Although implied terms only require you to be averagely competent, sometimes ‘reasonable skill and care’ means more than mere competency.
Specialists
On limited occasions, the courts imply a higher standard of care than ‘average’ but only for self-confessed specialists.
Specialist: If a consultant has special knowledge, then she is expected to use that knowledge in carrying out her services. Her services are measured against a higher level of competency than just ordinary: Wimpey v Poole. This is true even where she doesn’t actually have that specialist knowledge (provided she claimed to).
State of the Art: What if a consultant is using or specifying untried or state of the art materials or methods of construction? Clearly without someone being prepared to be innovative the construction industry would never try anything new. The courts do not want to discourage progress. A consultant who tries a new approach is not in breach of her duty to use reasonable skill and care, provided she tells her client of the risks and get his permission: Manchester v Womersely.
Role of Tenders: The idea that a consultant only has to be average sits uneasily with me, as it doesn’t reflect the preceding tender process or design competition. I have yet to come across a tender which stated that the consultant was ‘pretty average’, would do an ‘alright’ or ‘middling’ job and meet ‘ordinary’ standards of expertise.
My advice is to adopt the precise wording of your consultant’s tender in her contract. If she can rely on it to get the job, you can rely on it when she carries it out!
Cases: Wimpey Construction UK Ltd v D V Poole (1984) 2 Ll LR 499; Victoria University of Manchester v Hugh Wilson & Lewis Womersley and Pochin (Contractors) Ltd (1984)
