Professional Negligence: A Quick Guide
Professionals have a responsibility to perform their services or duties to a required standard. When a professional fails to meet that standard, there may be grounds for a claim in professional negligence. This article provides a guide on the elements that a claimant must establish to be successful in a professional negligence claim.
Duty of Care
Firstly, a claimant must prove that they were owed a duty of care by the professional. The law recognises that there can be certain relationships between parties that give rise to a legal duty to take care for example, between a doctor and patient, a financial advisor and client, or a solicitor and client. If the relationship between the parties does not fall under a pre-defined duty of care, the Court will consider what is known as the “Caparo” test. This is a three stage-test under which the claimant must establish: the harm was reasonably foreseeable; there was a relationship of proximity between the parties; and it is fair, just and reasonable to impose a duty of care.
Breach of Duty
Secondly, the claimant must establish that the professional has breached the duty of care that was owed. To do this, the claimant must demonstrate that the action (or lack of action) taken by the professional has fallen below the standard expected of a reasonably competent person of the same profession.
Causation of Loss
Thirdly, the claimant must show that the breach of duty has caused some form of loss. The relevant test is known as the “but for” test. The claimant must be able to demonstrate that “but for” the professional’s negligence, they would not have suffered the loss.
Other factors to consider
There are a number of additional issues to consider when considering a claim for professional negligence, for example:
- Limitation – the Limitation Act 1980 sets out the time limits for issuing legal proceedings. The general rule in professional negligence claims is that the claim must be brought within six years from the date of the negligence. However, in some circumstances where the negligence only becomes apparent at a later stage, the limitation period may be three years from the date of knowledge of the facts which might give rise to a claim.
- Mitigation – it is important to remember that a claimant has a duty to take reasonable steps to minimise their loss and must not take any steps that could increase their loss. A claimant will not be able to recover damages for any losses that could have or would have been avoided by taking reasonable steps.
- Prospects of recovery – there is little commercial benefit in pursuing a claim against a professional if they are insolvent or have limited assets. However, professionals may (and are sometimes required to) have professional indemnity insurance in place to protect against legal claims. This should be considered carefully and investigated at the outset of the claim.
To find out more about how we can help you with a professional negligence claim, please call us on 020 7632 4300 or make an enquiry.