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What is the burden of proof for professional negligence?

View profile for Jade Fairhurst
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Planning for the future - protecting your family and business

Occasionally, mistakes are made by professionals. Typically, professional negligence claims are often thought to relate to the more common professions, such as law, accountancy or architects professions. However, professional negligence claims can relate to a wide range of professionals. A claim for professional negligence arises when someone, holding themselves out to be an expert in their field, does something or omits to do something with competence or a lack of care.

Professionals are generally taken to have a standard duty of care, and as they are seen to have a specialised set of skills, they must meet a higher standard of care than an ordinary person in an everyday context.

In cases of professional negligence, the claimant (that is the person alleging that a professional has been negligent) must prove that the professional was indeed negligent. This means that the claimant must be able to prove that:

  • The professional held a duty of care.
  • The professional breached that duty of care as they did or omitted to do something with competence or a lack of care
  • The professional’s breach of duty caused the claimant to suffer loss; and
  • The breach caused a recoverable loss.

In most cases, a professional will owe a duty of care to their client or customer only. Usually, a professional’s duty of care will be set out in the written contract between the professional and their client/customer or, in some cases; if the professional assumes responsibility towards a client/customer and a special relationship can be found to exist, the court’s have found that a duty of care applies to such relationships.

As the burden of proof lies with the claimant, the court will be interested in the evidence that the claimant is able to present, that shows what the professional did or did not do during their relationship that fell below the standard expected of them. And so; it is important that the claimant seeks to: 

  • Collect and/or retain evidence such as letters, emails, written documents between them and the professional
  • Collect and/or retain all evidence that shows the respective losses.

The evidence relating to the loss incurred by the claimant is of particular importance as damages are assessed at the date of the breach occurring. Whilst there is no hard and fast rule, and the court may assess damages by reference to any other date if it considers it fair and reasonable to do so, the more contemporaneous the evidence relating to the loss as at the date of breach, the better the chance the claimant has to recover the losses incurred as a direct result of the breach of the professional.

If you believe that you have suffered a loss due to the negligence of a professional, and you require specialist legal assistance, Stephensons' professional negligence team can assist, call us on 0161 696 6178.