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Professional Practice for Landscape Architects

Professional Practice for Landscape Architects

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Introduction

Liability and the law65

What are a landscape architect’s legal responsibilities (or liabilities)?

•Professional liability.
•Liability in tort.
•Liability in contract.
•Liability as a member of a practice.

In England and Wales no proof of damage is necessary.
•The Scottish equivalent of trespass is ‘interdict’. In Scotland, proof of
damageis required.

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‘Liability’ refers to the obligation to pay damages when things go wrong.
As indicated in the box, there are several types of liability that may con-
cern the landscape architect.
Three of these – liability in tort, strict liability and breach of contract –
relate to sections 2.0 and 3.0 above but, in addition, landscape architects
need to be aware of professional, employer’s, occupier’s and vicarious
liability, liability as a member of a practice and statutory liability.
It is possible that a landscape architect could be simultaneously liable
both in tort and contract (and indeed in other forms of liability) for a sin-
gle offence. For example, incompetent design could be in breach of con-
tract and constitute negligence (subsequent defects) and, say, implicate the
practice as a whole (partnerships and companies).

Liability in the Tort of Negligence

66Professional Practice for Landscape Architects

•Liability as an officer in a public authority.
•Vicarious liability.
•Statutory liabilities.

The fundamental principle of the law of tort is that ‘you owe a duty to all
persons you can reasonably foresee would be directly or closely affected
by your actions, for it is assumed that you ought reasonably to have them
in mind when you commit your acts’.

•Personal injury: a landscape architect may be liable if their negligence
causes foreseeable personal injury to any foreseeable victim, e.g.
where he or she orders something to be done which is dangerous and
causes injury. Note that the landscape architect is not liable if they
order something to be done that is dangerous only if done in the
wrong way (for example, on the contractor’s mistaken direction).
•Liability to subsequent purchasers for defects in the building works aris-
ing out of faulty design or inspection of construction works, but only if
the defect could not have been known about at the time of purchase.
•Liability to the builder for economic loss that is the direct result of the
professional’s advice.

Professional designers, including landscape architects, have a specific and
wider responsibility and duty of care than the general case in the para-
graph above (or than in contract) and that is to all those who will use that
which he or she designs, though this may include others than the client.
Specific aspects of the landscape architect’s activity may give rise to
liability claims if not carried out with reasonable care (failure to perform).
These include:

Ch02-H6902.qxd 11/29/06 9:45 AM Page 66

Professional liability

Both the law of contract and the tort of negligence require the professional
to exercise ‘reasonable care’. What is the meaning of ‘reasonable care’?

Liability and the law67

Liability in breach of contract

A party without lawful excuse refuses or fails to perform, performs defect-
ively or incapacitates himself or herself from performing the contract.

The meaning of reasonable care

•For ordinary citizens the standard of care is that of a ‘reasonable man’.
•For professionals, the standard of care is that of a skilled man exercis-
ing and claiming to have that special skill.
•For landscape architects, this is restated in the Landscape Architect’s
Appointment: ‘The landscape architect will use reasonable skill, care and
diligence in accordance with the normal standards of the profession’. In
the case of a landscape architect this is restated in the Landscape Con-
sultant’s Appointment (Part 3 Conditions of Appointment): ‘The landscape
consultant will use reasonable skill, care and diligence in accordance
with the normal standards of the profession’.

The liability of the professional landscape architect in contract and negli-
gence is described more fully below.

Liability for breach of contract

For this to apply there must be a contractual relationship with another
party.

When a landscape architect enters an agreement with a client, they make
a commitment to exercise professional skills competently and with care
for the client’s interests. So if the landscape architect neglects to do what
they undertook to do, or bungles it, they commit a breach of contract,
making them liable to the person who engaged them.
Specifically, duties in contract are of two kinds: duties of care and strict
duties (duties of result). Aduty of care is a duty to make reasonable
efforts to produce the desired result. Astrict duty (or duty of result) is a
guarantee that the desired result will be produced, making the person
who promises liable even if the failure to produce it cannot be shown to
be their fault.

Usually a landscape architect’s duties are duties of care, but liability
may be strict either when a landscape architect delegates part of their
work to someone else or is brought in to solve a particular problem.

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Incompetent design refers to errors or omissions in plans, drawings
or specification, and also in choice of materials, ‘build-ability’ and
‘supervise-ability’.

The landscape architect is required to inspect the works to ensure that the
standard is in line with that originally conceived. Reasonable inspection
does not mean a 24-hour presence, but it does mean overseeing the princi-
pal parts of the works especially if these are subsequently hidden, e.g.
drains or foundations. Inadequate inspection would be a failure to do this.
Negligent financial advice could be for example on likely building
costs. While negligent legal advice would refer to aspects of the law rele-
vant to the business of landscape architecture. Negligence in certifying
payments may include over-certifying or issuing certificates for work
inadequately done.
Case law in 2004 established that people providing services to an
organization owe a duty of skill and care to that organization to give it a
warning about harmful situations or potentially harmful consequences of
actions of which they are aware.

Collateral warranty

Alandscape architect may have a contract of appointment with a client.
The purpose of a collateral warranty is to bind a third party (usually a
developer or financial institution which is backing the client) into a con-
tract where no contract would otherwise exist. Without a warranty the
third party would have to establish a claim in tort.

Liability as a member of a practice

Partnerships (Unlimited)

In addition to all their normal individual liabilities, each partner has
added responsibilities as a member of a partnership. The nature of the
liability for contract debts and torts (including professional negligence) is
defined by the Partnership Act. (Refer to Chapter 1.)

68Professional Practice for Landscape Architects

The landscape architect’s liability in breach of contract

Specific aspects of a landscape architect’s work may give rise to liability
claims:
•Negligent survey.
•Incompetent design.
•Inadequate inspection.
•Negligent financial advice.
•Negligent legal advice.
•Negligence in certifying payments.

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Any partner in a partnership (in England) who makes any admission,
representation or action in the course of carrying out the firm’s business
binds the firm and his fellow partners, unless it is outside their authority
to act for the firm in that particular matter. Any torts, where it may be
inferred that the partner was acting as a member of the firm, would be
considered as being committed by all in the partnership.

Limited Liability Partnerships (LLPs)

LLPs are governed by their members. For an LLPto be incorporated, two
or more persons associated for carrying on a lawful business with a view
to profit must be named in the incorporation document. These are classi-
fied as designated members and are not employed by the LLP, which is a
separate legal entity.

Liability and the law69

•Every member of an LLP is the agent of the partnership. The LLP is
bound by what a member has agreed unless he or she acted outwith
the scope of their authority.
•A member is not liable for the torts or obligations incurred by the LLP,
other than in tort for their own negligence. Therefore it is only possible
to sue the LLP in contract and not the member. However, the member
can be sued under the law of tort.
•A member is liable for the debts of the LLP in the event of it being wound
up to the amount that he or she has contributed to the LLP as capital.

Shareholders

•Are liable personally in tort for their own negligence.
•Are only liable for the debts of the company to the amount unpaid on
their shares if the company is limited.
•Are fully liable for torts and obligations if the company is unlimited
onlyon the winding up of the company, otherwise it rests with the
company itself.
•If a company is dissolved by winding up, both members and past
members (within past 12 months) will be liable to contribute towards
the assets of a company so it can meet its liabilities.

Directors

Directors are not servants/agents of the company and cannot be liable for
the company’s debts or torts. However they are liable for their own torts.

Companies

Acompany is owned by its members or shareholders and is governed by
its directors or managing director with the supervision of its shareholders.

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Personal Liability of Employees

Case law since 2003 has established that the concept of ‘controlling mind’
applies to both private companies and public practice. In a charge of ‘cor-
porate manslaughter’ it is necessary to prove that:

70Professional Practice for Landscape Architects

•The defendant is a company or corporate body, rather than a partner-
ship or other form of enterprise
•An individual within the organization is of such seniority that they can
be said to be the ‘controlling mind’ or ‘directing mind’
•The individual is guilty of manslaughter through gross negligence.

The controlling mind will usually be a senior manager, or if the task has
been delegated to an individual with full discretion to act independently
that delegate may also be regarded as a controlling mind. In this context,
others engaged to provide services to an organization, who see that a situ-
ation is clearly dangerous, have a duty to warn the organization about
the danger as part of the skill and duty they owe to that organization.

Liability in local authority

In law the ‘corporation’ has a legal identity and can be sued.
Local authorities were originally set up to safeguard public health and
safety.Therefore, to succeed in a claim against a local authority a
claimant must establish imminent danger to health and safety. This may
be difficult to prove, therefore the claimant is more likely to sue the indi-
vidual professional.
In the case of local authorities, identifying a risk and having the power
to do something about it does not necessarily create a duty, but each case
would be assessed individually. Were such a duty to exist, it would place
a heavy burden on authorities in staffing, training and budgets. (Sandhar v.
Dept. of Transport 19.1.1994)
Legal actions relating to civil wrongs committed by a ‘servant’ (officer)
can be raised against the officer and the authority. Local authorities spe-
cify the area of decision-making delegated to specific officers – an officer
may only make a decision on behalf of the authority or council, if clearly
delegated to do so – otherwise he or she is acting ultra vires(outwith their
or the authority’s powers laid down by Parliament). The local authority
will be held liable for the act of an employee if the act was committed by
a ‘servant’ engaged in the work of the authority and during the course of
their employment. However, an authority cannot be sued if the officer
acted outwith the scope of their authority
An officer has a duty to take care in giving advice. If an officer is negli-
gent and loss is suffered due to faulty advice, both the authority and the

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officer may be sued for damages. Anegligent though honest mistake may
still lead to legal action as the officer is held to be in possession of specific
skills (i.e. a professional) and that officer should know that reliance is
being placed on their skills.

Vicarious liability

Aperson is liable for their own torts. He or she may also be liable for
those of another.

Liability and the law71

Vicarious liability arises from the ‘master–servant’ relationship, that is,
the master directs exactly how work should be done.

This is in contrast to the relationship between an employer and an inde-
pendent contractor, in which the contractor undertakes to perform work
or services, but has discretion how that work is done.

The difference is the degree of control that the employer is entitled to
exercise over the acts of the employee.

Statutory liabilities of landscape architects

•Suppliers of services.
•The Defective Premises Act 1972.
•The Supply of Goods and Services Act 1982.
•Construction (Design and Management) Regulations 1994.
•Employer’s liability.
•Equal Pay Act 1970.
•Employment Rights Act 1996.
•Occupier’s liability.
•Occupier’s Liability Act 1954.
•Offices, Shops and Railway Premises Act 1963.
•Health and Safety at Work Act 1974.

Generally the employer is not liable for the torts of an independent con-
tractor. However he becomes liable if he interferes and assumes control,
because by doing so, the master–servant relationship arises. An employee
or servant is always liable for their own torts, and their employer is also
jointly and severally liable if the tort is committed in the course of their
employment.

Statutory liability

This liability refers to duties imposed upon landscape architects and others
by Acts of Parliament.

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The Statutory Liabilities of Suppliers of Services

The Defective Premises Act 1972

‘Aperson taking on work for or in connection with the provision of a
dwelling…owes a duty…to see that the work which he takes on is done in
a workmanlike or, as the case may be, professional manner, with proper
materials, and so that…the dwelling will be fit for habitation when com-
pleted.’ This does not apply to factories, offices and warehouses.

The Supply of Goods and Services Act 1982

This Act (section 13) says that in a contract to supply services (such as
those provided by an architect for an employer) there is an implied term
that the architect will carry out the service with reasonable skill and care.

Construction (Design and Management) Regulations 1994
SI No. 1994 3140

These regulations were a reaction to unacceptably high rates of death,
injury and ill health associated with all types of project ranging from new
works through to subsequent maintenance repairs, refurbishment and
demolition. Infringement may be a criminal offence. This is discussed in
detail below.

Employer’s Liability

This is based on a mixture of rules developed in common law and those
set down by Parliament. The basic relationship between employer and
employee is defined by the contract of employment. These rights have
been brought together into the Employment Protection (Consolidation)
Act 1978 amended by the Employment Act 1980 and the Employment
Rights Act 1996.

These statutory rights are mostly to do with fairness and are enforced
in industrial tribunals, not courts as in the normal way.
Also binding on employers are the Equal Pay Act 1970; National
Minimum Wage Act 1998; the Race Relations Act 1976; Sex Dis-
crimination Act 1975; Employment Relations Act 1999; the Health and
Safety at Work Act 1974; the Offices, Shops and Railway Premises Act 1963;
Employer’s Liability (Compulsory Insurance) Act 1969; the Disability
Discrimination Act 1995; the Asylum and Immigration Act 1997;the
Employment Relations Act 1999; and the European Community Work
Directive 2000.

Occupier’s Liability

Occupiers (and employers) also have liabilities for Health and Safety set
down under:

Health and safety at Work Act 1974

The Health and Safety at Work Act concerns the general responsibility
of employers, employees and the self-employed with respect to both

72Professional Practice for Landscape Architects

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each other and third parties. Infringement is a criminal offence. The
COSHH Regulations and Control of Pesticides are related issues.

Offices, Shops and Railway Premises Act 1963

The Offices, Shops and Railway Premises Act 1963 is concerned specifically
with the obligations of the occupier for health and safety. Infringement is a
criminal offence.

Occupier’s Liability Act 1954

This imposes a duty of care on occupiers of premises to all those lawfully
entering their premises (public liability).

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