Professional Liability in Landscaping: Landscape Law for the Specifier and Builder
These sheets are intended to be used as a general guide to enable a designer or landscape team leader to establish a situation either on site or as a potential risk when making decisions. They are not presented as comprehensive documents, only as a guide to enable further advice to be taken if necessary.
Negligence
The word and act of negligence is being used more frequently by lawyers in claim cases as being a simple, yet highly difficult subject, a charge easily made yet hard to protect against due to its open-ended ramifications.
It is often used as a ‘bolt-on’ claim, almost as a catch-all, making defence more complicated to formulate.
For example, if a designer or specifier did not mention, in writing, before the event, that a handrail or balustrade was required to meet Building Regulations due to the height of a retaining wall, or number of steps in a flight, the customer could, quite reasonably, claim that they would not have proceeded due to additional expense.
Duty of Care
A duty of care may be owed to those who could reasonably be affected by your actions or omission.
Designers, charge hands or team leaders have additional and immediate responsibilities as the professionals on site.
Designers must ensure that the information they supply to all parties is tested for accuracy and is legally sound. This includes all specification, setting out drawings and nominated materials are confirmed as being suitable for the purposes intended.
Contractors have a duty of care to build with reasonable skill and to comply with all regulations and follow recognised standards. It is no defence to a claim of lack of knowledge, as you are bound to work in a professional manner at all times. It is not a valid excuse to say that you were only following the drawings.
All parties have a duty to report and notify others of any discrepancies in any element of a contract build, either materials, products or working practices. Remaining silent or failing to report an obvious defect or foreseeable danger may amount to negligence.
Examples of this may be unsecured excavations, poorly protected sites, unstable scaffolding, vehicle movements or unsafe covers, especially at ground level.
Contractors have a major duty of care to ensure that all staff are provided with adequate personal protective equipment, are mentally able to work within their allotted tasks, and have sufficient competent supervision. All staff on site must have been provided with up-to-date information regarding Health & Safety at work, and signed the necessary site induction book.
Reasonable Skill and Care
Whilst this heading may be self-explanatory, reasonable skill and care extends to evidenced training, including practical, written and oral (as required) examination in the work at hand.
The question of reasonableness is defined by the level of competence, knowledge, diligence and judgement that would ordinarily be expected from a reasonably competent professional tradesperson undertaking the same work under similar circumstances.
In practical terms, it means following recognised good practice, in a safe manner, complying with all rules and regulations and other statutory obligations. It means identifying unsafe or unsound practices, and ensuring that others work in a safe manner.
Failure to exercise reasonable skill and care, including supervising inexperienced operatives, may be considered a lack of reasonable skill and care, even though the work is not being carried out personally. It is a duty of competence, not perfection.
Reliance on Manufacturers
Manufacturer’s instructions are persuasive (in legal terms), but they should not be considered as definitive. Whilst they should not be ignored, it is useful to establish where they originate. Published instructions should be treated as a guide only.
A manufacturer’s guidance is not Law, an established standard, nor a Building Regulation. It should not be automatically treated as good practice, but should be treated alongside other standards, industry guidance and accepted trade practice.
All manufacturer’s advice should be treated as generic, as it cannot cover climate or soil conditions. Professional judgement is still required, especially when dealing with foreign products and packaging.
Often, advice sheets and technical data sheets may be years out of date, or written for International markets, and relying on outdated information may not be defensible in case of a dispute. Never assume that following instructions makes the design legally compliant.
The legal term for ensuring that products and materials are fit for purpose is Caveat venditor – ‘Seller Beware’. The onus is upon the installer to ensure they are fit for purpose. If in doubt, always check with the supplier or manufacturer, and obtain written clarification from their technical department that is bespoke to your site and circumstances, not simply generic.
Warranties and product properties will be subject to handling and storage conditions, and will prove difficult to defend a dispute claim unless you have full provable knowledge of those conditions. Any lack of evidence may invalidate any warranty, express or implied.
It is no defence to claim that you only followed manufacturers advice, as responsibility cannot be delegated to the product supplier.
Reliance on British Standards
Many of the same comments regarding relying on manufacturer’s instructions apply to British Standards, as they are clearly stated as being advisory only, however, with one major caveat.
If a quotation and contract make reference to meeting British Standards, you will be held to be bound by them, advisory or otherwise.
British standards often represent persuasive evidence of accepted good practice, even though they are not mandatory.
There are several relevant British Standards that are important in the world of landscaping, and it is highly recommended that team leaders and designers make themselves aware of their existence, numbers and general information as part of their continuing personal development.
The ability to quote and advise others of their existence is an important part of staff training and site hierarchy.
Professional Indemnity Insurance
It is highly recommended that all persons involved in the design and specification of landscape working practice documents and planning hold the appropriate amount and scope of cover under a professional indemnity insurance policy.
It protects you against claims for negligence, errors or omissions in your professional advice or services. It covers legal defence costs and financial compensation to fix error or loss. It is not intended to replace Public Liability insurance cover.
It is unique as it offers retroactive cover for work you completed in the past. If you retire or close the business, you can obtain run-off cover to protect your past professional work against future claims. It is therefore important to continue holding cover after retirement, in liaison with your broker to ensure that cover is maintained (usually on a reducing scale as the risks are reduced over time).
Statutory Nuisance
In England and Wales, statutory nuisance is primarily governed by the Environmental Protection Act 1990, particularly Part Three. Local authorities have a legal duty to investigate complaints, whether or not justified.
Most examples of statutory nuisance involve common site issues including noise from machinery, especially concrete crushers, mechanical drills and compactors. As these are rarely likely to be continuous, rather short-term, they are unlikely to attract complaints for unreasonable behaviour.
Other behaviour, such as dry cutting of concrete however, will attract the attention of the Health & Safety Executive, either due to a complaint, or often a passing visit from an inspector.
One recent case saw a contractor – who happened to be the owner of the limited company – post on Facebook, using a petrol stone saw to cut concrete, dry, in a cloud of dust, whilst walking along with the machine in one hand, and his mobile phone in the other, with no PPE and wearing trainers. The result was a huge fine, but due to his status as the owner, he could have faced a jail sentence.
Bonfires and burning, especially green waste or treated timber, paint and chemical vapours, and similar fumes and smells will also attract the HSE.
Other nuisances may not be as obviously illegal, but cause significant claims, are light pollution through permanent lighting features and long-term floodlights or poorly aimed spotlights, and water run-off issues such as washing dirty vehicles and cement mixers, discharging into drains or on the highway or neighbouring property.
Remember – these guidance notes do not replace professional judgment. If there is any uncertainty regarding legal compliance, obtain specialist advice before proceeding.
Responsibility cannot be sub-contracted. Work may be delegated, but liability always remains with the company.
This is the first of eight information sheets to be placed into the Paving Site.
