Protecting yourself against professional negligence

Defining professional negligence

When you agree to provide a tailored service or offer expert advice on a project, you owe a client a duty of care and must exercise ‘reasonable care’ when supplying your service, regardless of whether or not the relationship is contractual.

If you fail to adequately fulfil your duties to this standard, you have breached your duty of care. If the client or customer loses money, or suffers physical damage or injury, then you may be liable to a claim of professional negligence.

Does this apply to me?

In essence, if you are claiming expertise in a particular service, then you are liable to a claim of professional negligence.

The individual bringing the claim will need to prove:

• That you owed the customer a duty of care – either because there was a contract, or because there was a relationship that meant you should have provided a service with reasonable care;
• That you breached that duty of care – the onus is on the claimant to prove that the service you provided fell below the standard of a reasonable professional, as well as indicating what the correct advice or conduct should have been; and
• That as a result of the breach, the customer suffered a loss – this could be a monetary loss, sustaining an injury or causing damage, to property, for example. In most cases, the losses must be proved to be a direct consequence of the professional negligence.

To understand the common types of professional negligence claims you may face, take a look at our blog on When professional advice is not professional.

Some top tips for avoiding or reducing the impact of professional negligence claims

It is important to ensure that as an expert in your industry, you provide the quality service promised to all clients. However, we are all only human and mistakes can happen.

So, as a business owner or employer, what can you do to minimise or mitigate the impact of professional negligence claims?

Avoid overpromising.

• It can be tempting when pitching for a new client to promise them the moon, sun and stars in an attempt to secure work. But overcommitting yourself can cause major headaches down the line, as clients may feel you have lured them in with false promises and have cheated them out of pocket. Be realistic in what you can achieve and deliver consistently, keeping clients informed throughout the process.

Exemption clauses.

• Certain exclusion or limitation clauses can be incorporated into contracts to, for example, minimise the risk of a claim and reduce the value of potential claims. Certain liabilities however cannot be excluded and you run the risk of making the whole clause unenforceable if you attempt to do so.  You should therefore seek advice from a solicitor on the best way to reduce the risk.

Manage expectations.

• Clients need an idea of timescales, potential issues going forward and associated costs to minimise the risk of disappointment. Keep channels of communication open at all times and be honest and upfront, even when it is bad news.

Get insured.

• Although it cannot stop the act of negligence occurring, having professional liability and indemnity insurance in place offers you some financial protection should a claim arise. Cases are often lengthy and legal fees can quickly stack up, so it is better to be safe (and insured) than sorry.

Put everything in writing.

• Once you have agreed the terms of service you will provide, send a written contract and terms and conditions that outline the nature and scope of the work you will undertake. While completing this work, ensure you keep records of any meetings and action points. If decisions are made over the telephone, make sure to follow up with an email confirming what has been decided.

Seek legal advice.

• If you do face a claim of professional negligence, make sure to seek legal advice at the earliest opportunity. Early intervention may mean the matter can be settled quickly, reducing the time dealing with it (and therefore the distraction from driving your business) and also the costs associated with litigation.

For advice on dealing with professional negligence, speak to our expert Dispute Resolution team on 01633 244233 or email hello@hevans.com