Professional Negligence in Construction
Page 59
CHAPTER 4
The standard of reasonable skill and care
The standard of reasonable skill and care
- Section A: the Bolam test 59
- Section B: exceptions to the Bolam test 62
- Section C: establishing the standard 65
- Section D: codes of practice 67
- Section E: the band of reasonable actions 68
- Section F: outcome, not methodology 69
- Section G: seniority, resources and price 71
- Section H: delegation 72
- Section I: duty to review 74
- Section J: skill and care not enough 76
Section A: the Bolam test
4.1 As set out above in , the contracts of construction professionals almost always require the professional to carry out services with reasonable skill and care. The precise formulation of this contractual standard may vary (and that can introduce subtle variations in the standard) but the practical consequences of such variation are nugatory. In each case, the way in which the professional acted will be measured against the way in which a court or arbitrator thinks that a hypothetical competent construction professional of the relevant discipline would have acted placed in exactly the same situation. This is known as “the Bolam test”. 4.2 Because it is a purely legal construct, the test has a number of technical facets and it is impossible adequately to discuss these without citing passages from the leading authorities. 4.3 However, before discussing precisely how the court or arbitrator applies the Bolam test, it is worth noting the reasons for the application of this test and its origins. Both in contract and in tort, the servant or agent might be liable to the master or employer for the failure to exercise the care and skill reasonably to be expected of that servant or agent.1 The principle that a person who provides services calling for particular skill undertakes to exercise that degree of skill and care as is to be expected of a reasonably competentPage 60
When a skilled labourer, artizan, or artist is employed, there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes – Spondes peritiam artis. Thus, if an apothecary, a watch-maker or an attorney be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in their several arts. The public profession of an art is a representation and undertaking to all the world that the professor possesses the requisite ability and skill.