Beware of implied terms – duty of care

For professionals thinking of providing services without a full set of terms and conditions this is a warning of what might happen…

If a professional appointment is silent on the point then the Supply of Goods and Services Act 1982 implies a duty of reasonable skill and care into the contract.  What’s worse (or better, depending on which side of the fence you sit) is that the common law may also imply a duty of fitness for purpose into contracts which are silent on the matter in certain situations that justify it such as where the professional has knowledge of certain facts.

The duty to use reasonable skill and care in carrying out his service is a lower standard of care than that of fitness for purpose.  A professional can defend a claim under the duty of reasonable skill and care by showing that his or her actions were standard practice at the time, regardless of the outcome of that practice.

Fitness for purpose is more onerous.  It is an absolute obligation to provide something that will be fit for its intended use, regardless of the level of skill and care used.  If the professional uses all the very best and up to date practice but the thing is not fit for its intended purpose then the professional will be liable.

For example, an architect appointed to design a hotel will breach the fitness for purpose obligation if his design is not in fact capable of being used as a hotel, whereas he would only breach the skill and care obligation if he had failed to exercise reasonable skill and care in its design.

The simple solution to this is to ensure that your contract clearly sets out what the expected duty of care will be which will overrule the implied terms.

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