A Guide to Professional Negligence

In law, negligence occurs when someone causes injury or a loss to someone else because of their own reckless or careless behaviour.

People can be negligent in their everyday lives if they fail to consider the consequences of their actions, or use less care than a reasonable person would in specific circumstances.

Legally, negligence is defined as:

Conduct which falls below a required standard to protect others against unreasonable risk of harm.

Once duty of care has been established, any breach in this duty of care, resulting in personal or financial injury, will come under the law of negligence.

Professionals, in whatever line of work they are in, represent themselves as having above average skills or abilities.

Therefore, we expect these professionals to exercise a reasonable degree of skill and care in the work they do. This is their duty of care.

For example, when you have paid for certain professional services, you would expect this duty of care to apply.

If, however, the professional concerned does not exercise the skill or care expected, then they have failed in their duty of care.

Because the defendant in a professional negligence claim is regarded as a professional within their industry, their skills and abilities are expected to be beyond those of an average or reasonable person.

This forms the crux of a professional negligence claim: the standard of service the defendant has provided is compared to that of similar professionals, who claim to have similar skills and abilities.

The claim will test whether the defendant has breached the duty of care they owed to the claimant by looking at the standard of service they have provided.

Professional negligence is a wide-ranging area of law, with the potential to cover all industries.

Negligence can occur in your own workplace, for example, or when professionals carry out work on your behalf, such as accountants, builders, architects or solicitors.

There are also cases of medical negligence, arising from personal injuries during medical procedures or other forms of healthcare.

• You could find yourself living in a building that is unsafe or harmful to your health, due to the work of a professional builder or architect falling below expected professional standards.
• Poor financial advice or accounting errors can have an impact where you lose money.
• IT errors can lead to irretrievable data loss or online security breaches with serious consequences.
• Professional negligence can come from medical malpractice, where illnesses are not diagnosed in time, or misdiagnosed, or the wrong treatments are prescribed.
• If a solicitor makes a mistake in drafting your Will, this can have long-reaching consequences and may then be found to be negligent.

Sometimes, it is about receiving bad advice from professionals; or failing to supply sufficient information, which could influence an important decision. In other situations, professional negligence can have a direct, detrimental effect on someone’s health and wellbeing.

A professional person should act in such a way towards you that you do not suffer physical harm or financial loss.

If you have suffered physical harm or financial loss as a result of the failure of a professional person or organisation to provide an acceptable standard of service, then you can bring a claim of professional negligence against them.

To prove a professional negligence claim, you must establish that the defendant has caused you injury or financial loss, because they breached their duty of care.

This means presenting clear evidence and, therefore, seeking good legal advice about making your claim.

Professional negligence cases can be complex, which means claims take time to settle.

However, there is a legal time limit for these cases, known as the Primary Limitation Period.

This period applies both to professional negligence claims based on contract law, and on common tort law of negligence.

It sets a time limit of six years, either from the date a breach of contract has occurred, or when the claimant suffered a financial loss.

During a professional negligence case, there is procedure, known as the Professional Negligence Pre-action Protocol.

This is a framework for the exchange of information between parties early on, to help streamline the process:

• You issue a letter of claim to the professional you are claiming against
• They must acknowledge this letter within 21 days of receiving it
• They then have three months to investigate it, and then either to propose to settle or to dispute the claim.

If there is no settlement following this protocol, then your side must issue court proceedings.

It can take around 12 months for a claim to reach trial after this.

If the claim does go to trial, then the claimant and other major witnesses are usually called on to give evidence.

But, many professional negligence claims are still settled before going to trial, even if this happens after the issuing of court proceedings.

Proving professional negligence is about you being able to establish that you have suffered a financial loss or injury because the professional you employed has breached their duty of care towards you.

You can make this claim against anyone who is considered to have expertise in the services they provide.

There are three basic elements the claimant must prove:

• That the professional owed a duty of care
• That they acted in breach of this duty, and
• This breach was the cause of loss to the claimant.

Following the proper procedure will greatly improve the chances of a successful claim, as will providing as much evidence, including paperwork, from the very start.

In nearly all professional negligence cases, expert evidence plays a crucial part in proving the claim.

Therefore, it is important to get the right kind of legal advice and support when making a claim.

This can be a complex area of law, and identifying your losses correctly, and comprehensively, requires an experienced, practiced legal eye.

It is also worth reiterating that there are time limits to making a professional negligence claim, and success also depends on keeping within them.

The other side of the coin is if you are a professional and someone is making a negligence claim against you.

Here, the same factors apply when it comes to what constitutes negligence:

• Did you owe a duty of care to the claimant?
• Did you breach this duty of care?
• Has the claimant suffered a loss as a result of this breach?

This will mean looking at the claimant’s evidence, exchanged under the pre-action protocol.

You must determine first whether you have had a duty of care that you have breached, and, if so, whether the claimant has suffered a loss as a result of this.

You may feel you want to defend yourself against the claim because you do not believe you were negligent, or if you feel the claimant has over-stated the value of the claim.

One defence can be contributory negligence, if you think the claimant has, in some way, caused or contributed to the losses they have suffered.

One example of contributory negligence is where an employee in the workplace has not worn recommended safety equipment required for a task, and even though this has not caused the accident, not wearing it has added it their injury.

As a professional, you must have professional indemnity insurance to cover any potential claims made against you.

Your insurers will then instruct solicitors to deal with a professional negligence claim made against you.

This will mean looking at the claimant’s evidence, exchanged under the pre-action protocol.

You must determine first whether you have had a duty of care that you have breached, and, if so, whether the claimant has suffered a loss as a result of this.

You may feel you want to defend yourself against the claim because you do not believe you were negligent, or if you feel the claimant has over-stated the value of the claim.

One defence can be contributory negligence, if you think the claimant has, in some way, caused or contributed to the losses they have suffered.

One example of contributory negligence is where an employee in the workplace has not worn recommended safety equipment required for a task, and even though this has not caused the accident, not wearing it has added it their injury.

As a professional, you must have professional indemnity insurance to cover any potential claims made against you.

Your insurers will then instruct solicitors to deal with a professional negligence claim made against you.

When considering a professional negligence claim, there are five key elements involved.

For a claimant’s case to be successful, all these elements will need to be present in a negligence case.

Did the professional (the defendant) owe a duty of care to the claimant?

This depends on whether, legally, there is a recognised relationship between the professional and the claimant, with the claimant requiring the professional to act in a particular manner.

Would a reasonable person find that this duty of care was in place?

If a duty of care has been established, is there then evidence that the professional acted in such a way that breached this duty?

It is not enough for the claimant to prove that the duty of care existed. They must also provide evidence to demonstrate that the professional failed to exercise reasonable care in fulfilling this duty.

If the claimant can prove the breach of duty, they must provide evidence that the professional’s actions were then the cause of injury to the claimant.

Typically, this argument is made by looking at whether the injury would have occurred if the defendant had not acted in a particular way.

This is establishing the cause in fact.

This relates to the scope of the defendant’s responsibility for causing the claimant’s injury.

Were the consequences of the defendant’s actions, which caused the injury to the claimant, foreseeable?

If the damage or injury are shown not to have been foreseeable by the defendant, then they lie outside the scope of their responsibility.

To claim for professional negligence, there has to be evidence of personal injury, damage or financial loss to the claimant.

The defendant may have failed to exercise reasonable care, but this must result in actual damages to the claimant for there to be a professional negligence claim.

Before pursuing a claim, you should make sure that these key elements are present, and that the defendant would not be able to argue that you contributed in some way to the losses you have suffered.

There are different forms of professional negligence, including:

• Financial advice and accountancy
• Legal
• Architectural
• Medical.