What Is Professional Negligence?
Professional Negligence can be a somewhat confusing term but essentially, it is when a professional, for example a solicitor or barrister, surveyor, accountant, architect, independent financial adviser, has failed to perform a job for their client/customer to the required standard. This has then caused the client/customer a loss, generally financially.
There has been a rise in professional negligence claims over the last number of years, which is due to a number of factors, including an increased reliance on receiving advice from professionals, the complexity of work being undertaken in the relevant industry (law, property, financial) and the overall heightened awareness of negligence claims by businesses and individuals.
Key Points To Consider When Making A Professional Claim
Duty of Care & Breach of Duty of Care
Any potential claimant wishing to bring a professional negligence claim will need to establish that the professional owed both a duty of care to them and, in turn, breached that duty of care.
A duty of care is usually created once a professional has been formally instructed by a person or business. A duty of care and level of service expected is usually specified via the professionals’ terms of business or an engagement letter. In addition to specific contractual duties professionals are also under a general duty to act with reasonable care and expertise in their chosen industry sector.
In terms of breach of duty, a simple error may not constitute a breach of duty, however, a professional will be deemed to have breached their duty of care to their client if they have not performed to a practice accepted as being appropriate by responsible members of their chosen profession or industry.
Causation
One of the most important, and often complicated, elements of a professional negligence claim is proving that the breach of duty caused the claimant to suffer a loss. A professional could have made a significant error but if it did not cause the loss complained of, then the person or business will not be able to proceed with a claim for professional negligence. An example of this is where a claimant would have done something which caused loss even if they had been properly advised.
Often the starting point for establishing causation is the ‘but for’ test, which outlines that the professional will only be responsible for the loss of the claimant if their loss would not have occurred ‘but for’ the negligence of the professional.
Loss
Another similarly complex issue is that of loss. Sometimes it will be relatively easy to quantify that loss and, at other times, it will require some forensic work to establish just how much money has been lost or how much should have been gained had the professional’s advice not been negligent.
A person or business does has a duty to mitigate their losses, meaning that they need to have taken reasonable action to reduce the loss caused by the negligence of the professional. A claimant cannot recover damages for losses which they could have avoided, or are deemed to be unreasonable.
How Nelsons Can Help
Daniel Brumpton is a Partner in Nelsons’ Professional Negligence team.
If you would like further advice in relation to professional negligence claims, please contact Daniel or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.