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To successfully bring a professional negligence claim, a claimant must be able to prove the following elements:
- The professional owed them a duty of care;
- The professional breached that duty of care; and
- The breach caused them to suffer financial loss - this is referred to as causation.
A professional negligence claim will not succeed unless the claimant can establish all three elements.
The importance of factual evidence in demonstrating causation, even where there is an admission of negligence, was emphasised in the case of Beattie Passive Norse Ltd & Another v Canham Consulting Ltd [2021] EWHC 1116 (TCC).
Background to the claim
The claim was for professional negligence and breach of contract brought against a firm of consulting engineers, Canham Consulting Ltd (Canham).
The parties were involved in the construction of two PassivHaus blocks, referred to as Block A and Block B. PassivHaus is a type of timber and brickwork housing from Germany.
The defendant, Canham, designed the foundations of both blocks using pad foundations.
The claimants sought to recover the costs of demolishing and rebuilding the two blocks and other consequential losses for a total sum of £3.7 million.
The claimants claimed that both blocks had to be demolished and rebuilt due to significant foundation deficiencies.
Admission of negligence
Negligence played a very small role in the proceedings as Canham’s design of the foundations was found to be negligent because the dowels, which were a key component of the foundations as they connected the beams and the pads, were missing.
There were also errors in the figures given for the bearing pressure of the foundations, and the drawings were not adequately labelled.
There was, therefore, an admission of negligence in this case.
Issues proving causation
Although the negligence of the defendant was beyond doubt and the claimant’s claim was ultimately successful, the amount awarded to the claimant was nominal because the factual evidence did not support the claimant’s assertion that Canham’s negligent design of the foundations led to the two blocks needing to be demolished and rebuilt. Causation was therefore not established.
Neither were the claimants entitled to claim damages for breach of contract because it was not shown that the losses they were claiming flowed directly from Canham’s breach.
In the case of Block A, Canham was not found to be negligent or in breach of contract because it was, in the words of the judge in this case, “so defectively constructed in other respects, nothing at all to do with fault on the part of Canham” that it would have needed to be demolished anyway.
As for Block B, the dowel connections were missing from the foundations (which was due to Canham’s negligence).
However, they could have been retrofitted, and in fact, the works to retrofit them started before the block was demolished.
As such, Canham was not liable to the claimants for the costs of demolishing the block and rebuilding it because its negligent actions could have been corrected by the retrofitting works.
As with Block A, the judge found that Block B “would have required demolition in any event, regardless of the state of the foundations.”
Despite the claim being for a total of £3.7 million, the claimants were awarded a mere £2,000, which represented half the cost of the unfinished retrofitting works because it was found that Canham’s negligence did cause the claimants’ loss in so far as the cost of retrofitting the dowels was concerned.
This demonstrates the importance of claimants being able to establish causation through factual evidence in professional negligence claims.
Alternatives methods of resolving disputes
The Professional Negligence Bar Association launched an adjudication scheme for professional negligence disputes in May 2019.
In this case, the judge suggested that adjudication would have been the most appropriate way for the parties to settle the dispute.
In light of these comments, adjudication should be given serious thought as an alternative to court proceedings in disputes that involve a disagreement on factual causation.