CRITERIA IN ASCERTAINING PROFESSIONAL NEGLIGENCE
ABU BAKAR BIN HASSAN
UNIVERSITI TEKNOLOGI MALAYSIA
PSZ 19:16 (Pind. 1/07) UNIVERSITI TEKNOLOGI MALAYSIA
DECLARATION OF THESIS / UNDERGRADUATE PROJECT PAPER AND COPYRIGHT
Author’s full name : ABU BAKAR BIN HASSAN
Date of birth : 15 AUGUST 1986
Title : CRITERIA IN ASCERTAINING PROFESSIONAL NEGLIGENCE
Academic Session: 2009/2010
I declare that this thesis is classified as :
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NOTES : * If the thesis is CONFIDENTAL or RESTRICTED, please attach with the letter from the organization with period and reasons for confidentiality or restriction.
CRITERIA IN ASCERTAINING PROFESSIONAL NEGLIGENCE
ABU BAKAR BIN HASSAN
A master’s project report submitted in partial fulfillment of the requirements for the award of the degree of Master of Science in Construction Contract Management.
Faculty of Built Environment Universiti Teknologi Malaysia
June 2010
“I hereby declare that I have read this project report and in my opinion this project report is sufficient in terms of scope and quality for the award of the degree of Master of Science in Construction Contract Management”
Signature : …………………………………………………..
Name of Supervisor : ……………….……………………………..…..ASSC. PROF. DR. ROSLI ABD. RASHID
Date : …………..………….………………...…………21 JUNE 2010
ii
DECLARATION
“I declare that this Master Research Project entitled “Criteria in Ascertaining Professional Nelgigence” is the result of my own research and that all sources are acknowledged in the references. The project report has not been accepted for any degree and is not concurrently submitted in candidature of any other degree.”
Signature : ...... Name : ...... ABU BAKAR BIN HASSAN ...... 28 June 2010 Date : ......
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…..To my beloved family and friends….
iv
ACKNOWLEDGEMENTS
I want to give my thanks to my supervisor Assoc. Prof. Dr. Rosli Abd. Rashid for his guidance and patient in helping me completed my thesis. Without the help from him,
I would never able to finish the research.
Also my thanks to all of the lecturers from Construction Contract Management for all
the knowledge that have been pass to me over the year. I hope that all of the
knowledge will be beneficial to me, society and country.
Also not forgetting my entire classmates from the course, for all the support and
continuous help whether while in the class and in the time completing this thesis.
I wish you all the continuous success and happiness. v
Abstract
Professional negligence can be defined as malpractice by a professional that not according to reasonable skill and care. Negligence among construction professional may result in damage to property and person or loss of life. It is therefore important for the construction professional to exercise reasonable skill and care when carrying their work in order to minimize the possibility of being charged with negligence. How does the judge determine whether a professional man has exercise the necessary skill in carrying out their work? What are the criteria or the general outline for negligence to be established? The objective of this research is to identify criteria that judges determine whether a professional man is negligent or not when discharging their duty. For the purpose of this study ten case law of negligence from United Kingdom, Malaysia and Singapore has been carefully chosen for the analysis. Case law between 1980 to date was chosen to make sure that the principle of negligence use is up to date. The study suggested that the first method for the judge is to determine the relationship between the plaintiff and defendant and whether they owed a duty of care to the plaintiff. Several criteria on proving duty of care like relationship in tort and contract, proximity, foreseen ability, causation and the qualification of the professional. Then the judge will see whether defendant has breach that duty. The first criteria are the court will check whether the professional has exercise reasonable skill and care, requirement and regulation, assists with expert evidence and regulatory bodies of the relevant profession. The last one is whether the damage must be actual and resulted from the defendant breach. The important from this element is if one of the element is failed to be proved by plaintiff, the negligence cannot be establishes. vi
Abstrak
Kecuaian professional boleh didifinisikan sebagaik kesalahan praktik oleh professional yang tidak mengikuti piawaian dan tanggung jawab yang berpatutan. Kecuaian oleh profesional dalam industry binaan akan menyebabkan kerosakan kepada harta benda dan kecederaan malah kehilangan nyawa. Oleh itu adalah penting bagi professional pembinaan untuk melakukan kerja mengikut tahap piawaian dan tanggung jawab yang berpatutan untuk meminimunkan kebarangkalian untuk dikenakan tuduhan melakukan kecuaian. Bagaimanakah hakim menentukan sama ada seorang professional telah melakukan kerja dengan mengikuti tahap piawaian dan tanggung jawab? Apakah kriteria atau panduan umum bagi menentukan kecuaian? Objektif kajian ini adalah untuk menentukan kriteria yang digunakan oleh hakim untuk menentukan sama ada seorang profesional cuai dalam melakukan tugasnya. Untuk tujuan kajian ini 10 kes undang- undang dari United Kingdom, Malaysia dan Singapura telah dipilih untuk analisis. Kes undang-undang dalam lingkungan tahun 1980 hingga kini dipilih agar prinsip dan teori bagi kecuaian adalah yang terkini. Kajian menunjukkan bahawa langkah pertama hakim adalah dengan menentukan hubungan antara plaintif dan defendan dan sama ada dia mempunyai tanggung jawab kepada plaintif. Beberapa kriteria dalam membuktikan kecuaian adalah tanggung jawab dalam tort dan kontrak, proximity, foreseenablity, causation dan kelayakan profesional tersebut. Seterusnya hakim akan menilai sama ada defendan telah memecahkan tanggung jawab mereka. Kriteria pertama yang akan dikenalpasti oleh mahkamah dalam menilai sama ada seorang profesional telah melaksanakan kerjanya dengan tahap piawaian dan tanggung jawab yang berpatutan, peraturan dan keperluan, bantuan dari bukti pakar atau badan-badan profesion yang berkaitan. Yang terakhir adalah kerosakan yang berlaku mestilah kerosakan yang sebenar dan berpunca dari defendan memecahkan tanggung jawabnya. Kriteria ini sangat penting kerana jika salah satu darinya tidak dapat dibuktikan oleh plaintif, kecuaian tidak dapat dibuktikan. vii
TABLE OF CONTENTS
CHAPTER TITLE PAGE
DECLARATION ii DEDICATION iii ACKNOWLEDGEMENTS iv ABSTRACT v ABSTRAK vi TABLE OF CONTENTS vii LIST OF TABLES xi LIST OF CASES xii
1 INTRODUCTION 1
1. Introduction 1 1.1. Background of Study 1 1.2. Statement of Problem 5 1.3. Previous Study 6 1.4. Objective of Study 7 1.5. Scope and Limitation 7 1.6. Significance of the study 7 1.7. Research Methodology 8
2 NEGLIGENCE 10
2.1. Introduction 10 2.2. Negligence 11 2.2.1. Elements of Negligence claims 13 2.2.1.1. Duty of Care 14 2.2.1.1.1. Reasonable foreseeability 14 2.2.1.1.2. Proximity 15 2.2.1.1.3. Justice and reasonableness 17 2.2.1.2. Breach of Duty 17 2.2.1.3. Factual Causation 19 viii
2.2.1.3.1. Damage 19 2.2.1.3.2. The ‘But For’ test 20 2.2.1.4. Remoteness 21 2.2.1.4.1. Test for remoteness 22 2.2.1.4.1.1. The direct consequence test 22 2.2.1.4.1.2. The reasonable foreseeability Test 23 2.3. Case Law 24 2.3.1. Precedent 25 2.3.1.1. Binding Precedent 26 2.3.1.2. Persuasive Precedent 28 2.3.2. Expert witnesses 29 2.4 The Principle in Professional Negligence 32 2.4.1 Bolam v Friern Hospital Management Committee 33 2.4.2 Bolitho v City and Hackney Health Authority 35 2.4.3. Maynard v West Midlands Health Authority 36 2.4.4. Fiona Foo v Dr Soo 37 2.5. Conclusion 38
3 LIABILITY OF CONSTRUCTION PROFESSIONAL 39
3.1. Introduction 39 3.2. Construction Professional 41 3.2.1. Architect 42 3.2.2. Engineer 43 3.2.3. Quantity surveyor 44 3.3. Liability of Construction Professionals under contract and tort 44 3.3.1. Liabilities under Tort 46 3.3.1.1. Duty of Care 46 3.3.1.2. Standard of Care 49 3.3.1.2.1. Reasonable Skills and care 52 3.3.1.3. Strict liability 54 3.3.1.4. Absolute Liability 55 3.3.2. Liabilities under Contract 56 3.3.2.1. Warranty 57 3.3.2.1.1. Express warranty 57 3.3.2.1.2. Implied warranty 58 3.3.3. Limitation of Liability 59 3.3.3.1. Exclusion of liability 61 3.3.3.2. Limitation of actions 62 ix
3.3.4. Scope of Duty for Construction Professionals 63 3.4. Conclusion 68
4 ANALYSIS 69
4.0 Introduction 69 4.1. Case Law analysis 70 4.2. Lim Teck Kong v Dr Abdul Hamid Abdul Rashid 70 4.2.1. Fact of the Case 70 4.2.2. Judgment of the case 71
4.3. Steven Phoa Cheng Loon & Ors V Highland Properties Sdn Bhd & Ors 73 4.3.1. Fact of the case 73 4.3.2. Judgment of the case 74
4.4. Kelly v. Sir Frank Mears & Partners 75 4.4.1. Facts of the case 75 4.4.2. Judgment of the case 77
4.5. PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd 78 4.5.1. Facts of the case 78 4.5.2. Judgment of the case 79
4.6. Clayton V. Woodman & Son, Ltd. And Others 80 4.6.1. Fact of the case 80 4.6.2. Judgment of the case 81
4.7. Lancashire and Cheshire Association of Baptist Churches Inc v Howard & Seddon Partnership 83 4.7.1. Fact of the case 83 4.7.2. Judgment of the case 83
4.8. Baxall Securities Ltd and another v Sheard Walshaw Partnership and others 85 4.8.1. Facts of the case 85 4.8.2. Judgment of the case 86
4.9. Hawkins v Chrysler (UK) Ltd and another 87 4.9.1. Facts of the case 87 4.9.2. Judgment of the case 88
x
4.10. RSP Architects Planners & Engineers (Raglan Squire & Partners Fe) V. Management Corporation Strata Title Plan No 1075 & Anor 89 4.10.1. Facts of the case 89 4.10.2. Judgment of the case 90
4.11. Sansom and another v Metcalfe Hambleton & Co 92 4.11.1. Facts of the case 92 4.11.2. Judgment of the case 93
4.12. Summary of decision in law cases 96 4.13. The criteria for negligence 106 4.14. Conclusion 108
5 CONCLUSION AND RECOMMENDATIONS 109
5. Introduction 109 5.1. The criteria for negligence 110 5.2. Recommendation 111 5.3. Conclusion 111
REFERENCES 112
xi
LIST OF TABLES
TABLE NO TITLE PAGE
4.1 Summary of decision in law cases 85
xii
LIST OF CASES
Barnett v. Chelsea and Kensington Hospital Managament Committee (1968) 1 ALL ER 1068
Baxall Securities Ltd and another v Sheard Walshaw Partnership and others [2002] EWCA Civ 09
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Bolitho v City and Hackney Health Authority [1998] AC 232
Buckley v. Rice-Thomas (1554) 1 Plowd 118
Caparo v. Dickman (1990) 2 AC 605
Clay v AJ Crump & Sons Ltd [1964]
Clayton V. Woodman & Son, Ltd. And Others. Queen's Bench Division [1961] 3 All Er 249
Donoghue v Stevenson [1932] AC 562
Dr Abdul Hamid Abdul Rashid & Anor V Jurusan Malaysia Consultants & Ors [1997] 3 Mlj 546
Lim Teck Kong v Dr Abdul Hamid Abdul Rashid & Anor [2006] 3 MLJ 213
Dutton v. Louth Corporation (1955) 116 EG 128 (CA)
Fiona Foo v Dr Soo [2007]
Grant v Austalian Knitting Mills [1936] AC 85
Greaves & Co. v. Baynham Meikle (1975) 1 WLR 1095 xiii
Haley v. London Electricity Board (1965) AC 778
Hawkins v Chrysler (UK) Ltd and another [1986] BTLC 351
Hunter v. Canary Wharf Ltd. And London Docklands Development Corporation (1997) AC 655
Jarvis v. Moy, Davies, Smith Vandervell & Co (1936) 1 KB 299
Junior Books v. Veitchi Co. Ltd (1982) 3 WLR 477
Kelly v. Sir Frank Mears & Partners (1983) Sc 97
Knuller v DPP [1973] AC 435
Lancashire and Cheshire Association of Baptist Churches Inc v Howard & Seddon Partnership [1993] 3 All ER 467 Langley v. Dray (1998) PIQR P 314
Lochgelly Iron and Coal Co v McMullan [1934] AC 1 at 25;
Maynard v West Midlands Health Authority [1985] 1 All ER 63
Maynard v West Midlands Health Authority [1985] 1 All ER 635
McFarlane v. Tayside Health Board (1999) 4 ALL ER 961
Midland Bank v. Hett, Stubbs & Kemp (1979) Ch. 384
Muirhead v. Industrial Tank Speacialist (1985) 3 ALL ER 705
Nettleship v Weston [1971] 2 QB 691
Overseas Tankship (UK) v. Morts Dock & Engineering Co (1961) AC 388
PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681
Rsp Architects Planners & Engineers (Raglan Squire & Partners Fe) V. Management Corporation Strata Title Plan No 1075 & Anor
xiv
Saif Ali v. Sidney Mitchell & Co (1978) 3 ALL ER 1033
Sansom and another v Metcalfe Hambleton & Co [1998] 2 EGLR 103
Shaw v DPP [1962] AC 220
Sim & Associates (sued as a firm) v Alfred Tan [1994] 3 SLR 169
Smith V. Leech Brain & Co., Ltd. And Another. [1962] 2 Qb 405 spartam-souther v. Town and Country Development (Essex) ltd (1976) 3 BLR 72
Stanton v. Brian Callaghan (1999) 2 WLR 745, (1999) BLR 172
Steven Phoa Cheng Loon & Ors V Highland Properties Sdn Bhd & Ors [2000] 4 Mlj 200
Sutcliffe v Thackrah & Ors [1974] AC 727
Waghorn v. Wimbledon Local Board (1877) HBC
Watson v. British Boxing Board of Control (2000) QB 1134 1
Chapter 1
Introduction
1.1 Background of study
A professional may be described as a person whose work is skilled and specialized. He holds some special qualifications derived from training or experience and conforms to high standard of performance and work ethics. He normally belongs to a regulatory body which prescribes common rules of conduct and standards of practice. Less technically, it may also refer to a person having impressive competence in a particular activity. Because of the personal and confidential nature of many professional services and thus the necessity to place a great deal of trust in them, most professionals are held up to strict ethical and moral regulations.
Professional negligence in the construction industry is an area of developing jurisprudence. Professional negligence involves tedious construction of facts, precedent, industry standards and statutory regulations. It is crucial to comprehend the underlying 2 legal principles of negligence and how those principles apply to construction professionals1.
Most construction disputes exhibit the failure of professional men to exercise reasonable skill and care over and above the alleged breach of a specific term of contract. It follows that a project manager who fails to secure adequate insurance coverage, a quantity surveyor who under-estimates the cost of a project, an engineer who fails to warn of an eminent risk and an architect who delivers a faulty design are all in breach of their contractual duty under their respective contracts of engagement, however most importantly they are equally answerable for a breach of their professional obligation to exercise reasonable skill and care in tort2.
But where there is a situation that involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent3.
The usual rules rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has failed to match the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. This specialized set of rules determines the standards
1 Saraswathy Shirke, 2009 Article, Professional Negligent in Construction Industry, The Malayan Law Journal Article, Accessed on 4 May 2010,
It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. Professional negligence is the failure to come up to the standard of a reasonable skilled man of the relevant profession. This is known as the professional standard of care. One of the most important legal principles that affect professional negligent is that of the Bolam test, which has been in use for almost fifty years4.
Judgment by McNair J in the celebrated case of Bolam v Friern Hospital Management Committee5, namely:
“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. A doctor was not guilty if he was acting in accordance with that practice merely because there was a body of opinion which would take a contrary view”
This is the precursor for the future of professional negligent cases as whereby the Bolam Test is used. When making a decision as to how to treat a patient, a doctor often has more than one choice. The result in the Bolam case stated that even if the doctor chose the least popular of these choices, it did not necessarily amount to medical negligence if support could be found for it. However, this ruling meant that a doctor accused of medical negligence need only to find an expert who would testify to having
4 You Claim, The role of Bolam test in Medical negligent claims, Accessed on 2 May 2010,
A strong endorsement of this test was provided in the House of Lords by Lord Scarman in the case of Maynard v West Midlands Health Authority7 his Lordship stated:
“I have to say that a judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed and honestly held, were not preferred. …For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another”
The reason for his Lordship taking such a view is that there are, and always will be, differences of opinion and practice within the medical profession. One answer exclusive of all others is seldom the solution to a problem that requires professional judgment. A court may prefer one body of medical opinion to another, but that does not amount to a conclusion of negligence8.
The decision in Bolitho v City and Hackney Health Authority9 created a modification to the ruling in Bolam. A Lord Browne-Wilkinson gave the following two statements, which somewhat restrict the boundaries of the Bolam test10:
6 Op cit, You Claim. 7 [1985] 1 All ER 635 8 Ash Samantha and Jo Samantha, Legal Standard of care: A shift from the traditional bolam test, Accessed on 2 May 2010,
1. The court should not accept a defense argument as being 'reasonable', 'respectable' or 'responsible' without first assessing whether such opinion is susceptible to logical analysis. 2. However, where there is a body of medical opinion which represents itself as 'reasonable', 'responsible' or 'respectable' it will be rare for the court to be able to hold such opinion to be other than represented.
This Bolitho ruling means that testimony for the medical professional who is alleged to have carried out the medical negligence can be found to be unreasonable, although this will only happen in a very small number of cases11.
1.2 Statement of Problem
In the vast majority of cases where allegations of professional negligence are made against construction professionals liability will depend upon whether the professional has been proven by all the elements in negligence. What does this mean and how does a Judge, who almost certainly will have no qualifications as a professional decide whether this standard has been achieved?
Because of the Bolam test is also widely used in construction negligence, judges may have a different ground and basis on determining if the negligent is establish. Because of the new cases that modified the Bolam test and using a new principle in determining negligent, does that has any changes on how the judge establish negligent for
11 Ibid 6 the construction professional. Then what are the criteria on how the judge establishes whether the professional is negligent or not in carrying their duties and responsibilities? It is important to establish the basis that the judge used because of the different between medical negligent and construction professional negligent that involves more technical issues.
It is noteworthy that unlike doctors, construction professionals are engaged under an express appointment contracts by their clients. Their duty to exercise reasonable skill and care is both contractual and tortuous. Traditionally when assessing a doctor’s alleged breach of duty, the court would employ the Bolam direction or test. However in assessing liability of construction professionals for breach of duty the Malaysian courts exhibit a tendency to avoid methodical reference to the Bolam test. Therefore where negligence is assessed based on professional undertakings as per the contract and standard code of ethics or practices of the profession, a detailed analysis of the Bolam test is unnecessary as the outcome would inevitably be the same12.
1.3 Previous Study
In the previous research by Chai Voon Chiet in 2004, title Professional liability of the civil engineers. The research was to examine and classify the nature of fault in claims of negligence act by civil engineers. The research only covered the liability of civil engineers and not others professionals and did not really explain on how the court establish negligent13.
12 Op cit, Saraswathy Shirke. 13 Chai Voon Chiet (2004), Professional Liability of Civil Engineers, Master Dissertation, Faculty of Build Environment, UTM. 7
1.4 Objective of the study
The Objective of this study is to identify the criteria for determining professional negligence among construction professional.
1.5 Scope and limitation
This study is limited only to cases relating to construction professionals and extent only in professional negligence area. The scope of the study will focus to ten case- laws that are relevant to construction cases due to limited time-frame constraint, which will be covering popular known English case-laws, commonwealth country case-laws and Malaysian cases.
1.6 Significance of the study
Merely being under a duty to take care does not of itself give rise to liability in negligence. There must be unreasonable behavior as measured by the court’s interpretation of the standard of care demanded of the professional in question. Legally, not every judgment or decision that in the end happens to be proved wrong will amount to negligence. Measurement of the boundary between mistakes or oversights and actionable negligence rests upon the court’s perception of what the reasonable professional should have done in a particular set of circumstances. It is the purpose of this 8 study that trying to establish the common fault against negligence claim that could help to alert the construction professional in their works. This study will help construction professional to understand the legal aspect of their work in the area of negligence. The case analysis that I have discussed here merely provides a general guide and it is unsafe to assume that it offers concrete rules in relation to professional negligence.
1.7 Research Methodology
Methodology of study is vital as a guideline for author to ensure a study can be carried out systematically to achieve the objective. Given the legalistic nature of this study, the approach adopted in this research is case law based. The study will be carried out in two approaches using literature review and case-laws study. Firstly, all literature review consisting of books, journal, article and internet sources will help to identify the legal meaning of the pertinent issues that involved in professional negligence so as to provide a platform from which the developments of professional in construction industry can be explained and assessed. From the issue, then the objective of the study is identifying the criteria for determining professional negligence among construction professional.
To give more understanding on the theory and principle of professional negligence, collecting more information regarding the subject matter is important. The entire book or article regarding the theory of and principle of negligence, liability and professional is taken from PSZ UTM and internet sources. All law cases will be taken from Lexis Nexis via Malayan Law Journal. It is important to know the background of this study and the implication to construction professional.
9
The case-laws analysis, on the other hand, will help to give a better understanding of the judicial interpretation in assessing whether a particular default is subject to negligence in any given situation. Ten law cases are chosen between years 1980 to 2010 in order for the theory or principle in professional negligence is up to date. The law cases are taken from United Kingdom, Malaysia and Singapore in the area of professional negligence. By going through the case law it help in providing a more precise view on the approach in determining professional negligence by the court and achieving the objective of this study.
This study is consisting of five chapters. The first chapter is an introduction of background of study, statement of problem, objective, scope of study and methodology is located. In the second chapter contained all the legal principle of negligence, case law and principle of professional negligence by case law. The third chapter it is consisting of the definition of professional and the liability in the profession. The fourth chapter is an analysis of selected law cases in determining the criteria for negligence. The fifth and last chapter is the conclusion from the previous chapter. In addition, recommendation and further study will be suggested. The author will also review the whole process of the study to identify whether the objective of the study have been achieved.
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Chapter 2
Negligence
2.1 Introduction
Professional negligence, which may also be referred to as malpractice, is negligence committed by someone who is presented with more skills and training than the normal average person. As a consequence of being more highly skilled, professionals are held to a higher standard and are expected to be able to complete tasks related to their training in a competent way. Failure to exercise due caution is considered negligence and clients can sue for damages if they have been injured as a result of negligent care. One of the fields in which professional negligence comes up most often is the field of medicine whereby doctors often being sued for malpractice or negligence14.
14 S.E. Smith, What is professional negligent? Accessed on 12 May 2010,
However, lawyers, contractors, and other professionals can also be accused of professional negligence if they fail to look out for the interests of their clients. Under the law, professionals have a duty of care to the people who hire them, because people are relying on their skills and expecting them to exercise reasonable caution15.
The ability to sue people who commit acts of professional negligence can be important. Professionals are held to a higher standard of performance because they present themselves as more highly trained. When they make errors, the nature of the error can be very costly for a client; a doctor may kill a patient with negligence, a lawyer may fail to achieve the right outcome in a case, a contractor could build a house which falls down. People trust professionals to behave responsibly and need to have recourse when they act with negligence. One problem faced by professionals is that accidents happen, and even highly skilled, very conscientious people do make mistakes. Some professions come with a high potential risk of being sued for professional negligence because they are risky professions to begin with.
2.2 Negligence
Negligence is by far the most important of torts. It forms the cause of action in the majority of cases brought in tort because its scope is very wide and it may also be an element in liability for other torts such as nuisance. The term of negligence is also found in the context of breach of contract which will be considered as professional negligence.
15 Ibid 12
Negligent result from the failure of persons to meets a reasonable standard of care in their conduct. When that failure is the cause of injury or damage to the interest of another, a legal cause of action exists. Everyone is living under the duty to behave in a manner calculated no to harm the interest of others. Negligent is not intentional wrongdoing and indeed, often results from inattention, carelessness or honest oversight, nevertheless, fault is implicit in negligent and is present when one fails for whatever reason to meet the require standard.
In meeting with the standard of care, any course of action or failure to act must be compared with what a reasonable and prudent person would be expected to do under the same situation. Given the normal intelligence, knowledge and experience of people in the community, together with the physical attributes and any special knowledge or skill the particular individual might possess what would he have done16.
Negligence of course means carelessness, but in 1934 Lord Wright said in case law of Lochgelly Iron and Coal Co v McMullan17 ;
‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty owed.’
16 Harrison Streeter (1988), Professional Liability of Architect and Engineers, A Wiley interscience publication, by John Wiley & Sons, Inc. page 7 and 8. 17 [1934] AC 1 at 25; 13
A typical formula for evaluating negligence requires that a plaintiff prove the following four factors by a preponderance of the evidence18:
1. The defendant owed a duty to the plaintiff 2. The defendant violated that duty; 3. As a result of the defendant's violation of that duty, the plaintiff suffered injury; and 4. The injury was a reasonably foreseeable consequence of the defendant's action or inaction.
2.2.1 Elements of Negligence claims
In analysis on negligence claims, the important concepts that need to be prove in order that to claims against negligence. Common law jurisdictions may differ slightly in the exact classification of the elements of negligence, but the elements that must be established in every negligence case are: duty, breach, causation, and damages
.
18 Aaron Larson, Negligent and Tort Law (October 2003), Accessed on 13 May 2010,
2.2.1.1 Duty of Care
The basic test for a duty of care is now the one set down in Caparo v. Dickman19. This will usually be applied to duty of care questions in cases involving physical injuries or damage to property. The test requires the courts to ask three questions20:
a) The concept of reasonable foreseeability of harm; b) The claimant and the defendant being in a relationship of proximity; and c) It being fair, just and reasonable to impose liability on the defendant for his careless actions.
2.2.1.1.1 Reasonable foreseeability
This element of test has its foundation from the neighbor principle developed in the case law of Donoghue v. Stevenson21. Essentially the courts have to ask whether a reasonable person in the defendant’s position would have foreseen the risk of damage. In order for a duty to exist, it must be reasonably foreseeable that damage or injury would be caused to the particular defendant in the case.
19 (1990) 2 AC 605 20 Catherine Elliot and Frances Quinn, Tort Law, 6th Edition, Pearson Education Limited, Edinburgh Gate Harlow Essex CM20 2je England, Page 21 21 (1932) AC 562 15
In Langley v. Dray22, where the claimant was a policeman who was injured in a car crash when he was chasing the defendant, who was driving a stolen car. The defendant knew, or ought to have known, that he was being pursued by the claimant, and therefore in increasing his speed he knew or should have known that the claimant would also drive faster and so risk injury. The defendant had a duty not to create such a risk and he was in breach of that duty23.
In case of Haley v. London Electricity Board24, the defendant dug a trench in the street in order to do repairs. Their workman laid shovel across the hole to draw pedestrian attention to it, but the claimant was blind, and fell into the hole, seriously injuring himself. It was agreed that the precautions taken would had been sufficient to protect a sighted person from injury, so the question was whether it was reasonably foreseeable that a blind person might walk by and be at risk of falling in. The court of appeal said that it was, because the number of blind people who lived in London and were used to walking about by themselves meant that the defendants owed a duty to this class of people.
2.2.1.1.2 Proximity
In normal language proximity means closeness, in terms of physical position, but in law it has a wider meaning which essentially concerns the relationship, if any between
22 (1998) PIQR P 314 23 Op cit, Catherine Elliot and Frances Quinn. 24 (1965) AC 778 16 the defendant and the claimant. In Muirhead v. Industrial Tank Speacialist25, Goff LJ pointed out that this does not mean that the defendant and claimant have to know each other; but that the situation they were both in meant that the defendant could reasonably be expected to foresee that his or her action could cause damage to the claimant26.
Proximity may also be expressed in terms of relationship between the defendant, and the activity which caused harm to the claimant. An example of this proximity can be seen in Watson v. British Boxing Board of Control27, where the claimant was the famous professional boxer Michael Watson, who suffered severed brain damage after being injured during a match. He sued the Board on the basis that they were in charge of safety arrangements at the professional boxing matches, and evidence showed that if they had made immediate medical attention available at the ringside, his injuries would have been less severe.
The court held that there was a sufficient proximity between Mr. Watson and the Board to give rise to a duty of care, because they were the only body in the UK which could license professional boxing matches, and therefore had complete control of and responsibility for a situation which could clearly result in harm to Mr. Watson if the board did not exercise reasonable care28.
25 (1985) 3 ALL ER 705 26 Op cit, Catherine Elliot and Frances Quinn, Page 22. 27 (2000) QB 1134 28 Op cit, Catherine Elliot and Frances Quinn, Page 23. 17
2.2.1.1.3 Justice and reasonableness
In practice, the requirement that must be just and reasonable to impose a duty often overlaps with the previous two that is foreseeability and proximity. The arguments made under the heading of proximity could equally well be seen as arguments relating to justice and reasonableness. Where justice and reasonableness are specifically referred to, it is usually because a case meets the requirements of foreseeability and proximity, but the court believes there is sound public policy reason for denying the claim.
An example is in McFarlane v. Tayside Health Board29. The claimant had become pregnant after her partner’s vasectomy failed, and claimed for the costs of bringing up child. The courts denied her claim, on the basis that it was not just and reasonable to award compensation for the birth of a healthy child, something most people said, would consider a blessing30.
2.2.1.2 Breach of Duty
Once a duty of care has been established, it must be shown that a duty has been breached. The question the courts ask is whether the behavior exhibited by the defendant fell below the threshold of a "reasonable man". In some cases where the defendant was in a special profession, For example, being a doctor, the court will ask what standard of care a "reasonable doctor" or the like might have done. Allowance is usually made for the defendant’s age and a lower standard of a "reasonable child of a certain age" is applied to
29 (1999) 4 ALL ER 961 30 Op cit, Catherine Elliot and Frances Quinn, Page 23. 18 children. On the other hand, no allowance is made for other personal circumstances, such as the fact that the defendant was inexperienced in the task he set out to perform. He is expected to perform this task as a reasonably skilled and competent person31.
Regarding of breach of duty Salmon Lj. In the case law of Nettleship v Weston32 stated that;
“A learner-driver is responsible and owes a duty in civil law towards persons on or near the highway to drive with the same degree of skill and care as that of the reasonably competent and experienced driver. The duty in civil law springs from the relationship which the driver, by driving on the highway, has created between himself and persons likely to suffer damage by his bad driving. This is not a special relationship. Nor, in my respectful view, is it affected by whether or not the driver is insured. On grounds of public policy, neither this criminal nor civil responsibility is affected by the fact that the driver in question may be a learner, infirm or drunk. The onus, of course, lies on anyone claiming damages to establish a breach of duty and that it has caused the damages which he claims”
31 Wikipedia, English Tort Law, Accessed on 17 May 2010,
2.2.1.3 Factual Causation
The person being sued must be the actual cause of injuries sustained by the victim who is suing. In order to prove the alleged person negligence, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. The causation between one's breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred but for, or without, my breach of duty. Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.
Judgment by Lord Parker in case law of smith v. leech brain & co., ltd. and another33 stated that;
"If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer's claim for damages that he would have suffered less injury or no injury at all, if he had not had an unusually thin skull or an unusually weak heart."
2.2.1.3.1 Damage
The negligence must cause damage, if no damage is caused, there is no claim in negligence, no matter how careless the defendant’s conduct. An example of case is in
33 [1962] 2 Qb 405 20
Hunter v. Canary Wharf Ltd and London Docklands Development Corporation34. The case arose from the construction of the big tower block known as canary wharf in east London. An action concerning the effects of the construction work was whether excessive dust could be sufficient to constitute damage to property for the purpose of negligence.
The court of appeal concluded that the mere deposit of dust was not in itself sufficient because the dust was an inevitable incident of urban life. In order to bring action for negligence, there had to be damage in the sense of a physical change in property, which rendered the property less useful or less valuable35.
2.2.1.3.2 The ‘But For’ test
Causation is established by proving that the defendant’s breach of duty was, as a matter of fact, a cause of the damage. To decide this issue the first question to be asked is whether the damage would have occurred but for the breach of duty, this is know as the ‘but for’ test.
An example of the test can be seen in Barnett v. Chelsea and Kensington Hospital Management Committee36. A night watchman arrived early in the morning at the
34 (1997) AC 655 35 Op cit, Catherine Elliot and Frances Quinn, Page 90. 36 (1968) 1 ALL ER 1068 21 defendant’s hospital, suffering from nausea after having a cup of tea at work. The nurse on duty telephoned the casualty doctor, who refused to examine the man, and simply advised the man to go home. The man died 5 hours later, from arsenic poisoning. The hospital was sued for negligence, but the action failed.
The court accepted that the defendants owed the deceased a duty of care, and that they had breach that duty by failing to examine him. However, the breach did not cause him death. There was evidence that even if he had been examined, it was too late for any treatment to save him, and therefore it could not be said that but for the hospital’s negligence he would not have died37.
2.2.1.4 Remoteness
After the complexities under the "but for" test have been addressed, the courts may still deny compensation if the harm was a very remote consequence of the initial wrong. So long as a type of damage is foreseeable. Like the issue of duty of care, the remoteness test is legal test which form one of the way which the law draws the line between damage which can be compensated by law, and which is cannot.
37 Op cit, Catherine Elliot and Frances Quinn, Page 94. 22
2.2.1.4.1 Test for remoteness
There are two tests for remoteness in tort38:
a) The direct consequence test b) The reasonable foreseeability
2.2.1.4.1.1 The direct consequence test
The traditional test of whether damage was to remote was laid down in Re Polemis (1921), and essentially imposed liability for all direct physical consequences of a defendant’s negligence, it became known as the direct consequence. The case is about renting a ship, an arrangement known as charter. The charterers loaded the ships with tins of petrol, and during the voyage these tins leaked and releasing large amount of petrol vapor into the hold. Then the ship docked at Casablanca, and was unloaded. The workers unloading it had positioned some heavy planks as a platform over the hold and, as result of their negligence, one of the planks fell into the hold. It caused a spark and ignited the petrol vapor and ultimately the ship burnt. They sued the charterer.
The trial judge had found as a fact that the charterer could not reasonably have foreseen that the fire was likely to occur as a result of the plank falling into the hold, though they might reasonably have foreseen that some damage to the ship might result form that incident. However, the court of appeal held that this was irrelevant, the charterer were liable for any consequence that was a direct result of their breach of duty,
38 Ibid, Page 104. 23 even if such consequences might be different and much more serious from those which they might reasonably foreseen. A consequences would only to remote if it was due to the operation of independent causes having no connection with negligence act, except that they could not avoid it’s result39.
2.2.1.4.1.2 The reasonable foreseeability test
The test was laid down in Overseas Tankship (UK) v. Morts Dock & Engineering Co.40, the defendant were the owner of a ship which was loading oil there, and owing to the negligence of their employees, some of the oil leaked into the water and spread, forming a thin film on the surface. Within the hour the oil has spread to the neighboring wharf, owned by claimants where there was another ship was being repaired by welder. It caused damage to the slipway, and then a few days later, further and much serious damage was caused when the oil was ignited by sparks from the welding operations41.
The trial judge found that the damage to the slipway was reasonably foreseen, but given that the evidence showed that the oil needed to be raised to a very high temperature before it would catch fire, the fire damage was not reasonably foreseeable. Nevertheless, as the Australian court was also following Re Polemis, he found the defendants liable for both damage42.
39 Ibid, Page 104. 40 (1961) AC 388 41 Op cit, Catherine Elliot and Frances Quinn, Page 105. 42 Ibid 24
2.3. Case Law
The English Legal System which can be traced back as far as 1066 AD has been growing slowly over time. Certain characteristics of this law system, such as the law of precedent can be distinguished from other law systems. Judicial precedent or binding precedent often referred to as case law, is one of the main sources of English Law43.
Case law is the term used for rules of law that are set forth in judicial opinions. Case law can be relied upon as statements of the law just like statutes and regulations. Case law interprets statutes, constitutional provisions, regulations and other case law. Case law is a major source of law and in many cases it creates binding precedent; which is law that must be followed in subsequent similar cases. A judicial opinion usually explains the rationale behind the decision that is being made. The opinion will refer to and interpret statutes and previous decisions. The analysis that is necessary to the decision creates binding precedent on other courts. Other analysis that is not necessarily needed for a determination of the case is referred to as dicta and creates persuasive authority44.
When a court wants to reach a conclusion that is different from other cases with similar facts, it will distinguish the case it is deciding from the other similar cases. In other words, the court will explain why the current case is different from the similar case law in order to justify reaching a different conclusion. If such a ruling is appealed, the appellate court may not accept the distinction. The appellate court also has the option of making an entirely different analysis from that of the lower court to either affirm or
43 Mega Essays, Doctrine of Binding Precedent, Accessed on 23 May 2010,
2.3.1. Precedent
In common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body may utilize when deciding subsequent cases with similar issues or facts46. The use of precedent has been justified as providing predictability, stability, fairness, and efficiency in the law. Reliance upon precedent contributes predictability to the law because it provides notice of what a person's rights and obligations are in particular circumstances. A person contemplating an action has the ability to know beforehand the legal outcome.
Reliance upon precedent also promotes the expectation that the law is just. The idea that like cases should be treated alike is anchored in the assumption that one person is the legal equal of any other. Thus, persons in similar situations should not be treated differently except for legally relevant and clearly justifiable reasons. Precedent promotes judicial restraint and limits a judge's ability to determine the outcome of a case in a way that he or she might choose if there were no precedent. This function of precedent gives it its moral force. Precedent also enhances efficiency. Reliance on the accumulation of legal rules helps guide judges in their resolution of legal disputes. If judges had to begin the
45 Ibid 46 Wikipedia, Precedent, Accessed on 23 May 2010,
2.3.1.1. Binding Precedent
In law, a binding precedent is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of Lords in 2009. In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts48.
Binding precedent relies on the legal principle of stare decisis. A stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law. Existing binding precedents from past cases are applied in principle to new situations by analogy. Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears49.
47 The free dictionary, Precedent, Accessed on 24 May2010,
The doctrine of judicial precedent is based on stare decisis. That is the standing by of previous decisions. Once a point of law has been decided in a particular case, that law must be applied in all future cases containing the same material facts50. For example in the case of Donoghue v Stevenson51, The House of Lords held that a manufacturer owed a duty of care to the ultimate consumer of the product. This set a binding precedent which was followed in Grant Austalian Knitting Mills52. Also in Shaw v DPP53 the House of Lords held that a crime of conspiracy to corrupt public morals existed. This was followed in Knuller v DPP54.
Stare decisis is one of the most important doctrines in common law. It is the doctrine under which courts adhere to precedent on questions of law in order to ensure certainty, consistency, and stability in the administration of justice. Stare decisis is the legal principle by which judges are obliged to obey the set-up precedents established by prior decisions. The words originate from the Latin phrase Stare decisis (et non quieta movere), "Maintain what has been decided and do not alter that which has been established55."
Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other
50 E-law resource, Judicial Precedent, Accessed on 25 May 2010,
In order for the doctrine of judicial precedent to work, it is necessary to be able to determine what a point of law is. In the course of delivering a judgment, the judge will set out their reasons for reaching a decision. The reasons which are necessary for them to reach their decision amount to the ratio decidendi of the case. The ratio decidendi forms the legal principle which is a binding precedent meaning it must be followed in future cases containing the same material facts. It is important to separate the ratio decidendi from the obiter dicta. The obiter dicta is things stated in the course of a judgment which are not necessary for the decision57.
2.3.1.2. Persuasive Precedent
Persuasive precedent mean a precedent set in a court that has no precedence over another but whose decisions are considered to be sufficiently useful that they may be used, although they are not binding until used by a superior court. Persuasive precedent is precedent or other legal writing that is related to the case at hand but is not a binding precedent on the court under common law legal systems such as English law.
56 Paul M. Perell, 1987, Stare Decisis and Technique of legal reasoning and legal arguments, Accessed on 24 May 2010,
However, persuasive authority may guide the judge in making the decision in the instant case. Persuasive precedent may come from a number of sources such as lower courts, "horizontal" courts, foreign courts, statements made in dicta, treatises or law reviews. In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts58.
In addition to binding precedents, there exist persuasive precedents. These consist of judicial statements which are not binding but may be taken into account. A form of persuasive precedent is obiter dicta. Persuasive precedents also include case law from other jurisdictions and traditionally the Privy Council decisions have been merely persuasive on the English courts. However, exceptionally the Privy Council may be binding59.
2.3.2. Expert witnesses
In order for the judge to decide whether a professional man fall below the standard of care required of average competent professional, the assistance of expert witnesses is needed. An expert witness or professional witness is an expert, who by virtue of education, training, skill, or experience, is believed to have expertise and specialized knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally rely upon the witness's specialized in scientific, technical or
58 Wikipedia, Persuasive Precedent, Accessed on 25 May 2010,
As a general rule that witnesses that are called to give evidence are not permitted to express their opinions. They are not permitted to speculate on the course of events or draw inferences from the facts. It has long been recognized that there are matters where specialist skill, knowledge or expertise may be required to draw inferences from the evidence given by the witness61. As early as 1553 Sauders J said in Buckley v. Rice- Thomas62 that if matters arise in our law which concern with other sciences or faculties, we commonly apply for aid of that science or faculty which it concerns.
As expert witnesses, there is certain duty and responsibility to make sure that the evidence given by the expert witness is not tainted by impartiality, biased or anything that might compromise the evidences. Expert evidence presented to the court should be and should be seen to be the independent product of the expert uninfluenced in form or content by the exigencies of litigation. Independent assurance should be provided to the court by way of objective unbiased opinion regarding matters within the expertise of the expert witness63.
Facts or assumptions upon which and opinion was based should be stated, together with material facts that could detract from the concluded opinion. An expert should be clear when a question falls of his or her expertise. If the opinion is not properly
60 Wikipedia, Expert Witness, Accessed on 30 May 2010,
31 researched because it is considered that insufficient data is available, then that must be stated, together with an indication that the opinion is provisional. If the witness cannot assert that the report contains the truth, that qualification should be stated on the report.
The application of the Bolam test required the assistance of expert witnesses, since only specialists can assist the court in deciding whether the professional fell short of the standard required of the average competent professional. A useful and informative example of the approach of a judge assessing the value of the evidence of the expert witnesses is contained in Wimpey (1984). The expert was among the most prominent practitioner in the field of geotechnical engineering. The judge found that much of their evidence was of little assistance in deciding the standard required of the average competent designer of structures in soil, indicating perhaps that getting the top man or woman may not always be a help to a case64.
In the case law of Midland Bank Trust (1978), Ward LJ stated that:
“Clearly, if there is some practice in a profession, some accepted standard of conduct laid which is laid by professional institute or sanctioned by common usage, evidence of that can and ought to be received. But evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks he would have done had he been replaced, hypothetically and without the benefit of hindsight, in that position of the defendant, is of little assistance to the court.”
64 Ibid 32
In Stanton v. Brian Callaghan65, the court of appeal considered in detail the question of immunity of expert witnesses. The claimant’s expert witness agrees at a meeting of the expert that a less expensive remedial scheme was appropriate. The claimant alleged that the expert acted negligently in doing so. The appeal was struck out in the court of appeal on the ground of public policy. It requires that experts should be able to reach agreements at meeting between experts without fear that they would be sued in negligence. In doing so they were immune from such claims66.
2.4 The Principle in Professional Negligence
Proving a professional negligence case can sometimes is challenging. Most laypeople do not have a clear idea of what the duty of care might be in a specific case, because they lack the skills, training, and experience which professionals have. Thus, they must rely on testimony from other professionals who can discuss the standards of care in similar situations.
Construction professionals, as with other professionals, may be liable to their clients and third parties for damage and loss caused by the professional's negligence. The starting point in any professional negligence claim is to consider whether the losses are recoverable in contract. However, liability in tort becomes important where the contractual route is unavailable: where the arrangement of commercial transactions
65 (1999) 2 WLR 745, (1999) BLR 172 66 Op cit, John Adriaanse. 33 results in no direct contractual relationship between the parties, where one of the parties has become insolvent or where the limitation period in contract has expired67.
The usual rules to establish negligence rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. The Bolam test determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise.
2.4.1 Bolam v Friern Hospital Management Committee
Bolam v Friern Hospital Management Committee68 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals. In Bolam v Friern Hospital Management Committee, McNair J remarked, but where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.
67 Finola O'Farrell, Professional Negligence In The Construction Field, Accessed on 13 May 2010,
Judgment by McNair J in the celebrated case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, namely:
“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. A doctor was not guilty if he was acting in accordance with that practice merely because there was a body of opinion which would take a contrary view.”
There are two stages to the Bolam test. The first stage imposes a requirement on a professional person, to exercise reasonable care in undertaking the task associated with his particular professional calling. The second stage which is more commonly invoked is the assertion that a professional defendant will not be liable under the first stage if he has complied with a responsible professional practice, allowing for the possibility that there may be more than one such practice. In essence this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion.
Mc Nair J s direction may thus be concluded as - the doctor must have acted in accordance with an accepted medical practice; and that the accepted practice must be regarded as proper by a responsible body of medical men in that art. This direction was devotedly followed by the courts in medical negligence suits involving wrongful diagnose, negligent treatment and in providing advice to a patient on the inherent or material risks of the proposed treatment69.
69 Op cit, Saraswathy Shirke. 35
2.4.2 Bolitho v City and Hackney Health Authority
The decision in Bolitho v City and Hackney Health Authority (1997) created a modification to the ruling in Bolam. A Lord Browne-Wilkinson gave the following two statements, which somewhat restrict the boundaries of the Bolam test70:
The court should not accept a defense argument as being 'reasonable', 'respectable' or 'responsible' without first assessing whether such opinion is susceptible to logical analysis. However, where there is a body of medical opinion which represents itself as 'reasonable', 'responsible' or 'respectable' it will be rare for the court to be able to hold such opinion to be other than represented.
This Bolitho ruling means that testimony for the medical professional who is alleged to have carried out the medical negligence can be found to be unreasonable, although this will only happen in a very small number of cases. Note how the words ‘reasonable’ and ‘responsible’ have been introduced into the standard, importing an objective element into the Bolam test thereby detaching it from resting purely upon received medical opinion. In light of this, a judge can choose not to accept a body of medical opinion evidence that is not coherent when subject to logical analysis.
70 Op cit, You Claim. 36
2.4.3. Maynard v West Midlands Health Authority
Lord Scarman in the case of Maynard v West Midlands Health Authority71 stated:
I have to say that a judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed and honestly held, were not preferred. …For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another.
In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.
A doctor who professes to exercise a special skill must exercise the ordinary skill of his specialty. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence.
71 [1985] 1 All ER 635 37
The reason for his Lordship taking such a view is that there are, and always will be, differences of opinion and practice within the medical profession. One answer exclusive of all others is seldom the solution to a problem that requires professional judgment. A court may prefer one body of medical opinion to another, but that does not amount to a conclusion of negligence72.
2.4.4. Fiona Foo v Dr Soo [2007]
In Fiona Foo v Dr Soo [2007] the Federal Court initiated departure from the Bolam test favouring the approach in Rogers v Whitaker (1992). In essence the Rogers test accepts that the standard of care to be observed by a person with some special skill or competence is, that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. This approach grants greater opportunity for judicial scrutiny of professional practice and ensures that the expected standard in law is attained. The full effect of this decision in shaping the outcome of liability for professional negligence apart from medical negligence cases is yet to be seen73.
72 Op cit, Ash Samantha and Jo Samantha. 73 Op cit, Saraswathy Shirke. 38
2.5. Conclusion
This chapter containing the theory of negligence is important for the professional to know what elements that will be look upon when being alleged for negligence. This element is the most basic method in order to prove negligence. Without proving even one of the elements, negligence cannot be established. There is a slight different between negligence by normal person then by professional person that’s has higher degree of skill. There is technical aspect are involves in those cases that makes professional negligence is far more refined than the negligence it self. Even thought that the elements are still the same, proving each element would consider a different ways and method in proving it in normal way. In the next chapter the theory of liability by professionals is discussed to obtain the general knowledge on the liability and also the definition of professionals.
39
Chapter 3
Liability of construction Professional
3.1. Introduction
A professional is a member of a vocation founded upon specialized educational training. A professional may be described as a person whose work is skilled and specialized. He holds some special qualifications derived from training or experience and conforms to high standard of performance and work ethics. The word professional traditionally means a person who has obtained a degree in a professional field. The term professional is used more generally to denote a white collar working person, or a person who performs commercially in a field typically reserved for hobbyists or amateurs. He normally belongs to a regulatory body which prescribes common rules of conduct and standards of practice74.
74 Wikipedia, Professional, Accessed on 12 May 2010,
Bingham LJ in the case of Eckersley v Binnie & Partners [1988] observed75:
“A professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinarily assiduous and intelligent members of his profession in knowledge of the new advances, discoveries and developments in his field. He should be alert to the hazards and the risk inherent in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill, and care than other ordinarily competent members would bring but need bring no more. The standard is that of the reasonable average.”
In western nations, such as the United States, the term commonly describes highly educated, mostly salaried workers, who enjoy considerable work autonomy, a comfortable salary, and are commonly engaged in creative and intellectually challenging work. Less technically, it may also refer to a person having impressive competence in a particular activity76.
75 Op cit, Saraswathy Shirke. 76 Wikipedia, Professional, Accessed on 10 May 2010, < http://en.wikipedia.org/wiki/Professional> 41
While there is no agreed definition of a profession, the Australian Council of Professions (Professions Australia) defines a profession as77:
'A disciplined group of individuals who adhere to high ethical standards and uphold themselves to, and are accepted by, the public as possessing special knowledge and skills in a widely recognised, organised body of learning derived from education and training at a high level, and who are prepared to exercise this knowledge and these skills in the interest of others. Inherent in this definition is the concept that the responsibility for the welfare, health and safety of the community shall take precedence over other considerations.'
3.2. Construction Professional
The construction industry involves competent professional men with impressive credence in architecture, engineering ranging from civil, electrical, mechanical, geo- technical and structural, quantity surveying and so on. Construction professionals are, namely78:
77 Dr John Southwick, 'Australian Council of Professions’ view', during proceedings of a joint conference On competition law and the professions, Perth, April 1997, Accessed on 10 May 2010,
a) Builders/developers/owners b) Architects, engineers, interior designers and consultants who collectively represent the design team; c) Cost engineers or quantity surveyors; d) Project managers; e) Claims consultants and risk managers f) Contractors g) Legal advisers; h) Accountants; (i) Regulatory government or professional bodies.
3.2.1. Architect
Architecture is both the process and product of planning, designing and constructing space that reflects functional, social, and aesthetic considerations. It requires the manipulation and coordination of material, technology, light, and shadow. Architecture also encompasses the pragmatic aspects of realizing designed spaces, such as project planning, cost estimating and construction administration.
To establish that Architect is a professional as a profession, first the Architect need to be registered Architect. Requirements for registration as professional architects is the applicant shall be a person who is a citizen or permanent resident of Malaysia, is a registered Graduate Architect, has obtained the practical experience as prescribed by the Board, has passed the Part 3 Professional Examination and is a Corporate Member of the Malaysian Institute of Architects (PAM). In Malaysia the Architect is considered a professional because of the regulatory bodies to govern all of the rules and conduct of an 43
Architect. The Board of Architect responsible for all of registered Architect and practices conducted. The Architect also has its own Architect Act 1967 and Architect Rules 199679.
3.2.2. Engineer
Construction engineering concerns the planning and management of the construction of structures such as highways, bridges, airports, railroads, buildings, dams, and reservoirs. Construction of such projects requires knowledge of engineering and management principles and business procedures, economics, and human behavior.
Engineers need to have satisfied with the training requirement and registered as a graduated Engineer with Board of Engineer Malaysia to be able to apply to become professional Engineers. A registered Graduate Engineer is required under Section 10(1) (b) of the Act to obtain practical experience in order to be entitled to sit for the Professional Assessment Examination (PAE) which is a prerequisite to apply for registration as a Professional Engineer. Have passed the Professional Assessment Examination (PAE) of BEM or be elected as a Corporate Member of the Institution of Engineers Malaysia (IEM). Then the engineers are considered as professional. The Act and regulation for engineer is Engineers Act 1967 (Revision 2007), Regulation 1990 (Revision 2003) and Code of Professional Conduct80.
79 Board of Architect Malaysia, Accessed on 10 May 2010, < http://www.lam.gov.my/> 80 Board of Engineers Malaysia, Accessed on 10 May 2010, < http://www.bem.org.my/v3/index.html> 44
3.2.3. Quantity surveyor
A quantity surveyor (QS) is a professional working within the construction industry concerned with building costs. The Quantity Surveyor is qualified and adequately trained to advice on all aspects of construction costs, financial and contractual administration. Quantity Surveyor is an expert on the cost and management of construction projects, whether building, civil or heavy engineering.
To be a registered Quantity Surveyor must have been employed as Quantity Surveyor and under a registered Quantity Surveyor supervision for a minimum period of two years. Must have passed the Test of Professional Competence conducted jointly by the Board and the Institution of Surveyors Malaysia. All of Quantity Surveyor is governing by the Quantity Surveyor Act 1967 (amendment 2002) (Act 487)81.
3.3. Liability of Construction Professionals under contract and tort
Traditionally, the professions operate in spheres where success cannot be achieved in every case. Very often success or failure depends upon factors beyond the professional man’s control. Even where the critical factors are within the professional man’s control, he cannot guarantee success. In matters of fine judgment or great complexity no human being can be right every time.
81 Board of Quantity Surveyor, Accessed on 10 May 2010, < http://www.bqsm.gov.my/bqsm/a_public/index.asp> 45
In Greaves & Co. v. Baynham Meikle82, lord Denning M.R. stated;
“Apply this to the employment of a professional man. The law does not usually imply a warranty that he will achieved the desired result, but only a term that he will use reasonable care and skills. The surgeon does not warrant that he will cure the patient. Nor does the solicitor warrant that he will win the case.”
The law relating to professional negligent is not confined to tort. In some cases the appropriate cause of action is contract. In the area of professional negligence, it is often tort and contract overlapping with one and another. Even though that negligence seems to be falling in the tort area, but the action will often be in contract on the basis of professional did not exercise due skills and care in carrying out his duties under the contract83. In Jarvis v. Moy, Davies, Smith Vandervell & Co84, Greer J said:
“The distinction in the modern view, for this purpose, between contract and tort may be put thus where the breach of duty alleged arises out of liability independently of the personal obligation undertaken by contract, it is tort and it may be tort even though there may happen to be a contract between the parties, if the duty in fact arises independently of that contract. Breach of contract occurs where that which is complained of is a breach of duty arising out of the obligation undertaken by the contract”
82 (1975) 1 WLR 1095 83 Ashley Underwood & Stephen Holt, Professional Negligence, 1st Publish April 1981, Fourmat Publishing Limited, 25 Bedford Row London WC1R 4HE, page 1 – 3. 84 (1936) 1 KB 299 46
Thus the liability of construction professional is fall under two part as in tort and under the contract. Where there is no contract then the action must be in tort, the judgment arises from the case law of Saif Ali v. Sidney Mitchell & Co85.
3.3.1. Liabilities under Tort
No precise definition of the word ‘tort’ can be formulated, but workable meaning is that tort encompasses civil wrongs other than breach of contract. Tort includes damage, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought. The most common tort is negligence and this is the usual complaint made by a plaintiff in a professional malpractice case. Negligence can be established by plaintiff if defendant breaches his duty of care to the plaintiff.
3.3.1.1. Duty of Care
Duty of care is a legal term used to describe a standard of behavior that is expected of a person or organization. Such standards will generally vary depending upon the roles of the individuals in a given relationship. This term can apply, however, to standards in a wide range of situations. Often, there are laws that hold people responsible
85 (1978) 3 ALL ER 1033 47 for actions that are considered unreasonable given the situation. The principle supporting duty of care is generally sensibility86.
The origin of this duty is form way back on 1932 in the case of Donoghue v Stevenson87 where there was a decision of the House of Lords that established the modern form of the tort of negligence. The leading judgment was delivered on 26 May 1932 by Lord Atkin. The most famous section was his explanation of the "neighbor" principle, which was derived from principle of "loving your neighbor";
“There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ...The rule that you are to love your neighbor becomes in law you must not injure your neighbor; and the lawyer's question: Who is my neighbor? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law, is my neighbor? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question . . . a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care”.
86 S.E. Smith, What is the duty of care? Accessed on 12 May 2010, < http://www.wisegeek.com/what-is-the-duty- of-care.htm> 87[1932] AC 562 48
Expectations of how a person should act are also affected when the relationship that exists between two parties is a professional one. When a professional, such as doctor or lawyer, is accused of violating her duty of care, she may be sued for negligence. A doctor, for example, has a duty to treat her patients with the competence and efficiency of her peers. If she does not, and her actions result in harm, she may be found guilty on the grounds that she did not fulfill her duty of care88.
Such standards can exist in situations other than those that involve two individuals. It may be found that a business neglected its duty to another business. It is also possible for a party to violate standards of care regarding things such as animals or the environment. Since duty of care is generally a tort, a person is not usually incarcerated if a court finds that she did not act sensibly. In many cases, the consequences involve the payment of damages. There may also be professional repercussions, such as the loss of licensing or the forced closure of a business89.
At common law, the present test to establish duty of care was enunciated in Caparo Industries Plc v Dickman [1990] and is applicable to all negligence claims, including claims for pure economic loss arising out of professional negligence. Lord Bridge adopted an incremental approach to determine the existence of a duty of care and the scope of such a duty. His Lordship held90:
“What emerges is that, in addition to the foreseeability of damage, the necessary ingredients in any situation giving rise to a duty of care are that
88 Op cit, S.E. Smith.
89 Ibid 90 Op cit, Saraswathy Shirke. 49
there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of proximity or neighbourhood and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible to any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope”.
Thus in order to impose a duty of care on the defendant the Caparo test must be answered in the affirmative - whether the damage suffered by the plaintiff is reasonably foreseeable and whether there is a relationship of proximity between the plaintiff and defendant; and whether it is fair and reasonable that the defendant should owe the plaintiff a duty of care.
3.3.1.2. Standard of Care
In the law, the standard of care is the course of action which a reasonable person would follow in a given situation. This standard is used when evaluating civil cases to determine whether or not someone with a duty of care acted responsibly. Anyone who engages in an activity which might put someone at risk, from driving a car to performing 50 surgery, has a duty of care. People who do not follow the standard of care can be liable for injuries they cause91.
The standard of care is not universal. Different people are held to different standards. Professionals such as doctors and lawyers, for example, are held to a standard of care which asks not what a reasonable person would do, but specifically what a reasonable doctor or lawyer would do. This recognizes that professionals have special qualifications and certifications and advertise themselves as uniquely qualified, and thus they should be held to a higher standard of care92.
A standard of care is very different. It is the amount of care required by certain people under certain situations and does not usually apply to everybody. It is a measure of care, not just a duty. It is usually more than the simple reasonable care required of ordinary people. A doctor must perform to a certain standard of care when he performs medical services. The same can be said for a construction professional. All the similarly situated professionals must adhere to the same commonly accepted standard of care used by their fellows. If they use methods that are not the standard used by their brother or sister professionals, they may have violated the standard of care for their profession and be subjected to penalties. Thus, the phrase "standard of care" is used in malpractice cases mostly.
Negligence is not defined as lack of perfection. Defects might result from some error in judgment or honest oversight and yet not constitutes negligent if the requisite
91 Op cit, S.E. Smith. 92 Ibid
51 standard of care has been exercised. In absence of special circumstances, a professional does not guarantee perfection or satisfactory results, but is only held responsible for failure to exercise reasonable care and skills.
Each person is expected to exercise the skills and abilities that he possesses. A specialist or one capable of extraordinary accomplishment must meet higher standard than the ordinary practitioner in the same activity since it is reasonable to expect a higher level of performance from a specialist. Any licensed professional hold must have at least minimum knowledge and skills possessed by others in the same profession who undertake the same work. If one somehow represent one as having greater skills, the margin of acceptable error narrows.
The standard of care may vary geographically, since what is an acceptable and common practice in one locality may differ from that in another place. When judging on professional work, the element of time is important since reasonably prudent practice changes over time. What was one accepted as a way of doing things may now be considered outmoded. The work of professional should be judge by the standard of care prevailing at the time and in the place where the work was done. When the designer is asked to undertake work involving new or unusual concept, materials or techniques, there is even greater leeway tolerated in judging legally the results the will be produces93.
When evaluating cases of this nature, one consideration is that there may not be one right course of action for a given situation. A reasonable and qualified doctor, for example, might approach a medical issue in a number of different ways, all of which would be considered legitimate and appropriate. A reasonable doctor would not, however, engage in activity which might put a patient at risk of injury, such as failing to
93 Op cit, Harrison Streeter, page 8 and 9. 52 screen for infection in a patient with a fever, or not providing pain management to a patient after a surgery94.
3.3.1.2.1. Reasonable Skills and care
Reasonable care is the level of care which an ordinary and reasonable person would use under comparable circumstances. In the law, it is used as a standard to assess liability. If it can be demonstrated that someone had a duty of care and failed to exercise reasonable care, that person can be held negligent and may be liable for damages. On the other hand, if someone exhibited reasonable care and something happened anyway, this person would not be considered negligent95.
The standard of reasonable care becomes more complicated for professionals, because professionals are not considered ordinary individuals since they provide services on the basis of additional qualifications. Professional negligence involves neglecting the standard of care expected in the profession, rather than exhibited by an ordinary person. A doctor's duty of care, for example, is dependent on professional training which the doctor should have applied to a case. If it can be demonstrated that a doctor failed to act in a manner consistent with other medical professionals, it may be deemed professional negligence and the doctor could be held liable for injuries incurred as a result96.
94 Op cit, S.E. Smith. 95 Ibid 96 Ibid 53
Most standard contracts that involve professionals will incorporate express terms spelling out the conditions of performance featuring words like utmost skill and care and professional standard of care and diligence. Even where these terms do not appear in the contract, the court will always imply that their engagement is subject to a general and basic duty to employ reasonable skill and care. Oliver J in Midland Bank Trust Co Ltd v Hett Stubbs & Kemp [1979] made the following observation on duty to exercise reasonable skill and care97:
“It concentrates attention on the implied obligation to denote to the client s business that reasonable skill and care to be expected from a normally competent and careful practitioner as if that obligation were not only compendious but also an exhaustive definition of all the duties assumed under the contract created by the retainer and its acceptance”.
The standard of care owed by the plaintiff to the defendant is of reasonable care and skill in carrying out its duties. This standard is judged objectively. In relation to an action for negligence against an architect for breach of duty to supervise, the Singapore Court of Appeal's case of Sim & Associates v Alfred Tan is particularly relevant. At p 185, Karthigesu JA held that98:
The architect is only required to give reasonable supervision to the building works and whether he has breached the requisite standard of supervision must be measured against the standard expected of a reasonably skilled architect. An architect's liability is not absolute in the sense that he is liable whenever loss results from his acts. It must be shown that he has been negligent in that he has failed to exercise the
97 Op cit, Saraswathy Shirke. 98 [1994] 3 SLR 169 54
requisite standard of care; a person alleging negligence against an architect must call evidence as to what constitutes lack of care in the circumstances.
The standard of reasonable care and skill is not a standard of perfection. It is not sufficient to show an error in order to establish a failure to exercise reasonable care and skill. Actual negligence must be proven. In the House of Lords decision in Sutcliffe v Thackrah & Or Lord Salmon held as follows99:
“It by no means follows that a professional valuation was negligently given because it turns out to be have been wholly wrong. Nor does the fact that an architect's certificate was given for the wrong amount of itself prove negligence against the architect. Whether or not there has been negligence is, of course, a pure question of fact depending upon the particular circumstances of each case.”
3.3.1.3. Strict liability
The concept of strict liability in tort or liability without fault is based largely on what the court and legislatures perceive as a social need. In effect, the concept sometimes referred to as deep pocket approach. Under worker compensation the employer must pay for an employee’ accidental injury receive out of and in the course of employment, even if the employer is free from fault and employee’ own negligent caused the injury. Worker as a class cannot afford the financial burdens imposed on them by such injuries, but
99 [1974] AC 727 55 employer can absorb the loss and pass it on to their customers in increased prices for goods and services100.
Much the same idea exists with the products liability. A manufacturer whose product contains a defect rendering it reasonably dangerous in its intended use must pay damages to a person damaged because of the defect. It makes no different that the very highest standard of care was used in the design and manufacture to the product.
The courts have uniformly rejected the application of strict liability to professional services. However some recent court decisions have held that structures provided under design and build contracts could be classified as products rather than as the result of professional services. In this way strict liability might be used as a cause against an architect or engineer101.
3.3.1.4. Absolute Liability
Absolute liability is not the same as strict liability. In the latter, certain condition must be satisfied before the claimant can succeed. Workers compensation is paid only for those injuries arising out of and in the course of employment, not for any and all injuries. Manufacturers are strictly liable only when a defect in their products causes injury, and not for all injuries that people receive from the product. If it were otherwise, the liability would be absolute. Absolute liability is imposed on those who responsibility for some
100 Op cit, Harrison Streeter, page 10. 101 Ibid 56 extra hazardous activity or instrumentality. The rendering of personal professional services does not subject one to absolute liability102.
3.3.2. Liabilities under Contract
Professional renders their services to client under contracts and thereby establishes legal right and duties on both sides. Failure to perform these duties constitutes contract breach, which requires, in most case, dollar damages be paid to the opposite party. A serious failure to fulfill his contractual obligation may well be a legal reason to deprive him of his fee. Courts in several jurisdictions have held that a professional who, under contract, renders services in a negligent way has thereby also committed breach of the contract, since an implied term of agreement is that the services will be performed according to the professional standard of care. The client may use the fact to sustain a case under either negligent or breach of contract103.
As Oliver J. pointed out in Midland Bank v. Hett, Stubbs & Kemp104, the obligation to exercise reasonable skill and care is not the only contractual term which ought to be considered in a professional negligence action. Nevertheless in every contract between a professional man and his client there will be express or implied terms defining the nature of the engagement. Thus if Surveyor is instructed to produce a report on certain property, there is an express or implied obligation to inspect it. If a surgeon agrees
102 Ibid 103 Ibid, page 11. 104 (1979) Ch. 384 57 with his patient to perform a particular operation, there may be an implied term that he will give the necessary supervision thereafter until the discharge of the patient. The important of specific terms such as this is that a professional man will be liable if he breaks them, quite irrespective of the amount of skill and care which he has exercised105.
3.3.2.1. Warranty
Warranty is a hybrid legal right, a cross between tort and contract. A warranty generally is an undertaking or stipulation that a certain fact is or shall be as promised to be. It arises out of a contract but need not be in the actual contract itself.
3.3.2.1.1. Express warranty
Express warranty is based on an affirmation of fact, usually words, relied on by the claimant, but any other form of representation will suffice. Mere words of opinion or estimate do not constitute a representation, rather an actual statement is requiring. The word need not be in writing and need not include the word warranty or any other formal expression but must carry with them an undertaking that a certain fact relating to the subject of the contract will be as stated or promised.
105 Rupert M. Jackson & John L. Powell, Professional Negligence, Published in 1987, Sweet & Maxwell Ltd. Of 11 New Fetter Lane, London. Page 7- 8.
58
Thus express warranty becomes a part of the actual bargain made between the parties. The danger to a professional is that in bringing about a contract for services or in the actual contract itself, words might be used which will be legally interpreted as a guaranty to produce certain result or to meet a standard of perfection in the work. Express warranty is definitely recognized as a legal cause of action against professional who fails to deliver what they have represented they will deliver106.
3.3.2.1.2. Implied warranty
Implied warranties are inferred by law, without the need for any words or other representations by party to the transaction. Two specific implied warranties, of merchantability and fitness for purpose are of great importance in sales of goods107. A merchant who sells goods to a customer implies that the goods are reasonably fit for the ordinary purposes for which such goods are used. Although it can be argued that a professional impliedly promises his or her client to exercise the legally required standard of care, this care is really what the law of negligent requires, and negligent is the proper remedy for the client to pursue108.
If the seller of goods knows or has reason to know at the time of contracting with the buyer that the buyer has a particular purpose for which the goods are required, and the buyer is relying on the sellers skills or judgment to select or furnish goods to the buyer
106 Op cit, Harrison Streeter, page 11. 107 Ibid, page 13. 108 Ibid 59 that are suitable for that purpose, the sellers implied warrants that the goods shall be suitable. This situation appears much like that between client and professional. The former makes known certain need but, lacking expertise, request and relies on the professional’s skill and judgment to provide the plan or design109.
By way of exception to the general principle for fit for purpose, there are some cases that which professional ma is simply required to achieve a specified result and there is no need for contractual term defining the skill and care which he must use. For an example a dentist agrees to make a denture for his patients, his obligation is not to exercise reasonable skill and care but to produce a denture which will be fit for purpose110.
3.3.3. Limitation of Liability
Commercial buildings are rarely constructed for the sole use of the employer under the construction contract. The employer may for example be a building developer, a public body, a speculative builder or a housing co operative. For this reason, allocating responsibility for latent defects that occur past completion is of major importance when selling or leasing the completed building or development. The liability of the construction professionals is not only during the construction process, but its extent toward several years after practical completion or final certificate111.
109 Ibid 110 Op cit, Rupert M. Jackson & John L. Powell, Page 8. 111 Op cit, John Adriaanse, page 288-295. 60
The issue of a certificate of practical completion triggers the defects correction period or the defect liability period. At the end of the period a list of defects is produced that the contractor must rectify in reasonable time. Then after the defect has been rectify, the issuance of the final certificate. It was held in Crown Estate (1995) that final certificate need to be conclusive evidence that all work has been properly carried out. Final certificate act as an evidential bar to the allegation whether the work has been or not properly carried out. This applied to both patent and latent defects. It is provided that the final certificate is only conclusive of matters left to the reasonable satisfaction of the architect. For all practical purposes, the limitation period begins. In s simple contract the period is 6 years from the date of breach112.
In case law of Junior Books v. Veitchi Co. Ltd113, an appeal case from Scotland that involves economic losses. The contractor entered into a contract with a company to construct a factory. A specialist flooring subcontractor was nominated to carry out the flooring work. Two years after completion, the floor develop a crack on the surface, and the owner was faced with prospect of continual maintenance cost to keep the floor usable. The owner brought an action against the subcontractor, claiming the floor was defective because it had been laid negligently.
The subcontractor then in return claims that it had no course of action in tort because the defective floor was not a danger to health and safety of any person. The court held that the subcontractor owed the owner duty of care and had been negligent and had breach of duty. This is because the relation ship between the owner and subcontractor was so close as almost amount to a contract. A duty of care was owed to prevent harm being done by faulty work, and this extended to the cost of repairs.
112 Ibid 113 (1982) 3 WLR 477 61
Closely allied to the issue of liability for post completion defects is the English law of limitation of actions and the doctrine of privities of contract. Thus any review on of the earlier cases on liability in tort must take into account that they were concerned with the start of the limitation period, rather than the substantive issue of whether liability existed at all. Limitation is the name given by lawyers to the rules that restrict the period within which court actions must be started. Failure to start an action within time limits does not in theory stop an action being brought. What it does is to allow the party being sued to plead the defense that the claim is barred by statue.
3.3.3.1. Exclusion of liability
A professional’s man is bound to ask himself whether the law will permit him to exclude or limits his professional liabilities by notice to those likely to be affected. A reading of Hedley Byrne & Co. Ltd v. Heller & Partners Ltd might lead one to believe that this can be done by an express exclusion of responsibility, as protected the defendant bankers in that case. Since that decision, however, statue has intervened in the shape of the Unfair Contract Terms Act 1977114.
The 1977 Act applies to all contractual terms or notices that purport to exclude or restrict the liability of persons for negligence arising from things done in the course of business. Any contractual terms or any notice or communication, which purport to exclude limit a professional’s liability in respect of personal injury or death arising from a breach of professional duties will be of no effect at all.
114 Digby Charles Jess, A guide to the insurance of professional negligence risks, London Butterworth 1982, Page 21 – 22. 62
3.3.3.2. Limitation of actions
The period which a party is prevented from pursuing construction professional for breach of contract and negligence has been determine by statute. The method adapted by the statue to achieve these aims is to fix a period after the expiry of which and action cannot be pursued. In the case of proceeding brought in arbitration, the injured party stops time running by serving on the party against whom he wishes to claim a notice to concur in the appointment of an arbitrator. The issuing of a writ or the giving of a notice to concur in the appointment of an arbitrator does therefore, fix the dates on which time stops running for limitation purposes.
By referring Malaysian law in limitation act 1953 section 6, an action found under the contract or tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. In United Kingdom, under the limitation Act 1980 section 5, a simple contract like an oral and written contract will be statue barred six years after the time when the cause of action accrues. Under section 8, Contract under seal will be statue barred 12 years from the time when the cause of action accrues. Section 2 show claims in tort including negligence will be barred six years from the accrual of the course of action115. In spartam-souther v. Town and Country Development (Essex) ltd116, the court of appeal held that the six year period in tort does not begin to run until plaintiff discovers, or ought with reasonable diligence to have discovered the damage.
115 David L. Cornes, Design Liability in the Construction Industry, 2nd Edition, Published by Collins Professional and technical books 1985, Page 188-203. 116 (1976) 3 BLR 72 63
3.3.4. Scope of Duty for Construction Professionals
The scope of duty of project managers to exercise reasonable skill and care was examined in the case law of In Royal Brompton Hospital NHS Trust v Hammond [2001], the court held that117:
“The project managers had been negligent in failing to monitor decisions by the architect to grant extensions of time to the contractor. Actions were also brought against the architects and other members of the project team. The case against the project managers was based upon a fundamental misconception as to the scope of their duties; the project managers task was to ensure that the contract administration decisions were undertaken efficiently, not that they were all correct, since this would virtually oblige the project managers to undertake everyone else s work”.
A project manager has an ongoing duty to act with reasonable skill and care in respect of the overall project management exercising control over time, cost and quality. Project manager’s duties will however vary depending upon the nature of the project, his own skill and experience and the terms of his appointment contract. Most actions alleging professional negligence against a project manager are likely to evolve around the following118;
a) Poor supervision b) Lack of communication
117 Op cit, Saraswathy Shirke. 118 Ibid 64
c) Failure to warn d) Delay e) Failure to meet the client s need f) Not confirming to the Occupational Health and Safety Regulations; g) Failure to ensure that a collateral warranty was entered into h) Failure to secure adequate insurance coverage.
In the case law of George Fischer Holdings Ltd v Multi Design Consultants Ltd (1998), the decision held on the scope of duties of Engineers and Architects. The court held that it must be said that there lies a greater obligation to inspect carefully where the works are critical and the design is riskier than usual. In another case law of Alfred McAlpine Construction Ltd v Forum Architects [2002], the court decided that no duty of care was owed by an architects partnership to a design and build contractor, since the contract was with a limited company set up by the partnership. Design professionals can hire others to assist them but they cannot delegate away their responsibility to see that the work they have taken on is carried out with due care119.
A local case that involved professional negligent by engineers is in case law of Lim Teck Kong v Dr Abdul Hamid Abdul Rashid [2006] that shows the extent of duty of care by the consultant Engineers. The facts reveal that the defendant had failed to conduct thorough tests on the site. The defendant also failed to examine whether it was safe to build a building as per the design on the said site. The court in holding this as breach of duty went on to state that the evidence further showed that the defendant failed to conduct a thorough test of the soil when they recommended the building to be built on the said land. As a consultant firm of civil and structural engineers the first defendant was clearly negligent because he does not followed the normal procedures as expected by
119 Ibid 65 him. The scope of duties of Engineers that can be used for claims against negligence in overall cases of professional negligence is120;
a) The expectation of engineer to supervise and investigate any of the potential danger b) Negligence to advice c) Negligence design - Design to new concept/ new code
Another case that involved the failure of an Architect to inspect contractor works is in Clay v AJ Crump & Sons Ltd [1964] the demolition contractors decided to leave aside a wall that was intended to be demolished to guard against trespassers. The architect having noticed the wall asked the demolition contractors whether it was safe for the wall to be left in that state. The architect however did not inspect the wall on his own. The wall collapsed and injured a workman. The workman succeeded in his action against the contractor, the demolition contractors and the architect121.
In assessing the architect s liability, James Foong J in Steven Phoa Cheng Loon & Ors v Highland Properties Sdn Bhd & Ors [2000] cited on the standard of care to be applied to determine breach of duty. Justice Windeyer provided the standard to be122:
“An architect undertaking any work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments.
120 Op cit, Chai Voon Chiet.
121 Op cit, Saraswathy Shirke. 122 Ibid 66
But he must bring to the task he undertakes the competence and skill that is usual among architects practicing their profession. And he must use due care. If he fails in these matters and the person who employed him thereby suffers damage, he is liable to that person.”
As with other profession, the standard imposed upon Architect is that of reasonable care and skill for a member of that profession. In other words, if an act falls short of the standard accepted and implemented by other Architect, the standard had not been reached. The most common duties of architect are123:
a) To advise and consult with the employer as to legal rights affecting the use of land - Conformity with bye-law requirements is in practice accepted by the Architect and the practice has been recognized by the court in Townsend (Builders) Ltd. V. Cinema News (1959) 1 WLR 119. b) To examine the site, subsoil and surrounding – Before the building can properly be planned, it is essential to know the situation of the land and its condition of the subsoil. c) To advise the employer in general on the contract – The view is now current that the standard form of contracts available. Architect is obliged to be familiar with them. It is though also that Architect must bring them to the attention of the employer when the form of the contract is under discussion. d) To prepare and submit plans, specification and estimates – Plans and the like must not only be complete and not defective, they must be delivered within a reasonable time. e) To supervise the works - The Architects duties to give reasonable supervision, and that means such supervision as will enable him to
123 Ashley Underwood & Stephen Holt, Professional Negligence, 1st Publish April 1981, Fourmat Publishing Limited, 25 Bedford Row London WC1R 4HE, page 67 - 73 67
certify that the work of the contractor has been executed accordingly with the contract, and if he fails to do so, he will be liable in damages to his employer.
In some of the cases where by a person that is not considered as professional but taking a risk on doing what professional do in terms of scope of work, even it is clearly that that person is unqualified, that person will be treated like a professional. In the case law of Steven Phoa Cheng Loon & Ors v Highland Properties Sdn Bhd & Ors [2000] involving this kind of situation where the defendant is an unqualified person who represented himself as qualified and competent. It was held that the defendant s misrepresentation as to his qualification makes little difference to the duty of care he owes to the plaintiffs, if a man is unqualified but holds himself out to possess a skill, he will be judged by the standards of a reasonably competent qualified person.
Quantity surveyors are the members of the surveyor’s profession most closely concerned with contracts for work of construction. It is necessary for quantity to be taken out of plan from any given works, so that contractor can tender on the basis of a firm price, and in general such task is assigned to a quantity surveyor. The surveyor must, like all professionals, use due skill and care appropriates to some one of his calling. In case law of Waghorn v. Wimbledon Local Board124 where due the arithmetical error, the employer suffered loss and held there is no negligent. It is submitted that if that case were followed now it would be on the principle that such relativity small error is such as a reasonable quantity surveyor might make, without having been negligence125.
124 (1877) HBC 125 Op cit, Ashley Underwood & Stephen Holt, page 73 – 74. 68
Another case that involving quantity surveyor is in case law of Dutton v. Louth Corporation126 whereby the quantity surveyor was called upon to check for error bills of quantities submitted for tenders. If he notices errors of substance operating against the interest of the contractor it has been held he is under no duty to the contractor to inform him127.
3.4. Conclusion
There are several professions within construction industry that are considered professional. Each and every one of them is involved in work that has high liability to them. The liabilities of construction professional namely are under both tort and contract. This liability under tort and contract open up an action far more wide for the claim to be made by the injured party. It seems that construction professional has enormous liability to take care of and makes it a high risk profession to be sued upon. Understanding this liability will make the scope of duty of each profession much clearer. It is also important to know when that the liability will be discharged. All of these theories are crucial to a professional for the defenses against any professional negligence claims. The next chapter will try to find the different and summaries all of the criteria for this study.
126 (1955) 116 EG 128 (CA) 127 Op cit, Ashley Underwood & Stephen Holt, page 73 - 74 69
Chapter 4
Analysis
4.0 Introduction
Even though that the element of negligent is the basis to prove negligence, every case has a different nature and background. Also the negligence by a professional’s man is a little bit different than normal negligence because of the technical aspect involves in the process especially involving construction professionals. Proving negligence it’s always a challenging part and what method that the judge do to make that decision? The criteria in what determine the judge to prove negligence is crucial to construction professional.
This fourth chapter tries to find, discuss and establish the nature of the case-laws that explored from the expanding role of professional negligence in construction cases. 70
This is the most important chapter in this research because the finding in this chapter will conclude whether the objective has been met or not. The research Concentrates on the tasks on what are the criteria that the judge use to prove negligence for construction professionals. Throughout the cases, ten were selected based on their popularity in construction industry and in wide range of construction professional’s.
4.1. Case Law analysis
4.2. Lim Teck Kong v Dr Abdul Hamid Abdul Rashid & Anor [2006] 3 MLJ 213
4.2.1. Fact of the Case
In this case, Dr. Abdul Hamid and his wife as a plaintiff and in need a professional engineer to draw up a plan for his house. Plaintiff goes to the firm of Consulting Civil and Structural Engineer owned by1st defendant. Plans of a double storey house were then drawn and signed by the fourth defendant which was a registered engineer with the Board of Engineers of Malaysia at the material time, but no longer so after being struck off the rolls when he admitted to the regulatory body of engineers that he breached the rules by operating two firms at the same time, one of which being the first defendant.
Relevant building plans were submitted to the second defendant, the town council of the area. On 18 September 1988 at about 3am, the plaintiffs were awakening by an unusually loud sound. When the first plaintiff looked out of his bedroom window facing a river below the house he was unable to see the tops of some trees which he had planted on the slope. A concrete deck and the boundary brick wall which were erected on this part of the land had tilted and collapsed respectively. By 6am, when sufficient daylight appeared, the plaintiffs returned to inspect their house and found that virtually half of the house facing the river had crumbled due to landslide. 71
Sometime in January 1990, the respondents issued a writ of summons and a statement of claim against the appellant and four others. In the amended writ and the statement of claim, the first defendant was Jurusan Malaysia Consultants , the second defendant was Majlis Daerah Gombak, the third defendant was Mighty Corporation Sdn Bhd, the fourth defendant is the appellant in the present appeal and the fifth defendant was an individual by the name of Leow Kim Sang. After hearing the case, the High Court, Shah Alam on 15 December 1996 made an order that the first, third and fourth defendants do pay the sum of RM364,173 to be apportioned.
The claim of the respondents as against the second defendant was dismissed with costs. As against the fifth defendant, the learned judge found that he was a clerk in the first defendant's firm, although he represented himself as a partner in the first defendant's firm. No order was made against him.
4.2.2. Judgment of the case
As the plaintiffs' contentions against the firm were not within any express and specific condition in the written contract, the only basis the plaintiffs could rely on to succeed was based on the legal concept of there being implied terms. The relationship between Plaintiff and defendant is that the 1st defendant is a Consultant Engineers for Plaintiff. The contract between them is performance of services by professionals. There is close proximity between them. The contract existed between plaintiff & defendant Shows that implied term also exist
72
From the facts, it was clear that the term that the first defendant must reasonably and equitably be expected to take reasonable care and skill in the performance of the contract qualified to be accepted as an implied term of the contract between the plaintiffs and the first and fourth defendants. To test the degree of the reasonable skills and care, the Bolam principle is used. His specialized craft was to advise and design structures that are adequate and safe for a particular purpose. By means of expert witness defendant failed to make assumption of where the water table was.
The failure of the first and fourth defendants to determine the soil condition to a high degree of certainty was a breach of the implied term of its appointment to take reasonable care. Other failures on the part of the first and fourth defendants were clear breaches of professional duties. The first and fourth defendants were therefore liable for breach of contract. Defendant has no systematic attempt to assess the stability of the slope based on established engineering techniques' were adopted
In the present appeal, we are of the view that the losses by the plaintiffs were not pure economic losses. The evidence shows that the damages suffered by the plaintiffs were the loss of the bungalow which collapsed a few years after it was built on that site where the first defendant failed to conduct thorough tests on the site, whether it was safe to build a building as designed by the first defendant on that site. It was the duty of the first defendant as consultant employed by the plaintiffs to ensure that it was safe to build the building on that site.
The evidence shows that the first defendant failed to carry a thorough test of the soil when they recommended the building to be built on the said land to the plaintiffs. For the said reasons, we are of the view that the learned judge came to the correct conclusion that the first defendant was also negligent and liable.
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4.3.Steven Phoa Cheng Loon & Ors V Highland Properties Sdn Bhd & Ors [2000] 4 Mlj 200
4.3.1. Fact of the case
Highland Towers, as is collectively known, consist of three blocks 12-storey high apartments named simply as Block 1, 2, and 3 respectively. Directly behind the three blocks was a rather steep hill with a stream flowing west, if it was allowed to follow its natural course. On Saturday, 11 December 1993, at about 1.30pm, after ten days of continues rainfall, Block 1 collapsed. When rescue operation was called off after days of searching, 48 people were recorded dead. Immediately after the collapse of Block 1 the residents of Block 2 and 3 were prevented from entering their apartments by the local authority having jurisdiction of the area, the Majilis Perbandaran Ampang Jaya, for fear of the instability of these two buildings.
MPAJ had issued statutory notice to the purchasers/owners of the apartments of Block 2 and 3 to demolish these two buildings. This was refused leading to the affected purchasers and owners obtaining from the High Court at Shah Alam an order to set aside this notice. To date Block 2 and 3 remain standing but unoccupied for fear of instability. Some three years after the Highland Towers tragedy the purchasers and owners of Block 2 and 3 issued a writ against the ten defendants.
The respondents then filed a suit in the High Court against various parties including the appellant MPAJ, for negligence and nuisance. After a lengthy hearing, the learned trial judge found the appellant who was the fourth defendant in the case to be 15% liable for negligence in respect of the appellant's acts and omissions prior to the collapse of Block 1 of the Highland Towers. However, he held that s 95(2) of the Street, 74
Drainage and Building Act 1974 operated to indemnify the appellant of any pre-collapse liability but provided no protection to the appellant for post-collapse liability
4.3.2. Judgment of the case
When the second defendant had represented himself as a qualified architect to all and sundry, as displayed by his actions, then he must be judged according to the character he had assumed. At the time when this defendant exercised his duty as an architect for the Highland Towers project, he must have foreseen that the apartments he built would be sold, and purchasers, their servants and agents would be occupying them. Thus these purchasers would be closely and directly affected by his acts and omissions and for this.
Defendant is just a building draftsmen but he stated that he is qualifies as a n architect. If a man is unqualified but holds himself out to possess a skill, he will be judged by the standards of a reasonably competent qualified person. As an architect, his duty is primarily to his client because he has a contractual relationship. Proximity between Architect and any other third party like purchaser is close because his action can directly affected them. Foreseen ability of the danger if he does not take necessary measure in the work.
By this, the court found a duty of care existed between the second defendant and the plaintiffs and from the facts of the case; it was obvious that the second defendant had breached his duty of care to the plaintiffs. The second defendant had failed in his duty as an architect and had also refused to comply with the requirements imposed by the authorities on the drainage of the area 75
The claim for pure economic loss in this country can be maintained against a defendant. The plaintiffs' claim is for damages caused jointly and severally by the acts and omissions of the defendants, their servants and agents in causing or contributing to the collapse of Block 1 and thereby forcing the plaintiffs to evacuate and abandon Block 2 and 3. Failure to do so was a breach of his duty of care he owed to the plaintiffs since his duty was to ensure the safety of the buildings he designed and built. Thus making them liable for the damage.
4.4. Kelly v. Sir Frank Mears & Partners (1983) Sc 97
4.4.1. Facts of the case
A man sustained severe injuries when he fell head first against a glass panel in a balcony on the seventh floor of a block of flats, broke the glass and fell to the ground. He raised an action for damages against inter alia the architects who had designed the building. The Lord Ordinary held that in ignoring a warning about the use of glass contained in the British Standard Code of Practice for glazing and fixing of glass for buildings the architects had adopted a course which no architect of ordinary skill would have taken if he had been acting with ordinary care, and awarded the pursuer damages.
In the reclaiming motion against the Lord Ordinary's decision, it was argued for the architects that the accident was not reasonably foreseeable, that the British Standard Code of Practice did not apply to the circumstances of the case because wired glass was used which was not dealt with in the Code and that, in any event, the provisions of the Code of Practice were not mandatory and only provided recommendations, which expert 76 architects need not adhere to; they could apply their own experience of what was usual, proper and normal practice.
Daniel Joseph Kelly raised an action against (First) The District Council of the City of Edinburgh (owners of a block of flats); (Second) Sir Frank Mears & Partners (architects of the building); (Third) Crudens Limited (the builders); and (Fourth) George Lindsay & Company (Glaziers) for reparation for personal injuries.
His first ground is stated in general terms, namely that it was the defenders' duty to take reasonable care for the safety of persons, including the pursuer, using the access way and the balcony. The standard of care and skill which the defenders were called upon to exercise when designing the balcony and in particular the balustrade was that of a reasonably competent architect.
In submitting that the defenders failed in their duties towards him the pursuer founds on four failures namely:
1. Failing to provide a reasonably safe, strong and impact resistant material strong enough to withstand the impact of two men falling against the panel. 2. Failing so to design the fittings of the glass panels that there was a rebate on all four sides of the glass and the glass was held firmly in place. 3. Failure to restrict the size of any apertures in the balustrades so that persons could not fall through them. 4. Failure to provide in their design a railing at points of access to the balcony to prevent persons falling through an aperture in it.
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Per contra, defenders' counsel argued that neither of these two factors had been established in evidence. The argument accordingly, crystallized into two broad heads, namely (1) foreseeability and (2) proof of negligence. If the accident which occurred was not reasonably foreseeable, no question of negligence arises.
4.4.2. Judgment of the case
Held allowing the reclaiming motion that it was reasonably foreseeable that such a glass panel forming part of a balustrade could break of a person fell heavily against it. Defendant owed duty of care as an Architect; it was their duty in their designs to provide a reasonably safe. It is sufficient if the accident which occurred is of a type which could have been foreseeable by a reasonably careful person. The precise concatenation of circumstances need not be envisaged. Defenders ought reasonably to have foreseen that the glass panel might not be of adequate impact resistance to prevent him from falling through the panel and thereby sustaining injuries. The judge also referring to the 3 tests of hunter v. hanley.
Three facts from Hunter v. Hanley:
i. That there was a usual and normal practice; ii. That the defenders did not follow that practice; and iii. That the course the defenders adopted was one which no professional architect of ordinary skill would have taken, if he had been acting with ordinary care.
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It is also stated that the British Standard Code of Practice did not apply to the circumstances of the case because it did not deal with wired glass used by the architects. That in any event the Code, not having any statutory force and only providing recommendations, could not be founded on in vacuo but only had evidential value in so far as it was referred to by witnesses.
That accordingly it was for the injured man to prove that there was a normal practice which the architect did not follow which no professional architect of ordinary skill would have taken if he had been acting with ordinary care; and there was no such evidence. Ignoring the Code and discounting the risk the design architect adopted a course which no architect of ordinary skill would have taken if he had been acting with ordinary care.
4.5. PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681
4.5.1. Facts of the case
The defendant appointed the plaintiff, a consultant engineer, for their project in the district of Gombak. The letter of appointment and the consultancy service agreement provided, inter alia, that the plaintiff's fees were at the rate of 2.5% of the estimated contract sum for the said project. As at 11 August 1996, the balance outstanding consultancy fees payable to the plaintiff was RM1, 005,136.47 and the defendant had agreed to pay the said sum in 42 installments from June 1995 until November 1998.
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The plaintiff agreed to the above arranged payment. The defendant however, made payment of the plaintiff's fees only in respect of the monthly installments of June 1995 to October 1997 and had defaulted the payment for the remaining installments. The plaintiff therefore filed this action against the defendant to recover the outstanding unpaid fees amounting to RM767, 700 and costs. In its defense and counterclaim, the defendant contended that the plaintiff had been negligent in carrying out its duties as the consultant engineer which the defendant claimed had caused losses amounting to RM3, 672,436.90. Thus, the defendant contended that their liability to pay the plaintiff's fees was subject to a defense of set-off and counterclaim it had against the plaintiff for losses sustained by it due to the plaintiff's negligence in carrying out the works.
The plaintiff's claim against the defendant is for unpaid consultant fees in the sum of RM767, 700 as at November 1998 and for interest thereon from 1 December 1998 until full settlement and costs. In its defense and counterclaim, the defendant contends that the plaintiff had been negligent in carrying out its duties as the consultant engineer which the defendant claims had caused losses totaling RM3, 672,436.90. The defendant contends that its liability to pay the plaintiff's fees is subject to a defense of set-off and counterclaim it has against the plaintiff for losses sustained by it due to the plaintiff's negligence in carrying out the works.
4.5.2. Judgment of the case
Held, allowing the plaintiff's claim with costs and dismissing the defendant's counterclaim with costs. Plaintiff duties as Consultant Engineers, a consulting engineer's duty is to design advice and supervise. In a claim for professional negligence, the defendant must prove its case of negligence against the plaintiff. Cases were proved by 80 having credible witnesses and supporting documentary evidence. In this case, the defendant had neither and thus had failed to prove that the plaintiff was in breach of its duties owed to the defendant in tort.
Even if the defendant had proven breaches of duties by the plaintiff, the defendant had failed to prove any losses sustained from the alleged breaches. The plaintiff had clearly proved its case for the unpaid fees against the defendant. Even the defendant had admitted in its pleading that there were unpaid fees due and owing from it to the plaintiff but only contended that the same should be set-off against the defendant's losses due to professional negligence by the plaintiff.
The defendant also purported to counterclaim against the plaintiff for such losses. Although it is not for the plaintiff to disprove the defendant's action of negligence, in this case, the plaintiff had produced actual, cogent, factual and expert evidence by way of credible witnesses and contemporaneous supporting documentary evidence that there was no negligence on their part.
4.6.Clayton V. Woodman & Son (Builders), Ltd. And Others. Queen's Bench Division [1961] 3 All Er 249
4.6.1. Fact of the case
The plaintiff was a bricklayer employed by builders, the first defendants, who had contracted with a regional hospital board, the second defendants, to install a lift in their hospital. The third defendants were a firm of architects employed by the hospital board to prepare a specification and working drawings for the construction of the lift shaft and a 81 motor room. The building contract between the builders and the hospital board provided for the works to be carried out in accordance with the architect’s directions.
A stone gable was to be incorporated into the wall of the motor room and, for this purpose, a chase or groove had to be cut into the side of the gable. The gable wall was two feet thick and had a filling of rough rubble and loosely bound stones. This was the usual construction for similar walls and should have been well known to an architect. A qualified architect employed by the firm of architects, having inspected the gable, gave instructions on the site direct to the bricklayer to cut the chase in the gable. He knew that the bricklayer would carry out his instructions promptly on that day without shoring or strutting the gable which B. considered was unnecessary.
In fact it was unsafe and dangerous to cut the chase without shoring or strutting the gable as an architect or builder using reasonable care and skill should have realized, but knowledge of the danger was not to be expected of a bricklayer. While the bricklayer was cutting out a small piece of stone, after the chase had been cut, the gable fell inwards injuring him. In an action for damages for personal injuries the bricklayer alleged negligence and breach of statutory duty against his employers, the builders, negligence as against the firm of architects, and vicarious responsibility for that negligence against the hospital board.
4.6.2. Judgment of the case
This was an action by John William Clayton, a bricklayer, for damages for personal injuries, loss and expense sustained and incurred as the result of an accident on Jan. 15, 1959, at Wonford House Hospital, Exeter, in the county of Devon, when a bell 82 tower collapsed and struck the plaintiff while he was engaged in building a lift shaft at the hospital. Held that the architects wee liable to the bricklayer in negligence for the following reasons. Relationship between plaintiff and defendant, the proximity between plaintiff and defendant make plaintiff liable for defendant. Defendant owed duty to plaintiff.
The duty so owed was to take reasonable care for the safety of the bricklayer, and, as the architects should have realized that the carrying out of the instructions to cut the chase would probably lead to serious injury to him, they were negligent in issuing the instructions to him. There is no ordinary architect using reasonable care and skill would certainly have instructed high risk work
orders and instructions carelessly issued were different in their nature from mere statements or representations carelessly made, and only such careless misstatements as led to financial loss, as distinct from damage to persons or property, were outside the principle of Donoghue v. Stevenson therefore, it was only careless statements leading to financial loss that could not be actionable in the absence of contractual or fiduciary relationship. Relation between architect and this bricklayer gave rise to a duty to take care. Had the architect exercised any such care, he would not have issued the instructions that would injure the builder. Defendant liable for the damage plaintiff suffered.
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4.7. Lancashire and Cheshire Association of Baptist Churches Inc v Howard & Seddon Partnership [1993] 3 All ER 467
4.7.1. Fact of the case
The plaintiffs wished to build a new sanctuary for their church and entered into a contractual relationship with the defendant firm of architects through a third party under which the defendants not only designed the new sanctuary but also were for all practical purposes the contractor with all the power of supervision and control available to an employer of building workers engaged on the work. The plaintiffs were dissatisfied with the completed sanctuary because of alleged defects in design in relation to ventilation and the avoidance of condensation.
The plaintiffs issued a writ against the defendants claiming damages for breach of contract and negligence. At the time the writ was issued the plaintiffs' claim in contract was statute-barred but the plaintiffs claimed that the damage had occurred within the limitation period for actions in tort. The defendants contended that where there was a contract between the parties, or at least where there was a contract for professional services, there could not, as a matter of law, be a duty in tort.
4.7.2. Judgment of the case
The case for the plaintiffs in this action is that damage did not occur until 1983 at the earliest. If that is right, the writ was clearly issued within the limitation period. There 84 could in law be a duty of care actionable in the tort of negligence where the parties were in a contractual professional relationship. Accordingly, there could be a duty in tort despite the existence of a contract for professional services, albeit that the implied as well as the express terms of a contract would regulate the extent of that duty. There can be a duty of care actionable in the tort of negligence where the parties are in a contractual professional relationship
However, when the defendants submitted designs they did so for the purpose of enabling the plaintiffs to consider the accommodation and appearance of the proposed building, and without making any express statement as to its technical qualities. It would be artificial to treat the submission of the designs as a representation as to the building's technical adequacy made without care on which the plaintiffs had relied. A professional man, the duty to use reasonable care arises not only in contract but also in tort. There cannot be a duty on defendant to take care not to cause economic loss
Moreover, in the absence of actual damage to the person or to property, any loss sustained by the plaintiffs as the owners of the building like the cost of putting right the defects, was purely economic and the defendants owed no duty of care to prevent such loss. It followed that the defendants owed no duty of care to the plaintiffs in tort.
Builder of a building is liable at common law for negligence only where actual damage to person or to property results from carelessness in the course of construction. If any defect is discovered before any such damage occurs the loss sustained by the owner of the building the cost of putting right the defect is purely economic
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4.8. Baxall Securities Ltd and another v Sheard Walshaw Partnership and others [2002] EWCA Civ 09
4.8.1. Facts of the case
The appellant firm of architects had been employed by Berisford Property Investments Ltd in relation to the design and construction of an industrial unit in the early 1990s. Following the grant of a lease, the respondent tenants became the occupiers in 1994. They did so after receiving advice from their surveyor, LSH, that there had been problems with the gutters, and that they should be cleaned out and the landlord asked to investigate. In May and September 1995, the unit was flooded after the valley gutter and its associated drainage system failed to cope with heavy rainfall. The respective experts accepted that the gutter had a fundamental defect: it did not have overflows. Because of the design of the gutter and roof, traditional weir overflows were impractical, but upstanding pipes at intervals along the gutter would have been an acceptable alternative. It was accepted that the appellant, in issuing the relevant building contract certificates, ought to have addressed the absence of overflows to the gutter.
The respondents brought proceedings for negligence against the appellant, alleging that the valley gutter had two latent defects, namely the absence of overflows and a shortfall in design capacity. In the court below, the judge found that the appellant ought to have questioned the specialist roof contractor's designs. He held that the appellant was not liable for the first flood, since this was caused partly by blockages and partly by the absence of overflows, which were patent defects. However, he found the appellant liable for the second flood, because this was attributable partly to the patent absence of overflows and partly to a latent shortfall in design. He also decided that the absence of overflows ought reasonably to have been discovered by LSH. The appellant appealed, and the respondents cross-appealed. 86
4.8.2. Judgment of the case
The respondents' case was that, as a result of want of care on the part of the appellant, the valley gutter had two latent defects: first, the absence of overflows, and, second, a shortfall in design capacity for the rainfall to be expected in the area. The appellant's case was that there was no shortfall in design, the absence of overflows was patent, and, in any event, both floods were attributable to blockages that should have been cleared by the respondents. Relation between appellant and respondent is as Architect and third party
If the surveyor acting for the respondents had been using reasonable care, it would have discovered the absence of overflows to the gutter. A latent defect means a concealed flaw such as an actual defect in the workmanship or design, not the danger presented by the defect. Defendants were not in a proximate relationship to the claimants because there was a reasonable opportunity to inspect. A reasonable opportunity for inspection that would unearth the defect will usually negative the duty of care and break the chain of causation.
Actual knowledge of the defect or, alternatively, a reasonable opportunity for an inspection that would unearth the defect, will usually negative the duty of care, or at least break the chain of causation. The chain of causation between the architect's error with regard to the provision of overflows and both floods was broken
The absence of overflows was of causative importance, even though there was a shortfall in design, which was a latent defect. The appellant was therefore not liable for either flood. Defendants are not liable for plaintiff damage. 87
4.9. Hawkins v Chrysler (UK) Ltd and another [1986] BTLC 351
4.9.1. Facts of the case
The first defendant instructed the second defendant to design a shower room with ancillary equipment, which required the provision of a new floor. The second defendant did not supply the floor or lay it but gave advice on the suitability of the floor. Thirteen months after the work was completed the plaintiff slipped on the new floor and was injured. His claim against the first defendant was settled by a payment of damages. The first defendant then proceeded to claim against the second defendant, alleging that the second defendant had failed to use reasonable care and skill in the selection of the material for the floor and was in breach of an implied warranty to provide a floor surface which would be fit for use in a wet shower room.
In deciding which flooring to use the second defendant had considered the manufacturer's brochures, which stated that the flooring was suitable for use in wet areas, and had also discussed the question with a flooring specialist. No direct discussions were held with the flooring manufacturer. At the hearing the second defendant accepted that it was its job to provide a floor as safe as it possibly could. The judge held that, although the second defendant had not been negligent in the choice of floor, it was in breach of an implied warranty of fitness of purpose in the provision of a safe floor. The second defendant appealed to the Court of Appeal.
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4.9.2. Judgment of the case
The plaintiff, George Hawkins, brought an action for damages against the first defendant, Chrysler (UK) Ltd (Chrysler) after he slipped on a wet floor at Chrysler's premises and sustained injuries. Following the issue of a third party notice against Burne Associates (Burne) in which Chrysler claimed indemnity against the plaintiff's claim, Burne was joined as second defendant. The plaintiff's claim against Chrysler was settled by the payment of damages. At the hearing of the issue between Chrysler and Burn on 9 November 1984 his Honour Judge Toyn, sitting as a judge of the High Court, ordered Burne to pay Chrysler damages of £4,800.46. Burne appealed to the Court of Appeal for an order that judgment be set aside and judgment entered for Burne. The facts are set out in the judgment of Fox LJ. Relationship between appellant and respondent as Consultant Engineers (2nd defendant) and third party person (plaintiff). Consultant Engineer hold duty because he advised on the type of finishes to use.
On the facts, no warranty about the fitness for the use of the floor could be implied because the second defendant's statement that it would make the floor as safe as it possibly could was based on the second defendant's knowledge and skill in engineering and did not amount to a guarantee of a particular result. Consultant Engineer were under an obligation to exercise reasonable skill and care. The engineer takes all the necessary actions for the work.
Since the second defendant had used reasonable care and skill in the choice of flooring, and since it was not necessary to imply a warranty in order to give the agreement business efficacy, the appeal would be allowed. There is no breach made by the consultant engineer because he has exercise reasonable skill and care. Even though that the Plaintiff suffered an injury, that injury does not come from the defendant action. Defendant never breaches his duty as professional
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Furthermore, the warranty implied by law required of a person who supplied an article or structure, that he guaranteed its fitness for its intended use, was not generally required of a professional adviser who was not supplying anything, and such a person was required only to exercise reasonable care and skill.
4.10. Rsp Architects Planners & Engineers (Raglan Squire & Partners Fe) V. Management Corporation Strata Title Plan No 1075 & Anor
4.10.1. Facts of the case
On 20 November 1992, bricks and brick tiles forming part of a gable end wall of the Gemini block of the Eastern Lagoon II Condominium fell onto the roof of a unit in the neighboring Libra block of the same development, causing damage to the roof and contents of the latter unit. In the court below, the first respondents commenced an action against the architects of the development for, inter alia, the cost of repair and the cost of rectifying all similar walls in the development, alleging that the architects had been negligent in their design and/or their supervision of the construction of the development. The architects joined as third parties the main contractor for the development alleging that the walls had failed because the main contractor had been negligent in their construction.
The learned trial judge allowed the first respondents' claim and dismissed the third party action. The architects appealed against the trial judge's decision, contending that (1) they owed no duty of care to the management corporation; (2) alternatively, that if such a duty was owed, the standard of care had not been breached and the trial judge 90 had erred in fact in concluding that the primary cause for the failure of the walls was a design flaw attributable to the architects and (3) that the trial judge had erred in dismissing the third party claim.
On the first question, it was argued that the court's earlier decision in RSP Architects Planners & Engineers v Ocean Front Pte Ltd [1996] 1 SLR 113 was wrongly decided, since it approved of a single general rule for recoverability and also premised the existence of a duty of care on foreseeability alone. Furthermore, the court in OceanFront had erred in deciding that a duty of care existed when there was in fact no reliance by the plaintiff upon the defendant in that case. The court was invited to overrule its decision in Ocean Front. Alternatively, it was argued that special care must be taken in imposing duties of care upon professionals, and that a high degree of reliance must be present before such a duty may be imposed, particularly where the loss was economic in nature, as in the instant case.
4.10.2. Judgment of the case
This appeal arose from an action instituted by the first respondents, the Management Corporation Strata Title Plan, against the appellants, RSP Architects Planners & Engineers, claiming damages for negligence in the design and supervision of the construction of a condominium called Eastern Lagoon II situate at East Coast Road. RSP while denying liability took out third party proceedings against the second respondents, Engineering Construction Ltd who were the main contractors of the condominium, claiming against them an indemnity or contribution. The action was heard before Judith Prakash J. She allowed the claim of Management Corporation against RSP 91 and dismissed RSP's claim against Engineering Construction. Against her decision RSP appealed.
In respect of the common property the architects knew that the management corporation would be in charge and would be managing the common property and would depend on their care and skill in the design and supervision of the construction of the common property. In such a situation there was sufficient degree of proximity in the relationship between the management corporation and the architects as would give rise to a duty on the part of the architects to avoid the loss as sustained by the management corporation in this case. As for the existence of Duty of care, Proximity between defendant and plaintiff is close, so the duty arises. Foreseen ability of the damage by architect if the design is defective and the architect owed duty of care.
Defendant in breach of duty because failed to exercise reasonable skill and care and does not take necessary measure for the work.
Economic loss stemming from defects in building design or construction ought not to be treated similarly to defects in consumer goods, since buildings are distinguishable from consumer goods in two vital respects: the scale of the investment involved in the purchase of real property and the greater expectation attached to a structure of permanence. Plaintiff suffered damage from defendant breach; thus defendant is liable for the damage. The judge was justified in making the findings that the architects had not met the standard of care demanded of them, and there were no grounds for disturbing her findings.
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4.11. Sansom and another v Metcalfe Hambleton & Co [1998] 2 EGLR 103
4.11.1. Fact of the case
The plaintiffs bought 8 Claypark Terrace, Byter Mill Lane in Devon in July 1992 for £70,000. Before doing so, they instructed the defendants to survey and report upon the structural condition. The present action was based on alleged negligence by the defendants in completing this report.
The site of No 8 Claypark Terrace rises steeply from the lane to the front of the house. In about 1988 a retaining wall had been built to support the vertical cliff created by the excavation of a car parking space along the front boundary with the lane and the infilling behind it produced a more or less level terrace garden behind the wall. There was a flight of steps rising from the car park to the terrace and a small wing wall running from the back of the retaining wall to the top step. This wing wall was not an integral part of the retaining wall and had no structural significance.
The plaintiffs alleged that the retaining wall was defectively designed and the experts who gave evidence both for the plaintiffs and for the defendants accepted that the retaining wall was not adequately designed and constructed. The principal issue was whether there was anything in the condition of the premises in 1992 which ought to have indicated that the retaining wall was inadequately designed and constructed.
The plaintiffs did not lead evidence by a chartered surveyor as to the standard of skill and care to be expected of the surveyor asked to survey such premises in 1992 and relied on evidence led by the expert structural engineer. This evidence was accepted by 93 the trial judge as establishing failure by the defendants to achieve the appropriate standard of care. The defendants appealed.
4.11.2. Judgment of the case
On 16 June 1996 in the Exeter County Court his Honour Judge Overend gave judgment in favour of the plaintiffs, Miss Sansom and Mr Monaghan (the owners) against the defendants, Messrs Metcalfe Hambleton & Co, chartered surveyors, for the sum of £7,500 and costs on their claim for damages for negligence by a partner in the defendant firm, Mr Brown. He was instructed to survey and report upon the structural condition of No 8 Claypark Terrace, Byter Mill Lane, Devon in July 1992, which the owners were contemplating buying, and following his report did buy for £70,000. The claim for £7,500 was based on alleged diminution in value referable to the need to do works to a retaining wall at the front of the property, and no point arises on this appeal as to the amount of the award.The appellant surveyors' contention is that the judge should have dismissed the claim.
The case is in a sense complicated by the fact that both the engineers who gave evidence (Mr. Gannon for the owners and Mr. Stow for the surveyors) accepted that the investigations which were carried out following discovery of the crack demonstrated that the retaining wall was not adequately designed or constructed. There were some differences between them as to the details of the defects, but the most important disagreement was about whether there was in 1992 anything to indicate that the retaining wall was inadequately designed or constructed, and (a closely related point) whether Mr. Brown if he had seen the crack should have undertaken or procured a structural engineer to undertake further investigation which would have had that result. 94
Mr. Aldous, on behalf of the appellant surveyors, submitted that the failure of the owners to call a chartered surveyor to give evidence of the standard of skill and care to be expected of a surveyor asked to survey and report on the structural condition of the house and whether Mr. Brown fell below such standard was fatal to their claim in professional negligence against the appellant surveyors. The judge did not have the evidence upon which he was able to make a finding of negligence. The evidence of Mr Gannon was relevant to the state of the retaining and wing walls, but Mr. Gannon was not qualified to express an expert opinion upon the practice accepted at the time as proper by a responsible body of chartered surveyors, (not structural engineers) skilled in the task of undertaking structural surveys.
The question that needs to be addressed is whether Mr. Gannon, a chartered structural and chartered civil engineer, is a suitably qualified person to show what a competent surveyor could reasonably have been expected to know and do when carrying out a structural survey for would be purchasers? Put another way, must an allegation of professional negligence against a chartered surveyor fall, unless there is evidence from a similarly qualified chartered surveyor to the effect that cracking would have been noticed and as a result a structural engineer should have been called in?
In the present appeal, I am satisfied that the judge did not have the evidence upon which he would have been able to make a finding of professional negligence against Mr. Brown. First, I do not consider that this was such an obvious case that there was not room for two views of the relevance of the crack and the steps, if any, which ought to have been taken in July 1992.
Consequently the judge did not have relevant and admissible evidence from the owners to show failure by Mr. Brown to comply with the standard of skill and care to be exercised by a competent surveyor instructed by the owners. The judge failed to apply the correct test. If he had done so, he would have been driven to the conclusion that the 95 owners had failed to prove their case. In my Judgment the first ground of appeal is well founded and I would allow the appeal. Although there was no absolute rule that negligence by a chartered surveyor should be proved by expert evidence by a chartered surveyor, there was no doubt that the general rule was that professional negligence should be proved by expert evidence given by a member of the appropriate profession. In the circumstances, the evidence led by the plaintiffs was inadequate to establish negligence by a surveyor appointed to carry out a report for a potential purchaser.
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4.12. Summary of decision in law cases Table 4.1: Summary of decision in law cases
No. Law Case Decision
• The contract between the plaintiffs and the defendants is one of performance of 1. Lim Teck Kong v Dr Abdul services by professionals who have described themselves as consulting civil and Hamid Abdul Rashid & Anor structural engineers. Plaintiff owes duty of care to defendant. [2006] 3 MLJ 213 • Any persons declaring themselves to be such must reasonably and equitably are expected to take reasonable care and skill in the performance of their craft. • The legal principles to be applied in this claim of negligence against the defendants must certainly be that of Bolam v Friern Hospital Management Committee since this is a claim based on professional negligence. • The failure of defendants to determine the soil condition to a high degree of certainty was a breach of the implied term of its appointment to take reasonable care. Other failures on the part of the defendants were clear breaches of professional duties. Defendants were therefore liable for breach of contract • Based on similar grounds as those stated earlier under the cause of action for breach of contract, the court hereby finds that defendants liable to the plaintiffs for negligence.
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• Whether defendant misrepresented himself as to his qualification makes little 2. Steven Phoa Cheng Loon & Ors difference to the duty of care he owes to the plaintiffs. If a man is unqualified V Highland Properties Sdn Bhd but holds himself out to possess a skill, he will be judged by the standards of a & Ors [2000] 4 Mlj 200 reasonably competent qualified person. • At the time when this defendant exercised his duty as an architect for the Highland Towers Project he must have foreseen that the apartments he built would be sold, and purchasers, their servants and or agents would be occupying them. Thus these purchasers would be closely and directly affected by his acts or omissions. • By this, the court found a duty of care existed between the second defendant and the plaintiffs and from the facts of the case; it was obvious that the second defendant had breached his duty of care to the plaintiffs. • When you had a hill so close and acute then the third defendant should have reasonably foreseen, judging by professional standard as an engineer responsible for the structure, the danger of a landslide producing a lateral load against the foundation of the building. • For this, he should have exercised care to either design or construct a foundation to accommodate lateral load or ensure that the slope was reasonably stable. • The second defendant had failed in his duty as an architect and had also refused to comply with the requirements imposed by the authorities on the drainage of 98
the area. • The claim for pure economic loss in this country can be maintained against a defendant. On this contention of the second defendant who relied on this defense of pure economic loss, suffice me to say that it must fail on the same reasons expressed in the case of Dr Abdul Hamid Abdul Rashid. • The defendant was proving to be negligence based on breach of their professional duties to take reasonable skill and care • As an Architect, all of the design holds duty to the Architect because faulty 3. Kelly v. Sir Frank Mears & design can bring harm to other people. It is said that they were bound to use care Partners (1983) Sc 97 and skill of reasonably competent architects in designing the building. • In order to establish a coherent chain of causation it is not necessary that the precise details leading up to the accident should have been reasonably foreseeable: it is sufficient if the accident which occurred is of a type which could have been foreseeable by a reasonably careful person. • That being so, defenders ought reasonably to have foreseen that the glass panel might not be of adequate impact resistance to prevent him from falling through the panel and thereby sustaining injuries. • The Code contains warnings regarding risks which may be encountered in connection with the use of glass, and inter alios no architect could be regarded as acting with ordinary skill and care if he departed from the recommendations in 99
the Code without being able to justify his departure, or ignored the Code altogether.
• Unless expressly provided for in the contract of engagement, the consulting 4. PB Malaysia Sdn Bhd v Samudra engineer owes no duty to design advice or supervise the contractor on his choice (M) Sdn Bhd [2009] 7 MLJ 681 of the working method or sequence of construction or to offer a technical solution where the contractor has committed an error or is otherwise confronted with difficulties. • The law does not usually imply a warranty that he will achieve the desired result, but only a term that he will use reasonable care and skill. • But a man may use skill and care, he may do all that in the circumstances could reasonably be expected of him, and yet produce something which is faulty because it will not answer the purpose for which it was intended. His product may be faulty although he is free of blame. • The defendant has failed to prove that the plaintiff was in breach of its duties owed to the defendant in tort. Even if the defendant has proven breaches of duties by the plaintiff, the defendant has failed to prove any losses sustained from the alleged breaches. • Although it is not for the plaintiff to disprove the defendant's action of negligence, in this case, the plaintiff has produced actual and cogent factual and 100
expert evidence by way of credible witnesses and contemporaneous supporting documentary evidence that there was no negligence on the plaintiff's part.
• In accordance with the principle in Donoghue v. Stevenson the architects owed a 5. Clayton V. Woodman & Son duty of care to the bricklayer in regard to instructions given to him owing to the (Builders), Ltd. And Others. close relation between him and them in the circumstances of this case Queen's Bench Division • The architect certainly knew that his instructions would be promptly obeyed and [1961] 3 All Er 249 equally certainly should have realized that in the existing circumstances they would probably lead to the bricklayer's serious injury or death. • Having regard to the exceptionally close relationship between the architect and the bricklayer on the particular facts of this case, the law to my mind imposed a duty on the architect to take reasonable care for the safety of the bricklayer. Had he exercised any such care, he would not have issued the instructions. • Had the architect exercised any such care, he would not have issued the instructions. But because of his instruction, plaintiff suffers a damage and injury. This clearly breach of duty by the architect by failure to advise the builder. • The judge hold defendant was under a duty to use reasonable care, that he failed in that duty and that his negligence was a cause of the plaintiff's damage.
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• The judge has reached the conclusion that in law there can be a duty of care 6. Lancashire and Cheshire actionable in the tort of negligence where the parties are in a contractual Association of Baptist Churches professional relationship. Inc v Howard & Seddon • In the present case the defendants were the employers of the workmen who Partnership [1993] 3 All ER 467 carried out the work. It is indeed exceptional for an architect to be the contractor. However, the plaintiffs' real complaint in this case is about design, not workmanship. There cannot be a duty on defendant to take care not to cause economic loss. Thus no breach has occurred. • The builder of a building is liable at common law for negligence only where actual damage to person or to property results from carelessness in the course of construction, and that if a defect is discovered before any such damage occurs the loss sustained by the owner of the building the cost of putting right the defect is purely economic. There fore there is no real damage is done in this case. • Plaintiff failed to prove that defendant actually negligence while carrying his work just mere by the unsatisfactory of plaintiff of the design of the work. • Appellant and respondent has no contractual duty; even so, appellant actions 7. Baxall Securities Ltd and another could directly affect the respondent. Thus it is under the neighborhood principle v Sheard Walshaw Partnership that appellant is liable for respondent. and others [2002] EWCA Civ 09 • The claimants had the opportunity to discover the absence of overflows by reasonable inspection by professional advisers who might reasonably be 102
expected to be instructed: whether that reasonable opportunity in fact revealed the defect is irrelevant. • Because there was a reasonable opportunity to inspect, the defendants were not in a proximate relationship to the claimants so far as concerns defects which could have been discovered by that inspection, namely, the absence of overflows. Neither the claimants nor their surveyors could reasonably be expected to have discovered the under design of the drainage system. • alternatively, a reasonable opportunity for inspection that would unearth the defect, will usually negative the duty of care, or at least break the chain of causation unless it is reasonable for the claimant not to remove the danger posed by the defect and to run the risk of injury. • Without the overflow, the gutter cannot handle the rain and cause the flood. Because of the respondent should have time to inspect or notice that the overflow was absent, appellant had not breach his duty because of under design. • The damage done to the plaintiff building was not resulting from the defendant breach in exercising reasonable skill and care. Plaintiff has enough time to inspect the problem from the building and take reasonable precaution to the danger. • Thus the Architect is not negligence in his work that causes the purchaser to suffer damage. 103
• On the facts, no warranty about the fitness for the use of the floor could be 8. Hawkins v Chrysler (UK) Ltd and implied because the second defendant's statement that it would make the floor as another [1986] BTLC 351 safe as it possibly could was based on the second defendant's knowledge and skill in engineering and did not amount to a guarantee of a particular result. • He made an inquiry of a sub-contractor who was a specialist in this field and that was the basis on which it was done. In other circumstances other considerations might have applied. • The warranty implied by law required of a person who supplied an article or structure, that he guaranteed its fitness for its intended use, was not generally required of a professional adviser who was not supplying anything, and such a person was required only to exercise reasonable care and skill. • There is no clear breach of any duty of kind because the Consultant Engineer has done what is expected from them as a professional. • There was ample evidence on which he could so conclude no reason to suppose that he misdirected himself in his analysis of the evidence before him. Thus the defendant is not negligent while carrying his work. • The defendants knew or ought to have known that if they were negligent in their 9. Rsp Architects Planners & design or supervision the resulting defects would have to be made good by the Engineers (Raglan Squire & management corporation. Partners Fe) V. Management • It was obviously foreseeable by the defendants that if they were negligent in the 104
Corporation Strata Title Plan No design of the condominium, this could result in expensive rectification work and 1075 & Anor therefore economic loss for either or both the subsidiary proprietors and the management corporation. • In such a situation there was sufficient degree of proximity in the relationship between the management corporation and the architects as would give rise to a duty on the part of the architects to avoid the loss as sustained by the management corporation in this case. • The learned judge also found that the general failure of the claddings was contributed by the method of adhesion adopted, a simple cement and sand mortar base without the use of a reinforcement mesh or additives in the mortar. Based from all the evidence, the Architect is in breach of his duty because does not exercise reasonable skill and care for the work. • The damage occurred because of the Architect failed to exercise reasonable skill and care and in breach of their duty. Thus liable for the damage. • The court held that the previous court was right that the Architect was negligent because he failed to exercise reasonable skill and care. Thus the architect negligence, plaintiff suffered damage, the Architect is liable for that damage.
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• The failure of the owners to call a chartered surveyor to give evidence of the 10. Sansom and another v Metcalfe standard of skill and care to be expected of a surveyor asked to survey and report Hambleton & Co [1998] 2 EGLR on the structural condition of the house and whether Mr. Brown fell below such 103 standard was fatal to their claim in professional negligence against the appellant surveyors. • A court should be slow to find a professionally qualified man guilty of a breach of his duty of skill and care towards a client (or third party) without evidence from those within the same profession as to the standard expected on the facts of the case and the failure of the professionally qualified man to measure up to that standard. • Consequently the judge did not have relevant and admissible evidence from the owners to show failure by Mr. Brown to comply with the standard of skill and care to be exercised by a competent surveyor instructed by the owners. • The judge failed to apply the correct test. If he had done so, he would have been driven to the conclusion that the owners had failed to prove their case. In my Judgment the first ground of appeal is well founded and I would allow the appeal.
4.13. The criteria for negligence
In order for the claim for negligence to succeed, the element of negligence needs to be proved. How does the judge prove that the element existed is based on the criteria that suits the nature of the negligence claims. The analysis of the selected cases suggested that the criteria to determine that a professional man is negligent in carrying out their duties are as follows:
1. There must be a duty of care between the plaintiff and defendant either in tort or under contract of professional services by expressed or implied term and that defendant has breach that duty.
2. The allegation of professional negligence brought under tort must prove that the alleged person have close proximity to the injured party and can directly affect them.
3. A professional man does not owe a duty of care to prevent any pure economic losses.
4. The alleged person must be judge based on scope of duty of their relevant profession even if he is not qualified person he would be liable if he claimed to be a professional man.
5. The actual damage sustained must be foreseeable by the alleged person and must not be too remote.
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6. The alleged person must exercise reasonable skill and care for their relevant profession and if not, he will be considered breach his duty of care.
7. All professional must comply with all building by-law and he will be considered as negligent in discharging his duty if he fails to comply with the by-laws.
8. Professionals must follow all normal procedures for the particular situation while carrying out the work as a normal competent professional should.
9. Standard of care of that alleged professional must be evaluated from the person or bodies of the same profession.
10. Defect or error does not necessarily consider as negligence for the alleged person.
11. The duty of care is broken when plaintiff had reasonable opportunities for inspection that would unearth the defect and break the chain of causation.
12. The actual damage must be real to building and does not consist of latent defect and any physical injury or death to person.
13. It must be shown that the particular acts or omissions by the defendant were the cause of the loss or damage sustained by the injured party.
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4.14. Conclusion
Based on the finding, it can be concluded that the first criteria on determining negligence is the Professionals need to owed duty of care the injured party and had breach that duty. The nature of construction industry that each professional is under contract as professional service makes the claim under breach of contract is much clear and duty of care existed in those contract. By contract alone is sufficient to prove that the duty of care existed between the parties. But not the entire claim for negligence is brought under the contract because some cases are involving third party such as occupant of the house or subsequent purchaser which construction professional has no contractual relationship with. Thus an action under tort is brought.
The duty of care is breach by considering the reasonable skill and care by the professional by means of expert evidence, requirement and regulation and the scope of duty of his profession. Because of the construction industry involves lots of technical aspects in the work, so the criteria for reasonable skill and care are a bit deeper then normal person negligence. That involves all the statue, building by-law, requirement and regulation by state authority that need to be comply by construction professional.
Such evidence will be use from the expert witness’s evaluation and report from the same profession or bodies. Then the plaintiff needs to prove that the breach is the direct cause of the damage act by defendant action. The damage must be real damage like damage to building or injury to person or the negligence claimed would not succeed.
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Chapter 5
Conclusion and recommendation
5. Introduction
The problem regularly faced by construction professionals is that sometimes accidents happen, and even highly skilled, very conscientious people do make mistakes. Some professions come with a high potential risk of being sued for professional negligence because they are risky professions to begin with. The high risk profession is always being targeted by claims for any malpractice or negligence in doing the work. But the element of negligence needs to be proven first for the claim to succeed. The judge criteria are based on the theory of negligence, case law and the nature of the claims. This 110
chapter will concluded all of the finding in judge criteria on how negligence is being proved by professionals.
5.1. Criteria for negligence
As the finding of this research from the previous chapter, there are twelve criteria use in order to prove professional negligence by the court in construction cases. The first criteria is to prove the existence of duty of care, judge will look into whether the alleged person has any relation in tort and contract to ascertain their duty. Then also the qualification and scope of duty is use to determine if alleged person owed duty to the plaintiff. Then the damage must be foreseeable and not to remote.
After the defendant is proved to owed plaintiff duty then the judge look whether that duty has been breach. It is by looking if the professional has reasonable skill and care and follow all of the regulation and requirement. By means of expert witness evidence and report then the judge know whether the work is the general practice for that particular profession. Then the last one is there is actual damage is done whether is damage from property or building or injury that comes from defendant breach. If there is no damage, even there is a breach then negligence cannot be established.
If all of the criteria is proven by the court by all of the facts and evidences, then the professional is negligence while conducting his work and does not takes the necessary steps to prevent it. Even if one of the criteria failed to be proved by claimant, then negligence cannot be established. 111
5.2. Recommendation
This analysis is done by analyzing ten case law from United Kingdom, Malaysia and Singapore. A lot more cases should be included in the future research to strengthen the finding and giving more detailed perspective in professional negligence in construction industry. Because of the nature of construction industry that involved more technical aspect that makes the negligence area in this industry a bit complicated. Professional negligence in construction industry is a developing area of jurisprudence and the principle always shift with the flow of time.
5.3. Conclusion
The criteria concluded from the analysis shows that the research objective has been successfully achieve by listing twelve criteria from the previous chapter. This criterion is a general guideline in determining negligence for construction professionals. This will help summaries the entire element in negligence and the nature of construction industry for a professional to be able to have a full grasp of all the method on ascertaining professional negligence by the judge. This finding will help construction professional to understand the legal aspect of their work in the area of negligence.
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