The <INSERT PROFESSIONAL> was negligent

I hear this nearly every day, like:

• my lawyer was negligent in not advising me to accept this offer;

• my engineer was negligent in designing this footing;

• my building surveyor is negligent because of the defects - they should have seen it!

You imagine it, I have probably heard it…one…Hundred…TIMES

But negligence like any legal concept requires certain proofs, certain thresholds which may differ by jurisdiction, professional types and other factors.

You can’t just pontificate because a mistake occurred that there is negligence established…pay up!

*First, you need to establish a duty of care was owed. Far too often this is assumed like “They did the plumbing so there must be a duty of care”

Or if you didn’t contract with the engineer how can you establish the nexus necessary for a duty of care…?

*Secondly, one needs to establish the duty was breached.

Many think this must simply follows an error, but it doesn’t always. The standard of care expected of a professional can be tricky. What was reasonable practice by the professional in the circumstances. Were there warnings?

*Finally, causation and loss, this is absolutely crucial to look at. Even if a breach of duty is established. Why?

If you have no loss or the claimant has not loss…or No loss caused by the purported breach…STOP… do not pass GO folks, do not collect anything at ALL!

In fact, I often talk to my clients about loss in detail at the very first conference.

Many claimants have a duty owed, even in some cases an obvious breach. But where is the loss? How is it a cause of the error? All this talk about the conduct but where is it?

Or maybe the loss is so modest as to not warrant proceedings. To potential claimants I often ask - have you spoken to the professional?

If you are a litigant or potential litigant in ‘professional liability’ (and I say ‘professional liability’ specifically instead of professional negligence) because there are many causes of action. Don’t just assume negligence.

The big 3 I see are:

• Breach of contract;
• Misleading and deceptive conduct;
• Negligence (often the hardest to prove)

If you have suffered loss or are a professional facing a claim. Reach out.

Maybe you weren’t negligent, or the professional wasn’t…but these days there are so many claims both statutory and common law.

All have time limits for claimants!

For professionals PI insurance is almost always ‘Claims Made’. Simply put it means - if you know of a claim, so should the insurer!

Understand your rights before pinging off that email to a complainant or other party.

If you are a claimant time limit are everything. Don’t wait until six years passes to investigate…

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Tagged as:

• property disputes