Professional negligence in tort

From Donoghue and Stevenson to Burgesses and Lejonvarn

Creating a landmark at a snail's pace

Mr and Mrs Burgess pursued a claim against their once neighbour, Mrs Lejonvarn, over a period of some 5 years. Initially the dispute centred on matters of law. Starting in the Technology and Construction Court (TCC), at a hearing of preliminary issues, the claim in contract was dismissed leaving the Burgesses to pursue a claim in tort for professional negligence. From the TCC’s ruling, it appeared that potential liability for professional negligence in tort could be greater than liability for professional negligence in contract.

Moving on to the court of appeal, the lower court’s ruling was upheld with qualifications. The clear guidance handed down by the court of appeal was that, while the defendant had a duty in tort to act with reasonable skill and care when performing a service, she had no duty, absent contract, to provide any services.

Burgess v Lejonvarn, the garden when work was stopped

The garden when work was stopped

Burgess v Lejonvarn work restarted

work restarted

Thus far the courts had made no definitive ruling on the defendant’s supposed negligence. All that the best part of 5 years had established was that there was a case to be heard. The case was reported in local and national press and was much written about by the legal profession. It had become a landmark case on professional negligence in tort without regard to the fact that the claims had not been substantiated.

last July the case returned to the TCC for a final hearing where the outcome turned on the facts. The claimants fielded 11 witnesses of whom two were expert witnesses. The defendant relied on two witnesses of fact and two expert witnesses. Additionally, there was one jointly appointed expert witness. In stating their case, the claimants had relied on the opinions of a builder, a surveyor and an engineer who had seen the disputed work but who were not called as witnesses. The claimants’ quantity surveying expert witness had a dual role as a witness of fact and as an expert witness. As a witness of fact, he provided his recollections of what he had observed of the work and separately, as an expert witness, he opined on matters of cost.

Long before this last trial, the supposedly deficient work, landscaping to a private back garden, was subject to substantial rebuilding to a new design. The claimants’ architect expert witness had not inspected the garden before this. I, as soon as I was appointed, had visited the site and recorded the relevant work before it was altered.

The defendant was accused, as architect / project manager, of negligence in managing, budgeting, cost control, supervision, design and information production. The claimants’ witnesses did not distinguish between that part of the work which was done while the defendant was involved and that part which was built later. From inspection I could clearly distinguish the two and advise the court that no part of the work done while the defendant was involved evidenced a failure by the defendant to act with reasonable skill and care. This experience affirms the importance of appointing experts in good time and enabling them to act effectively. Based on the facts supported by informed expert opinion, every part of the claim was dismissed.

Burgess v Lejonvarn the finished garden

The finished garden