The Professional Negligence Law Review First Edition

I INTRODUCTION

I Legal framework

General grounds for professional liability and their legal bases

The main grounds for a claim concerning professional liability are breach of contract, negligence and breach of fiduciary duty. As a general rule, where there are claims for tort and breach of contract available, liability should be determined by reference to contract rather than by reference to tort.1

Negligence

The primary line of authority for professional negligence claims stems from the UK decision of Bolam v. Friern Hospital Management Committee2 as approved in Ireland by Ward v. McMaster.3 The standard of care applicable in professional negligence cases is by reference to the 'ordinary skilled man exercising and professing to have that special skill'.

Contract

There is an implied term that a professional will exercise reasonable care and skill in providing services to their client. The scope of the services to be rendered will usually be defined in the contract and disputes frequently arise where there has been an element of 'mission creep'.

Fiduciary duty

Some professions also owe fiduciary duties to their clients, such as a duty of confidentiality. These may arise where the relationship is one of trust and loyalty. A plaintiff can claim equitable remedies in the event of a breach of fiduciary duty.

Limitations on the extent of the professional's liability

Professionals may limit their liability with regard to the contractual obligations owed to their clients. This can be done, for example, by way of exclusion clauses, clauses limiting the scope of the duty, or indemnity clauses.

COMMON DEFENCES TO LIABILITY CLAIM

Defences

A defendant may defend a professional negligence claim by establishing that one of the required elements of negligence was not present. The defendant can argue that the service provided was of a reasonable standard, or that the defendant's actions did not cause the damage complained of. The defendant may also argue that the particular duty of care owed did not extend to cover the damage complained of, as it was outside the terms of the retainer. A professional has a duty to protect the client's interests and carry out instructions in the matter to which the retainer relates; however, this duty does not extend to advising on unrelated matters. While this principle can limit the scope of the obligations arising in contract, it does not prevent a duty from arising in tort. It should be noted that compliance with an accepted practice will not always provide a full defence, and the fact that a practice is universal within a profession will not of itself protect the professional concerned from liability (Roche v. Peilow,4 ACC Bank Plc v. Johnston,5 Kelleher v. O'Connor).6

Partial defences that reduce the level of costs awarded Section 34 of the Civil Liability Act 1961 provides for apportionment in cases of contributory negligence. The court can reduce damages owed to a plaintiff as 'the Court thinks just and equitable, having regard to the degrees of fault of the plaintiff and the defendant'7 Further...