The concept of professional negligence is not novel, and while it’s most common in the medical field, it has also been seen in other areas like construction and the arts, where engineers and architects can also be held responsible for professional negligence.
David Vlcek, partner at Cox Yeats
Micaela Brown, associate at Cox Yeats
Nomonde Ragophala, candidate legal practitioner at Cox Yeats
Professional negligence refers to the breach of a duty of care by a person regarded as a professional in a particular field in instances where such breach results in damage or harm. This breach emanates from the conduct of a professional – the failure to, when performing one’s duties, act in accordance with set standards established by law to protect others against unreasonable risk of harm.
Clause 3(1)(b) of the Engineering Council of South Africa’s Code of Conduct for Registered Persons requires that a registered person may only undertake work that their education, training and experience have rendered them competent to perform and is within their category of registration.
When an engineer agrees to do a job, they must do it with the same skill and care that any other engineer would use in a similar situation. If they fail to do so, they could be held responsible for professional negligence.
In the leading case of Lillicrap Wassenaar and Partners v. Pilkington Brothers (South Africa) (Proprietary) Limited [1985] 1 All SA 347 (A), the Supreme Court of South Africa (Appellate Division) delivered a landmark judgment which dealt with the question of whether a firm of consulting and structural engineers can be held liable in delict for the negligent performance of a duty contractually undertaken by them in their professional capacity or for negligent misstatements made in the course of performing their contractual obligations.
The court established that a firm of consulting and structural engineers can be held liable in delict for negligent performance or negligent misstatements made in the course of their professional duties. The court’s decision highlights the importance of exercising reasonable care in contractual obligations and affirms that a contractual relationship does not automatically preclude liability in delict. This ruling provides a significant legal safeguard for individuals or entities harmed by professional negligence, even when a contractual relationship exists.
It is important to note that the liability of a professional is not absolute. The mere fact that damage or harm resulted from his/her action or omission does not automatically mean that he/she is liable. It must be shown that he/she was negligent in that he/she failed to perform in accordance with the required standard of care and is therefore liable.
Test for negligence
The standard test for negligence is what is commonly known as the reasonable person/man test, which enquires whether a person in the same circumstances would have acted the same way. The reasonable person test holds that “a person has acted negligently if they departed from the conduct expected of a reasonably prudent person acting under similar circumstances. The hypothetical reasonable person provides an objective by which the conduct of others is judged.”
The purpose of a negligence case is to determine whether the failure of the offending person to act as a reasonable person resulted in the offended person suffering damage or harm. It considers a number of factors, including the circumstances surrounding the offending person’s actions, their knowledge, experience, as well as the activity they are carrying out. It must be proven that the offending person had a duty to the offended person, the offending person breached such duty by failing to act and conform to the required standard of conduct (negligence), the offending person’s negligent conduct caused damage or harm to the offended person, and the offended person was in fact harmed or suffered damages as a result thereof.
Engineers on the other hand perform specialised work. They are experts in their field of work. The level of skill, care and diligence required of an engineer is dependent on the nature of services which are being provided. Specialised work requires a higher standard of care and skill. The Court in Meyers v MEC, Department of Health, Eastern Cape 2020 2 All SA 377 (SCA) held that where specialised skill is involved, the general standard of the reasonable person is adjusted upwards, to that of the reasonable person in the field of endeavour involved. It is imperative that professionals bring to their work a fair, reasonable and competent degree of skill.
Duty to supervise and inspect
In the construction industry, where multiple parties often work alongside engineers on the same project and where tasks are highly interdependent, determining an engineer’s liability for harm or damage can be particularly complex. Key questions may arise, such as whether the engineer had a duty to oversee the work of other parties to ensure their actions did not negatively affect the engineer’s responsibilities within the project.
When considering the duty to supervise construction work or the scope of an Employer’s Agent, such as an engineer or architect, the starting point is the contract between the parties. If the contract does not expressly address supervision, the general principle applies as a professional, one is expected to perform their duties with due skill and care.
In Joffe & Co Ltd v Hoskins and Another 1941 AD 431, a firm of engineers had designed a cantilever hood on a building and had undertaken to supply and deliver on site, cut, bend and fix in position, all the steel reinforcement in the concrete construction of the hood. The design prepared by the engineers was essential for its security that the reinforcing steel (rebar) should be near the top of the concrete, and care had to be exercised in the process of concreting to ensure that the reinforcing rods were kept in their proper position. A firm of contractors was responsible for the construction of the shuttering and supports for the concrete work and the pouring of the concrete.
After the hood collapsed, the engineers blamed the contractor for not ensuring that the rebar remained in place during the pouring of concrete. Although the engineers’ contract did not specifically include an obligation to supervise the concrete pour, the court held that the engineers should either have supervised the pour or alternatively so fixed the rebar that it could not have become displaced during the pour. The engineers were held liable for the claim in the matter.
The Joffe case highlights an important principle: even in the absence of an express duty to supervise, a professional may still be held liable for loss or damage if a reasonable professional, in similar circumstances, would have undertaken supervision to prevent foreseeable issues during the construction process.
In Van Immerzeel & Pohl and Another v Samancor Ltd 2001 (2) SA 90 (SCA), Samancor appointed Van Immerzeel & Pohl (the engineers) to design a water pipeline and pump installation and appointed Cocciante Construction CC (the contractor) to construct the works. The court held that the engineers had failed in performing the supervisory functions required of them. The court explained that “[76] the correct position is that the engineer and the firm are independently liable for the same or similar damage.
The plaintiff’s causes of action against them are separate and independent, based upon twoseparate, if inter-connected, contracts.” The engineers and the contractor were accordingly held liable jointly and severally for Samancor’s claim in respect of the costs incurred in replacing the pipeline, with due credit being given for the brief period of usage of the pipeline compared to its design life.
In Turn Around Investments 7 (Pty) Ltd and Others v Marcus Smit Architects CC and Another 2023 (1) SA 300 (WCC) a firm of architects was appointed as the employer’s principal agent in a contract for the construction of a house, outbuilding, wine cellar, manager’s house and a cottage on a farm. The architects were required to regularly inspect the works to ensure that work was being according to the plan and/or contract documents and to exercise reasonable professional skill and diligence in the performance of the mandate. The construction works were not performed in a proper manner and the buildings suffered from material defects.
The Court stated that an obligation to supervise did not only entail that the principal agent had to supervise the works by monitoring and directing them on an ongoing basis or day-to-day basis. The Court further stated that what is contemplated is that the principal agent should inspect the works with sufficient care and diligence to ascertain whether they are being performed generally in accordance with the requirements of the contract. The architects and contractor were held jointly and severally liable for the defects.
As has been demonstrated above, it is of utmost importance that engineers, architects and other agents acting on behalf of an employer in construction contracts execute their works with due care and diligence, employing the necessary skill required by the standards in their field of work and to appreciate their supervisory duty in order to avoid the risk of unreasonable harm or damage to others and run the risk of being held liable as a result of professional negligence.
