Question

•According to the law, professionals, and experts are held to a higher standard of care

•In other words, the courts will hold a professional to the standard of a reasonable professional in their field of expertise

•For this chapter’s journal entry:

  1) Comment on whether you think it is fair or unfair of the courts to do   the above and explain   why;

  2) Explain how knowing the court’s approach to professional liability   should help someone   who intends to practice in an occupation where liability is potentially an issue (i.e. why is it   essential that professionals keep up-to-date with changes in their occupation?); and

  3) Provide an opinion on whether or not the final judgment in Hedley Byrne v. Heller was fair and explain why you think so.

Answer 1

Q: 1) Comment on whether you think it is fair or unfair of the courts to do the above and explain why.

A: It is not unfair but instead fair for the courts to be of such an opinion on the 'assumption of responsbility' in these types of cases of pure economic losses even in the types of non-contractual relationships where the expert advice is being relied upon for economic gain by one party 'x' on another party 'y' and seeks the fiscal history and credit rating of that party 'y' from that party "y's" bankers in order to verify the credibility and economic standing of that party 'y' before party 'x' enters into a contract with 'y' out of "x's" risk management.

Q: 2) Explain how knowing the court’s approach to professional liability should help someone who intends to practice in an occupation where liability is potentially an issue (i.e., why is it essential that professionals keep up-to-date with changes in their occupation?)

A: Knowing the courts' approach to professional liability should help someone who intends to practice in an occupation where liability is potentially an issue by making them aware of the fact that they owe a duty of care to their external stakeholders such as clients, customers, , business or trading partners, etc. and that if the were to violate any professional standards they can be taken to task and face prosecution for negligence arising out of any losses or damages to another party under tort law. The courts can hold such parties for negligence on the 'assumption of responsibility' even in the case of non-contractual relationship where the expert advise is being relied on for any further economic activities like in the case of Hedley Byrne v. Heller.

For example, in the case of a doctor, a doctor or registered/licensed medical practitioner should be knowledgeable and up-to-date with the latest medical practices including prescription drugs which if not done so, can lead to serious complications and negligence in the case of obsolete information by the prescribing doctor on the adverse side effects and allergy information of drugs.

Q: Provide an opinion on whether or not the final judgment in Hedley Byrne v. Heller was fair and explain why you think so.

A: In this case Hedley Byrne v. Heller, the final judgment is unfair to the bankers, Heller & Partners Ltd., who were asked by a third party advertising firm Hedley Byrne to give advice on the creditworthiness and and financial position on their customer Easipower (in order to ascertain whether they would enter into a contract with Easipower) from their bankers Heller & Partners Ltd. arising out of the "special relationship" between the bankers Heller & Partners Ltd. and their customer Easipower. The banker (Heller & Partners Ltd.) on its part gave its advice as on date of its reply to Hedley Byrne that its customer Easipower was ""considered good for its ordinary business engagements." along with a caveat / condition: "without responsibility on the part of this bank." So, in this instance, the banker Heller did put in a caveat pertaining to its risk liability as well as it would be unfair to blame the banker as it is different from a doctor's prescription where the doctor's prescription is valid for present and ongoing consumption of a drug by a patient, a banker's advice on a customer can only be valid as on date of its report/reply and perhaps in the limited near future and can't be for an indefinite period of time. The banker may give its advice based on the history or track record and as a result make a general assessment on creditworthiness but it cannot predict the future and make a future assessment based on a hypothesis, so its assessment can only be in the present sense and can change in the future depending on further information it can keep modifying its future assessments on creditworthiness unless it is proved that the banker had a malicious intention to deliberately withhold critical information or provide erroneous information on a customers creditworthiness. If a customer misappropriates, mismanages or commits economic fraud on its own then the banker can't stand guarantee for such unless it is involved and an accomplice. Unless the banker has a malicious intention to withhold critical information, hide or manipulate facts or provide erroneous information, the banker should not be held liable for the future financial mismanagement of one of its customers.