Duty of Care - Do you owe it?

In the construction industry it is common that most contractors, sub-contractors, surveyors and architects will have numerous professional contacts that they may, as a gesture of goodwill, give some ad-hoc advice or guidance to.

However, beware – in a matter before the court of appeal, it was held that a professional who had provided architectural and project management services owed a duty of care in tort even though there was no contract and she was not paid for her services.

In this matter an architect, provided gratuitous project management and architectural services to her friends and ex-neighbours in relation to a garden landscaping project at their home. Among other things, the architect secured a contractor, developed the design drawings, visited site from time to time and liaised with the home owners and the contractor. The home owners became unhappy with the quality and progress of the works, and brought a claim for defective works

The TCC held, by way of preliminary issues, that there had been no contract between the parties but that the architect had owed a duty of care in tort to use reasonable skill and care in the provision of her professional services.

This finding was appealed by the architect.

The Court of Appeal agreed that the TCC had been correct to address the issue of whether there was a duty of care by considering whether there had been an assumption of responsibility.

The court referred to the decision in HMRC v Barclays Bank that the assumption of responsibility was the appropriate test in cases involving a relationship 'akin to contract', which included circumstances

'where the defendant has voluntarily answered a question or tenders skilled advice or services in circumstances where he knows or ought to know that an identified plaintiff will rely on his answers or advice'

The duty owed by the architect was not to provide any services, but to exercise reasonable skill and care in relation to any services she carried out.