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Professional negligence law deals with doctors, architects, engineers and various other professionals whose activities can cause harm to their clients. As the Law Council’s report to the Negligence Review Panel 2002 states, a professional person owes “a general duty to exercise competent care and skill to the level of the ordinary person in the profession.” However, in professional negligence law, if a person is vulnerable and the professional has a great deal of control, the duty of the professional towards that person will be non-delegable. Owning non delegable duty towards another will simply mean that the person who owes the duty cannot delegate it to another for its performance. Courts have often emphasized that the non-delegable duty does not amount to strict liability, but the person owing the duty will have the ultimate responsibility to make sure that the duty is performed to the expected standard of care. The standard of care in professional negligence law is the standard of the reasonable professional person. It applies to all sorts of professionals whose activities might cause a risk of personal injury, such as architects, plumbers, engineers and builders. One area where the non delegable duty plays a major role is the relationship between hospitals and patients. In a number of cases, including Allbrington v RPAH Hospital (1980) 2 NSWLR 542 and Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, the view that the hospital owes a non-delegable duty to the patients was upheld. If the patient consults the doctor privately, it will be the doctor who owes this duty, rather than the hospital. In Elliot v Bickerstaff [1999] NSWCA 453 it was held that even though the doctor owes the non delegable duty in such a case, if the hospital premises is used for the treatment of the patient, the hospital may nevertheless owe a non delegable duty of care to the patient.
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