Serving as an umbrella term for the compensation process, the UK tort law addresses both professional negligence and general liability, also referred to as non-professional negligence. The UK tort law comprises three major concepts: negligence, strict and specific torts, and vicarious liability. The two latter sections provide a rationale for a principal difference between professional and non-professional negligence.
As far as negligence is concerned, it is of paramount importance to outline that the standards of care for professional negligence differ from ordinary cases. According to the Occupiers’ Liability Act, every occupier who provides services or property to society is expected to present a minimum duty of care1. Such a decision is justified by the fact that one’s professional competence implies a certain level of skills and expertise in the field. For example, in a clinical context, one’s failure to provide quality assessment cannot be justified by lack of experience. In FB v Princess Alexandra Hospital NHS Trust, a junior doctor who failed to diagnose a child with pneumococcal meningitis was regarded as negligent2. Another case of doctoral negligence, Darnley v Croydon Health Services NHS Trust3, demonstrates that providing the patient with misleading information, when causing harm to one’s health, should be compensated by the occupier.
The duty of care principle is a central concept of the tort law, as it implies that one individual accepts the duty to guarantee safety and the absence of harm to another individual. The landmark for the duty of care is the Donoghue v Stevenson case, where the plaintiff accused the defendant of negligence because she felt ill after drinking a ginger beer with a decomposed snail inside4. Another example of a breach of duty of care is Robinson v Chief Constable of West Yorkshire Police, as this case demonstrates how the plaintiff was remedied for an injury that was received during the police officers’ attempt to arrest a drug-dealer5. Hence, these incidents demonstrate that people and bodies providing services to others bear a higher level of public responsibility for safety and overall well-being.
However, once the minimal duty of care for occupiers’ defence is ignored, the responsibility for possible harm no longer belongs solely to the occupier or the property owner. For example, in Roles v Nathan, two chimney workers died due to a carbon monoxide-related fire.6 The defendant was not found guilty because, as an occupier, he gave the workers three warnings, and they were not expected to proceed to work in a hazardous environment. A similar decision was held by the court in Tomlinson v Congleton BC, as the plaintiff accused the city council of harm to his physical and mental health as a result of diving in a local park’s lake7. However, while the visitors were not expected to swim in a lake in the first place, the duty of care charges were irrelevant.
Undeniably, there are claims that non-professional negligence, sometimes causing more detrimental effects, should not be regarded as an ordinary case. For example, in Mulholland v Medway NHS Foundation Trust, misdiagnosed brain tumour was not regarded explicitly as professional negligence, as the outcomes of treatment would not be much different in the long term8. However, when dealing with professional care, it is necessary to realize that the harm caused by an occupier was either intentional or the one demonstrating lack of proper expertise the in field.
While the duty of care should be minimal, the UK tort law promotes the rule of the eggshell skull, according to which the victim’s natural predisposition or vulnerability does not undermine the scope of negligence. For example, in Smith v Leech Brain & Co Ltd9, the plaintiff’s natural predisposition to cancer was not the reason for the claimant to have no compensation allowance. Thus, considering the UK tort law system, it becomes evident that professional negligence is regarded from a more complex and rigorous perspective due to the expertise level required to provide a service, as compared to the non-professional negligence.
Footnotes
- Occupiers’ Liability Act 1957
- FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334
- Darnley v Croydon Health Services NHS Trust [2018] UKSC 50
- Donoghue v Stevenson [1932] UKHL 100
- Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4
- Roles v. Nathan [1963] 1 W.L.R. 1117, [1963] 2 All E.R. 908
- Tomlinson v Congleton Borough Council [2003] UKHL 47
- Mulholland v Medway NHS Foundation Trust. [2015] EWHC 268
- Smith v Leech Brain & Co [1962] 2 QB 405