For that liability to be established the claimant must be able to prove that the defendant owed a duty of care and that the duty was breached causing a loss which would have been reasonably foreseeable or the standard of care that expected of him fell below that of the professional in the same field. This is known as the "Bolam test". The Bolem Test applies to all professionals and measures whether one has provided his standard of care whilst treating a client/patient. This standard of care was laid down in the case of Bolam v Friern Hospital Management Committee [1957] were it was alleged that a doctor had been negligent when failing to give a relaxation drug before the treatment on the fractured pelvis, as a result the plaintiff suffered a fractured jaw. It was held that the defendant was not liable. Mcnair J whilst addressing the jury stated that “...where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill...if a surgeon fails to measure up to that standard in any respect or he has been negligent and should be so adjudged” (7). The case suggests that even if the professional chooses the least popular or obvious choice, it does not necessarily amount to professional negligence if someone in the same field can support or justify it.
Since the Bolem case there has only been 1 reported case that the courts took the view that established practise is unsatisfactory and found negligence. That is the case of Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151 were a 2 yr old with croup died due to a sudden respiratory crises. A nurse urgently called for a doctor, the defendant, who then negligently failed to attend, her substitute’s pager had run out of batteries and was unable to be reached. Had the doctor attended and carried out the required procedures (intubated him) then the child would have lived, but not all the doctors would have intubated him and the defendant said she would not have done so. Dr Horne did breach her duty of care after being notified of Bolitho’s condition on numerous occasions. As negligence was established, causation had to be decided, but the trial judge held that, judging by the ‘on the application of Bolam test (perhaps it’s high tide mark) the court had no choice but to agree with the Defendant Experts and apply the principle that where the medical profession itself cannot agree as long as the doctor was acting in line with a responsible body of medical opinion he cannot be held liable’ (8). Therefore causation could not been proven.
The decision on this case reiterates the role of the court when deciding whether a treatment is negligent. It is very rare for the views of the medical expert to be held unreasonable, but nevertheless possible. It also reviews the theme that a professional person cannot be the sole judges of their own liability. This case is of great importance as the decision was qualified with the principle of the Bolam case. It was said that a court is not bound ‘to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are generally of the opinion that the defendants treatment or diagnosis accorded with sound medical practice... The court has to be satisfied that the exponents of the body of opinion relied on the demonstration that such an opinion has a logical basis’(9).
There have been a many cases in which professionals involved with property have been legally challenged in the tort of negligence. The case of Smith v Eric S Bush [1990] concerned a surveyor who negligently carried out the valuation of the property that Mrs. Smith wanted to purchase. Bush was negligent, in that, he didn’t check whether the brickwork above had been removed or was it properly supported. Then later the chimney fell into the bedroom. It was held that the surveyor owed the claimant a duty of care, and the appeal was dismissed. Even though a surveyor is supposed to value and protect the security of the building not advise the claimant on the value of the house, but it was foreseeable that she would rely on it (10). Limitation of liability for professional negligence is regarded as reasonable in a contract with a non-consumer more often.
In the case of Simaan Contracting Co v Pilkington Glass [1988] the plaintiff had a contract construct a building Abu Dhabi. In the contract it was stated that the client wanted a particular shade of green for the glass. After ordering the glass from the defendant, the glass was the wrong colour and causing the plaintiff more expenses. Simaan sued Pilkington in tort for negligence. It was held that as this was pure economic loss it was not recoverable. Dillon LJ stated that “in my judgement are at least two reasons why the submissions of a counsel for Simaan cannot be accepted and Simaan’s direct claim for economic loss against Pilkington must fail” (11).
Yainni v Edwin Evans & Sons [1982] is another case which affected surveyors. A house was valued at £12,000 by the defendants; the plaintiff borrowed the sum from the building society that had arranged for the valuation. The plaintiff then discovers that the house needed another £18,000 worth of repairs. Park J found the defendant owed a duty of care to the plaintiffs (12) this was based on the fact that most house buyers rely on only one evaluation rather than seeking another valuation from somewhere else.
If a party is wronged by tort then there are many routes available in compensating that wrongful tort. The first and obvious route is to compensate through damages or injunctions. Non-compensatory damages can be nominal, or exemplary (13).. Compensatory damages are believed to be a sum of money that will put you in the same position as you were before the tort had been committed also you can be liable for damages if a court believes that you Human Rights have been violated. If your claim’s successful you are usually awarded a lump sum but in some cases receive periodical payments. Injections are given for the defendants to do or refrain from doing i.e. trespass.
References:
1. Greys Dictionary. 2007. Man on Clapham Omnibus [online] available at http://graysdictionary.blogspot.com/2007/02/man-on-clapham-omnibus.html Accessed on November, 17,2009
2. Lexis Library. 2009. McQuire v Western Morning News Co [internet] available at http://www.lexisnexis.com/uk/legal/results/docview/docview.do?docLinkInd=true&risb=21_T7879939129&format=GNBFULL&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T7879939103&cisb=22_T7879939131&treeMax=true&treeWidth=0&csi=279846&docNo=5 Accessed on November, 14, 2009
3. WestLaw. [1933] 1 K.B. 205. Pg 224. Available at https://login.westlaw.co.uk/maf/wluk/app/document?&src=rl&suppsrguid=ia744dc3e000001250246e63b054a7b02&docguid=IB8E0AB01E42711DA8FC2A0F0355337E9&hitguid=IB8E0AB00E42711DA8FC2A0F0355337E9&spos=25&epos=25&td=27&crumb-action=append&context=4 Accessed on November,15,2009
4. Greer LJ. [1933] 1 K.B. Pg 206. Available at Westlaw [online] at https://login.westlaw.co.uk/maf/wluk/app/document?&src=rl&suppsrguid=ia744dc3e000001250246e63b054a7b02&docguid=IB8E0AB01E42711DA8FC2A0F0355337E9&hitguid=IB8E0AB00E42711DA8FC2A0F0355337E9&spos=25&epos=25&td=27&crumb-action=append&context=4 Accessed on November,15,2009
5. Supply of Goods and Services Act 1982, s.13.
6. Jenkins LJ. Wells v Cooper [1958] 2 QB 265; [1958] 3 WLR 1128 available in Richard Kinder’s Casebook on Torts. 9th edition. Pg 40.
7. McNair J, Bolam v Friern Hospital Management Committee [1957] QBD, 1 WLR 582; [1957] 2 All ER 118.
8. Bolitho v City and Hackney Health Authority [1997] 4 All ER 771.
9. Bolitho v. City and Hackney Health Authority [1997] UKHL 46
10. Smith v Eric S. Bush HL [1990] 1AC 831; [1989] 2 WLR 790; [1989] 2 ALL ER 514 available in Richard Kinder’s Casebook on Torts. 9th edition. Pg 117.
11. John Cooke’s Law of Tort. 8th ed. Simaan General Constracting Co v Pilkington Glass Ltd [1988] QB 758. Pg 99.
12. Yainni v Edwin Evans & Sons [1982] QB 438. Available from John Cooke’s Law of Tort. 8th ed. Pg 90 + 91
13. John Cooke’s Law of Tort. 8th ed. Remedies. Pg 488-499.