ELEMENTS OF A NEGLIGENCE CLAIM
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Introduction
Standard of care means a professional’s duty to act in a manner deemed reasonable while providing upright services. Where the expected standard of care is not achieved, the client has the right to institute a claim for damages against the professional. Professional negligence arises when a professional fail to satisfy their obligation as directed by the client according to (Bell 1958). A construction project manager like any other professionals may be liable for damages that occur as a result of professional negligence to their clients or third parties. A plethora of constructions are set up on a contractual basis. Therefore, before a party can institute a claim for professional negligence they ought to establish whether the damage suffered is recoverable under the foregoing contract. Tortious liability may be crucial in instances where the contract does not cover the losses. Not all acts and omissions by a construction project manager may give rise to liability in negligence. This position includes instances where their acts have resulted in loss and damage. In a nutshell, for a plaintiff to establish a claim in negligence, they ought to prove the following elements:
- There has to exist a legal duty of care.
- The acts ought to be below the standard of care imposed by law resulting in a breach of the foregoing duty of care.
- Causation between the defendant’s conduct and the loss suffered.
- Damage resulting from the scope of the duty of care.
Legal duty of care
The basic proposition to establish whether a duty of care arises is the reasonable foreseeability of harm as stated in the “neighbour” principle devised in the landmark case of Donoghue v Stevenson (1932). However, a plethora of construction cases are associated with claims resulting from economic loss. Moreover, claims for construction cases are guided under a contractual basis which hinders the scope for duty of care arising from tort. The Donoghue case (1932) was integral to the development of negligence since it established the duty of care concept which forms the first element of negligence as a tort. In the foregoing case, the court devised a new principle of duty that allowed a plaintiff to get a remedy for injury caused by another party even if there was no contract between the parties. This means a construction project manager owes a duty of care even to third parties with who they are not in a contractual relationship with as was maintained in the case of Winterbottom vs Wright (1842). Lord Atkinson defined a neighbour to be any person that could be directly or closely affected by a person’s actions that were reasonably expected. (Symmons 1971) states that the duty of care is owed to anyone likely to be directly or closely affected by the defendant. In a summary, the description of the Lords concerning a neighbour in the Donoghue case (1932) was so wide and could be construed to include every person. This means that every construction project manager through their acts and omissions owes a duty of care to everyone. In a scenario where the duty of care is breached then a legal liability is placed on them to compensate the aggrieved party for the damages incurred. Furthermore, they ought to undertake an activity that should reasonably not cause harm to their clients or other third parties. Federal rule on Employer Payment for Personal Protective Equipment of 2007 places the responsibility on employees to be paid to get themselves protective gears at work. This relieves pressure on the part of construction project managers regarding injuries suffered by employees. The managers may also include exclusion clauses on the employee contracts to distance themselves from liability in case the contract is breached.
The two-stage test set out by the House of Lords in the case of Anns v. Merton (1978) is significantly integral in determining negligence claims under construction. This is because Lord Wilberforce included the duty not to cause economic loss as a necessity under the element of duty of care. He advanced that a duty to cause economic loss would be owed in tort. This position places a duty of care on the construction project managers not to cause economic loss to their clients. Court decisions on tortious claims of construction negligence have subsequently departed from the decision in Anns v. Merton (1978). The case of Murphy v. Brentwood (1991) involved a claim for economic loss in negligence. Lord Oliver reverted the decision in Anns v. Merton (1978) by stating that it was difficult to deduce a relationship of proximity between the builder in of a construction and a derivative owner of the property. Therefore, this meant that economic loss was practically unrecoverable in tort where the damage suffered was extremely remote. This position of the court was understood to aid the position of construction project managers in claims of professional negligence. However, the foregoing ruling in Murphy v. Brentwood (1991) did not deter or prevent occupiers of a premise to recover losses against construction professionals in cases where their negligence resulted in damage or injury. On the other hand, one couldn’t recover damages arising from economic losses in tort against a professional construction manager. The exception to this rule is when a case of economic loss was brought with the scope of a negligent misstatement as it was highlighted in Hedley Byrne v Heller & Partners (1963).
A duty of care is imposed on the construction project managers to avoid any form of economic loss that may be suffered by their clients. This is a position that was elaborated by the court in Henderson v Merret (1995). In the foregoing case, the court held that a duty of care is owed by managing agents to their clients regardless of whether there existed privity of contract between the parties. This position elaborates on the responsibility of managing agents which extends to construction project managers to ensure that their clients do not suffer from economic losses. The exception to this rule is that the construction professional will owe a duty of care for economic loss only in an instance where it does not overlap with the interest of their contractual obligation to the client as stated by (Murphy 1980). Courts find a hard time in establishing a universally accepted test for determining whether a duty of care arises in different situations. In Hedley Byrne v Heller & Partners (1963), the court stated that the duty of care imposed on matters regarding economic loss amounted to the voluntary assumption of responsibility by the defendant to the plaintiff. However, the threefold test established by Lord Bridge in Caparo Industries plc v Dickman (1992) has fondly been used by common law countries as a standard test for determining whether a duty of care arises in a particular circumstance. The tripartite test includes the principle of foreseeability, proximity, and fairness. (Nolan 2013) asserts that harm caused to the plaintiff must have been reasonably foreseeable by the defendant to likely cause imminent harm to another.
Breach of Duty
It is prudent to establish whether the legal duty of care was breached and whether the breach resulted in damage. The test is both objective and subjective. (Tingle 2002) affirms that the standard of care is that of a reasonable person. In that, the question would be whether a reasonable person under the same circumstances would do the same as the defendant. When establishing a breach, several factors must be put in contemplation which includes control, and if the injury would not have occurred if the defendant had exercised proper control. You must act in the same way that a hypothetical reasonable person would in your situation have done. At the center of several construction suits, the burden to establish the failure of the wrongdoer to exercise reasonable care that results in injury lies with the plaintiff. They have to first prove that the defendant owed a duty of care before establishing the issue of reasonable care. For a construction professional, their standard of care is equated to what a reasonably diligent professional would have done under similar circumstances. This proposition will be used to establish whether a construction project manager failed to meet the requisite standard of care stated. Some of the requirements needed to establish whether the standard of care was breached by a construction professional include the contract requirements, statutory requirements, expert knowledge on the area of construction, and knowledge on the nature of the job. The foregoing factors are used to determine the sequence of events that led to the loss suffered by the plaintiff. The rule devised to determine the standard of care in negligence claims for professionals was established in the case of Bolam v Friern Hospital Management Committee (1957). A construction project manager under the construction industry is deemed as professional and the standard of care required of them is that of a professional. As experts, they will be deemed negligent if they fail to restrain or warn clients and other employees of imminent danger that may occur. The “Bolam test” was however disregarded in a recent 2015 UK decision in Montgomery v Lanarkshire Health Board (2015) which created a greater emphasis on the duty to disclosure. Construction project managers have to disclose possible risks to everyone concerning construction. If they fail to disclose such information and a party is injured they will have breached their duty of care and will be liable to compensate the claimant. Therefore, construction professionals ought to ensure that their actions are subsequently not unreasonable and dangerous. This principle was elaborated in Mullin v Richards (1930). If they act to the contrary, they would breach the legal duty of care and the requisite standard of care required of a professional. Tortious liability will then be imposed on them to pay damages to the aggrieved parties.
Causation
It is paramount that a plaintiff shows that they suffered actual injury. Furthermore, they ought to demonstrate that the injury suffered was as a result of the defendant’s acts or omissions as per (Wright 1985). The ‘but for’ test was devised in Barnette v Chelsea & Kensington (1969) to prove that the plaintiff would not have suffered injury if it was not for the defendant’s actions. The House of Lords in South Australia Asset Management Corp v York Montague Ltd (SAAMCO) (1997) established a set of principles that were prudent in determining the scope of the duty of care in professional negligence cases. Although their application is difficult to interpret, the courts have often regarded the use of SAAMCo principles according to (Thomson 2017). This principle states that a plaintiff must not only establish the existence of loss suffered but also link the loss to the scope of the duty owed by the defendant who is a professional. This is a profound principle that has a nexus with the “but for” test established in Barnette v Chelsea & Kensington (1969). SAAMCo principle has been used and approved in the recent case of Khan v Meadows (2003). However, while the courts have affirmed that the principle is crucial in considering professional liability for loss, it has severally admitted that its application has been complicated and irregular over the years. The courts have always preferred the traditional method devised in Donoghue v Stevenson (1932) while determining the extent of a defendant’s liability.
Thornton in HOK v Aintree (2002) affirmed the position that the applicability of SAAMCo principles extended to construction professionals including a construction project manager. The foregoing principles were to be used in equating the damages that were recoverable by the client in cases of professional negligence. This is where the construction is completed in a manner that does not meet the agreed standards. The client will be deemed to have suffered from loss as a result of the defendant’s negligence. Notably, the defendant will only be liable for the loss suffered within the scope of his jurisdiction. Any loss suffered outside the scope of the professional defendant will not be placed upon them.
Injury as a result of the breach
Damages form the final element of negligence (Smith 2011). They are often in form of monetary compensation. The plaintiff ought to prove pecuniary losses even if the defendant breached a duty of care. This was stated in Constantine v Imperial Hotels Ltd (1944). The ‘but for’ test applies under the foregoing element. It states that the plaintiff must demonstrate that he’d never have suffered the alleged injury had it not been for the defendant’s negligent act or omission or that If the injury would not have occurred but for a specific fault, that fault is the cause of the injury; if the damage would have occurred but for the same fault or no-fault, the fault is not the cause of the damage. The ordinary plain common sense of business will be used to make the decision. For one to succeed in a claim for negligence against a construction project manager, they must demonstrate that they suffered loss and that the loss must be as a result of the defendant’s negligence. Without the evidence of loss, a negligence claim cannot suffice.
Conclusion
Negligence by construction professionals is categorized under professional negligence. The courts have constantly considered and used the tests devised by common law as a rational basis in establishing the duty of care. Duty of care in tort can be maintained together with contractual duties signed by parties. The foregoing duty however will depend on general principles of proximity and foreseeability as it was stated in the threefold test established in Caparo Industries plc v Dickman (1992). This is because the economic losses suffered under construction agreements will be considered as claims under the law of tort. Eventually, the decision in Henderson v Merret (1995) elaborated that professionals including construction project managers owed their clients a duty of care in tort concerning the deliverance of their services. However, the nature of their contractual relationship does not conclusively extend to their tortious responsibility. It is in only a few cases when a professional’s duty of care in tort will relate to their contractual obligations.
Bibliography
Anns v. Merton London Borough Council, 1978 A.C. 728 (1978).
Bell, G.M., 1958. Professional negligence of architects and engineers. Vand. L. Rev., 12, p.711.
Caparo Industries Plc v. Dickman, 1992 A.C.2 605 (1992).
Donoghue’s Case, 1932 A.C. 562 (1932).
Federal rule on Employer Payment for Personal Protective Equipment of 2007.
Hedley Byrne v. Heller and Partners, 1964 A.C. 456, 1963 Lloyd’s Rep. 1 485 (1964).
Henderson v. Merrett Syndicates Ltd, 1995 A.C.2 145 (1995).
Murphy v. Brentwood District Council, 1991 A.C.1 398 (1991).
Murphy, J.P., 1980. Evolution of the duty of care: Some thoughts. DePaul L. Rev., 30, p.147.
Nolan, D., 2013. Deconstructing the Duty of Care. The Law Quarterly Review, 129, pp.559-588.
Smith, S.A., 2011. Duties, liabilities, and damages. Harv. L. Rev., 125, p.1727.
Symmons, C.R., 1971. The Duty of Care in Negligence: Recently Expressed Policy Elements Part I. Mod. L. Rev., 34, p.394.
Thomson, J., 2017. SAAMCO revisited. The Cambridge Law Journal, 76(3), pp.476-480.
Tingle, J., 2002. Establishing breach of the duty of care in the tort of negligence. British journal of nursing, 11(17), pp.1128-1130.
Wright, R.W., 1985. Causation in tort law. Calif. L. Rev., 73, p.1735.
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