Professional Negligence in English Law - Discussion

Discussion

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 pages.