Professional Liability

Question 1

Where is the source of duty from?

Answer 1

Concurrent liability of both contract and delict (look at contract first then delict).

Question 2

Who is a professional?

Answer 2

Some skilled in something hard. Because the things they do mat not always be successful, the law has set up a different regime for liability with own specific rules (No Donoghue or calculus of risk)

ICL v Johnston

Question 3

Dickson v Hygienic Institute 1910

Answer 3

Lord Dundas said that if you identify yourself as a professional, you will be held to the standard of one.

Question 4

What is the standard of a professional?

Answer 4

The test is the standard of the ordinary skilled man exercising and professing to have that special skill.

Question 5

Hunter v Hanley 1955

Answer 5

Creates the test for liability for a professional:

1) That there is a usual and normal practice
2) That the defender did not adopt this practice
3) That the course which the defender adopted was one no professional man of ordinary skill would have taken if he was acting with ordinary care.

Question 6

Bolitho v Hackney Health Authority 1998

Answer 6

If the professional opinion backing up the professional in question’s conduct rests on logical and defensible grounds, this view should be the benchmark used to judge D’s actions. However, a judge may reject the expert evidence if it has no logical basis at all.

Question 7

Montgomery v Lanarkshire Health Board 2015

Answer 7

If its about treatment + diagnosis you use Hunter and Hanley (what would a normal doctor do)

But if its about advice, the doctor is under a general duty of care to disclose to you the risks involved and it would be irrelevant that other doctors would do the same

Question 8

What about for lawyers?

Answer 8

Still just do hunter v hanley

Question 9

What is the test for a professional?

Answer 9

Indicative factors, not determinative
ICL Tech v Johnston Oils
- extend of study required to enter
- skilled and specialised nature of work
- developing knowledge base and practice

Question 10

Paul v Wolverhampton NHS Trust 2025

Answer 10

Court ruled doctors owed no duty to the relatives of patients to prevent them from suffering harm as a result of witnessing the death of their relative (caused by medical negligence).

Question 11

What about negligence of a legal professional?