Tessa Rhodes explains professional negligence…
When a person or a business is acting in a professional capacity and fails to perform their job to the required standard, you may well have grounds to bring a professional negligence claim.
The term “professional” could be an accountant, surveyor, solicitor, engineer, an IT professional and so on.
There are several points you need to consider when deciding to bring a professional negligence claim. This includes duty of care and the breach of that duty, causation, loss and the appropriate time limits in which you can bring a claim.
Duty of Care
You must be able to show that the professional concerned owed you a duty of care. A duty of care normally starts as soon as you have instructed that person or business to act on your behalf. The duty of care can also be specified in the professional’s terms of business or engagement letter. When a written contract does not exist, a duty of care may still exist but this situation would need to be considered in depth.
Where a person identifies themselves as a “professional” in their chosen field they still be under a duty of care to act with reasonable care and skill.
Being able to prove a duty of care is paramount to establishing a case for professional negligence.
Breach of Duty of Care
You will have to establish and prove that a duty of care existed and that the duty has been breached. A slight error may not be sufficient to prove a breach of duty of care. A breach will have occurred where the professional has not performed to an acceptable level, appropriate to their chosen professional and level of qualification.
Causation
To be successful in a claim you must be able to prove causation by proving that the breach of duty of care has caused you to suffer a loss. The “but for” test is used to establish causation and will establish that the loss would not have occurred “but for “ the negligence of the professional.
Loss
It is not always possible to quantify loss but you need to establish that a loss has been suffered to bring a professional negligence claim. You may need the assistance of a forensic accountant to determine what losses have been incurred.
The person bringing the claim is under a duty to mitigate their losses and to take reasonable steps to keep their losses to a minimum. If losses could have been avoided, these will not be recoverable.
Time Limits
If you wish to consider bringing a professional negligence claim there is a six year limitation period as set out in the Limitation Act 1980. Sometimes establishing the date the loss occurred can be difficult and will need further consideration.
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Disclaimer
The contents of this blog or any other published by Talbots Law cannot be considered as legal advice. You should take no action without prior consultation with a qualified solicitor or legal professional.