Construction professionals, such as civil or structural engineers, will on occasion require specialist advice on aspects of their design or advice. The general rule is that the construction professional commissioning the specialist advice will remain responsible to their employer for the quality of that advice. However, a recent case from the Technology and Construction Court in England demonstrates that there are certain circumstances in which professionals can avoid liability for specialist advice that turns out to be wrong.
Background
The case of Co-operative Group Limited v John Allan Associates (2010) concerned the construction of a Co-operative (Co-op) supermarket on relatively soft ground. John Allen Associates ("JAA") were employed as consulting civil and structural engineers and had proposed a system for improving the ground conditions in order to reduce settlement. In doing so, they had relied on the advice of a specialist contractor. Both JAA and the specialist contractor had provided collateral warranties to Co-op.
Not long after the works were complete, however, the Co-op's employees noticed cracking and sloping in the floors. It became apparent that the ground conditions system had not worked and that substantial remedial works would be required to resolve the issue.
The Co-op raised an action against JAA for breach of their collateral warranty. They argued that JAA had been negligent in proposing the system because the system would never have worked on the site. In its defence, JAA argued that the Co-op could not argue that no competent engineer would have proposed the system and that they had been entitled to rely on the advice provided by the specialist contractor.
The Co-op then argued that, had JAA told them that JAA were not capable of providing the necessary advice, the Co-op could have sought that advice elsewhere and obtained the appropriate warranties from the specialist contractor.
Decision
The central issue was whether or not the system proposed by JAA was bound to fail. The Judge held that this was not the case and that the system was therefore not wholly inappropriate. Had he decided otherwise, he would have had to consider whether or not JAA were negligent in proposing the system.
The Judge then held that, although construction professionals cannot divest themselves of their responsibilities by obtaining advice from others, they can discharge their duty to take reasonable care by relying on such advice so long as they acted reasonably in doing so.
In terms of when it is reasonable to rely on such advice, consideration must be given to all the circumstances of the case, including:
- whether the assistance was taken from an appropriate specialist;
- whether it was reasonable to seek assistance;
- whether there was information which should have led the professional to issue a warning;
- whether the client might have a remedy against the advice of another specialist; and
- whether the construction professional should have told the client to seek advice elsewhere or should have taken advice themselves under a separate retainer.
The Judge held that it was reasonable for JAA to rely on the specialist advice, and they were not required to undertake an independent evaluation of the feasibility and risks of the system.
The case should provide some comfort to those relying on specialist advice, albeit that care must be taken to demonstrate that such reliance was reasonable.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
