Tort law - negligent misstatement

Many professionals are confused about their liability under the law of negligence. Generally, for most professionals, their liability is not so much for pure negligence but more likely for negligent misstatement.

The law of negligence (what I will refer to as "pure negligence") covers careless acts or omissions. This means that the person concerned did or did not do something physical - for example, a surgeon who operates on the wrong organ of a patient.

The bulk of professionals however, do not perform physical acts for their client. The expertise comes from their knowledge and skill. The product of this is information provided to the client. This information can be in many forms such as reports, recomendations, advice, etc. Where the information whether written or oral is incorrect, then there may be liability for negligent misstatement.

The client will have to prove 3 main requirements in court to sue -

• duty of care owed by the professional to the client,
• breach of duty by the professional, and
  
• damage or harm caused to the client by the professional's breach of duty.

The earlier posts about the Bolam and the Bolitho tests relate to the 2nd requirement of whether the professional has breached his duty of care.

There may sometimes be an overlap between pure negligence and negligent misstatement - for example, if a pharmacist gives the wrong pills to someone and says "take these for your illness"; but these situations are not common.