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.
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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