If you don’t know how to do something you call in a specialist, right? Well, if you’re a consultant on a construction project, beware. Here’s a few tips to keep in mind …
Consultants are an essential part of any construction project team, and their contributions often determine successful delivery. Occasionally, however, consultants fail to perform and are sued for professional negligence, a breach of a duty of care - in other words, a failure to perform to the standard expected of a competent professional.
Most consultants and their employers will be familiar with the importance of expert evidence to support what a competent consultant should have done, or show that the consultant’s performance was consistent with the profession and therefore not negligent. However, they may not be familiar with the law where the alleged negligence concerns matters beyond the scope of the consultant’s expertise. To that end, consultants and their employers would be well advised to peruse the recent TCC case of Co-Operative Group vs John Allen Associates.
John Allen Associates (JAA) was appointed civil and structural engineer for the development of a supermarket in Sandwich, Kent. Ground stabilisation works were required and, this being outside their expertise, JAA consulted specialist geotechnical engineer, Keller. On Keller’s recommendation, JAA included vibro replacement (stone columns placed in the ground to improve the load and settlement performance) in the piling works specification. Almost immediately after it opened for business, cracks caused by subsidence appeared in the floor.
The court has to consider whether the assistance is taken from an appropriate specialist
Co-Op sued JAA for breach of warranty. They alleged JAA had breached its duty of care to act with skill, care and diligence by producing an inappropriate piling specification. Co-Op’s case was that vibro replacement could never have worked because the ground was highly compressible and therefore extensive settlement was inevitable.
The court considered the evidence on ground improvement and concluded that a properly designed vibro replacement system would have been capable of reducing settlement to a suitable level for the supermarket. This evidence included Keller’s advice and the fact that none of the specialists involved in taking the piling works through tender, contract and construction, raised any issues with vibro replacement.
Notwithstanding this finding, the court went on to look at whether JAA was negligent in specifying vibro replacement. The law on negligence in circumstances where construction professionals seek assistance from specialists was reviewed, including Equitable Debenture Assets Corp vs William Moss Group, London Borough of Merton vs Lowe and Richard Roberts Holdings vs Douglas Smith Stimson Partnership. The court helpfully summarised the key points in cases where a consultant’s performance includes specialist input. This included that construction professionals can discharge their duty to take reasonable care by relying on the advice or design of a specialist, provided that they act reasonably in doing so. Additionally, in determining reasonableness, the court has to consider all the circumstances, such as:
- whether the assistance is taken from an appropriate specialist
- whether it was reasonable to also seek assistance from other professionals, research or other associations or other sources
- whether there was information which should have led to a warning
- whether the construction professional should have advised the client to seek advice elsewhere or should themselves have taken professional advice under a separate retainer.
The court considered JAA’s performance and concluded that vibro replacement was beyond the standard knowledge of competent civil and structural engineers and it was therefore reasonable for JAA to seek specialist assistance. Further, Keller was an appropriate specialist from whom to seek advice - they were highly regarded within the industry and leading ground treatment specialists. Consequently, there was no need to seek further assistance or raise the matter with the client. The court also clarified that a duty of care can be discharged even if the specialist advice had been negligent.
So, a helpful guide, particularly for consultants, as to matters within their remit but beyond their expertise.
Digby Hebbard is partner at Trowers & Hamlins