Has the loss been caused by the negligence? – Professional Negligence Overview Part IV
So far we have looked at when a professional owes a ‘duty of care’ to a client or a third party, as well as the test for whether they have breached that duty.
Breach of a duty is not, of itself, enough for a successful professional negligence claim. The professional negligence has to actually be the cause of the loss. For example, a personal may have received negligent advice but if they did not rely on it, a professional negligence claim will not succeed.
The ‘but for’ test
The law asks this question: ‘But for the professional’s negligence, would the loss to their client have occurred?’ If the loss would have happened whether or not the professional was negligent, a legal claim against them will fail.
Take the example of a solicitor who negligently fails to identify a defect in a house that their client is purchasing. If the client would have simply purchased the property for the same price with knowledge of the defect anyway, they would not be successful in bringing a professional negligence claim as the outcome would have been the same.
A second element – ‘reasonably foreseeable’
There is another element to whether negligent advice can be said to have legally ‘caused’ the loss. Both the professional and the client have to have been able to foresee that the negligent advice would have caused the type of loss suffered. The loss also has to be in the realm of reasonable possibilities.
Returning to the example of the house purchase, it is foreseeable that failing to discover a defect in a property might cause a loss to the client due to the drop in value. However, if, upon discovering the defect, the client suffered a heart attack and was not able to work for six months, those resultant losses would not have been reasonably foreseeable at the time the negligent advice was given.