Unfortunately, there are a number of cases where poor or careless advice leads to serious consequences; from lost money to lost time to missed opportunities. If a professional you have instructed has failed to act in a way that would have been reasonably expected of him, and you suffer a loss, you may have a claim against him.
In order to make a professional negligence claim, you will need to prove three things:
- That the professional owed you a duty of care;
- That the professional breached that duty of care; and
- That you have suffered loss or damage as a result of that breach.
This article will concentrate on the first limb.
What is a duty of care?
A duty of care is a legal duty requiring the professional to act with a standard of care and skill when dealing with their client. If you have a written contract with the professional, the duty that they have will be set out there. It could also be included in the professional’s initial terms and conditions.
Assumed responsibility
There is also a duty of care where the professional “assumes responsibility” towards you, and a special relationship exists between the parties. This means that even if there is no contract between you and the professional, if he has “assumed responsibility” for the work that you have asked him to do, there will be a duty of care owed.
Example:
You ask a builder to erect an extension. He does not provide you with a contract, but indeed builds the extension. In starting building, he has assumed responsibility for the work. This means that he owes you a duty to carry out the build with reasonable skill and care. In many cases, therefore, it will be fairly clear whether there is a duty of care owed to you. Unfortunately, however, some cases are not so cut and dry.
What will be covered by the duty of care?
The aspects over which a professional owes you a duty, again, are not always clear. Your contract or other documents should clarify this.
Example:
If you instruct a solicitor to draft an agreement, his duty of care to you will extend only to that. It will not cover, for example, advising you on whether it is a good idea to enter into the agreement. Therefore, if you discover later that the solicitor knew that the agreement was a bad business decision but did not advise you of this, you are unlikely to be able to bring a successful claim.
It is important to note that your instructions can change. In this example, if you later asked the solicitor to advise you on whether you should enter into the agreement (even though this is not what you originally agreed) and the solicitor does so, he is likely to have assumed responsibility for this task. Therefore, should the solicitor’s advice be incorrect, there may be a claim for negligence.
What’s next?
Once it is established that the professional owed you a duty of care, the next step would be to prove that this duty was breached. We will look at this in a separate blog.
Our professional negligence team can advise you on claims against any professional. Call today on 0800 988 7756 to make an appointment for a FREE initial consultation.
