Posted by Charlotte Newlyn, Trainee solicitor
Duty of care when doing a “quick favour”
Professionals may owe a duty of care even if they are not being paid for their advice or have a formal contract in place. A recent decision from the Technology and Construction Court in Burgess v Lejonvarn means that favours between friends could potentially invoke a duty of care if professional skills are being called upon.
Charlotte Newlyn in our Dispute Resolution team discusses this decision and considers the practical consequences for professionals who do informal favours for friends.
Mr and Mrs Burgess were looking to have their garden re-landscaped and approached a number of potential contractors. After rejecting a quote from one company, they approached their friend, an architect, to recommend a landscaper. The architect obliged and also agreed to supervise the works. No contract terms were ever discussed and no remuneration was ever paid to the architect.
After some time, numerous disputes over the cost of the project and the architect’s supervision among other issues had led to a breakdown of the working relationship. The project required substantial remedial works and the couple sought damages in the sum of £265,000 from their friend. They framed their claim against the architect in two ways, firstly as a breach of contract and, alternatively, as negligent breach of the architect’s duty of care.
The couple’s claim against their architect friend that she had acted in breach of contract was dismissed as they were unable to establish that a contract existed between them as there was no offer or acceptance and ultimately no consideration for the services provided.
However, a duty of care was established notwithstanding there being no contract. Referring to a leading authority on professional negligence, Henderson v Merrett Syndicates Ltd, the Judge held that the architect had used a “special skill” which the couple had relied upon. The architect had assumed the role of coordinator and supervisor, as opposed to merely using her professional knowledge and contacts to connect the couple with a suitable landscaper, all of which invoked a duty of care to exercise reasonable skill and care which she had not fulfilled.
Professionals: tread carefully
The Judge noted that such cases are to be decided on a case-by-case basis, as the surrounding facts are crucial to inferring a duty of care. In this case, for example, the architect’s ongoing involvement in the project contributed to a duty of care being established.
The Judge did, however, offer guidance in the form of advice to professionals to tread very carefully when providing free advice to family and friends. If you are a professional and are asked for a “quick favour”, be very clear about the limitations of your obligations and, if you are uncomfortable with the level of advice you are being asked to provide, have an open and honest conversation with your family or friends about how far you are prepared to go to help on an informal basis. The Judge also commented that a case of this nature is an ideal candidate for settlement by mediation which can be a more flexible and cost effective way to settle disputes privately.
If you would like advice on a similar situation or need to resolve a similar dispute, involving the use of mediation, please contact the Dispute Resolution team.
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