It is a cold fact of life that mistakes can (and do) happen. When we look at Professional Negligence, however, what we are most concerned about is whether or not the person delivering the service - i.e. the professional - has been negligent in their actions and caused the problems at hand.
- 1. Who Does Professional Negligence Apply To?
- Before going any further it is worth noting what exactly we mean when we use the term, ‘Professional’ as this can mean different things to different people.
In the first instance, most people would consider a professional to be a Doctor, an Accountant, a Solicitor or an Architect, however, in the eyes of the law a professional can be any person contracted to deliver a service in their professional capacity.
Examples of this could therefore include someone working in IT and responsible for your email servers or perhaps even an HR professional providing advice on your employment policies. If these people are negligent in their actions there could also be cause for redress.
Please note that negligence in medicine (involving nurses, doctors and surgeons or other healthcare professionals) is classified as medical negligence and has different statute time limits (see paragraph 4 below).
- 2. Duty of Care
- A key aspect in your claim for professional negligence is that the ‘professional’ must have had a ‘Duty of Care’ for their client.
This effectively means that the professional has been contracted to deliver their specialist service to the client and therefore they have a ‘duty of care’ to ensure that the service is delivered competently and that the client does not suffer as a result of their actions.
A fundamental element of your claim for Professional Negligence is that you must be able to demonstrate that the professional has had a duty of care towards you and that their negligent actions have resulted in this duty of care being breached.
- 3. Loss
- It goes without saying that if you are currently considering a claim for professional negligence you will need to have suffered a loss as a result of the negligent actions.
On one hand, a medical negligence claim could involve the need for proof that your health has suffered as a result of the treatment you received, whereas for a financial advisor this loss could be quantified in terms of a financial loss.
It is important to note that it must be proven that the losses claimed are as a result of the actions of the professional.
- 4. Time Limits
- A legal concept known as the ‘Statute Of Limitations’ will apply in relation to Professional Negligence. In other words, a claim must be brought within a specific timeframe.
In reality, this time limit can vary, however, in general a claim must be brought within six years of the duty of care being breached. This can be extended, however, if the loss was not discovered within this timeframe and will usually see an extension of three years from the date the loss was discovered.
Note: The statute of limitations for medical negligence claims is 2 years.
The timing of the Statute is not always straightforward and there are instances where claims will be permitted many years after an incident of professional negligence has occurred. These instances are beyond the scope of this article and specific advice should be sought.
- 5. What Professional Negligence Is Not
- Whilst we are considering each of the various elements of a Professional Negligence action, it is important to note that just because a ‘professional’ has made a mistake or delivered a bad service, this does not automatically entitle you to claim for their professional negligence.
To be successful you must prove that:
• they held a duty of care toward you;
• that this duty of care was breached;
• you suffered a loss as a result;
• and the claim is being made within the legal time constraints.
- 6. Contributory Negligence
- Another important consideration in this area is whether or not you contributed by to the losses suffered.
For example, did you blindly follow the professionals bad advice or did you in fact ask them to perform various actions which may have contributed to the situation?
If this is the case and depending on the extent of your ‘contribution’ the damages awarded could be reduced or the claim fail completely.
- 7. Mitigation Of Losses
- Another closely related aspect of a claim for professional negligence is being able to establish if there was something you could have done to limit your losses and stop them from increasing.
If you are making a claim and it can be proved that you could have taken steps to limit the loss or to stop the loss from increasing your overall award from the Court could be reduced by a significant sum in order to reflect this.
You cannot receive damages for losses which could have otherwise been avoided.
- 8. No More No Less
- The purpose of your claim is to compensate you for your loss and put you back to the position you would have been in if the loss had not of occurred.
In other words, the damages cannot seek to put you back into a better position than you were in before the loss.
If you are claiming for professional negligence, it would not be unusual for the possibility of other claims to arise such as a claim for breach of contract, statutory duty or perhaps even fraud. You should discuss these possibilities with your legal team.
Talk To Your Solicitor
If you feel you have suffered a loss as the direct result of the actions of a professional, be this in the medical, legal, financial or building sectors (or beyond!), your first step should be to contact a solicitor experienced in professional negligence cases.
At Clarke Jeffers we have extensive experience in dealing with cases such as these and will provide you with the information required so that you can make an informed decision on your next steps. Some clients (and indeed the professional being accused) like to agree a way forward without involving the Courts, whereas others may require that we initiate legal proceedings in order to conclude matters.
If you would like to discuss your own particular situation, please do not hesitate to get in touch for an free, initial consultation