Professional and Design Liability

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Professional and Design Liability
BE0892 Practice Specialisation

Professional Liability
Liability for injury, including bodily or personal injury or death, and property damage arising out of the negligent act or omission of a professional, ie, pharmacist, physician, attorney, architect, engineer, in performance of their professional activities.

How can liability arise?
Contract Tort Statute and regulations e.g. Supply of Goods and Services Act, Building Regs.

Express terms Implied terms

Negligence ‘Nonnegligence’

Liabilities co-exist, also with overlaps between categories

Negligence
• The omission to do something that a reasonable person would do; or doing something that a reasonable person would not do. • Duty of care owed. • Breach of that duty of care. • Test is whether person has matched the abilities of a reasonable person.

Professional Negligence
• Professional person is presented as having special or particular abilities that are common to that profession. • Test of breach of duty is whether professional person has matched the abilities of an ordinarily competent member of that profession.

Level of duty of care
• “Reasonable skill and care” is the normal level of expected performance. – Bolam v Friern Hospital Management Committee [1957]

• “Fitness for purpose” is a higher level duty of care. For example: – when a builder selects and supplies materials, he warrants that they will be ‘fit for purpose’. – when a designer provides a service, he guarantees to exercise ‘reasonable skill and care’.

Defective Premises Act 1972
• Duty to carry out the work in a workmanlike manner and with proper materials, so that the dwelling will be “fit for human habitation”. • Applies to dwellings, not commercial premises. • Applies to architects as well as builders, but not to inspectors or valuers. • Excludes dwellings subject to approved schemes, e.g. NHBC.

Duty to Warn
• Plant Construction v JMH Construction (2000) • Should a competent contractor, exercising care and skill, be expected to discover a design defect in the course of constructing the works? • If yes, the contractor may breach its contractual duty of care in failing to notify. • Therefore err on the side of caution: notify any design defect as soon as it comes to the contractor’s attention. http://www.jrknowles.com/upload/files/Duties_to_Warn.pdf

Duty to warn (cont’d)
• Upon becoming aware of a dangerous and deficient design a contractor owes a duty to the employer to warn them of the situation. • Merely pointing out a dangerous and deficient design is not enough in itself; a more strident approach seems to be needed. • The designer of the permanent works, if supervising their execution, owes a duty to warn the contractor of dangerous and deficient execution of any temporary works. (Hart v Fidler, 2007)

Design and Build
• With regard to construction, a contractor is under a duty to carry out and complete the works in a proper and workmanlike manner, with all proper skill and care. • With regard to design, a contractor’s obligation is less clear. • JCT D&B2011 clause 2.11 states that the contractor does not have responsibility for verifying the accuracy of the design as contained within the Employers Requirements.

Design and Build (cont’d)
• Implied duty that contractor will design and construct a building that will be reasonably fit for purpose (IBA v EMI and BICC, 1980). • However clause 2.17.1 expressly limits design liability to reasonable skill and care. • When using the NEC3 ECC, for “reasonable skill and care” level of duty for design, need to adopt the secondary option clause X15. Otherwise a “fitness for purpose” obligation will be implied by law. • Professional indemnity insurers will not normally provide cover to the level of fitness for purpose.

Effect of final certificate (JCT SBC11)
• Under the JCT Standard Form of Contract 2011 the final certificate is conclusive evidence of the following: •...
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