Professional Negligence Flashcards
Briefly define ‘professional negligence’.
“Professional negligence is a breach of the duty of care between professionals and their clients.”
The legal obligation known as ‘a duty of care’ is derived from Judge-made law.
(a) Name the case that this principle came from.
(b) Explain in your own words what a ‘duty of care’ is.
(a) Donoghue v. Stevenson (1932)
“The rule that you love your neighbour becomes in law, you must not injure your neighbour … You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
(b) A ‘duty of care’ is where the client expects a level of professionalism and standards commonly held by those in the profession.
‘a legal obligation imposed on an individual requiring that they adhere to a reasonable standard of care while performing any acts that could foreseeably harm others.’
Describe the similarities between the legal concepts of ‘negligence’ and ‘duty of care’.
In cases of professional negligence, a different test is used in respect of skilled defendants such as doctors and engineers.
(a) What is name of this test?
(b) Set out this test and explain how it applies to engineers.
(a) Bolam Test
In the case of skilled defendants, where the defendant has represented themselves as having more than average skills and abilities, the standards they use must be in accordance with a responsible body of opinion, even if others differ in opinion.
(b) To use the reasonable care and skill of such persons of ordinary competence, measured by the professional standard of the time.
Duty lies in contract & tort.
Contract - duty arises from agreement between the parties. Implied term that the professional will exercise reasonable care and skill in rendering their services, in respect of which the client will pay a fee.
Tort (Negligence) - independent of the agreement and is imposed on the parties by law. Extends widely to third parties.
Damage or injury does not always include physical injury. Summarise what else it can include.
- Loss of reputation
- Purely economic (in limited circumstances)
e.g. Surveyor negligently surveyed house –> Cost of remedying defects & expense to Plaintiff of moving out of house while work being done
The ‘neighbour principle’ states that:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
Name the case where this principle was established.
Donoghue v. Stevenson (1932)
List the four elements which must be proved before you can establish a case for negligence.
- Duty of Care
- Breach of Duty of Care
- Injury or Damage caused
- Injury was Reasonably foreseeable
Hedley Byrne v. Heller & Partners Ltd. was an important case involving the giving of advice in the absence of a contract. Evaluate how this case applies to Engineers and what Engineers need to be careful of.
Purely economic loss not arising from a contractual relationship.
A duty of care exists where the Plaintiff relies on the Defendant’s skill or judgement (and the Defendant knows this) and it reasonable for the Plaintiff to do so.
“a duty to take reasonable care in making statements existed, wherever a special relationship had been created and there had been no disclaimer of responsibility.”
Explain the main point from the case ‘Bourhill v. Young’ (1943).
Foreseeability, a.k.a. ‘Causation’
“In considering whether a person owes to another a duty, a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man.”
Must be a direct link between the defendant’s negligence and the Claimant’s loss and damage.
You are asked to give engineering advice to a friend who is restoring a vintage car. They will rely on your advice for mechanical aspects of the restoration.
(a) Explain why you have to be careful giving advice of this nature.
(b) State the name of the case that this principle comes from.
(c) If something mechanical goes wrong with the car and there is damage caused, what measure of damages would you be responsible for if your friend sues you?
(a) Special duty of care due to professional skill. The friend is relying on our skill/judgement. There is a duty of care where the friend relies on our skill or judgement (and we know this) and it is reasonable of the friend to do so.
(b) Hedley Byrne v. Heller & Partners Ltd. (1964)
(c)
