Sunday, January 11, 2015

Negligence – Part 2 – Reducing the risk of negligence claims

There are a number of areas of civil law or tort which may be considered by an ‘injured’ party such as Nuisance, Trespass and numerous others however in many cases built environment/construction professionals find themselves defending a claim in negligence.

In Part 1 (Link) of this article I explained how the tort of negligence is particularly relevant to the role of the built environment/construction professional and why it so important to act with professionalism, vigilance and attention to detail at all times.  The consequences of not doing this could result in a mistake/omission/error, albeit unintentionally and may lead to a loss, damage or injury occurring.  If this does happen then an action may be sought in negligence to recover the loss. There are a number of areas of civil law or tort which may be considered by an ‘injured’ party such as Nuisance, Trespass and numerous others however in many cases built environment/construction professionals find themselves defending a claim in negligence.

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.

In order to establish negligence there are four main ingredients for which all need to be proved. If just one of these are missing or cannot be proved then any action in negligence will fail.  Firstly, a duty of care must be owed to the plaintiff (the ‘injured’ party) by the defendant (accused of the negligence).  Next, if a duty of care is established then it must be shown that the defendant breached this duty.  Thirdly, if the first two elements are in place then proximate cause must be established. In other words, but for the breach of duty, the injury or loss would not have happened. Finally, if all three previously discussed elements are established the plaintiff must demonstrate that the loss/injury was a reasonably foreseeable consequence of the defendant's action or inaction.

The first two elements of negligence require the establishment of a duty of care and if shown that this has been breached, but what is a duty of care? A common definition of a duty of care is: ‘A requirement that a person act toward others and the public with watchfulness, attention, caution and prudence that a reasonable person in the circumstances would. The Oxford Dictionary’s definition is a little more concise; ‘A moral or legal obligation to ensure the safety or well-being of others’. As built environment/construction professionals the understanding of duty of care and how it applies is fundamental.  If there is a contractual relationship with a Client, then any loss/damage that may occur is usually dealt with through the contract and any dispute through contract law.  If you read the details of Donaghue v Stevenson you will note that a claim for negligence can be brought in the absence of a contract, so if a Client’s claim were to be unsuccessful in contract law, they may pursue a claim in negligence instead.

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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