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Last edited 09 Nov 2020

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Najma Dunnett Other Consultant

199 Knightsbridge Development Ltd v WSP UK Ltd

199 Knightsbridge Development Ltd v WSP UK Ltd [2014] EWHC 43 (TCC)

WSP found itself in cold water in this case of professional negligence but fortunately the court found that its negligence did not cause Knightsbridge’s loss.

In order to bring a successful claim for professional negligence the claimant must prove the defendant owed it a tortious or contractual duty of care, that the defendant breached its duty and that the breach caused the claimant’s loss.

Knightsbridge (“the claimants”) were developers of a residential block of flats in London and the defendant (“WSP”) was the mechanical and electrical engineer of the development. In 2005, serious flooding occurred due to damage to the cold water system as a result of a partial drain down of water causing a catastrophic pressure surge which ruptured pipe joints and pipework. The claimants sued WSP for the loss alleging negligence in the design of the cold water system and for not addressing the possibility of damage caused by a loss of water.

The judge, Mr Justice Edwards-Stuart, found that WSP owed the claimants a contractual duty of care in the design of the cold water system: this was set out in the following clause of WSP’s contract requiring it to “exercise a reasonable level of care and skill as [was to be] expected of a qualified Consultant in the same profession, experienced and competent in carrying out work of similar size, scope and complexity to the Project”. This duty equates to the standard of care and skill the law ordinarily imposes on professionals.

He also examined the usual authorities in professional negligence cases including:

Bolam v Friern Hospital Management Committee, which found that a professional is not negligent if “he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art....”.
Nye Saunders v Alan E Bristow, which held that in determining whether the duty of care had been discharged, the courts would assess whether there was evidence at the relevant time that a responsible body of architects would consider that the manner in which the defendant discharged his duty was appropriate.

However the court drew a distinction between the existence of a responsible body of professional opinion and industry practice prevailing at the time; WSP’s defence relied unsuccessfully on the latter. The solution to the problem was the installation of surge arrester valves to the cold water risers but surprisingly as it now seems, M&E engineers at the time did not address such issues and most recognised M&E practices did not advise the installation of such valves to prevent flooding and damage caused by catastrophic pressure surges occasioned by a loss of water.

Mr Justice Edwards-Stuart found that despite the absence of a responsible body of professional opinion at the time, the prevailing industry practice could not excuse WSP of its professional duty of care towards the claimant to design the cold water system so as to avert such damage as it should have foreseen the problem and in failing to do so was negligent. The issue then was that if WSP had foreseen the problem, could the damage have been prevented?

On the evidence the judge was clear that even after the flooding, the claimant had still not installed surge arresters despite being advised to do so. The court determined that had WSP addressed this issue and advised the claimant to fit anti-surge valves, the claimant was unlikely to have done so in time to prevent the damage occurring.

The upshot of the case is that just because everyone else is following the flock, that does not make their approach correct or less negligent. A professional person cannot divest themselves of their duty of care by simply relying on the (unsatisfactory) prevailing practice in the industry but still has to cast their mind to potential issues that might arise as part of the design and advise their client accordingly. Whether clients then choose to follow that advice is a matter for them. It is also a reminder to claimants of the evidential burden to discharge in professional negligence cases.