The failure to exercise sufficient care, where there is a duty to exercise same, which results in the prejudice of another may amount to negligence. Construction professionals similar to other professionals have a duty to meet the industry standards, failing which the aggrieved party may hold them liable for their failure.
To prove negligence a party must establish that:
- A reasonable person in the position of the negligent person would have foreseen the reasonable possibility that the conduct would injure another person or property and cause patrimonial property loss.
- That such reasonable person would take reasonable steps to guard against such occurrence.
- That the defendant failed to take such reasonable steps.
Common causes of professional negligence in the construction industry:
- Errors or omissions in design: the failure of an engineer or architect to create error-free and properly organized construction designs. This can arise by error, inaccuracy, or omission;
- Non-compliance with regulations or codes: not using the relevant Standards and Codes means risking non-compliance, which can have substantial and tangible negative impacts on all involved both within the industry and in the community. The need for immediate access to essential and current Standards and building codes of practice - is crucial to remain compliant;
- Failure to inspect: occasional visits to the site and have fixed any parts of the building work that the building work supervisor happened to observe on such visits, allow building works to be concealed before the supervisor has had the opportunity to check the work.
- Breach of a contract.
Types of negligence in construction industry:
- Breach of a duty of care: A duty of care arises by reason of a decision to undertake a particular activity, for example construct a building. People who are affected by the activity will potentially be able to complain about a breach of a duty of care. A professional will be held liable if it appears that the negligence should have been foreseen or any reasonable should have foreseen the negligence and failed to take necessary steps to prevent or mitigate the effects of the negligence.
- Lack of skill: The measure against which a skilled person’s diligence is determined is the general level of skill and diligence possessed and exercised at the time by the members of a particular branch of the profession to which the practitioner belong.
- Presumptions of negligence: When there is a statutory presumption of negligence and the plaintiff or alleged aggrieved party does not have to prove negligence, it is a rule not necessary for the plaintiff to allege negligence, provided the alleged facts show the presumption applies.
- Gross negligence: In the case of Transnet Ltd t/a Portnet vs Owners of the MV Stella Tignas the Court said that “It follows, I think to qualify as gross negligence, the conduct in question although falling short of dolus eventualis must involve a departure from the standard of a reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk taking, a complete obtuseness of mind or where there is no conscious risk taking, a total failure to take care. If something less were required, the distinction between ordinary and gross negligence would lose its validity”.
Remedies:
- Damages: compensation for loss;
- Interdict: Stopping harmful activities;
- Rectification;
- Professional negligence claim.