When Does Incompetence become Professional Negligence?

Incompetence is something that many of us encounter daily.

From putting orange juice in your cereal one morning to telling your colleague that they are, yet again, on mute during the weekly catch-up, mild acts of incompetence are part of our daily life.

However, when does a simple human error become something more serious?

Negligence is a term used to describe when someone has failed to do something competently or carefully.

Professional negligence arises when someone who should have known better, should have done better.

Professional negligence vs ordinary negligence vs incompetence

Both types of negligence apply to harm caused by carelessness, not malicious intent. Complaints are usually filed in civil courts (as opposed to criminal), where claims could be pursued in regards to finance, physical or mental health.

Here are the main definitions and distinctions between the terms:

What is incompetence?

Incompetence means solely that a person lacks a specific set of skills, rather than lacking in intelligence, or is particularly careless.

Incompetence is situational and closely related to the job being performed. For example, senior doctors would make important decisions about treating a patient, a job which would not be given to a first-year medical student.

A key distinction between incompetence and negligence is that even an incredibly accomplished professional who is found to be negligent, might not be incompetent in any regard.

What is ordinary negligence?

Businesses or individuals should provide the same care that any other reasonable person would in order to avoid any harm to others. When they don’t, this is called ordinary negligence.

Under tort law, the person who was harmed, or otherwise left at a loss by the business or company, could sue for ordinary negligence.

What is professional negligence?

Unlike ordinary negligence, where most companies have a standard duty of care, professionals with specialised skills need to meet a higher standard than an ordinary person.

Most cases of professional negligence are due to a mistake that could have been avoided by someone else with the same level of specialist knowledge. Essentially, professionals must take the same amount of care as any other person in their field of expertise would. When they don’t, this can amount to professional negligence.

So, when does incompetence become a case of professional negligence?

Generally, to succeed in a professional negligence claim, three aspects must be proved.

Firstly, that the professional owed a duty of care to the claimant, secondly, that they breached that duty, and finally, that the breach itself was the cause of loss.

Professional negligence claims also relate directly to specialists with a higher-than-standard duty of care to the parties they were serving.

For example, a poorly-made cup of coffee from a barista may constitute incompetence, but an error from a legal barrister may constitute professional negligence.

Professions that have a higher standard of care than ordinary companies

Whilst medical malpractice claims against doctors, medical professionals or hospitals tend to see the most well-known cases, other areas of specialism can also bring about negligence claims. For example:

• Financial professionals (e.g. advisors)
• Insurance professionals, including brokers
• Estate agents and other property professionals (e.g. valuers, surveyors)
• Consultancy firms
• Engineers
• Doctors and other medical professionals
• Lawyers
• Accountants or auditors
• Architects

In essence, negligence arises when someone who should know how to do something extremely well, carries out an action that causes losses to the other party.

Impact of the pandemic on professional negligence claims

Many working professionals (Carlsons Solicitors included!), take steps to ensure clients get the same experience working remotely as they would meeting face-to-face.

However, there are several reasons why the pandemic, and perhaps the permanent shift towards more flexible home working arrangements, could lead to a rise in professional negligence claims. These include:

• Increased risks associated with taking important or sensitive documentation home
• Increased risk of data breaches (such as less secure internet access)
• Practical considerations of working from home
• Lack of resources or poorer resources available to each member of staff than in the office
• Trainees may find it harder to access the knowledge and expertise of their senior colleagues when working remotely
• Increased demands on fee-earner time, such as added childcare responsibilities
• Other factors with regards to equality, such as the pandemic’s particular impact on race and gender

Carlsons Solicitors is a full-service law firm with meticulous attention to detail, superior client care and many years of experience practising law. Our team of senior solicitors, in-house barristers and associates offer clear, expert legal advice, as well as the commitment and dedication needed for an outcome that is in your best interest. Get in touch today.