Definition: Professional negligence is the failure of a person who holds themselves out as a professional to act with reasonable care and skill when providing advice and/or services with their client. Professionals include, but are not limited to:
- accountants
- financial advisors
- advertising agents
- medical practitioners
- hospitals
- allied or alternative healthcare professionals
- architects
- bankers
- building consultants
- computer consultants
- engineers
- pre-purchase building and pest inspectors
- solicitors
- real estate agents
- veterinarians
Elements:
- Duty of Care: When professionals are retained to provide advice and/or services, they typically owe a duty to provide their advice and/or services with reasonable skill and care (‘the standard of care’). The duty will be dependent largely on the scope of the retainer (the work the professional is contracted or relied on to do).
- Breach: A breach of the duty of care occurs where the advice and/or services fall below the requisite standard of care.
- Causation: It is necessary that the breach of the duty of care has caused the loss and damage suffered. Causation can be a complex aspect in professional negligence claims.
- Damage: In order to have a claim in negligence it is necessary that the victim of the negligence has suffered loss or damage.
Legal Complexities:
- Establishing the nature and extent of the advice and/or services the professional was required to perform.
- Establish the standard of care required of a competent professional.
- Obtaining expert evidence to establish the elements of professional negligence.
- Avoiding defences in respect of limitation periods and professional liability defences under the Civil Liability Act 2002 (NSW)
Handling Claims Against Professionals:
- Gather Documentation: It is essential to gather all relevant documentary records.
- Obtain Legal Advice from an Experienced Lawyer: Professional negligence is a complicated and intricate area of law. You should find a lawyer with substantial experience in conducting professional negligence litigation
- Obtain and Prepare Evidence: It is important that full instructions are given when you first seek legal advice. This means providing a very detailed statement about the retainer and reliance placed on the professional, the performance of the services and the nature of the losses sustained.
- Obtain Expert Evidence: It is necessary to obtain expert evidence as to all elements of a professional negligence – duty, breach, causation and damages. In NSW proceedings cannot be commenced without an expert report.
- Consider Early Settlement: Reduces the potential costs and stress of legal proceedings.
If you need assistance with a professional negligence claim, our experienced lawyers are here to help.
