Professional duties in the garden

25 May, 2017
by: Cripps Pemberton Greenish

The Society of Garden Designer’s members often seek our advice on various topics relevant to design and project management roles. Commonly, there is no written contract or evidence in writing.  A recent Court of Appeal alerts us that, regardless of there being no agreed terms, or any payment being made, anyone offering these services may still owe a duty of care in their delivery and could be liable for negligence as a consequence of failing to meet such duty.

Mr & Mrs B (the Bs) sought to landscape their garden, obtaining a quote from a landscape gardener which they considered too expensive. Mrs L (a friend and architect registered overseas) offered and did provide design/project management services, including sourcing a contractor, with a future intention to charge for the “softer” design elements.  A contract was never concluded.  The work never reached the softer design works: the Bs became unhappy with the quality, progress and rising costs of the works and Mrs L’s involvement in the project ceased (as did the friendship, one suspects).

The Bs claimed for the increased costs and remedial works to complete the works.

One key question on appeal was what is the proper test for establishing whether a party owes a duty of care that could rise to liability for pure economic loss, which covered the above claim? The Court of Appeal concluded the test for the existence of a duty of care was whether there had been an assumption of responsibility by Mrs L.  She argued that the 3- stage test in tort which includes whether it is fair, just and reasonable to impose a duty was wrongly applied. 

The Appeal court rejected this and held that the relationship was akin to a contract. The concept of assumption of responsibility may effectively conflate the 3-stage test and the TCC could consider whether it was appropriate to award a remedy in law and, on the facts before, had found it was appropriate.  The absence of offer/acceptance and other contract principles did not determine the assumption of responsibility: other circumstances could be relevant such as Mrs L’s agreement to provide “professional services”, providing those services and knowing the Bs relied on her to perform them properly.

In this week of the Chelsea flower show, is this isolated to horticultural design duties? No, as the Appeal court had also to consider generally whether the TCC had imposed a positive obligation to carry out the services despite the absence of any contract.  It held Mrs L did not have a positive duty to perform the services but, to the extent any evidence shows that services had been provided, she had a commensurate duty to exercise reasonable care and skill. 

As often applies, each case will turn on its facts and the evidence. However, this is a timely warning that any professional who offers either to help friends or provide gratuitous services could assume responsibility and be held to a professional standard of conduct.