This Article constitutes the foundation of professional negligence actions in the United Arab Emirates (UAE). Gross negligence is not explicitly defined in the Civil Code, but it is suggested that behaviour far exceeding what could be reasonably expected of an ordinary person could constitute gross negligence.

On the other hand, DIFC Law is clear regarding the requirements necessary for tortious liability. First, the faulting individual must owe the loss-suffering individual a duty of care. Second, the individual must be negligent regarding that duty. Third, the fault must have caused actual harm.

Moreover, the doctrine of remoteness is crucial for establishing liability. If the resulting harm cannot be predicted and is deemed too remote, the third requirement for causation is not met.

By contrast, UAE onshore law, founded upon the Civil Code, lacks such a harsh test. Instead, courts assess whether the obligor has performed his obligations with the necessary level of care. In line with this, the claim’s success at professional negligence litigation depends, to a considerable extent, upon the evidence of the failure to carry out the level of care that could be reasonably expected.

Liability, Insurance, and Legal Boundaries in Professional Negligence Litigation UAE

Under Article 124 of the Civil Code, personal obligations arise from a variety of sources, including contracts, unilateral acts, harmful acts (torts), acts conferring a benefit, and statutory provisions.

Further, Article 196 specifically makes any provision purporting to exempt a party from liability for an unlawful act null and void. This applies both to breach of contract and tort. Article 390 makes it clear that parties may, for example, restrict liability under contract through devices such as liquidated damages; however, parties cannot reduce liability for unlawful acts at law.

Since professional negligence most commonly results in significant loss or injury, professional indemnity cover is provided by most insurers throughout the UAE. Most such professional negligence UAE risks are covered by sector-specific polices that cover:

• Corporate management directors’ and officers’ insurance
• Brokers, consultants, lawyers, and other similar professionals’ errors and omissions insurance;
• Insurance for construction professionals like architects and engineers.
• Accountant, auditor, and financial consultant policies; and
• Medical malpractice insurance for doctors, specialists, and hospitals.

In addition, UAE insurers also always exclude the cover for gross negligence, fraud, or wilful misconduct. The culpable firm—or in some cases, the individual—is liable directly for damages in such cases. The guilty party must also pay the excess if the claim exceeds the policy limit.

Compensation, Defenses, and Legal Process in Professional Negligence Cases

Under Article 292 of the Civil Code, courts must determine compensation in relation to the real damage that the victim incurred, such as loss of profits, subject to the condition that it directly resulted from the act that caused harm.

Where the harm is done by more than a single party, Article 291 makes each contributor liable for their contribution.

Parties in professional negligence litigation are able to raise various defenses. These may range from arguing that the claim is time-barred over lapsed periods of limitation (below), up to establishing that they exercised the level of care that a reasonable person would have done in similar circumstances.

Additionally, although UAE courts have cited the doctrine of contributory negligence in various cases, they have yet to thoroughly consider whether it applies in professional negligence litigation.

Limitations and Prescription Periods

Under Article 296 of the Civil Code, time limitations for contractual breaches are fifteen years. On the other hand, Article 298 stipulates a triennial time bar on claims arising from breach of duty of care, including claims emanating from medical negligence.

Whether a law of limitation will apply or not can depend on the facts of the case; as a result, parties should always obtain legal advice in order to determine the relevant time limits.

Dispute Forums and Resolution Mechanisms

In the UAE, professional negligence litigation is usually brought in the first instance court, which has jurisdiction over all civil matters. Or they could go to the DIFC Courts when the DIFC is the correct centre. The DIFC has already presided over a number of high-profile professional negligence disputes.

Remedies and Compensation

Injured parties through negligence can recover damages under Article 389 of the Civil Code. If the amount is not stipulated by law or by contract, the judge will have to award compensation based on actual damage incurred at the moment of the accident.

Conclusion

Professional negligence suits in the UAE keep developing within the framework of an advanced legal system with dual applicability of the Civil Code and DIFC Law. While the Civil Code has a general framework in obligations as well as in reasonable care, DIFC Law provides a more organized framework of tortious liability with well-defined components of duty of care, breach, and causation.

That sector-specific professional indemnity insurance exists is a reflection of growing recognition of professional risk, although exclusions for gross negligence and misconduct serve as a reminder of how severe such claims are.

There are also defences available to alleged wrongdoers, although these must be well evidenced and strategically argued, especially within the context of the changing approach to contributory negligence in UAE courts.

Finally, winning a professional negligence lawsuit in the courts hinges on timely action, quality of evidence at hand, and proper application of applicable standards of law. As the UAE law continues to develop, in particular with landmark judgments both in onshore and DIFC law, both claimants and professionals must remain up to date and well-advised to navigate possible disputes to their successful benefit.

For expert guidance and representation, Khairallah Law Firm and its experienced Best lawyers in Dubai are ready to counsel clients with astute insight and practical expertise in this technical area of law.

Having said that, contact Khairallah Advocates & Legal Consultants and benefit from our free 30-min legal consultation.

*Disclaimer: our blogs, law updates, and FAQ’s are freely distributed for educational purposes and to showcase recent updates and regulations in the UAE’s framework.

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