Last edited 29 Sep 2016

Reasonable skill and care

A contractual obligation to carry out works or services with reasonable skill and care creates a performance obligation which is analogous to the standard of care in negligence.

Contents

[edit] Blyth v Birmingham Waterworks Company

The court considered the standard of care in negligence in Blyth v Birmingham Waterworks Company and stated:

'... negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do’

Blyth established the appropriate tests for the behaviour of the general public and not for the behaviour of members of a more limited group who have or hold themselves out as having specialist skills such as architects or engineers. In Bolam v Friern Hospital Management Committee (approved

in Whitehouse v Jordan), the court refined the test established in Blyth in order to accommodate specialist skills. The court applied the following test:

'... where you get a situation which involves the use of some specialist skill or competence, then the test of 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. A man may not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient to be exercising the ordinary skill of an ordinary competent man exercising that particular art.'

[edit] J D Williams & Co Ltd v Michael Hyde and Associates Ltd

In J D Williams & Co Ltd v Michael Hyde and Associates Ltd, the Court of Appeal set out three qualifications to the test in Bolam:

  • In a rare case it may be demonstrated that the opinion alleged to be held by a respectable body of the profession cannot in fact withstand logical analysis (see also Bolithio v City % Hackney Health Authority where the court held that the practice relied upon had to be
respectable, responsible and reasonable, with a logical basis and where it involved weighing comparative risks, it had to be shown that those advocating the practice had directed their minds to the relevant matters and had reached a defensible conclusion).
  • In some cases the evidence given may not establish that the view contended for is in fact held by a responsible body of professional opinion, but may simply be the personal view of the expert as to what he might have done if faced with similar circumstances. This is not expert evidence at all, and the judge must discount it and form his own view.
  • Where the advice at issue required no special skill, then the Bolam test was simply irrelevant and should not apply.

[edit] Plant Construction plc v Clive Adams Associates and JHM Construction Services Ltd

Plant Construction plc v Clive Adams Associates and JHM Construction Services Ltd concerned a contract between Ford and Plant to design and build two pits for engine mount rigs and a suspension rig at Ford's research and engineering centre at Danton. The contract between Ford and Plant provided that:

  • Plant was to be responsible for damage to the works caused by its own negligence and Ford's negligence.
  • Plant was responsible for all acts and omissions of its sub-contractors.
  • Any assistance provided by Ford would not release Plant from responsibility for the works.

Clive Adams were structural engineers engaged by Plant and JHM were sub-contractors for the sub-structure work involving shoring excavations and roof support. The roof collapsed because of insufficient support. Ford sued Plant who settled the claim. Plant then brought claims for breach of contract against Clive Adams and JHM. Clive Adams settled. JHM defended alleging that they had been following the instructions given to them by an engineer employed by Ford in the design and execution of the works.

The Court of Appeal had to consider the principles of the duty to warn and the implied term of skill and care in the context of damages known to the contractor. The court held:

  • JMH was contractually obliged to carry out the temporary works of supporting the roof in the way in which and to the design by which they were so instructed by Ford.
  • The factual extent of the performance required by the implied term that a contractor will perform his contract with the skill and care of an ordinarily competent contractor, will depend on all the circumstances.
  • Given crucially that the temporary roof support works were obviously dangerous and were known to JMH to be dangerous, JMH's implied obligation to perform with skill and care carried with it an obligation to warn of the dangers which they perceived.
  • The facts that the design and details of the temporary works were imposed by Ford, that Plant had Clive Adams as their consulting engineer, that others were at fault, or that JMH were contractually obliged to do what Ford instructed did not negative or reduce the extent of performance of the implied terms.
  • JMH's duty extended to giving property warnings about risk.

The facts of Bolam were concerned with a medical negligence case; how-ever in Williams, which approved Bolam subject to the three qualifications, the problem was a defective gas fired heating system. Clearly, therefore, the test set out in Bolam is equally applicable to other professional people and those exercising specialist skills: see also Greaves & Co (Contractors) Ltd v Baynham Meikle and Partners below.

An error of judgment or the selection of the wrong method where there is a genuine difference of specialists’ opinion will not necessarily amount to negligence. In Robinson v The Post Office, R, a doctor in general practice, injected a patient with an anti-tetanus serum without first administering a test dose. At the relevant time, medical opinion was moving against the use of anti-tetanus serums generally. The Court of Appeal held that since R's failure to give a test dose was contrary to accepted procedure, he had been negligent, but that no damage had been caused as the result of the test would have been negative, and that, since at the time there was still a responsible body of medical opinion who favoured anti-tetanus serum, he had not been negligent in using it. Similarly, in the case of Perry v Tendring District Council and Others which dealt with, inter alia, the failure of a consultant engineer to design foundations that would be unaffected by long term soil heave, the court considered that the standard of care depended on 'what was to be expected of the competent engineer at the material date' (i.e time he designed the foundations). This is the 'state of the art' defence. There was conflicting expert witness evidence. One expert engineer personally knew of heave but was only able to refer to one textbook intended for engineers that dealt with it. Another expert had not read that textbook and thought that engineers generally would not have known of heave although that particular expert had expressed a contrary view some 12 years after the material date. Two other engineers stated categorically that they had never heard of heave. Judge Newey stated:

'On the totality of the expert evidence I must, however reluctantly, conclude that at the material time a competent engineer would not have known of long term heave'.

A more draconian attitude was adopted by the House of Lords in Independent Broadcasting Authority v EMI Electronics Limited and BICC Construction Ltd . The defendant’s submissions that the design and building of the cylindrical mast was work which was 'both at and beyond the frontiers of professional knowledge at that time' was not disputed by their Lordships, nevertheless they held that the designer was negligent. As regards the state of the art submission, Viscount Dilhorne stated:

'No doubt all this was true, and bearing in mind the consequences that might ensue if such a mast collapsed - fortunately no-one was killed or injured at Emley Moor, though part of the mast fell across a road and it might have fallen on a farmhouse - it was in my opinion incumbent on [the designer] to exercise a very high degree of care’

There are conflicting judicial decisions on the issue of whether a professional man who specialises within his profession has a higher duty than the non-specialist. In Wimpey Construction UK v Poole a consultant held himself out as having especially high skills and was retained on that basis. The court rejected the argument that the test in such circumstances should be that of a man exercising or professing to have especially high professional skills. However in Ashcroft v Mersey Regional Health Authority, the court found that the more skilled a person, the more the care which is to be expected of him, but the test should be applied without gloss either way.

Competency will invariably be a matter of expert evidence and opinion. However, in the last resort, the courts consider that they have discretion to reject expert evidence as to what is an acceptable practice within a profession. In Sidaway v Governors of Bethlem Royal Hospital, Lord Templeman stated:

'Where the practice of the medical profession is divided or does not include express mention, it will be for the court to determine whether the harm suffered is an example of a general danger inherent in the nature of the operation, and if so whether the explanation afforded to the patient was sufficient to alert the patient to the general dangers of which the harm suffered is an example.'

Sidaway was concerned with a surgeon's duty to warn a patient of a potential risk, and on that basis can be distinguished from a designer of a building project. However, it is suggested that the court would have a similar discretion in construction cases. Indeed, the House of Lords adopted a similar position in Independent Broadcasting Authority v EMI Electronics Limited and BICC Construction Ltd.

[edit] Greaves & Co (Contractors) Ltd v Baynham Meikle and Partners

The express conditions of the principal contract or the collateral warranty may determine the standard of performance. What, however, is the position if the contract is silent on this particular point? In the Greaves case, there was a suggestion that a designer's obligation might extend beyond reasonable skill and care to fitness for purpose. The facts of the Greaves case concerned G, a building contractor who undertook to design and construct on a package deal basis, a new factory, warehouse and offices for Alexander Duckham Limited. The warehouse was to be used for the storage of barrels of oil. G contracted with B, structural engineers, to design the structure of the warehouse. G informed B that the floors of the warehouse had to take the weight of forklift trucks carrying barrels of oil. After completion and occupation, cracks began to appear in the floors of the warehouse. It was established that the failure of the floors was due to vibrations caused by the use of the forklift trucks. The issues before the court turned upon whether B were in breach of their obligation to carry out their design works with reasonable skill and care, or whether B were in breach of an implied term of the contract between G and B that B's design should be fit for its purpose, namely the movement of loaded forklift trucks. It will be appreciated that a term which is implied as a matter of fact does not have the consequences of a term that is implied as a matter of law in so far as the former only relates to the particular bargain struck between the parties to the contract whereas the latter applies to all bargains unless excluded by the express terms of the contract. In the Greaves case, the judgment at first instance appeared to suggest that a fitness for purpose obligation was to be implied as a matter of law. On first reading, this is also the impression given by the judgment of Lord Denning MR in the Court of Appeal. However, on its facts, the Greaves case does not create a universal principle of fitness for purpose on the part of designers, in that the court found that whilst there was a contractual term that the designers should design a warehouse that was fit for its purpose, this term was implied as a matter of fact and not law. The court also found that B's design was negligent, that is to say in breach of the obligation to carry out their services with reasonable skill and care.

[edit] George Hawkins v Chrysler (UK) Limited and Burn Associates

Any doubts that lingered from the Greaves case were disposed of by the Court of Appeal in George Hawkins v Chrysler (UK) Limited and Burn Associates. B were engineers who contracted with C to prepare the design and specification for a shower room at C’s factory, which included a new floor and wall coverings. G, the plaintiff, was an employee of C and he slipped on a puddle of water in the shower room after having used the shower. G sued C and C in turn brought proceedings against B. C settled G's claim but continued the third party proceedings against B. The main issues in the case were:

  • was there an implied term of the contract that B would use reasonable skill and care in selecting the material to be used for the floor of the shower room?
  • was there an implied warranty or term that the material used for the floor would be fit for use in a wet shower room?

The judge at first instance found against C in respect of the first issue. However, on the second issue the judge found that B was in breach of an implied warranty that they would provide 'as safe a floor as was practicable in the expertise of the profession to provide a safe floor for these men in these conditions'. On appeal, the Court of Appeal held, inter alia, that although a party contracting for both the design and supply of a product will usually be under an implied contractual duty to ensure that it is reasonably fit for the purpose for which it is intended, where the contracting party is a professional man providing advice or designs alone (i.e. without supplying any product), no warranty will normally be implied beyond a term that reasonable skill and care will be taken in giving the advice or preparing the design. There was nothing in the present case to require the implication of any term other than a duty to take reasonable care and skill in preparing the design.

If the party being called upon to enter into a collateral warranty is an architect or engineer with a design function, and their principal contract expressly provides for a performance obligation of reasonable skill and care or is silent on this matter, for that party to enter into a collateral warranty with a fitness for purpose obligation will be increasing their liabilities. The important distinction between reasonable skill and care and fitness for purpose is that fitness for purpose is an absolute obligation and provided the obligation is clearly established or defined by the contract document, the party in breach will not be able to plead as a defence that they have discharged their services with reasonable skill and care. The facts in Samuels v Davis provide a useful illustration of the dichotomy between reasonable skill and care and fitness for purpose. In Samuels, the Court of Appeal held that where a dentist undertakes for reward to make a denture for a patient, it is an implied term of the contract that the denture will be reasonably fit for its intended purpose. Du Parcq LJ stated:

'... if someone goes to a professional man ... and says: "Will you make me something which will fit a particular part of my body? ..." and the professional gentleman says "Yes", without qualification, he is then warranting that when he has made the article, it will fit the part of the body in question ... If a dentist takes out a tooth or a surgeon removes an appendix, he is bound to take reasonable care and to show such skill as may be expected from a qualified practitioner. The case is entirely different where a chattel is ultimately to be delivered’

It is important to note that if an architect or engineer extends his potential liability by entering into a collateral warranty providing for a fitness for purpose obligation, there may well be serious repercussions in respect of their professional indemnity policy.

NB See also The Supply of Goods and Services Act.

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