Professional negligence occurs where a professional fails to perform their responsibilities to the required standard. This article briefly explains the requirements for bringing a professional negligence claim.

The tort of negligence has three basic requirements which a claimant must prove, on a balance of probabilities, namely:

  1. Duty of care. The claimant will have to show that the professional owed them a duty of care in relation to the work carried out.
  2. Breach of duty. The claimant will also have to show that the professional breached the duty owed.
  3. Causation. The claimant must prove that the breach of duty caused loss.

Establishing a breach of duty in professional negligence claims

The claimant must establish that there has been a breach of the duty of care. This means that the claimant must show that the professional did not provide a service with the relevant standard of care.

Negligence will be established only if the professional has made an error or omission which no reasonable member of that profession would have made, in the same circumstances. It is worth noting that this is an objective test, and an error does not necessarily constitute negligence; the standard required is not one of perfection.

In examining the conduct of the professional, the courts will consider all the circumstances, including:

  1. The likelihood of harm.
  2. The seriousness of the risk.
  3. The risk of serious damage/losses.
  4. The costs of avoiding the risk.

Where a professional may have acted negligently, but their actions failure to act did not cause any loss, any claim against them will not succeed.

Causation in professional negligence claims

Causation must be established on a balance of probabilities, and the burden of showing causation is usually on the claimant. To establish causation, the claimant must compare their actual position with what the position would have been but for the professional’s negligence.

For example, when bringing a professional negligence claim against a relevant professional body in relation to loss following the sale of a property, a report from a surveyor, detailing the value of the property before and after the negligent act would be beneficial.

Assessment of loss

Usually, damages are assessed at the date of breach. However, in professional negligence cases, damages may be assessed by reference to another date if the court deems this fair and appropriate. The court will consider the compensatory principle of seeking to put the claimant in the same financial position as if the wrong had not occurred.

Contributory negligence

Where a claimant suffers damage partly as the result of their own fault, the damages recoverable will be reduced as the court thinks just and equitable. However, it is worth noting that contributory negligence is not a complete defence. Instead, it goes to the reduction of recoverable damages.

For any advice relating to the merits of any professional negligence claim which you may wish to bring, please get in touch with our Commercial Litigation Team and we will be more than happy to assist.