Blog by Emma Slade
Professional Negligence Explained – What is a ‘Duty of Care’?
‘Breach of Duty’ in the context of a professional negligence claim.
If you are a party to a contract, it is – in theory at least – pretty easy to identify whether or not another party has breached it. The contract should have all the terms and conditions set out in it, so it should be a simple case of reviewing the terms to see whether or not they have been broken. But what if you do not have a contract with a professional person such as a solicitor, an accountant or a surveyor, but have suffered a “civil wrong”?
If this arises then you might be considering a claim for professional negligence. Negligence is described as:
“The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”
Blyth –v- Birmingham Waterworks Co. 1856
That is a fairly simplistic explanation of what negligence is and since that 1856 case, the law has been constantly defining and re-defining what negligence actually is and importantly, what you have to prove in order to bring a successful claim. The ultimate test is that you have to prove four things: firstly, that the defendant owes you a duty of care; secondly, that he breached it; thirdly, that you have suffered a loss; and finally, that his conduct caused that damage (‘causation’).
I will deal with the issue of damages and causation in a separate article but a ‘Duty’ for these purposes is basically an obligation imposed upon one person for the benefit of another to take reasonable care in all the circumstances.
That is a pretty broad statement and the Courts recognise that it would be unreasonable to impose a Duty of Care in all circumstances. For instance, what if two railway porters were helping an elderly gentleman board a train but one knocks a package out of his arm? The package turns out to be fireworks which immediately go off, knocking over a weighing machine which hits a woman. Would the railway company owe the woman a duty of care? The Court in this instance said no – whilst the gentleman would have a claim, she was standing too far away1.
And so over the years, the Courts have been refining what factors need to be present to impose a Duty of Care. It was in the 1990 case of Caparo Industries Plc –v- Dickman where we finally got the answer and it was a threefold test:
- there needs to be proximity between the parties;
- it needs to be fair, just and reasonable to impose a duty; and
- there must be some foreseeability of damages.
In short, there needs to be some sort of relationship between the parties such that the Courts could argue that any act or omission by the Defendant would affect the Claimant so that, in a sense, the parties are neighbours. The first case to consider this neighbour principle – Donaghue –v- Stevenson (1932) – is a good example. A woman was taken into a café and her friend bought the woman some ginger beer and ice cream. A dead snail was found in the ginger beer and the woman became unwell as a resultl. Unfortunately, she had not bought the ginger beer so did not have a contract with the café owner. Instead, she sued the manufacturer and the Courts agreed that there was sufficient proximity between the manufacturer and the end-user for the manufacturer to owe her a duty of care.
Foreseeability of Damage
The relationship does have to be sufficiently close, that the defendant should be able to realise that his acts or omissions would cause harm. Again, in Donaghue –v- Stevenson, it was pretty foreseeable that the woman would become unwell by drinking contaminated ginger beer.
Fair, just and reasonable to impose a duty
Even if you are able to establish the above two criteria, the Courts still have to be convinced that it would be “fair, just and reasonable” to impose a duty and, according to Lord Browne-Wilkinson2, it all comes down to policy:
“the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered.”
Ultimately, as much as the Courts try to impose an objective test on the first two criteria, the last point can be pretty much subjective and not quite so obvious. Fortunately, in the sphere of professional negligence claims it is established law that the major professions such as solicitors, accountants and surveyors owe their clients a general duty of care. Nevertheless gray areas do arise. There has for instance been huge uncertainty about whether a solicitor owes a duty of care to the beneficiaries in a will as well as the testator himself. For many years it was believed that the duty of care owed by the solicitor was restricted to his client. However in recent years the courts have extended that duty to include disappointed beneficiaries. This is a good example of how the law is evolving in the field of professional negligence law. The pace of change has quickened in recent years which makes the field of professional negligence law a very lively area of practice.
Establishing that a duty of care is owed is only the first step of course. Once you manage to deal with this obstacle you still have the other three hurdles to overcome: breach, damage and causation, before you can get your professional negligence claim off the ground.
Do not hesitate to contact H&G if you have a property problem which needs fixing.