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Professional Negligence

Many professionals (doctors, solicitors, dentists, architects, surveyors etc.) provide services to “consumers”.
Section 2 (1) of the Consumer Protection Act 2007 defines a consumer:

“” consumer ” means a natural person (whether in the State or not) who is acting for purposes unrelated to the person’s trade, business or profession;”

Services are covered by the Act of 2007 explicitly and under the definition of “product” which “means goods or services”.
The Act prohibits misleading commercial practices and provides:

“46.- (1) A commercial practice is misleading if the trader omits or conceals material information that the average consumer would need, in the context, to make an informed transactional decision…”

The Act defines “transactional decision” as:

” transactional decision ” means, in relation to a consumer transaction, any decision by the consumer concerning whether, how or on what terms to do, or refrain from doing, any of the following:
…(e) exercise a contractual right in relation to the product;”

Section 46 transposes the terms of Article 7 of the Unfair Commercial Practices Directive into Irish law. The section prohibits the omission or concealment of information and/or the provision of such information if it is… “unclear”… etc. Prior to Section 46 it was not statutorily misleading to withhold relevant information from a consumer. “Contractual right” includes the right to issue proceedings and to know the factual basis of that right. In short, Section 46 of the Act of 2007 appears to require of a “trader” that he/she/it disclose to a consumer facts necessary to ground a claim of negligence against the professional.
Previously, the nearest pertinent law on this was seen applied in Gough v Neary & Anor. [2003] IESC

Judge Goeghegan said in that case:

“The plaintiff did not know that contrary to the false information given to her the hysterectomy was unnecessary until late 1998 or, indeed, some time after that when as a consequence of media coverage in relation to Dr. Neary and hysterectomies which he had carried out on a number of patients in connection with birth deliveries, she acquired the knowledge that the operation was unnecessary. That being so and in the absence of authorities, I would be of opinion that the plea of statute bar must fail.”

The Consumer Protection Act 2007 appears to have moved the focus from the positive action of the Defendant to the deprived (of knowledge) state of the Plaintiff.
Concomitant rights of discovery would seem to follow in any litigation where the Plaintiff is a “consumer”. Current rules of court do not appear to recognize this.

Where the professional is in the building business (or is a builder), Section 46 of the Act of 2007 will affect the “contractual” duty on such a professional of making disclosure of defects in, say, design, even after the completion of the contract.
See New Islington New Islington and Hackney Housing Association Ltd v. Pollard Thomas and Edwards Ltd [2000] EWHC Technology 43.