In the simplest terms, professionals are persons who have more than an average person’s skill, ability and training in any specific domain. Negligence committed by them in the course of performing a professional function is professional negligence. Generally, if professional negligence has been committed, the person who has been adversely affected by it can seek a legal remedy provided certain conditions are met and established.
Firstly, the professional must have represented that he has certain skills which are beyond that which a lay person has. In addition to this, he should have owed a duty of care to the person who claims he has been harmed, and he must have committed a breach of that duty. There must, of course, be harm caused by the professional’s breach of duty.
Whether or not a professional has breached his duty is determined by comparing the manner he has rendered services to the manner in which a reasonable person, acting in the same professional capacity, would be expected to render services. Specific professions may have guidelines, rules or laws which state exactly what a breach of professional duty would involve, and the standard cannot be lowered. However, if a professional were to represent that he would provide services of a much higher standard than a ‘reasonable’ person would provide, it would be entirely possible for the standards vis-a -vis that particular professional in that case to be raised accordingly.
Remedies for professional negligence could exist under contract law, the law of specific performance, tort law and various statutory laws. For example, Section 5 of the 1925 Legal Practitioner’s (Fees) Act says that lawyers may be liable for professional negligence.1 Theoretically, liability under both tort and contract could lie simultaneously, and a suit could be filed as such. However, since liability under contract arises from a voluntary agreement between the parties to it, and liability under tort law arises from English Common Law principles and case law, there are subtle differences between the two. Also, a claim under contract law could often be hard to prove since contracts with professionals are often implied contracts – few people sign written contracts with professionals they deal with such as their doctors, lawyers and accountants.
Remedies in cases of negligence can be sought at civil courts and, in some cases, in criminal courts.2 In India, it has begun to make sense to seek remedies for professional negligence under the 1986 Consumer Protection Act since the procedure followed by Consumer Dispute Redressal Agencies is, inter alia, not as long drawn out or as fraught with technicalities as the procedure of regular courts. The agencies are empowered to deal with deficiencies3 of professional service and award damages provided the service has not been rendered free of charge or under a contract of personal service.4
Even if the doors of agencies created under the Consumer Protection Act are closed to claimants though, the other avenues to obtain remedies remain open to claimants. It may be possible to challenge clauses in contracts including standard format contracts which limit the liability of professionals in cases of negligence on various bases such as unconscionability. And agreements which completely restrain recourse to legal remedies are void.5
(This article is by Nandita Saikia and was first published at LawMatters.in.)
References:
1. No legal practitioner who has acted or has agreed to act shall, by reason only of being a legal practitioner be exempted from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
2. See Sections 304A, 336, 337, 338, Indian Penal Code, 1860
3. Section 2(g), Consumer Protection Act, 1986
4. Section 2(o), Consumer Protection Act, 1986
5. Section 28, Indian Contract Act, 1872