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Common sense judgments apply, even with professional evidence

Phenolic yellowing is a little-known phenomenon which is bad news for the textile industry. It occurs when plastic packaging containing volatile yellowing precursors is placed near textiles in an atmosphere containing oxides of nitrogen where, for example, there is direct gasfired heating. In those conditions a yellow product is formed, is absorbed by the textiles and damages them.

Despite the potentially serious consequences of phenolic yellowing, textile suppliers tend to be unaware of the problem unless they have experienced it. It seems that the building industry is wholly unaware of it.

And yet JD Williams & Co, a large catalogue mail order company, claimed that architect Michael Hyde and Associates was negligent for not warning it about the problem when it incorporated a direct gasfired heating system into a scheme to convert two old cotton mills into bulk storage warehouses. British Gas had provided a quotation for the heating system, together with a disclaimer that it would not be liable for discolouration of materials. Both JD Williams and the architect discussed the clause with British Gas. Both came away with the impression that there had been earlier problems but that there was no significant risk. Nevertheless, JD Williams alleged that the architect ought not to have accepted British Gas' assurances but ought to have challenged the company on its disclaimer, or have advised JD Williams to engage M&E consultants to assess the risk, or have warned JD Williams off the direct-fired heating option. JD Williams' expert said that British Gas' refusal to drop its disclaimer ought to have shone out 'like a red beacon' to a reasonably competent architect.

The architect's expert sought to differ. He said that it was a textile matter and not a heating matter, and that the architect was obliged to do no more than draw the disclaimer to the client's attention. The issue for the court was whether it was sufficient to draw the client's attention to the risk or whether the architect ought to have established how serious the risk actually was.

Given the direct conflict of expert evidence, how ought the court to have resolved this matter?

The usual test for professional negligence was laid down in a medical negligence case, Bolam v Friern Hospital (1957). The Bolam test can be summarized as: 'Professionals are not negligent if they act in accordance with a practice accepted as proper by a responsible body of people in that particular profession.' The architect sought to establish that it did what 'a responsible body of architects' would have done in similar circumstances. In a surprising turn, however, the judge said that he was quite able to make up his own mind as to whether the architect ought to have investigated the risk further, without the help of either party's experts. He said that the relevant factors were nothing to do with architectural or engineering practice but a simple matter of risk benefit analysis based on common sense. He found that the architect was wrong to be reassured by British Gas so long as it insisted on maintaining its disclaimer.

As the judge had in effect thrown the Bolam test out of the window, it is not surprising that the architect rushed straight to the Court of Appeal.

There, the court exonerated the architect on the basis that even if the judge was right to find it negligent, there was nothing to say that, had the architect investigated the matter further, it would have found out more about the risk of phenolic yellowing. But importantly, the court agreed with the judge that there are some questions which a court is able to decide for itself, either because the question does not involve any special architectural skills, and so does not require the court to 'get under the skin' of another profession, or because the question does not need any expert help.

Architects and experts should be aware that the courts are just as likely to consider allegations of professional negligence on a common sense basis as they are to look for a responsible body of professional opinion.

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