Wrongs and Remedies in the Twenty-First Century

By Peter Birks | Go to book overview

3
Professional Negligence in Tort: the search for a theory

K. M. STANTON


INTRODUCTION

If we are to ask ourselves what are the pressing problems which confront professional negligence law in 1995 we are likely to receive radically different answers from practitioners as opposed to academic lawyers. Practitioners will almost certainly single out the sorry state of the law on limitation of actions and complain that the Latent Damage Act 1986 failed to produce a regime which provided sufficient protection for the professional interest. They will continue to maintain the view that the application of standard principles of joint and several liability produces unacceptable results in relation to professional work.1 The auditing profession will argue that the Binder Hamlyn situation proves conclusively that the potential liabilities of the major practices are uninsurable and must be capped or controlled by some other mechanism such as incorporation.

Putting medical negligence issues to one side, academic lawyers are likely to concentrate their attention on the continuing doctrinal difficulties resulting from the Hedley Byrne decision and on the troubled borderline between contract and tort. Professional negligence liability in tort is caught up in the scepticism which permeates attitudes towards the tortious recovery of pure economic losses. The 'torts' crisis of the 1970s which was based on the assertion that the personal injury torts failed to deliver results which accorded with their prospectus has been replaced by a crisis which regards the underlying theory of the subject as bankrupt. The theoretical devices used by the courts are condemned as (and, to an extent admitted by the judiciary to be) meaningless and the law is left in a state which can be regarded as either one of total unpredictability or as depending on little more than judicial whim. Recent history offers a wide range of reasons to be sceptical. The seminal decision of Anns v Merton LBC2 has come and gone. The authority of Hedley Byrne v Heller3 continues to appear in a

____________________
1
Both limitation of actions and joint and several liability are currently subjects of review by the Law Commission.
2
[ 1978] AC728.
3
[ 1964] AC465.

-67-

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