There are two elements to a professional negligence claim; the liability (a breach of the duty of care owed by a professional) and the loss suffered by the innocent party as a result of the breach.
Once liability is established, the focus then switches to the question of loss, i.e. what has the innocent party lost as a result of the professional’s negligence. This will provide a starting point for the calculation of damages. The purpose of damages is to put the innocent party in the position they would have been in had the negligence not occurred.
In professional negligence, there are three key factors which contribute to finding this figure:
The timing of loss.
The claimant's own contribution to the loss (contributory negligence).
The claimant's duty to mitigate the loss.
The date of assessment of loss in professional negligence cases can vary. This is because the loss may not have crystalised at the date of the breach of duty and/or contract. The loss may not crystalise for many years and it would be unfair to quantify damages at an earlier point of time, particularly if it did not put the innocent party back in the position they would have been in but for the breach.
In assessing the loss, and consequently any award for damages, the court will also consider whether the innocent’s party’s own conduct contributed to the loss. If it has then the court may reduce any award for damages to reflect this.
An innocent party also has a duty to mitigate their own losses. This requires the innocent party to take all reasonable steps to try and reduce the loss caused. Mitigation is based on what the innocent party does after the harm has been recognised. For example, if a claimant's property is damaged but they fail to repair it promptly which subsequently means that further damage to the property is caused, the cost associated with the additional damage may be unrecoverable.
The onus is on the negligent party to prove that the innocent party did not take reasonable steps to mitigate their loss. Mitigation is taken seriously by the courts and the case of Rentokil v Goodman [2014] demonstrates that it is a high risk strategy for an innocent party to ignore their duty. The court ruled that Rentokil had not gathered enough evidence of its mitigation and therefore was not persuaded that it had acted reasonably.
For more information, please contact our property disputes team.
