Broadly speaking, professional negligence is the failure of a person who holds themselves out as a professional to act with reasonable care and skill when working with their client.
A professional can include any person who promotes themselves as having a particular skill or expertise in an area. Examples include:
– Lawyers;
– Doctors;
– Allied health professionals;
– Hospitals and other health providers
– Accountants;
– Financial advisors;
– Engineers;
– Real estate agents;
– Conveyancers
Whilst each case needs to be considered individually. Professional negligence occurs when a service provided by a professional falls short of the standard expected for a reasonably competent professional of similar experience and the client, customer or patient suffers injury or loss.
It is not necessarily negligence if the standard is below the best standard of service or a mere error in judgment. The standard of care will vary for each situation.
With the exception of personal injury and medical negligence claims, most professional negligence claims relate to financial losses only. However, regardless of the professional setting, the only remedy is for financial compensation. This means that financial compensation is the most common type of claim for professional negligence.
There are four elements which must be established to make out a professional negligence claim:
1. The professional owed a duty of care
In most cases where there is a professional and a client, it is well established that the professional owes their client a duty of care. This emerges as the result of the client’s/patient’s reliance on the advice of the professional.
2. The duty of care was breached by the professional
You must be able to show that the professional breached their duty of care owed to you. This could be by providing advice or a service that fell short of an acceptable standard.
3. The breach of the duty of care by the professional caused loss – causation
It must be proved that the breach of the duty of care by the professional caused your loss. It might be that their advice caused injury, loss or damage. For example, a personal altered their conduct in a financial venture based on incorrect tax advice, suffering loss.
4. You suffered injury, loss or damage as a result of the breach of duty of care by the professional
Even if you can prove the other three elements mentioned above, you cannot commence a claim in professional negligence unless you can show that you have suffered an injury, loss or damage as a result of the breach of duty of care.
Strict limitation periods apply to making professional negligence claims.
Limitation periods can vary depending on the type of claim. However, most limitation periods are 6 years for purely economic loss claims and 3 years for personal injury. It is very important to seek legal advice as soon as possible.
In purely economic loss cases, the time starts to run from the date that the cause of action accrued, which is the date the loss occurred as a result of the professional’s breach of the duty of care.
In personal injury cases there are special provisions relating to discoverability of the injury, the seriousness of the cause and the date you know there is a serious cause of action.
No client should expect to experience financial loss or be put at risk due to professional negligence. If you believe you have suffered loss as the result of professional negligence, we recommend that you seek legal advice.