Legal Liability Considerations for Consultants

Origins and character of liability “Tortious liability arises from a breach of a duty primarily fixed by law; such a duty is towards persons generally and its breach is redressed by an action of unliquidated damages” Quote by Winfield

Elements to a claim Duty of Care Breach of the duty Resultant loss

Liability may occur by A contractual duty A statutory duty (query criminal) Negligence (at common law)

Who may owe a duty to whom Donoghue v Stevenson (1932) Lack of privity of contract did not prevent the claimant from claiming Negligence accepted as a separate tort in its own right Established the neighbour principle

Lord Aitkin “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure you neighbour. Who then in Law is my neighbour?... Persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being effected so when I am directing my mind to the acts or omissions in question”

Caparo v Dickman (1990) The relevance to specialists Proximity Reasonable, just and fair

Breach of duty the standard of care Two standards of care exist Objective test (reasonable man) Subjective test (individual)

The standard of care of experts and professionals Bolam v Friern Hospital Management Committee (1957) A question of negligence Mc Nair J established the standard of care appropriate to professionals: “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 Clapham omnibus, because he has not got the skill”

Dick Bentley Productions v Harold Smith Motors [1965] 2 All ER 65 Special Knowledge or Skill from Lord Denning MR “…Here we have a dealer, Mr Smith, who was in a position to know, or at least to find out, the history of the car….He ought to have known better…” “in a position to know the true position or at least to find out”

Case study Mr. McCann sells his car by PX to Coopersducks (a dealership). Coopersducks sell the vehicle via the ABC auction. Arthur Daley buys the vehicle from the auction and sells it to Heathrobinson (a dealership) they in turn sell by way of retail to Mr. Smith. Mr. Smith returns the car to Heathrobinson, stating it has had major accident damage; Heathrobinson refunds Mr. Smith and compel Arthur Daley to refund them. Arthur Daley now seeks to reject the vehicle to Coopersducks for a full refund on the basis the car has suffered major damage which should have been declared by Coopersducks when supplying the vehicle to auction Group legal at Coopersducks are minded to settle with Mr. Daley at £30,000 Prior to settling the matter they have sought your advice on the matter Note: Mr. Smith obtained a wheel alignment check showing the vehicle o/s/r wheel to be misaligned and that the front wheel alignment is outside tolerance.