Professional Negligence Lawyers in Melbourne

What professional negligence covers

Professional negligence arises when a person engaged for their skill and judgement provides services that fall below the standard a careful professional in their field would have met, and a client suffers loss as a result. The relationship is usually one of trust: the client lacks the technical knowledge the professional holds, relies on the advice or work, and acts on it. When that reliance is misplaced because the professional was careless, the law allows the client to recover the loss that flows from it.

We act for clients in claims against advisers and skilled professionals, including legal practitioners, accountants and tax advisers, financial advisers, valuers and surveyors, engineers, building and construction professionals, conveyancers, and insurance brokers. The matters range from a single negligent transaction to a course of advice that caused loss over years. What they share is a measurable financial consequence that can be traced back to a failure to take reasonable care.

Professional negligence is not the same as dissatisfaction with a result. Many professional engagements carry genuine risk, and a poor outcome can occur even where the work was done carefully. The question the law asks is narrower: did the professional do what a reasonable practitioner in their position should have done. Our first task is to answer that question honestly, before any claim is contemplated.

The legal framework

A professional negligence claim sits in the law of negligence, and frequently also in contract where the work was done under a retainer or engagement. To succeed, a claimant generally has to establish four elements: that the professional owed a duty of care, that the duty was breached, that the breach caused the loss, and that the loss is of a kind the law will compensate.

Duty and standard of care

A professional who accepts an engagement owes a duty to take reasonable care in carrying it out. The standard is not perfection. It is the standard of a reasonably competent professional exercising ordinary skill in that field. For those who hold themselves out as having particular expertise, the conduct is assessed against responsible practice among their peers. In Victoria, the standard of care for professionals is governed by the Wrongs Act 1958 (Vic). Under section 59, a professional is not negligent if they acted in a way that, at the time, was widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice, unless the court considers that opinion unreasonable. The courts have also held that a professional's duty can extend beyond the strict letter of their instructions where a real and foreseeable risk of loss arises (Hawkins v Clayton (1988) 164 CLR 539), and that professionals generally owe concurrent duties in both contract and tort (Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1). An honest difference of professional opinion, or a reasonable choice between accepted approaches, does not amount to negligence. The peer professional opinion standard does not extend to a professional's duty to warn of risk, which the Act addresses separately.

Causation and loss

It is not enough that the professional was careless. The breach must have caused the loss, in the sense that the loss would not have been suffered but for the failure, and the loss must not be too remote a consequence of it. Most professional negligence claims concern financial loss, and the measure is generally the difference between the position the client is in and the position they would have been in had the work been done with reasonable care.

Time limits and apportionment

The Limitation of Actions Act 1958 (Vic) fixes the period within which a claim must be brought. Under section 5(1)(a), an action founded on simple contract or tort must be commenced within six years of the date the cause of action accrued, and in tort the cause of action generally accrues when loss is first sustained, which can be complicated where the loss was not immediately apparent. Shorter periods apply to personal injury claims, generally three years under section 5(1AA). Separately, where the claim is for economic loss or property damage arising from a failure to take reasonable care, Part IVAA of the Wrongs Act 1958 (Vic) makes it an apportionable claim (section 24AF), so a court can limit each concurrent wrongdoer's liability to the share of the loss that is just (section 24AI), rather than holding any one party liable for the whole.

None of this displaces the need for advice on your own circumstances. The application of these principles, including the standard that applied to the particular professional, when the limitation period began, and how responsibility should be divided, turns on the detail of the matter and the evidence available.

How we approach professional negligence claims

Understand the strength of your claim

Our first step is assessment, not action. We review the retainer or engagement, the advice or work that was actually provided, the file and correspondence, and the loss you have suffered. Where the matter calls for it, we obtain independent expert input on whether the professional met the standard their field required. This is where we form an honest view of whether a claim exists, and what it is realistically worth, before any cost is committed to running it.

Craft a strategy that delivers results

If the claim has merit, we set a strategy built around how these matters are actually resolved. That usually begins with carefully prepared pre action correspondence and expert evidence, followed by negotiation or mediation, often with the professional's indemnity insurer involved. The strategy accounts for every responsible party, the prospects of recovery, and the commercial reality of the loss, so that effort is directed at the outcome rather than the fight.

Advocate for you at every step

We run the matter through to resolution, whether that comes by negotiated settlement, mediation, or contested proceedings. You are kept informed of the position and the options at each stage, and decisions are made with a clear view of cost, risk, and what success looks like for you. The aim is the best result that the evidence supports, achieved as efficiently as the matter allows.

Resolution and litigation

Most professional negligence claims resolve without a trial. Pre action correspondence, negotiation and mediation are the usual path, and because most professionals carry indemnity insurance, the insurer is frequently part of the settlement discussion. A well prepared claim, supported by the right expert evidence, is often what creates the conditions for a sensible commercial resolution.

Court proceedings are one option rather than the default. They are generally pursued where the claim cannot be resolved on acceptable terms, where the conduct in question needs to be tested, or where a limitation deadline requires a claim to be commenced to protect your position. When proceedings are necessary, the same disciplined preparation that supports negotiation is what carries the matter through the appropriate court.