoted Ibid.
5
Fourth Edition, Vol. 30, Para 35. Quoted in Jacob Mathew v. State of Punjab, A.I.R. 2005 S.C. 3180

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ELEMENTS FOR THE TORT OF PROFESSIONAL NEGLIGENCE

Duty
To state a negligence cause of action, the defendant must owe a duty of due care to the person
injured, or to a class of persons of which the plaintiff is a member. In the case of Valdez v. J.
D. Diffenbaugh Co.6 it was established that the extent and type of duty varies according to the
relationship of the parties and other circumstances. For example when a medical practitioner
attends to his patient he/she owes him/her the following duties of care7:

i) A duty of care in deciding whether to undertake the case.

ii) A duty of care in deciding what treatment to give.
iii) A duty of care in the administration of the treatment.

Breach
Ordinary negligence consists of acts or omissions which are not compatible with the standard
of care exercised by an abstract man of ordinary prudence as seen in the case of People v.
Young8.

Causation
Legal cause requires that the defendant’s negligent acts were a substantial factor in bringing
about the plaintiff’s injury or damage. The aforementioned was consolidated in the case of
Mitchell v. Gonzales9.
It is a relatively broad standard requiring only that the contribution of the individual cause be
more than negligible or theoretical as seen in the cases of Bockrath v. Aldrich Chemical
Co.10and in Bunch v. Hoffinger11.

Damage
Damage must be pled and proved as an essential element of negligence (Rosales v.
Stewart12). The phrase “injury occasioned to another” as used in Civil Code §1714 is the

6
51 Cal. App. 3d 494, 124 Cal. Rptr. 467 (1975)
7
Dr. L.B. Joshi v. Dr. T.B. Godhole, A.I.R. 1989 P. & H. 183, at 185.
8
20 Cal. 2d 832, 129 P.2d 353 (1942)
9
54 Cal. 3d 1041, 1 Cal. Rptr. 2d 913 (1991); CACI 430
10
21 Cal 4th 71, 79 (1999)
11
123 Cal. App 4th 1278 (2004)
12
113 Cal. App. 3d 130, 169 Cal. Rptr. 660 (1980)

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injury to the person who is the victim of the actor’s negligence as seen in the case of Buckley
v. Chadwick13.

TYPES OF PROFESSIONAL NEGLIGENCE

Our specialist team of professional negligence solicitors deal with disputes involving a
variety of professions. See examples of some listed below:

Accountant negligence

If you have received an inadequate accountancy service from an accountant you could be
eligible to make a professional negligence claim. Examples of sub-standard service that
would warrant accountant complaints could be: receiving incorrect advice, incurring penalties
due to late filing of accounts, loss of investment and over payments of tax.

Architect negligence

If you have received a sub-standard service from an architect you could be eligible to make a
professional negligence claim. Examples of inadequate architectural service could be:
receiving incorrect advice, inadequate plans or project preparation, failure to keep a project
within the specified budget or wrongly specified material being recomended.

Barrister professional negligence

If you have received a sub-standard service from a barrister you could be eligible to make a
professional negligence claim. Examples of inadequate service could be: if you have received
negligent service from a barrister.

Expert witness negligence

Following the recent decision of Jones v Kaney, expert witnesses can now be held liable if a
case has failed due to their negligent advice. The decision has retrospective effect meaning

13
45 Cal. 2d 183, 288 P.2d 12 (1955); CACI 261

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that if an expert has provided you with negligent advice in the last 6 years, you may be
eligible to make a claim. Our legal team has experience of pursuing such claims.

Finance professional’s negligence

If you have received an inadequate financial service from a finance professional you could be
eligible to make a professional negligence claim. Examples of sub-standard service could be:
receiving incorrect advice, failure to advise on risk involved in investments resulting in loss.

Solicitor professional negligence - complaint against solicitor

If you have received an inadequate service from a solicitor you could be eligible to make a
professional negligence claim. Examples of sub-standard service could be: if you have
received negligent service from a solicitor, the solicitor's failure to issue a claim before the
expiry of a relevant limitation period, problems caused by conveyancing of land, mishandling
of litigation or mishandling of employment tribunal claims.

Surveyor professional negligence

If you have received a sub-standard service from a surveyor you could be eligible to make a
professional negligence claim. Examples of inadequate surveyor’s service could be: receiving
incorrect advice, inadequate reporting, failure to carry out instructions and failure to inspect
property thoroughly.

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PROFESSIONAL NEGLIGENCE IN THE MEDICAL FIELD

Medical negligence (also known as medical malpractice) 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
Cole14 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:

"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."

In Poonam Verma v. Ashwin Patel and Others15, a doctor registered as a medical practitioner
and entitled to practice in Homeopathy only prescribed an allopathic medicine as a result of
which the patient died. Compensation was given to the wife of the diseased and it was further
14
[1968] 118 New L.J. 469.
15
(1996) 4 S.C.C. 332.

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held that a doctor entitled to practice a particular type of medical field (as in Homeopathy in
the above case) was held under a statutory duty to not enter the field of any other system of
medicine.

Also, in M/s Spring Meadows Hospital v. Harjot Ahluwalia16, their Lordships of the Apex
Court held that an error of judgement is not necessarily negligence.

It is well settled that in cases of gross medical negligence the principle of Res ipso loquitor
can be applied. The Hon’ble Apex Court in V. Kishan Rao v. Nikhil Super Speciality
Hospital17 considered at length the principle and gave certain illustrations18 on medical
negligence where this particular principle could be applied. Res ipso loquitur is essentially an
evidential principle and is said to assist a claimant who, for no fault of his own, is unable to
adduce evidence as to how the accident occurred.

There have been cases of various kinds that have come up over the years such as the
negligence in a free eye camp (Pushpaleela v. State of Karnataka19) , penis of a man getting
cut off (C. Sivakumar v. Dr. John Mathur & Another20), death due to transfusion of blood of
a wrong blood group (R.P. Sharma v. State of Rajasthan 21), failure of sterilization
operation(State of Punjab v. Siv Ram22), foreign matter left behind such as
mop/scissors/labels and the like (A.H. Khodwa v. State of Maharashtra23) and many such
cases.

A doctor’s duty to maintain secrecy has also been discussed in the case of Dr. Tokugha v.
Apollo Hospital Enterprises Ltd.24, the appellant whose marriage was called off because of
disclosure by the Apollo Hospital that the appellant was HIV(+). It was held that the rule of
confidentiality is subject to the exception when the circumstances demand disclosure of the
patient’s health in public interest, particularly to save others from immediate and future
health risks.

16
(1998) 4 S.C.C. 39.
17
(2010) 5 S.C.C. 513.
18
See Calvin v. Wilcox, (1973) 44 DLR 3d 42; Eady v. Tenderenda, (1975) 2 S.C.R. 599.
19
A.I.R. 1999 Kant. 119.
20
III (1998) CPJ 436 (Tamil Nadu S.C.D.R.C.)
21
A.I.R. 2002 Raj. 104.
22
A.I.R. 2005 S.C. 3280
23
1996 A.C.J. 505 (S.C.).
24
A.I.R. 1999 S.C. 495; III (1998) C.P. J. 12 (S.C.).

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PROFESSIONAL NEGLIGENCE AND THE LEGAL PROFESSION

As to solicitors, Ross v. Caunters25 holds that lawyers can owe a duty of care both to their
clients and to third parties who suffer loss or damage. In that case, the solicitors failed to
prevent a beneficiary from attesting the will. They admitted negligence but denied that they
were liable to the claimant, contending (i) that a solicitor was liable only to his client and then
only in contract and not in tort and could not, therefore, be liable in tort to a third party, (ii)
that for reasons of policy, a solicitor ought not to be liable in negligence to anyone except his
client, and (iii) that in any event, the Plaintiff had no cause of action in negligence because
the damage suffered was purely financial. Applying the principles in Hedley Byrne & Co Ltd
v Heller & Partners Ltd and Donoghue v Stevenson26, a solicitor who is instructed by a client
to carry out a transaction that will confer a benefit on a third party owes a duty of care
towards the third party in carrying out that transaction, in that the third party is a person
within his direct contemplation as someone who is likely to be so closely and directly
affected by his acts or omissions that he can reasonably foresee that the third party is likely to
be injured by those acts or omissions. The case law also indicates the necessity for firms of
solicitors to keep detailed attendance notes.

Gran Gelato Ltd. v Richcliff (Group) Ltd.27 involved a solicitor's replies to preliminary
enquiries in a conveyancing transaction. It was therefore foreseeable that others would rely
on the answers given but the court held that there was no duty of care. A solicitor owes a
professional duty of care to the client and no-one else. He or she is subject to professional
rules and standards, and owes duties to the court as one of its officers.

Further, it has been held that a solicitor advising a client about a proposed dealing with his
property in his lifetime owes no duty of care to a prospective beneficiary under the client's
then will who may be prejudicially affected. In Clarke v Bruce Lance & Co.28, it was
recognised that solicitors may sometimes give advice which directly prejudices the interests
of others who have a relationship with the client so long as this advice is consistent with the
duty owed to the client.

25
[1979] 3 AER 580
26
[1932] AC 562
27
(1992) Ch 560
28
(1988) 1 WLR 881

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Since Watson v M’Ewan29, English law has allowed a public policy immunity to any witness,
including those who give evidence that is "false and injurious" or merely negligent.

This confirms the general principle that a witness does not owe a duty of care to anyone in
respect of the evidence given to the court. The only duty is to tell the truth. However, the
position in respect of expert witnesses was altered by the decision of the Supreme Court in
2011 in Jones v Kaney, which overruled Stanton v Callaghan. As before, an expert will be
liable to his client for advice which is tendered to and relied upon by the client under normal
principles. However, as a result of the decision, an expert who provides a report which is
adduced in evidence before a court no longer enjoys immunity from suit for claims for
negligence or breach of contract (although immunity in defamation remains).

In Hedley Byrne & Co Ltd v Heller & Partners Ltd the rule was established that irrespective
of contract, if someone who possesses a special skill undertakes to apply that skill for the
assistance of another person who relies upon that skill, a duty of care will arise. The fact that
the barrister did not enter into a contract with his solicitor or client ceased to be a ground of
justification for the immunity. Nevertheless, in a unanimous decision, Lord Reid said in
Rondel v Worsley (1969) 1 AC 191 at 227 that the ancient immunity should be continued on
considerations of "public policy [which are] not immutable." (see Roxburgh: 1968). In Saif
Ali v Sydney Smith Mitchell & Co. (1980) AC 198 the scope of the immunity was considered.
Lord Wilberforce said at 213 that "...barristers . . . have a special status, just as a trial has a
special character: some immunity is necessary in the public interest, even if, in some rare
cases, an individual may suffer loss." (see Hill: 1986) When s51 Supreme Court Act 1981
(substituted by s4 Courts and Legal Services Act 1990) introduced the power to make wasted
costs orders against legal practitioners, Ridehalgh v Horsefield (1994) Ch 205 ruled that
orders could be made against barristers personally. As to criminal trials, prosecuting counsel
owes no duty of care to a defendant: Elguzouli-Daf v Commissioner of Police of the
Metropolis (1995) QB 335. If a defendant is convicted after a full and fair trial, the remedy is
to appeal. An attempt to challenge the convictions by suing the defence advocate would be an
abuse of process: Hunter v Chief Constable of the West Midlands Police (1982) AC 529. If
any challenge is to be made following an unsuccessful appeal, the only legitimate avenue
would be the Criminal Cases Review Commission even though the body is under-resourced.

29
(1905) AC 480

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But the question remained as to whether a civil action might be maintained if the appeal was
successful (see Cane: 1996).

In Arthur J.S Hall and Co. v Simons (2000) 3 AER 673, the Lords re-evaluated the public
policy issues. The critical factor was the duty of a barrister to the court under ss27(2A) and
28(2A) Courts and Legal Services Act 1990 (inserted by s42 Access to Justice Act 1999).
The question was whether the immunity is needed to ensure that barristers will respect their
duty to the court. In 1967, the answer was that assertions of negligence would tend to erode
this duty and accorded a special status to barristers. Nowadays a comparison with other
professionals demonstrated that barristers' immunity against being sued in negligence was
anomalous. Allowing civil action was unlikely to produce a flood of claims and, even if some
claims did emerge, a claimant alleging that poor advocacy resulted in an unfavourable
outcome would face the very great difficulty of showing that a better standard of advocacy
would have resulted in a more favourable outcome. Unmeritorious and vexatious claims
against barristers are simply struck out. Thus, it was no longer in the public interest that the
immunity in favour of barristers should remain in either civil or criminal cases. This did not
imply that Rondel v Worsley was wrongly decided. But in today's world, that decision no
longer correctly reflected public policy. The basis of the immunity of barristers has gone.
And exactly the same reasoning is applied to solicitor advocates.

Witnesses

Since Watson v M’Ewan (1905) AC 480, English law has allowed a public policy immunity
to any witness, including those who give evidence that is "false and injurious" or merely
negligent. In Evans v London Hospital Medical College (1981) 1 WLR 184, Drake J. said
that, in criminal proceedings, the immunity covered, "the statement ...made for the purpose of
a possible action or prosecution and at a time when a possible action or prosecution is being
considered." He also thought the immunity extended to, "...acts of witnesses in collecting or
considering material on which he may be called to give evidence." In Stanton v Callaghan
(1999) 2 WLR 745, Chadwick LJ. said,

"It seems to me that the following propositions are supported by authority binding on
this court: (1) an expert witness who gives evidence at trial is immune from suit in
respect of anything which he says in court and that immunity will extend to the
contents of the report which he adopts as, or incorporates in, his evidence; (2) where

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 an expert witness gives evidence at a trial the immunity which he would enjoy in
respect of that evidence is not to be circumnavigated by a suit based on the report
itself and (3) the immunity does not extend to protect an expert who has been retained
to advise as to the merits of a party’s claim in litigation from a suit by the party by
whom he has been retained in respect of that advice, notwithstanding that it was in
contemplation at the time when the advice was given that the expert would be a
witness at the trial if that litigation were to proceed."

In Arthur JS Hall v Simons, Lord Hoffmann justified the policy in that without the immunity,
witnesses "...would be more reluctant to assist the court". In Darker and others v Chief
Constable of West Midlands Police (2000) 3 WLR 747, the claimant alleged that police
officers had conspired with an informant to forge and manipulate records of evidence. Lord
Clyde confirmed the immunity for the preparation of a report to be used in court. He said:

"In drawing the line in any particular case it may be necessary to study precisely what
was being done and how closely it was linked with the proceedings in court.... The
reason for admitting to the benefit of the immunity things said or done without the
walls of the court is to prevent any collateral attack on the witness and circumvent the
immunity he or she may enjoy within the court."

This confirms the general principle that a witness does not owe a duty of care to anyone in
respect of the evidence given to the court. The only duty is to tell the truth. In Part 35.3 Civil
Procedure Rules, the expert’s duty is to help the court and this duty "overrides" any
obligation there might be to the client or the person who instructs and/or pays him or her.

However, the position in respect of expert witnesses was altered by the decision of the
Supreme Court in 2011 in Jones v Kaney, which overruled Stanton v Callaghan. As before,
an expert will be liable to his client for advice which is tendered to and relied upon by the
client under normal principles. However, as a result of the decision, an expert who provides a
report which is adduced in evidence before a court no longer enjoys immunity from suit for
claims for negligence or breach of contract (although immunity in defamation remains)

Professional negligence is defined as meaning breach of a duty of care or of a contractual

obligation in the performance of professional work or in the provision of professional
services for example, persons who hold themselves out to be professionals, such as solicitors,

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accountants, financial advisors/planners, doctors, engineers, have a duty under the law to
exercise proper care and skill when providing services to their clients.

The Tort of professional negligence comprises a subset of the general rules of negligence.
The general situation covered by professional negligence is a situation in which the
Defendant has represented himself or herself as having more than average skills and abilities.
By virtue of the services, which they offer and supply, professional people hold themselves
out as having more than average abilities.

Generally speaking the occupations regarded as professions have four particular

characteristics:

a) The work or service is skilled and specialised;

b) The practitioner is expected to provide a high standard of service and is expected to be
particularly concerned about the duty of confidentiality;
c) Practitioners usually belong to a professional association which regulates admission and
seeks to uphold the standards of the profession;
d) The practitioner holds a high status in the community.

The definition of “profession” was stated in one case to be as follows:-

“a “profession” in the present use of language involves the idea of an occupation requiring
either purely intellectual skill, or of manual skill controlled, as in painting and sculpture, or
surgery, by the intellect of the operator as distinguished from an occupation which is
substantially the production or sale or arrangements for the production or sale of
commodities. The line of demarcation may vary from time to time. The word “profession”
used to be confined to the three learned professions, the church, medicine and law. It has
now, I think, a wider meaning”.

There is no doubt but that since that time the law of professional negligence has developed to
include as part of the meaning of the term “profession” many more than simply doctors,
lawyers and religious. The law relating to professional negligence has been developed to
include the likes of architects, engineers, quantity surveyors, insurance brokers and
accountants, amongst other professions.

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Relationship between Contract and Tort

In principle, liability in Tort runs in parallel to liability in contract. Subject to the normal
rules of privity of contract, a person 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, in the absence of any expressed term, it is implied that the service will be
performed with reasonable skill and care.

In contract law, there is a contract between the professional and his client, whereby the
professional agrees to deliver service and the client agrees to pay a specified, or,
alternatively, a reasonable fee. There is generally implied by law a term that the professional
person will exercise reasonable skill and care. In addition there may be other fundamental
terms which form part of the contract between a professional, and, his client. For example, if
a consulting engineer is instructed to produce a report on property, there is an express, or,
implied obligation to inspect the property. This is in addition to the implied obligation to
exercise reasonable skill, and, care.

It is indeed uncommon that a professional will provide a service subject to a strict set of
terms, and, conditions, which create contractual obligations on his, or, her part. The
professional is normally engaged to achieve a particular result, or, to render a certain service.
However, in any event in the absence of any express terms to the contrary, there is implied by
law a term that the professional will carry these activities with reasonable skill and care.

It is common, in a, case that a plaintiff may have a cause of action in contract, and, in tort
against a professional. However, the quantum of damages is limited to the actual loss
suffered, and, does not increase merely by virtue of the fact that there is a liability in contract,
and, in tort to the plaintiff.

Some incidents of legal liability vary according to whether the Plaintiffs claim is based on a
breach of Contract, or, based upon a Tort. There is a distinction to be drawn between the
Damages recoverable in Contract, and, in Tort. In cases for Damages in Contract, the primary
objective is to place the innocent, and, injured party in the position in which he, or, she would
have been, had the Contract been performed in full. However, the function of compensation
in Tort is to place the injured party in the position in which the party would have been if the
Tort had not been committed at all.

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It is quite often the case that there is a concurrence of actions in Contract and in Tort. It is no
doubt the case, that the existence of a Contract is important for the purposes of deciding
whether to impose a Duty of Care in Negligence.

A very good assessment of how the Courts will deal with the issue of damages, where there is
in concurrence of causes of action, was made by Mr Justice Clarke in the case of Edmund
Kelleher and Joan Kelleher –v- Don O’Connor practising under the style and title of Don
O’Connor & Company.

Judge Clarke stated that when assessing damages that it was “important to start with a
fundamental proposition that, in almost all cases, the principal function of the award of
damages is to seek to put the party concerned back into the position in which they would
have been had the relevant wrongdoing not occurred”. In that decision Mr Justice Clarke
indicated that in the case of a tort, the Court had to attempt to put the plaintiff back into the
position in which the plaintiff would have been had the tort not occurred at all. In those
circumstances it is the pre-incident position that the Court must look at as a starting point.
However, where a claim is for breach of contract, it is the failure of a party to comply with
contractual obligations that is assessed. Mr Justice Clarke went on to say that it was necessary
to analyse the contractual obligations, which have been breached, before going on to
ascertain the proper approach to the calculation of damages

Mr Justice Clarke went on to say:-“while it is true to say that a solicitor can be sued in breach
of contract or in negligence, it does not seem to me that it is likely, at least in the majority of
cases, that there will be any practical difference between the approach to damages in either
case. If the proper conduct of the conveyancing transaction by the solicitor concerned ought
to have lead the relevant client not to go ahead with the transaction at all, then the proper
approach of the Court to the assessment of damages in such a case is to look what would have
happened had there been no completed transaction”.

Liability in Tort

In simple terms, the Tort of Negligence is achieved when three conditions are satisfied;-

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a) A Duty of Care is established between the Defendant and the Plaintiff

b) The Defendant has acted, or, omitted to act, or , spoken in such a way as to contravene that
Duty of Care, and;

c) The Plaintiff has suffered Damage as a consequence of the Breach.

The law of Negligence has developed at pace since the Decision of the House of Lords, in
Donoghue ~ V ~ Stevenson .

The formulation of the Duty of Care in Tort which is now generally accepted is as that stated
in Anns ~ V ~ Merton London Borough Council as follows;-

“.... the question has to be approached in two stages. First one has to ask whether, as between
the alleged wrongdoer, and, the person who has suffered damage, there is a sufficient
relationship of proximity, or, neighbourhood, such that, in the reasonable contemplation of
the former, carelessness on his part may be likely to cause damage to the latter – in which
case a prima facie Duty of Care arises. Secondly, if the first question is answered
affirmatively, it is necessary to consider whether there are any considerations which ought to
negative or to reduce or limit the scope of the duty or the class of person to whom it is owed,
or, the damages to which a breach of it may give rise.”

Professionals are human beings and make mistakes. Even the most experienced professionals
make mistakes. The consequences can be disastrous for the client. Professionals providing
services will be judged by the standard of those claiming to have that same set of skills and
abilities.

A client places “reasonable reliance” on the skills of the professional.

In the case of Hedley Byrne & Co. Ltd ~ V ~ Heller & Partners Ltd , the Court held as
follows;-

“Where a person is so placed that others could reasonably rely upon his judgement, or, his
skill, or, upon his ability to make careful enquiry, and, a person takes it upon himself to give
information or advice to, or, allows this information or advice to be passed on to, another

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person who, as he knows or should know, will place reliance upon it, then a Duty of Care will
arise.”

There is no doubt, but, the law in relation to Professional Negligence has been substantially
extended, to include cases where the professional has been held to owe a Duty of Care to an
increasingly wide range of persons, who are not his or her clients.

Definition Of Professional

According to Rupert M Jackson and John L Powell, the occupations that are regarded as
professional have four characteristics, viz

(a) the nature of the work which is skilled and specialized and a substantial part is mental
rather than manual ;

(b) commitment to moral principles which go beyond the general duty of honesty and a wider
duty to community which may transcend the duty to a particular client or patient;

(c) professional association which regulates admission and seeks to uphold the standards of
profession, through professional codes on matters of conduct and ethics; and

(d) high status in the community.

The learned authors have stated that during the 20th century, an increasing number of
occupation have been seeking and achieving professional status and that this led inevitably to
some blurring of the features which traditionally distinguish the profession from other
occupation. In the context of the law relating to professional negligence ,the learned authors
have accorded professional status to seven specific occupation,namely

(1) architects, engineers and quality surveyors,

(2) accountants

(3)solicitors

(4)barristers

(5) medical practitioners

(6 )insurance brokers.

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The Supreme Court in Ram Bihari Lal v JN Shrivastava ruled that a professional negligence
against a medical man was serious. It stood on a different footing to a charge of negligence
against the driver of a motorcar. The consequences were far more serious. It affected his
professional status and reputation. The burden of proof was correspondingly greater. As the
charge was so grave, so should the proof be clear. With the best will in world, things
sometimes go amiss in surgical operations or medical treatment. A doctor was not to be held
negligent simply because something went wrong. He was not liable for mischance or
misadventure; or for an error of judgment. He was not liable for taking one choice out of two
or for favoring one school rather than another He was only liable when he fell below the
standard of a reasonably competent practitioner in his field so much that his conduct might
be deserving of censure or be inexusable.

Professional Malpractice

Generally, when someone mentions a malpractice claim, medical care providers immediately
come to mind. Yet all professionals make mistakes that can cause injuries or financial loss.
Professionals have a legal and ethical duty to act in their clients' best interests and to apply
their education and training in a competent fashion toward that end.

A professional malpractice claim is any type of claim where a professional has caused harm.
The personal injury lawyers at SUGARMAN have successfully represented clients in cases of
malpractice by all types of professionals, including professionals involved in building and
construction such as architects and engineers; professionals providing financial and legal
services and advice such as accountants and attorneys; and counseling professionals such as
social workers, mental health workers and psychologists.

When you hire professionals, either personally or for your business, you rely on their advice
and expect integrity. In situations where a lawyer, accountant, architect, engineer, or other
type of professional violates your trust and causes harm, you may have a right to recover. In
order to bring a successful malpractice claim against a professional, you and your lawyer
must prove that the professional violated the standards of his or her profession, and that the
violation directly caused harm.

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The complexity and expense of professional negligence cases cannot be overstated. Proving
that a professional failed to follow the industry standards requires attorneys who have an
extensive understanding of the applicable codes, regulations, guidelines, ethical rules,
certification and licensing requirements. In addition, Massachusetts has specific statutes that
apply to liability or malpractice claims against medical and accounting professionals. In order
to successfully bring a professional malpractice case in Massachusetts, you need an
experienced lawyer with the knowledge, skill and resources to handle such a complicated
case.

The injury lawyers at SUGARMAN understand the complexity of these types of cases and
have a proven record of helping people physically, emotionally and financially harmed by
negligent professionals. Examples of SUGARMAN's success include: recovering for
personal injuries caused by an engineering firm's malpractice, which resulted in a wall
collapse at a construction site; recovering against an attorney's failure to file a claim within
the applicable statute of limitations; recovering for emotional harm caused by the sexual
abuse of a client by a mental health professional; and recovering for a financial loss caused
by an accountant's negligent advice.

If you believe that the actions of a professional have fallen below the standard of care
required, contact SUGARMAN for a thorough and candid discussion with one of our partners
about the legal options Professional Negligence

In relation to professional negligence the concept of the reasonable man becomes that of the
reasonable professional. The reasonable man will normally lack the skill and expertise
acquired by the professional. These professional men and women are not only required to
take reasonable care but also to measure up to the standard of competency that can be
expected from such professionals-that is the standard of, for example the reasonable nurse or
the reasonable solicitor.
The Irish Supreme Court considered the issue of Medical Negligence in The case of Dunne v.
The National Maternity Hospital {1989} IR 91 and set out the standard of care in what we
call professional negligence. In this case the plaintiff sued the hospital, claiming that he had
suffered severe brain damage while being delivered, due to the negligence of the attending
doctors. The Chief Justice set out the standard of care required from medical doctors (and

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equally other professionals) as :
“The true test for establishing negligence in the diagnosis or treatment on the part of a
medical practitioner is whether he has been proved to be guilty of such failure as no medical
practitioner of equal specialist or general status and skill would be guilty of if acting with
ordinary care” .

Thus the courts rely on what is reasonable among the profession. In determining what is
reasonable for a nurse in any circumstances the courts will consider whether the nurse acted
in accordance with general
and accepted practice. Generally if they have acted in accordance with general and accepted
practice then the nurse will not be negligent.
In the Dunne case the Chief justice as expressed this
“If an allegation of negligence against a medical practitioner is based on proof that he
deviated from a general and accepted practice, that will not establish negligence unless it is
also proved that the course he did take was one which no medical practitioner of like
specialisation.

Profession v occupation

The Court dealt with how profession differs from an ‘occupation’ especially in the context of
performances of duties and hence the occurrence of negligence. In the matter of professional
liability professions differ from occupations fro the reason that professions operate in spheres
where success cannot be achieved in every case and very often success or failure depends
upon factors beyond the professional man’s control. A case of occupational negligence is
different from one of professional negligence. And therefore the Bench agreed with the
principles of law laid down in Dr. Suresh Gupta’s case and affirmed the same. However,
there is no absolute immunity against criminal prosecution and therefore if need arises
following guidelines are to be followed. Guidelines However the Bench felt the need of
guidelines as regard to prosecution of medical professionals because the investigating officer
and the private complainant cannot always be supposed to have knowledge of medical
science so as to determine whether the act of the accused medical professional amounts to
rash or negligent act within the domain of criminal law under section 304 A IPC. Till such
guidelines are prepared by the Central Govt, State Govts. in consultation with Medical
Council of India the Bench proposed the following guideline

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i) A private complaint may not be entertained unless the complainant has produced prima
facie evidence before the Court in the form of a credible opinion given by another competent
doctor to support the charge of rashness or negligence on the part of the accused doctor.

ii) The investigating officer should, before proceeding against the doctor accused of rash or
negligent act or omission, obtain an independent and competent medical opinion preferably
from a doctor in government service qualified in that branch of medical practice who can
normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the
facts collected in the investigations.

iii) A doctor accused of rashness or negligence, may not be arrested in a routine manner.

In my opinion beyond this judgment also, it is better for patient himself if at all he has to sue
the doctor he should choose civil suit rather than the criminal one. I put forth arguments in
favour of my statement.

Some desperate authors want to say that India’s criminal justice system does not deliver
justice at all. 3 It has been repeatedly seen in India, from Bhopal gas tragedy to Uphar
Cinema fire case or in cases of fire in school in Tamilnadu or fall of bridge in Daman that
criminal law has failed to deliver justice. In these cases the culprits were few and the victims
were multiple; as against this in a case of patient - physician relationship commonly it one
physician (culprit) one victim or in reverse more physicians (culprits) and one victim.

Physician takes up the patient and does his work in good faith and patient takes that inherent
risk of something may go wrong. It is impossible to demarcate where a judgment error
becomes gross negligence. It is difficult to hold a professional criminally liable for a
judgment made in good faith. Say a lawyer does a bad job defending some accused of murder
and the client hangs. No matter how bad is his defence, as long as he acted in good faith, can
you hold him criminally liable? It’s the same with physicians. Still further the situation with
physicians is unique. The truth is that the medical profession indeed requires a certain degree
of guesswork. It is also this ability for guesswork that makes the physician invaluable. When
it works the physician seems like a miracle man. When it doesn’t, it is hard for those affected
to accept that it was possible to make a mistake. And if that mistake- inadvertent as it may be
– leads to death, it becomes near impossible to come to terms with it.

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 PROFESSIONAL AND INDUSTRY STANDARDS

The proposition that the defendant must have failed to behave reasonably in the
circumstances means that a passer-by who renders emergency first aid after an accident is not
required to show the skill of a qualified surgeon30 amd when the driver of a car suddenly
collapsed the incompetent best efforts of the non-driver passenger to bring the vehicle to a
halt didn’t amount to negligence. 31
Perhaps less obviously, a householder who does some
small jobs or replacement about his house is not required to show the skill which might be
required of a professional carpenter working for reward- he need only do his work with the
skill of a reasonably competent carpenter doing the work in question. Where, however,
anyone practices a profession or is engaged in a transaction in which he holds himself out as
having professional skill, the law expects him to show the amount of competence associated
with the proper discharge of duties of that profession, trade or calling, and if he falls short of
that and injures someone in consequence, he is not behaving reasonably. 32 Thus where a
brewing company owned a ship which was regularly used for the carriage of their stout from
Dublin to Liverpool and Manchester, it was held that the board of directors of the company
must exercise the same degree of care and skill in the management of the ship as would any

“The law must apply a standard which is not relaxed to cater for their factual ignorance of
all activities outside brewing: having become owners of ships, they must behave as
reasonably shipowners.”33

The rule imperitia culpae adnumeratur (inexperience is counted as fault) is just as true in
English law as in Roman law.

The objective standard therefore appears to make no allowance for the fact that everyone
must learn to some extent by practical experience of the job, a point which was pressed upon
the Court of appeal in Wilsher v Essex Area Health Authority, where one of the doctor
defendants was junior and of the limited experience.

30
Ali v Furness, Withy (1988) 2 Lloyd’s Rep. 1.
31
Phillips v John, Unreported, CA, July 11, 1996.
32
Pickeersgill v Riley (2004) UKPC 14
33
P. 294 at 350 per winn L.J.

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“When the court finds a clearly established practice ‘in like circumstances’ the practice
weighs heavily in the scale on the side of the defendant and the burden of establishing
negligence, which the plaintiff has to discharge, is a heavy one”. 34

34
Morris v West Hartlepool Steam Navigation Co Ltd (1956) A.C. 552

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