Within the modern day’s fast paced legal profession clients are more often than not faced with treacherous betrayals by the very professional individuals paid to look after their best interest. As a layman you, the public at large, needs to be educated on the subject of professional negligence as to prevent physical, financial, emotional and legal comprised victimisation.
WHAT IS PROFESSIONAL NEGLIGENCE
Professional negligence relates to the failure by an attorney or legal professional to act with the competence reasonably expected of ordinary members of the attorney’s or legal profession.
HOW DOES LIABILITY ARISE
An attorney or legal professional’s liability arises out of contract and his or her exact duty towards his or her client depends upon what he or she is employed to do. In the performance of his or her duty or mandate, an attorney or legal professional holds himself or herself out to his or her clients as possessing the adequate skill, knowledge and learning for the purpose of conducting all business that he or she undertakes. If, therefore, he or she causes loss of damage to his or her client owning to a lack of such knowledge as he or she ought to possess, or the care he or she out to exercise, he or she is guilty of negligence giving rise to an action for damages by his or her client against him or her.
INSTANCES OF PROFESSIONAL NEGLIGENCE
- Allowing a matter to prescribe whilst in the care of the attorney or legal professional;
- Failure to act on a client’s lawful instructions timeously or at all;
- Failure to apply the required skill and knowledge required to execute a particular mandate or instruction;
- Failing to advise a client appropriately upon receipt of an offer of settlement;
- Failing to obtain opinions from appropriate expert witnesses;
- Under-settlement of a personal injury claim by an attorney or legal professional.
PRESCRIPTION OF CLAIM
There is no defence to a claim of negligence where an attorney or legal practitioner delayed the issuing of summons, or if he or she did so after the claim has prescribed; he or she is guilty of the breach of duty of care in which the client’s damages loss was foreseeable. If a court case arises, there are certain time limits you as client need to adhere to in order to keep your claim valid. The applicable time frame usually relates to that of three years from the point at which the negligence in question became apparent.
WHO BEARS THE ONUS OF PROOF
You as client bear the onus to show that the attorney or legal professional is liable for the damages suffered as a consequence of such attorney or legal professional’s breach of his or her contractual mandate by negligently allowing your claim to become prescribed. You as client must not only establish that damages were caused by the attorney or legal professional’s breach of duty pursuant to such contract but furthermore that such breach was reasonably foreseeable for liability to result.
OBTAIN LEGAL ADVICE
To avoid victimisation it is best to seek legal advice within the relevant timeframes. By availing yourself of the right legal advice and support you will furthermore ensure the mitigation of your losses as the attorney or legal professional will most likely take the defensive stance that you yourself contributes to your losses.
Written by : Yolandi Vosloo (LL.B)