Claiming for professional negligence in tort
Even in cases where you engage the services of a professional, for example, an architect, surveyor, legal advisor, or insurance broker, and there is no clearly expressed contractual relationship, a professional owes the client some duty of care under tort – meaning that it is possible to infer responsibility on the part of the professional for any financial loss sustained by the client as a result of any negligent advice or services provided. Any breach of tortuous duty can be said to give rise to a claim for professional negligence.
For this responsibility to be inferred a number of things need to be proven. These are as follows:
- Duty of Care: that the professional owed a duty not to cause the claimant loss.
- Breach of duty: that the professional was in breach of this duty through specific acts of negligence.
- Causation: that it was this negligence that led directly to the claimant sustaining financial loss and not some other cause.
Indeed, professionals may owe tortuous duty of care in concurrence with that owed under the terms of the contract. Furthermore, this is a duty which courts have ruled extends to third parties.
It may also arise in tort. So a professional may owe a duty of care to his client running concurrently with the like duty in contract. He may also owe a duty of care in tort to a third party. Breach of the tortious duty gives rise to liability in the tort of negligence.
The failure to achieve a particular result does not necessarily imply negligence – it is only when a jury of peers (expert witnesses) agree that the professional should reasonably have been expected to achieve the result that negligence can be said to have occurred.
In cases where a claim meets the three-fold test of negligence (duty of care, breach of duty, and causation) the courts will then seek to apply the “restorative principle”. Under the terms of restorative principle claimants are entitled to be restored to the financial position which they would have been in had the act of negligence not occurred.
Of course, it is always preferable to keep cases out the courts and to reach agreement and settlement within solicitor-to-solicitor negotiations or some form of mediation or alternative dispute resolution.
Claims for professional negligence in Brighton and London
Contact Healys LLP today for clear advice about proceeding with a claim for professional negligence.
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