The UK High Court found that an independent consultant to a sub-contractor relating to the design and construction of a slipform rig did not owe a duty of care to the main contractor and could not be sued for damages for negligence. There was no assumption of responsibility to the main contractor which sought damages from the third party design consultant because the subcontractor was insolvent.
The court examined the English law relating to the duty of care which is similar to but not the same as the South African law of wrongfulness in a damages claim. The duty of care arises in the circumstances of this case if there is an assumption of responsibility to the main contractor; a test involving proximity between the parties and fairness. The court discussed the assumption of responsibility and whether liability arose despite the consciously created framework of contractual relationships which did not directly link the independent consultant to the main contractor. The fact that the independent consultant had knowledge of and consented to the fact that their advice was being passed on by their sub-contractor client, to the main contractor, can sometimes establish a duty of care. On the facts the main contractor faced the difficulty that it did not receive the design certificate from the consultant in the form they produced it. The main contractor relied only on a version of the certificate that had the notes and comments box entirely removed. The certificate regarding the design did not operate on the main contractor’s mind in such a way that the economic loss that was suffered was on account of that reliance. The sub-contractor had full design responsibility for the sub-contract works to the main contractor. There was no direct contractual link to the consultant nor did the contractual relations between the parties include any such responsibility. The main contractor did not know and was not involved in what documents had been provided to the consultant by the sub-contractor. The construction project had a large number of participants and a detailed and careful contractual structure between the employer and the main contractor. The consultant assumed no responsibility for the accuracy of the information to the main contractor. It was not sensible and just to hold the independent consultant liable for potentially unlimited liability to the main contractor on a major and very complex construction project the details of which were never provided to the independent consultant. The main contractor chose to contract with the sub-contractor on highly detailed terms. The independent contractor did its work for a very modest fee and, although this was not a determinative factor, it was part of the factual circumstances. No duty of care was found.
Although considerations of wrongfulness are different in South Africa, the courts have held that where the parties create an elaborate contractual arrangement a delictual claim will not readily be found outside the terms of such a detailed contract.
