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PROFESSIONAL NEGLIGENCE
LAW OF TORTS PROJECT

ADVIKA PHOTUMSHETTY
SEMESTER 1
ROLL NUMBER - 2014070
NAME OF FACULTY Dr. Sridevi P.

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM

Acknowledgement

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I would sincerely like to put forward my heartfelt appreciation to our respected Law of Torts
professor, Dr. Sridevi P. for giving me the golden opportunity to take up this project regarding
Professional Negligence. I have tried my best to collect information for this project in various
possible ways to depict a clear picture about the given project topic.

Contents

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Summary of Project............................................................4
Introduction........................................................................5
Objective of Study..............................................................6
Significance and Benefit of Study.......................................6
Research Methodology.......................................................6
Negligence by Professionals................................................7
Elements for the tort of Professional Negligence.................8
Professional Negligence in the Medical Profession...............10
Professional Negligence in the Legal Profession...................13
................................................

Summary of Project

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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
areasonable 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.

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Introduction

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. It could also be
defined as the failure of one rendering professional services to exercise that degree of skill
and learning commonly applied under all the circumstances in the community by the average
prudent reputable member of the profession with the result of injury, loss, or damage to the
recipient of those services. 1

1 http://definitions.uslegal.com/p/professional-negligence/

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Objective of Study
This project discusses the elements that amount to the tort of Professional Negligence along
with various landmark cases for a better understanding of this particular tort. Special
coverage of Professional Negligence with respect to the medical felid has been done.

Significance and Benefit of Study

This study helps us understand the exceptions and rules for the tort of Professional
Negligence via various important cases for a better understanding of this tort. It is important
since this particular tort covers disputes involving all manner of professionals, including
accountants, engineers, architects, barristers, financial advisers, doctors so on and so forth.

Research Methodology
The research methodology used in the course of this project is Doctrinal Research.

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Negligence by Professionals
Professionals are persons professing some special skill. Any task which is required to be
performed with special skill and knowledge in the matter would generally be undertaken to
be performed only if the person possesses the requisite skill and knowledge for performing
that task. It has further been explained by the Apex Court in the case of Jacob Mathew v.
State of Punjab2 that any reasonable man entering into a profession which requires a
particular level of learning to be called a professional of that branch impliedly assures the
person dealing with him that the skill which he professes to possess shall be exercised with a
reasonable degree of care and caution. However, there are no assurances given with respect to
the end result and only with respect to the requisite skill in his/her branch of profession is
given along with the presence of reasonable competence.
Also, it was observed in the celebrated case of Bolam v. Friern Hospital Management
Committee3 that the test for negligence is with respect to an ordinary skilled man exercising
and professing to have that special skill and the man need not possess the highest expert skill.
This stand was further established and elaborated in the case of Eckersley v. Binnie4.
The degree of skill and care required has been explained at length in the Halsburys Laws of
England5. Deviation from normal practice is held not necessarily evidence of negligence. To
establish liability on that basis it must be shown: 1) That there is a usual and normal practice;
2) That the defendant had not adopted it; 3) That the course in fact adopted is one no
professional man of ordinary skill would have taken had he been acting with ordinary care.

2 A.I.R. 2005 S.C. 3180

3 [1957] 1 W.L.R. 582, 586
4 [1988] 18 Con. L.R. 1,79, quoted Ibid.
5 Fourth Edition, Vol. 30, Para 35. Quoted in Jacob Mathew v. State of Punjab,
A.I.R. 2005 S.C. 3180

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Elements for the tort of Professional Negligence

Duty
To state a negligence cause of action, the defendant must owe a duty of due care to the person
injured, or to a class of persons of which the plaintiff is a member. In the case of Valdez v. J.
D. Diffenbaugh Co.6 it was established that the extent and type of duty varies according to the
relationship of the parties and other circumstances. For example when a medical practitioner
attends to his patient he/she owes him/her the following duties of care7:
i)
ii)
iii)

A duty of care in deciding whether to undertake the case.

A duty of care in deciding what treatment to give.
A duty of care in the administration of the treatment.

Breach
Ordinary negligence consists of acts or omissions which are not compatible with the standard
of care exercised by an abstract man of ordinary prudence as seen in the case of People v.
Young8.

Causation
Legal cause requires that the defendants negligent acts were a substantial factor in bringing
about the plaintiffs injury or damage. The aforementioned was consolidated in the case of
Mitchell

v.

Gonzales9.

6 51 Cal. App. 3d 494, 124 Cal. Rptr. 467 (1975)

7 Dr. L.B. Joshi v. Dr. T.B. Godhole, A.I.R. 1989 P. & H. 183, at 185.
8 20 Cal. 2d 832, 129 P.2d 353 (1942)
9 54 Cal. 3d 1041, 1 Cal. Rptr. 2d 913 (1991); CACI 430

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It is a relatively broad standard requiring only that the contribution of the individual cause be
more than negligible or theoretical as seen in the cases of Bockrath v. Aldrich Chemical
Co.10and

in

Bunch

v.

Hoffinger11.

Damage
Damage must be pled and proved as an essential element of negligence (Rosales v. Stewart12).
The phrase injury occasioned to another as used in Civil Code 1714 is the injury to the
person who is the victim of the actors negligence as seen in the case of Buckley v.
Chadwick13.

10 21 Cal 4th 71, 79 (1999)

11 123 Cal. App 4th 1278 (2004)
12 113 Cal. App. 3d 130, 169 Cal. Rptr. 660 (1980)
13 45 Cal. 2d 183, 288 P.2d 12 (1955); CACI 261

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Professional Negligence in the Medical Field

Medical negligence (also known as medical malpractice) differs from other litigation because
the claimant must rely on expert medical evidence to establish all the major elements of
liability. Causation is particularly difficult to prove because the effects of the allegedly
negligent treatment must be distinguished from those of the patient's underlying condition
which gave rise to the need for treatment. Further, the assessment of damages is often
complicated because the court must compare the claimant's actual condition and prognosis
with the hypothetical condition and prognosis if the patient had received competent medical
treatment. The court must only compensate for the injuries caused by negligent treatment, not
for any underlying condition. In Bolam, McNair J. stated at 587, that the defendant had to
have acted in accordance with the practice accepted as proper by a "responsible body of
medical men." Later, at 588, he referred to "a standard of practice recognised as proper by a
competent reasonable body of opinion." To determine whether a body of opinion is
responsible, reasonable or respectable, the judge will need to be satisfied that, in forming
their views, the experts have directed their minds to the question of comparative risks and
benefits and have reached a defensible conclusion on the matter. For example, in Hucks v
Cole14 a doctor failed to treat a patient who was suffering from septic places on her skin with
penicillin even though he knew there was a risk of puerperal fever. Sachs LJ. said:

14 [1968] 118 New L.J. 469.

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"When the evidence shows that a lacuna in professional practice exists by which risks
of grave danger are knowingly taken, then, however small the risk, the court must
anxiously examine that lacunaparticularly if the risk can be easily and
inexpensively avoided. If the court finds, on an analysis of the reasons given for not
taking those precautions that, in the light of current professional knowledge, there is
no proper basis for the lacuna, and that it is definitely not reasonable that those risks
should have been taken, its function is to state that fact and where necessary to state
that it constitutes negligence. In such a case the practice will no doubt thereafter be
altered to the benefit of patients."
In Poonam Verma v. Ashwin Patel and Others 15, a doctor registered as a medical practitioner
and entitled to practice in Homeopathy only prescribed an allopathic medicine as a result of
which the patient died. Compensation was given to the wife of the diseased and it was further
held that a doctor entitled to practice a particular type of medical field (as in Homeopathy in
the above case) was held under a statutory duty to not enter the field of any other system of
medicine.
Also, in M/s Spring Meadows Hospital v. Harjot Ahluwalia 16, their Lordships of the Apex
Court held that an error of judgement is not necessarily negligence.
It is well settled that in cases of gross medical negligence the principle of Res ipso loquitor
can be applied. The Honble Apex Court in V. Kishan Rao v. Nikhil Super Speciality
Hospital17 considered at length the principle and gave certain illustrations 18 on medical
negligence where this particular principle could be applied. Res ipso loquitur is essentially an
evidential principle and is said to assist a claimant who, for no fault of his own, is unable to
adduce evidence as to how the accident occurred.

15 (1996) 4 S.C.C. 332.

16 (1998) 4 S.C.C. 39.
17 (2010) 5 S.C.C. 513.
18 See Calvin v. Wilcox, (1973) 44 DLR 3d 42; Eady v. Tenderenda, (1975) 2
S.C.R. 599.

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There have been cases of various kinds that have come up over the years such as the
negligence in a free eye camp (Pushpaleela v. State of Karnataka 19) , penis of a man getting
cut off (C. Sivakumar v. Dr. John Mathur & Another 20), death due to transfusion of blood of a
wrong blood group (R.P. Sharma v. State of Rajasthan 21), failure of sterilization
operation(State of Punjab v. Siv Ram22), foreign matter left behind such as
mop/scissors/labels and the like (A.H. Khodwa v. State of Maharashtra 23) and many such
cases.
A doctors duty to maintain secrecy has also been discussed in the case of Dr. Tokugha v.
Apollo Hospital Enterprises Ltd.24, the appellant whose marriage was called off because of
disclosure by the Apollo Hospital that the appellant was HIV(+). It was held that the rule of
confidentiality is subject to the exception when the circumstances demand disclosure of the
patients health in public interest, particularly to save others from immediate and future health
risks.

19 A.I.R. 1999 Kant. 119.

20 III (1998) CPJ 436 (Tamil Nadu S.C.D.R.C.)
21 A.I.R. 2002 Raj. 104.
22 A.I.R. 2005 S.C. 3280
23 1996 A.C.J. 505 (S.C.).
24 A.I.R. 1999 S.C. 495; III (1998) C.P. J. 12 (S.C.).

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Professional Negligence and the Legal Profession

As to solicitors, Ross v. Caunters25 holds that lawyers can owe a duty of care both to their
clients and to third parties who suffer loss or damage. In that case, the solicitors failed to
prevent a beneficiary from attesting the will. They admitted negligence but denied that they
were liable to the claimant, contending (i) that a solicitor was liable only to his client and then
only in contract and not in tort and could not, therefore, be liable in tort to a third party, (ii)
that for reasons of policy, a solicitor ought not to be liable in negligence to anyone except his
client, and (iii) that in any event, the Plaintiff had no cause of action in negligence because
the damage suffered was purely financial. Applying the principles in Hedley Byrne & Co Ltd
v Heller & Partners Ltd and Donoghue v Stevenson26, a solicitor who is instructed by a client
to carry out a transaction that will confer a benefit on a third party owes a duty of care
25 [1979] 3 AER 580

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towards the third party in carrying out that transaction, in that the third party is a person
within his direct contemplation as someone who is likely to be so closely and directly
affected by his acts or omissions that he can reasonably foresee that the third party is likely to
be injured by those acts or omissions. The case law also indicates the necessity for firms of
solicitors to keep detailed attendance notes.
Gran Gelato Ltd. v Richcliff (Group) Ltd. 27 involved a solicitor's replies to preliminary
enquiries in a conveyancing transaction. It was therefore foreseeable that others would rely
on the answers given but the court held that there was no duty of care. A solicitor owes a
professional duty of care to the client and no-one else. He or she is subject to professional
rules and standards, and owes duties to the court as one of its officers.
Further, it has been held that a solicitor advising a client about a proposed dealing with his
property in his lifetime owes no duty of care to a prospective beneficiary under the client's
then will who may be prejudicially affected. In Clarke v Bruce Lance & Co.28, it was
recognised that solicitors may sometimes give advice which directly prejudices the interests
of others who have a relationship with the client so long as this advice is consistent with the
duty owed to the client.

Since Watson v MEwan29, English law has allowed a public policy immunity to any witness,
including those who give evidence that is "false and injurious" or merely negligent.
This confirms the general principle that a witness does not owe a duty of care to anyone in
respect of the evidence given to the court. The only duty is to tell the truth. However, the
position in respect of expert witnesses was altered by the decision of the Supreme Court in
2011 in Jones v Kaney, which overruled Stanton v Callaghan. As before, an expert will be
liable to his client for advice which is tendered to and relied upon by the client under normal
26 [1932] AC 562
27 (1992) Ch 560
28 (1988) 1 WLR 881
29 (1905) AC 480

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principles. However, as a result of the decision, an expert who provides a report which is
adduced in evidence before a court no longer enjoys immunity from suit for claims for
negligence or breach of contract (although immunity in defamation remains).