Is a lawyer liable for negligence in the same way as a doctor?

A doctor carries out 3 duties: he diagnoses, advises and carries out a scheme of treatment for his patient. A lawyer does the same thing; only the methods vary. As do all professionals. Shouldn’t their professional negligence be measured by the same yardstick?

To answer the main question, you need the answer to a few other questions:-

In the first place, could a lawyer be sued for doing a bad job?

Could a doctor be sued for the same reason?

If the answer is ‘Yes’  to both, for what could they be sued?

To answer these question we need to get through some introductory material.

The difference between a barrister and a solicitor

For hundreds of years, the legal profession in the UK was divided between barristers and solicitors. The twain never mixed.

A barrister is a court-going lawyer. It was his exclusive privilege to address the judges.

Why treat the barristers like a protected species?

For over 700 years the barrister was immune from suits. This immunity was ‘ancient’ and  “should be continued”, said the judges, because public policy required that barristers need to be given special treatment.1Rondel v Worsley [1969] 1 AC 191 at 227.  See Roxburgh: 1968.  That  ‘public policy’ demanded that barristers should enjoy immunity was justified by the judges on grounds that “…barristers have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss”:Ali v Sydney Smith Mitchell & Co.[1980] AC 198 at p. 213 (Lord Wilberforce)

The demise of the immunity

That kind of reasoning came to be increasingly questioned. In the twentieth century, the barrister’s immunity began to erode rapidly.

Eventually, in the year 2000, any immunity that barristers enjoyed was swept away, on grounds of, would you believe it, public policy.2Arthur JS Hall & Co v Simons [2000] 3 WLR 543 [HL]

So all legal practitioners were equally liable in negligence.

Question: on what basis could a lawyer or doctor, be sued? In contract or tort?

Contract

You know what a contract is.

If someone enters into a contract with you, and if he breaks it, he must compensate you, or do something he agreed  to.  A contract need not be in writing at all.3 A man could enter into a contract without signing any document, merely by a series of consistent conduct between parties.3sec 8, Contract Act 1950.  For a common law case see e.g., Reveille Independent LLC vs. Anotech International [2015] All ER (D) 237 (Mar)

What is a ‘tort’?

Now, a ‘tort’ is a civil wrong.  You hear about it every day.

If you lost your hand in a car accident, the court cannot return your hand.  It can only order the defendant to pay you money.

Or, if you kept a dangerous animal in your backyard, and it jumped over your fence and killed your neighbour’s dog, he could sue you for damages.

Those two are two example of ‘torts’.

In the law of torts, you have no contract with the defendant. He has a civil duty towards you. He owed you, in three words, a ‘duty of care’.

If he broke it, he was liable.

You get the idea.

Can a lawyer be sued in tort?

At first, a lawyer could only be sued in contract.  The law of torts itself developed quite late.

Torts were first reported in 1580s under Roman law, but one version of it – the popular version – the law on negligence –  found accidental but major revival only as late as 1932.4Donoghue v Stevenson[1932] AC 562

That a lawyer could be sued in tort is a fairly recent idea.

It was only 40 years ago that the courts ruled that a lawyer could be sued in tort, for negligence.5Ross v. Caunters[1979] 3 AER 580

Are lawyers liable in the same way as doctors?

The answer is difficult, in part, because the law of medical negligence is in a mess.

And it has developed in fits and starts, and it progresses at a glacial pace. Someone needs to clean it up.

Let us start in North America.

The ‘Four Ds’

Americans are good at describing complex ideas in simple words.

American lawyers will tell you that you need to have all ‘four Ds’ to prove medical negligence: they call it ‘malpractice’.

The word ‘Malpractice’ is an interesting choice, because it covers not only medical negligence but any kind of professional negligence.

The four Ds are:-

(1) duty (the existence of a duty);

(2) dereliction (or a ‘deviation’ – sometimes called negligence – from the standard of care);

(3) damages; and

(4) direct cause.

[British lawyers usually transpose the order: they will switch (4) with (3)].

Unless each of these ‘Ds’ are present, a malpractice suit will fail.

That is all you need to know about the law of torts – especially one involving professional negligence.

A history of the development of the law of professional malpractice

To appreciate how the law of malpractices developed, it is useful to observe the main ‘peaks’ and ‘valleys’ of the cases that occurred in this area.

Hedley Byrne & Co Ltd v Heller & Partners Ltd and the rule of ‘reasonable reliance’

Professionals are people with specialist knowledge. That has a special value – a status. People act according to the advice of those having that knowledge.  When such reliance results in loss, the tort is established.

Suppose ‘A’, a lawyer, is lunching at Selangor Club. His friend, ‘B’, asks him his advice about a legal problem he has. B pays no fee. A advises B. B relies upon it – and loses money.

Where B can reasonably be expected  to rely upon A’s skill; and A takes it upon himself to advise B, which he should know B will rely on, then, it is said, ‘a duty of care arises.’

If B suffers loss because of it, A has to pay B compensation.

So reasonable reliance is enough to cause liability.

Later cases limited this rule, but the substance of the rule is intact.6 House of Lords in Caparo Industries plc. v Dickman [1990] 2 AC 605; and James McNaughton Papers Group Ltd. v Hicks Anderson & Co.[1991] 1 AER 134 [CA]

So next time someone asks you for legal advice during lunch, talk about the curry. Really.

Next came the test of  ‘Standard of Care’, which was used to test whether a doctor was negligent

‘Standard of Care’ refers to  the minimum level of competence a professional must possess.

If his professional conduct falls below that level – or that ‘standard’ – he could be negligent.

A number of cases tried to ‘define’  this standard – and without fail, and over five decades – tied themselves up into verbal knots.

To study that – of  all places – we have to start with a mental patient.

Bolam v. Friern Hospital Committee

Before the 1980s, the doctors enjoyed total independence. They decided whether a doctor was negligent. So, it was said, ‘Doctors know best’.

The case of Bolam helped strengthen that perception.

Bolam was a mental patient.

He went to hospital for electro-convulsive therapy. During the procedure, he was not given muscle relaxants; nor restrained.

He fell into violent convulsions. The heads of his thigh bones pierced right through his hip bone.7acetabulum

He suffered major injuries. He sued the hospital.8[1957] 1 WLR 583

The judge said that a doctor was not guilty of negligence,

“… if he had acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.”

The judge said  that even if a body of medical experts held the opposite view, that did not matter, so long as the doctor was not “pig-headed”.9 McNair J. at p.587

So the expert opinion of a group of doctors that the treatment was acceptable, was enough.

This was known as the ‘Bolam principle’.

That attitude would change in the 1990s – by then it became,  ‘patient-centered practice’

The 1990s saw courts trying to jettison the Bolam test and move into a ‘patient-centred approach’.

Having experts on your side was not good enough.

Take the case of Mrs. Hucks.

A patient in a maternity ward developed septic infections on her skin. Her doctor knew that there was a risk she would develop puerperal fever.

He did not treat her with penicillin. She succumbed to it.

Several experts testified that they would not have given her any penicillin either.

The court disregarded this ‘expert view’.

The court found the doctor liable because he had put the patient at risk.10Hucks v Cole [1993] 4 Med. L.R. 393

Rogers v. Dr. Whitaker

Mrs. Rogers was blind in one eye.

Dr. Whitaker was her surgeon. She sought his advice.

Could he perform a surgery on her good eye?  If he could, was it safe?

She would agree to go through with the procedure if the answers to both questions were a ‘Yes’.

He said it could be done, and that it was safe.

The chances were 1 in 14,000 that she could go blind.

The doctor performed the surgery with no lack of skill.

She became completely blind.

She sued him for negligence.11Rogers v. Whitaker (1992) 175 CLR 479, High Court

Dr. Whitaker argued that a body of responsible doctors had testified what he had done was not negligent.

Therefore, under the Bolam principle, he said he was not liable.12Bolam v. Friern Hospital Management Committee [1957] WLR 582,pp. 582 to 587

The Australian apex court rejected the English test.

They said:

“When a patient asks for advice, the doctor’s advice must be held up to an objective standard; a standard that is expected of the profession.

Thus developed the principle of ‘patient-centred medical practice’. And not any patient: but this very patient.

That was carried into full force in the Scottish case of Montgomery v Lanarkshire Health Board .13 [2015] UKSC 1

The  Bolam test is now applicable to medical diagnosis & treatment, but not to medical advice

We started by analysing the three main function of doctors: diagnosis, advice and treatment.

The result of the shifting sands of medical law is this: the Bolam test is not to be used to determine whether bad medical advice was given, inadequately or not at all, or denied when such advice was required. For such cases, the Rogers v. Whitaker test is the right tool – which is what?

Such advice must comply with an ‘objective standard’.

What that standard is – is for the court to decide, not to some group of medical experts.

To determine whether a doctor was professionally negligent in his diagnosis or treatment, the correct tool the court has to use, is to see what a group of responsible medical experts had said.

That is the ‘Bolam test’.

Now if you are confused by all this – be reassured.

You are not alone!

Should the doctors’ standard of care be used to test if a lawyer is negligent?

Two cases seem to suggest that the law should treat lawyers the same way as doctors:

Where a doctor is liable, so is a practising lawyer.

Remember the lady in the maternity ward?

That was Hucks v Cole.

There came a time the Privy Council applied the principle in Hucks v Cole to determine whether a lawyer had been negligent.

That was in Hong Kong.

John Stokes & the ‘Hong Kong style’

In Hong Kong, lawyers deal with loan documentation in what they call the ‘Hong Kong style’.

When a property buyer takes a loan, the loan is paid directly to the seller’s lawyers, merely on the latter’s promise (‘undertaking’) to hand over all the seller’s signed documents, later.

This was a widely accepted practice.

In all other jurisdiction, lenders insist on all documents being handed over to them, before they would agree to release the loan to the seller.

In Edward Wong Finance Co. Ltd. v Johnson Stokes & Master14[1984] 1 AC 296 the parties carried out a transaction in the ‘Hong Kong style’. The seller’s lawyer disappeared with the money.

Like Bolam and Hucks v Cole, in Edward Wong numerous experts testified to this practice as being ‘perfectly normal’.

The court found financier’s lawyer negligent, for he had put his client at risk.

Two things are important in this case: the yardstick used to test whether doctors were negligent was utilised assay whether a lawyer was negligent.

Second, the opinion of ‘experts’ in determining that ‘Standard of Care’ among lawyers was considered, but rejected.

Then came the case where a man claimed his solicitors’ advice had been negligent.

Shearn Delamore & Co v Sadacharamani Govindasamy

In 2017, a law firm was sued for giving, allegedly, an erroneous legal opinion on intellectual property law.

The High Court found the firm liable.

On appeal, the Court of Appeal overturned the trial court. The appellate judges felt that there was a difference between ‘mere negligence’ and ‘professional negligence’.15[2017] 1 MLJ 486, paragraph [4]

Here this difference was not appreciated by the trial court.

The judges of the Court of Appeal thought expert opinion ought to have been sought in a case against a lawyer – because it was a professional negligence case.

Significantly, this meant the Court of Appeal judges were leaning towards the Bolam test and not the Rogers v. Whitaker principle – even though what the client sought – quite like Mrs. Rogers –  was ‘advice’.

Eventually, the Court of Appeal ruled that the legal firm not negligent.

The judges said “the ‘Clapham Omnibus reasonable man test’ [presumably referring to the run-of-the-mill negligence cases] would not be applicable in professional negligence cases”.16Ibid, paragraph [5]

The interesting thing is, the judges relied upon a series of medical cases to reach their conclusions.17Dato’ Dr V Thuraisingam & Anor v Sanmarkan a/l Ganapathy & Anor [2016] 3 MLJ 227; [2015] 8 CLJ 248, CA; and Shalini a/p Kanagaratnam v Pusat Perubatan Universiti Malaya (formerly known as University Hospital) & Anor  [2016] 3 MLJ 742; [2016] 6 CLJ 225)

There was no appeal against that decision. So on that question, the case remains the sole authority.

And it is powerful authority.

Now let us examine two  cases that seem to apply the same Standard of Care to lawyers

Is a lawyer liable to non-clients?

Barratt had a quarrel with his two daughters, Pauline and Carole.  He cut them out of his inheritance

Eventually the father reconciled with his daughters.

He gave written instruction to his solicitors, Philip Baker King & Co, to draft a will. He asked the lawyers  to reinstate Pauline and Carole as beneficiaries. He told his daughters.

This was not done. Barratt died.

The daughters got nothing from the Estate.

They sued the solicitors.

The lawyers argued that the daughters were not their clients.  They said they had no contractual relationship with Barratt’s daughters. Nor did they owe any duty of care to the daughters, who were complete strangers.

The House of Lords ruled that the solicitors had ‘assumed a responsibility to their client’,  Barratt.  The lawyers could ‘reasonably foresee’ that if they failed in their duties, there was only one consequence: the daughters would be cut off from the intended legacy.

“In those circumstances, the daughters were entitled to the relief sought”.18White & Another v. Jones & Another Appellants [1995] 2 A.C. 207 at pp. 268C-D, 270A-B, 292F-G, 295C

Does a lawyer have to be as relentlessly inquisitive as Sherlock Holmes?

Suppose a lady comes to a solicitor’s office.

She shows the lawyer various documents that prove she is Jane Alex Smith, and that she owns Land X.

She desires to sell the land to John Doe.

The lawyer acts on it, and completes the transfer to Doe.

Later, it turns out that Jane Smith is an imposter.

The real owner, the original John Ascot Smith, sued the solicitor.19Pushpaleela R Selvarajah & Anor v Rajamani Meyappa Chettiar and other appeals [2019] 2 MLJ 553, see paras 110-112

Was the lawyer liable?

The Malaysian Apex court ruled that to determine whether a lawyer had been negligent, the first question to be asked was whether the lawyer owed a duty of care to the person who has sued him.

To determine the answer to that question,  court has to jump through three hoops, namely:-

(1) Was the harm to the real owner foreseeable?

(2) Was there a close relationship between the real owner and the solicitor?

(3) As a matter of policy, as between the real owner’s loss and the new owner’s (genuine) purchase, where should  the loss fall?

The Federal Court described a formula for the ‘three hoops’ in these words:-

(1) foreseeability,

(2) proximity, and

(3) policy considerations.

The way things happened, the Malaysian apex court ruled, the solicitor was not to be faulted.

The lawyer had acted on the genuine belief that Smith was the real owner.

She had done everything any lawyer would have done.

It was not her duty to investigate who Jane Smith was.

Current status

In Malaysia, in testing whether the doctor’s advice is right, the courts have accepted the Rogers case test as correct.20Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593,Federal Court, Malaysia

For all other kinds of professional negligence – particularly the ‘standard of care’ expected in a doctor’s diagnosis and treatment, the courts seem to have fallen back on a modified version of the Bolam test (‘see what the experts say’).

Bolam seems to have been ‘modified’ because of an unsatisfactory case called Sidaway.

 What really is the standard every doctor or a lawyer should exhibit?

The view that all professionals – practising lawyers, auditors, accountants, and architects  – must be held to the same standard as doctors – that is to say, there is an objective, minimum standard to which every professional must adhere to – is not that far-fetched.

 The problem for the courts will be:

(1).  How is each professional’s Standard of Care to be tested; and

(2).  Who is to determine that standard, the court, or a group of experts in that area, or the client.

Despite the recent decisions of the Malaysian apex court on it, the jury is still out on those questions.

An eye to the future…

The way the law is developing, it is entirely possible that the Supreme Court of the United Kingdom might still fall back on some form of a modified Bolam test.

And so we wait…

 

 

[The author expresses his gratitude to Ms Sharmini Navaratnam and Mr. JP Prabhkirat Singh]

 

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