Be reasonable

There are certain occasions when only superlatives will suffice. Non-committal words such as "reasonable" or "not bad" can detonate a landmine and necessitate some hasty back-pedalling. Increasingly, I am coming across developers who react in a rather similar way to the contractual description of design work for their prized building-to-be. The phrase "reasonable skill and care", traditionally applied in contracts to a consultant's design, is often interpreted by those outside the legal profession to mean "tolerable, but not really up to scratch". The legal interpretation is considerably more positive, however. It demands the level of care that could be reasonably expected of a competent professional of a similar qualification in those particular circumstances.

This interpretation was confirmed in May by the Court of Appeal case Hammersmith Hospital NHS Trust vs Troup Bywaters & Anders. A firm of consulting engineers was found not to have been negligent in accepting an assurance from the manufacturers of boilers of their compatibility with requirements, without performing an independent investigation of their own. The court found that the general practitioner in the field of engineering would not expect to have to carry out such tests.

"Reasonable skill and care" is a yardstick the court is accustomed to applying. Where necessary, it can hear expert evidence to determine the expected level of professional competence. Compare this to the subjective measures and superlatives in phrases such as "the highest standards", "most aesthetically pleasing" and "top-quality design", all of which appear in professionals' contracts. Apart from the difficulty professionals can encounter in finding insurance cover for such immeasurable terms, it is also possible that the court will strike them out of the contract if it cannot precisely interpret them.

Even those more familiar terms such as "best endeavours" and "best efforts" can pose problems for both the consultant and its client. There is conflicting case law, but Sheffield District Railway vs Great Central Railway 1911 found "best endeavours" to mean "leave no stone unturned". The professional needs to consider whether this will be a commercial reality. For example, where a job is running late, it could demand considerable additional time and cost at the expense of other jobs. Should it breach this contract, or another?

On the other hand, if the consultant is of below average competence, the terms "best endeavours" and "best efforts" could arguably fall short of reasonable skill and care. Ironically, the client could then have short-changed itself by opting for these superlative standards.

No surgeon or lawyer can guarantee a particular outcome if they are to work effectively. No more so can a designer

Furthermore, whether the standard imposed is greater or less than reasonable skill and care, the client will find it more difficult to prove a case against its consultant where it cannot use expert evidence to establish its case. Expert evidence would not go far in a subjective test of ability and effort.

Some clients go a step further and impose "strict liability" – an absolute obligation where a successful outcome is demanded as a guarantee. No excuse for failure, whether reasonable or not, is deemed acceptable. Certainly, there are obligations within any contract that do lend themselves to strict liability. But the problem with applying this standard to obligations of skill is that there is a serious risk that progress, and innovation would be stifled if professionals felt constrained to stick rigidly to the old methods. No surgeon or lawyer can guarantee any particular outcome of their work if they are to work effectively. No more so can a designer. Common law and most standard forms of contract therefore stipulate reasonable skill and care as the required standard and this tends to be reflected in professional indemnity cover.