Home What Constitutes Professional Negligence? A Comprehensive Overview

What Constitutes Professional Negligence? A Comprehensive Overview

September 20, 2024 Personal Injury Claims

You may be entitled to compensation as a result of losses or injuries sustained from a professional’s negligence. When this occurs, it’s essential to understand your options and legal rights.

This article explores the ins and outs of professional negligence claims, how to prove negligent actions, what damages you can claim for, and how to claim for professional negligence in Scotland.

Jones Whyte’s outstanding team is adept at handling complex litigation matters pertaining to professional negligence claims in Scotland. We’re committed to providing the best legal advice and seeking the fairest compensation.

Contents

What is considered professional negligence?
What professional negligence law applies in Scotland?
How do you prove professional negligence?
What do professional negligence solicitors do?
What damages do professional negligence claims cover?
Why you should consider pursuing claims
Professional negligence claims process: How to make a claim
The benefits of using Jones Whyte’s professional negligence solicitors
Frequently asked questions

What Is Considered Professional Negligence?

Professional negligence occurs when a professional fails to provide a service to the expected standard, resulting in loss or damage to the client. This means the professional did not:

Carry out work that was instructed.
Carry out work to a reasonable standard.
Adhere to professional codes of conduct.

This can happen in various professions, such as engineering, medicine, accountancy, or property transactions. Professional negligence differs from other kinds of negligence as its main focus is on the professional’s duty of care when performing their work.

Examples of professional negligence

Medical negligence: A surgeon leaves a surgical instrument inside a patient during an operation.
Accounting negligence: An accountant provides incorrect financial advice that results in loss, tax penalties, or other financial disputes.
Property Transaction negligence: An estate agent fails to disclose property defects before a client moves in.
Architectural negligence: An architect provides subpar technical drawings that cause building defects.

How Do You Prove Professional Negligence In Scotland?

The legal test for establishing professional negligence in Scotland is rooted in the 1955 Hunter vs Hanley case.

There are three parts to this legal test to prove professional negligence:

There must be a usual professional practice standard.
It must show that the defendant failed to adopt that practice.
It must show no professional of ordinary skill would have acted the same way.

All three parts are required to prove and submit a professional negligence claim. Thereafter, you need to obtain expert evidence and supporting documentation to support your claim/s.

How long do you have to pursue claims?

The usual timeframe to submit professional negligence claims in Scotland is five years from the date the loss was suffered (three years for personal injury claims).

What Do Professional Negligence Solicitors Do?

Jones Whyte’s professional negligence solicitors specialise in helping individuals or businesses recover losses caused by the errors of professionals. Our expert lawyers are responsible for a range of duties, from assessing claims and gathering evidence to negotiating settlements.

Provide expert legal advice

Our lawyers provide first-rate legal advice pertaining to all professional negligence matters. We’ll guide you through the process, inform you of your legal rights, discuss any legal implications and suggest potential outcomes and strategies for pursuing claims.

Assess claims

Our solicitors evaluate whether you have legal grounds for making a professional negligence claim. We’ll review the circumstances and potential losses/injuries incurred through the professional’s negligence, basing this decision on the Hunter vs Hanley guidelines.

Gather evidence

Jones Whyte’s legal professionals collect the necessary documentation and evidence to support your claim. This often includes second opinions from other experts in the field, medical reports and out-of-pocket expenses to prove the initial professional was at fault.

Legal representation

Our solicitors are your legal representatives throughout the process, from negotiations and mediation to drafting litigation documents and representations in court. We’ll keep you informed at each stage of the process.

Negotiations

Many claims are settled outside of court. Our solicitors negotiate with the professional’s insurance brokers to achieve a fair settlement. However, should the professional dispute the claim or offer a less-than-satisfactory compensation, the case will go to court.

Court representation

Should a claim go to court, our negligence team will represent and guide you through the relevant proceedings.

What Damages Do Professional Negligence Claims Cover?

Professional negligence claims cover various damages resulting from negligent actions, such as:

Financial loss: This is the most common type of damage claimed. It includes direct losses incurred due to the professional’s negligence, such as lost income (or business profits), costs to rectify the issue, or losses from missed opportunities.
Consequential loss: These are indirect losses that arise as a consequence of the initial financial loss. For example, if an estate agent does not specify property details before a sale, such as mould or roof damage, the new owner may sue the previous landlord or seller.
Rectification costs: Claimants may seek compensation to cover expenses to correct the professional’s mistake. For instance, a client pays for a new architect to correct subpar technical drawings.
Emotional distress: In some cases, claimants can receive compensation for psychological distress, such as anxiety resulting from their injuries. For example, if a doctor mistakenly diagnoses someone with a life-threatening illness, only to later find out the diagnosis was incorrect, the emotional impact could be grounds for a claim.
Loss of reputation: If the professional’s error causes damages to an individual’s personal or business reputation, they may be entitled to compensation.

How much compensation can you claim for?

The amount of compensation awarded depends on several factors:

The severity of the professional’s breach of duty and the degree of negligence.
The extent of the financial losses and whether they were foreseeable.
The connection between negligence and losses.
The claimant’s duty to mitigate risk/losses.
The professional’s insurance policy clause/s.

Why You Should Consider Pursuing Claims

Here are a few reasons why you should consider contacting a professional negligence team to pursue claims:

Financial recovery: Compensation can help cover losses such as medical expenses, lost income, and property damage.
Accountability: Holding negligent professionals accountable can prevent similar mistakes in the future.
Expert legal advice: Professional negligence solicitors can handle the complex legal process, allowing you to focus on recovery. Legal professionals provide advice pertaining to your rights, what potential compensation you could receive and the ins and outs of making a claim.
Peace of mind: Pursuing a claim can provide closure and relief from the stress of the situation.

Suffering a loss due to someone else’s negligence can be stressful and financially draining. Pursuing a claim may seem daunting but having the right professional negligence team on your side – like Jones Whyte – gives you peace of mind.

Professional Negligence Claims Process: How To Make A Claim

Here is how to make a professional negligence claim in Scotland:

Step 1: Seek legal advice

Consult with Jones Whyte’s professional negligence lawyers as soon as possible. We’ll assess your case, explain the legal process, and guide you through making a claim.

Step 2: Gather evidence

Collect all relevant documentation, such as contracts, correspondence, statements from financial institutions, and medical reports. You will also need expert reports as a second opinion to verify and assess negligent actions. This evidence will support your claim.

Step 3: Claim submission

A Letter of Claim (a formal document summarising the facts of the case) will be sent to the negligent professional or their insurance brokers to inform them about the alleged negligence claim brought against them. The defendant has 21 calendar days to respond to this and a further three months to investigate the claim/s.

Jones Whyte’s legal professionals will assist in drafting and sending these documents.

Step 4: Settlement or court proceedings

Attempts are made between both parties to settle the claim outside of court. If successful, you may be awarded damages to compensate for your losses. If negotiations are unsuccessful, such disputes will go to court.

The Benefits Of Using Jones Whyte’s Professional Negligence Solicitors

Here are a few advantages of choosing Jones Whyte as your chosen solicitor for professional negligence matters:

Expertise: Our law firm specialises in professional negligence cases and is renowned for its strong track record of successful claims. We’re proud of our 4.9/5 star Trustpilot rating, helping numerous individuals across Scotland make a professional negligence claim.
Professional network: We have experience sitting on the General Medical Council, General Dental Council and the Nursing & Midwifery Council, ensuring you receive the best legal advice when making a claim.
Accessibility: Jones Whyte’s legal professionals are readily available to assist with your claim, answer any questions, and keep you in the litigation loop every step of the way.
Wide range of services: We cover a wide range of professional negligence claims from commercial and construction litigation to franchise and partnership disputes – and more.
Fees: We work on a no-win, no-fee basis whereby you only pay upon successful claims.

Key Takeaways

Professional negligence is when a professional neglects their ‘duty of care’, resulting in the claimant’s loss/injury.
Negligence claims cover various professions such as medical, legal, accounting and construction.
The Hunter vs Hanley legal test is used to prove negligent acts in Scotland. Three types of criteria must be proven to make a successful claim.
Jones Whyte’s professional negligence solicitors provide expert advice and guide you through the entire litigation process.
The usual stipulated timeframe to pursue claims is five years from the date of injury/loss, as per Scottish law (three years in personal injury cases).
Compensation settlements are based on the professional’s degree of negligence, the connection between negligence and injuries/losses, and the claimant’s duty to mitigate risk.

FAQs

What is the difference between negligence and professional negligence?

While professional negligence is a type of negligence, not every negligence case is professional.

Professional negligence is directly related to a professional person’s lack of duty of care like a real estate agent not disclosing house defects before a sale.

General negligence claims vary greatly, such as drink drivers causing an accident, forgetting keys in the car’s ignition and the vehicle being stolen, or cleaning staff not putting ‘wet floor’ signs down and someone slips.

Is negligence a professional liability?

Yes, when a professional’s negligence causes harm or loss to a client, it can lead to a professional liability claim. This means the professional is held responsible for the damages caused.

What part of negligence claims are the hardest to prove?

The hardest elements to prove in a professional negligence case include:

Breach of duty – establishing that the professional did not adhere to industry standards.
Causation – proving the link between the professional’s negligence and the client’s losses.

Jones Whyte Is Here To Help

Navigating the complexities of professional negligence claims can be stressful and overwhelming but with the right legal professionals, it can be successful.

Whether you’re dealing with errors from construction professionals, physicians or accountants, speak with Jones Whyte’s dedicated team – Scotland’s leading professional negligence solicitors.

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