10 March 2014 #Construction
The recent High Court case of 199 Knightsbridge Development Ltd v WSP UK Ltd deals with the standard of care owed by professionals.
It involved a high-end development of apartments in Knightsbridge, which were badly damaged due to flooding caused by a fault with the water system in the building. The pressurised system used in the development, whilst not new or novel, was, where a series of events occurred, prone to joint failures that would result in water under high pressure escaping.
Although at the design stage of this project new parts were being developed by the industry to eradicate these risks, it was not until after the flood that they were commonly installed into such pressurised systems.
The claimant developer brought the case against the Mechanical & Electrical engineers, WSP UK Ltd, on the grounds that WSP had failed to exercise ‘a reasonable level of skill and care 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 as the Project.’
The standard of care expected from a professional in performing services is a well trodden path in the courts. The 1957 case of Bolam v Friern Hospital Management Committee (a doctor’s negligence case) is the cornerstone and reference point in setting out the applicable standard expected. It states that a professional:
“...is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art”
Well established guidance on what is a ‘reasonable body’ of professionals comes from the 1998 case of Bolitho v City & Hackney Health Authority:
“... the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis.”
What then are the criteria applicable to be fulfilled before a “body of opinion” will be considered to have a ‘logical’ basis? The 2002 case of Khoo James v Gunapathy provides a two stage test:
This is the standard that, in the absence of a greater obligation, applies to construction professionals, except perhaps where a professional holds himself out as having particular ‘extra’ specialised expertise.
What is also long established, however, is that blindly following the practice of others without consideration of the risks involved in pursuing a particular course of action will not satisfy the above test. Simply saying that ‘everyone else was doing it’ is not a sufficient defence to claim for a breach of a contractual standard to exercise reasonable skill and care, or indeed failing to meet the general duty of care.
In the 1984 case of Thomson v Smith Shiprepairers (North Shields) Ltd, the High Court said that a defendant is not:
“... exonerated simply by proving that other[s] ... are just as negligent, but ... the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole.”
The judge deduced from the evidence, both from the contemporaneous facts and technical submissions from each sides’ experts that WSP should have considered the possibility of such a failure occurring, even though they were ‘not alone in their approach’. The Judge found that WSP should have considered the possibility of a high pressure surge. Had they done so, they would have realised that such a catastrophic event was a possibility.
Ultimately, however, the Claimant’s case was dismissed, as, although they were able to show that WSP had fallen short of the standard of care owed to the Claimant, they were unable to prove that had WSP advised them to install certain devices that would have prevented the failure, the Claimant would have:
There was, therefore, a lack of causation attributed to WSP’s breach and their claim failed.
The case is a useful reminder of the standard of care expected of professional consultants in the construction industry.