Professional Negligence Update

1. Professional Negligence Update Focusing on Design Team Negligence Presented by Janey L Milligan Construction Dispute Resolution 3 June 2010 Providing effective solutions to construction disputes

2. Overview The Role of the Expert Witness Case Studies – Cautionary Tales Tips for staying out of trouble Providing effective solutions to construction disputes

3. The Role of the Expert Witness Overriding duty of an Expert Witness is to the tribunal and not the Client. Obligations when providing expert evidence: - Must be and must be seen to be the Expert’s independent and un-biased product and fall within the Expert’s expertise, experience and knowledge; Must state the main facts and assumptions it is based upon and not omit material facts that might be relevant to the Expert’s conclusions; and Must be impartial and uninfluenced by those instructing or paying the Expert to give the evidence. It is imperative that the Expert does not stray from the duties of an Expert Witness by acting in a partial, misleading or untruthful manner. Providing effective solutions to construction disputes

4. The Role of the Expert Witness National Justice Compania Naviera SA v Prudential Assurance Co Ltd. (1993)  This leading English case frequently referred to as ‘The Ikarian Reefer’ broadlysets out the principals to be applied by the Expert. An excellent reference document. Expert must have experience first; qualifications thereafter. Providing effective solutions to construction disputes

5. An Expert Witness is required to be entirely impartial • Due consideration must be given to potential conflicts of interest • A conflict of interest may be actual or be perceived to arise out of a previous or current involvement with: • Parties to the dispute • The dispute itself • The property or project involved • Be entirely upfront and if in doubt = decline appointment! The Role of the Expert Witness Providing effective solutions to construction disputes

6. The Role of the Expert Witness Expert Report is an Opinion; Identify what Opinion is based on; Identify range of Opinions based on differing interpretation of facts; Role is not to highlight good performance or disguise bad performance of professional; and Identify shortfalls or missing documents. Providing effective solutions to construction disputes

7. The Role of the Expert Witness If after further consideration information or meeting with opposing side Opinion alters: Revise Opinion accordingly: and Make those instructing you and the Tribunal aware of Revisions Providing effective solutions to construction disputes

8. Case Studies – Cautionary Tales Legal Tests The classic test is to be found in the Scottish medical case Hunter v Hanley in 1955 when the Court stated “The true test for establishing negligence and in diagnosis and treatment on the part of a doctor is whether he has been proved to be guilty of such a failure as no doctor of ordinary skill would be guilty of if acting with ordinary care”. Providing effective solutions to construction disputes

9. Case Studies – Cautionary Tales The case further concluded:- "To establish liability ....... where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course .......  adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care."   Providing effective solutions to construction disputes

10. Case Studies – Cautionary Tales Benchmarking the “professional man of ordinary skill” and “exercising reasonable skill and care” Professional Bodies’ Rules of Conduct; Professional Bodies’ Practice Statements; Professional Bodies’ Guidance Notes; Codes of Practice; British Standards and the like; Manufacturers and Suppliers Information sheets. No one size fits all Providing effective solutions to construction disputes

11. Case Studies – Cautionary Tales Benchmarking the “professional man of ordinary skill” and “exercising reasonable skill and care” 1. Find out the facts “warts and all” !!:- Documentary evidence; correspondence, reports, drawings, minutes of meetings etc; and Physical evidence, site visit if necessary. Discussion with those involved Providing effective solutions to construction disputes

12. Case Studies – Cautionary Tales Case Study 1 New build student residencies Architect had ongoing business and social relationship with Client and Contractor “Understanding” of terms and conditions – basically ‘as before’ but not set out Lack of construction details and contractor allowed to adopt own details and be sloppy Architect recorded but did not insist on rectification at the time Project moved on – delays and additional costs incurred by client Relationships deteriorated Pressure to complete for new term start Architect issued PC aware of a lot of problems that had been accepted by implication Client raised claim for poor administration, increased costs etc In all the Architect had not paid attention to detail, had allowed friendships to compromise professional standards and a series of what could have been relatively minor breaches compounded into a big and expensive complaint which was upheld. Providing effective solutions to construction disputes

13. Case Studies – Cautionary Tales Case Study 2 Proposed development of flats in existing listed building in Edinburgh Architect agreed reduced fee scale on the ‘understanding’ that he would be provided with survey details on existing building drawn up by previous Agent Contentious development as far as local residents were concerned Architect’s outline proposals based on original survey obtained planning permission provided rooflines of adjacent buildings were not exceeded. Subsequently Architect carried out his own survey of the building and prepared construction drawings accordingly Failed to notice a difference in levels and heights between the two surveys Construction drawings had the height of the building 1m higher than planning approval Error went unnoticed and subsequently an enforcement notice to reduce height of constructed building. Initial error compounded by new Architect’s failure to check information. Unfortunately error was compounded by some incorrect levels recorded by the 2nd architect Providing effective solutions to construction disputes

14. Case Studies – Cautionary Tales Case Study 3 Funded development with no facility to extend Poor administration of the contract; Developer and Contractor from same company group; Budget set based on QS Estimate; Variations due to incomplete design; Facility arranged with Funder; Change in economic climate; and Funding facility capped at cost plan. Mediation involved PM, Architect, Engineer and QS on contributory negligence. Providing effective solutions to construction disputes

15. Tips for staying out of trouble Properly completed terms of engagement :- Written; Signed; Agreed; Be cautious of defaults and strike outs Make sure you do what you are asked to do :- Fulfil your obligations; Tight fee no excuse; Current economic climate Providing effective solutions to construction disputes

16. Tips for staying out of trouble Do not profess to have an area of expertise that you do not :- Specialist work; Increased or varied scope of professional duties. Have due regard to Practice Notes and current guidance:- Be aware of professional bodies requirements and guidance; Mandatory rules or advisory status Keep up to date Providing effective solutions to construction disputes

17. Tips for staying out of trouble Good communication Keep talking; Sign offs; Explain any changes / variations from original obligations; Resolve problems as they arise; Don’t sweep issues under the carpet – they won’t go away! Good quality control measures and procedures Check, Check and Check again; Providing effective solutions to construction disputes

18. Tips for staying out of trouble Keep good records and audit trail Record everything in writing; Received / confirm instructions in writing from Client; Note of telephone conversations; Don’t give away original documentation – always retain a copy!!! Conclude the project properly Certificate of Practical Completion; Making Good Defects Certificate; Signed Statement of Final Account; Final Certificate; Don’t forget and move on to next paying Client! Providing effective solutions to construction disputes

19. Contact Information Janey Milligan Tel: 0141 773 5235 Email: jlm@cdr.uk.com www.cdr.uk.com Providing effective solutions to construction disputes

20. Contact Information Providing effective solutions to construction disputes Bass Warehouse 4 Castle Street Manchester M34LZ Tel: 0161 834 0842 Pavilion 1 291 Springhill Parkway Glasgow Business Park Glasgow G69 6GA Tel: 0141 773 3377 Providing effective solutions to construction disputes

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