2. Legal and liabilities

Question 1

Who is responsible for trees and their overhanging branches into neighbouring property?

Answer 1

Landowners

Question 2

What is strict liability?

Answer 2

The legal responsibility under tort for damages or injury even when the person that is found strictly liable was not at fault or negligent. Commonly this relates to the unnatural escape of something such as water or animals which then cause damage. This was illustrated by the Ryland and Fletcher case. The landowner Rylands was found strictly liable, even though they were not at fault, it was the contractor who had led to the water flooding onto neighbouring land.

Question 3

What is the law of tort?

Answer 3

A tort is an act which leads to legal liability under common law in the absence of a contract.
There are six types of tort these include trespass, nuisance, defamation (libel/slander), negligence, strictly liability and vicarious liability

Question 4

What is tort?

Answer 4

Tort is a wrongful act other than a breach of contract that results in injury to another’s body, property, dignity or reputation and it is recognised by statute or common law.

Question 5

What is the master servant relationship?

Answer 5

It is a concept underpinning vicarious liability. The superior person takes responsibility for the act of their subordinate for example, a manager takes responsibility for the employees they manage.

Question 6

What is the controlling mind?

Answer 6

This relates to how people act in regard to the companies controlling mind and carrying out acts that can be attributed to the company. For example manslaughter. If an employee was doing their work as they have been told in line with company instructions and methods and caused death, then this is corporate manslaughter.

Question 7

What actions from a landscape architect might give rise to liability claims?

Answer 7

If not carried out with reasonable care:
Incompetent design, including taking account of relevant risks
Negligent survey
In adequate inspection
Negligent financial advice
Negligent legal advice
Negligence certify payments

The risk of this can be minimised if we act in accordance with the landscape institutes code of practice.

Question 8

What is the difference between suing in contract or in tort?

Answer 8

Both come under civil law, but there is a difference between contract law and the law of tort. You can only be sued in contract if there is a breach in that contract between the parties involved.

Question 9

What is liability?

Answer 9

Liability is defined us having a legal responsibility for something

Question 10

What does a landscape architect need to know about the law?

Answer 10

It is necessary in order to carry out our responsibility to client the profession and society as set out in the code of practice. It is part of our professional competency and ignorance of the law is no excuse.

Question 11

What is the difference between civil and criminal law?

Answer 11

Civil law is for dispute between individuals or organisations and aims to write the wrongdoing through compensation. The wrong doer is not punished. They only have to make good the wrong civil law includes contract law and the law of tort.
Criminal law on the other hand is for looking after the public interests whereby police and prosecutors are hired by government using public funds. Wrongdoers are punished whether via fines or prison sentences.

Question 12

What is legislation?

Answer 12

Legislation are written rules and laws made by government. It is enacted via an act of parliament such as the town and country planning act and the countryside and rights of way act. These acts are comprised of regulations orders and rules.

Question 13

What is negligence?

Answer 13

Negligence is an act either in tort or under contract whereby there is a careless infliction of harm or damage. There are three essential elements these include the existence of illegal duty of care, a breach of that duty, damage caused. They can be applicable to landscape architect in addition to contractual obligations personal injury or defects.
The law for this is Donahue versus Stevenson. Donahue drank a drink with a snail and was ill. The House of Lords held that Stevenson owed duty of care to Donoghue despite not having a contract it was foreseeable that a snail could end up in the drink and that could result in injury.

Question 14

What is nuisance?

Answer 14

Nuisance is a tort (a wrongful act in the absence of a contract) whereby an unreasonable interference causes damage. The interference is something that could be foreseen such as a contractor leaving mud on the road or blocking roads with lorries. encroachment is a type of nuisance such as tree branches overhanging neighbouring land and causing damage. It can be prevented by being mindful of others and their land and property.

Question 15

What is trespass?

Answer 15

Trespass is a tort (a wrongful act in the absence of a contract) whereby there is an intentional entering onto land remaining on land or causing anything to come into contact with land which is in possession of another this includes the air above and the soil below the land. It can also include equipment to rest or hang over another person‘s property, in England and Wales, no proof is needed to action on trespass.

Question 16

What is defamation?

Answer 16

Defamation is a tort (a wrongful act in the absence of a contract) whereby there is a publication of a false statement which damages the reputation of another unfairly. It includes libel and slander.

Question 17

What is a duty of care?

Answer 17

A duty of care is an unwritten responsibility that you will make a reasonable effort to do the best for the environment, end users, communities, the profession and the client. Every professional owes a duty of care to anyone who might reasonably rely on their service or advice whether or not it is paid.

Question 18

Who do we as landscape architect owe a duty of care to?

Answer 18

We owe a duty of care to the client, society, environment, landscape profession, company, employer, employees, and other professionals. A breach of a duty of care can lead to negligence and consequent claims.

Question 19

What liabilities do landscape architects have?

Answer 19

We have professional liabilities in contract and tort as an employee, employer and occupier.

Question 20

What is the difference between strict duty and duty of care?

Answer 20

Strict duty is a promise that something will happen with a desired result. A duty of care is an unwritten responsibility that you will make a reasonable effort to do the best for the environment, end users, communities, profession, and the client.

Question 21

How long are you liable for?

Answer 21

Under contract, six years
Contract under seal, 12 years
Tort, six years
Professional injury, three years from date of injury
Latent damage, 15 years
Defamation, one year

Question 22

What is the current court structure?

Answer 22

Initially there is a magistrates court for criminal law and county court common law. Then there is the court of appeal, the UK Supreme Court and the court of Justice of the EU which still applies following Brexit.

Question 23

What are the two sources of law in England and Wales?

Answer 23

Criminal written enacted law
Common civil unwritten law

Question 24

What European laws govern the way in which we work as landscape architect and how may these have changed post Brexit?

Answer 24

CDM regulations and EIA regulations have been embedded into UK law following Brexit

Question 25

What is a contract?

Answer 25

A contract is a legal agreement between individuals. This legal relationship between parties can be enforced by law if breached by either party. To be bound by law it must have an offer, consideration, and acceptance. As set out in the code of practice, contracts that we enter into as landscape architects must be in writing.

Question 26

What are the essentials of a valid contract?

Answer 26

The intention to create legal relations The consideration An agreement

Question 27

What are the terms of a contract?

Answer 27

The terms of a contract established the obligations of each party. Both parties are legally bound to those terms.

Question 28

In a contract, what are expressed and implied terms?

Answer 28

Express terms are formally agreed and set out in writing, for example what you agreed to do, who for, when by. Implied terms are not written within the contract, but the landscape architect should be aware that they exist . These can include terms implied by law, custom and professionalism.

Question 29

Give an example of implied terms of contract

Answer 29

That the landscape architect will carry out all tasks with the appropriate and required level of skill and care

Question 30

What are standard term contracts?

Answer 30

These are standardised contracts that reduce the chance of terms being misunderstood, for example the landscape consultants appointment. These are essentially a pro forma that prevent us from making mistakes.

Question 31

What is a restrictive covenant?

Answer 31

A restrictive covenant restricts the way that party can act. In landscape architects work this is normally away in which the land can be used. This applies even when land changes hands. Examples are restrictions on alterations to buildings, building on the land, prohibiting certain uses of land. A project at Define that has a covenant is groveley. Part of the site is owned by Cadbury and they protect the intention and the right of the land.

Question 32

What is an easement?

Answer 32

An easement is right, which a landowner may hold over the land of another such as access

Question 33

What legislation covers public rights of way across land?

Answer 33

Public rights of way are covered under the countryside and rights of way act as well as the wildlife and countryside act

Question 34

Can a public right-of-way be rerouted?

Answer 34

Yes public rights of way can be rerouted using a diversion order as long as the new route is not significantly different or is not less convenient to the public

Question 35

What is open access land?

Answer 35

Open access land is that which comes under part of the countryside and rights of way act and includes areas of mountains, moorland and land around the English coast path, et cetera

Question 36

What kind of liability is a landscape architect subject to?

Answer 36

A landscape architect can have a professional liability as an employer and employee and an occupier as well as under contract and tort. They can be statutory example CDM and EIA Individual Jointly liable for example partnership Or vicarious, i.e. master servant relationship or employer employee

Question 37

What insurances do landscape practices need?

Answer 37

Professional indemnity insurance Public liability Employers liability Motor Buildings and contents

Question 38

What is professional indemnity insurance?

Answer 38

Professional indemnity insurance protects you against claims for loss or damage made by clients or third parties as result of the impact of negligent services that you have provided or advised. This is required by the landscape Institute as part of the code of practice. claims can be made for six years in tort, 12 years in contract. It is calculated by looking at recent projects, conditions of appointment, forms of contract, number of employees, turnover, nature of work, historic claims. If a company ceases trading professional indemnity insurance must be taken out for at least 12 to 15 years after completion of the last project.

Question 39

What are the employers duties under health and safety law?

Answer 39

The health and safety at work act requires employers to have written statement of safety policies and arrangements, provide appropriate first-aid facilities and training, and insuring employees are aware of health and safety procedures including fire procedures.

Question 40

What are the employees duties under the health and safety law?

Answer 40

The health and safety work act requires employees to exercise reasonable care to themselves and fellow employees and to cooperate with employers health and safety procedures

Question 41

What are the principles of employment law?

Answer 41

Employment law covers things such as fairness, reasonableness, equal treatment, correct training, remediation when necessary.

Question 42

What health and safety legislation should landscape architect be aware of at work?

Answer 42

The health and safety at work act CDM regulations

Question 43

What is the health and safety executive?

Answer 43

The health and safety executive is the body that’s responsible for regulating, enforcing and encouraging health, safety and welfare in the workplace

Question 44

When would you need to notify HSE?

Answer 44

HSE must be notified for most types of health and safety incidents in the workplace including accidents resulting in hospital treatment, death and anything resulting in a worker being off sick for eight days or more

Question 45

What are collateral warranties and they’re relevant to landscape architect?

Answer 45

Collateral warranties are legal relationship with a third-party for example the future tenants, or purchases of a building. Standard forms exist. Define have had collateral warranties but it is rare. These must be flagged immediately and reviewed by managers, legal team and insurers as there is a financial that was whacked out. I think it risk. As landscape architects we can be sued if latent damages which are our fault come to light, even though the third-party was not in the original contract.

Question 46

What are the principles and privity of contract and the contract act 1999?

Answer 46

This gives third-party the right to sue under a contract they were not party to. Many standard documents and contracts, for example JCLI and the landscape consultants appointment, were updated to exclude these rights and use collateral warranties instead.

Question 47

What is liability for breach of contract?

Answer 47

Breach of contract occurs when a party refuses fails or performs defectively as per the contract without a lawful excuse. they would then be liable for the breach of contract legal relations and contractual relations must exist for this to apply

Question 48

What is the difference between suing in tort or under contract?

Answer 48

Tort relates to duty of care, breach of duty or damage and is not limited to parties with legal relations. suing under contract can happen when parties in contractual relations do not perform under this contract in both express and implied terms. This is the case unless a collateral warranty is used.

Question 49

What are some ways in which landscape architects actions can give rise to liability claims?

Answer 49

If not carried out with care or skill, our work can lead to claims based on the following, Negligent surveys or inspections Incompetent design and not taking into account risk Negligent financial or legal advice And negligence in certify payments

Question 50

What is the difference in liability between a landscape architect in a public versus private practice?

Answer 50

In a private practice landscape architect may have a legal responsibility for other employees such as their partners or other employees and may be liable for the debts of the practice. In a public landscape architects can only be responsible for their own act relating to their own profession.

Question 51

How long does liability last in tort and contract?

Answer 51

Both six years less under seal, which is 12 years

Question 52

What is employers liability insurance?

Answer 52

Employers liability insurance is a legal requirement to protect an employer against any claim brought about by its employees due to employers breach of duty. All UK employers are required to take this out.

Question 53

What is public liability insurance?

Answer 53

This is insurance to cover damaged to 3rd parties

Question 54

How long would you be liable for if something went wrong on a project?

Answer 54

Under contract or taught it’s six years A contract under seal is 12 years Latent damages is 15 years Personal injury is three years from the date of injury And defamation is one year

Question 55

Why is the case of Ryland versus Fletcher relevant to landscape architect?

Answer 55

This is the key case law relating to strict liability. The outcome of the Rylands versus Fletcher case means landowners are liable for the escape of materials from their land if they cause damage to other peoples property or people. Recent case law has also established that the landowner is not liable if the escape could not have reasonably been foreseen.

Question 56

Explain the relevance of the copyright design and patents act to landscape architects.

Answer 56

This act restrict the use, copying or distributing of your work as a landscape architect and also gives your employer right over the work that you produce while employed by them.

Question 57

How many strict liability be relevant under contract?

Answer 57

You may be subject to claims under vicarious liability if your client is under strict liability. under your duty of care, it may also be necessary to ensure the client is aware of strict liability and their responsibilities as a landowner if they are a landowner.

Question 58

What are the different types of tort?

Answer 58

Negligence Nuisance Trespass Defamation Strictly liability Vicarious liability

Question 59

What is strict liability?

Answer 59

Liability is a form of tort relating to damage caused by the escape of something into another’s land that causes damage The law for this is Ryland versus Fletcher where by contaminated water flooded from a disused into the neighbouring property.

Question 60

What is vicarious liability?

Answer 60

Vicarious liability is a form of tort relating to the master servant role. Someone can liable for someone else’s work if damage was caused by an error for example a landowner can be liable for damaged caused by a contractor or a supervisor liable for a juniors error.

Question 61

What constitutes negligence?

Answer 61

All four of the below elements must exist A duty of care present under contract or not The breach of that duty of care As a result of the breach damages incurred And this is due to the defendants act or omission