Professional Negligence FAQs
Date: March 22, 2008
Authors: LAC Lawyers
Q. What is professional negligence?
A. Professional negligence is defined as meaning breach of a duty of care or of a contractual obligation in the performance of professional work or in the provision of professional services for example, persons who hold themselves out to be professionals, such as solicitors, accountants, financial advisors/planners, doctors, engineers, have a duty under the law to exercise proper care and skill when providing services to their clients.
Q. If clients believe that a legal practitioner has been negligent, what steps can they take to relieve the situation?
A. Clients can bring a consumer dispute to the Office of the Legal Services Commissioner (OLSC) about an alleged act of negligence and, if appropriate, the OLSC will try to help the client and the practitioner reach a satisfactory resolution. In simple cases this can mean an apology, the correction of an error, the reduction of an account, and so on.
When considering legal action against a lawyer, complainants should get legal advice. We will be able to assist you in this respect.
Q. Have you suffered loss as a result of a professional person's negligence or incompetence?
A. If a professional person fails to exercise a reasonable degree of care and skill, and as a result you suffer "loss" (whether financial loss or physical injury), you may be able to make a legal claim against them so as to recoup your losses. An action may be brought under the common law of negligence and/or breach of contract law. We can assist you in this respect.
Q. Can I make a claim if the professional failed to advise me on the possible unfavorable outcome of a proposed service, and if I had been advised of it, I would have declined the service, or sought advice and service from a more qualified practitioner.
A. Yes, however, these cases can be very difficult to establish.
Q. What compensation can I claim for professional negligence?
A. You can only be compensated for losses that are the result of the negligence. This may include, legal costs, past and future financial loss arising from the negligence, professional service expenses incurred as a result of the negligence, as well as any future expenses likely to be incurred, interest etc.
In the case of medical negligence (negligent treatment, advice or diagnosis) by a medical practitioner, you may be entitled to medical and other out-of-pocket expenses, such as cost of pharmaceuticals, counselling, rehabilitation equipment, as well as loss of income and compensation for pain and suffering.
Q. Is there a certain specified time period within which to bring legal action?
A. Yes. Failure to bring action within the time specified by the law, will result in your claim becoming "statute-barred", i.e. you will be prevented from bringing action at all. Only in very exception circumstances can the court extend the time period. However, it is prudent to not wait until the end of the limitation period to bring legal action.
The usual time limit is 3 or 6 years from the date of the negligence (it varies from State to State). That is, in some States you have only 3 years to bring an action, and in other States you have 6 years. We will be able to advise you of what the relevant time period is in your case.
Q. Am I entitled to sue my Optometrist who did not refer me to an Ophthalmic Surgeon soon enough which led to the loss of sight in one eye?
A. Yes, provided that no other Optometrist would have adopted the same regime of treatment for much the same period before referring you.
Q. Can I sue my insurance broker who placed my insurances with an overseas insurer who has subsequently gone into liquidation and cannot pay claims?
A. Yes, provided your insurance broker did not inform you of all the associated risks of insuring with an overseas insurer who, he was aware prior to the time of the company’s failure would be unable to pay claims, you were never notified of this and the insurances were of a type for which there was a market in Australia at comparable rates.