2A / 2B: 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, it relates to an unnatural escape of something, such as water or animals, which then causes damage.
This was illustrated by the Rylands and Fletcher case, whereby 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 the 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 (no legal relations). There are six types of tort, such as trespass, nuisance and defamation,

Question 4

What is the master/servant relationship?

Answer 4

It is the concept underpinning vicarious liability: the superior person takes responsibility for the acts of their subordinate - e.g. manager take responsibilities for the employees they manage.

Question 5

What is the controlling mind?

Answer 5

It relates to how people act in regard to the company’s “controlling mind” and carrying out acts that can be attributed to the company. E.g. manslaughter: if an employee was doing their work as they had been told in line with company instructions, methods etc and caused death, this is corporate manslaughter. (?)

Question 6

Which actions from a Landscape Architect might give rise to liability claims?

Answer 6

If not carried out with reasonable care, the Landscape Architect can be liable for:

• Incompetent design, including design not taking into account relevant risks
• Negligent survey
• Inadequate inspection
• Negligent financial advice
• Negligent legal advice
• Negligence in certifying payments

The risk of this happening can be minimised by acting in accordance with the code of conduct

Question 7

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

Answer 7

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 contract between the parties involved.

Question 8

What is liability?

Answer 8

Liability is defined as having a legal responsibility for something.

Question 9

Why does a landscape architect need to know the law?

Answer 9

It is necessary in order to carry out our responsibility to clients, the profession and society, as set out in the code of conduct… it is part of our professional competency and ignorance of the law is no excuse.

Question 10

What is the difference between civil (or common) and criminal law?

Answer 10

They have difference aims and ways they are addressed.
Civil law is for disputes between individuals or organisations, and aims to ‘right’ any 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 public interests, whereby police and prosecutors are hired bu the government, using public funds. Wrong-doers are punished, whether via fines or prison sentences.

Question 11

What is legislation?

Answer 11

Legislation is written rules and laws made by a government. It is enacted via acts of parliament, such as the town and country planning act, and CRoW act. These acts are then comprised of regulations, orders and rules.

Question 12

What is negligence?

Answer 12

Negligence is an act (either in tort or under contract) whereby there is the careless infliction of harm or damage.
It has three essential elements:
- existence of a legal duty of care
- a breach of that duty
- damage caused
Can be applicable to a landscape architect in addition to contractual obligations… personal injury or defects etc.
Example: Donoghue vs stevenson the snail in the soda can.

Question 13

What is nuisance?

Answer 13

Nuisance is a tort (a wrongful act in absence of a contract) whereby there is an unreasonable interference that causes damage. This interference is something that could be foreseen, such as a contractor leaving large amounts of mud on a road, or blocking a road with delivery lorries. Encroachment is a type of nuisance - such as tree branches overhanging into neighbouring land and causing damage.
Essentially, it can be prevented by being mindful of others and their land/property.

Question 14

What is trespass?

Answer 14

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

Question 15

What is defamation?

Answer 15

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

Question 16

What is duty of care?

Answer 16

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

Question 17

Who do we, as landscape architects, owe a duty of care?

Answer 17

Client, society, environment, landscape profession, company, employer/employee, other professionals. Breach of duty of care can lead to negligence and consequent claims.

Question 18

What liabilities do landscape architects have?

Answer 18

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

Question 19

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

Answer 19

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

Question 20

How long are you liable for?

Answer 20

Under contract = 6 years
Contract under seal (with witness, used for collateral warranties) = 12 years
Tort = 6 years
Personal injury = 3 years from date of injury
Latent damage = 15 years
Defamation = 1 year

Question 21

What is the current court structure?

Answer 21

Initially there is magistrates courts for criminal law and country court for common law, then the court of appeal, the UK Supreme Court and the Court of Justice of the EU which still applies to the UK following Brexit, but is likely to change.

Question 22

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

Answer 22

criminal/written/enacted law, common/civil/unwritten law.

Question 23

What European laws govern the way we work as landscape architects, and how may these have changed post Brexit?

Answer 23

CDM regs and EIA regs: still enacted during transition period, likely to be embedded in UK law.

Question 24

What is a contract?

Answer 24

A contract is a legal agreement between individuals: the legal relationship between parties which can be enforced by law if breached by either party.
As set out in the code of conduct, contracts that we enter as professional landscape architects must be in writing.

Question 25

What are the essentials of a valid contract?

Answer 25

The intention to create legal relations, the consideration, and the agreement.

Question 26

What are ‘terms of contract’?

Answer 26

The terms of contract establish the obligations of each party. Both parties are then legally bound to these terms.

Question 27

In a contract, what are express and implied terms?

Answer 27

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

Question 28

Give an example of implied terms of contact.

Answer 28

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

Question 29

What are standard term contracts?

Answer 29

They are standardised contracts that reduce the chance of terms are misunderstood - for example, the landscape consultants appointment.

Question 30

What is an easement?

Answer 30

Easements are rights which a landowner may hold over the land of another, such as access.

Question 31

What is a restrictive covenant?

Answer 31

A restrictive covenant restricts the way that a party can act, in landscape architects’ work this is normally a way 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 or prohibit certain uses of the land.

Question 32

What legislation covers public rights of way across land?

Answer 32

CRoW act and Wildlife and Countryside Act.

Question 33

Apart from public rights of way, what other rights of way exist?

Answer 33

Permissive paths, open access land, easements.

Question 34

Can a PRoW in a site be rerouted?

Answer 34

Yes - PRoW diversion orders can by made, 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

Land that comes under part of the CRoW act, including areas of mountain, moorland, land around English coast path etc.

Question 36

What kind of liabilities are landscape architects subject to?

Answer 36

A landscape architect can have professional liabilities (in contract and in tort), liabilities as an employer, an employee and an occupier.
Liabilities:
- Statutory, eg. CDM and EIA
- Individual
- jointly liable - e.g. partnerships
- Vicarious (master-servant, employer-employee)

Question 37

What insurances do landscape practices need?

Answer 37

Professional Indemnity, Public liability, Employers, building/contents and motor.

Question 38

What is Professional Indemnity Insurance (PII)?

Answer 38

Professional indemnity insurance protects you against claims for loss or damage made by clients or third parties as a result of the impact of negligent services you provided or negligent advice you offered. This is required by the LI, as set out in the code of conduct. Claims can be made for 6 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 practice’s work, historic claims.
If a company ceases trading, PII must be taken out for at least 12-15 years after the completion of their last project.

Question 39

What are the employer’s 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/training
• ensure employees are aware of health and safety procedures, including fire

Question 40

What are the employee’s duties under health and safety law?

Answer 40

The health and safety at work act requires employees to:

• exercise reasonable care to themselves and fellow employees
• corporate with employer’s 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 architects be aware of at work?

Answer 42

Health and safety at work act (the foundation of all health and safety legislation at work in the UK), CDM regs.

Question 43

What is the HSE?

Answer 43

The Health and Safety Executive is the body 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 work for over 8 days.

Question 45

What are collateral warranties and what are their relevance to landscape architects?

Answer 45

Collateral warranties are a legal relationship with a third party, for example future tenants or purchasers of buildings.
Standard forms exist - Define have had collateral warranties for a few projects, but it is rare. Must be flagged immediately and reviewed by manager, director, legal team and insurers - we try to avoid it because of the financial risk.
This is relevant to landscape architects because 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 (eg. between us and the client)

Question 46

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

Answer 46

Gives third parties the right to sue under a contract they were not party to.
Many standard docs and contracts (JCLI, 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 lawful excuse. They would then be liable for a breach of contract. Legal relations/contractual relations must exist for this to apply.

Question 48

What is the difference between sueing 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.
Sueing under contract can happen when parties in contractual relations (unless in the case of a collateral warranty) do not perform under this contract (in both express and implied terms).

Question 49

What are some examples of ways in which landscape architect’s actions can give rise to liability claims?

Answer 49

If not carried out with due care and skill, our work can lead to claims based on the following…

• negligent survey or inspection
• incompetent design
• negligent financial or legal advice
• negligence in certifying payments
• etc…

Question 50

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

Answer 50

Private: may have legal responsibility for other employees such as partners or other employees, and may be liable for debts of the practice.
Public: Landscape Architects can only be responsible for their own acts relating to their profession.

Question 51

How long does liability last in tort and in contract?

Answer 51

Both 6 years, unless under seal which is 12 years.

Question 52

What is employer’s liability insurance?

Answer 52

It is a legal requirement to protect and employer against any claim bought by its employees due to employer’s breach of duty. All employers in the UK are required to take it out.

Question 53

What is public liability insurance?

Answer 53

Insurance to cover damage to third parties.

Question 54

What is employer’s liability insurance?

Answer 54

It is a legal requirement to protect and employer against any claim bought by its employees due to employer’s breach of duty. All employers in the UK are required to take it out.

Question 55

What is public liability insurance?

Answer 55

Insurance to cover damage to third parties.

Question 56

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

Answer 56

Under contract or tort, you would be liable for six years.
For latent damages, for 15 years.
For a contract under seal (including collateral warranties) you’d be liable for 12 years.

Question 57

Why is the case of Rylands Vs Fletcher relevant to landscape architects?

Answer 57

It is key case law relating to strict liability: the outcome of the Rylands vs Fletcher case means that landowners are liable for the escape of materials from their land and causes damage to other people or their property.
Recent case law has also established that the landowner is not liable if the ‘escape’ could not have reasonably be foreseen.

Question 58

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

Answer 58

This act restricts the use, copying or distribution of your work as a landscape architect, and also gives your employer rights over the work you produce whilst employed.

Question 59

How may strict liability may be relevant under contract?

Answer 59

You may be subject to claims under vicarious liability, if your client is liable 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 60

What are the different types of tort?

Answer 60

There are six types of tort:

• negligence
• nuisance
• trespass
• defamation
• strict liability
• vicarious liability

Question 61

What is strict liability?

Answer 61

Strict liability is a form of tort, relating to damage caused by the escaping of substances from someone’s land onto/into another’s land.
The classic example of this is the case of Rylands vs Fletcher, whereby contaminated water flooded from a disused mine onto the neighbouring property.

Question 62

What is vicarious liability?

Answer 62

Vicarious liability is a form of tort, relating to the master-servant relationship. It means that someone can be liable for someone else’s work if damage was caused by an error, for example a landowner liable for damage caused by a contractor, or a supervisor being liable for their less senior colleague’s error.

Question 63

What constitutes negligence?

Answer 63

There are four elements required for negligence. All four elements must be present:

• there is a duty of care present (whether under contract or not)
• there is breach of this duty of care
• as a result of this breach, damage is incurred
• and is is due to the defendant’s act (or ommission) that this damage occurred.