Exercising reasonable care is not good enough for clients
Most construction professionals expect their performance to be judged against the standards of a reasonably competent professional of similar qualification whether they, in lawyer speak, use reasonable skill and care. By contrast, a contractor is usually obliged to ensure that they provide a building that will work. That is, in lawyer speak, one that is fit for its purpose. But as construction procurement changes, and public expectations increase, these norms are becoming increasingly uncertain.
Professionals may have been wrong in thinking that skill and care is a standard to which they have to aspire. In fact, it is more of a defence. If it does not work, you may be able to say 'true, it does not work but I prepared the design with the reasonable skill and care to be expected of my profession: not every mistake is negligent you know.' Looked at in that light, the man on the street may wonder why professionals benefit from this extra layer of protection. Traditionally, professionals exercise their judgement in areas where there may not be a 'right' answer. The standard of skill and care means that in making their decisions professionals will be unfettered by the fear of not achieving an absolute result. So when a plumber comes to rearrange your pipe-work, they are obliged to ensure that the right stuff goes in and out the right way. But when a surgeon performs a vasectomy they do not guarantee that the right stuff will never pass that way again and a small but recognised percentage of perfectly executed vasectomies have, as it were, surprising results. Professionals can, however, cross the Rubicon and agree to provide an end product rather than their services. Thus in the wartime case of Samuels v Davis , the Court decided that a dentist who makes dentures for his patient must produce dentures that are fit for their purpose, and, presumably, that fit.
The boundaries in construction have become blurred. It is now common for consultants to be employed by contractors. That puts the consultants on the side of those producing goods. In some design and build projects, consultants change sides at half time, working for a client in the early stages, and then being taken on by the contractor. It is also increasingly likely that in a substantial project both client and contractor will employ their own consultants. Under those circumstances, is it right that the contractor's architect has to produce a design that is fit for purpose, while the client's architect has the less onerous duty of reasonable skill and care? And what happens to the obligations of the architect who moves from working for the client to the contractor?
The answer in any particular case will be in the contract. Often the liability of the contractor's designers is expressed to be the same as if they were working for the client. In the case of Greaves v Baynham Meikle , however, where a contractor subcontracted the design of a warehouse to engineers and the floor subsequently cracked, the Court found that the engineers were obliged to design a floor that could stand up to constant traffic from loaded forklift trucks.
As the procurement ground shifts so do public expectations, and some clients find themselves wondering whether it is good enough for consultants designing safety systems for railways to have a defence of reasonable skill and care. One only has to reflect on recent press coverage of this difficult subject to realise that the public want fail-proof safety systems. Airport operator BAA's consultants on Heathrow's Terminal 5 have to achieve 'world class standards'. Are they compatible with reasonable skill and care? A client who is obliged by law to decontaminate a site will want a process that is guaranteed to work rather than one that was designed with reasonable skill and care but flawed all the same.
It seems there is a new breed of client out there for whom traditional professional standards are simply not enough. At the moment these tend to be the large corporate clients with the commercial clout to demand exceptional standards and procure the insurance to back them up. But where they lead, others may follow.
And if they do, construction professionals will have to find a way to respond.