Wrongs and Remedies in the Twenty-First Century

By Peter Birks | Go to book overview

2
Professional and Client: The Duty of Care

JOHN L. Q. C. POWELL

In the field of professional negligence, the duty of care owed by the professional to the client is central. Nevertheless it is argued in this paper that it has been accorded undue dominance. It does not always accurately summate the professional's duty. There should be greater recognition that in certain circumstances a professional's duty is to achieve a particular result. Further, it is unfortunate that in professional contexts tort has been accorded such primacy relative to contract so as narrowly to confine the circumstances in which a concurrent duty of care in tort is negated.


THE DUTY OF CARE

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.1 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,2 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 as to run concurrently with the duty in contract.3 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

____________________
1
It is variously expressed, including as the standard which members of the relevant profession ought to achieve.
2
Bolam v Friern Hospital Management Committee [ 1957] 1 W.L.R.582.
3
In some circumstances the professional may also owe a duty of care to third parties.

-47-

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