Has a Professional Breached their Duty of Care? – Professional Negligence Overview Part III
When is wrong advice or a mistake so bad that it might be professional negligence?
Breach of duty
The law requires a professional to act with the same care and skill to be expected from a reasonably competent member of their profession. A professional will be in breach of their duty of care if they fall below this standard.
So, a solicitor holding himself out to be a specialist conveyancing solicitor is required to comply with the standards expected of a reasonably competent conveyancing solicitor. The particular experience of the professional, who may be a newly qualified solicitor or a senior partner, does not affect this standard.
In order to determine whether the duty of care has been breached, it is important to note that the question is not simply “has something gone wrong?” or “is the client unhappy with a particular outcome?” This is because a reasonably competent professional may have taken the same precautions, or given the same advice, and achieved the same outcome.
For example, a doctor would not necessarily be in breach of her duty of care (and therefore negligent) in recommending and carrying out a risky, but ultimately unsuccessful, procedure if that is what a body of other reasonably competent doctors would also have done in those circumstances. There may have been several alternative procedures which would have been acceptable.
Check the contract
A professional may not have been negligent, but may nevertheless have breached the terms of their contract with the client.
Those actually written in the contract are called express terms, and are obvious. However, a contract may also have implied terms which, as their name
suggests, are implied from the circumstances of the creation of the agreement, what the parties said, or what they must have obviously intended, among other things. The law also implies certain terms into every contract, such as the term that work or services be carried out with reasonable care and skill.
Not all contracts have to be in writing.