Professionals such as solicitors, accountants, financial advisers, doctors and engineers owe their clients a duty to act with reasonable care and skill. However, if a professional fails to do so, clients have a legal right to claim compensation for any financial loss suffered. A claim for compensation is usually the only way to recover loss resulting from a professional’s negligence.

Professionals who may come within the ambit of professional negligence include accountants advertising agents, alternative health professionals, architects, auditors, bankers, building consultants, builders, computer consultants, doctors, engineers, financial planners, medical and legal practitioners, real estate agents & valuers, surveyors, trustees, veterinarians etc. Claims against professional negligence may arise due to misleading professional advice, poor financial advice, negligent treatment by medical practitioners, accounting error, engineering mistakes, real estate misrepresentations, and incorrect property evaluations.

Pre-Requisites For Professional Negligence Claims

A professional negligence claim may include compensation for loss of profit and/or expenses incurred in remedying the negligence. However before making a claim against professional negligence, a person is required to establish that:

There was a duty of care owed to him by the professional;

The professional breached his duty of care; and

The person has suffered an injury or damage owing to breach of duty by the professional.

While assessing the preceding conditions, the Court considers the proximity between the injured person and the professional for a duty of care to exist, the standard of care expected and actually taken in the prescribed circumstance(s) by the professional, contributory negligence of the injured person and the existence of any vicarious liability. The Court would also take into account the attitude of the professional in providing the service or the manner in which the service was delivered.

Claim of Compensation

A claim of compensation for loss and/or injury sustained due to professional negligence may include legal costs, professional service expenses and all past and future financial loss or expenses likely to accrue from such negligence.

A medical practitioner is liable to provide medical and other out-of-pocket expenses including cost of pharmaceuticals, counselling, rehabilitation equipment and compensation for loss of income and for pain and suffering in the case of medical negligence.

A claim for compensation cannot be granted in cases where no loss or injury has been suffered even though the advice or service provided was negligent.

Legislation Regulating Professional Negligence Claims

The various legislation pertaining to professional negligence are:

Civil Liability Act 2002 (New South Wales) (NSW);

Personal Injuries (Liabilities and Damages) Act 2003;

Civil Liability Act 2003 (Queensland);

Civil Liability Act 1936 (South Australia);

Wrongs Act, 1958 (Victoria); and

Civil Liability Act 2002 (Western Australia).

Legislation Regulating Professional Negligence Claims

In NSW, the law of professional negligence is governed by the Civil Liability Act 2002 together with the Civil Liability Amendment (Personal Responsibility) Act 2002. According to Section 50 of the Civil Liability Act 2002 a professional does not incur a liability in negligence if it is established that the professional acted in a manner was widely accepted in Australia by peer professional opinion as competent professional practice at the time the service was provided. However, peer professional opinion cannot be relied upon if the Court considers the opinion irrational.

Limitation Period To Bring An Action For Professional Negligence Claim

The limitation period to bring an action of claim against professional negligence varies between 3 to 6 years depending on the statutory legislation applicable in each state. In each case the limitation period runs from the time when the cause of action happens, that is when damage is suffered as a consequence of breach of duty.

The team at Owen Hodge Lawyers has a thorough understanding of professional negligence laws and can ensure that your claim is processed with the utmost diligence and integrity.

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