Negligence

The essence of the tort of negligence under English law is a duty to take reasonable care. To be able to bring a successful action for negligence you would need to establish the following four requirements:

• the defendant owed a duty to you

• the defendant breached the duty owed to you

• the defendant's breach of duty caused you to suffer loss 

• the loss caused was not too remote (ie unconnected to the act or omission)

In basic terms, a duty of care is a legal obligation to ensure the safety or well-being of others. The courts have used a number of different tests to establish whether a duty of care is owed at common law by one party to another.

Where a case involves economic loss a three-fold test is used which involves asking the questions:

• Was the damage which occurred foreseeable (ie could the damage be predicted)?

• Was there a sufficiently proximate relationship between the parties?

• Is it fair, just and reasonable in all the circumstances to impose a duty of care?

There is also a duty of care where a professional ‘assumes responsibility’ towards you, and a special relationship exists between the parties. This means that even if there is no contract between you and the professional if they have ‘assumed responsibility’ for the work that you have asked them to do, there will be a duty of care owed.

An example of this is where you instruct a builder to build an extension. The moment they start building they assume responsibility for your work.

A professional is a person who is considered to have particular expertise and skills in the services they provide to you. This may be any professional, including solicitors, barristers, surveyors, builders, engineers, financial advisors, insurance brokers, architects, accountants, IT professionals, professional trustees and others. 

Professional negligence occurs when a professional fails to perform their responsibilities to the required standard. A claim in professional negligence can be based on:

• a breach of a contractual term

• a breach of duty of care 

• a breach of fiduciary duty

• a breach of a statutory duty 

A breach of a duty of care in tort can be brought whether or not you had a contract or not. 

For example, it may be negligent for a solicitor to miss an important time limit or fail to advise you properly on an employer’s settlement offer. However, not every error or bad service constitutes negligence. 

When you make a claim for professional negligence you will need to demonstrate that the services provided to you by the professional fell below the standards of a reasonably competent professional, having regard to the standards normally expected in their profession.

Clinical or medical negligence is where you or someone you know has suffered injury or detriment due to negligent medical treatment. 

Some examples of clinical negligence include situations where you have suffered injury because the healthcare provider:

• failed to diagnose your condition or made the wrong diagnosis

• made a mistake during a procedure or operation

• gave you the wrong drug

• didn't get your informed consent to treatment

• didn't warn you about the risks of a particular treatment.

If you’ve suffered an injury as a result of medical treatment, this may be referred to as a ‘medical accident’ or ‘patient safety incident’. This doesn’t mean that your treatment was necessarily negligent. You can claim compensation only if it can be shown ‘on the balance of probability’ that:

• your treatment was carried out negligently, that is, the care you received fell below medically acceptable standards, and

• this directly caused your injury

If you’ve been injured as a result of negligent medical treatment or you have suffered economic loss due to negligent advice from a solicitor or an accountant, you may be able to take legal action for compensation. 

You could also take legal action for compensation if you’re the next of kin of someone:

• who has died because of negligent medical treatment

• who can’t take legal action themselves because they don’t have capacity

If your claim is for medical negligence, you don’t have to use the NHS complaints procedure before starting legal action but you may find it helpful to use it to find out more about what has happened. You can then make a more informed decision about whether to go ahead with a clinical negligence case. 

A negligence action is only about claiming compensation. The court can’t:

• discipline a healthcare professional

• force a hospital or individual healthcare professional to change how they work

• make a healthcare professional say sorry to you.

When making claims for negligence it is important to consider the limitation periods.