The terms "professional negligence" and "duty of care" are often used without much regard to their true meaning. Ben Patten's brief guide aims to provide non-lawyers with a simple introduction to this far from simple subject. Over a commendably brief number of pages, he sets out the legal framework for claims for professional negligence and explains the often misunderstood question of how these claims are dealt with by insurers. He then seeks to apply these matters to architects, engineers, QSs, project managers and what he describes as the "new professionals" of claims consultants and expert witnesses.
A large amount of ground is covered in an authoritative and readable manner. Nevertheless, there are puzzling omissions. The first is the absence of any consideration of the duties owed by planning supervisors. This is an opportunity missed. The second is the failure to consider the position of design and build contractors in the section on design obligations. In all probability, this is a subject that could have been dealt with quite briefly and therefore its omission is a disappointment.
Another subject that does not get explored is that of whether, in the context of certain forms of dispute resolution, the appropriate standard of care for the person conducting the matter is that of the reasonably competent solicitor experienced in this field. The growth in non-lawyers conducting arbitration and adjudication has got to the point where it should be asked whether the assumption made in this work – that the appropriate standard is that of the solicitor experienced in this field – is any longer valid. This is less a legal issue than a matter of judicial policy based on achieving a balance between freedom of choice and market forces on the one hand and maintaining professional standards on the other.
In relation to the position of claims consultants, a more analytical approach is taken. The difficulty of course is that a claims consultant does some work that might be undertaken by a solicitor, while other work is more naturally the preserve of a QS or some other discipline.
The view expressed is that the correct standard of care is that of the particular discipline whose work the claims consultant is carrying out at the crucial moment. The author points out with some force that this is unsatisfactory, because it means that the claims consultant will find himself "changing hats" depending on what he is doing at any given point. However, the alternative, which would be to set some lower standard of care across the board, would be even less satisfactory. The question is not easy and it is to the author's credit that he does not suggest otherwise.
It is also an occupational hazard of this type of work that certain subjects are skated over. In respect of the infamous decision in Ruxley vs Forsythe (the shallow swimming pool case), we are treated to no more than a statement that the House of Lords upheld the trial judge's finding that the plaintiff was entitled to no more than damages for loss of amenity, rather than the costs of rebuilding the swimming pool. A sentence or two explaining the reasoning, together with a comment to the effect that this case, although important, should not be regarded as setting down any hard and fast principles, would have been helpful.
So who should buy this book? This is not immediately clear. Unlike, say, guides to liquidated damages or extensions of time, professional negligence is a subject where there is simply no substitute for appropriate advice from lawyers and insurers. Although this book will unquestionably make construction and design professionals better able to brief lawyers, this is something of a luxury. That said, there are few in the industry who would not benefit from this work.
Although this guide will doubtless be helpful to construction professionals, its usefulness would have been increased had it been allied to some practical guidance on how the situations described by Patten can arise and how steps might be taken to avoid them arising in the future. This is especially so since negligence claims are often of the "there but for the grace of God" variety.
Nick Carnell is a partner at Kennedys law firm.