Professional Negligence - 1930- 1959

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This page lists 10 cases, and was prepared on 28 October 2012.

Groom -v- Crocker [1939] 1 KB 194
1939	Legal Professions, Contract, Professional Negligence	Casemap 1 Citers
	An action by a client against a solicitor alleging negligence in the conduct of the client's affairs, is an action for breach of contract. A solicitor is not entitled to payment of his costs by his client where his own negligence makes the work he did quite ineffective.

Candler -v- Crane Christmas & Co [1951] 2 KB 164; [1951] 1 All ER 426; 36 Digest (Rep 1) 17; [1951] 1 TLR 371
15 Dec 1950 CA Cohen, Asquith, Denning LJJ (Dissenting)	Professional Negligence	Casemap 1 Cites 1 Citers
	Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as contrasted with fraudulently, made by one person to another though acted on by that other to his detriment, was not actionable in the absence of any contractual or fiduciary relationship between the parties. This principle had not been qualified Donoghue v. Stevenson. Denning LJ (dissenting) said:"Accountants, in preparing and rendering accounts and reports, owed a duty of care not only to their clients but to any third person to whom they knew that their clients were going to show the accounts and reports when, to the knowledge of the accountants, that person would consider the reports and accounts with a view to the investment of money or taking some other action to his gain or detriment. "Let me now be constructive and suggest the circumstance in which I say that a duty to use care in statement does exist apart from a contract in that behalf. First, what person's are under such duty? My answer is those persons such as accountants, surveyors, valuers and analysts, whose profession and occupation it is to examine books, accounts, and other things, and to make reports on which other people - other than their clients - rely in the ordinary course of business. Secondly to whom do these professional people owe this duty? I will take accountants but the same reasoning applies to the others. They owe the duty, of course to their employer or clients; and also I think to any third person to whom they themselves show the accounts, or to whom they know their employer is going to show the accounts, so as to induce him to invest money or take some other action on them. But I do not think the duty can be extended still further so to include strangers of whom they have heard nothing and to whom their employer without their knowledge may choose to show their accounts. Once the accountants have handed their accounts to their employer they not, as a rule, responsible for what he does with them without their knowledge or consent. The test of proximity in these cases is, did the accountants know that the accounts were required for submission to the plaintiff and use by him? Thirdly, to what transactions does the duty of care extend? It extends, I think, only to those transactions for which the accountants knew their accounts were required." Asquith LJ illustrated the law excusing liability for negligent miststatement: "Singular consequences would follow if the principle laid down in [Donoghue v Stevenson [1932] AC 562] were applied to negligent misrepresentation in every case in which the representee were proximate to the representor. The case has been instanced by Professor Winfield and referred to by my brother Denning of a marine hydrographer who carelessly omits to indicate on his map the existence of a reef. The captain of the Queen Mary, in reliance on the map and having no opportunity to check it by reference to any other map, steers her on the unsuspected rocks, and she becomes a total loss. Is the unfortunate cartographer to be liable to her owners in negligence for some millions of pounds damages? If so, people will, in future, think twice before making maps. Cartography would become an ultra-hazardous occupation."

Cassidy -v- Ministry of Health [1951] 2 KB 343
1951 CA Denning LJ, Somervell LJ, Singleton LJ	Professional Negligence, Vicarious Liability	Casemap 1 Cites 1 Citers
	The court considered the liability in negligence of the respondent for the negligence of doctors employed by it. Held: The Ministry was liable for the negligence of doctors who were employed by it on contracts of service. Denning LJ (dissenting) said that: "whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by themselves: they have no ears to listen through the stethoscope, and no hands to hold the surgeon's knife. They must do it by the staff which they employ; and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him." and "where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services."

Otter -v- Church Adams Tatham & Co [1953] Ch 280
1953 ChD Upjohn J	Damages, Wills and Probate, Trusts, Professional Negligence	Casemap 1 Citers
	The plaintiff was sole administratix of her son's estate. He had died on active service intestate. She claimd negligence on the part of the solicitors, saying they were in breach of their duty to exercise care and skill as solicitors, having failed to advise her, acting as the agent of Michael, that his interest in certain settled property was an entailed interest and, that having recently attained 21, he was in a position to disentail and make the property his own. Held: The plaintiff had established a breach of contract by the defendants. As to damages, the defendants said that a personal representative can have no better rights than the person he represents and that, since Michael could have received no more than nominal damages in his lifetime, the plaintiff, as his personal representative, could have no better claim than that. The matter was "admittedly free from authority", but the right of action which had previously been vested in Michael vested in his personal representative and that the damage had to be ascertained in accordance with principles affecting damages for breach of contract "at the time that the damage accrues."

Roe -v- Minister of Health [1954] EWCA Civ 7; [1954] 2 All ER 131; [1954] 2 QB 66; [1954] 2 WLR 915
8 Apr 1954 CA Somervell, Denning, Morris LJJ	Professional Negligence	Casemap 1 Citers
	The plaintiffs sought damages after being severely paralysed after what should have been minor spinal anaesthetic procedures. The nupercaine had been contaminated by seepage. A part time anaesthetist, not employed directly by the hospital had been found negligent. Held: Lord Denning cautioned against the use of hindsight in assessing whether an alleged tortfeasor has been negligent, since it was easy to be wise after the event. The standard of care is to be judged on the basis of scientific and technical knowledge at the time of the alleged negligence. The maxim "res ipsa loquitur" has no magical qualities. The hospital was liable for the negligence of those who administer treatment in its hospital, regardless of their exact employment status.
	Link[s] omitted

Hunter -v- Hanley [1955] SLT 213
1955 Lord President Clyde	Scotland, Professional Negligence	Casemap 1 Citers
	The court considered the dangers in establishing simple medical standards to judge medical treatments: "In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men … The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care."

Simmons -v- Pennington & Son [1955] 1 All ER 240; [1955] 1 WLR 183
1955 CA Lord Denning, Hodson L	Professional Negligence	Casemap 1 Cites 1 Citers
	Premises owned by the plaintiff were subject to an obsolete covenant restricting their use to that of a private dwelling house. It had in fact been used continuously for many years, both before and after the plaintiff became owner, for business purposes, without any complaint being made. In 1948 the plaintiff sold the premises by auction to B who paid a deposit. The particulars described the property as a "valuable and commanding freehold corner shop premises,". A special condition stated that the property was subject to the restrictive covenants as to user contained in a deed of 1870 (which restricted the user to that of a private dwelling house), so far as those covenants were subsisting and capable of taking effect. In answering a requisition as to title whether the premises were subject to a restrictive covenant, the defendants acting as solicitors for the plaintiff, replied "Yes, see special condition 7. There appear to have been breaches of the covenant as to user but no notice of breach has been served." The purchaser took that reply as a repudiation and recovered his deposit. While that action was pending another purchaser offered to buy the premises, but the defendants advised him not to sell pending the trial of the first action. The property was then damaged by fire. The insurance lapsed. He claimed damages from his solicitors for negligence. held: His action failed. The defendants having in answering the requisition acted in accordance with the general practice of conveyancers, which had been followed for many years without any ill consequence, they could not be held to have acted negligently or failed to come up to a reasonable standard of care, for they could not reasonably have anticipated the result which had flowed from it. The answer given to the requisition on title by the solicitors' managing clerk followed the form which the trial judge, Harman J. said had been used in answering such questions "from the time of the memory of man, or at all events for a long time." The solicitors had acted in accordance with the general practice of conveyancers; no ill consequences had ever been known to flow from an answer to a requisition in this form. Denning L.J. said that now the case had gone adversely to the vendor it was possible to see that a mistake had been made, but he warned against being wise after the event. The test to be applied was whether solicitors in that position had "failed to come up to a reasonable standard of care and skill such as is rightfully required of an ordinary prudent solicitor." It was impossible to say that these solicitors were guilty of a breach of duty to their client; it was one of those misadventures and misfortunes which sometimes happen in the best conducted businesses.

Goody -v- Baring [1956] 1 WLR 448; [1956] 2 All ER 11; [1956] Sol Jo 320
1956 CA	Land, Contract, Professional Negligence
	The plaintiff asked the defendant solicitor to act for him in the purchase of a leasehold house. The solicitor was also asked to act for the vendor. The replies he gave, innocently, on behalf of the vendor were inaccurate as to the conditions of the tenancies. The buyer eventually had to repay overcharged rents to the tenants. Held: The defendant was liable in that he had not questioned the vendor's answers, but had simply relayed them. In a contract for the sale of land the buyer's solicitor has a duty to make appropriate enquiries, and where these reveal some encumbrance, to pursue those enquiries. Once contracts have been exchanged, he remains under a duty to request confirmation of the replies given.

Lee -v- Sheard [1956] 1 QB 192
1956	Professional Negligence, Damages
	A company claimed a loss because its shareholder and director suffered personal injuries and was unable to work and earn money for the company. The company, of course, had no cause of action for the director/shareholder's personal injuries. The shareholder received less from the company than he would have done had been working for it.

Bolam -v- Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118
1957 QBD McNair J	Professional Negligence	Casemap 1 Cites 1 Citers
	Negligence was alleged against a doctor. Held: McNair J directed the jury: "Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising or professing to have that special skill. It is the duty of a professional man to exercise reasonable skill and care in the light of his actual knowledge and whether he exercised reasonable care cannot be answered by reference to a lesser degree of knowledge than he had, on the grounds that the ordinary competent practitioner would only have had that lesser degree of knowledge. This is not a gloss upon the test of negligence as applied to a professional man. That test is only to be applied where the professional man causes damage because he lacks some knowledge or awareness. The test establishes the degree of knowledge or awareness which he ought to have in that context. Where, however, a professional man has knowledge, and acts or fails to act in way which, having that knowledge he ought reasonably to foresee would cause damage, then, if the other aspects of duty are present, he would be liable in negligence by virtue of the direct application of Lord Atkins' original test in Donoghue v Stevenson. "it is not enough to show that another expert would have given a different answer . . the issue is . . whether [the defendant] has acted in accordance with practices which are regarded as acceptable by a respectable body of opinion in his profession" and "How do you test whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man . . But where you get a situation which involves some special skill or competence, then the test of whether there has been negligence or not is not the test of the man on the top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill."