Professional Liability and Construction: Risk Retained and Risk Transferred

John Powell QC

January 2010

A paper presented to the Society of Construction Law at a meeting in London on 1st December 2009.

The theme of John Powell's paper is that the central pillar of professional liability - the duty of care owed by a professional person to his client - can no longer be justified. He considers both the contractual duty of care and the concurrent duty of care in tort. He looks at the historical background, before setting out a number of objections to the duty of care, arguing that all too often it has been accorded undue primacy and potency. Preferably, he says, the starting point for analysis should be the professional's contract of engagement, the nature of the services and the express and implied terms, before evaluating whether there are specific considerations which favour stricter duties than the duty of care. The fact that the services are provided by persons perceived as professional no longer provides a rational justification for the duty of care, he concludes.

Perspective - The professional's duty of care - The construction context - Features of duty of care - Objections to duty of care - Objection 1: Frustrates recognition of stricter duties - Objection 2: Obscures other duties - Objection 3: Chameleon quality - Objection 4: Obscures transparency of reasoning - Objection 5: Encourages sloppy-thinking and a pro-claimant bias - Preferable approach: Primacy of contract engagement - Risk evaluation - Conclusion.

John Powell QC is a barrister practising in London, a former President of the Society of Construction Law and joint general editor of Jackson and Powell on Professional Liability.

Text 14 pages.