PROFESSIONAL NEGLIGENCE

What is professional negligence?

A tort, in common law jurisdictions, is a civil wrong [ CITATION Wil82 \l 1033 ] that unfairly

causes someone else to suffer loss or harm resulting in legal liability for the person who commits

the tortious act, called a tortfeasor. In the English law of tort, professional negligence is a subset

of the general rules on negligence to cover the situation in which the defendant has represented

him or herself as having more than average skills and abilities. Professional negligence occurs

when professionals whose work falls below the standard required by the law, may cause serious

repercussions for their clients and can lead to clients suffering significant financial losses.

Professional negligence can be defined as malpractice by a professional that not

according to reasonable skill and care[ CITATION Pro16 \l 1033 ] . Negligence among construction

professional may result in damage to property and person or loss of life. It is therefore important
for the construction professional to exercise reasonable skill and care when carrying their work

in order to minimize the possibility of being charged with negligence[ CITATION Bak14 \l 1033 ].

How does the judge determine whether a professional man has exercise the necessary

skill in carrying out their work? What are the criteria or the general outline for negligence to

beestablished? The objective of this research is to identify criteria that judges determine whether

a professional man is negligent or not when discharging their duty. For the purpose of this study

ten case law of negligence from United Kingdom, Malaysia and Singapore has been carefully

chosen for the analysis. Case law between 1980 to date was chosen to make sure that the

principle of negligence use is up to date. The study suggested that the first method for the judge

is to determine the relationship between the plaintiff and defendant and whether they owed a

duty of care to the plaintiff. Several criteria on proving duty of care like relationship in tort and

contract, proximity, foreseen ability, causation and the qualification of the professional. Then the

judge will see whether defendant has breach that duty. The first criteria are the court will check

whether the professional has exercise reasonable skill and care, requirement and regulation,

assists with expert evidence and regulatory bodies of the relevant profession. The last one is

whether the damage must be actual and resulted from the defendant breach. The important from

this element is if one of the element is failed to be proved by plaintiff, the negligence cannot be

established.
Elements of a Negligence Case

In order to prove that the defendant was negligent and therefore responsible for someone

injuries, the victim must prove all of the "elements." For instance, one of the elements is

"damages," meaning the plaintiff must have suffered damages (injuries, loss, etc.) in order for the

defendant to be held liable.[ CITATION Ele16 \l 1033 ]

Juries are instructed to compare the facts, testimony, and evidence with the following

elements before reaching a judgement:

i. Duty

ii. Breach of Duty

iii. Cause in Fact

iv. Proximate Cause

v. Damages
Duty

The outcomes of some negligence cases depend on whether the defendant owed a duty to

the plaintiff. Such a duty arises when the law recognizes a relationship between the defendant

and the plaintiff, and due to this relationship, the defendant is obligated to act in a certain manner

toward the plaintiff. A judge, rather than a jury, ordinarily determines whether a defendant owed

a duty of care to a plaintiff. Where a reasonable person would find that a duty exists under a

particular set of circumstances, the court will generally find that such a duty exists.

In the example involving the defendant loading bags of grain onto a truck, and striking a

child with one of the bags, the first question that must be resolved is whether the defendant owed

a duty to the child. In other words, a court would need to decide whether the defendant and the
child had a relationship such that the defendant was required to exercise reasonable care in

handling the bags of grain near the child. If the loading dock were near a public place, such a

public sidewalk, and the child was merely passing by, then the court may be more likely to find

that the defendant owed a duty to the child. On the other hand, if the child were trespassing on

private property and the defendant did not know that the child was present at the time of the

accident, then the court would be less likely to find that the defendant owed a duty.

Breach of Duty

A defendant is liable for negligence when the defendant breaches the duty that the

defendant owes to the plaintiff. A defendant breaches such a duty by failing to exercise

reasonable care in fulfilling the duty. Unlike the question of whether a duty exists, the issue of

whether a defendant breached a duty of care is decided by a jury as a question of fact. Thus, in

the example above, a jury would decide whether the defendant exercised reasonable care in

handling the bags of grain near the child.

Under the traditional rules in negligence cases, a plaintiff must prove that the defendant's

actions actually caused the plaintiff's injury. This is often referred to as "but-for" causation. In

other words, but for the defendant's actions, the plaintiff's injury would not have occurred. The

child injured by the defendant who tossed a bag of grain onto a truck could prove this element by

showing that but for the defendant's negligent act of tossing the grain, the child would not have

suffered harm.

Proximate Cause

Proximate cause relates to the scope of a defendant's responsibility in a negligence case.

A defendant in a negligence case is only responsible for those harms that the defendant could

have foreseen through his or her actions. If a defendant has caused damages that are outside of

the scope of the risks that the defendant could have foreseen, then the plaintiff cannot prove that

the defendant's actions were the proximate cause of the plaintiff's damages.

In the example described above, the child injured by the bag of grain would prove

proximate cause by showing that the defendant could have foreseen the harm that would have

resulted from the bag striking the child. Conversely, if the harm is something more remote to the
defendant's act, then the plaintiff will be less likely to prove this element. Assume that when the

child is struck with the bag of grain, the child's bicycle on which he was riding is damaged.

Three days later, the child and his father drive to a shop to have the bicycle fixed. On their way

to the shop, the father and son are struck by another car. Although the harm to the child and the

damage to the bicycle may be within the scope of the harm that the defendant risked by his

actions, the defendant probably could not have foreseen that the father and son would be injured

three days later on their way to having the bicycle repaired. Hence, the father and son could not

prove proximate causation.

Damages

A plaintiff in a negligence case must prove a legally recognized harm, usually in the form

of physical injury to a person or to property. It is not enough that the defendant failed to exercise

reasonable care. The failure to exercise reasonable care must result in actual damages to a person

to whom the defendant owed a duty of care.

Important considerations

Proportionality

Proportionality is a key concept both at the start of a potential claim and right the way through it.

There may be a number of complex issues, relatively weak grounds for a claim or a real

likelihood that the claim will be defended. These will inevitably increase legal costs. A claimant

should therefore think carefully about the likely costs of pursuing a claim versus the likely value

of the claim itself. Courts have voiced their disquiet on a number of occasions where the legal

costs have become disproportionate to the amount in dispute. In any event, a successful claimant

is extremely unlikely to recoup all of his or her costs incurred in pursuing a claim. Therefore the

costs which the claimant ultimately has to pay may significantly reduce or eliminate the damages

obtained.

Funding

Professional negligence claims can be complex and therefore the legal costs of pursuing them

can be high. Some firms, including Cripps, offer a range of funding options alternative to

standard hourly rates. A potential claimant should always check whether he has the benefit of

legal expenses insurance (often included as part of household or motor vehicle insurance).
However, other options may be available, such as:

• Conditional fee agreements (‘no win no fee’ where a success fee is paid in the event of a

win)

• Concessionary fees (fees are charged at a concessionary rate and in the event of a win the

standard rate plus a success fee is paid)

• Cash flow assistance (where the projected costs are paid in equal instalments over the

anticipated life of the claim)

Time limits

If proceedings are to be issued, they must be brought within certain time limits or the defendant

professional will have a strong defence that the claimant is out of time to bring a claim. The

applicable limitation period in most professional negligence cases is six years from the date of

the

negligence. Sometimes this is extended where the negligence only becomes apparent at a later

stage. In those cases the relevant limitation period is three years from the date of knowledge of

the facts which might give rise to a claim if that period expires later than the six year period from

the negligent act. There is a long stop date of 15 years within which claims must be brought. For

example, if a negligence relating to the purchase of a business is discovered 14 years after the

relevant date for limitation purposes, there may only be one more year within which to

commence court proceedings to avoid being out of time. Claimants should always act as swiftly

as possible and seek legal advice as to the limitation period which will apply to their claim.
Pre-action protocol procedure

Once a potential claim has been investigated and it appears to be worthwhile pursuing, the

claimant should not simply issue court proceedings straightaway (unless the relevant limitation

period is about to expire). A procedure known as the ‘Professional Negligence Pre- Action

Protocol’ should be followed. This provides a framework for an early exchange of information

with the aim of dealing with matters expeditiously and cost effectively, and is designed to

encourage parties to

settle a dispute without the need for court proceedings.

Preliminary Notice

As soon as the claimant decides there is a reasonable chance that a claim will be brought, he or

she should notify the professional in writing with a brief outline of the grievance and an

indication of the financial value of the claim. The professional should acknowledge this letter

within 21 days.

Letter of Claim

Once the potential claim has been investigated, the claimant should send a detailed Letter of

Claim to the professional. This should identify the parties involved, set out the facts upon which

the claim is based, the allegations against the professional, explain how this caused the alleged
loss and provide an estimate of how the loss is calculated. Supporting documentation should be

enclosed if possible.