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Guide — Fair Go Australia
Something went wrong. A professional you trusted — your solicitor, your accountant, your financial adviser, your doctor — made a decision or gave advice that caused real damage to your life. And now you’re left wondering whether there’s anything you can actually do about it.
Most people in this position have no idea where they stand. Some have already been told by the professional involved that nothing was done wrong. This guide walks through the four things your situation needs to meet — in plain English, without the legal jargon.
The legal foundation
Professional negligence occurs when a licensed professional fails to meet the standard of care expected of a competent practitioner in their field, and that failure causes you measurable loss. It is not about a bad outcome. It is about a failure to do the job properly — and the harm that followed from it.
Every profession carries a duty of care. When someone holds themselves out as a qualified expert and you rely on their advice or services, the law holds them to a standard. Most professionals meet it. But when they don’t — and when that failure costs you something real — you may have grounds to claim.
The High Court addressed this directly in Rogers v Whitaker (1992) 175 CLR 479. The court made clear that professional conduct is assessed against what a reasonable, competent practitioner would have done — not simply against what the profession considers acceptable. That distinction is significant, because it means a professional cannot escape liability just by pointing to industry custom.
Under the Civil Liability Acts that apply across Australian states and territories, four elements generally need to be established before a professional negligence claim can succeed.
Four things to establish
Australian professional negligence law has four core elements. If your situation meets all four, a claim is likely to have merit. If any one of them is missing or weak, that is where the defence will focus — and where specialist legal advice matters most.
A duty of care exists when the law recognises that one person’s actions can reasonably affect another, and that the first person ought to take reasonable care as a result. In professional relationships, this duty arises almost automatically.
When you engage a solicitor, a doctor, an accountant, a financial adviser, or an engineer, the law recognises from the moment of that engagement that they owe you a duty not to cause you harm through their work. You don’t need to argue that the duty exists — in most professional relationships, it does. What matters is whether they met it.
For more on how Australian courts assess duty of care in professional negligence cases, see our guide to duty of care.
A breach occurs when a professional’s conduct falls below the standard expected of a reasonably competent practitioner in their field. The test isn’t whether this particular professional believed they were doing the right thing. It’s whether a competent professional in their position would have acted the same way.
This is where Rogers v Whitaker becomes important again. The High Court confirmed that courts are not simply bound by what the profession itself considers acceptable practice. If the conduct fails the objective standard — what a competent practitioner would have done — that can constitute a breach even if colleagues would have acted similarly.
In practice, this element is usually assessed through an independent expert in the same field. That expert will review the professional’s work and give an opinion on whether it met the standard. Their report becomes central to the claim.
For more detail on how courts assess breach, see our page on breach of duty.
Establishing that something went wrong is not enough on its own. You also need to show that what went wrong caused the loss you’re claiming. In law, this is called causation, and it’s often where professional negligence claims are most seriously contested.
The starting point is what lawyers call the “but for” test: would you have suffered this loss but for the professional’s failure? If the answer is yes — if the loss would have happened regardless of what they did — causation may not be established.
Where this gets complicated is in claims against solicitors, financial advisers, and similar professionals. A solicitor whose negligence caused a case to fail will invariably argue that the case would have failed anyway. A financial adviser whose advice caused a portfolio to collapse will point to broader market conditions. The law requires that causation be established on the balance of probabilities.
It is worth noting that pure economic loss — financial harm with no underlying physical damage — is recoverable under Australian professional negligence law. The High Court confirmed this in Perre v Apand Pty Ltd (1999) 198 CLR 180, which remains an important authority in this area.
For more on how causation is assessed, see our page on causation in professional negligence.
The final element is loss — sometimes called damage. You must have suffered actual harm that can be measured and quantified. Frustration, disappointment, or a vague sense that something went wrong is not enough on its own.
Loss can take several forms: financial loss from bad advice, the value of a legal claim that was extinguished by a solicitor’s error, medical expenses and lost income following a misdiagnosis, or the cost of rectifying structural defects caused by an engineer’s negligent design. In each case, the loss needs to flow from the breach — it needs to be a consequence of what the professional did or failed to do.
Who can be held accountable
Any professional who holds themselves out as having specialist skill — and who is engaged to apply that skill — can be held to account when their conduct falls below the required standard. The most common claim types we handle include:
This list is not exhaustive. If a professional was engaged to apply specialist expertise and their failure caused you quantifiable harm, it is worth getting an assessment.
Recognising the patterns
You do not need to be a lawyer to notice the warning signs. None of these individually guarantees a claim — but they are exactly the patterns that experienced professional negligence lawyers look for when assessing whether a case has merit.
Don’t be put off by a denial
Almost every professional negligence claim begins with a denial. It is standard practice — and it should not discourage you.
Professionals carry professional indemnity insurance, and when a claim is made, their insurer takes control of the response. The denial you receive is typically drafted on behalf of that insurer, and its purpose is to manage the insurer’s exposure — not to give you an honest assessment of what happened.
Your claim is not judged by the professional themselves. It is assessed by an independent expert in the same field, and ultimately — if necessary — by a court. As the High Court confirmed in Rogers v Whitaker, the professional’s own belief that they acted correctly does not determine the outcome. Courts apply an objective standard.
What matters is what the evidence shows. And the time to start building that evidence is now — before documents are lost, memories fade, and limitation periods close.
Time limits apply
Time limits apply to professional negligence claims in every Australian state and territory, and they are strictly enforced. Miss the deadline, and in most circumstances your right to claim is extinguished permanently — regardless of how strong the underlying case might be.
The general rule across most states is that you have three years from the date you became aware — or ought reasonably to have become aware — of the negligence. This is known as the discovery rule. The clock does not necessarily start on the date the mistake was made. It starts when you discovered it, or when a reasonable person in your position would have discovered it.
How long you actually have depends on which state you are in, what type of claim it is, and in some cases when the loss occurred. Some economic loss claims carry a six-year general limitation period. Personal injury claims typically carry a three-year period. If you are unsure whether your window is still open, do not wait to find out.
For a detailed breakdown of limitation periods by state, see our guide on limitation periods for professional negligence claims.
In most Australian states, professional negligence claims must be commenced within 3 years of the date you became aware — or should reasonably have become aware — of the negligence. Missing this deadline can permanently extinguish your right to claim. If you are unsure whether your limitation period is still open, contact our team for a free assessment as soon as possible.
The path forward
The process is more straightforward than most people expect — particularly in the early stages.
The first step is a free case evaluation. You speak with a specialist, describe what happened, and receive an honest assessment of whether the four elements are likely to be met. There is no cost, no obligation, and everything you share is strictly confidential.
If a claim looks viable, the next stage involves gathering records and engaging an independent expert to assess whether the professional’s conduct fell below the required standard. That expert opinion is the foundation of most claims. From there, most matters are resolved through negotiation — though a specialist team is prepared to take cases to trial when necessary.
The vast majority of professional negligence claims are handled on a no-win, no-fee basis. You will not receive a bill for legal work unless you win. For a full explanation of the process from initial assessment through to resolution, see the guide on how professional negligence claims work.
Take the next step
A free case evaluation takes less than ten minutes and gives you a clear, honest picture of where you stand. There is no cost, no obligation, and no pressure. If a claim isn’t viable, we will tell you that too.
Common questions
A bad outcome is not, by itself, negligence. A doctor can follow the correct procedure and still get a poor result. A solicitor can give careful advice and still lose a case. Negligence occurs when the professional’s conduct falls below the standard expected of a competent practitioner — not simply when things go wrong. The question is whether the right standard of care was applied, and whether a failure to apply it caused your loss.
No. Professional negligence is assessed objectively. You do not need to show the professional was dishonest, reckless, or even aware of the error. The test is whether their conduct fell below the standard of a reasonably competent professional in their field. An honest mistake can still constitute negligence if it is a mistake that a competent practitioner should not have made.
Generally, yes. A contract with a professional does not prevent a negligence claim. In many cases, the contract itself reinforces the duty of care. Some contracts contain clauses that attempt to cap or exclude liability — these are subject to scrutiny and are not always enforceable. A specialist can review what your contract says and advise on how it affects your position.
Most professional negligence claims are handled on a no-win, no-fee basis, meaning you pay nothing unless your claim succeeds. A case evaluation is free and without obligation. The costs of proceeding — including expert reports and legal work — are typically funded by the firm and recovered from the outcome if the claim succeeds.
A lack of documentation is not fatal to a claim, though it does make things more challenging. Professionals are generally required to maintain records of their work, and those records can be obtained through formal discovery if proceedings are commenced. Your own recollection, together with whatever records do exist, may be sufficient to support an initial assessment.
The first step is a free case evaluation. You describe what happened, and a specialist assesses whether the four elements of a claim are likely to be present. There is no cost, no commitment, and the conversation is confidential. From there, you will have a clear picture of where you stand before making any decision about whether to proceed.
Have a question not answered here? Contact us for a free, confidential case evaluation.
Our goal is to help people in the best way possible. this is a basic principle in every case and cause for success. contact us today for a free consultation.
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