Grounds for pursuing a negligence claim

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How do you prove professional negligence?

If you feel that you have been let down by a professional advisor then you will want to find out what to do about that.

It might be that the service you received could possibly mean that you have a claim in professional negligence but in order to establish that there are a number of matters to be considered.

When dissatisfied regarding an adviser’s service, you will need to establish whether you have grounds for pursuing a professional negligence claim. To pursue a professional negligence claim, you will need to show that:

• the adviser owed you a duty of care and failed to perform their responsibilities to the required standard. You may demonstrate this by showing that the adviser breached a term of their contract with you or by breaching a tortious, fiduciary or statutory duty owed to you:
• as a result of the adviser failing to perform to the required standard, you suffered loss:
• you took reasonable steps to mitigate your losses:
• the adviser has not reasonably and lawfully excluded liability for the loss suffered:
• you are not “out of time” for pursuing your claim under the Limitation Act 1980.

If you think that all of the above apply to your complaint then the next question which we would help you with is whether the claim is likely to succeed.

There are legal principles to be applied and in order to be successful with your claim the following professional negligence “test” must be met:-

Duty of care

You need to be able to prove that the professional owed a duty of care to you.

In claims for professional negligence, it is sometimes easier to establish that the professional owes a duty of care as there is deemed to exist a special relationship between the professional and the claimant.  If you are seeking specific advice from a specialist in a particular occupation, then there is an expectation that the advice they will give is correct.

• your contract or retainer with the professional is the starting point as this contract governs the basis on which the professional is liable and is the source of the duties owed to you.
• the scope of that duty varies depending on the nature of the work provided for in the contract or retainer and needs careful consideration from the outset.

The contract or retainer will set out the terms on which the professional will work for you and what work will be done under it.

Breach of Duty

Once a duty of care has been established, it is then necessary to demonstrate that there has been a breach of that duty by the professional.

To use an example,

• where a taxi driver drives without due care and attention and causes an accident, this should be sufficient to show that he has breached his duty. 
• however, there may not be any breach of duty if the taxi driver drove carefully and the accident was not his fault.

In all professional negligence claims, it is necessary to show that the professional failed to exercise the reasonable care and skill of a person within his profession.  For example, a solicitor must show that he exercised the same care and skill as that of a reasonably competent solicitor.

To do this you must show that the services provided by the professional fell below the standard of a reasonably competent professional by reference to that professional’s standards relevant to his particular specialism. 

This will involve reference to the professional standards and codes of practice applicable to the professional this being important because it will determine the extent of the negligence when compared with the standard expected of a professional in that field.

Note however, that level of experience is not relevant, so a newly qualified accountant for example, cannot rely on the fact that they are relatively inexperienced to persuade a court that it should apply a lower standard of care to them.

Causation & Loss

Having proven that negligence has occurred, you must next prove that loss has been suffered as a direct result of that negligence.

There are two main elements to this, both of which must be proven;

• you must show that “but for” the professional’s negligence you would not have suffered loss.  As such, if the loss would have been suffered anyway (in the absence of the professional negligence) or that the true cause of the loss was something other than the professional’s carelessness, then a claim for professional negligence will fail.

• you must also prove that the type of loss suffered as a result of the professional negligence was reasonably foreseeable.  This is often referred to as “remoteness”.  You need to establish that the loss that you have suffered was reasonably foreseeable.  For example, if you are involved in an accident caused by a taxi driver, it is reasonably foreseeable that you may suffer an injury and reasonably foreseeable that you may suffer loss of earnings due to being off work whilst you recover from that injury.

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If you have a claim against a professional adviser – contact our friendly professional negligence team today and we can help. We have won many claims for our clients, including claims against solicitors, accountants, tax advisers and surveyors. Whatever the nature of your claim – we can help.

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