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PSZ 19:16 (Pind. 1/07)
DECLARATION OF THESIS / UNDERGRADUATE PROJECT PAPER AND COPYRIGHT
Author’s full name : ABU BAKAR BIN HASSAN
Date of birth : 15 AUGUST 1986
Title : CRITERIA IN ASCERTAINING PROFESSIONAL NEGLIGENCE
Academic Session: 2009/2010
I declare that this thesis is classified as :
I acknowledged that Universiti Teknologi Malaysia reserves the right as follows:
1. The thesis is the property of Universiti Teknologi Malaysia.
2. The Library of Universiti Teknologi Malaysia has the right to make copies for the purpose
of research only.
3. The Library has the right to make copies of the thesis for academic exchange.
Certified by:
SIGNATURE SIGNATURE OF SUPERVISOR
860815-14-5295 ASSC. PROF. DR. ROSLI ABD RASHID (NEW IC NO. /PASSPORT NO.) NAME OF SUPERVISOR
Date : 21 JUNE 2010 Date : 21 JUNE 2010
NOTES : * If the thesis is CONFIDENTAL or RESTRICTED, please attach with the letter from
the organization with period and reasons for confidentiality or restriction.
UNIVERSITI TEKNOLOGI MALAYSIA
CONFIDENTIAL (Contains confidential information under the Official Secret
Act 1972)*
RESTRICTED (Contains restricted information as specified by the
organization where research was done)*
OPEN ACCESS I agree that my thesis to be published as online open access
(full text)
CRITERIA IN ASCERTAINING PROFESSIONAL NEGLIGENCE
ABU BAKAR BIN HASSAN
A master’s project report submitted in partial fulfillment of the
requirements for the award of the degree of
Master of Science in Construction Contract Management.
Faculty of Built Environment
Universiti Teknologi Malaysia
June 2010
“I hereby declare that I have read this project report and in my opinion this project report is
sufficient in terms of scope and quality for the award of the degree of Master of Science in
Construction Contract Management”
Signature : …………………………………………………..
Name of Supervisor : ……………….……………………………..…..
Date : …………..………….………………...…………
ASSC. PROF. DR. ROSLI ABD. RASHID
21 JUNE 2010
ii
DECLARATION
“I declare that this Master Research Project entitled “Criteria in Ascertaining
Professional Nelgigence” is the result of my own research and that all sources are
acknowledged in the references. The project report has not been accepted for any
degree and is not concurrently submitted in candidature of any other degree.”
Signature : ................................................................
Name : ................................................................
Date : ................................................................
ABU BAKAR BIN HASSAN
28 June 2010
iii
…..To my …..To my …..To my …..To my beloved beloved beloved beloved family and friends….family and friends….family and friends….family and friends….
iv
ACKNOWLEDGEMENTS
I want to give my thanks to my supervisor Assoc. Prof. Dr. Rosli Abd. Rashid for his
guidance and patient in helping me completed my thesis. Without the help from him,
I would never able to finish the research.
Also my thanks to all of the lecturers from Construction Contract Management for all
the knowledge that have been pass to me over the year. I hope that all of the
knowledge will be beneficial to me, society and country.
Also not forgetting my entire classmates from the course, for all the support and
continuous help whether while in the class and in the time completing this thesis.
I wish you all the continuous success and happiness.
v
Abstract
Professional negligence can be defined as malpractice by a professional that not
according to reasonable skill and care. Negligence among construction professional may
result in damage to property and person or loss of life. It is therefore important for the
construction professional to exercise reasonable skill and care when carrying their work
in order to minimize the possibility of being charged with negligence. How does the
judge determine whether a professional man has exercise the necessary skill in carrying
out their work? What are the criteria or the general outline for negligence to be
established? The objective of this research is to identify criteria that judges determine
whether a professional man is negligent or not when discharging their duty. For the
purpose of this study ten case law of negligence from United Kingdom, Malaysia and
Singapore has been carefully chosen for the analysis. Case law between 1980 to date was
chosen to make sure that the principle of negligence use is up to date. The study
suggested that the first method for the judge is to determine the relationship between the
plaintiff and defendant and whether they owed a duty of care to the plaintiff. Several
criteria on proving duty of care like relationship in tort and contract, proximity, foreseen
ability, causation and the qualification of the professional. Then the judge will see
whether defendant has breach that duty. The first criteria are the court will check whether
the professional has exercise reasonable skill and care, requirement and regulation, assists
with expert evidence and regulatory bodies of the relevant profession. The last one is
whether the damage must be actual and resulted from the defendant breach. The
important from this element is if one of the element is failed to be proved by plaintiff, the
negligence cannot be establishes.
vi
Abstrak
Kecuaian professional boleh didifinisikan sebagaik kesalahan praktik oleh professional
yang tidak mengikuti piawaian dan tanggung jawab yang berpatutan. Kecuaian oleh
profesional dalam industry binaan akan menyebabkan kerosakan kepada harta benda dan
kecederaan malah kehilangan nyawa. Oleh itu adalah penting bagi professional
pembinaan untuk melakukan kerja mengikut tahap piawaian dan tanggung jawab yang
berpatutan untuk meminimunkan kebarangkalian untuk dikenakan tuduhan melakukan
kecuaian. Bagaimanakah hakim menentukan sama ada seorang professional telah
melakukan kerja dengan mengikuti tahap piawaian dan tanggung jawab? Apakah kriteria
atau panduan umum bagi menentukan kecuaian? Objektif kajian ini adalah untuk
menentukan kriteria yang digunakan oleh hakim untuk menentukan sama ada seorang
profesional cuai dalam melakukan tugasnya. Untuk tujuan kajian ini 10 kes undang-
undang dari United Kingdom, Malaysia dan Singapura telah dipilih untuk analisis. Kes
undang-undang dalam lingkungan tahun 1980 hingga kini dipilih agar prinsip dan teori
bagi kecuaian adalah yang terkini. Kajian menunjukkan bahawa langkah pertama hakim
adalah dengan menentukan hubungan antara plaintif dan defendan dan sama ada dia
mempunyai tanggung jawab kepada plaintif. Beberapa kriteria dalam membuktikan
kecuaian adalah tanggung jawab dalam tort dan kontrak, proximity, foreseenablity,
causation dan kelayakan profesional tersebut. Seterusnya hakim akan menilai sama ada
defendan telah memecahkan tanggung jawab mereka. Kriteria pertama yang akan
dikenalpasti oleh mahkamah dalam menilai sama ada seorang profesional telah
melaksanakan kerjanya dengan tahap piawaian dan tanggung jawab yang berpatutan,
peraturan dan keperluan, bantuan dari bukti pakar atau badan-badan profesion yang
berkaitan. Yang terakhir adalah kerosakan yang berlaku mestilah kerosakan yang sebenar
dan berpunca dari defendan memecahkan tanggung jawabnya. Kriteria ini sangat penting
kerana jika salah satu darinya tidak dapat dibuktikan oleh plaintif, kecuaian tidak dapat
dibuktikan.
vii
TABLE OF CONTENTS
CHAPTER TITLE PAGE
DECLARATION ii
DEDICATION iii
ACKNOWLEDGEMENTS iv
ABSTRACT v
ABSTRAK vi
TABLE OF CONTENTS vii
LIST OF TABLES xi
LIST OF CASES xii
1 INTRODUCTION 1
1. Introduction 1
1.1. Background of Study 1
1.2. Statement of Problem 5
1.3. Previous Study 6
1.4. Objective of Study 7
1.5. Scope and Limitation 7
1.6. Significance of the study 7
1.7. Research Methodology 8
2 NEGLIGENCE 10
2.1. Introduction 10
2.2. Negligence 11
2.2.1. Elements of Negligence claims 13
2.2.1.1. Duty of Care 14
2.2.1.1.1. Reasonable foreseeability 14
2.2.1.1.2. Proximity 15
2.2.1.1.3. Justice and reasonableness 17
2.2.1.2. Breach of Duty 17
2.2.1.3. Factual Causation 19
viii
2.2.1.3.1. Damage 19
2.2.1.3.2. The ‘But For’ test 20
2.2.1.4. Remoteness 21
2.2.1.4.1. Test for remoteness 22
2.2.1.4.1.1. The direct consequence test 22
2.2.1.4.1.2. The reasonable foreseeability
Test 23
2.3. Case Law 24
2.3.1. Precedent 25
2.3.1.1. Binding Precedent 26
2.3.1.2. Persuasive Precedent 28
2.3.2. Expert witnesses 29
2.4 The Principle in Professional Negligence 32
2.4.1 Bolam v Friern Hospital Management Committee 33
2.4.2 Bolitho v City and Hackney Health Authority 35
2.4.3. Maynard v West Midlands Health Authority 36
2.4.4. Fiona Foo v Dr Soo 37
2.5. Conclusion 38
3 LIABILITY OF CONSTRUCTION PROFESSIONAL 39
3.1. Introduction 39
3.2. Construction Professional 41
3.2.1. Architect 42
3.2.2. Engineer 43
3.2.3. Quantity surveyor 44
3.3. Liability of Construction Professionals under
contract and tort 44
3.3.1. Liabilities under Tort 46
3.3.1.1. Duty of Care 46
3.3.1.2. Standard of Care 49
3.3.1.2.1. Reasonable Skills and care 52
3.3.1.3. Strict liability 54
3.3.1.4. Absolute Liability 55
3.3.2. Liabilities under Contract 56
3.3.2.1. Warranty 57
3.3.2.1.1. Express warranty 57
3.3.2.1.2. Implied warranty 58
3.3.3. Limitation of Liability 59
3.3.3.1. Exclusion of liability 61
3.3.3.2. Limitation of actions 62
ix
3.3.4. Scope of Duty for Construction Professionals 63
3.4. Conclusion 68
4 ANALYSIS 69
4.0 Introduction 69
4.1. Case Law analysis 70
4.2. Lim Teck Kong v Dr Abdul Hamid Abdul Rashid 70
4.2.1. Fact of the Case 70
4.2.2. Judgment of the case 71
4.3. Steven Phoa Cheng Loon & Ors V Highland Properties Sdn
Bhd & Ors 73
4.3.1. Fact of the case 73
4.3.2. Judgment of the case 74
4.4. Kelly v. Sir Frank Mears & Partners 75
4.4.1. Facts of the case 75
4.4.2. Judgment of the case 77
4.5. PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd 78
4.5.1. Facts of the case 78
4.5.2. Judgment of the case 79
4.6. Clayton V. Woodman & Son, Ltd. And Others 80
4.6.1. Fact of the case 80
4.6.2. Judgment of the case 81
4.7. Lancashire and Cheshire Association of Baptist Churches
Inc v Howard & Seddon Partnership 83
4.7.1. Fact of the case 83
4.7.2. Judgment of the case 83
4.8. Baxall Securities Ltd and another v Sheard Walshaw
Partnership and others 85
4.8.1. Facts of the case 85
4.8.2. Judgment of the case 86
4.9. Hawkins v Chrysler (UK) Ltd and another 87
4.9.1. Facts of the case 87
4.9.2. Judgment of the case 88
x
4.10. RSP Architects Planners & Engineers (Raglan Squire &
Partners Fe) V. Management Corporation Strata Title Plan No
1075 & Anor 89
4.10.1. Facts of the case 89
4.10.2. Judgment of the case 90
4.11. Sansom and another v Metcalfe Hambleton & Co 92
4.11.1. Facts of the case 92
4.11.2. Judgment of the case 93
4.12. Summary of decision in law cases 96
4.13. The criteria for negligence 106
4.14. Conclusion 108
5 CONCLUSION AND RECOMMENDATIONS 109
5. Introduction 109
5.1. The criteria for negligence 110
5.2. Recommendation 111
5.3. Conclusion 111
REFERENCES 112
xii
LIST OF CASES
Barnett v. Chelsea and Kensington Hospital Managament Committee (1968) 1 ALL ER
1068
Baxall Securities Ltd and another v Sheard Walshaw Partnership and others [2002]
EWCA Civ 09
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Bolitho v City and Hackney Health Authority [1998] AC 232
Buckley v. Rice-Thomas (1554) 1 Plowd 118
Caparo v. Dickman (1990) 2 AC 605
Clay v AJ Crump & Sons Ltd [1964]
Clayton V. Woodman & Son, Ltd. And Others. Queen's Bench Division [1961] 3 All Er
249
Donoghue v Stevenson [1932] AC 562
Dr Abdul Hamid Abdul Rashid & Anor V Jurusan Malaysia Consultants & Ors [1997] 3
Mlj 546
Lim Teck Kong v Dr Abdul Hamid Abdul Rashid & Anor [2006] 3 MLJ 213
Dutton v. Louth Corporation (1955) 116 EG 128 (CA)
Fiona Foo v Dr Soo [2007]
Grant v Austalian Knitting Mills [1936] AC 85
Greaves & Co. v. Baynham Meikle (1975) 1 WLR 1095
xiii
Haley v. London Electricity Board (1965) AC 778
Hawkins v Chrysler (UK) Ltd and another [1986] BTLC 351
Hunter v. Canary Wharf Ltd. And London Docklands Development Corporation (1997)
AC 655
Jarvis v. Moy, Davies, Smith Vandervell & Co (1936) 1 KB 299
Junior Books v. Veitchi Co. Ltd (1982) 3 WLR 477
Kelly v. Sir Frank Mears & Partners (1983) Sc 97
Knuller v DPP [1973] AC 435
Lancashire and Cheshire Association of Baptist Churches Inc v Howard & Seddon
Partnership [1993] 3 All ER 467
Langley v. Dray (1998) PIQR P 314
Lochgelly Iron and Coal Co v McMullan [1934] AC 1 at 25;
Maynard v West Midlands Health Authority [1985] 1 All ER 63
Maynard v West Midlands Health Authority [1985] 1 All ER 635
McFarlane v. Tayside Health Board (1999) 4 ALL ER 961
Midland Bank v. Hett, Stubbs & Kemp (1979) Ch. 384
Muirhead v. Industrial Tank Speacialist (1985) 3 ALL ER 705
Nettleship v Weston [1971] 2 QB 691
Overseas Tankship (UK) v. Morts Dock & Engineering Co (1961) AC 388
PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681
Rsp Architects Planners & Engineers (Raglan Squire & Partners Fe) V. Management
Corporation Strata Title Plan No 1075 & Anor
xiv
Saif Ali v. Sidney Mitchell & Co (1978) 3 ALL ER 1033
Sansom and another v Metcalfe Hambleton & Co [1998] 2 EGLR 103
Shaw v DPP [1962] AC 220
Sim & Associates (sued as a firm) v Alfred Tan [1994] 3 SLR 169
Smith V. Leech Brain & Co., Ltd. And Another. [1962] 2 Qb 405
spartam-souther v. Town and Country Development (Essex) ltd (1976) 3 BLR 72
Stanton v. Brian Callaghan (1999) 2 WLR 745, (1999) BLR 172
Steven Phoa Cheng Loon & Ors V Highland Properties Sdn Bhd & Ors [2000] 4 Mlj 200
Sutcliffe v Thackrah & Ors [1974] AC 727
Waghorn v. Wimbledon Local Board (1877) HBC
Watson v. British Boxing Board of Control (2000) QB 1134
1
Chapter 1
Introduction
1.1 Background of study
A professional may be described as a person whose work is skilled and
specialized. He holds some special qualifications derived from training or experience and
conforms to high standard of performance and work ethics. He normally belongs to a
regulatory body which prescribes common rules of conduct and standards of practice.
Less technically, it may also refer to a person having impressive competence in a
particular activity. Because of the personal and confidential nature of many professional
services and thus the necessity to place a great deal of trust in them, most professionals
are held up to strict ethical and moral regulations.
Professional negligence in the construction industry is an area of developing
jurisprudence. Professional negligence involves tedious construction of facts, precedent,
industry standards and statutory regulations. It is crucial to comprehend the underlying
2
legal principles of negligence and how those principles apply to construction
professionals1.
Most construction disputes exhibit the failure of professional men to exercise
reasonable skill and care over and above the alleged breach of a specific term of contract.
It follows that a project manager who fails to secure adequate insurance coverage, a
quantity surveyor who under-estimates the cost of a project, an engineer who fails to
warn of an eminent risk and an architect who delivers a faulty design are all in breach of
their contractual duty under their respective contracts of engagement, however most
importantly they are equally answerable for a breach of their professional obligation to
exercise reasonable skill and care in tort2.
But where there is a situation that involves the use of some special skill or
competence, then the test whether there has been negligence or not is not the test of the
man on the top of a Clapham omnibus, because he has not got this special skill. The test
is the standard of the ordinary skilled man exercising and professing to have that special
skill. A man need not possess the highest expert skill at the risk of being found
negligent3.
The usual rules rely on establishing that a duty of care is owed by the defendant to
the claimant, and that the defendant is in breach of that duty. The standard test of breach
is whether the defendant has failed to match the abilities of a reasonable person. But, by
virtue of the services they offer and supply, professional people hold themselves out as
having more than average abilities. This specialized set of rules determines the standards
1 Saraswathy Shirke, 2009 Article, Professional Negligent in Construction Industry, The Malayan Law
Journal Article, Accessed on 4 May 2010, <www.Lexisnexis.com> 2 Ibid 3 Ibid
3
against which to measure the legal quality of the services actually delivered by those who
claim to be among the best in their fields of expertise.
It is well established law that it is sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular art. Professional negligence is the
failure to come up to the standard of a reasonable skilled man of the relevant profession.
This is known as the professional standard of care. One of the most important legal
principles that affect professional negligent is that of the Bolam test, which has been in
use for almost fifty years4.
Judgment by McNair J in the celebrated case of Bolam v Friern Hospital Management
Committee5, namely:
“A doctor is not guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible body of medical
men skilled in that particular art. A doctor was not guilty if he was
acting in accordance with that practice merely because there was a
body of opinion which would take a contrary view”
This is the precursor for the future of professional negligent cases as whereby the
Bolam Test is used. When making a decision as to how to treat a patient, a doctor often
has more than one choice. The result in the Bolam case stated that even if the doctor
chose the least popular of these choices, it did not necessarily amount to medical
negligence if support could be found for it. However, this ruling meant that a doctor
accused of medical negligence need only to find an expert who would testify to having
4 You Claim, The role of Bolam test in Medical negligent claims, Accessed on 2 May 2010,
<http://www.youclaim.co.uk/Medical-negligence-the-Bolam-test.htm> 5 [1957] 1 WLR 582
4
done the same thing. Over the year, the Bolam test sustained significant criticism for
being overly reliant on medical testimony6.
A strong endorsement of this test was provided in the House of Lords by Lord Scarman
in the case of Maynard v West Midlands Health Authority7 his Lordship stated:
“I have to say that a judge’s ‘preference’ for one body of distinguished
professional opinion to another also professionally distinguished is not
sufficient to establish negligence in a practitioner whose actions have
received the seal of approval of those whose opinions, truthfully
expressed and honestly held, were not preferred. …For in the realm of
diagnosis and treatment negligence is not established by preferring one
respectable body of professional opinion to another”
The reason for his Lordship taking such a view is that there are, and always will
be, differences of opinion and practice within the medical profession. One answer
exclusive of all others is seldom the solution to a problem that requires professional
judgment. A court may prefer one body of medical opinion to another, but that does not
amount to a conclusion of negligence8.
The decision in Bolitho v City and Hackney Health Authority9 created a
modification to the ruling in Bolam. A Lord Browne-Wilkinson gave the following two
statements, which somewhat restrict the boundaries of the Bolam test10:
6 Op cit, You Claim. 7 [1985] 1 All ER 635 8 Ash Samantha and Jo Samantha, Legal Standard of care: A shift from the traditional bolam test, Accessed
on 2 May 2010, <psychrights.org/Countries/UK/BolamTest2003.pdf> 9 [1998] AC 232 10 Op cit, You Claim.
5
1. The court should not accept a defense argument as being 'reasonable',
'respectable' or 'responsible' without first assessing whether such
opinion is susceptible to logical analysis.
2. However, where there is a body of medical opinion which represents
itself as 'reasonable', 'responsible' or 'respectable' it will be rare for the
court to be able to hold such opinion to be other than represented.
This Bolitho ruling means that testimony for the medical professional who is
alleged to have carried out the medical negligence can be found to be unreasonable,
although this will only happen in a very small number of cases11.
1.2 Statement of Problem
In the vast majority of cases where allegations of professional negligence are
made against construction professionals liability will depend upon whether the
professional has been proven by all the elements in negligence. What does this mean and
how does a Judge, who almost certainly will have no qualifications as a professional
decide whether this standard has been achieved?
Because of the Bolam test is also widely used in construction negligence, judges
may have a different ground and basis on determining if the negligent is establish.
Because of the new cases that modified the Bolam test and using a new principle in
determining negligent, does that has any changes on how the judge establish negligent for
11
Ibid
6
the construction professional. Then what are the criteria on how the judge establishes
whether the professional is negligent or not in carrying their duties and responsibilities? It
is important to establish the basis that the judge used because of the different between
medical negligent and construction professional negligent that involves more technical
issues.
It is noteworthy that unlike doctors, construction professionals are engaged under
an express appointment contracts by their clients. Their duty to exercise reasonable skill
and care is both contractual and tortuous. Traditionally when assessing a doctor’s alleged
breach of duty, the court would employ the Bolam direction or test. However in assessing
liability of construction professionals for breach of duty the Malaysian courts exhibit a
tendency to avoid methodical reference to the Bolam test. Therefore where negligence is
assessed based on professional undertakings as per the contract and standard code of
ethics or practices of the profession, a detailed analysis of the Bolam test is unnecessary
as the outcome would inevitably be the same12.
1.3 Previous Study
In the previous research by Chai Voon Chiet in 2004, title Professional liability of the
civil engineers. The research was to examine and classify the nature of fault in claims of
negligence act by civil engineers. The research only covered the liability of civil
engineers and not others professionals and did not really explain on how the court
establish negligent13.
12
Op cit, Saraswathy Shirke. 13
Chai Voon Chiet (2004), Professional Liability of Civil Engineers, Master Dissertation, Faculty of Build
Environment, UTM.
7
1.4 Objective of the study
The Objective of this study is to identify the criteria for determining professional
negligence among construction professional.
1.5 Scope and limitation
This study is limited only to cases relating to construction professionals and
extent only in professional negligence area. The scope of the study will focus to ten case-
laws that are relevant to construction cases due to limited time-frame constraint, which
will be covering popular known English case-laws, commonwealth country case-laws
and Malaysian cases.
1.6 Significance of the study
Merely being under a duty to take care does not of itself give rise to liability in
negligence. There must be unreasonable behavior as measured by the court’s
interpretation of the standard of care demanded of the professional in question. Legally,
not every judgment or decision that in the end happens to be proved wrong will amount
to negligence. Measurement of the boundary between mistakes or oversights and
actionable negligence rests upon the court’s perception of what the reasonable
professional should have done in a particular set of circumstances. It is the purpose of this
8
study that trying to establish the common fault against negligence claim that could help to
alert the construction professional in their works. This study will help construction
professional to understand the legal aspect of their work in the area of negligence. The
case analysis that I have discussed here merely provides a general guide and it is unsafe
to assume that it offers concrete rules in relation to professional negligence.
1.7 Research Methodology
Methodology of study is vital as a guideline for author to ensure a study can be
carried out systematically to achieve the objective. Given the legalistic nature of this
study, the approach adopted in this research is case law based. The study will be carried
out in two approaches using literature review and case-laws study. Firstly, all literature
review consisting of books, journal, article and internet sources will help to identify the
legal meaning of the pertinent issues that involved in professional negligence so as to
provide a platform from which the developments of professional in construction industry
can be explained and assessed. From the issue, then the objective of the study is
identifying the criteria for determining professional negligence among construction
professional.
To give more understanding on the theory and principle of professional
negligence, collecting more information regarding the subject matter is important. The
entire book or article regarding the theory of and principle of negligence, liability and
professional is taken from PSZ UTM and internet sources. All law cases will be taken
from Lexis Nexis via Malayan Law Journal. It is important to know the background of
this study and the implication to construction professional.
9
The case-laws analysis, on the other hand, will help to give a better
understanding of the judicial interpretation in assessing whether a particular default is
subject to negligence in any given situation. Ten law cases are chosen between years
1980 to 2010 in order for the theory or principle in professional negligence is up to date.
The law cases are taken from United Kingdom, Malaysia and Singapore in the area of
professional negligence. By going through the case law it help in providing a more
precise view on the approach in determining professional negligence by the court and
achieving the objective of this study.
This study is consisting of five chapters. The first chapter is an introduction of
background of study, statement of problem, objective, scope of study and methodology is
located. In the second chapter contained all the legal principle of negligence, case law
and principle of professional negligence by case law. The third chapter it is consisting of
the definition of professional and the liability in the profession. The fourth chapter is an
analysis of selected law cases in determining the criteria for negligence. The fifth and last
chapter is the conclusion from the previous chapter. In addition, recommendation and
further study will be suggested. The author will also review the whole process of the
study to identify whether the objective of the study have been achieved.
10
Chapter 2
Negligence
2.1 Introduction
Professional negligence, which may also be referred to as malpractice, is
negligence committed by someone who is presented with more skills and training than
the normal average person. As a consequence of being more highly skilled, professionals
are held to a higher standard and are expected to be able to complete tasks related to their
training in a competent way. Failure to exercise due caution is considered negligence and
clients can sue for damages if they have been injured as a result of negligent care. One of
the fields in which professional negligence comes up most often is the field of medicine
whereby doctors often being sued for malpractice or negligence14.
14
S.E. Smith, What is professional negligent? Accessed on 12 May 2010,
<http://www.wisegeek.com/what-is-professional-negligence.htm>
11
However, lawyers, contractors, and other professionals can also be accused of
professional negligence if they fail to look out for the interests of their clients. Under the
law, professionals have a duty of care to the people who hire them, because people are
relying on their skills and expecting them to exercise reasonable caution15.
The ability to sue people who commit acts of professional negligence can be
important. Professionals are held to a higher standard of performance because they
present themselves as more highly trained. When they make errors, the nature of the error
can be very costly for a client; a doctor may kill a patient with negligence, a lawyer may
fail to achieve the right outcome in a case, a contractor could build a house which falls
down. People trust professionals to behave responsibly and need to have recourse when
they act with negligence. One problem faced by professionals is that accidents happen,
and even highly skilled, very conscientious people do make mistakes. Some professions
come with a high potential risk of being sued for professional negligence because they
are risky professions to begin with.
2.2 Negligence
Negligence is by far the most important of torts. It forms the cause of action in the
majority of cases brought in tort because its scope is very wide and it may also be an
element in liability for other torts such as nuisance. The term of negligence is also found
in the context of breach of contract which will be considered as professional negligence.
15
Ibid
12
Negligent result from the failure of persons to meets a reasonable standard of care
in their conduct. When that failure is the cause of injury or damage to the interest of
another, a legal cause of action exists. Everyone is living under the duty to behave in a
manner calculated no to harm the interest of others. Negligent is not intentional
wrongdoing and indeed, often results from inattention, carelessness or honest oversight,
nevertheless, fault is implicit in negligent and is present when one fails for whatever
reason to meet the require standard.
In meeting with the standard of care, any course of action or failure to act must be
compared with what a reasonable and prudent person would be expected to do under the
same situation. Given the normal intelligence, knowledge and experience of people in the
community, together with the physical attributes and any special knowledge or skill the
particular individual might possess what would he have done16.
Negligence of course means carelessness, but in 1934 Lord Wright said in case
law of Lochgelly Iron and Coal Co v McMullan17 ;
‘In strict legal analysis, negligence means more than heedless or careless
conduct, whether in omission or commission: it properly connotes the
complex concept of duty, breach and damage thereby suffered by the
person to whom the duty owed.’
16 Harrison Streeter (1988), Professional Liability of Architect and Engineers, A Wiley interscience
publication, by John Wiley & Sons, Inc. page 7 and 8. 17 [1934] AC 1 at 25;
13
A typical formula for evaluating negligence requires that a plaintiff prove the
following four factors by a preponderance of the evidence18:
1. The defendant owed a duty to the plaintiff
2. The defendant violated that duty;
3. As a result of the defendant's violation of that duty, the plaintiff suffered injury;
and
4. The injury was a reasonably foreseeable consequence of the defendant's action or
inaction.
2.2.1 Elements of Negligence claims
In analysis on negligence claims, the important concepts that need to be prove in
order that to claims against negligence. Common law jurisdictions may differ slightly in
the exact classification of the elements of negligence, but the elements that must be
established in every negligence case are: duty, breach, causation, and damages
.
18 Aaron Larson, Negligent and Tort Law (October 2003), Accessed on 13 May 2010,
<http://www.expertlaw.com/library/personal_injury/negligence.html#2>
14
2.2.1.1 Duty of Care
The basic test for a duty of care is now the one set down in Caparo v. Dickman19.
This will usually be applied to duty of care questions in cases involving physical injuries
or damage to property. The test requires the courts to ask three questions20:
a) The concept of reasonable foreseeability of harm;
b) The claimant and the defendant being in a relationship of proximity; and
c) It being fair, just and reasonable to impose liability on the defendant for
his careless actions.
2.2.1.1.1 Reasonable foreseeability
This element of test has its foundation from the neighbor principle developed in
the case law of Donoghue v. Stevenson21. Essentially the courts have to ask whether a
reasonable person in the defendant’s position would have foreseen the risk of damage. In
order for a duty to exist, it must be reasonably foreseeable that damage or injury would
be caused to the particular defendant in the case.
19 (1990) 2 AC 605
20 Catherine Elliot and Frances Quinn, Tort Law, 6
th Edition, Pearson Education Limited, Edinburgh Gate
Harlow Essex CM20 2je England, Page 21 21 (1932) AC 562
15
In Langley v. Dray22, where the claimant was a policeman who was injured in a
car crash when he was chasing the defendant, who was driving a stolen car. The
defendant knew, or ought to have known, that he was being pursued by the claimant, and
therefore in increasing his speed he knew or should have known that the claimant would
also drive faster and so risk injury. The defendant had a duty not to create such a risk and
he was in breach of that duty23.
In case of Haley v. London Electricity Board24, the defendant dug a trench in the
street in order to do repairs. Their workman laid shovel across the hole to draw pedestrian
attention to it, but the claimant was blind, and fell into the hole, seriously injuring
himself. It was agreed that the precautions taken would had been sufficient to protect a
sighted person from injury, so the question was whether it was reasonably foreseeable
that a blind person might walk by and be at risk of falling in. The court of appeal said that
it was, because the number of blind people who lived in London and were used to
walking about by themselves meant that the defendants owed a duty to this class of
people.
2.2.1.1.2 Proximity
In normal language proximity means closeness, in terms of physical position, but
in law it has a wider meaning which essentially concerns the relationship, if any between
22 (1998) PIQR P 314
23 Op cit, Catherine Elliot and Frances Quinn.
24 (1965) AC 778
16
the defendant and the claimant. In Muirhead v. Industrial Tank Speacialist25, Goff LJ
pointed out that this does not mean that the defendant and claimant have to know each
other; but that the situation they were both in meant that the defendant could reasonably
be expected to foresee that his or her action could cause damage to the claimant26.
Proximity may also be expressed in terms of relationship between the defendant,
and the activity which caused harm to the claimant. An example of this proximity can be
seen in Watson v. British Boxing Board of Control27, where the claimant was the famous
professional boxer Michael Watson, who suffered severed brain damage after being
injured during a match. He sued the Board on the basis that they were in charge of safety
arrangements at the professional boxing matches, and evidence showed that if they had
made immediate medical attention available at the ringside, his injuries would have been
less severe.
The court held that there was a sufficient proximity between Mr. Watson and the
Board to give rise to a duty of care, because they were the only body in the UK which
could license professional boxing matches, and therefore had complete control of and
responsibility for a situation which could clearly result in harm to Mr. Watson if the
board did not exercise reasonable care28.
25 (1985) 3 ALL ER 705
26 Op cit, Catherine Elliot and Frances Quinn, Page 22.
27 (2000) QB 1134
28 Op cit, Catherine Elliot and Frances Quinn, Page 23.
17
2.2.1.1.3 Justice and reasonableness
In practice, the requirement that must be just and reasonable to impose a duty
often overlaps with the previous two that is foreseeability and proximity. The arguments
made under the heading of proximity could equally well be seen as arguments relating to
justice and reasonableness. Where justice and reasonableness are specifically referred to,
it is usually because a case meets the requirements of foreseeability and proximity, but
the court believes there is sound public policy reason for denying the claim.
An example is in McFarlane v. Tayside Health Board29. The claimant had
become pregnant after her partner’s vasectomy failed, and claimed for the costs of
bringing up child. The courts denied her claim, on the basis that it was not just and
reasonable to award compensation for the birth of a healthy child, something most people
said, would consider a blessing30.
2.2.1.2 Breach of Duty
Once a duty of care has been established, it must be shown that a duty has been
breached. The question the courts ask is whether the behavior exhibited by the defendant
fell below the threshold of a "reasonable man". In some cases where the defendant was in
a special profession, For example, being a doctor, the court will ask what standard of care
a "reasonable doctor" or the like might have done. Allowance is usually made for the
defendant’s age and a lower standard of a "reasonable child of a certain age" is applied to
29 (1999) 4 ALL ER 961
30 Op cit, Catherine Elliot and Frances Quinn, Page 23.
18
children. On the other hand, no allowance is made for other personal circumstances, such
as the fact that the defendant was inexperienced in the task he set out to perform. He is
expected to perform this task as a reasonably skilled and competent person31.
Regarding of breach of duty Salmon Lj. In the case law of Nettleship v Weston32 stated
that;
“A learner-driver is responsible and owes a duty in civil law towards
persons on or near the highway to drive with the same degree of skill and
care as that of the reasonably competent and experienced driver. The duty
in civil law springs from the relationship which the driver, by driving on
the highway, has created between himself and persons likely to suffer
damage by his bad driving. This is not a special relationship. Nor, in my
respectful view, is it affected by whether or not the driver is insured. On
grounds of public policy, neither this criminal nor civil responsibility is
affected by the fact that the driver in question may be a learner, infirm or
drunk. The onus, of course, lies on anyone claiming damages to establish
a breach of duty and that it has caused the damages which he claims”
31 Wikipedia, English Tort Law, Accessed on 17 May 2010,
<http://en.wikipedia.org/wiki/English_tort_law#Negligence> 32[1971] 2 QB 691
19
2.2.1.3 Factual Causation
The person being sued must be the actual cause of injuries sustained by the victim
who is suing. In order to prove the alleged person negligence, it must be shown that the
particular acts or omissions were the cause of the loss or damage sustained. The causation
between one's breach of duty and the harm that results to another can at times be very
complicated. The basic test is to ask whether the injury would have occurred but for, or
without, my breach of duty. Even more precisely, if a breaching party materially
increases the risk of harm to another, then the breaching party can be sued to the value of
harm that he caused.
Judgment by Lord Parker in case law of smith v. leech brain & co., ltd. and another33
stated that;
"If a man is negligently run over or otherwise negligently injured in his
body, it is no answer to the sufferer's claim for damages that he would
have suffered less injury or no injury at all, if he had not had an unusually
thin skull or an unusually weak heart."
2.2.1.3.1 Damage
The negligence must cause damage, if no damage is caused, there is no claim in
negligence, no matter how careless the defendant’s conduct. An example of case is in
33
[1962] 2 Qb 405
20
Hunter v. Canary Wharf Ltd and London Docklands Development Corporation34. The
case arose from the construction of the big tower block known as canary wharf in east
London. An action concerning the effects of the construction work was whether
excessive dust could be sufficient to constitute damage to property for the purpose of
negligence.
The court of appeal concluded that the mere deposit of dust was not in itself
sufficient because the dust was an inevitable incident of urban life. In order to bring
action for negligence, there had to be damage in the sense of a physical change in
property, which rendered the property less useful or less valuable35.
2.2.1.3.2 The ‘But For’ test
Causation is established by proving that the defendant’s breach of duty was, as a
matter of fact, a cause of the damage. To decide this issue the first question to be asked is
whether the damage would have occurred but for the breach of duty, this is know as the
‘but for’ test.
An example of the test can be seen in Barnett v. Chelsea and Kensington Hospital
Management Committee36. A night watchman arrived early in the morning at the
34 (1997) AC 655
35 Op cit, Catherine Elliot and Frances Quinn, Page 90.
36 (1968) 1 ALL ER 1068
21
defendant’s hospital, suffering from nausea after having a cup of tea at work. The nurse
on duty telephoned the casualty doctor, who refused to examine the man, and simply
advised the man to go home. The man died 5 hours later, from arsenic poisoning. The
hospital was sued for negligence, but the action failed.
The court accepted that the defendants owed the deceased a duty of care, and that
they had breach that duty by failing to examine him. However, the breach did not cause
him death. There was evidence that even if he had been examined, it was too late for any
treatment to save him, and therefore it could not be said that but for the hospital’s
negligence he would not have died37.
2.2.1.4 Remoteness
After the complexities under the "but for" test have been addressed, the courts
may still deny compensation if the harm was a very remote consequence of the initial
wrong. So long as a type of damage is foreseeable. Like the issue of duty of care, the
remoteness test is legal test which form one of the way which the law draws the line
between damage which can be compensated by law, and which is cannot.
37 Op cit, Catherine Elliot and Frances Quinn, Page 94.
22
2.2.1.4.1 Test for remoteness
There are two tests for remoteness in tort38:
a) The direct consequence test
b) The reasonable foreseeability
2.2.1.4.1.1 The direct consequence test
The traditional test of whether damage was to remote was laid down in Re
Polemis (1921), and essentially imposed liability for all direct physical consequences of a
defendant’s negligence, it became known as the direct consequence. The case is about
renting a ship, an arrangement known as charter. The charterers loaded the ships with tins
of petrol, and during the voyage these tins leaked and releasing large amount of petrol
vapor into the hold. Then the ship docked at Casablanca, and was unloaded. The workers
unloading it had positioned some heavy planks as a platform over the hold and, as result
of their negligence, one of the planks fell into the hold. It caused a spark and ignited the
petrol vapor and ultimately the ship burnt. They sued the charterer.
The trial judge had found as a fact that the charterer could not reasonably have
foreseen that the fire was likely to occur as a result of the plank falling into the hold,
though they might reasonably have foreseen that some damage to the ship might result
form that incident. However, the court of appeal held that this was irrelevant, the
charterer were liable for any consequence that was a direct result of their breach of duty,
38
Ibid, Page 104.
23
even if such consequences might be different and much more serious from those which
they might reasonably foreseen. A consequences would only to remote if it was due to the
operation of independent causes having no connection with negligence act, except that
they could not avoid it’s result39.
2.2.1.4.1.2 The reasonable foreseeability test
The test was laid down in Overseas Tankship (UK) v. Morts Dock & Engineering
Co.40, the defendant were the owner of a ship which was loading oil there, and owing to
the negligence of their employees, some of the oil leaked into the water and spread,
forming a thin film on the surface. Within the hour the oil has spread to the neighboring
wharf, owned by claimants where there was another ship was being repaired by welder. It
caused damage to the slipway, and then a few days later, further and much serious
damage was caused when the oil was ignited by sparks from the welding operations41.
The trial judge found that the damage to the slipway was reasonably foreseen, but
given that the evidence showed that the oil needed to be raised to a very high temperature
before it would catch fire, the fire damage was not reasonably foreseeable. Nevertheless,
as the Australian court was also following Re Polemis, he found the defendants liable for
both damage42.
39
Ibid, Page 104. 40 (1961) AC 388
41 Op cit, Catherine Elliot and Frances Quinn, Page 105.
42 Ibid
24
2.3. Case Law
The English Legal System which can be traced back as far as 1066 AD has been
growing slowly over time. Certain characteristics of this law system, such as the law of
precedent can be distinguished from other law systems. Judicial precedent or binding
precedent often referred to as case law, is one of the main sources of English Law43.
Case law is the term used for rules of law that are set forth in judicial opinions.
Case law can be relied upon as statements of the law just like statutes and regulations.
Case law interprets statutes, constitutional provisions, regulations and other case law.
Case law is a major source of law and in many cases it creates binding precedent; which
is law that must be followed in subsequent similar cases. A judicial opinion usually
explains the rationale behind the decision that is being made. The opinion will refer to
and interpret statutes and previous decisions. The analysis that is necessary to the
decision creates binding precedent on other courts. Other analysis that is not necessarily
needed for a determination of the case is referred to as dicta and creates persuasive
authority44.
When a court wants to reach a conclusion that is different from other cases with
similar facts, it will distinguish the case it is deciding from the other similar cases. In
other words, the court will explain why the current case is different from the similar case
law in order to justify reaching a different conclusion. If such a ruling is appealed, the
appellate court may not accept the distinction. The appellate court also has the option of
making an entirely different analysis from that of the lower court to either affirm or
43 Mega Essays, Doctrine of Binding Precedent, Accessed on 23 May 2010,
<http://www.megaessays.com/viewpaper/23590.html> 44
Lawyer.com, what is case law? Accessed on 23 May 2010, <http://research.lawyers.com/What-Is-Case-
Law.html>
25
overrule the lower court's decision. In some cases, such a judge may intentionally rule
against established case law in an attempt to begin the appeal process. The lower court
judge might do this when case law is outdated or irrelevant. The appellate court will then
have an opportunity to create new case law if it agrees with the lower judge's decision45.
2.3.1. Precedent
In common law legal systems, a precedent or authority is a legal case establishing
a principle or rule that a court or other judicial body may utilize when deciding
subsequent cases with similar issues or facts46. The use of precedent has been justified as
providing predictability, stability, fairness, and efficiency in the law. Reliance upon
precedent contributes predictability to the law because it provides notice of what a
person's rights and obligations are in particular circumstances. A person contemplating an
action has the ability to know beforehand the legal outcome.
Reliance upon precedent also promotes the expectation that the law is just. The
idea that like cases should be treated alike is anchored in the assumption that one person
is the legal equal of any other. Thus, persons in similar situations should not be treated
differently except for legally relevant and clearly justifiable reasons. Precedent promotes
judicial restraint and limits a judge's ability to determine the outcome of a case in a way
that he or she might choose if there were no precedent. This function of precedent gives it
its moral force. Precedent also enhances efficiency. Reliance on the accumulation of legal
rules helps guide judges in their resolution of legal disputes. If judges had to begin the
45
Ibid 46 Wikipedia, Precedent, Accessed on 23 May 2010, <http://en.wikipedia.org/wiki/Precedent>
26
law anew in each case, they would add more time to the adjudicative process and would
duplicate their efforts47.
2.3.1.1. Binding Precedent
In law, a binding precedent is a precedent which must be followed by all lower
courts under common law legal systems. In English law it is usually created by the
decision of a higher court, such as the Supreme Court of the United Kingdom, which took
over the judicial functions of the House of Lords in 2009. In Civil law and pluralist
systems, as under Scots law, precedent is not binding but case law is taken into account
by the courts48.
Binding precedent relies on the legal principle of stare decisis. A stare decisis
means to stand by things decided. It ensures certainty and consistency in the application
of law. Existing binding precedents from past cases are applied in principle to new
situations by analogy. Under the doctrine of stare decisis, a lower court must honor
findings of law made by a higher court that is within the appeals path of cases the court
hears49.
47 The free dictionary, Precedent, Accessed on 24 May2010, <http://legal-
dictionary.thefreedictionary.com/precedent> 48 Wikipedia, Binding Precedent, Accessed on 24 May 2010,
<http://en.wikipedia.org/wiki/Binding_precedent> 49 Ibid
27
The doctrine of judicial precedent is based on stare decisis. That is the standing by
of previous decisions. Once a point of law has been decided in a particular case, that law
must be applied in all future cases containing the same material facts50. For example in
the case of Donoghue v Stevenson51, The House of Lords held that a manufacturer owed
a duty of care to the ultimate consumer of the product. This set a binding precedent
which was followed in Grant Austalian Knitting Mills52. Also in Shaw v DPP
53 the House
of Lords held that a crime of conspiracy to corrupt public morals existed. This was
followed in Knuller v DPP54.
Stare decisis is one of the most important doctrines in common law. It is the
doctrine under which courts adhere to precedent on questions of law in order to ensure
certainty, consistency, and stability in the administration of justice. Stare decisis is the
legal principle by which judges are obliged to obey the set-up precedents established by
prior decisions. The words originate from the Latin phrase Stare decisis (et non quieta
movere), "Maintain what has been decided and do not alter that which has been
established55."
Basically, under the doctrine of stare decisis, the decision of a higher court within
the same provincial jurisdiction acts as binding authority on a lower court within that
same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive
authority. The degree of persuasiveness is dependent upon various factors, including,
first, the nature of the other jurisdiction. Second, the degree of persuasiveness is
dependent upon the level of court which decided the precedent case in the other
50 E-law resource, Judicial Precedent, Accessed on 25 May 2010, <http://www.e-
lawresources.co.uk/Judicial-precedent.php> 51 [1932] AC 562
52 [1936] AC 85
53[1962] AC 220
54 [1973] AC 435
55 Wikipedia, Stare Decisis, Accessed on 23 May 2010, <http://en.wikipedia.org/wiki/Stare_decisis>
28
jurisdiction. Other factors include the date of the precedent case, on the assumption that
the more recent the case, the more reliable it will be as authority for a given proposition,
although this is not necessarily so. And on some occasions, the judge's reputation may
affect the degree of persuasiveness of the authority56.
In order for the doctrine of judicial precedent to work, it is necessary to be able to
determine what a point of law is. In the course of delivering a judgment, the judge will
set out their reasons for reaching a decision. The reasons which are necessary for them to
reach their decision amount to the ratio decidendi of the case. The ratio decidendi forms
the legal principle which is a binding precedent meaning it must be followed in future
cases containing the same material facts. It is important to separate the ratio decidendi
from the obiter dicta. The obiter dicta is things stated in the course of a judgment which
are not necessary for the decision57.
2.3.1.2. Persuasive Precedent
Persuasive precedent mean a precedent set in a court that has no precedence over
another but whose decisions are considered to be sufficiently useful that they may be
used, although they are not binding until used by a superior court. Persuasive precedent is
precedent or other legal writing that is related to the case at hand but is not a binding
precedent on the court under common law legal systems such as English law.
56 Paul M. Perell, 1987, Stare Decisis and Technique of legal reasoning and legal arguments, Accessed on
24 May 2010, <http://legalresearch.org/docs/perell.html#3> 57 E-law resource, Judicial Precedent, Accessed on 25 May 2010, <http://www.e-
lawresources.co.uk/Judicial-precedent.php>
29
However, persuasive authority may guide the judge in making the decision in the
instant case. Persuasive precedent may come from a number of sources such as lower
courts, "horizontal" courts, foreign courts, statements made in dicta, treatises or law
reviews. In Civil law and pluralist systems, as under Scots law, precedent is not binding
but case law is taken into account by the courts58.
In addition to binding precedents, there exist persuasive precedents. These consist
of judicial statements which are not binding but may be taken into account. A form of
persuasive precedent is obiter dicta. Persuasive precedents also include case law from
other jurisdictions and traditionally the Privy Council decisions have been merely
persuasive on the English courts. However, exceptionally the Privy Council may be
binding59.
2.3.2. Expert witnesses
In order for the judge to decide whether a professional man fall below the
standard of care required of average competent professional, the assistance of expert
witnesses is needed. An expert witness or professional witness is an expert, who by virtue
of education, training, skill, or experience, is believed to have expertise and specialized
knowledge in a particular subject beyond that of the average person, sufficient that others
may officially and legally rely upon the witness's specialized in scientific, technical or
58 Wikipedia, Persuasive Precedent, Accessed on 25 May 2010,
<http://en.wikipedia.org/wiki/Persuasive_precedent#Courts_in_other_countries> 59
E-law resource, Judicial Precedent, Accessed on 25 May 2010, <http://www.e-
lawresources.co.uk/Judicial-precedent.php>
30
other matters of opinion about an evidence or fact issue within the scope of his expertise,
referred to as the expert opinion, as an assistance to the fact-finder60.
As a general rule that witnesses that are called to give evidence are not permitted
to express their opinions. They are not permitted to speculate on the course of events or
draw inferences from the facts. It has long been recognized that there are matters where
specialist skill, knowledge or expertise may be required to draw inferences from the
evidence given by the witness61. As early as 1553 Sauders J said in Buckley v. Rice-
Thomas62 that if matters arise in our law which concern with other sciences or faculties,
we commonly apply for aid of that science or faculty which it concerns.
As expert witnesses, there is certain duty and responsibility to make sure that the
evidence given by the expert witness is not tainted by impartiality, biased or anything that
might compromise the evidences. Expert evidence presented to the court should be and
should be seen to be the independent product of the expert uninfluenced in form or
content by the exigencies of litigation. Independent assurance should be provided to the
court by way of objective unbiased opinion regarding matters within the expertise of the
expert witness63.
Facts or assumptions upon which and opinion was based should be stated,
together with material facts that could detract from the concluded opinion. An expert
should be clear when a question falls of his or her expertise. If the opinion is not properly
60
Wikipedia, Expert Witness, Accessed on 30 May 2010, <http://en.wikipedia.org/wiki/Expert_witness> 61 John Adriaanse, Construction Contract Law, 2
nd Edition, Published by PALGRAVE MACMILLAN in
2007, page 268- 271. 62
(1554) 1 Plowd 118 63
Op cit, John Adriaanse.
31
researched because it is considered that insufficient data is available, then that must be
stated, together with an indication that the opinion is provisional. If the witness cannot
assert that the report contains the truth, that qualification should be stated on the report.
The application of the Bolam test required the assistance of expert witnesses,
since only specialists can assist the court in deciding whether the professional fell short of
the standard required of the average competent professional. A useful and informative
example of the approach of a judge assessing the value of the evidence of the expert
witnesses is contained in Wimpey (1984). The expert was among the most prominent
practitioner in the field of geotechnical engineering. The judge found that much of their
evidence was of little assistance in deciding the standard required of the average
competent designer of structures in soil, indicating perhaps that getting the top man or
woman may not always be a help to a case64.
In the case law of Midland Bank Trust (1978), Ward LJ stated that:
“Clearly, if there is some practice in a profession, some accepted
standard of conduct laid which is laid by professional institute or
sanctioned by common usage, evidence of that can and ought to be
received. But evidence which really amounts to no more than an
expression of opinion by a particular practitioner of what he thinks he
would have done had he been replaced, hypothetically and without the
benefit of hindsight, in that position of the defendant, is of little assistance
to the court.” 64
Ibid
32
In Stanton v. Brian Callaghan65, the court of appeal considered in detail the
question of immunity of expert witnesses. The claimant’s expert witness agrees at a
meeting of the expert that a less expensive remedial scheme was appropriate. The
claimant alleged that the expert acted negligently in doing so. The appeal was struck out
in the court of appeal on the ground of public policy. It requires that experts should be
able to reach agreements at meeting between experts without fear that they would be sued
in negligence. In doing so they were immune from such claims66.
2.4 The Principle in Professional Negligence
Proving a professional negligence case can sometimes is challenging. Most
laypeople do not have a clear idea of what the duty of care might be in a specific case,
because they lack the skills, training, and experience which professionals have. Thus,
they must rely on testimony from other professionals who can discuss the standards of
care in similar situations.
Construction professionals, as with other professionals, may be liable to their
clients and third parties for damage and loss caused by the professional's negligence. The
starting point in any professional negligence claim is to consider whether the losses are
recoverable in contract. However, liability in tort becomes important where the
contractual route is unavailable: where the arrangement of commercial transactions
65 (1999) 2 WLR 745, (1999) BLR 172
66 Op cit, John Adriaanse.
33
results in no direct contractual relationship between the parties, where one of the parties
has become insolvent or where the limitation period in contract has expired67.
The usual rules to establish negligence rely on establishing that a duty of care is
owed by the defendant to the claimant, and that the defendant is in breach of that duty.
The standard test of breach is whether the defendant has matched the abilities of a
reasonable person. But, by virtue of the services they offer and supply, professional
people hold themselves out as having more than average abilities. The Bolam test
determines the standards against which to measure the legal quality of the services
actually delivered by those who claim to be among the best in their fields of expertise.
2.4.1 Bolam v Friern Hospital Management Committee
Bolam v Friern Hospital Management Committee68 is an English tort law case
that lays down the typical rule for assessing the appropriate standard of reasonable care in
negligence cases involving skilled professionals. In Bolam v Friern Hospital
Management Committee, McNair J remarked, but where you get a situation which
involves the use of some special skill or competence, then the test whether there has been
negligence or not is not the test of the man on the top of a Clapham omnibus, because he
has not got this special skill. The test is the standard of the ordinary skilled man
exercising and professing to have that special skill.
67 Finola O'Farrell, Professional Negligence In The Construction Field, Accessed on 13 May 2010,
<http://www.thefreelibrary.com/Professional+Negligence+In+The+Construction+Field-a0203767583> 68 [1957] 1 WLR 583
34
Judgment by McNair J in the celebrated case of Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582, namely:
“A doctor is not guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible body of medical
men skilled in that particular art. A doctor was not guilty if he was
acting in accordance with that practice merely because there was a
body of opinion which would take a contrary view.”
There are two stages to the Bolam test. The first stage imposes a requirement on a
professional person, to exercise reasonable care in undertaking the task associated with
his particular professional calling. The second stage which is more commonly invoked is
the assertion that a professional defendant will not be liable under the first stage if he has
complied with a responsible professional practice, allowing for the possibility that there
may be more than one such practice. In essence this test expects standards which must be
in accordance with a responsible body of opinion, even if others differ in opinion.
Mc Nair J s direction may thus be concluded as - the doctor must have acted in
accordance with an accepted medical practice; and that the accepted practice must be
regarded as proper by a responsible body of medical men in that art. This direction was
devotedly followed by the courts in medical negligence suits involving wrongful
diagnose, negligent treatment and in providing advice to a patient on the inherent or
material risks of the proposed treatment69.
69 Op cit, Saraswathy Shirke.
35
2.4.2 Bolitho v City and Hackney Health Authority
The decision in Bolitho v City and Hackney Health Authority (1997) created a
modification to the ruling in Bolam. A Lord Browne-Wilkinson gave the following two
statements, which somewhat restrict the boundaries of the Bolam test70:
The court should not accept a defense argument as being 'reasonable',
'respectable' or 'responsible' without first assessing whether such opinion is
susceptible to logical analysis. However, where there is a body of medical opinion
which represents itself as 'reasonable', 'responsible' or 'respectable' it will be rare
for the court to be able to hold such opinion to be other than represented.
This Bolitho ruling means that testimony for the medical professional who is
alleged to have carried out the medical negligence can be found to be unreasonable,
although this will only happen in a very small number of cases. Note how the words
‘reasonable’ and ‘responsible’ have been introduced into the standard, importing an
objective element into the Bolam test thereby detaching it from resting purely upon
received medical opinion. In light of this, a judge can choose not to accept a body of
medical opinion evidence that is not coherent when subject to logical analysis.
70 Op cit, You Claim.
36
2.4.3. Maynard v West Midlands Health Authority
Lord Scarman in the case of Maynard v West Midlands Health Authority71 stated:
I have to say that a judge’s ‘preference’ for one body of distinguished
professional opinion to another also professionally distinguished is not
sufficient to establish negligence in a practitioner whose actions have
received the seal of approval of those whose opinions, truthfully
expressed and honestly held, were not preferred. …For in the realm of
diagnosis and treatment negligence is not established by preferring one
respectable body of professional opinion to another.
In the realm of diagnosis and treatment there is ample scope for genuine
difference of opinion and one man clearly is not negligent merely because his conclusion
differs from that of other professional men. The true test for establishing negligence in
diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty
of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary
care.
A doctor who professes to exercise a special skill must exercise the ordinary skill
of his specialty. Differences of opinion and practice exist, and will always exist, in the
medical as in other professions. There is seldom any one answer exclusive of all others to
problems of professional judgment. A court may prefer one body of opinion to the other,
but that is no basis for a conclusion of negligence.
71 [1985] 1 All ER 635
37
The reason for his Lordship taking such a view is that there are, and always will
be, differences of opinion and practice within the medical profession. One answer
exclusive of all others is seldom the solution to a problem that requires professional
judgment. A court may prefer one body of medical opinion to another, but that does not
amount to a conclusion of negligence72.
2.4.4. Fiona Foo v Dr Soo [2007]
In Fiona Foo v Dr Soo [2007] the Federal Court initiated departure from the
Bolam test favouring the approach in Rogers v Whitaker (1992). In essence the Rogers
test accepts that the standard of care to be observed by a person with some special skill or
competence is, that of the ordinary skilled person exercising and professing to have that
special skill. But, that standard is not determined solely by reference to the practice
followed or supported by a responsible body of opinion in the relevant profession or
trade. This approach grants greater opportunity for judicial scrutiny of professional
practice and ensures that the expected standard in law is attained. The full effect of this
decision in shaping the outcome of liability for professional negligence apart from
medical negligence cases is yet to be seen73.
72 Op cit, Ash Samantha and Jo Samantha.
73 Op cit, Saraswathy Shirke.
38
2.5. Conclusion
This chapter containing the theory of negligence is important for the professional
to know what elements that will be look upon when being alleged for negligence. This
element is the most basic method in order to prove negligence. Without proving even one
of the elements, negligence cannot be established. There is a slight different between
negligence by normal person then by professional person that’s has higher degree of skill.
There is technical aspect are involves in those cases that makes professional negligence is
far more refined than the negligence it self. Even thought that the elements are still the
same, proving each element would consider a different ways and method in proving it in
normal way. In the next chapter the theory of liability by professionals is discussed to
obtain the general knowledge on the liability and also the definition of professionals.
39
Chapter 3
Liability of construction Professional
3.1. Introduction
A professional is a member of a vocation founded upon specialized educational
training. A professional may be described as a person whose work is skilled and
specialized. He holds some special qualifications derived from training or experience and
conforms to high standard of performance and work ethics. The word professional
traditionally means a person who has obtained a degree in a professional field. The term
professional is used more generally to denote a white collar working person, or a person
who performs commercially in a field typically reserved for hobbyists or amateurs. He
normally belongs to a regulatory body which prescribes common rules of conduct and
standards of practice74.
74 Wikipedia, Professional, Accessed on 12 May 2010, <http://en.wikipedia.org/wiki/Professional>
40
Bingham LJ in the case of Eckersley v Binnie & Partners [1988] observed75:
“A professional man should command the corpus of knowledge which
forms part of the professional equipment of the ordinary member of his
profession. He should not lag behind other ordinarily assiduous and
intelligent members of his profession in knowledge of the new advances,
discoveries and developments in his field. He should be alert to the
hazards and the risk inherent in any professional task he undertakes to the
extent that other ordinarily competent members of the profession would be
alert. He must bring to any professional task he undertakes no less
expertise, skill, and care than other ordinarily competent members would
bring but need bring no more. The standard is that of the reasonable
average.”
In western nations, such as the United States, the term commonly describes highly
educated, mostly salaried workers, who enjoy considerable work autonomy, a
comfortable salary, and are commonly engaged in creative and intellectually challenging
work. Less technically, it may also refer to a person having impressive competence in a
particular activity76.
75 Op cit, Saraswathy Shirke.
76 Wikipedia, Professional, Accessed on 10 May 2010, < http://en.wikipedia.org/wiki/Professional>
41
While there is no agreed definition of a profession, the Australian Council of
Professions (Professions Australia) defines a profession as77:
'A disciplined group of individuals who adhere to high ethical standards
and uphold themselves to, and are accepted by, the public as possessing
special knowledge and skills in a widely recognised, organised body of
learning derived from education and training at a high level, and who
are prepared to exercise this knowledge and these skills in the interest of
others. Inherent in this definition is the concept that the responsibility
for the welfare, health and safety of the community shall take
precedence over other considerations.'
3.2. Construction Professional
The construction industry involves competent professional men with impressive
credence in architecture, engineering ranging from civil, electrical, mechanical, geo-
technical and structural, quantity surveying and so on. Construction professionals are,
namely78:
77 Dr John Southwick, 'Australian Council of Professions’ view', during proceedings of a joint conference
On competition law and the professions, Perth, April 1997, Accessed on 10 May 2010,
<http://www.accc.gov.au/content/index.phtml/itemId/277772> 78 Op cit, Saraswathy Shirke.
42
a) Builders/developers/owners
b) Architects, engineers, interior designers and consultants who collectively
represent the design team;
c) Cost engineers or quantity surveyors;
d) Project managers;
e) Claims consultants and risk managers
f) Contractors
g) Legal advisers;
h) Accountants;
(i) Regulatory government or professional bodies.
3.2.1. Architect
Architecture is both the process and product of planning, designing and
constructing space that reflects functional, social, and aesthetic considerations. It requires
the manipulation and coordination of material, technology, light, and shadow.
Architecture also encompasses the pragmatic aspects of realizing designed spaces, such
as project planning, cost estimating and construction administration.
To establish that Architect is a professional as a profession, first the Architect
need to be registered Architect. Requirements for registration as professional architects is
the applicant shall be a person who is a citizen or permanent resident of Malaysia, is a
registered Graduate Architect, has obtained the practical experience as prescribed by the
Board, has passed the Part 3 Professional Examination and is a Corporate Member of the
Malaysian Institute of Architects (PAM). In Malaysia the Architect is considered a
professional because of the regulatory bodies to govern all of the rules and conduct of an
43
Architect. The Board of Architect responsible for all of registered Architect and practices
conducted. The Architect also has its own Architect Act 1967 and Architect Rules
199679.
3.2.2. Engineer
Construction engineering concerns the planning and management of the
construction of structures such as highways, bridges, airports, railroads, buildings, dams,
and reservoirs. Construction of such projects requires knowledge of engineering and
management principles and business procedures, economics, and human behavior.
Engineers need to have satisfied with the training requirement and registered as a
graduated Engineer with Board of Engineer Malaysia to be able to apply to become
professional Engineers. A registered Graduate Engineer is required under Section 10(1)
(b) of the Act to obtain practical experience in order to be entitled to sit for the
Professional Assessment Examination (PAE) which is a prerequisite to apply for
registration as a Professional Engineer. Have passed the Professional Assessment
Examination (PAE) of BEM or be elected as a Corporate Member of the Institution of
Engineers Malaysia (IEM). Then the engineers are considered as professional. The Act
and regulation for engineer is Engineers Act 1967 (Revision 2007), Regulation 1990
(Revision 2003) and Code of Professional Conduct80.
79
Board of Architect Malaysia, Accessed on 10 May 2010, < http://www.lam.gov.my/> 80
Board of Engineers Malaysia, Accessed on 10 May 2010, < http://www.bem.org.my/v3/index.html>
44
3.2.3. Quantity surveyor
A quantity surveyor (QS) is a professional working within the construction
industry concerned with building costs. The Quantity Surveyor is qualified and
adequately trained to advice on all aspects of construction costs, financial and contractual
administration. Quantity Surveyor is an expert on the cost and management of
construction projects, whether building, civil or heavy engineering.
To be a registered Quantity Surveyor must have been employed as Quantity
Surveyor and under a registered Quantity Surveyor supervision for a minimum period of
two years. Must have passed the Test of Professional Competence conducted jointly by
the Board and the Institution of Surveyors Malaysia. All of Quantity Surveyor is
governing by the Quantity Surveyor Act 1967 (amendment 2002) (Act 487)81.
3.3. Liability of Construction Professionals under contract and tort
Traditionally, the professions operate in spheres where success cannot be
achieved in every case. Very often success or failure depends upon factors beyond the
professional man’s control. Even where the critical factors are within the professional
man’s control, he cannot guarantee success. In matters of fine judgment or great
complexity no human being can be right every time.
81 Board of Quantity Surveyor, Accessed on 10 May 2010,
< http://www.bqsm.gov.my/bqsm/a_public/index.asp>
45
In Greaves & Co. v. Baynham Meikle82, lord Denning M.R. stated;
“Apply this to the employment of a professional man. The law does not
usually imply a warranty that he will achieved the desired result, but only
a term that he will use reasonable care and skills. The surgeon does not
warrant that he will cure the patient. Nor does the solicitor warrant that
he will win the case.”
The law relating to professional negligent is not confined to tort. In some cases
the appropriate cause of action is contract. In the area of professional negligence, it is
often tort and contract overlapping with one and another. Even though that negligence
seems to be falling in the tort area, but the action will often be in contract on the basis of
professional did not exercise due skills and care in carrying out his duties under the
contract83. In Jarvis v. Moy, Davies, Smith Vandervell & Co
84, Greer J said:
“The distinction in the modern view, for this purpose, between contract
and tort may be put thus where the breach of duty alleged arises out of
liability independently of the personal obligation undertaken by contract,
it is tort and it may be tort even though there may happen to be a contract
between the parties, if the duty in fact arises independently of that
contract. Breach of contract occurs where that which is complained of is a
breach of duty arising out of the obligation undertaken by the contract”
82 (1975) 1 WLR 1095
83 Ashley Underwood & Stephen Holt, Professional Negligence, 1
st Publish April 1981, Fourmat Publishing
Limited, 25 Bedford Row London WC1R 4HE, page 1 – 3. 84 (1936) 1 KB 299
46
Thus the liability of construction professional is fall under two part as in tort and
under the contract. Where there is no contract then the action must be in tort, the
judgment arises from the case law of Saif Ali v. Sidney Mitchell & Co85.
3.3.1. Liabilities under Tort
No precise definition of the word ‘tort’ can be formulated, but workable meaning
is that tort encompasses civil wrongs other than breach of contract. Tort includes damage,
injury, or a wrongful act done willfully, negligently, or in circumstances involving strict
liability, but not involving breach of contract, for which a civil suit can be brought. The
most common tort is negligence and this is the usual complaint made by a plaintiff in a
professional malpractice case. Negligence can be established by plaintiff if defendant
breaches his duty of care to the plaintiff.
3.3.1.1. Duty of Care
Duty of care is a legal term used to describe a standard of behavior that is
expected of a person or organization. Such standards will generally vary depending upon
the roles of the individuals in a given relationship. This term can apply, however, to
standards in a wide range of situations. Often, there are laws that hold people responsible
85 (1978) 3 ALL ER 1033
47
for actions that are considered unreasonable given the situation. The principle supporting
duty of care is generally sensibility86.
The origin of this duty is form way back on 1932 in the case of Donoghue v
Stevenson87 where there was a decision of the House of Lords that established the modern
form of the tort of negligence. The leading judgment was delivered on 26 May 1932 by
Lord Atkin. The most famous section was his explanation of the "neighbor" principle,
which was derived from principle of "loving your neighbor";
“There must be, and is, some general conception of relations giving rise to
a duty of care, of which the particular cases found in the books are but
instances. ...The rule that you are to love your neighbor becomes in law
you must not injure your neighbor; and the lawyer's question: Who is my
neighbor? Receives a restricted reply. You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbor. Who, then, in law, is my neighbor? The answer
seems to be - persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions that are called in
question . . . a manufacturer of products, which he sells in such a form as
to show that he intends them to reach the ultimate consumer in the form in
which they left him with no reasonable possibility of intermediate
examination, and with knowledge that the absence of reasonable care in
the preparation or putting up of products will result in an injury to the
consumer's life or property, owes a duty to the consumer to take that
reasonable care”.
86 S.E. Smith, What is the duty of care? Accessed on 12 May 2010,
< http://www.wisegeek.com/what-is-the-duty- of-care.htm> 87[1932] AC 562
48
Expectations of how a person should act are also affected when the relationship
that exists between two parties is a professional one. When a professional, such as doctor
or lawyer, is accused of violating her duty of care, she may be sued for negligence. A
doctor, for example, has a duty to treat her patients with the competence and efficiency of
her peers. If she does not, and her actions result in harm, she may be found guilty on the
grounds that she did not fulfill her duty of care88.
Such standards can exist in situations other than those that involve two
individuals. It may be found that a business neglected its duty to another business. It is
also possible for a party to violate standards of care regarding things such as animals or
the environment. Since duty of care is generally a tort, a person is not usually
incarcerated if a court finds that she did not act sensibly. In many cases, the consequences
involve the payment of damages. There may also be professional repercussions, such as
the loss of licensing or the forced closure of a business89.
At common law, the present test to establish duty of care was enunciated in
Caparo Industries Plc v Dickman [1990] and is applicable to all negligence claims,
including claims for pure economic loss arising out of professional negligence. Lord
Bridge adopted an incremental approach to determine the existence of a duty of care and
the scope of such a duty. His Lordship held90:
“What emerges is that, in addition to the foreseeability of damage, the
necessary ingredients in any situation giving rise to a duty of care are that
88 Op cit, S.E. Smith.
89 Ibid
90 Op cit, Saraswathy Shirke.
49
there should exist between the party owing the duty and the party to whom
it is owed a relationship characterized by the law as one of proximity or
neighbourhood and that the situation should be one in which the court
considers it fair, just and reasonable that the law should impose a duty of
a given scope upon the one party for the benefit of the other. But it is
implicit in the passages referred to that the concepts of proximity and
fairness embodied in these additional ingredients are not susceptible to
any such precise definition as would be necessary to give them utility as
practical tests, but amount in effect to little more than convenient labels to
attach to the features of different specific situations which, on a detailed
examination of all the circumstances, the law recognises pragmatically as
giving rise to a duty of care of a given scope”.
Thus in order to impose a duty of care on the defendant the Caparo test must be
answered in the affirmative - whether the damage suffered by the plaintiff is reasonably
foreseeable and whether there is a relationship of proximity between the plaintiff and
defendant; and whether it is fair and reasonable that the defendant should owe the
plaintiff a duty of care.
3.3.1.2. Standard of Care
In the law, the standard of care is the course of action which a reasonable person
would follow in a given situation. This standard is used when evaluating civil cases to
determine whether or not someone with a duty of care acted responsibly. Anyone who
engages in an activity which might put someone at risk, from driving a car to performing
50
surgery, has a duty of care. People who do not follow the standard of care can be liable
for injuries they cause91.
The standard of care is not universal. Different people are held to different
standards. Professionals such as doctors and lawyers, for example, are held to a standard
of care which asks not what a reasonable person would do, but specifically what a
reasonable doctor or lawyer would do. This recognizes that professionals have special
qualifications and certifications and advertise themselves as uniquely qualified, and thus
they should be held to a higher standard of care92.
A standard of care is very different. It is the amount of care required by certain
people under certain situations and does not usually apply to everybody. It is a measure
of care, not just a duty. It is usually more than the simple reasonable care required of
ordinary people. A doctor must perform to a certain standard of care when he performs
medical services. The same can be said for a construction professional. All the similarly
situated professionals must adhere to the same commonly accepted standard of care used
by their fellows. If they use methods that are not the standard used by their brother or
sister professionals, they may have violated the standard of care for their profession and
be subjected to penalties. Thus, the phrase "standard of care" is used in malpractice cases
mostly.
Negligence is not defined as lack of perfection. Defects might result from some
error in judgment or honest oversight and yet not constitutes negligent if the requisite
91
Op cit, S.E. Smith. 92 Ibid
51
standard of care has been exercised. In absence of special circumstances, a professional
does not guarantee perfection or satisfactory results, but is only held responsible for
failure to exercise reasonable care and skills.
Each person is expected to exercise the skills and abilities that he possesses. A
specialist or one capable of extraordinary accomplishment must meet higher standard
than the ordinary practitioner in the same activity since it is reasonable to expect a higher
level of performance from a specialist. Any licensed professional hold must have at least
minimum knowledge and skills possessed by others in the same profession who
undertake the same work. If one somehow represent one as having greater skills, the
margin of acceptable error narrows.
The standard of care may vary geographically, since what is an acceptable and
common practice in one locality may differ from that in another place. When judging on
professional work, the element of time is important since reasonably prudent practice
changes over time. What was one accepted as a way of doing things may now be
considered outmoded. The work of professional should be judge by the standard of care
prevailing at the time and in the place where the work was done. When the designer is
asked to undertake work involving new or unusual concept, materials or techniques, there
is even greater leeway tolerated in judging legally the results the will be produces93.
When evaluating cases of this nature, one consideration is that there may not be
one right course of action for a given situation. A reasonable and qualified doctor, for
example, might approach a medical issue in a number of different ways, all of which
would be considered legitimate and appropriate. A reasonable doctor would not,
however, engage in activity which might put a patient at risk of injury, such as failing to
93 Op cit, Harrison Streeter, page 8 and 9.
52
screen for infection in a patient with a fever, or not providing pain management to a
patient after a surgery94.
3.3.1.2.1. Reasonable Skills and care
Reasonable care is the level of care which an ordinary and reasonable person
would use under comparable circumstances. In the law, it is used as a standard to assess
liability. If it can be demonstrated that someone had a duty of care and failed to exercise
reasonable care, that person can be held negligent and may be liable for damages. On the
other hand, if someone exhibited reasonable care and something happened anyway, this
person would not be considered negligent95.
The standard of reasonable care becomes more complicated for professionals,
because professionals are not considered ordinary individuals since they provide services
on the basis of additional qualifications. Professional negligence involves neglecting the
standard of care expected in the profession, rather than exhibited by an ordinary person.
A doctor's duty of care, for example, is dependent on professional training which the
doctor should have applied to a case. If it can be demonstrated that a doctor failed to act
in a manner consistent with other medical professionals, it may be deemed professional
negligence and the doctor could be held liable for injuries incurred as a result96.
94 Op cit, S.E. Smith.
95 Ibid
96 Ibid
53
Most standard contracts that involve professionals will incorporate express terms
spelling out the conditions of performance featuring words like utmost skill and care and
professional standard of care and diligence. Even where these terms do not appear in the
contract, the court will always imply that their engagement is subject to a general and
basic duty to employ reasonable skill and care. Oliver J in Midland Bank Trust Co Ltd v
Hett Stubbs & Kemp [1979] made the following observation on duty to exercise
reasonable skill and care97:
“It concentrates attention on the implied obligation to denote to the client
s business that reasonable skill and care to be expected from a normally
competent and careful practitioner as if that obligation were not only
compendious but also an exhaustive definition of all the duties assumed
under the contract created by the retainer and its acceptance”.
The standard of care owed by the plaintiff to the defendant is of reasonable care
and skill in carrying out its duties. This standard is judged objectively. In relation to an
action for negligence against an architect for breach of duty to supervise, the Singapore
Court of Appeal's case of Sim & Associates v Alfred Tan is particularly relevant. At p
185, Karthigesu JA held that98:
The architect is only required to give reasonable supervision to the
building works and whether he has breached the requisite standard of
supervision must be measured against the standard expected of a
reasonably skilled architect. An architect's liability is not absolute in the
sense that he is liable whenever loss results from his acts. It must be
shown that he has been negligent in that he has failed to exercise the
97
Op cit, Saraswathy Shirke. 98 [1994] 3 SLR 169
54
requisite standard of care; a person alleging negligence against an
architect must call evidence as to what constitutes lack of care in the
circumstances.
The standard of reasonable care and skill is not a standard of perfection. It is not
sufficient to show an error in order to establish a failure to exercise reasonable care and
skill. Actual negligence must be proven. In the House of Lords decision in Sutcliffe v
Thackrah & Or Lord Salmon held as follows99:
“It by no means follows that a professional valuation was negligently
given because it turns out to be have been wholly wrong. Nor does the fact
that an architect's certificate was given for the wrong amount of itself
prove negligence against the architect. Whether or not there has been
negligence is, of course, a pure question of fact depending upon the
particular circumstances of each case.”
3.3.1.3. Strict liability
The concept of strict liability in tort or liability without fault is based largely on
what the court and legislatures perceive as a social need. In effect, the concept sometimes
referred to as deep pocket approach. Under worker compensation the employer must pay
for an employee’ accidental injury receive out of and in the course of employment, even
if the employer is free from fault and employee’ own negligent caused the injury. Worker
as a class cannot afford the financial burdens imposed on them by such injuries, but
99
[1974] AC 727
55
employer can absorb the loss and pass it on to their customers in increased prices for
goods and services100.
Much the same idea exists with the products liability. A manufacturer whose
product contains a defect rendering it reasonably dangerous in its intended use must pay
damages to a person damaged because of the defect. It makes no different that the very
highest standard of care was used in the design and manufacture to the product.
The courts have uniformly rejected the application of strict liability to
professional services. However some recent court decisions have held that structures
provided under design and build contracts could be classified as products rather than as
the result of professional services. In this way strict liability might be used as a cause
against an architect or engineer101.
3.3.1.4. Absolute Liability
Absolute liability is not the same as strict liability. In the latter, certain condition
must be satisfied before the claimant can succeed. Workers compensation is paid only for
those injuries arising out of and in the course of employment, not for any and all injuries.
Manufacturers are strictly liable only when a defect in their products causes injury, and
not for all injuries that people receive from the product. If it were otherwise, the liability
would be absolute. Absolute liability is imposed on those who responsibility for some
100
Op cit, Harrison Streeter, page 10. 101 Ibid
56
extra hazardous activity or instrumentality. The rendering of personal professional
services does not subject one to absolute liability102.
3.3.2. Liabilities under Contract
Professional renders their services to client under contracts and thereby
establishes legal right and duties on both sides. Failure to perform these duties constitutes
contract breach, which requires, in most case, dollar damages be paid to the opposite
party. A serious failure to fulfill his contractual obligation may well be a legal reason to
deprive him of his fee. Courts in several jurisdictions have held that a professional who,
under contract, renders services in a negligent way has thereby also committed breach of
the contract, since an implied term of agreement is that the services will be performed
according to the professional standard of care. The client may use the fact to sustain a
case under either negligent or breach of contract103.
As Oliver J. pointed out in Midland Bank v. Hett, Stubbs & Kemp104, the
obligation to exercise reasonable skill and care is not the only contractual term which
ought to be considered in a professional negligence action. Nevertheless in every contract
between a professional man and his client there will be express or implied terms defining
the nature of the engagement. Thus if Surveyor is instructed to produce a report on
certain property, there is an express or implied obligation to inspect it. If a surgeon agrees
102
Ibid 103 Ibid, page 11.
104 (1979) Ch. 384
57
with his patient to perform a particular operation, there may be an implied term that he
will give the necessary supervision thereafter until the discharge of the patient. The
important of specific terms such as this is that a professional man will be liable if he
breaks them, quite irrespective of the amount of skill and care which he has exercised105.
3.3.2.1. Warranty
Warranty is a hybrid legal right, a cross between tort and contract. A warranty
generally is an undertaking or stipulation that a certain fact is or shall be as promised to
be. It arises out of a contract but need not be in the actual contract itself.
3.3.2.1.1. Express warranty
Express warranty is based on an affirmation of fact, usually words, relied on by
the claimant, but any other form of representation will suffice. Mere words of opinion or
estimate do not constitute a representation, rather an actual statement is requiring. The
word need not be in writing and need not include the word warranty or any other formal
expression but must carry with them an undertaking that a certain fact relating to the
subject of the contract will be as stated or promised.
105 Rupert M. Jackson & John L. Powell, Professional Negligence, Published in 1987, Sweet & Maxwell
Ltd. Of 11 New Fetter Lane, London. Page 7- 8.
58
Thus express warranty becomes a part of the actual bargain made between the
parties. The danger to a professional is that in bringing about a contract for services or in
the actual contract itself, words might be used which will be legally interpreted as a
guaranty to produce certain result or to meet a standard of perfection in the work. Express
warranty is definitely recognized as a legal cause of action against professional who fails
to deliver what they have represented they will deliver106.
3.3.2.1.2. Implied warranty
Implied warranties are inferred by law, without the need for any words or other
representations by party to the transaction. Two specific implied warranties, of
merchantability and fitness for purpose are of great importance in sales of goods107. A
merchant who sells goods to a customer implies that the goods are reasonably fit for the
ordinary purposes for which such goods are used. Although it can be argued that a
professional impliedly promises his or her client to exercise the legally required standard
of care, this care is really what the law of negligent requires, and negligent is the proper
remedy for the client to pursue108.
If the seller of goods knows or has reason to know at the time of contracting with
the buyer that the buyer has a particular purpose for which the goods are required, and the
buyer is relying on the sellers skills or judgment to select or furnish goods to the buyer
106
Op cit, Harrison Streeter, page 11. 107
Ibid, page 13. 108
Ibid
59
that are suitable for that purpose, the sellers implied warrants that the goods shall be
suitable. This situation appears much like that between client and professional. The
former makes known certain need but, lacking expertise, request and relies on the
professional’s skill and judgment to provide the plan or design109.
By way of exception to the general principle for fit for purpose, there are some
cases that which professional ma is simply required to achieve a specified result and there
is no need for contractual term defining the skill and care which he must use. For an
example a dentist agrees to make a denture for his patients, his obligation is not to
exercise reasonable skill and care but to produce a denture which will be fit for
purpose110.
3.3.3. Limitation of Liability
Commercial buildings are rarely constructed for the sole use of the employer under
the construction contract. The employer may for example be a building developer, a
public body, a speculative builder or a housing co operative. For this reason, allocating
responsibility for latent defects that occur past completion is of major importance when
selling or leasing the completed building or development. The liability of the construction
professionals is not only during the construction process, but its extent toward several
years after practical completion or final certificate111.
109
Ibid 110 Op cit, Rupert M. Jackson & John L. Powell, Page 8.
111 Op cit, John Adriaanse, page 288-295.
60
The issue of a certificate of practical completion triggers the defects correction
period or the defect liability period. At the end of the period a list of defects is produced
that the contractor must rectify in reasonable time. Then after the defect has been rectify,
the issuance of the final certificate. It was held in Crown Estate (1995) that final
certificate need to be conclusive evidence that all work has been properly carried out.
Final certificate act as an evidential bar to the allegation whether the work has been or not
properly carried out. This applied to both patent and latent defects. It is provided that the
final certificate is only conclusive of matters left to the reasonable satisfaction of the
architect. For all practical purposes, the limitation period begins. In s simple contract the
period is 6 years from the date of breach112.
In case law of Junior Books v. Veitchi Co. Ltd113, an appeal case from Scotland
that involves economic losses. The contractor entered into a contract with a company to
construct a factory. A specialist flooring subcontractor was nominated to carry out the
flooring work. Two years after completion, the floor develop a crack on the surface, and
the owner was faced with prospect of continual maintenance cost to keep the floor usable.
The owner brought an action against the subcontractor, claiming the floor was defective
because it had been laid negligently.
The subcontractor then in return claims that it had no course of action in tort
because the defective floor was not a danger to health and safety of any person. The court
held that the subcontractor owed the owner duty of care and had been negligent and had
breach of duty. This is because the relation ship between the owner and subcontractor
was so close as almost amount to a contract. A duty of care was owed to prevent harm
being done by faulty work, and this extended to the cost of repairs.
112
Ibid 113 (1982) 3 WLR 477
61
Closely allied to the issue of liability for post completion defects is the English
law of limitation of actions and the doctrine of privities of contract. Thus any review on
of the earlier cases on liability in tort must take into account that they were concerned
with the start of the limitation period, rather than the substantive issue of whether liability
existed at all. Limitation is the name given by lawyers to the rules that restrict the period
within which court actions must be started. Failure to start an action within time limits
does not in theory stop an action being brought. What it does is to allow the party being
sued to plead the defense that the claim is barred by statue.
3.3.3.1. Exclusion of liability
A professional’s man is bound to ask himself whether the law will permit him to
exclude or limits his professional liabilities by notice to those likely to be affected. A
reading of Hedley Byrne & Co. Ltd v. Heller & Partners Ltd might lead one to believe
that this can be done by an express exclusion of responsibility, as protected the defendant
bankers in that case. Since that decision, however, statue has intervened in the shape of
the Unfair Contract Terms Act 1977114.
The 1977 Act applies to all contractual terms or notices that purport to exclude or
restrict the liability of persons for negligence arising from things done in the course of
business. Any contractual terms or any notice or communication, which purport to
exclude limit a professional’s liability in respect of personal injury or death arising from a
breach of professional duties will be of no effect at all.
114 Digby Charles Jess, A guide to the insurance of professional negligence risks, London Butterworth
1982, Page 21 – 22.
62
3.3.3.2. Limitation of actions
The period which a party is prevented from pursuing construction professional for
breach of contract and negligence has been determine by statute. The method adapted by
the statue to achieve these aims is to fix a period after the expiry of which and action
cannot be pursued. In the case of proceeding brought in arbitration, the injured party
stops time running by serving on the party against whom he wishes to claim a notice to
concur in the appointment of an arbitrator. The issuing of a writ or the giving of a notice
to concur in the appointment of an arbitrator does therefore, fix the dates on which time
stops running for limitation purposes.
By referring Malaysian law in limitation act 1953 section 6, an action found under
the contract or tort shall not be brought after the expiration of six years from the date on
which the cause of action accrued. In United Kingdom, under the limitation Act 1980
section 5, a simple contract like an oral and written contract will be statue barred six
years after the time when the cause of action accrues. Under section 8, Contract under
seal will be statue barred 12 years from the time when the cause of action accrues.
Section 2 show claims in tort including negligence will be barred six years from the
accrual of the course of action115. In spartam-souther v. Town and Country Development
(Essex) ltd116, the court of appeal held that the six year period in tort does not begin to run
until plaintiff discovers, or ought with reasonable diligence to have discovered the
damage.
115 David L. Cornes, Design Liability in the Construction Industry, 2
nd Edition, Published by Collins
Professional and technical books 1985, Page 188-203. 116 (1976) 3 BLR 72
63
3.3.4. Scope of Duty for Construction Professionals
The scope of duty of project managers to exercise reasonable skill and care was
examined in the case law of In Royal Brompton Hospital NHS Trust v Hammond [2001],
the court held that117:
“The project managers had been negligent in failing to monitor decisions
by the architect to grant extensions of time to the contractor. Actions were
also brought against the architects and other members of the project team.
The case against the project managers was based upon a fundamental
misconception as to the scope of their duties; the project managers task
was to ensure that the contract administration decisions were undertaken
efficiently, not that they were all correct, since this would virtually oblige
the project managers to undertake everyone else s work”.
A project manager has an ongoing duty to act with reasonable skill and care in
respect of the overall project management exercising control over time, cost and quality.
Project manager’s duties will however vary depending upon the nature of the project, his
own skill and experience and the terms of his appointment contract. Most actions alleging
professional negligence against a project manager are likely to evolve around the
following118;
a) Poor supervision
b) Lack of communication
117 Op cit, Saraswathy Shirke.
118 Ibid
64
c) Failure to warn
d) Delay
e) Failure to meet the client s need
f) Not confirming to the Occupational Health and Safety Regulations;
g) Failure to ensure that a collateral warranty was entered into
h) Failure to secure adequate insurance coverage.
In the case law of George Fischer Holdings Ltd v Multi Design Consultants Ltd
(1998), the decision held on the scope of duties of Engineers and Architects. The court
held that it must be said that there lies a greater obligation to inspect carefully where the
works are critical and the design is riskier than usual. In another case law of Alfred
McAlpine Construction Ltd v Forum Architects [2002], the court decided that no duty of
care was owed by an architects partnership to a design and build contractor, since the
contract was with a limited company set up by the partnership. Design professionals can
hire others to assist them but they cannot delegate away their responsibility to see that the
work they have taken on is carried out with due care119.
A local case that involved professional negligent by engineers is in case law of
Lim Teck Kong v Dr Abdul Hamid Abdul Rashid [2006] that shows the extent of duty of
care by the consultant Engineers. The facts reveal that the defendant had failed to conduct
thorough tests on the site. The defendant also failed to examine whether it was safe to
build a building as per the design on the said site. The court in holding this as breach of
duty went on to state that the evidence further showed that the defendant failed to
conduct a thorough test of the soil when they recommended the building to be built on the
said land. As a consultant firm of civil and structural engineers the first defendant was
clearly negligent because he does not followed the normal procedures as expected by
119 Ibid
65
him. The scope of duties of Engineers that can be used for claims against negligence in
overall cases of professional negligence is120;
a) The expectation of engineer to supervise and investigate any of the potential
danger
b) Negligence to advice
c) Negligence design - Design to new concept/ new code
Another case that involved the failure of an Architect to inspect contractor works
is in Clay v AJ Crump & Sons Ltd [1964] the demolition contractors decided to leave
aside a wall that was intended to be demolished to guard against trespassers. The
architect having noticed the wall asked the demolition contractors whether it was safe for
the wall to be left in that state. The architect however did not inspect the wall on his own.
The wall collapsed and injured a workman. The workman succeeded in his action against
the contractor, the demolition contractors and the architect121.
In assessing the architect s liability, James Foong J in Steven Phoa Cheng Loon &
Ors v Highland Properties Sdn Bhd & Ors [2000] cited on the standard of care to be
applied to determine breach of duty. Justice Windeyer provided the standard to be122:
“An architect undertaking any work in the way of his profession accepts
the ordinary liabilities of any man who follows a skilled calling. He is
bound to exercise due care, skill and diligence. He is not required to have
an extraordinary degree of skill or the highest professional attainments.
120 Op cit, Chai Voon Chiet.
121 Op cit, Saraswathy Shirke.
122 Ibid
66
But he must bring to the task he undertakes the competence and skill that
is usual among architects practicing their profession. And he must use due
care. If he fails in these matters and the person who employed him thereby
suffers damage, he is liable to that person.”
As with other profession, the standard imposed upon Architect is that of
reasonable care and skill for a member of that profession. In other words, if an act falls
short of the standard accepted and implemented by other Architect, the standard had not
been reached. The most common duties of architect are123:
a) To advise and consult with the employer as to legal rights affecting
the use of land - Conformity with bye-law requirements is in
practice accepted by the Architect and the practice has been
recognized by the court in Townsend (Builders) Ltd. V. Cinema
News (1959) 1 WLR 119.
b) To examine the site, subsoil and surrounding – Before the building
can properly be planned, it is essential to know the situation of the
land and its condition of the subsoil.
c) To advise the employer in general on the contract – The view is
now current that the standard form of contracts available. Architect
is obliged to be familiar with them. It is though also that Architect
must bring them to the attention of the employer when the form of
the contract is under discussion.
d) To prepare and submit plans, specification and estimates – Plans
and the like must not only be complete and not defective, they
must be delivered within a reasonable time.
e) To supervise the works - The Architects duties to give reasonable
supervision, and that means such supervision as will enable him to
123 Ashley Underwood & Stephen Holt, Professional Negligence, 1
st Publish April 1981, Fourmat
Publishing
Limited, 25 Bedford Row London WC1R 4HE, page 67 - 73
67
certify that the work of the contractor has been executed
accordingly with the contract, and if he fails to do so, he will be
liable in damages to his employer.
In some of the cases where by a person that is not considered as professional but
taking a risk on doing what professional do in terms of scope of work, even it is clearly
that that person is unqualified, that person will be treated like a professional. In the case
law of Steven Phoa Cheng Loon & Ors v Highland Properties Sdn Bhd & Ors [2000]
involving this kind of situation where the defendant is an unqualified person who
represented himself as qualified and competent. It was held that the defendant s
misrepresentation as to his qualification makes little difference to the duty of care he
owes to the plaintiffs, if a man is unqualified but holds himself out to possess a skill, he
will be judged by the standards of a reasonably competent qualified person.
Quantity surveyors are the members of the surveyor’s profession most closely
concerned with contracts for work of construction. It is necessary for quantity to be taken
out of plan from any given works, so that contractor can tender on the basis of a firm
price, and in general such task is assigned to a quantity surveyor. The surveyor must, like
all professionals, use due skill and care appropriates to some one of his calling. In case
law of Waghorn v. Wimbledon Local Board124 where due the arithmetical error, the
employer suffered loss and held there is no negligent. It is submitted that if that case were
followed now it would be on the principle that such relativity small error is such as a
reasonable quantity surveyor might make, without having been negligence125.
124 (1877) HBC
125 Op cit, Ashley Underwood & Stephen Holt, page 73 – 74.
68
Another case that involving quantity surveyor is in case law of Dutton v. Louth
Corporation126 whereby the quantity surveyor was called upon to check for error bills of
quantities submitted for tenders. If he notices errors of substance operating against the
interest of the contractor it has been held he is under no duty to the contractor to inform
him127.
3.4. Conclusion
There are several professions within construction industry that are considered
professional. Each and every one of them is involved in work that has high liability to
them. The liabilities of construction professional namely are under both tort and contract.
This liability under tort and contract open up an action far more wide for the claim to be
made by the injured party. It seems that construction professional has enormous liability
to take care of and makes it a high risk profession to be sued upon. Understanding this
liability will make the scope of duty of each profession much clearer. It is also important
to know when that the liability will be discharged. All of these theories are crucial to a
professional for the defenses against any professional negligence claims. The next
chapter will try to find the different and summaries all of the criteria for this study.
126 (1955) 116 EG 128 (CA)
127 Op cit, Ashley Underwood & Stephen Holt, page 73 - 74
69
Chapter 4
Analysis
4.0 Introduction
Even though that the element of negligent is the basis to prove negligence, every
case has a different nature and background. Also the negligence by a professional’s man
is a little bit different than normal negligence because of the technical aspect involves in
the process especially involving construction professionals. Proving negligence it’s
always a challenging part and what method that the judge do to make that decision? The
criteria in what determine the judge to prove negligence is crucial to construction
professional.
This fourth chapter tries to find, discuss and establish the nature of the case-laws
that explored from the expanding role of professional negligence in construction cases.
70
This is the most important chapter in this research because the finding in this chapter will
conclude whether the objective has been met or not. The research Concentrates on the
tasks on what are the criteria that the judge use to prove negligence for construction
professionals. Throughout the cases, ten were selected based on their popularity in
construction industry and in wide range of construction professional’s.
4.1. Case Law analysis
4.2. Lim Teck Kong v Dr Abdul Hamid Abdul Rashid & Anor [2006] 3 MLJ 213
4.2.1. Fact of the Case
In this case, Dr. Abdul Hamid and his wife as a plaintiff and in need a
professional engineer to draw up a plan for his house. Plaintiff goes to the firm of
Consulting Civil and Structural Engineer owned by1st defendant. Plans of a double storey
house were then drawn and signed by the fourth defendant which was a registered
engineer with the Board of Engineers of Malaysia at the material time, but no longer so
after being struck off the rolls when he admitted to the regulatory body of engineers that
he breached the rules by operating two firms at the same time, one of which being the
first defendant.
Relevant building plans were submitted to the second defendant, the town council
of the area. On 18 September 1988 at about 3am, the plaintiffs were awakening by an
unusually loud sound. When the first plaintiff looked out of his bedroom window facing a
river below the house he was unable to see the tops of some trees which he had planted
on the slope. A concrete deck and the boundary brick wall which were erected on this
part of the land had tilted and collapsed respectively. By 6am, when sufficient daylight
appeared, the plaintiffs returned to inspect their house and found that virtually half of the
house facing the river had crumbled due to landslide.
71
Sometime in January 1990, the respondents issued a writ of summons and a
statement of claim against the appellant and four others. In the amended writ and the
statement of claim, the first defendant was Jurusan Malaysia Consultants
, the second defendant was Majlis Daerah Gombak, the third defendant was Mighty
Corporation Sdn Bhd, the fourth defendant is the appellant in the present appeal and the
fifth defendant was an individual by the name of Leow Kim Sang. After hearing the case,
the High Court, Shah Alam on 15 December 1996 made an order that the first, third and
fourth defendants do pay the sum of RM364,173 to be apportioned.
The claim of the respondents as against the second defendant was dismissed with
costs. As against the fifth defendant, the learned judge found that he was a clerk in the
first defendant's firm, although he represented himself as a partner in the first defendant's
firm. No order was made against him.
4.2.2. Judgment of the case
As the plaintiffs' contentions against the firm were not within any express and
specific condition in the written contract, the only basis the plaintiffs could rely on to
succeed was based on the legal concept of there being implied terms. The relationship
between Plaintiff and defendant is that the 1st defendant is a Consultant Engineers for
Plaintiff. The contract between them is performance of services by professionals. There is
close proximity between them. The contract existed between plaintiff & defendant Shows
that implied term also exist
72
From the facts, it was clear that the term that the first defendant must reasonably
and equitably be expected to take reasonable care and skill in the performance of the
contract qualified to be accepted as an implied term of the contract between the plaintiffs
and the first and fourth defendants. To test the degree of the reasonable skills and care,
the Bolam principle is used. His specialized craft was to advise and design structures that
are adequate and safe for a particular purpose. By means of expert witness defendant
failed to make assumption of where the water table was.
The failure of the first and fourth defendants to determine the soil condition to a
high degree of certainty was a breach of the implied term of its appointment to take
reasonable care. Other failures on the part of the first and fourth defendants were clear
breaches of professional duties. The first and fourth defendants were therefore liable for
breach of contract. Defendant has no systematic attempt to assess the stability of the
slope based on established engineering techniques' were adopted
In the present appeal, we are of the view that the losses by the plaintiffs were not
pure economic losses. The evidence shows that the damages suffered by the plaintiffs
were the loss of the bungalow which collapsed a few years after it was built on that site
where the first defendant failed to conduct thorough tests on the site, whether it was safe
to build a building as designed by the first defendant on that site. It was the duty of the
first defendant as consultant employed by the plaintiffs to ensure that it was safe to build
the building on that site.
The evidence shows that the first defendant failed to carry a thorough test of the
soil when they recommended the building to be built on the said land to the plaintiffs. For
the said reasons, we are of the view that the learned judge came to the correct conclusion
that the first defendant was also negligent and liable.
73
4.3.Steven Phoa Cheng Loon & Ors V Highland Properties Sdn Bhd & Ors [2000] 4
Mlj 200
4.3.1. Fact of the case
Highland Towers, as is collectively known, consist of three blocks 12-storey high
apartments named simply as Block 1, 2, and 3 respectively. Directly behind the three
blocks was a rather steep hill with a stream flowing west, if it was allowed to follow its
natural course. On Saturday, 11 December 1993, at about 1.30pm, after ten days of
continues rainfall, Block 1 collapsed. When rescue operation was called off after days of
searching, 48 people were recorded dead. Immediately after the collapse of Block 1 the
residents of Block 2 and 3 were prevented from entering their apartments by the local
authority having jurisdiction of the area, the Majilis Perbandaran Ampang Jaya, for fear
of the instability of these two buildings.
MPAJ had issued statutory notice to the purchasers/owners of the apartments of
Block 2 and 3 to demolish these two buildings. This was refused leading to the affected
purchasers and owners obtaining from the High Court at Shah Alam an order to set aside
this notice. To date Block 2 and 3 remain standing but unoccupied for fear of instability.
Some three years after the Highland Towers tragedy the purchasers and owners of Block
2 and 3 issued a writ against the ten defendants.
The respondents then filed a suit in the High Court against various parties
including the appellant MPAJ, for negligence and nuisance. After a lengthy hearing, the
learned trial judge found the appellant who was the fourth defendant in the case to be
15% liable for negligence in respect of the appellant's acts and omissions prior to the
collapse of Block 1 of the Highland Towers. However, he held that s 95(2) of the Street,
74
Drainage and Building Act 1974 operated to indemnify the appellant of any pre-collapse
liability but provided no protection to the appellant for post-collapse liability
4.3.2. Judgment of the case
When the second defendant had represented himself as a qualified architect to all
and sundry, as displayed by his actions, then he must be judged according to the character
he had assumed. At the time when this defendant exercised his duty as an architect for the
Highland Towers project, he must have foreseen that the apartments he built would be
sold, and purchasers, their servants and agents would be occupying them. Thus these
purchasers would be closely and directly affected by his acts and omissions and for this.
Defendant is just a building draftsmen but he stated that he is qualifies as a n
architect. If a man is unqualified but holds himself out to possess a skill, he will be
judged by the standards of a reasonably competent qualified person. As an architect, his
duty is primarily to his client because he has a contractual relationship. Proximity
between Architect and any other third party like purchaser is close because his action can
directly affected them. Foreseen ability of the danger if he does not take necessary
measure in the work.
By this, the court found a duty of care existed between the second defendant and
the plaintiffs and from the facts of the case; it was obvious that the second defendant had
breached his duty of care to the plaintiffs. The second defendant had failed in his duty as
an architect and had also refused to comply with the requirements imposed by the
authorities on the drainage of the area
75
The claim for pure economic loss in this country can be maintained against a
defendant. The plaintiffs' claim is for damages caused jointly and severally by the acts
and omissions of the defendants, their servants and agents in causing or contributing to
the collapse of Block 1 and thereby forcing the plaintiffs to evacuate and abandon Block
2 and 3. Failure to do so was a breach of his duty of care he owed to the plaintiffs since
his duty was to ensure the safety of the buildings he designed and built. Thus making
them liable for the damage.
4.4. Kelly v. Sir Frank Mears & Partners (1983) Sc 97
4.4.1. Facts of the case
A man sustained severe injuries when he fell head first against a glass panel in a
balcony on the seventh floor of a block of flats, broke the glass and fell to the ground. He
raised an action for damages against inter alia the architects who had designed the
building. The Lord Ordinary held that in ignoring a warning about the use of glass
contained in the British Standard Code of Practice for glazing and fixing of glass for
buildings the architects had adopted a course which no architect of ordinary skill would
have taken if he had been acting with ordinary care, and awarded the pursuer damages.
In the reclaiming motion against the Lord Ordinary's decision, it was argued for
the architects that the accident was not reasonably foreseeable, that the British Standard
Code of Practice did not apply to the circumstances of the case because wired glass was
used which was not dealt with in the Code and that, in any event, the provisions of the
Code of Practice were not mandatory and only provided recommendations, which expert
76
architects need not adhere to; they could apply their own experience of what was usual,
proper and normal practice.
Daniel Joseph Kelly raised an action against (First) The District Council of the
City of Edinburgh (owners of a block of flats); (Second) Sir Frank Mears & Partners
(architects of the building); (Third) Crudens Limited (the builders); and (Fourth) George
Lindsay & Company (Glaziers) for reparation for personal injuries.
His first ground is stated in general terms, namely that it was the defenders' duty
to take reasonable care for the safety of persons, including the pursuer, using the access
way and the balcony. The standard of care and skill which the defenders were called upon
to exercise when designing the balcony and in particular the balustrade was that of a
reasonably competent architect.
In submitting that the defenders failed in their duties towards him the pursuer founds on
four failures namely:
1. Failing to provide a reasonably safe, strong and impact resistant material strong
enough to withstand the impact of two men falling against the panel.
2. Failing so to design the fittings of the glass panels that there was a rebate on all
four sides of the glass and the glass was held firmly in place.
3. Failure to restrict the size of any apertures in the balustrades so that persons could
not fall through them.
4. Failure to provide in their design a railing at points of access to the balcony to
prevent persons falling through an aperture in it.
77
Per contra, defenders' counsel argued that neither of these two factors had been
established in evidence. The argument accordingly, crystallized into two broad heads,
namely (1) foreseeability and (2) proof of negligence. If the accident which occurred was
not reasonably foreseeable, no question of negligence arises.
4.4.2. Judgment of the case
Held allowing the reclaiming motion that it was reasonably foreseeable that such
a glass panel forming part of a balustrade could break of a person fell heavily against it.
Defendant owed duty of care as an Architect; it was their duty in their designs to provide
a reasonably safe. It is sufficient if the accident which occurred is of a type which could
have been foreseeable by a reasonably careful person. The precise concatenation of
circumstances need not be envisaged. Defenders ought reasonably to have foreseen that
the glass panel might not be of adequate impact resistance to prevent him from falling
through the panel and thereby sustaining injuries. The judge also referring to the 3 tests of
hunter v. hanley.
Three facts from Hunter v. Hanley:
i. That there was a usual and normal practice;
ii. That the defenders did not follow that practice; and
iii. That the course the defenders adopted was one which no professional
architect of ordinary skill would have taken, if he had been acting with
ordinary care.
78
It is also stated that the British Standard Code of Practice did not apply to the
circumstances of the case because it did not deal with wired glass used by the architects.
That in any event the Code, not having any statutory force and only providing
recommendations, could not be founded on in vacuo but only had evidential value in so
far as it was referred to by witnesses.
That accordingly it was for the injured man to prove that there was a normal
practice which the architect did not follow which no professional architect of ordinary
skill would have taken if he had been acting with ordinary care; and there was no such
evidence. Ignoring the Code and discounting the risk the design architect adopted a
course which no architect of ordinary skill would have taken if he had been acting with
ordinary care.
4.5. PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681
4.5.1. Facts of the case
The defendant appointed the plaintiff, a consultant engineer, for their project in
the district of Gombak. The letter of appointment and the consultancy service agreement
provided, inter alia, that the plaintiff's fees were at the rate of 2.5% of the estimated
contract sum for the said project. As at 11 August 1996, the balance outstanding
consultancy fees payable to the plaintiff was RM1, 005,136.47 and the defendant had
agreed to pay the said sum in 42 installments from June 1995 until November 1998.
79
The plaintiff agreed to the above arranged payment. The defendant however,
made payment of the plaintiff's fees only in respect of the monthly installments of June
1995 to October 1997 and had defaulted the payment for the remaining installments. The
plaintiff therefore filed this action against the defendant to recover the outstanding unpaid
fees amounting to RM767, 700 and costs. In its defense and counterclaim, the defendant
contended that the plaintiff had been negligent in carrying out its duties as the consultant
engineer which the defendant claimed had caused losses amounting to RM3, 672,436.90.
Thus, the defendant contended that their liability to pay the plaintiff's fees was subject to
a defense of set-off and counterclaim it had against the plaintiff for losses sustained by it
due to the plaintiff's negligence in carrying out the works.
The plaintiff's claim against the defendant is for unpaid consultant fees in the sum
of RM767, 700 as at November 1998 and for interest thereon from 1 December 1998
until full settlement and costs. In its defense and counterclaim, the defendant contends
that the plaintiff had been negligent in carrying out its duties as the consultant engineer
which the defendant claims had caused losses totaling RM3, 672,436.90. The defendant
contends that its liability to pay the plaintiff's fees is subject to a defense of set-off and
counterclaim it has against the plaintiff for losses sustained by it due to the plaintiff's
negligence in carrying out the works.
4.5.2. Judgment of the case
Held, allowing the plaintiff's claim with costs and dismissing the defendant's
counterclaim with costs. Plaintiff duties as Consultant Engineers, a consulting engineer's
duty is to design advice and supervise. In a claim for professional negligence, the
defendant must prove its case of negligence against the plaintiff. Cases were proved by
80
having credible witnesses and supporting documentary evidence. In this case, the
defendant had neither and thus had failed to prove that the plaintiff was in breach of its
duties owed to the defendant in tort.
Even if the defendant had proven breaches of duties by the plaintiff, the defendant
had failed to prove any losses sustained from the alleged breaches. The plaintiff had
clearly proved its case for the unpaid fees against the defendant. Even the defendant had
admitted in its pleading that there were unpaid fees due and owing from it to the plaintiff
but only contended that the same should be set-off against the defendant's losses due to
professional negligence by the plaintiff.
The defendant also purported to counterclaim against the plaintiff for such losses.
Although it is not for the plaintiff to disprove the defendant's action of negligence, in this
case, the plaintiff had produced actual, cogent, factual and expert evidence by way of
credible witnesses and contemporaneous supporting documentary evidence that there was
no negligence on their part.
4.6.Clayton V. Woodman & Son (Builders), Ltd. And Others. Queen's Bench
Division [1961] 3 All Er 249
4.6.1. Fact of the case
The plaintiff was a bricklayer employed by builders, the first defendants, who had
contracted with a regional hospital board, the second defendants, to install a lift in their
hospital. The third defendants were a firm of architects employed by the hospital board to
prepare a specification and working drawings for the construction of the lift shaft and a
81
motor room. The building contract between the builders and the hospital board provided
for the works to be carried out in accordance with the architect’s directions.
A stone gable was to be incorporated into the wall of the motor room and, for this
purpose, a chase or groove had to be cut into the side of the gable. The gable wall was
two feet thick and had a filling of rough rubble and loosely bound stones. This was the
usual construction for similar walls and should have been well known to an architect. A
qualified architect employed by the firm of architects, having inspected the gable, gave
instructions on the site direct to the bricklayer to cut the chase in the gable. He knew that
the bricklayer would carry out his instructions promptly on that day without shoring or
strutting the gable which B. considered was unnecessary.
In fact it was unsafe and dangerous to cut the chase without shoring or strutting
the gable as an architect or builder using reasonable care and skill should have realized,
but knowledge of the danger was not to be expected of a bricklayer. While the bricklayer
was cutting out a small piece of stone, after the chase had been cut, the gable fell inwards
injuring him. In an action for damages for personal injuries the bricklayer alleged
negligence and breach of statutory duty against his employers, the builders, negligence as
against the firm of architects, and vicarious responsibility for that negligence against the
hospital board.
4.6.2. Judgment of the case
This was an action by John William Clayton, a bricklayer, for damages for
personal injuries, loss and expense sustained and incurred as the result of an accident on
Jan. 15, 1959, at Wonford House Hospital, Exeter, in the county of Devon, when a bell
82
tower collapsed and struck the plaintiff while he was engaged in building a lift shaft at
the hospital. Held that the architects wee liable to the bricklayer in negligence for the
following reasons. Relationship between plaintiff and defendant, the proximity between
plaintiff and defendant make plaintiff liable for defendant. Defendant owed duty to
plaintiff.
The duty so owed was to take reasonable care for the safety of the bricklayer, and,
as the architects should have realized that the carrying out of the instructions to cut the
chase would probably lead to serious injury to him, they were negligent in issuing the
instructions to him. There is no ordinary architect using reasonable care and skill would
certainly have instructed high risk work
orders and instructions carelessly issued were different in their nature from mere
statements or representations carelessly made, and only such careless misstatements as
led to financial loss, as distinct from damage to persons or property, were outside the
principle of Donoghue v. Stevenson therefore, it was only careless statements leading to
financial loss that could not be actionable in the absence of contractual or fiduciary
relationship. Relation between architect and this bricklayer gave rise to a duty to take
care. Had the architect exercised any such care, he would not have issued the instructions
that would injure the builder. Defendant liable for the damage plaintiff suffered.
83
4.7. Lancashire and Cheshire Association of Baptist Churches Inc v Howard &
Seddon Partnership [1993] 3 All ER 467
4.7.1. Fact of the case
The plaintiffs wished to build a new sanctuary for their church and entered into a
contractual relationship with the defendant firm of architects through a third party under
which the defendants not only designed the new sanctuary but also were for all practical
purposes the contractor with all the power of supervision and control available to an
employer of building workers engaged on the work. The plaintiffs were dissatisfied with
the completed sanctuary because of alleged defects in design in relation to ventilation and
the avoidance of condensation.
The plaintiffs issued a writ against the defendants claiming damages for breach of
contract and negligence. At the time the writ was issued the plaintiffs' claim in contract
was statute-barred but the plaintiffs claimed that the damage had occurred within the
limitation period for actions in tort. The defendants contended that where there was a
contract between the parties, or at least where there was a contract for professional
services, there could not, as a matter of law, be a duty in tort.
4.7.2. Judgment of the case
The case for the plaintiffs in this action is that damage did not occur until 1983 at
the earliest. If that is right, the writ was clearly issued within the limitation period. There
84
could in law be a duty of care actionable in the tort of negligence where the parties were
in a contractual professional relationship. Accordingly, there could be a duty in tort
despite the existence of a contract for professional services, albeit that the implied as well
as the express terms of a contract would regulate the extent of that duty. There can be a
duty of care actionable in the tort of negligence where the parties are in a contractual
professional relationship
However, when the defendants submitted designs they did so for the purpose of
enabling the plaintiffs to consider the accommodation and appearance of the proposed
building, and without making any express statement as to its technical qualities. It would
be artificial to treat the submission of the designs as a representation as to the building's
technical adequacy made without care on which the plaintiffs had relied. A professional
man, the duty to use reasonable care arises not only in contract but also in tort. There
cannot be a duty on defendant to take care not to cause economic loss
Moreover, in the absence of actual damage to the person or to property, any loss
sustained by the plaintiffs as the owners of the building like the cost of putting right the
defects, was purely economic and the defendants owed no duty of care to prevent such
loss. It followed that the defendants owed no duty of care to the plaintiffs in tort.
Builder of a building is liable at common law for negligence only where actual
damage to person or to property results from carelessness in the course of construction. If
any defect is discovered before any such damage occurs the loss sustained by the owner
of the building the cost of putting right the defect is purely economic
85
4.8. Baxall Securities Ltd and another v Sheard Walshaw Partnership and others
[2002] EWCA Civ 09
4.8.1. Facts of the case
The appellant firm of architects had been employed by Berisford Property
Investments Ltd in relation to the design and construction of an industrial unit in the early
1990s. Following the grant of a lease, the respondent tenants became the occupiers in
1994. They did so after receiving advice from their surveyor, LSH, that there had been
problems with the gutters, and that they should be cleaned out and the landlord asked to
investigate. In May and September 1995, the unit was flooded after the valley gutter and
its associated drainage system failed to cope with heavy rainfall. The respective experts
accepted that the gutter had a fundamental defect: it did not have overflows. Because of
the design of the gutter and roof, traditional weir overflows were impractical, but
upstanding pipes at intervals along the gutter would have been an acceptable alternative.
It was accepted that the appellant, in issuing the relevant building contract certificates,
ought to have addressed the absence of overflows to the gutter.
The respondents brought proceedings for negligence against the appellant,
alleging that the valley gutter had two latent defects, namely the absence of overflows
and a shortfall in design capacity. In the court below, the judge found that the appellant
ought to have questioned the specialist roof contractor's designs. He held that the
appellant was not liable for the first flood, since this was caused partly by blockages and
partly by the absence of overflows, which were patent defects. However, he found the
appellant liable for the second flood, because this was attributable partly to the patent
absence of overflows and partly to a latent shortfall in design. He also decided that the
absence of overflows ought reasonably to have been discovered by LSH. The appellant
appealed, and the respondents cross-appealed.
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4.8.2. Judgment of the case
The respondents' case was that, as a result of want of care on the part of the
appellant, the valley gutter had two latent defects: first, the absence of overflows, and,
second, a shortfall in design capacity for the rainfall to be expected in the area. The
appellant's case was that there was no shortfall in design, the absence of overflows was
patent, and, in any event, both floods were attributable to blockages that should have
been cleared by the respondents. Relation between appellant and respondent is as
Architect and third party
If the surveyor acting for the respondents had been using reasonable care, it would
have discovered the absence of overflows to the gutter. A latent defect means a concealed
flaw such as an actual defect in the workmanship or design, not the danger presented by
the defect. Defendants were not in a proximate relationship to the claimants because there
was a reasonable opportunity to inspect. A reasonable opportunity for inspection that
would unearth the defect will usually negative the duty of care and break the chain of
causation.
Actual knowledge of the defect or, alternatively, a reasonable opportunity for an
inspection that would unearth the defect, will usually negative the duty of care, or at least
break the chain of causation. The chain of causation between the architect's error with
regard to the provision of overflows and both floods was broken
The absence of overflows was of causative importance, even though there was a
shortfall in design, which was a latent defect. The appellant was therefore not liable for
either flood. Defendants are not liable for plaintiff damage.
87
4.9. Hawkins v Chrysler (UK) Ltd and another [1986] BTLC 351
4.9.1. Facts of the case
The first defendant instructed the second defendant to design a shower room with
ancillary equipment, which required the provision of a new floor. The second defendant
did not supply the floor or lay it but gave advice on the suitability of the floor. Thirteen
months after the work was completed the plaintiff slipped on the new floor and was
injured. His claim against the first defendant was settled by a payment of damages. The
first defendant then proceeded to claim against the second defendant, alleging that the
second defendant had failed to use reasonable care and skill in the selection of the
material for the floor and was in breach of an implied warranty to provide a floor surface
which would be fit for use in a wet shower room.
In deciding which flooring to use the second defendant had considered the
manufacturer's brochures, which stated that the flooring was suitable for use in wet areas,
and had also discussed the question with a flooring specialist. No direct discussions were
held with the flooring manufacturer. At the hearing the second defendant accepted that it
was its job to provide a floor as safe as it possibly could. The judge held that, although
the second defendant had not been negligent in the choice of floor, it was in breach of an
implied warranty of fitness of purpose in the provision of a safe floor. The second
defendant appealed to the Court of Appeal.
88
4.9.2. Judgment of the case
The plaintiff, George Hawkins, brought an action for damages against the first
defendant, Chrysler (UK) Ltd (Chrysler) after he slipped on a wet floor at Chrysler's
premises and sustained injuries. Following the issue of a third party notice against Burne
Associates (Burne) in which Chrysler claimed indemnity against the plaintiff's claim,
Burne was joined as second defendant. The plaintiff's claim against Chrysler was settled
by the payment of damages. At the hearing of the issue between Chrysler and Burn on 9
November 1984 his Honour Judge Toyn, sitting as a judge of the High Court, ordered
Burne to pay Chrysler damages of £4,800.46. Burne appealed to the Court of Appeal for
an order that judgment be set aside and judgment entered for Burne. The facts are set out
in the judgment of Fox LJ. Relationship between appellant and respondent as Consultant
Engineers (2nd defendant) and third party person (plaintiff). Consultant Engineer hold
duty because he advised on the type of finishes to use.
On the facts, no warranty about the fitness for the use of the floor could be
implied because the second defendant's statement that it would make the floor as safe as
it possibly could was based on the second defendant's knowledge and skill in engineering
and did not amount to a guarantee of a particular result. Consultant Engineer were under
an obligation to exercise reasonable skill and care. The engineer takes all the necessary
actions for the work.
Since the second defendant had used reasonable care and skill in the choice of
flooring, and since it was not necessary to imply a warranty in order to give the
agreement business efficacy, the appeal would be allowed. There is no breach made by
the consultant engineer because he has exercise reasonable skill and care. Even though
that the Plaintiff suffered an injury, that injury does not come from the defendant action.
Defendant never breaches his duty as professional
89
Furthermore, the warranty implied by law required of a person who supplied an
article or structure, that he guaranteed its fitness for its intended use, was not generally
required of a professional adviser who was not supplying anything, and such a person
was required only to exercise reasonable care and skill.
4.10. Rsp Architects Planners & Engineers (Raglan Squire & Partners Fe) V.
Management Corporation Strata Title Plan No 1075 & Anor
4.10.1. Facts of the case
On 20 November 1992, bricks and brick tiles forming part of a gable end wall of
the Gemini block of the Eastern Lagoon II Condominium fell onto the roof of a unit in
the neighboring Libra block of the same development, causing damage to the roof and
contents of the latter unit. In the court below, the first respondents commenced an action
against the architects of the development for, inter alia, the cost of repair and the cost of
rectifying all similar walls in the development, alleging that the architects had been
negligent in their design and/or their supervision of the construction of the development.
The architects joined as third parties the main contractor for the development alleging
that the walls had failed because the main contractor had been negligent in their
construction.
The learned trial judge allowed the first respondents' claim and dismissed the
third party action. The architects appealed against the trial judge's decision, contending
that (1) they owed no duty of care to the management corporation; (2) alternatively, that
if such a duty was owed, the standard of care had not been breached and the trial judge
90
had erred in fact in concluding that the primary cause for the failure of the walls was a
design flaw attributable to the architects and (3) that the trial judge had erred in
dismissing the third party claim.
On the first question, it was argued that the court's earlier decision in RSP
Architects Planners & Engineers v Ocean Front Pte Ltd [1996] 1 SLR 113 was wrongly
decided, since it approved of a single general rule for recoverability and also premised
the existence of a duty of care on foreseeability alone. Furthermore, the court in
OceanFront had erred in deciding that a duty of care existed when there was in fact no
reliance by the plaintiff upon the defendant in that case. The court was invited to overrule
its decision in Ocean Front. Alternatively, it was argued that special care must be taken
in imposing duties of care upon professionals, and that a high degree of reliance must be
present before such a duty may be imposed, particularly where the loss was economic in
nature, as in the instant case.
4.10.2. Judgment of the case
This appeal arose from an action instituted by the first respondents, the
Management Corporation Strata Title Plan, against the appellants, RSP Architects
Planners & Engineers, claiming damages for negligence in the design and supervision of
the construction of a condominium called Eastern Lagoon II situate at East Coast Road.
RSP while denying liability took out third party proceedings against the second
respondents, Engineering Construction Ltd who were the main contractors of the
condominium, claiming against them an indemnity or contribution. The action was heard
before Judith Prakash J. She allowed the claim of Management Corporation against RSP
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and dismissed RSP's claim against Engineering Construction. Against her decision RSP
appealed.
In respect of the common property the architects knew that the management
corporation would be in charge and would be managing the common property and would
depend on their care and skill in the design and supervision of the construction of the
common property. In such a situation there was sufficient degree of proximity in the
relationship between the management corporation and the architects as would give rise to
a duty on the part of the architects to avoid the loss as sustained by the management
corporation in this case. As for the existence of Duty of care, Proximity between
defendant and plaintiff is close, so the duty arises. Foreseen ability of the damage by
architect if the design is defective and the architect owed duty of care.
Defendant in breach of duty because failed to exercise reasonable skill and care and does
not take necessary measure for the work.
Economic loss stemming from defects in building design or construction ought
not to be treated similarly to defects in consumer goods, since buildings are
distinguishable from consumer goods in two vital respects: the scale of the investment
involved in the purchase of real property and the greater expectation attached to a
structure of permanence. Plaintiff suffered damage from defendant breach; thus
defendant is liable for the damage. The judge was justified in making the findings that the
architects had not met the standard of care demanded of them, and there were no grounds
for disturbing her findings.
92
4.11. Sansom and another v Metcalfe Hambleton & Co [1998] 2 EGLR 103
4.11.1. Fact of the case
The plaintiffs bought 8 Claypark Terrace, Byter Mill Lane in Devon in July 1992
for £70,000. Before doing so, they instructed the defendants to survey and report upon
the structural condition. The present action was based on alleged negligence by the
defendants in completing this report.
The site of No 8 Claypark Terrace rises steeply from the lane to the front of the
house. In about 1988 a retaining wall had been built to support the vertical cliff created
by the excavation of a car parking space along the front boundary with the lane and the
infilling behind it produced a more or less level terrace garden behind the wall. There was
a flight of steps rising from the car park to the terrace and a small wing wall running from
the back of the retaining wall to the top step. This wing wall was not an integral part of
the retaining wall and had no structural significance.
The plaintiffs alleged that the retaining wall was defectively designed and the
experts who gave evidence both for the plaintiffs and for the defendants accepted that the
retaining wall was not adequately designed and constructed. The principal issue was
whether there was anything in the condition of the premises in 1992 which ought to have
indicated that the retaining wall was inadequately designed and constructed.
The plaintiffs did not lead evidence by a chartered surveyor as to the standard of
skill and care to be expected of the surveyor asked to survey such premises in 1992 and
relied on evidence led by the expert structural engineer. This evidence was accepted by
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the trial judge as establishing failure by the defendants to achieve the appropriate
standard of care. The defendants appealed.
4.11.2. Judgment of the case
On 16 June 1996 in the Exeter County Court his Honour Judge Overend gave
judgment in favour of the plaintiffs, Miss Sansom and Mr Monaghan (the owners) against
the defendants, Messrs Metcalfe Hambleton & Co, chartered surveyors, for the sum of
£7,500 and costs on their claim for damages for negligence by a partner in the defendant
firm, Mr Brown. He was instructed to survey and report upon the structural condition of
No 8 Claypark Terrace, Byter Mill Lane, Devon in July 1992, which the owners were
contemplating buying, and following his report did buy for £70,000. The claim for
£7,500 was based on alleged diminution in value referable to the need to do works to a
retaining wall at the front of the property, and no point arises on this appeal as to the
amount of the award.The appellant surveyors' contention is that the judge should have
dismissed the claim.
The case is in a sense complicated by the fact that both the engineers who gave
evidence (Mr. Gannon for the owners and Mr. Stow for the surveyors) accepted that the
investigations which were carried out following discovery of the crack demonstrated that
the retaining wall was not adequately designed or constructed. There were some
differences between them as to the details of the defects, but the most important
disagreement was about whether there was in 1992 anything to indicate that the retaining
wall was inadequately designed or constructed, and (a closely related point) whether Mr.
Brown if he had seen the crack should have undertaken or procured a structural engineer
to undertake further investigation which would have had that result.
94
Mr. Aldous, on behalf of the appellant surveyors, submitted that the failure of the
owners to call a chartered surveyor to give evidence of the standard of skill and care to be
expected of a surveyor asked to survey and report on the structural condition of the house
and whether Mr. Brown fell below such standard was fatal to their claim in professional
negligence against the appellant surveyors. The judge did not have the evidence upon
which he was able to make a finding of negligence. The evidence of Mr Gannon was
relevant to the state of the retaining and wing walls, but Mr. Gannon was not qualified to
express an expert opinion upon the practice accepted at the time as proper by a
responsible body of chartered surveyors, (not structural engineers) skilled in the task of
undertaking structural surveys.
The question that needs to be addressed is whether Mr. Gannon, a chartered
structural and chartered civil engineer, is a suitably qualified person to show what a
competent surveyor could reasonably have been expected to know and do when carrying
out a structural survey for would be purchasers? Put another way, must an allegation of
professional negligence against a chartered surveyor fall, unless there is evidence from a
similarly qualified chartered surveyor to the effect that cracking would have been noticed
and as a result a structural engineer should have been called in?
In the present appeal, I am satisfied that the judge did not have the evidence upon
which he would have been able to make a finding of professional negligence against Mr.
Brown. First, I do not consider that this was such an obvious case that there was not room
for two views of the relevance of the crack and the steps, if any, which ought to have
been taken in July 1992.
Consequently the judge did not have relevant and admissible evidence from the
owners to show failure by Mr. Brown to comply with the standard of skill and care to be
exercised by a competent surveyor instructed by the owners. The judge failed to apply the
correct test. If he had done so, he would have been driven to the conclusion that the
95
owners had failed to prove their case. In my Judgment the first ground of appeal is well
founded and I would allow the appeal. Although there was no absolute rule that
negligence by a chartered surveyor should be proved by expert evidence by a chartered
surveyor, there was no doubt that the general rule was that professional negligence should
be proved by expert evidence given by a member of the appropriate profession. In the
circumstances, the evidence led by the plaintiffs was inadequate to establish negligence
by a surveyor appointed to carry out a report for a potential purchaser.
96
4.12. Summary of decision in law cases
Table 4.1: Summary of decision in law cases
No.
Law Case
Decision
1.
Lim Teck Kong v Dr Abdul
Hamid Abdul Rashid & Anor
[2006] 3 MLJ 213
• The contract between the plaintiffs and the defendants is one of performance of
services by professionals who have described themselves as consulting civil and
structural engineers. Plaintiff owes duty of care to defendant.
• Any persons declaring themselves to be such must reasonably and equitably are
expected to take reasonable care and skill in the performance of their craft.
• The legal principles to be applied in this claim of negligence against the
defendants must certainly be that of Bolam v Friern Hospital Management
Committee since this is a claim based on professional negligence.
• The failure of defendants to determine the soil condition to a high degree of
certainty was a breach of the implied term of its appointment to take reasonable
care. Other failures on the part of the defendants were clear breaches of
professional duties. Defendants were therefore liable for breach of contract
• Based on similar grounds as those stated earlier under the cause of action for
breach of contract, the court hereby finds that defendants liable to the plaintiffs
for negligence.
97
2.
Steven Phoa Cheng Loon & Ors
V Highland Properties Sdn Bhd
& Ors [2000] 4 Mlj 200
• Whether defendant misrepresented himself as to his qualification makes little
difference to the duty of care he owes to the plaintiffs. If a man is unqualified
but holds himself out to possess a skill, he will be judged by the standards of a
reasonably competent qualified person.
• At the time when this defendant exercised his duty as an architect for the
Highland Towers Project he must have foreseen that the apartments he built
would be sold, and purchasers, their servants and or agents would be occupying
them. Thus these purchasers would be closely and directly affected by his acts or
omissions.
• By this, the court found a duty of care existed between the second defendant and
the plaintiffs and from the facts of the case; it was obvious that the second
defendant had breached his duty of care to the plaintiffs.
• When you had a hill so close and acute then the third defendant should have
reasonably foreseen, judging by professional standard as an engineer responsible
for the structure, the danger of a landslide producing a lateral load against the
foundation of the building.
• For this, he should have exercised care to either design or construct a foundation
to accommodate lateral load or ensure that the slope was reasonably stable.
• The second defendant had failed in his duty as an architect and had also refused
to comply with the requirements imposed by the authorities on the drainage of
98
the area.
• The claim for pure economic loss in this country can be maintained against a
defendant. On this contention of the second defendant who relied on this defense
of pure economic loss, suffice me to say that it must fail on the same reasons
expressed in the case of Dr Abdul Hamid Abdul Rashid.
• The defendant was proving to be negligence based on breach of their
professional duties to take reasonable skill and care
3.
Kelly v. Sir Frank Mears &
Partners (1983) Sc 97
• As an Architect, all of the design holds duty to the Architect because faulty
design can bring harm to other people. It is said that they were bound to use care
and skill of reasonably competent architects in designing the building.
• In order to establish a coherent chain of causation it is not necessary that the
precise details leading up to the accident should have been reasonably
foreseeable: it is sufficient if the accident which occurred is of a type which
could have been foreseeable by a reasonably careful person.
• That being so, defenders ought reasonably to have foreseen that the glass panel
might not be of adequate impact resistance to prevent him from falling through
the panel and thereby sustaining injuries.
• The Code contains warnings regarding risks which may be encountered in
connection with the use of glass, and inter alios no architect could be regarded as
acting with ordinary skill and care if he departed from the recommendations in
99
the Code without being able to justify his departure, or ignored the Code
altogether.
4.
PB Malaysia Sdn Bhd v Samudra
(M) Sdn Bhd [2009] 7 MLJ 681
• Unless expressly provided for in the contract of engagement, the consulting
engineer owes no duty to design advice or supervise the contractor on his choice
of the working method or sequence of construction or to offer a technical
solution where the contractor has committed an error or is otherwise confronted
with difficulties.
• The law does not usually imply a warranty that he will achieve the desired result,
but only a term that he will use reasonable care and skill.
• But a man may use skill and care, he may do all that in the circumstances could
reasonably be expected of him, and yet produce something which is faulty
because it will not answer the purpose for which it was intended. His product
may be faulty although he is free of blame.
• The defendant has failed to prove that the plaintiff was in breach of its duties
owed to the defendant in tort. Even if the defendant has proven breaches of
duties by the plaintiff, the defendant has failed to prove any losses sustained
from the alleged breaches.
• Although it is not for the plaintiff to disprove the defendant's action of
negligence, in this case, the plaintiff has produced actual and cogent factual and
100
expert evidence by way of credible witnesses and contemporaneous supporting
documentary evidence that there was no negligence on the plaintiff's part.
5.
Clayton V. Woodman & Son
(Builders), Ltd. And Others.
Queen's Bench Division
[1961] 3 All Er 249
• In accordance with the principle in Donoghue v. Stevenson the architects owed a
duty of care to the bricklayer in regard to instructions given to him owing to the
close relation between him and them in the circumstances of this case
• The architect certainly knew that his instructions would be promptly obeyed and
equally certainly should have realized that in the existing circumstances they
would probably lead to the bricklayer's serious injury or death.
• Having regard to the exceptionally close relationship between the architect and
the bricklayer on the particular facts of this case, the law to my mind imposed a
duty on the architect to take reasonable care for the safety of the bricklayer. Had
he exercised any such care, he would not have issued the instructions.
• Had the architect exercised any such care, he would not have issued the
instructions. But because of his instruction, plaintiff suffers a damage and injury.
This clearly breach of duty by the architect by failure to advise the builder.
• The judge hold defendant was under a duty to use reasonable care, that he failed
in that duty and that his negligence was a cause of the plaintiff's damage.
101
6.
Lancashire and Cheshire
Association of Baptist Churches
Inc v Howard & Seddon
Partnership [1993] 3 All ER 467
• The judge has reached the conclusion that in law there can be a duty of care
actionable in the tort of negligence where the parties are in a contractual
professional relationship.
• In the present case the defendants were the employers of the workmen who
carried out the work. It is indeed exceptional for an architect to be the contractor.
However, the plaintiffs' real complaint in this case is about design, not
workmanship. There cannot be a duty on defendant to take care not to cause
economic loss. Thus no breach has occurred.
• The builder of a building is liable at common law for negligence only where
actual damage to person or to property results from carelessness in the course of
construction, and that if a defect is discovered before any such damage occurs
the loss sustained by the owner of the building the cost of putting right the defect
is purely economic. There fore there is no real damage is done in this case.
• Plaintiff failed to prove that defendant actually negligence while carrying his
work just mere by the unsatisfactory of plaintiff of the design of the work.
7.
Baxall Securities Ltd and another
v Sheard Walshaw Partnership
and others [2002] EWCA Civ 09
• Appellant and respondent has no contractual duty; even so, appellant actions
could directly affect the respondent. Thus it is under the neighborhood principle
that appellant is liable for respondent.
• The claimants had the opportunity to discover the absence of overflows by
reasonable inspection by professional advisers who might reasonably be
102
expected to be instructed: whether that reasonable opportunity in fact revealed
the defect is irrelevant.
• Because there was a reasonable opportunity to inspect, the defendants were not
in a proximate relationship to the claimants so far as concerns defects which
could have been discovered by that inspection, namely, the absence of
overflows. Neither the claimants nor their surveyors could reasonably be
expected to have discovered the under design of the drainage system.
• alternatively, a reasonable opportunity for inspection that would unearth the
defect, will usually negative the duty of care, or at least break the chain of
causation unless it is reasonable for the claimant not to remove the danger posed
by the defect and to run the risk of injury.
• Without the overflow, the gutter cannot handle the rain and cause the flood.
Because of the respondent should have time to inspect or notice that the
overflow was absent, appellant had not breach his duty because of under design.
• The damage done to the plaintiff building was not resulting from the defendant
breach in exercising reasonable skill and care. Plaintiff has enough time to
inspect the problem from the building and take reasonable precaution to the
danger.
• Thus the Architect is not negligence in his work that causes the purchaser to
suffer damage.
103
8.
Hawkins v Chrysler (UK) Ltd and
another [1986] BTLC 351
• On the facts, no warranty about the fitness for the use of the floor could be
implied because the second defendant's statement that it would make the floor as
safe as it possibly could was based on the second defendant's knowledge and
skill in engineering and did not amount to a guarantee of a particular result.
• He made an inquiry of a sub-contractor who was a specialist in this field and that
was the basis on which it was done. In other circumstances other considerations
might have applied.
• The warranty implied by law required of a person who supplied an article or
structure, that he guaranteed its fitness for its intended use, was not generally
required of a professional adviser who was not supplying anything, and such a
person was required only to exercise reasonable care and skill.
• There is no clear breach of any duty of kind because the Consultant Engineer has
done what is expected from them as a professional.
• There was ample evidence on which he could so conclude no reason to suppose
that he misdirected himself in his analysis of the evidence before him. Thus the
defendant is not negligent while carrying his work.
9.
Rsp Architects Planners &
Engineers (Raglan Squire &
Partners Fe) V. Management
• The defendants knew or ought to have known that if they were negligent in their
design or supervision the resulting defects would have to be made good by the
management corporation.
• It was obviously foreseeable by the defendants that if they were negligent in the
104
Corporation Strata Title Plan No
1075 & Anor
design of the condominium, this could result in expensive rectification work and
therefore economic loss for either or both the subsidiary proprietors and the
management corporation.
• In such a situation there was sufficient degree of proximity in the relationship
between the management corporation and the architects as would give rise to a
duty on the part of the architects to avoid the loss as sustained by the
management corporation in this case.
• The learned judge also found that the general failure of the claddings was
contributed by the method of adhesion adopted, a simple cement and sand mortar
base without the use of a reinforcement mesh or additives in the mortar. Based
from all the evidence, the Architect is in breach of his duty because does not
exercise reasonable skill and care for the work.
• The damage occurred because of the Architect failed to exercise reasonable skill
and care and in breach of their duty. Thus liable for the damage.
• The court held that the previous court was right that the Architect was negligent
because he failed to exercise reasonable skill and care. Thus the architect
negligence, plaintiff suffered damage, the Architect is liable for that damage.
105
10.
Sansom and another v Metcalfe
Hambleton & Co [1998] 2 EGLR
103
• The failure of the owners to call a chartered surveyor to give evidence of the
standard of skill and care to be expected of a surveyor asked to survey and report
on the structural condition of the house and whether Mr. Brown fell below such
standard was fatal to their claim in professional negligence against the appellant
surveyors.
• A court should be slow to find a professionally qualified man guilty of a breach
of his duty of skill and care towards a client (or third party) without evidence
from those within the same profession as to the standard expected on the facts of
the case and the failure of the professionally qualified man to measure up to that
standard.
• Consequently the judge did not have relevant and admissible evidence from the
owners to show failure by Mr. Brown to comply with the standard of skill and
care to be exercised by a competent surveyor instructed by the owners.
• The judge failed to apply the correct test. If he had done so, he would have been
driven to the conclusion that the owners had failed to prove their case. In my
Judgment the first ground of appeal is well founded and I would allow the
appeal.
4.13. The criteria for negligence
In order for the claim for negligence to succeed, the element of negligence needs
to be proved. How does the judge prove that the element existed is based on the criteria
that suits the nature of the negligence claims. The analysis of the selected cases
suggested that the criteria to determine that a professional man is negligent in carrying
out their duties are as follows:
1. There must be a duty of care between the plaintiff and defendant either in
tort or under contract of professional services by expressed or implied
term and that defendant has breach that duty.
2. The allegation of professional negligence brought under tort must prove
that the alleged person have close proximity to the injured party and can
directly affect them.
3. A professional man does not owe a duty of care to prevent any pure
economic losses.
4. The alleged person must be judge based on scope of duty of their relevant
profession even if he is not qualified person he would be liable if he
claimed to be a professional man.
5. The actual damage sustained must be foreseeable by the alleged person
and must not be too remote.
107
6. The alleged person must exercise reasonable skill and care for their
relevant profession and if not, he will be considered breach his duty of
care.
7. All professional must comply with all building by-law and he will be
considered as negligent in discharging his duty if he fails to comply with
the by-laws.
8. Professionals must follow all normal procedures for the particular
situation while carrying out the work as a normal competent professional
should.
9. Standard of care of that alleged professional must be evaluated from the
person or bodies of the same profession.
10. Defect or error does not necessarily consider as negligence for the alleged
person.
11. The duty of care is broken when plaintiff had reasonable opportunities for
inspection that would unearth the defect and break the chain of causation.
12. The actual damage must be real to building and does not consist of latent
defect and any physical injury or death to person.
13. It must be shown that the particular acts or omissions by the defendant
were the cause of the loss or damage sustained by the injured party.
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4.14. Conclusion
Based on the finding, it can be concluded that the first criteria on determining
negligence is the Professionals need to owed duty of care the injured party and had
breach that duty. The nature of construction industry that each professional is under
contract as professional service makes the claim under breach of contract is much clear
and duty of care existed in those contract. By contract alone is sufficient to prove that the
duty of care existed between the parties. But not the entire claim for negligence is
brought under the contract because some cases are involving third party such as occupant
of the house or subsequent purchaser which construction professional has no contractual
relationship with. Thus an action under tort is brought.
The duty of care is breach by considering the reasonable skill and care by the
professional by means of expert evidence, requirement and regulation and the scope of
duty of his profession. Because of the construction industry involves lots of technical
aspects in the work, so the criteria for reasonable skill and care are a bit deeper then
normal person negligence. That involves all the statue, building by-law, requirement and
regulation by state authority that need to be comply by construction professional.
Such evidence will be use from the expert witness’s evaluation and report from
the same profession or bodies. Then the plaintiff needs to prove that the breach is the
direct cause of the damage act by defendant action. The damage must be real damage like
damage to building or injury to person or the negligence claimed would not succeed.
109
Chapter 5
Conclusion and recommendation
5. Introduction
The problem regularly faced by construction professionals is that sometimes
accidents happen, and even highly skilled, very conscientious people do make mistakes.
Some professions come with a high potential risk of being sued for professional
negligence because they are risky professions to begin with. The high risk profession is
always being targeted by claims for any malpractice or negligence in doing the work. But
the element of negligence needs to be proven first for the claim to succeed. The judge
criteria are based on the theory of negligence, case law and the nature of the claims. This
110
chapter will concluded all of the finding in judge criteria on how negligence is being
proved by professionals.
5.1. Criteria for negligence
As the finding of this research from the previous chapter, there are twelve criteria
use in order to prove professional negligence by the court in construction cases. The first
criteria is to prove the existence of duty of care, judge will look into whether the alleged
person has any relation in tort and contract to ascertain their duty. Then also the
qualification and scope of duty is use to determine if alleged person owed duty to the
plaintiff. Then the damage must be foreseeable and not to remote.
After the defendant is proved to owed plaintiff duty then the judge look whether
that duty has been breach. It is by looking if the professional has reasonable skill and care
and follow all of the regulation and requirement. By means of expert witness evidence
and report then the judge know whether the work is the general practice for that particular
profession. Then the last one is there is actual damage is done whether is damage from
property or building or injury that comes from defendant breach. If there is no damage,
even there is a breach then negligence cannot be established.
If all of the criteria is proven by the court by all of the facts and evidences, then
the professional is negligence while conducting his work and does not takes the necessary
steps to prevent it. Even if one of the criteria failed to be proved by claimant, then
negligence cannot be established.
111
5.2. Recommendation
This analysis is done by analyzing ten case law from United Kingdom, Malaysia
and Singapore. A lot more cases should be included in the future research to strengthen
the finding and giving more detailed perspective in professional negligence in
construction industry. Because of the nature of construction industry that involved more
technical aspect that makes the negligence area in this industry a bit complicated.
Professional negligence in construction industry is a developing area of jurisprudence and
the principle always shift with the flow of time.
5.3. Conclusion
The criteria concluded from the analysis shows that the research objective has
been successfully achieve by listing twelve criteria from the previous chapter. This
criterion is a general guideline in determining negligence for construction professionals.
This will help summaries the entire element in negligence and the nature of construction
industry for a professional to be able to have a full grasp of all the method on ascertaining
professional negligence by the judge. This finding will help construction professional to
understand the legal aspect of their work in the area of negligence.
112
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