Professional and Design Liability
Professional and Design Liability
BE0892 Practice Specialisation
Professional Liability
Liability for injury, including bodily or personal injury or death, and property damage arising out of the negligent act or omission of a professional, ie, pharmacist, physician, attorney, architect, engineer, in performance of their professional activities.
How can liability arise?
Contract Tort Statute and regulations e.g. Supply of Goods and Services Act, Building Regs.
Express terms Implied terms
Negligence ‘Nonnegligence’
Liabilities co-exist, also with overlaps between categories
Negligence
• The omission to do something that a reasonable person would do; or doing something that a reasonable person would not do. • Duty of care owed. • Breach of that duty of care. • Test is whether person has matched the abilities of a reasonable person.
Professional Negligence
• Professional person is presented as having special or particular abilities that are common to that profession. • Test of breach of duty is whether professional person has matched the abilities of an ordinarily competent member of that profession.
Level of duty of care
• “Reasonable skill and care” is the normal level of expected performance.
– Bolam v Friern Hospital Management Committee [1957]
• “Fitness for purpose” is a higher level duty of care. For example:
– when a builder selects and supplies materials, he warrants that they will be ‘fit for purpose’. – when a designer provides a service, he guarantees to exercise ‘reasonable skill and care’.
Defective Premises Act 1972
• Duty to carry out the work in a workmanlike manner and with proper materials, so that the dwelling will be “fit for human habitation”. • Applies to dwellings, not commercial premises. • Applies to architects as well as builders, but not to inspectors or valuers. • Excludes dwellings subject to approved schemes, e.g. NHBC.
Duty to Warn
• Plant Construction v JMH Construction (2000) • Should a
BE0892 Practice Specialisation
Professional Liability
Liability for injury, including bodily or personal injury or death, and property damage arising out of the negligent act or omission of a professional, ie, pharmacist, physician, attorney, architect, engineer, in performance of their professional activities.
How can liability arise?
Contract Tort Statute and regulations e.g. Supply of Goods and Services Act, Building Regs.
Express terms Implied terms
Negligence ‘Nonnegligence’
Liabilities co-exist, also with overlaps between categories
Negligence
• The omission to do something that a reasonable person would do; or doing something that a reasonable person would not do. • Duty of care owed. • Breach of that duty of care. • Test is whether person has matched the abilities of a reasonable person.
Professional Negligence
• Professional person is presented as having special or particular abilities that are common to that profession. • Test of breach of duty is whether professional person has matched the abilities of an ordinarily competent member of that profession.
Level of duty of care
• “Reasonable skill and care” is the normal level of expected performance.
– Bolam v Friern Hospital Management Committee [1957]
• “Fitness for purpose” is a higher level duty of care. For example:
– when a builder selects and supplies materials, he warrants that they will be ‘fit for purpose’. – when a designer provides a service, he guarantees to exercise ‘reasonable skill and care’.
Defective Premises Act 1972
• Duty to carry out the work in a workmanlike manner and with proper materials, so that the dwelling will be “fit for human habitation”. • Applies to dwellings, not commercial premises. • Applies to architects as well as builders, but not to inspectors or valuers. • Excludes dwellings subject to approved schemes, e.g. NHBC.
Duty to Warn
• Plant Construction v JMH Construction (2000) • Should a