Week 20: Professional Negligence

Question 1

What is professional negligence?

Answer 1

Professional negligence is when someone with specialised skill or training (like a doctor, solicitor, or tradesperson) fails to meet the standard of care expected in their profession, causing harm.

Question 2

In which kinds of roles can professional negligence arise?

Answer 2

Professional negligence can arise in roles that involve specific expertise, such as tradespeople, solicitors, doctors, and other skilled professionals.

Question 3

What test did Caparo v Dickman [1990] establish for duty of care in negligence?

Answer 3

Caparo established the three-stage test: (1) Was the harm reasonably foreseeable? (2) Was there a relationship of proximity? (3) Is it fair, just, and reasonable to impose a duty?

Question 4

How does the Caparo test differ from earlier tests like in Donoghue v Stevenson and Anns?

Answer 4

Unlike Anns, which assumed a duty unless excluded, Caparo requires proof of all three elements—foreseeability, proximity, and fairness—before a duty of care is found.

Question 5

Why has the Caparo test been criticised in professional negligence cases?

Answer 5

The Caparo test has been criticised for overcomplicating the simple “neighbour principle” in Donoghue v Stevenson and for being inconsistently applied in later cases.

Question 6

How is the duty of care shaped in professional negligence cases?

Answer 6

In professional negligence, the duty of care is shaped by the nature of the profession and the level of expertise reasonably expected in that field.

Question 7

How is the standard of care assessed in professional negligence?

Answer 7

The standard is based on what a reasonably competent professional in the same field would have done, considering their knowledge, skill, and experience.

Question 8

How is the duty of care approached in professional negligence cases?

Answer 8

The duty of care is approached like in general negligence, but the standard of care differs because it reflects the skill of the professional.

Question 9

What determines a breach of duty in professional negligence cases?

Answer 9

Breach is determined by comparing the professional’s actions to what is expected of a reasonably competent person in the same profession.

Question 10

Why isn’t a professional held to the standard of an ordinary person in negligence claims?

Answer 10

Because professionals use specialised skills, like an electrician or doctor, they are judged by the standards of their profession—not by the standard of an average person.

Question 11

How important is usual practice in determining the professional standard of care?

Answer 11

Usual practice is relevant but not always decisive—just following common practice doesn’t automatically mean the standard was met if the practice itself is flawed.

Question 12

What was the issue in Hunter v Hanley [1955]?

Answer 12

In Hunter v Hanley, the claimant alleged medical negligence after a doctor used a needle that was allegedly unsuitable for treatment.

Question 13

What test did Lord Clyde set out in Hunter v Hanley for proving professional negligence?

Answer 13

Lord Clyde stated that the pursuer must show: (1) there is a usual practice, (2) the defender failed to follow it, and (3) no competent professional would have acted as the defender did if using ordinary care.

Question 14

What is the key principle from Hunter v Hanley in determining a breach of professional duty?

Answer 14

The key principle is that deviation from accepted professional practice only amounts to negligence if no reasonable professional would have acted that way.

Question 15

How does Bolam v Friern Hospital [1957] help explain the standard in Hunter v Hanley?

Answer 15

Bolam reinforces Hunter v Hanley by stating that a professional is not negligent if they acted in accordance with a practice accepted by a responsible body of professionals with the same skill.

Question 16

According to Bolam, what level of skill must a professional demonstrate?

Answer 16

Under Bolam, it is enough for a professional to exercise the ordinary skill of a competent practitioner in that field—they need not have the highest level of expertise.

Question 17

Why is the flexible standard of care in professional negligence seen as helpful to professionals?

Answer 17

The flexible standard allows for professional judgment and can support innovation, as recognised in Hunter v Hanley [1955].

Question 18

What difficulty does the flexible standard create for pursuers in negligence cases?

Answer 18

It makes it harder to prove negligence because even if some experts support the claimant’s view, the existence of a reasonable opposing body of opinion can defeat the claim.

Question 19

What happened in Gordon v Wilson [1992] and what challenge did it highlight for the pursuer?

Answer 19

In Gordon v Wilson, the pursuer claimed a delayed referral was negligent, but since expert opinions were split, the court could not prefer one view over another—highlighting the challenge of conflicting medical opinions.

Question 20

What does Honisz v Lothian Health Board [2006] say about choosing between expert opinions?

Answer 20

Honisz confirms that negligence cannot be established just by preferring one expert opinion over another when both are reasonable.

Question 21

What key principle from Bolam supports professionals in such disputes?

Answer 21

Bolam states that a professional is not negligent if their actions align with a responsible body of opinion in the profession, even if other professionals disagree.

Question 22

Does a lack of experience lower the standard of care expected in professional negligence?

Answer 22

No—Wilsher v Essex AHA [1987] confirms that even an inexperienced professional (e.g., a junior doctor) is held to the standard of a reasonably competent professional in that role.

Question 23

What does Wilsher v Essex Area Health Authority [1987] tell us about inexperience in medical negligence?

Answer 23

In Wilsher, the court held that inexperience is no defence—junior doctors must meet the same standard as more experienced colleagues in their position.

Question 24

Is a professional expected to show exceptional skill in negligence cases?

Answer 24

No—Bolam and R v Bateman state that a professional must only demonstrate the ordinary skill of a competent practitioner in their field, not exceptional expertise.

Question 25

What distinction does the law make between inexperience and specialism in professional negligence?

Answer 25

While inexperience doesn't reduce the standard, specialists may be held to a higher standard relevant to their expertise (Sidaway v Bethlem Hospital).

Question 26

What issue was central in Sidaway v Bethlem Royal Hospital [1985]?

Answer 26

Sidaway focused on whether a doctor was negligent in failing to disclose treatment risks; the court held the duty to disclose is governed by the Bolam test and professional judgment.

Question 27

How do contract and delict interact in professional relationships?

Answer 27

Many professional duties arise through contracts, but they can also give rise to separate duties under delict (negligence), which may or may not overlap.

Question 27

What did Sidaway establish about informed consent in medical treatment?

Answer 27

It established that doctors have a duty to warn patients of risks, but whether that duty was breached depends on whether the non-disclosure aligns with accepted medical practice under Bolam.

Question 27

Are contractual obligations always the same as delictual (negligence) duties?

Answer 27

No—contracts can impose extra duties beyond reasonable care, and a breach of these will be a breach of contract, not necessarily negligence.

Question 28

What does Edgar v Lamont [1914] illustrate about suing for professional negligence?

Answer 28

Edgar v Lamont shows that a client can bring a delictual action for damages caused by a professional’s negligence, even where there is a contract.

Question 29

Can a pursuer base an action on both delict and breach of contract?

Answer 29

Yes—JG Martin Plant Hire Ltd v Macdonald [1996] confirms that a pursuer may sue under both delict and contract where a professional relationship exists.

Question 30

Can professionals exclude liability for negligence through contract terms?

Answer 30

No—under the Unfair Contract Terms Act 1977, liability for personal injury or death due to negligence cannot be excluded, and other exclusions must be fair and reasonable.

Question 31

What role does the Unfair Contract Terms Act 1977 play in professional negligence cases?

Answer 31

The Act prevents professionals from excluding or limiting liability for negligence resulting in injury or death, and restricts other exclusions to what is fair and reasonable.

Question 32

Can a person be liable for giving negligent advice even if there’s no contract?

Answer 32

Yes—Hedley Byrne v Heller [1964] established that a duty of care can arise in giving advice, even without a contract, if reliance and assumption of responsibility are shown.

Question 33

What key principle was established in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964]?

Answer 33

Hedley Byrne confirmed that negligent misstatements can give rise to liability in tort/delict, even for pure economic loss and without physical damage.

Question 34

What must a pursuer show to succeed in a negligent misstatement case without a contract?

Answer 34

They must show (1) reliance on the advice, (2) that the defender knew or ought to have known of this reliance, and (3) that the defender assumed responsibility for the statement.

Question 35

What is required to establish proximity in negligent advice cases?

Answer 35

There must be a close relationship involving reliance and an assumption of responsibility by the advisor, as seen in Hedley Byrne.

Question 36

Is foreseeability alone enough to establish liability for a negligent statement?

Answer 36

No—Hedley Byrne requires more than foreseeability; the defender must know, or ought to know, the pursuer will rely on the advice.

Question 37

What does Galoo Ltd v Bright Graham Murray [1994] say about relying on financial statements?

Answer 37

Galoo held that a duty arises only if the advisor (e.g., auditor) was expressly aware that a specific third party would rely on their statements, without making independent inquiries.

Question 38

In negligent misstatement, what must the pursuer show about their reliance?

Answer 38

The pursuer must show they directly relied on the defender’s statement and that the defender knew or should have known about that reliance.

Question 39

What issue of proximity was raised in Goodwill v British Pregnancy Advisory Service [1996]?

Answer 39

Goodwill showed that a third party (a sexual partner of a patient) may not be sufficiently proximate to the medical provider to owe a duty of care for negligent advice given to the patient.

Question 40

How is proximity tested in reliance-based cases like Goodwill and McFarlane v Tayside Health Board [2000]?

Answer 40

The courts look at how directly the defender’s statement was made to or about the pursuer, and whether the pursuer was in the contemplation of the defender.

Question 41

Why did the Supreme Court in Steel v NRAM [2018] find that the solicitor did not owe the lender a duty of care?

Answer 41

The court held that the solicitor (S) did not owe NRAM a duty of care because there was no assumption of responsibility for the lender’s reliance on the solicitor’s misstatement.

Question 42

How does Henderson v Merrett Syndicates Ltd [1995] expand on Hedley Byrne regarding assumption of responsibility?

Answer 42

Henderson v Merrett extends the Hedley Byrne principle to not just statements, but also to services, where the defendant assumes responsibility for the conduct of the claimant's affairs, such as financial management.

Question 43

What does the Hedley Byrne principle say about responsibility for services?

Answer 43

The principle suggests that when a claimant entrusts a defendant with the conduct of their affairs, they rely on the defendant to exercise due care and skill in managing those affairs.

Question 44

What kind of reliance does Hedley Byrne cover?

Answer 44

Hedley Byrne covers reliance not only on statements but also on the assumption of responsibility for the provision of services, such as managing financial or professional affairs.