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Professional Negligence: An Overview

An Overview of the Legal Basis for a Professional Negligence Claim 

Professionals owe an obligation to perform their duties to an elevated standard of care owing to their professionalism. This is known in legal terms as a duty of care and it can arise in either contract, tort, or equity, and in some instances all three. Where such a duty of care is undermined or not met to the standard that is expected for the professional, there may be grounds to initiate a claim for professional negligence.

Professional negligence claims can cover a wide range of professional activities including potential claims against medical professionals, solicitors and barristers, surveyors and insurance and financial service provides for example. This article aims to provide a breakdown of the key components related to a professional negligence claim that must be established.

Duty of Care – Is There a Claim?

In order to establish that a duty of care exists, you must firstly establish that the claim is against a ‘professional’ which will imply that an elevated standard of care applies in accordance with the usual standards of the profession. This is not always immediately obvious, and so it is necessary to consider that the defendant is a person, or entity, acting in such a manner to imply a special skill such that they imply the duty to exercise that skill in a proper manner.  

Once the professional capacity is determined, it is pivotal to establish that a duty of care is owed by the defendant to the claimant. This is significantly determined by the nature of the relationship between the claimant and the defendant. It is acknowledged by the law that certain relationships give rise to a duty of care, such as between a solicitor and their client or a medical professional and their patient.

However, in instances where establishing a duty of care is not clear, the court will adopt the Caparo test1. This includes a three stage test for which the claimant must show that the harm he incurred was reasonably foreseeable; that there is proximity between the parties, referring to the closeness of their relationship; and that it is fair, just and reasonable to impost a duty of care in such circumstances. 

Breach of Duty 

Next, having successfully established that there is a professional and a duty of care owed by the professional, the claimant need establish that the duty of care owed was breached. In order to establish this, the claimant must show that purported conduct, or omission, of the professional has been met below the standard of care expected of a reasonably competent person of the same profession.

In practice, an expert report is usually required from another professional in the same field to confirm whether the standards were reasonable or below par. In other cases, the breach is obvious, and no expert report is required, such as a solicitor failing to meet a deadline. 

Loss & Causation

After establishing a breach of duty, the claimant must demonstrate that the breach has resulted in or caused the claimant loss. The question commonly asked by the court in order to establish loss is the ‘but for’ test, i.e., but for the professional’s negligent act or omission, the claimant would not have suffered loss. This represents a factual enquiry to determine whether there is sufficient causation between the professional’s negligence and the claimant’s loss. In the event causation cannot be established, this presents the claimant with the issue of remoteness, which in essence requires a test of foreseeability, in other words whether the claimant’s loss was ‘reasonably foreseeable’.  

Damages

Damages refers to the compensation sought by the claimant in relation to the professional negligence and subsequent losses incurred. This is ultimately a question for the court to decide, however, contingent upon the facts of the dispute, for example subsequent time taken off work, the amount the claimant may seek to recover can be calculated and argued before the court. 

Factors to Consider

There are several facts the claimant may wish to consider when issuing a professional negligence claim: 

  1. Mitigation – The court will expect that claimant has taken reasonable steps to minimise the losses they have incurred and that the claimant has not taken steps to increase the losses they incurred. In numerous cases before the court, including LSREF III Wight v Gately2, the Court of Appeal held that it would be unreasonable for the claimant to not mitigate their losses.
  2. Limitation Period – The time frames for issuing proceedings are highlighted in the Limitation Act 1980. For professional negligence claims, the general rule states that a claim must be raised within six years from the purported date of the professional negligence. This may be reduced to three years, where the negligence becomes known at a later date3.   

  1. Caparo Industries Plc v Dickman [1990] UKHL 2 ↩︎
  2. LSREF III Wight Ltd v. Gateley LLP [2016] EWCA Civ 359 ↩︎
  3. Limitation Act 1980, s.14A(4)(b) ↩︎

*This article is not legal advice but provides a general overview. The specific details of your case will determine the best course of action.