In UK tort law, professional negligence is part of the general rule of negligence to cover situations in which the defendant has represented himself as having more than average skills and abilities. The usual rule relies on the stipulation that the duty of care is the debt of the defendant to the plaintiff, and that the defendant violates the obligation. The standard test of violation is whether the defendant has matched the ability of a reasonable person. However, based on the services they offer and supply, professionals consider themselves to have more than average abilities. This set of custom rules sets the standards that will be used to measure the legal quality of the services actually provided by those who claim to be the best in their field of expertise.
Video Professional negligence in English law
Hubungan antara kontrak dan tort
In principle, the torturous responsibility runs in parallel with the accountability of the contract. Subject to the privacy rules of the contract, the person who has signed the contract may sue or be sued on a contract that will specify the terms of service to be provided by a professional person, and if there is no express term for this consequently, there will be implied provision that the service will be made with attention and reasonable skills, per 49 (1) of the 2015 Consumer Rights Act. The standard of care required to fulfill this contractual obligation is similar to the omission, but the circumstances under which the respective liability may arise differ in voluntary contracts between the parties, while maintenance obligations are imposed by legal operations. However, suppose a contract lawyer with a medical expert to prepare a report for the purposes of personal injury litigation. The beneficiary of this job is the client but there is no direct contractual relationship between the expert and the client. Therefore it can be said that because the parties have decided to regulate their relationship to avoid direct contractual obligations, the client should not be allowed to sue in the lawsuit, bypassing the privacy rules and the exemption clause in the contract.
In Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 potential effectiveness of this argument is recognized in cases where there are formalized agency and sub-agency structures, but the general scope of this potential Limitations remain unclear. However, it is clear that if there are simultaneous accountability in contracts and lawsuits, the amount of damage is limited to the actual losses suffered and not increased because there are two causes of action.
In Thake v Maurice [1984] 2 All ER 513 a railway guard and his wife have five children living in a three-bedroom council house and do not want to have any more children. He consulted with the surgeon who explained that the vasectomy was final and that the Thake after the surgery would become sterile permanently. Although vasectomy is done correctly, the effect of this operation is naturally reversed and, unexpectedly, Ny. Thake pregnant and a girl born. It's been held that, applying objective standards, the surgeon has contracted not only to perform a vasectomy but has been contracted to make Mr. Thake permanently sterile. The judge rely on a consent form stating that the vasectomy will be final. The claim was brought in the contract and in the lawsuit. Peter Pain J. found that there is no reason why public policy prevents the recovery of costs arising from the birth of a healthy child. He provides compensation regarding the cost of births and wage-losing mothers but refuses damage due to labor pains and pain that holds that this is not governed by the joys caused by birth. He did, however, compensate in an agreed amount for the maintenance of the child for his seventeenth birthday. The Court of Appeal stated that compensation should be granted for pain and suffering "per majority" in the lawsuit rather than the contract. The excitement of having a child can be released from time, trouble and care in child care but not against prenatal pain and sadness. For the latter, damage must be provided. The case is also interesting because there is an alternative interpretation of the consent form. After sterilization, some couples want to change their minds because their children have died or because they see better days. Instead of the surgeon providing an irreversible sterility guarantee that depends on the way in which human tissue is healed, the final warning can be aimed at telling husbands and wives that they can not change their minds later and complain if the couple has become permanent. sterile.
Maps Professional negligence in English law
Discussion
Although objective standards of general care can not be derived, it can be generated where each defendant expressly or implicitly represents skills and abilities that exceed a normal person. This is an unfortunate fact of life that some professionals prove to be negligent because even the most experienced can make mistakes. The consequences for their clients can be disastrous. Thus, professionals who provide services in various situations, from surveyors and property agents to doctors, lawyers, accountants, financial services providers, Information Technology professionals, patent agents, etc., will be judged on the basis of the standards of those who claim to have a skill set and the same ability. This is the basis of the Bolam Test for medical negligence derived from Bolam v Friern Hospital (1957) 1 WLR 583. This test did not differ significantly from tests used in any other professional negligence litigation, but caused difficulties which is greater for the court than a claim against, say, an attorney or accountant, because of the technical issues involved. In addition, Hedley Byrne & amp; Co. Ltd v Heller & amp; Partners Ltd (1964) AC 465 creates a "reasonable belief" rule by the plaintiff on the skills of the accused.
- "Where a person is placed so that others may rely on his judgment or skill or ability to conduct careful investigations, and a person takes his or her own to provide information or advice, or permit him or her information or advice to be forwarded to, others who, because he knows or should know, will put his trust in him, then the duty of care will come up. "
The case of professional responsibility blurs the distinction between actions and statements, e.g. a medical specialist prepares a report for personal injury litigation, which may be characterized as a statement, but should be based on the preceding action of reviewing medical records and performing a client's physical examination. The actions nominally based on Hedley Byrne by definition include negligent or negligent acts, even though the decidend ratio of Hedley Byrne is thrown in terms of liability for the statement. In Caparo Industries plc. v Dickman (1990) 2 AC 605 criteria for maintenance tasks in providing advice expressed in more limited terms:
- "What can be inferred from the Hedley Byrne case, therefore, is that the necessary relationship between the statement maker or the counselor (advisor) and the recipient acting in dependence on it (the counselor) can usually be held where ( 1) the advice required for a purpose, whether specifically defined or explained in general, to be known, either actual or indirectly, to the advisors at the time of suggestion, (2) The Counselor knows whether or not the suggestion will be communicated to the counselor, either specifically or as a known class member, to be used by the advisor for that purpose, (3) to know, whether or not that the advice communicated may be acted upon by the advisor for that purpose without independent inquiry and ( 4) it was acted upon by the advisor for its loss. "
Following Caparo , Court of Appeals at James McNaughton Papers Group Ltd. v Hicks Anderson & amp; Co. (1991) 1 AER 134 adopts a more limited approach, focusing on the actual and constructive knowledge of advisers about the purpose for which the statement was made. Accordingly, the task must be limited to transactions or types of transactions in which the advisors know or should know that the advisor will rely on the statement in respect of the transaction without obtaining independent advice. It should also be pointed out that the advisor really relies heavily on statements without using his own judgment or obtaining independent advice. In Henderson v Merrett Syndicates Ltd. The Lords reaffirm the underlying principle that accountability under Hedley Byrne is the voluntary assumption of responsibility for performing the duties given by professional or quasi-professional service regardless of whether there is a contractual relationship between pages.
Medical negligence
- For full explanation, see Test Bolam
Medical negligence (also known as medical malpractice) differs from other litigation because the plaintiff must rely on expert medical evidence to establish all the major elements of accountability. The causes are especially difficult to prove because the effects of suspected negligent treatment should be distinguished from the underlying conditions of the patient that give rise to the need for treatment. Furthermore, damage assessment is often complicated because the court should compare the actual condition and prognosis of the claimant with hypothetical conditions and prognosis if the patient has received competent medical care. The court should only compensate for losses caused by negligent treatment, not because of the underlying conditions. In Bolam McNair J. declared in 587 that the defendant should act in accordance with the practices accepted as appropriate by "the body responsible for the medical man." Then, in 588, he referred to "the standard of practice recognized as appropriate by a competent opinion body." To determine whether a body of opinion is responsible, reasonable or respectable, judges should be satisfied that, in shaping their views, experts have turned their minds to the question of comparative risks and benefits and have reached a sustainable conclusion about the problem. For example, in Hucks v Cole reported in (1993) 4 Med. L.R. 393, a doctor fails to treat a patient who suffers from a septic in her skin with penicillin even though she knows there is a risk of puerperal fever. Sachs LJ.. said on 397:
- "When evidence suggests that a vacuum in professional practice is a risk of serious harm taken consciously, then, no matter how small the risks, the court should anxiously examine the lacuna - especially if the risks can be easily and cheaply avoided. , on the analysis of the reasons given for not taking precautions which, in light of current professional knowledge, there is no proper basis for emptiness, and it certainly does not make sense that they risk should be taken, its function is to state that fact and if necessary declare that it is an omission.In such a case, the practice will no doubt be changed for the benefit of the patient. "
Similarly, at Edward Wong Finance Co. Ltd. v Johnson Stokes & amp; Master (1984) 1 AC 296, lawyers have completed mortgage transactions in "Hong Kong style" rather than in English style. The fact that this style is almost universally adopted in Hong Kong does not make it logical or responsible for not guarding against the risk of fraud. Thus, the lawyers are responsible for negligence because they have to take precautions against the obvious risks. But the Masters of Bolitho v City and the Hackney Health Authority (1997) 4 AER 771 argues that it would rarely be appropriate for a judge to reach the conclusion that the view actually held by a competent medical expert is outrageous.
Legal negligence
Attorneys
For lawyers, Ross v. Caunters [1979] 3 AER 580, stating that lawyers may owe maintenance duties both to their clients and to third parties suffering loss or damage. In this case, lawyers fail to prevent beneficiaries from proving the will. They acknowledge negligence but deny that they are accountable to the claimant, argue (i) that the lawyer is only responsible to his client and then only in the contract and not in the suit and can not, therefore, be liable in the lawsuit to a third party; (ii) that for reasons of the policy, an attorney should not be liable for negligence to anyone but his client, and (iii) that in any case, the Plaintiff has no reason for the act of negligence because the damage suffered is purely financial. Apply the principles in Hedley Byrne & amp; Co. Ltd v Heller & amp; Partners Ltd and Donoghue v Stevenson [1932] AC 562, a lawyer instructed by a client to engage in transactions that would benefit third parties owed the third party's maintenance duties in executing such transactions , in the case that a third party is a direct contemplative in person as a person who is likely to be very close and directly affected by his actions or omissions so that he can predict that a third party will likely be hurt by such acts or omissions. This is confirmed in the White v Jones [1995] 1 AER 691 applied Caparo Industries plc v Dickman [1990] 1 AER 568 states that there is a close and direct relationship characterized by law as proximity or environment; and the situation is a situation where fair, fair and reasonable that legislation should impose a particular task on one hand for the sake of the other. But in Carr-Glynn v Frearsons [1997] 2 AER 614, lawyers acknowledge uncertainty, whether the wishes drawn will be effective. Testatrix performs to find the information needed to clarify this issue. He died more than three years later without verifying a will. White v Jones is distinguished because testatrix carries out maintenance tasks, but the courts are critical of the failure of lawyers to send reminder letters. The law also points to the need for law firm to keep records of attendance in detail.
Further, and perhaps most surprisingly, it has been held that a lawyer who advises a client about a proposal dealing with his property in his lifetime has no obligation to care for a recipient under the client's prejudicial prejudice. In Clarke v Bruce Lance & amp; Co. (1988) 1 WLR 881, it is recognized that lawyers may occasionally provide suggestions that directly harm the interests of others who have a client relationship. However, as long as this advice is consistent with the obligation to be paid to the client, there shall be no liability to such third party. Unbelievably, the lawyer has been held liable to the plaintiff, ie in a situation similar to holding funds on behalf of both parties in dispute pending settlement.
Barristers
At Hedley Byrne & amp; Co. Ltd v Heller & amp; Partners Ltd rules established that regardless of the contract, if someone who possesses a special skill performs to apply that skill to the aid of others who depend on that skill, the maintenance task will emerge. The fact that a lawyer does not enter into a contract with a lawyer or his client ceases to be the basis of justification for immunity. Nevertheless, in a unanimous decision, Lord Reid said in Rondel v Worsley (1969) 1 AC 191 in 227 that ancient immunity must proceed at the consideration of "unchanging public policy." (see Roxburgh: 1968). In Saif Ali vs Sydney Smith Mitchell & amp; Co. (1980) AC 198 scope of immunity is considered. Lord Wilberforce said in 213 that "... lawyers... have special status, just as courts have a special character: some immunities are necessary for the public good, even if, in some rare cases, a person may suffer harm.". (See Hill: 1986) When the s51 Supreme Court Act 1981 (replaced by the S4 Court and the Law Services Act of 1990) introduced the power to make wasted fee orders on legal practitioners, Ridehalgh v Horsefield (1994) ) Ch 205 decides that an injunction can be made against a lawyer personally.On the criminal court, the prosecutor does not owe obligations to the defendant: Elguzouli-Daf v Metropolis Police Commissioner (1995) QB 335. If the defendant is punished after the trial a full and fair, the cure is to appeal.The effort to challenge beliefs by prosecuting defense advocates will be a misuse of the process: Hunter v Police Chief of West Midlands Police (1982) AC 529. If there are challenges that must done after the unsuccessful appeal, the only valid way is the Criminal Review Review Commission even though the body lacks resources, but the question remains whether the action civilians can be maintained if the appeal is successful (see Cane: 1996).
In Arthur J.S Hall and Co. v Simons (2000) 3 AER 673, Lords re-evaluate public policy issues. The critical factor is the duty of a lawyer in court under ss27 (2A) and 28 (2A) of the Court and the Law of Services Act 1990 (inserted by s42 Access to Justice Act 1999). The question is whether immunity is needed to ensure that lawyers will honor their duties to court. In 1967, the answer was that negligence statements would tend to erode this task and give special status to lawyers. Today's comparison with other professionals shows that the lawyer's immunity to the demands in negligence is an anomaly. Allowing civil action is unlikely to result in a flood of claims and, even if some claims arise, a prosecutor who claims that poor advocacy produces unfavorable outcomes will face enormous difficulties to show that better advocacy standards will yield more profitable results. Dishonest claims â € <â € Witness
Because Watson v M'Ewan (1905) AC 480, British legislation has allowed public policy immunity against any witnesses, including those who provide "false and harmful" evidence or are just negligent. In [i> Evans v London Hospital Medical College (1981) 1 WLR 184, Drake J. says that, in criminal proceedings, immunity is closed, "statements... made for the purpose of possible action or prosecution and at when the likelihood of action or prosecution is being considered. "He also thinks immunity is extended,"... the act of witness in collecting or considering material that he may be summoned to provide evidence. " In Stanton v Callaghan (1999) 2 WLR 745, Chadwick LJ. said,
- "It seems to me that the following proposition is supported by the binding authority of this court: (1) an expert witness who provides evidence in court is immune from a lawsuit in respect of whatever he says in court and that the immunity will extend to the contents of the report which he adopted as, or include, the evidence; (2) where an expert witness provides evidence in the immunity court he will enjoy in relation to that evidence should not be circled by a suit based on the report itself and (3) the immunity is not extended to protects a detained expert to advise on the benefit of a claim of litigation of a lawsuit by the party he or she has held in the matter of the suggestion, even if it is in contemplation at the time of suggestion that the expert will be a witness at trial if the litigation continues. "
In Arthur JS Hall v Simons , Lord Hoffmann justified the policy without immunity, the witness "... will be more reluctant to help the court". In Darker and others v. WLR 747, the plaintiff alleges that the police have conspired with an informant to falsify and manipulate the evidence records. Lord Clyde confirmed immunity for the preparation of the report to be used in court. He says:
- "In drawing a line in a particular case it may be necessary to learn exactly what is being done and how closely it relates to the proceedings in court.... The reason for recognizing the benefits of immunity is the things that are said or done without walls the court is to prevent collateral attacks against witnesses and avoid the immunity that he enjoys in court. "
This affirms the general principle that a witness has no obligation to care for anyone in connection with the evidence given to the court. The only task is to tell the truth. In Section 35.3 of the Civil Procedure Code, the duty of the expert is to assist the courts and this duty "overrides" any liability that may exist for the client or the person who orders and/or pays for it.
However, the position in relation to expert witnesses was amended by the Supreme Court's ruling in 2011 on Jones v Kaney, which Stanton v Callaghan refused Stanton v Callaghan . As before, an expert will be responsible to his client for advice that clients are bidding and relied on under normal principles. However, as a result of the decision, an expert who provided the report added in evidence before the court no longer enjoys immunity from the lawsuit for claims of negligence or breach of contract (although immunity in defamation is still present).
See also
- Professional
- Professional abuse
- Professional ethics
- Professional responsibilities
References
- Cane, Peter. (1996). Tort Act and Economic Interests . 2nd Edition. Oxford: Clarendon Press. ISBNÃ, 0-19-876429-4
- Hedley, Steve. (1995). "Restoring Lost Wealth: White v Jones in Lords". 1 'WebJCLI [1]
- Hill, Jonathan. (1986). "Litigation and Negligence: Comparative Studies". 6 Oxford J.L.S. 183.
- Lodge Law School Court. (2004). Advanced Civil Litigation (Professional Negligence) in Practice (Blackstone Bar Manual S.) Oxford: Oxford University Press. ISBNÃ, 0-19-926425-2
- Powell, John; Stewart, Roger & amp; Jackson, Rupert M. (2002). Jackson and Powell about Professional Negligence (Public Law Library) . London: Sweet & amp; Maxwell. ISBNÃ, 0-421-79220-5
- Roxburgh. (1968). "Rondel v. Worsley: Historical Background". 84 Legal Quarterly Review 178
- Roxburgh. (1969). "Rondel v. Worsley: Immunity from the Bar". 84 Quarterly Review 513.
- Tettenborn, A.M.; Asif, Jalil; Plunkett, Christopher; Goodman, Andrew & amp; Wilby, David. (2003). Professional Negligence and Liability Report . London: Sweet & amp; Maxwell. ISBNÃ, 0-421-83960-0
Source of the article : Wikipedia
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