Professional negligence is a specialist subset of negligence. The basic elements of establishing a negligence claim are the same, namely:
- Proof of the existence of duty of care (scope);
- Proof of breach of the professional standard expected of that professional;
- Proof of and quantum of damages or loss suffered as a consequence of the breach;
- Proof of the fact that the breach of the duty of care was the cause of the damages or loss suffered (causation).
Professional negligence litigation can arise where an individual or other legal entity, who relied on the expertise and skills of a professional, alleges that some loss or damage has been occasioned because that professional did not conduct himself or herself in accordance with the requisite standard. This non compliance can either be positive (where the professional allegedly did something wrong) or negative (where the professional omitted or failed to do something they should have done).
The duty of care or scope of the responsibility owed to the party making the allegation against the professional can be established on the evidence such as the contract or agreement. If the contract is written, this may be a relatively easy task. However some contracts may be silent on an issue from which the negligent conduct emanates. On other occasions, the contractual provision may be ambiguous. Yet in other cases, the contract may be purely verbal, or inferred through conduct. In these situations, the general principles of contract law will apply.
Evidence of the relevant professional standard may be gleaned from a variety of sources. Again, the contract or agreement may be useful, as it may specify the responsibility and have terms and conditions in relation to the conduct expected of parties. Depending on the profession, there may be either a mandatory or a voluntary representative body for that industry, or even a government regulatory institution. These organisations may well have certain documents (such as codes of conduct, codes of ethics or various operational policies) which stipulate the professional standards expected of the professional.
Evidence of breach, loss and damage may require the services of an expert to adduce expert evidence, but this should be determined on a case by case basis. There are many industries that may involve claims in professional negligence and we have attempted to set out some of these below. For more information, please refer to the relevant section in our “Consumer & Negligence Law” practice area:
- Car Dealers
- Computer Consultants
- Consumer Law
- Disputing Legal Costs
- Disputing Legal Fees
- Equipment Financiers
- Financial Advisors
- Independent Contractors
- Institute of Chartered Accountants
- IT experts
- Law Society of New South Wales
- Lawyers & Solicitors
- Legal Fees Costs Assessment
- Management Consultants
- Marketing Consultants
- Metal Fabricators
- Mobile Phone Companies
- Mortgage Brokers
- Negligence Law
- Pawn Brokers
- Project Managers
- Real Estate Agents
- Service businesses and service providers
- Steel Fabricators
- Tax Agents
- Tax Practitioners Board
- Telecommunications Companies
One common issue that needs to be considered in detail is the effect of a claim in professional negligence on the insurance of a professional. Experts may be required to take out professional indemnity insurance as a condition of their right to conduct their business and profession. It is not unusual for such policies to have what is known as an “exclusion clause” where the insurer disclaims liability under certain circumstances (a finding of dishonesty or fraud being an example of such an exclusion). When acting for or assisting a professional, allegations of professional negligence must be taken with utmost seriousness and dealt with in a timely fashion, in order to protect the reputation and business of the alleged party from suffering irreparable damage.
Because professional negligence cases can cross over various areas of legal practice, it may be highly beneficial to retain the services of a commercial litigator who has had experience with and exposure to civil litigation matters. Likewise a civil litigator with commercial litigation experience will also be a valuable asset when prosecuting or defining a claim. Professional negligence litigation can draw from various areas of legal practice and the litigation team at Navado has the benefit of a consolidated team of litigation solicitors who will be in a position to offer comprehensive legal advice to plaintiffs and defendants alike.
If you require assistance with a professional negligence litigation matter, you may wish to contact our office and make an appointment to see one of our solicitors in our Sydney offices.
This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.
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