When you instruct a professional to carry out work, whether it be an architect designing an extension to your property, a solicitor instructed to represent you in court or a doctor enlisted to operate on you, you are entitled to rely on the skills and expertise of that professional and to have work carried out to a certain standard. You might have a particular idea in mind of what that standard is, however what you may not know is that there is a legal standard governing all professionals. If the work done by a professional falls below that legal standard, they may find themselves exposed to a professional negligence claim.
Professionals owe a common law duty of care to their clients or patients. Where some form of harm or loss is caused to those clients or patients as a result of the conduct of the professional, they may be held liable. Depending on the type of professional instructed, and the type of work that they were instructed to do, the negligent conduct may take many forms. Some examples include (i) a failure to carry out work that was instructed, (ii) carrying out work below a reasonable standard or (iii) a failure to adhere to professional codes of conduct.
In Scotland, the legal test for establishing professional negligence is rooted in the 1955 case of Hunter v Hanley. There are three parts to the test:-
- There must be a usual and normal practice;
- It must be shown that the defender failed to adopt that practice; and
- It must be shown that no professional person of ordinary skill would have adopted the same course of action as the defender, if acting with ordinary care.
All three parts of the test must be satisfied for a professional negligence claim to succeed and you will be required to obtain expert evidence to support your claim. Generally, this will mean instructing an individual, experienced in the area in which you say you have suffered negligence, who will consider the evidence and prepare an expert report. The court will then consider the content of this report, the content of any report obtained by the defending party and the evidence overall, all against the three-part test.
The usual prescriptive periods apply to professional negligence claims. In many instances, you have five years from the date upon which you suffered loss, or three years where you have suffered an injury (for example in the case of medical negligence), to serve an action on the defending party. To minimise the risk of your claim prescribing, you should take action as soon as you become aware of conduct which may constitute professional negligence.