EWCA Civ 254
We reported on this case in Issue 188. This was the case where the Burgesses employed Mrs Lejonvarn, a friend and former neighbour, to assist with a landscaping scheme. The Burgesses were unhappy with the quality and progress of the work and Mrs Lejonvarn’s involvement came to an end in July 2013. The Burgesses further claimed that much of the work done during the period of Mrs Lejonvarn’s involvement was defective and claimed damages of £265k. Following a preliminary issue hearing in the TCC, Mr Alexander Nissen QC held that there was no contract but that Mrs Lejonvarn did owe a duty of care in tort to the Burgesses in relation to the provision of various services pleaded.
The Judge had concluded that:
“it is established that in law a duty of care extends to the protection against economic loss in respect of both advice and any service in which a special skill is exercised by a professional. The duty can extend to negligent omissions as well as the performance of negligent acts. For present purposes, the relevant ingredients giving rise to the duty are an assumption of responsibility by the provider of the service coupled with reliance by the recipient of the service, all in circumstances which make it appropriate for a remedy to apply in law...a duty of care may be found to arise even in circumstances where services are performed gratuitously and in the absence of a contract. However ... in the absence of a contract it is important to exercise greater care in distinguishing between social and professional relationships.”
On appeal Mrs Lejonvarn said that the Judge should have asked whether the loss was reasonably foreseeable, whether there was a sufficient relationship of proximity, and whether in all the circumstances it was fair, just and reasonable to impose a duty of care. The CA noted that this did not appear to have been suggested to the Judge. Further, the Judge was entitled to apply the test he did. In establishing whether or not there has been such an assumption of responsibility, the court still has to enquire into whether it would be fair, just and reasonable to impose liability. This was a case which concerned Mrs Lejonvarn voluntarily tendering skilled professional services in circumstances where she knew the Burgesses would rely on the proper performance of those services.
The Judge found that Mrs Lejonvarn agreed to provide and did in fact provide a number of specific professional services acting as architect and project manager in relation to the project. The fact that the Judge found that there was no contract did not mean that the parties’ relationship could not be akin to a contractual one. Although the services were being provided for free, they were professional services being provided “in a professional context and on a professional footing”. Further, they were being provided in the expectation that they would lead on to Mrs Lejonvarn being paid for her services in relation to the second phase of the work. The project was also going to help in the establishment and growth of her business.
This was not a case of brief ad hoc advice but was a significant project which was being approached in a professional way. The services were provided over a relatively lengthy period of time and involved considerable input and commitment on both sides. The services involved significant commercial expenditure on the part of the Burgesses. Although there was no consideration, Mrs Lejonvarn did hope to receive payment for the soft design services that would later be provided and it was also important to the growth of her new business that she provided a good service. The benefits provided went beyond the normal bounds of friendship and the provision of gratuitous services by her should be seen in that light.
The CA therefore dismissed the appeal. The Judge was entitled to conclude that it was fair, just and reasonable to find that a duty of care had arisen. Mrs Lejonvarn was aware that the Burgesses would be relying upon her to properly perform and it was foreseeable that economic loss would be caused to them if she did not. Mrs Lejonvarn did not have to provide the services, but to the extent that she did, she owed a duty to exercise reasonable skill and care in the provision of them. The Judge had also found that a duty of care was owed to exercise reasonable skill and care in the provision of periodic inspection, attending site at regular intervals (approximately twice a week) to project manage the Garden Project. The CA defined the duty in the following terms:
“In providing the professional service acting as an architect and project manager of project managing the Garden Project and directing, inspecting and supervising the contractors’ work, its timing and progress Mrs Lejonvarn owed a duty to exercise reasonable skill and care.”