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Durham E-Theses Liability for negligence by members of professions Covell, John How to cite: Covell, John (1989) Liability for negligence by members of professions, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/6511/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk LIABILITY FOR MSGLIOEMCS BY E2EI3BERS OF PROFESSIONS &BSTR&CT The themes of the thesis arise from a perceived increase in the incidence of liability for negligence by professional persons. Factors affecting the increase are many and show there is a delicate balance to be maintained between independent action on the part of the professional and control by regulatory agencies such as the professional bodies and the courts. Chapter 1 The history of professional negligence is intimately connected with the development of the tort of negligence and the law of contract. Professional liability derived from membership of a 'common calling' and was based, initially in tort and later in contract, on doing badly or not at all something which had been undertaken. Chapter 2 A profession may be described as an occupation which displays certain traits in common with a number of other occupations. Among most important traits are autonomy from outside control, maintenance of standards and discipline. In the case of the latter two traits the courts also assume an overriding role. As a result, it is inevitable that there can be no absolute autonomy. However, if the professions do their jobs well enough then there should be less need for court supervision, bearing in mind that the courts, and not the professions, will deal with claims for compensation by those injured by professional activity. Chapter 3 Professions are concerned about the increasing incidence of claims in professional negligence. Such is the relationship between professional and client that duties may arise in contract and in tort. For the purpose of investigating professional negligence attention has been focussed upon the legal and medical professions. Much of the concern has been fuelled by disturbing accounts of malpractice liability in the USA. American trends may well develop in the UK but owing to cultural differences and differences between legal and medical systems the full impact will not be felt. Among factors which lead to concern over liability and which affect both professional and client, although differently, are causation, proof of negligence, level of awards, nature of awards and insurance. There are many procedural problems as a consequence of these factors. Chapter 4 The liability of the legal profession is examined. The liability of barristers arises in tort. Liability of solicitors, though formerly exclusively based upon breach of contract, is now based on contract and tort. A major area of concern has been the expanding scope of solicitors' negligence, particularly in the light of recent developments in the House of Lords. It appears that the prospect of widening liability has receded for the moment. Chapter 5 Advocates' immunity produces an anomalous situation of which barristers are the main beneficiaries. Immunity exists because of public policy considerations upheld by the courts. Other professions see no justification for the immunity and it is not granted in some other jurisdictions. In a climate of consumerism the immunity is under attack. Chapter 6 Medical negligence affords an opportunity to examine the mechanism for maintenance of standards of one group of professionals. The General Medical Council is charged with maintaining professional standards. However, it has little control over the standards associated with negligence and cannot, in any event, provide compensation for injured persons. The courts have this task and the issue of negligence standards falls to be considered by them. Unfortunately, the standards of the medical profession as a whole are taken to be the standards relevant for negligence. Thus, the accountability of the medical profession to the courts, and ultimately patients, is limited. Chapter 1 Disclosure of risk provides some insight into the doctor/patient relationship. In actions relating to non-disclosure of risk there is no allegation that medical treatment or procedures have been negligently performed. The patient suffers the consequences or side-effects of adequately performed procedures. The gist of the allegation is that there would have been no consent to the procedure if the risks had been disclosed. The problem is what risks should be disclosed? The issue raises questions about how far a patient has an interest in what happens to his own body, and how much patients should participate in decision-making. Conclusions There is no professional negligence "crisis" but there is a need to maintain vigilance in order that a balance might be maintained. Suggested reforms of the legal profession may produce adequate standards and discipline. Proposed reforms of health care provision may produce their own problems with regard to negligence. Substitution of a 'no fault* system for tort liability might be a way forward. Ls&lblllty for megligemce by members of prof ess ioms <> The copyright of this thesis rests with the author. No quotation from it should be published without his prior written consent and information derived from it should be acknowledged. John Covell Submitted for the Degree of Bachelor of Civil Law University of Durham Department of Law 1989 2 5 OCT 1989 CQMTBOTS I nt rodtactiom Chapter 1 A Historical Survey of Professional Negligence Chapter 2 The Nature of Professions Chapter 3 General Issues of Liability Affecting Professional Negligence Chapter^ Lawyers' Negligence Chapter 5 Advocates' Immunity Chapter S Medical Negligence Chapter 7 Disclosure of Risk Conclusion Table of Cases Table of Statutes Bibliography (a) Books consulted (b) Journals consulted Dec Xguf art ion I hereby declare that none of the material contained in this thesis has previously been submitted for a degree in this or any other university. Statement of Copyright The copyright of this thesis rests with the author. No quotation from it should be published without his prior written consent and information derived from it should be acknowledged. DEDICATION To Di, David and Michael ACKMO^JLEDGBSEHIT It would be inappropriate to submit this thesis without mention of the people who have advised, encouraged and assisted me in its preparation. I am indebted to Dr H. Teff of the University of Durham for the way in which he supervised and guided my work in such a patient and considerate manner. Others who deserve particular mention are M. L. Bowen, J.M.C. Constable and E. Giblin of Teesside Business School for their encouragement, Linda Watson of Teesside Business School and Jean Connell and Pauline Wayne of the Teesside Polytechnic Computer Centre who coped with my handwriting to produce this typed result, and the staff of Teesside Polytechnic Library who helped me locate references in other libraries. I cannot conclude without acknowledging my debt to my wife, Di, without whose constant encouragement, forebearance and patience this thesis would have been less than it is, and to our children David and Michael for being there. Introduction Professional activity has been a feature of organised society. Professions are themselves organised societies. Early in the development of civilization it is possible to find reference to activity which today we would classify as 'professional.' One of the earliest professions to emerge was medicine. If medicine is used as an example, the nature of professional activity might be illustrated from an early stage. In some ancient civilizations reference may be found to professional regulation. An example may be found by reference to Babylonian laws 'If a surgeon has made a serious wound [presumably meaning "a deep incision"] in a gentleman with a bronze knife, and has thereby saved the gentleman's life... he shall receive ten shekels of silver. If (the patient is) a commoner, he shall receive five shekels of silver. If (the patient is) a gentleman's slave, the slave's master shall pay the surgeon two shekels of silver. If the surgeon has made a serious wound in a gentleman with a bronze knife, and has thereby caused the gentleman to die,... they shall cut off the surgeon's hand.'1 The modern doctor should be thankful that the penalty for failure to conform to standards is no longer so drastic. Babylonian law was harsh but demonstrated that, from an early stage, organised society has felt the need to regulate the rights and duties of some occupations, particularly doctors. Continuing the theme of doctors, modern regulations may be traced back to Greek society in the 4th century B.C where the Hippocratic Oath represents an ideal by which a doctor should practise. As Greek philosophy provided an intellectual foundation the Hippocratic Oath found ready acceptance by the early Christian Church and the influence continued through the Middle Ages. Modern medical ethics, however, emerged and began to develop towards the latter part of the 18th century. The old professions of physicians, surgeons and apothecaries were undermined by the aspirations of the rising middle classes. As medicine developed and new voluntary hospitals were established, not only were the shortcomings of medical practice revealed, particularly during epidemics, but also public expectations were raised.
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