Professional and Design Liability
BE0892 Practice Specialisation
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
Liabilities co-exist, also with overlaps between categories
• 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 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 
• “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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