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Professional Liability

Professional Liability in light of recent Court Cases and Defences to the Liability

In today’s economy, professional services have become prevalent in every aspect of the society as can be seen through the practices of doctors, lawyers, accountants, engineers, and etc. Meanwhile such prevalence is all the more increasing the possibility of harm caused by negligent conduct of the professionals.   The implication of the liability of professionals is pervasive and significant as more population is relying on their services than ever before. “Professional” is a person with special knowledge and skills that their clients rely on. In most cases, a professional body would confer licenses to “professionals” to practice such profession and govern the actions of their members. The court has dealt with numerous cases over the past where the professionals were implicated in the economic harm of their clients or even third-parties. The law of professional liability has been developed through these cases, shedding light on the scope of duty and the class of persons to whom it is owed. This essay purports to discuss the most important cases that have laid cornerstones of the law of professional liability. The liability pertaining to the professionals rise from: (i) contractual duty (ii) fiduciary duty (iii) duty in tort. The essay will put its emphasis on the last case, as the law of negligence is usually at the heart of most lawsuits.

Fiduciary Duty:
A principle of equity imposes a fiduciary duty where a person is in a special relationship of trust as in the case of the professional-client relationship. Frame v. Smith   set out general rule for when fiduciary duty exists: (i) The fiduciary has scope for exercise of some of the discretion or power; (ii) The fiduciary can unilaterally exercise that power or discretion to affect the beneficiary’s legal or practical interests.; (iii) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the...