Sunday, December 7, 2014

Negligence – Part 1 – An Introduction - Construction & Built Environment

As professional people our Clients pay for our services with the expectation that we will provide a high quality service and give good appropriate advice.  In the event that we do not meet this expectation and our Clients suffer some loss or ‘damage’, then they may attempt to recoup any losses through the courts

Professional people should have a good understanding of the law and especially those areas of law which are relevant to their own particular field.  There are however some areas of law that are better know and understood than others. Law (in general terms) does not discriminate between specific professional roles and practices. Moreover it relates to the manner, conduct, attention to detail and professionalism in which we undertake our day to day professional duties. Yes, there will undoubtedly be ethical standards and codes of conduct to follow which may vary from profession to profession, however the underlying principles will be the same.  These ethical standards provide a level of protection however they will not make a professional immune from acting and becoming negligent.

As professional people our Clients pay for our services with the expectation that we will provide a high quality service and give good appropriate advice.  In the event that we do not meet this expectation and a loss or ‘damage’ is suffered, then our clients may attempt to recoup any losses through the courts.  A particular area of law where professional people can find themselves brought into question in this respect is the Tort of Negligence. For the remainder of the article I will refer to the role of the built environment professional however the principles of negligence are relevant to all professional roles. I will introduce negligence and consider how it is defined and how it is measured and in part 2 I will discuss the main ‘ingredients’ necessary to prove negligence.

A quick internet search provides numerous definitions for negligence. states negligence as ‘failure to use a reasonable amount of care when such failure results in injury or damage to another’ and provide; ‘the failure to use reasonable care. The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances. A departure from what an ordinary reasonable member of the community would do in the same community’. These definitions are interesting because throughout you will notice the word ‘reasonable’ or the term ‘reasonably prudent person’.  In order to assess whether a person has acted negligently the courts will consider a person’s conduct and actions against how a reasonable person would act in the same circumstances. As a construction/built environment professional, this assessment will consider whether an experienced person taking reasonable care would not have made the same mistake, then the professional person may be liable in negligence. This is worth thinking about when carrying out our day to day duties and why it is so important to act with professionalism, vigilance and attention to detail at all times.  I wonder how many of those who have been found liable in negligence, with hindsight will wish they had paid closer attention to these things.

An important factor of negligence is that a defendant (the person accused of negligence), does not intend for the bad consequence to happen.  If intent could be proved (the courts refer to this as mens rea, which is a latin term meaning ‘a guilty mind’), then this would more than likely result in a criminal prosecution and not a civil action.  There are however circumstances where a person can face a criminal action and later also face a civil action from those who have suffered the consequences of a negligent act.  As an example let us think about a passenger injured in a motor vehicle collision.  Drivers do not generally get into their vehicles each day with an intention to injure, however road traffic collisions occur on a regular basis.  A driver who exceeds the speed limit may face a criminal prosecution under the Road Traffic Regulations Act 1984, which could lead to a fine or imprisonment depending upon the severity of the offence. In addition the driver may also face a civil action in negligence from the passenger who was injured in the collision (or anyone else who is injured in the incident). This interaction between criminal law and civil law (in our example, negligence) is also something that can occur with the construction/built environment professions and something that all working in the sector should be conscious of.

It is not necessary to search too far to find examples of where construction/built environment professionals have been found to be negligent. One such example is the case of Theodore Goddard v Fletcher King Services (1996). Fletcher King had overall responsibility for a commercial letting. Theodore Goddard (Solicitors), which drafted the lease, accidentally deleted the upwards-only rent review clause. A Surveyor at Fletcher King reviewed the draft lease but did not notice the error. The judge found that although the Solicitor had primary liability for the terms of the lease, the amendment to the clause was 'such a blunder' that an experienced Surveyor should have noticed the deletion. The Surveyor was ordered to contribute 20% of the loss. This decision has potentially wide-ranging consequences for professionals who work together on a transaction and have some input in one another’s drafting, a common relationship between construction/built environment professional and legal professional.

In Part 2 I will discuss negligence in more detail and consider the main ‘ingredients’ necessary to prove negligence and in particular ‘duty of care’ and how this relates to the construction/built environment professional.  I will also discuss the famous case of Donaghue v Stevenson (1932), and how the decision in this landmark case formed the modern tort of negligence as we know it today.

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