Barristers Kim Franklin and Sue Lindsey look at the difference between the standard applied by the courts to professionals, such as architects, and that applied to constructors
WHAT IS A PROFESSIONAL?
The courts have shied away from giving a comprehensive definition of the word ‘professional’. They recognise, however, that a profession involves an occupation requiring intellectual skill, or manual skill powered by an intellect, such as sculpture or surgery. Generally the professions have four characteristics:
• the nature of the work is skilled and specialised;
• practitioners are usually expected to be committed
to certain moral principles;
• professionals generally belong to a professional association; and
• most professionals have a high status in the community.
WHY DOES THIS DEFINITION MATTER?
The legal distinction between a professional and a contractor is fundamental to the question of their respective liability if things should go wrong. A contractor agrees to do specifically what they have been asked to and, in so doing, guarantees their product. A professional warrants only that they will perform the agreed task with reasonable skill and care. As judge and jurist Lord Denning said: ‘The law
does not imply a warranty that a professional will achieve the desired result, but only a term that they will use reasonable skill and care. The surgeon does not warrant that they will cure the patient. Nor does a solicitor warrant that they will win the case.’
The distinction between the different duties owed by contractors and professionals is at the heart of most construction claims. A professional owes a common-law duty to exercise reasonable skill and care in their job. If they are in breach of this they are liable to be sued for negligence. The standard by which they are judged is the standard of a similarly qualified professional. A professional could, for example, fail to design a bridge that remained stable, could specify a cladding material that fell off, or could perform an unsuccessful surgical operation. They would only be found negligent, however, if they fell below the standards of their profession. It is for this reason that nearly all professional-negligence claims are supported by the expert evidence of a fellow professional. In this respect an engineer’s views of an architect’s design or a quantity surveyor’s opinion of an architect’s certificate are at best of little legal assistance and at worst inadmissible.
On the other hand a contractor owes a contractual duty to perform the contract. If they fail to do this they are sued for breach of contract. The only question is whether they did specifically what they agreed to do in the contract. ‘I did my best’ or ‘I did what any contractor would have done in the circumstances’, are not legal defences available to
DOES IT MAKE A DIFFERENCE LEGALLY?
When you realise that professionals are liable in negligence whereas contractors are liable for breach of contract, it becomes apparent that a whole raft of different considerations apply to the two types of claim.
The point from which the time for bringing a claim starts to run is different for claims in negligence and contract: in contract it is the date of breach; in negligence it is more complicated. The limitation periods are different: in contract it is six years, or 12 years if the contract is under seal; in negligence, again, it is not so straightforward. The defendant’s losses are also measured in different ways: in contract the defaulter is required to put the defendant in the position they would have been had the contract been performed; in negligence the defendant is entitled to be put in the position they would have been had there been no breach.
WHEN ARE PROFESSIONALS LIABLE?
The most important distinction is usually whether or not they are liable in the first place. This point is widely misunderstood within the construction industry. Common thinking goes along these lines: the professional was engaged by a contract to do a certain thing - design foundations that will hold up, design a building in the right place, advise the client where to put their money for the best results - that kind of thing. They didn’t do it. The house has subsided, the leisure centre is in the wrong place, the investments have completely failed. The professional has breached their contract. They are liable. They have to compensate the defendant. You don’t have to go to law school to know that.
But those following this line of thinking will be falling into a common misapprehension. Yes, professionals are usually engaged by a contract which sets out the services they are required to provide and the terms upon which they are prepared to provide it. Nevertheless, that
does not make them contractors. Instead, the law implies a term (even if it is not spelt out expressly) that they will exercise reasonable skill and care when carrying out their functions under the contract. It does not expect them to guarantee results. Thus even if the foundations have failed or the cladding dropped, the designer will not be liable if they exercised reasonable skill and care.