Professional negligence can come in all shapes and sizes. Solicitors, accountants, architects and surveyors are just some of the professions who, through their negligence, can have serious negative impact on their clients.
In order to bring a successful professional negligence claim, you will have to overcome a few obstacles.
1. Duty of care
You must be able to prove that you were owed a duty of care by the professional. This is usually the most straightforward obstacle to overcome. If you have instructed the professional and entered into an agreement, the duties that they owe to you should be clear. However, even if there is nothing in writing, if the professional holds themselves out as having the required expertise and provides you with an agreed service, they may have assumed duties to you as the client.
2. Breach of duty
The second thing you must be able to prove is that the professional breached their duty of care to you. It must be proved that the advice or actions of the particular professional fell below the standard of a reasonably competent person in the same profession. As professional negligence specialists, we would investigate what actions the professional took (or indeed did not take). We would then advise whether he breached his duty of care. Some cases are clear cut, where others are much more complex.
For there to be a claim, you must have suffered a loss. If there was no loss caused as a result of the negligent act by the professional, you will not be able to recover anything. The basic principle in claims of this nature is to put you back in the position you would have been if it had not been for the negligence of the professional.
This loss, must have been as a result of the negligence of the professional. I.e. you will need to show that you relied upon the professional’s advice, and that you would have done something different had you been advised properly. This is known as causation.
Whether this is the case is not always as obvious as it may first appear; not least because you will often be trying to prove a negative.
For example, it is common to employ a surveyor to carry out a full structural survey before you buy a property. If that surveyor fails to advise you that there is substantial dry rot, leading to structural issues with the roof, there would almost certainly be an element of negligence. You might argue that, had you known about the issues, you would not have bought the house at all. However, your surveyor may argue that you would actually have bought the property. A court would consider all of the evidence before it in deciding whether the negligence caused you loss, and, if it did, how much loss was attributable to the professional’s negligence.
In some cases, the professional may claim that you have caused some of the loss yourself. This is known as contributory negligence. If the court agrees with this, then your award may be reduced.
Before issuing a claim for professional negligence, you must first send a letter of claim to the professional. It is likely that the professional would then pass this on to their insurer, who might cover the claim. In many cases, professional negligence claims can be settled without any involvement of the court, by negotiation, or other methods of alternative dispute resolution.