Individuals and businesses often seek the advice and assistance of professionals. These may include medical practitioners to treat complaints and to perform surgery; dental surgeons to fill cavities or to insert implants; accountants to prepare trading accounts and to advise on taxation; architects to design buildings; and solicitors to handle all types of legal work, including commercial and residential conveyancing, representing clients in court cases, and handling the administration of the estate of a deceased person. The common factor is that irrespective of the category of professional, all are taken to have assumed responsibility to the clients/patients, and so owe both a duty of care in tort and contractual obligations.
What constitutes Professional Negligence?
Professional negligence is a breach of the duty of care owed by a professional to his client or patient. Where there is also a contractual relationship between the professional and his client – as frequently there is – then the professional may owe concurrent duties in both contract and tort. A tort is a civil wrong that causes someone else to suffer loss or harm, resulting in legal liability for the perpetrator. By way of explanation, there are a number of ‘torts’ in English Law, including Negligence (e.g. a car driver negligently injuring someone through his/her careless driving), Defamation, namely libel and slander, and Nuisance. The victim of a tort has a remedy under the common law against the perpetrator (‘Tortfeasor’) which is not dependent on a contract.
The duties of a professional in contract and tort are not always co-extensive, as a contract may impose obligations that are more burdensome than the duty of care imposed by the common law. There can be significant differences between claims in contract and tort, principally in relation to the limitation (the time within which a Claim must be commenced in court under the Limitation Act 1980), and also in regard to the measure of damages, namely the monetary compensation recoverable.
In certain limited circumstances, a professional may owe a contractual liability to third parties (for example, where a contract says that the third party has the right to enforce a particular term).
Where a duty is owed by a professional to a client/patient in contract or in tort, the complainant must establish that the duty has been breached. In essence, the complainant must demonstrate that the professional did not comply with the standard owed. In broad terms, negligence will be established only if the professional has made an error which no reasonable member of his profession would have made in the particular circumstances.
Professional Negligence – Pre-Action Protocol
The Pre-Action Protocol – the observance of which is mandatory under the Civil Procedure Rules – must be used in all professional negligence cases where no other specific protocol applies. The Protocol encourages all parties to consider using alternative methods of dispute resolution by sharing information at an early stage, rather than by instigating court proceedings. The Protocol sets out standards which need to be followed before court proceedings are started.
How We Can Help
T G Baynes has an experienced Civil Litigation Department, whose lawyers have dealt with many professional negligence claims, including cases against Medical Practitioners, Solicitors, Surveyors, Accountants, and other professionals. If you think you have been let down by a professional person, then please contact us to see how we can help.