Professional negligence the changing coastline of liability

Nevertheless, the landscape of the law is far from bleak. The coastline of liability continues to change, but with erosion on some shores made up by accretions on others. The object of this paper is to pick out some features of that landscape, including some which are ripe for climatic change.
Given my experience, my main focus will be English law (though from a Welshman’s perspective - like many of those present, English is my second language). Nevertheless, this is an area of the law which has been, and will continue to be, considerably enriched by case law from other jurisdictions, including this jurisdiction. Indeed, I have no doubt the sense of common principles and values in this, as in other areas, will lead soon to a body of case law which will be increasingly recognised as an international common law. The practice here of inviting judges of the highest distinction from other jurisdictions to sit in your Court of Final Appeal is one which I hope will soon become general elsewhere, including Britain.
The duty of care

Let me start with basic principles. A professional person is under a duty to exercise reasonable care and skill. The required standard of care and skill is that of the ordinary skilled person of the same discipline.³ It is often referred to as the Bolam principle after McNair J.'s eloquent expression of it in a direction to the jury in a medical negligence case of that name,⁴ but its roots may be traced back to the nineteenth century and earlier.

The duty arises not only as an implied (if not express) term of the contract between the professional man and his client. It may also arise in tort. So a professional may owe a duty of care to his client running concurrently with the like duty in contract. He may also owe a duty of care in tort to a third party. Breach of the tortious duty gives rise to liability in the tort of negligence.
The duty is usually invoked in support of the proposition that a professional does not impliedly agree to produce a particular result. He will be taken as having done so only if he has expressly so agreed. Otherwise the client's bargain is rather the product of the care which an equivalent professional could reasonably have been expected to exercise in the same circumstances. The exercise of such care may be consistent with failure to achieve the desired result. The paradigm is a doctor's failure to cure his patient.

The latter point impacts on the measure of loss consequent upon failure to exercise care. The application of the restorative principle in contract entails that the claimant is entitled to the benefit of his bargain, whereas its application in tort entails that he is restored to the position which he would have occupied but for the tort. In professional negligence cases the respective consequences of applying the contractual and tortious measures coincide. This does not mean that the tortious measure is adopted in preference to the contractual measure. The position of having care exercised represents both the contractual bargain and the position which the claimant would have occupied but for the defendant's negligence.
Criticism

The duty of care and skill has clothed the law relating to professional negligence with an apparent coherence and exclusivity of analysis. Indeed, it has nurtured a tort culture which has obtruded on the contractual analysis which may otherwise have prevailed. Even the classification of relevant case law under the title professional negligence immediately encourages association with the tort of negligence. "Professional liability" is a more neutral and accurate title.

The tort culture is not the product of language alone. More significant factors are the centrality accorded to the duty of care and skill and its attribution to both contract and tort.
The contractual duty of care and skill

Although the classification "professional negligence" invites association with the tort of negligence, contract rather than tort provides the framework for resolving the vast majority of claims against professionals. Analysis follows the conventional course of first ascertaining the nature of the bargain as reflected in express and implied terms. Tort needs only to be considered to the extent necessary to overcome perceived obstacles arising from the contractual analysis.

Despite the importance of the duty of care and skill, it is only one of number of duties. As Oliver J. observed:
"The classical formulation of the claim in this sort of case as 'damages for negligence and breach of professional duty' tends to be a mesmeric phrase. It concentrates attention on the implied obligation to devote to the client's business that reasonable care and skill as if that obligation were not only a compendious, but also an exhaustive, definition of all the duties assumed under the contract created by the retainer and its acceptance. But, of course, it is not. A contract gives rise to a complex of rights and duties of which the duty to exercise reasonable care and skill is but one."⁵
The focus of the duty is on the standard of performance and not result. Nevertheless, it also impacts on the desired result in that it allows for the possibility that the result may not be achieved. Failure to achieve the result may be consistent with the exercise of reasonable care and skill. It is the latter feature of the duty which explains its early selection as the standard of performance required of doctors and advocates. In a medical negligence case tried in 1838 Tindal C.J directed a jury:

"Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall gain your case, nor does a surgeon undertake that he will perform a cure; nor does he undertake to use the highest possible degree of care."⁶
The rationale for the duty is readily recognisable in the case of a surgeon, certainly in 1838, as based on a pragmatic and reasonable assessment of the achievability of the desired result. It reflected the need to take account of the level of medical knowledge and skill, the health and cooperation of the patient and other factors beyond the surgeon's control. In the case of an attorney, it reflected the need to take account of the cooperation of the client, the available evidence, the credibility and unpredictability of witnesses, the resources deployed by the parties and other factors beyond the attorney's control. Likewise in the case of other professionals the selection of the duty is explicable in terms of an assessment of features specific to their occupation.
The occupations which today are regarded as professions, however, extend far beyond those regarded as such in 1838. They have increased as human knowledge and skill and consequent specialisation have increased. Inevitably the word "professional" has become less distinct in its connotation and unsatisfactory as a classification of occupations. Does it include, for example, so called “consultants”? To pose the question is to expose yet another penumbra. Even within the same profession there may be a vast diversity of knowledge, skill and function. While some operate at the frontiers of knowledge and skill, others engage in the routine. Perceptions and actual levels of achievability vary. Moreover, achievability increases with improving knowledge and skill, ready access to information by electronic and other means, and the establishment of standards by professional, regulatory and other bodies,
Against a background of increasing achievability it is surprising that the duty to exercise reasonable care and skill continues to be regarded as generally applicable in the case of contracts with professionals and that the courts have been so hesitant to countenance a stricter or higher duty.
A stricter duty?

The question of a stricter duty has arisen most frequently in a building context. It was addressed by the Court of Appeal in England in 1975 in a claim against a firm of engineers in relation to the design of a factory floor which proved unable to withstand vibration from fork‑lift trucks.⁷ It was held that the engineers were in breach not only of their duty to exercise reasonable care and skill but also of an implied duty that the factory floor would be reasonably fit for the purpose for which they knew it was required. The latter was implied as matter of fact based on the actual intention of the parties as distinct from being implied by law based on the presumed intention of the parties. Two of the judges were at pains to emphasise that the case established no general principle. In contrast, Lord Denning M.R. first stated the conventional position:
"Apply this to the employment of a professional man. The law does not usually imply a warranty that he will achieve the desired result, but only a term that he will use reasonable care and skill. The surgeon does not warrant that he will cure the patient. Nor does the solicitor warrant that he will win the case. But when a dentist agrees to make a set of false teeth for a patient, there is an implied warranty that they will fit his gums: see Samuels v Davis [1943] K.B. 526 ",
and then speculated tantalizingly:
"What then is the position when an architect or an engineer is employed to design a house or a bridge? Is he under an implied warranty that, if the work is carried out his design, it will be reasonably fit for the purpose? Or is he under a duty to use reasonable care and skill? This question may require to be answered some day as a matter of law."⁸ [emphasis added]

The question of a stricter duty arose again in a claim against specialist sub-contractors in relation to the design and construction of a television mast which collapsed.⁹ The Court of Appeal rejected the argument that since design was normally a function of a professional man, the sub-contractors should be under no stricter duty than the duty of reasonable care and skill. The issue of the extent of obligations in relation to design had to be determined in the ultimate analysis by reference to the interpretation of the contract concerned and there was no good reason not to import an obligation as to reasonable fitness of the design in the relevant contract.¹⁰ On further appeal to the House of Lords¹¹ the matter was only considered, obiter by Lord Scarman. He accepted the stricter duty.¹² He regarded the fact of an article being supplied as well as designed as the crucial distinction justifying the stricter duty.¹³ The same distinction was the basis for the Court of Appeal rejecting an alleged implied warranty to provide a safe floor on the part of engineers in a claim arising from their design of communal showers.¹⁴ Dillon L.J. said:
"In this court we are bound by the established rule that a professional man ... only undertakes, when his advice is sought, to use reasonable care and skill in his profession, and does not warrant the accuracy of his advice in the absence of special circumstances."¹⁵

Neill L.J. provided a negative answer to Lord Denning's earlier speculation:

"I am satisfied that as the law stands at present, a warranty of fitness of purpose will not be implied as matter of law where the consulting engineer is retained to advise or to design."

Claims arising from a building context provide ripe territory for arguing in favour of a stricter duty than the duty of care, given the close connection between advice given by building professionals and the supply of products, usually by others. Claims against computer consultants provide another, given that a product, whether hardware or software, is generally supplied.

Nevertheless, English law is presently resistant to implying a duty higher or stricter than the duty to exercise reasonable care and skill in relation to a professional person. It will be admitted only in "special circumstances". It may be implied as matter of fact and, probably, only when not merely information or advice is given, but a product is supplied.

Present judicial perceptions of the common law position are reinforced by classifications of contracts reflected in statutes relating to terms to be implied in different types of contract. Hence in many kinds of "contracts of sale of goods",¹⁶ terms to be implied include terms as quality and fitness.¹⁷ In the case of many kinds of "contracts for the transfer of goods",¹⁸ which include contracts for work and materials such as a building contract, there are like terms.¹⁹ In contrast, however, in the case of a "contract for the supply of a service",²⁰ there is no statutory implication of terms as to quality and fitness, though where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.²¹
Grounds for stricter duty related to result

Nevertheless there are persuasive grounds for more frequent recognition in professional contexts of duties stricter than the duty of care and skill, which are related to the desired object or result as distinct from performance.

Such duties are readily recognised in relation to suppliers of goods and suppliers of goods and services. Yet there is nothing inimical to the implication of such duties which is intrinsic to all service providers. This is apparent from diversity of services supplied in a modern economy (indeed services are the largest component). Services include the most mundane and routine and the intended result or object of the services may be readily described including in terms of the quality of achievement, and be readily achievable. While statute provides for implication of a duty of care and skill in relation to a "contract for the supply of a service", it does not preclude the implication of a stricter duty related to result.
Professionals are a category of service providers. Yet again, however, there is nothing intrinsic to all professionals which is inimical to the implication of stricter duties and duties related to result. This is apparent from the indistinctiveness of the category as well as from the diversity of services provided by professionals.

The better approach is to focus on the particular contract and the service required and to ascertain whether there are specific considerations which favour or, as the case may be, disfavour stricter duties than the duty of care and skill. Disfavouring considerations are the uncertainty of science, the inherent inexactness of the particular endeavour, dependence on the cooperation of others, including the client, and more generally relative lack of control of the necessary steps for the achievement of a successful result. Broadly it remains the case that, however indistinct the present day concept of a profession, those considerations feature more often in the case of professionals than in the case of other service providers.
Nevertheless, apparent from case law is a tendency to resist acceptance of stricter duties, justified in terms of the status of a professional rather than in terms of considerations specific to the nature of the particular contract and the service required. The tendency originates from the nineteenth century and the then narrow perception of professions. It is a product of generalisation from apparent precedent without sufficient regard to changed circumstances, especially the expanding category of professionals, the nature of the services provided by them and increasing knowledge and skills. Progress may be traced along a path of achievement extending from the possible to the probable and even to the expected in the absence of culpable error. Many professionals have progressed along this path. Barbed tribute to its acknowledgment by the courts is the adverse claims experience of professionals in recent years.
While in the case of a vast range of services it is inappropriate to imply duties extending beyond the duty of care and skill, the fact that they are provided by persons perceived as professional no longer provides a rationale justification. That justification should rather be recognised as an anachronism which, though in its day an appropriate capsule for a number of specific considerations, should now be discarded. It diverts attention from separate evaluation of the individual potency of those specific considerations in a particular case.
Moreover, as a justification it frequently obscures the transparency which there ought to be between the judge's expressed legal reasoning and his conclusion.
In recent years it has become apparent that, in relation to several types of claim against professionals arising from failure to achieve the desired result, the courts are particularly prone to find against the professional however understandable his apparent error. Examples are claims against solicitors in relation to conveyancing, surveyors in relation to house surveys and valuations, architects and engineers in relation to design failures and financial advisors in relation to advice on pensions.²² Conventionally, pleading and reasoning intone the Bolam test and liability deduced from a conclusion that the defendant failed to exercise the care and skill of a paragon of virtue, the competent like professional. The process frequently involves long and detailed investigation and analysis of fact, including the practices of the particular profession: hence the motivation for expert evidence, often complex and of dubious relevance. Indeed over the last decade the volcano of professional negligence claims has spewed out a new profession, expert witnesses.

The process is in large part the consequence of the test of liability being care and skill in performance. By allowing for the possibility that failure to achieve the desired result may be consistent with care and skill, it permits and encourages extensive exploration and assessment of that possibility by way of defence.
Yet in several classes of claim, it is a vain defence. Despite imposition of liability by reference to the test, the more realistic perception of the judge's reasoning desired result which was achievable and should have been achieved. This reasoning should be transparent and be openly expressed.
Lord Hoffman in a lecture in 1993²³ explained such classes of cases in terms of risk allocation decisions by judges, having regard to the availability of professional negligence insurance, i.e. deep pockets if not broad shoulders. In support he instanced two well known decisions in a conveyancing context (one from Hong Kong) in which liability was imposed notwithstanding cogent evidence that the impugned conduct reflected common practice.²⁴ He went further:
"What you are getting very close to there is treating the conveyancing solicitor as if he had contracted to produce a result. He has contracted to give you a clear title and practically any mistake on his part which prevents that result from being attained will attract liability. The underlying truth seems to be that judges regard conveyancing as an activity which should give a result to the client."

and later:

"The trouble is that most lawyers, judges included, find it much easier to reach the right answer than to explain how they have done so. They prefer to rest upon well-worn formulae rather than to puzzle out the real reasons why one case is different from another."

The Bolam test is one such formula.

While in many cases there may be little difficulty in defining the result which the professional is to be taken as having agreed to achieve,²⁵ in others there may be difficulty. This difficulty may be invoked, doubtless correctly in many instances, as symptomatic of the professional not having agreed to achieve a result.
Apart from transparency, readier recognition of circumstances in which a professional person is to be taken as having agreed to achieve a result would have another benefit. There would be further incentive for detailed contracts of engagement agreements in which the professional's duties are clearly stated and explained. Such documents enable a more informed assessment of the relevant services and reduce the scope for misunderstanding and argument as to the duties undertaken. Insofar as the professional does not wish to be taken as having agreed to produce a particular result, that can be expressly provided for. Professional and other bodies clearly have an obvious role in developing standard agreements. This is a role which they are well used to, as best illustrated in the case of professional associations for architects and engineers and in the case of financial services regulators.
There would be another consequence. The more precisely and comprehensively that a professional's duties to the client are recorded in a written contract, the more the scope for contractual terms which may be seen as inconsistent with the admission of a concurrent duty of care in tort.
The concurrent duty of care in tort

Since Oliver J.'s decision in the context of solicitors in Midland Bank Trust Co. Ltd. v Hett, Stubbs & Kemp,²⁶ claims against professionals have generally been decided without questioning of a professional's concurrent duty of care in tort to his client, subsisting along with contractual duties to the claimant. That this can no longer be doubted is now apparent from the decision of the House of Lords (in a Lloyd's context).²⁷

The motivation for asserting the concurrent duty in tort has related to limitation of actions, contribution claims, contributory negligence and, generally unsuccessfully, to maintain a duty wider in scope than could be maintained on the basis of contract. Both claimants and defendants have found it to their advantage to assert the concurrent duty, but for different reasons. However, in the U.K. perceived anomalies and injustices relating to those matters, which originally motivated the courts to recognise the concurrent tortious duty, have now almost all been eradicated by statutory changes in the case of limitation²⁸ and contribution claims ²⁹ and by recognition that the defence of contributory negligence can be raised even to a contractual claim where the defendant’s liability in contract is the same as his liability in the tort of negligence.³⁰
Although the original motivations for the assertion of a concurrent duty have gone, it is probably too well entrenched in the U.K. to succumb to renewed attack.