Professional Negligence Flashcards
Who are professionals?
(Mangan)
Lawyers and doctors traditionally
Socially constructed - many people identify themselves as professionals
Generally desirable to extend to independent workers, with a degree e.g. Accountants. Also where relationship of mutual trust and confidence between client and pro.
Teachers? Not same mt&c relationship but fairly independent workers, have degree
Is it necessary for there to be a contractual relationship between the professional and person raising the action?
Historically yes. But now, you can be liable to someone who is not your client if you make a fraudulent representation / this party relied on you to act and you assumed responsibility for example disappointed beneficiaries. (White v Jones)
Reliance required in giving advice cases.
How do we identify if the parties are sufficiently proximate?
Assumption of Responsibility
Reliance (if giving advice)
What is the standard for a doctor?
Doctor is not guilty is he has acted in accordance with the practice accepted as proper by responsible body of medical men skilled in that treatment and doesn’t matter if some disagree (Bolam)
Alternative test in Hunter v Hanley?
Where the circumstances are not simple “such failure is no doctor of ordinary skill would be guilty of, if acting with ordinary care”
What does ‘holding out’ mean?
Where a ‘professional’ holds themselves out as such, they are subject to the standard of the ordinary competent person of their profession.
E.g. Fake Dental practice held out to standards of actual dental practice
Higher standard? If you hold yourself out as having a higher skill than normally expected of the profession, subject to higher standard (Mortgage co v Mitchell’s Robertson)
Is there a duty to win the case or provide a miracle cure?
A contract with a professional does not guarantee success, rather they will do the best to their professional ability.
Should professionals be granted protection from liability? Auditors article by Psaraki
Yes
- difficult jobs, different accounting system for each company
- huge risk of litigation, potentially career ending
No
- economic implications from negligent audit can be huge
- want to maintain high standard of care and encourage professionally prepared audit, lowering standard would reduce quality of audit
What is the current protection available for professionals?
Professional indemnity insurance
CA - statutory power for court to consider whether acted honestly and reasonably
Liability can be excluded by court where contributory negligence, causation etc.
Abolition of professional negligence and replacement with no fault scheme?
Yes
- easier to succeed, less hoops to jump through
- settling outside court = less painful, less need for legal advice etc
- less admin costs
- underclaiming is a huge problem
No
- expensive to meet all legal claims
- because claims go up, less for each person, unfair
- no deterrent function, won’t necessarily influence behaviour if no comeback for professional who caused issue
Bolam v Friern Barnet Hospital Committee
Electro-convulsive therapy, not given relaxant drug. Not liable.
Doctor not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that form of treatment, nor if some would disagree with him.
Bolitho v City and Hackney Health Authority
Child suffered catastrophic brain damage when respiratory failure resulted in cardiac arrest.
P’s doctor had not seen her but even if she had, would not have performed intubation req’d to save life and evidence that it would not have been negligent in this failure.
Bolam of central importance. Not liable. Medicals could point to risks & benefits of treatment or lack of.
Edward Wong Finance v Johnson
Solicitors followed uniform practice among profession in Hong Kong. Paid price to venders but didn’t check no encumbrances. Buyer lost out.
Although evidence that this was practice of the profession went a long way, no excuse that the approach was widespread if it was wholly illogical!
Why do we impose a higher standard for professionals?
Paid for their services (v highly)
Specially trained and skilled
Hold themselves out as having particular skills
Ordinary reasonable man standard for doing complex, specialised tasks would be pretty bad, makes no sense to hold them to this level
NM v Lanarkshire Health Board
Diabetic mother gave birth to child with disabilities after shoulder dystopia occurred. She told ductus get concerns about vaginal delivery.
Bolam test applicable. In absence of specific enquiry as to risks, C had not failed in the advice given and as a matter of professional responsibility, C was not required to spell out this very small risk.
M’s anxieties had not been enough to bring into play a specific duty to warn about should dystopia. ‘Specific questioning will call for a full and truthful answer, since the scope of the doctor’s duty will be evident from the questions posed NOT general anxieties.’
Causation issues, unlikely to get a caesarean if given option.
