As we have explained in our previous articles, there are a number of hurdles to get over before you can bring a successful professional negligence claim.
- 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; and
- That loss or damage was as a result of that breach (this is also known as causation).
Let’s look at causation and loss.
You will not have a professional negligence claim unless you are able to demonstrate that you have suffered a loss as a direct result of your professional’s negligence.
Factual causation: But for…
To work out whether the professional caused you loss, it is helpful to ask; “Would the loss have occurred but for the negligence. I.e. would the loss have occurred anyway?
Complications can arise where there may be more than one cause of the loss; or where the professional’s insurer argues that the loss was not actually caused by the professional, but by something that you did yourself.
If your solicitor does not register your property in your name and you lose your home, this loss would be attributable to the solicitor. However, if this happened and you also defaulted on your mortgage payments and would have lost the property in any event, the loss in this instance may not be attributable to the solicitor.
Legal causation: remoteness
If you can prove factual causation, you must then show that the professional’s negligence was the legal cause of your loss. This test is often known as remoteness.
Was the loss is suitably linked to the negligence of the professional? Was the loss that you have suffered reasonably foreseeable?
A valuer negligently values a property and a lender agrees to lend to the amount of the valuation. The security isn’t as valuable as thought, and following a crash in the property market the value of the property plummets. The lender then seeks to sue the valuer for the loss in value. Here, all that would be recoverable would be the difference between the true value and the quoted value at the time of the valuation; not the difference between the originally given valuation and the subsequent (post-crash) value. Such losses would be too remote and not reasonably foreseeable.
If you can prove that the professional acted in breach of his duty of care, and that this caused you loss, you have the makings of a professional negligence claim.
So how is loss calculated?
As a general rule, loss will be calculated by comparing what your position would have been if there had been no professional negligence, and your actual position.
A builder agrees to build an extension for you, but he builds it so badly that it needs to be demolished and restarted.
If the builder originally quoted you £10,000 (and you did not pay him) and the demolition and rebuild will cost you £25,000, you would have a claim for £15,000. This would put you back in the position you should have been in had the negligence not occurred.
You can only claim for losses that have occurred as a result of the breach of duty. The court has set out guidelines on this and restrictions on the losses that can be claimed in a case known as SAAMCO. We look at SAAMCO in detail here.
You also have a duty to mitigate your losses, which means taking reasonable actions or steps to minimise the loss caused by the professional. You cannot recover damages for losses which could have been avoided. Likewise, you will also not recover any losses caused by any steps you take that are unreasonable.