Professional Negligence

Claims in professional negligence can be extremely complicated. To give a very brief and basic idea as to some of the key concepts involved, please see below. It is intended only to give a flavour of a professional negligence claim.

Where a professional has been engaged to act for a client, the fact of that engagement gives rise potentially to what is known as a “duty of care.” This is a legal term that describes the obligation the professional has to the client. A professional may be liable to their client if they breach the duty of care.

Equally, the professional may have contractual obligations to the client, pursuant to the Supply of Goods and Services Act 1982, and the Professional’s own terms, or those terms agreed between the professional and the client. A professional may be liable to their client if they breach the contractual terms.

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It is therefore vitally important to be clear as to the scope of the duty of care and also the terms of the contract, not least because any loss claimed must come within the scope of the duty owed.

There are tests to be applied but it is not a simple task. For example, the extent of the duty of care owed or the contractual duty owed (depending on the wording of the contract) is affected by who the client is. When dealing with business clients, the professional may be entitled to assume that he is being required only to respond to specific requests for advice. However, the scope of the duty owed will be deemed to be considerably more wide ranging when dealing with an elderly client, especially if they suggest they might want the professional to do something, which at first glance would appear to be contrary to their best interests, such as selling their property at a reduced value.

The next step is to establish breach. In order to do so, it is necessary to consider the standard of care provided. Again, there are tests to be applied. It is important to bear in mind that the experience of professional is not a factor that will be taken into account in determining the level of standard of care that should have been provided. The standard to be tested against the professional’s actual standard of care will always be that of the reasonably competent professional, unless for example, the professional holds himself or herself out as being specialist in a certain field, in which case the standard to be applied is that of the reasonably competent specialist professional, meaning that the client could possibly anticipate a higher standard of service.

Once breach of contract or breach of duty is established, it is then a case of determining how much the client can claim as a result. Broadly it is necessary to show the loss has been suffered as a result of the breach. It is not simple. Again there are tests to be applied.

In many professional negligence cases, particularly where poor advice has been given, the poor advice itself can’t be said to have caused the loss, but it may have meant that the client lost out on a chance to secure a benefit or avoid a loss. Generally, if that loss of chance is more than speculative, the court will find that the client is able to claim for loss of chance, but the court may discount the overall claim (perhaps substantially) when it evaluates the loss of chance, meaning that the amount recovered is only a fraction of the total amount sought by the client.

As stated, the above is a very brief and very basic overview of a professional negligence claim. It is for information purposes only and should not in any way be relied on as advice given by this firm as it is not intended as such.