Construction Professionals Beware: Has The Test For Reasonable Skill And Care Been Weakened?

On 11 March 2015 the Supreme Court handed down judgment in the case of Montgomery v Lanarkshire Health Board1. Given that the judgment related to a claim for medical negligence and, specifically, the negligence of a gynaecologist, it is perhaps unsurprising that it did not immediately create waves in the world of construction litigation. However, as Claire King explains, the judgment could have potentially serious implications for construction professionals facing a professional negligence claim.

The reason for this is that the Supreme Court lay down a new "materiality test" for determining whether the professional in question had acted with reasonable skill and care. This test was substantially weaker than the Bolam Test which has been applied by the courts since the 1950s.

Since 2015, the materiality test has been applied by the courts to other types of professionals accused of negligence including financial advisors and conveyancing solicitors. Construction professionals should therefore be aware of the risk that this revised test may be argued, and potentially applied, in the field of construction.

The Bolam Test: a refresher

The common law duty of care required of a construction professional, and also implied under the Supply of Goods and Services Act 1982, is to take reasonable skill and care. The Bolam Test has, broadly speaking, been used since the 1950s to determine whether a professional has fulfilled their duty to take reasonable skill and care. The House of Lords approved the test in Bolam v Friern Hospital Management Committee2. The test laid down was as follows:

"Where you get a situation which involves the use of some special skill or competence... the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not profess the highest expert skill ...It is sufficient if he exercises the ordinary skill of the ordinary competent man exercising that particular art." [Emphasis added]

Whether the requisite standard has been met is generally determined by reference to expert evidence.

Montgomery v Lanarkshire Health Board

So what happened in Montgomery v Lanarkshire Health Board?

The facts

Mrs Montgomery sued for professional negligence after her baby was born with severe disabilities. Mrs Montgomery was a diabetic and contended that she ought to have been given advice about the risk of shoulder dystocia (the inability of a baby's shoulders to pass through the pelvis) which...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT