Professional Negligence in Construction

Ben Patten, Hugh Saunders

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351372879
• Edition: 2
• Topic: Architecture
• Subtopic: Professional Practice in Architecture

What is professional negligence? What are the obligations of construction professionals in contract and in tort? In what circumstances might the difference between the obligations be important?

These questions are of crucial importance not only to construction lawyers but also to contractors, architects, quantity surveyors, engineers, project managers, and multi-disciplinary practitioners. With an emphasis on the practical aspects of professional negligence in the construction industry and written in a straightforward yet authoritative way, this book is ideal for lawyers and students of construction and law as well as construction professionals at all levels.

Chapter 1

Introduction

1.1 “Professional negligence” is a mesmeric phrase which has become a term of art in the legal world notwithstanding its imprecision. As commonly understood it refers to the business of suing and defending professional persons, being solicitors, accountants, architects and so forth, for errors or misjudgements made by them in the course of carrying out their work. Lawyers hold themselves out as practising in “professional negligence” and have created bodies and standards to promote and codify their practice. The courts in England and Wales have recognised “professional negligence” disputes as a specific type of dispute, suitable for resolution with the assistance of processes recommended by professional negligence pre-action protocol.

1.2 Yet both “professional” and “negligence” are inexact terms.

1.3 There is no very clear definition of “professional” and the origins of the “professions” are much debated. In antiquity men (and some women) offered their services as doctors, lawyers and architects, but none of them traded as part of a “profession”. There was nothing to distinguish the provision of their services from the provision of the services of the blacksmith, the tailor and the cook. The antecedent of profession is the “professio”: the act of taking a vow as part of a religious community; the notion of being a member of a “profession” probably has its roots in the experience of joining a religious order. Recognition of professions begins with the decisions of lawyers in the early Middle Ages to band together in Oxford and Paris, ostensibly so as to regulate their members and promote consistent standards, but probably to drive out competition. Doctors soon followed suit.¹ Webster records that the first known use of “profession” is in the thirteenth century.

1.4 The Cambridge Dictionary defines “profession” as “any type or work that needs special training or a particular skill, often one that is respected because it involves a high level of education”.

1.5 The characteristics of the professions, as currently understood, are a disciplined group of individuals who adhere to ethical standards. This group positions itself as possessing special knowledge and skills in a widely recognised body of learning derived from research, education and training at a high level, and is recognised by the public as such. A profession is also prepared to apply this knowledge and exercise these skills in the interest of others. A profession arises when any trade or occupation transforms itself through “the development of formal qualifications based upon education, apprenticeship and examinations, the emergence of emergency bodies with powers to admit and discipline members, and some degree of monopoly rights”.²

1.6 It follows that whether someone is a professional for the purposes of “professional negligence” is a matter of accident and impression.

1.7 It is accidental in the sense that each profession is self-defined and created; it is perfectly open to any group of persons offering skilled services, whether they be fortune tellers or brand consultants, to band together, self-regulate by exclusionary standards and practice requirements and hold themselves out as a profession.

1.8 It is a matter of impression because some degree of public recognition of the group of individuals as a “profession” appears to be a critical threshold; the whole point of creating a profession is to persuade the users of services that these services can only safely be purchased from its members; if the purchasers of the services of fortune tellers and brand consultants blithely ignore the self-regulated group and purchase their services from persons outside it no “profession” is likely to come into being.

1.9 The authors of Jackson & Powell on Professional Liability address the issue this way:

“Professional” is an acquisitive concept, acquisitive of aspirations as well as expectations and liabilities. Yet perceptions as to its contours are indistinct, subjective and constantly changing. The penumbra enlarges with language and context. A professional is not synonymous with a member of a profession and a professional service is professed by others also. The occupations which today are regarded as professions extend far beyond those regarded as such a century ago. They have increased as human knowledge, skill and consequent specialisation have increased. Judicial attempts to define a “profession” recognise that the meaning of the word long ago ceased to be confined to the three learned professions, the church, medicine and the law.³

1.10 The authors identify four characteristics or badges of a professional: (1) the service provided is a service of skilled and specialised work which is mental rather than manual and which the professional is able to perform because of a period of specialist theoretical and practical training; (2) a moral commitment to high levels of service and behaviour which is founded in the professional’s regard for its profession rather than the professional’s narrow economic interest; (3) membership of, or participation in, associations or other collective bodies specific to that profession, which regulate that profession, setting standards and enforcing conduct and (4) status or recognition by the public at large (sometimes augmented by legal privileges) which accords because the professional is a member of a recognised profession and not because of its individual character or abilities.⁴

1.11 “Negligence” is similarly more complicated than it might at first appear.

1.12 In everyday usage “negligence” means carelessness. That plain English meaning is reflected in judicial definition: “negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”.⁵

1.13 However, when lawyers speak of “negligence” they refer not merely to a lack of care, but rather a lack of care in the context where one person owes a legal duty to another to be careful. Indeed, the business of suing and defending professional persons is not primarily concerned with “negligence” at all: it is concerned with liability.

1.14 In English law the liability of a professional to its client is largely a matter of contract. The contract between the professional and the client will set out, in varying degrees of clarity, precisely what it is that the professional is required to do. Whilst it will invariably impose liability upon the professional for what is commonly understood as “negligence”, it will generally impose its own definition of negligence and will also generally impose liability for certain non-negligent acts or omissions. It follows that negligence does not exist in the abstract. A professional person is only negligent in respect of the services which its contract requires it to provide.

1.15 Moreover, “negligence”, as that word is generally understood by professional negligence lawyers, and as is generally prescribed in the contracts of professional persons, does not mean simple carelessness. It carries a more specialised meaning. “Negligence” is a failure to act within the band of competent actions open to a hypothetical competent member of that profession in those circumstances. This is otherwise known as the Bolam test.⁶ As will be discussed below, the Bolam test is a convenient legal fiction which allows Judges to apply a standard below which conduct will be held to be “negligent”. In order to arrive at that standard the court is invariably assisted by experts: knowledgeable members of the profession who not only assist the court in understanding the technical issues but who also provide help with the kinds of judgment which would or would not be taken by a significant body of that profession.

1.16 Whether “professional negligence” provides an entirely satisfactory set of tools for analysing whether the adequacy of the provision of particular skilled services in a construction context is open to question.

1.17 The approach depends for its integrity upon the provider of those services being a member of a profession. In the increasingly complex world of construction, consultants or indeed contractors may from time to time offer the same services as members of the long recognised construction professions (architects, engineers, surveyors) as well as some of the newer and less well established construction professions (project managers, planning consultants). Moreover, as will be seen, the business of construction and the prevalence of construction disputes has created new groups of persons offering “professional” services (experts, claims consultants, arbitrators). How does the court assess the liability of those persons?

1.18 Nor is the practical application of the Bolam test without its difficulties. It is all very well to posit the standard of the hypothetical reasonably competent member of the profession, but how is that standard ascertained as a matter of practicality? Is it satisfactory to seek for a uniform minimum standard in a profession which may span a complete range of service level, from the most sophisticated international concern to the one-man-band? How in practice does the Judge (a lawyer) assess whether a particular engineering decision was one which no competent member of that profession would have made? Even if the Judge is assisted by experts, how is their evidence helpful if, as if often the case, the issue is not whether the engineer followed an acceptable approach, but rather the way in which it went about it?

1.19 For all these inexactitudes, it must be said that it is difficult to construct a less unsatisfactory set of tools for use in this context. The Bolam test is not merely embedded in English law but is adopted in most common law jurisdictions precisely because it is thought to offer the best guide to assessing the liability of professional persons.

1.20 Moreover, in the world of construction projects the language of “professional negligence” now so thoroughly pervades construction contracts that liability is defined in terms of the Bolam test. Many if not most contracts between construction professionals and their clients will define the standard of skill and care to be provided by the construction professional by reference to the standard to be expected of a hypothetical competent member of the construction professional’s profession.

1.21 The notion of defining the minimum standard of performance expected of a construction professional is habitually borrowed by the draftsmen of design and build contracts (or contracts containing an element of design) where design obligations are framed by reference to the standard of care expected to be observed by a member of a particular profession. Thus, for example, the DOM/2 form of sub-contract provides:

To the extent that the Sub-Contractor has designed the Sub-Contract Works … the Sub-Contractor shall have in respect of any defect or insufficiency in such design the like liability to the Contractor, whether under statute or otherwise, as would an architect or, as the case may be, other appropriate professional designer holding himself out as competent to carry on work for such design.⁷

1.22 The use of “the professional” as a special class of persons, whose engagement creates a particular set of legal obligations has even found its way into the wider law. As Jackson LJ observed in Robinson v PE Jones (Contractors) Ltd:⁸

Henderson’s case is now taken as the leading authority on concurrent liability in professional negligence…

In my view, the conceptual basis upon which the concurrent liability of professional persons in tort to their clients now rests is assumption of responsibility. It is perhaps understandable that professional persons are taken to assume responsibility for economic loss to their clients. Typically, they give advice, prepare reports, draw up accounts, produce plans and so forth. They expect their clients and possibly others to act in reliance upon their work product, often with financial or economic consequences.

When one moves beyond the realm of professional retainers, it by no means follows that every contracting party assumes responsibilities (in the Hedley Byrne sense) to the other parties co-extensive with the contractual obligations…⁹

1.23 “Professional negligence” is therefore here to stay. Our task is to explain how it works.

1.24 In that regard, the title of this book is doubly misleading. Although there is extensive discussion of what is meant by “negligence” and the circumstances in which it will and will not be found to have occurred, the book is really concerned with liability: when and in what circumstances will a “construction professional” be liable to its client? Secondly, whilst the book considers the liabilities of a very wide spectrum of persons who provide construction services, it is not concerned, or at least not primarily concerned, with the difficult question of whether these persons are members of a “profession”. Instead it seeks to focus on the way in which the courts are likely to approach the liabilities of persons offering particular skills or services in the business of construction.

1.25 In Chapter 2, we discuss the differing types of construction professional and their role in construction projects. Whilst some types of construction professional have been recognised for millennia, others are new and reflect the way in which changing technology and economics have brought both complexity and new standards of competence to construction projects.

1.26 In Chapter 3, we discuss the obligation...