Hyde & Associates Ltd v Williams & Co Ltd

Professional negligence is assessed by the court against the standard of competent professional practice. The Bolam approach is not automatically engaged whenever expert evidence is called. It is generally apt where the alleged negligence consists of a conscious choice between tenable professional practices. It is less apt where the complaint is an oversight or failure to recognise an evident risk. A court may decide the issue without choosing between competing professional opinions where the question is one of ordinary judgment rather than specialist professional technique. A professional adviser who identifies a material risk cannot discharge the duty merely by accepting reassurance from an interested supplier where circumstances call for further investigation. Causation must nevertheless be proved on the balance of probabilities; speculation that further enquiries might have revealed the risk is insufficient.

J.D. Williams & Co Ltd converted former cotton mills into a distribution centre and, following advice from its architect, Michael Hyde & Associates Ltd, installed direct-fired gas heating. Clothing stored at the premises later suffered extensive phenolic yellowing. The claimant alleged that the architects should have investigated further after seeing British Gas’s disclaimer concerning discoloration.

After a five-day trial, the Official Referee found breach of duty and causation and entered judgment for £365,325.60. The architects appealed, arguing that the trial judge had wrongly rejected a respectable body of expert opinion and had reached an unsupported conclusion on causation. The central issues were whether the Bolam test governed the negligence question and whether the further investigation would probably have prevented the loss.

1. Negligence. The appeal succeeded on causation, but the finding of breach was upheld. The Bolam test is a test for professional competence, but its application depends on the nature of the alleged breach. It is typically appropriate where the complaint concerns a conscious choice between available courses adopted by a trained professional. It is typically inappropriate where the complaint is an oversight.
2. The trial judge was entitled to decide whether the architect should have recognised the significance of the British Gas disclaimer and pursued further enquiries. That question did not require specialised architectural expertise or the selection between two recognised professional practices. The expert evidence did not clearly establish competing accepted practices; it largely expressed what the witnesses would have done in the circumstances. The judge therefore made no error of law in assessing the issue himself.
3. On the facts, the architect was acting as an independent adviser and should not have treated the supplier’s reassurance as authoritative technical advice while the disclaimer remained. The disclaimer was a warning requiring further investigation. The finding that the architect was negligent in discounting the risk and failing to set an investigation in motion was not plainly wrong.
4. Causation. The claimant had to establish, on the balance of probabilities, that proper investigation would probably have uncovered an unacceptable risk of discoloration. The evidence showed only that British Gas’s scientific department might have referred the matter to an external organisation. That possibility provided no sufficient evidential basis for the trial judge’s conclusion. The likely result was that the investigative trail would have gone cold, particularly given the arcane nature of phenolic yellowing and the low probability that specialist heating engineers would have known of it.
5. The causation finding was therefore speculative. The claim should have been dismissed on that issue. The appeal was allowed, the judgment below was discharged, and judgment was entered for the defendant in respect of the heating installation claim.
6. Lord Justice Sedley agreed that the Bolam-type test is not applicable to every allegation of professional negligence. Lord Justice Nourse agreed with Lord Justice Ward.

• Court of Appeal (Civil Division) — appeal from the Queen’s Bench Division allowed. The trial judgment was discharged and judgment entered for the defendant in respect of the heating installation claim.
• Queen’s Bench Division, Official Referee Business — following a trial before His Honour Judge S P Grenfell, judgment was entered for the claimant on 22 December 1998 in the sum of £365,325.60.