Professional Negligence occurs when an individual or a business acting in a professional capacity fails to perform their job to the required standard for their customer/client. The term ‘professional’ is quite broad and so for an example, this could be a professional trustee, an accountant, a surveyor, a solicitor, an engineer, an IT professional, a personal trainer and so on.
The law surrounding professional negligence may be confusing and there are key points to consider when considering a claim for professional negligence. This includes Duty of Care and the breach of such duty, Causation, Loss, and time limits.
Duty of Care
A professional negligence claim must be able to demonstrate that the professional involved owed a duty of care to the person instructing them. This is usually when the duty of care is created. Sometimes, the duty of care is specified in the professionals’ terms of business or letter of engagement. Sometimes, when such a contract does not exist, the duty of care may exist, and this will need investigating further. Additionally, a professional holding themselves out to be a ‘professional’ in their chosen field will also be a under a general duty to act with reasonable care and skill.
Establishing a duty of care is key when establishing a case for professional negligence.
Breach of Duty of Care
A potential claimant will have to demonstrate that (a) a duty of care existed and (b) that duty of care was breached by the professional.
It should be noted that a slight error may not amount to a breach of the duty of care. However, a breach will have occurred if the professional has not performed to a level that is accepted as being with reasonable care and skill in their chosen profession or industry.
Causation
This is a key component when establishing whether a claim in professional negligence can be brought. Proving this can be quite complex. A potential claimant will have to demonstrate that the breach of duty caused them to suffer a loss. If the potential claimant cannot establish such a loss, then they will not be able to proceed with a claim for professional negligence. This means that if a professional had made a significant error, but this error did not cause the potential claimant to suffer a loss, then proceedings against that professional cannot be brought.
This is where the ‘but for’ test is used as a starting point. This outlines that the professional will only be responsible for the loss of the potential claimant if their loss would not have occurred ‘but for’ the negligence of the professional.
Loss
Another key component of establishing whether a claim can be made is loss. This can also be complex. It is not always easy to quantify that loss and may require further forensic investigative work to determine whether loss has occurred and by how much.
The law places a duty on a person or business involved to mitigate their loss in such a situation. Evidence to demonstrate that reasonable steps were taken to mitigate any losses which was caused by the negligence of the professional involved should be provided. The law does not allow a claimant to recover damages for losses which could have been avoided had those reasonable steps been taken. Similarly, a claimant cannot recover damages for losses that a court deems as unreasonable.
Time limits
Anyone wishing to bring a claim for professional negligence or wishing to defend such a case should be mindful of the six year limitation period under the Limitation Act 1980. However, establishing the date of when the time limit runs from can be complicated and may require further investigative work.
If you would like further advice in relation to professional negligence claims, then do contact a member of our team on 0800 567 7595 or email enquiries@summerfieldbrowne.com
