No matter the industry or the size of your business, if you fail to act in a professional manner and your client suffers as a result, you are culpable of professional negligence. In short, without due care and attention, your actions – or inaction – could land you in hot water.
There are many forms of professional negligence, but some of the most common are:
- Accountant negligence: giving poor financial advice
- Clinical negligence (also called medical negligence): cutting corners with precautions or standards to the detriment of someone’s health
- Architectural negligence: providing poor, misleading or false architectural advice
- Legal negligence: giving substandard legal advice
Can I make a professional negligence claim?
Broadly speaking, professional negligence happens where a professional fails to perform their responsibilities to a required standard. Your claim may be based on one or more of the following:
- Duty of care: You entered into a contract (not necessarily written), that meant you were owed a duty of care. In laymen’s terms this means you agreed to receive a service (which could mean advice).
- Breach of duty: The person/people who gave you that service/advice did not do so to the best of their ability, or did not do so to professional standards.
- Loss suffered: You have suffered loss as a result of their negligent actions (this loss could be financial/health etc.).
If the three things all apply, you could make a professional negligence claim.
Professional negligence claims: contract or tort?
A tortious duty of care can arise whether or not there is a contractual relationship between the parties (see Establishing a duty of care in a professional negligence claim).
Where there is a contractual relationship, the professional may owe concurrent duties in contract and in tort. A concurrent duty in contract and tort exists where a claimant can build a tortious claim on either the:
- Defendant’s undertaking based in contract.
- Defendant’s negligence in performing the contract in a way that caused harm to the claimant’s property or financial interests.
As a general rule, professionals are taken to have assumed responsibility towards their clients and so owe both a duty of care in tort and contractual obligations. The duties are not necessarily co-extensive as the contract may impose obligations that are more onerous than the duty of care imposed by the law of tort.
Moreover, a duty in tort may not exist if, for example, the tortious duty is so inconsistent with the contract between the parties that the parties must be taken to have agreed that tortious remedies were limited or excluded.
Differences between claims in contract and tort
Where there is a concurrent duty, the claimant can choose whether to bring his action in contract or tort.
One factor that might determine this choice is limitation. The basic limitation period in both contract and tort actions is six years after the final date on which the relevant cause of action accrues. However:
- In contract, the cause of action is completed as soon as the contract is breached.
- In tort, no cause of action accrues until all elements of duty, breach and damage are present.
Therefore, even if the contractual claim has become statute-barred, it might be possible to bring a claim in negligence.
One claim may also be regarded more advantageous than another because of some differences between an action in contract and an action in tort in relation to:
- Measure of damages.
- Contributory negligence.
If you have questions about professional negligence, cntractual liability for professional negligence, or does the professional’s advice have to be in writing, then navigate to the contact us section on our website or leave a comment below.