What is the difference between a fitness for purpose responsibility and an obligation to exercise reasonable skill and care?
Clients when appointing a designer, whether architect, engineer, contractor
or subcontractor, expect the building or structure to operate when complete in the manner envisaged when the appointment was made. If the building or structure fails to
meet the client's expectations there are often questions asked of the designer and/or contractor as to whether the problem resulted from a
failure on their part to meet their contractual obligations. These obligations will normally take the
form of implied or express terms in the conditions of appointment or the terms of the contract under which the work was carried out.
In the
absence of an express term in the
contract for providing a design service there will be an implied term that the designer will use reasonable skill and care. The standard is not that of the hypothetical 'reasonable man' of ordinary prudence and intelligence, but
a
higher standard related to his professed expertise. This was laid down in Bolam v. Friern Hospital Manage- ment Committee (1957) by Mr Justice McNair:
W]here you get a situation which involves the use of some special skill or competence
, then the test whether there has been negligence or not is not the test of the man on top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
A person who professes to have a greater expertise than in fact he possesses
will be judged on the basis of his pretended skills.
In Wimpey Construction UK Ltd v. DV Poole (1984), a case where unusually the plaintiffs were attempting to prove their own negligence, they attempted to convince the
judge that a higher standard was appropriate to the case under consideration. They put forward two 'glosses', as the judge referred to them:
First,
that if the client deliberately obtains and pays for someone with
specially high skill the Bolam test is not sufficient
• Second, that the professional person has a duty to exercise reasonable care in the light of
his actual knowledge, not the lesser knowledge of
the ordinary competent practitioner.
As regards the first gloss, the judge felt obliged to reject it in favor of the
Bolam test. However the judge accepted the second gloss, not as a qualification of the Bola test but as a direct
application of the principle in Donoghue v. Stevenson (1932).
You must take reasonable care to avoid acts or omissions which you can reason- ably foresee would be likely to injure your neighbor.
