PROFESSIONAL NEGLIGENCE

If you have been the victim of inadequate advice or improper conduct from a qualified,
professional person and lost out financially as a result, you may be entitled to make a claim for
professional negligence.

Professionals are legally bound to exercise a reasonable skill and care when dealing with clients.
If they fail to do this and their mistake was one that a reasonable professional working in the
same field would not have made, and the client lost money as a direct result of the mistake,
then they are liable for damages.

Disputes arising from professional negligence can involve all manner of professionals, including:

 Accountants
 Engineers
 Architects
 Barristers
 Financial advisers
 Insurance Brokers
 Solicitors
 Surveyors
 Tax consultants

For a professional negligence claim to be successful, you will need to establish the existence of
a duty of care on the part of the professional, and that this duty has been breached.

Or

The term "professional negligence" is used when a professional person provides a client with
incorrect advice or makes errors whilst providing a service.

A professional person could be an accountant, architect, barrister, doctor, estate agent,

financial adviser, insurance broker, insurance company, solicitor, surveyor or tax consultants to
name but a few.
If the incorrect advice or poor service led to the client suffering a financial loss or a personal
injury, they may be entitled to make a claim for compensation. This claim would be known as a
professional negligence claim.

Case 1

Thake v Maurice [1984] 2 All ER 513

a railway guard and his wife had five children living in a three-bedroomed council house and
were unwilling to have further children. Thake consulted the surgeon who made it clear that a
vasectomy was final and that Thake after the operation would become permanently sterile.
Although the vasectomy was properly performed, the effect of this operation was naturally
reversed and, not unexpectedly, Mrs.

Thake conceived and a daughter was born. It was held that, applying the objective standard,
the surgeon had contracted not merely to perform a vasectomy but had contracted to make
Mr. Thake irreversibly sterile. The judge relied on the consent forms which stated that the
vasectomy would be final. The claim was brought in contract and in tort.

Peter Pain J. found that there was no reason why public policy prevented the recovery of
expenses arising from the birth of a healthy child. He awarded damages in respect of the
expenses of the birth and the mother's loss of wages but refused damages for the pain and
distress of labour holding that these were off set by the joy occasioned by the birth.

He did, however, award damages in an agreed sum for the child's upkeep to its seventeenth
birthday. The Court of Appeal held that damages should be awarded for pain and suffering "per
the majority" in tort rather than contract. The joy of having the child could be set off against the
time, trouble and care in the upbringing of the child but not against prenatal pain and distress.
For the latter, damages should be awarded.

The case is also interesting because there was an alternative interpretation of the consent
form. After sterilisation, some couples want to change their minds because their children have
died or because they are seeing better days.

Instead of the surgeon giving a guarantee of irreversible sterility which depended on the way in
which human tissue healed, the warning of finality could be aimed at telling both husband and
wife that they could not change their mind later and complain if the spouse had become
permanently sterile.
Facts

Mr Thake was a railway guard and they were not financially comfortable with five children
already (two grown up), living in a three bedroom council house. Mrs Thake wanted to be
sterilised, but the NHS waiting list was long and they could not afford to go private. Their doctor
suggested Mr Thake have a vasectomy and arranged for them to see Mr Maurice. He did not
advise Mrs Thake that there was a small chance that after a vasectomy there could be
recanalisation and Mr Thake would become fertile again.

Mrs Thake ignored the signs of pregnancy because she though it had worked, and then only
realised when she was five months pregnant. She wanted an abortion, but it was too late. A
healthy child was born called Samantha. They sued in contract and tort for damages.

Judgment

The Court of Appeal held that a normal, reasonable person knows that medical operations are
not always successful, and that simply by promising to do an operation, there is no promise for
success. Speaking about what an ordinary person would think, Nourse LJ said "it does seem to
me to be reasonable to credit him with the more general knowledge that in medical science all
things, or nearly all things are uncertain."

All agreed that as a matter of tort, failure to warn about a small risk of failure amounted to a
breach of the duty of care between surgeon and patient. The measure of tort damages were
less than potential contract damages of £2500, being only £1500 to take account of the fact
that she did not have the pain of an abortion.

But there would be no damages for breach of contract, to put the patient in the position as if
the contract had been successful, or in other words, to reimburse for the expenses of bringing
up the child.

Kerr LJ[1] concluded his judgment as follows. He referred to Lord Denning MR in Greaves & Co
(Contractors) Ltd v Baynham Meikle & Partners [2] when he said, “The surgeon does not warrant
that he will cure the patient.”

“ That was said in the context of treatment or an operation designed to cure, not in the ”
context of anything in the nature of an amputation. The facts of the present case are
obviously extremely unusual, but I do not see why the judge's and my conclusion on
these unusual facts should be viewed by surgeons with alarm, as mentioned by the
judge. If the defendant had given his usual warning, the objective analysis of what he
conveyed would have been quite different, and it is also to be noted that in the second
 consent form referred to by French J in his judgment in Eyre v Measday (unreported), 3
July 1984, the wording included the following

The purpose of the operation is to render me sterile and, although it is nearly 100 per
cent. successful, I appreciate that this cannot be guaranteed. It may not be possible to
reverse the operation.

Accordingly, I would uphold the judge’s conclusion that the plaintiffs succeed in their
claim that the revival of Mr. Thake’s fertility gave rise to a breach of contract on the
part of the defendant.

Neill LJ said,

“ It is the common experience of mankind that the results of medical treatment are to some
extent unpredictable and that any treatment may be affected by the special characteristics
of the particular patient. It has been well said that “the dynamics of the human body of
each individual are themselves individual.”… The reasonable man would have expected the
defendant to exercise all the proper skill and care of a surgeon in that speciality; he would
not in my view have expected the defendant to give a guarantee of 100 per cent. success.
TRESPASS ON GOODS

WRONGFUL INTERFERENCE WITH GOODS.

The action for trespass to goods affords a remedy where there has been an intentional or
careless direct interference with goods in the claimants’ possession at the time of the trespass,
whether that is by taking the goods from him, or by damaging the goods without removing
them. It is to be noted that it is of no help where the relevant interference with the goods was
indirect. There can also not be an action in trespass where the goods were not in the
possession of the claimants.

ELEMENTS OF TRESSPASS TO GOODS

 Trespass cannot exist if the interference is indirect. Therefore it is actionable per se, as
per the dictum of Lord Blanesburg in the case of William Leitch V Leydon[42] It
supported the view that trespass is always actionable per se.
 The claimant must be in actual possession of the goods at the time of the interference.
Possession connotes the power (factum) of exercising physical control and the intention
to exercise such powers on his own.

Lord Esher in the case of Johnson V Diprose[43] said…’the plaintiff in an action of trespass has
the present possession of goods, either actual or constructive or a legal right to the immediate
possession…’

Generally, trespass to goods can include:

1. Moving goods from one place to another.

2. Bringing ones person into contact with goods.
3. Directing missile at another’s goods.
4. Taking goods out of possession of another.

CASE

Armory v Delamirie (1722) 5 Stra 505, 93 ER 664

Armory v Delamirie (1722) 1 Strange 505, is a famous English case on personal property law and
finder's rights. It is one of the first cases that established possession as a valuable property right
and as evidence of ownership
FACTS

Armory was a chimney sweep's boy who found a jewel in the setting of a ring. He took the jewel
to the shop of Delamirie, a goldsmith, to obtain a valuation of the item. An apprentice, the
agent of Delamirie, surreptitiously removed the gems from the setting on the pretense of
weighing it.

The apprentice returned with the empty setting and informed Armory that it was worth three
halfpence. The apprentice offered to pay him for it but Armory refused and asked the
apprentice to return the stones and setting in their prior condition.

The apprentice returned the socket of the jewel without the gems. Armory brought an action
against Delamirie in trover (via respondent superior for the actions of his apprentice).

The issue before the court was whether either party had any property rights to the jewel.

JUDGMENT

The Court held that both Armory and Delamirie had property rights in the jewel, even though
neither was the true owner.

Lord Pratt CJ held they each have a right to possession that is enforceable against everyone
except those with a greater right to the possession. The true owner of the jewel was not
relevant; the Court was only concerned with who had a better right to possession.

The priority of rights to possession say that a finder has better title to property that he or she
finds over everyone except the true owner, thus Armory had full title to the jewel. The Court
found in favour of Armory.

Since the jewel was not produced at the trial, Armory was awarded the maximum value that a
jewel of that form could have (under the principle that a wrongdoer should not be able to
derive gain, i.e. uncertainty of damages, from the effects of his wrongdoing).

REPORT

The plaintiff being a chimney sweeper's boy found a jewel and carried it to the defendant's shop
(who was a goldsmith) to know what it was, and delivered it into the hands of the apprentice,
who under pretence of weighing it, took out the stones, and calling to the master to let him
know it came to three halfpence, the master offered the boy the money, who refused to take it,
and insisted to have the thing again; whereupon the apprentice delivered him back the socket
without the stones. And now in trover against the master these points were ruled:

1. That the finder of a jewel, though he does not by such finding acquire an absolute property
or ownership, yet he has such a property as will enable him to keep it against all but the rightful
owner, and subsequently may maintain trover.

2. That the action well lay against the master, who gives a credit to his apprentice, and is
answerable for his neglect, Jones v Hart, Salk 441. Cor. Holt CJ[2] Mead v Hammond, supra.
Grammer v Nixon,[3] post, 653.

3. As to the value of the jewel several of the trade were examined to prove what a jewel of the
finest water that would fit the socket would be worth; and the Chief Justice directed the jury,
that unless the defendant did produce the jewel, and shew it not to be of the finest water, they
should presume the strongest case against him, and make the value of the best jewels the
measure of their damages: which they accordingly did.