INTRODUCTION TO LEGAL STUDIES

Introduction to Legal Studies

Introduction to Legal Studies

Coursework Brief Part A

The man on the Clapham omnibus is a reasonably educated and intelligent but non-specialist person — a reasonable person, a hypothetical person against whom a defendant's conduct might be judged in an English law civil action for negligence. This standard of care comparable to that which might be exercised by "the man on the Clapham omnibus" was first mentioned by Greer LJ in Hall v. Brooklands Auto-Racing Club (1933) 1 KB 205.

The first reported legal quotation of the phrase is in the 1903 case of McQuire v. Western Morning News a libel case, in which Sir Richard Henn Collins MR attributes it to Lord Bowen, who had died nine years earlier. t is possibly derived from the phrase Public opinion ... is the opinion of the bald-headed man at the back of the omnibus, coined by the 19th century journalist Walter Bagehot to describe the normal man of London. Clapham in south London at the time was a nondescript commuter suburb seen to represent "ordinary" London. Omnibus is now rather an archaic expression for a public bus, but was in common use by the judiciary at the beginning of the 20th century.

Obviously every professional owes a duty of care to his or her clients. In tort this duty of care has evolved and been developed through the common law system whereas in contract, whilst similar, the duty is primarily governed by the interpretation of the contract terms.

The ground rules for the basic duty of care have been formulated over many years and were set out in 1957, by McNair as:

'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 top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill …..he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of … men skilled in that particular art.'

Professional negligence is a substantive area of law and is an ever-increasing area where our clients are seeking advice. The purpose of this article is to briefly consider the following important issues regularly encountered:

1. Liability in both contract and tort.

2. What, if any, are the advantages in suing in tort?

3. General responsibilities and duties.

4. What is the measure of the standard of service to be expected?

5. Damages.

All professionals owe a combination of contractual, tortious, statutory and fiduciary duties to their clients as well as tortious duties to third parties.

Is the professional person liable in both contract and tort?

In relation to whether these responsibilities are concurrent, there have been many cases, particularly in the medical field, which found doctors to have concurrent responsibility in contract and in tort to their patients for physical ...