Professional Negligence Duty of Care UK Guide

Overview

A duty of care is a legal obligation to take reasonable care when your actions, or your advice, could foreseeably affect another person. In a professional context, it means the practitioner must exercise the skill and diligence that would be expected of a reasonably competent member of their profession.

The concept grew out of tort law long before it was refined for professional work, but the famous starting point most lawyers cite is Donoghue v Stevenson (1932), where Lord Atkin set out the idea that we owe care to our 'neighbours', meaning anyone so closely and directly affected by our conduct that we ought to have them in mind when we act. Over time, the courts built on that foundation to deal with cases involving advice, services and relationships of trust, producing the framework that applies to professional negligence today.

Establishing a duty of care is the first hurdle in any claim, because without it, there is no liability to consider.

Key steps

1. Identify the professional relationship. Work out exactly who was engaged to do what, and for whose benefit. A duty is easier to establish where there is a direct retainer or contract, but it can also extend to third parties in some circumstances, for example where advice is given knowing others will rely on it.
2. Check whether the harm was reasonably foreseeable. The courts ask whether a competent professional in the same position would have recognised that their actions, or their failure to act, could cause the kind of loss the claimant actually suffered. Remote or unusual consequences may fall outside the scope of the duty.
3. Consider the proximity of the relationship. Proximity looks at how close the link is between the professional and the person claiming. A paying client will usually satisfy this easily, but a stranger reading a report never intended for them may not. The closer the connection, the stronger the argument for a duty.
4. Ask whether imposing a duty is fair, just and reasonable. This final limb of the Caparo test gives the courts room to consider policy. For example, extending a duty too widely could open the floodgates to claims, so judges weigh up whether it is sensible to recognise one in the particular context before them.
5. Assess breach and resulting loss. Once a duty is established, the next questions are whether the professional fell below the standard expected of a reasonably competent peer, and whether that failure actually caused the loss claimed. Both limbs must be proved on the balance of probabilities.

Common questions