Professional Negligence- What is it? How is it proven?
A professional negligence claim is an action prosecuted against an individual or corporation, providing professional services, with the claim based in either negligence or contract or both.
A professional negligence claim can be prosecuted as against any person or corporation who hold themselves out to be professionals, that is, that they possess a particular skill or expertise in relation to the provision of goods or services. For example, lawyers, accountants, doctors, architects and financial advisors would be all professionals of a kind that could be sued for breach of contract or in negligence.
To successfully prosecute a professional negligence claim the provisions of the Civil Liability Act 2002 need to be satisfied. In particular, Section 5O which provides, in essence:
A professional does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice.
The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more of those opinions being relied upon.
Peer professional opinion does not have to be universally accepted to be considered widely accepted.
Accordingly, in order to be successful in a professional negligence claim it is necessary to establish, ultimately to the satisfaction of the court, that the professional being sued acted in such a manner that was contrary to peer professional opinion as a result of which the party suing suffered injury, loss or damage. It is therefore necessary to adduce evidence from a “peer” as to practice widely accepted in Australia and to determine that the conduct of the professional in question did not accord with such practice.
Accordingly, in any action brought as against a solicitor, doctor or accountant for professional negligence would require expert evidence from a lawyer, doctor or accountant as to what is widely accepted practice in Australia and that the conduct of the party in question did not accord with such practice so that it constituted a breach of duty of care to the party suing.
If the professional being sued is able to establish to the satisfaction of the court that their conduct did accord with widely accepted peer professional opinion then even though the party suing may have suffered injury, loss or damage, the professional being sued would be able to successfully defend the action.
Also, depending on the nature of the relationship with the professional, there may be certain contractual obligations that arise as between the parties, a breach of which would entitle a party to bring proceedings. For example, the retainer that exists as between a client and a lawyer is a contract pursuant to which there are certain terms, express and implied. A breach of the terms of the contract which gives rise to injury, loss or damage may ground an action in damages.
Brydens Lawyers are experts in the prosecution of all professional negligence claims. If you have suffered injury, loss or damage as a result of the advice received from or conduct of a professional, then see Brydens Lawyers without delay as strict time limits may apply to the prosecution of such claims.
At Brydens Lawyers – #WE DO professional negligence claims.