The recent decision of the TCC in the case of Burgess and
another v Lejonvarn will sound alarm bells for professionals performing
services for friends.
In what the court described as a "cautionary tale",
the professional consultant had performed various gratuitous services relating
to her friends' landscape gardening project. The project did not go smoothly,
the relationship broke down and her former friends claimed for the cost of
remedial works.
The court decided that, whilst the professional consultant had
no contractual liability because there had been no offer and acceptance or
consideration, she owed a duty of care in tort that covered several design and
project management services. Importantly, the court confirmed that a
professional designer can owe a duty of care in respect of pure economic loss
on a construction project and that such liability is not restricted to advice
given by the professional consultant, but can also cover other services that it
performs.
This highlights a risk common to any professional who offers
informal advice. However, it was emphasised that "this was not a piece of
brief ad hoc advice of the type occasionally proffered by professional people
in a less formal context". This was a significant project approached in a
professional way and involving considerable commitment on both sides and she
had hoped to receive payment for services that might be necessary later in the
project.
Professionals should be aware
that, even when advising “informally” liability may arise for any negligence
and need to take care.
By Claire Barwick, Associate
