Proving Professional Negligence
In order for any party to successfully bring a claim of professional negligence, they will need to show the following:
Duty Of Care, Contractual Obligations Scope Of That Duty Or Obligation
As a general rule, professionals are taken to have assumed responsibility of duty of care towards their clients. Obligations may also arise within an agreement is entered into, and this can sometime be above and beyond those of the standard legal obligations of duty of care requirements.
Breach Of Duty Or Obligations Which Leads To A Financial Loss
On establishing that a duty of care is present, it will need to be shown that there was a breach of that duty or obligation which then lead to a financial loss. A breach of the duty of care is where a professional has breached a duty of care or obligation which they are required to carry out to the standard expected of that professional. It is also a requirement that the breach much have lead to a financial loss, a loss which will need to be identifiable.
In the construction and building industry, there are often many parties involved in a project and this can complicate matters somewhat. So how can you tell if a breach has occurred, and what issues are down to which parties?
It is important to look at what was required, and whether it complies with the standard required of that professional or not. If there is any problems, you need to understand what the problem is, and who else could have either caused or contributed in any way to the situation. If you are unsure on the matter, it may be wise to appoint an expert to assess and advise on the position, which could in turn assist in guiding the parties in any discussions.
Problems with a final build can be caused by a number of parties. When assessing liability, you may find it helpful to consider the following points in the first instance:
- Architects/ Architectural Plans – have the plans been draw up as instructed and do they are they suitable?
- Structural engineer – have they assisted with the architectural plans, or have they assessed or provided any calculations which have been relied upon?
- Builders – have the builders complied with the architect’s drawings and any recommendations made. Have any works been signed off by building control as required?
- Surveyor – has the advice given complied with requirements of the projects and all parties involved?
- Building Control – have they complied with their instructions in the correct order?
Case law has concluded that a professional was not necessarily negligent if they complied with a practice accepted as proper by responsible members of the professions, even if other members would have taken a different view.
There are two elements to causation, both of which are required for a professional negligence claim to succeed.
- Factual Causation – i.e – a loss would not have occurred if it were not for the negligent act; AND
- Legal Causation, or remoteness – i.e – whether the negligence was the legal cause of the loss.
Both of these areas will need to be proven for a professional negligence claim to succeed, and it may well be that an expert report setting out standard practices of certain professionals is required to clarify these points.
Altion Law are specialists at advising and representing parties who have had allegations of negligence made against them. It is always a stressful time for any company or individual if negligence is alleged. If you would like to have a confidential discussion with a member of our team, please request a Free Call Back, and we will call you back at a time that is suitable for you or you can contact us directly on 01908 414990.