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Explore the different types of professional negligence
Explore the different types of professional negligence

A Primer on Professional Negligence

We expect that the professionals we encounter know what they’re doing, and that they’re going to do the job right. We don’t question a surgeon on their handiwork, or an accountant on their tax calculations, if we’re not in that same field. That’s because we assume that, given their level of education and expertise, they know how to do the job properly. 

Yet all of us are human, and all of us make mistakes. Some of those mistakes happen by accident, and other times they may be because of carelessness, or a lack of due diligence. The accountant may miss a number, or the lawyer may miss a deadline – any one of which can have serious consequences. 

Most professionals are required to carry a large amount of insurance because being a public-facing professional comes with a high degree of risk. If you make an error while working or providing services, you may be subject to a claim of professional negligence – one which could put both your career and your reputation in jeopardy. 

What is professional negligence, and how does it impact both professionals and their clients? What options do you have if you believe someone has been negligent in doing work for you? How do you protect yourself as a professional from losing everything that you’ve worked to build?

What is professional negligence?

Professional negligence is when a trained professional has breached their expected duty of care, and that breach of duty results in a loss. While we typically think of medical mistakes (more on that later), there are a variety of instances of professional negligence that we may encounter in everyday life:

  • An accountant does not report your income properly, leading to tax penalties
  • An architect or engineer does not design a building safely, leading to a collapse (that was avoidable)
  • A realtor does not inform a buyer of an issue they know about on the property, which leads to the buyer being injured

Sometimes professional negligence is simply about a professional being sloppy or careless. Lawyers, for example, have a duty of competency, and are bound by the Law Society of Ontario not to provide advice if they are not fit to do so. You may not always be able to detect negligence ahead of time, but if you are working with someone who does not communicate clearly, or whose advice seems off, or who is simply not listening to you, those may be warning signs of a greater issue. 

Types of professional negligence claims

There are three categories of professional negligence claims available to Plaintiffs in Ontario.

In a gross negligence claim, the claim is that the professional made a serious error that was simply reckless, as though they had abandoned their duties. This is not a mistake in a lawsuit or a calculation error in a tax filing, but rather a failure to file a defence at all, or a failure to file taxes for a client. 

In a contributory negligence claim a plaintiff may have played some role in their loss, and so warrants some degree of responsibility. Any damages award is usually calculated to compensate them for the percentage of the loss that is not their fault. 

In a vicarious negligence claim, it is not the professional themselves but instead one of their employees or team members that has made an error. For example, the plaintiff as a client dropped off important documents, which were lost under a pile of papers, or an important letter was written but never sent out. Even if the professional was not directly at fault, they are still responsible for the actions of their staff. 

How to protect yourself as a professional

There are best practices that you can follow as a professional to help protect yourself against negligence claims. You are responsible for ensuring that you have the right competencies, which means staying up-to-date on your knowledge and training. Most regulatory bodies require professional members to complete a certain number of hours of training each year, or at regular intervals. Avoid taking foolish risks in areas where you do not have sufficient knowledge or expertise. 

You are also responsible, or sometimes even required, to carry the proper insurance. That insurance can help protect you should a claim arise, so know your insurance policy and what sorts of instances are covered. If an allegation does arise, connect with your insurer early before taking steps to rectify the problem on your own. 

Remember, a negligence claim may not begin as a legal claim, but instead as a report to your governing body who will then likely investigate. Keeping detailed records of your work, copies of documents, detailed conversation notes, and following proper procedures in your work can all help indicate that your actions were above board. 

Final Thoughts

No matter which side you are on, professional negligence claims can be difficult. As a plaintiff, you may have suffered a loss, and you believe that happened because someone who you trusted, who you believed to be an expert, failed to do their job properly. As a professional, a negligence claim can keep you up at night, worrying not only about that one situation but about the entire future of your business and reputation.

Thankfully we are here to help. We have supported plaintiffs and defendants in professional negligence claims throughout the Cambridge, Kitchener, and Waterloo Regions, and we know what it takes to build a strong case. Contact our office today to set up a consultation.