Professional negligence

In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. The usual rules rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. This specialised set of rules determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise.

In principle, the tortious liability runs in parallel to liability in contract. Subject to the rules of privity of contract, one who has entered into a contract can sue or be sued on the contract which will set out the terms of the service to be provided by the professional person, and if there is no express term to this effect, there will be an implied term that the service will be performed with reasonable care and skill, per s13 Supply of Goods and Services Act 1982. The standard of care required to satisfy this contractual obligation is the same as in negligence, but the circumstances in which each liability may arise differ in that contracts are voluntarily created between the parties, while the duty of care is imposed by operation of law. However, suppose that a solicitor contracts with a medical expert to prepare a report for the purposes of personal injury litigation. The beneficiary of this work will be the client but there is no direct contractual relationship between the expert and the client. It may therefore be argued that since the parties have decided to arrange their relationships to avoid direct contractual obligations, the client should not be permitted to sue in tort, bypassing the privity rule and any exclusion clauses in the contract.

In Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 the potential effectiveness of this argument was acknowledged in a case where there was a formalised structure of agent and sub-agent, but the general scope of this potential limitation remains unclear. However, it is clear that if there is concurrent liability in contract and tort, the quantum of damages is limited to the actual loss suffered and does not increase because there are two causes of action.

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Wikipedia