Professional Negligence
PROFESSIONAL NEGLIGENCE
THE CHANGING COASTLINE OF LIABILITY
John L. Powell Q.C.
Even the briefest acquaintance with the world’s major financial centres, and especially Hong Kong, London or New York, immediately confirms that we live in world dominated by professionals. The magnificent multi-storey edifices adorning the shores of this and similar cities are the castles and palaces of the present age, proclaiming the influence and power of professionals.
“Professional" is an acquisitive concept, acquisitive of aspirations and expectations - but also of liabilities. Claims for professional negligence are now common. Indeed they will become more so. This will be a product of increasing demand for their services, specialisation, higher standards and intolerance of bad performance by highly educated societies.
In a claim for negligent design against an architect arising from the collapse of a concrete roof, Erle J. in 1853 said:
"... if you employ [an architect] about a novel thing, about which he has little experience, if it has not had the test of experience, failure may be consistent with skill. The history of all great improvements show failure of those who embark in them".[1]
The claim failed.
Contrast this with Lord Edmund Davies's observation in 1980 in a negligent design case arising from the collapse of a television transmitter mast, reflective of a more consumer orientated society:
"The law requires even pioneers to be prudent".[2]
The claim succeeded.
In that contrast of statements, over a century apart, is summated the sea change in the attitude of society and indeed the courts towards professionals when things go wrong. Professionals and their insurers will need to adapt accordingly.
Nevertheless, the landscape of the law is far from bleak. The coastline of liability continues to change, but with erosion on some shores made up by accretions on others. The object of
THE CHANGING COASTLINE OF LIABILITY
John L. Powell Q.C.
Even the briefest acquaintance with the world’s major financial centres, and especially Hong Kong, London or New York, immediately confirms that we live in world dominated by professionals. The magnificent multi-storey edifices adorning the shores of this and similar cities are the castles and palaces of the present age, proclaiming the influence and power of professionals.
“Professional" is an acquisitive concept, acquisitive of aspirations and expectations - but also of liabilities. Claims for professional negligence are now common. Indeed they will become more so. This will be a product of increasing demand for their services, specialisation, higher standards and intolerance of bad performance by highly educated societies.
In a claim for negligent design against an architect arising from the collapse of a concrete roof, Erle J. in 1853 said:
"... if you employ [an architect] about a novel thing, about which he has little experience, if it has not had the test of experience, failure may be consistent with skill. The history of all great improvements show failure of those who embark in them".[1]
The claim failed.
Contrast this with Lord Edmund Davies's observation in 1980 in a negligent design case arising from the collapse of a television transmitter mast, reflective of a more consumer orientated society:
"The law requires even pioneers to be prudent".[2]
The claim succeeded.
In that contrast of statements, over a century apart, is summated the sea change in the attitude of society and indeed the courts towards professionals when things go wrong. Professionals and their insurers will need to adapt accordingly.
Nevertheless, the landscape of the law is far from bleak. The coastline of liability continues to change, but with erosion on some shores made up by accretions on others. The object of