Wrongs and Remedies in the Twenty-First Century

By Peter Birks | Go to book overview

6
Professionals as Competing Monopolistse

JOSHUA GETZLER


INTRODUCTION

Professional services are provided on a contractual basis; but the common law ascribes non-contractual duties sounding in tort and trust to augment these contractual relationships. In a world increasingly predicated on free contract as an organizing idea, the gnawing problem bothering our writers on professional negligence is how to justify the continuation and even extension of tort duties to highly contractual professional-client relationships.1 Even wider: judges and jurists find they must justify how the law can impose communal norms on professionals outside any patent contract with their clients, especially where the terms of those professional duties go beyond anything the parties actively considered -- or could have considered -- when designing and forming the relationship.2 White v Jones3 is a stark modern example of the conundrum: a solicitor was made the guarantor of an inheritance for intended heirs with whom he had never treated. The disappointed heirs fell within the range or 'proximity' of the solicitor's professional duties because it was reasonable for them to depend on him as a responsible expert, despite the absence of contractual nexus. The 'privity fallacy' which was demolished in Donoghue v Stevenson4 is only the most celebrated example of perennial troubles on the contract-tort border. There is constant insurgency on those borderlands, and professional negligence is but one example.5

____________________
1
A. Dugdale, "The Negligent Professional: Liable for an Unfair Share?"; K. M. Stanton, "Pressing Problems in the Law: Professional Negligence"; I. Kennedy, "The Fiduciary Relationship and its Application to Doctors and Patients"; J. L. Powell, "Professional and Client: The Duty of Care"; all in this volume.
2
D. F. Partlett, Professional Negligence ( Sydney, 1985) provides subtle arguments favouring contract over tort regulation. For a telling recent example of this attitude see P. S. Atiyah, An Introduction to the Law of Contract ( 5th ed., Oxford, 1995) 1-36, which baldly asserts the persistent dominance of free contract in modern British society, and calls for ex lege obligation to be confined as an aberration from the general rule of contract.
3
[ 1995] 1 All E.R.691.
4
[ 1932] A.C.562.
5
The wave of recent appellate cases expanding tort remedies is described fully in the papers cited at n. 1, above; perhaps the most remarkable are White v Jones, above, n. 3; Henderson v Merrett Syndicates Ltd. [ 1994] 3 All E.R.506; Spring v Guardian Assurance plc [ 1994] 3 All E.R.129. See generally N. J. McBride and A. Hughes, "Hedley Byrne in the House of Lords: An Interpretation" ( 1995) 15 Legal Studies 376.
Fellow of St. Hugh's College, Oxford. My thanks to Peter Birks and Jane Stapleton who helped me think through many of the ideas in this paper.

-141-

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