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Common examples of professional negligence claims.
There is a multitude of examples of professional negligence. Some examples include:
- An accountant giving poor financial advice which causes a client to miss out on certain tax-reliefs and suffer large tax bills.
- A conveyancer missing a crucial piece of information in the purchase of a property which significantly affects its value.
- A medical professional administering the wrong medication to an individual causing severe injury or even death.
- An architect drawing up plans for a residential extension which does not comply with planning permission resulting in the client having to demolish and rebuild their extension.
In these circumstances, an individual can obtain compensation for their losses.
What are the common signs of professional negligence?
The difficulty in recognising professional negligence is that often, the instructing individual may not have the necessary knowledge or skills to recognise professional negligence. Often, these matters slip under the radar because the individual isn’t even aware that something has gone wrong!
To discover whether you have a professional negligence claim, you’ll need to look out for sure signs. Perhaps start with the following:
- Conflicting advice: If the professional is constantly changing their mind, or their advice is inconsistent. In this case, the professional may not know what they are doing or don’t have the required experience to assist. However, changes to professional advice are not necessarily a sign of professional negligence. You’re looking for advice that is inconsistent with previous advice or advice that changes regularly.
- Slow communication and/or making excuses: If the professional consistently provides slow responses, the delay may eventually catch up and cause loss. For example, delayed action in issuing a claim might result in the expiry of the limitation period. Alternatively, if you have to chase for updates or responses, and the professional is providing excuses for not taking action sooner, this is also a red flag.
- Your condition seems to be worsening or not improving: In this instance, the claim would apply to medical negligence. If your situation appears to be getting worse following the actions or advice of a medical professional, you may be receiving a negligent service.
How do I know whether I have a claim?
The signs above are telling, but to bring a claim, they must coincide with the three elements. It’s not enough for an individual to claim that slow communication or the fact that your circumstance is going in a different direction than initially anticipated is professional negligence.
When considering if you have a claim, you must always remember:
- Does the professional owe you a duty of care?
- Has the professional breached that duty?
- Have you suffered loss as a direct result of that breach of duty?
Professional negligence claims: contract or tort?
Before bringing a claim against a professional, it’s first necessary to consider whether your claim is a tortious duty of care (tort) claim or contractual duty (contract) claim.
The difference between the two is that a tort claim can arise whether or not there’s a contractual relationship between the parties. In comparison, a contract claim will occur only when there’s a contract in place.
As a general rule, professionals accept responsibility towards their clients and so owe both a duty of care in tort and contractual obligations. However, the duties aren’t necessarily co-extensive. The contract may impose heavier obligations than the duty of care imposed by the law of tort.
Moreover, a duty in tort may not exist. For example, the parties will have to agree that tort remedies were limited or excluded if the tort duty is so inconsistent with the contract between the parties.
How do I know whether I have a tort or contract claim?
Where there is a simultaneous duty, the individual can choose whether to bring a professional negligence action in contract or tort.
One factor that might determine this choice is what is known as the ‘limitation period’. The limitation period is the period in which a party can bring a claim against the professional before the professional can defend the action on the basis that the claim is “out of time”.
The primary 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 is no longer legally enforceable, it might be possible to bring a claim in professional negligence.