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CARE AND SKILL

LEGAL

Are you sitting down? I am going to say something you won't like, writes Kim Franklin.

Professional negligence. No, it's not very nice, but what does it mean? The concept is bandied about with alacrity, especially in times of trouble, but many accusers, accused and even some tribunals would be hard pushed to come up with a deffinition. And when you explore what is behind this well-worn phrase it is easy to see why.

Let's start with 'professional'. The courts have consistently fought shy of providing a comprehensive definition of this word. While they agree that a professional must have some special skill or qualification, they recognise that many occupations which require training and experience can't be described as professions.

What's more, times change - the work of a surgeon used to be carried out by a barber!

The profession of management consultant has developed relatively recently and other vocations may yet acquire the status. One of the leading texts on professional negligence adopts a pragmatic approach and classifies a profession with reference to the amount of litigation it has generated.

'Negligence' is another tricky word. For many people it indicates neglect or dereliction of duty. But this ignores the fact that you can be as diligent and attentive as you are capable of, yet still be utterly incompetent.

Others believe that negligence is synonymous with error or mistake. But no.

A professional is required to exercise skill and care. The standard of care to be expected is determined by the members of the profession concerned.

An architect, for example, is required to demonstrate the standard of skill and care to be expected of an ordinarily competent architect. In matters of judgment and complexity, no human can be right every time.

Viewed in that light, it is easy to see how a competent person may still be completely wrong.

Nor can negligence be equated to a failure to deliver, since success or failure may depend upon factors beyond the professional's control.

Professionals do not guarantee a result - for example, a doctor does not promise a cure. This highlights an important distinction between professionals and contractors.

Contractors who fail to comply with the contract are liable for breach, but a professional is only liable if they have failed to exercise reasonable skill and care.

Even this requirement comprises two separate components, as was explored in Lillywhite v UCH (Judgment 07.12.05). An antenatal radiologist failed to notice a serious abnormality of the brain. The claimant alleged that the relevant structures for normality were just not there to be seen, but the consultant sought to demonstrate that he had carried out the task with great care. The court held that a professional is required to display not just care, but care and skill. The consultant had failed to demonstrate that the necessary skill or judgment was exercised in assessing the actual condition.

All in all, while it is easy to bandy the allegation of professional negligence about, it is much harder to prove.

Are you still sitting down?

You can get up now.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com

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