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Karin Horsley

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To advise or not to advise – could you breach a duty of care?

Property Focus / 10 November 2017

A duty of care will arise where a person relies on the action or can be harmed by the inaction of another.  This will almost always arise when a person relies on a professional for their services. Should the breach of a duty cause a loss, the injured party can seek redress through the court system.

But at what point should the duty of care begin? Many professionals have a misconception of protection afforded by informality or lack of instructions. Burgess and another v Lejonvarn [2017] has clarified that a duty can still be imposed even where no professional or contractual relationship exists.

Ms Lejonvarn worked as a professional consultant. Her friends, the Burgesses, were seeking to remodel their garden. Ms Lejonvarn began providing design and project management services, however no formal agreements were made and the position was ad hoc.  No money was ever paid.

The Burgesses became concerned about the cost and quality of the work. The relationship deteriorated and an alternative landscaping consultant was engaged.  A claim was subsequently brought against Ms Lejonvarn for the cost of completing the project, including the remedial works. Despite the lack of contract and the informality of discussions, the Court found that a duty of care had arisen and that tortious damages could flow from this. 

Ms Lejonvarn did not owe a duty in the friendship sense but in the professional sense.  She possessed a special skill and had assumed responsibility on which they had relied.  She had taken on a project management position and had arranged for workmen of her choosing to perform works.  If a person chooses to perform services, they must act with reasonable skill and care when doing so.

Giving advice or performing services, even in informal settings, can result in unintended liability. At a minimum, where advice is given, caveat this by stating that it is not to be relied on as the basis of taking (or failing to take) action. Remember that duties can be imposed on professionals even where no contract exists. And no matter the temptation, you cannot do a slap-dash job just because you are not getting paid!

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