How difficult is it to demonstrate skill and care has not been used?

Recently got asked this question - how difficult is it to demonstrate skill and care has not been used? welcome panel thoughts on this.

Chris

The test of reasonable skill and care is what skill would be exercised by a competent advisor who is familiar with the type of skill needed in order to discharge that obligation. In say dentistry you would expect a high street dentist to be able to do check ups, fillings etc competently but not do orthodontist work; whereas an orthodontist would not be qualified to do the work of a high street dentist. They are different skill sets. In both cases though you would expect the dentist or orthodontist to do their work using all the skill and care to be expected of a properly qualified person, familiar and experienced in their field of expertise.
To show they had not discharged that duty then expect evidence would be needed.

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It can be very difficult to prove negligence (which is what is being asked) or it can be very easy…it depends on the circumstances

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Chris, it is a very interesting subject that seems to become more complex the further you delve into it. In some ways the question is related to identifying what reasonable skill and care should be, for a particular circumstance, and then measure performance against that criteria. The problem is that it is always easy to say what somebody should have done when something goes wrong, so I would say that an assessment should be impartial and objective.

Professional membership is a very difficult ‘measure’ as it essentially means the person has achieved a certain standard at a particular point in time. It is a bit like passing a driving test. Once you have passed, it is entirely down to the individual to determine whether they will be a good or bad driver.

The same principle applies to experience. It gives you a certain confidence with driving but doesn’t continuously improve your capability. To do this, you would need to develop your knowledge and understanding and apply this in a considered, practical manner, preferably with expert peer review.

What about quality management and complying with processes and procedures? Does this extend to examining and interrogating the ‘compliance’ documentation? From a ‘fit for purpose’ obligation it clearly does, as demonstrated in the case of MT Højgaard AS v E.ON Climate and Renewables UK Robin Rigg East Ltd* [2017] UKSC 59. Could the designer in this case, however, demonstrate that ‘reasonable skill and care’ had been used, especially as they complied with the internationally recognised design standard stated in the contract?

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Joe wise words. As i heard said many times before “it turns on the facts”.

Thanks Andrew, a list of cases would be really useful. I have given i nudge to the orgia l person who asked the question to join discussion.

Hi, many thanks for taking the time out to answer the question (and thanks Chris for posting it here - I asked this in a recent Built Intelligence webinar).

For a bit of context, the contract in play is PSC Option E - thus there is not the same commercial incentive to control the costs, if it were an Option C for example and the Consultant’s share would be affected. There has been redesign work required due to buildability issues on site and I just wondered if there were any case law / real-life examples people had of successfully ‘proving’ skill and care had not been demonstrated - though appreciate it can be potentially subjective at times to assess.