Duty of Care: A Professional Consultant’s Duty to Warn

/images/uploads/blog/iStock_000003290854_Large.jpg
Parties to commercial contracts owe various contractual duties to each other according to the terms of the contract. But what is the duty of care of a professional consultant to others, for instance, to warn of potential construction problems where there is a risk to others or property?

Parties to commercial contracts owe various contractual duties to each other according to the terms of the contract.  But what is the duty of care of a professional consultant to others, for instance, to warn of potential construction problems where there is a risk to others or property?
The expert commercial litigation lawyers at Bahamas law firm ParrisWhittaker are highly experienced in advising and representing businesses on their commercial contracts and their rights in relation to their various commercial dealings.

Duty to warn

A recent ruling of the UK’s High Court considered the issue of the extent of a professional consultant’s duty of care to warn of potential problems. The Claimants owned a leasehold ground floor flat and took legal proceedings against their professional engineers (Beltec) and contractor following the failure of temporary works relating to a basement extension, which sadly resulted in the collapse of the building.

The engineer was engaged by the Claimants to survey the site and produce designs for the excavation of the basement, underpinning of the perimeter walls, supporting the internal walls and structure and to supply details for damp-proofing and drainage.

Their claim against the engineers was based on the argument that they failed to use appropriate skill and care in designing how the basement would be excavated and underpinned.  There were a number of important issues including (but not limited to):

•  Should Beltec have spelt out/explained any unusual risks unlikely to be obvious to a competent contractor?
•  In failing to warn the Claimants (and the contractor – the second defendant) about the contractor’s shortcomings, was Beltec negligent?
•  Would the contractor have performed better had the risks been spelt out more precisely or if a timely and appropriate warning had been given to them by Beltec?

What did the court decide?

The court made a number of findings in relation the parties’ contractual obligations – but on the engineer’s duty of care, the court made a number of important findings:

The court must first determine the scope of the contractual duties and services. It is in the context of what the professional person is contractually engaged to do that the scope of the duty, to warn and the circumstances in which it may in practice arise, should be determined.

A duty to warn stems from the professional’s duty to act with the skill and care of a reasonably competent person of its profession.  Whether, when and the extent to which a duty to warn arises depends on all the circumstances.

A duty to warn often arises where there is an obvious and significant danger to life and limb, or to property (in this case, the building). It can also arise where the careful professional
ought to have known of the danger in light of the facts and circumstances

Importantly, in such cases the Court is unlikely to find liability simply because the professional can see there was only a possibility of some danger.

What lessons can be learned?

The ruling gives important clarity for lawyers, professionals and their insurers as it confirms the extent of a professional’s duty to warn: there must be an obvious and significant danger in order for the duty to warn to arise, subject to professional skill and care.  It can also arise when a careful professional ought to have known of such danger.

How can we help?

The commercial litigation lawyers at Bahamas law firm ParrisWhittaker have years of experience advising commercial organisations on their commercial contracts and the extent of the duties owed to them, including the duty of care. Contact us straightaway for urgent, strategic advice.

¹ Goldswain and another v Beltec Ltd (trading as BCS Consulting) and another [2015] EWHC 556 (TCC)