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Negligence by professionals

This article provides notes on negligence by professionals. It covers professional negligence, degrees of negligence, Bolam case, Jacob Mathew case, section 5 of legal practitioner's (fees) act, related case laws, the distinction between ordinary & professional negligence and conclusion.


The breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered an injury to his person or property.


According to the above definition, there are basically three constituents that are followed in India related to this which are as follows:

  1. A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty;

  2. Breach of the said duty; and

  3. Consequential damage.


Professional Negligence

Under the Law of Torts, the term “Professional Negligence” is defined as- “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 and exercised with a reasonable degree of care and caution. He does not assure his client of the result.”


So from above, we can clearly infer that a professional can give only such type of assurance that he would be exercising the requisite skill with reasonable competence. Thus, from a professional, this is all that the person approaching him can expect. According to this, a professional can be held negligent for: If he does not possess, the requisite skill which he professed to have possessed or in a given case he does not exercise reasonable competence. The standard of an ordinary competent person exercising ordinary skill in that profession is to be applied for judging. The highest level cannot and should never be expected from the professional in that branch which he practises.



Degrees of negligence


The Delhi High Court in Smt. Madhubala vs. Government of NCT of Delhi; Delhi High Court, 8 April 2005, laid down that in civil law, there are three degrees of negligence.


  1. Lata culpa, gross neglect

  2. Levis culpa, ordinary neglect, and

  3. Levissima culpa, slight neglect.


We need to understand that every act of negligence committed by the doctor shall not attract punishment. Slight negligence committed by the doctor is not bound to be punishable and on the other hand ordinary negligence as the name suggests, is also not to be punished.


The two cases stated below represent Medical Negligence.

  • Bolam's Case

John Hector Bolam suffered from depression and was treated at the Friern Hospital in 1954 by E.C.T. (electro-convulsive therapy). Though nurses were present he was not given any relaxant drug. Neither was he warned of the risks that were associated with the treatment when he had consented for the same. He sued the Hospital to claim damages suffered by him. As per the opinion of the Experts, there were basically two practises treatment with relaxant drugs and treatment without relaxant drugs. Regarding the warning also, there were two practices prevalent: to give the warning to the patients and also to give the warning only when the patients ask about the risks. The doctors and nurses were not declared negligent after the conclusion by the court.


  • Jacob Mathew's Case

The patient in this case had problem and difficulty in the process of breathing. He wasn’t attended by any doctor for 20-25 minutes. Later two doctors named: Jacob Mathew and Dr. Allen Joseph came with an (empty) oxygen cylinder and connected it to the mouth of the patient and by the time another cylinder could be brought the patient had already died. This matter reached the Supreme Court of India. However, after analysing every aspect of negligence from every perspective i.e. civil, criminal, torts etc. it was held that there was no case of criminal rashness or negligence.



The Indian position on advocates’ liability for negligence is dictated by Section 5 of the Legal Practitioner’s (Fees) Act, 1925, which provides:


No legal practitioner who has acted or has agreed to act shall, by reason only of being a legal practitioner be exempted from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.


We need to understand that professionals are also humans. So in the course of business, there can be many mistakes committed by the manager and are often personally legally liable for them.


So in order to compensate and reimburse the employees and even the company for the losses suffered by paying in the form of penalty or fines to the third party, a type of insurance is taken up by the companies which are very popular these days and are known as the Directors and Officers Liability Insurance.


The judgment of Rondel v. Worsley. In that case, Nobby Rondel was charged for causing grievous harm to one Manning. He was not given legal aid, but after the case had proceeded for some time, he was afforded the facility of a dock brief, and he chose a barrister by the name of Worsley to represent him. The case eventually ended in a conviction, confirmed by the Court of Appeal, and Rondel underwent a sentence. Nearly six years later, he issued a writ against Worsley, claiming damages for alleged professional negligence in the conduct of his duty.


Thus writ was dismissed by the House of Lords. In a well-reasoned judgment while upholding the immunity of advocates for negligence, Lord Reid held:

“Suppose that, as in the present case, a convicted man sues his counsel. To succeed, he must show not only that his counsel was guilty of professional negligence, but also that the negligence caused him great loss. The loss would be the fact that he was wrongly convicted by reason of his counsel’s negligence; the whole case would in effect have to be retried in a civil court, where the standard of proof is different.”


This is the fallout that is sought to be addressed. Would it not bring the administration of justice into disrepute to require a court of coordinate jurisdiction to try the question of whether another court reached a wrong decision and, if so, to inquire into the causes of doing so?


In the matter of Smith v. Linskill, the House of Lords addressed the issue again, and provided three grounds for upholding the immunity.

  • The affront to any coherent system which will necessarily arise if there be allowed to subsist two final but inconsistent decisions of courts of competent jurisdiction

  • The virtual impossibility of fairly retrying at a later date the issue which was before the court on an earlier occasion; and The importance of finality in litigation.


A conviction reached after applying to the facts the criminal standard of proof beyond a reasonable doubt is necessarily inconsistent with an allegation that, applying to the same facts the balance of probabilities, the convicted person as a plaintiff ought to succeed. The court hearing the civil proceedings have to decide, on a balance of probabilities, whether a judge, properly directed, would have been satisfied with the standard required in criminal cases of the guilt of the plaintiff after trial, which necessarily would have taken a different course from the trial which actually did take place. That task may indeed be characterized as virtually impossible.


The position in England, however, has since been changed in its entirety by way of the judgment in Arthur J.S. Hall v. Simons, wherein Lord Steyn specifically held:

“The cards are now heavily stacked against the maintaining of the immunity of advocates there is no longer any such immunity in criminal and civil cases.”


There are several grounds of challenge that we're faced those delivering the majority judgment in the above matter. The judgment of Lord Hoffmann has dealt with the issues under the following separate heads:


The distinction between ordinary negligence and professional negligence.

Any business or individual can be accused of ordinary negligence. A slip-and-fall injury on your unshoveled sidewalk may be considered ordinary negligence. Or speeding through a stop sign and causing an accident.


You could be held liable for any physical or financial harm caused by your carelessness because you didn’t abide by the “duty of care.” This means that businesses or individuals must take the same amount of care any reasonable person would avoid harming others. When you don’t, it’s ordinary negligence.


If your clients hire you for your specialized skills, you must meet a higher duty or standard of care. In other words, the rules change when you’re a professional. Not taking the same amount of care that others with your specialized knowledge and training would is called professional negligence.


Legal or medical malpractice claims against lawyers, doctors, and other medical professionals are the most well-known professional negligence cases. But these are far from the only professions at risk of a professional negligence claim. Any service-based business is vulnerable to complaints of professional negligence. If your business advises clients or provides specialized services and a client suffers a loss, you could be sued.


Here are some of the businesses most in danger of lawsuits, along with common professional negligence examples for each:

  1. Accountants or auditors: Failing to file a client’s tax form on time.

  2. Architects: Making an error in blueprints.

  3. Consultants: Recommending a bad contractor.

  4. Engineers: Project delays or budget overruns.

  5. Insurance professionals: Misrepresenting insurance coverage.

  6. Real estate agents or brokers: Failing to reveal a known property defect.


Conclusion

From the above article, we can rightly infer that a negligent act committed by a professional in the course of employment is questionable in the court of law under the Law Of Torts. A negligent act can be committed by any of the professionals be it a lawyer, manager in a company and most commonly a doctor know as medical negligence.



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