A professional owes a duty to their clients, patients etc to act with proper care and skill. The legal duty may arise either from the law of contract – an implied term into the contract or in the tort of negligence - an implied duty to take care for those whom it is foreseeable may be damaged by your actions (just as a motorist owes a legal duty not to run down pedestrians).
The difficulty in professional negligence cases is often that a professional cannot guarantee a successful outcome for their clients. For example, surgical operations may be performed competently but not succeed and a lawyer can never guarantee to win your case! The duty of a professional is to act with the care and skills of a reasonably competent member of their profession.
In an action for professional negligence a claimant must show the following to succeed:-
- The existence of a duty of care: This is usually the most straight forward element. A professional owes a duty to their clients, patients and so on.
- The breach of a duty of care; this test can be more onerous than it appears. Practice varies within professions. A Court will have to determine as whether the actions complained of were of such a standard to fall below this test. A claimant is not necessarily entitled in law to a very highest standard of care – only to a standard of skill delivered by ordinary competent members of the relevant profession.
- The claimant must show that they have suffered a loss! If successful the claimant would be entitled to damages (financial compensation), the intention of which is to place him in the same financial position as if the negligence had not occurred. This is more straight forward in cases where the loss is purely financial – but can be highly complex in (for example) a medical negligence case where the victims have suffered enduring physical loss or pain and where assessment of compensation is akin to a personal injury claim.
- Causation: The claimant must show that the loss which they have suffered was in consequence of the professional’s negligence. This is effectively a “but for” test. This is the rock upon which many claims fail. The classic example is the case where a doctors surgical technique fell below the standard of a reasonably competent member of the medical profession – and the patient dies – a claimant would need to prove that the negligence of the doctor was (on the balance of probabilities) the effective cause of death – as opposed, for example, due to the underlying ill health of the patient.
Claims for professional negligence are subject to the usual rules requiring proceedings to be brought within specified limitation periods, or be barred by statute. It is vital to take early advice as to the relevant limitation period that may apply in your case.
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