As we saw in an earlier post, 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 looks at breach of duty. Once you have shown that you were owed a duty of care, the next step is to evidence that the professional has breached that duty.
Standard of care
When looking at whether there has been a breach of duty, a good starting point is the standard of care that is imposed on the professional. Once you know the standard of care, you can look at whether the professional’s conduct fell below this. Generally, the standard of care will be that which could be expected of a qualified professional of the same category acting reasonably. So to give an example; the standard of care expected from a solicitor will be that of a qualified and reasonably competent solicitor.
What type of claim may you have?
When a professional has caused you loss, you may have:
- A claim in the tort of negligence; and/or
- Where there was a contract between you and the professional, you may also have a breach of contract claim.
The standard of care required by the contract may differ to the standard of care in negligence. Therefore, even if you have a breach of contract claim, it is usual to also bring a negligence claim at the same time.
Breach of contract claims
If you have a contract with the professional, the standard of care that is owed to you may be set out in that contract. Alternatively, if the professional was instructed to give advice (or indeed provide another professional service), the Supply of Goods and Services Act 1983 and the Consumer Rights Act 2015 implies a duty of reasonable care and skill into the contract.
If you instruct a solicitor to deal with a dispute, they are not guaranteeing that you will be successful. However, there is an implied term in your contract with the solicitor that the solicitor will carry out the retainer with reasonable care and skill.
You must be able to show that the advice or actions of the professional fell below the standard of a reasonably competent professional. An error or poor service on its own does not necessarily mean that the professional has been negligent. Putting it simply, you will need to show that the professional has made a mistake that no reasonable member of the same profession would have made (in the same circumstances).
Where the professional has expert knowledge (for example, doctors), the court will apply a test known as the Bolam test. You can find out more about the Bolam test here.
How do I prove breach of duty?
In many cases, expert evidence may be required to show how a reasonable professional would have acted. For example, in a claim against an accountant, it may be useful to approach another (independent) accountant. He can then give evidence on what the negligent accountant did wrong, and what he should have done. An expert witness will also be able to assist the court with technical queries about the profession.