abu bakar bin hassan - universiti teknologi malaysia

CRITERIA IN ASCERTAINING PROFESSIONAL NEGLIGENCE

ABU BAKAR BIN HASSAN

UNIVERSITI TEKNOLOGI MALAYSIA

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

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Act 1972)*

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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


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 : ................................................................


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


4.4. Kelly v. Sir Frank Mears & Partners 75

4.4.1. Facts of the case 75


4.5. PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd 78



4.6. Clayton V. Woodman & Son, Ltd. And Others 80



4.7. Lancashire and Cheshire Association of Baptist Churches

Inc v Howard & Seddon Partnership 83



4.8. Baxall Securities Ltd and another v Sheard Walshaw

Partnership and others 85



4.9. Hawkins v Chrysler (UK) Ltd and another 87



x

4.10. RSP Architects Planners & Engineers (Raglan Squire &

Partners Fe) V. Management Corporation Strata Title Plan No

1075 & Anor 89



4.11. Sansom and another v Metcalfe Hambleton & Co 92



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

xi

LIST OF TABLES

TABLE NO TITLE PAGE

4.1 Summary of decision in law cases 85

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


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


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


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.


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


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-


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.


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.


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


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


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.


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


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.


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


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.


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


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.


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


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.


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


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.

86


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


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


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


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.


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

91

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


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

93

the trial judge as establishing failure by the defendants to achieve the appropriate

standard of care. The defendants appealed.


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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