Professional Negligence I
Overview
Professional negligence is negligence in the course of a professional service or advice. Professional services may include medical, legal, accounting and similar services.
Traditionally, professions were regarded as services which involved so-called intellectual work, typically carrying ethical duties to the client and the community, accompanied by social status. It is also said to include manual work where the intellectual element predominated.
The general principles of negligence apply to professional negligence. Professional negligence commonly involves negligent misstatement causing pure economic loss. It may involve the negligent provision of a service.
Unlike the case with breach of contract, third parties who are intended beneficiaries or for whose benefits the services are provided (such as beneficiaries under a will) may be able to sue the service provider for professional negligence.
It is a matter for the judge to determine, based on the evidence offered, whether the respondent’s approach, advice etc., in the circumstances, met the standard of conduct of a professional of like specialisation and skill to that professed by the defendant.
Contract and Tort
Professionals usually owe contractual duties to their clients. There will frequently be a contract providing for and regulating the delivery of the service.
At one stage, the presence of contractual duties was interpreted as excluding the possibility of liability in tort for negligence. However, modern cases have established that professionals may be liable to their clients both for negligence and breach of contract.
In some cases, the plaintiff may be able to recover under both contract and tort. Tort/negligence allows more extensive damages because its rule on remoteness is less restrictive. The contract may limit or delimit the tort/negligence do.
Standard
The standard of care/ duty imposed is that expected from a reasonably careful member of the profession concerned. The courts consider the general custom and practices in the business or profession in determining whether there has been a breach of duty. However, if a practice is followed which has obvious flaws and dangers, the defendant may be nonetheless liable.
Existing professional practice is central. Generally, if the respondent proves that he has complied with the standard of practice that is customary within a reasonable range of approaches, options, advice or methods of execution that a member of his profession would undertake, he will usually be relieved of liability for negligence.
If a person holds himself out as having a particular professional qualification or competence, he will be held to the standards and skills of a person in that position, even if he does not hold the requisite qualifications or possess the relevant competence and experience.
The standard required in giving advice is that of a reasonable and competent professional in the area concerned. Where the area of practice is clear, it would be negligent to give incorrect advice. Where the area is difficult and less clear, it may be sufficient to give reasonable advice.
Advice and action are not negligent, even if it later turns out to be incorrect, where it is within the scope of reasonable options. A generalist will often be obliged to refer to a specialist. He may be negligent if he fails to do so. He may be negligent in selecting a specialist.
Obvious Flaws in Practice
If a person sued for negligence defends his conduct by establishing that a practice that is general and is approved of by his colleagues of similar specialisation and skill, he may still be liable, if the plaintiff can establish the practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
Medical negligence and legal professional negligence cases have held that where a practice has inherent risks, which are obvious to anyone giving them due attention, adherence to widely and generally accepted practice may not be sufficient to preclude the possibility of liability in negligence.
A negligent practice does not cease to be so by repetition. A person cannot be acting reasonably if he automatically and mindlessly follows a practice which, had he thought it through, he would have realised is fraught with peril for his client and was readily avoidable and remediable.
The matter is not to be judged with the benefit of hindsight. However, if it can be said that on giving the matter due consideration, he would have realised that the practice was in circumstances incompatible with his client’s interests, and if an alternative and safe course of conduct was reasonably open, he may be held to be negligent.
Differing Approaches in Profession
The professional will not be liable for an error of judgment, provided that it is not unreasonable in the circumstances. There may be different fields of thought in a particular profession as to what is the best course. Where each school of thought is respected and tenable, the professional may be entitled to choose between them, without being held liable for negligence for having chosen one course.
General practice need not be universal. It must be approved and adhered to by a substantial body of reputable practitioners holding the relevant specialist or general qualifications. The general test for negligence is whether the defendant has failed to reach the standard of a professional of the equivalent (e.g. general practitioner or specialist) status and skill, as the case may be.
If the allegation of negligence is based on a proven deviation from a general and approved practice, this will not constitute negligence unless it is proved that the course was one which no person of like specialisation and skill would have followed had he taken ordinary care required from a person of his qualification.
There may be an honest difference of opinion between professionals of that class, as to whether one or other course of practice is better than another. In this case, adherence to one or other practices is unlikely to constitute negligence.
The alternative view must have reasonable grounds, be honestly held and have sufficient standing in the relevant field. An honest but groundless belief in an alternative approach or opinion is insufficient.
Current Practices
In professional negligence cases, evidence will be required as to the current practice in the relevant profession. There will not necessarily be liability on account of an error of judgment, where the error is not unreasonable. A counsel of perfection is not required. The courts will seek not to be wise after the event, at least to some extent.
There may be circumstances where there are legitimate differences of opinion amongst members of a profession. In this case, negligence would not be held to exist where one reasonable course has been followed as opposed to another.
A member of a profession is expected to keep abreast of current practices. Professional practices may cease to be current. Outdated practices should be revised in accordance with the latest good practice.
Many professions now require mandatory Continuous Professional Development (CPD). Minimum hours of certified training or lectures in each annual period may be required as a condition of renewal of the licence to practice.
Over time, a particular recommendation for a change in practice may become so well-founded and known that it represents accepted practice. To disregard one particular article or recommendation may be excusable. To disregard a whole range of established opinions may well amount to negligence.
Changing State of Knowledge in Profession
A school of thought may go out of fashion. Most professionals have mandatory continuing professional development requirements. A person may not obstinately carry on a technique that is manifestly out of date and is proved contrary to informed opinion in the profession. It is not enough to simply proceed with what one was taught at college or university.
A professional is not obliged to keep up with every modern development in each journal. However, over time a new practice may become so well proved and recognised that he should adopt it, and failure to do so might constitute negligence in this case.
If a new approach or solution to a problem is still experimental or has not become firmly established in the field, the failure to adapt will not generally be negligent. On the one hand, the professional should not stray beyond recognised practice too much. On the other hand, a measure of common sense and latitude will be allowed in embracing new approaches.
If there is a dispute as to whether a particular practice is general, customary and approved, the judge (formerly the jury) determines whether it is a general or approved practice. This will require expert evidence from persons who are competent in the relevant field. If there is a conflict between the evidence offered by different experts or members of the profession as to whether a particular practice is general and approved, the matter or “true position” is determined as a fact by the judge.
Specialists
There may be a distinction between specialists and general practitioners in many professions. Where a person is held out as a specialist in a particular field, he must exercise the level of skill professed by the average reasonable specialist practitioner in that field.
In the case of a general practitioner, such as in law, medicine and other areas, the standard required would be less than that for a specialist. There may be an obligation to refer a client or patient or to refer to a specialist. It may be negligent in failing to do so. General practitioners and solicitors may be expected, under certain circumstances, to refer to and to consult a specialist in a particular area.
A higher standard of care is expected of a specialist relative than of a generalist. A general practitioner or medical doctor will not be expected to have the same level of skill as a consultant or specialist solicitor/barrister, or equivalent specialist. The standard of care is measured against the manner in which a professional holds himself out.
If a person, who has no qualification in the relevant area, holds himself out as having a particular skill and qualification, he will be held to the standards he professes. Such a person may be liable to prosecution or breach of statute, where the activity concerned is reserved for persons who hold the required qualification and are registered with the relevant statutory regulator.
Medical Cases and Battery
A particular issue which arises in the context of medical cases is assault and battery. Any touching or interference with the body of another is potentially an assault and battery unless the person has given consent.
In medical cases, the absence of informed consent may lead to liability for battery. A jury trial may be available in relation to cases of battery. It is not available in cases of medical negligence.
A duty of disclosure arises in the context of battery to a greater extent than in the case of negligence. The patient’s informed consent should be obtained.
There are different approaches between requiring very detailed disclosure on one end of the spectrum to a less detailed, more general disclosure. The judgement of the practitioner will be allowed a certain latitude.
The Irish courts have taken different views as to the extent of the requirement for good for informed consent. The degree of informed consent is a matter of opinion.
The more serious the consequence, the more detail is required in terms of outlining risks. Irish law does not require all risks to be set out to a high degree of detail.
Where consequence is rare and unlikely, the requirement for prior discussion and disclosure is less. If, however, the risk of mentioning the risk may itself cause a serious reaction, disclosure may not be required.
Many medical negligence claims are made against the Health Services Executive as the employer has vicarious liability.
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019