Chapter 09 - Persons Professing Some Special Skill

CHAPTER 9
PERSONS PROFESSING SOME SPECIAL SKILL
PARA.
1. Actions against skilled persons generally ................................................................. 9–01

A. Introduction .......................................................................................................... 9–01
2. Accountants and auditors ........................................................................................... 9–23
3. Architects, quantity surveyors, structural and other engineers, building
contractors .................................................................................................................. 9–50
4. Auctioneers ................................................................................................................. 9–75
5. Bankers and finance companies ................................................................................ 9–80
6. Barristers .................................................................................................................... 9–95
7. Dentists ....................................................................................................................... 9–107
8. Medical practitioners .................................................................................................. 9–109
9. Hospitals and Health Authorities .............................................................................. 9–155
10. Insurance agents and brokers .................................................................................... 9–168
11. Nurses ......................................................................................................................... 9–183
12. Quasi-arbitrators ......................................................................................................... 9–184
13. Schools and schoolteachers ....................................................................................... 9–185
14. Solicitors ..................................................................................................................... 9–213
A. The duty of care ................................................................................................... 9–213
B. The standard of care ............................................................................................. 9–232
C. Causation and damage ......................................................................................... 9–278
15. Stockbrokers ............................................................................................................... 9–302
16. Valuers, estate agents and surveyors ......................................................................... 9–304
17. Veterinary surgeons and practitioners ....................................................................... 9–336
1.—ACTIONS AGAINST SKILLED PERSONS GENERALLY

(A) Introduction
The ‘‘Bolam’’ test. If a task requires special skill, a reasonable man will not 9–01
attempt it unless he possesses the skill in question. If he undertakes it, it is
reasonable to expect that he display the same level of expertise as an ordinarily
competent practitioner in the relevant specialty. The standard is reasonableness:
‘‘Every person who enters into a learned profession undertakes to bring to the
exercise of it a reasonable degree of care and skill. He does not undertake, if he
is an attorney, that at all events you shall gain your case, nor does a surgeon
undertake that he will perform a cure; nor does he undertake to use the highest
possible degree of skill. There may be persons who have higher education and
greater advantages than he has, but he undertakes to bring a fair, reasonable and
competent degree of skill.’’1
1
Lanphier v Phipos (1838) 8 C. & P. 475, per Tindal C.J. See also Harmer v Cornelius (1858) 5
C.B.(N.S.) 236; Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners [1975] 1 W.L.R.
1095 at 1100, per Lord Denning. In some cases the language of the contract may lead to the inference
that the professional undertook to achieve a guaranteed result: see Platform Funding Ltd v Bank of
Scotland Plc [2009] 2 W.L.R. 1016, CA, para.9–304, below.
[551]
9–02 CHAPTER 9—PERSONS PROFESSING SOME SPECIAL SKILL
9–02 The same rule applies to any man in a skilled trade or business. ‘‘If a smith
prick my horse with a nail, etc., I shall have my action upon the case against him,
without any warranty by the smith to do it well . . . for it is the duty of every
artificer to exercise his art rightly and truly as he ought.’’2 In Bolam v Friern
Hospital Management Committee,3 McNair J. said:
‘‘Where you get a situation which involves the use of some special skill or competence,
then the test as to whether there has been negligence or not is not the test of the man
on the top of a 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 . . . A man need not possess the highest expert skill; it is well established law that
it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising
that particular art.’’
The Bolam test is of general application and is not confined to a defendant

exercising or professing the particular skill of medicine.4 It is sanctioned by long
usage in determining issues of liability where breach of duty by professionals, or
other persons applying professional skill,5 is alleged.6 It has no application when
the court is addressing the task of making findings of fact7; or where the issues
before the court do not raise something to which it is relevant.8
It follows that where a person holds himself out to be competent to do some
special kind of job, an action for negligence will lie for damage which has been
caused by any failure to exercise due care and skill, either by proving that the
defendant did not possess the requisite skill or by showing that, although the skill
may have been possessed, it was not exercised.
9–03 The standard of care and skill. In order to decide whether, on particular
facts, the standard of care and skill of a person of ordinary competence in the
relevant calling was achieved, it will be necessary to refer to professional
2
F.N.B. 94D.
3
[1957] 1 W.L.R. 582 at 586. See De Prez, ‘‘Something ‘old’, something ‘new’, something
‘borrowed’ . . . the continued evolution of Bolam’’ (2001) 2 P.N. 75.
4
Gold v Haringey Health Authority [1988] Q.B. 481 at 489. See also Ch.7, para.7–51, above.
5
Adams v Rhymney Valley District Council [2001] P.N.L.R. 68, CA, where there was disagreement
whether the Bolam test applied to an allegation that the absence of window locks with push buttons
was allegedly causative of a tragedy in which young children died in a fire: the majority rejected the
view that it had no application because the defendant council never purported to exercise the relevant
design skill; had professionals been asked to consider the matter, a responsible body of expert opinion
would have supported the provision in fact made. per Sir Christopher Staughton at 79: ‘‘The Bolam
test is not the monopoly of the expert.’’
6
In Phelps v London Borough of Hillingdon [2001] 2 A.C. 619, Lord Slynn pointed out that the
application of the Bolam test did not depend upon contract. It extended for instance to such groups
of professionals as educational psychologists and teachers and also education officers performing the
functions of local authorities in relation to children with special educational needs (at 653).
7
Penney v East Kent Health Authority [2000] P.N.L.R. 323, CA.
8
See Michael Hyde Associates v J.D. Williams & Co Ltd [2001] P.N.L.R. 233, CA, per Ward L.J. at
247, quoting Lloyd L.J. in Ward v Haringey HA [1988] 1 Q.B. 481, 490. Ward L.J. refers to other
situations where the test cannot apply, as where there is no recognised body of professional opinion
on the question and where whatever evidence of professional opinion is before the court, cannot
withstand logical analysis.
[552]
ACTIONS AGAINST SKILLED PERSONS GENERALLY 9–04
practice or opinion in that expertise.9 Inexperience cannot be a defence to a claim

against a professional, so the same standard of care is required of a junior
hospital doctor as of more senior colleagues.10 In order to exercise care and skill
to an appropriate standard, a professional should have a practical working
knowledge of the law relating to his area of expertise.11 Although the same
standard is applied to both a specialist and a general practitioner,12 the
application of the standard will vary on the facts. It will be relevant whether the
specialist claims knowledge, experience or excellence in an area outside the
experience of a general practitioner. Such a specialist may have to take extra
steps beyond those ordinarily required before the Bolam test is regarded as
discharged.13 It has been said that where a profession embraces a range of views
as to what is an acceptable standard of conduct, the competence of the defendant
is to be judged by the lowest standard that would be regarded as acceptable.14
Where a professional has adopted a practice which any ordinary, reasonable and
prudent person would foresee involved an inherent risk of loss to another, the
practice is unlikely to be regarded as evidence of the taking of reasonable
care.15
After a review of various authorities, Bingham L.J. summarised the Bolam test 9–04
as follows:
‘‘From these general statements it follows that a professional man should command the
corpus of knowledge which forms part of the professional equipment of the ordinary
member of his profession. He should not lag behind other ordinary assiduous and
intelligent members of his profession in knowledge of new advances, discoveries and
developments in his field. He should have such an awareness as an ordinarily competent
practitioner would have of the deficiencies in his knowledge and the limitations on his
skill. He should be alert to the hazards and risks in any professional task he undertakes
9
A v Tameside and Glossop Health Authority [1997] P.N.L.R. 140, CA, para.9–127, below.
10
Wilsher v Essex AHA [1987] Q.B. 730 (appeal allowed on the issue of causation [1988] A.C. 1074).
However, the standard of care expected of a prison hospital in relation to a mentally ill prisoner was
not the same as that of a psychiatric hospital outside prison, since the two perform different functions
and have different roles: Knight v Home Office [1990] 3 All E.R. 237 (a mentally ill detainee
committed suicide in the remand prison’s ‘‘special watch’’ cell before he could be transferred to a
hospital wing). See also Djemal v Bexley HA (1995) 6 Med.L.R. 269, para.9–129, below; also Brooks
v Home Office, The Times, February 17, 1999 (Knight did not support the proposition that a pregnant
woman in custody was not entitled to the same standard of obstetric care and observation as if she
was at liberty).
11
Jenkins v Betham (1855) 15 C.B. 168; Lee v Walker (1872) L.R. 7 C.P. 121.
12
Wimpey Construction UK Ltd v Poole, The Times, May 3, 1984.
13
Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners [1974] 1 W.L.R. 1261 (affirmed
[1975] 1 W.L.R. 1095). See also Seymour v Caroline Ockwell & Co [2005] P.N.L.R. 758 (in the
context of financial services, the standard of the reasonably competent professional could vary
depending whether the individual concerned had specialist expertise).
14
Michael Hyde and Associates v J.D. Williams and Co Ltd [2001] P.N.L.R. 233, CA, per Sedley L.J.
at 254.
15
Edward Wong Finance Co v Johnson Stokes & Master [1984] A.C. 1296 (the Hong Kong
conveyancing practice of handing over the purchase price of property to the vendor’s solicitor, in
advance of the date of completion, on an undertaking to keep the money safely and repay it if the
contract was not completed).
[553]
to the extent that other ordinarily competent members of the profession would be alert.
He must bring to any professional task he undertakes no less expertise, skill and care
than other ordinarily competent members of his profession would bring, but need bring
no more. The standard is that of the reasonable average. The law does not require of a
professional man that he be a paragon combining the qualities of polymath and
prophet.’’16
9–05 Expert evidence. In deciding whether an appropriate standard of care and

skill has been displayed, the opinions of experts, skilled in the calling in question,
are admissible in evidence.17 The court controls the reception of such evidence
and has a duty to restrict it to that which is reasonably required to resolve the
issues.18 An expert witness enjoys a privileged position. He or she is entitled to
give evidence not simply of the facts of a case, where they are within knowledge,
but also to express an opinion as to the significance of the facts. But with
privilege comes responsibility.19 The expert must not usurp the position of the
judge. Impartiality is essential even where it leads to conflict with the interests of
the party giving instructions20 In expressing an opinion, the expert must take into
account the range of views which experts of like discipline could reasonably hold
as to the facts.21
9–06 In receiving evidence as ‘‘reasonably required’’ to resolve a dispute about

proper professional practice the court is not concerned to hear practising
members of the profession in question say what they personally would or would
16
Eckersley v Binnie [1988] 18 Con. L.R. 1 at 79.
17
For the difficulties facing a party who has no appropriate expert evidence, or who attempts to rely
on expert evidence from a professional outside the discipline of the defendant, see Sansome v
Metcalfe Hambleton & Co [1998] P.N.L.R. 542, CA. See also Davies and Bergin, ‘‘Use of expert
evidence in professional negligence cases’’ 140 S.J. 952; also Jones, ‘‘Using experts with expertise’’
(1998) 12 Lawyer, 20.
18
See CPR 1998 Pt 35.1.
19
The duties and responsibilities of expert witnesses were summarised by Cresswell J. in National
Justice Cia Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyd’s Rep. 68
at 81–82 (quoted with approval in Vernon v Bosley (No.1) [1997] 1 All E.R. 577, CA at 601). As to
the need for an expert to be independent, see Liverpool Roman Catholic Archdiocese Trustees
Incorporated v Goldberg (No.2) [2001] 4 All E.R. 950 (a claim for professional negligence against
a barrister specialising in tax matters); per Evans-Lombe J.: ‘‘where it is demonstrated that there
exists a relationship between the proposed expert and the party calling him which a reasonable
observer might think was capable of affecting the views of the expert so as to make them unduly
favourable to that party, his evidence should not be admitted however unbiased the conclusions of the
expert might probably be.’’
20
An expert witness has immunity from suit for negligence at the instance of a party for whom they
provide advice: Stanton v Callaghan [1999] P.N.L.R. 116, CA. See Dye, ‘‘The immune system:
liability and immunity of expert witnesses’’ 152 N.L.J. 1753 ; Carr Q.C. and Evans, ‘‘The future of
immunity for expert witnesses’’ (2006) 3 P.N. 151 ; Carr Q.C. and Evans, ‘‘The future of immunity
for expert witnesses: an update’’ (2007) 1 P.N. 27; Robertson Q.C., ‘‘Expert witnesses: professionally
immune?’’ (2007) 2 P.N. 66.
21
In summarising the court’s approach to expert evidence Hoffmann L.J. in Zubaida v Hargreaves
[1995] 1 E.G.L.R. 127 pointed out that it was ‘‘ . . . 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.’’
See Harpwood, ‘‘Bolam, expert evidence and the role of judges’’ Health Law 2001 (6)1.
[554]
not have done in the circumstances. As Oliver J. said in Midland Bank Trust Co
Ltd v Hett Stubbs & Kemp22:
‘‘Clearly, if there is some practice in a profession, some accepted standard of conduct

which is laid down by a professional institute or sanctioned by common usage, evidence
of that can and ought to be received. But evidence which really amounts to no more
than an expression of opinion by a particular practitioner of what he thinks that he
would have done had he been placed, hypothetically and without the benefit of
hindsight, in the position of the defendants, is of little assistance to the court . . . ’’
So, where the allegation was one of negligence by a medical practitioner, it was
the duty of the expert witness to make clear whether the practice adopted by the
defendant accorded with that regarded as proper by a responsible body of
medical practitioners skilled in the area concerned, as opposed to whether the
witness would, in the same circumstances, himself have acted in a different
way.23
The duty of a court receiving evidence from experts on matters within their 9–07
expertise is to examine it in a critical way to ensure it has a logical and defensible
basis.24 Where one expert opinion is preferred to another, a court should support
its preference with reasons.25 Such reasons may turn upon the court having taken
a different view of the facts26 to that taken by the witness, or upon a preference
for the inherent likelihood of one view over another. The important point is that
some reasoned basis for preferring one view to another must be given.27 In an
22
[1979] Ch. 384 at 402, quoted with approval in McManus Developments Ltd v Barbridge
Properties Ltd [1996] P.N.L.R. 431, CA (a claim against a solicitor who was negligent in failing to
investigate when a problem with a boundary fence surfaced in the course of a conveyancing
transaction). See also Bown v Gould & Swayne [1996] P.N.L.R. 130, CA (again a case of alleged
negligence by solicitors, where the claimant wished to call expert evidence to establish best
conveyancing practice). Bown was distinguished in May v Woolcombe Beer & Watts [1999] P.N.L.R.
283 (the court would receive expert evidence of an experienced conveyancer as to an issue whether
inquiries should have been made by a solicitor instructed in the purchase of property, who had learnt
of an order of the Secretary of State modifying the status of certain rights of way nearby).
23
Sharpe v Southend Health Authority, The Times, May 9, 1997.
24
See Lord Browne-Wilkinson’s observations about the Bolam test in Bolitho v City and Hackney
Health Authority [1998] A.C. 232 at 240, 241. See further, Heywood, ‘‘The logic of Bolitho’’ (2006)
4 P.N. 225.
25
See, e.g. Flannery v Halifax Estate Agencies Ltd, The Times, March 4, 1999, CA; also Smith v
Southampton University Hospital NHS Trust [2007] EWCA Civ 387 (a clinical negligence claim in
which there was an issue between expert witnesses whether surgery had been carried out negligently
and, in rejecting a particular allegation the judge said only that the expert relied upon by the defendant
was was highly reputable and that it had not been suggested that he did not represent the view of a
responsible body of relevant medical opinion).
26
For an example where it was permissible to reject the views of competent experts, genuinely held,
about what was ultimately a question of fact, see Penney v East Kent HA [2000] P.N.L.R. 323, CA,
below para.9–158. See in relation to medical experts, para.9–125, n.377, below.
27
For a case in which the court was entitled to reject expert opinion see Marriott v West Midlands
Regional Health Authority [1999] Lloyd’s Rep. Med. 23, CA (claimant’s G.P. negligent in failing to
refer him to hospital after head injury even though an expert witness had said that keeping him at
home under review was a reasonable course of action); also D v South Tyneside Health Care NHS
Trust [2004] P.I.Q.R. P150, CA (a dispute between experts about the appropriate intervals between
which a patient, detained in hospital in her own interests pursuant to the Mental Health Act 1983,
should have been kept under observation). But in Calver v Westwood Veterinary Group [2001]
P.I.Q.R. 168, CA it was not permissible to prefer one body of veterinary opinion to another where
[555]
appropriate case the court may receive expert evidence even if, in breach of the
Code of Guidance on Expert Evidence annexed to the Civil Procedure Rules,
most of the expert’s work has been carried out on a contingency fee basis: one
solution is to receive the evidence but assess the risk of bias in the light of cross
examination.28
9–08 Generality of the duty. The duty to exercise reasonable care and skill is
applicable generally to everyone whose calling involves professional expertise,
including accountants and auditors,29 agents,30 architects, engineers and sur-
veyors,31 auctioneers,32 barristers,33 dentists,34 directors of companies,35 divers,36
nurses,37 patent and trade mark agents,38 physicians and surgeons,39 solicitors,40
stockbrokers,41 insurance brokers,42 valuers43 and veterinary practitioners.44
Where, as they frequently are, professionals are in partnership, a duty of care can
be owed by one partner to the others in relation to the conduct of a client’s affairs,
there was nothing in the evidence to allow the conclusion that the opinion of the expert relied upon
by the defendant was illogical (an allegation of negligent treatment of a horse after it had aborted a
foal).
28
Davis v Stena Line Ltd [2005] 2 Lloyd’s Rep. 13. In a clinical negligence claim, a medical expert
relied upon by the defendant was not automatically disqualified because he had been at a time before
the trial a member of the cases committee of the Medical Defence Union. It was observed that when
an expert provided a report he should produce his C.V., which should include details of any
employment or activity which raised a possible conflict of interest: Toth v Jarman [2006] Lloyds Rep.
Med. 397, CA. See Iller, ‘‘Conflicted experts’’ 2006 P.I.L.J. 50, 23.
29
para.9–23, below.
30
Keppel v Wheeler [1927] 1 K.B. 577; Price v Metropolitan House Investment Agency (1907) 23
T.L.R. 630; Gokal v Ram (1938) 55 T.L.R. 15.
31
paras 9–50 and 9–304, below.
32
Parker v Farebrother (1853) 1 C.L.R. 323; Hibbert v Bayley (1860) 2 F. & F. 48; Cyril Andrade
Ltd v Sotheby & Co (1931) 47 T.L.R. 244; para.9–75, below.
33
para.9–95, below.
34
para.9–107, below.
35
Re City Equitable Fire Insurance Co [1925] Ch.407. See also Re D’Jan of London; Copp v D’Jan
[1993] B.C.C. 646. But in Williams v Natural Life Health Foods Ltd [1998] 1 W.L.R. 830, HL,
para.9–20 below, there was no assumption of personal responsibility giving rise to a duty of care as
between a director of a franchisor company and franchisees, for loss allegedly suffered as a result of
negligent advice.
36
Wilton v Hampton, The Times, November 10, 1959 (no negligence where a professional diver
allowed his former pupil to dive in unfavourable conditions, the day after the latter qualified as a
master diver).
37
38
Lee v Walker (1872) L.R. 7 C.P. 121; Halifax BS v Urquart-Dykes & Lord [1997] R.P.C. 55 (the
duty of a trade mark agent pursuing an application to register is to advise his client of all legal pitfalls
reasonably connected with that application; there is no duty to give commercial advice but the client
should be warned of commercial difficulty that may arise as a result of any legal problem).
39
40
41
Neilson v James (1882) 9 Q.B.D. 546; para.9–301, below.
42
Chapman v Walton (1833) 10 Bing. 57; 2 L.J.C.P. 210; Coolee Ltd v Wing Heath & Co (1930) 47
T.L.R. 78; United Mills Agencies Ltd v R.E. Harvey Bray & Co [1952] 1 All E.R. 225n; para.9–168,
below.
43
Baxter v Gapp & Co [1939] 2 K.B. 271; para.9–304, below.
44
[556]
although it should not be assumed that breach of duty to the one will necessarily
import breach of duty to the others, since the two may not be co-extensive.45
Evolution of the duty. The liability of professionals evolved rapidly after 9–09
Hedley Byrne,46 although initially there was some reluctance to embrace the full
implications of the decision. In Mutual Life and Citizen’s Assurance Co Ltd v
Evatt47 the claimant sought damages from the defendant insurance company for
loss suffered as a result of negligent advice given to him gratuitously. The Privy
Council held, by a majority, that the duty of care was limited to persons who gave
advice in the course of a profession or business. But subsequently this type of
distinction was rejected. In Esso Petroleum Co Ltd v Mardon48 both the trial
judge and the Court of Appeal expressly stated their preference for the minority
opinions of Lord Reid and Lord Morris of Borth-y-Gest. If some special
relationship had arisen between the parties, the claimant had a remedy for advice
negligently given, even if the defendant was not in the business of giving advice
of that sort.49
Delegation of task. There is no reason why a professional cannot delegate the 9–10
whole or part of a task, provided that the act of delegation is not itself a breach
of duty (which is likely to be determined by the contract under which the task is
performed) and provided that reasonable care is taken in what is done.
‘‘Whether he is entitled to delegate a particular task will depend upon the nature of the
task. He is entitled to delegate some tasks to others but is not entitled to delegate others.
It all depends upon the nature of the task involved. If he does delegate he must delegate
to a suitably qualified and experienced person . . . ’’50
If there is a delegation to a suitable person the professional will not ordinarily be

vicariously liable for any negligent failure of that individual, but there can be
circumstances in which he continues to owe the claimant a personal duty of care,
for instance to perform some check on what has been done.51
The burden and standard of proof. The burden of proving professional 9–11
negligence normally rests on the claimant.52 Where, however, there is a general
45
Ross Harper & Murphy v Banks, The Times, May 30, 2000, OH (a firm of solicitors suing a former
partner for liabilities incurred by the firm as a result of alleged negligence in handling a client’s
affairs). See further Schmitz, ‘‘Reviewing partners’ liability principles’’ 152 S.J. 16.
46
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] A.C. 465. See Ch.2 para.2–172, above.
47
[1971] A.C. 793.
48
[1976] Q.B. 801, affirming on the question of liability [1975] Q.B. 819. See further, Batty v
Metropolitan Property Realisations Ltd [1978] Q.B. 554.
49
[1971] A.C. 793 at 810–813, both of whom were parties to the decision in Hedley Byrne, n.46,
above.
50
per Swinton Thomas L.J. in Arbiter Group Plc v Gill Jennings & Every [2000] P.N.L.R. 680, CA
at 686.
51
See, e.g. Gregory v Shepherds [2000] P.N.L.R. 769, CA (solicitors engaged to arrange a
conveyance in Spain who passed the purchase price to the foreign vendor before obtaining a reply to
their inquiry whether a search had disclosed any incumbrance on the property).
52
In Dwyer v Roderick, The Times, November 12, 1983, the CA observed that, whilst there are no
special rules about the burden or standard of proof in cases involving professional negligence, in
reality it will be harder to prove a case on the balance of probabilities where it concerns the
complicated and sophisticated professional activities of, say, a medical practitioner. In Harrington v
[557]
duty of care and failure to take a recognised precaution, followed by damage of

the kind which that precaution was designed to prevent, an evidential burden
shifts to the defendant to show either that there was no breach of duty or that the
damage was not caused by the breach.53 So far as the standard of proof is
concerned, the civil standard applies. But that standard is not inflexible and it has
been pointed out that a charge of professional negligence is a serious matter,
requiring a standard of proof commensurate with the gravity of the allegation. As
Lord Denning M.R. put it, the allegation of negligence against a professional
person, ‘‘ . . . stood on a different footing to a charge of negligence against the
driver of a motor car. The consequences were far more serious. It affected his
professional status and reputation. The burden of proof was correspondingly
greater. As the charge was so grave, so should the proof be clear.’’54
9–12 These words should not be taken to alter the balance of probabilities standard.
How that standard may come to be applied to the facts was described by Lord
Nicholls, albeit in a different context.55
‘‘The balance of probabilities standard means that a court is satisfied an event occurred
if the court considers that, on the evidence, the occurrence of the event was more likely
than not. When assessing the probabilities the court will have in mind as a factor, to
whatever extent is appropriate in the particular case, that the more serious the allegation
the less likely it is that the event occurred and hence the stronger should be the evidence
before the court concludes that the event is established on the balance of probability.
Fraud is usually less likely than negligence. Deliberate physical injury is usually less
likely than accidental physical injury . . . Built into the preponderance of probability
standard is a generous degree of flexibility in respect of the seriousness of the alle-
gation.
Although the result is much the same, this does not mean that where a serious
allegation is in issue the standard of proof required is higher. It means only that the
inherent probability or improbability of an event is itself a matter to be taken into
account when weighing the probabilities and deciding whether, on balance, an event
occurred. The more improbable the event the stronger must be the evidence it did occur
before, on the balance of probability, its occurrence will be established . . . ’’
9–13 Cause of action in both contract and tort. The same circumstances may
give rise to a cause of action against a professional both in tort and contract. In
contract, the duty arises from the agreement of the parties; in tort, it is
independent of agreement and is imposed upon the parties by law.
‘‘The distinction in the modern view, for this purpose, between contract and tort may be
put thus: where the breach of duty alleged arises out of a liability independently of the
personal obligation undertaken by contract, it is tort, and it may be tort even though
Essex Area Health Authority, The Times, November 14, 1984, the claimant failed to discharge the
burden of proof in a case of clinical negligence, where there were two possible explanations for the
occurrence of complications in his post-operative condition and the court was not prepared to select
one of them. See further as to the burden of proof, Ch.6, paras 6–01 to 6–04, above; Lewis, ‘‘Medical
Negligence: the Difficulties of Proof’’ 80 L.S.Gaz. 1647; Elsey, ‘‘Medical Negligence: Onus Proof on
the Practitioner?’’ 2 Lit. 319.
53
Clark v MacLennan [1983] 1 All E.R. 416.
54
Hucks v Cole, The Times, May 9, 1968.
55
Re H and K [1989] 2 F.L.R. 313, H.L. at 315.
[558]
there may happen to be a contract between the parties, if the duty in fact arises
independently of that contract. Breach of contract occurs where that which is
complained of is a breach of duty arising out of the obligations undertaken by the
contract.’’56
It follows that an action in contract lies only between the parties to an agreement, 9–14
whilst an action of tort has a much wider potential range.57 Further, the measure
of damages may well be quite different.
(i) Duty arising in contract

In most cases the legal relationship between a professional or other skilled 9–15
person and a client, patient or customer, is based upon contract. In the event of
some breach of duty, the cause of action is likely to be based on breach of that
contract. Generally, in the absence of any express term, there is a term implied
that the professional or other skilled person will exercise reasonable care and
skill in rendering the service contracted for. There will also usually be at least an
implied term as to payment of a reasonable fee for the work done. Indeed, as
pointed out by Oliver J. in Midland Bank Trust Co Ltd v Hett Stubbs & Kemp,58
there may be many more contractual obligations undertaken than these:
‘‘The classical formulation of the claim in this sort of case as ‘damages for negligence
and breach of professional duty’ tends to be a mesmeric phrase. It concentrates attention
on the implied obligation to devote to the client’s business that reasonable care and skill
to be expected from a normally competent and careful practitioner as if that obligation
were not only a compendious, but also an exhaustive, definition of all the duties
assumed under the contract created by the retainer and its acceptance. But, of course,
it is not. A contract gives rise to a complex of rights and duties of which the duty to
exercise reasonable care and skill is but one.’’59
Among the terms of the contract both expressed and implied will be those which 9–16
define the scope of the services to be rendered. As an example, where a solicitor
has been instructed to effect the grant of an option, there is an implied term that
he will register the estate contract before a third party has acquired an adverse
56
See Jarvis v Moy, Davies, Smith, Vandervell & Co [1936] 1 K.B. 399 per Greer L.J. See also
Jackson v Mayfair Window Cleaning Co [1952] 1 All E.R. 215 (a claim for damage to a chandelier
caused by persons who had contracted to overhaul and clean it, is an action in tort. ‘‘If the
defendants . . . interfere with [the claimant’s] property whether with or without her permission and
whether in pursuance of a contract or otherwise—they are under an obligation not to damage that
property as a result of their negligence, or in other words, they are bound to take reasonable care to
keep it safe’’).
57
e.g. see Holt v Payne Skillington [1996] 2 P.N.L.R. 179, CA.
58
[1979] Ch.384 at 434. The judge added as example: ‘‘If I employ a carpenter to supply and put up
a good quality oak shelf for me, the acceptance by him of that employment involves the assumption
of a number of contractual duties. He must supply wood of an adequate quality and it must be oak.
He must fix the shelf. And he must carry out the fashioning and fixing with the reasonable care and
skill which I am entitled to expect of a skilled craftsman. If he fixes the brackets but fails to supply
the shelf or if he supplies and fixes a shelf of unseasoned pine, my complaint against him is not that
he has failed to exercise reasonable care and skill in carrying out the work but that he has failed to
supply what was contracted for.’’
59
The decision was approved in Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145.
[559]
interest in the property concerned.60 Similarly, where a surgeon has agreed to

perform an operation on his patient in hospital, there may be implied a term that
subsequently he will provide proper supervision of the patient’s progress,
including any further treatment which is required up until his discharge from
care.61 In the event of the defendant’s being in breach of the contractual terms,
he will be liable, despite the actual amount of care taken and the skill applied by
him on behalf of the claimant.
9–17 The situation where a service is to be provided should be distinguished from

one where a product has ultimately to be delivered. In the former case, only the
duty of care described above is owed, whilst in the latter, there is also a warranty
that the product will be reasonably fit for its purpose.62 It has been argued
cogently that this principle should apply in other professional contexts, for
instance, as between consultant engineers or architects and their clients, where
design work is undertaken in connection with a building project.63
(ii) Duty arising in tort

9–18 A tortious duty co extensive with a contractual duty towards a professional’s
client is well settled. But a duty in tort can also be owed to third parties and the
formulae used in testing for the presence of such a duty have already been
discussed in Chapter 2. It is the application of those formulae in the context of
professional negligence that is the particular concern here.
9–19 The duty formulae. In Henderson v Merrett Syndicates Ltd,64 it was

important for limitation purposes that the claimants, certain Lloyd’s Names,
establish against the defendant underwriting agents a concurrent liability in
contract and tort. They succeeded, their Lordships stressing that assumption of
responsibility by a professional, coupled with reliance by the claimant was
sufficient to raise a duty of care. Depending upon the facts, the tortious duty may
be more extensive than that in contract.65 In other important examples a solicitor
has been held liable to an intended beneficiary on the basis of a deemed
assumption of responsibility in spite of the absence of any reliance by the latter
or any contractual relationship other than that between the solicitor and his own
60
Midland Bank Trust Co Ltd v Hett Stubbs & Kemp [1979] Ch. 384, above.
61
Morris v Winsbury-White [1937] 4 All E.R. 494 at 500 per Tucker J.
62
For product liability generally see Ch.15. See also e.g., Samuels v Davis [1943] K.B. 526 (a dentist
contracting to make a denture) per du Parcq J. at 530: ‘‘whether the contract be regarded as one for
the sale of goods or one for work and labour done, the dentist is contracting to make a denture which
will fit the patient’s mouth.’’
63
See IBA v E.M.I. Electronics Ltd (1980) 14 Build.L.R. 1 at 48, per Lord Scarman, who expressed
the view, albeit obiter, that where a person contracts to design an article for a purpose that has been
made known to him, he ‘‘undertakes that the design is reasonably fit for the purpose’’. For the facts,
see, further, para.9–69, below. Also, see Stanton and Dugdale, ‘‘Design Responsibility in Civil
Engineering Work’’ 131 New L.J. 583.
64
[1995] 2 A.C. 145.
65
Holt v Payne Skillington [1996] 2 P.N.L.R. 179, CA. Although for a contrary view see Conway v
Crowe Kelsey & Partners (1995) 39 Con.L.R. 1.
[560]
client66; and it has been held that an employer can be liable to a former employee
for a negligently written reference.67
In Williams v Natural Life Health Foods Ltd,68 it was stressed that the test of 9–20
assumption of responsibility was an objective one. The touchstone of liability
was not the defendant’s state of mind. Because the test is objective, the primary
focus should be on those things that were said or done by the defendant or on his
behalf in dealings with the claimant, their impact being judged in the light of the
relevant contextual scene. The claimant must also prove reliance, since, if he
failed to do so, it was not established that the assumption of responsibility had
causative effect. Lord Steyn said69:
‘‘The test is not simply reliance in fact. The test is whether the plaintiff could reasonably
rely on an assumption of personal responsibility by the individual who performed the
services on behalf of the company.’’
It is recognised that in some complex contracts the very nature of the 9–21
contractual arrangements may negative a corresponding duty of care in tort. In
Henderson v Merrett Syndicates,70 Lord Goff observed that a claimant who was
owed a contractual duty of care might also be able to rely upon a duty of care in
negligence, unless it would be ‘‘so inconsistent with the applicable contract that,
in accordance with ordinary principle, the parties must be taken to have agreed
that the tortious remedy is to be limited or excluded.’’71 The existence of a
contractual chain might militate against any assumption of responsibility because
it would have the effect of short-circuiting the contractual arrangements which
parties had been put into effect. Nevertheless, the basic question remains
whether, in relation for instance to advice, an adviser has assumed responsibility
to the claimant in light of all the circumstances including the contractual context.
The speech of Lord Goff tends to support the approach that it was for the adviser
to establish that the contractual arrangements negatived any assumption of
responsibility; not for the claimant to show that an assumption of responsibility
survived in spite of those arrangements.72
In the result a professional or other skilled person does owe a duty of care in 9–22
tort to his client or customer concurrent with any contractual duty. Such duty can
extend widely to third parties with whom no direct contact may have been
66
White v Jones [1995] 2 A.C. 207.
67
Spring v Guardian Assurance Plc [1995] 2 A.C. 296.
68
[1998] 1 W.L.R. 830, HL, Ch.2, above, para.2–194 (the terms of a brochure issued by a company,
which referred to the experience in the natural food trade of the managing director and principal
shareholder and his particular experience in running a shop of that kind, were insufficient to give rise
to a personal assumption of responsibility by that director to the claimant, a prospective franchi-
see).
69
Williams v Natural Life Health Foods Ltd [1998] 1 W.L.R. 830 at 835.
70
[1995] 2 A.C. 145.
71
Henderson v. Merrett Syndicates [1995] 2 A.C. 145 at 186.
72
See per Neuberger L.J. in Riyad Bank v Ahli United Bank (UK) Plc [2007] P.N.L.R. 1 at
[43]–[48].
[561]
made.73 It can be argued in terms either of an ‘‘assumption of responsibility’’

with or without reliance,74 or the three-stage test of Caparo.75 If the latter test is
employed, the terms of any contract between the parties will doubtless be one of
the matters considered in deciding whether it would be fair, just and reasonable
also to impose a duty of care.76 It has also been suggested that where the
defendant’s assumption of responsibility lies entirely within the context of the
contract between the parties, the tortious and contractual duties are likely to be
co-extensive: but not so where, against the background of a contractual
relationship involving limited mutual obligations, the general law imposes a duty
of care which exceeds the contractual duties in its scope.77 The type of damage
for which the defendant will be liable will vary with the circumstances, from
physical injury in the cases of persons such as doctors, dentists, barbers,
plumbers and similar occupations, to financial loss in the case of others, such as
solicitors, accountants, surveyors, bankers and stockbrokers.78 The claimant will
have a choice of remedies and will adopt that most favourable, one frequently-
cited advantage being that a claim in contract may well become statute-barred
before its counterpart in tort.79
73
Nasir, ‘‘Duties owed by professional advisors to third parties’’ (2002) 1 P.N. 12.
74
See, e.g. Brownie Wills v Ian Meredith Shrimpton [1999] P.N.L.R. 552, CA (NZ) (no assumption
of responsibility by solicitors acting for a bank towards the director of a company seeking an
overdraft facility to be secured by personal guarantees from all directors, where the solicitors failed,
contrary to instructions, to explain the nature of the transaction to the directors and the claimant then
acted under a mistake as to the extent of his liability under the guarantee: he had not sought or
received advice from the solicitors and was unaware at the time of the instruction the bank had
given).
75
In Spring [1995] 2 A.C. 296 above, only Lord Goff unequivocally approached the case by way of
an extension to Hedley Byrne. Lords Slynn, Lowry and Woolf arrived at the same result after analysis
in terms of the three stages of Caparo. See Smith, ‘‘The effect of contractual terms on the duty of care
owed to a third party’’ (1998) 2 P.N. 83, which usefully compares Australian and English decisions;
also Walford, ‘‘The evolution of liability of professionals to non-clients’’ (2002) 3 P.N. 177.
76
See, e.g. British Telecommunications Plc v James Thomson & Sons (Engineers) Ltd [1999] 1
W.L.R. 9, HL, para.9–63 below (it was not unfair, unjust or unreasonable that a building sub-
contractor, not nominated by the architect, should owe a duty of care to the employer and be liable
in damages for causing to materialise a risk specified in the employer’s building contract, in respect
of which the employer was bound to provide insurance). The case has been applied in New Zealand,
albeit on the facts no duty of care was imposed: see R.M. Turton & Co Ltd (in liquidation) v Kerslake
& Partners [2000] Lloyd’s Rep. P.N. 967, CA (NZ) (the engineer who was employed by architects
to prepare a mechanical services specification for a building contract did not assume any
responsibility to the head contractor so as to be liable for negligent misstatement). See generally,
Stanton, ‘‘Professional negligence: duty of care methodology in the twenty first century’’ (2006) 3
P.N. 134.
77
per Hirst L.J. in Holt v Payne Skillington [1996] 2 P.N.L.R. 179 at 194, 195, CA, distinguishing
remarks of Lord Scarman in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] A.C. 80
at 107.
78
For discussion of the recovery of damages for economic loss, see Ch.2, paras 2–169 to 2–237,
above. Where the claim is for ‘‘loss of the chance’’ damages, see Ch.6, paras 6–04, 6–56, above, and
the analysis of the CA in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 W.L.R. 1602,
particularly at 1623; also First Interstate Bank of California v Cohen Arnold & Co [1996] 1 P.N.L.R.
17, CA, para.9–48, n.168, below.
79
See, e.g. Lee v Thompson [1989] 40 E.G. 89, CA (where both claims were statute-barred); Power
v Halley (1978) 88 D.L.R. (3d) 381; Holt v Payne Skillington [1996] 2 P.N.L.R. 179, CA and
[562]
ACCOUNTANTS AND AUDITORS 9–26
2.—ACCOUNTANTS AND AUDITORS
The duty of care. The duties of an accountant or auditor80 to a client arise: (i) 9–23
out of contract81; (ii) from any fiduciary relationship; (iii) under statute; and (iv)
in tort, by way of the Hedley Byrne82 principle as subsequently elaborated.83 In
addition, (v) a duty in tort can be owed to third parties such as shareholders,84
potential investors including persons making takeover bids,85 and creditors.86
The scope of the contractual duty. Although the standard of care and skill 9–24
required of an accountant is constant, the contract with a client defines the scope
of the duties undertaken. Where, therefore, accountants were employed to certify
a return which was made by a branch office of an insurance company to the head
office, but not to make an audit of the branch books, they were not liable for
failing to detect the fraud of one of the employees at the branch office.87 Where
accountants were employed to investigate the accounts of a business to which
their client proposed to lend money, and they failed to discover that the stock
sheets overvalued the stock by three per cent, they were not negligent. Their duty
was to make a reasonable and proper investigation of the accounts and stock
sheets, and if a reasonably prudent man would have concluded there was
something wrong, to call their employer’s attention to the fact.88
Where an accountant’s task was to check books of account but not to make a 9–25
full audit, he was nonetheless negligent in drawing up a balance sheet where he
did not check the cash, look at the bank pass book or obtain a certificate from the
bank, but simply took the figures of cash at bank and cash in hand from the cash
book, in which wrong figures had been entered by a dishonest clerk.89 Even
where a claimant informally employed a partner in a firm of accountants to
advise him upon the sale of two businesses, it was held that a contractual
relationship existed between the parties, which gave rise to liability for
negligence in the accountant’s failure to advise the claimant properly.90
Fiduciary duties. An accountant is under a duty to take reasonable care of 9–26

any documents entrusted to him by a client, and not to disclose confidential
80
See Ch.2 para.2–190, above and also Kershaw, ‘‘Liability of professional advisers: Caparo and
beyond’’ (1996) 7 P.L.C. (3), 42; Virgo and Ryley, ‘‘Setting the standards for advice’’ (1997) 11
Lawyer, 11.
81
cf. Nelson Guarantee Corporation Ltd v Hodgson [1958] N.Z.L.R. 609.
82
[1964] A.C. 465.
83
See Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145, approving Midland Bank Trust Co Ltd
v Hett Stubbs & Kemp [1979] Ch. 384.
84
See Caparo Industries Plc v Dickman [1990] 2 A.C. 605.
85
Morgan Crucible Co Plc v Hill Samuel & Co Ltd [1990] Ch. 259, but also see Caparo Industries
Plc v Dickman, above.
86
See para.9–40, below.
87
Maritime Insurance Co v Fortune & Son (1931) 41 Ll.L.R. 16.
88
Henry Squire Cash Chemist Ltd v Ball, Baker & Co (1911) 27 T.L.R. 269, affirmed on other
grounds, 28 T.L.R. 81.
89
Fox v Morrish Grant & Co (1918) 35 T.L.R. 126.
90
Bradford v Wright Stevens and Lloyd, The Guardian, February 27, 1962.
[563]
information91 where communicated,92 or to make any secret profit.93 Liability in

damages will follow for breach of such duties.94
9–27 Statutory duties under the Companies Acts. When auditors of companies
are appointed under the Companies Acts, their duties are governed by those Acts.
Reference should be to the company law textbooks for a detailed statement of
those duties. But, in brief statement, it has been held that the duty of an auditor
is:
‘‘not to confine himself merely to the task of verifying the arithmetical accuracy of the
balance sheet, but to inquire into its substantial accuracy, and to ascertain that it
contained the particulars specified in the articles of association (and consequently a
proper income and expenditure account), and was properly drawn up, so as to contain
a true and correct representation of the state of the company’s affairs.’’95
Accordingly, where audited accounts incorrectly showed that a company was

entitled to ‘‘moneys lent’’ in a particular amount, and as a result of the erroneous
statement dividends were paid out of capital, the auditor was held liable for
negligence.96
9–28 The auditor’s duty is to see that the accounts put before shareholders
accurately state the company’s financial position; it is not enough for him merely
to indicate the means of ascertaining that position.97 He fulfils this duty by
examining books of the company, although he must also see that the books
themselves show the company’s true financial status.
‘‘An auditor, however, is not bound to do more than exercise reasonable care and skill
in making inquiries and investigations. He is not an insurer; he does not guarantee that
the books do correctly show the true position of the company’s affairs; he does not even
guarantee that his balance sheet is accurate according to the books of the com-
pany.’’98
9–29 An auditor is not bound to be suspicious, as opposed to reasonably careful.99

So, where the money of a company has been misappropriated and the audited
accounts are thereby inaccurate, the cause of action against the company’s
auditors will depend upon the manner in which any fraud has been committed
and whether a reasonably competent auditor, exercising due skill, would have
91
In Morton v Arbuckle [1919] V.L.R. 487 at 491, Irvine C.J. said the duty of an auditor was one of
utmost good faith.
92
See, e.g. Fogg v Gaulter (1960) 110 L.J. 718, which could equally have been decided on this
basis.
93
cf. Boardman v Phipps [1967] 2 A.C. 46 in the case of a solicitor. Breach of fiduciary duty does
not require dishonesty.
94
Weld-Blundell v Stephens [1920] A.C. 956.
95
per Stirling J. in Leeds Estate Co v Shepherd (1887) 36 Ch. D. 787 at 802. The legal basis for a
company audit is summarised by Lord Oliver in Caparo Industries v Dickman [1990] 2 A.C. 605 at
630.
96
Leeds Estate Co v Shepherd (1887) 36 Ch. D. 787.
97
Re London and General Bank [1895] 2 Ch. 673.
98
ibid. per Lindley L.J. at 683.
99
Re Kingston Cotton Mill Co (No.2) [1896] 2 Ch. 279, per Lindley L.J. at 284.
[564]
discovered the shortfall. Also, where a group of companies were the vehicle of
a massive fraud which auditors did not detect, it was held they could be liable to
the company for the payment of a dividend they had incorrectly approved and for
failing to take appropriate action in relation to payments to a shadow director for
which there was no apparent commercial justification.100 But an auditor does not
owe a general duty of care to safeguard the assets of a company for whom he
acts, and so cannot be liable for trading losses alleged to arise as a result of his
failure to report that the company is insolvent.101 And where it was alleged that
auditors caused a company to suffer loss, by failing to detect, in the course of an
annual audit of its books, a fraud practised by the company’s sole directing mind
upon certain banks, they could rely upon the defence ex turpi causa non oritur
actio to defeat the claim.102
Where the managing director of a large insurance company fraudulently 9–30

misappropriated a large part of the company’s funds and, in order to conceal his
fraud, for three successive years bought Treasury Bills just before the audit,
thereby substantially improving the balance sheet, only to sell sold the bills
immediately after the audit, the company’s auditors were not negligent in failing
to see what was going on: although the transactions, when isolated, should have
led them to entertain suspicions, they formed only one item in a large audit.103
However, where auditors, who had been put on inquiry by alteration of invoices,
negligently failed to investigate, so that a falsely favourable picture of company
profits was given, as a result of which dividends were declared, it was no defence
that they had not been given enough time to do their job.104 They should be liable
to repay the dividends, and pay the costs of recovering the extra tax, and any of
the extra tax not recoverable.
When audited accounts are incorrect, because of an overvaluation of assets, the 9–31
liability of the auditors depends on the circumstances. If they know that the assets
are overvalued, they should report the matter to the shareholders. So, where
100
Sasea Finance Ltd (in liquidation) v KPMG, The Times, August 25, 1998, appeal dismissed [2000]
1 All E.R. 676, CA (the CA also allowed the claimant’s appeal against that part of the earlier
judgment which struck out claims where the proceeds of sale of shares had been diverted to other
companies in the group, distinguishing Galoo v Bright Grahame Murray [1994] 1 W.L.R. 1360, CA:
in the instant case the losses alleged were within the scope of the duty of care for which the claimants
contended, whereas in Galoo they were not and arose simply from the ordinary risks of carrying on
business). See Maher, ‘‘The auditor’s duty of care—Caparo test ten years on’’ (2000) 3 P.N. 150;
Burbridge, ‘‘Liability of statutory auditors to third parties—is the European writing on the wall for
Caparo v Dickman?’’ (2002) 1 P.N. 40; Dugdale, ‘‘Auditor’s liability to the client: Ups and downs’’
(2003) 4 P.N. 536. Gwilliam, ‘‘Auditor liability: Law and myth’’ (2004) 3 P.N. 172; Heaton, ‘‘Duty
calls’’ 2004 Lawyer 2004 (25) 41.
101
BCCI (Overseas) Ltd v Price Waterhouse (No.3), The Times, April 2, 1998, applying Banque
Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] A.C. 191. Compare, however, Equitable
Life Assurance Society v Ernst & Young [2004] P.N.L.R.269, CA, where the court was prepared to
regard as arguable the proposition that a company suing its auditors for negligence in the preparation
of its statutory accounts could recover for loss of the chance of a sale of its business. See Westhead
and White, ‘‘Are there claims to make against auditors?’’ 2005, Win. 27; also generally, Butcher Q.C.,
‘‘Management fault, causation and scope of duty in auditor’s negligence’’ (2004) P.N. 20, 4, 248.
102
Stone & Rolls Ltd v Moore Stephens [2009] 3 W.L.R. 455, HL, Ch.4, para.4–252, above.
103
Re City Equitable Fire Insurance Co [1925] Ch.407. It may be questioned whether, on similar
facts, the result in this case would be the same today.
104
Re Thomas Gerrard & Son [1968] Ch.455.
[565]
auditors reported to directors that they considered that the security for certain
loans was insufficient and that there would be difficulty in realisation, but only
reported to the shareholders that the value of the assets was dependent on
realisation, they were liable for negligence.105 On the other hand, auditors are
entitled to accept the certificate of an appropriate official of the company relating
to the value of stock, unless there are circumstances which ought to suggest to
them, as reasonably competent auditors, that the certificate is incorrect. Where a
manager certified the value of stock and this was accepted by auditors, although,
if they had compared the amount of the stock at the beginning of the year with
the purchases and sales during the year, they would have suspected that it was
incorrect, it was held that they were not negligent.106 Auditors are entitled to call
for explanations of items in a stock sheet. Any failure to ask for an explanation
of items which are apparently lumped together, may be negligence.107
9–32 Auditors should satisfy themselves that the company’s securities are not only
in existence but are in safe custody, either of the company itself or of some
person, who, in the usual course of business, retains customers’ securities. So,
auditors acted negligently when they accepted a certificate of the company’s
stockbrokers, in which the company’s managing director was the senior partner,
that they held certain securities on behalf of the company and the securities were
non-existent.108 In Dominion Free Holders Ltd v Aird109; the company sued its
auditors for damages for reporting incorrectly the accuracy of its balance sheet
and profit and loss account. Thereupon the auditors joined in the company’s
accountant as a third party, claiming indemnity, alleging that he had, in turn,
negligently misrepresented the accuracy of these two documents. It was held that
where a statutory duty is cast upon a person to express his opinion and he relies
upon and adopts as his opinion that of another, he has no cause of action in
negligence against that other, should that other’s opinion be wrong.
9–33 Further, where an auditor in New Zealand was under a duty imposed by the
Securities Act 1978 to report to a trustee for the depositors of unsecured deposits,
the Privy Council held that his duty was to report when he had actually formed
his opinion that it was necessary to do so because of the company’s insol-
vency110: since at common law there was no higher duty than that imposed by
statute, there was no negligence in failing to report to the trustee when a prudent
auditor might have reasonably formed such an opinion.111
9–34 Duty to client in tort. As already indicated,112 accountants and auditors owe
a duty of care to their clients, independently of any agreement between them.
105
Re London and General Bank [1895] 2 Ch.673.
106
Re Kingston Cotton Mill Co (No.2) [1896] 2 Ch.279.
107
Mead v Ball, Baker & Co (1911) 28 T.L.R. 81.
108
Re City Equitable Fire Insurance Co [1925] Ch. 407.
109
[1966] 2 N.S.W.R. 293.
110
Deloitte Haskins & Sells v National Mutual Life Nominees Ltd [1993] A.C. 774.
111
Deloitte Haskins & Sells v National Mutual Life Nominees Ltd [1993] A.C. 774 applying Hedley
Byrne & Co Ltd v Heller & Partners Ltd [1964] A.C. 465 and the dictum of Lord Keith in Yuen Kun
Yeu v Attorney-General of Hong Kong [1988] A.C. 175 at 195, PC.
112
para.9–23, above.
[566]
Well before Hedley Byrne,113 this principle had been advanced by Denning L.J.
in Candler v Crane, Christmas & Co.114 In a dissenting judgment, he said that
accountants, exercising a calling which required knowledge and skill, owed a
duty to use care in the work which led to their accounts and reports, as well as
in the rendering of such.
Duty to third parties in tort. In addition to the duty owed to a client Denning 9–35
L.J. considered a duty was owed to any third person to whom accountants
showed their accounts and reports or to whom they knew their clients were going
to show them, when they knew that person would consider them with a view to
the investment of money or taking other action to his gain or detriment.115 A duty
to third parties is no longer controversial in principle although defining its scope
often will be. So, it has been held that auditors who prepare company accounts
owe a duty of care to any person whom they ought reasonably to have foreseen
would rely on them, for example in seeking to take over the company.116 It was
emphasised that they would be liable only where the information they provided
played a real and substantial, although not necessarily decisive, part in the
decision to purchase. In Caparo Industries v Dickman,117 the House of Lords
confirmed that while an auditor of a public company owed individual share-
holders a duty of care in carrying out an audit and making a statutory report as
required under the Companies Act 1985, the duty did not extend to providing
information to assist anyone in making decisions as to future investment in, or to
taking over, the company. It was a precondition of liability that the claimant
establish some proximity between the defendant and himself, in the sense that:
‘‘the defendant knew his statement would be communicated to the plaintiff, either as an
individual or as a member of an identifiable class, specifically in connection with a
particular transaction or transactions of a particular kind . . . and that the plaintiff would
very likely rely on it for the purpose of deciding whether to enter upon that transaction
or upon a transaction of that kind’’.118
113
[1964] A.C. 465. See generally, Ch.2, para.2–172, above.
114
[1951] 2 K.B. 164. There is little doubt but that the case would be decided differently today.
115
Candler v Crane, Christmas & Co [1951] 2 K.B. 164 at 180. See per Denning L.J. at 180–181 and
182–184, described as a ‘‘masterly analysis’’ by Lord Bridge in Caparo Industries v Dickman [1990]
A.C. 605 at 623.
116
JEB Fasteners Ltd v Marc Bloom & Co [1981] 3 All E.R. 289 (appeal dismissed [1983] 1 All E.R.
583, CA).
117
[1990] A.C. 605, applying Hedley Byrne [1964] A.C. 465, and Smith v Eric S. Bush [1990] A.C.
831 distinguishing JEB Fasteners Ltd v Marc Bloom & Co, above, and reversing in part that decision;
[1989] Q.B. 653.
118
Caparo Industries v Dickman [1990] A.C. 605 at 621. See also H.I.T. Finance Ltd v Cohen Arnold
& Co [1998] 1 E.G.L.R. 140 (where, in supplying a statement of a third party’s creditworthiness to
a lender, auditors knew that a loan secured by his guarantee was to be advanced to him, or to a
company of which he was principal shareholder, that was sufficient knowledge to satisfy the test in
Caparo that in order to establish a breach of duty such a statement must be given specifically in
connection with a particular transaction or transactions of a particular kind); also Royal Bank of
Scotland v Bannerman Johnstone MacLay [2005] P.N.L.R. 883, CS (IH) (it was arguable that the
proximity test was satisfied where, in addition to knowing that a bank lending money to a company
might rely upon the audited accounts, auditors had been involved in the company’s obtaining set-up
finance and providing management accounts which were a condition of the bank’s continued
support). See Dugdale, ‘‘Audit liability and the protection of the public interest’’(2003) 2 P.N.
350.
[567]
Such proximity between potential investors and the company’s auditor was not
established on the facts.
9–36 By way of example of the duty which can be owed by an auditor to a third
party, where accounts were prepared for a subsidiary company in the knowledge
that they would be placed before directors of the holding company, who,
understandably, were interested in receiving a true and accurate view of the
subsidiary’s financial affairs, a duty of care was owed directly to the holding
company itself. There was no reason in principle why it, as opposed to the
subsidiary, could not sue for loss in the value of the subsidiary, where such loss
arose in consequence of the auditor’s negligence.119 Also, it was arguable that a
duty of care arose in relation to companies for whom accountants did not act as
auditors, where those companies were part of a closely-knit group and the
accountants acted for other companies in the group: this was the case even
though it was not alleged that the accountants knew that the claimant companies
would rely on the financial statements they had prepared, since the circumstances
made it possible that the necessary proximity between the parties could be
established.120 A duty of care arose to shareholders where auditors were engaged
by the directors of a company to perform a valuation of the company’s shares
thereby setting the price at which the shares were to be compulsorily acquired
pursuant to the company’s articles: there was an assumption of responsibility to
the shareholders where it was known that the specific purpose of the valuation
was to enable others to require them to sell their shares at the value which the
auditors determined.121
9–37 In James McNaughton Paper Group Ltd v Hicks Anderson & Co,122 it was
held that a firm of accountants which had prepared at short notice draft accounts
for the use of a company’s chairman owed no duty of care to a bidder who had
taken over the company after having inspected such accounts. In deciding
whether a duty of care was owed to a third party in relation to a statement made
by an professional, certain matters were of particular importance. They were: (1)
the purpose for which the statement was made; (2) the purpose for which it was
communicated; (3) the relationship between an adviser, the advisee and any
relevant third party; (4) the size of any class to which the advisee belonged; (5)
the state of knowledge of the adviser, and (6) reliance by the advisee.
9–38 In later cases the touchstone of liability has been whether, in relation to a
particular statement, the maker assumed responsibility towards a category of
119
Barings Plc v Coopers & Lybrand [1997] P.N.L.R. 179, CA (a claim arising out of an alleged
failure by auditors to identify losses caused by the trading activities of Mr Nicholas Leeson, a
manager of the claimant’s subsidiary). See also Chapman v Barclays Bank Plc [1997] C.L.Y. 331, CA
para.9–87, below.
120
BCCI (Overseas) Ltd v Price Waterhouse (No.2) [1998] P.N.L.R. 564, CA.
121
Killick v Price Waterhouse Coopers [2001] P.N.L.R. 1 (the judge was influenced by the fact that
otherwise than by imposing a duty of care there would be no remedy and referred to the approach
taken by the HL in such a situation in White v Jones, n.38, below).
122
[1991] 2 Q.B. 113. See the judgment of Neill L.J. for discussion of the principles set out in the
text.
[568]
persons which included the claimant.123 It has been stressed that it requires
exceptional circumstances before auditors can be found to owe a duty of care to
anyone other than the company to which they are engaged.124 A special
relationship is required between the auditor and the third party in question before
a duty will arise. In particular there must have been an intention (actual or to be
inferred) on the part of auditors that a third party should rely upon their audit,
together with actual reliance.125 It has been said that it must be shown that some
conscious126 responsibility was assumed by the auditor, not so much for a
statement made by him, but for the task in which he was engaged.127 However,
use of the word ‘‘conscious’’ should not be taken to imply a subjective test. The
essential inquiry is, ‘‘ . . . whether having regard to all the circumstances of the
case and looking at the matter objectively it can be said that [the accountant]
undertook responsibility to [the potential investor] for the substantial accuracy of
the accounts.’’128
The law evolves, and it is always necessary to be aware of the historical 9–39
context of in which examples of the duty of care have arisen. However, it has
been said that while an auditor owes no duty of care to potential takeover bidders
in certifying company accounts, the directors, auditors and financial advisors of
a target company might well owe a duty of care to such bidders not to mislead
them.129 A district auditor, employed by the Audit Commission to audit the
accounts of a local authority in accordance with Pt III of the Local Government
Finance Act 1982, owed a duty of care to the local authority itself rather than its
officers because the purpose of the audit was directed primarily to the protection
123
Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145, particularly per Lord Goff of Chieveley
at 180.
124
See Lightman J. in Anthony v Wright [1995] B.C.C. 768 at 770. But see also Siddell v Smith
Cooper & Partners [1999] P.N.L.R. 511, CA (an auditor’s duty of care is not necessarily limited to
the company for whom he acts where he concurrently enters a contract to act as accountant to certain
of its shareholders).
125
Anthony v Wright [1995] B.C.C. 768, above.
126
See, e.g. Carnwath J. in Electra Private Equity Partners and others v KPMG Peat Marwick [1998]
P.N.L.R. 135 (no duty owed to potential investors for statements made at an informal meeting to the
effect that a company’s audited accounts were likely to meet the claimants’ expectations). In the same
case the judge drew attention to the dangers of extracting isolated statements of principle from earlier
authorities where the law has been in a state of evolution. See also n.128, below.
127
White v Jones [1995] 2 A.C. 207. For a review of the various tests, see Bank of Credit &
Commerce International (Overseas) Ltd (in liquidation) v Price Waterhouse (No.2) [1998] P.N.L.R.
564, CA (whether the threefold Caparo test, the assumption of responsibility test of White v Jones,
or an incremental approach was adopted, it was arguable, where the allegation was that two banks
were operated as a single entity, that auditors of one bank owed a duty of care to the other). See also
O’Sullivan, ‘‘Negligence liability of auditors to third parties and the role of assumption of
responsibility’’ (1998) 4 P.N. 195.
128
per Morritt L.J. in Peach Publishing v Slater [1998] P.N.L.R. 364, CA at 373 (no assumption of
responsibility by accountants of a company towards a second company formed to acquire the first,
in respect of a statement made to shareholders of the first that management accounts were
substantially accurate). Contrast ADT Ltd v BDO Binder Hamlyn [1996] B.C.C. 808, CA, where, in
a similar situation, auditors who said they ‘‘stood by’’ the audited accounts and attached no
qualification to their statement were held to owe a duty of care. See also Electra Private Equity
Partners v KPMG Peat Marwick [1999] Lloyd’s Rep. P.N. 670, CA (it is too exacting a test to say
that the assumption of responsibility must have been a conscious one). See generally, Arnull,
‘‘Auditors’ reports, misconceptions and third party disclaimers’’ (2002) 3 P.N. 146.
129
Morgan Crucible Co Plc v Hill Samuel & Co Ltd [1991] Ch.259.
[569]
of the authority, as well as local electors.130 Accountants who prepared annual

reports on solicitors’ accounts for the latter to submit to the Law Society owed
to the Society a duty of care in relation to the accuracy of their reports. The duty
was not unreasonably open-ended where it was limited in time (until receipt of
the following year’s report) and where the potential liability was limited to
payments to clients whose funds had been misappropriated.131
9–40 Although accountants may owe a duty of care to a third party, for instance in
the preparation of accounts where the claimant intended to inject cash into a
company that had run into difficulties, such duty did not free him from the need
to take care to protect himself by making inquiries to obtain the customary
warranties.132 It is arguable that accountants who acted as a company’s auditors,
were under a common law duty of care to advise the directors of the company
that loan payments to another company which had acquired the first company’s
issued shares contravened s.151 of the Companies Act 1985.133 When an
auditor’s report on the finances of a company was prepared for and at the request
of its bankers, it did not give rise to a duty of care owed either to the directors,
whether or not they were guarantors of the company’s debts, or the share-
holders.134 Similarly, no duty of care was owed to banks that were not existing
creditors of a company at the date of its auditors’ latest report which had not been
made directly to the banks, or with the intention, or in the knowledge, that its
contents would be communicated to them.135 Accountants asked to provide a
letter as to the worth of a client providing an unlimited personal guarantee as a
condition of receiving a loan, owed a duty of care to the lender in formulating the
letter.136
9–41 The standard of care. Accountants and auditors are liable for failing to
exercise the skill and diligence of a reasonably competent and careful accountant
or auditor.137 The standard remains the same no matter upon what terms the
130
West Wiltshire District Council v Garland [1993] Ch.409. But no duty of care was owed by
auditors of a company to investors who were the beneficiaries of a trust where they did not rely on
the audit and where in any event their relationship was not close enough to make such a duty
appropriate: Anthony v Wright [1995] 1 B.C.L.C. 236. See also Andrew v Kounis Freeman [1999] 2
B.C.L.C. 641, CA (accountants who audited the accounts of an air travel organiser, knowing of a
deadline which meant there would be no reasonable opportunity to check them, and also that the Civil
Aviation Authority would rely on the information given when deciding whether to renew the
organiser’s licence, could owe a duty of care to the Authority, which suffered loss when the organiser
ceased trading and its bookings had to be fulfilled at the Authority’s expense).
131
Law Society v KPMG Peat Marwick [2000] 1 W.L.R. 1921, CA.
132
Lloyd Cheynham & Co Ltd v Littlejohn & Co [1986] P.C.C. 389.
133
Coulthard v Neville Russell, The Times, December 18, 1997, CA.
134
Huxford v Stoy Hayward & Co [1989] 5 B.C.C. 421.
135
Al Saudi Banque v Clarke Pixley [1990] Ch.313, approved in Caparo Industries Plc v Dickman
[1990] 2 A.C. 605.
136
H.I.T. Finance Ltd v Cohen Arnold & Co [2000] 1 C.L. 315, CA (but no breach of duty was
established where, on a proper construction, a statement as to the client’s worth made in the letter was
attributed to information provided by the client, the accuracy of which the accountants did not
warrant).
137
See Re Kingston Cotton Mill Co Ltd (No.2) [1896] 2 Ch.279, CA.
[570]
defendant has been engaged, although the steps required to achieve it may vary
with the nature of the task given.138 In determining whether the standard has been
achieved regard can be paid to formal accounting and auditing standards set by
professional bodies, such as the Accounting Standards Committee and the
Auditing Practice Committee. Third parties reading accounts are entitled to
assume that they have been drawn up in accordance with approved practice
unless there is some clear indication to the contrary. Courts will attach
considerable importance to formal standards in deciding whether auditors have
been negligent in performing their work.139 A minority shareholder’s action
failed where the company had appointed an auditor to value its shares, wishing
to have the job done quickly and cheaply so as to enable the claimant to leave.
It was held that the standards of a specialist valuer could not be applied to the
auditor, who had not fallen short of the care required of a reasonably competent
accountant acting as auditor.140 Just as with other professional men, accountants
and auditors are bound to have a knowledge of the practical rules of law which
affect them in the exercise of their calling.141 Where an accountant has accepted
a retainer, and a particular matter is within the area within which he should have
been competent to give advice, he will be liable for a failure to give that advice
even where he tells his client to consult a specialist.142
Occasions will frequently arise when accountants have to give advice to a 9–42
client about the implications of a particular course as a matter of tax law. Where
it is subsequently alleged that advice was given negligently the court may well
have to decide whether it was right or wrong. It can be insufficient to approach
the matter simply on the basis that there is a good chance that the advice was
wrong.143
Acting as arbitrators. When auditors truly act as arbitrators, they do not owe 9–43
a duty of care, since they perform a quasi-judicial function.144 However, in
Arenson v Arenson and Casson Beckman Rutley & Co,145 it was submitted that,
since the auditors were acting as arbitrators in valuing shares on a contract of sale
as between shareholders, they owed no duty of care in respect of such valuation,
because they were performing a quasi-judicial function. In consequence, so the
138
Henry Squire, Cash Chemist Ltd v Ball Baker & Co; Mead v Ball Baker & Co (1912) 106 L.T.
197 at 199–200.
139
Lloyd Cheynham & Co Ltd v Littlejohn & Co [1986] P.C.C. 389.
140
Whiteoak v Walker (1988) 4 B.C.C. 122.
141
e.g. See Thomas v Devonport Corp [1900] 1 Q.B. 16; Re Republic of Bolivia Exploration
Syndicate Ltd [1914] 1 Ch.139; Frank H. Wright (Constructions) v Frodoor [1967] 1 W.L.R. 506.
142
Sayers v Clarke Walker [2002] B.C.L.C. 16 (a claim for allegedly avoidable tax liabilities and
penalties against accountants, retained to advise in the purchase of a company, who failed to give
appropriate advice about the structure of the sale agreement having told the claimant to consult
specialist tax counsel).
143
See e.g. Grimm v Newman [2003] 1 All E.R. 67, CA (an allegation of negligence on the basis of
incorrect advice about the tax consequences of a gift where the court had to decide whether, against
a complex background, the advice given was right).
144
In Re Hopper (1867) L.R. 2 Q.B. 367. See, generally, Ch.3, paras 3–13 to 3–17, above.
145
[1977] A.C. 405.
[571]
argument proceeded, they were immune from liability in an action for negli-
gence, on the ground of public policy. Lord Salmon, in rejecting such submis-
sions, expressed the opinion that they were discharging no function even
remotely resembling a judicial function but were merely exercising a purely
investigatory role.146
9–44 Liquidators, receivers and sequestrators. The liquidator of a company is

liable for negligence in the discharge of his statutory duties. This renders him
liable in damages to an injured creditor,147 and to the creditors in general by
means of a summons for misfeasance.148 However, an administrator appointed
under the Insolvency Act 1986 is in a position, as regard creditors, directly
analogous to the position of the director of a company and its shareholders:
absent special circumstances any duty of care is owed exclusively to the
company and not to the shareholders themselves.149
Although sequestrators are officers of the court, they are not exempt from
liability for professional negligence, based upon ordinary standards of care, in
respect of the management of the property of a contemnor which comes into their
possession.150
9–45 The position of official receivers is somewhat different. An official receiver

has been held immune from suit on the grounds of public policy for an allegedly
negligent statement made in the course of bankruptcy proceedings, and within
the scope of his powers and duties in those proceedings.151 However, where a
receiver is appointed to manage the business of, for instance a mortgagee,152 his
duty is not limited to one of good faith. His main duty is to proceed so as to
procure repayment of the debt and interest and if he is managing a business he
has a duty to manage it with due diligence, which includes taking reasonable
steps to carry it on profitably.153 By way of example where a receiver appointed
by mortgagees to manage several mortgaged properties let to different tenants,
146
Arenson v Arenson and Casson Beckman Rutley & Co [1977] A.C. 405 at 840. The claimant held
shares in a private company on terms that if his employment by the company ceased he would sell
them back at ‘‘a fair value,’’ defined as the value ‘‘..determined by the auditors for the time being of
the company, whose valuation, acting as experts and not as arbitrators, shall be final and binding..’’.
On the termination of his employment the auditors duly valued the shares but a dispute arose whether
that valuation was negligent. The HL remitted the case for trial to determine whether the auditors had
acted as arbitrators or not and, if so, were entitled to immunity or, if not, were in breach of duty.
147
Pulsford v Devenish [1903] 2 Ch.625, followed in James Smith & Sons (Norwood) Ltd v Goodman
[1936] Ch.216 where the CA in extending the principle, held the liquidator liable in negligence for
disregarding even a contingent claim of a creditor.
148
Re Windsor Steam Coal Co [1929] 1 Ch. 151; Re Home and Colonial Insurance Co [1930] 1
Ch.102.
149
Kyrris v Oldham [2004] P.N.L.R. 317, CA.
150
I.R.C. v Hoogstraten [1985] Q.B. 1077.
151
Mond v Hyde [1999] Q.B. 1097, CA. per Beldam L.J. at 114, ‘‘to be afforded immunity from suit
in respect of the statement made, the official receiver must be acting in the course of bankruptcy
proceedings and within the scope of his powers and duties.’’
152
i.e. not an official receiver.
153
Medforth v Blake [2000] Ch.86. See Griffiths, ‘‘Receiver’s duty of care’’ 143 S.J. 950.
[572]
failed to serve ‘‘trigger’’ notices to enable rent reviews to be initiated, it was held
that he was in breach of a duty of care thereby owed to the mortgagors. As a
result he was liable for the losses incurred by them when subsequently the
properties were sold pursuant to the mortgagees’ power of sale.154
Causation and damages. An accountant’s liability in damages is assessed by 9–46

reference to the same principles as for professional persons generally. The
claimant must establish a causative link between the loss he alleges and the
particular act or omission upon which he relies.155 Even where accountants had
been negligent in failing to detect deficiencies in the accounts of their client, an
ex-solicitor who had been struck off the Roll, liability was not established where
the claimant’s loss and damage were the consequences solely of his own dis-
honesty.156
It is always important, as in actions for professional negligence generally, to 9–47

identify the scope of the duty of care owed by the claimant to the defendant,
before questions of causation can be properly addressed. So, a claim was struck
out where auditors were alleged to have been negligent in failing to report that
a company was insolvent and the damages that were sought were trading losses
that had thereafter accrued. It was inappropriate to consider causation simply in
terms of the traditional ‘‘but for’’ analysis and, on the facts, the losses arose from
trading as opposed to the relevant breach of duty.157 It may be otherwise where
the the claimant can demonstrate that in reliance upon figures represented to him
as correct, he traded in a particular way that gave rise to loss.158 Where, as a
result of an auditor’s negligence, company profits were overstated and a dividend
to shareholders consequently paid, the argument was rejected that the proportion
of the dividend paid out of capital was irrecoverable. The payment out of capital
was a loss to the company because it was paid to the shareholders who were
legally separate. It was not material, given the hypothetical nature of the point,
154
Knight v Lawrence [1991] 01 E.G. 105, Browne-Wilkinson V.C. having concluded that the
receiver had power to serve ‘‘trigger’’ notices under the Law of Property Act 1925 s.109, as amplified
by the provisions of the legal charge.
155
Re City Equitable Fire Insurance Co [1925] 1 Ch.407 at 482–483, para.9–30, above, also J.E.B.
Fasteners Ltd v Marc Bloom & Co [1981] 3 All E.R. 289 (claimants would have acted no differently
even had they known the true position).
156
Luscombe v Roberts and Pascho 106 S.J. 373.
157
Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse (No.3), The
Times, April 2, 1998, applying Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997]
A.C. 191. The ‘‘but for’’ test had been applied in Galoo v Bright Grahame Murray [1994] 1 W.L.R.
1360, CA (where it was alleged that as a result of negligence in the preparation of auditors’ accounts,
companies continued to trade, when in fact they were insolvent and made losses which were claimed
as damages: the claims were rejected on the basis that although it might be said that the losses would
not have arisen but for the auditors’ negligence, that test was not on its own determinative of liability
and as a matter of common sense the negligence gave the occasion for such losses but did not itself
cause them). Galoo was followed in Sasea Finance Ltd v KPMG, The Times, August 25, 1998, but
criticised in Aneco Reinsurance Underwriting Ltd v Johnson & Higgins Ltd [2000] P.N.L.R. 152,
Evans L.J. indicating his preference for a formula to the effect that ‘‘the risk was one which the
claimant retained for himself.’’ (ibid. at 161).
158
Temseel Holdings v Beaumonts Chartered Accountants [2003] P.N.L.R. 532.
[573]
that the shareholders might benefit twice if the money was restored to the
company.159
9–48 Where the accountant’s negligence consists of some positive act or mis-
feasance, the question of causation is approached as one of historical fact, to be
determined on a balance of probabilities. Where the negligence consists in an
omission, as where there has been a failure properly to advise, causation depends
upon an answer to the hypothetical question, what the claimant would have done
had the defendant acted as he should, for instance in the giving of advice. If the
claimant proves that, had the defendant acted properly, he would have so
arranged his affairs as to avoid the loss he seeks to recover, then he will succed
in recovering the full extent of that loss, without discount for the possibility he
would have acted otherwise. A discount for chance will however be made where
the loss depends, in addition to the acts of the claimant, upon the hypothetical
actions of a third party. The claimant must then establish there was a real—as
opposed to speculative—chance that his loss would have arisen but for the
negligence in question. Once a real chance of loss is proved, he will recover,
subject to a discount for the risk that the third party would not have acted as he
claims.160
9–49 A negligent auditor’s liability in damages can be reduced by the operation of
s.1157 of the Companies Act 2006, which permits a court to relieve an auditor
of liability for negligence, albeit only if the auditor has acted reasonably.161 In a
case where the auditors’ negligence was technical, and minor in character, not
‘‘pervasive or compelling,’’ and they had acted in good faith, a reduction in the
damages for which their negligence rendered them liable was made.162
3.—ARCHITECTS, QUANTITY SURVEYORS, STRUCTURAL AND OTHER ENGINEERS,

BUILDING CONTRACTORS
9–50 The duty of care. The duty of architects,163 quantity surveyors,164 engineers
and building contractors is primarily determined by the contract under which
159
Segenhoe Ltd v Akins [2002] Lloyd’s Rep. P.N. 435, Sup. Ct (NSW). In contrast in Floyd v John
Fairhurst & Co [2004] P.N.L.R. 41, CA it was said that in a case where the claimant was the sole
shareholder in a company, principles of reflective loss applied by analogy, so that he should give
credit for a gain that the company received as a result of the negligence on which he sued in his
personal capacity.
160
Allied Maples Group v Simmons & Simmons [1995] 1 W.L.R. 1602, CA; also First Interstate Bank
of California v Cohen Arnold & Co [1996] 1 P.N.L.R. 17, CA (in assessing the damages recoverable
for accountant’s negligent misrepresentation of their client’s ability to service a debt, it was necessary
to decide whether the claimant, knowing the truth, would have sold its security sooner than it did and,
if it had, whether there was a real, not merely speculative, chance of a sale at the value suggested).
See also Demarco v Bulley Davey [2006] P.N.L.R. 512, CA. (loss of the chance, assessed at 85%, to
obtain an IVA, had no market value or any intrinsic or inherent monetary value and only general
damages could be awarded, to include the stigma of bankruptcy).
161
Perhaps more usefully ss.534–536 of the Act, in force since April 2008, allow for agreements
limiting the liability of an auditor for statutory audit work, subject to a number of conditons. See
further, Butcher Q.C., ‘‘Auditors, Parliament and the courts: the development and limitation of
auditors’ liability’’ (2008) 2 P.N. 66.
162
Barings Plc v Coopers & Lybrand (No.7) [2003] P.N.L.R. 639.
163
See Leong and Chan, ‘‘Architect’s design duties: a shift from Bolam’s to the objective test’’,
(1999) 1 P.N. 3.
164
For the liability of surveyors other than quantity surveyors see para.9–304, below.
[574]
ARCHITECTS, QUANTITY SURVEYORS, ETC 9–52
they are engaged.165 In addition duties may be owed under statute166 or in tort.167
These duties may extend beyond the immediate client to third parties.
The extent and nature of the architect’s duty is initially determined by his 9–51
instructions. Where instructions are ambiguous it is not necessarily incumbent on
the architect to seek clarification.168 The duty of care is the same whether the
architect is fully qualified or not.169 Where a specialist consultant is appointed for
a particular aspect of building work, an architect owes no duty of care in relation
to the consultant’s work unless an ordinarily competent architect ought to be
aware, and could reasonably be expected, to warn of a problem arising in
connection with it.170 Architects and engineers both owe a duty of care to the
building owner to avoid economic loss, whether arising from delay in the
execution of building works governed by the JCT form or from negligent
extensions of time granted to the builder.171 A structural engineer employed by
the building owner can owe a duty to his client to point out obvious and apparent
dangers in temporary works erected by the builder, even though those works are
not within the engineer’s sphere of responsibility.172
The Defective Premises Act 1972. A duty is imposed on anyone taking on 9–52
work in connection with the provision of a dwelling ‘‘to see that the work which
he takes on is done in a workmanlike or, as the case may be, professional manner,
with proper materials and so that as regards that work the dwelling will be fit for
165
The Supply of Goods and Services Act will in many cases imply terms that the services of a
building professional are performed with reasonable care. Where at the suggestion of the client a sub-
contractor was employed by the main contractor under a building contract and thereafter the sub-
contractor negligently damaged the client’s goods, the liability of the main contractor was restricted
to procuring the sub-contractor’s services and did not extend to a parallel liability for the sub-
contractor’s tort: Raflatac Ltd v Eade [1999] 1 Lloyd’s Rep. 506 (the sub-contractor failed to shut off
the water supply when installing a sprinkler system).
166
See the discussion of the Defective Premises Act 1972 below at Ch.8, para.8–123, below.
167
See above at para.9–18 for a discussion of concurrent liability generally. See also Wessex Regional
Health Authority v HLM Design (1994) 10 Const.L.J. 165 and Conway v Crown Kelsey (1994) 39
Const.L.R. 1 where the existence of concurrent duties upon architects and engineers was accepted;
also Storey v Charles Church Developments Ltd (1996) 12 Const.L.J. 206 (where a builder designs
as well as builds he is under concurrent duties in contract and tort not to cause economic loss); also
Ndekugri, ‘‘Concurrent liability in contract and tort in the construction industry’’, (2000) 16
Const.L.J. 13; Newman, ‘‘Help—I do not have a contract’’ Cons. Law 2003, 14(6), 29.
168
Stormont Main Working Men’s Club and Institute v J. Roscoe Milne Partnership (1989) Con.L.R.
127 (failure to provide facilities for competitive snooker at a workingmens club not negligent where
client had not indicated any clear desire for such facilities).
169
Cardy & Co v Taylor and Roberts 38 Con.L.R. 79.
170
Investors in Industry Commercial Properties v South Bedfordshire DC [1986] Q.B. 1034. But the
status of this case is in doubt after Murphy v Brentwood DC [1991] 1 A.C. 398: see further Ch.8,
paras 8–112 to 8–115.
171
Wessex Regional Health Authority v HLM Design [1994] 10 Const.L.J. 165. In Abbott v Will
Gannon Smith [2005] P.N.L.R. 562, CA (a claim against an allegedly negligent structural engineer)
it was said that the building owner’s claim arose when physical damage to the property came into
existence not at an earlier time when a negligent design was implemented, thereby arguably giving
rise to economic loss. See Ch.8, para.8–114, above.
172
Hart Investments Ltd v Fidler [2007] P.N.L.R. 26 (the engineer had been employed in connection
with underpinning of the basement of the property ; the builder’s works left the façades of the
properties dangerously unsupported so that they collapsed).
[575]
habitation when completed’’. The statutory duty173 is imposed upon building

contractors and sub-contractors, together with professional men such as archi-
tects, surveyors and engineers, who take on work of the kind described in the
section.174 The liability imposed cannot be excluded.175
9–53 Duty to a third party in tort. Attention has already been drawn to the basis
upon which a professional may be liable in tort to a third party.176 Hedley Byrne
& Co Ltd v Heller & Partners Ltd177 confirmed the potential for such a the duty,
although its extent remains open to argument in each case. For instance, while a
consulting engineer and an architect owed building contractors a duty of care in
respect of supervision of the works, the duty did not extend to instructing them
in the manner in which they were to carry out their work. The duty was limited
by the assumption that the contractors would perform their obligations compe-
tently.178 Similarly, the duty of a structural engineer who, together with an
architect, was employed on the construction of an extension to an existing
building, was held to be limited to notifying the architects of any defects of
which he had knowledge. There was no obligation on the engineer to supervise
the remedial work.179 Where architects and consulting engineers each gave ‘‘duty
of care’’ letters to a third party who intended to purchase a building they were
engaged to construct, no duty of care arose under Hedley Byrne when a
subsequent survey, after the purchase, revealed design and construction faults
which led to a lower offer being made on a further attempted sale.180 Engineers,
appointed by employers to supervise extensive dredging and reclamation work
off Dubai, owed no duty of care to the main contractors in the absence of contract
between them.181
9–54 Employers under a building contract did not owe a duty of care, based upon
assumption of responsibility, to a sub-contractor of the builder to whom their
senior civil engineer gave directions expressing what would be satisfactory if
carried out.182 Nor was any duty owed, by way of the principles set out in Caparo
Industries Plc v Dickman183 where an architect provided a letter to the effect that
works to that date had been satisfactorily completed, where the prospective
purchaser of the property, to whom the seller supplied the letter, did not rely on
the architect’s advice and the latter was ignorant of the purpose for which the
173
See Ch.2 para.2–77, Ch.8 para.8–123 above, for further consideration of the Act.
174
Property developers and local authorities who arrange for other persons to take on such work, shall
be treated as ‘‘included among the persons who have taken on the work’’: s.1(4).
175
s.6(3).
176
See para.9–18 above (general discussion); also para.9–35 above (accountants); para.9–217 below
(solicitors); and para.9–304 (valuers).
177
[1964] A.C. 465.
178
Oldschool v Gleeson (Construction) (1976) 4 Build. L.R. 1053.
179
Kensington & Chelsea & Westminster Health Authority v Wettern Composites [1985] 1 All E.R.
346.
180
Hill Samuel Bank v Frederick Brand Partnership [1994] 10 Const.L.J. 72.
181
Pacific Associates Inc v Baxter, The Times, December 28, 1988.
182
Plant Construction Plc v Clive Adam Associates, 55 Con.L.R. 41.
183
[1990] 2 A.C. 605.
[576]
letter was to be used.184 No duty of care was owed by engineers retained by the
building owner, who provided documents which formed the basis of the claimant
builder’s tender, in relation to to alleged misrepresentations in those docu-
ments.185
Aircraft maintenance engineers have been held to owe a duty to exercise 9–55
reasonable care to make accurate entries in log-books, since persons flying the
aircraft to which the entries relate will rely on their accuracy, and if there is any
want of care, personal injury or property damage may reasonably be expected to
result.186 In contrast, a marine classification society, engaged by ship-owners to
carry out the task of surveying a vessel, were not liable to cargo-owners who
suffered loss when it proved to be unseaworthy. It was not fair, just or reasonable
to impose a duty of care which would have a substantial impact on international
trade, where there was an existing system of protection in respect of such loss
under the Hague Rules.187
Hedley Byrne was applied in Clay v A.J. Crump & Sons Ltd188 where it was 9–56
held that an architect’s duty was not confined to his contractual duty to the
owners of a dangerous wall, which collapsed injuring a builder’s workman, but
extended to all those persons who would be so closely and directly affected by
his acts or omissions that he ought reasonably to have had them in contemplation.
Similarly, in Voli v Inglewood Shire Council and Lockwood,189 the High Court of
Australia concluded that an architect owes a duty of care to anyone entering a
structure designed by him, when it could reasonably be expected that such person
might be injured by a negligent design.
In Murphy v Brentwood District Council,190 the House of Lords, considered 9–57

the scope of the duty of care owed by a builder to the purchaser of a house he had
constructed He was liable under the principle in Donoghue v Stevenson191 in the
event of any defect, prior to its discovery, causing either physical injury to person
184
Machin v Adams, 84 B.L.R. 79, CA; also Strathford East Kilbride Ltd v Film Design Ltd, The
Times, December 1, 1997, OH (no duty owed to tenant by architects contracted to the landlord); also
Howes v Crombie [2002] P.N.L.R. 60, OH (no forseeability of reliance sufficient to establish a duty
of care where, not knowing that what he said would be relied upon to secure lending upon a property,
a structural engineer wrote commending the structural integrity of a property he had inspected in the
course of construction).
185
Galliford Try Infrastructure Ltd v Mott Macdonald [2008] EWHC 1570 (TCC)(in the ordinary
course of events, an architect or engineer engaged by a developer will not owe any duty of care, at
least in relation to economic loss, to tendering contractors, even where the latter are supplied by the
architect or engineer with tender information, drawings and specifications upon which to base their
tenders).
186
Hawke v Waterloo-Wellington Flying Club Ltd (1972) 22 D.L.R. (3d) 266.
187
Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] 1 A.C. 211, distinguished in Perrett
v Collins [1999] P.N.L.R. 77, CA, Ch.10, below, para.10–172 on the basis that the reasoning of the
HL was directed to claims for economic loss rather than claims for personal injury.
188
[1964] 1 Q.B. 533; see ‘‘Negligent Architects—Falling Walls and Perils of Polling’’, 27 M.L.R.
216.
189
[1963] A.L.R. 657.
190
[1991] 1 A.C. 398, which overruled Dutton v Bognor Regis UDC [1972] 1 Q.B. 373 and held that
Anns v Merton LBC [1978] A.C. 728 was wrongly decided. See Holtum, ‘‘Duties of care for latent
damage in building cases’’ 151 N.L.J. 754. See also Ch.2, paras 2–238 to 2–245, above.
191
[1932] A.C. 562.
[577]
or damage to property other than the building itself. On the other hand, where a
purchaser who had discovered the defect, however such discovery had come
about, spent money to make the building safe and suitable for its intended
purpose, there was no sound basis in principle for holding the builder liable for
the purchaser’s pure economic loss.192 The question was left open whether a
negligent builder could be held responsible for the cost necessarily incurred by
a building owner in protecting himself from potential liability to third parties, for
example on the adjacent highway or the neighbouring land’s boundary.193
9–58 Murphy does not operate to impose upon the builder liability to subsequent
purchasers for defects that are patent, as opposed to latent. A patent defect is one
which is discoverable with due diligence whether or not due diligence is exer-
cised.
‘‘Where in the normal course of events, a surveyor would be engaged in a survey of a

building for a purchaser, and, with the exercise of due diligence, that surveyor would
have discovered a defect, that defect is patent whether or not a surveyor is engaged, and,
if engaged, whether or not the surveyor performs his task competently.’’194
9–59 The principles set out in Murphy should apply equally to those advising in
relation to building works, or structural engineers, as to builders.195 Accordingly,
where specialist engineering consultants had been instructed by a local authority
to advise in relation to ground conditions and the requirements for adequate
foundations for a proposed dwelling-house, upon which advice it relied, it was
held that such specialists did not owe a duty of care to the subsequent purchaser
from the local authority and or the owner occupier for the time being.196
9–60 An architect may, in appropriate circumstances, owe a duty of care in tort and
be liable to a subsequent occupier of a building which he has designed, or the
construction of which he has supervised, in respect of latent defects in the
building of which there was no reasonable prospect of inspection. Conversely, he
is not liable to a subsequent occupier of a building, in relation to a latent defect
if, in the ordinary course of events a subsequent survey would have been
expected, and would if carried out, have revealed the defect.197 The question
whether a particular defect in a building comes within the scope of his duty of
care will depend upon the extent of his responsibility for the original design or
the extent of any supervisory obligations he undertook. No duty of care would be
192
To this effect, see per Lord Keith in Department of the Environment v Thomas Bates & Sons Ltd
[1991] 1 A.C. 499, following Murphy v Brentwood District Council, [1991] 1 A.C. 398.
193
[1991] 1 A.C. 398 at 475 (Lord Bridge) and 489 (Lord Oliver).
194
Baxall Securities v Sheard Walshaw [2002] P.N.L.R. 564, CA, per Steel J. at 577.
195
See, e.g. Payne v John Setchell Ltd [2002] P.N.L.R. 146. See Duncan, ‘‘Lucky architects: snail in
an opaque bottle?’’ 2003 L.Q.R., (119) 17.
196
Preston v Torfaen Borough Council [1993] N.P.C. 111, CA (the claimant buyers had alleged that
Northwest Holst Soil Engineering owed a duty of care to the ultimate buyers of property, which was
built on an infilled quarry, for further economic loss they would suffer if the expert’s advice to the
council had been negligent).
197
Pearson Education Ltd v The Charter Partnership Ltd [2007] B.L.R. 324, CA.
[578]
owed in respect of defects for which he never had any design or supervisory
responsibility in the first place.198
Where a number of persons acquire an interest in a property after a defect 9–61

arises, knowledge by one of them of the defect is not automatically acquired by
successors in title: the defect remains latent so far as they are concerned until the
circumstances in which it loses its ‘‘latent’’ quality, so far as they individually are
concerned, arise. It will depend upon the facts whether the potential cause of
action of a successor survives unaffected, or is lost because the defect is no
longer latent. The successor’s claim may also be defeated because the chain of
causation was broken by the earlier discovery, or there may be a reduction in the
damages awarded on account of contributory negligence. Finally, the claim may
be defeated because it is no longer fair, just and reasonable for it to be
maintained.199 Applying these principles, architects were liable to lessees, with
whom they had no contractual connection, where stock contained in a warehouse
subject to the lease was damaged by a flood. The architects had designed a
rainwater drainage system for the developer but negligently failed to provide it
with appropriate capacity. Their argument that the under-capacity was a patent
defect, failed. At the time the capacity of the system was specified, there was no
reason to expect an inspection would reveal any error. There was no reason why
the claimant should have carried out any investigation of the adequacy of the
system for draining rainwater. The claimant was not fixed with knowledge of a
flood which arose during an earlier tenancy.200
While it is possible for a sub-contractor to owe a duty of care to the employer 9–62
under a building contract the circumstances in which such a duty will be imposed
are likely to be rare.201 In Henderson v Merrett Syndicates Ltd,202 Lord Goff of
Chievely pointed out that:
198
See, e.g. Bellefield Computer Services v E Turner & Sons Ltd [2003] Lloyd’s Rep. P.N. 53, CA
(a claim against architects based upon alleged faulty design of fire protection works for a dairy
extension: no liability where the architects were not engaged to supervise the relevant work and a
specialist sub contractor who did the work, failed to install the fire protection measures specified). See
also Sahib Foods Ltd v Paskin Kyriakides Sands [2003] P.N.L.R. 585 (architects owed no duty of care
to a freehold owner, in relation to the absence of proper fireproofing in factory premises, where there
was no proof that the lack of fireproofing would not have been spotted by a reasonably competent
surveyor engaged at the time the freehold was acquired); also the same case on appeal, [2004]
P.N.L.R. 403, CA, para.9–65, below (a duty was owed to the tenant in occupation of the prem-
ises).
199
Pearson Education Ltd v The Charter Partnership Ltd, n.197, above. See particularly per Lord
Phillips M.R.: if an architect who had the primary responsibility for producing a safe design,
produced a design that was defective, it was not obviously fair, just and reasonable that he should be
absolved from liability in tort in respect of its consequences, on the ground that another professional
could reasonably be expected to discover his shortcoming. See further, Minogue, ‘‘Here comes the
rain again’’ 2007 Building, 12, 51; Murdoch, ‘‘After the flood has receded’’ 2007 E.G., 0721, 129 ;
generally, Harder, ‘‘Is liability for defective buildings negated by a surveyor’s intervening negli-
gence’’ 2007 Conv., Sep/Oct, 417.
200
Pearson Education Ltd v The Charter Partnership Ltd, n.199 above.
201
A duty was imposed in Junior Books Ltd v Veitchi Co Ltd [1983] 1 A.C. 520, but that decision,
while not formally overruled, has subsequently been said to be confined to its own special facts: see
the summary in Architype Properties Ltd v Dewhurst MacFarlane & Partners [2004] P.N.L.R. 732
from 742.
202
[1995] 2 A.C. 145.
[579]
‘‘if the sub-contracted work or materials do not in the result conform to the required
standard, it will not ordinarily be open to the building owner to sue the sub-contractor
or supplier direct under the Hedley Byrne principle, claiming damages on the basis that
he has been negligent in relation to the performance of his functions. For there is
generally no assumption of responsibility by the sub-contractor or supplier direct to the
building owner, the parties having so constructed their relationship that it is inconsistent
with any such assumption of responsibility.’’203
9–63 In considering whether such a duty should be imposed it will no doubt be

appropriate to consider the circumstances generally, but in particular, the terms of
the contract between the employer and the main contractor. So, where that
contract contained a term requiring the employer to insure against certain
specified perils and that nominated sub-contractors should have the benefit of
cover under the policy, it was fair, just and reasonable to impose a duty of care
on a sub-contractor outside of the relevant provisions, in respect of physical
damage which accrued as a result of his careless act.204
9–64 From a different perspective, both an independent contractor and the owner of
a building can owe a duty of care to the employee of a sub-contractor. The
question is one of mixed fact and law, and it is unnecessary and unhelpful to
attempt to formulate a specific test for deciding when such a duty would
arise.205
9–65 The standard of care. Architects have been held liable for not properly
examining the foundations on which a bridge was to be built206; for not
disclosing the risk of inflation and its likely effect on the costs of building work
for which they had been asked to provide an approximate estimate207; for relying
on second-hand information about the size of a site for which they had been
asked to prepare plans208; for failing to perceive that as a result of fraud by the
clerk of works,209 floors had been laid contrary to specification so that dry rot
arose; for not superintending properly actual construction of the building210; in
203
Henderson v Merrett Syndicates Ltd [1995] 2 A.C.145 at 195.
204
British Telecommunications Plc v James Thomson & Sons (Engineering) Ltd [1999] 1 W.L.R. 9,
HL, para.9–24, n.85, above; also R.M. Turton & Co Ltd v Kerslake & Partners [2000] Lloyd’s
Rep.P.N. 967, CA (NZ); and Norwich City Council v Harvey [1989] 1 W.L.R. 828, CA.
205
Gray v Fire Alarm Fabrication Services Ltd, The Times, November 22, 2006, CA (on the facts the
deceased’s employer was entirely to blame for an accident in which he fell to his death through a
skylight while running cable for the fire alarm system through a cable tray fixed to the exterior wall
of the building).
206
Moneypenny v Hartland (1824) 1 C. & P. 352.
207
Lees v English & Partners (1977) 242 E.G. 295. See Patterson, ‘‘Consultant’s duty of care in the
tender process’’ 2002 Cons. Law 13(4), 6.
208
Columbus Co v Clowes [1903] 1 K.B. 244.
209
Leicester Guardians v Trollope (1911) 75 J.P. 197.
210
Armstrong v Jones (1869) 2 Hudson’s B.C. 4th edn, 6; Saunders and Collard v Broadstairs L.B.
(1890) 2 Hudson’s B.C. 4th edn, 164; Rogers v James (1891) 8 T.L.R. 67; Steljes v Ingram (1903)
19 T.L.R. 534; Florida Hotels Pty v Mayo (1965) 113 C.L.R. 588. In Kensington & Chelsea &
Westminster Health Authority v Adams Holden & Partners [1984] C.I.L.L. 91, the architects were
held to be negligent where they became aware of poor workmanship but failed to react by increasing
their supervision of the erection of an extension to a hospital. Supervision, in common parlance,
means to keep an eye on and watch over, not a constant eye or continuous watch: Summers v
Congreve Horner & Co and Independent Insurance Co [1992] 04 E.G. 144, CA.
[580]
approving drawings of a defectively designed building where, without authority,

they had sub-contracted specialised design tasks211; in failing to terminate the
builder’s contract where he does not proceed regularly and diligently with the
works as required by clause 25(1) of the JCT contract212; in failing to advise
against employment of a builder known to have professional shortcomings.213 In
requiring a builder to remedy faults, an architect is entitled to take into account
that a building is being erected at low cost.214 Architects were negligent in
failing, when planning to remodel a factory in which ready meals for super-
markets were prepared, to provide a high standard of fireproofing in food
preparation rooms.215
An architect or surveyor will be liable for negligence in failing to measure 9–66

accurately a builder’s work or otherwise mistaking the amount due to the builder
from his employer. In some circumstances an architect may be an arbitrator, with
the benefit of an arbitrator’s immunity, depending on the precise terms of his
contract and whether, inter alia, he is called upon to exercise a judicial
function.216 Apart from special agreement an architect when issuing interim
certificates does not normally act as an arbitrator between his client, the building
owner, and the builder. Since he is under a duty to act fairly in making his
valuation, an architect has been held liable at the suit of his client because he
negligently over-certified sums claimed by the builder.217 On the other hand,
where an architect had issued interim certificates which included prime cost
items which had been delivered to the site, but for which he knew the building
owners and not the contractors would have to pay, it was held that, on
construction of the contract, there was no negligence on the architect’s part since
all necessary financial adjustments could be made when the final certificate was
issued.218
A clause in a contract providing that the decision of the architect as to the state 9–67
of the works or in any wise relating to the execution of the works shall be final
and binding only relates to disputes between the building owner and the
211
Moresk Cleaners v Hicks [1966] 2 Lloyd’s Rep. 338.
212
West Faulkner Associates v London Borough of Newham [1995] Const.L.J. 15, CA.
213
Partridge v Morris [1995] E.G.C.S. 158.
214
Cotton v Wallis [1955] 1 W.L.R. 1168.
215
Sahib Foods Ltd v Paskin Kyriakides Sands [2004] P.N.L.R. 403, CA, n.99 above (the fire started
in the preparation room as a result of the negligence of the claimant’s own employees, but spread to
the rest of the factory as a result of the lack of proper fireproofing).
216
Arenson v Arenson [1977] A.C. 405 (a case of auditors who had to value shares).
217
Sutcliffe v Thackrah [1974] A.C. 727, overruling Chambers v Goldthorpe [1901] 1 K.B. 624. Lord
Reid (at 738) said that many, probably most, of the earlier cases could be justified on their facts but
there were borderline cases where it was far from easy to determine whether or not there was a
sufficient judicial element to require an arbitrator’s immunity to attach. Nevertheless ‘‘if that
immunity is claimed, then it is for the person claiming it to show that the functions in the performance
of which he was negligent were sufficiently judicial in character.’’ See Poole, ‘‘Liability of Architects
when Issuing an Interim Certificate’’, 124 New L.J. 603; Tyrer v District Auditor for Monmouthshire
(1973) 230 E.G. 973.
218
Wisbech Rural District Council v Ward [1928] 2 K.B. 1.
[581]
contractor. Thus a final certificate given under such a clause is no estoppel in an

action by the owner against the architect in negligence.219
9–68 Architects, as with other professionals, are expected to have a working

knowledge of the law as it relates to their discipline, sufficient to enable them to
perform their duties adequately. However, where an experienced architect failed
to warn his clients that a planning permission in their favour may be unlawful and
thereby void, he was not negligent in circumstances where he believed the final
and conclusive decision would be made by the planning committee: it mattered
not whether he was right or wrong in law, because holding such an opinion did
not amount to negligence.220
9–69 Building professionals do not guarantee the success of any project in which
they are engaged but will be liable if, for instance, as engineering contractors
they fail to design a building fit for the purpose for which they know it to be
required. So in Greaves & Co (Contractors) Ltd v Baynham Meikle &
Partners221 consulting structural engineers employed to design a warehouse were
liable for breach of implied warranty where the floor was not fit for its purpose.
Likewise, engineers who negligently designed and constructed a 1,250ft-high
cylindrical broadcasting mast at Enley Moor, Yorkshire were liable for its sudden
collapse about two years after its completion: its fall was caused by a number of
factors, principally a combination of heavy and uneven icing up of stay ropes,
which had exerted pressures down the mast and the aerodynamic phenomenon
known as ‘‘vortex shredding’’, which had produced additional stresses so that
severe oscillations occurred, beyond the structure’s endurance.222
9–70 Where architects’ plans are so inaccurate on a matter such as ventilation as to

make the building almost uninhabitable, a building contractor may be liable for
breach of contract even where he has followed the plan and specification exactly.
A builder’s responsibility is not limited to matters of workmanship. Where a
builder ought to recognise obvious defects in the design of a building, the
obligation to carry out work which will perform its intended function overrides
that of following the specification slavishly, particularly when he has agreed to
‘‘give efficient supervision . . . using his best skill and attention’’.223
9–71 The extent of a builder’s duty to investigate and examine land before building
on it is to be determined by what a careful and competent builder would have
done in the circumstances. Such duty is not restricted merely to observable
defects on land owned by the builder or to which he has a legal right of entry,
219
Rogers v James (1891) 8 T.L.R. 67.
220
BL Holdings v Robert J. Wood & Partners (1979) 123 S.J. 570, CA. See also F.G. Whitley & Sons
v Thomas Bickerton [1993] E.G. 100 (surveyors acting for the owner of a site were liable both in
contract and negligence where they failed to appeal a decision of the planning authority refusing
planning permission).
221
[1975] 1 W.L.R. 1095; Poole, ‘‘Liability of a Specialised Sub-Contractor’’, 125 New L.J. 31.
222
Independent Broadcasting Authority v E.M.I. Electronics and B.I.C.C. Construction Ltd (1980) 14
Build. L.R. 1, HL. See Stantion and Dugdale, ‘‘Design Responsibility in Civil Engineering Work’’,
131 New L.J. 583.
223
Brunswick Construction v Nowlan (1975) 49 D.L.R. (3d) 93.
[582]
where if he was careful and competent he would have observed defects on

neighbouring land and would not have built until either there had been a further
investigation of the site, or a satisfactory report had been received from an expert,
for instance, on the condition of the subsoil.224 Where damage was caused to
houses by heave in the foundations, resulting from the removal of trees, both the
builders and consulting engineers were liable in negligence as well as breach of
contract.225 A builder can be liable for the dust deposited during the building
process, depending upon proof of physical damage.226 As in other areas where
the defendant holds himself out as having expertise, a builder is to be judged by
the knowledge he ought, as a reasonably competent professional, to possess at the
relevant time.227
Evidence of negligence. Failure of the works which he has been employed to 9–72
design and superintend may be evidence of negligence on the part of the architect
or engineer concerned, throwing upon him the burden of establishing that he has
not been negligent. This will not be the case when he is required to engage in
something of an experiment. Thus, where an architect was employed to design
and superintend the erection of model lodging-houses, with instructions to
include a newly-patented concrete roofing, less costly than lead or slate,
negligence was not established when the roof admitted water.228
Equally, however, where substantial risks have to be incurred in a project 9–73

involving novel design work close to or beyond the limit of existing knowledge
or experience, a very high standard of care may be required. In a case where a
1,250ft-high cylindrical steel television broadcasting mast suddenly broke and
collapsed in extremes of bad weather it was said that, while judgment with
hindsight has to be avoided:
‘‘justice requires that we seek to put ourselves in the position of B.I.C.C. when first
confronted by their daunting task, lacking all empirical knowledge and adequate expert
advice in dealing with the many problems awaiting solution. But those handicaps
created a clear duty to identify and think through such problems, including those of
dynamic and static stresses, so that the dimensions of the ‘venture into the unknown’
224
Batty v Metropolitan Property Realisations Ltd [1978] Q.B. 554 (although again this case is of
uncertain status after Murphy v Brentwood District Council [1991] 1 A.C. 398).
225
Balcomb v Ward’s Construction (Medway) (1981) 259 E.G. 765.
226
If he is sued by someone with an interest in the land affected: Hunter v Canary Wharf Ltd [1997]
A.C. 655.
227
See Barclays Bank v Fairclough Building Ltd [1995] 1 All E.R. 289, CA (contractors performing
works involving asbestos ought by 1988 at the latest to have appreciated the dangers to health and
safety associated therewith. Accordingly specialist roofing cleaners who undertook the cleaning of
asbestos roofing with power hoses, which broke down the cement bonding of the roof and created a
slurry, were liable in tort to those with whom they contracted for the work, there being a duty of care
to avoid causing economic loss arising from their failure to prevent contamination of the build-
ing).
228
Turner v Garland (1853) 2 Hudson’s B.C. 4th edn, 1. In directing the jury, Erle J. said: ‘‘You
should bear in mind that if the building is of ordinary description in which he [the defendant] had
abundance of experience, and it proved a failure, this is evidence of want of skill or attention. But if
out of ordinary course, and you employ him 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 shows failure of those who embark in them.’’
[583]
could be adequately assessed and the ultimate decision as to its practicability arrived at.
And it is no answer to say, as did one witness regarding the conjunction of vortex
shredding and ice loading, ‘It wasn’t obvious because it hadn’t been considered’. The
learned judge held that it should have been, and in my judgment he was right in saying
so.’’229
In the absence of expert evidence as to standard practice, the omission of an

architect to provide for downstairs toilets in the design of a range of mid-priced
houses was not negligent. It was not self-evidently incompetent or so glaring an
omission as spoke for itself.230
9–74 Measure of damages. The damages recoverable against an architect, quantity

surveyor, engineer or building contractor fall to be determined on usual tortious
principles. The measure of damages will depend upon the nature of the
defendant’s breach. The claimant should be restored, so far as he can by money,
to the position he would have occupied had a breach of duty not occurred.231 The
starting point for claims will usually be the cost of rectification but in appropriate
cases consequential loss may be recovered and also damages for physical
inconvenience.232
4.—AUCTIONEERS
9–75 The duty of care. Auctioneers,233 in common with others who profess to
carry on a business which requires knowledge and skill, must exercise that care
and skill reasonably to be expected from a competent auctioneer. Liability to a
client, the seller, normally arises out of contract and it is their duty to sign a
proper contract which is binding on the buyer. Any omission to do so will make
them liable to the seller for the damage suffered as a result of their neglect.234
They are under a duty to account for all moneys received on the seller’s behalf
and to pay over such moneys to him.235 Auctioneers must follow the course of
business that is ordinarily recognised by custom,236 as well as that prescribed by
229
per Lord Edmund Davies in Independent Broadcasting Authority v E.M.I. Electronics and B.I.C.C.
Construction Ltd (1980) 14 Build. L.R. 1 at 31. The facts are more fully described at para.9–69,
above.
230
Worboys v Acme Investments (1969) 210 E.G. 335 (the houses were valued at about £8,000).
231
In Partridge v Morris [1995] E.G.C.S. 158, where a negligent architect failed to warn against
employment of a builder of doubtful ‘‘track record’’ whose work proved unsatisfactory, the claimant
recovered losses arising because he had to engage two sets of builders, together with the cost of
making good the defective work.
232
Watts v Morrow [1991] 1 W.L.R. 1421, CA, where the trial judge’s award of £4,000 to each
claimant, a husband and wife whose marriage had broken down subsequently, was reduced to £750
each, assessed on the basis that the physical discomfort had extended for about eight months. But
where an architect’s contract is simply to design a house, and he fails to include agreed features of
the design, no damages can be recovered for frustration or distress since the object of the contract was
not the provision of pleasure or peace of mind: Knott v Bolton [1995] E.G.C.S. 59, CA.
233
See ‘‘Auctioneer’s Personal Liability’’, 267 E.G. 530; Jess, ‘‘Auctioneer’s Negligence’’, 82
L.S.Gaz. 1915.
234
Peirce v Corf (1894) L.R. 9 Q.B. 210.
235
Re Cotton Ex p. Cooke (1913) 108 L.T. 310, CA.
236
Russell v Hankey (1794) 6 Term Rep. 12.
[584]
AUCTIONEERS 9–78
statute.237 It has been held that where an auctioneer, exercising his judgment, did
not insist upon payment of a deposit by a buyer he had not acted negligently.238
Indeed, auctioneers are under no general duty to sellers at all to get in the
purchase price from buyers.239 Although the point was put to one side in
Rainbow v Howkins,240 an action would lie in all probability against an
auctioneer for failing to enter a memorandum of sale, binding his principal, in his
books. 241 The auctioneer, as a bailee for reward, must exercise ordinary care and
diligence in keeping the goods which have been entrusted to him by the seller.242
On the facts, it was not negligent for an auctioneer to fail to procure the name and
address of the buyer, upon whose bid the bargain had been struck, before the
latter left the room hurriedly and disappeared.243
In considering the duty of a provincial auction house when valuing a painting 9–76
by an unknown hand, it was said in the Court of Appeal244 that the valuation of
pictures of which the artist was unknown would involve an exercise of opinion
and judgment that by the very nature of things could well be fallible. Provided
always that the valuer approached his job honestly, and with due diligence, a
finding of negligence should be approach with caution; there was no blame
merely in failure to spot a ‘‘sleeper’’ or the potentiality of such.245
The standard of care. It is not enough, in order to establish negligence on the 9–77
part of an auctioneer, to show that there is a body of competent professional
opinion which considers his decision to have been wrong, where there also exists
a body of equally competent professional opinion supporting the other point of
view.246
Where the defendant auctioneers were not negligent in their catalogue 9–78
description of a pair of vases as ‘‘Louis XV porphyry and gilt-bronze two
handled vases’’, they could not be in breach of duty to the claimant purchaser,
even if the vases were worth much less than she paid, as a result of a risk that
they were not Louis XV at all, but imitations made in the mid-19th century or
later. There was no duty to advise the claimant of the difficulty of dating such
objects and the risks which purchase entailed, despite the facts that she had been
237
Coppen v Moore (No.2) [1898] 2 Q.B. 306; Christie Manson & Woods Ltd v Cooper [1900] 2 Q.B.
522.
238
Cyril Andrade Ltd v Sotheby & Co (1931) 47 T.L.R. 244.
239
Fordham v Christie, Manson & Woods Ltd, The Times, June 24, 1977. Whilst it is true that in
Chelmsford Auctions Ltd v Poole [1973] 1 Q.B. 542 it was decided that auctioneers could sue in their
own name for the whole of the purchase price, that entitlement did not impose an obligation to get
in the money, but only an obligation to take reasonable care if and when they did so get it.
240
[1904] 2 K.B. 322 at 326.
241
To the contrary see Richards v Phillips [1967] 3 All E.R. 876 at 881.
242
See Ch.3, para.3–196, above.
243
Hardial Singh v Hillyer & Hillyer [1979] E.G. 951.
244
Luxmoore-May v Messenger May Baverstock [1990] 1 W.L.R. 1009.
245
In the esoteric world of antiques, an article which is unrecognised by the auctioneer.
246
Alchemy (International) Ltd v Tattersalls Ltd (1985) 276 E.G. 675, applying Maynard v West
Midlands Regional Health Authority [1984] 1 W.L.R. 634, HL, for which see para.9–125, below.
[585]
marked out as a special client, and provided with a ‘‘special client advisor’’ who
was consulted about the lot.247
9–79 Duty to third parties in tort. There would appear to be no reason why a
special relationship cannot arise, for reasons canvassed earlier in relation to other
professionals, so as to expose an auctioneer to liability to a third party. Where an
auctioneer, who had no qualifications in building construction, was employed by
a housing authority to give a valuation of a house and in due course he reported
the property to be in good repair and gave a valuation, no dispute arose that such
auctioneer did owe a duty of care to a subsequent buyer of the property, albeit the
buyer’s claim failed in the absence of proof of carelessness.248 A claim succeeded
where an auctioneer’s employee incorrectly represented that premises had been
withdrawn from auction and the owner would sell the freehold. It was held he
should have known his statement would be acted upon and a special relationship
thereby arose.249
5.—BANKERS AND FINANCE COMPANIES
9–80 The duty of care. A banker must exercise due care and skill in the business
of banking,250 but the scope of the duty to a customer or a third party is highly
sensitive to the particular factual background.251 A number of broad categories of
case can be distinguished.
9–81 Giving advice or information. Whilst it is no part of a banker’s ordinary

business to give a customer advice as to investments,252 if advice is given, an
obligation may be imposed to take reasonable care.253 When a bank chooses to
give preliminary advice to a customer about the nature and effect of a proposed
mortgage in the bank’s favour, it is under a duty not to misstate the effect of the
mortgage. Further, the bank ought to explain to its customer, where that was the
case, that a mortgage on a property, jointly owned by the customer and spouse,
247
Thomson v Christie Manson & Woods Ltd [2005] P.N.L.R. 713, CA (the vases were bought for
£1,957,388; if they were imitation they were worth some £25,000). See Stacey, ‘‘Under the hammer’’
148 S.J. 778; Robins, ‘‘Urning their keep’’ Lawyer, 2005, 19(9), 20. Meisel, ‘‘Auctioneers and buyers:
a special relationship?’’ (2005) 4 P.N. 250.
248
Ward v McMaster [1985] I.R. 29 (other defendants were held liable instead).
249
McAnarney v Hanrahan [1993] 3 I.R. 492.
250
See Stanton and Dugdale, ‘‘Recent Developments in Professional Negligence—III: Bankers’’, 132
New L.J. 105; King, ‘‘The Receiving Bank’s Role in Credit Transfer Transactions’’, 45 M.L.R. 369;
Southern, ‘‘The liabilities and duties of banks to private customers’’, (1996) 11 B.J.I.B. & F.L.(5) 224;
Tijio, ‘‘Duty of care and damages in banking cases’’, 1997 J.B.L., Jul. 350; Stanton, ‘‘Banks,
negligence and the bankruptcy of theory’’, (1998) 14 P.N.(3), 131.
251
See per Salmon J. in Woods v Martins Bank Ltd [1959] 1 Q.B. 55 at 70.
252
See also Lipkin Gorman v Karpnale [1989] 1 W.L.R. 1340, CA (a bank’s principal duty is to pay
cheques signed in accordance with its mandate and there is no obligation imposed on it to inquire into
the commercial wisdom of any transaction. A bank would be liable in such circumstances only if, on
the facts found, any reasonable banker would have suspected fraud).
253
Woods v Martins Bank Ltd, n.239a, above, per Salmon J. at 72.
[586]
BANKERS AND FINANCE COMPANIES 9–83
specifically covered additional unlimited advances to the spouse.254 A duty of

care was owed where a bank manager was asked for and gave advice about the
wisdom of purchasing a particular house as a business venture.255
However, where a customer, on the advice of his bank manager, advanced 9–82
money on mortgage to a company which was also a customer of the bank, and
suffered loss when the company failed, it was held that the bank had owed no
duty to advise him carefully or at all.256 In the normal course of events a bank
does not owe a duty of care, whether in tort or contract, to profer any explanation
or to advise the taking of independent advice to a customer who comes to its
premises in order to sign securities.257 Where a wife had offered her interest in
the matrimonial home as surety for her husband’s loan from a bank, there was no
duty to disclose matters such as the amount of the husband’s debt or the purpose
of the loan, even though they might have affected her view of the risk
involved.258
When a bank is asked about the financial position of one of its customers it is 9–83
under a duty to answer honestly on the information which it has, but not to make
inquiries elsewhere. If asked for an opinion whether a customer can be trusted for
a specific sum of money, and an honest opinion is expressed, a bank will not be
liable even if, on the facts available, other bankers might have expressed a
different opinion.259 Since Hedley Byrne & Co Ltd v Heller & Partners Ltd,260
there is a clear distinction to be made between a duty to be honest and the duty
to take reasonable care, which arises where a special relationship exists, quite
independently of any contractual relationship between the parties.261 No breach
of duty arose where a bank was required by subpoena to produce a customer’s
statement of account in circumstances where no legal privilege against produc-
tion could have been claimed.262 A bank was under no duty to inform a customer
who had personally guaranteed a loan to a company of which he was chief
executive officer and chairman, of a boardroom plot against him.263
254
Cornish v Midland Bank Plc [1985] 3 All E.R. 513.
255
Verity v Lloyds Bank Plc [1995] N.P.C. 148.
256
Banbury v Bank of Montreal [1918] A.C. 626.
257
Barclays Bank Plc v Khaira [1992] 1 W.L.R. 623.
258
Midland Bank Plc v Kidwai, The Independent, June 5, 1995, CA.
259
Parsons v Barclay & Co Ltd (1910) 26 T.L.R. 628; (contrast the facts and the situation with those
in Hedley Byrne & Co Ltd v Heller & Partners Ltd); Batts Combe Quarry Co v Barclays Bank Ltd
(1931) 48 T.L.R. 4. In Macken v Munster and Leinster Bank (1960) 95 I.L.T.R. 17, Deale J. held that
a bank manager was negligent when he failed to take reasonable care when supplying information to
the claimant concerning the financial position of a certain Dutchman, as a result of which the claimant
signed a promissory note, on which the Dutchman defaulted; Commercial Banking Company of
Sydney Ltd v R.H. Brown & Co [1972] 2 Lloyd’s Rep. 360 (the HC of Australia held that the bank’s
opinion was not honestly held by its manager concerning the business-worthiness of its customer, a
wool buyer).
260
[1964] A.C. 465. For the facts see Ch.2, para.2–172, above.
261
See para.9–18, above.
262
Maurice Robertson v Canadian Imperial Bank of Commerce [1994] 1 W.L.R. 1493, PC.
263
Fennoscandia Ltd v Clarke [1999] 1 All E.R. (Comm) 365, CA.
[587]
9–84 Cheques and credit. A bank was under no duty to check the identity of a
person in respect of whom it is being asked to provide a credit reference.264 A
paying bank does not normally owe a duty of care to a cheque’s payee who is not
its customer, but this was subject to qualification where the bank’s conduct was
calculated to deceive the payee in a manner which could result in financial loss
to him. If the bank had refused payment of a cheque at once in an unqualified
manner it would not have been liable, but by communicating a reason the bank
had assumed responsibility to act honestly and carefully.265 A bank which
received a cheque drawn upon another bank upon the basis that it would be
applied either to the purchase of shares or returned to the drawer, did not owe a
duty of care to the drawer’s bank not to lose it.266
9–85 Where a bank is acting as a clearing bank, that is, as agent for collection of a
cheque on behalf of another bank or financial institution, it owes a duty of care
to the true owner of the cheque, but is in general entitled to consider that the duty
will be performed by its own customer, who should be in a far better position to
know the circumstances in which the cheque was brought for collection and the
identity of the person who submitted it. But the extent to which the clearing bank
can rely on its customer will vary with the circumstances. Where the clearing
bank acts for a foreign bank it does not, for instance, follow that it can assume
that the foreign bank is aware of the effect in English law of an endorsement ‘‘a/c
payee’’ by which a cheque becomes non-transferable and can only be paid to the
named payee.267
9–86 Assumption of responsibility. A bank did not assume the responsibility of an

insurance broker towards the claimant where its subsidiary company sent her a
letter enclosing an insurance proposal form which she was subsequently pressed
to complete and return, since on the facts the bank was simply trying to ensure
that the claimant’s preferred insurance cover was in place.268
9–87 Duty to third parties. So far as third parties generally are concerned, there
is no reason why the ambit of a bank’s duty of care should be approached
otherwise than in the case of any other professional body. A claimant will have
to demonstrate a relationship of proximity, with or without an assumption of
responsibility, also foreseeability of damage and that it is fair, just and reasonable
264
Gold Coin Joailliers SA v United Bank of Kuwait Plc [1997] P.N.L.R. 217, CA (a rogue assuming
a false identity persuaded a bank to give a reference to the claimants who gave him watches as a
result: the bank was not liable for the loss since they had not, on the facts, assumed a duty of care
regarding the identity of the person in relation to whom the information was being provided).
265
Potterton v Northern Bank [1993] 1 I.R. 413, following Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] A.C. 465 and, as regards the fact that a bank should either pay a cheque in legal
form or refuse payment at once, Bank of England v Vagliano Brothers [1891] A.C. 107.
266
Yorkshire Bank Plc v Lloyds Bank Plc, The Times, May 12, 1999 (a cheque for £90,000 which was
stolen, fraudulently altered and negotiated after it came into the defendant’s custody).
267
The Honourable Society of the Middle Temple v Lloyds Bank Plc [1999] 1 All E.R. (Comm) 193
(Lloyds Bank did not have a defence under s.4 of the 1957 Act where it had not, as had other clearing
banks, informed its foreign customer of the effect of the Cheques Act 1992 upon cheques marked ‘‘a/c
payee’’ and was in breach of duty towards the true owner of a cheque presented at a foreign bank and
sent by that bank to Lloyds for collection).
268
Frost v James Finlay Bank Ltd [2002] Lloyd’s Rep. I.R. 503, CA.
[588]
BANKERS AND FINANCE COMPANIES 9–90
to impose a duty of care. The first of these requirements was not made out where
a bank obtained a report upon the financial position of a company, its customer,
and thereafter made formal demand for outstanding debts and went on to obtain
administration orders, following which the company went into liquidation. No
duty of care was owed to a director of the company, who had a right to acquire
all its issued shares, and who alleged that the report was inaccurate and that as
a result of the administration orders he had suffered loss, since he was not a
customer of the bank and there were no circumstances from which it could be
inferred that the bank had assumed any responsibility towards him.269
In relation to a person not actually its customer, no duty of care was owed by 9–88
a bank whose customer had provided it with an irrevocable authority to pay that
person a sum of money and the bank did not in fact pay the whole amount: there
had been no communication between the bank and the payee and the court was
not prepared to accept the general proposition that when foreseeability of
financial loss is established to an individual it is fair, just and reasonable for the
bank to owe a duty of care in addition to its contractual duty to its cus-
tomer.270
No duty of care was owed by a bank to claimants who it was aware had 9–89
obtained an asset freezing order from the court, which restrained payments out of
the accounts of certain of its customers. While the foreseeability element in the
threefold Caparo test was satisfied, the parties were proximate only in the sense
that one served the order on the other, and the other appreciated the risk of loss
if it was not obeyed. It was the third element in the test which gave difficulty: it
was not fair just or reasonable that the bank should, on being notified of an order
which it had not been able to resist, become exposed to a liability which principle
could not limit. It was insufficient protection, besides being inconsistent with the
existence of the duty of care contended for, that the claimant undertook to make
good loss to the bank which the freezing order might cause.271
Customer’s duty of care. It is appropriate to note for completeness that a 9–90

customer has been held to owe a duty of care to a bank in connection with the
operation of a current account. However, the duty was no wider than to use due
care in drawing cheques, so as not to facilitate fraud or forgery and to notify the
269
Chapman v Barclays Bank Plc [1998] P.N.L.R. 14, CA.
270
Wells v First National Commercial Bank [1998] P.N.L.R. 552, CA. per Evans L.J. at 562, the duty
contended for ‘‘would go a long way to revolutionise English Banking Law’’; but he also said the
position in the instant case might have been different if the third party had actually communicated
with the bank, so as to establish some relationship between them. See also O’Hara v Allied Irish
Banks, The Times, February 4, 1984 (no duty owed by bank to a guarantor, not one of its custom-
ers).
271
Commissioners of Customs and Excise v Barclays Bank Plc [2007] 1 A.C. 181 (in error substantial
sums were paid out of the accounts in question after the Bank received notice of the restraining order.
The speech of Lord Bingham reviews the tests used to identify whether a duty of care should exist
in novel circumstances). See Tinkler, ‘‘The bank, the thief, the freezing order—but whose duty?’’ 155
N.L.J. 82.
[589]
bank immediately of any unauthorised cheques of which the customer has

become aware.272
9–91 The standard of care. The standard of care which the law requires of a bank
with regard to the collection of a cheque is that shown in the ordinary practice of
careful bankers. Where a bank did not fall short of that standard it was protected
by s.4 of the Cheques Act 1957. It did not constitute any lack of reasonable care
to refrain from making inquiries of a customer, which it was improbable would
lead to detection of his purpose if he were dishonest, and which were calculated
to offend him and maybe drive away his custom, if he were honest.273
9–92 Where there had been no failure to communicate information of sufficient

importance to the claimants concerning a customer who had been refused a loan
by the defendant bank, it was held that they were not liable to contribute towards
the claimants’ loss, when the customer defaulted in repayment of a loan.274 A
bank’s duty of care to its customer does not extend to warning him that it was
risky to pay into his account a generally endorsed cheque, crossed with the words
‘‘not negotiable—account payee only’’, because of the possibility of his liability
should the person who had given him it not have had good title to the cheque.275
The duty of care owed to a customer, when the bank acts as his agent, is the duty
of an ordinary prudent banker. So, when a transfer was ordered by a person who
had the requisite authority, and there were no obviously suspicious features of the
transaction, the bank, which had not been put on inquiry was entitled or even
obliged to execute the transfer, and was not negligent.276 Bankers were not
negligent where they processed a cheque forged with the signature of a solicitor
who held the account on behalf of a client for whom he had power of attorney277;
nor where they honoured a cheque for £20,000 drawn on an account with a nil
balance where the cheque was validly signed and there were no other circum-
stances to put them on notice of fraud.278 It was not negligent for a bank to allow
withdrawals from an overdrawn joint account, where both parties to the account
had signed a mandate authorising the bank to debit the account by cheques drawn
by either of them, and there was no reason for the bank to suppose the mandate
was being abused.279
9–93 The manager of a finance company owes a duty of care to prospective

investors where he claims skill and competence in investment, especially when
272
Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] A.C. 80, PC; also National Australia
Bank Ltd v Hokit Pty Ltd [1997] 6 Bank L.R. 177, CA (NSW) and see Marten, ‘‘Customer’s duty to
take care in the exercise of an account: a criticism of Tai Hing Cotton Mills v Liu Chong Hing Bank
Ltd’’, (1986) 2 P.N. 17.
273
Marfani & Co v Midland Bank Ltd [1968] 1 W.L.R. 956; Thackwell v Barclays Bank Plc [1986]
1 All E.R. 676 (a bank must take reasonable care to see that its customer has a proper title to a cheque
presented for collection; however, a bank is entitled to assume that its customer is the true owner
thereof, unless there are unusual facts or matters which would put a reasonable banker upon inquiry
as to the true ownership).
274
Mutual Mortgage Corp v Bank of Montreal (1965) 55 D.L.R. (2d) 164.
275
Redmond v Allied Irish Banks, The Times, June 5, 1987.
276
Barclays Bank v Quincecare Ltd and Unichem Ltd [1988] F.L.R. 166.
277
Weir v National Westminster Bank, 1994 S.L.T. 1251.
278
Verjee v CIBC Bank [2001] Lloyd’s Rep. Bank. 279.
279
Royal Bank of Scotland Plc v Fielding, The Times, February 26, 2004, CA.
[590]
BARRISTERS 9–95
he himself will benefit from brokerage. The standard of care is that of an ordinary
prudent and skilful financial adviser.280 In applying this standard, account can be
taken of the extent to which the organisation in question specialises in
transactions of the nature under review.281 However, so far as the relationship
between the Bank of England and any of the commercial banks in the United
Kingdom is concerned, principles of common sense and reason indicate that no
duty of care arises out of it.282
Proof of a causative link. Although a bank was in breach of its duty to 9–94
investors in a fraudulent high yield investment scheme, where an employee
negligently made representations about the bank’s intention to deal with the
invested monies in a particular way, it was not liable for the investors’ losses
when after the representation had been made they sought clarification from the
bank, but before receiving it, proceeded with their investment relying on
assurances from the fraudsters, who thereafter wrongfully appropriated the
money.283
6.—BARRISTERS
The special immunity. For well over 150 years barristers enjoyed special 9–95
immunity from actions in negligence.284 The immunity was variously thought to
arise from the absence of contractual obligation,285 the difficult nature of the
work,286 and public policy.287 As already mentioned in relation to other
professional groups, after the decision in Hedley Byrne & Co Ltd v Heller &
Partners Ltd,288 it became clear that a duty to take reasonable care existed
wherever a ‘‘special relationship’’ was created, independently of whether a
contract was also in existence and it was only a matter of time before the
barrister’s immunity was tested. In Rondel v Worsley,289 the House of Lords
confirmed the advocate’s immunity albeit in a limited way. Thereafter, in Arthur
J.S. Hall & Co v Simons290 their Lordships swept away those limitations and left
280
O’Leary and Short v Lamb and Lensworth Finance (1973) 7 S.A.S.R. 159.
281
See, e.g. Investors Compensation Scheme Ltd v West Bromwich Building Society (No.2) [1999]
Lloyd’s Rep. P.N. 496 (independent financial advisers selling home income plans to property owners
with small incomes).
282
Minories Finance Ltd v Arthur Young, The Times, July 27, 1988.
283
HSBC Bank Plc v 5th Avenue Partners Ltd [2009] EWCA Cic 296.
284
See Fell v Brown (1791) 1 Peake 131. A similar immunity covered a special pleader: Perring v
Rebutter (1842) 2 M. & Rob. 429.
285
per Pollock C.B. in Swinfen v Lord Chelmsford (1860) 5 H. & N. 890 at 920. Earlier decisions are
cited in the 8th edn of this book. See also Ch.2 para.2–276, above.
286
Suggested by Lord Campbell in Purves v Landell (1842) 12 C. & F. 91 at 102, 103; and Lord
Pearson in Rondel v Worlsey [1969] A.C. 191 at 274.
287
Swinfen v Lord Chelmsford, (1860) 5 H. & N. 890 at 921.
288
[1964] A.C. 465.
289
[1969] A.C. 191. See further Ch.2, para.2–276, above.
290
[2002] 1 A.C. 615. For an account of the law as it stood before this decision, see the 9th edn of
this work from para.8–68 onwards. See also, Awoyami v Radford [2008] 3 W.L.R. 34, Ch.4,
para.4–163 above (the basis of the speeches in Arthur J. S. Hall & Co v Simons being that advocates’
immunity could not be justified in civil proceedings in 1991, it was not available as a defence in
relation to conduct in 1995, even though the decision in the House of Lords was handed down after
that date).
[591]
it for argument in each case whether on the facts, the claim against the advocate
should be struck out, for instance, as an abuse of process.291
9–96 Abuse of process. In removing the immunity it was anticipated that more
cases would come before the courts in which the court would have to consider the
rule in Hunter v Chief Constable of West Midlands Police,292 preventing civil
claims which are designed and intended to mount a collateral attack upon the
final decision of a criminal court. It was emphasised that the rule is a flexible one,
but in the usual case it would bring the administration of justice into disrepute if,
having exhausted the process of appeal, a convicted person sought to reopen his
conviction by way of initiating civil proceedings. Other than cases where the
conviction was eventually set aside, subsequent civil proceedings would ordi-
narily amount to an abuse.
9–97 The position was seen as different where the claim for the barrister’s
negligence arises out of earlier civil proceedings, whether some form of general
civil claim or matrimonial proceedings. There is not the same public interest in
the result. One factor which might possibly give rise to an abuse of process
argument would be manifest unfairness to some third party affected by the
subsequent action.293 But otherwise the likelihood of a second action amounting
to an abuse would appear to be small and the factor limiting claims would more
likely be the prospects of success for a second action, having regard to the way
the first was resolved.294
9–98 The duty of care. In the result, a barrister, or solicitor advocate,295 owes a
duty of care to his clients, both lay and professional, for breach of which an
action will lie when the act or default in question falls outside the abuse of
process considerations discussed above.296 Although formerly there was at least
potential immunity in cases where the default relied upon occurred in court, or
was closely connected with the advocate’s work in court,297 such limitations have
disappeared. So far as a duty of care towards third parties is concerned, although
authority is scant, it would appear logical that the advocate’s duty should extend
to third parties where that can be justified.298 It has been held that, in the absence
of any special assumption of responsibility, a barrister giving an undertaking to
291
For striking out negligence claims, see Ch.4, para.4–254, above. See also, Evans, ‘‘Hall v Simons
and abuse of process’’ (2001) 4 P.N. 218.
292
[1982] A.C. 529.
293
The example given by Lord Hoffmann was of a negligence claim arising from the conduct of an
earlier defamation action, where the claimant attempted to justify an allegation for the second
time.
294
For striking out negligence claims, see n.291, above. See also CPR Pt 24.2 and the possibility of
striking out a claim on a summary basis on the ground that there are no reasonable prospects of
success.
295
For these purposes there is no distinction between the two. See further para.9–258, below.
296
para.9–96, above.
297
See Rondel v Worlsey [1969] A.C. 191 and the cases which followed, notably Saif Ali v Sydney
Mitchell & Co [1980] A.C. 198, Somasundaram v M. Julius Melchior & Co [1988] 1 W.L.R. 1394,
CA, and the extensive review of authorities by Lord Bingham C.J. in Arthur J.S. Hall & Co v Simons
in the CA, [1999] 3 W.L.R. 873.
298
See para.9–18 above.
[592]
BARRISTERS 9–100
the court on his client’s behalf owes no duty of care towards the opposing
party.299
The standard of care. There is no reason why the standard of care should be 9–99
any different than for other professional persons. A barrister must exercise the
care of an ordinarily skilled practitioner of his special skill.300 The difficulty that
may well arise is in relation to proof. It has been pointed out that a barrister is
often asked for advice in situations that call for the exercise of judgment. It is
easy to be wise after the event and simply because advice turns out to have been
wrong does not mean that it was given negligently. An error of judgment,301 if
made in good faith and after care has been taken, is likely to be excusable.302
Proof of negligence would require an error that goes beyond mere mistake.303 In
the words of one judge, negligence would be found only in the case of error that
is ‘‘egregious’’.304 Lord Diplock said there would have to be an error ‘‘such as no
reasonably well-informed and competent member of that profession could have
made’’.305
It is the duty of a barrister to give advice that is clear. A barrister may, and 9–100
should in some cases, be robust in advice, but should bear in mind the need for
logical and sensible reasons to justify the conclusion reached.306 Where advice is
given orally in conference, in the presence of a solicitor and other professional
advisers, it may not be necessary to ensure that the lay client follows all of the
details. So, in one such case, where a barrister was asked to advise about a
scheme to save estate duty on a millionaire’s estate and the lay client was also
advised by solicitors, it was held that the barrister was not under any professional
299
Connolly-Martin v Davis [1999] P.N.L.R. 826, CA (an undertaking was given without instruc-
tions, and the barrister subsequently advised his client that it was no longer binding).
300
The standard of care of a junior Chancery barrister is that of a reasonably competent practitioner
in general Chancery practice: on the facts it was negligent not to advise that a gift of shares be
effected by tax exempt trust, but not negligent to fail to recommend, for instance, share
re-organisation: Estill v Cowling Swift & Kitchin [2000] Lloyd’s Rep. P.N. 378.
301
One exercise of judgment is deciding which points to plead. The proposition that a barrister would
be negligent if he decided not to plead an unmeritorious point even though it could have been
properly argued and might have led to an offer in settlement was strongly doubted in McFarlane v
Wilkinson [1997] P.N.L.R. 578, CA, and those observations were not criticised in Arthur J.S. Hall v
Simons in the CA, although reservations were expressed about the decision in McFarlane itself: see
[1999] 3 W.L.R. 873.
302
per Lord Wilberforce at 214.
303
See Lawton J. in Cook v S [1966] 1 W.L.R. 635 at 641. See also, in the context of a complex tax
avoidance scheme, and alleged negligence of a senior tax silk, the judgment of Lloyd J. in Matrix
Securities Ltd v Theodore Goddard [1998] P.N.L.R. 290 at 321. The allegations failed.
304
per Anderson J. in Karpenko v Paroian Courey, Cohen & Houston (1981) 117 D.L.R. (3d) 383
(Ont.H.C.) at 397–398.
305
Saif Ali v Mitchell [1980] A.C. 198, 220 (failure by counsel to include an appropriate defendant
in proceedings). See Hickman v Blake Lapthorn [2006] P.N.L.R. 20 (advice on settlement which did
not take proper account of future loss of earnings) ; Pritchard Joyce & Hind v Batcup [2009] P.N.L.R.
28, CA (setting the standard of care too high should be avoided and counsel instructed in a claim
based on a solicitor’s negligence were not negligent in failing to notify their client and or instructing
solicitors of a time limit in relation to commencing proceedings for negligence against yet another
legal adviser).
306
Griffin v Kingsmill [2001] Lloyd’s Rep. P.N. 716, CA.
[593]
duty to ensure that the client understood fully all the implications of the advice
given.307
ILLUSTRATIONS
9–101 It was potentially negligent for counsel specialising in an area such as family
law, when advising in relation to proposals for settlement of a wife’s financial
claims, to fail to advise of a decision pending in the House of Lords which might
benefit her financially, leaving to the client whether to seek a clean break or await
the outcome of the decision.308 On the facts, it was not negligent of counsel
representing the claimant at the trial of a personal injuries action to say that she
was hopeful the court would receive certain medical evidence for which
permission had hitherto been refused, where she thought the chances of success
for the application were somewhat over 50 per cent. Nor was it negligent to give
advice that it was better to proceed with the application (which in the event
failed) than to accept an offer of £150,000 in settlement. It was not necessary that
in giving advice in such circumstances counsel should set out her process of
reasoning in detail.309
9–102 It was not a negligent exercise of judgment for a barrister representing a

claimant under the Sex Discrimination Act 1975 in the industrial tribunal, not to
pursue allegations of victimisation as examples of direct discrimination, where
she was given one lengthy statement and was not told of another very lengthy
statement, provided to a firm of solicitors.310 Nor was it negligent for defence
counsel at a criminal trial to fail to remind the judge that he had not given an alibi
direction, where she considered that an impression might thereby arise in the
jurors’ minds that the judge disbelieved the alibi evidence called.311
9–103 Counsel can reasonably be expected to be familiar with decisions reported in

the Law Reports, the All England Law Reports, or the Weekly Law Reports, but
‘‘ . . . the exercise of reasonable care has never extended to a command of
unreported decisions of the Court of Appeal. It is only where some special
feature of a case might reasonably be expected to have put a competent advocate
on inquiry that he or she may be faulted for failing to carry out the necessary
307
Mathew v Maughold Life Assurance Co Ltd (1985) 1 P.N. 142.
308
Williams v Thompson Leatherdale [2008] 3 F.C.R. 613 (in the event no loss was suffered by the
claimant because it was not clear that with the appropriate advice she would have rejected the clean
break offer that had been made).
309
Moy v Pettman Smith [2005] P.N.L.R. 426, HL, para.9–103 below, per Lord Carswell at [60]. per
Baroness Hale of Richmond at [28] ‘‘the client pays for the advocate’s opinion not her doubts.’’ She
stressed the absence of expert evidence to the effect that the terms of counsel’s advice fell below the
standard reasonably to be expected of counsel of her seniority and expertise. See Willis, ‘‘Advocates’
duties’’ 149 S.J. 201; Phillips, ‘‘At the door of the court’’ 155 N.L.J. 352. See also Luke v
Wansbroughs [2005] P.N.L.R. 2 (it was not negligent to advise in favour of settlement of an action
for malicious falsehood and defamation in the sum of £10,000 albeit damages in excess of £200,000
were claimed, where there was every reason to suspect an application to strike out on grounds of
delay and that, if made, the application would be successful).
310
Waters v Maguire [1999] Lloyd’s Rep. P.N. 855
311
Popat v Barnes [2004] EWHC 741, The Times, July 5, 2004.
[594]
BARRISTERS 9–104
inquiry with reasonable diligence.’’312 There was no liability where counsel

advised his client that he should settle a claim for personal injuries arising from
his employment by a company of which he was a director: the advice was within
the range of responses of a reasonably competent member of the profession.313
Nor was liability established where counsel’s advice on a point in relation to the
certification of completion of building works was within the reasonable range of
options available, even though the Court of Appeal ultimately took a different
view.314 Liability was conceded where counsel gave negligent advice to a
freehold owner in proceedings by a tenant for a new lease under the Leasehold
Reform, Housing and Urban Development Act 1993, that resulted in the grant, by
way of compromise, of long leases of two flats.315 A barrister was not negligent
where, shortly before trial, he advised that in his view there was a real risk that
one of joint claimants whom he was instructed to represent, lacked capacity
within the meaning of the Mental Health Act 1993, and that an application should
be made to adjourn the hearing.316
Wasted costs. Barristers come into no special category when the court is 9–104
considering its jurisdiction to make a wasted costs order.317 The relevant
principles are summarised below,318 although more detailed guidance is given in
Pt 44 of the Civil Procedure Rules and the Practice Direction thereto. The power
to award wasted costs may be exercised both in relation to a barrister acting on
behalf of the party making the application and the opposing party’s advocate.319
However, in considering whether to impose such a liability on any advocate,
barrister or solicitor, no doubt the court will bear well in mind the following from
the leading case:
‘‘Any judge who is invited to make or contemplates making an order arising out of an
advocate’s conduct of court proceedings must make full allowance for the fact that an
advocate in court, like a commander in battle, often has to make decisions quickly and
under pressure in the fog of war and ignorant of developments on the other side of the
hill. Mistakes will inevitably be made, things done which the outcome shows to have
been unwise. But advocacy is more an art than a science. It cannot be conducted
according to formulae. It is only when, with all allowances made, an advocate’s conduct
312
Moy v Pettman Smith [2002] P.N.L.R. 961, CA per Brooke L.J. at 982 (appeal allowed, [2005]
P.N.L.R. 426, HL, para.9–101 above).
313
McIlgorm v Bell Lamb & Joynson [2001] P.N.L.R. 643.
314
First City Insurance Group v Orchard [2002] Lloyd’s Rep. P.N. 543.
315
Green v Alexander Johnson [2005] EWCA Civ 775.
316
McFaddens v Platford [2009] P.N.L.R. 26 (the judgment discusses inter alia the respective roles
of a barrister and instructing solicitor).
317
In Ridehalgh v Horsfield [1994] 3 W.L.R. 462, CA, the leading case on the topic, the court
considered and specifically rejected the argument that s.62 of the Courts and Legal Services Act 1990
in effect gave an immunity to barristers where negligence could not be proved. For the like
jurisdiction in New Zealand, see Harley v McDonald [2001] 2 A.C. 678, para.9–249, below.
318
See below para.9–250 and, e.g. the notes to CPR Pt 44.14 in the White Book (Sweet and Maxwell
2010).
319
Medcalf v Mardell [2003] 1 A.C. 120, n.321, below.
[595]
of court proceedings is quite plainly unjustifiable that it can be appropriate to make a

wasted costs order against him.’’320
9–105 In Medcalf v Mardell,321 it was indicated that the power to make a wasted costs
order arises not only where an advocate is exercising a right of audience in court,
but also where the matters complained of arose out of court but were immediately
relevant to exercising a right of audience. The court could therefore properly
consider an application for wasted costs which allegedly arose as a result of
barristers making allegations of fraud in an amended notice of appeal and
skeleton argument, where it was suggested that in drafting the allegations they
could not have had before them ‘‘reasonably credible material’’322 in support of
such a case. On the facts, the claim for wasted costs failed. It was not necessary
for counsel making such allegations to have before them evidence in admissible
form, provided that there was available material, in whatever form, capable of
leading responsible counsel to conclude that serious allegations could properly be
based upon it. Where a client did not waive his privilege and a barrister was
thereby prevented from explaining what particular material was available at the
time the allegations were made, the court should take extreme care and should
not make a wasted costs order unless satisfied that there was nothing the barrister
could say, if unconstrained by client privilege, to resist it and it was in all the
circumstances fair to make the order. It has been emphasised that the basis of the
wasted costs jurisdiction is breach of a duty owed to the court, not another party
to the litigation.323
9–106 Legal aid. The Code of Conduct of the Bar of England and Wales contains
guidelines324 for use when a barrister is asked to represent a client in receipt of
legal aid. There is a continuing duty to review the prospects of success in the
case, whether or not instructions are before counsel for that particular purpose.325
Guidance is given about the manner in which the prospects of success should be
assessed.326 However, the Code expressly provides that the statements made are
essentially matters of good practice and its terms may not always be of assistance
320
per Sir Thomas Bingham M.R. at 482. See also Fryer v Royal Institution of Chartered Surveyors,
The Times, May 16, 2000, CA (for purposes of wasted costs, a barrister is not negligent if he fails to
assess the prospects of success of particular points in percentage terms when advising on the merits
for the purposes of legal aid: the guidelines in the Code of Conduct of the Bar of England and Wales,
are essentially statements of good practice and should be used with care when considering whether
counsel has been negligent). See further in relation to the Code para.9–106, below.
321
[2003] 1 A.C. 120. See also Brown v Bennett [2002] 1 W.L.R. 713 (unsuccessful application for
wasted costs against counsel made on the basis that the available evidence did not justify a pleading
of negligence: per Neuberger J. at 750 ‘‘it would only be if the lawyer’s conclusion that he could
plead dishonesty was one which no reasonable lawyer, properly considering matters could have
reached, that it can be criticised as being improper’’). See Rees and Bell, ‘‘Giving lawyers a break’’
146 S.J. 654.
322
The phrase comes from para.5.8(c) of s.3 of the Code of Conduct of the Bar of England and Wales
(8th edn, October 2004).
323
Persaud v Persaud [2003] P.N.L.R. 519, CA. See also Dempsey v Johnstone [2004] P.N.L.R. 25,
CA, para.9–254, below.
324
See generally, Annex E of the Code (8th edn, October 2004).
325
ibid. para.20 of Annex E.
326
See in particular para.10 of Annex E.
[596]
DENTISTS 9–108
in deciding whether a barrister has been negligent.327 So, where a barrister failed
to assess the prospects of success in a case in percentage terms, he was not
negligent so as to be exposed to a wasted costs order, even though such an
approach was suggested in the guidelines.328 Nor was it necessary for counsel to
identify the prospects of success of particular lines of argument or to suggest
limitations on a legal aid certificate by reference to such lines of argument.329
7.—DENTISTS
The duty of care. The duty of a dentist330 is to exercise due care and skill in 9–107
treatment of his patients. The duty is the same as that owed by a surgeon or
physician.331 Liability is concurrent in both tort and contract.332 Quite apart from
negligence, a dentist will be liable for trespass to the person if he performs
unnecessary treatment and deliberately conceals from the patient the fact that it
is not required.333
The standard of care. Where a tooth was extracted and, after the extraction, 9–108
the jaw was found to be fractured, that of itself was held to be no evidence of
negligence against the dentist, even if there were also part of the root of the tooth
still left in the jaw.334 It has been held that a dentist is entitled to rely upon a
doctor’s opinion as to the general response of a patient to antibiotic treatment,
unless that opinion was quite clearly inconsistent with what the dentist observes
on examination.335 Whilst it was not evidence of negligence that a jaw had been
dislocated during an extraction of teeth, it was negligent not to notice the
existence of a dislocation during the dentist’s further examinations over
subsequent months of treatment.336 In circumstances where a dentist performed
surgery to remove wisdom teeth and caused damage to the lingual nerve, liability
327
See e.g. para.1 of Annex E and para.1 of s.3 of the Code. Also, see Fryer v Royal Institution of
Chartered Surveyors, The Times, May 16, 2000, CA, and Royal Institution of Chartered Surveyors v
Wiseman Marshall [2000] P.N.L.R. 649, CA.
328
Fryer v Royal Institution of Chartered Surveyors, n.327, above.
329
Royal Institution of Chartered Surveyors v Wiseman Marshall, n.327, above.
330
Only a registered dentist is entitled to describe himself as: ‘‘dentist,’’ ‘‘dental practitioner’’ or
‘‘dental surgeon’’ and to practise dentistry. Before a dentist can obtain registration with the General
Dental Council’s Registrar he must satisfy the requirements of the Dentists Act 1984. A dentist is
subject to the discipline of the Council, the powers of which are derived from the 1984 Act.
331
Edwards v Mallon [1908] 1 K.B. 1002.
332
Fish v Kapur [1948] 2 All E.R. 176. See further para.9–18, above. In regard to a dentist’s
contractual liability where he has undertaken to make and supply dentures for a patient, see Samuels
v Davis [1943] K.B. 526. See also para.9–22, above. See generally, Coleman, ‘‘Clinical negligence:
dentists uncovered’’ 2006 P.I.L.J. 42 (Feb), 11.
333
Appleton v Garrett [1996] P.I.Q.R. P1.
334
Fish v Kapur. See also O’Neill v Kelly, The Times, December 15, 1961, and Ch.6, para.6–93 et
seq., above.
335
Transwell v Nelson, The Times, February 11, 1959, where a patient had had some teeth extracted
by her dentist, who then referred her to a doctor, when her condition worsened. A doctor diagnosed
an abscess and treated her with antibiotics, but later it was discovered that she was suffering from
osteomyelitis. The patient could not succeed in an action against the dentist.
336
Lock v Scantlebury, The Times, July 25, 1963.
[597]
was established on proof that the damage arose from negligent drilling rather
than those surgical procedures from which, without negligence, such an injury
could be caused.337
8.—MEDICAL PRACTITIONERS
9–109 The duty of care.338 The civil liability of medical practitioners339 towards
their patients was set out at length in R. v Bateman,340 as follows:
‘‘If a person holds himself out as possessing special skill and knowledge and he is
consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes
a duty to the patient to use due caution in undertaking the treatment. If he accepts the
responsibility and undertakes the treatment and the patient submits to his direction and
treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge,
skill and caution in administering the treatment. No contractual relation is necessary,
nor is it necessary that the service be rendered for reward . . . The law requires a fair and
reasonable standard of care and competence. This standard must be reached in all the
matters above mentioned. If the patient’s death has been caused by the defendant’s
indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor
will it avail to prove that he was diligent in attendance, if the patient has been killed by
his gross ignorance and unskilfulness . . . As regards cases where incompetence is
alleged, it is only necessary to say that the unqualified practitioner cannot claim to be
measured by any lower standard than that which is applied to a qualified man. As
regards cases of alleged recklessness, juries are likely to distinguish between the
qualified and the unqualified man. There may be recklessness in undertaking the
treatment and recklessness in the conduct of it. It is, no doubt, conceivable that a
qualified man may be held liable for recklessly undertaking a case which he knew, or
should have known, to be beyond his powers, or for making his patient the subject of
reckless experiment. Such cases are likely to be rare. In the case of a quack, where the
treatment has been proved to be incompetent and to have caused the patient’s death,
juries are not likely to hesitate in finding liability on the ground that the defendant
337
Heath v West Berkshire HAy [1992] 3 Med.L.R. 57. The fact that the patient was not warned of
the small risk of nerve damage was not evidence of negligence, because a respectable and responsible
body of dentists would not have warned her of that risk but, in any event, even if she had been told,
she would have consented to the treatment taking place.
338
In New Zealand clinical negligence claims usually fall within the terms of the accident
compensation scheme and are therefore not usually the subject of litigation, but there are exceptions,
one such being claims for mental injury by secondary victims: see Todd, ‘‘Medical negligence in New
Zealand’’ (2001) 4 P.N. 230. For a summary of the scheme see Todd, ‘‘Twenty years of professional
negligence in New Zealand’’ (2005) 4 P.N. 257.
339
Before a medical practitioner can obtain registration with the General Medical Council’s
Registrar, the requirements of the Medical Act 1983 must be satisfied, both as regards qualification
and experience. Registration gives entitlement to practise as a registered medical practitioner, to
apply for appointment as a medical officer in any hospital, whether inside or outside the National
Health Service, and to give medical certificates required by any enactment. A registered medical
practitioner is subject to the discipline of the Council, the powers of which are derived from the 1983
Act.
340
(1925) 94 L.J.K.B. 791. See Akerele v The King [1943] A.C. 255.
[598]
MEDICAL PRACTITIONERS 9–112
undertook, and continued to treat, a case involving the gravest risk to his patient, when
he knew he was not competent to deal with it or would have known if he had paid any
proper regard to the life and safety of his patient.’’341
A single comprehensive duty of care. The doctor’s relationship with his 9–110
patient gives rise to a duty of care to exercise skill and judgment in providing
treatment. It is a single comprehensive duty. It covers all the ways in which a
doctor is called upon to exercise his skill and judgment in treating the patient’s
physical or mental condition and in respect of which his services were
engaged.
‘‘This general duty is not subject to dissection into a number of component parts to
which different criteria of what satisfy the duty of care apply, such as diagnosis,
treatment, advice (including warning of any risks of something going wrong however
skillfully the treatment advised is carried out).’’342
The duty of a doctor is limited to the sphere of medicine. Accordingly, unless 9–111
specifically so instructed, the doctor is not concerned with the sphere of legal
liability. In the absence of any special circumstances, a doctor is not required to
contemplate or foresee any question which is connected with a third party’s
liability. So, where after negligent diagnosis by a hospital’s casualty officer, the
claimant sought damages to reflect the lower sum for which he alleged he had
settled a personal injuries action, as against the value of his claim with a correct
diagnosis, the action failed.343
Necessity of the patient’s consent. A medical practitioner cannot examine, 9–112

treat or operate upon a patient, without the patient’s consent, except by
committing a trespass or assault.344 This consent, which may be implied,345
341
(1925) 94 L.J.K.B. 791 at 794, per Lord Hewart C.J.
342
Sidaway v Board of Governors of The Bethlem Royal Hospital and the Maudsley Hospital [1985]
A.C. 871 at 893, per Lord Diplock. See also Gold v Haringey HA [1988] Q.B. 481 at 489, per Lloyd
L.J.: ‘‘a distinction between advice given in a therapeutic context and advice given in a non-
therapeutic context would be a departure from the principle on which the Bolam test is itself
grounded’’; at 492, per Stephen Brown L.J.: ‘‘such a distinction is wholly unwarranted and artificial’’;
(pet. dis. [1988] 1 W.L.R. 462, HL(E)).
343
Stevens v Bermondsey and Southwark Group Hospital Management Committee (1963) 107 S.J.
478.
344
Slater v Baker (1767) 2 Wils. 359; Beatty v Cullingworth [1896] B.M.J., November 21; where a
surgeon was alleged to have removed a woman’s ovaries without her consent; Appleton v Garrett
[1996] P.I.Q.R. P1 (dentist who carried out extensive treatment and deliberately concealed it was
unnecessary committed a trespass to the person); also Williamson v East London and City HA [1998]
Lloyd’s Rep. Med. 6 (subcutaneous mastectomy performed although the patient had consented only
to a replacement breast prosthesis).
345
For implied consent see, e.g. Abbas v Kenney [1996] 7 Med.L.R. 47 (patient’s consent implied
where a surgeon, carrying out an exploratory operation, proceeded to total pelvic clearance where he
reasonably but mistakenly concluded he had discovered a malignant lump: the patient was aware that
more extensive surgery than that originally contemplated might become necessary if cancer was
discovered and had been told that total pelvic clearance was the standard treatment for ovarian
cancer).
[599]
amounts to an agreement on the part of the patient to permit the treatment in

question and is sufficient consideration for an implied promise to exercise proper
care and skill.346
9–113 In some circumstances an implied consent is insufficient and specific consent

has to be obtained. So, in Reibl v Hughes,347 it was negligent of a neurosurgeon
not to explain the high degree of risk of an operation to a patient who
subsequently suffered a stroke during the surgery and thereby became paralysed.
Further, the absence of a consent based upon knowledge of the risks rendered the
surgery a battery. In contrast, in Male v Hopkins348 it was not negligent for a
doctor, who had the claimant’s consent to general treatment, to prescribe a
particular drug known to have side effects, without first obtaining specific
consent. It was a proper exercise of his discretion to prescribe the drug, even with
the risk involved. However, negligence did arise in his failure to carry out
recommended tests for the presence of the side effects, once prescription of the
drug had commenced.
9–114 The duty of a medical practitioner is to give such explanation about intended
treatment and the implications of it as would be given by a careful and
responsible member of the specialty concerned, so that the claimant’s consent to
treatment is a real one.349 The extent of the duty to disclose any risks involved
must vary with the circumstances. It may be unnecessary, or even a positive
disservice, to warn a patient of a minimal risk where an operation is essential to
continued good health. Different considerations could well arise where the
procedure was totally elective, for example a sterilisation operation.350 It has
been said that once the patient is informed in broad terms of the nature of the
proposed treatment, and gives consent, that consent is real and no question of
trespass to the person can arise. Accordingly, if it is alleged that there was a
failure to give proper information about the risks, that is a matter of negligence,
346
Gladwell v Steggal (1939) 5 Bing.N.C. 733; Everett v Griffiths [1920] 3 K.B. 163 at 193, per
Scrutton L.J.
347
(1977) 78 D.L.R. 35, following Kelly v Hazlett (1976) 75 D.L.R. 536.
348
(1967) 64 D.L.R. (2d) 105.
349
Chatterton v Gerson [1981] Q.B. 432; Hills v Potter [1984] 1 W.L.R. 641 (a doctor did not have
to inform the patient of all the details of the proposed treatment or the likely outcome and the risk
inherent in it but was merely required to act in accordance with a practice accepted as proper by a
responsible body of skilled medical practitioners: what was required was for the patient to be supplied
with sufficient information to enable him to decide whether or not to undergo the surgery proposed);
Makrose v Epsom & St. Helier NHS Trust [2005] Lloyd’s Rep. Med. 334 (where a surgeon forms the
view that surgery is the right course it is not negligent to express that view firmly). See further n.351,
below; also Chester v Afshar [2005] 1 A.C. 134, para.9–148, below, (neurosurgeon negligent in
failing to warn of a slight risk of post-operative paralysis, the HL giving the claimant a remedy
notwithstanding difficulties of proof, because to do otherwise would deprive of its content the right
to a warning of the risks of surgery).
350
Videto v Kennedy (1980) 107 D.L.R. (3d) 612. See also Zamparo v Brisson (1981) 120 D.L.R. (3d)
545. In F v R (1984) 33 S.A.S.R. 189, it was held that the defendant medical practitioner was not in
breach of duty to the claimant, by reason of his failure to inform her of the risks before she submitted
herself to a sterilisation operation by tubal tie.
[600]
rather than assault.351 Circumstances may arise in which it is necessary to make

the patient aware that fewer or no risks are associated with another available and
alternative treatment.352
In Sidaway v Board of Governors of the Bethlem Royal Hospital and the 9–115
Maudsley Hospital,353 the Court of Appeal opined that there was no place in
English law for the doctrine of ‘‘informed consent’’. The general duty of a
medical practitioner to disclose information to his patient, before operating, was
that such action by way of giving or withholding information should be taken, as
was reasonable in all the circumstances which were known or ought to be known.
The object was to place the patient in a position to make a rational choice
whether or not to accept the medical recommendation. The duty was fulfilled
where the medical practitioner acted in accordance with a practice accepted
rightly as being a proper one by a body of skilled and experienced medical
practitioners.
The House of Lords dismissed the further appeal, on the basis that the claimant 9–116
had failed to prove that the surgeon had been in breach of any duty of care in
failing to warn of the risk inherent in the proposed treatment.354 In so doing, their
Lordships recognised that the degree of disclosure required for a particular
patient was an issue to be judged primarily on the basis of medical evidence.
However, there could well be circumstances in which the proposed treatment
involved such a substantial risk355 of grave consequences that the court could
conclude that the patient did have a right ultimately to decide, notwithstanding
any practice to the contrary accepted as proper by a responsible body of medical
opinion. As Lord Woolf M.R. put it:
‘‘In a case where it is being alleged that a plaintiff has been deprived of the opportunity
to make a proper decision as to what course he or she should take in relation to
treatment, it seems to be the law that if there is a significant risk which would affect the
judgment of a reasonable patient, then in the normal course it is the responsibility of a
doctor to inform the patient of that significant risk, if the information is needed so that
351
Chatterton v Gerson [1981] Q.B. 432. In Videto v Kennedy, n.350 above, it was held that the onus
of showing informed consent or sufficient disclosure of the risks involved rested with the defendant.
It is submitted that the better view is that of Bristow J. in Chatterton that the burden of proof rests
upon the claimant throughout.
352
Birch v University College London Hospital NHS Foundation Trust (2008)104 B.M.L.R. 168
(patient told of the risks of catheter angiography, the imaging procedure to which she consented, but
not of the risks of MRI scan, the less invasive procedure originally recommended).
353
[1984] Q.B. 493 (claimant suffered a recurrent pain in her neck, shoulder and arms and underwent
a laminectomy of the fourth cervical vertebra, unaware of a material risk of damage both to the spinal
column, which could severely disable her).
354
[1985] A.C. 871. For an analysis of the speeches in the HL, see the judgment of Lord Woolf M.R.
in Pearce v United Bristol Healthcare NHS Trust [1998] P.I.Q.R. P53, CA. See further, See
‘‘Surgeons side-line Sidaway’’ 142 Sol. J. 228 (the author points out that the Senate of Surgery of
Great Britain and Ireland has published a code, ‘‘The Surgeon’s Duty of Care’’, which gives guidance
on proper standards of practice, e.g. in relation to the information which should be given about the
nature of a patient’s condition; its treatment; and the risks. The detail provided should be that required
by a reasonable person to make a relevant and informed judgment whether to consent).
355
The size of risk which will satisfy the test will vary from case to case and it is not possible to lay
down any precise percentage: see Pearce v United Bristol Healthcare NHS Trust [1998] P.I.Q.R. P53,
CA at P59.
[601]
the patient can determine for him or herself as to the course he or she should
adopt.’’356
Liability can arise not simply as a result of failing to warn of risks when that
should have been done, but also where negligence arises in a medical practitio-
ner’s omitting to inform himself of choices available to a patient so that, for
instance, she is not taken to possible alternatives to surgery.357
9–117 Where treating a child, the duty of a medical practitioner is owed to the child
itself, but discharged by taking reasonable care to give its parents such
information and advice as will allow them to make an informed judgment of such
treatment as is in the child’s best interests. So, on the facts, no duty of care arose
where it was not foreseeable by a doctor examining a child that failure to mention
an alternative form of immunisation against measles would be likely to be
regarded by her parents as definitive of, or would have a significant influence on,
the question whether such immunisation should take place, where both he and
they realised that another G.P. would be involved at the time of immunisation.
Further, even if breach of such a duty had been shown, the chain of causation
would have been broken where the parents subsequently received ‘‘proper’’
advice from other doctors, after the occasion upon which they alleged the
defendant’s breach of duty had arisen.358
9–118 Where a doctor is treating the mother of a child who has died, a duty will be
owed to advise the mother about risks in future pregnancies. The outcome of any
post mortem will be relevant to that issue and the duty will extend to giving some
explanation of the post mortem procedures, of which the removal and retention
of the child’s organs is a relevant part. So, in circumstances where a mother has
not been told that organs have been retained, and she has suffered psychiatric
injury as a result of learning that the truth, a claim will lie for the doctor’s breach
of duty.359
9–119 Liability in contract. A distinction needs to be drawn between liability in

contract and liability in tort.360 In contract, liability depends on the express or
implied terms of the contract and is based on what the medical man in question
356
n.355 at P59. See also Re Creutzfeldt-Jakob Disease Litigation (No.1) (2000) 54 B.M.L.R. 1
(court did not permit amendment to a statement of claim to allege battery on the basis of a lack of
informed consent, where the claimant allegedly developed CJD after treatment with contaminated
batches of human growth hormone).
357
Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust [2002] P.I.Q.R. P61, CA (polio
victim not advised to accept bracing or orthosis, rather than above-knee amputation).
358
Thompson v Blake-James [1998] P.I.Q.R. P286, CA. See also Poynter v Hillingdon HA (1997) 37
B.M.L.R. 192 (although the claimant’s parents were not warned of the risk of brain damage arising
in the course of heart surgery, that risk was so low that, at the relevant time, a substantial body of
medical opinion would not have disclosed it). See, Mahendra, ‘‘Consent and capacity in medical
treatment’’ 151 N.L.J. 939.
359
AB v Leeds Teaching Hospital NHS Trust (the Organ Retention Group Litigation) [2005] 2 W.L.R.
358. See Jones, ‘‘Retained organs: The legal fallout’’ (2004) 3 P.N. 182.
360
For a general discussion of concurrent actions in contract or tort, see para.9–13 et seq., above.
[602]
contracts to do. If he holds himself out as a person who undertakes the cure or
treatment of human ailments ‘‘there is on his part an implied warranty that he is
of skill reasonably competent to the task he undertakes—Spondes peritiam
artis . . . The public profession of an art is a representation and undertaking to all
the world that the professor possesses the requisite ability and skill.’’361 The
amount of skill which must be displayed depends on the extent of the profession
of the person employed. A specialist, for example, is one from whom, in a case
of contract, more skill can be demanded than from a general practitioner. If an
unqualified man is employed, then, unless he professes to be equal or more than
equal in skill to a qualified practitioner, he is only liable for not employing such
skill as he professes to have.362
The duty in contract is only owed to the parties to the contract, but it would 9–120
seem that there is in most cases a contract between patient and medical
practitioner, even if the patient himself is not liable for payment of the services
rendered, such payment being made by someone else.363
Concurrent liability in tort. In tort, no question of warranty, undertaking or 9–121

profession of skill can arise. The duty arises from the fact that the practitioner
does something to a human being which is likely to cause physical damage unless
it is done with proper care and skill. It is well settled that under such
circumstances the practitioner owes a duty in tort to the patient.364 There seems
to be no good reason for thinking that the duty is in any respect different, if, in
an emergency, an unqualified person renders medical or surgical aid to another.
The officious aid of a well-meaning but unskilled person may cause greater
damage than was suffered as a result of the original accident.365 It must follow
also that it is actionable negligence if such a person gives more treatment than is
reasonably necessary in the special circumstances and the claimant suffers
consequential loss.
Duty to third parties. There is scant authority on the question whether a 9–122
medical practitioner owes a duty of care to third parties. Although there is no
361
per Willes J. in Harmer v Cornelius (1858) 5 C.B. (N.S.) 236.
362
See Shiells & Thorne v Blackburne (1789) 1 H.Bl. 158, per Heath J. His opinion deals with the
gratuitous rendering of services, but payment in these cases only goes to the amount and not to the
existence of consideration.
363
In West Bromwich Football Club Ltd v El-Safty (2006) 92 B.M.L.R. 179, the CA found that where
a physiotherapist employed by a football club referred a player to a consultant surgeon, on an
objective test, a contract arose between the player and the surgeon, even though the club was to pay
his fees. It was unnecessary to imply a contract between the surgeon and the club. See further,
Griffiths Q.C. and Whale, ‘‘Uneasy bedfellows?’’ 156 NLJ 1821 ; also Morgan and Purssell,
‘‘Negligence advice ending a career: calculatiing damages’’ 2007 W.S.L.R. (7) 3 ; O’Sullivan,
‘‘Negligent medical advice and financial loss: ‘‘sick as a parrot‘?’’ 2007 C.L.J. (1), 14.
364
Pippin v Sheppard (1822) 11 Price 400; Edgar v Lamont, 1941 S.C. 277. See, generally, Swaine,
‘‘Clinical negligence claims in tort’’ 151 N.L.J. 1076.
365
Gladwell v Steggal (1839) 5 Bing.N.C. 733 (a clergyman who ‘‘also practised as a medical man’’,
maltreated a child’s painful knee, which resulted in her suffering dire consequences.
[603]
reason in principle why a duty should not be owed, the potential problems are
illustrated by Goodwill v British Pregnancy Advisory Service.366 A doctor
advised a patient who had undergone vasectomy that the operation had been a
success and that he no longer needed to use any method of contraception. The
patient commenced a sexual relationship with the claimant. It was held that no
duty of care was owed by the doctor to the claimant, who subsequently gave birth
to a child, after the vasectomy underwent spontaneous reversal. There was
insufficient proximity between the defendant, the doctor’s employer and the
claimant and it could not be said there had been any assumption of responsibility
towards her when the advice was given. Such considerations will operate in
many third party claims based upon allegedly negligent advice.367 However, a
feature of the case was the defendant’s lack of awareness that the doctor’s
statement would be passed on to the claimant and it may be that a different view
would prevail if that was otherwise.
9–123 One common situation is where a doctor is asked by a prospective employer

to carry out a medical examination of an applicant for employment. A duty of
care has been held not to arise. The position of the doctor was said to be
analagous to that of the social workers in X (Minors) v Bedfordshire County
Council368 who, since they were advising their employer, the local authority,
owed no duty of care to children examined and interviewed by them in relation
to suspected child abuse. By similar reasoning a doctor did not owe any duty of
care to an applicant for employment where she commented unfavourably to her
employer on the applicant’s medical questionnaire.369 However, subsequently
that aspect of the Bedfordshire case upon which reliance was placed has been
called into question. It was said that the reasoning employed in the House of
Lords could not survive the coming into force of the Human Rights Act 1998.370
It remains to be seen whether the position of the doctor providing a reference will
be re-examined.371
366
[1996] 1 W.L.R. 1397, CA. See also Powell v Boladz [1997] 9 C.L. 472, CA (G.P. owes no duty
of care to relatives of a patient to whom he has to relay bad news); Davies, ‘‘Reliance on medical
advice by third parties: the limits of Goodwill’’ (1996) 2 P.N. 54.
367
See e.g. West Bromwich Albion Football Club Ltd v El-Safty (2006) 92 B.M.L.R. 179, CA, n.84
above (a consultant surgeon negligently advised that a professional football player should have
reconstructive surgery, which was unsuccessful causing the player to retire from the game: the
player’s club could not recover its economic loss, there being on the facts no assumption of
responsibility to the club or sufficient proximity in the surgeon’s relationship with the club, to give
rise to a duty of care).
368
[1995] 2 A.C. 633, Ch.12, para.12–12, below also Ch.2, para.2–308 above.
369
Kapfunde v Abbey National Plc, The Times, April 6, 1998, CA (disapproving on this point Baker
v Kaye (1997) I.R.L.R. 219). See further, Samuels, ‘‘The legal liability, if any, of the company doctor
to the prospective employee or other examinee’’ (2001) 68 Med. Leg. J. 145.
370
See D v East Berkshire Community NHS Trust [2004] Q.B. 558 (appeal dismissed [2005] A.C.
373) Ch.2, para.2–331, above.
371
Although not a ‘‘reference’’ case, an example of the potential for third party liability is provided
by Farraj v King’s Healthcare NHS Trust [2009] EWCA Civ 1203, (a private laboratory required by
a hospital to culture a sample for DNA analysis, owed a duty of care to the claimants, who were
planning a family and provided the sample to the hospital in order to be screened for a hereditary
blood disease).
[604]
Standard of care. The classic summary of McNair J. in Bolam v Friern 9–124

Hospital Management Committee has already been quoted.372 In order to satisfy
the duty in tort, the standard of care and skill to be attained is that of the ordinary
competent medical practitioner, exercising an ordinary degree of professional
skill.373 Although the standard is a high one, ‘‘a defendant charged with
negligence can clear himself if he shows that he acted in accord with general and
approved practice’’.374 A medical practitioner:
‘‘is not guilty of negligence if he has acted in accordance with practice accepted as
proper by a responsible body of medical men skilled in that particular art . . . merely
because there was a body of opinion who would take a contrary view.’’375
Negligence in the diagnosis and treatment of a medical condition ought not to 9–125
be established by a judge’s preference for one body of respectable professional
opinion before another.376 Use of the words ‘‘responsible’’, ‘‘reasonable’’ and
‘‘respectable’’, give the consequence that where, as often happens in cases of
alleged clinical negligence, a particular course of action is adopted after
weighing risks against benefits, a court considering expert evidence has to be
satisfied that in coming to their opinion the experts considered that particular
issue and reached a defensible conclusion about it.377
Applying current knowledge. The standard of care, when assessing a 9–126

medical practice or procedure, is judged in the light of knowledge available at the
time, not at the date of trial.378 So, an anaesthetist was acquitted of negligence
where he administered an anaesthetic kept in a manner thought at the time to be
372
para.9–02, above. See also Gold v Haringey HA [1988] Q.B. 481, 490, per Lloyd L.J.: ‘‘The
standard is not that of the man on the top of the Clapham omnibus, as in other fields of negligence,
but the higher standard of the man skilled in the particular profession or calling.’’
373
Rich v Pierpont (1862) 3 F. & F. 35; Chin Keow v Government of Malaysia [1967] 1 W.L.R. 813.
See also Djemal v Bexley Health Authority [1995] 6 Med.L.R. 269 (the standard of care required of
a senior houseman at a hospital is that of a reasonably competent houseman, regardless of the
individual’s actual experience).
374
Marshall v Lindsey C.C. [1935] 1 K.B. 516, 540, per Maughan L.J. and approved by the HL in
Whiteford v Hunter [1950] W.N. 553. See further in relation to the relevance of general and approved
practice, Ch.7, para.7–38, above.
375
per McNair J. in Bolam v Friern Hospital Management Committee, above, at 587.
376
Maynard v West Midlands Regional HA [1984] 1 W.L.R. 634, HL. What amounts to a responsible
body of medical opinion cannot be determined by counting heads. It is open to a judge to decide that
a small number of specialists constitute such a body; it is not necessary for the body to be substantial:
Defreitas v O’Brien [1995] P.I.Q.R. P281, CA. See Khan and Roberts, ‘‘What is a responsible group
of medical opinion?’’ [1995] P.N. 121.
377
per Lord Browne-Wilkinson in Bolitho v City and Hackney HA [1998] A.C. 232, at 241, 242. For
an example where the judge was said not to be entitled to reject the experts’ opinions, see Wiszniewski
v Central Manchester HA [1998] P.I.Q.R. P324, CA, Ch.6, para.6–15, above. However, provided a
clear explanation of findings is given there are occasions where there is no need to explain in detail
why the evidence of expert witnesses was unhelpful: Lakey v Merton and Sutton HA, The Times,
March 11, 1999, CA. Where there are differences of expert opinion in relation to medical treatment,
including the information which a patient should have been given in advance, but the opinions are
genuinely held, competent and logically justifiable, the court should not choose between them:
Newbury v Bath District HA (1999) 47 B.M.L.R. 138. See generally para.9–05, above.
378
Roe v Minister of Health [1954] 2 Q.B. 66.
[605]
safe but which later experience proved to be dangerous.379 By like reasoning it

has been held: that a conservative approach to ultrasound scan was a tenable
professional opinion in 1988380; and there could be no claim for negligent injury
to a child’s left foot arising after a leak from an intravenous line, albeit that the
treatment given in 1991 was more conservative than would have been suggested
by standards current at the date of trial.381 But treatment with human growth
hormone after July 1, 1977, where the claimants later developed CJD as a result,
was negligent.382 The same principle applies where the allegation is failure to use
some particular item of equipment: the defendant will not be liable if the
equipment was not generally available at the date it is suggested it should have
been used.383
9–127 The relevance of usual practice. Deviation from normal professional prac-
tice is not necessarily evidence of negligence.384 To be so it must be proved, (i)
there is normal practice, which is applicable to the case; (ii) the defendant has not
adopted it; and (iii) the course taken was one which no professional man of
ordinary skill would have taken, had he been taking ordinary care.385 In novel
cases, where there is no recognised body of opinion to which to refer, the degree
of care required is simply that reasonably to be expected in the circumstances.386
Where a medical practitioner is called upon to advise partly on medical matters
and partly on economic and administrative considerations, it is to the medical
aspect only that the high standard of care is applied.387
9–128 Clinical judgment. Whether an error of clinical judgment amounts to

negligence depends upon whether the error was one which a reasonably
379
Roe v Minister of Health [1954] 2 Q.B. 66. For other cases involving the use of anaesthetics see
Williams v North Liverpool Hospital Management Committee, The Times, January 17, 1959; and
Moore v Lewisham Group Hospital Management Committee, The Times, February 5, 1959. But cf.
O’Donovan v Cork C.C. [1967] I.R. 173.
380
C v Health Authority [1999] C.L.Y. 4002 (and at that time there was a less than 50 per cent chance
that foetal abnormalities would have been revealed).
381
Nawoor v Barking, Havering and Brentwood HA [1998] Lloyd’s Rep. Med. 313.
382
Newman v Medical Research Council, The Times, December 20, 1997, CA.
383
Whiteford v Hunter [1950] W.N. 553 (surgeon made error in diagnosis as a result of failing to use
an instrument then very rarely to be found in England). See also Chapman v Rix, The Times,
December 22, 1960; McCormack v Redpath Brown & Co, The Times, March 24, 1961.
384
In Holland v Devitt and Moore Nautical College, The Times, March 4, 1960, Streatfield J.
expressed the view that a doctor was entitled to use his common sense, experience and judgment in
the treatment of each particular case, and a slight departure from the textbook would not of itself
establish negligence.
385
Hunter v Hanley 1955 S.C. 200; see also Landau v Werner 105 S.J. 1008.
386
A v Tameside and Glossop HA [1997] P.N.L.R. 140, CA (the Bolam test was said to be
inappropriate when considering the liability of a health authority for psychiatric illness alleged to
arise as a result of the manner in which former patients of a trainee surgeon were informed of the
remote risk that contact with him may have caused infection by AIDS. There was no well of
professional experience on which the court could draw for comparison and it was sufficient to ask if
the authority had fallen below the standard reasonably to be expected. On the facts, it was
unnecessary for the distressing news to have been given by letter rather than in personal inter-
view).
387
per Swanwick J. in Stokes v Guest Keen & Nettlefold (Bolts and Nuts) Ltd [1968] 1 W.L.R. 1776,
1784 (a factory doctor).
[606]
competent medical practitioner professing to have the defendant’s expertise

would have made, if he had acted with ordinary skill.388 It has been said that the
question for the judge to decide is: ‘‘Did the surgeon in reaching his decision
display such a lack of clinical judgment that no surgeon exercising proper care
and skill could have reached the same decision as he did.’’389 So, failure to
intubate a patient was not negligent where the hospital authority had weighed up
the risks and disadvantages which might occur as a result390; and the court would
not criticise a clinical decision not to inform the claimant, who was 14 days
beyond term, of the minor risk of stillbirth when advising her to wait a further
time in the hope of a natural birth.391
Setting the standard of care. If the defendant specialises in some particular 9–129
area of practice, he must be judged by the standard appropriate to that
specialty.392 Conversely, if he is in general practice, the standard to be applied is
that of the ordinarily competent general practitioner with his qualifications.393
The competent practitioner will know when a case is beyond his skill. It then
becomes his duty either to call in a more skilful person or to order the removal
of the patient to a hospital where skilled treatment is available. So, when a
consultant has taken over responsibility for a patient’s treatment, it is a defence
to a competent medical practitioner that he acted on specific instructions which
the consultant gave.394 Whilst failure to use appropriate skill in diagnosis, as a
result of which a wrong treatment is given, can amount to negligence395 a wrong
388
Whitehouse v Jordan [1981] 1 W.L.R. 246 (an obstetrician was not negligent where a baby
sustained severe brain damage at birth allegedly caused by his pulling too hard and over too long a
period during a difficult forceps delivery). See also Early v Newham HA [1994] 5 Med.L.R. (failure
to intubate a patient not negligent where the hospital authority had weighed up the risks and
disadvantages which might occur as a result); per Lord Denning M.R. in Hucks v Cole, The Times,
May 9, 1968: ‘‘With the best will in the world, things sometimes went amiss in surgical operations
or medical treatment. A doctor was not to be held negligent simply because something went wrong.
He was not liable for mischance or misadventure, or for an error of judgment. He was not liable for
taking one choice out of two or favouring one school rather than another. He was only liable when
he fell below the standard of a reasonably competent practitioner in his field so much so that his
conduct might be deserving of censure or inexcusable.’’
389
Hughes v Waltham Forest Health Authority, The Times, November 9, 1990, CA.
390
Early v Newham Health Authority [1994] 5 Med.L.R. 214.
391
Pearce v United Bristol Healthcare NHS Trust [1999] P.I.Q.R. P53, CA.
392
See, e.g. Sidaway v Governors of Bethlem Royal Hospital [1985] A.C. 871, per Lord Bridge at
897C.
393
Langley v Campbell, The Times, November 6, 1975; in Hucks v Cole, above, Lord Denning M.R.
said that the defendant ‘‘was to be judged as a general practitioner with a degree in obstretrics’’. The
standard of care required of a senior houseman at a hospital is that of a reasonably competent
houseman, regardless of the individual’s actual experience: Djemal v Bexley HA [1995] 6 Med.L.R.
269.
394
Junor v McNichol, The Times, March 26, 1959, where the HL held that a house surgeon was not
liable for the treatment of a child who had to have an arm amputated because he was not given
sufficient penicillin, since the prescribed treatment was being given under the instructions of a
responsible consultant.
395
See Pudney v Union-Castle Mail S.S. Ltd [1953] 1 Lloyd’s Rep. 73; Newton v Newton’s Model
Laundry, The Times, November 3, 1959 (negligent failure to diagnose a broken patella after the
plaintiff had fallen 12ft on to a concrete floor).
[607]
diagnosis in itself is not necessarily an unskilled or negligent diagnosis.396

Negligence may consist of a failure to warn the patient of the dangers of certain
treatment397; the unskilful or careless treatment of a complaint, properly
diagnosed; and a failure to obey an urgent summons from a patient, seeking
medical assistance.398
ILLUSTRATIONS
9–130 The following decisions illustrate the fine line between findings of negligence
and cases where liability has not been established.
Liability was established: where a wad of gauze was left in the patient’s body
after an operation399; where, in giving treatment by injection, a needle was
broken and left in the patient’s body, and the patient not informed400; where a
doctor gave his patient a hypodermic injection for malaria, as a result of which
he pierced the sciatic nerve and caused foot drop401; where cocaine was injected
instead of procaine402; where pentathol was injected while the patient was
already under an anaesthetic, causing death403; where a doctor failed to
administer penicillin for a condition of fulminating septicaemia of a finger, after
the finish of a five-day course of tetracycline404; where, following surgery for
removal of a swelling from the parotid gland under general anaesthetic, the
claimant was taken to the recovery ward but suffered brain damage caused by
hypoxia for a four-to-five-minute period, which the anaesthetist had failed to
prevent405; where a consultant paediatrician failed to refer a hydrocephalic baby
suffering symptoms consistent with blockage of its ventricular peritoneal shunt,
396
See Crivon v Barnet Group Hospital Management Committee, The Times, November 18, 1958,
CA (incorrect diagnosis of cancer by a pathologist leading to the wrong treatment); Dale v Munthali
(1976) 78 D.L.R. 588 (no negligence in failing to distinguish symptoms of influenza and meningi-
tis).
397
Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582, (electro-convulsive
therapy leading to bilateral fractures of the acetabula as a result of the violent muscular contrac-
tions).
398
In Cavan v Wilcox (1973) 44 D.L.R. (3d) 42 where a patient had developed gangrene after
receiving an injection which had been administered by a nurse, it was held that since there was no
effective treatment which could have been given to him, the failure of the physician to attend
immediately was neither negligent nor had any causal connection with the eventual loss of his fin-
gers.
399
When the operation is a piece of team-work, it may be that the surgeon is entitled to leave part
of the work, such as the counting of the swabs taken from the patient’s body, to some other competent
member of the team. Negligence was found in Dryden v Surrey County Council and Stewart [1936]
2 All E.R. 535; Hocking v Bell [1948] W.N. 21 (drainage tube left in situ), Urry v Bierer, The Times,
July 15, 1955 and Cooper v Nevill, The Times, March 24, 1961 (abdominal swab not removed). On
the other hand no negligence was found in Mahon v Osborne [1939] 2 K.B. 14, Chasney v Anderson
[1950] 4 D.L.R. 223 and White v Westminster Hospital Board of Governors, The Times, October 26,
1961.
400
Gerber v Pines (1933) 79 S.J. 13. Not followed, Daniels v Heskin [1954] I.R. 73.
401
Caldeira v Gray, The Times, February 15, 1936.
402
Collins v Hertfordshire County Council [1947] K.B. 598.
403
Jones v Manchester Corp [1952] 2 K.B. 852.
404
Hucks v Cole (1968) 118 New L.J. 469.
405
Coyne v Wigan Health Authority [1991] 2 Med.L.R. 301.
[608]
for C.T. scan406; where the claimant developed a lump to the breast but no biopsy
was undertaken to confirm a diagnosis of fibroadenoma, as opposed to carcinoma
as in fact was the case and where chemotherapy was thereby unduly
delayed.407
Negligence was also found: where a pregnant patient was admitted to hospital 9–131
for her confinement and was placed in the same ward as a woman suspected of
and confirmed later to have been suffering from puerperal fever, where
insufficient precautions to isolate her were taken408; where treating doctors did
not proceed to delivery by Caesarean section after one of a series of cardiotoco-
grams revealed gross abnormalities, although such a decision would have
advanced delivery by two hours at most, and on balance did not contribute to the
final state of an already damaged foetus409; where an abortion was performed
which failed to terminate pregnancy, and the claimant was not informed that
another such operation could have been performed until after it was too late, as
a result of which she gave birth to a healthy child410; where a surgeon performed
a sterilisation operation on the claimant but she subsequently became preg-
nant411; where a surgeon failed to warn a vasectomy patient of a slight risk that
the healing process after operation might render him fertile once more.412 Any
such warning must be clear and comprehensible and reasonable steps taken to
ensure it is understood.413
A psychiatrist was negligent where he developed social contact with his 9–132
patient as a part of her treatment. She was in a vulnerable emotional state and, to
his knowledge, already in love with him. There was no body of professional
opinion which would have considered it desirable for a doctor to have such social
contact with his patient in these circumstances.414
406
Robinson v Jacklin [1996] 7 Med.L.R. 83; also Rhodes v Spokes and Farbridge [1996] 7 Med.L.R.
135, see n.41, below.
407
Taylor v West Kent HA [1997] 8 Med.L.R. 251 (the claimant’s death would have occurred in any
event, but 18 months later, had the duty of care been properly discharged).
408
Heafield v Crane, The Times, July 31, 1937.
409
Robertson v Nottingham Health Authority (1997) 7 Med.L.R. 421.
410
Scuriaga v Powell (1979) 123 S.J. 406 (the measure of damages consisted of her pain and
suffering, loss of earnings and the diminution of her prospects of marriage). But see McFarlane v
Tayside Health Board [2000] 2 A.C. 59, below.
411
Emeh v Kensington & Chelsea & Westminster HA [1985] Q.B. 1012 (it was not a novus actus
interveniens, nor a failure to mitigate loss, for the claimant to refuse to have a surgical abortion). As
to heads of damage in such a case, see McFarlane v Tayside Health Board, n.410 above and Ch.2,
para.2–250, above; In relation to warnings of the risk of pregnancy, see Danns v Department of
Health [1998] P.I.Q.R. P226, CA, and Ch.12, para.12–29, below (the Department of Health was
under no duty from 1984 onwards to warn the public of the risk of unwanted pregnancy after
vasectomy).
412
Thake v Maurice [1986] Q.B. 644. It was held that following the surgeon’s failure to give such
a warning, it must have been in the defendant’s contemplation that the wife, relying on the fact of her
husband’s sterilisation, might not recognise the early stages of her unwanted pregnancy until it was
too late for a lawful abortion. Hence it was reasonably foreseeable that a breach of duty, both
contractual and tortious, would cause damage to each claimant. But as to the recoverable loss see
McFarlane v Tayside Health Board, n.410 above.
413
Lybert v Warrington HA [1996] P.I.Q.R. P45, CA.
414
Landau v Werner (1961) 105 S.J. 257; affirmed 105 S.J. 1008.
[609]
9–133 Negligence may also consist of failing to make adequate arrangements for a
patient415; failing to re-examine a patient within 24 hours where the initial
diagnosis, although not negligent, could not be certain416; failing to write a
prescription to a standard of legibility which would reduce the possibility of its
being misread by a busy or careless pharmacist417; failing to prescribe an
antibiotic to kill bacteria identified by a pathologist’s report which ought to have
alerted the doctor to the problem418; advising against measles vaccination where
there was a history of convulsions419; failing to communicate findings to others
responsible for continuing a patient’s treatment420; failing to make proper
inquiries to discover what treatment, if any, a patient has already received
elsewhere421; failing to give warning to a patient who has a tendency towards
phlebitis of the dangerous side-effects of an anti-coagulant drug, which has been
prescribed422; and failing to consider the possibility that a patient, who had
recently returned home to England from Uganda, could well be suffering from
some tropical disease and not merely from influenza.423 It was negligent for a
pharmacy to fail to follow its own procedure by questioning the correctness of a
prescription which was significantly stronger than the dosage the claimant had
been previously prescribed.424
9–134 Liability was admitted where an obstetrician attempted to rotate internally a

second twin by inserting his arm per vaginam, a procedure characterised as
‘‘horrific’’ and ‘‘totally unacceptable’’.425 Further, it was negligent of an
obstetrician to rely upon a midwife to make a clinical judgment for which she
was unqualified, so that a Caesarean section was not carried out, as it would have
been had he attended and himself observed signs of foetal distress426; for the
claimant’s medical attendants to permit her post partum haemorrhage to continue
415
See Corder v Banks, The Times, April 9, 1960 (a plastic surgeon who allowed his patient to go
home after an operation but failed to make proper arrangements for receiving telephone messages
from that patient in the event of bleeding taking place during the first 48 hours after the opera-
tion).
416
Bova v Spring [1994] 5 Med.L.R. 120.
417
Prendergast v Sam & Dee Ltd, The Times, March 14, 1989, CA.
418
Hucks v Cole [1993] 4 Med.L.R. 393, CA.
419
Thomson v James (1996) 31 B.M.L.R. 1.
420
Rhodes v Spokes and Farbridge [1996] 7 Med.L.R. 135 (G.P. failed to pass on crucial information
to a consultant to whom he referred the claimant for investigation). See also McCormack v Redpath,
The Times, March 24, 1961 (hospital casualty officer allowed claimant to leave after he complained
of an accident at work in which he had been struck on the head by a falling spanner: in fact he had
a depressed fracture of the skull).
421
Coles v Reading and District Hospital Management Committee 107 S.J. 115.
422
Crichton v Hastings (1972) 29 D.L.R. (3d) 692. But cf. Smith v Auckland Hospital Board [1964]
N.Z.L.R. 241.
423
Langley v Campbell, The Times, November 6, 1975.
424
Horton v Evans [2007] P.N.L.R. 17 (the claimant had been given a long standing prescription of
0.5mg of dexamethasone, which was suddenly increased to 4mg and caused severe adverse effects:
the pharmacist should have realised the prescription may be mistaken and questioned it with either
the claimant or her G.P; had this been done a mistake would have been identified).
425
Kralj v McGrath [1986] 1 All E.R. 54. See above Ch.5, para.5–153, above.
426
Wiszniewski v Central Manchester HA [1996] 7 Med.L.R. 248, (appeal dismissed [1998] P.I.Q.R.
P324, CA); also Murphy v Wirral Health Authority [1996] 7 Med.L.R. 99, para.9–144, n.463, below;
Hill v West Lancashire Health Authority [1997] 8 Med.L.R. 196 (failure to perform earlier Caesarean
section a material cause of claimant’s cerebral palsy).
[610]
uncontrolled until hysterectomy became the only available treatment427; for a

Professor of Obstetrics and Gynaecology to fail, when carrying out an ultrasound
scan of a baby in utero, to appreciate that the scan showed abnormalities of the
brain and to have advised accordingly428; for a gynaecologist not to warn the
claimant at the time that if she was already pregnant a sterilisation operation
would not be sufficient to abort the pregnancy429; where there was a negligent
failure to deliver the claimant within forty five minutes of a decision to perform
an emergency Caesarian section430; where there was a failure to diagnose
pulmonary embolus in a patient after blood gas anomalies were indicated on
ECG431; where anaesthetists should have responded to an episode of pre-
operative hypotension sooner than they did432; where an anaesthetist failed to
investigate the cause of a patient’s bronchospasm some time after a muscle
relaxant had been administered, and warn for future purposes that it was possibly
an adverse reaction to the drug433; and failing in the course of a sterilisation
operation to occlude the left fallopian tube.434
On the other hand, negligence was not found: where a child was born severely 9–135
handicapped with spina bifida and hydrocephalus, which conditions had not been
diagnosed by doctors at the twenty-sixth week of the mother’s pregnancy435;
where an anaesthetist had adopted a technique during a Caesarean section
generally accepted by a body of medical opinion, although it did carry with it
some risk of slight awareness during the surgical procedure436; where a
gynaecologist performed a sterilisation operation upon a patient who informed
him in error that she was not pregnant437; where an operation for sterilisation had
been carried out to protect a woman’s health and the surgeon did not immediately
427
Le Page v Kingston and Richmond HA [1997] 8 Med.L.R. 229.
428
Lillywhite v University College London Hospitals’ NHS Trust [2005] EWCA Civ 1466 (the case
illustrates that there is not necessarily safety in numbers: two other experienced sonologists had
effectively reached the same conclusion as the professor, but the CA commented upon the heavy
burden upon him to reconcile his incorrect conclusion with the exercise of all reasonable care and
skill, where he had purported to identify structures on the scan which were simply not there).
429
Crouchman v Burke (1998) 40 B.M.L.R. 163, CA.
430
Richards v Swansea NHS Trust (2006) 96 B.M.L.R. 180, Ch.6, para.6–112, above.
431
Hutton v East Dyfed HA [1998] Lloyd’s Rep. Med. 335 (another indicator was the patient’s
request for an oxygen mask).
432
Skelton v Lewisham & North Southwark HA [1998] Lloyd’s Rep. Med. 324 (in coming to its
decision, the court would appear to have been influenced by the poor standard of the anaesthetic
notes).
433
Eastwood v Wright (2005) 84 B.M.L.R. 51, CA.
434
Taylor v Shropshire HA [1998] Lloyd’s Rep. Med. 395.
435
Rance v Mid-Downs HA [1991] 1 Q.B. 587. Further, the mother’s claim that, if only she had
known, she would have arranged an abortion failed in any event on the grounds of public policy.
Because the child was capable of being born alive at 26 weeks, within the meaning of the Infant Life
(Preservation) Act 1929 s.1, and could continue to live without connection to the mother, such an
abortion would have been illegal even where justified under the Abortion Act 1967 s.1(1)(b).
436
Taylor v Worcester and District HA [1991] 2 Med.L.R. 215 (on the facts the patient failed to show
that she had suffered awareness during the birth as opposed to after the operation when the
anaesthetic was reversed).
437
Venner v North East Essex HA, The Times, February 21, 1987 (it was neither necessary nor
desirable for a dilatation and curettage operation, in addition, to be performed as a matter of
course).
[611]
tell her that there was a slight risk of further pregnancy or advise her to use
contraceptives438; where a consultant gynaecologist had advised initial con-
servative treatment of a patient who had suffered from cervical cancer and she
developed intermittent vaginal bleeding some three years later439; where no
evidence of diverticular disease was evident at the time of colostomy reversal,
surgeons failed to perform a resection during that operation440; where hospital
consultants treated endogenous candida endophthalmitis with an intravenous anti
fungal drug, there being conflicting views on the appropriate treatment and no
scientific comparisons of available treatments was in existence.441
9–136 It has been held that a general practitioner is not under a duty of care to make
home visits to a patient over and above those requested442; and a doctor was not
negligent in sending the practice nurses in response to concern about a baby’s
feeding and vomiting, when he himself was unable to attend.443 It was not
negligent: to fail to follow up a patient’s change of address and to search for him,
in the absence of any suggestion of his requiring urgent treatment444; to fail either
to advise an elderly patient who was not suffering from any physical disability
how to descend carefully from the examination table in his surgery, or assist her
so to do445; to fail to report an incident of sexual abuse of a child to the
authorities, when it was mentioned by the mother of a child in confidence and a
credible assurance was provided that it would not recur.446
9–137 Liability for negligence of others. A medical practitioner can be liable for
the negligence of an assistant or a locum tenens employed by him447 but not for
the negligence of nurses at a hospital, employed by a third party. Where two
surgeons ordered that a patient in a hospital should have a hot bath and, owing
to the negligence of nurses, the patient was injured, the surgeons were not
themselves liable because the giving of a bath was properly left to the nurses and
it was no part of the surgeons’ duty to superintend the task.448 Again, where a
surgeon agreed to perform an operation upon the claimant and to give the case
personal attention, but some three months later, after the claimant’s discharge
from hospital, a tube was found in his bladder, it was held that the surgeon was
not liable: the patient’s post-operative treatment had involved the frequent
438
Waters v Park, The Times, July 15, 1961. In Eyre v Measday [1986] 1 All E.R. 497, CA, it was
held that a contract for the sterilisation of a patient was not one for the result that she would never
again fall pregnant.
439
Bancroft v Harrogate HA [1997] 8 Med.L.R. 398.
440
McCafferty v Merton Sutton & Wandsworth HA [1997] 8 Med.L.R. 387.
441
Bellarby v Worthing and Southlands Hospitals NHS Trust (2005) 86 B.M.L.R.
442
Durrant v Burke [1993] 4 Med.L.R. 258.
443
Stockdale v Nicholls [1993] 4 Med.L.R. 191.
444
Kavanagh v Abrahamson 108 S.J. 320.
445
Robertson v Smyth [1979] S.A.S.R. 184.
446
C v Cairns [2003] Lloyd’s Rep. Med. 90 (it was accepted that in the mid 1970s the doctor’s
decision would have accorded with the practice of many responsible and caring colleagues).
447
Hancke v Hooper (1835) 7 C. & P. 81.
448
Perionowsky v Freeman (1866) 4 F. & F. 977.
[612]
insertion and replacement of tubes in his body and this had been carried out by
surgeons and nurses resident at the hospital.449
Mentally disordered patients. Where an Act concerned with mental health 9–138
provides for the giving of a certificate to enable something to be done under the
statute, a medical practitioner who gives such a certificate is bound to exercise
proper care and skill in that regard.
Section 3(3) of the Mental Health Act 1983450 provides that an application for 9–139
admission into hospital of a person suffering from a mental disorder for treatment
must be founded on the written recommendations of two medical practitioners.
Section 139(1) provides that no liability arises concerning acts done in pursuance
of the Act unless done in ‘‘bad faith or without reasonable care’’.
The medical practitioner, in giving such a recommendation, owes a duty to the 9–140
patient to exercise proper care and skill. A failure to perform that duty gives rise
to liability in damages.451 The duty ‘‘is not merely a duty to take reasonable care
in making inquiries, that is, in ascertaining the necessary data, but includes a duty
to exercise reasonable professional skill in forming a conclusion from such
data’’.452
Before a civil action can be brought against a medical practitioner for
negligently recommending a mentally disordered patient to undergo hospital
treatment, leave must be obtained from the High Court.453
The medical superintendent of a mental hospital may be made liable if he 9–141

negligently allows a mental patient to be at large. If the patient has been
convicted of a criminal offence and assaults a member of the public during his
period of freedom,454 he may be liable. Such liability would be on the basis that
he either knew or should have known that the patient, if not kept under control,
was likely to commit an act of violence.455 It is immaterial whether the violence
is inflicted upon a third party or by the patient upon himself. Where a patient with
a history of manic depression reported to a psychiatrist that he felt ‘‘like a
volcano about to erupt’’, it was negligent not to question him further and there
449
Morris v Winsbury-White [1937] 4 All E.R. 494 at 497, 498, per Tucker J.: ‘‘I think it is well
established as a matter of law that the resident medical officers in a hospital of this kind, and the
nursing staff, are not the agents of a specialist surgeon who comes and performs an operation of this
kind, at any rate in so far as they are performing the ordinary routine duties which have to be carried
out at a hospital of this kind.’’
450
c.20, which repealed the Mental Health Act 1959.
451
De Freville v Dill (1927) 96 L.J.K.B. 1056; decided under the Lunacy Act 1890 s.16, which
provided for the signing of a medical certificate before an order could be made for the detention of
a lunatic in an institution.
452
Everett v Griffiths [1920] 3 K.B. 163 at 216, per Atkin L.J.
453
Mental Health Act s.139(2). In Winch v Jones [1986] Q.B. 296, the CA expressed the view that
on an application for such leave, the court need be satisfied only that, on the material immediately
available, which includes any furnished by the intended defendant, the complaint is one that appears
to deserve the fuller inquiry which a proper hearing would make possible.
454
Holgate v Lancashire Mental Hospitals Board [1937] 4 All E.R. 19.
455
Ellis v Home Office [1953] 2 All E.R. 149 (the report in [1953] 2 Q.B. 135 is only on the question
of Crown privilege).
[613]
was a causative link with injuries the patient inflicted upon himself a few weeks
later when he jumped from a balcony.456
9–142 Those with responsibility for the care of mentally disordered patients must
take reasonable care for their safety while they are in their charge. So, where a
patient attempted to commit suicide whilst under a regime of close observation
instituted in a hospital to prevent this happening, the health authority was held
liable when the patient made the attempt during a breakdown in the regime.457
9–143 Damages. Special problems of remoteness and causation arise in relation to

damages in claims against negligent medical practitioners. In the context of
unsuccessful medical treatment it can be problematic to identify precisely the
injury flowing from a particular breach of duty. The burden rests upon the
claimant to prove that the breach was a material cause of the adverse result of
which he complains.458 Having said as much, once a breach of duty is established
and the claimant has thereby been exposed to the risk of an injury which in due
course results, the exact mechanism by which that injury has arisen is immaterial
and it matters not if, for instance, it was unforeseeable.459 In all cases the primary
question is one of fact: did the wrongful act cause the injury? But in cases where
the breach of duty consists of an omission to do an act which ought to be done
(such as the failure by a doctor to attend) that factual inquiry is, by definition, in
the realms of hypothesis. The question is what would have happened if an event
which by definition did not occur had occurred.460 The Bolam test is not relevant
when asking what as a matter of fact would have happened; but is when
considering whether the medical attendant concerned would have acted properly
in failing to take some particular action.461 In the words of Hobhouse L.J.:
‘‘a plaintiff can discharge the burden of proof on causation by satisfying the court either
that the relevant person would in fact have taken the requisite action (although she
would not have been at fault if she had not) or that the proper discharge of the relevant
person’s duty towards the plaintiff required that she take that action. The former
alternative calls for no explanation since it is simply the factual proof of the causative
effect of the original fault. The latter is slightly more sophisticated: it involves the
factual situation that the original fault did not itself cause the injury but that this was
456
Mahmood v Siggins [1996] 7 Med.L.R. 76; also Drake v Pontefract Health Authority [1998]
Lloyd’s Rep. Med. 425 (failure to provide appropriate medication to a patient under treatment for
depression and to ensure that she did not leave hospital unattended, as a result of which she jumped
from a bridge in a suicide attempt and sustained injury).
457
Hay v Grampian Health Board, The Scotsman, December 21, 1994; G’s Curator Bonis v
Grampian Health Board 1995 S.L.T. 652 Ct. Sess. OH. See paras 9–144, 9–145, below, for further
examples; Walsh v Gwynedd HA [1998] C.L.Y. 3977.
458
Wilsher v Essex Area HA [1988] A.C. 1074. See also, in the context of negligent failure to warn
of risks, Chester v Afshar [2005] 1 A.C. 134, para.9–148, below.
459
Wiszniewski v Central Manchester HA [1998] P.I.Q.R. P324, CA (the plaintiff developed hypoxia
and thereby irreversible brain damage by reason of negligent management of his birth, and the
defendant’s neligence having exposed him to the risk of hypoxia, he succeeded even though the
particular mechanism by which it resulted was not foreseeable).
460
Bolitho v City & Hackney HA [1998] A.C. 232. See the discussion, of causation where the
allegation is negligent failure to warn of the risks of treatment, at para.9–116, above.
461
ibid. at 240. The claimant failed to discharge either burden in Hallatt v North West Anglia HA
[1998] Lloyd’s Rep.Med. 197, CA (alleged failure to take proper action after the pregnant claimant’s
urine sample disclosed glycosuria).
[614]
because there would have been some further fault on the part of the defendants; the
plaintiff proves his case by proving that his injuries would have been avoided if proper
care had continued to be taken.’’462
ILLUSTRATIONS
A causative link between the damage claimed and the breach of duty alleged 9–144
was established: where the claimant suffered cerebral palsy as a result of oxygen
starvation at birth as a result of midwives’ negligence in failing to carry out an
examination that would have revealed a secondary arrest of labour463; where the
claimant was passed fit for work after a negligently-conducted occupational
health examination, which failed to identify an abnormality to the main
pulmonary artery, and if the condition had been identified, it would have led to
the claimant being referred to her own G.P. and thereafter to a consultant and she
would have been advised of the possibly fatal consequences of pregnancy, and
her baby not subsequently born464; where the claimant, who suffered various
circulatory problems, presented at hospital with an ischemic left finger which
was subsequently amputated, as later were the remaining digits of her left hand:
she should have been referred to a specialist hospital and had that happened,
appropriate surgery would have saved the fingers.465
No causative link was established: where a doctor in casualty failed to examine 9–145
three night-watchmen who complained of vomiting for three hours after drinking
tea, but instead referred them to their own doctors, one of them subsequently
dying from arsenic poisoning: the quantity of poison had been so large that
probably the deceased would have died in any event, whether or not he had been
examined properly and had received appropriate treatment466; where even if a
vascular surgeon had been called shortly after an operation to assess whether an
artery should be reopened it was unlikely he would have decided to operate given
the risks: the claimant had to prove that he would in fact have reopened the artery
or that it would have been negligent of him not to do so467; where the claimant
failed to prove that the fatal result of an operation to correct an acoustic neuroma
would have been different if the surgery had taken place earlier468; where a child
suffering from respiratory difficulties collapsed owing to failure of his respiratory
system and suffered a cardiac arrest and a doctor had been in breach of duty in
failing to attend but even if she had attended she would not have arranged for the
462
Joyce v Merton, Sutton and Wandsworth HA (1996) 27 B.M.L.R. 124 at 156 quoted with approval,
at 240, in Bolitho, n.79, above ; applied in Gouldsmith v Mid Staffordshire General Hospitals NHS
Trust [2007] EWCA Civ 397, n.465, below.
463
Murphy v Wirral HA [1996] 7 Med.L.R. 99.
464
Roy v Croydon HA [1997] P.I.Q.R. P445. An appeal on the proper quantum of loss was
subsequently allowed: see [1998] P.I.Q.R. Q26, CA.
465
Gouldsmith v Mid Staffordshire General Hospitals NHS Trust [2007] EWCA Civ 397 (the
majority in the CA considered that it was sufficient to discharge the burden of proof to establish that
had claimant been taken to a specialist hospital, most specialists in the expertise in question would
have operated: she did not need to show which hospital, and what the practice of surgeons at that
hospital would have been).
466
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 Q.B. 428.
467
Joyce v Merton, Sutton and Wandsworth HA (1996) 27 B.M.L.R. 124.
468
Richardson v Kitching [1995] 6 Med.L.R. 257.
[615]
child to be intubated, a procedure that would probably have prevented that which
occurred.469
9–146 Where there were two competing causes of damage, namely an overdose of
penicillin and the consequences of meningitis, the law could not presume in
favour of the claimant that the tortious cause was responsible for the damage in
the absence of proof that the tortious cause was capable of causing or aggravating
such damage. Since, according to the expert evidence, an overdose of penicillin
had never caused deafness, the appellant’s son’s deafness had to be regarded as
resulting solely from meningitis.470 When the claimant presented to her G.P. with
bilateral sciatica and he failed to refer her immediately to a consultant, which
could have led to earlier surgery and a better outcome, no causative link was
made out: it could not be shown that, even if a same day referral had been made,
a neurosurgeon would have operated sooner than in fact was the case, and so
soon as to avoid the complications which actually ensued.471
9–147 Failure to warn of risks. Having proved that a warning of the risks of
treatment ought to have been given but was not, it was traditionally thought the
claimant must go on to establish that with such a warning the treatment would
have taken a different course. In Australia it was held that the necessary causative
link was established by a subjective test, that is, what would the claimant with his
or her knowledge have chosen to do.472 In this jurisdiction, it appeared that while
the court would take a subjective starting point, objective criteria were also likely
to be taken into account.473
469
Bolitho v City & Hackney HA [1998] A.C. 232.
470
Kay v Ayrshire and Arran Health Board [1987] 2 All E.R. 417, HL (distinguishing McGhee v
N.C.B. [1973] 1 W.L.R. 1).
471
Zarb v Odetoyinbo (2007) 93 B.M.L.R. 166.
472
Ellis v Wallsend District Hospital [1990] 2 Med.L.R. 103, NSWCA (surgeon had failed to inform
a patient suffering from severe neck pain that a surgical procedure proposed by way of treatment
carried with it a risk of paraplegia which in the event materialised). In contrast, in British Columbia
the test is objective: Arndt v Smith [1996] 7 Med.L.R. 35, SupCt. (BC) (an action on behalf of a child,
injured before birth allegedly as a result of a doctor’s failure to advise the mother of risks, was
unsuccessful where the court found the mother would not have had an abortion even if proper advice
had been given).
473
Smith v Barking, Havering and Brentwood HA [1994] 5 Med.L.R. 285 (claimant facing likely
onset of tetraplegia in nine months elected to have an operation which was attended with risk of
immediate onset of the same condition. She was not warned of the risk. Her claim failed on a finding
that even if she had been so informed she would have given consent: per Hutchinson J., at 288–289,
while the question has to be decided on a subjective basis: ‘‘If everything points to the fact that a
reasonable plaintiff properly informed, would have assented to the operation, the assertion from the
witness box, made after the adverse outcome is known, in a wholly artificial situation and in the
knowledge that the outcome of the case depends on that assertion being maintained, does not carry
great weight unless there are extraneous or additional factors to substantiate it.’’ Similar observations
were made in Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust [2002] P.I.Q.R. P61,
CA (the Court of Appeal disagreed with the suggestion that where the basis of claim is failure to
inform, the claimant must give evidence as to what would or would not have happened had the
relevant information been given. By the date of trial it may well be difficult to attach particular weight
to the claimant’s own evidence on the question, conditioned as it must be by complex emotions
reflecting, for instance, the legal proceedings themselves, as well as the extent to which the the
claimant perceives the procedure in issue to have been successful or not and has adapted to resulting
disability.
[616]
Traditional thinking was put aside in Chester v Afshar474 where the House of 9–148
Lords had to consider an unusual problem of causation in a claim based upon
negligent failure by a medical professional to warn of the risks of surgery. The
surgery in question involved a small (1 per cent–2 per cent) risk of serious
neurological damage which, sadly for the claimant, materialised. Ordinarily in
such a case the claimant would lead evidence upon which the court would be
invited to find, that if a warning of risks had been given, she would not have had
the surgery in question. That finding was not, could not, be made in Chester and
the trial judge confined himself to finding that the claimant would not have had
surgery on the day planned (when her injury in fact arose) but would have
explored other options. It was common ground that, on whatever occasion she
had the surgery, the same small risk would be present, and that, bearing in mind
the size of the risk, the probabilities were that it would not arise. In short, as Lord
Hope pointed out,475 on the evidence,
‘‘the failure to warn [could not] be said in any way to have increased the risk of injury.
The risk was inherent in the operation itself . . . it was also liable to occur at random,
irrespective of the degree of care and skill with which the operation was conducted by
the surgeon . . . the risk would have been the same whenever and at whoever’s hands
she had the operation.’’
On such facts it was difficult for the claimant to succeed on application of the 9–149
conventional test of causation, that is, to show that the failure to warn was the
effective cause of injury. A majority in the House of Lords held that the claim
should nonetheless succeed. The view was expressed that where injury occurred,
which it was within the scope of the defendant’s duty to prevent, the claimant
should have a remedy, even though unable to prove that had the duty been
performed the damage complained of would not have arisen. A very significant
factor was the patient’s right to be informed of the risks. If on the present facts
the claimant was denied a remedy it would leave her with a right-the right to a
warning of the risks of surgery-but the right would be deprived of content.476
Policy and corrective justice therefore suggested ‘‘a narrow and modest departure
from traditional causation principles.’’477 Bearing in mind the variety of
situations in which professional persons advise about risk, it remains to be seen
whether the ‘‘narrow and modest departure’’ is restrained within those confines.
The willingness of their Lordships to abandon traditional principles in favour of
providing what is seen as a just remedy to the claimant, bears comparison both
with White v Jones478 and (another causation case) Fairchild v Glenhaven
474
[2005] 1 A.C. 134. There was much reference in the speeches of their Lordships to Chappel v Hart
(1998) 195 C.L.R. 232 where, on similar facts, the High Court in Australia held that the claimant
could recover. See Jones, ‘‘ ‘But for’ causation in actions for non-disclosure of risk’’ (2002) 3 P.N.
192; also Brahams, ‘‘Consent and the chain of causation and quantum’’ 2002 Med. Leg. J. 70,183;
O’Sullivan, ‘‘Causation and non-disclosure of medical risks-reflections on Chester v Afshar’’ (2003)
2 P.N. 370.
475
[2005] 1 A.C. 134, per Lord Hope of Craighead at 154.
476
[2005] 1 A.C. 134 per Lord Hope at 158: the position would be that a duty was owed, the duty
was breached and an injury was suffered that lay within the scope of the duty. Yet the patient to whom
the duty was owed would be left without a remedy.
477
per Lord Steyn at 146.
478
[1995] 2 A.C. 207.
[617]
Funeral Services Ltd.479 It may not be fanciful to see the influence of the
European Court of Human Rights, which in analysing Art.6 of the European
Convention on Human Rights, has emphasised the importance of a legal system
providing legitimate claims with a remedy.
9–150 The scope of the duty. A case with some similarity to Chester is illustrative
of the close connection, in cases of negligent advice, between issues of causation
and foreseeability. In Thompson v Bradford,480 a doctor advised parents that
immunisation of their baby could proceed notwithstanding that the child had a
recurrent perianal abscess. Sadly, the procedure caused the baby to suffer a strain
of polio caused by exposure to the vaccine used to immunise against that
condition. The doctor was held to have been at fault in not informing the parents
of the increased discomfort that would be caused if immunisation proceeded
while the abscess was unresolved. It was accepted that, had that information been
given, the parents would not have proceeded with immunisation at that time. But
those facts did not render the doctor liable for the polio which developed. No
reasonably competent G.P. could have foreseen that the presence of the abscess
gave an increased risk of the contraction of vaccine-related polio. The develop-
ment of that condition was not, therefore, within the scope of the duty of which
the doctor was in breach. His liability extended only to the greater discomfort
suffered by the child as a result of the vaccination being carried out when it
was.
9–151 As Beldam L.J. said in Brown v Lewisham and North Southwark Health
Authority481:
‘‘A doctor is obliged to exercise the care and skill of a competent doctor. He must take
care in the examination, diagnosis and treatment of his patient’s condition to prevent
injury to his health from risks which a competent practitioner would foresee as likely
to result from his failure to do so. He is not a clairvoyant nor if he tells his patient that
he can find nothing wrong is he liable if his patient has a condition which is not
discoverable by competent examination. The public policy of limiting the liability of
tortfeasors by the control mechanism of foreseeability seems to me as necessary in
cases of medical as in any other type of negligence. I do not see on what policy ground
it would be fair or just to hold a doctor to be in breach of duty who failed to diagnose
an asymptomatic and undetectable illness merely because he was at fault in the
management of a correctly diagnosed but unrelated condition. In short it must be shown
that the injury suffered by the patient is within the risk from which it was the doctor’s
duty to protect him. If it is not, the breach is not a relevant breach of duty.’’482
9–152 Loss of a chance. When considering the damages to which a claimant injured
as a result of some clinical negligence is entitled, the usual starting point will be
to identify the extent of injury that would have arisen in any event, that is, even
if negligence had not occurred.483 But while that might be regarded as the
479
[2003] 1 A.C. 32.
480
[2006] Lloyd’s Rep. Med. 95, CA.
481
[1999] Lloyd’s Rep. Med. 110 at 117.
482
Quoted by Waller L.J in Thompson v Bradford, n.367 above, at [18].
483
See, e.g. S v North Birmingham HA (1998) 40 B.M.L.R. 103, CA, where the claim failed because
although negligence was established, had it not occurred the claimant would not have been
transferred any earlier to an Intensive Therapy Unit, and cardiac arrest would still have resulted.
[618]
standard approach, there are cases where the proof available to a claimant does
not extend so far. In one situation experts are agreed that the defendant’s
negligence has probably reduced the chances of a better outcome, but are not able
to indicate on a balance of probability what that outcome will be. These problems
were considered in Hotson v East Berkshire Health Authority484 and it was held
that it was inappropriate to award a claimant damages for loss of the chance that
treatment would have taken a more favourable course had the given breach of
duty not happened.
An attempt to distinguish Hotson failed in Gregg v Scott.485 The trial judge had 9–153
found that the defendant, a general practitioner, had been negligent in excluding
the possibility that a growth under the claimant’s arm might not be benign, and
failing to refer him to hospital for examination. The claimant’s case was that the
failure to refer him reduced the prospect of a cure to less than 50 per cent. The
judge found that the delay had not deprived the claimant of a cure because he
would probably not have been cured anyway, but as part of the agreed factual
background to the appeal it was suggested that the delay in treatment had, as a
matter of statistics and expert medical judgment, reduced the claimant’s
prospects of survival for more than 10 years from 42 per cent to 25 per cent. The
claimant contended that the court should provide a remedy where admittedly
negligent medical advice or treatment led to a reduced chance of a favourable
outcome, or increased the risk of an unfavourable outcome, even though a
balance of probabilities test could not be satisfied.
The House of Lords concluded that the claim should fail. A majority was not 9–154
prepared to abandon the traditional balance of probability test applied in cases of
clinical negligence. Lord Hoffmann emphasised the extent to which affording a
remedy would involve abandoning an extensive and recently reviewed line of
authority stretching through Hotson, to Wilsher v Essex Area Health Authority486
and Fairchild v Glenhaven Funeral Services Ltd.487 Further there was no
adequate control mechanism to restrict the expansion of potential liability if it
was established on the particular facts:
‘‘a wholesale adoption of possible rather than probable causation as the criterion of
liability would be so radical a change in our law as to amount to a legislative act. It
would have enormous consequences for insurance companies and the National Health
Service . . . I think that any such change should be left to Parliament.’’488
Lord Phillips’ speech illustrated the problems that would arise if an approach to
causation based on statistical analysis was adopted.
484
[1987] A.C. 750. Scott, ‘‘Causation and damage in medico-legal practice’’ 149 N.L.J. 1152.
485
[2005] 2 A.C. 176. See further, Jones, ‘‘Another lost opportunity?’’ (2003) 4 P.N. 542.
486
[1988] A.C. 1074.
487
[2003] 1 A.C. 32.
488
[2005] 2 A.C. 176 at [90].
[619]
9.—HOSPITALS AND HEALTH AUTHORITIES
9–155 Vicariously liability. Prior to Cassidy v Ministry of Health489 in 1951, it had

been held that public hospitals were not liable for the negligence of physicians,
surgeons and nurses at the hospital,490 whilst acting in the discharge of their
professional functions.491 Today, it is well established that hospitals are liable
vicariously for the negligence of members of staff,492 including nurses493 and
doctors.494 Someone with medical qualification employed part-time at a hospital,
is a member of the staff, for whose negligence the hospital is responsible.495 In
a private hospital, the consulting physicians and surgeons are generally not
employed by the hospital, so it is not liable for their negligence,496 but, in the
case of a hospital organised under the National Health Service Act 1946,497
consultants or specialists are employed under the terms of the Act, and liability
for their negligence follows.498
9–156 The duty of care. For most purposes the duty of care owed by a hospital
authority is co-extensive with the duty owed by the medical staff for whom it is
vicariously liable. However, independently-owed duties can arise, for instance
under the Occupiers’ Liability Act 1957 or as an employer.499 In one unusual
case,500 it was held that a hospital owed no duty of care to the mother and son
of a deceased patient who had died after having developed brain tumours, to
preserve tissue from her brain so as to permit investigation with a view to a claim
for damages. Doubt was expressed whether it would be right ‘‘to impose a duty
on hospitals to retain tissue removed in a post mortem against the possibility that
489
[1951] 2 K.B. 343.
490
See Lee, ‘‘Hospital Admission—Duty of Care’’, 129 New L.J. 567. For the vicarious liability of
health authorities, see Ch.3, para.3–108, above.
491
For the reasoning behind the erroneous view, see the exposition by Denning L.J. in Cassidy v
Ministry of Health [1951] 2 K.B. 343 at 360, 361.
492
Bullard v Croydon Hospital Group Management Committee [1953] Q.B. 511, and is not protected
by the National Health Service Act 1946, s.72.
493
Wardell v Kent County Council [1938] 2 K.B. 768; Voller v Portsmouth Corp (1947) 203 L.T. 264
(nursing staff negligent in not disinfecting properly apparatus for the giving of injection); Fox v
Glasgow S.W. Hospitals Board, 1955 S.L.T. 337.
494
Cassidy v Minister of Health, [1951] 2 K.B. 343; MacDonald v Glasgow Western Hospital Board
of Management, 1954 S.C. 453.
495
Roe v Minister of Health [1954] 2 Q.B. 66.
496
Gold v Essex County Council [1942] 2 K.B. 293; Collins v Hertfordshire County Council [1947]
K.B. 598; Cassidy v Ministry of Health [1951] 2 K.B. 343 above. Denning L.J.’s view, which he
repeated in Roe v Ministry of Health, above, was that the hospital was liable, if it provided the
specialist but not if the patient obtained him.
497
Now repealed and replaced by the National Health Service Act 1977.
498
See Razzel v Snowball [1954] 3 All E.R. 429; Higgins v N.W. Metropolitan Hospital Board [1954]
W.L.R. 411; Hayward v Board of Management R.I. of Edinburgh, 1954 S.L.T. 226. An NHS hospital
was not liable for the negligence of an independent laboratory to whom it sent a sample of tissue for
growth by culture: Farraj v King’s Healthcare NHS Trust [2009] EWCA Civ 1203.
499
See e.g., Buck v Nottinghamshire Healthcare NHS Trust, The Times, December 1, 2006, CA,
Ch.11, para.11–81, below (hospital authority liable to nurses at a special hospital who were assaulted
by a patient with a known personality disorder).
500
Dobson v North Tyneside HA [1997] 1 W.L.R. 596, CA.
[620]
HOSPITALS AND HEALTH AUTHORITIES 9–158
it might be material evidence in civil litigation commenced at some future

time’’.501 Where an NHS Trust was contracted to the Ministry of Defence to
procure designated providers of healthcare services for Army personnel serving
overseas and their dependants, and to manage the contracts it so procured, it was
fair, just and reasonable to impose a duty upon the Trust, in relation to British
patients, to take reasonable care in discharging the obligations concerned.
However, the duty did not extend to ensuring that reasonable care was taken in
the provision of treatment within a German hospital.502
The standard of care. The standard of care required of members of a 9–157

specialist hospital unit must be determined in the context of the particular posts
held in the unit, rather than according to general rank or status.503
ILLUSTRATIONS
The hospital concerned has been held liable: where an in-patient was injured 9–158
by the negligence of the radiographer, a full-time employee of the hospital, in
failing to provide adequate screening material during the use of X-rays504; when
unqualified house surgeon negligently injected a patient with cocaine in mistake
for procaine, a harmless drug505; when the medical staff were negligent in the
post-operational treatment of a patient506; when an an aesthetic was negligently
administered by a physician on the hospital staff507; when the casualty officer
failed to discover a depressed fracture of the skull and penetration of the bone
into the brain tissue508; where a nurse at a cottage hospital had failed to give an
anti-tetanus injection to a man who had suffered a severe crush injury to a finger
whilst shovelling coal, or had failed to take steps to communicate to others to
ensure that the claimant got the proper treatment elsewhere509; in administering
a contraceptive drug, without warning of possible side effects, despite a
reasonable request by the claimant for detailed information, where she would not
have agreed to its use had she been in possession of such information510; where
a boy of seven, who was suffering from scarlet fever, was placed in a bed next
to an open window in a ward on the ground floor and, during the absence of a
nurse, he was injured when, somehow, he fell through the window511; where a
patient, who was suffering from a form of epilepsy, characterised by a dangerous
condition of post-epileptic automatism which was known to the staff, had been
501
Dobson v North Tyneside HA [1997] 1 W.L.R. 596, CA per Peter Gibson L.J. at 602.
502
A (A Child) v The Ministry of Defence [2005] Q.B. 183.
503
Wilsher v Essex Area HA [1987] Q.B. 730 (appeal allowed on the issue of causation [1988] A.C.
1074). For the standard of care generally, see para.9–03, above.
504
Gold v Essex County Council [1942] 2 K.B. 293.
505
Collins v Hertfordshire County Council [1947] K.B. 598.
506
Cassidy v Ministry of Health [1951] 2 K.B. 343.
507
Jones v Manchester Corp [1952] 2 K.B. 852.
508
McCormack v Redpath Brown & Co, The Times, March 24, 1961.
509
Coles v Reading and District Hospital Management Committee (1963) 107 S.J. 115.
510
Blyth v Bloomsbury Health Authority, The Times, May 24, 1985.
511
Newnham v Rochester and Chatham Joint Hospital Board, The Times, February 28, 1936.
[621]
left unrestrained and unattended and jumped through an open window512; where
a mother was incorrectly informed that her new baby had died, thereby causing
her to suffer psychiatric injury513; where a screener failed to act upon apparent
abnormalities in a cervical screen test, after which the claimant developed
cervical cancer.514 A hospital was liable for a systemic failure where, on booking
in a patient in the advanced stages of pregnancy, no attempt was made to retrieve
her past medical files, that not being usual unless she herself raised issues arising
in an earlier pregnancy. Had the files been available the doctors would have been
aware of the possibility of obstructed delivery and a caesarian section performed
in case of emergency. In fact, the claimant suffered fetal asphyxia as a result of
placental abruption shortly before birth and cerebral palsy resulted.515
9–159 In contrast, the hospital was held not liable : when a girl of nine, during the
temporary absence of the ward orderly, injured herself by running along and
crashing into the closed glass swing doors on the premises516; when a mental
patient, who was receiving electro-convulsive therapy, a form of treatment given
in accordance with a considerable body of medical opinion, sustained fractures
of the pelvis on each side, which had been caused by the driving of the head of
the femur through the acetabulum.517 Although a greater degree of care and
supervision was required in the case of a patient of known or suspected suicidal
tendencies, there was no negligence found where a woman, having succeeded in
eluding the nursing staff, returned to her home, there to commit suicide whilst
mentally ill but not insane518; of where a patient at a prison hospital managed to
commit suicide: such a hospital could not be expected to provide the same
facilities as a psychiatric hospital in the community at large.519
9–160 In Savage v South Essex Partnership NHS Foundation Trust,520 the House of
Lords considered the nature of the duty owed by hospital authorities under art.2
of the European Convention on Human Rights, to potentially suicidal patients
detained under the Mental Health Act 1983. It was said that in deciding what
measures should be taken to protect the lives of patients in mental hospitals, or
512
Lepine v University Hospital Board (1964) 50 D.L.R. (2d) 225, affirmed (1965) 54 D.L.R. (2d)
340. Likewise, in Selfe v Ilford and District Hospital Management Committee (1970) 114 S.J. 935 the
hospital was guilty of negligence in failing to provide continuous supervision of a psychiatric patient
and a known suicide risk, who left his bed by a ground floor window, climbed to a roof and threw
himself off thereby sustaining severe personal injuries. See also G’s Curator Bonis v Grampian
Health Board, 1995 S.L.T. 652, OH, where the hospital were liable to the claimant, a known suicide
risk on ‘‘close observation’’, who was found hanging from a shower fitment. The nurse was required
to know at all times where the claimant was and had assumed on seeing her walk in the direction of
the toilets and showers that she was going to the former.
513
Allin v City & Hackney HA [1996] 7 Med.L.R. 167 (a duty of care was conceded).
514
Penney v East Kent HA [2000] P.N.L.R. 323, CA.
515
Loraine v Wirral University Teaching Hospitals NHS Foundation Trust [2008] LS Law Medical
573.
516
Gravestock v Lewisham Group Hospital Management Committee, The Times, May 27, 1955. The
hospital’s duty, apart from the medical aspect, was said to be that of an ordinary prudent parent.
517
Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582.
518
Thorne v Northern Group Hospital Management Committee (1964) 108 S.J. 484.
519
Knight v Home Office [1990] 3 All E.R. 237. But see also Brooks v Home Office, The Times,
February 17, 1999, para.9–03, n.10, above.
520
[2009] 1 A.C.681 at [100].
[622]
HOSPITALS AND HEALTH AUTHORITIES 9–163
of patients in general hospitals who were suffering from mental illness, the
authorities should take account of the patients’ vulnerability, including a
heightened risk of suicide. In assessing what should reasonably be done in
discharging their duty under art.2 to protect their patients’ lives the importance
of a range of considerations was aknowledged. The steps required were those that
were proportionate. Developing a patient’s capacity to make sensible choices and
providing as good a quality of life as possible, were important components in
protecting mental health. Keeping a patient absolutely safe from physical harm,
by seclusion or restraint, might cause additional harm. In judging what could
reasonably be expected, resources should come into account. The facilities
available for looking after people with serious mental illnesses were not
unlimited and health care professionals had to make the best of what they
had.
A hospital was not liable where an out-patient, who had expressed threats 9–161
towards children, murdered the claimant’s daughter: although the child’s home
was near to that of the patient that fact alone was insufficient to establish a
sufficient proximity of relationship for purposes of the threefold test in Caparo
Industries Plc v Dickman521 in the absence of a specific class of person who
could be described as being at risk; nor was it fair, just and reasonable to impose
a duty of care where that would not lead to an improvement in standards and
would divert hospital authorities from their primary functions.522
Duty as to hospital premises. Of the situation prior to 1958, it was said by 9–162
Lord MacMillan that a hospital authority must ‘‘take by themselves or by their
officers all proper steps to keep the premises safe for the admission of the public,
or if they have not done so either to exclude the public altogether, or at least to
warn them of the danger’’.523 Now the duty towards all lawful visitors is the
‘‘common duty of care’’.524
Hospital’s duty to medical staff. A hospital owes no duty to a resident house 9–163
physician, living in a staff hostel adjoining the hospital, to safeguard his personal
effects against theft by a third party who comes into the hospital.525 Nor is a
hospital authority negligent where it leaves to the judgment of a trained nurse the
method by which a patient is lifted.526
521
[1990] 2 A.C. 605. See Jones, ‘‘Liabilities for psychiatric patients: setting the boundaries’’ (2000)
1 P.N. 3.
522
Palmer v Tees HA [2000] P.I.Q.R. P1, CA (it was conceded in the CA that in the light of
observations in Barrett v Enfield LBC [2001] 2 A.C. 550 the court should not on a strike out
application, where the facts have not been established, come to a conclusion on the question whether
it was just, fair and reasonable to impose a duty of care).
523
Lindsey County Council v Marshall [1937] A.C. 97, at 119.
524
Occupiers’ Liability Act 1957 ss.1(2) and 2(1) which came into force on January 1, 1958. Prior
to that date, the duty was that owed to an invitee, see earlier decisions cited in in Lindsey County
Council v Marshall, above per Lord Wright at 125, See, generally Ch.8, as regards dangerous
premises.
525
Edwards v West Herts Group Hospital Management Committee [1957] 1 W.L.R. 415. See also
note, 73 L.Q.R. 313.
526
Woolger v West Surrey and North East Hampshire HA, The Times, November 8, 1993, CA.
[623]
9–164 Private nursing home. In the case of a private nursing home, there will
usually be a contractual duty. As to the duty in tort, it is difficult to see any
principle on which the duty in such a home can differ from that in a public
hospital.527
9–165 Nursing association. A nursing association which takes reasonable care to

provide competent nurses is not liable for the negligence of the nurses it pro-
vides.528
9–166 Health authorities.529 It has been held that an area health authority did not
owe a duty of care in respect of an alleged careless investigation into a registered
nursing home, leading to an urgent application under the Registered Homes Act
1989 s.30, for cancellation of registration.530
9–167 Damages. Identical questions to those already discussed in relation to medical

practitioners generally arise in claims against hospitals or hospital authorities.531
In one special case the Court of Appeal had to consider whether, assuming breach
of duty, the claimant could recover damages by way of compensation for his own
attempted suicide which had rendered him tetraplegic. The view was taken that
on the facts the hospital were not negligent, but that even if negligence had been
proved, the claimant’s attempted suicide would have been too remote.532 But the
decision does not establish that such a claim could never succeed provided a
sufficient causal connection was established between the breach and the
claimant’s resulting act of self harm, and the damage was not too remote.533
10.—INSURANCE AGENTS AND BROKERS
9–168 Generally. Most insurance business is transacted through intermediaries, who

divide into insurance agents on the one hand, and insurance brokers on the other.
An insurance agent is one who normally acts as an agent of particular insurers in
regard to effecting any policy of insurance with them. The agent aims to attract
insurance business for principals, rather than to extol the virtues of services
527
See Powell v Streatham Manor Nursing Home [1935] A.C. 243; Gold v Essex County Council
[1942] 2 K.B. 293.
528
Hall v Lees [1904] 2 K.B. 602.
529
See generally, Martin, ‘‘Public health and the scope of potential liability in tort’’ P.N. 2005, 21(1)
39 (discusses whether tortious liability can arise from the failure of public health authorities to protect
health with particular reference to vaccination and screening programmes, blood donation and
radiation services, and the failure to intervene when such threats to health arise as MRSA and
CJD).
530
Martine v South East Kent Health Authority, The Times, March 8, 1993, CA.
531
For obvious reasons many of the claims against medical practitioners are brought against the
health authorities or NHS Trusts which employ them and are vicariously liable for their negli-
gence.
532
Hyde v Tameside Area Health Authority, The Times, April 16, 1981, CA.
533
See, e.g. Selfe v Ilford and District Hospital Management Committee (1970) 114 S.J. 935.
[624]
INSURANCE AGENTS AND BROKERS 9–171
which may be on offer from their competitors.534 Liability to the principal is

determined by the law of agency, since the relationship is a contractual one.535
Thus, if an insurance agent chooses to undertake to procure an insurance, a duty
arises to use all due care and skill. The question in each case is whether the act
or omission complained of is inconsistent with that reasonable degree of care and
skill which persons of ordinary prudence and competence ought to show.536
It is a question of construction of the terms of the contract of agency whether
the agent has contracted merely to use due care and skill to procure an effective
insurance or has given an absolute undertaking that an effective insurance will be
procured.537
An insurance broker is one who normally538 acts as an agent of the insured 9–169
person and strives to find and arrange appropriate insurance for a client’s
requirements. The client’s interests are his paramount conisderation.539 Whilst it
is perfectly true that an insurance broker is usually remunerated by commission,
paid by the insurers with whom a client’s business is placed, the broker’s
contractual relationship is with the client rather than the insurance company
providing the cover.
One important exception to this general rule arises when the insurance broker 9–170
has been authorised by particular insurers to effect insurance on their behalf. In
such instances, as between the insurance broker, the insurers and the insured,
when involved in the field of non-marine insurance, there is a tripartite legal
relationship and the broker’s agency on behalf of the insurers is well established.
Also, because brokers have the implied authority of road traffic insurers, for
example, to effect interim motor insurance by the issue of cover notes, those
members of the public dealing with them can regard them, for these purposes, as
being the agents of the insurers and not of themselves, the insured.540
As the insurance market develops, other exceptions to the traditional distinc- 9–171
tion between brokers and agents may well arise. Where, for instance, there is
reinsurance of an insured risk, the same broker may act both on behalf of the
534
But an agent who places himself in the position of adviser to a prospective client of his principals
will probably incur a liability, either individually and/or on their behalf, if he fails to describe the
choices that can be made, for instance as between occupational and personal pension schemes: see,
e.g. Gorham v British Telecommunications Plc [2001] P.N.L.R. 21, CA, para.9–171, below.
535
The underwriting agents of Lloyd’s Names owed a duty of care which could only be excluded by
clear agreement: Arbuthnott v Feltrim, Deeny v Gooda Walker, Henderson v Merrett Syndicates Ltd
[1995] A.C. 145. The duty was owed to future Names even though the members’ agent was not acting
for them at the time the negligence occurred. It did not extend to ensuring that care was taken by
managing agents to whom work was delegated: Aitken v Stewart Wrightson Members Agency Ltd
[1995] 1 W.L.R. 1281.
536
Chapman v Walton (1833) 10 Bing. 57 at 63, per Tindal C.J.
537
Hood v West End Motor Car Parking Co [1917] 2 K.B. 38.
538
For an exception to this general rule, see n.540, below.
539
See para.33 of the Code of Conduct, which has been drawn up, in pursuance of the obligation
under the Insurance Brokers (Registration) Act 1977, s.10.
540
Stockton v Mason [1978] 2 Lloyd’s Rep. 430. See also Woolcott v Excess Insurance Co Ltd [1978]
1 Lloyd’s Rep. 633; [1979] 1 Lloyd’s Rep. 231, CA, and (re-trial) [1979] 2 Lloyd’s Rep. 210 (brokers
knew of claimant’s serious criminal record, which they failed to disclose to the insurers, and later the
claimant’s house was destroyed by fire).
[625]
insured in placing the insurance and on behalf of the insurer in placing the
reinsurance. Conflicts of interest may thereby arise.541 In another variation, an
insurance company can enter into a direct relationship of adviser/advisee with
some actual or potential client and thereby owe a duty of care in the giving of
advice. So, for instance, where advising an employee about appropriate insurance
provision for himself and his dependants, the differences between any occupa-
tional pension scheme offered by employers and the personal scheme offered by
the insurer itself ought to be described and the client given the opportunity to
make an informed choice between the two.542
9–172 The duty of care. The legal relationship between insurance agents and
brokers on the one hand and their clients on the other is primarily a matter of
contract. A concurrent duty does, however, arise in tort.543 Indeed it has been
held for many years, that an insurance broker owed a client a duty of care in tort,
whether or not there was a subsisting contractual relationship between them.544
The tortious duty is owed not only to the party with whom the broker or agent
has contracted, but also to third parties in appropriate circumstances.
9–173 The liability of an insurance agent to a third party, namely the assured, was
examined in Fine’s Flowers Ltd v General Accident Assurance Co of Canada.545
The claimant, who owned an horticultural business, relied on the defendant
insurance agent to secure insurance cover, which was obtained under a complex
policy covering a number of business risks, although not damage to plants by
freezing, which was exactly what occurred when a water pump broke down as a
result of mechanical failure. It was held that the defendant had undertaken a
contractual duty to keep the claimant covered for all foreseeable insurable and
normal risks to the property and since the loss suffered was of that nature, the
defendant was liable for breach of contract. In addition however, he was liable in
tort for breach of a duty which arose by virtue of his special relationship with the
claimant, in failing negligently to inform him of the gap in the insurance cover
obtained. On the other hand, in Veljkovic v Vrybergen,546 where a building sub-
contractor had instructed an insurance agent to obtain employer’s liability
insurance cover, which was done but did not include injury to the employer
541
See e.g., HH Casualty and General Insurance Ltd v JLT Risk Solutions Ltd [2008] P.N.L.R. 3, CA,
per Auld L.J. at [60]. He went on to observe that where an insurance broker had been at the centre
of devising such a scheme for insurers and reinsurers there was a strong argument for imposing duties
of care which would continue after the reinsurance was placed.
542
Gorham v British Telecommunications Plc [2001] P.N.L.R. 21, CA.
543
See McGee, ‘‘Negligence by an Insurance Broker—When Does the Cause of Action Accrue?’’
(1990) 6 P.N. 132. Also in the case of the managing agents of Lloyd’s Names, Arbuthnott v Feltrim,
Deeny v Gooda Walker, Henderson v Merrett Syndicates Ltd [1995] A.C. 145, above.
544
e.g. British Citizens Assurance Co v Woodland & Co (1921) 8 Ll.L.Rep. 89 and Strong & Pearl
v Allison & Co Ltd (1926) 25 Ll.L.Rep. 504. See also London Borough of Bromley v Ellis [1971] 1
Lloyd’s Rep. 97 and Cherry Ltd v Allied Insurance Brokers Ltd [1978] 1 Lloyd’s Rep. 274 (after
termination of their appointment as brokers, the defendants led the claimants to believe that their
original insurance policy would remain in force for a further four months whereas in fact it had been
cancelled and they had no claim against insurers for losses from a fire).
545
(1978) 81 D.L.R. (3d) 139.
546
[1985] V.R. 419.
[626]
himself, it was held by the Supreme Court of Victoria that the agent had not been
negligent in his interpretation of the claimant’s particular instructions, namely to
obtain the normal cover suitable for the employer’s workmen.
Liability to third parties can also arise by way of analogy with White v 9–174
Jones,547 in which prospective beneficiaries were held entitled to recover against
solicitors charged with the task of preparing a will from which they would have
benefited. Where the representative of an insurance company negligently failed
to advise the company’s customer of differences between a personal pension
scheme and his employer’s occupational scheme, so that, upon his death, his
widow and dependent children received far less in pension rights than they
otherwise would have done, they were entitled to recover the capitalised value of
what they lost. The deceased had intended to make the best provision he could
for his wife and children. That intention had been frustrated by the negligent
failure to advise and in the circumstances a duty of care was owed to them as
much as to the deceased himself.548
It is established that insurance brokers can owe a duty of care to such third 9–175
parties as the insurer, for example in a case where the broker has a contractual
relationship with the insurer because a binding authority has been given to the
broker by the insurer to effect insurance on his behalf.549 In other cases it will
depend on the circumstances whether a duty to third parties has arisen and may
depend on whether the broker has acted beyond the basic function of conduit
between insurer and assured.550 It has been held that it would not be just and
reasonable to impose liability to third party claimants on insurance brokers who
insured other brokers who subsequently became insolvent.551 Nor did brokers
instructed on behalf of a limited company owe a duty to the company’s directors,
even where they were also its sole shareholders and carrying on business through
the medium of the company in a form of partnership, since the duty contended
for did not fit into any existing category and the extension contended for was
unjustified.552 Where insurance brokers instructed Lloyd’s brokers to obtain from
underwriters a quotation for insurance cover which their client agreed to take up,
547
[1995] A.C. 207, below para.9–220.
548
Gorham v British Telecommunications Plc [2001] P.N.L.R. 21, CA para.9–171, above.
549
[1979] 1 Lloyd’s Rep. 231, CA; [1979] 2 Lloyd’s Rep. 210 (on retrial). See generally, Virgo and
Riley, ‘‘Duties of insurance brokers’’ J.F.R.&C. 2004, 12 (2), 128.
550
Pryke v Gibbs Hartley Cooper Ltd [1991] 1 Lloyd’s Rep. 602; Adams-Eden Furniture Ltd v Kansa
General International Insurance Co Ltd [1997] 6 Re L.R. 352, CA (Manitoba). See also Punjab
National Bank v De Boinville [1992] 1 W.L.R. 1138 (a broker owed a duty of care to someone he
knew was to be an assignee of the policy, particularly where that person had participated actively in
giving instructions for the insurance); Banque Paribas (Suisse) SA v Stolidi Shipping Co Ltd [1997]
C.L.Y. 3818 (duty of care owed by insurance broker to bank providing an advance to shipowners to
finance the purchase of a vessel on security of hull and machinery insurance which the broker
negligently and inaccurately led the bank to believe was in place). Empress Assurance Corp Ltd v
C.T. Bowring & Co Ltd (1905) 11 Com. Cas. 107 and Glasgow Assurance Corp Ltd v William
Symondson & Co (1911) 104 L.T. 254 cited to the contrary in earlier editions of this work should no
longer be relied on.
551
Duncan Stevenson Macmillan v A.W. Knott Becker Scott and others [1990] 1 Lloyd’s Rep. 98.
552
Verderame v Commercial Union Assurance Plc [1992] B.C.L.C. 793. Where an insurance broker
arranged for an investor to raise money by mortgaging his property and thereafter to invest the
proceeds in bonds managed by an insurance company, no duty of care was owed to the investor by
[627]
no duty of care was owed by the Lloyd’s brokers to the client in the absence of
any assumption of responsibility by them or reliance by the client on them, as
opposed to reliance upon the client’s own insurance brokers.553
9–176 The standard of care. Today, an insurance broker’s business is regulated by

the Financial Services and Markets Act 2000.554 The Act established the
Financial Services Authority for the purpose of regulating insurance companies
and the carrying on of insurance business. The Authority is responsible for
making rules and the preparation and issuing of codes under the Act, the giving
of general guidance and the determination of the general policy and principles by
reference to which it performs particular functions.555 A person wishing to apply
for permission to conduct the regulated activity of effecting or carrying out
contracts of insurance, or to vary an existing permission, may make application
to the Authority. The authorised person must be a body corporate (other than a
limited liability partnership), a registered friendly society or a member of
Lloyd’s.556 In giving or varying permission the F.S.A. must ensure that the
person concerned satisfies certain conditions, which include being a fit and
proper person.557
9–177 The usual scope of an insurance broker’s business is to effect policies of

insurance or reinsurance on behalf of a client; to give advice in connection with
a client’s likely requirements for the same558; and, in appropriate instances, to
give all necessary assistance to a client to formulate and pursue claims against the
insurers involved. So far as the standard of skill and care is concerned, what is
required is that care which a reasonably competent insurance broker should bring
to bear.559 The broker is assumed to have knowledge of the ordinary, well-settled
rules relating to insurance law560 and other insurance matters, such as the details
necessary to make the policy a legally valid instrument.561 Whether an insurance
broker has exercised reasonable care and skill in all the circumstances is a
question of fact.562 Evidence can be received from persons engaged in the same
the company to ensure that he was given proper advice or to manage the investment in a proper
manner: Searle v A.R. Hales and Co Ltd [1996] I.R.L.R. 68.
553
Pangood Ltd v Barclay Brown & Co Ltd [1999] P.N.L.R. 678, CA (premises insured against fire
burned down and indemnity was refused for breach of a warranty in common form as to the disposal
of smoking materials which the client alleged had not been brought to its attention).
554
Which came into force on April 30, 2001.
555
See s.2(4) of the Financial Services and Markets Act 2000.
556
ss.40, 44 of the Act.
557
See s.41(2) of the Act and Sch.6, para.5.
558
See, e.g. Fine’s Flowers Ltd v General Accident Assurance Co of Canada (1978) 81 D.L.R. (3d)
139 at 148, per Wilson J.A. with whom Blair J.A. concurred.
559
See Chapman v Walton (1833) 10 Bing. 57 at 63, 64, per Tindal C.J. See also O’Connor v B.D.B.
Kirby & Co [1972] 1 Q.B. 90 at 101, per Megaw L.J.
560
Lee v Walker (1872) L.R. 7 C.P. 121.
561
Turpin v Bilton (1843) 5 Man. & G. 455. However, if he decides to give legal advice himself or
to attempt to deal with a problem himself, which is beyond his competence, he will do at his peril:
see Sarginson Bros v Keith Moulton & Co (1942) 73 Ll.L.Rep. 104.
562
Hurrell v Bullard (1863) 3 F. & F. 445.
[628]
business as proof of what would have been the conduct of a reasonably careful
and skilful broker in the circumstances of the particular case.563
ILLUSTRATIONS
Brokers have been held liable for failing to give proper advice to a client on 9–178
insurance matters, an important function of a broker’s business564; failing to
make proper inquiries of insurers to enable the broker to answer a client’s queries
whether a policy covered a risk, concerning which there was doubt565; failing to
question a client sufficiently about his occupation in order to make sure that he
came within the list of categories which were acceptable to an insurer providing
motor insurance cover566; giving evasive answers to questions in the insurance
proposal form, such as ‘‘Not known to brokers’’567; failing to report to the client
their inability to obtain the cover sought and to seek further instructions568;
failing to carry out their client’s instructions569; recommending motor insurance
with a company which they ought to have known was in financial difficulty and
failing to advise the client that he was no longer insured once the company
became insolvent570; effecting an insurance which failed to cover all the risks
against which a client had wished to be insured571; when instructed to arrange an
extension of a client’s motor insurance policy to include a named driver, making
a misrepresentation to the insurers without first having checked properly the
driving record of the additional driver572; failing to make certain that a risk to be
reinsured was defined in precisely the same terms as the risk covered by the
primary insurance policy573; failing to recognise ‘‘material’’ facts, which had to
563
See per Tindal C.J. in Chapman v Walton, (1833) 10 Bing. 57, above.
564
M’Neill v Miller & Co [1907] 2 I.R. 328; Gomer v Pitt & Scott (1922) 12 Ll.L.Rep. 115;
Sarginson Bros v Keith Moulton & Co (1942) 73 Ll.L.Rep. 104.
565
Coles v Sir Frederick Young (Insurances) Ltd (1933) 33 Ll.L.Rep. 83; Melik & Co v Norwich
Union [1980] 1 Lloyd’s Rep. 523.
566
McNealy v Pennine Insurance Co Ltd [1978] R.T.R. 285 (the defendant brokers had caused the
claimant, a part-time musician, to take out motor insurance with an insurance company which would
not accept such persons as risks).
567
Ogden & Co Pty Ltd v Reliance Fire Sprinkler Co Pty Ltd [1975] 1 Lloyd’s Rep. 52.
568
Eagle Star Insurance Co Ltd v National Westminster Finance Australia Ltd (1985) 58 Q.L.R. 165,
PC.
569
Dickson & Co v Devitt (1916) 86 L.J.K.B. 315 (the instructions to the brokers were to effect
insurance for goods to be shipped on the ‘‘Suwa Maru and/or steamers,’’ covering the claimants
against both marine and war risks. The broker’s clerk had omitted to include the words: ‘‘and/or
steamers’’. The goods were shipped on a different ship to Suwa Maru and it was sunk by enemy
action).
570
Osman v J. Ralph Moss Ltd [1970] 1 Lloyd’s Rep. 313, CA.
571
McCann v Western Farmers Mutual Insurance Co (1978) 87 D.L.R. (3d) 135, Ont. H.Ct (brokers
had arranged insurance on the claimant’s premises which excluded any business use, although they
knew the client used some part for his business purposes; G.K.N. Keller Canada Ltd v Hartford Fire
Insurance Co (1983) 27 C.C.L.T. 61, Ont. H.Ct; Mitor Investment Pty Ltd v General Accident Fire
& Life Assurance Corp Ltd [1984] W.A.R. 365, Sup. Ct of W. Aus.; Ramwade Ltd v W.J. Emson &
Co Ltd (1986) 2 P.N. 197. See Jones, ‘‘Limits on Liability to the Impecunious Client’’ (1987) 3 P.N.
76.
572
Warren v Henry Sutton & Co [1976] 2 Lloyd’s Rep. 276, but cf. the situation if the client had
misled the broker by approving expressly the information to be passed on to the insurers, e.g.
Commonwealth Insurance Co of Vancouver v Groupe Spinks SA [1983] 1 Lloyd’s Rep. 67 at 82 per
Lloyd J. See further n.586, below.
573
British Citizens Assurance Co v Woolland & Co (1921) 8 Ll.L.Rep. 89.
[629]
be disclosed to the insurers574; failing to give a client notice that his fire insurance
policy was about to expire and to send him a renewal form to complete in ample
time575; failing to inform a client as a matter of urgency that the insurers had
cancelled his policy576; failing to inform the client of the incorporation in the
current policy of the proposal form for a previous policy577; failing to bring to the
client’s attention a new and onerous clause that was being introduced to his
existing insurance cover.578
9–179 Brokers have also been held liable: for failing to draw attention to the fact that
a cheaper policy excluded certain risks, described as ‘‘extended theft’’, which in
the event materialised579; in the context of building works, for failing to ensure
that full insurance cover existed even for phases of the work where a completion
certificate had been issued580; for failing to include a mortgage protection clause
within an insurance policy under which property was insured in the joint names
of the owner and mortgagee581; for failing to inform their client of a clause in
their property insurance about maintenance and use of fire alarms.582 Insurance
brokers were negligent in failing to arrange insurance which met the require-
ments of a life assurance society, in that it provided an excess of £25m for each
individual claim against the society, but in so doing, failed to recognise the risk
of the society facing an aggregated claim, that is where numerous claims arising
from the same basic cause, individually of modest value but collectively worth
in excess of £100m, were aggregated together.583 Brokers were also liable where,
574
Coolee Ltd v Wing Heath & Co (1930) 47 T.L.R. 78 (the clients, in their sand quarrying
operations, originally did not use explosives and were insured accordingly for employer’s liability.
When the policy came up for renewal they informed their brokers that explosives were now being
used for their business but the latter failed to realise the significance, so that the renewal did not cover
injury suffered by an employee as a result of the use of explosives).
575
Morash v Lockhart & Ritchie Ltd (1979) 95 D.L.R. (3d) 647.
576
London Borough of Bromley v Ellis [1971] 1 Lloyd’s Rep. 97; Cherry Ltd v Allied Insurance
Brokers Ltd [1978] 1 Lloyd’s Rep. 274.
577
Mint Security Ltd v Blair [1982] 1 Lloyd’s Rep. 188.
578
Harvest Trucking Co Ltd v Davis [1991] 2 Lloyd’s Rep. 638 (the case involved an ‘‘insurance
intermediary’’, a member of the British Association of Insurance Intermediaries, whose duty of care
was held to be similar to that of an insurance broker).
579
George Barkes (London) Ltd v LFC (1988) Ltd (t/a LFC Life Insurance Group) [2000] P.N.L.R.
21 (only nominal damages were recovered where, even if the claimants had been aware of the
difference, they would have proceeded nonetheless).
580
Tudor Jones v Crawley Colosso, Lloyd’s List, August 1, 1996, (I.D.) (brokers who had placed the
insurance with the defendant were themselves liable to contribute one-third of the loss for failing to
make clear that full cover was required and to read the policy before approving it).
581
First National Commercial Bank Ltd v Barnet Devaney & Co (Harrow) Ltd [2000] P.N.L.R. 248,
CA.
582
J.W. Bollom & Co Ltd v Byas Moseley & Co Ltd [1999] Lloyd’s Rep. P.N. 598 (no contributory
negligence in failing to guard against the broker’s negligence).
583
Standard Life Assurance Ltd v Oak Dedicated Ltd [2008] P.N.L.R. 26 (the claimant was seeking
indemnity from its insurers in relation to some 97,000 claims arising from the mis-selling of mortgage
endowment policies. Tomlinson J. referred at [102] to a body of authority establishing that ‘‘it is the
duty of a broker to obtain, so far as it is possible, insurance coverage which clearly meets his client’s
requirements. Coverage is only clear in so far as it leaves no room for significant debate. The
coverage will be unclear and the broker in breach of duty, if the form thereof exposes the client to
an unnecessary risk of litigation.’’).
[630]
instructed to arrange insurance for certain stock held by the claimant companies
on behalf of others, they arranged a policy covering damage to stock ‘‘held by the
insured in trust for which the insured is responsible.’’ Those words were not apt
to cover property held by the claimants as bailees on terms which did not include
liability for accidental loss. The brokers should have investigated the terms upon
which the property was held and had that been done it ought to have been realised
that the policy in fact recommended was inappropriate.584
In contrast, brokers have been held not to be negligent in failing to see that an 9–180
assured read through an application for insurance before he signed it585; where a
client had approved expressly and had confirmed, a communication, which to his
knowledge contained a misrepresentation, passing from the brokers to the
insurers586; where the assured’s instructions were ambiguous, in interpreting
them in a reasonable manner587; in failing to act expeditiously to effect insurance
cover, where it did not amount to unreasonable delay in the circumstances588;
where they had received instructions from a co-operative association of fisher-
men to arrange insurance for a member’s vessel, which did not have the
necessary current certificate of survey589; where they had received instructions to
effect export insurance for their client’s goods but had not pointed out that such
insurance did not cover their goods whilst at the packers before export590; where
they had forwarded a copy of a new policy to their client but had not drawn
specific attention to a variation in one of its terms591; where they had effected a
comprehensive insurance policy for a householder who failed to inform them of
both his and his wife’s history of previous claims592; in doing all that could be
done by them in the circumstances to transfer insurance cover to new prem-
ises593; in failing to suggest a further valuation of premises damaged by fire
584
Ramco Ltd v Waller Russell & Laws Insurance Brokers Ltd [2009] P.N.L.R. 14.
585
O’Connor v BDB Kirby & Co [1972] 1 Q.B. 90 at 101, per Megaw L.J. ‘‘when the broker took
it on himself to fill in the proposal form, the duty upon him was to use such care as was reasonable
in all the circumstances towards ensuring that the answers recorded to the questions in the proposal
form accurately represented the answers given to the broker by the assured. But the duty was not a
duty to ensure that every answer was correct.’’ Accordingly, the broker’s inadvertence did not
constitute negligence or breach of contractual duty, in fact he might reasonably rely on the assured
to correct any error which had arisen because of any misunderstanding between him and the broker.
However, cf. the situation in Dunbar v A. & B. Painters Ltd [1985] 2 Lloyd’s Rep. 616 where the
broker was well aware of the misstatement in the proposal form.
586
Commonwealth Insurance Co of Vancouver v Groupe Spinks SA [1983] 1 Lloyd’s Rep. 67 at 82,
per Lloyd J., cf. Warren v Henry Sutton & Co [1976] 2 Lloyd’s Rep. 276 and n.572, above.
587
Dixon v Hovill (1828) 4 Bing. 665. On the question of interpretation generally, where there has
been indistinctness of expression, see also Ireland v Livingston (1872) L.R. 5 HL 395.
588
Cock, Russell & Co v Bray, Gibb & Co Ltd (1920) 3 Ll.L.Rep. 71.
589
Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 55 A.L.R. 509 (H.Ct.
of Australia).
590
United Mills Agencies Ltd v R.E. Harvey Bray & Co [1951] 2 Lloyd’s Rep. 631.
591
Michaels v Valentine (1923) 16 Ll.L.Rep. 244.
592
Lyons v J.W. Bentley Ltd (1944) 77 Ll.L.Rep. 335.
593
Avondale Blouse Co Ltd v Williamson & Geo. Town (1948) 81 Ll.L.Rep. 492. (The fire insurance
was transferred but the cover for burglary could not be so before a survey had been carried out and
no such survey had been done).
[631]
where, in relation to buildings under construction, the valuation figure reflected

the costs of construction coupled with design project fees.594
9–181 Where a Lloyd’s Name had requested exposure only to low risk syndicates,
but the underwriting agent exposed him to syndicates of high risk, it was held
that the agent was liable in both contract and tort and, hence, for the foreseeable
losses suffered by the Name. Such a policy was inherently risky and the Name
was entitled to expect some warning of the risks irrespective of his sophistication
as an investor.595 The standard of care owed by an underwriting agent to a
Lloyd’s Name is that of a reasonably competent Lloyd’s managing agent,
specialising in the type of business written on behalf of the Name. Whether this
standard has been achieved is to be assessed at the time of the alleged negligence
and not with the benefit of hindsight.596
9–182 Damage. The tortious duty, in accordance with usual principles, becomes
actionable only on proof of damage. In the case of an insurance broker who gives
negligent advice as a result of which his client enters into an insurance contract
which is voidable, damage arises when a premium is paid, not when the insurer
elects to avoid the policy.597 As with other professionals who advise or provide
information on the basis of which a course of action is pursued, the first step in
deciding the extent of loss for which a negligent insurance broker is liable is to
define the scope of the duty of care owed in the particular case.598 The usual
principle is that the defendant will be liable only for the consequences of advice
or information provided by him being wrong. Where, however, in an unusual
case, insurance underwriters sought to recover substantial losses associated with
what proved to be an imprudent venture and the defendant brokers’ negligence
had deprived them of the benefit of reinsurance cover, recovery was not limited
to the value of the reinsurance which the claimant lost. Applying the usual rules
did not give a fair result, since in reality reinsurance would not have been
available at all had the brokers made proper disclosure and the claimants would
not have proceeded had they been so informed, so that their extensive losses were
a foreseeable consequence of the failure to pass that information on.599
594
William Jackson & Sons Ltd v Oughtred & Harrisson (Insurance) Ltd [2002] Lloyd’s Rep. I.R.
230.
595
Brown v K.M.R. Services Ltd [1994] 4 All E.R. 385. In Berriman v Rose Thomson Young
(Underwriting) Ltd, Lloyd’s List, August 1, 1996, managing agents who employed a specialised
Lloyd’s underwriter were nonetheless vicariously liable for his negligence in failing to calculate his
ultimate liability in the market, whereby loss was caused to a syndicate of Names.
596
Henderson v Merrett Syndicates (No.2) [1996] 1 P.N.L.R. 32.
597
Knapp v Ecclesiastical Insurance Group Plc, The Times, November 17, 1997, CA, above Ch.1,
para.1–32.
598
South Australia Asset Management Corp v York Montagu Ltd [1997] A.C. 191, para.9–279
below.
599
Aneco Reinsurance Underwriting Ltd v Johnson & Higgins Ltd [2000] P.N.L.R. 152, CA.; appeal
dismissed [2002] P.N.L.R. 201, HL (but there was not unanimity in the House of Lords as to how to
characterise the transaction between the parties: an illustration, perhaps, of the difficulty of drawing
a line, even on agreed facts, between a obligation to provide information and an obligation to provide
advice). See Dugdale, ‘‘The House of Lords decision in Aneco: right result, wrong reasons?’’ (2002)
2 P.N. 129. See also Moore v Zerfahs [1999] Lloyd’s Rep P.N. 144, CA (a claim based in part upon
the negligent completion by a broker of an application for a loan, was struck out where the only
damage shown was acceptance of the loan by the lender: the claimant would in any event have been
unable to recover for losses of a company which the loan was used to finance, since they might have
arisen from a number of reasons, including mismanagement or adverse trading conditions).
[632]
SCHOOLS AND SCHOOLTEACHERS 9–185
11.—NURSES
The duty and standard of care. As with any other professional providing 9–183
health care, nurses600 owe a duty of care towards the patients who come within
their charge. The standard of care is that of a reasonably competent nurse
exercising proper care and skill. Thus it was held to be negligence: for a nurse
to misread a doctor’s handwriting and as a result administer six ounces of
paraldehyde instead of the six drachms prescribed601; for a nurse to assume that
the claimant, a known suicide risk on ‘‘close observation’’, was going to use the
toilet when she saw her walking in that direction whereas she made an attempt
at suicide by hanging herself from a shower fitment602; for a midwife in
delivering a large baby to use force to an excessive degree and for longer than
was acceptable.603
12.—QUASI-ARBITRATORS
A quasi-arbitrator, such as one who is asked by a buyer and a seller of shares 9–184
to fix the value of the shares according to the method prescribed by the contract
made between them, is under no duty to exercise due care or skill. His only duty
is to act honestly.604 ‘‘He is not liable to an action unless he is dishonest.’’605
Further, an expert who truly performs a quasi-judicial function as between two
parties, is immune from an action for negligence, brought by either party, on the
ground of public policy.606
13.—SCHOOLS AND SCHOOLTEACHERS
The duty of care. The duty of a schoolteacher has been said to be to take such 9–185
care of his pupils as would a reasonably careful parent of the children of the
family.607 The duty does not require that a school either insure a pupil against
600
For the vicarious liability of hospitals see para.9–155, above, and vicarious liability generally, see
Ch.3, para.3–98.
601
Strangways-Lesmere v Clayton [1936] 2 K.B. 11. cf. Dryden v Surrey County Council [1936] 2
All E.R. 535 where the nurses were held not negligent.
602
G’s Curator Bonis v Grampian Health Board, 1995 S.L.T. 652, OH.
603
Gaughan v Bedfordshire HA [1997] 8 Med.L.R. 182.
604
Finnegan v Allen [1943] K.B. 425; Boynton v Richardson [1924] W.N. 262.
605
Dean v Prince [1954] Ch. 409 at 427, per Lord Denning L.J. However for a ‘‘special relationship’’
see Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964] A.C. 465.
606
See para.9–43, above, and Ch.3, above, para.3–13, but cf. Arenson v Arenson and Casson,
Beckman Rutley & Co [1977] A.C. 405.
607
per Lord Esher M.R. in Williams v Eady (1893) 10 T.L.R. 41; Jackson v London County Council
and Chappell (1912) 28 T.L.R. 359; Shepherd v Essex County Council (1913) 29 T.L.R. 303, per
Darling J.; Rawsthorne v Ottley [1937] 3 All E.R. 902, per Hilbery J.; Ricketts v Erith C.B. [1943]
2 All E.R. 629; but see the criticism of this test without more, by Geoffrey Lane J. in Beaumont v
Surrey County Council (1968) 112 S.J. 704, although it was applied in Sombach v Board of Trustees
Regina Roman Catholic Separate High School District of Saskatchewan (1969) 9 D.L.R. (3d) 707.
For a school’s vicarious liability for the deliberate wrongdoing of a teacher, see Lister v Hesley Hall
Ltd [2002] 1 A.C. 215, Ch.3, para.3–142, above.
[633]
accidental injury in order to protect the pupil’s economic interests, or to advise

a parent to obtain such insurance, because a duty of that scope would exceed the
obligation a school undertook to educate and care for the child.608
9–186 It is a schoolteacher’s duty to take all reasonable and proper steps, bearing in
mind the known propensities of children, to prevent any pupil suffering injury,
whether from inanimate objects, from the actions of fellow pupils609 or from a
combination of the two. Accordingly, a school-teacher ought not to leave lying
about in a place to which the pupils have access, anything that would be likely
to injure them or to cause injury to others, as a result of a temptation to interfere
or play with it. So, for example when some phosphorus was left in a conservatory
where the boys could get at it, a schoolmaster was held liable for the
consequential injury caused to one of them.610
9–187 What things are likely to injure pupils is a question of degree, depending on
the item in question and the age of the pupils. ‘‘To leave a knife about where a
child of four could get at it would amount to negligence, but it would not if boys
of 18 had access to it.’’611 It would seem that the test is whether the thing is of
a type which a child of the age concerned would, in the ordinary course of things,
be supervised in using. For example, where a child at elementary school, with the
consent of the teacher, brought some toy soldiers to play with, and another child,
aged five, was injured by a sharp point on one of the toys piercing his eye, it was
not negligent for the teacher to allow the children to play with them, since they
were playthings in ordinary use in every nursery.612 On the other hand, to allow
children of tender years to have fireworks, without supervision on the part of the
schoolteacher, has been held to amount to negligence.613
9–188 If something which is likely to injure a pupil is left lying about by a third party,
the teacher is liable if it was known or ought to have be known that it was
608
Van Oppen v Clerk to the Trustees of the Bedford Charity [1990] 1 W.L.R. 235. It would be neither
fair nor reasonable to place a wider duty on the school, which stood in loco parentis, than was
imposed upon a parent, who had no obligation to insure (schoolboy aged 16-and-a-half sustained
severe personal injuries whilst attempting a head-on tackle on a forward-rushing opponent in the
course of a rugby football game.)
609
Thus, a school may be liable for injuries caused to a boy by the ‘‘horseplay’’ of other pupils:
Beaumont v Surrey CC (1968) 112 S.J. 704; Scott v Lothian R.C., 1999 Rep. L.R. 15, OH (the
claimant’s action failed where she alleged bullying had caused her to suffer psychiatric symptoms and
miss time at school, but she failed to establish that the teachers’ actions were such that no teacher of
ordinary skill would have so acted if taking ordinary care); also Bradford-Smart v West Sussex CC,
The Times, January 29, 2002, CA (school potentially liable for bullying even where it occurred off
the premises, although on the facts the claim failed where a responsible body of professional opinion
would have agreed that the school’s protective measures were sufficient). See, Berman and
Rabinowicz, ‘‘Bullying in schools claims’’ J.P.I. Law 2001, 3, 247; Warnock, ‘‘Negligence outside the
gates’’ 2002 P.I.L.J. 5, 22.
610
Williams v Eady (1893) 10 T.L.R. 41, per Kay L.J.: ‘‘Was it not evidence of negligence to have
left the bottle of phosphorus lying about in a place to which the boys had access knowing what boys
are?’’
611
per Cave J. in Williams v Eady (1893) 9 T.L.R. 637. Further, see Clark v Monmouthshire County
Council (1954) 118 J.P. 244.
612
Chilvers v LCC (1916) 32 T.L.R. 363; Raven v Suffolk CC (2002) CLY 3272 (no negligence in
permitting a five-year-old child to be in possession of sharpened pencil).
613
King v Ford (1816) 1 Stark.N.P. 421, per Lord Ellenborough.
[634]
accessible. So, a teacher was liable where one pupil threw a ball of builder’s
material, hitting another boy in the eye. The teacher was aware that the material
had been left in a corner of the playground by a contractor carrying out repairs
and thinking it would be dangerous had telephoned the contractor to remove it.
The contractor was also liable for failing to remove the material within a
reasonable time after receiving the teacher’s message.614 This case was distin-
guished in Rich v London County Council615: the school authority was not liable,
where there had been an unfenced heap of coke in the school playground and a
pupil threw a piece of coke at another, injuring him, despite there having been
proper supervision.
It is no part of the duty of a teacher to foresee every act of stupidity that might 9–189
take place.616 It is necessary to strike a proper balance between too strict a
supervision of children at every waking moment of their school life and the
desirable object of encouraging sturdy independence as they grow up.617 In
Camkin v Bishop,618 a 14-year-old schoolboy received injuries as a result of
being struck by a flying clod of earth, thrown at him by another boy, after he had
joined in some boistrous play. In exonerating the defendant from blame, Goddard
L.J. said: ‘‘If every master is to take precautions to see that there is never ragging
or horseplay among his pupils, his school would indeed be too awful a place to
contemplate.’’
This is plainly right, but it may perhaps also be observed that standards
change with the generations, and the law of negligence should reflect contempo-
rary values. A level of violence between pupils may formerly have been tolerated
which is no longer acceptable today.
It is not the case that an education authority owes no duty in law to take 9–190
affirmative steps to obtain medical help for a pupil over the age of 16. The special
relationship of teacher and pupil may in appropriate circumstances require a
teacher to take positive steps to protect a pupil from harm, no matter what his or
her age.619
Supervision in general. A schoolteacher is under a duty to exercise super- 9–191

vision over pupils, whilst they are on the school premises, whether in the
614
Jackson v LCC and Chappell (1912) 28 T.L.R. 359, distinguished in Prince v Gregory [1959] 1
W.L.R. 177 (a pile of similar material left in the street).
615
[1953] 2 All E.R. 376. The CA held that, when the supervision was adequate, there was no
obligation to prevent the boys from having access to the coke by erecting some structure over which
they could not climb. In a similar case, Lord Parker C.J. held that there was no obligation on the
school authorities to provide sufficient supervisors to watch all parts of the playground all the time:
Newton v East Ham Corp, The Guardian, July 11, 1963.
616
Perry v King Alfred School Society, The Guardian, October 28, 1961. See also, e.g. Ahmed v
Glasgow City Council, 2000 S.L.T. (Sh Ct) 153 (no liability where the claimant was struck in the eye
by an eraser thrown by another pupil when a class was left unsupervised).
617
Jeffrey v London County Council (1954) 52 L.G.R. 521.
618
[1941] 2 All E.R. 713 at 716.
619
Hippolyte v London Borough of Bexley [1995] P. 309, CA (the unfortunate claimant, a child of 16,
suffered an attack of asthma at school which resulted in brain damage. The defendant was
unsuccessful in its argument that no duty of care was owed to obtain medical help, but the action
failed, since, on the facts, no blame attached for a failure to summon an ambulance earlier).
[635]
schoolroom or on the playground. A school’s responsibility for the safety and

welfare of the pupils may well begin before it opens in the morning for the day’s
work. Further, it does not necessarily end immediately that the schooling is over
for the day and the premises close down. Whether or not a duty arises outside
‘‘ordinary school hours’’, depends upon the application of the general duty to take
reasonable care to the particular circumstances. The duty of supervision also
extends to those simple tasks that can be left reasonably to be performed by the
children, which will result in the continuing safety of the school premises.620
9–192 Supervision out of hours. Where pupils were permitted to enter school early,
and there was a risk of injury to children playing ball games in an overcrowded
playground, a duty arose to provide adequate supervision.621 However a school
was not liable where an eight-year-old pupil arrived early and was seriously
injured when he stumbled and fell while running a race with friends in the
playground.622 The absence of supervision was irrelevant, since a supervisor
would not have prevented what, in essence, was an unfortunate accident with
very severe consequences. A similar view was taken where, as a result of
confrontation with another pupil, a nine-year-old boy suffered injury when
making his way to the school gates.623 When a child, aged five, fell through the
glass roof of the children’s lavatory in the playground, after school hours, the
school authority was not liable. It was reasonable to have a rule that children
under five were kept under supervision until collected by their mothers, but not
those of five or over.624
9–193 Supervision: dangers on the highway. In the case of very young children, it
is the duty of the school to take reasonable care to prevent them from getting out
of the school and on to the highway.625 The unexplained presence in the road of
a child for whom at the time the school has responsibility is evidence of
negligence, sufficient to found liability in the absence of explanation.626 The
school was liable when during a teacher’s temporary absence, a four-year-old
boy managed to get on to the road through a gate, which was either open or could
possibly be opened by him and a driver, attempting to avoid the child, collided
620
Martin v Middlesborough Corp (1965) 109 S.J. 576 (the children failed to remove crates of empty
milk bottles so that some broke and a child sustained lacerations).
621
Geyer v Downs (1977) 17 A.L.R. 408.
622
Ward v Hertfordshire County Council [1970] 1 W.L.R. 356. In Mays v Essex County Council, The
Times, October 11, 1975 it was held that there was no duty to provide supervision in the playground
for early arrivals, unless the school voluntarily adopted responsibility for them. The school was not
liable when an eight-year-old boy helped to construct a slide on an icy patch in the playground upon
which he fell and fractured his skull: sliding on ice was an innocent and healthy amusement, which
no average prudent parent would have thought necessary to prevent.
623
Wilson v Governors of Sacred Heart Roman Catholic Primary School, Carlton [1998] P.I.Q.R.
145, CA. See also Ahmed v Glasgow City Council, 2000 S.L.T. (Sh Ct) 153, n.616 above.
624
Jeffrey v London County Council (1954) 52 L.G.R. 521. Likewise, in Good v Inner London
Education Authority (1980) 10 Fam.Law. 213, it was held that the teacher’s ‘‘jurisdiction’’ had ended
when the children left the school either to be collected by their parents or else to go to the play centre
near at hand.
625
Carmarthenshire County Council v Lewis [1955] A.C. 549.
626
See J v North Lincolnshire County Council [2000] P.I.Q.R. P84, CA, Ch.6, para.6–109, above.
[636]
with a lamp-post and was killed627; also where a girl, aged five, was injured by
a lorry as she was attempting to cross a busy main road, after she had been
released from school five minutes early and before she had been met by a parent
or other responsible person628; and again where a claimant aged eight who
suffered from developmental delay left school by one of five gates unnoticed and
was knocked down on a major road 1,000 metres away.629 But an action on
behalf of a child who ran out of the school playground and was struck by a car
failed, where the school had a good safety record and the child was ‘‘determined
to break the rules’’.630
Supervision in class. The amount of supervision which is required depends 9–194

on the age of the pupils and what they are doing at the material time, but no
teacher can reasonably be expected to keep a close watch on each child every
minute of the day,631 unless there is some reason to be alerted or put on
inquiry.632 During hours of instruction, a greater degree of supervision is required
than during hours of recreation. When a 15-year-old boy, who was in a chemistry
class of 25 children, was struck in the face by a concentrated solution of caustic
soda squirted at him through a pipette by another pupil, neither the teacher in
charge of the class nor the education authority was liable where the standard of
discipline maintained was sufficient from the safety point of view, even if it did
not succeed in putting down all acts of impertinence and high spirits.633 A teacher
was not to be under a duty to require all work to cease in class while she attended
to a particular child, during which time the claimant, a child of nearly 10,
accidentally lost an eye as a result of her classmate waving in the air a pair of
pointed scissors, when she was supposed to be cutting out some paper
illustrations.634 It was not negligent for a teacher to permit pupils unsupervised
access to an empty classroom in order to retrieve study materials, where, once
inside the room one of them added whiteboard cleaning fluid to another teacher’s
bottled water, causing subsequent injury.635
627
Carmarthenshire County Council v Lewis, n.625, above.
628
Barnes v Hampshire County Council [1969] 1 W.L.R. 1563.
629
See J v North Lincolnshire County Council [2000] P.I.Q.R. P84, CA, above. See also Toole v
Sherbourne Pouffes Ltd) [1971] R.T.R. 479 (school patrolman who failed to prevent a young pupil
darting into a road).
630
Nwabudike v Southwark London Borough Council, The Times, June 28, 1995.
631
Good v Inner London Education Authority (1980) 10 Fam.Law. 213, CA (sand thrown during
some spontaneous horseplay between two boys, aged about six-and-a-half, just after school hours and
whilst they were waiting for a play centre to open).
632
Moore v Hampshire County Council, 80 L.G.R. 481, CA (where a 12-year-old girl, who suffered
from a congenital dislocation of the hip, wrongfully persuaded her teacher that she was allowed to
participate in P.E. and, whilst attempting to handstand fell and broke her ankle, the defendants were
liable for the failure of the teacher to observe the child’s awkward movements and properly to
supervise her as a child with a disability).
633
Crouch v Essex County Council (1966) 64 L.G.R. 240.
634
Butt v Cambridgeshire and Isle of Ely County Council (1969) 119 New L.J. 1118. However, cf.
Black v Kent County Council (1983) 82 L.G.R. 39 CA, where the claimant’s claim for damages
succeeded after he had been jabbed in the eye, because it was foreseeable that the use of a pair of
sharp-pointed scissors by a pupil, aged seven, in an art class, involved a greater risk than the use of
a blunt-ended pair.
635
Alexis v Newham LBC [2009] EWHC 1323 (Q.B.).
[637]
9–195 Supervision of games or playing. It is not necessary to provide continuous

supervision in the playground of normally healthy children of school age,636 even
if some children are as young as six.637 Where a boy was blinded in one eye as
a result of being struck by a rounders bat whilst playing an unofficial game of
rounders during the midday lunch break in the school playground, there was no
failure of supervision.638 On the other hand, where a pupil, during instruction in
a gymnasium, vaulted over a horse, fell, and injured himself, it was held to be
negligence for a teacher not to take reasonable care to prevent a fall. The games
master had also not ‘‘acted with that promptitude which the law requires’’.639
However, on somewhat similar facts, a boy of 12 who was injured in vaulting
over a buck failed to prove liability. There were four classes in the gymnasium
and the instructor was supervising another class at the time, but the level of
supervision reflected approved practice and had been followed with safety for
many years.640
9–196 Supervision out of school. The duty of care is not restricted to the school
premises, but what ought reasonably done to discharge it will depend upon the
circumstances. A local authority operating a school bus service did owe a duty
to see that it was reasonably safe for children using it,641 to include, where
necessary, the provision of supervision. However, supervision was not required
when boys were doing farm work during a half-term holiday and one boy injured
another by throwing a clod of earth at him.642
9–197 Breach of statutory duty. No action for breach of statutory duty lies at the
suit of an individual aggrieved by the alleged failure of the education authority
to exercise carefully the statutory discretion conferred by the Education Acts
1944 and 1981 to provide sufficient and proper schools for all children, including
those with special needs.643 However, vicarious liability can at least potentially
attach for the negligence of employees of the authority charged with the task of
providing professional services in discharge of the authority’s statutory duty.644
636
Rawsthorne v Ottley [1937] 3 All E.R. 902; Newton v East Ham Corp, The Guardian, July 11,
1963. See also Simonds v Isle of Wight Council, The Times, October 9, 2003 (reasonable supervision
did not require that all access to swings in a playground be prevented on the school sports day: if the
standard was set so high such events would simply not be held).
637
Ricketts v Erith Borough Council [1943] 2 All E.R. 629 (school not liable when boy of 10 injured
girl of six during the break with a toy bow and arrow, in the teacher’s absence).
638
Price v Caernarvonshire County Council, The Times, February 11, 1960.
639
Gibbs v Barking Corp [1936] 1 All E.R. 115, 116, per Slesser L.J. See also Gillmore v London
County Council [1938] 4 All E.R. 331 (the claimant, who was performing an exercise which involved
hopping about on one leg, making lunges at other participants, slipped on the highly polished floor
of a dance hall provided by the defendants for adult physical training); Thornton v Board of School
Trustees of School District No.57 (1976) 57 D.L.R. (3d) 438 (a student of limited expertise in
gymnastics fell on his neck and was severely injured whilst attempting a somersault from a
springboard over a box-horse).
640
Wright v Cheshire County Council [1952] 2 All E.R. 789.
641
See further para.9–209, below.
642
Camkin v Bishop [1941] 2 All E.R. 713. Further see Trevor v Incorporated Froebel Educational
Institute, The Times, February 11, 1954 (where boy was hurt whilst on a picnic).
643
Phelps v Hillingdon LBCl [2001] 2 A.C. 619 and see X (Minors) v Bedfordshire CC [1995] 2 A.C.
633.
644
Phelps v Hillingdon LBC, n.643, above.
[638]
Such employees include, for instance, educational psychologists employed by a

local authority to assess and determine the educational needs of a child.645
Nevertheless, claims may well face formidable problems in practice. To succeed,
it will be necessary to show, in relation to the particular child, that the employee
was acting in a situation where the law recognised a duty of care.646 Questions
of causation and quantum of damage, long after the events, will doubtless be
problematic. Bearing in mind the number of imponderables, a claimant could
face difficulties in showing that an alternative approach to teaching would have
led to a measurable difference.647 The nature of the statutory function and the
difficulty of decisions, such as an assessment of the needs of a child with special
educational needs, are such that a court will usually hold that it is fair, just and
reasonable to impose a duty of care only to avoid decisions that were plainly and
obviously wrong.648
Standard of care. The standard of care required of a schoolteacher is that of 9–198

a parent with responsibility for the number649 and type of children in the class,650
but the standard of care must reflect the context of life at school rather than life
at home.651 Given the level of responsibility, the standard of care required is high,
but is not expressed as any more than should be reasonably expected in the
circumstances. It has been said to be higher than the common duty of care, owed
under the Occupiers’ Liability Act 1957.652
645
Phelps v Hillingdon LBC, n.643, above. See also X (Minors) v Bedfordshire CC [1995] 2 A.C. 633
above, per Lord Browne-Wilkinson at 763, who said that such a claim could embrace the actions of
a headmaster who gave negligent advice relating to the educational needs of a pupil. He went on to
say that in giving advice the standard of care would be that of the reasonable head teacher, not for
instance some other professional such as an educational psychologist. In Gower v Bromley LBC, The
Times, October 28, 1999, CA, it was said to be arguable that teaching staff at a special school owed
a duty of care to educate a particular individual with special needs according to those needs, where
it was alleged that a failure to provide him with computer and other aids caused him to fail
educationally and suffer emotionally and psychologically; appeal dismissed The Times, July 28, 2000.
See Fowles and Winston, ‘‘Educational negligence: Learning difficulties’’ 2003 P.I.L.J. 19, 8.
646
Phelps v Hillingdon LBC, n.643, above.
647
Phelps v Hillingdon LBC, above. per Lord Slynn and see the judgment of Stuart Smith L.J. in the
CA [1999] 1 W.L.R. 500, CA at 446. See also Skipper v Calderdale M.B.C. [2006] E.L.R. 322, CA
(a claim for a school’s failure to ameliorate the effects of the claimant’s dyslexia in which the CA
pointed out the difficulties which would arise in deciding whether and to what extent the claimant’s
earning capacity had been reduced, and opined that it would be wrong to strike out simply because
the value of a claim was modest and the cost of pursuing it disproportionately high). Similar problems
in relation to proof of causation were noted by the Court of Appeal in a child’s claim for bullying out
of school: Bradford-Smart v West Sussex CC, The Times, January 29, 2002, CA, n.609, above.
648
Carty v Croydon LBC [2005] 2 All E.R. 517, CA (the claimant alleged, unsuccessfully, that an
education authority had been negligent in failing to reassess and amend his statement of special
educational needs after the breakdown of a school placement). See Hay, ‘‘A special case of
negligence?’’ 155 N.L.J. 534 ; Ch.2 para.2–299, above.
649
Nicholson v Westmorland CC, The Times, October 25, 1962, namely ‘‘a parent with a family of
twenty children’’; Crouch v Essex CC (1966) 64 L.G.R. 240. ‘‘It is unrealistic if not unhelpful, to say
the standard of care owed by the headmaster of a school of 900 pupils is that of the reasonably careful
and prudent father towards his own children’’, per Geoffrey Lane J. in Beaumont v Surrey CC, above.
Somerset CC v Kingscott [1975] 1 W.L.R. 283.
650
e.g. deaf and dumb children, Ellis v Sayers Confectioners (1963) 61 L.G.R. 299.
651
i.e. where there was more skylarking to be expected as in Lyes v Middlesex CC (1962) 61 L.G.R.
443; applied in Jacques v Oxfordshire CC (1967) 66 L.G.R. 440.
652
See Reffell v Surrey County Council [1964] 1 W.L.R. 358.
[639]
ILLUSTRATIONS
9–199 Negligence was found: where a teacher told a 14-year-old girl to go into the
common room, to poke the fire and pull out the damper of a grate with which she
was not familiar and in consequence her apron caught fire653; also where there
was no guard for a gas stove in a cookery class for 11-year-olds.654
9–200 Negligence was not found: where a master told a 12-year-old boy to carry an
oil can with a long spout from one classroom to another, and while he was doing
that, another boy suddenly came around a corner in a passage and collided with
the can, causing injury to his eye655; where a teacher allowed a 13-year-old boy
to assist in moving a piano, which fell and crushed him656; where a 14-year-old
girl carrying a teapot of hot tea down a school passageway was scalded when a
boy, running along, collided with her657; where, during an unsupervised school
period, the pursuer was injured by a pellet that had been shot from an air gun,
used in contravention of school rules and the presence of which in the school was
unknown658; where a girl at primary school was harrassed by boys who pulled
her skirt open and the teacher who investigated failed to contact the child’s
parents to tell them of the incident.659
9–201 Knowledge of dangerous games. If a teacher knows or ought to know that

pupils on the school premises are playing dangerous games or doing acts in such
a manner or in such a place that they are likely to cause injury to one another, and
does nothing to prevent it, he can be liable in negligence if an accident occurs.660
But he is not liable for injury caused to a pupil playing a properly conducted
game. For example, when a pupil at an instruction centre was playing a
compulsory game of ‘‘riders and horses’’, during the ordinary course of which
some of the players were thrown to the ground, and he was injured in falling, it
was not negligent to have set the game going.661 Also, when a boy of 14 took part
in a relay race at a play centre and put his arm through a glass partition, there was
no liability where the instruction had been to touch the teacher and run back, and
specifically not to touch the glass partition.662 When a boy in the school buildings
653
Smith v Martin and Hull Corp [1911] 2 K.B. 775.
654
Fryer v Salford Corp [1937] 1 All E.R. 617.
655
Wray v Essex CC [1936] 3 All E.R. 97. Cf. Crouch v Essex CC (1966) 64 L.G.R. 240.
656
Moffatt v Dufferin County Board of Education (1973) 31 D.L.R. (3d) 143.
657
Cooper v Manchester Corp, The Times, February 13, 1959.
658
Colquohoun v Renfrew County Council, 1973 S.L.T. 50.
659
Shaw v Redbridge London Borough Council [2005] E.L.R. 320 (the teacher concluded the incident
involved horseplay rather than indecent assault and the court accepted it was a proper exercise of
professional judgment not to tell the parents).
660
Geyer v Downs (1977) 17 A.L.R. 408. See also Fowles v Bedfordshire CC [1995] P.I.Q.R. P380,
CA (local authority negligent where gymnastic activities were permitted at a youth centre without
proper supervision or a proper system of instruction; the contributory negligence of the 21-year-old
claimant was assessed at two-thirds for performing a forward somersault, assisted by a trampoline,
when dangerously close to a wall). See also Gillmore v London CC [1938] 4 All E.R. 331 (county
council liable for providing hall with a slippery floor for physical training classes).
661
Jones v London County Council (1932) 48 T.L.R. 368.
662
Cahill v West Ham Corp (1937) 81 S.J. 630. But in a similar case liability was established on the
basis that the place at which the game in question was played was unsuitable: Ralph v London County
Council (1947) 63 T.L.R. 546.
[640]
was hit in the eye by a golf ball, which had been struck by another boy from the
playground, the schoolmaster was not liable, because there had been no previous
example of such behaviour.663 Nor was a school liable when, on a skiing trip in
Austria, a pupil who had previously been reprimanded by the teacher in charge
for skiing off-piste, chose to ski on a route partially closed as a result of
insufficient snow, lost control and suffered serious injury.664
Liability was established where the teacher failed properly to organise a 9–202
‘‘warm-up’’ exercise in a P.E. lesson in which girls were instructed to touch the
four walls of the hall before returning to the teacher.665 Also, a school was liable
for a serious injury to a pupil’s eye, when he was hit in the face in the schoolyard
at 8.40 am by a full size leather football, even though such balls were banned at
the school: reasonable spot checks should have been held to enforce the ban even
before school itself started.666 And where a schoolteacher decides to participate
with his pupils in some organised sporting activity, such as a game of rugby, a
duty of care arises to avoid making any physical contact with them that would be
likely to result in any of the boys being injured.667
Accident not preventable. Even if there is a breach of the duty to exercise 9–203
supervision, a teacher is not liable for sudden occurrences, which simply could
not have been prevented, as, where, in a school for blind children, one of the
them, during the temporary absence of the person in charge, jumped on the back
of another child and injured him,668 or for accidents which could not be
anticipated, such as an injury to a child at a swimming-bath, which was caused
by one child suddenly releasing a springboard that she was clinging to, while the
injured child was about to jump from it.669 Where coke was delivered to a school
in a tip-up lorry, which, unknown to the head teacher, arrived while the boys were
in the playground, there was no liability for injury to one boy when others
jumped on to the lorry and caused it to tip up. The employers of the driver were
also not to blame, since he could not reasonably have anticipated such an
663
Langham v Governors of Wellingborough School (1932) 101 L.J.K.B. 513, but the result would
have been different if allegations that the teacher failed to exercise proper supervision over the pupils
and knew or ought to have known that they were in the habit of hitting golf balls in a manner likely
to be dangerous, had been proved).
664
Chittock v Woodbridge School [2003] P.I.Q.R. P81, CA (a reprimand was within the range of
reasonable responses which a teacher could have given after the first incident and even if was
negligent to fail to remove the pupil’s ski pass it would not necessarily follow that a causative link
with the accident would have been established). See Stevens, ‘‘Duty of care: safety first’’ 2003 P.I.L.J.
15, 9.
665
A v Leeds City Council [1999] C.L.Y. 3977 (two girls collided at speed, causing one to sustain
injury).
666
Kearn-Price v Kent County Council [2003] P.I.Q.R. P167, CA.
667
Affutu-Nartoy v Clarke, The Times, February 9, 1984 (school liable where a 15-year-old player
was injured by the teacher, as a result of a heavy tackle) ; also Mountford v Newlands School [2007]
E.L.R. 256, CA, Ch.6, para.6–54, above (school liable where an over-age player was picked for a
rugby team and injured a pupil from another school in a lawful tackle). See generally, Samuels,
‘‘Rugby injuries: liability of the college or school’’ 2003 Med. Leg. J. 71, 85.
668
Gow v Glasgow Education Authority, 1922 S.C. 260; Langham v Governors of Wellingborough
School, above per Scrutton L.J.
669
Clarke v Bethnal Green Borough Council (1939) 55 T.L.R. 519.
[641]
interference with the lorry.670 Where, before school began, an eight-year-old

pupil was running a race with friends up and down the playground and stumbled
forward, hitting his head against a jagged flint in the boundary wall of the
playground, the school were not liable: even with supervision such an accident
could not have been prevented.671
9–204 Duty as to school premises. Regulations under the Education Act 1996
provide for standards to which school premises maintained by local education
authorities must be maintained.672 The regulations provide, inter alia for the
facilities which should be provided for staff and pupils,673 and structural
requirements such as load bearing674 and weather protection.675 Health, safety
and welfare is also provided for.676 Under earlier statutes, such an authority was
bound to maintain and keep efficient all public elementary schools in its area,677
and for breach of this duty it was liable in damages. When a boy who was playing
in the playground caught his foot in a hole in the asphalt paving and injured his
ankle, his claim for damages succeeded.678
9–205 The following examples reflect the application of the various statutory regimes
which have been in place in relation to the design and maintainance of school
buildings.679 It was held that a local education authority’s liability was not only
to keep school premises in good repair, but to construct them so that they were
not dangerous to children of the age intended to use them. Where a girl of seven,
upon being told by the teacher to leave the room, had to open a heavy swing door
fitted with a powerful spring, and trapped her hand in the door, it was held that
the door was unsuitable as being dangerous to children of that age.680 Where a
15-year-old schoolboy was injured when his hand broke through a glass-panelled
door, the defendants were in breach of statutory duty, in that the glass panel was
too thin and the door was, therefore, not ‘‘efficient’’.681 Also, a girl aged 12
whose hand was injured when it crashed through the glass panel of a door upon
it swinging back towards her, succeeded in a claim for damages for breach of
670
Rawsthorne v Ottley [1937] 3 All E.R. 902.
671
Ward v Hertfordshire County Council [1970] 1 W.L.R. 357, CA.
672
See the Education Act 1996 s.542(1) as amended and the Education (School Premises)
Regulations 1999 (SI 1999/2), which came into force on February 1, 1999. See generally, Palfreyman,
‘‘Suffer little children: the evolution of the standard reasonably expected in the duty of care to prevent
personal injury on school premises’’ 2001 13(3) E. & L. 228.
673
Education (School Premises) Regulations 1999 (SI 1999/2), regs 2–7.
674
ibid., reg.15.
675
Education (School Premises) Regulations 1999 (SI 1999/2), reg.16.
676
ibid., reg.17: ‘‘Every part of a school building and of the land provided for a school shall be such
that the health, safety and welfare of the occupants . . . are reasonably assured.’’
677
Education Act 1921 s.17.
678
Ching v Surrey County Council [1910] 1 K.B. 736 at 741, per Lord Halsbury: ‘‘Anyone charged
with that duty [to keep the playground in proper condition] was bound to take care that the
playground where boys were expected to play . . . should be in such a condition that they should not
be exposed to unnecessary danger while playing there.’’
679
i.e. before being replaced by the regulations under the 1996 Act, see n.672 above.
680
Morris v Caernarvon County Council [1910] 1 K.B. 840, which was decided under the Education
Act 1902.
681
Lyes v Middlesex County Council (1962) 61 L.G.R. 443 (a breach of reg.5 of the Schools Grant
Regulations 1951).
[642]
statutory duty682 in that the ‘‘construction and properties of the materials’’,

namely the glass panel, were not such that the ‘‘safety of the occupants shall be
reasonably assured’’.683
Where a cleaner brushed loose snow from the step outside the church school, 9–206
but had failed to place ashes or grit on the icy surface beneath it, upon which the
child claimant slipped and hurt himself, the local authority was liable.684 There
was no liability where a six-year-old child tripped in the school playground on a
change of level where tarmac abutted upon a concrete edging.685
When a child of 11 was injured in the school playground, where she slipped, 9–207
fell and cut herself on a broken milk bottle, it was held that the defendants were
negligent in failing to insist upon a safe system for storing and carrying away
empty bottles and in failing to provide any proper supervision for these tasks.686
A school was not liable in negligence where an eight-year-old pupil was injured
when he fell from a bannister he intended to slide down, even though studs were
afterwards put into position to discourage such activity: a pre-accident risk
assessment had correctly concluded that the risk of a fall was insufficient to
justify any special measure at that stage.687
Duty as occupier. The occupiers of school premises, usually the local 9–208
education authority or alternatively, the school’s governors, owe the common
duty of care towards lawful visitors to the school in relation to dangers due to the
state of the premises or things done or omitted to be done on them, as prescribed
by s.1(1) of the Occupier’s Liability Act 1957. A duty is owed under the
Occupier’s Liability Act 1984 s.1, to persons other than lawful visitors (usually
trespassers). The 1957 and 1984 Acts are discussed generally in Chapter 7.
Duty as to transport. Where an education authority decides to provide 9–209

transport for the purpose of taking children to and from school, it must be
reasonably safe. Where a pupil, a girl aged 13, was injured by falling off the step
at the rear of the vehicle provided, the authority was liable on the ground that, as
it had provided a conveyance, it was its duty to provide for the safety of children
using it. The jury found that the accident had been caused by the negligence of
the driver and the non-provision of a conductor in order to help children on and
off, and the House of Lords confirmed that a conductor ought to have been
provided.688 In Jacques v Oxfordshire County Council689 the 14-year-old
682
Reg.51 of the Standards for School Premises Regulations 1959 (SI 1959/890), subsequently
revoked and now replaced by the Education (School Premises) Regulations 1999 (SI 1999/2).
683
Reffell v Surrey County Council [1964] 1 W.L.R. 358. See also the similar obligation in reg.17 of
the Education (School Premises) Regulations 1999 (SI 1999/2), n.676 above.
684
Woodward v Hastings Corp [1945] K.B. 174.
685
B (A Child) v Cardiff City Council [2002] E.L.R. 1, CA.
686
Martin v Middlesborough Corp (1965) 63 L.G.R. 385.
687
Gough v Upshire Primary School [2002] E.L.R. 169.
688
Shrimpton v Hertfordshire County Council (1911) 104 L.T. 145.
689
Jacques v Oxfordshire County Council (1967) 66 L.G.R. 440.
[643]
claimant, who was struck in the eye by a pellet, failed to establish liability where,
as was the normal practice, the discipline over the 42 pupils in the bus was
entrusted to two responsible prefects.
9–210 Health and safety duties. Statutory duties are imposed on employers by the
Health and Safety at Work etc. Act 1974 which extend to schools and institutions
providing higher education.690 There is a general duty upon an employer or self
employed person to conduct their undertaking in such a way as to ensure, so far
as reasonably practicable, that members of the public who may be affected by
them are not exposed to risks to their health and safety.691 Concurrently with the
Act a common law duty will arise to protect pupils from foreseeable risks to their
health and safety. So, it was held that where pupils were invited or directed to use
materials or equipment, there was a duty to see that they were reasonably fit for
the intended use. However, a school authority could not be expected to analyse
ordinary chemicals, such as manganese dioxide, supplied for use in schools,
before they were in fact put into use.692 Where equipment was potentially
dangerous, for example a woodworking machine or a mechanical saw, the failure
to ensure that a pupil received sufficient supervised training on them was
negligent.693 Although s.14 of the Factories Act 1961694 did not impose a
statutory duty on the school authority to fence a dangerous part of a machine, a
similar duty was owed at common law to provide for the safety of pupils against
such a recognised danger.695 Where a girl of 11, who was attending a cookery
school, was injured when her dress caught fire at a gas stove, the school authority
was liable for not providing a guard for the stove.696
9–211 The statutory duties are owed both to pupils and teachers employed at a
school. At common law, the same liability for the defective state of the premises
exists towards teachers and other persons employed by the school as in other
cases of employer and employee.697 Knowledge of the defective condition of the
school will not prevent the teacher or other employee from recovering damages,
subject to contributory negligence. When a teacher was injured by the bursting
of heating apparatus known by the managers of a school to be defective, they
were liable for breach of their statutory duty to provide safe school prem-
ises.698
690
See s.2(1).
691
See Ch.12, para.12–85, below.
692
Kubach v Hollands [1937] 3 All E.R. 907.
693
See, e.g. Hoar v Board of School Trustees, District 68 (Nanaimo) [1984] 6 W.W.R. 133, British
Columbia CA, (the claimant pupil was held 50 per cent contributorily negligent in respect of the
accident to his fingers, which occurred when operating a wood-working machine, the safe operation
of which had never been demonstrated).
694
s.14 has been replaced by the provisions of the Provision and Use of Work Equipment Regulations
1998, for which see Ch.12, para.12–173, below.
695
Butt v Inner London Education Authority (1968) 66 L.G.R. 379.
696
Fryer v Salford Corp [1937] 1 All E.R. 617.
697
See Ch.11, para.11–18, below.
698
Abbott v Isham (1920) 90 L.J.K.B. 309.
[644]
SOLICITORS 9–214
Concurrent duties in contract and tort. Quite apart from liability in tort, 9–212
where pupils enter school premises under a contract,699 there is presumably the
same implied warranty of safety as in the case of guests staying at an hotel.700
14.—SOLICITORS
(A) The duty of care
Introduction. The general duties of a solicitor701 are to act on a clients’ behalf 9–213
in all kinds of business which involve the law, and to give legal advice, in
accordance with the contract of retainer.702 Where a solicitor is acting for a
number of clients with a similar interest, the retainer is with each individually
and any communication with one or more of them, as agent of the others, should
only occur with express authority, coming directly from them.703 Solicitors are
bound to exercise a reasonable degree of care, skill and knowledge in all legal
business that they undertake. In common with most other professions, the duty of
a solicitor falls to be considered both in contract and tort. Although there is
authority to the contrary,704 the preponderance in favour of concurrent liability is
overwhelming.705 In addition, there is a fiduciary duty.
Contractual duty to client. The starting point when considering a solicitor’s 9–214
liability to a client or another, whether in tort or contract, should always be the
precise ambit and nature of the instructions given.706 Liability to a client arises
699
See generally para.9–13, above.
700
See Ch.8, above, para.8–84 and Maclenan v Segar [1917] 2 K.B. 325.
701
See generally Jessel, ‘‘Solicitors’ Professional Negligence’’ 145 New L.J. 498.
702
See Groom v Crocker [1939] 1 K.B. 194 at 222, per Scott L.J., and Midland Bank Trust Co Ltd
v Hett, Stubbs & Kemp [1979] Ch. 384 at 402, per Oliver J. See further paras 9–214 and 9–233
below.
703
Farrer v Copley Singletons [1998] P.N.L.R. 22, CA. In contrast in Berlevy v Blyth Dutton [1997]
E.G.C.S. 193, CA it was said that where a solicitor deals with a partner who has actual authority to
give instructions on behalf of another partner, any advice given should be treated as given to both,
and there was no requirement that the solicitor write directly to the other, even if the transaction in
question was risky.
704
Groom v Crocker, n.702, above: see the more extended treatment in the 8th edition of this work
at para.8–153.
705
See the observations of Lord Denning in Esso Petroleum Co Ltd v Mardon [1976] 1 Q.B. 801,
applying Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] A.C. 465. Also Oliver J. in Midland
Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch.384, Ross v Caunters [1980] Ch.297 and Forster
v Outred & Co [1982] 1 W.L.R. 86. In Henderson v Merrett Syndicates Ltd [1995] A.C. 145, Lord
Goff specifically approved Oliver J.’s reasoning in the Midland Bank case, above.
706
See John Mowlem Construction Plc v Neil F. Jones & Co [2004] P.N.L.R. 45, CA (solicitors
acting for a subcontractor in dispute with the main contractor on a large building project, were not
obliged to advise their client promptly to refer to its insurers a monetary claim made against it where
the solicitors had not been engaged to give advice in relation to insurance and their client was
perfectly competent to consider its own insurance position). See also Football League Ltd v Edge
Ellison [2007] P.N.L.R. 2 (solicitors were not negligent in failing to advise their clients, in the course
of work to licence media rights in relation to football matches, to secure a guarantee from third parties
of the proposed licensee’s financial obligations. It was neither an express or implied term of the
solicitors’ retainer to consider the solvency of the proposed licensee or advise that guarantees should
be obtained). See further Horrocks and Brake, ‘‘ Limitations of liability in solicitors retainers’’ (2007)
2 P.N. 108.
[645]
primarily out of contract707 by virtue of the retainer, that is, the agreement under
which the solicitor is engaged to act. The nature of a solicitor’s duty was set out,
in the course of a review of many earlier authorities, in Midland Bank Trust Co
Ltd v Hett, Stubbs & Kemp.708 In that case a solicitor was instructed to effect the
grant of an option to purchase a farm at £75 per acre but had omitted to register
it as an estate contract, under the Land Charges Act 1925, as a result of which
failure a third party had acquired an adverse interest in the property. Oliver J.
emphasised that ‘‘a contract gives rise to a complex of rights and duties of which
the duty to exercise reasonable care and skill is but one’’.709
9–215 Fiduciary duty to client. In addition to a contractual duty, a solicitor owes a

client a duty which arises from their confidential relationship. This fiduciary
duty710 requires the solicitor neither to abuse nor to take any secret advantage711
of the special situation that has been created by their relationship. A breach of
such duty will involve conscious impropriety,712 although not necessarily
dishonesty.713 Since it is a separate and distinct duty from that owed by virtue of
the contract of engagement, its breach will entitle the client to relief on that
footing.714 As Viscount Haldane L.C. pointed out:
‘‘when, as in the case before us, a solicitor has had financial transactions with his client,
and has handled his money to the extent of using it to pay off a mortgage made to
himself, or of getting the client to release from his mortgage a property over which the
solicitor by such release has obtained further security for a mortgage of his own, a Court
of Equity has always assumed jurisdiction to scrutinise his action. It did not matter that
the client would have had a remedy in damages for breach of contract. Courts of Equity
had jurisdiction to direct accounts to be taken, and in proper cases to order the solicitor
to replace property improperly acquired from the client, or to make compensation if he
has lost it by acting in breach of a duty which arose out of his confidential relationship
to the man who had trusted him.’’715
707
See paras 9–15 to 9–17 and para.9–22, above for fuller discussion.
708
[1979] Ch.384.
709
[1979] Ch.384 at 434. See further in relation to the scope of the retainer paras 9–233 and 9–266,
below.
710
As regards fiduciary relationships generally, see Ch.1, para.1–20, above. See further in relation to
solicitors para.9–264, below. See also, Pratt, ‘‘All in a day’s work.’’ 157 N.L.J. 1688.
711
Even after the fullest disclosure to his client, it may still be most unwise for a solicitor to act for
a person in any transaction in which he is a party with an adverse interest to his client. See Spector
v Ageda [1973] Ch.30.
712
Leeds & Holbeck Building Society v Arthur & Cole [2002] P.N.L.R. 78, per Morland J. at 83 (the
claimant failed to prove a deliberate and conscious breach of duty by solicitors in a conveyancing
transaction and the action failed).
713
See Phipps v Boardman [1967] 2 A.C. 46, also per Millett L.J. in Bristol and West BS v Mothew
[1998] Ch.1 at 18, dealing with the common situation where solicitors act for both sides in a
conveyancing transaction: conduct which is in breach of the duty of good faith ‘‘need not be
dishonest, but it must be intentional. An unconscious omission which happens to benefit one principal
at the expense of the other does not constitute a breach of fiduciary duty, though it may constitute a
breach of the duty of skill and care. This is because the principle which is in play is that the fiduciary
must not be inhibited by the existence of his other employment from serving the interests of his
principal as faithfully and effectively as if he were the only employer.’’
714
Nocton v Lord Ashburton [1914] A.C. 932.
715
Nocton v Lord Ashburton [1914] A.C. 932 at 956, 957. To the like effect, see the opinion of Lord
Dunedin, ibid. at 964–965.
[646]
SOLICITORS 9–218
The measure of damages flowing from a breach of fidcuiary duty is the same 9–216
whether or not the solicitor had a personal interest in the transaction which he
failed to disclose. Hence, the client can recover damages amounting to the loss
which has been suffered as a result of entering a transaction that would not
otherwise have been entered, had the solicitor performed his duty.716 So, where
solicitors obtained mortgage moneys from a building society following a request
based upon a warranty or representation which they knew, or ought to have
known, was false, they were liable for breach of fiduciary duty and held such
moneys on constructive trust for the building society. The fact that, even if
properly informed, the society might have authorised the advance was irrele-
vant.717
Duty to third party in tort. Prior to 1963, except in cases where a solicitor 9–217
was liable as an officer of the court,718 it was generally considered that no duty
of care was owed to a person who was not a client.719 Although not recognised
at the time, the first erosion of this principle had actually taken place with the
decision in Donoghue v Stevenson.720 Then, in 1963, with Hedley Byrne & Co
Ltd v Heller & Partners Ltd,721 a wider principle emerged. A solicitor who, upon
request, gave advice or information negligently, whether gratuitously or not, to a
non-client, and had reason to believe that the advice or information would be
acted upon, could well be liable, in the absence of clear disclaimer, for loss or
damage suffered in consequence.
‘‘Nowadays . . . it is clear that a professional man who gives guidance to others owes
a duty of care, not only to the client who employs him, but also to another who he
knows is relying on his skill to save him from harm. It is certain that a banker or
accountant is under such a duty. And I see no reason why a solicitor is not likewise. The
essence of this proposition, however, is the reliance . . . The professional man must
know that the other is relying on his skill and the other must in fact rely on it.’’722
Although, in Welburn v Mayberry,723 Lord Denning M.R. reiterated his 9–218

opinion that solicitors owed a duty in tort to a third party, it was not until Ross
716
Jacks v Davis [1983] 1 W.W.R. 327, CA of British Columbia (on a property purchase, the loss is
the difference between the net purchase cost to the client and the actual market value at the time of
purchase).
717
Bristol & West Building Society v May, May & Merrimans [1996] 2 P.N.L.R. 138.
718
Batten v Wedgwood Coal and Iron Co (1886) 31 Ch.D. 346; Re Dangar’s Trusts (1889) 41 Ch.D.
178.
719
Robertson v Flemming (1861) 4 Macq. 167. The history is discussed in detail in early editions of
Charlesworth on Negligence.
720
[1932] A.C. 562.
721
[1964] A.C. 465.
722
per Lord Denning in Dutton v Bognor Regis Urban District Council [1972] 1 Q.B. 373 at 394,
395. The passage quoted remains apposite evewn though Dutton itself was overrruled. See further
Ch.2, para.2–239, above.
723
(1971) 115 S.J. 468, CA. The third parties concerned were dependent children whose mother had
died in a road traffic accident caused by the negligent driving of her husband, also deceased. The fatal
accident claim for damages, brought on the children’s behalf had been dismissed for want of
prosecution, as a result of the claimant’s solicitors’ admitted negligence, which had occasioned
inordinate and inexcusable delay.
[647]
v Caunters724 that the opportunity arose for a detailed consideration. Solicitors,

who prepared a will, failed to warn the testator when they sent it to him for
execution, that it must not be witnessed by the spouse of a beneficiary. The
testator signed the will but one of his witnesses was the husband of a residuary
beneficiary, which the solicitors failed to notice. Some two years later, the
testator died without re-executing the will before different attesting witnesses, so
that the gift to the beneficiary was rendered void. The solicitors’ defence
admitted that they had been guilty of negligence but only in respect of the duty,
which they owed to their client, the testator. They denied that any duty of care at
all was owed to the claimant, who was the thwarted beneficiary.
9–219 Sir Robert Megarry V.C. confirmed that not only was there no rule that a
solicitor owed a duty in respect of professional work solely in contract, but a
solicitor could also be liable in negligence to a client, as well as to a third party,
where a prima facie duty of care to the latter could be established. In this instance
the beneficiary was clearly somebody whom the solicitors ought to have had in
their direct contemplation as being likely to be injured by their failure to carry out
the testator’s instructions. As the Vice-Chancellor explained:
‘‘to hold that the defendants were under a duty of care towards the plaintiff would raise
no spectre of imposing on the defendants an uncertain and unlimited liability. The
liability would be to one person alone, the plaintiff. The amount would be limited to the
value of the share of residue intended for the plaintiff. There would be no question of
widespread or repeated liability, as might arise from some published misstatement upon
which large numbers might rely, to their detriment. There would be no possibility of the
defendants being exposed, in the well-known expression of Cardozo C.J. ‘To a liability
in an indeterminate amount of an indeterminate time to an indeterminate class.’725
Instead, there would be a finite obligation to a finite number of persons, in this case
one.’’726
Liability to the beneficiary was made out.
9–220 Ross v Caunters was subsequently considered by the House of Lords in White
v Jones.727 The claim arose from the negligent failure of a testator’s solicitors to
prepare a fresh will in place of a previous will he had decided to revoke. He died
before the new will was prepared and the claimants, who were not included in the
724
[1980] Ch.297. In Smith v Claremont Haynes & Co, The Times, September 3, 1991, a solicitor was
held liable in negligence where he had failed to act promptly in preparing the will of an intended
testator in poor health, who had subsequently died, as a result of which failure intended beneficiaries
were deprived of their expectation. See Baughan, ‘‘The Will That Never Was: Ross v Caunters
extended’’ [1992] 8 P.N. 99. Ross’s case was distinguished in Clark v Bruce Lance & Co [1988] 1
W.L.R. 881 CA. See also Kecskemeti v Robens Rubin & Co, The Times, December 31, 1992, (where
the solicitor failed to advise the testator about the effect of the rule of survivorship upon a joint
tenancy).
725
Ultramares Corp v Touche (1931) 174 N.E. 441 at 444.
726
[1980] Ch.297 at 309.
727
[1995] 2 A.C. 207. See Rich, ‘‘Errors in will drafting: the limits of a remedy in negligence’’ (2000)
1 P.N. 211. White v Jones has been followed in Scotland: Davidson v The Governor and Company
of the Bank of Scotland [2002] P.N.L.R. 740, OH. See also Sprince, ‘‘Disappointed beneficiaries and
disappearing principles’’ (2001) 2 P.N. 104; Jones, ‘‘Third party beneficiaries—disappointed again’’
(2001) 2 P.N. 113. See also Ch.2 para.2–226, above.
[648]
SOLICITORS 9–221
unrevoked original will, but were to be mentioned in the new one, were thereby
disappointed. Conceptual problems associated with the earlier decision were
acknowledged728 but it was held that when a solicitor accepted instructions to
prepare a will, his assumption of responsibility should be deemed in law to
extend beyond his immediate client to the intended beneficiary, thereby giving729
a remedy in the event of negligence under the Hedley Byrne730 principle. An
interesting feature of the decision is the absence of either any fiduciary duty owed
to the beneficiary or reliance on his part on the solicitor discharging his task with
due skill and care, features said elsewhere to be essential to the creation of the
special relationship within that principle. The majority of their Lordships
justified their approach in essentially pragmatic, although by no means identi-
cal,731 terms, being concerned that not to provide the beneficiary with a remedy
would leave a lacuna in the law.
Although one of the justifications for providing a remedy in White v Jones was 9–221
that, in the circumstances of the case, neither the testator or his estate would have
other recourse against the negligent solicitor, it has been held subsequently, by
‘‘permissible incremental extension’’ that a remedy can be given even where the
estate does have a cause of action.732 In determining the recoverable loss where
White v Jones applies, the scope of the solicitor’s duty will have to be identified:
the loss which the beneficiary can recover is that interest he would have had if
effect had been given to the testator’s intention.733 It has also been emphasised
that where a beneficiary complains that a will has not been drawn up in
accordance with the testator’s instructions, he will be expected, in reasonable
mitigation of his loss, to seek rectification of the will before commencing an
action for negligence against the person who drafted it.734 But it is not necessary
to take rectification proceedings where there is no evidence of clerical error or
misunderstanding, so that such proceedings would have little prospect of success.
728
See, e.g. Lord Goff at 255.
729
It has been suggested that the duty of care cannot readily be extended to a beneficiary of whom
the solicitor is unaware. As a minimum the solicitor will have to know what benefit the testator
wished to confer and the person or class of persons for whom it was intended: Gibbons v Nelsons
[2000] P.N.L.R. 734.
730
[1964] A.C. 465. The remedy exists even where the will is drawn by a lay person, rather than
solicitor: Esterhuizen v Allied Dunbar Assurance Plc [1998] Fam. Law 527 (defendant’s representa-
tive failed to ensure that the will in question was properly executed, the claimants being the
disappointed beneficiaries whose existence was known to the representative since he prepared the
draft).
731
per Chadwick L.J. in Carr-Glynn v Frearsons [1999] Ch.326 at 335 (discussing the speeches in
White v Jones): ‘‘it is the reasoning in Lord Goff’s speech—and only that reasoning—that can be said
to have received the support of the majority in the House of Lords.’’
732
Carr-Glynn v Frearsons, above (solicitors owed a duty of care to a beneficiary to ensure that
property in which the testatrix intended her to share could indeed pass to her under the will and
accordingly to advise the testatrix, who held the property as joint tenant immediately to serve notice
severing the joint tenancy). The quotation is per Thorpe L.J. at 339.
733
Carr-Glynn v Frearsons, above per Chadwick L.J. at 337.
734
Walker v Geo. H. Medlicott & Son [1999] W.L.R. 727, CA (the beneficiary’s action failed on the
facts). In relation to the allied question of contributory negligence in this context see Reed, ‘‘Laying
the blame on the testator’’ Tru. & E.L.J. 2002, 41, 15.
[649]
The question, even where such proceedings would probably have succeeded, is
whether the claimant failed to act reasonably in failing to bring them.735
ILLUSTRATIONS
9–222 Solicitors were liable to a beneficiary under the principle in White v Jones736
where they failed to satisfy themselves that delay in attending upon a client in
hospital for whom they had drafted a will which had not been executed would not
be disadvantageous to the proposed testator. It was emphasised that the duty to
the beneficiary reflects that owed to the testator and is not altered by the
circumstances of the beneficiary or the amount intended under the will to pass to
him.737 Solicitors were also liable where a will had been drafted by them on
instructions of the deceased leaving his estate to his partner if he predeceased her,
but the will was not properly executed, bearing a date and the signature of two
witnesses but not his signature: as a result he died intestate and the estate passed
to his parents.738 It has been held that the White v Jones principle could also
apply where the claimant, a beneficiary of his deceased mother’s estate, alleged
that solicitors who had been instructed by his mother to provide inheritance tax
planning advice, had been negligent, in that certain assets remained part of her
estate when with proper advice they should not have done.739
9–223 However, solicitors acting in the administration of a deceased person’s estate

have been held not to owe any duty of care to the beneficiaries.740 Solicitors who
negligently failed to arrange an effective gift inter vivos were not liable to the
disappointed beneficiary because the settlor was still alive and could, if he chose,
rectify the situation by instructing another firm.741 No duty was owed to the
beneficiaries under the earlier of two wills, to take care that the testator did not
execute the later will in circumstances in which he lacked testamentary capacity
735
Horsfall v Haywards [1999] P.N.L.R. 583, CA (on the facts such proceedings would not have
mitigated the beneficiaries’ loss where, inter alia, by the time they could have been brought, the major
assets of the deceased had been disposed of so that there would have been no material recovery of
the funds lost).
736
n.727, above.
737
Hooper v Fynmores, The Times, July 19, 2001. See Frost, ‘‘A risky business’’ 2002 Legal Bus.
127, 24.
738
Humblestone v Martin Tolhurst Partnership [2004] P.N.L.R. 463.
739
Rind v Theodore Goddard [2008] P.N.L.R. 24. The defendants argued that since the estate itself
had a potential cause of action, there was no such lacuna in the remedies available as there had been
in White v Jones, as to justify the extension of a duty of care to the claimant. However, Daniels v
Thompson, (see Ch.1, para.1–33) suggested otherwise in that since the loss suffered by the testatrix
arose only on her death, no completed cause of action accrued on death which would vest in her
estate. See further, Blair and Shepherd, ‘‘Who can sue?’’ 158 N.L.J. 71. A cause of action in
negligence for breach of a duty owed directly to the estate of a deceased person has been rejected in
Scotland: Matthews v Hunter & Robertson Ltd [2008] P.N.L.R. 35, C.S. (OH).
740
Cancer Research Campaign v Ernest Brown [1998] P.N.L.R., 592; Chappell v Somers & Blake
[2004] Ch.19 (the judge also held that beneficiaries had no remedy against an executor for losses
allegedly arising as a result of delay in obtaining probate: for criticism, see O’Sullivan, ‘‘Solicitors,
executors and beneficiaries: Who can sue and who can be sued?’’ (2003) 4 P.N. 507).
741
Hemmens v Wilson Browne [1995] Ch. 233, (although the claimant had proved foreseeability of
damage and a sufficient degree of proximity between the defendant and himself, he failed to establish
that it was fair, just and reasonable for a duty to be imposed in the circumstance).
[650]
SOLICITORS 9–224
and was subject to undue influence.742 Executors of a will were held not to owe
a duty of care to charities who were beneficiaries of the deceased’s residuary
estate, to advise the deceased about tax mitigation where she had herself
inherited from her brother and died within the two-year period for executing a
deed of variation of his will under the Inheritance Tax Act 1984.743 No liability
arose for failing to advise a testator about the effect of what he proposed, where
he altered his will in a way that, should he predecease his wife, would render the
devise to the claimant ineffective, since the effect of what was being done must
have been clear to all concerned.744 No liability arose where solicitors failed to
act upon instructions to change her will given by the deceased five days before
her death, where comments made to them by her and her medical notes justified
the view that she would live at least another six weeks.745 Nor did liability arise
where personal representatives of the deceased sued for the costs of litigation in
which they resisted the claims of beneficiaries disappointed when the defendant
solicitors negligently executed an invalid will. The claim was ultimately for the
benefit of would-be beneficiaries under an earlier will, the only effective one, and
their loss was not within the scope of the solicitors’ duty since, in light of the
second ineffective will, the testator had no intention of benefiting those entitled
under the earlier and they could accordingly not recover the sums in question.746
No liability under the principle in White v Jones arose where the testator was
erroneously advised by solicitors that he could not bequeath the tenancy of a croft
jointly to the claimants and as a result instructed them to draft a will leaving it
to a named individual instead.747
The extent to which the boundaries of a solicitor’s liability will be enlarged to 9–224
include additional classes of non-clients is still being worked out.748 The starting
point for any such extension should be the threefold requirements of Caparo
742
Worby v Rosser [2000] P.N.L.R. 140, CA.
743
Cancer Research Campaign v Ernest Brown & Co [1998] P.N.L.R. 592. See Murphy, ‘‘Probate
solicitors, disappointed beneficiaries and the tortious duty to advise on tax avoidance’’ (1998) 2 P.N.
107; also, in the light of Daniels v Thompson [2004] P.N.L.R. 638, CA. Ch.1, para.1–33 above,
Tettenborn, ‘‘Professional negligence: can you owe a duty to the dead?’’ Conv. 2005 Jul/Aug,
288.
744
Punford v Gilberts Accountants [1998] P.N.L.R. 763, CA.
745
X (A Child) v Woollcombe Yonge [2001] Lloyd’s Rep. P.N. 274 (the judgment is critical of the
reliance upon expert witnesses, called to deal with conveyancing practice, who did little more than
say what they would themselves have done in the like situation, see para.9–06, n.22 above). See
Jones, ‘‘Third party beneficiaries—disappointed again’’ (2001) 2 P.N. 113. Also, compare Hooper v
Fynmores, The Times, July 19, 2001, n.44, above.
746
Corbett v Bond Pearce [2001] P.N.L.R. 739, CA.
747
Fraser v McArthur Stewart [2009] P.N.L.R 13, Ct of Sess. The remedy was not available where
the solicitors carried out the testator’s intentions at the time the will was drafted. It could not be
extended to situations where the complaint was essentially that the solicitor had given the testator
negligent advice.
748
In New Zealand the view has been expressed that ‘‘will cases’’ including White v Jones are sui
generis, so that in other factually distinct situations it may not be appropriate to consider their
application by analogy: Brownie Wills v Ian Meredith Shrimpton [1999] P.N.L.R. 552, CA (N.Z.L.),
at 559. For a discussion of the potential application of White v Jones in cases other than testamentary
disposition, see O’Sullivan, ‘‘Professional liability to third parties for inter vivos transactions’’ (2005)
3 P.N. 142.
[651]
Industries v Dickman,749 alternatively an assumption of responsibility750 to the

individual in question. Only if these tests fail to achieve a just result will it be
necessary to approach the case by reference to White v Jones. However, any
particular claim is approached, caution may well have to be exercised when
considering whether a solicitor owes a duty to a third party, bearing in mind the
paramount duty of a solicitor to protect a client’s interests, even where some third
party’s interests must suffer thereby.751
ILLUSTRATIONS
9–225 Liability to a non-client was established, otherwise than by reference to White

v Jones: where a moneylender agreed to make a loan and the borrower’s
solicitors gave incorrect details to his solicitors about the security being
offered752; and where a solicitor, consulted by a motorist who never became a
client about defending a charge of reckless driving, failed to explore the
possibility of a defence funded by the motorist’s insurers.753 It was arguable that
a solicitor owed a duty of care to one of two tenants in common, where the other
instructed him to convey the property into her sole name thereby defrauding the
first, who knew nothing of the transaction.754 Also, where solicitors had given
advice to the deceased about gifts of shares to various family members, which
resulted in the setting up of a discretionary trust, they could be liable to the
trustees when the settlement was not tax efficient and a heavy inheritance tax
burden had to be paid.755 Where a solicitor acted as executor of the claimant’s
deceased husbands’ will and gave advice in relation to her in relation to her
entitlement to a widow’s pension, a duty of care arose given his assumption of
responsibility, even though the advice was given gratuitously.756
9–226 In the context of a mortgage transaction, where the solicitor is acting for the
party to whom the advance is being made, a duty of care can be owed to the
mortgagee even though the latter is not strictly a client.757 There are circum-
stances in which there may be an obligation to pass information to the mortgagee
which would affect a decision whether to make an advance.758 Where a conflict
749
[1990] 2 A.C. 605.
750
751
In Hemmens v Wilson Browne [1995] Ch.223 (the claimant failed to surmount the ‘‘fair, just, and
reasonable’’ hurdle): see n.741, above.
752
Allied Finance and Investments Ltd v Haddow & Co [1980] 2 N.Z.L.R. 428.
753
Crossan v Ward Bracewell, 136 New L.J. 849 (the motorist decided to plead guilty, without
reference to his insurers, who later refused to indemnify him in respect of damage caused in the
accident that had given rise to the criminal charge).
754
Harris v Nantes & Wilde [1997] N.P.C. 7, CA.
755
Estill v Cowling Swift & Kitchin [2000] Lloyd’s Rep. P.N. 378.
756
Martin v Triggs Turner Bartons [2010] P.N.L.R. 3 (the circumstances of the claimant’s
relationship with the defendant were such as to make it reasonable for her to have relied upon
him).
757
Mortgage Express v Bowerman & Partners [1996] 1 P.N.L.R. 62, CA (liability); [1995] 2 W.L.R.
607, CA (measure of damages). See para.9–268, below. See also First National Commercial Bank Plc
v Loxleys [1997] P.N.L.R. 211, CA, Ch.4, above, para.4–87 (at least arguable that solicitors owed a
duty of care to a lender proposing to advance moneys to their client upon security of a mortgage,
when responding to inquiries in relation to the mortgage agreement upon a standard form).
758
See the cases cited at para.9–268, n.970, below.
[652]
SOLICITORS 9–229
arises because information in the solicitor’s possession is confidential, he or she

must decline to act.759 Where a company was the tenant of premises to which the
Landlord and Tenant Act 1954 applied, solicitors owed a duty of care to the
claimant, who with his wife held all the shares in the company and indeed was
the company for all practical purposes, to inform him of the strict time limits
under the Act for applying for a new tenancy.760
Liability to a third party was not established: on the part of a mortgagor’s 9–227
solicitor, to the mortgagee, to disclose to him or his solicitors facts which were
contrary to the interests of the mortgagor, where the mortgagee had solicitors of
his own and had relied on their skill and judgment to ensure the propriety of the
proposed transaction761; by the testator’s step-children, where a solicitor took the
testators instructions about the making of a will and he deliberately refused to
nominate762; where a solicitor did not advise the purchaser of property of her
obligations under a mortgage, his instructions having actually come from her
father, the guarantor: a duty of care was owed to her, but extended only to the
exercise of reasonable care and skill in putting her father’s instructions into
effect.763 In normal conveyancing transactions solicitors who are acting as agents
of the vendor do not in general owe the prospective purchaser a separate duty of
care when answering inquiries before contract.764
Where non-client third parties in fact relied upon the expertise of the client of 9–228
solicitors, rather than on that of the solicitors themselves, no duty of care
arose.765 In the same case it was observed that even when an expert, such as a
solicitor, offered advice which he knew others would or were likely to rely on,
that fact on its own was insufficient to give rise to a duty of care, where the
solicitor was not taking upon himself to advise the third party or allowing that
advice to be passed to the third party.766
It has been held in New Zealand that while a solicitor can be liable towards a 9–229
third party for an omission to advise, it will also be necessary to establish in such
a case an assumption of responsibility, express or implied, accompanied by
759
Hypo-Mortgage Services Ltd v David Parry & Co [1996] E.G.C.S. 39 (where the mortgagee
unsuccessfully argued that the solicitor should have passed on information that his client had two
other mortgages); also Nationwide Building Society v Balmer Radmore [1999] P.N.L.R. 606,
para.9–266, n.963, below.
760
R.P. Howard & Witchell v Woodham Matthews & Co [1983] Com.L.R. 100.
761
Wynston v MacDonald (1979) 105 D.L.R. (3d) 527.
762
Sutherland v Public Trustee [1980] 2 N.Z.L.R. 536. See also Trusted v Clifford Chance (2000) 1
W.T.L.R. 1219 (on the evidence, the testator had been undecided whether to confer upon the claimant
a particular benefit claimed and the position had not been reached where instructions could have been
given as to dispositions under a proposed new will). See Reed, ‘‘The recalcitrant testator’’ Tru. &
E.L.J. 2002, 39, 6.
763
Woodward v Wolferstans, The Times, 8 April 1997.
764
Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch. 560. See also Cemp Properties (UK) Ltd v
Dentsply Research & Development Corp [1989] 2 E.G.L.R. 205 at 207, per Morritt J.
765
A & J Fabrication (Batley) Ltd v Grant Thornton [1999] P.N.L.R. 811 (the liquidator of a
company was to advise the claimant creditors about possible claims against former directors of the
company, but the claims became statute-barred when the solicitors instructed by him failed to advise
him to bring proceedings in time).
766
A & J Fabrication (Batley) Ltd v Grant Thornton [1999] P.N.L.R. 811 at 818.
[653]
reliance upon the absence of advice. There was no such reliance by the director
of a company seeking an overdraft facility from a bank to be secured by a
personal guarantee from all its directors, upon solicitors acting for the bank, who
failed, although instructed, to explain the nature of the transaction to the directors
and he then acted under a mistake as to the extent of his liability under the
guarantee: he had not sought or received advice from the solicitors and was
unaware at the time of the instruction the bank had given.767
9–230 Duty to other party in litigation. It has been said to be doubtful whether
solicitors owe any duty to a party on the other side of litigation, such as to
conduct the litigation with appropriate propriety.768 But one instance may be
where a solicitor gives an undertaking to the court for the benefit of a third party.
By way of example, where in the course of contested custody proceedings
between his client and the claimant, his client’s former wife, a solicitor, gave an
undertaking to the court to retain his client’s passport, there being a perceived
risk the client, a Kuwaiti citizen, would remove the children from the jurisdiction
of the court, it was held that he owed the claimant a duty of care to inform her
should the passport cease to remain under his control.769 While a solicitor who
starts, defends or continues proceedings warrants that the client has given
authority to do so, the warranty does not extend to an implied statement that the
client is named correctly.770
9–231 In other situations, where proceedings might well be in contemplation but have
not actually been commenced, there has been reluctance to find a duty owed to
a party on the opposite side.771 There will be difficulty in establishing proximity
where solicitors and the claimant were not ‘‘on the same side of the fence’’ so far
as the transaction in question was concerned.772 An assumption of responsibility
towards an opposing party would be unusual. Having said all that, these are
matters of proof and, in appropriate circumstances, there is no technical reason
why a duty of care should not arise.773
767
Brownie Wills v Ian Meredith Shrimpton [1999] P.N.L.R. 552, CA (NZL).
768
Orchard v South Eastern Electricity Board [1987] Q.B. 565.
769
Al-Kandari v J.R. Brown & Co [1988] Q.B. 665. Although public policy generally required that
a solicitor should be protected from claims in negligence by his client’s opponent, in agreeing
voluntarily to hold the passport to the order of the court, he had gone outside his role as a solicitor
acting for his client.
770
SEB Trygg Liv Holding Aktiebolag v Manches [2006] 1 WLR 2276, CA. While the principle is one
of agency law it is of some practical importance. The extent of the warranties given by solicitors
conducting litigation are discussed in the judgment of Buxton L.J. The point is made that although
no warranty is given as to name, if a solicitor mis-names a client, and that causes loss, issues of
wasted costs and negligence may well arise.
771
See, e.g. BDG Roof-Bond Ltd v Douglas [2000] P.N.L.R. 397 (no duty owed to a company where
solicitors acted for a shareholder in a share re-purchase transaction); also Dean v Allin & Watts [2000]
P.N.L.R. 690 (not fair, just, or reasonable to impose a duty of care where clients introduced to a
solicitor the claimant, for purposes of the execution of a security which subsequently proved
ineffective in law).
772
ibid. at 420. The words quoted are per Sir Brian Neill in BCCI (Overseas) Ltd v Price Waterhouse
(No.2) [1998] P.N.L.R. 564.
773
A duty did arise in Dean v Allin & Watts [2001] P.N.L.R. 921, CA. (solicitors acting for borrowers
in a loan transaction were liable to the lender for their failure to arrange effective security where they
knew lender was unrepresented and their clients wished to provide an effective security for the
transaction).
[654]
SOLICITORS 9–233
(B) The standard of care
Generally. The standard of care and skill which can be demanded from a 9–232
solicitor is that of a reasonably competent and diligent solicitor.774 Historically a
solicitor was said to be liable only for crassa negligentia,775 which was otherwise
described as misconduct, fraudulent proceeding, gross negligence or gross
ignorance.776 These old formulations should not now be taken to mean that any
different standard of care is imposed upon solicitors that other professional men.
In effect, they emphasise that it is not enough to prove that a solicitor has made
an error of judgment or shown ignorance of some particular part of the law: it
must be shown that the error or ignorance was such that an ordinarily competent
solicitor would not have made or shown it.
‘‘It would be extremely difficult to define the exact limit by which the skill and
diligence which a solicitor undertakes to furnish in the conduct of a case is bounded, or
to trace precisely the dividing line between that reasonable skill and diligence which
appears to satisfy his undertaking, and that crassa negligentia, or lata culpa mentioned
in some of the cases, for which he is undoubtedly responsible. It is a question of degree
and there is a borderland within which it is difficult to say whether a breach of duty has
or has not been committed.’’777
Importance of the retainer. At the outset a solicitor should clarify with a 9–233
client the precise problem for which he or she is being retained.778 Although the
duty owed by a solicitor to a client is to exercise reasonable care and skill in
giving advice, discharging it requires a clear exposition of the legal position and
does not extend to advising on the commercial merits generally of a transac-
tion.779 Indeed, it has been held that a solicitor has no duty to offer unsought
advice on the wisdom of a particular course where the client is in full possession
of her faculties and apparently aware of what she is doing.780 Further, it has been
held that whilst a solicitor’s duty was to inform and advise the client and to
ensure that the client had understood the advice being given, there was no duty
to go further and compel the client to accept the advice.781 Indeed, in an
appropriate case advice should be circumspect and a client should be warned of
774
In Duchess of Argyll v Beuselinck [1972] 2 Lloyd’s Rep. 172, Megarry J. appeared to favour the
view that a higher standard of care should be expected of solicitors who held themselves out to be
experts in a particular field, than of solicitors in general practice).
775
Baikie v Chandless (1811) 3 Camp. 17, 20.
776
Purves v Landell (1845) 12 Cl. F. 91 at 102. Lords Brougham and Lyndhurst expressed similar
opinions.
777
Scrutton L.J. in Fletcher & Son v Jubb Booth and Helliwell [1920] 1 K.B. 275 at 281, following
Tindal C.J. in Godefroy v Dalton (1830) 6 Bing. 460. See also Parker v Rolls (1854) 14 C.B.
691.
778
Gray v Buss Murton [1999] P.N.L.R. 882 (clients who wanted advice about the effectiveness of
a will to convey certain property absolutely who were instead given advice about the will’s valid-
ity).
779
Reeves v Thring & Long [1996] P.N.L.R. 265, CA (claimant bought a hotel but the conveyance
contained no right of way to reach the rear car park).
780
Clark Boyce v Mouat [1994] 1 A.C. 428, PC.
781
Dutfield v Gilbert H. Stephens & Sons (1988) 18 Fam. Law. 473, per Lincoln J.
[655]
the range of interpretations that may reasonably arise on given facts.782 In a

commercial context, the standard of care required to discharge a solicitor’s duty
will vary with the commercial sophistication of his client.783
9–234 Although the terms of the retainer are the starting point when determining both
the scope of the solicitor’s duty and the standard of care required, it behoves a
solicitor to be wary and even where the retainer is capable of narrow definition
a duty can arise, at least to warn of a problem of which there is actual or
constructive knowledge, where it may prevent the ultimate object of a client
being achieved.784
9–235 General and approved practice. Although the standard is a high one,785 ‘‘a
defendant charged with negligence can clear himself if he shows that he acted in
accord with general and approved practice.’’786 This is so, even if a body of
opinion were to take a contrary view.787 It follows that where a solicitor has acted
within the general practice of the profession but has made some error, a finding
of negligence will not be made,788 save in rare circumstances.789 On the contrary,
where a solicitor has failed to adhere to the lines of the general practice and a
mistake has occurred, a finding of negligence may be inevitable.790
9–236 No doubt problems can arise in situations where there are a number of
different practices from which to choose and follow, each with its enthusiastic
782
Queen Elizabeth’s School Blackburn Ltd v Banks Wilson Solicitors [2002] P.N.L.R. 300, CA (an
unusual case where the claimant succeeded because advice in relation to the meaning of a restrictive
covenant was too robust as a result of which expense was incurred in altering the design of a new
building). The decision has been the subject of adverse comment: see Gee Q.C., ‘‘The solicitor’s duty
to warn that the court might take a different view’’ (2003) 2 P.N. 362.
783
Commercial Bridging Plc v Nelsons [1998] C.L.Y. 4018 (held unnecessary for a solicitor to
explain the effect of a priority limit in a short Deed of Priority to a company specialising in providing
bridging loan finance for commercial and residential land purchasers).
784
See, e.g. Mortgage Express v Bowerman & Partners [1996] 1 P.N.L.R. 62, CA; also Credit
Lyonnais SA v Russell Jones & Walker, The Times, October 9, 2002 (solicitors liable, where, having
been instructed to act in relation to the exercise of a break option in a lease, they did not warn of the
time for payment of a lump sum required as consideration for the exercise of the option and the
opportunity to exercise it was lost).
785
See Ch.7, para.7–51, above.
786
Vancouver General Hospital v McDaniel (1934) 152 L.T. 56 at 57, PC, per Lord Alness, adopted
in Marshall v Lindsey County Council [1935] 1 K.B. 516 at 540 by Maugham L.J. and approved by
the HL in Whiteford v Hunter [1950] W.N. 533.
787
Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582, per McNair J. at 587.
788
Simmons v Pennington & Son [1955] 1 W.L.R. 183 (the defendant solicitors, in answering the
requisition, having acted in accordance with the general practice of conveyancers, which had been
followed for many years without any dire consequences, were held not to have acted negligently,
when by sheer ill-luck an error occurred: see per Denning L.J. at 186).
789
Such as arose in Edward Wong Finance Co Ltd v Johnson, Stokes & Master [1984] A.C. 1296,
where the buyer’s solicitors were liable in negligence for participating in the Hong Kong style of
completion, a well-known and accepted general practice which enables a speedier conveyance to take
place in that the purchase price and the documents of title are exchanged simultaneously, but the
seller’s solicitors defaulted in their undertakings. In Patel v Daybells [2001] P.N.L.R. 43 the Edward
Wong case was distinguished where time was so short that a solicitor had no alternative, if his client
was not to forfeit a deposit, but to complete a purchase on an undertaking from the vendor’s solicitor
to redeem a pre-existing charge on the property to be transferred.
790
Stevenson v Rowand (1830) 2 Dow & Cl. 104.
[656]
SOLICITORS 9–239
band of supporters.791 The Law Society issues a Code of Conduct for Solicitors.
Failure to follow the standards is not of itself negligent but is no doubt capable
of supporting such a finding.792
Knowledge of the law. It may be negligence on the part of a solicitor to be 9–237

ignorant of the law applicable to the case, but, in the words of Abbott C.J.:
‘‘No attorney is bound to know all the law; God forbid that it should be imagined that
an attorney, or a counsel, or even a judge is bound to know all the law; or that an
attorney is to lose his fair recompense on account of an error, being such an error as a
cautious man might fall into.’’793
The general duty in this respect is summed up by Tindal C.J.:
‘‘He is liable for the consequences of ignorance or non-observance of the rules of

practice of this court; for the want of care in the preparation of the cause for trial; or of
attendance thereon with his witnesses; and for the mismanagement of so much of the
conduct of a cause as is usually and ordinarily allotted to his department of the
profession. Whilst, on the other hand, he is not answerable for error in judgment upon
points of new occurrence, or of nice or doubtful construction, or of such as are usually
entrusted to men in the higher branch of the profession of the law.’’794
A solicitor is not bound to know the contents of every statute of the realm. The 9–238
test of what a solicitor ought to know is the standard of knowledge of a
reasonably competent solicitor. The statutes of limitation ought to be known, and
if a solicitor finds that the time of limitation is so near its end as to be likely to
bar a client’s right of action, the client must be warned. One of the earliest
grounds of complaint against solicitors was failure to adhere to time-limits as a
result of which a cause of action was lost.795
Where a solicitor is ignorant of the law on a point, the means of acquiring 9–239
knowledge of it should at least be known.796 If the point is considered difficult
or doubtful, the client should be informed and instructions taken whether or not
to seek an opinion from counsel. If the client refuses to take counsel’s opinion,
the solicitor is only liable ‘‘where the law would presume him to have the
knowledge himself’’.797 If the solicitor decides to advise on a difficult or doubtful
791
See, e.g. G. & K. Ladenbau (UK) Ltd v Crawley & De Reya [1978] 1 W.L.R. 266.
792
Johnson v Bingley, The Times, February 28, 1995.
793
Montriou v Jeffreys (1825) 2 C. & P. 113.
794
Godefroy v Dalton (1830) 6 Bing. 460.
795
Fletcher & Son v Jubb Booth and Helliwell [1920] 1 K.B. 275. cf. Yardley v Coombes (1963) 107
S.J. 575.
796
Parker v Rolls (1854) 14 C.B. 691 (a personal injuries action against a defendant who admitted
liability: the solicitor’s client recovered the damages which the defendant to the action would have
had to pay).
797
per Tindal C.J. in Godefroy v Dalton (1830) 6 Bing. 460, suggesting that in matters which the law
presumed a solicitor to know, he could not protect himself ‘‘by consulting another’’. See further in
relation to the effect of taking counsel’s opinion, para.9–240, below.
[657]
point without warning the client of the difficulty and without suggesting that
counsel’s opinion should be taken, there is a breach of duty.798 Even where the
area of law in question is a specialist one, it can be arguable that an ordinary high
street solicitor should have appreciated that the client has no legal standing to
bring a claim.799 In a case where the law on a point is yet to be finally established,
it may be the solicitor’s duty to be informed of the state of debate in the legal
profession and to act accordingly.800
9–240 Effect of taking counsel’s opinion. Where counsel’s opinion has been acted
upon properly by a solicitor, negligence is unlikely to be established.801 In order
to obtain this protection all relevant facts should be laid before counsel,802
included among which are all private Acts of Parliament and statutory regula-
tions, known by the solicitor to be likely to be relevant.803 In Davy-Chiesman v
Davy-Chiesman,804 May L.J., in agreeing that a solicitor was entitled generally to
rely on the advice of properly instructed counsel, added:
‘‘However this does not operate so as to give a solicitor an immunity in every such case.
A solicitor is highly trained and rightly expected to be experienced in his particular
legal fields. He is under a duty at all times to exercise that degree of care, to both client
and the court, that can be expected of a reasonably prudent solicitor. He is not entitled
to rely blindly and with no mind of his own on counsel’s views.’’
9–241 Although a solicitor may be justified in relying on counsel’s advice, where it

embodies a careful and sensible assessment of the legal and factual situation,805
that may not, depending upon the facts, be a complete answer to a claim in
negligence. A prudent solicitor is under a duty to exercise a reasonable degree of
798
Richards v Cox [1943] K.B. 139 (advising on the construction of an insurance policy without
counsel’s opinion—liable for negligence).
799
Green v Hancocks, The Times, August 15, 2000 (taking counsel’s opinion was no protection where
counsel did not address the relevant point); appeal dismissed [2001] Lloyd’s Rep. P.N. 212, CA.
800
Dean v Allin & Watts [2001] P.N.L.R. 921, CA, para.9–231 above (solicitor failed to recognise that
a deposit of deeds as security without a memorandum in writing signed by each party to the contract,
might be rendered ineffective by s.2 of the Law of Property (Miscellaneous Provisions) Act
1989).
801
Potts v Sparrow (1834) 6 C. & P. 749; Kemp v Burt (1833) 4 B. & Ad. 424; Andrews v Hawley
(1857) 26 L.J.Ex. 323; Re Clark (1851) 1 De G.M. & G. 43 at 49. See also Francis v Francis &
Dickinson [1956] P. 87 at 96 per Sachs J.: ‘‘As a general rule a solicitor acting on the advice of
properly instructed counsel can hardly be said to be acting unreasonably, save perhaps in a very
exceptional set of circumstances.’’ Where leading counsel with specialist experience has been
instructed to give considered advice in conference it is a solicitor’s duty to differ and give separate
advice, or ask that his reservations be recorded, only if there is an important point on which he regards
counsel’s advice as being seriously wrong: Matrix Securities Ltd v Theodore Goddard (A Firm)
[1998] P.N.L.R. 290, 323.
802
Ireson v Pearman (1825) 3 B. & C. 799. See also Locke v Camberwell Health Authority, The
Times, December 11, 1989(solicitor liable for costs thrown away where counsel was not provided
with relevant information when asked to advise on the merits in a negligence action)
803
Glebe Sugar Refining Co v Greenock Harbour Trustees (1921) 37 T.L.R. 436.
804
[1984] Fam. 48 at 64.
805
Ward v Chief Constable of Avon and Somerset Constabulary, Daily Telegraph, September 18,
1987, CA, applying Orchard v South Eastern Electricity Board [1987] Q.B. 565.
[658]
SOLICITORS 9–242
care to both the client and the court.806 It is no defence to rely upon counsel’s
advice when a problem ought to be within the solicitor’s own expertise.807 Where
solicitors instructed junior Chancery counsel to advise in connection with a
proposed gift of shares, they were negligent in failing to review his advice before
transmitting it to the donor; in failing to equip themselves with knowledge of
basic inheritance tax principles; and in failing specifically to clarify the tax status
of the transfer.808
Duty in contentious matters. In contentious matters,809 a solicitor is under a 9–242

duty, when instructions are first received, to consider whether a client may be
eligible for public funding and it is wrong to incur substantial expenditure
chargeable privately to the client, if public funding is available.810 On taking
instructions it is the solicitor’s duty to ascertain the relevant facts in order that an
opinion can be formed whether or not there is a right of action.811 If the
conclusion is that there is no cause of action, the client should be so advised.812
If, notwithstanding that advice, the solicitor is instructed to proceed, no liability
in negligence will arise.813 There is no duty to compel a client to accept advice,
provided that the solicitor has done that which is reasonably required to ensure
that the client has understood precisely what has been advised.814 The client must
be told of any offer of compromise made by the other party. Such an offer should
not be rejected without first taking instructions.815 If advising a legally-aided
claimant in relation to compromise, a solicitor has to be wary of incurring costs
which may not be recovered from the defendant and the potential impact of the
Legal Aid Board’s statutory charge. Nevertheless, it was negligent to estimate a
806
Re A (A Minor) (Costs) (1988) 18 Fam. Law 339 at 340, per May L.J. It was also observed that
if solicitors become aware that counsel instructed by them is not competent to conduct the
proceedings they have a duty to withdraw instructions and to instruct someone else in his place.
807
Bond v Livingstone & Co [2001] P.N.L.R. 692 (solicitors ought to have appreciated that where
claimant contracted for a hair implant and complained of injury thereby sustained, the claim was for
personal injuries and therefore fell within s.11 of the Limitation Act 1980 even though contractually
based). See Hickman v Blake Lapthorn [2006] P.N.L.R. 20 (solicitors were not protected by their
reliance on counsel’s advice on settlement where they were more familiar than he with the details of
the claim and should have appreciated he was failing to take account of the possibility that the
claimant might never work again). See also Bartle, ‘‘The defence of reasonable reliance on counsel’’
(2002) 2 P.N. 111.
808
Estill v Cowling Swift & Kitchin [2000] Lloyd’s Rep. P.N. 378, above para.9–99.
809
Any agreement that a solicitor shall not be liable for negligence, in respect of contentious
business, is void by virtue of the Solicitors Act 1974 s.60(5).
810
David Truex Solicitor v Kitchin [2007] P.N.L.R. 34, CA (the solicitors’ claim for fees was defeated
by a finding that they had been negligent in failing properly to consider the financial position of their
client in matrimonial proceedings: had they done so she would have been advised that she might be
eligible for public funding and referred to a firm which undertook work of that type).
811
Gill v Lougher (1830) 1 Cr. & J. 170; Long v Orsi (1856) 18 C.B. 610; Thwaites v Mackerson
(1828) 3 C. & P. 341; Ottley v Gilby (1845) 8 Beav. 602; Lawrence v Potts (1834) 6 C. & P. 428.
812
Jacks v Bell (1828) 3 C. & P. 316. Advice must be supported by analysis and highlight potential
pitfalls, see Levicom International Holdings BV v Linklaters [2010] EWCA Civ 494.
813
Re Clark (1851) 1 De G.M. & G. 43.
814
Dutfield v Gilbert H. Stephens & Sons (1988) 18 Fam. Law 473, where the client had instructed
her solicitors to obtain a speedy resolution to her divorce proceedings rather than embark on
prolonged legal inquiry.
815
Sill v Thomas (1839) 8 C. & P. 762.
[659]
claim for nuisance at less than £3,000 in value which the claimant subsequently
pursued in his own right and compromised at £25,000.816
9–243 A solicitor has an implied authority to settle an action on behalf of a client. On

the other hand, if the compromise was reached against the client’s express
instructions, the solicitor will be liable to an action for damages for breach of
duty, even though the compromise was pursuant to an advice of counsel.817
‘‘It is within the scope of a solicitor’s authority to compromise and if he uses all due
diligence and acts bona fide and reasonably no action will lie against him; but if he has
been expressly forbidden to compromise, and he does compromise, then, however
beneficial that compromise may be, an action will lie against him for disregarding that
express negative direction.’’818
If a solicitor advises a client not to defend an action, liability in negligence

depends on the same principles.819 On occasion the failure to appeal or cross
appeal a judgment may be negligent, notwithstanding difficulty in estimating
what a superior court hearing a case on appeal will do.820
9–244 It will usually be negligent for a solicitor to make a significant admission in a

client’s defence without express instructions. So, where an action for personal
injuries sustained in a motor accident was brought against someone who put his
defence into the hands of his insurers who, in turn, instructed a solicitor, it was
held that the solicitor had to act in the interests of the lay client. It was not proper
to subordinate the client’s interests to those of the insurance company. Also,
when a defence was delivered, admitting negligent driving without the client’s
instructions, the sole purpose being to give effect to a pooling arrangement
among insurance companies and with the object of saving the insurance company
money, the solicitor was held to be negligent.821
9–245 Even if the client is a slow, reluctant or non-payer of the solicitor’s bills there
is no excuse for failing to provide a proper service in litigation: the solicitor’s
remedy is to apply to come off the record.822 While a solicitor acting for a
claimant is obliged to use all due speed to bring the case promptly on for trial,
that obligation does not require greater speed than would allow the defendant,
with reasonable diligence, also to be ready.823 So far as enforcement of judgment
816
Balamoan v Holden & Co, The Independent, June 15, 1999, CA.
817
Fray v Voules (1859) 1 E. & E. 839; Butler v Knight (1867) L.R. 2 Ex. 109.
818
Farwell J. in Re Newen [1903] 1 Ch.812.
819
Hill v Finney (1865) 4 F. & F. 616.
820
Dible v Morton Fraser Partnership 2001 Fam. L.R. 84, OH (where the allegation was that
solicitors had failed to take appropriate action following a court’s misapplication of a binding
decision in relation to financial provision in divorce proceedings).
821
Groom v Crocker [1939] 1 K.B. 194.
822
F. & G. Reynolds (Whitchurch) v Joseph, The Times, November 6, 1992.
823
The Flower Bowl v Hodges Menswear Ltd, The Times, June 14, 1988.
[660]
SOLICITORS 9–246
is concerned, the duty to proceed with reasonable speed does not extend to
enforcement of a judgment, unless there has been an assumption of responsibility
for that aspect of the case, or sufficient notice of the defendant’s impecuniosity
to make it fair, just and reasonable to extend the duty to cover any loss arising
from the inability of the claimant to enforce.824
Illustrations of liability. A solicitor has been liable in negligence for 9–246

proceeding under a wrong section of a statute825; deliberately allowing time to
run out, without getting any instructions, in consequence of which an action for
damages became statute-barred826; failing to bear in mind the period of
limitation, as a result of which his client did not bring an action for personal
injuries against the defendants within that limitation period827; bringing an action
in a court which had no jurisdiction828; bringing an action, which might have
been taken in the county court, in a superior court without first warning his client
of the possible consequences as to cost829; not informing his client, the assignee
of an insolvent debtor, that he was personally liable for the costs of an action,
unless he obtained the consent of the creditors to bring the action830; not warning
his client that unusual expense might have to be borne by the client himself,
whatever the result of the action831; in advising a client involved in litigation to
accept the other party’s guarantee for costs, without making any inquiry as to the
value of that party’s equity in his house or the extent of his beneficial interest832;
824
Pearson v Sanders Witherspoon [2000] P.N.L.R. 110, CA; also Thomson Snell & Passmore v Rose
[2000] P.N.L.R. 378, CA (no general duty to investigate the proposed defendant’s financial standing
before commencing proceedings).
825
Hart v Frame (1836) 6 Cl. & F. 193.
826
Kitchen v Royal Air Force Association [1958] 1 W.L.R. 563. It is not necessary that an omission
by a solicitor to issue a writ in time be deliberate, since mere oversight to do so will be actionable.
See also Carlton v Fulchers [1997] P.N.L.R.337, CA (solicitor instructed after the limitation period
had expired was not negligent in failing to make application under s.33 of the Limitation Act 1980,
to disapply the relevant period, during such time as he was in negotiation with insurers, although
negligence did arise, once those negotiations had been broken off, in telling his client there was
nothing further that could be done). In Winston Cooper v Smith Llewellyn Partnership [1999]
P.N.L.R. 576, it was held not to be a fresh intervening act, interrupting the chain of causation, for the
claimant’s new solicitors to fail to pursue an application to amend proceedings which the original
solicitors had allowed to become statute-barred; also Hunter v Earnshaw [2001] P.N.L.R. 42 (absence
of instructions no defence to a claim for negligent conduct of proceedings for personal injury where
the injury sustained was a head injury leaving the client with symptoms of short-term memory loss
and lack of concentration: the solicitor should have been far more proactive and, had appropriate
steps been taken, would have been able to remain in touch).
827
Fletcher & Son v Jubb, Booth and Helliwell [1920] 1 K.B. 275, cf. Glew v Krajewski (1976) 120
S.J. 316, CA where, unusually, it was held that the solicitor had not been negligent in failing to serve
the writ within 12 months of the date of its issue, during negotiations with the defendants’ insur-
ers.
828
Williams v Gibbs (1836) 5 A. & E. 208; Cox v Leech (1857) 1 C.B.(N.S.) 617.
829
Lee v Dixon (1863) 3 F. & F. 744. In Barker v Fleetwood Improvement Comrs (1890) 62 L.T. 833,
it was not negligent to bring an action in the Lancaster Palatine Court which might have been brought
in the county court.
830
Allison v Rayner (1827) 7 B. & C. 441.
831
Re Blyth and Fanshawe (1882) 10 Q.B.D. 207; Re Roney & Co [1914] 2 K.B. 529. In these cases
the solicitor was disallowed the items on taxation as between solicitor and client.
832
Martin Boston & Co v Roberts [1995] N.P.C. 28, CA.
[661]
being instructed to defend an action, allowing judgment to go by default of

defence833; having received instructions to act for a tenant who had been served
by his landlord with a notice under the Landlord and Tenant Act 1954 s.25,
failing to take action by serving the necessary counter-notice because of some
internal failure in the office to communicate those verbal instructions to the
appropriate person in the firm834; failing to watch the court list, so that his client
was unrepresented at the hearing835; where counsel was necessary, failing to
instruct counsel836; or, in a criminal case, having instructed counsel, failing to
follow his advice on evidence837; failing to see that the witnesses were at hand,
when they were required at the trial838; failing to take proofs of the witnesses,
before the trial839; where his personal attendance was necessary, failing to attend
at the hearing840; whilst acting for the buyer of property, making no inquiry as to
the standard rent841; making a mistake in the examination of a witness under the
old Chancery practice842; making a mistake in drawing up a decree843; failing to
deliver a pleading844; failing to take steps to set aside an irregular order845; failing
to raise an issue in time to resist an application to strike out.846
9–247 Also: failing to take reasonable steps to ascertain the truth of a statement made
to the court, because of which a wrong order was made847; neglecting to attend
a summons, whereby the master was unable to proceed with an order of
reference848; failing to issue execution849; failing to register a lis pendens850;
bringing an appeal for his own purposes and not in the interests of his client851;
833
Godefroy v Jay (1831) 7 Bing. 413. See also Laib v Aravindan, The Times, November 13, 2003
(proceedings do not conclude with satisfaction of the claimant’s claim and so it is possible, even after
that has occurred, for the defendant to sue his then solicitors for negligence in failing to enter a
defence or counterclaim).
834
Whelton Sinclair v Hyland [1992] 41 E.G. 112, CA.
835
Burgoine v Taylor (1878) 9 Ch.D. 1.
836
R. v Tew (1752) Say. 50; De Roufigny v Peale (1811) 3 Taunt. 484; Hawkins v Harwood (1849)
4 Ex. 503; Townley v Jones (1860) 8 C.B.(N.S.) 289.
837
Acton v Graham Pearce & Co [1997] 3 All E.R. 909.
838
Reece v Rigby (1821) 4 B. & Ald. 202; Price v Bullen (1825) 3 L.J.(O.S.) K.B. 39; Hawkins v
Harwood, above.
839
Manley v Palache (1895) 73 L.T. 98.
840
Swannell v Ellis (1823) 1 Bing. 347; Nash v Swinburne (1841) 3 M. & G. 630.
841
Goody v Baring [1956] 1 W.L.R. 448. ‘‘It is still the duty of a purchaser’s solicitor to make the
appropriate requisitions and inquiries after the formal contract is signed, even if the preliminary
inquiries have been so complete that it is only necessary to ask whether the answers thus received are
still complete and accurate’’ (at 456).
842
Stokes v Trumper (1855) 2 K. & J. 232.
843
Re Bolton (1846) 9 Beav. 272.
844
Re Massey and Carey (1884) 26 Ch.D. 459.
845
Frankland v Cole (1832) 2 Cr. & J. 590.
846
Feakins v Burstow [2006] P.N.L.R. 94 (in the context of a claim against his client by the
Intervention Board for Agricultural Produce for clawback of certain premium payments on sheep, the
solicitor failed to understand and investigate a counterclaim for ‘‘exempt sheep’’).
847
Re Spencer (1870) 30 L.J. Ch. 841.
848
Ridley v Tiplady (1855) 20 Beav. 44.
849
Harrington v Binns (1863) 3 F. & F. 942.
850
Plant v Pearman (1872) 41 L.J.Q.B. 169.
851
Harbin v Masterman [1896] 1 Ch. 351.
[662]
SOLICITORS 9–248
failing to make an application on behalf of an injured child workman for a

review, within six months of attaining his majority852; when, on his being
instructed to draft wills for two clients, man and woman, who wished to confer
benefits on each other, and his being told that they were likely to marry each
other on some indefinite future date, failing to warn them that marriage would
revoke the wills853; allowing a client’s action to be dismissed for want of
prosecution, as a result of the inexcusable delay in bringing the action to trial854;
failing to ascertain his client’s current address, so that she was not informed of
the hearing of her husband’s divorce petition, which she had desired to defend855;
allowing the divorce suit of a client’s husband to go undefended, so that she lost
her right to an award of maintenance for herself and maintenance for her child856;
when acting for the respondent wife in a divorce case which relied on the fact of
separation for five years after a long marriage to the petitioner, a man in
pensionable employment, failing to make an application under the Matrimonial
Causes Act 1973 s.10, in order to protect her financial position before allowing
the decree to be made absolute857; failing to prosecute effectively the legal
proceedings, which had been taken on the client’s instructions with the object of
protecting her against the unwelcome attentions of and molestation by a former
lover858; failing to make representations to the Legal Aid Board why legal aid
should not be withdrawn and to advise their client that an appeal was
available859; having been instructed by a mother in a dispute with a Tunisian
father about custody of children, failing to renew or advise the renewal of an
entry, in relation to the children, on the register of the Passport Agency, which
would have had the effect of preventing the father from applying for a passport
on which the children were named.860
Illustrations of no liability. Solicitors instructed in civil proceedings may not 9–248

communicate to solicitors instructed by the same client in criminal proceedings,
information they have acquired in the course of their retainer, without the
knowledge or approval of their client. So, where the claimant had been convicted
852
Ashton v Philip Conway Thomas & Co (1939) 32 B.W.C.C. 246.
853
Hall v Meyrick [1957] 2 Q.B. 472, CA, in particular per Hodson L.J. at 475.
854
Fitzpatrick v Batger & Co Ltd [1967] 1 W.L.R. 706; Welburn v Mayberry (1971) 115 S.J. 468;
Mainz v James and Charles Dodd (1978) 122 S.J. 645 (it was said that if counsel was slow in dealing
with instructions, in an action which was already stale as a result of delay, other counsel should be
instructed). It is not a defence to an action for negligence, based upon the striking out of a case for
want of prosecution, that a fresh action can be brought against the original tortfeasor and thereby no
damage can be proved to have accrued, where a second action would be precluded by s.2(3) of the
Fatal Accidents Act 1976 and in any event an abuse of process: Croft v Shavin & Co [1997] C.L.Y.
644.
855
D v D [1963] 1 W.L.R. 194.
856
Cook v Swinfen [1967] 1 W.L.R. 457.
857
Griffiths v Dawson & Co [1993] F.L.R. 315.
858
Heywood v Wellers [1976] Q.B. 446.
859
Casey v Hugh James Jones & Jenkins [1999] Lloyd’s Rep. P.N. 115 (but damages were nominal,
since even if an appeal had been made there was no reasonable probability that legal aid would have
been continued and even if it had, the claim enjoyed no realistic prospect of success).
860
Hamilton Jones v David & Snape [2004] P.N.L.R. 381 (the father successfully removed the
children from the jurisdiction: the mother recovered £20,000 for consequential mental distress).
[663]
of fraud and sentenced to a period of imprisonment, and subsequently com-

menced proceedings for damages, based on her loss of liberty, against solicitors
who had represented her in contemporaneous civil proceedings, it was held that
those legal representatives had owed her no duty to inform those representing her
in the criminal case, of doubts or conclusions as to her mental capacity.861
Solicitors were not in breach of duty in failing to advise a school compromising
a claim made against it by the parents of pupils at the school, of the possibility
that the pupils themselves, on attaining their majority, might also sue: the
solicitors were justified in considering that a remote chance, which in any case
it would not be possible to prevent.862
9–249 The rule against re-litigating decided issues between different par-
ties.863 A solicitor facing a civil claim based upon alleged negligence in earlier
criminal proceedings in which the claimant was convicted, may well seek to
defend on the basis that the claim is an abuse of the process of the court, as a
collateral attack upon the final decision of a criminal court of competent
jurisdiction. The rule prohibiting such attacks, as set out by the House of Lords
in Hunter v Chief Constable of the West Midlands Police,864 is of potential
application where civil proceedings follow either earlier criminal or earlier civil
proceedings, but was not intended to apply inflexibly to all cases which might
arguably fall within it.865 It is evident in civil cases particularly, that there may
be occasions when a party may have lacked a proper opportunity to resist a
hostile claim, as where judgment was entered for procedural fault or summary
judgment given. Not all re-litigation will be manifestly unfair, or bring the
administration of justice into disrepute.866 It has been emphasised that the court
has wide powers to strike out a civil claim following earlier civil proceedings
both because there is no real prospect of success,867 or because the re-litigation
causes unfairness to a third party.868 This power will be a sufficient control in
many cases without recourse to the Hunter rule. In cases where the rule does
apply the claimant will have to demonstrate that new and reliable evidence is
available which substantially alters the aspect of the earlier criminal case, as a
861
Marsh v Sofaer [2004] P.N.L.R. 443.
862
Gosfield School Ltd v Birkett Long [2006] P.N.L.R. 19.
863
How to prevent abuse of the procedures of the court by those with access to it, is of general
relevance. In New Zealand have an inherent jurisdiction to make an order for costs personally against
legal representatives in order to maintain appropriate levels of competence and to ensure public
confidence: Harley v McDonald [2001] 2 W.L.R. 1749, PC (but pursuit of a hopeless case was
insufficient to justify any penalty, nor was mistake or error of judgment enough; what was required
was a serious default in the duty owed to the court).
864
[1982] A.C. 529. See also para.9–96, above.
865
See Arthur J.S. Hall & Co v Simons [2002] 1 A.C. 615, particularly the speech of Lord Hoffmann.
He emphasised that the rule was of far more likely application after the final decision in a criminal
case than after final judgment in a civil claim.
866
Arthur J.S. Hall & Co v Simons [2002] 1 A.C. 615 per Lord Hoffmann at 703. See also GNER Ltd
v JLT Corporate Risks Ltd [2006] P.N.L.R. 34, Ch.4, para.4–246, above.
867
See CPR Pt 24.2, which empowers the court to give summary judgment in favour of the defendant
where the claimant has no real prospect of success.
868
The example given by Lord Hoffmann was a negligence claim following upon an earlier
defamation action where, in effect, the claimant was seeking to justify a libel of a third party.
[664]
SOLICITORS 9–250
pre-condition of being permitted to proceed.869 The claimant will also have to

demonstrate why steps were not taken to set aside or challenge the relevant order
or judgment in the original proceedings, for instance by way of appeal.870
ILLUSTRATIONS
Decisions before the House of Lords visited the topic in Arthur J.S. Hall & Co 9–250
v Simons871 have to be approached with care, but the following may at least
illustrate the diverse circumstances which can arise. So, no abuse of process was
found where the claimant mother sought to sue solicitors for alleged dilatoriness
in pursuing a claim for increased contact with her child in care, where it was
possible that prompter action may have permitted rehabilitation to her and
avoided adoption, which was the eventual result after a contested hearing872; nor
where solicitors attempted to strike out the claim of a former client in a
matrimonial cause, who alleged that her consent to an agreed order for ancillary
relief was given as the result of negligent advice: in making the order the judge
would not have examined it in any purposeful way and the claim would not have
been put fully before the court873; nor where the claimant alleged acts of
negligence prior to a hearing of her claim for ancillary relief at which a consent
order was made: in effect she was alleging that the solicitor’s failure properly to
investigate her husband’s financial position meant the court was deprived of
relevant facts so the judge granting the order was unable properly to exercise his
discretion in approving the settlement874; where the civil court could avoid a
rehearing of an earlier criminal case in which the claimant had been convicted by
treating his claim for damages as a claim for loss of the chance that he would not
have been prosecuted, or, if prosecuted, convicted, had the solicitor’s breach of
duty not occurred.875 No collateral attack on an earlier decision arose where the
claimant sued his former solicitors in respect of a failure to understand and
timeously investigate an issue which, in the first proceedings, it was held was
raised at too late a stage: since the issue itself had not been decided in those
proceedings, the action against the solicitors did not involve an attack on the
earlier courts’ decisions.876 It was not appropriate to strike out a claim against the
Citizens Advice Bureau, based upon an alleged settlement by their representative
of an employment tribunal claim without authority, even where the tribunal had
itself refused to reinstate the original claim on the basis that the representative
869
Smith v Linskells, The Times, February 7, 1996, CA (on the evidence it could not be said that the
claimant had been deprived of a full opportunity to contest the criminal charge against him).
870
[2002] 1 A.C. 615, n.71 above. The advocate’s immunity remains in Scotland: see e.g. Wright v
Paton Farrell [2003] P.N.L.R. 410, OH, on appeal, [2007] P.N.L.R. 7, CS (IH) (a claim against
solicitors acting for the claimant in criminal proceedings in which he was convicted of theft and other
offences, the conviction being set aside on appeal).
871
n.865, above. See also the discussion in the judgment of Lord Bingham C.J. at [1999] 3 W.L.R.
873, CA in the same case.
872
See, e.g. R. (L) v Witherspoon [1999] P.N.L.R. 776, CA.
873
B v Miller & Co [1996] 2 F.L.R. 23.
874
Frazer Harris v Scholfield Roberts & Hill [1998] Fam. Law 524, appeal dismissed [1999]
P.N.L.R. 374, CA.
875
Acton v Graham Pearce & Co [1997] 3 All E.R. 909 (the conviction had been quashed).
876
Feakins v Burstow [2006] P.N.L.R. 94, n.846 above.
[665]
had ostensible authority to settle and the claimant had accepted the settlement
terms.877
9–251 In contrast, the rule in Hunter was applied in the context of proceedings before
the solicitor’s disciplinary tribunal, where it was sought to challenge criminal
convictions in the Crown Court for offences involving fraud against the Legal
Aid Fund.878 It was also applied where solicitors initiated interpleader proceed-
ings in relation to a disputed deposit held by them, and then, in a subsequent
negligence action, sought to challenge the interpleader ruling.879 It did involve a
collateral challenge to an earlier decision to bring proceedings in negligence
against a firm of solicitors where the basis of the claim was an interpretation of
a written agreement which had already been rejected by a judge in an earlier
action.880
9–252 Wasted costs. Pursuant to s.51(6) of the Supreme Court Act 1981,881 the
court may disallow, or order any legal or other representative to meet, ‘‘the whole
of any wasted costs or such part of them as may be determined in accordance
with rules of court.’’882 ‘‘Wasted costs’’ are defined as any costs incurred by a
party ‘‘(a) as a result of any improper, unreasonable or negligent act or omission
on the part of any legal or other representative or any employee of such a
representative; or (b) which, in the light of any such act or omission occurring
after they were incurred, the court considers it is unreasonable to expect that
party to pay.’’883
9–253 The wasted costs jurisdiction exists in both civil884 and criminal cases.885 For
a detailed treatment, the practitioner is referred elsewhere.886 In brief, a three-
stage test is to be applied before a wasted costs order is made. The court must
877
Nesbitt v Holt [2007] P.N.L.R. 24, CA, Ch.4, para.4–243, above (it would not be unfair to let the
action proceed, the CAB not having as yet disclosed its file, and the crucial issue, namely authority
to commit the claimant to settlement, not having been tested in the Tribunal process). See Willis and
Park, ‘‘Two bites at the cherry?’’ 147 N.L.J. 761.
878
Re A Solicitor, The Times, March 18, 1996. Lord Taylor of Gosforth C.J. said that it would always
be preferable to seek to have the conviction reviewed.
879
Gribbon v Lutton [2002] 2 W.L.R. 842, CA (the solicitors were not party to the interpleader
proceedings, so no issue estoppel arose, but it was still an abuse of process to attempt to go behind
the result).
880
Laing v Taylor Walton [2008] P.N.L.R. 11, CA.
881
The present s.51 was substituted by s.4 of the Courts and Legal Services Act 1990.
882
See CPR, Pt 48, r.7 and the Practice Direction thereto, formerly RSC Ord.62, r.10. It has been held
that CPR Pt 48, r.7(3) is ultra vires having regard to the fact that legal professional privilege is a
substantive legal right and not merely a rule of evidence: General Mediterranean Holdings SA v Patel
[1999] P.N.L.R. 852 (the court refused to give a direction that solicitors, respondents to an application
for wasted costs, disclose certain privileged documents to the court).
883
Courts and Legal Services Act 1990 s.51(7).
884
See Ridehalgh v Horsfield [1994] Ch.205.
885
Practice Note: Wasted Costs Order (No.1 of 1991) [1992] 3 All E.R. 429. In Re Sternberg Reed
Taylor & Gill, The Times, July 26, 1999, CA (Crim Div) it was said to be both negligent within the
Ridehalgh test and an ‘‘unnecessary or improper act or omission’’ for purposes of reg.3C of the Costs
in Criminal Cases (General) Regulations to take oral instructions from a client standing trial in a
criminal case outside the courtroom and within the hearing of the jury.
886
See, e.g. the notes to Pt 44.14 of the Civil Procedure Rules in the White Book (Sweet and Maxwell,
2010).
[666]
SOLICITORS 9–254
decide whether there has been some improper, unreasonable or negligent act or
omission by the representative it is sought to condemn in costs; whether as a
result unnecessary costs were incurred; and finally, whether in all the circum-
stances it would be just to order the representative to pay those costs or part of
them.887 It has been said that ‘‘improper’’ in this context suggests, but is not
confined to, conduct which would ordinarily involve disbarrment, striking off or
suspension. ‘‘Unreasonable’’ describes conduct which is vexatious or designed to
harass the other party rather than advance the case. ‘‘Negligent’’ is not to be
understood in a technical sense but describes a failure to act with the competence
reasonably to be expected of an ordinary member of the profession and is no less
a test than is applied in deciding whether an action for negligence against a legal
practitioner is made out.888 When considering wasted costs the first step is to
identify the conduct which is improper, unreasonable or negligent, before
assessing the costs wasted by that conduct. Provided the matter is approached in
this way, a broad view may be taken and, for instance, in the context of delay, a
solicitor may be ordered to pay the whole or part of the costs from a particular
date.889
It is not an appropriate or useful exercise to analyse in depth into which 9–254

category conduct which is plainly unacceptable falls. The words ‘‘improper,’’
‘‘unreasonable’’ and ‘‘negligent’’ are not to be regarded as having specific, self-
contained meanings.890 ‘‘Conduct which is unreasonable may also be improper,
and conduct which is negligent will very frequently be (if it is not by definition)
unreasonable.’’ No sharp differentiation between these expressions is useful or
necessary or intended.891 Negligence in the context of wasted costs does not bear
a special meaning, requiring, for instance, an additional element of abuse of
process.892 Where the complaint is pursuit of a hopeless case and there is no
specific indication of negligence the court will no doubt consider whether the
887
CPR 1998 Pt 48, P.D. para.48.7.2.4. It is not negligent for solicitors to rely upon the advice of
counsel properly instructed, provided they also exercise their own independent judgment: Reaveley
v Safeway Stores Plc [1998] P.N.L.R. 526, CA (solicitors relied upon advice from counsel about the
likely quantum of a claim in a case where, in the result, the effect of the Compensation Recovery
Scheme was that the claimant made no gain from the action beyond £2,500 already received by way
of interim payment). Where solicitors have not acted in breach of the Civil Legal Aid (General)
Regulations 1989, the court should not make a wasted costs order based on negligence or
unreasonable conduct where to do so amounts to importing a more rigorous standard than that for
which the Regulations provide: Tate v Hart [1999] P.N.L.R. 787, CA.
888
per Sir Thomas Bingham M.R. in Ridehalgh v Horsfield [1994] Ch.205, 233. It is negligent for a
solicitor’s clerk to take instructions from a defendant in a criminal trial in a corridor of the court
through which the jury hearing his trial might, and indeed, did, pass: R. v Qadi [2000] P.N.L.R. 137,
CA. In Re A (Costs) (1988) 18 Fam. Law 339, the CA held that solicitors who become aware that
counsel instructed by them was not competent to conduct proceedings have a duty to withdraw
instructions from him and ensure that other competent counsel is instructed. See also Locke v
Camberwell Health Authority, The Times, December 11, 1989.
889
Kilroy v Kilroy [1997] P.N.L.R. 66, CA.
890
Dempsey v Johnstone [2004] P.N.L.R. 25, CA (conceding a strike out in the course of a hearing
did not on the facts establish that solicitors’ prior evaluation of the case was negligent).
891
Dempsey v Johnstone [2004] P.N.L.R. 25, CA per Latham L.J. at 34.
892
The need for ‘‘something more than negligence . . . akin to abuse of process’’ was said to be
required in Persaud v Persaud para.9–105, above, but it is suggested that this is to add to this part
of the test an element not contemplated in Ridehalgh v Horsfield, above: see also per Buxton L.J. in
M (A Barrister) Re [2004] P.N.L.R. 722, CA at 729.
[667]
conduct of the litigation has been an abuse of process. But even then the enquiry
will often resolve into whether the legal representative has pursued a claim or
defence which no reasonably competent practitioner could have done.893
9–255 The wasted costs procedure is intended to be a summary one.894 ‘‘Hearings

should be measured in hours, not in days or weeks.’’895 Where such complex
issues arise as to make an application for wasted costs not amenable to summary
disposal, the jurisdiction should not be invoked.896 Having said that, ‘‘it cannot
be right that a legal representative can escape the consequences of the wasted
costs jurisdiction by the mere fact that the litigation in which his conduct is
challenged is complex.’’897
ILLUSTRATIONS
9–256 The commencement of proceedings against a party without having any or due
regard to a basic precondition of that party’s liability is capable of constituting
negligence akin to an abuse of process, so as to expose solicitors to an order for
wasted costs.898 In normal circumstances a solicitor cannot be liable for wasted
costs as a result of conduct before litigation has commenced, particularly if the
conduct is no more than negligent and the solicitor never acts in the litigation
subsequently commenced. The element of breach of a duty to the court is missing
in such cases. But it can be otherwise if the conduct can be classed as
unreasonable or improper and the solicitor does act once litigation is com-
menced.899
9–257 Litigants in person. While as a matter of courtesy and good practice,

professional lawyers should, and frequently do, give litigants in person what
893
See further Morris v Roberts (Inspector of Taxes) [2005] P.N.L.R. 835 at 847, per Lightman J.: ‘‘A
legal representative will also be liable to a wasted costs order if, exercising the objective professional
judgment of a reasonably competent solicitor, he ought reasonably to have appreciated that the
litigation in which he was acting, constituted an abuse of process.’’ (Solicitors were implicated in
conduct designed to frustrate Revenue’s enforcement of court orders against their client).
894
See per Lord Woolf M.R. in Wall v Lefever [1998] 1 F.C.R. 605, 614.
895
per Sir Thomas Bingham M.R. in Ridelhalgh v Horsfield [1994] Ch.205, 238.
896
per Lord Woolf M.R. in Manzanilla Ltd v Corton Property and Investments Ltd, Unreported,
Court of Appeal, April 23, 1997, quoted in Wagstaff v Colls [2003] P.N.L.R. 561, CA at 578.
897
per Peter Gibson L.J. in Medcalf v Mardell [2001] L.L.R. (PN) 146, 159, CA (‘‘remains good
guidance’’ per Ward L.J. in Wagstaff v Colls above, even though the conclusion in Medcalf was
reversed on the merits by the House of Lords at [2003] A.C. 120).
898
The Isaacs Partnership v Umm Al-Jawaby Oil Service Co Ltd [2004] P.N.L.R. 136 (a contract
claim in which solicitors acting for the claimant started proceedings without first obtaining a copy of
the relevant document and continued the action in spite of the defendant’s protestations—correct as
it turned out—that it was not a party to the contract concerned). See also Dempsey v Johnston, n.94,
above.
899
Radford & Co v Charles [2004] P.N.L.R. 452 (solicitors who failed in time to issue an appeal
against the decision of a local authority in a housing case, were not liable for the costs of their former
client and the local authority when, their client having instructed a different firm, his application for
permission to appeal out of time was dismissed).
[668]
SOLICITORS 9–260
assistance they can, consistent with their duty to their own client, it is unlikely
that a failure to do so could amount to conduct justifying an order for wasted
costs. ‘‘In the absence of some duty imposed by law, or direction of the court, a
legal representative’s duty is to his own client, not his client’s opponent.’’900
Liability in acting as an advocate. There is no good reason in principle why 9–258

the liability in negligence of solicitors acting as advocates should be any different
than the liability of barristers. No point of distinction was referred to in the House
of Lords in the leading case,901 where the liability considered in the speeches was
that of the advocate, rather than the member of a particular branch of the legal
profession. Accordingly solicitor advocates are as liable for negligence both in
the course of any hearing conducted by them and in their preparation before as
would be a barrister, and cases in which immunity from suit was granted can no
longer be taken as representing the law.
Duty in non-contentious matters. In non-contentious matters902 the duty of 9–259

a solicitor depends upon the facts, and principally the nature of the transaction
which is being carried out.
Illustrations of liability. A solicitor has been held liable in negligence for not 9–260
explaining to his client the documents which he is being asked to execute and the
consequences to him of so executing them903; when acting for a buyer of
property, not warning him that he was obtaining only a possessory title to the
land904; not explaining the nature and terms of a composition deed to his
client905; not making the usual searches906; by omitting to carry out any
satisfactory independent check to establish that the whole of the land was
included in the registered title, and failing to notice the true extent of the
mortgaged property, on the strength of which inadequate security an advance was
made by the client, a building society907; failing to search the commons register,
set up under the Commons Registration Act 1965, when acting for buyers of
unbuilt vacant land with which he was unfamiliar908; failing to register in time an
estate contract, under the Land Charges Act 1925, so that a third party was able
900
per Carnwath L.J. in Sherman v Fitzhugh Gates [2003] P.N.L.R. 762, CA, quoting Brook L.J. in
Connolly-Martin v Davis [1999] Lloyd’s Rep. P.N. 790, 795, CA.
901
See Arthur J.S. Hall & Sons v Simons [2002] 1 A.C. 615 and paras 9–95 and 9–249, above.
902
See Williams, ‘‘Professional Negligence in Rent Review and Lease Renewal’’, 276 E.G. 146;
Mitchell, ‘‘Ancillary Relief and professional negligence’’ 144 S.J., 756.
903
Stannard v Ulithorne (1834) 10 Bing. 491. But cf. Clark Boyce v Mouat [1994] 1 A.C. 428, PC,
and para.9–265, below.
904
Allen v Clark (1863) 7 L.T. 781.
905
Watts v Hyde (1846) 2 Coll. 368.
906
Cooper v Stephenson (1852) 21 L.J.Q.B. 292. See also Cottingham v Attey Bower & Jones, The
Times, April 19, 2000 (solicitors who failed to seek to obtain copies of building consents which the
seller of property claimed, erroneously, to have obtained); Asiansky Television Plc v Bayer-Rosin
[2003] N.P.C. 137, CA (failure to discover and advise a client of the existence and extent of
compulsory purchase orders over a site which the client wished to acquire and develop).
907
Mercantile Building Society v J.W. Mitchell Dodds & Co [1993] N.P.C. 99, CA.
908
G. & K. Ladenbau (UK) Ltd v Crawley & De Reya [1978] 1 W.L.R. 226.
[669]
to acquire an adverse interest in the property909; not calling for the last receipt for
rent when advising buyer of farming produce which was to be left growing in the
ground910; mistakenly exchanging contracts before he had received the landlord’s
acceptance of the claimant as assignee, despite a clause in the lease which may
well have made him unacceptable911; failing to give notice of new trustees of a
reversionary interest to the trustees of the settlement fund912; failing to give
notice so as to secure priority to his client913; where an option agreement was
expressed to be exercisable ‘‘at a price to be agreed, by notice to the intending
vendors’’, failing, when serving such a notice, to mention a price, as a result of
which the option was held not to have been exercised validly914; failing to inform
his clients that a club which they had formed had been refused registration by the
magistrates’ clerk915; failing to inform his client that a local search showed that
plans of the building which had been erected on land his client had agreed to buy
had not been approved by the local authority916; failing to inform lenders of facts
that would cast doubt upon the accuracy of a valuation of premises, over which
they would hold a first mortgage917; failing to point out to a bank a discrepancy
in an insurance policy taken as part of the security for an overdraft.918
9–261 Also: failing to discover that a public footpath, which was believed by the
vendor to have been abandoned, over land that was being sold at auction, was in
fact registered on the County Definitive Map and to advise the purchaser that
there was an existing public right of way across it919; advising a client that his
interest in real estate was an absolute one, whereas in reality it was entailed, with
the result that no disentailing assurance was executed and, on the client’s death,
the property did not form part of his estate920; when acting for the buyer of
property, failing to discover that the seller had bought from the trustees of his
father’s will and that, himself being one of the trustees, his title was defective921;
failing to advise on the effect of s.64 of the Landlord and Tenant Act 1954 and
that no guarantee could be given that vacant possession would be obtained at any
time for the purposes of the property deal concerned922; serving defective notices
909
Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch.384. But, cf. Stratton v Weston,
Financial Times, April 11, 1990, where it was held that a solicitor’s negligent failure to register his
client’s agreement for a business lease, resulting in the landlord’s receivers obtaining possession, did
not give the client a right of action if the receivers could have sold free of the agreement in any event,
because of their rights under a prior equitable mortgage.
910
Waine v Kempster (1859) 1 F. & F. 695.
911
Transportation Agency v Jenkins (1972) 223 E.G. 1101.
912
Bean v Wade (1885) 2 T.L.R. 157.
913
Stevenson v Rowand (1830) 2 Dow & Cl. 104; Dondaldson v Haldane (1840) 7 Cl. & Fin.
762.
914
Roberts v J.W. Ward & Son (1982) 126 S.J. 120, CA.
915
Ashton v Wainwright [1936] 1 All E.R. 805.
916
Lake v Bushby [1949] 2 All E.R. 964.
917
Mortgage Express v Bowerman & Partners [1995] 2 W.L.R. 607, CA (measure of damages);
[1996] 1 P.N.L.R. 62, CA (liability).
918
County Natwest v Pinsent & Co [1994] Bank L.R. 4 (however the bank’s action failed on
causation, the judge not accepting that it would have acted differently had the security not been
given).
919
Trask v Clark & Sons [1980] C.L.Y. 2588.
920
Otter v Church, Adams, Tatham & Co [1953] Ch. 280.
921
Pilkington v Wood [1953] Ch.770 (negligence was admitted).
922
Rumsey v Owen White & Catlin (1976) 241 E.G. 611.
[670]
SOLICITORS 9–263
under the Landlord and Tenant Act 1954, with the result that on sale of the
premises their client was unable to give vacant possession923; allowing a client,
a prospective buyer of premises, to gain possession and spend money on repairs,
pending execution of the contract, without first warning of the risk that the seller
might change his mind and decide not to proceed with the sale924; when acting
for both parties, failing to take proper instructions from one925 and failing to
advise as to the contents of a contract of sale or to explain the provisions so as
to ensure that they provided adequate protection926; whilst acting for the buyer of
a house unknown to him, accepting instructions from the seller and a competing
buyer, between each of whom there were clear conflicts of interest.927
Further: failing to explain to a client, who was considering taking a lease, the 9–262
meaning of a clause in the proposed lease, which the solicitor knew or ought to
have realised the client did not fully understand928 and failing to alert a client to
the existence, effect and risks involved in unusual clauses in the draft929; failing
to take adequate instructions from a restaurateur about the plans for premises he
proposed to lease and to ensure that the user covenants would permit his aims to
be achieved930; failing to ascertain the expiry date of a planning permission,
carried by land that was being purchased, and to advise that such permission
would lapse shortly after the date of completion if no development had been
begun931; failing to make inquiries of the planning authority that would have
revealed the existence of a conditional planning consent affecting office premises
which rendered them unsuitable for the client’s purposes.932
Also : during negotiations for the purchase of land when a boundary fence was 9–263
moved, failing to press the seller’s solicitors for a full explanation as to the
intrusion onto the land, failing to ask their own clients upon which boundary they
had relied, and failing to inspect the Land Registry site plan933; failing, when
retained to advise in a planning appeal, to draw attention to the prospect of
challenge to a local plan in the six period allowed after notice of its adoption had
been given934; failing to obtain a deposit from a prospective buyer, before
exchanging contracts for the sale of a flat, and failing to warn of the dangers of
exchanging contracts for the purchase of a new house before obtaining an
923
Robins v Meadows & Moran [1991] 2 E.G.L.R. 137.
924
Attard v Samson (1966) 110 S.J. 249.
925
Treloar v Henderson [1968] N.Z.L.R. 1085.
926
Fox v Everingham (1983) 50 A.L.R. 337.
927
Nash v Phillips (1974) 232 E.G. 1219.
928
Sykes v Midland Bank Executor and Trustee Co Ltd [1969] 2 Q.B. 518 (reversed on the question
of damages [1971] 1 Q.B. 113), distinguished in Aslan v Clintons (1984) 134 New L.J. 584. See
Lewis, ‘‘Negligence and the Chance of Inquiry’’ 2 P.N. (1986) 119.
929
County Personnel (Employment Agency) Ltd v Alan R. Pulver & Co [1987] 1 W.L.R. 916.
930
Le Roux v Pictons [1994] E.G.C.S. 168.
931
Raintree v Holmes & Hills (1984) 134 New L.J. 522.
932
G.P. & B. v Bulcraig & Davis (1986) 280 E.G. 356 also, Farragher v Gerber [1994] E.G.C.S. 122
(solicitor failed to make inquiries which would have revealed proposal to build major new highway
outside property to be purchased).
933
McManus Developments Ltd v Barbridge Properties Ltd [1996] P.N.L.R. 431, CA.
934
Motor Crown Petroleum Ltd v Berwin & Co [1998] C.L.Y. 4020, para.9–297, n.1066, below.
[671]
effective contract of sale of the flat being sold to finance the purchase935; failing
to exchange contracts for the sale of a clients’ former house simultaneously with
the exchange of contracts for the purchase of their new one, so that they became
homeless until obliged to buy another less suitable property936; failing to inform
clients that contracts had been exchanged937; sending clients’ cheques, made
payable to the solicitors acting on behalf of builders, in respect of booking
deposits but failing to make it clear that such were to be held by the solicitors as
stakeholders and not as agents for the builders938; forwarding the whole of the
purchase money to the buyer’s solicitors in exchange for the latter’s undertaking
to forward the executed title documents within a reasonable time939; failing to
complete conveyance940; advising a client to complete on the purchase of a house
without first achieving the cancellation of a charge on the property imposed by
the seller’s spouse under the Matrimonial Homes Act 1976941; when acting in the
sale of a farm and subsequent purchase of an agricultural tenancy, failing to
advise that specific performance of the latter was not a foregone conclusion,
when he knew that the agricultural tenant, who was serving a prison sentence,
was challenging the authority of a surveyor to conclude any agreement on his
behalf942; failing to supervise drafting of two parts of a commercial agreement
entrusted to separate departments in the firm and to advise of the resulting
document’s actual effect943; failing to carry out instructions, when acting for the
vendor of land, to obtain an enforceable agreement under which a deposit was
forfeit, should the purchaser fail to complete944; failing to serve a completion
notice, where the vendor was apparently delaying the completion of the transfer
of a farm.945
9–264 Illustrations of no liability. A solicitor was not negligent when he had been
engaged by the managing partner of a business in order to defend an action
against the firm, and kept that partner informed of the progress of the action, but
did not inform the other partners946; when a client, the wife of a licensed
victualler, had lent money to her husband for the purpose of his business and the
solicitor failed to advise the registration of a bill of sale or the necessity of the
935
Morris v Duke-Cohan (1975) 119 S.J. 826; also Law v Cunningham and Co [1993] E.G.C.S. 126
(solicitor failed to identify for his client the risk of an agreement for the sale of property).
936
Buckley v Lane, Herdman & Co [1977] C.L.Y. 3143.
937
Stinchcombe & Cooper v Addison, Cooper, Jessen & Co (1971) 115 S.J. 368.
938
Desmond v Brophy [1985] I.R. 449.
939
In Edward Wong Finance Co v Johnson Stokes & Master [1984] A.C. 1296, the PC held that,
because a conveyancing practice, known as a ‘‘Hong Kong style completion’’, involved a foreseeable
risk of embezzlement by the recipient of the money, it was negligent in the circumstances. It was, of
course, open to the buyers in such a situation to cover themselves by making all reasonable inquiries,
before parting with the money. See Kenny, ‘‘Negligent Conveyancing—‘Hong Kong’ Style?’’ 134
New L.J. 309.
940
Dogma Properties v Gale (1984) 134 New L.J. 453.
941
Holmes v H. Kennard & Son, The Times, November 30, 1984, CA.
942
Warboys v Cartwright [1992] N.P.C. 106.
943
Summit Financial Group Ltd v Slaughter & May, The Times, April 2, 1999.
944
Gribbon v Lutton [2002] Q.B. 902.
945
Williams v Gly Owen & Co [2004] P.N.L.R. 367, CA.
946
Tomlinson v Broadsmith [1896] 1 Q.B. 386.
[672]
SOLICITORS 9–265
transfer of the licence to the wife947; when instructed by an intending mortgagee,

who had instructed valuers to value the proposed security, omitting to call the
client’s attention to the fact that the value, as assessed by the valuers, was
considerably more than the price last paid for the property948; when misled by an
auctioneer’s mistake as to the amount of a tithe.949
Nor was a solicitor negligent: in advising Y that he could safely complete, 9–265
when the owner of the land, having contracted to sell to X, rescinded the contract,
wrongfully as the court subsequently held, and sold to Y950; when acting for a
seller of land, answering a requisition, made by the buyer in accordance with
general conveyancing practice, although, as a result of the answer, the buyer was
able to refuse to complete and recover his deposit951; in failing to advise an
experienced property dealer that he exposed himself to a successful claim for
damages, if subsequently he failed to give vacant possession in accordance with
a clear term in the contract of sale, which he was about to sign952; in failing to
prevent his client, a man with considerable experience in business of buying and
selling leasehold reversions, who knew the significance of rent reviews, from
taking the commercial risk of proceeding without knowledge of the figure under
the rent review of a particular property953; in failing to advise experienced
commercial clients of the VAT implications of payments under a sale and
development agreement,954 in failing to offer unsought advice on the wisdom of
a transaction where the client was in full command of her faculties and
apparently aware of what she was doing955; when acting for the lender and
borrower in a remortgage transaction, failing to inform the lender of the
borrower’s bad record of repayment with a previous lender, where his instruc-
tions from the lender do not require him to report or advise such information956;
when drawing deeds of cohabitation, and subsequently separation, for the
claimant and a man with whom he had agreed to live in a relationship of
‘‘master’’ and ‘‘slave’’.957 There is no invariable duty upon a solicitor to send out
a reminder to a client when a draft will is not signed and returned.958
947
Faithfull v Kesteven (1910) 103 L.T. 56.
948
Scholes v Brook (1891) 63 L.T. 837 (the appeal, 64 L.T. 674, only deals with the valuers’ lia-
bility).
949
Ellis v Sampson (1927) 71 S.J. 621.
950
Bell v Strathern & Blair (1954) 104 L.J. 618.
951
Simmons v Pennington & Son [1955] 1 W.L.R. 183.
952
Aslan v Clintons (1984) 134 New L.J. 584, distinguishing Sykes v Midland Bank Executor &
Trustee Co [1969] 2 Q.B. 518.
953
Forbouys v Gadhavi [1993] N.P.C. 122.
954
Virgin Management Ltd v De Morgan Group Plc [1996] E.G.C.S. 16, CA.
955
956
National Home Loans Corp Plc v Giffen Couch & Archer [1997] 3 All E.R. 808, CA. See also the
cases cited at para.9–267, below.
957
Sutton v Mishcon De Reya [2004] Fam. Law 247.
958
Atkins v Dunn & Baker [2004] W.T.L.R. 477, CA (a draft having been prepared and sent out to
the testator, nothing further was done by the solicitor for some two years, save for a circular letter
which gave information about the solicitor’s move to another practice: the testator died intestate but
the action of the claimant, who would have been entitled to a beneficial interest in the estate had the
will been signed, failed). See ‘‘Professional negligence: wills and inheritance tax’’ S.P.C.L.R. 2004,
8 (Oct) 7.
[673]
9–266 Acting for both sides. There is no general rule of law that a solicitor should
never act for both parties to a transaction where their interests may conflict; he
may do so provided they give their informed consent.959 The potential difficulty
is that a fiduciary relationship960 exists between the solicitor and both his clients,
which, in some instances, can lead to a conflict of duties that cannot be
reconciled. That was the position in Hilton v Barker Booth & Eastwood,961 where
solicitors acted for both vendor and purchaser in a property transaction and failed
to disclose to the vendor that the purchaser had criminal convictions. The
solicitors’ difficulty was that they were under a duty to the purchaser not to
disclose something which they ought to disclose to the vendor. The House of
Lords rejected the solution adopted in the Court of Appeal, that a term should be
implied in the contract between the solicitor and his client, excluding any duty to
disclose that which they were bound in confidentiality to another client to
conceal: ‘‘if a solicitor is unwise enough to undertake irreconcilable duties it is
his own fault, and he cannot use his discomfiture as a reason why his duty to
either client should be taken to have been modified.’’962 The view taken was that
since neither duty had a precedence over the other, the solicitor had to perform
both as best he could, even if that involved performing one duty to the letter of
the obligation and paying compensation for a failure to perform the other.
A fiduciary duty arises where a solicitor acts for both parties to a remortgage
transaction and if a conflict arises, he must cease to act for one party if
permission is not given to disclose otherwise confidential information which
casts doubt upon the correctness of the valuation or the good faith of the bor-
rower.963
9–267 Duty when money is being lent. When a solicitor is acting for a client who
is lending money on security, there is a duty to see that the necessary legal steps
are taken to make the security proper and sufficient in point of form. For
example, the solicitor must make sure that there is no prior incumbrance of which
a client was not aware when entering the transaction.964 However, the solicitor is
959
Clark Boyce v Mouat [1994] 1 A.C. 428, PC, applying the dictum in Boulting v British Association
of Cinematograph Television & Allied Technicians [1963] 2 Q.B. 606. See also Mortgage Express v
Bowerman & Partners [1995] 2 W.L.R. 607, CA (measure of damages); [1996] 1 P.N.L.R. 62, CA
(liability). For the fiduciary duty which arises when a solicitor acts for both sides in a conveyancing
transaction, see Bristol and West B.S. v Mothew [1998] Ch.1, para.1–21, above. See generally, Leech,
‘‘Acting for the insurer and the insured: dual retainers and conflicts of interest’’ (2009) 1 P.N.
231.
960
See further para.9–215, above.
961
[2005] 1 W.L.R. 567, HL per Lord Walker of Gestingthorpe at [29] ‘‘the relationship between a
solicitor and his client is one in which the client reposes trust and confidence in the solicitor. It is a
fiduciary relationship. But not every breach of duty by a fiduciary is a breach of fiduciary duty . . . If
a solicitor is careless in investigating a title or drafting a lease, he may be liable to pay damages for
breach of his professional duty, but that is not a breach of a fiduciary duty of loyalty; it is simply the
breach of a duty to take care.’’
962
Hilton v Barker Booth & Eastwood [2005] 1 W.L.R. 567, HL at [46].
963
Nationwide Building Society v Balmer Radmore [1999] P.N.L.R. 606, para.9–268, n.973,
below.
964
Whiteman v Hawkins (1878) 4 C.P.D. 13.
[674]
SOLICITORS 9–268
not liable for any inadequacy in the value of the security,965 unless instructed to
advise on the value of it and such advice is given.966 Nor is it a breach of duty
towards a lender to fail, in the context of a loan secured upon property owned
jointly by a husband and wife, to obtain written confirmation, signed by the
borrowers’ solicitor either that he acts for both parties to the marriage or has
advised the wife to obtain independent legal advice.967
In Mortgage Express v Bowerman & Partners,968 it was said 969 that if when 9–268
investigating title in the course of a mortgage transaction, ‘‘a solicitor discovers
facts which a reasonably competent solicitor would realise might have a material
bearing on the valuation of the lender’s security or some other ingredient of the
lending decision, then it is his duty to point it out.’’ But the application of this
general principle does depend upon the facts.970 A solicitor is not normally bound
to report to a mortgagee matters going simply to the borrower’s creditworthi-
ness.971 There is an obligation to pass on information obtained in the course of
investigating title or preparing for completion which it should be known may
cause the mortgagee to doubt the correctness of the valuation or the bona fides
of the borrower.972 The starting point will be the solicitor’s instructions and if no
attempt is made to qualify them, they will be taken to have been accepted as they
stand.973 The lender’s own contributory fault will operate to reduce the damages
recoverable, save in those cases where the solicitors are guilty of a breach of
965
Brinsden v Williams [1894] 3 Ch.185; Scholes v Brook (1891) 63 L.T. 837, affirmed 64 L.T. 674;
Howell v Young (1826) 5 B. & C. 259; Stewart v McLean, 1915 S.C. 13. A solicitor, advising trustees,
should advise them as to the rule of the court about the margin of safety between the value of the
property and any sum lent on mortgage; Stokes v Prance [1898] 1 Ch.212.
966
Rae v Meek (1889) 14 App.Cas. 558; Morgan v Blyth [1891] 1 Ch.337.
967
Mercantile Credit Co Ltd v Fenwick, The Times, February 23, 1999, CA.
968
[1996] 1 P.N.L.R. 62, CA (liability); [1995] Q.B. 375 (measure of damages).
969
Sir Thomas Bingham M.R. at 69.
970
Halifax Mortgage Services Ltd v S & S [1998] P.N.L.R. 616. See also Bristol & West Building
Society v May, May & Merrimans [1996] 2 P.N.L.R. 138, National Home Loans Corp Plc v Giffen
Couch & Archer [1998] 1 W.L.R. 207, CA, n.956 above, and Nationwide Building Society v Balmer
Radmore [1999] P.N.L.R. 606. See also Halpern and Peacocke, ‘‘Are solicitors liable for damages
resulting from a fall in the market?’’ 1996 12 P.N.(3) 77; Russell, ‘‘Negligent valuers and
solicitors—what’s the difference?’’ C.&F.L. 1997, 9(4), 99 (dealing in particular with the solicitor’s
duty in relation to secured loans and valuation); Holland, ‘‘Acting in mortgage transactions: the
solicitor’s duty of care’’ 141 S.J. 1048; Clarke, ‘‘A solicitor’s duty to lenders’’ 1997 (9) C.&F.L., 147;
Sprince, ‘‘The liability of solicitors to lenders on borrower default’’ (1998) 1 P.N. 3; Riossi, Haggett
and Pestell, ‘‘Solicitor’s duty to lender’’ 143 S.J. 386.
971
See, e.g. National Home Loans Corp Plc v Giffen Couch & Archer [1998] 1 W.L.R. 207, CA, in
which Bowerman above was distinguished. The basis of the distinction has been criticised: see, e.g.
141 S.J. 695; also Halifax Mortgage Services Ltd v S & S [1998] P.N.L.R. 616 (in which it was
suggested that the judgments in the two leading cases could be reconciled only upon the basis that
each new case has to be considered upon its merits). In Nationwide Building Society v Balmer
Radmore [1999] P.N.L.R. 606, Blackburne J. expressed the view (at 634) that the Bowerman duty ‘‘is
a species of obligation which the court will ordinarily imply or find present where a solicitor acts for
a borrower in a mortgage transaction except . . . where to do so would be inconsistent with the express
terms of the engagement or with the surrounding circumstances of the relationship’’.
972
See the summary of many of the cases referred to above in Nationwide Building Society v Balmer
Radmore [1999] P.N.L.R. 606.
973
Nationwide Building Society v Balmer Radmore [1999] P.N.L.R. 606.
[675]
fiduciary duty in addition to their duty of care, in which event all losses are
recoverable, subject to the duty to mitigate.974
ILLUSTRATIONS
9–269 In accordance with these principles, solicitors have been found negligent
where they: failed to report a ‘‘back to back’’ sale and uplift in price975; failed to
report a sale three months earlier in which the price was significantly less than the
amount being lent in the current transaction976; failed to report ambiguity
surrounding the purchase price and terms of payment977; in a remortgage
transaction, failed to report not simply the price originally paid by the borrower
but the date of his purchase and the reason for mentioning these facts, which
would have cast doubt on the valuation978; failed to report transactions by the
borrower in relation to the property which gave strong evidence of fraud979;
failed to take heed of the direct payment of a deposit which ought to have alerted
them to the suspicious nature of the transaction.980
9–270 A solicitor is liable if advice is given to a client about the value of a security,
without full disclosure of all material facts known. When a solicitor advised a
client to release a security mortgaged to him, representing that a sub-mortgagee
had agreed to release it, but failing to point out the difference between the client’s
position and that of the sub-mortgagee, it was negligent.981 Where a solicitor
failed to tell the claimant widow, his client, about the borrower’s untrustworthi-
ness as regards money matters, which fact not only was known to him but made
the claimant’s loan unwise, it was held that he had been negligent: it was his duty
either to advise the claimant of the material facts or, if he felt this would be in
breach of professional confidence, to advise her to consult another solicitor.982
Likewise, where a solicitor failed to make a bankruptcy search against a
guarantor, when in possession of information about his financial ill health which
the duty of confidentiality prevented being disclosed to the lender.983 Where a
solicitor had proceeded by letting a client sign a contract to purchase a house,
whilst an application for a mortgage was still outstanding, in spite of warning of
the risk that he might lose his deposit, the solicitor was not liable. His duty was
sufficiently discharged by giving his client the warning of the risk, which he then
decided to incur.984
974
See further Ch.5, para.5–45, above.
975
Nationwide Building Society v ATM Abdullah & Co [1999] Lloyd’s Rep. P.N. 616. See also
Nationwide Building Society v JR Jones [1999] Lloyd’s Rep. P.N. 414 (again a ‘‘back to back’’
sale).
976
Nationwide Building Society v Archdeacons [1999] Lloyd’s Rep. P.N. 549.
977
Nationwide Building Society v Vanderpump & Sykes [1999] Lloyd’s Rep. P.N. 422.
978
Nationwide Building Society v Littlestone & Cowan [1999] Lloyd’s Rep. P.N. 625.
979
Nationwide Building Society v Goodwin Harte [1999] Lloyd’s Rep. P.N. 338 (also a breach of
fiduciary duty).
980
Nationwide Building Society v Richard Grosse & Co [1999] Lloyd’s Rep. P.N. 348.
981
Nocton v Ashburton [1914] A.C. 932.
982
Neushul v Mellish and Harkavy (1967) 111 S.J. 399.
983
Omega Trust Co Ltd v Wright Son & Pepper (No.2) [1998] P.N.L.R. 337.
984
Buckland v Mackesy (1968), 112 S.J. 841.
[676]
SOLICITORS 9–273
Taking care of documents. A solicitor is under a duty to take reasonable care 9–271
of all documents provided by a client, and not to disclose any confidential
information which the client has communicated. Breach of this duty will lead to
liability for damage suffered by the client as a result.985 When a will is retained
by solicitors by whom it was drawn, they are under a duty to take reasonable
steps to trace the executor and inform him of the contents of the will following
the death of the testatrix.986 Where a claimant sues his former solicitor for
negligence, he thereby brings the confidential relationship that existed between
them into the public arena and impliedly waives legal professional privilege in
relation to any communication between them, so far as necessary to resolve the
claim.987
Explaining the effect of documents. Where a solicitor is involved in a 9–272

negotiation on behalf of a client, there will usually be a duty to understand the
import of documents upon which the negotiation depends and to correct any
apparent misunderstanding of the client as to the documents’ effect. So where, in
the course of a meeting connected with the acquisition of property, the claimant
made statements which ought to have alerted her solicitor to the fact that she did
not understand the Green Belt procedure and the effect of an option was
dependent upon that procedure being correctly understood, the solicitor was
negligent.988
No duty to advise on business matters. A solicitor is under a duty to advise 9–273

his client on law but not, absent express agreement, on matters of business. There
is no duty to remind a client of the approach of the date for giving notice to
determine a lease989 or, when retained to give general advice to a claimant, who
was contemplating publishing her memoirs, to give advice which would allow
her to avoid incurring a substantial tax liability by organising her affairs
differently.990 While it has been said that a solicitor is under no duty to advise an
apparently competent client about the wisdom of a particular transaction,991 a
distinction has been drawn where it is alleged that the transaction is tainted by
undue influence. So, solicitors were in breach of duty where in advising the
claimant wife in relation to a mortgage transaction for the benefit of a business
in which her husband had a controlling interest, they failed to ensure that she was
985
Weld-Blundell v Stephens [1920] A.C. 956 (action against an accountant for negligently
communicating confidential instructions).
986
Hawkins v Clayton (1988) 78 A.L.R. 69. (In 1970 B made her will, appointing H as sole executor
and leaving him the residue of her estate. The will was held by her solicitors for safe keeping. The
testatrix died in 1975 and her solicitors, being aware of the death, took certain steps in the estate but
did not try to locate H until 1981. By then the main asset of the deceased’s estate, a house, had been
lying empty for many years and had been allowed to fall into serious disrepair).
987
Paragon Finance Plc (formerly National Home Loans Corp Plc) v Freshfields, The Times, March
22, 1999, CA.
988
Clarke v Iliffes Booth Bennett [2004] EWHC 1731 (the claimant recovered only nominal damages
because the court was not satisfied that, had her misunderstanding been corrected, the transaction
would not have proceeded).
989
Yager v Fishman & Co [1944] 1 All E.R. 552.
990
Duchess of Argyll v Beuselinck [1972] 2 Lloyd’s Rep. 172.
991
[677]
acting free of any undue influence from him. If not satisfied that she was acting
of her own free will, they should have declined to act further.992
9–274 It was not incumbent upon solicitors acting for the claimant in the sale of
shares to a limited company, to advise him in respect of the wisdom of the
transaction. An indemnity was provided by the company against any liability that
might arise under a guarantee the claimant had given and from which he could
not secure his release. It was said that the scope of a solicitor’s duty towards his
client, in a case not involving litigation, should reflect the instructions given. The
transaction involved no hidden pitfalls, the claimant was an experienced
businessman, and the possibility that the company might not at some subsequent
time have the means to satisfy the indemnity was a commercial risk of which he
could be expected to be aware.993
9–275 Time-limit for action against negligent solicitor. Although there is con-
current liability upon solicitors in contract and tort,994 for purposes of limitation,
time will not necessarily begin to run in each cause of action at the same moment.
Generally in contract time runs from the date of breach, while in tort from the
date damage is suffered.995 So, where solicitors negligently exchanged contracts
granting an option, the date at which damages fell to be assessed was the date the
cause of action in tort accrued, namely upon the exchange, not when the option
was exercised.996 Where a negligent solicitor fails to bring proceedings within
the limitation period, it has been held that the cause of action accrues once the
relevant period of limitation has expired. It is then that the defendant to the
client’s claim acquires immunity from action and the client suffers measurable
damage, in that the remedy which remains is of very different quality to that
which existed prior to the expiry of limitation.997 In contrast, where a solicitor
gives negligent advice there is no presumption that damage occurs when such
992
Kenyon-Brown v Desmond Banks & Co [2000] P.N.L.R. 266, CA (an earlier mortgage transaction
should have put the solicitors on notice of the possibility of undue influence, and also the fact that
the instant transaction was such as no client could be sensibly advised to undertake); see also Royal
Bank of Scotland Plc v Etridge (No.2) [1998] 4 All E.R. 705, CA.
993
Pickersgill v Riley [2004] P.N.L.R. 606, PC. See Clover and Robson, ‘‘Pickersgill v Riley—The
extent of a solicitor’s duty to advise’’(2004) 3 P.N. 146. See also John Mowlem Construction Plc v
Neil F. Jones & Co [2004] P.N.L.R. 48, CA, para.9–214 above (no duty to advise about insurance
where the client was perfectly able to comprehend its own insurance position); also Powell v Whitman
Breed Abbot & Morgan [2005] P.N.L.R. 1 (liability was established in a claim against a solicitor for
negligent advice in relation to the acquisition by the claimant of a leasehold investment property
using a company nominated by her, rather than by her personally).
994
See para.9–214, above; also, Ch.4, paras 4–150 to 4–160, above.
995
e.g. Lee v Thompson [1989] E.G. 89, CA. See, generally, Ch.4, para.4–150. In Commissioner of
Taxation v Zimmerlie (1989) 91 F.L.R. 81 a solicitor who drafted an agreement for the sale of his
client’s share in a partnership failed negligently to provide for an indemnity in respect of liability for
any amended assessment of tax: damage was identified as loss of the right to indemnity and not the
liability to pay tax, and the client’s remedy was time-barred. Loss of that right occurred when the
client bound herself by a contract which did not contain an indemnity clause but ought to have
contained one.
996
Amerena v Barling [1993] E.G.C.S. 28. Similarly, if a solicitor negligently fails to warn his client
that a lease he proposes to acquire has been extended under the Leasehold Reform Act 1967, time
runs from the date of acquisition, the lease then not having the value assumed, not from the later date
when he elects to exercise a right to buy: Sullivan v Layton Lougher & Co [1995] 49 E.G. 127, CA.
Where damage is ‘‘latent’’ see Ch.4, para.4–219, above.
997
Doundoulakis v Sdrinis & Co [1989] V.R. 791, Sup. Ct of Victoria.
[678]
SOLICITORS 9–276
advice is acted upon: it is a question of fact in each case whether actual damage
has been established and when it occurred.998 So long as actual damage arises, it
matters not that it may be nominal, time runs all the same.999
ILLUSTRATIONS1000
Where a claim could be founded equally in contract and tort, a claimant, who 9–276
failed to obtain a good title to certain land because of his solicitors’ negligence,
could rely on whichever cause of action gave the more favourable position under
a statute of limitations.1001 Where solicitors were in breach of a continuing duty
to register an estate contract up until the time that a third party’s transaction
rendered such registration ineffectual, neither of causes of action in contract or
tort was statute-barred where the third party’s action occurred within six years of
commencement of the proceedings.1002 Where a solicitors’ failure to give proper
advice resulted in the claimant’s entering into a mortgage deed, charging her
property as security for repayment of a loan, it was held that her cause of action
in negligence accrued immediately she signed the deed. It was then that the
damage crystallised, since it was quantifiable and, therefore, actual, irrespective
of whether or not any subsequent demand was made upon her by the mort-
gagor. 1003 Where the claimant, who had been injured in a road accident, lost the
chance to recover his losses, either from the driver or his own insurers, as a result
of breach of their contractual duty by his professional advisers, it was held that
because the measure of damages did not consist of or include damages for
personal injuries, the proviso to s.2(1) of the Limitation Act 19391004 did not
apply to reduce the six-year limitation period to one of three years.1005 Where the
claimant alleged that solicitors were negligent in failing to obtain security of
tenure for her on the conveyance of a house to herself and another person as
tenants in common, her cause of action arose at the time of the conveyance, when
she did not obtain what she wanted, rather than later when a compromise
agreement was reached giving her a tenancy of the first floor.1006
998
D.W. Moore & Co Ltd v Ferrier [1981] 1 W.L.R. 267, CA (where solicitors gave negligent advice
to insurance brokers about the effect of a trade restriction covenant with someone who sought to join
their business and later branched out on his own, damage occurred at the time of executing the
agreements because it was then the claimants received a worthless covenant) applying Forster v
Outred & Co [1982] 1 W.L.R. 86, CA.
999
See Bell v Peter Browne & Co [1990] 2 Q.B. 495. See also, Law Society v Sephton & Co [2006]
2 AC 543, Ch.4, para.4–159, above.
1000
See also the examples at Ch.4, para.4–160, above.
1001
Power v Halley (1978) 88 D.L.R. 381.
1002
Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch.384.
1003
Forster v Outred & Co [1982] 1 W.L.R. 86, applied in D.W. Moore & Co Ltd v Ferrier [1981]
1 W.L.R. 267, CA, above. See Dedman, ‘‘Professional Negligence—A Note on Forster v Outred &
Co’’ 78 L.S.Gaz. 953; Hewitt, ‘‘Professional Negligence: Latent Economic Damage and Limitation’’
81 L.S.Gaz. 3333.
1004
See now the provisions of the Limitation Act 1980, s.11.
1005
Ackbar v C.F. Green & Co Ltd [1975] Q.B. 582, following McGahie v Union of Shop Distributive
and Allied Workers, 1966 S.L.T. 74 ( the professional advisers were insurance brokers, who had failed
to carry out the claimant’s instructions to obtain passenger liability insurance for a lorry, in which he
was injured but the principle should apply equally to actions against negligent solicitors)..
1006
Baker v Ollard & Bentley (1982) 126 S.J. 593, CA (The fact that her loss could not be quantified
until the later date was immaterial). See further, Law Society v Sephton & Co, n.999, above.
[679]
9–277 An action against a negligent solicitor in respect of his failure to prosecute a

claim for personal injuries with due diligence is not itself ‘‘an action . . . where
the damages claimed by the plaintiff . . . consist of or include damages in respect
of personal injuries’’, so as to attract the three-year time-limit laid down by
s.11(1) of the Limitation Act 1980.1007
(C) Causation and Damage
9–278 Generally. In many cases, particularly where a solicitor’s negligence consists

in giving or failing to give proper advice, there will be more than one cause of
the loss that has arisen. There is a distinction between a breach of duty which
merely gives the occasion for loss and one which is the substantial cause of that
loss.1008 The immediate cause of loss will probably be some risk or event which
the claimant alleges ought to have been foreseen and of which he should have
been warned. In deciding whether the solicitor’s breach was the effective cause
of the claimant’s damage in such cases the question is ‘‘whether the particular
loss was within the reasonable scope of the dangers against which it was the
solicitor’s duty to provide protection.’’1009
9–279 Identifying the scope of the duty. The importance of defining the scope of
the duty has already been stated generally.1010 Whether viewed from the
perspective of causation, or from the perspective of remoteness of damage there
must be a proper correlation between a breach of duty and the loss claimed. A
proper emphasis on that correlation so far as claims against professionals are
concerned is not always apparent from some of the cases decided before South
Australia Asset Management Corporation v York Montague Ltd1011 in 1996.
While that group of appeals concerned, inter alia, the approach to causation of
loss in the context of a valuer’s negligence, there were also implications for the
similar exercise that has to be carried out in some cases of negligence by a
solicitor. In particular, in considering the scope of the duty of care a distinction
was drawn between a professional person’s giving of advice and the provision of
information. A correct analysis should therefore include what type of duty was
being undertaken and its scope.
1007
See, e.g. Hopkins v MacKenzie [1995] P.I.Q.R. P43, CA, Ackbar v C.F. Green & Co Ltd,
below.
1008
See Glidewell L.J. in Galoo Ltd v Bright Grahame Murray [1994] 1 W.L.R. 1360, 1370 and
1374–1375.
1009
per Carnwath J. in British Racing Driver’s Club Ltd v Hextall Erskine & Co [1996] 3 All E.R.
667 at 681 (solicitors liable for a reduction in the value of the shares of a company where the
immediate cause of the reduction was the flawed commercial judgment of the directors in approving
the purchase of an interest in a motor retail business, but the solicitors had been negligent in failing
to advise that, because of one director’s interest in the business, prior approval of the transaction had
to be sought from the members of the company, pursuant to s.320 of the Companies Act 1985). See
further para.9–281 below.
1010
See Ch.2, para.2–04, Ch.6, para.6–04, above.
1011
[1997] A.C. 191. Sprince, ‘‘South Australia and solicitors: does the umbrella leak?’’ (2000) 3 P.N.
139; Kinskey, ‘‘SAAMCO 10 years on: causation and scope of duty in professional negligence cases’’
(2006) 2 P.N. 86.
[680]
SOLICITORS 9–281
‘‘Wrong information’’ claims. In SAAMCO the basic principle was 9–280

expressed as follows:
‘‘a person under a duty to take reasonable care to provide information on which
someone else will decide a course of action is, if negligent, not generally regarded as
responsible for all the consequences of that course of action. He is responsible only for
the consequences of the information being wrong.’’1012
By way of example, where solicitors’ were negligent in failing to inform a lender

in a mortgage transaction that they did not have an official search certificate on
which it could rely for title, it was not enough for the claimant to establish that
the transaction would not have proceeded had it been informed of the true
position: in fact the title taken was a good one and the lender’s loss arose because
the borrower did not have the means to meet the instalments due under the
mortgage, and that loss would have arisen in any event.1013 It should be noted that
the distinction between allegations of negligent advice and allegations of failure
to provide information, may not always be apt to cases of solicitors’ negligence,
where, depending upon the facts, a foreseeability test may be preferred.1014
‘‘Bad advice’’ claims. When analysing causation in claims based upon a 9–281
solicitor’s advice there is a difference between claims based on a failure to give
advice at all and those based upon the giving of incorrect advice. In the first the
claimant has to show what advice should have been given and, on a balance of
probability, that with such advice a particular transaction would not have been
entered or, if if it was entered, that it would not have been entered it upon
particular terms. In the second it is enough to prove reliance upon the incorrect
advice. It is not necessary for the claimant also to prove he would not have acted
as he did if proper advice had been given.1015 The measure of loss for bad advice
is likely to depend upon the damage suffered as a result of the inaccuracy of the
advice given, or the failure to give advice. The solicitor is not responsible for all
1012
South Australia Asset Management Corporation v York Montague Ltd [1997] A.C. 191 at 214. As
to the distinction between providing advice and information see further Michael Gerson Investments
Ltd v Haines Watts [2002] P.N.L.R. 761. The distinction has been criticised as a ‘‘false dichotomy’’:
see Jones, (2007) 1 P.N. 55, commenting on Andrews v Barnett Waddingham [2006] P.N.L.R. 24,
CA.
1013
Bristol and West Building Society v Fancy & Jackson [1997] 4 All E.R. 582.
1014
Omega Trust Co Ltd v Wright Son & Pepper (No.2) [1998] P.N.L.R. 337, at 359 (it was a
foreseeable consequence of solicitors’ failure to provide correct information about a guarantor’s
bankruptcy that a loan would be made and subsequently lost). See Peterson v Personal Representa-
tives of Rivlin [2002] Lloyd’s Rep. P.N. 386, CA, where the information/advice distinction was
applied (a property transaction where the solicitor negligently failed to make clear the amount of the
claimant’s potential liability under an indemnity, but only nominal damages could be recovered).
1015
Bristol and West BS v Mothew [1998] Ch.1 (where a solicitor acting for both the sellers and a
building society making a mortgage advance negligently failed to inform the society of a second
charge upon the property, but the defendant argued that even if the true facts had been known the loan
would still have been made). Downs v Chappell [1997] 1 W.L.R. 426, although overruled on a
different point by Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd
[1997] A.C. 254 is an example of the second situation (once the buyer of a business established that
he had relied upon a negligent misrepresentation as to its profitability, it was unnecessary to examine
whether, had true figures been disclosed, he would have proceeded nonetheless). For criticism of the
reasoning in Mothew see O’Sullivan ‘‘Acts, omissions and negligent professionals: confusion over
counterfactuals’’ (2001) 4 P.N. 272.
[681]
the consequences of his bad advice, but only those caused by the inaccuracy. 1016
The loss actually incurred will have to be compared with that which would have
been suffered if the transaction in question had not been entered into and the
element of loss attributable to inaccurate advice identified.
9–282 Measure of damages. The broad and fundamental principle as to damages1017

remains as stated over a century ago by Lord Blackburn, in Livingstone v The
Rawyards Coal Co1018: the measure of damages is ‘‘that sum of money which
will put the party who has been injured, or who has suffered, in the same position
as he would have been in if he had not sustained the wrong for which he is now
getting his compensation or reparation’’.1019 The time at which damages are
ordinarily assessed is the date of breach, but the rule is not invariably applied if,
for instance, assessment at another date more fairly reflects the overriding
compensatory principle.1020 The damages awarded may encompass not merely
pecuniary loss, but also damages for psychiatric injury where that is a foreseeable
result of the solicitor’s breach of duty.1021 Physical inconvenience and distress
may be recovered where foreseeable.1022 But where the negligent solicitor was
not instructed in some transaction which had as its object the provision of
comfort or pleasure for the claimant, or the relief of discomfort, it is unlikely that
damages for emotional distress falling short of a psychiatric illness can be
awarded.1023
1016
See above para.9–278, also the discussion at para.9–327, below. See also Bristol and West BS v
Mothew [1998] Ch.1 and Swindle v Harrison, The Times, April 17, 1997, CA ; also Roker House
Investments Ltd v Saunders [1997] E.G.C.S. 137 (negligent failure by solicitors to advise on the
invalidity of a guarantee given by a lessee). See also Tomlinson and Grant, ‘‘Property finance
negligence and damages after BBL’’ 140 S.J. 654; also Halpern and Peacocke, ‘‘Are solicitors liable
for damages resulting from a fall in the market?’’ (1996) 3 P.N. 77.
1017
See, further, Ch.5, above, generally.
1018
(1880) 5 App.Cas. 25, applied in Dodd Properties v Canterbury City Council [1980] 1 W.L.R.
433.
1019
Livingstone v The Rawyards Coal Co (1880) 5 App.Cas. 25 at 39.
1020
Portman BS v Bevan Ashford [2000] P.N.L.R. 344, CA; also Wapshot v Davies Donovan & Co
[1996] P.N.L.R. 361 (defective leases); Kennedy v K.B. Van Emden [1996] P.N.L.R. P409, CA (per
Nourse L.J.: the mechanistic application of rules such as the diminution in value rule and the rule as
to assessment of damages at the date of breach rather than the day of trial to give way, where
appropriate, to the overriding compensatory principle in Livingstone v Raywards Coal Co). See also
Veitch v Avery [2008] P.N.L.R. 7, CA (where negligent advice was given by a solicitor to consent to
a suspended possession order on a property run as a country house hotel, the date for the assessment
of loss was properly the date upon which the possession order became effective, at which time the
net value of the business was less than the claimants’ equity in it, entitling them only to nominal
damages).
1021
See, e.g. Malyon v Lawrance, Messer & Co [1968] 2 Lloyd’s Rep. 539 (the solicitor’s negligence
extended the claimant’s period of recovery from psychiatric injury after a road traffic accident).
1022
Wapshot v Davies Donovan & Co [1996] P.N.L.R. 361 above (physical discomfort and distress
arising from cramped living conditions).
1023
Hayes v Dodd [1990] 2 All E.R. 815, CA; also Bailey v Bullock [1950] 2 All E.R. 1167 (after a
negligent failure to serve a notice to quit, so that the claimant was unable to gain possession of a
house, the cost of storing furniture, garage expenses and general damages for inconvenience and
discomfort were recovered, although not for annoyance and mental distress); also Channon v Lindley
Johnstone [2002] P.N.L.R. 884, CA, para.9–292, below (no award appropriate for inconvenience and
distress arising from the negligent conduct of matrimonial property proceedings). See also in relation
to mental distress, the cases at para.9–299, below.
[682]
SOLICITORS 9–284
Claims arising from the acquisition of property. In claims against solicitors 9–283
arising from defective investigation of title, or other negligence by which a
property is less valuable to the buyer than it should have been, the starting point
in assessing the measure of the claimants’ loss is usually a diminution of value
test, that is, the difference between the market value of the property in question
and the price paid.1024 Where a client loses the opportunity of acquiring property
at a particular price, the test is usually the difference between the market value
of the property and the price the client had agreed to pay.1025 But these tests are
not invariably applied and will give way, where appropriate, to the overriding
compensatory principle.1026
ILLUSTRATIONS
Where a buyer wished to buy premises for £53,750 but, owing to his solicitors’ 9–284
negligence, they were sold elsewhere, which resulted in the buyer’s eventually
having to pay £92,500 in order to buy the property, then of a market value of
£75,000, it was held that the amount recoverable was restricted to the difference
between £53,750 and £75,000 only.1027 Where a solicitor gave negligent advice
that land his client was buying was free from a restriction to which it was in fact
subject, the measure of damages was the difference between the market value of
the land and the price paid, not the difference in market value with and without
the restriction.1028 When a solicitor negligently failed to detect a flaw in the title
of the seller of land, it was said that the measure of damages was the difference
between the market value at the date of breach had a good title been given and
the market value with a defective title.1029 The buyer was not required to mitigate
his loss by suing the seller on his covenant for title ‘‘in order to protect his
solicitor from his own carelessness’’. The cost of a valuation required by the
buyer’s bankers and interest on an overdraft which remained undischarged
because the property could not be sold were not awarded, as being outside the
contemplation of the parties at the date of breach. Also, where solicitors were
negligent in failing to inform their client, a property development company, of a
defect in the title of a property which it would not otherwise have purchased, the
judge was entitled to take as the measure of loss, the difference in value of the
property with and without the defect.
1024
Piper v Daybell Court-Cooper [1969] 210 E.G. 1047 (solicitor failed to inform his client, the
buyer of a house, of a right of way over the premises in favour of a neighbour); also Wapshot v Davies
Donovan & Co [1996] P.N.L.R. 361, above. But in County Personnel (Employment Agency) Ltd v
Alan Pulver & Co [1987] 1 W.L.R. 916, at 925, Bingham L.J. stressed that the rule was not an
invariable one. See also the summary of Lawrence Collins J. in Greymalkin Ltd v Copleys [2004]
P.N.L.R. 44, CA, n.1030 below, at [72] onwards.
1025
See, e.g. Nash v Phillips (1974) 232 E.G. 1219.
1026
For which see para.9–282, above.
1027
Simpson v Grove Tompkins & Co, The Times, May 17, 1982, CA. See Brandler, 132 New L.J. 807
and Wise, 133 New L.J. 900.
1028
Ford v White [1964] 1 W.L.R. 885; Simple Simon Catering v Binstock Miller & Co (1973) 117
S.J. 529; Dent v Davis Blank Furniss [2001] Lloyd’s Rep. P.N. 534 (diminution in value test applied
where solicitors failed to search the commons register and after their client built a substantial property
on the land acquired, it emerged that part of the land was common land).
1029
Pilkington v Wood [1953] Ch.770.
[683]
9–285 Claims for the cost of carrying out works to the property, and other costs
involved in maintaining it before the defect was discovered, failed, where what
had been done had actually enhanced the property’s value.1030 When, as a result
of their solicitor’s negligence, the claimants lost the protection of the Landlord
and Tenant Act 1954 Pt II, and their lease of garage premises was determined,
they were entitled to recover lost profits for such time as they might reasonably
have been made, but account was not taken of the loss of other of the claimants’
businesses which they had allowed to run down and be sold.1031 Where solicitors
gave negligent advice as to the effect of a sub lease when a commercial property
investment company was contemplating the purchase of office premises, the
appropriate date for assessment of the damages was the date of judgment, by
which time it had been decided in an arbitration that the sub lease in fact operated
as an assignment. The measure of damages was not the difference in value
between the price paid and the value of the premises with vacant possession, but,
given the solicitors knowledge of the purpose of the premises’acquisition, the
reduction in income stream between that actually received and that which would
have been received from another hypothetical property that may have been
acquired had the transcation not taken place.1032
9–286 Where a solicitor negligently failed to advise a buyer that a premium sought
by the seller was unlawful so that, as matter stood at the date of purchase, the
buyer could not herself have effected a transfer of the property at such a
premium, but the law was subsequently changed, it was held inappropriate to
assess damages on the basis of the diminution in value at the date the property
was acquired: by the date of trial the change in the law had restored her to the
position she ought to have been in from the outset.1033
9–287 Other claims arising from the negligent conduct of non-contentious

business. Where solicitors who were advancing a bridging loan to a client who
had mortgaged her home to purchase another property, negligently failed to tell
her that her son’s bank was unwilling to provide a reference, which could mean
he was unable to secure a loan to assist with the purchase, and failed to tell her
that they themselves would profit from the bridging loan transaction, she failed
to recover damages representing the value of the lost equity in her home. In the
absence of fraud she was entitled only to be put in the position she would have
been had the breaches of duty not occurred and in that event she would still have
completed the loan and thereby suffered the same loss.1034
9–288 Where solicitors were guilty of negligent delay in carrying out instructions of
the executrix of a deceased person’s estate and as a result the beneficiaries were
1030
Greymalkin Ltd v Copleys [2004] P.N.L.R. 44, CA.
1031
Matlock Green Garage Ltd v Potter Brooke Taylor & Wildgoose [2000] Lloyd’s Rep. P.N.
935.
1032
Keydon Estates Ltd v Eversheds LLP [2005] P.N.L.R. 817.
1033
Kennedy v K.B. Van Emden & Co [1996] P.N.L.R. P409, CA.
1034
Swindle v Harrison, The Times, April 17, 1997, CA; also Lloyds Bank Plc v Crosse & Crosse
[2001] P.N.L.R. 830, CA (solicitors acting in the purchase of land who failed to draw to their client’s
attention a restrictive covenant were liable only to the extent that the land acquired was less valuable
than it would otherwise have been).
[684]
SOLICITORS 9–290
deprived of rental income from property forming part of the estate, the executrix
was able to recover the loss. She was to be treated in law as the owner of the
property and therefore entitled to recover damages, even though the loss had
actually been sustained by the beneficiaries who would, had the solicitors acted
promptly, have been in receipt of the rental income at an earlier time. The
executrix would have to account to the beneficiaries for such sums as were
recovered.1035
Negligence in the course of a contentious case. Here, the recoverable loss 9–289
will again depend in the first instance on the scope of the solicitor’s duty.
Liability does not extend to all consequences flowing from, for instance, delay in
bringing a case to trial, only those which are strictly referable to the duty to
prosecute an action with reasonable expedition. So where such delay resulted in
a case being heard at a time after the defendant had gone into liquidation and
judgment could not be enforced, the court had to consider when the solicitors
should have become aware of the defendant’s financial difficulties and thereafter
the earliest date that with due diligence the case could have been brought to
trial.1036
Where the allegation is that as a result of a solicitor’s negligence the claimant 9–290
has lost the opportunity to pursue or defend a claim, there is a legal burden to
show that what was lost had value, that is, there was a real and substantial as
opposed to negligible prospect of success. Assuming that burden is discharged,
the court will then have to evaluate the chance that has been lost, by making a
realistic assessment of the prospects of success had the action been fought
out.1037 It is neither necessary nor proper to come to a definitive conclusion about
how the original action would have been decided: the parties are different and the
passage of time means that the evidence cannot be assumed to be in the second
action as it would have been in the first. These principles will apply where, for
instance, a solicitor fails to issue proceedings within the limitation period, or
having issued them, fails to pursue them timeously so that they are struck out: if
the claim enjoyed good prospects of success it may be that no, or only a small,
deduction will be made from the damages recovered to take account of litigation
risk.1038 Should they have been very poor, the claim for damages may fail
altogether, or only a nominal sum be recovered.1039 In assessing prospects of
success following a strike out, the starting point should be the earlier judge’s
conclusion that no fair trial is possible. It is not for the judge assessing those
1035
Chappell v Somers & Blake [2004] Ch.19. See also Westbury v Sampson [2001] 2 F.C.R. 210 (no
causative link was established where a solicitor admitted failure to advise a matrimonial client of the
court’s power to vary a lump sum instalment order, where in light of the changed circumstances, the
paying party could have appealed the original order out of time).
1036
Pearson v Sanders Witherspoon, The Independent, December 6, 1999, CA (where the CA made
deductions from the recoverable claims both for the prospects of success and the chances of ultimate
recovery).
1037
Mount v Baker Austin [1998] P.N.L.R. 493, CA, per Simon Brown LJ at 510.
1038
Kitchen v Royal Air Force Association [1958] 1 W.L.R. 563, per Lord Evershed M.R. at 574.
1039
Kitchen v Royal Air Force Association [1958] 1 W.L.R. 563 and see the cases cited at n.292
below.
[685]
prospects to try issues of which a fair trial was at the earlier stage held impos-
sible.1040
9–291 The prospects of success for a ‘‘lost’’ claim require an analysis of the
contingencies which would have determined its success or failure.1041 The
assessment in favour of a successful claimant should be a generous one, given
that it was the defendant’s negligence which caused loss of the chance of
succeeding in full or fuller measure.1042 As part of the exercise, the court must
decide when the original claim would have been heard, and assess damages as
they would have been assessed at that date.1043 However, the benefits of hindsight
should not be ignored when assessing exactly what the claimant has lost.1044 In
Australia it has been held that where the negligence is in failing to prosecute the
claim with due diligence, so that it is struck out, damages should be assessed as
at the date of dismissal.1045 In some cases it may be appropriate to take into
account the possibility of compromise.1046 Where the claim is for loss of the
chance to settle earlier proceedings on favourable terms, and the court assessing
damages does not hear from the other party to the original dispute, a discount for
uncertainty should be made unless the court is certain or very close to certain as
to what terms of settlement were available.1047 The rate of interest to be awarded
1040
Sharif v Garret & Co [2002] 1 W.L.R. 3118, CA, n.53 below, per Tuckey L.J. at 3125.
1041
Yardley v Coombes (1963) 107 S.J. 575 (two thirds deduction for risks in personal injury claim
with reasonable chances of success); Gregory v Tarlow (1964) 108 S.J. 219 (claimant recovered
three-quarters of the damages it was thought it was likely he would have recovered against his
employers).
1042
Sharif v Garret & Co, n.998, above, per Brown L.J. at 3129.
1043
Charles v Hugh James Jones & Jenkins [2000] P.I.Q.R. P1, CA (in an accident case, if an entirely
new condition manifests itself for the first time after the trial date it may have to be ignored: but if
the condition had appeared before the notional trial date but the prognosis was uncertain the court is
entitled to take it into account).
1044
Dudarec v Andrews [2006] 1 W.L.R. 3002, CA (a claim against solicitors after a personal injuries
action was struck out as a result of their negligence: they alleged that the claimant’s damages would
have been reduced by reason of a failure to have surgery for a condition which was thought to have
been caused by his accident; in fact it subsequently emerged that an operation was not required at all).
See further Evans, ‘‘Lost litigation and later knowledge’’ 2007 P.N. (4), 204. See also Whitehead v
Searle [2009] 1 W.L.R. 549, CA. (After she had commenced proceedings for negligence against a
hospital authority, alleging negligence at and before the birth of her child, who was born suffering
spina bifida, the mother committed suicide. The action was continued by her estate and compromised.
A second action was then commenced on behalf of the estate against its former solicitors, alleging
negligent failure to bring the first case to a successful outcome before the mother’s death, thereby
depriving her estate of damages calculated without reference to her actual life expectancy. The claim
failed: events should not be ignored simply because they had happened after the notional original trial
and were unknowable at that time. The law should not speculate when it knows. There had been no
judgment so nothing upon which the need for finality should bite). See Counsell, ‘‘An unjustified
windfall?’’ 158 N.L.J. 879.
1045
Johnson v Perez (1988) 82 A.L.R. 587; Nikolaou v Papasavas, Phillips & Co (1988) 82 A.L.R.
587.
1046
Dickinson v James Alexander & Co [1993] F.L.R. 521, above; also Harrison v Bloom Camillin
[2001] P.N.L.R. 195 (Neuberger J. applied Mount above, adding that the court should be far readier
to decide whether the claimant would have failed or succeeded on a point of law than on a point of
fact or opinion).
1047
Maden v Clifford Coppock & Carter [2005] P.N.L.R. 112, CA (on the facts, a discount of 20 per
cent to take account of uncertainty was appropriate). See Braithwaite, ‘‘Chance calculation’’ 148 S.J.
838: also generally, Browne-Wilkinson, ‘‘Recent developments in the law of damages’’ 2004 P.N. (3),
152.
[686]
SOLICITORS 9–293
on the amount of damages against a negligent solicitor is that of a judgment

debt.1048
ILLUSTRATIONS
Solicitors were liable to pay damages for the lost chance of success on appeal, 9–292
assessed at one-third when they failed to advise their client of the two-week time-
limit for lodging an appeal following an arbitration1049; and where a solicitor,
who represented a prisoner charged with the crime of robbery, failed to trace and
to have available a witness to support an alibi, the accused, after conviction, was
awarded nominal damages.1050 Where solicitors gave negligent advice as to the
appropriate sum to accept in settlement of a wife’s financial claims against her
husband, the measure of damages was held to be the difference between the
amount she accepted and the value of her proper claim, subject to a one-third
discount for litigation risk.1051 In another matrimonial property case where the
solicitors’ preparation was negligent, the court valued the lost chance of a better
result by discounting by 20 per cent the best result their client could have
achieved.1052 Although a solicitor acting for a wife in matrimonial proceedings
for ancillary relief ought to have foreseen the risk of the husband’s insolvency
and advised in relation to it, her claim in negligence failed where the probability
of some negotiated settlement before the bankruptcy materialised was fan-
ciful.1053 Where a pedestrian’s accident claim failed because solicitors failed to
give the appropriate notice to insurers under the Road Traffic Act 1988, it was not
correct to say that she had lost nothing of value, where both the solicitors
themselves and counsel had advised there were prospects of success.1054
A case study. The difficulties of assessing the prospects of success for 9–293
complex litigation, which has failed as a result of a solicitor’s negligence, can be
seen in Hanif v Middleweeks.1055 The claim had been against insurers who had
declined to indemnify the claimant after a fire. It was struck out for want of
prosecution but not before the insurers had raised three main lines of defence. At
1048
Pinnock v Wilkins & Sons, The Times, January 29, 1990. This is on the basis that the solicitor’s
negligence had prevented the claimant from obtaining a judgment which could have carried with it
interest at such a rate.
1049
Corfield v D.S. Bosher & Co [1992] 1 E.G.L.R. 163.
1050
Scudder v Prothero and Prothero (1966) 110 S.J. 248. This decision was doubted by the HL in
Rondel v Worsley [1969] 1 A.C. 191 at 231, per Lord Reid.
1051
McNamara v Martin Mears & Co (1983) 127 S.J. 69. but cf. also Dickinson v Jones Alexander
& Co, above where no discount was applied for the hazards of litigation. Dickinson was followed in
Sharples v Coole & Haddock (1995) C.L.Y. 1832, CA (where solicitors failed to include an effective
prayer for ancillary relief in a divorce petition, the correct measure of loss was the entitlement
calculated by reference to ss.23–25 of the Matrimonial Causes Act 1973, not an informal agreement
made between the parties without the benefit of legal advice). See also, Browning v Brachers [2005]
EWCA Civ 753 (negligent preparation of a counterclaim based upon breach of a contract for the
purchase of a herd of goats).
1052
Channon v Lindley Johnstone [2002] P.N.L.R. 884, CA.
1053
Burke v Chapman and Chubb [2008] B.P.I.R. 266.
1054
Sharpe v Addison (t/a Addison Lister) [2004] P.N.L.R. 426, CA (the claimant recovered 10 per
cent of the value of her claim, there being a 40 per cent chance that she would recover 75 per cent
of the appropriate damages).
1055
[2000] Lloyd’s Rep. P.N. 920, CA.
[687]
the assessment of damages the judge identified the prospects for each argument
in percentage terms: 25 per cent on the main issue and 80 per cent and 20 per cent
respectively on subsidiary issues. He arrived at an overall chance of success of
25 per cent. The defendants’ appeal succeeded in part. Their primary contention
that mathematically the judge’s findings suggested an overall chance of success
of 12 per cent failed: but the Court of Appeal considered that, having come to a
25 per cent finding on the principal issue, the judge should then have reduced the
overall figure to 20 per cent, to represent the chances on the subsidiary issues. It
is to be hoped that, in cases of complexity, where many factual and legal findings
may have gone one way or the other, a broad brush approach to the overall
prospects of success would find at least as much favour on appeal as arithmetical
assessment: the more complicated the original claim would have been to pursue,
the more difficult for a court subsequently to arrive at a precise estimate of the
result.1056
9–294 There is a significant evidential burden upon solicitors if they wish to show
that in fact litigation which has failed through their negligence was of no value
to their former client.1057 Where claimants sought to recover damages from
solicitors, who negligently allowed an action against insurance brokers for
uninsured losses following a fire to be struck out, they were were not confined
to recovering insurance premiums and legal costs.1058 Where the claimant wished
to sue his former solicitors for their failure to pursue an action for negligence
against a G.P. it was accepted that, given in particular the absence of support for
the case from medical records, the chances of success were properly assessed as
nil.1059 The measure of damages in a claim against solicitors for failing to bring
a libel action within the one year limitation period, should reflect the probability
that the claim, if issued in time, would have been settled on terms which took
account of the publishers impecuniosity and the limited circulation of the
libel.1060
9–295 Loss of a chance. It is important to distinguish between the need to prove

causation, that is, what would have occurred if a solicitor’s duty of care had been
properly performed, and quantum of the resulting damage.1061 The former has to
be proved on a balance of probability. Usually the claimant will be required to
give evidence that he would have acted in a particular way had the duty been
properly discharged. However, in those instances (generally involving the
1056
See e.g., Philips & Co v Whatley [2007] P.N.L.R. 27, PC where three different courts arrived at
three different assessments of the claimant’s chances of successfully recovering compensation after
a solicitor’s negligence caused a personal injury claim to be lost, where there was an issue whether
the claimant’s employers’ insurers would have met the claim, due notice of it not having been given).
It was said (per Lord Mance at [31] that in reckoning the chance of the insurers paying, the correct
approach was to determine the prospects of a reputable insurer relying upon the breach of policy to
repudiate liability, as to which the nature of the insured’s breach of obligation and its effect upon the
insurer’s ability to handle the claim were particularly relevant.
1057
Mount v Barker Austin [1998] P.N.L.R. 493, CA where, at 510, Simon Brown L.J. summarises
the relevant principles.
1058
Sharif v Garret & Co, n.1042 above
1059
Hatswell v Goldbergs [2002] Lloyd’s Rep. P.N. 359.
1060
Brinn v Russell Jones & Walker [2003] P.N.L.R. 336.
1061
For which see above, para.9–282.
[688]
SOLICITORS 9–296
negligent conduct of non contentious business) where a claim of loss involves the
hypothetical actions not simply of the claimant, but also of a third party, it is not
necessary that the claimant prove that the third party would probably have acted
in a certain way: it suffices if it is shown that there was a substantial, rather than
a speculative, chance that the third party would so have acted. Thereafter, the
assessment of the value of that chance is a matter of quantification of dam-
age.1062
There is an obvious tension between the basic rule that the claimant has to 9–296
prove on the balance of probabilities that the loss he claims has been suffered,
and those instances where, being unable to establish that the full loss would have
been suffered, he seeks to recover a percentage of that loss. At all times, however,
the questions remain what damage the claimant has suffered, what damage the
claimant seeks, and whether it can be established that the damage was caused by
the defendant’s breach of duty. Observations to this effect were made in a claim
which arose after the defendant solicitors acted for the claimant in a tender for
shares in a company, offered for sale under the Russian government’s privatisa-
tion programme. A Russian court held the tender invalid for a number of
technical reasons and it was alleged that the solicitors’ failure to give proper
advice contributed to that result. An issue arose whether the claimant was entitled
to recover for loss of the chance that, had the tender been valid, the transaction
would have succeeded. It was argued that the claimant should recover nothing
because, on a balance of probability, a successful challenge to the transaction
would have occurred in any event and at very least, the claimant could not
establish the converse. This argument was rejected. The claim was rightly for
loss of a chance bearing in mind first, that what the defendants had been
contractually bound to supply, but did not, was the chance that the share
transaction would not be defeated; and secondly, even that chance was dependant
on the hypothetical acts of third parties in relation to the tender. But the value of
the chance of success in the transaction could be put at no higher than 40 per cent
and the damages were reduced accordingly.1063
1062
Allied Maples Group Ltd v Simmons & Simmons [1995] 1 W.L.R. 1602, CA. See Reid, ‘‘The
hypothetical outcome in professional negligence claims’’ (2001) 2 P.N. 129. See also Boateng v
Hughmans [2002] P.N.L.R. 864, CA (the claimant’s action failed because, having established that
solicitors were negligent in failing to give advice, he was unable, in the context of a complex property
transaction, to prove what he would have done had he been properly advised); Clare v Buckle
Mellows [2005] EWCA Civ 1611 (a claim that solicitors were negligent in failing to advise the
claimant to effect an immediate dissolution of a partnership to avoid or limit her future liability for
its debts, and that she had thereby suffered additional loss as a result of having to enter an individual
voluntary agreement (IVA) with creditors, failed, on a finding that even if the partnership had been
dissolved earlier, the outcome would have been the same).
1063
Normans Bay Ltd v Coudert Brothers, The Times, March 24, 2004, CA (the defendants’ sought
to rely upon their own separate breach of duty, not sued upon, in failing to seek anti-monopoly
permission, as something which would have caused the claimant’s plan to fail in any event: this was
rejected and the view expressed that a person should not be able to take advantage of his own wrong
to reduce the damages that would otherwise flow from his negligence. See generally Evans, ‘‘Lies,
damn lies, and the loss of a chance’’ (2006) 2 P.N. 99 ; Neuberger, ‘‘Loss of a chance and causation’’
(2009) 1 P.N. 206.
[689]
ILLUSTRATIONS
9–297 It was not appropriate to discount 10 per cent from an award of damages
where, as a result of a solicitor’s failure to give proper advice, a client was
deprived of the opportunity to disentail certain property before his death: the
claim was made out as a matter of causation once it was proved that as a result
of the negligence, the estate was not disentailed and, no third party being
involved, it was unnecessary to take into account the chance that had proper
advice been given the deceased would have not have acted on it.1064 Where
solicitors’ negligence caused the claimant to lose the opportunity of a sale of
property before a restrictive covenant was registered, the court assessed the
chance that a sale would have been achieved before registration at 60 per cent
and damages—being the price the seller lost the chance of achieving—were
reduced by 40 per cent accordingly.1065 Where solicitors were negligent in failing
to challenge a planning notation within the correct time, the claimant recovered
lost profits on the basis of a 40 per cent chance that such a challenge, if made,
would have been successful and a petrol station would have been erected on the
site.1066
9–298 In Dixon v Clement Jones Solicitors,1067 the Court of Appeal had to consider
a case where solicitors had negligently conducted a professional negligence
claim against accountants, so that the claim was struck out for failure to serve
particulars of claim. It was contended on behalf of the solicitors, that in the claim
against themselves, the claimant had to prove on balance of probability, that the
accountants’ negligent advice made a difference, that is, that had it been
otherwise the claimant would not have continued with a business project which
she contemplated. The submission failed. The court had simply to consider the
value of the chance which had been lost. In approaching that task, it was not
necessary to conduct a trial within the trial to determine whether the claimant
would have been successful in the original case. There was no requirement on the
claimant to prove in her claim against the solicitors that she would not have
proceeded with the business transaction had the accountants’ advice been oth-
erwise.
9–299 Mental distress. In contentious cases the damages recoverable for a solici-
tor’s breach of duty may include compensation for distress, as where a solicitor
negligently failed to secure a non-molestation injunction.1068 Loss of reputation,
1064
Otter v Church, Adams, Tatham & Co [1953] Ch. 280, but note the criticism in Sykes v Midland
Bank Executor and Trustee Co Ltd [1970] 1 Q.B. 113 at 130, as supported by Stuart-Smith L.J. in
Allied Maples Group Ltd v Simmons & Simmons, above, at 917.
1065
Hartle v Laceys [1997] C.L.Y. 3839, CA. See also First Interstate Bank of California v Cohen
Arnold [1996] 1 P.N.L.R. 17, CA and para.9–48 above (negligent misstatement by an accountant of
a guarantor’s financial worth).
1066
Motor Crown Petroleum Ltd v Berwin & Co [1998] C.L.Y. 4020, para.9–263, n.934 above; appeal
dismissed [2000] Lloyd’s Rep. P.N. 438, CA.
1067
[2005] P.N.L.R. 93, CA.
1068
Heywood v Wellers [1976] Q.B. 446, applying Jarvis v Swans Tours Ltd [1973] Q.B. 233 and
Jackson v Horizon Holidays Ltd [1975] 1 W.L.R. 1468 and see Ichard v Frangoulis [1977] 1 W.L.R.
556. See Marsh, ‘‘Mental distress: should lawyers pay more for their mistakes?’’ 140 S.J. 848.
[690]
SOLICITORS 9–301
which increased the claimant’s mental distress, was taken into account in
awarding damages against a solicitor whose negligence led to a wrongful
conviction of assault.1069 While compensation will not be given for mere
disappointment at a solicitor’s breach of contract, a distinction can be drawn
when breach of the duty of care causes foreseeable physical discomfort and
distress.1070 Damages for mental distress were recovered where a solicitor gave
negligent advice in the course of divorce proceedings, such distress being a direct
and foreseeable result of the breach of duty.1071 The court declined to discount
from the sum awarded for the hazards of litigation. And where the solicitor’s
negligence consisted in failing to apply for adjournment of bankruptcy proceed-
ings, damages for distress arising from the stigma of bankruptcy were awarded:
a deduction was made to take account of the possibility that had an adjournment
been applied for, it would have been refused.1072 The claimant may recover
compensation for a deterioration in a nervous condition over years of
delay.1073
Payment made in settlement of negligence action. A payment made by a 9–300

solicitor and accepted in ‘‘full and final’’ settlement of a negligence claim,
brought against him by a client over a house sale transaction, protected him
against subsequent contribution proceedings brought by the client upon her being
sued by the dissatisfied buyer.1074
Contractual client has no duty to mitigate. Where a solicitor’s liability lies 9–301
in contract, rather than in tort, there is no duty on the client to mitigate his loss,
because the degree of foreseeability is higher, both parties having participated.
Accordingly, where a buyer of property had refused to abandon his original
intention of making substantial improvements to it, after he had become aware of
a defect in title, it was held that, since he was not in breach of any duty to
mitigate his loss, he was entitled to the full measure of damages.1075
1069
McLeish v Amoo-Gottfried & Co, The Times, October 13, 1993.
1070
Wapshot v Davis Donovan & Co [1996] 2 P.N.L.R. 361 CA (a young couple who would have to
start a family in the cramped condition of a flat to which, as a result of a solicitor’s negligence, they
had no valid leasehold title, recovered damages for the distress arising thereby).
1071
Dickinson v Jones Alexander & Co [1993] 2 F.L.R. 521 (damages under this head assessed at
£5,000, but cf. also McAnarney v Hanrahan [1993] 3 I.R. 492, where it was held that distress ‘‘could
not be measured meaningfully’’); also Hamilton Jones v David & Snape [2004] 1 W.L.R. 923
(£20,000 awarded for distress where a mother’s children, which had been the subject of a custody
dispute, were successfully removed from the jurisdiction by the father, as a result of a solicitor’s
negligence in failing to renew an entry in the records of the Passport Agency).
1072
Rey v Graham & Oldham [2000] B.P.I.R. 354.
1073
Malyon v Lawrence Messer & Co (1968) 112 S.J. 623.
1074
O’Boyle v Leiper, The Times, January 26, 1990. The solicitor was not liable for further pecuniary
loss suffered by the client after the settlement, when the buyers of the property sued for losses arising
from failure to complete the sale in time.
1075
King v Hawkins & Co, The Times, January 28, 1982 (the solicitors were well aware of the
claimant’s plans to modernise and extend a derelict cottage in the country, which he had purchased
in order to convert it into a substantial family dwelling). See further Evans, ‘‘Solicitors’ negligence
and mitigation of loss’’ (2001) 2 P.N. 93.
[691]
15.—STOCKBROKERS
9–302 General liability of stockbrokers. A stockbroker’s duty to a customer lies

primarily in contract1076 and stockbrokers are liable for failing to use that skill
and diligence which a reasonably competent and careful stockbroker would
exercise.1077 The stockbroker’s duty includes that of ascertaining with reasonable
accuracy facts relating to any particular transaction, and transmitting them to the
customer. If the latter suffers loss by the stockbroker’s breach of duty, it matters
not whether the stockbroker acted innocently or fraudulently.1078 No duty was
owed to a customer who had inquired only about the current market price of
shares, to tell him that the shares in question were in primary distribution.1079 A
stockbroker was liable where, having been instructed to sell shares at a time
when there was a market for them, he failed to do so. The measure of damages
was the named price of the shares, less commission and taxes, the broker keeping
the shares, which he had not been able to sell.1080 Where stockbrokers relied upon
informal arrangements with the market maker and casual exchanges of informa-
tion with other dealers as a means of monitoring the performance of a bond, they
were negligent not to have in place adequate market monitoring systems.1081
9–303 As with other professionals a stockbroker owes a duty to his customer in tort
as well as contract. He can be liable to a third party with whom he has no
contractual relationship, if, without a clear disclaimer of responsibility he
negligently gives advice or material information on request to such a person, and
has reason to believe that it will be acted upon. The mere fact of losses having
been made on the commodities market cannot themselves provide evidence of
negligence on the part of a broker, since the doctrine of res ipsa loquitur does not
apply.1082
16.—VALUERS, ESTATE AGENTS AND SURVEYORS
9–304 The duty of care. As with, say, architects, the basis of the duty owed to a
client by valuers, estate agents and surveyors is their contract.1083 But they also
owe a duty of care in tort1084 and, in appropriate circumstances, that duty will
1076
See Jarvis v Moy, Davies, Smith, Vandervell & Co [1936] 1 K.B. 399.
1077
Glennie v McD. & C. Holdings Ltd [1935] 2 D.L.R. 561.
1078
Central B.C. Planers Ltd v Hocker (1970) 72 W.W.R. 561.
1079
Laskin v Bache & Co Inc (1972) 23 D.L.R. (3d) 385.
1080
Pankhurst v Gardner & Co (1960) 25 D.L.R. (2d) 515.
1081
Voisin v Matheson Securities (CI) Ltd (1999–2000) 2 I.T.E.L.R. 907, CA (Jer).
1082
In Merrill Lynch Futures Inc v York House Trading, The Times, May 24, 1984, the view was
expressed that compelling evidence from expert brokers in relation to individual transactions would
be necessary if negligence was to be made out.
1083
See Williams, ‘‘Professional Negligence in Rent Review and Lease Renewal’’, 276 E.G. 146. See
also Platform Funding Ltd v Bank of Scotland Plc [2009] 2 W.L.R. 1016, CA (valuer liable for
shortfall on a loan secured on property, where he was misled into valuing the wrong property: his
contractual obligation was unqualified to value the address given in his instructions).
1084
See Smith v Eric S. Bush; Harris v Wyre Forest Urban District Council [1990] 1 A.C. 831 at 870,
per Lord Jauncey.
[692]
VALUERS, ESTATE AGENTS AND SURVEYORS 9–307
extend to third parties.1085 This last is an area of the subject where there has been
much development in recent years.
The essence of a third party claim will usually be bad advice. The principle in 9–305
Hedley Byrne & Co Ltd v Heller & Partners Ltd,1086 as subsequently elaborated,
will impose liability where there is reasonable foreseeability of damage, a
relationship characterised in law as sufficiently proximate and where it is
regarded as fair, just and reasonable that a duty of care should arise. An
assumption of responsibility for the accuracy of advice may also suffice. So far
as proximity is concerned, one crucial test is reliance: did the defendant know, or
ought he to have known, that his advice would be relied upon, not simply by his
client, but also by the claimant third party?1087 If knowledge of reliance is
proved, and in the absence of any clear and effective disclaimer of responsibility,
liability will attach should a third party suffer loss and damage.1088
So where surveyors negligently represented the value of a dwelling-house in 9–306

a mortgage valuation prepared for a building society, and the prospective buyer
in reliance upon the statement of its value, decided to buy the house and thereby
suffered damage, the surveyors were liable to him even though there was no
direct contractual nexus. A duty of care arose because it was in the reasonable
contemplation of the defendants that carelessness on their part in valuation might
be liable to cause damage to the buyer.1089
In the leading case1090 the House of Lords was concerned to stress the limits 9–307
of the duty of care as much as its application. It was unlikely to extend to
subsequent buyers and would rarely extend beyond the person for whose
purposes it was given. Per Lord Jauncey:
‘‘I would certainly wish to stress that in cases where the advice has not been given for
the specific purpose of the recipient acting upon it, it should only be in cases where the
adviser knows that there is a high degree of probability that some other identifiable
person will act upon the advice that a duty of care should be imposed. It would impose
an intolerable burden upon those who give advice in a professional or commercial
1085
See the discussion at paras 9–13, et seq., above.
1086
[1964] A.C. 465.
1087
per Lord Griffiths in Smith v Eric S. Bush [1990] 1 A.C. 831, at 865. See also James McNaughton
Paper Group Ltd v Hicks Anderson & Co [1991] 2 W.L.R. 641. But for a case (in relation to
solicitors) where the element of reliance was absent, see White v Jones [1995] 2 A.C. 207,
para.9–220, above.
1088
See para.9–311, below.
1089
Yianni v Edwin Evans & Sons [1982] Q.B. 438, approved by the HL in Smith v Bush, above. See
also Civic Structures v Clark Quinney & Co (1991) 47 E.G. 97, (a letter from an estate agent passing
on to a prospective buyer information gained informally about the anticipated yield of the property
was not to be regarded as giving such advice on yield as to give rise to a duty of care); Merrett v Babb
[2001] Q.B. 1174 (valuer employed by a firm surveyors personally liable to mortgagor, where he
knew that his valuation for mortgage purposes would be relied upon and he signed it in his personal
capacity). See Murdoch, ‘‘Negligent advice: whose duty is it?’’ (2001) 2 P.N. 123.
1090
Smith v Eric S. Bush [1990] 1 A.C. 831, above. See also First National Commercial Bank Plc v
Andrew S. Taylor (Commercial) Ltd [1995] E.G.C.S. 200.
[693]
context if they were to owe a duty not only to those to whom they give the advice but
to any other person who might choose to act upon it.’’1091
9–308 The vital element is proximity and if the claimant is unable to establish it no
duty of care will be imposed. This was the problem in Reeman v Department of
Transport1092 where, in the context of a claim based upon the negligence of a
surveyor employed by the defendant, Lord Bingham identified three conditions
which, apart from any other considerations relevant to the test in Caparo,1093 had
to be met before a claim for financial loss arising from negligent misstatement
could be established:
‘‘The statement (whether in the form of advice, an expression of opinion, a certificate
or a factual statement) must be plaintiff-specific: that is, it must be given to the actual
plaintiff or to an actual group, identifiable at the time the statement is made, to which
the plaintiff belongs. Secondly, the statement must be purpose-specific: the statement
must be made for the very purpose for which the actual plaintiff has used it. Thirdly, and
perhaps overlapping with the second condition, the statement must be transaction-
specific: the statement must be made with reference to the very transaction into which
the plaintiff has entered in reliance on it.’’1094
To compound his difficulty the claimant also failed on the facts to persuade the
Court that it would be fair, just and reasonable to impose a duty of care.1095
ILLUSTRATIONS
9–309 Estate agents acting in the capacity of the mortgagees’ selling agents owed a
duty of care to the mortgagor, a property developer, and were in breach of that
duty in failing to prepare and distribute particulars of the property as well as
advising upon its market value at a time when this was difficult to assess with
precision.1096 However, a marine surveyor did not owe a duty of care to a
potential buyer where he had carried out a routine survey of a ship for Lloyd’s,
even though it was foreseeable that the latter buyer would rely on the report:
Lloyd’s are usually concerned with safety matters and not the protection of
buyers, in the absence of factors giving rise to any sufficient proximity of
1091
[1990] 1 A.C. 831, at 865. In SecureAd Residential Funding Plc v Nationwide Building Society
[1997] E.G.C.S. 138 a valuer who prepared a mortgage valuation report did not owe any duty of care
in relation to it to a lender of whose existence he was unaware (unknown to the valuer there were
contractual arrangements between the apparent lender and the real one, by which the former was
processing mortgage applications as agent for the latter). See Lawson, ‘‘Liability on a valuation’’ 141
S.J. 1108 and Coates and Evans-Tovey, ‘‘Duty of care of professional advisers’’ 142 S.J. 60.
1092
[1997] P.N.L.R. 618, CA. A certificate had been granted indicating a vessel’s compliance with
regulations concerning seaworthiness, but the surveyor issuing it made an error in calculating the
vessel’s stability.
1093
Caparo Industries Plc v Dickman [1990] 2 A.C. 605.
1094
Caparo Industries Plc v Dickman [1990] 2 A.C. 605 at 639.
1095
The case was analogous to Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] 1 A.C. 211,
para.9–55, n.187, above.
1096
Garland v Ralph Pay & Ransom (1983) E.G. 106. But see Huish v Ellis [1995] N.P.C. 3, where
it was held that in giving advice to a mortgagee in relation to the value of property being sold under
a power of sale, an estate agent owed no duty of care to the mortgagor. A mortgagee exercising such
a power owed a duty to the mortgagor to obtain a reasonable price and it was not necessary to impose
upon the estate agent the further duty suggested.
[694]
relationship.1097 Nor was a duty of care owed by valuers to mortgagees where

borrowers executed a first legal charge on the relevant property in favour of one
company but the charge was then assigned and the relevant funds provided by the
mortgagees: the moment the loan was made, that is, when the first legal charge
was executed, the liability of the valuers crystallised in favour of the person
making the loan and their potential liability to any other party ceased.1098
Where receivers of a company entitled to exercise a power of sale over 9–310

properties owned by the claimant, appointed valuers to manage the sale, no duty
of care was owed by the valuers to the claimant in relation to the price obtained.
Any such duty would be limited by the scope of their instructions from the
receivers, they had not assumed any responsibility towards the claimant and, in
any event, the claimant had possible remedies against the receivers and the
company for whom they acted in respect of any negligent undervaluation. In all
these circumstances it was not fair, just, or reasonable to impose a duty of care
on the defendants.1099 A duty of care in making a valuation was not owed by a
commercial surveyor advising a bank lending money to assist the purchase of
property for development, to the developer: there was no established practice of
passing valuation reports to the borrower in such cases and it was not foreseeable
that the reliance would have been placed upon the surveyor’s valuation.1100
Disclaimer. If a disclaimer is relied upon the Unfair Contract Terms Act will 9–311
apply,1101 and it will be ineffective by virtue of s.2(2) unless it satisfies the test
of reasonableness under s.11(3). Where the services of the valuer are paid for by
the buyer it will not usually be fair or reasonable to allow liability to be excluded,
whether the valuer acted as independent contractor,1102 or as employee of a local
authority.1103 A building society may well not be liable for a valuer’s negligence
where its general conditions indicate that it assumes no responsibility for the
accuracy of the valuation.1104 A disclaimer in sales particulars was sufficient to
negative proximity in McCullagh v Lane Fox & Partners Ltd,1105 and it was not
regarded as unreasonable for the defendant to rely upon it for purposes of the
1977 Act. The disclaimer also prevailed in Omega Trust Co Ltd v Wright Son &
Pepper,1106 the Court of Appeal saying that it was not unreasonable to rely upon
it in a commercial context, where the parties were well able to look after
1097
Mariola Marine Corp v Lloyd’s Register of Shipping, The Morning Watch [1990] 1 Lloyd’s Rep.
54, distinguishing Smith v Eric S. Bush [1990] A.C. 831.
1098
Barex Brokers Ltd v Morris Dean & Co [1999] P.N.L.R. 344, CA.
1099
Raja v Austin Gray [2003] E.G. 117, CA. See ‘‘Valuer’s duty of care’’ 2002 P.L.C. (10) 76.
1100
Wilson v D.M. Hall & Sons [2005] P.N.L.R. 22, OH.
1101
See Smith v Eric S. Bush, [1990] A.C. 831 above, also Cann v Willson (1889) 39 Ch. D. 39.
1102
As in Smith v Bush, above.
1103
As in Harris v Wyre Forest Urban District Council, above n.1084.
1104
Tipton & Closeley Building Society v Collins [1994] E.G.C.S. 120, CA.
1105
[1996] 2 P.N.L.R. 205, CA.
1106
[1997] P.N.L.R. 424, CA. See also The Governor and Company of the Bank of Scotland v Fuller
Peiser [2002] P.N.L.R. 289, OH (in the context of negligent valuation by a surveyor, a disclaimer
limiting liability to the surveyor’s client was effective to protect the defendant and it was not
unreasonable to allow reliance upon it for purposes of the Unfair Contract Terms Act where the
pursuers were a large commercial banking entity and the transaction was entirely commercial in
nature).
[695]
themselves and that valuers were entitled to know to whom their valuation may
be shown (without their knowledge it had been disclosed to the lending bank).
But it is always a matter of construction whether the disclaimer provides the
defendant with a defence and it was insufficient where the defendant’s knowl-
edge of a third party’s reliance on his statements as to the resale value of
property, in circumstances where he knew the third party was not taking
independent advice, was sufficient to bring into existence a duty of care.1107
9–312 The standard of care. The standard of care of these professionals has been
described in the cases in similar terms to that of the other persons professing
special skill described in this chapter. They are required to exercise the skill and
care of a reasonably competent member of their profession.1108 It is not a counsel
of perfection, but neither is the level of care somehow reduced if the person
concerned is unqualified,1109 or making no charge,1110 or performing a limited
task.1111
9–313 Valuers and estate agents. Valuers must exercise the standard of care and
skill possessed by a competent valuer.1112 Their duty starts with the terms of their
engagement. Where it is known that a report will be relied upon by a client and
the valuer signs it in a personal capacity, a personal duty will arise, notwithstand-
ing that the valuer is employed by a firm.1113 When a valuer is employed to value
a house, his duty to his client is to look with a practised eye for obvious defects
that would affect significantly the value of the property.1114 He is not required to
undertake a structural survey or a survey in the detail called for in the standard
form of the Royal Institution of Chartered Surveyors House Buyer’s Report and
Valuation Inspection, and to that extent the duty differs from that of a surveyor.
Nor, in the absence of specific instructions, is the valuer required to go beyond
advising on the price for the property and to express an opinion, for example, on
its possible re-sale price.
9–314 It follows that a valuer is not obliged to warn his client of difficulties that
might be met when attempting to re-sell the property.1115 In Bell Hotels (1935)
1107
Duncan Investments Ltd v Underwoods [1997] P.N.L.R. 521 (appeal on this aspect dismissed
[1998] P.N.L.R. 754, CA, although allowed as to quantification of damage).
1108
Zubaida v Hargreaves (1993) 43 E.G. 111 (the standard of care is that the valuer should act in
accordance with practice accepted as proper by a substantial number of his profession).
1109
Freeman v Marshall & Co (1966) 200 E.G. 777.
1110
Kenney v Hall Pain and Foster (1976) 239 E.G. 355 at 429; per Goff J.
1111
Roberts v J. Hampson & Co [1990] 1 W.L.R. 94. Although a building society’s valuation of a
property was only a limited appraisal, it was nevertheless undertaken by a skilled professional person
who was aware that a copy of his valuation would be given to the buyer. Whilst the valuer could not
be expected, in the course of inspection, to move furniture and lift up carpets as a matter of course,
if there were some factor, such as a trail of rot, which ought to have put him on notice, it would be
negligent of him not to investigate further. See also Beresforde v Chesterfield BC (1989) 39 E.G. 176,
CA and Henley v Cloke (1991) 37 E.G. 145.
1112
The following section addresses principally the negligence of estate agents and valuers and the
section after, surveyors. The division is imposed for clarity but it will be appreciated that there is
often considerable overlap in the tasks these professions perform. See generally in relation to property
valuation Murdoch, ‘‘The nightmare zone’’ E.G. 2005, 0545, 164.
1113
Merrett v Babb [2001] P.N.L.R. 660, CA.
1114
See Whalley v Roberts & Roberts (1990) E.G. 104, above.
1115
Sutcliffe v Sayer (1987) 281 E.G. 1452, CA.
[696]
Ltd v Motion,1116 valuers had been instructed to advise whether a licensed hotel
should be sold and further, since the hotel was the only free house in Melton
Mowbray, whether brewery companies should be approached to see if they were
interested. The valuers advised against such an approach and the hotel was sold
privately. Within seven days it was re-sold at a profit to a brewery company and
the valuers were held to have been negligent.
In order to establish liability in negligence against a valuer who has been 9–315
employed to give an independent determination of the proper rent, one or more
of the following must be proved: (a) he has omitted to consider some matter
which he ought to have considered; (b) he has taken into account some matter
which he ought not to have done; (c) in some way or other he has failed to adopt
the procedure and practices adopted as standard in his profession; and (d) has
thereby failed to exercise the care and skill which, on accepting the appointment,
he held himself out as possessing.1117
Where the complaint made is as to figures included in a valuation the court 9–316
must first consider whether the figure falls outside the range permitted to a non-
negligent valuer.1118 If there has been some error in the working process adopted
by the valuer, that may be evidence that his figure contains an unacceptable
degree of error.1119 But if the court, notwithstanding such evidence, concludes
that, by whatever means, the valuer has arrived at a result within the bracket, he
cannot be characterised as negligent.1120 A second stage is involved if the figure
is outside the permissible bracket. The claimant should be regarded as having
discharged an evidential burden and it is for the defendant to show that he
nonetheless exercised the care and skill appropriate in the circumstances.1121 At
this stage the Bolam1122 test comes into consideration. The fact that the figure is
outside the bracket will no doubt militate strongly in favour of a finding that the
valuer has fallen short of the appropriate standard. Before liability can be
established the court must find both a figure outside the bracket and Bolam
1116
[1952] C.P.L. 403.
1117
Belvedere Motors v King (1981) 260 E.G. 81.
1118
per Buxton L.J. in Merivale Moore Plc v Strutt Parker [2000] P.N.L.R. 498, CA at 515. The
‘‘permissible margin of error’’ was described by Watkins J. as the ‘‘bracket’’ in Singer & Friedlander
Ltd v John D. Wood [1977] 2 E.G.L.R. 84. See also McIntyre v Herring Son & Daw (1988) E.G.L.R.
231 and Beaumont v Humberts (1990) 49 E.G. 46, CA; also Wilkinson, ‘‘Valuing within the
‘Bracket’ ’’ 145 New L.J. 1267.
1119
See Merivale Moore Plc v Strutt Parker, above; also Mount Banking Corp v Brian Cooper & Co
(1992) 35 E.G. 123; Axa Equity & Law v Goldsack & Freeman (1994) 23 E.G. 130.
1120
per Balcombe L.J. in Craneheath Securities v York Montague [1996] 1 E.G.L.R. 130, at 132: ‘‘It
would not be enough for Craneheath to show that there have been errors at some stage of the
valuation unless they can also show that the final valuation was wrong’’. See also Legal & General
Mortgage Services Ltd v HPC Professional Services [1997] P.N.L.R. 567 (where although the
valuation of the appropriately-named Wits End was ‘‘excessive’’ it was within the margin of error and
accordingly it was said not to be open to the claimants to complain of an allegedly negligent method
of arriving at it); Goldstein v Levy Gee [2003] P.N.L.R. 691. See Dugdale, ‘‘Process and outcome: the
Bolam bracket’’ (2004) 1 P.N. 21.
1121
per H.H. Judge Langan Q.C. in Legal & General Mortgage Services v HPC Professional Services
[1997] P.N.L.R. 567 at 574, quoted with approval by Buxton L.J. in Merivale Moore Plc v Strutt
Parker [2000] P.N.L.R. 498, CA.
1122
[697]
negligence.1123 It has been opined that a valuer could have a margin of error of
15 per cent before being held to have fallen short of the standard of care to be
expected from an ordinary skilled valuer giving a site valuation against a falling
market1124 but it seems likely that the permissible margin of error is not a fixed
quantity and will reflect the facts and evidence in each case.1125 In many cases the
evidence will disclose a bracket within which it is said the relevant value lies and
in such cases having first decided the bracket, the court must go on to decide
whether the valuation in question lies within it. However, it is worthwhile noting
that not all cases can be decided by reference to a bracket, as where, for instance
an ongoing business is being conducted from the premises,1126 or where they are
arguably so distinctive as to render comparison otiose.1127
9–317 When making a valuation of property, valuers must exercise care in ascertain-
ing the date on which the valuation should be made, but are under no obligation
to inquire into the financial position of the person to whom money is to be
advanced, or as to title.1128 They must have a knowledge of the general rules of
law applicable to the subject of the valuation,1129 and, where appropriate, the
guidance notes prepared by the assets valuation standards committee of the
RICS.1130 When a landlord and tenant have agreed that a lease should be
surrendered for a price to be determined by a valuer and, in due course, the lease
is surrendered, the valuation is binding upon both parties. The court will not
entertain a plea that the valuer must have been mistaken, unless the valuation is
a manifestly erroneous ‘‘speaking’’ one. The remedy of an aggrieved party is to
claim damages for the valuer’s negligence.1131
1123
Merivale Moore Plc v Strutt Parker [2000] P.N.L.R. 498, CA, at 516, per Buxton L.J. For
criticism of this approach, see Murdoch, ‘‘Riding the market: 20 years of valuation negligence’’
(2005) 4 P.N. 233.
1124
Mount Banking Corp v Brian Cooper & Co (1992) 35 E.G. 123, above, applying Bolam v Friern
Hospital Management Committee [1957] 1 W.L.R. 582. The same margin was applied in BNP
Mortgages Ltd v Barton Cook & Sams [1996] 1 E.G.L.R. 239 (no liability where the defendant’s
valuation was just under 13 per cent of the true value); see also Murdoch, ‘‘The margin of error
approach to negligence in valuations’’ (1997) 3 P.N. 81; Wilkinson, ‘‘The permissible margin of
error’’ 148 N.L.J. 481.
1125
Private Bank & Trust Co Ltd v S (U.K.) Ltd (1993) 09 E.G. 112. See also Allied Trust Bank v
Edward Symmons & Partners (1993) E.G.C.S. 163, and Axa Equity & Law Home Loans v Goldsack
& Freeman (1994) 23 E.G. 130; Credit Agricole Personal Finance v Murray [1995] N.P.C. 33;
Birmingham Midshires Building Society v Richard Pamplin Co [1996] E.G.C.S. 3 (on the facts, an
11 per cent margin of error was deemed permissible).
1126
See Legal & General Mortgage Services Ltd v HPC Professional Services n.1120, above.
1127
See Jacob J. in Craneheath Securities Ltd v York Montague Ltd [1994] 1 E.G.L.R. 159 at 162.
1128
Beck v Smirke (1894) Hudson’s B.C., 4th edn, Vol.2, p.259.
1129
Jenkins v Betham (1855) 15 C.B. 168.
1130
Allied Trust Bank v Edward Symmons & Partners (1994) 22 E.G. 116; Crane Heath Securities
v York Montague (1994) 21 E.G. 124.
1131
Campbell v Edwards [1976] 1 W.L.R. 403, applying Arenson v Arenson [1977] A.C. 405. There
are observations upon the duties of valuers, particularly where valuing land against a volatile market
in Singer & Friedlander v John D. Wood & Co (1977) 243 E.G. 212 at 295 (a case where the
defendants made a negligent valuation in the strength of which the claimants advanced a loan of
£1.5m. to developers whose company subsequently went into liquidation). Contrast Predeth v Castle
Phillips Finance Co (1986) 279 E.G. 1355, CA (valuer instructed to carry out a ‘‘crash sale’’
valuation of a derelict bungalow not under a duty to advise as to its true market value since the
requirement for a quick sale was crucial to his instructions). See Mulcahy, ‘‘Surveyors’ Duties—Two
Recent Cases’’ (1987) 3 P.N. 79.
[698]
ILLUSTRATIONS
Estate agents and valuers were liable in negligence to a client for whom they 9–318
were working gratuitously (their fee coming from the seller), where they failed
to check on the length of an outstanding mortgage, in fact less than one week, the
claimant having indicated that he wanted a house on which a long-term mortgage
was available1132; where acting as house agents, they failed to obtain advance
rent or deposit from an in-coming tenant1133; where in valuing land for purposes
of assessing compensation for compulsory purchase, they failed to take into
account a change in the law1134; where an employee with little knowledge or
experience made a wholly erroneous valuation of property, which failed to sell as
a result1135; where a valuer valued the rental value of a property without taking
into account comparable rents paid in the locality1136; where a valuer failed to
investigate thoroughly and give due consideration to the recent marketing history
of the property including sales of similar properties1137; in failing to submit
representations on behalf of a client, the tenant of a shop, to an independent
expert appointed to determine a revised rent within the time specified in a rent
review clause of an underlease1138; in misdescribing a garage, after carrying out
a structural survey of a house, and then failing to give a warning that its roof was
made of asbestos, through which the buyer fell on a later occasion while
investigating a leak1139; where a surveyor failed to report a risk of subsidence
which, two years later, was identified when the property was offered for sale
again1140; where, in making a valuation report, he failed to comment upon a mis-
positioned purlin in the roof space of a house when he ought to have been on
notice of the kind of construction acceptable to a building society as security1141;
in basing a valuation of land upon the prospect of planning permission being
granted for development as a hotel when in fact that prospect was remote1142; in
failing to inform prospective developers of leasehold land of the risks associated
with their method of estimating its yield, whereby too high a price was paid for
1132
Avery v Salie (1972) 25 D.L.R. (3d) 495.
1133
Brutton v Alfred, Savill, Curtis & Henson (1970) 218 E.G. 1417.
1134
Weedon v Hindlewood Clarke & Esplin (1974) 234 E.G. 121, following West Midland Baptist
(Trust) Association (Inc) v Birmingham Corp [1968] 2 Q.B. 188.
1135
Kenney v Hall, Pain & Foster (1976) 239 E.G. 355.
1136
United Bank of Kuwait v Prudential Property Services (1994) 30 E.G. 103.
1137
Banque Bruxelles Lambert SA v Eagle Star Insurance Co (1994) 31 E.G. 68; Platform Home
Loans Ltd v Oyston Shipways Ltd [1996] 49 E.G. 112 (valuers failed to take account both of
comparable properties and the original purchase price). For the subsequent appeals, on other grounds,
see [1998] Ch.466 and [2002] 2 A.C. 190.
1138
Rajdev v Becketts (1989) 35 E.G. 107.
1139
Allen v Ellis & Co (1990) 11 E.G. 78, applying JEB Fasteners v Marks Bloom & Co [1983] 1
All E.R. 583, CA.
1140
Matto v Rodney Broom Associates [1994] N.P.C. 40, CA.
1141
David and Margie Ezekiel v Ian McDade [1994] E.G.C.S. 194, CA (surveyors preparing a
mortgage valuation report failed to mention a gap of 40mm at the end of two roof purlins forming
part of the roof structure).
1142
BFG Bank AG v Brown & Mumford Ltd [1995] E.G.C.S. 21 (it was not contributory negligence
for a bank to breach its own internal guidelines when extending a loan on the basis of the valuation
since, on the facts, those rules were to be interpreted in a flexible manner); appeal dismissed [1996]
E.G.C.S. 169, CA.
[699]
it.1143 Land agents acting for the owner of a number of fields situated near to an
airport, were negligent in negotiating leases of the fields for use as car parks at
a fixed rent, with periodic reviews based on increases in car parking charges,
rather than a rent based on turnover generated by the car parking charges.1144
9–319 On the other hand, there was no liability where the keys of café premises were
handed over to prospective buyers, who went into occupation beneficially for a
period of time pending a sale which did not ultimately proceed1145; where a
prospective buyer of a house, the walls of which were showing signs of
movement, was advised to obtain insurance against the risk of deterioration,
rather than discouraging the purchase1146; where the buyer had not relied upon an
estate agent’s misrepresentation about the size of a garage of a dwelling-house
but upon his own inspection of the premises1147; where a valuation included an
element for the ‘‘hope’’ of planning permission1148; when the reinstatement value
for insurance purposes of a 300-year-old village house was estimated, not on the
basis of a replica, but of a new house having the same habitable floor space, style
and general shape as the existing one, without certain idiosyncratic features1149;
where estate agents had misled neither their client (the seller) not the potential
buyer; but had acted throughout the transaction within their instructions1150;
where false information was given in sales particulars but there was a written
disclaimer and a reasonable person would have concluded that no responsibility
for the accuracy of the information was assumed1151; where a valuation obtained
for a building society that failed to warn of rusting to wall ties was within the
range of valuations that could be expected from an ordinarily competent
surveyor, given the limited nature of the inspection undertaken1152; where a
valuer failed to detect that a building had been built some four inches out of level
when there was no evidence of wall cracking and the defect was difficult to detect
because it had been camouflaged so successfully by the builder that it had not
been noticed even by the previous owner1153; where a valuer took legal advice
about the proper method to employ in a valuation of business premises on a rent
review, and adopted as a result a method which inappropriately conflicted with
1143
Merivale Moore Plc v Strutt & Parker [1998] 2 E.G.L.R. 195; appeal dismissed [2000] P.N.L.R.
498, CA.
1144
Earl of Malmesbury v Strutt & Parker [2007] P.N.L.R. 29. See Locke, ‘‘Don’t be left scratching
your head’’ E.G. 2007, 0723, 156.
1145
Edmonds v Andrew & Ashwell (1982) 261 E.G. 53 (in any event there was little, if any, actionable
damage arising from their occupation).
1146
Eley v King & Chasemore, The Independent, April 24, 1989, CA.
1147
Hatfield v Sawyer & McClocklin Real Estate [1977] 1 W.L.R. 481.
1148
Allied Trust Bank v Edward Symmonds & Partners (1994) 22 E.G. 116.
1149
Beaumont v Humberts (1990) 49 E.G. 46, CA.
1150
Watson v Lane Fox (1991) 49 E.G. 71.
1151
McCullagh v Lane Fox & Partners [1996] 2 P.N.L.R. 205, CA (oral misrepresentation that a
garden extended to nearly an acre when in fact it was less than half an acre). A disclaimer in the same
terms did not protect the defendant in Duncan Investments Ltd v Underwoods [1997] P.N.L.R. 521,
since his negligent representation as to the value of property was not made in his capacity as agent
of the seller. (Appeal on this aspect dismissed [1998] P.N.L.R. 754, CA, although allowed as to
quantification of damage).
1152
Nash v Evens & Matta (1988) 04 E.G. 131.
1153
Whalley v Roberts & Roberts (1990) E.G. 104.
[700]
the presumption that the rent fixed on a review should bear as close a
resemblance to reality as possible.1154
There was no assumption of responsibility and therefore no duty of care owed, 9–320
by a firm of actuaries who had prepared an actuarial valuation report in relation
to the pension fund of a company, to the claimants, who made an offer for the
shares of the company. The report negligently understated a deficit in the fund,
but the actuaries had not assumed any responsibility for its accuracy so far as the
claimants were concerned. It was observed in the Court of Appeal that reliance
on the provision of information had to be viewed from the perspective of the
provider of the information. There was no assumption of responsibility given that
the parties had no pre-existing relationship, the information provided was
historic, and the purpose for which the claimants wished to use the information
was outside the purpose for which reliance was on the face of the document
permitted. The claimants did not communicate directly with the defendants nor
did they inform them why the information was requested. So far as the
defendants were concerned, the claimants could be reasonably expected to have
their own advisers.1155
Surveyors. A surveyor is not to be regarded as having the same expertise as 9–321

an architect or engineer. A surveyor’s duties are usually confined to exercising
reasonable skill and care in reporting reasonably discoverable faults.1156 It has
been said that in carrying out a mortgage valuation for an intended buyer the
surveyor’s inspection ought properly to include: (a) observing substantial defects
that will require work to be done either at once, or soon, within a relatively small
time against the life of the loan; and (b) putting the buyer on notice of inquiries
that will have to be made in order to establish whether or not there are any
substantial defects, all of which matters will have an effect on value.1157
ILLUSTRATIONS
Where a farm house had been built in 1880 and brickwork added in 1961 had 9–322
not been tied in properly, surveyors were negligent in failing to draw the buyers’
attention to the defect even though serious cracks did not appear until after the
survey had been carried out.1158 Where an architect and a surveyor were
instructed to inspect a farm and give a general opinion, not involving a detailed
1154
Lewisham Investment Partnership Ltd v Morgan, The Times, November 25, 1997.
1155
Precis (521) Plc v William M. Mercer Ltd [2005] P.N.L.R. 511, CA, applying Henderson v
Merrett Syndicates Ltd [1995] 2 A.C. 145; BCCI (Overseas) Ltd v Price Waterhouse [1998] P.N.L.R.
564, CA and Williams v Natural Life Health Foods Ltd [1998] 1 W.L.R. 830, HL.
1156
See Eley v King & Chasemore, The Independent, April 24, 1989, CA (no negligence where a
surveyor had drawn attention to a structural defect and advised that insurance should be taken out to
cover the cost of underpinning foundations that would become necessary in the future); also Heatley
v William H. Brown [1992] 1 E.G.L.R. 289 (a surveyor failed to detect substantial defects in a
property during a standard structural survey because it was not possible for him to gain access to the
roof voids: he should have advised further investigation before reporting that the building was in
‘‘reasonable condition for its age’’).
1157
Lloyd v Butler (1990) 47 E.G. 56.
1158
Lees v English & Partners (1977) 242 E.G. 295.
[701]
survey, they were negligent in not discovering dry rot, woodworm and settle-
ment.1159 Where a surveyor, employed by a buyer to test a house for dampness,
failed to find any even though serious damp was present, he was negligent:
failure to discover dampness in one isolated spot might be excused, but not when
it was so extensive that he could not have failed to detect it using reasonable
care.1160 A marine surveyor was liable where he reported negligently on the
condition of a motor launch as a result of which it was purchased by his
client1161; it was negligent for a surveyor, valuing a house for potential buyers,
to fail to have regard to the type of construction likely to be acceptable to
building societies as suitable security1162; further, to give an assurance to the
claimant, who had paid an ‘‘introduction fee’’ for details of properties offered for
sale by other firms, that floor areas were correctly stated when they were not1163;
in carrying out a mortgage valuation survey, to infer from the absence of signs of
distress that a chimney was properly supported, when the property had been
recently refurbished.1164 Surveyors employed to enter into leases with tenants
were negligent in failing to notice that clauses providing for upwards only rent
review had been removed by solicitors who prepared the leases in draft.1165
9–323 Contributory negligence. Even if a lender relies upon a negligent valuation

he may himself be guilty of contributory negligence, for instance by failing to
give clear instructions or failing to check the basis upon which the valuation is
made. So, in South Australian Asset Management v York Montague,1166 a bank
was itself 25 per cent to blame where it advanced £11 million to assist the
purchase of land subsequently valued at £2.5 million and it had made no proper
check of the basis upon which the valuation was made, given unclear instructions
and had not made an assessment of the risk classification as required by its own
procedures.
9–324 In assessing what conduct may amount to contributory negligence in this

context a number of different formulae have been adopted.1167 It has been said
that the lender was himself negligent if ‘‘the error was such as no reasonably
1159
Sincock v Bangs (Reading) [1952] C.P.L. 562; Philips v Ward [1956] 1 All E.R. 874, which was
applied in Morgan v Perry (1973) 229 E.G. 737 (where a house became almost valueless within five
years of purchase as a result of slipping foundations. The surveyor instructed by the buyer was held
liable because he had given the house a ‘‘clean bill of health’’ and valued it above the purchase price).
In Daisley v B.S. Hall & Co (1972) 225 E.G. 1553 the surveyor was negligent in failing to report risks
arising from the combination of poplar trees growing nearby and clay sub-soil, where shrinkage
cracking was already visible in the house intended to be purchased. See also Upstone v G.D.W.
Carnegie & Co, 1978 S.L.T. 4 (the presence of dry rot not mentioned in a surveyor’s report, in
reliance upon which the house was purchased).
1160
Fryer v Bunney (1982) 263 E.G. 158.
1161
Gordon v Moen [1971] N.Z.L.R. 526.
1162
David and Margie Ezekiel v Ian McDade [1994] 10 Cons.L.J. 122.
1163
Hunt v Beasley Drake [1995] N.P.C. 35.
1164
Sneesby v Goldings [1994] E.G.C.S. 201 CA, (per Sir Thomas Bingham M.R.: ‘‘it should not be
assumed that work to a property has been carried out properly, because it has been executed with the
aid of a local authority improvement grant’’).
1165
Theodore Goddard v Fletcher King Services Ltd [1997] 32 E.G. 90 (the surveyors were liable to
contribute 20 per cent to the liability the solicitors incurred).
1166
[1995] N.P.C. 66.
1167
See Evans, ‘‘Contributory negligence by lenders’’ (1998) 1 P.N. 43 for a useful summary.
[702]
well-informed and competent member of that profession could have made’’1168;

or that he should be judged by the ‘‘standards of the reasonably competent
merchant bank at the time’’1169; or whether he conducted his business pru-
dently1170; or whether a reasonably prudent person specialising in the relevant
area would so have acted.1171 It has been pointed out that a test based upon
prudence may imply a more exacting standard than the Bolam1172 test usually
held to be the touchstone when considering the standard of care appropriate for
a professional person.1173
It may, in any particular case, amount to contributory negligence for a lender 9–325
to fail to take account of information which casts a significant and material doubt
upon the accuracy of a valuation1174; or to fail to investigate the financial position
of the borrower with sufficient thoroughness.1175 It has been said that contribu-
tory negligence on the part of the lender in a surveyor’s negligence case can arise
either in relation to the surveyor’s report itself, for instance, in failing to read it
properly, or neglecting to investigate or follow up qualifications or other
obscurities in it; or alternatively in relation to other extraneous matters such as
failing properly to investigate the borrower or take proper care to protect the
loan.1176 In Platform Home Loans Ltd v Oyston Shipways Ltd,1177 it was held to
1168
See Banque Bruxelles Lambert SA v Lewis & Tucker Ltd [1995] 2 All E.R. 769, at 821.
1169
Banque Bruxelles Lambert SA v Lewis & Tucker Ltd [1995] 2 All E.R. 769, at 821.
1170
Birmingham Midshires Ltd v Parry Jones [1996] P.N.L.R. 431 at 442–443.
1171
United Bank of Kuwait v Prudential Property Services Ltd [1995] E.G.C.S. 190.
1172
1173
(1998) 1 P.N. 43, n.1167, above.
1174
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1994] 2 E.G.L.R. 108; Nycklen
Finance Co Ltd v Stumpbrook Continuation Ltd [1994] 2 E.G.L.R. 143.
1175
Alliance & Leicester Building Society v Wheelers (1997) 16 Commercial Lawyer 66. See also
Halifax Mortgage Services Ltd v Robert Holmes & Co [1997] C.L.Y. 3846 (contributory negligence
assessed at 25 per cent where the lender failed to seek the accounts of a property development
company in which the mortgagor was joint shareholder, and failed to make further inquiries after the
mortgagor omitted to disclose a second charge on the application form).
1176
First National Bank v Andrew S. Taylor Commercial Ltd [1997] P.N.L.R. 37; see also Chelsea
Building Society v Goddard & Smith [1996] E.G.C.S. 157: blame was apportioned equally between
a valuer and a solicitor where, after negligent valuation, the latter failed to inform the lender of
another sale which would have given grounds for questioning the valuation and negligently allowed
mortgage funds to be used to fund the purchase. The judge also found 25 per cent contribution against
the lender, inter alia, on the basis that accounts of the borrower were insufficiently investigated and
the borrower was not interviewed and or an accountant’s reference was vague but not clarified. In
Cavendish Funding Ltd v Henry Spencer & Sons Ltd [1998] P.N.L.R. 122, CA, the failure of a bank
specialising in short-term, high risk finance to query a difference of £0.5 million between two
valuations of a property negligently undervalued by the defendants, did amount to contributory
negligence partly causative of the claimants’ loss (reversing [1996] E.G.C.S. on this point). See also
UCB Bank v David J. Pinder Plc [1998] P.N.L.R. 398 (lender’s contributory negligence assessed at
one-third where up-to-date accounts, bank statements, or previous mortgage statements were not
requested, or account taken of a refusal of mortgage indemnity insurance or the fact that the loan
would do little more than pay off the borrower’s existing indebtedness but no overdraft facility was
insisted upon to provide working capital).
1177
[1996] 49 E.G. 112; claimant’s appeal on the point dismissed [1998] Ch.466. The CA’s decision
as to the method of calculating contributory negligence on such facts was then itself overturned on
appeal: [2000] A.C. 190 (any deduction for the lender’s own negligence should be made when his
basic loss has been established, before making any further deduction required by the principles for
[703]
be contributory negligence for a lender to advance a non-status loan, that is, a

loan made without investigation of the borrower’s creditworthiness, of 70 per
cent of a suggested value of £1.5 million. Such a loan provided insufficient
cushion (or ‘‘loan to value ratio’’) given the inherent problems of valuing the
more substantial type of property accurately. In so holding, the Court of Appeal
appears to have resolved a number of conflicting decisions about the materiality
of contributory negligence going only to creditworthiness or market risk.1178
Quite apart from contributory negligence, there is the duty to mitigate loss which
may involve attempting with reasonable expedition to realise the security by
sale.1179
9–326 Damages. The assessment of damages in cases where negligence is proven

against valuers, estate agents or quantity surveyors is a complex topic and the
reader is referred to specialist works for a full treatment. In summary, as with any
claim in tort, the claimant must establish a causal nexus between any breach of
duty established and the damage he alleges has resulted.1180 He must prove that
his loss was a reasonably foreseeable result of the breach. Thereafter the court
will consider the measure of damages appropriate for this loss.
9–327 Measure of damages. Although a distinction has been drawn in some cases
between ‘‘successful transaction’’ and ‘‘no transaction’’ cases, it has been
assessing the measure of damages set out in the Banque Bruxelles and Nykredit decisions). For
criticism of aspects of the first instance decision, see T. Dugdale, ‘‘Loss and liability: Platform Home
Loans v Oyston Shipways’’ (1997) 1 P.N. 5.
1178
See, e.g. Interallianz Finance AG v Independent Insurance Company Ltd [1997] E.G.C.S. 91.
The basis of such cases was that, after SAAMCO, para.9–327, above, a valuer could be liable only
for loss caused by breach of the duty to provide an accurate valuation and such loss would be limited
to the difference between the actual and suggested value of the property: that being so, only
negligence which contributed to that recoverable loss should be taken into account by way of
contributory negligence and failure to assess the credit risk properly or take sufficient security should
be outside consideration. It is doubtful whether this argument survives the Platform Homes decision
where it was emphasised that ‘‘damage’’ for purposes of Law Reform (Contributory Negligence) Act
1945 s.1, meant the loss suffered by the claimant as a whole and not just that element in his loss
attributable to the defendant’s breach of duty. See also Britannic Securities & Investments Ltd v
Hirani Watson [1995] E.G.C.S. 46 (no contributory negligence in failing to inquire into the
borrower’s ability to repay a loan for which the property valued had been offered as security) and
BFG Bank AG v Brown & Mumford Ltd [1995] E.G.C.S. 21; also Coventry Building Society v William
Martin & Partners [1997] 48 E.G. 159 (no deduction from damages where the lender’s failure to
inquire into the borrower’s ability to service the loan was not causative of any loss); also Gascoigne,
‘‘Reducing a negligent valuer’s liability’’ 141 S.J. 354; Hirst ‘‘The conduct of the lender’’ (1998)
Lawyer 12(25) 18; Charlwood, ‘‘Deductions for contributory negligence’’ 143 S.J. 456.
1179
Alliance & Leicester Building Society v Wheelers (1997) 16 Commercial Lawyer 66.
1180
See, e.g. Banque Bruxelles Lambert v John D. Wood Commercial Ltd [1996] P.N.L.R. P380, CA
(the bank, which had lent a substantial sum of money on security of a building negligently valued at
£82 million, failed to establish a causative link between the valuation and its loss when the borrower
defaulted on the loan, because the valuation itself had little causative potency when compared with
other factors such as pressure to proceed with the loan from a special client and an expectation that
property values would continue to rise); also Brown v Cliff Roberts [1996] C.L.Y. 4499, CA (no
arguable claim for damages where buyers of a house would have proceeded with the transaction
anyway even if they had known of a restrictive covenant against the erection of another building in
the garden); also Shankie-Williams v Heavey [1986] 279 E.G. 316, CA (claimant had not seen the
negligently-prepared report of a dry rot specialist and accordingly did not rely on its contents).
[704]
criticised as not resting upon any principles.1181 It is of greater importance to

establish the nature of the duty of which the defendant was in breach. So, where
property was acquired in reliance upon a negligent surveyor’s report, it was held
in Philips v Ward1182 that the appropriate measure of the claimant’s loss was the
difference between the price actually paid and the true value, assessed at the date
of purchase. This decision was followed in Morgan v Perry1183 where, five years
after the claimant purchased in reliance upon the surveyor’s report, it emerged
that his property was substantially worthless because its foundations were
slipping. The court held that it was entitled, in assessing the value at the date of
purchase, to take into account knowledge acquired subsequently, up to the date
of the hearing. In Perry v Sidney Phillips & Son,1184 the Court of Appeal rejected
the suggestion that the claimant should recover the difference between the value
of the property at the date of trial as it had it been as described in the surveyor’s
report and its value at that date in its defective condition. Efforts to make the cost
of repairs the appropriate measure of loss have likewise proved unsuccessful1185;
although, as a matter of evidence, the cost of repairing the relevant defects may
assist the court in determining the difference in value.1186 One situation in which
the cost of repairs can be a relevant consideration is where comparable properties
do not exist to establish a value for a property, as it should have been described
if the surveyor or valuer had done his job properly: it may become necessary in
such a case to consider the price a theoretical buyer would have been willing to
pay had he known of the likely costs of repair.1187
Where it is alleged that a loan would not have been made, or made on other 9–328
terms, had a correct valuation been given, the valuer is only responsible for the
1181
South Australia Asset Management Corp v York Montague Ltd [1996] 3 All E.R. 365 at 376; per
Lord Hoffmann.
1182
[1956] 1 W.L.R. 471, CA; applied in Ford v White [1964] 1 W.L.R. 885, for which see further
at para.8–284, above. It should be noted that the Phillips v Ward measure is not an absolute rule and
can be departed from where a different sum is required properly to compensate the claimant. See
County Personnel (Employment Agency) Ltd v Alan R. Pulver & Co [1987] 1 W.L.R. 916, 925 also
Devine v Jeffreys [2001] P.N.L.R. 407 (claimants suffered no loss where their house was negligently
undervalued but they subsequently transferred the freehold to a finance company in return for a
settlement of their outstanding borrowing and a seven year tenancy).
1183
[1973] 229 E.G. 1737, above; also Shaw v Halifax (South West) Ltd [1996] P.N.L.R. 451, CA
(subsequent rise in the market value irrelevant). The difference between price and value can remain
the measure of loss even where, for example, the claimant succeeds in having the defect repaired at
a third party’s expense: Gardner v Marsh and Parsons [1997] 1 W.L.R. 489, CA (where the
claimant’s landlord, pursuant to an obligation under the lease, rectified a defect missed by the
negligent surveyor), but aliter if the repair was part of a continuous transaction of which the
negligence was the inception. See Boxer, ‘‘Double Indemnity’’ 141 S.J. 1104; also Murdoch, ‘‘Value
with hindsight’’ 2003 E.G. 0312, 126.
1184
[1982] 1 W.L.R. 1297, CA.
1185
See, e.g. Watts v Morrow [1991] 1 W.L.R. 14, 21, CA. See also Smith v Peter North & Partners
[2002] P.N.L.R. 274, CA (difference in value remained the test in a case where the allegation was
negligence in reporting that a property was in substantially good repair when it was not, the property
being in fact worth more than claimants paid even if repairs taken into account).
1186
Watts v Morrow [1991] 1 W.L.R. 14 per Ralph Gibson L.J., at 1435.
1187
Oswald v Countrywide Surveyors Ltd, 47 Con L.R. 50 (where extensive repair was required to
a newly-purchased property infested by deathwatch beetle). The case also suggests that where the
cost of repairs is taken as the starting point for the calculation, it can be discounted for better-
ment.
[705]
foreseeable results of his mistake.1188 It is necessary to identify what element in

the foreseeable loss suffered is strictly attributable to the inaccuracy of the
information from him. Where lenders advanced £11 million on a property valued
at £15 million, the actual value of which was £5 million, and thereby had £10
million less security than they thought, they recovered their entire loss because,
when credit was given for the proceeds of sale, it did not exceed the margin
which the breach of duty lead them to believe they had.1189 But where the loss
was increased by the borrower’s default, the lender was not able to recover from
the negligent valuer the unpaid contractual interest which had accumulated: the
valuers had not been asked to give advice on the risk of default and their liability
should be confined to difference between the valuation and the correct value.1190
This value, which fixes the limit of the negligent valuer’s liability, should in
principle be arrived at by taking the mean figure from a range of figures which
reasonable valuers could have put forward; it should not, for example, be the
maximum reasonable valuation which could have been made. The claimant will
usually also be entitled to the reasonable cost of extricating himself from a
purchase made in reliance upon a negligent report.1191
9–329 In the result, in order to establish the measure of loss, a comparison is required
(‘‘the basic comparison’’) between the amount lent, which the lender would have
retained had the transaction not proceeded together with interest, and the value
of the rights acquired under the loan, usually the borrower’s covenant and the
true value of the property. If this comparison reveals a loss, it is necessary to see
what part of the loss is a consequence of a deficiency in the value of the security.
Typically this will be the extent of the over-valuation. The time at which the basic
comparison first reveals a measurable loss, and the lender’s cause of action
thereby arises, is an issue of fact.1192
1188
South Australia Asset Management Corp v York Montague Ltd [1997] A.C. 191. Three appeals
raising similar questions were consolidated, see n.1190, below. The decision of the Court of Appeal
in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1995] Q.B. 375 was reversed. See
also Nykredit Mortgage Bank Plc v Edward Erdman Group (No.2) [1998] 1 All E.R. 305, 309 HL,
per Lord Nicholls. See further Cooke, ‘‘Remote Names and volatile markets’’ (1996) 2 P.N. 58;
Dugdale, ‘‘South Australia Asset Management: Answers and Questions’’ (1996) 3 P.N. 71; Davidson
Q.C., ‘‘BBL and damages—some problems in applying the ratio decidendi’’ (1997) 3 P.N. 89.
1189
South Australia Asset Management Corp v York Montague Ltd [1997] A.C. 191.
1190
United Bank of Kuwait Plc v Prudential Property Services Ltd, the second of the three cases
determined by the HL, n.1188, above. The third case was Nykredit Mortgage Bank Ltd v Edward
Erdman Group Ltd, in which again the claim for contractual interest was held to fail. See also
Swingcastle Ltd v Alastair Gibson [1991] 2 A.C. 233 overruling in part Baxter v Gapp & Co [1939]
2 K.B. 271. See Hughes, ‘‘The Negligent Valuer after Swingcastle’’ [1992] 3 P.N. 103. In Western
Trust & Savings Ltd v Strutt & Parker [1999] P.N.L.R. 154, CA, the valuer was liable even though
the property for which a valuation was given was larger than the part of it taken as security: the
valuation was still causative of the lender’s loss as the difference in size of the properties was not such
as to take the transaction outwith the scope of the valuer’s duty.
1191
Patel v Hooper & Jackson [1999] 1 W.L.R. 1792, CA (where the property was uninhabitable and
the claimants were unable to move into it or sell it, they recovered the reasonable cost of selling it
which included the cost of living elsewhere in the meantime).
1192
Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No.2) [1997] 1 W.L.R. 1627, HL
(where the borrower’s covenant was worthless because of immediate default, the cause of action
arose shortly after the time the transaction took place). See also Byrne v Hall Pain & Foster [1999]
P.N.L.R. 565, CA, Ch.4, above, para.4–157 (once claimants became irrevocably committed to
acquiring a lease on exchange of contracts, which was worth less than they reasonably believed, and
[706]
Credit for the benefit of insurance. In many cases lenders insure—or require 9–330
borrowers to insure as a condition of the loan—against the risk of a shortfall in
the event that the security has to be realised. In the context of security taken after
a property has been negligently over-valued, the Court of Appeal has rejected the
argument that damages recoverable against a negligent surveyor should be
reduced to take account of recovery under such an insurance policy, to avoid the
risk of double recovery. The view was expressed that no such risk could arise
since, if the lender recovered damages before receiving indemnity under the
insurance, the amount recoverable under the indemnity would be reduced; if the
lender’s recovery of damages occurred after indemnity was received it would
enure to the benefit of the insurers under their right of subrogation.1193
Contribution between tortfeasors. The negligent valuer may seek to reduce 9–331
his loss by attempting to obtain contribution from some other party alleged to be
liable. This may not be straightforward where the claim is against the defaulting
borrowers since, upon analysis, they are not liable in respect of the ‘‘same
damage’’ as required by the Civil Liability (Contribution) Act 1978 s.1(1).
Whereas the surveyor is liable for losses arising from a loan which would not
have been advanced if the valuation had been accurate, the defaulting borrower
is responsible for losses accruing from his non-payment of the original
debt.1194
In a different situation, the sponsors of a commercial property scheme, who 9–332

had admitted liability to the claimants for negligently misrepresenting the value
of a rental covenant which formed part of the scheme, sought contribution from
the surveyors who were the scheme’s property advisers. It was accepted by the
surveyors that they had provided incorrect information in a prospectus for the
scheme, but they argued that the damage which the sponsors had admitted was
not the same as that for which they were liable since it arose from a different
error. The argument failed. ‘‘Damage’’ in the 1978 Act was to be given a broad
interpretation as the whole of the claimants’ economic loss and both defendants
were liable for that damage albeit in different amounts.1195
Damages for distress. In general a contract breaker is not liable ‘‘for any 9–333
distress, frustration, anxiety, displeasure, vexation, tension or aggravation which
his breach of contract may cause to an innocent party.’’1196 An exception arises
where it is an important object of the contract to provide the innocent party with
which they would not have committed themselves to but for the defendant valuer’s negligence, they
suffered actual loss or damage sufficient for a cause of action to accrue).
1193
Arab Bank Plc v John D. Wood Commercial Ltd, The Times, November 25, 1999, CA; Bristol and
West Building Society v May, May & Merrimans (No.2) [1998] 1 W.L.R. 336.
1194
Howkins & Harrison v Tyler, The Times, August 8, 2000, CA.
1195
Ball v Banner [2000] Lloyd’s Rep. P.N. 569 (the Pt 20 defendants’ liability was limited to the
difference between the amount which the claimant had invested and the amount that would have been
invested had accurate information been provided by them).
1196
per Bingham L.J. in Watts v Morrow [1991] 1 W.L.R. 1421 at 1445, CA.
[707]
pleasure, relaxation or peace of mind.1197 Ordinarily, this exception will not

apply to a contract which requires a surveyor simply to investigate a property for
defects. Another exception allows the recovery of damages for distress where it
arises from physical inconvenience and discomfort caused by the breach.1198
Awards should be ‘‘restrained and modest.’’1199
9–334 The principles referred to above would expose the negligent surveyor to
liability for mental distress in situations where he performed his work under
some contract with the claimant. Where there was no contract, on the ordinary
principles applied in tort, a claimant cannot recover damages for distress unless
it has caused psychiatric injury1200 and it was reasonably foreseeable that
physical or psychiatric injury would result from the defendant’s breach of
duty.1201 In practice situations where a surveyor’s negligence can give rise to
such claims will be rare.
9–335 Other cases. Where a rent review clause provided that a revised rent was to
be fixed in default of agreement by an independent expert, the surveyor acting for
the lessee was negligent in failing to submit representations on his client’s behalf
within the time-limit specified and as a result a substantially higher rent was
fixed. The measure of damages was held to be the difference in value between the
rent as fixed and a more realistic market rent as decided by the judge.1202 Where
estate agents utterly failed to provide an acceptable level of service to the owner
of a flat, as a result of which the tenant was able to put in other occupiers, commit
dilapidations and act generally in default, it was held that the owner could
recover the loss of rent arising from their failure to take rent in advance, other
general arrears of rent, an unpaid telephone account, gas bills, the cost of
dilapidations and for disturbance.1203
17.—VETERINARY SURGEONS AND PRACTITIONERS
9–336 The duty and standard of care. The civil liability of veterinary surgeons
towards the owners of animals is similar in all respects to that of dental and
1197
Farley v Skinner [2002] 2 A.C. 732 (where there was a specific contractual undertaking to
investigate a matter important to the innocent party’s peace of mind, namely whether a property
would be affected by aircraft noise). See Lawson, ‘‘Inconvenient measures’’ 145 S.J. 1004; Turner,
‘‘Solicitors keep calm amid distress signals’’ L.S.G. 2003, 100(3), 37; Jones and Morris, ‘‘The
distressing effects of professional incompetence’’ P.N. 2004, 20 (2) 118 ; Glover, ‘‘Distress signals’’
L.S.G. 2007, 104 (34), 30.
1198
Hobbs v London and South Western Railway (1874) L.R. 10 Q.B. 111, per Mellor J. at 122, the
physical element should at least a threshold where it can be described as ‘‘real and substantial’’.
1199
per Lord Steyn in Farley v Skinner, n.1187 above, at 911 (£10,000 at the very top end of what
was appropriate for distress caused by aircraft noise). See also Watts v Morrow, n.1 above (trial
judge’s award of £4,000 each to a couple whose marriage had allegedly broken down as a result of
the surveyor’s breach of duty, reduced to £750 since the proper basis of assessment was confined to
their physical discomfort for about eight months).
1200
What amounts to psychiatric illness is discussed in Ch.2, para.2–117, above.
1201
See Page v Smith [1996] A.C.155 and Ch.2, paras 2–125 to 2–154, above.
1202
Rajdev v Becketts [1989] 35 E.G. 107.
1203
Murray v Sturgis (1981) 260 E.G. 61.
[708]
VETERINARY SURGEONS AND PRACTITIONERS 9–337
medical practitioners towards their patients.1204 Their liability for any want of
care will arise principally in contract1205 but doubtless there is a concurrent duty
in tort and they will be liable for any damage caused by their negligence. A
veterinary practitioner impliedly warrants any drugs or substances used as being
reasonably fit for the purpose for which they are required.1206 The standard of
care is that of the ordinarily competent veterinary practitioner displaying
ordinary competence and skill.1207
ILLUSTRATIONS
In Dodd and Dodd v Wilson and McWilliam,1208 the claimants, who were 9–337
farmers and cattle breeders, consulted the defendant, who was a veterinary
surgeon, for advice concerning the use of corynebacterium toxoid, a serum which
purported to reduce the incidence of summer mastitis among cattle. The
defendant informed them that he had administered the toxoid to other herds and
had obtained reasonably good results. Although he would not guarantee that the
toxoid would prevent or cure the disease, it could do no harm. He was asked to
inoculate the cattle but many of the beasts became seriously sick as a result of a
defect in the serum used. The defendant was liable inter alia, for breach of an
implied condition in the contract under which his services were supplied that the
serum would be reasonably fit for the purpose for which it was required. In Chute
Farms Ltd v Curtis1209 the defendant, a veterinary surgeon, was called in to treat
the claimants’ thoroughbred yearling colt which had become lame. The treatment
was carried out by an assistant, who merely applied a poultice to the animal’s leg
and the colt died soon afterwards. The defendant was held vicariously liable for
his assistant’s failure to use reasonable care and skill in treating the animal:
proper treatment required injection with anti-tetanus serum. Experience had
shown that a prophylactic dose, administered in time, was successful in the vast
majority of such cases.
1204
See para.9–107 and para.9–109, above. See also Foster, ‘‘The Price of Animal Suffering’’, 143
New L.J. 123.
1205
Glyn v McGarel-Groves, The Times, August 22, 2006, CA (on the facts, a veterinary, instructed
to attend while another veterinary carried out a drugs treatment to a horse, was under a contractual
duty of care not simply to observe the treatment but also to satisfy himself that he knew precisely
what the treatment was, so as to ensure that nothing remotely inappropriate occurred).
1206
Dodd and Dodd v Wilson and McWilliam [1946] 2 All E.R. 691.
1207
1208
[1946] 2 All E.R. 691, above.
1209
The Times, October 10, 1961.
[709]

Chapter 09 - Persons Professing Some Special Skill

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CHAPTER 9

PERSONS PROFESSING SOME SPECIAL SKILL

1. Actions against skilled persons generally ................................................................. 9–01

1.—ACTIONS AGAINST SKILLED PERSONS GENERALLY

The Bolam test is of general application and is not confined to a defendant

practice or opinion in that expertise.9 Inexperience cannot be a defence to a claim

9–05 Expert evidence. In deciding whether an appropriate standard of care and

9–06 In receiving evidence as ‘‘reasonably required’’ to resolve a dispute about

‘‘Clearly, if there is some practice in a profession, some accepted standard of conduct

If there is a delegation to a suitable person the professional will not ordinarily be

duty of care and failure to take a recognised precaution, followed by damage of

(i) Duty arising in contract

interest in the property concerned.60 Similarly, where a surgeon has agreed to

9–17 The situation where a service is to be provided should be distinguished from

(ii) Duty arising in tort

9–19 The duty formulae. In Henderson v Merrett Syndicates Ltd,64 it was

made.73 It can be argued in terms either of an ‘‘assumption of responsibility’’

2.—ACCOUNTANTS AND AUDITORS

Fiduciary duties. An accountant is under a duty to take reasonable care of 9–26

information91 where communicated,92 or to make any secret profit.93 Liability in

Accordingly, where audited accounts incorrectly showed that a company was

9–29 An auditor is not bound to be suspicious, as opposed to reasonably careful.99

Where the managing director of a large insurance company fraudulently 9–30

of the authority, as well as local electors.130 Accountants who prepared annual

9–44 Liquidators, receivers and sequestrators. The liquidator of a company is

9–45 The position of official receivers is somewhat different. An official receiver

Causation and damages. An accountant’s liability in damages is assessed by 9–46

It is always important, as in actions for professional negligence generally, to 9–47

3.—ARCHITECTS, QUANTITY SURVEYORS, STRUCTURAL AND OTHER ENGINEERS,

habitation when completed’’. The statutory duty173 is imposed upon building

In Murphy v Brentwood District Council,190 the House of Lords, considered 9–57

‘‘Where in the normal course of events, a surveyor would be engaged in a survey of a

Where a number of persons acquire an interest in a property after a defect 9–61

9–63 In considering whether such a duty should be imposed it will no doubt be

approving drawings of a defectively designed building where, without authority,

An architect or surveyor will be liable for negligence in failing to measure 9–66

contractor. Thus a final certificate given under such a clause is no estoppel in an

9–68 Architects, as with other professionals, are expected to have a working

9–70 Where architects’ plans are so inaccurate on a matter such as ventilation as to

where if he was careful and competent he would have observed defects on

Equally, however, where substantial risks have to be incurred in a project 9–73

In the absence of expert evidence as to standard practice, the omission of an

9–74 Measure of damages. The damages recoverable against an architect, quantity

5.—BANKERS AND FINANCE COMPANIES

9–81 Giving advice or information. Whilst it is no part of a banker’s ordinary

specifically covered additional unlimited advances to the spouse.254 A duty of

9–86 Assumption of responsibility. A bank did not assume the responsibility of an

Customer’s duty of care. It is appropriate to note for completeness that a 9–90

bank immediately of any unauthorised cheques of which the customer has

9–92 Where there had been no failure to communicate information of sufficient

9–93 The manager of a finance company owes a duty of care to prospective

9–102 It was not a negligent exercise of judgment for a barrister representing a

9–103 Counsel can reasonably be expected to be familiar with decisions reported in

inquiry with reasonable diligence.’’312 There was no liability where counsel

of court proceedings is quite plainly unjustifiable that it can be appropriate to make a

Necessity of the patient’s consent. A medical practitioner cannot examine, 9–112

amounts to an agreement on the part of the patient to permit the treatment in

9–113 In some circumstances an implied consent is insufficient and specific consent

rather than assault.351 Circumstances may arise in which it is necessary to make

9–119 Liability in contract. A distinction needs to be drawn between liability in

Concurrent liability in tort. In tort, no question of warranty, undertaking or 9–121

9–123 One common situation is where a doctor is asked by a prospective employer

Standard of care. The classic summary of McNair J. in Bolam v Friern 9–124