Duty of Care Flashcards
What is the difference between fitness for purpose responsibility and an obligation to exercise reasonable skill and care? What is the purpose of these levels?
Fitness for purpose is an obligation which requires works must be good enough to do the job they were intended to do.
Reasonable skill and care is a duty to ensure the level of skill and care should be provided which are expected of another reasonably competent member of the profession.
Purpose - creates a performance obligation which meets the standard of care in negligence.
What are the three key elements a plaintiff needs to show before making a successful claim against a professional for negligence under law of tort?
Plaintiff is the person who bring a case against another in the court.
- existence of a legal duty of care
- breach of that duty by defendant
- resulting damages to the plaintiff
Does the architect have any particular duty to draw attention of the contractor to onerous terms or amendments in the contract at time of tender?
Yes - the architect has the duty to advise on the relative merits of tendering.
Where a contractor/subcontractor’s drawings are ‘approved’, ‘checked’, ‘inspected’ etc. by the architect/engineer and subsequently an error is discovered, who bears the cost - the contractor, subcontractor or the employer?
Would there be any grounds for a claim of negligence?
Depends which procurement route has been used - traditional - contractor
D&B - contractor
CM - employer
Depends who holds design responsibility.
If the designer has been proven to be negligent then you can claim if reasonable skill and care has not been provided.
The employers architect has decided to delegate the design of a reinforced concrete structure on a sloping site to a design and build subcontractor, as they felt it was beyond their remit. If, subsequently, the design proved to be defective who would be held liable? (explain what should have happened under these circumstances)
The architect will not be liable if the D&B contractor is contracted directly to the client. However, they will be liable if the work is delegated to their own subcontractor.
Architect should have analysed the design and warned of any potential defects - this would have made them not liable.
Client should create a contract between them and the DB subbie.
Assuming you were successful in getting chartered, how would you deal with a situation such as a friend who asks you to provide them with QS advice for a house extension that they are about to undertake.
Even if a contract is not in place, you will still have a duty of care in providing advise.
If a loss in incurred after you have given advise, you can be seen to be negligent.
Either don’t offer advise or create a contract between the parties.
How would this change if you did the work in your own time, there was no formal contract and your friend does not pay you for the services provided?
Needs to be a contract in place - insurance needs to be in place e.g. if you carry out work that then injures someone.
Could an employer claim against a QS for negligence for underestimating a project, due to returned tenders being significantly higher than the estimated project costs?
If the negligent error causes the employer loss.
Professional negligence claim could be made against the QS for not acting with reasonable skills and care.
What is the purpose of PII? How does this differ from other types of insurance?
Professional indemnity insurance
- provides insurance cover against claims of negligence made against the company
- provides insurance when negligence is proven to have been committed on the part of the service provider
- policy will also cover cost of defending claims of negligent made against it
The RICS guidance notes, relating to PII insurance, advises professionals to check that the policy includes for ‘run off cover’. Discuss what is meant by this term.
Claims can still be made years after the works have been completed. Therefore PII should be kept for as long as a potential risk exists. Cost of a run-off policy should reduce year on year as the risks will reduce over time.
Discuss the reasons behind the inclusion of a ‘net contribution clause’ which is sometimes inserted within terms of engagement of professionals involved within construction projects.
It is not unusual for more than one party to be responsible for a breach of contract. The net contribution clause allows for all parties to be jointly liable for the breach and the party who has been pursued for the claim, can then in turn pursue the other parties for contribution to recover their share of the amount claimed.
