Discussion

Professional negligence claims:
Professional negligence claims can be brought in both breach of contract and in negligence. The tests for each are different, as is the measure of damages that are recoverable.

1. Contract:
1.1 There is likely to be a contract between vet and client setting out the terms between them. There will generally be a term implied that reasonable care and skill must be exercised by the vet. In addition the vet must also comply with the other terms in the contract; failure to do so may also give rise to a professional negligence claim.

1.2 Damages for breach of contract are designed to put the claimant in the position he would have been in had the contract been carried out in line with the terms of the contract.

2 Negligence
There are 3 essential elements of a successful professional negligence claim.

2.1 Duty of care:
The defendant must owe a duty of care to the claimant. A vet owes a common law duty to exercise reasonable skill and care in his treatments of an animal, in addition to any contractual duties which may be owed.

2.2 Breach of duty:
A defendant breaches the duty of care when they fail to maintain the standards expected of a reasonably competent vet.
In considering the standard of care of a reasonably competent vet, relevant factors are:
- The standards of the profession at the time, for example the written standards of the Royal College of Veterinary Surgeons
- That there may be more than one accepted approach;
- That the vet is not necessarily expected to perform to what is currently 'best practice' just that a reasonable approach has been taken; and
- The experience of the vet is not a relevant consideration; an objective approach is adopted based on the standard of skill and care of the veterinary profession generally, rather a subjective approach based on the individual vet's qualifications and experience.

A breach of duty could arise, for example in a vet:
- Failing to prevent illness;
- Failing to attend or examine a horse;
- Wrong diagnosis;
- Error in the course of treatment;
- Failure of communication between vets and their surgery;
- Failure to explain treatment or warn of risks.

2.3 Loss:
There are a number of tests which are used to determine whether the loss was caused by a professional's negligent act. In the majority of cases the 'but for' test is applied and is sufficient to establish causation in most cases. This test asks whether the claimant would have suffered the loss but for the defendants negligent act, for example 'but for the vet's negligent treatment of the horse, would the horse have recovered fully from its injury?'
The kind of loss claimed must also have been foreseeable in order that it can be recovered by the claimant. In many veterinary negligence cases, the loss of which the claimant complains is either the continuance of some illness or injury in the horse which ought to have been cured or prevented or else the infliction of some new injury in the course of treatment. In practice the injury is normally foreseeable.

2.4 Damages in tort are assessed on the basis of putting a claimant back in the position, as far as is possible, that he would have been in had the tortious act never occurred.