| Date | 13 June 2001 |
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| Judgment | J D Williams & Co Limited -v- Michael Hyde and Associates Limited, CA 6 July 2000 |
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| The Issue | Tests to be applied to establish professional negligence. |
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| Implication |
Negligence may readily be found, even in circumstances where a substantial body of opinion within the profession might support the course of action taken. |
printIt is likely that very few readers of this article will have heard of the phenomenon called phenolic yellowing. It may be known to researchers into the subject, but very few others. It seems that direct fired gas heating systems may cause phenolic yellowing in many materials, including textiles, foam and packaging. Apparently, such heating systems raise levels of nitrous oxide within a heated building, which in turn creates a chemical reaction which can bring about the yellowing of textiles stored within the building. Given that so few people would be aware of this process, it seems improbable that an architect would be held to be negligent in specifying such a heating system for a building to be converted to a textile warehouse. This however was the finding of the Court in the case of J D Williams & Co -v- Michael Hyde and Associates. J D Williams was a mail order company that had large stocks of clothing. It bought two derelict cotton mills in Oldham for conversion into warehouses. Hyde was engaged to provide architectural, surveying and engineering services necessary for the project. When the question of heating was raised, Hyde contacted British Gas for advice. British Gas suggested that an economical and flexible solution would be a direct fired gas system. In making its quotation for the installation, British Gas included a disclaimer to the effect: "British Gas plc will not be liable for any discolouration effect on material resulting from direct gas fired heating". The disclaimer did not escape the attention of the employer, Williams and its Architect, Hyde. Hyde contacted the British Gas sales office and asked for an explanation. The sales officer was not personally aware of the reasons for the disclaimer and was not personally aware of phenolic yellowing. He explained however that it was his understanding that British Gas had had problems with products containing foam, which were discoloured by an older direct fired heating system. His comments were taken as a reassurance that the discolouration problem would not arise in the current circumstances and the direct fired heating system was ordered and installed. The premises became operational in December 1990 and by May of the following year, the yellowing of garments stored in the warehouses had become a significant problem. Williams commenced proceedings against Hyde, claiming that Hyde was in breach of its duty in failing to bring about further investigations of the known risk of discolouration. It was Williams' case that had Hyde taken proper steps to investigate the issues which lay behind the disclaimer put forward by British Gas, it would have discovered an unacceptable risk of discolouration such that alternative heating systems would have been specified. The case of Bolam -v- Friern Barnet Hospital Management Committee is generally cited to summarise the law of professional negligence. A distinction is generally drawn between ordinary negligence and professional negligence. In an ordinary case which does not involve any special skill, negligence will be judged by "the conduct of the man on the top of the Clapham omnibus". In situations that involve 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. In the latter case, two simple questions are asked: (1) does the conduct of the defendant fall below the standard of the ordinary competent professional? and (2) is there a substantial body of opinion within the profession that would support the course taken by the defendant? As is so often the case in these matters, the experts called by each party gave evidence along party lines. Williams's expert believed that it was improper for an architect to have done no more than seek reassurance from the British Gas sales department. Further enquiry was warranted. The expert for Hyde gave evidence that this was a textile matter and not a heating matter. The heating system complied with the British Standard. To have done more, in his opinion, was beyond what it was reasonable for an architect to do.The judge in the first instance, held that the duty was owed by Hyde to investigate further. On the balance of probabilities, if further investigation had been carried out, the problem would have been identified and avoided. The matter then became before the Court of Appeal, where it was argued on behalf of Hyde that the conflict of expert evidence showed a significant and respectable body of professional opinion supported the course of action taken by Hyde. If the Bolam test was to be applied, this would mean that Hyde should be acquitted of negligence. The Court of Appeal held that this was not a case in which Bolam applied. The experts had given little more than their personal views of what they might have done if faced with similar circumstances. That was not expert evidence at all and the judge was entitled to discount it and form his own view. Moreover, the judge was entitled to conclude that the advice at issue required no special skill, but rather a matter of common sense and thus again, the Bolam test would not apply. In conclusion, the Court of Appeal was not entitled to interfere with the earlier judge's findings of negligence. However, in the matter of causation, the Appeal Court did not agree that, on the balance of probabilities, further investigation would necessarily have revealed the nature of the problem. Accordingly, on this strand of the appeal, the architects were successful.
CJ-0123
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