Clients when a ppointi n g a desi g ner, whether arc h itect, eng i neer, cont r actor

or subcont r actor, ex p ect the build i ng or struc t ure to oper a te when com p lete in the manner env i saged w h en the appoin t ment was mad e . If the build i ng or struc t ure fai l s to m e et the clie n t's ex p ectati o ns there are often questi o ns asked of the desi g ner and/ o r cont r actor as to w h ether the pr o blem res u lted from a fai l ure on their part to meet the i r cont r actual obligat i ons. These oblig a tions wi l l norma l ly take the form of i m plied or ex p ress terms in the condit i ons of appoin t ment or the t e rms of the cont r act und e r w h ich the work was carried out.

In the absence of an express term in the cont r act for providi n g a des i gn serv i ce there will be an implied term that the designer wi l l use reas o nable skill and care. The standa r d is not that of the hyp o thetical 'reaso n able ma n ' of o r dinary pr u dence and inte l ligence, but a h i gher standa r d rel a ted to his profe s sed expertis e . This was laid down in Bolam v. Friern Hospit a l Ma n age- ment Com m ittee (1957) by Mr Just i ce McNair:

W]here you get a situation which involves the use of some special skill or com petence

, then the test whether there has been negligence or not is not the test of the man on top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

A person who profes s es to have a gr e ater expert i se than in fact he poss e sses

will be judged on the b a sis of his pret e nded skills.

In Wi m pey Con s truction UK Ltd v. DV Po o le (1984), a case whe r e unusu a lly the plain t iffs were attempti n g to pr o ve their own ne g ligence, they attempted to convin c e the judge that a hi g her standa r d was app r opriate to the case und e r c o nsiderati o n. They put forward two 'gl o sses', as the judge refer r ed to them:

First, that if the c l ient del i berate l y ob t ains and pays for so m eone with

special l y high skill the Bolam test is not suffici e nt

• Second, that the pr o fessio n al person has a du t y to ex e rcise reasonab l e care in the light of his actual kn o wled g e, n o t the less e r knowl e dge of the ordina r y comp e tent practit i oner.

As regards the first glos s , the judge felt obl i ged to reject it in favor of the

Bolam test. Howev e r the judge accepted the second glos s , not as a qualification of the Bola test but as a direct applicati o n of the pr i nciple in Donogh u e v. Stev e nson (1932).

You must take reasonable care to avoid acts or omissions which you can reason- ably foresee would be likely to injure your neighbor.



