As also identified in Part 1 of this article; 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. Although important this is just one consideration in establishing negligence. Over many years through the doctrine of Judicial Precedent, case law has developed a method of establishing negligence based upon decisions made in previous cases. The landmark case of Donaghue v Stevenson (1932) established the modern version of negligence and set a precedent for the main principles of establishing negligence and ‘the neighbour test’. It is not the purpose of this article to discuss the circumstances or detail of the case, as this is information is widely published however it is worth exploring the principles that arose from the case and how negligence is measured and proved.
As a construction professional it is always worth thinking about your activities and asking yourself if you are meeting your duty of care and acting reasonably. The measure of reasonableness of a built environment/construction professional will be established in a number of ways. Firstly, by the standards set within an individual’s particular profession. Then, if a mistake has been made and if an appropriately qualified and experienced person taking reasonable care would not have made the mistake, then the professional person may be liable in negligence. To establish what are reasonable standards in a profession, either the plaintiff or defendant can call an eminent practitioner to give evidence in Court as an expert witness, which is another measure of reasonableness.
How can we reduce the risk of negligence claims? - The tort of negligence can be a legal minefield for all professionals and something that should not be underestimated. Before undertaking any professional services it is worth establishing precisely what is expected for your fee, a robust scope of services and knowing exactly who the services are being provided for and who will be relying on your advice. This may sound simple and obvious to many however it is these simple things that can help to avoid confusion and reduce the possibility of cutting corners and of possible negligence claims in the future.
Underestimating a fee or confusion over the scope of services does not diminish a professional’s responsibilities in respect of duty of care, and this would certainly be a very weak defence if a claim for negligence was brought by a Client. Acting with watchfulness, attention, caution and prudence will help to avoid these types of scenario, however in the fast paced World of commerce where everything seems to be done at 100mph, sometimes working to impossible deadlines, it is easy to see how we can sometimes ‘drop the ball’. Good robust quality assurance procedures will help to identify issues/mistakes before they leave the office, however it is also worth reviewing and training staff on an ongoing basis to improve knowledge and competence, all of which will help to minimize the risk of negligence (and other) claims in the future. How much of this are you or your organization currently doing? Something to think about maybe?
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