Professional Negligence: What is it?
We talk of professional negligence usually in the context of work done for a client by individuals or bodies such as surveyors, architects, accountants, solicitors and financial advisers. We say that one of these professionals has been negligent if they have “got it wrong”. But is this accurate?
In fact if a client believes that his professional adviser has got it wrong the analysis which a lawyer advising the aggrieved client will have to undertake will be as follows. The professional will have to be in breach of his duties towards the client. These duties will usually be a duty to comply with the contract between the professional and the client, and a duty of care which is imposed by the general law.
With regard to breach of contract where (as is usually the case now) there are written terms and conditions these will have to be considered in detail. Has particular advice been excluded from the terms of engagement, for example? Are any of the terms imposed unfair and are there any terms which the law would imply into this type of contract?
So far as the duty of care imposed by the general law is concerned this strictly is where professional negligence may arise. It will be necessary to decide what the appropriate level of duty of care is in a particular case and then judge whether the actions of the professional fall below the standard that is required.
As in any field the quality of work carried out may fall anywhere on the scale between bad and excellent, but the standard of care required of the professional may only be to provide a satisfactory or adequate service rather than the best service. So the fact that a client may be unimpressed with the service received may not amount to a breach of the contract between him and the professional, nor amount to professional negligence in the eyes of a Court.
Having considered whether or not there is a breach of duty, contractual or tortuous, on the part of the professional, the advising lawyer will then look at whether the breach has led to an identifiable loss (causation) and if so what loss might be proved (quantum). This is likely to entail considerations of what steps the client would have taken if given the proper advice or indeed what steps a third party would have taken if the professional had acted correctly. Sometimes a Court will take the view that there is an insufficient link between the breach of duty and the loss said to have occurred. Sometimes the Courts have to consider whether there has been the loss of a chance of achieving an objective because of the professional’s negligence, and these cases can be particularly intricate.
It is, therefore important that in taking advice an aggrieved client of a professional speaks to a lawyer versed in the law of professional negligence.
Nigel Pepper is a member of the Law Society Professional Negligence Panel and a member of the Professional Negligence Lawyers Association. Call him, or one of his colleagues Patrick Farrington or Patrick Nelson on 01785 21144.
Published on web site – October 2007
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances. (50587)