Negligence is an action that is taken when one fails to perform an act or does an act that was contrary to the ordinary expectations of a person of his caliber. Traditionally for an action of negligence to successfully convince the judges it is prudent that one evinces to the court that the other party owed him a duty care, the duty of care was breached and that the claimant suffered damages due to the breach. A professional who has professed to have a skill in a certain field but fails to perform the skills as required of the profession, the omission attracts a claim of professional negligence. It bears noting that a claim of professional negligence applies the traditional common law rules of negligence. It is incumbent a persons who do activities that are likely to have consequences on other people to take precautions to prevent any harm to people within their surrounding. Ideally, one should significantly mitigate the risks that are likely to occur and cause harm.
The central rule in professional negligence was established in the case of Hedley Byrne & Co Ltd v Heller and Partners Ltd where the court pronounced that if someone is in a position to give professional advice and based on the level skill he has one is compelled to rely on the advice to make a decision a duty of care arises and the professional will be negligently if a claimant relied on the advice which over the long haul caused him to suffer injury. The concept of duty of care and professional advice was further was further expounded in was Caparo Industries plc. v Dickman where it was held that duty of care in a relationship between the person giving advice and one relying on it will exist if the maker of the advice understands why the advice is sought and if the adviser knows that that his advice will be relied without any independent output. Conversely, in James McNaughton Papers Group Ltd. v Hicks Anderson & Co the court appeal agreed with Caparo but added that the duty of care in a case of professional advice is conditional on the constructive knowledge of the adviser about the use of the information that he is imparting. It was also noted that the party must not rely on his judgment but must solely rely on the advice given by the professional. It is imperative to note that the standard of care that is expected form the professional is that of a reasonable person with the same skills and abilities. The litmus applied in litigation of professional negligence cases is the Bolam test that was set in Bolam v Friern Hospital.
Phillip carried himself out as a professional and therefore gave advice to Simon but the advise was made casually and not in official capacity. As a matter of course the statement was made in a social place where adviser appeared to be intoxicated with alcohol. It can be argued that Philippa does not owe Simon a duty of care because the test established in Caparo was not satisfied. Philippa did not expect that Simon would rely on the casual advice he gave on investment of shares and therefore he requested him to see him the following day so that he can explain to him more about investment of shares since Simon said that he was not knowledgeable in shares investment. In addition, it can be argued that Simon decided to rely on his own judgment and not solely on the advice given by Phillipa.
Simon would be held to have relied solely on the advice given by Philippa if he received extra advice from him. It can thus be concluded that Philippa will not be liable for professional negligence because the essential elements have not been satisfied.
In the case of Peter and the national park and Simon and the liquor store the issue is whether the defendants in the possible case has taken measures to ensure that the risk is reduced as low as is reasonable practicable and if the risk was foreseeable.
It is submitted that reasonable foreseeability of risk and averting of risks are elements of a claim of negligence. According to Goff LJ in Austin Rover Ltd v Inspector of Factories in an effort to define what reasonable practicable he stated that it is not indispensable for the duty-holder to have the knowledge of all the risks and measures that he should take but rather what a reasonable person in same capacity and circumstances would have knowledge of and done to avert the risk. If this test is applied then it would mean that what is reasonably practicable is that which an ordinary person in the similar circumstances would do. The test for reasonable practicable may be borrowed from the common law negligence action test. The claimant must thus show that the duty bearer owed him a duty of care, the duty was breached and as a result the claimant suffered damages. The next question by the court will be whether the defendant had taken reasonable steps that any ordinary person would do to avert the risk. It is obvious that any employer owes a duty of care to persons likely to be affected by his acts or omissions, however, the standard of care that will be applied is assessed according to the specific circumstances of the duty holder.
In Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v The Queen the court held that the determination of reasonably practicable is conditional on the degree of foreseeability of the risk that was involved. This implies that the measures taken by the duty holder to preclude the risk must be proportionate to the degree of risk that is involved. Reasonable foreseeability of the risk or harm is determined on a case to case basis and is conditional on the specific circumstances and time. In R .v. Electric Gate Services the court held that the onus lies on the defendant to proof to the court that the risk or harm was too remote to be foreseen. In Baker v Quantum Clothing Group Ltd and Others the court held that section 2 and 3 of cannot be interpreted to mean that it is the actual accident that must be foreseeable but rather it means that any harm or injury that may have been suffered. The court also stated that the manner in which the foreseeable event occurred is immaterial as long as there was injury suffered. It also noted that foreseeability was a concept that was important to determine whether the place is safe and if any risk would occur. In fact before Baker, in Hughes vs. Lord Advocate the court emphatically stated that the fact that the harm that was foreseeable had not occurred but another one did does not extricate the defender form liability.
It can be argued that National park was in fact taking precautions to ensure that the risk did not occur. However, the contractors behind the construction of the swimming pool can be held liable because they did conduct a study of the area of construction and determine if it was appropriate to proceed with the construction of the swimming pool. If the construction of the pool was done by the national park they will be held negligently liable because they did not take reasonable practicable steps to avert the risk. The risk in the swimming was reasonable foreseeable because it is utterly incongruous that a swimming pol will be constructed just beneath roots of a tree. In the case of Simon in the liquor store, it is submitted that the store had taken reasonable measures to avert the risk that would occur and that Simon invited the injury to him self. It was a case of Volentis non fit injuria where the claimant in a claim of negligence volunteers to cause injury to himself.
The national park will therefore be liable for civil tort of negligence and will be liable to pay special damages that include medical bills that arise form the injuries that Peter sustained. The injury that Simon suffered was not reasonably foreseeable in any circumstance. The liquor shop will therefore not be liable for negligence. However, it is possible to take precaution against unforeseeable events. In any work place it is a reasonable measure for an employer to install fire extinguishers in case of fires although it is not always foreseeable that there will be fire.
It is a plausible conclusion that the test for reasonable practicable is conditional on the reasonable foreseeability of the risk or harm. The two coexist and must be applied contemporaneously in the determination of liability of a negligence case. The rise in professional negligence should send a message to professionals that they must exercise their skill to the best of their knowledge.
Bluff, L. and Johnstone, R., 2004. The Relationship between'Reasonably Practicable'and Risk Management Regulation. National Research Centre for Occupational Health and Safety Regulation.
Davies, M. and Malkin, I., 2003. Torts, 4th ed, Butterworths, Sydney
Austin Rover Ltd v Inspector of Factories  1 WLR 520
Baker v Quantum Clothing Group Limited  UKSC 17
Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781
Bolam v Friern Hospital (1957) 1 WLR 583
Caparo Industries plc. v Dickman (1990) 2 AC 605
Grant v The Australian Knitting Mills  UKPC 2,  A.C. 562
Hedley Byrne & Co Ltd v Heller and Partners Ltd  AC 465
Hughes v Lord Advocate  UKHL 8
James McNaughton Papers Group Ltd. v Hicks Anderson & Co (1991) 1 AER 134
Paris v Stepney Borough Council  AC 367
R . v. Electric Gate Services et al  EWCA Crim 1942
Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v The Queen  EWCA Crim 2015
Turner v Garland and Christopher (1853) cited in Hudson's Building Contracts (4th ed., 1914) Vol. 2, p. 1.
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