Professional negligence, as the name suggests, is a term used for a range of claims brought against professionals based on the premise that the professional in question failed to act to the required standard, with the failure resulting in the client suffering a loss.
Examples of professional negligence claims include actions against solicitors, accountants or surveyors, although that list is far from exhaustive; professional negligence claims may be pursued against any professional who purports to have particular expertise in an area and whose conduct then falls below the expected standard.
To bring a successful claim for professional negligence, there are certain established legal principles that need to be satisfied:
1. Duty of care
A duty of care is an obligation placed on a professional not to cause harm to a client. A duty of care can be established through a contractual relationship (such as a solicitor’s client care letter), or a duty can be imposed by the operation of law where, for example, a professional has assumed a responsibility towards a client and the client has relied upon this.
2. Breach of duty
Once a duty of care is established, it is necessary to show that the duty has been breached by the professional. Broadly speaking, the appropriate test is whether the professional acted in a way that no reasonable member of the same profession would act.
Even though the professional’s conduct may have fallen well below the expected standard, it is necessary to show that the failure actually caused the loss that was suffered. This involves questioning whether, “but for” the actions of the professional, would the client have suffered the loss?
The second aspect of causation is ‘remoteness’, that is whether the type of loss suffered by the client is foreseeable to the extent that the parties could reasonably expect the loss to arise from the alleged breach.
If the loss would have been suffered regardless of the professional’s conduct, or the loss is too remote, then a claim will not succeed.
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