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For many, instructing a professional is of the utmost importance. You’ll likely conduct hours of research to find a capable professional and eliminate the risk of having to deal with professional negligence.
Quite often, a professional will deliver a service that meets or exceeds the level expected by someone in their field. however, there are occasions where that is not the case. In cases where an ‘expert’ has underperformed, you may have a professional negligence claim.
As professionals ourselves, it would be negligent for us to leave this topic unsaid. As a result, it falls to us to publish an article explaining professional negligence.
To consult us professional negligence, either send us an email via info@brittontime.com or call us directly on 020 3007 5500.
What is professional negligence?
Professional negligence occurs when a professional is negligent in performing their responsibilities to a required standard. This required standard is a level of service expected from a reasonable professional in that field.
While anyone can be accused of being negligent, professional negligence claims can only be brought against a person who can be considered an expert in their field. This includes people such as solicitors, surveyors, accountants and insurers amongst many others.
To bring a claim in professional negligence, you will need to satisfy all three of the following elements:
- Duty of care: You entered into a contract (which does not necessarily need to be in writing) that meant you were owed a duty of care. A duty of care is a moral or legal obligation to ensure the safety or well-being of others.
- Breach of duty: The professional didn’t conduct a service to the best of their ability. Additionally, you may have a breach of duty claim if the professional’s assistance didn’t reach a reasonable level for someone in their position.
- Loss suffered: You have suffered loss as a result of the professional’s negligent actions. The loss may be financial, health etc.
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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.
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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.
How long do I have to bring a professional negligence claim?
As highlighted above, you need to bring a negligence case to court within six years of the date negligence occurred. However, you may be able to get a claim to court after the six years if you have a tort claim or the negligence is recognised at a later date.
How long does a professional negligence claim take?
It’s impossible to say how long a negligence claim will take without knowing any of the details of your specific matter. Factors that can affect the time a negligence claim takes include the type of negligence claim, the impact the negligence had, and whether the claim sparks a dispute.
Why use a professional negligence solicitor?
When making a professional negligence claim, it’s of vital importance that the case is conducted correctly. Failure to properly manage a negligence claim may result in the rejection of your claim. As a result, instructing a solicitor will ensure the correct handling of your case to increase the chance of your claim being successful.
Several advantages of instructing a solicitor for a professional negligence claim include:
- You can achieve compensation for any loss suffered: The most obvious advantage. Using a solicitor maximises your chances of obtaining compensation. Professional negligence solicitors will be familiar with the process for bringing a claim and therefore, will be able to navigate their way through the claim and improve the chances of successfully obtaining compensation.
- Force the negligent professional to account for their failure. In addition to the above point, instructing a solicitor will maximise the chance of forcing a professional to consider the actions they took or didn’t take and force them to learn from the experience. While it does not change the loss you have suffered, you can be confident that they will not make the same mistake twice. Sometimes a sense of justice can be just as sweet as the compensation.
- Objective view: By instructing a solicitor, you can gain a legal viewpoint of your matter. As you may imagine, professional negligence often flares emotion due to the loss suffered, and therefore a solicitor can assist by keeping you relaxed and ‘on point’ in the claim.
Why consult Britton and Time Solicitors?
It may be outside of your expertise or knowledge to identify whether a professional has been negligent. But, our award-winning solicitors specialise in this area of law. Our solicitors can assist with an assessment of your case and whether you have a claim. If you do have a professional negligence claim, our solicitors will ensure the correct completion of the claiming process.
If you need a solicitor to help you with a possible claim of professional negligence, send us an email via info@brittontime.com or contact us directly on 020 3007 5500.
very educative
Thank you
I appreciate you sharing this insightful and well-written knowledge. I’m not entirely aware of this knowledge as a professional. It’s wonderful that I now understand my obligations and responsibilities as a professional. Now that I have advice, I know what I should and shouldn’t do in my professional capacity.