IV. Professional liability
Professional liability arises when a person who claims to have special professional skill does not use the reasonable care and skill expected of a competent member of that profession.
While the majority of claims are resolved through contractual obligations, a professional often owes concurrent and overlapping duties in both contract and tort. Liability may also arise from fiduciary duties (e.g. for solicitors and accountants), particularly in situations involving a conflict of interest or the handling of a client's funds.
A professional is not normally taken to guarantee a successful result, so a solicitor does not promise to win every case, and a doctor does not promise to cure every patient. However, a professional may be subject to stricter liability if he expressly guarantees a result in his contract or if a statute (such as those governing the supply of goods) imposes such a duty.
What must be proved?
To succeed in a claim for the tort of negligence, a plaintiff must establish on a balance of probabilities that the professional owed him a duty of care, that the professional breached that duty by failing to meet the required standard, and that this breach caused the plaintiff to suffer actual loss or damage. In cases where a professional’s negligence is an omission to act, the court performs a hypothetical inquiry into what would have happened if the duty had been performed.
How can liability arise?
Professional liability may arise where a professional gives careless advice, fails to warn of a clear risk, fails to explain an important document, mishandles a transaction, keeps poor records, or acts despite a conflict of interest. When such a claim is made, the court first asks whether the professional owed the plaintiff a duty of care. This duty will usually exist where a professional undertakes to provide services or advice to a client, but it may sometimes extend to another person beyond the immediate client if the professional has assumed responsibility to that person or the law recognises a sufficiently close relationship.
If a duty of care exists, the court then asks whether the professional met the required standard of care. A professional is judged by an objective standard. The usual standard is that of a reasonably competent member of that profession exercising reasonable care and skill, not the highest possible standard and not a guarantee of success. A professional is not negligent if he acted in accordance with a practice accepted as proper by a responsible body of professional peers, even if other members of the profession take a contrary view.
Professionals are required to keep their knowledge up to date. However, the reasonable professional is not expected to know every piece of cutting-edge research until that knowledge becomes “fairly widespread” within the profession.
However, the objective standard generally makes no allowance for a lack of knowledge or skill due to inexperience. Inexperience is generally not a defence to a professional negligence claim. This means that a junior doctor, a newly qualified lawyer, or other inexperienced professional is normally held to the same standard as a reasonably competent person performing that role.
If the matter is beyond the professional’s competence, the proper course is usually to seek advice, refer the client or patient to someone more experienced, or avoid acting outside that person’s expertise.
Expert evidence
In professional negligence cases, the court will often consider expert evidence on accepted professional practice. Expert evidence plays an important role in helping the court decide what competent professional practice required at the time. Courts are often reluctant to find professional negligence without expert evidence, especially where the issues involve specialised judgment or technical practice.
Where there is a responsible body of professional opinion supporting what the professional did, that will usually be important, although the court is not bound to accept professional practice. The court must be satisfied that the professional opinion has a logical and defensible basis. If the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.
