Construction professionals beware: has the test for reasonable skill and care been weakened?
On 11 March 2015 the Supreme Court handed down judgment in the case of Montgomery v Lanarkshire Health Board1. Given that the judgment related to a claim for medical negligence and, specifically, the negligence of a gynaecologist, it is perhaps unsurprising that it did not immediately create waves in the world of construction litigation. However, as Claire King explains, the judgment could have potentially serious implications for construction professionals facing a professional negligence claim.
The reason for this is that the Supreme Court lay down a new “materiality test” for determining whether the professional in question had acted with reasonable skill and care. This test was substantially weaker than the Bolam Test which has been applied by the courts since the 1950s.
Since 2015, the materiality test has been applied by the courts to other types of professionals accused of negligence including financial advisors and conveyancing solicitors. Construction professionals should therefore be aware of the risk that this revised test may be argued, and potentially applied, in the field of construction.
The Bolam Test: a refresher
The common law duty of care required of a construction professional, and also implied under the Supply of Goods and Services Act 1982, is to take reasonable skill and care. The Bolam Test has, broadly speaking, been used since the 1950s to determine whether a professional has fulfilled their duty to take reasonable skill and care. The House of Lords approved the test in Bolam v Friern Hospital Management Committee2. The test laid down was as follows:
“Where you get a situation which involves the use of some special skill or competence... the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not profess the highest expert skill ...It is sufficient if he exercises the ordinary skill of the ordinary competent man exercising that particular art.” [Emphasis added]
Whether the requisite standard has been met is generally determined by reference to expert evidence.
Montgomery v Lanarkshire Health Board
So what happened in Montgomery v Lanarkshire Health Board?
Mrs Montgomery sued for professional negligence after her baby was born with severe disabilities. Mrs Montgomery was a diabetic and contended that she ought to have been given advice about the risk of shoulder dystocia (the inability of a baby’s shoulders to pass through the pelvis) which would have been involved in a normal birth and the alternative possibility of a delivery by elective Caesarean section. Because she suffered from diabetes she was more likely to have a large baby and there was also a risk of particular concentration weight on the baby’s shoulders.
Mrs Montgomery was not told about the risk of shoulder dystocia, even though the risk was 9 to 10% in the case of diabetic mothers, because in her doctor’s estimation the risk of a grave problem for the baby was very small. She considered that, if the condition was mentioned, most women would simply say they would rather have a Caesarean section.
The lower courts (in Scotland) had accepted expert evidence that a responsible body of medical opinion would have acted in a similar fashion to the doctor in this case in not warning expressly of the risk. On that basis they had concluded that the gynaecologist in question had not been negligent.
The materiality test
The Supreme Court disagreed and held that the doctor had been negligent.
In reaching their decision the Supreme Court formulated a new “test of materiality”. They held that in fact the appropriate test should be:
“whether in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”.
Paragraph 93 of the Judgment noted that a departure from the Bolam Test would reduce the predictability of the outcome of litigation given the difficulty of overcoming that test in contested proceedings. The Court also noted that:
“It appears to us however that a degree of unpredictability can be tolerated as a consequence of protecting the patients from exposure to risks of injury which they would have otherwise chosen to avoid.” [Emphasis added]
How has the test been applied since?
Since Montgomery v Lanarkshire Health Board, the materiality test has been applied not only to medical negligence cases but also to cases involving other professionals. In the case of O’Hare v Coutts3 Mr Justice Kerr expressly noted that the materiality test was not only applicable in medical negligence cases. He observed that:
“203 More recently in Baird v Hastings  NICA 22 , the Court of Appeal of Northern Ireland, dealing with a claim against a solicitor for allegedly negligent conduct of conveyancing transactions, noted the Supreme Court’s decision in Montgomery and commented that while the relationship of doctor and patient is not a true analogue of that of a solicitor and client, ‘as in the medical context, the advisory role of the solicitor must involve proper communication and dialogue with the client’ (per Girvan LJ giving the judgment of the court, paragraph 34).
204 In the context of investment advice too, there must be proper dialogue and communication between adviser and client. In respectful disagreement with Ms Oppenheimer’s submission, I do not think the required extent of communication between financial adviser and client to ensure the client understands the advice and the risks attendant on a recommended investment, is governed by the Bolam test.
205 While Ms Oppenheimer is right to point to differences between the medical and financial contexts, they are not such as to lead to the conclusion that how much to say to a client is a question to be decided according to whether the adviser acted in accordance with a practice accepted as proper by a responsible body of persons skilled in the giving of financial advice.
206 The reasoning in Montgomery is not, in my judgment, irrelevant outside the medical context. The expert evidence in the present case tends to indicate that there is little consensus in the financial services industry about how the treatment of risk appetite should be managed by an adviser (a point to which I shall return). As in the medical context, the extent of required communication with the client should not depend on the attitude of the individual adviser.” [Emphasis added]
It seems that the Judge in that case turned to the materiality test in part because there was little consensus as to how the treatment of risk appetite should be managed (i.e. the expert position was unclear).
In the more recent case of Thomas v Triodos Bank4, Judge Havelock-Allan QC did not apply the materiality test directly as the case involved providing information in response to a question rather than deciding, but he did cite it with approval:
“...in case of doubt as to how far a bank should go in providing information in response to questions from the customer about a product in a non-advised transaction, I would resort to the test of materiality in the Montgomery case. The question to be asked is: would a reasonable person, in the position of the customer, be likely to attach significance to that piece of information?”5 [Emphasis added]
So what has this got to do with construction professionals?
It may take a while to resolve the issue of exactly in what circumstances, and to whom, the materiality test will be applied. However, from the cases above there are a few observations that are worth making:
1. The materiality test may be more likely to be used where there is no expert consensus on how discussing a particular risk with a client should be handled.
2. The test is not confined to the field of medical negligence. It has already been applied to solicitors and investment professionals.
3. It may perhaps be more likely that the materiality test is applied rather than the Bolam Test where there is an element of consumer protection involved or perhaps an issue of safety.
As such, it is worth construction professionals taking into account the question of whether they should be disclosing information if they believe their client would consider it to be particularly significant or pertinent to the risks of what is being undertaken. If they believe their client would consider the risk to be significant then the safest course of action would be to discuss that risk with the client.
For those seeking to bring claims for professional negligence against construction professionals, the materiality test is also worth arguing in circumstances where the Bolam Test may not be decisive as to whether the professional in question has been negligent.
In the meantime, this is an area that will need to be carefully watched by construction professionals and their advisors over the next year in order to see exactly what impact Montgomery v Lanarkshire Health Board ends up having in construction negligence cases.