Most consultants and design and build contractors will insist on a reasonable skill and care clause. This is because they believe that the ‘skill and care’ clause has super-powers: it prevents anyone from raising a fitness for purpose argument. Do ‘skill and care’ clauses have super-powers? The recent case of MT Højgaard a/s v E.ON Climate Renewables  EWHC 1088 (TCC) looked at this point.
In the MTH case, MTH designed and installed wind turbines for an offshore wind farm in the Solway Firth. The turbines used a monopile and grouting to secure them. In this case the grouting failed and the turbines wobbled. The cost of the remedial works was €26.25 million. When designing the foundations MTH’s designer, Rambøll, had used the values set out in international standard J101. Unfortunately J101 contained an error and this was why the grouting failed. Neither MTH nor Rambøll was aware of the error. In fact, no one in the industry was aware of the error.
E.ON blamed MTH for the wobbly turbines. MTH argued that it had designed the grouting using reasonable skill and care as no one in the industry was aware of the error in J101. MTH argued, therefore, that it was not responsible for the defective grouting. E.ON disagreed. It said that MTH promised that the works would be fit for its purpose. The grouting failed. E.ON said, therefore, that the ‘skill and care’ argument was irrelevant.
What did the contract say? Clause 8.1 of the contract included a ‘skill and care’ clause. Clause 8.1 also included a separate requirement that the works would be ‘fit for its purpose’. Section 22.214.171.124 of the Employer’s Requirements also stated that the foundations shall have a life span of 20 years. E.ON argued that when the contract was read as a whole it imposed a strict obligation on MTH to achieve a service life of 20 years. The ‘skill and care’ clause was an irrelevant side show. MTH disagreed. It argued that the ‘skill and care’ clause had super-powers and qualified the fitness for purpose obligation. The judge preferred E.ON’s submissions: the super-powers argument failed.
This case is a reminder for consultants and design and build contractors that a ‘skill and care’ clause does not automatically qualify other contractual obligations. If you want to avoid lengthy and costly litigation, make sure that your contract is clear. Don’t rely on the ‘super-powers’ argument.