1. An Overview of the Law on Professional Negligence in Sri Lanka
Mangala Wijesinghe, Senior Lecturer
Faculty of Law
Gen Sir John Kotelawala Defence University
Abstract
The Sri Lankan Society considers that being a member of a learned profession is an
immeasurable privilege, and characteristically holds the learned professions in high esteem. The
inevitable corollary to this social phenomenon is the creation of an almost insurmountable
intellectual barrier between the professional and non-professional classes, and the ensuing social
sacrilege if the latter dares to question or challenge the authority, integrity and opinion of the
former. As a result, the law of professional negligence in Sri Lanka has evolved with reluctance and
instances of adjudication on liability for professional negligence are few and far between.
If a person who has or professes to have special knowledge and skill, makes a representation
by virtue thereof to another - be it information, opinion or advice - with the intention of' inducing
him to enter into a contract with him, he is under a duty to use reasonable care to ensure that the
representation is correct, and that such information, opinion of advice is reliable. If he negligently
provides misleading information or expresses an erroneous opinion or gives unsound advice, and
thereby induces the other side to contract with him, he will be liable in damages.
The law of negligence in Sri Lanka is based on the principles of Roman Dutch Law which is
the common law of the country and the English Law. Negligence will not be a ground of civil
liability unless there existed in the particular case a legal duty to use care. The legal conception of
negligence, therefore involves two elements - a duty of care and a breach of that duty.
Thus, it would be seen that every incident of negligence will not ground an action for
damages: An action would lie only in a situation where there is a legal duty to take care. The duty of
care may arise from contract as in the case of professionals or technicians providing services for a
fee. Or, it may be imposed by the law considering the nature of the relationship between the person
charged with negligence and the person who suffers injury or harm. The duty of care is a common
feature in both Roman Dutch Law and English Common Law.
The complex and ever evolving conditions of modern professional and business life will
continually require fresh analyses of the concept of the legal duty to exercise care and the test of the
foresight of the hypothetical reasonable person. The liability of different kinds of professionals for
different kinds of negligence will have to be determined, on the facts of each case, by the
application of well-established principles illustrated by a wealth of case law drawn from many
different jurisdictions.
Key Words: professional negligence, civil liability, duty of care, Roman Dutch Law, English
Common Law