The courts have attempted to restrict the situations when a duty of care is due because they were concerned that the tort notion may lead to an excessive amount of litigation. The “floodgates” dilemma is a common name for this worry about unrestricted lawsuits. With regards to the following issues, courts have, in this way, constrained the duty of care’s application: Does an auditor who is creating financial statements have a responsibility to the general public? Is it the responsibility of an architect to point out construction flaws to a contractor? Is a designer responsible to a builder for mistakes in the plans and specifications? Does a designer have a responsibility to consider safety risks for construction workers? Do contractors have a responsibility to subsequent buyers for building flaws? If no bodily harm or injury has occurred, is a non-contracting person owed an obligation for pure economic loss?
In the scenarios mentioned above, the duty of care has not been decided uniformly across jurisdictions. If the plaintiff and defendant have a prior relationship, the duty of care is easier to prove. For instance, in the absence of any clauses to the contrary, the duty of care can be more easily proven if the parties have a contract. The duty of care problems that have been addressed by the courts are briefly summarised in the parts that follow.
Duties of Care for Architects and Engineers
Even if there isn’t a contract between them, consulting engineers and architects both have a duty of care to safeguard owners. In Surrey (District) v. Carroll-Hatch and Associates, the structural engineer was employed by the architect rather than the owner under a contract. The soil issues worried the engineer, who alerted the architect. The engineer was judged responsible for breaching his duty of care since he neglected to inform the owner. The same finding has been reached by American courts. Therefore, liability could exist whether or not there is a contractual relationship. Whether a designer who creates plans and specifications for a bid owes a duty of care to the winning bidder for losses brought on by mistakes in those plans and specifications is another matter of duty of care. In the case of Edgeworth Construction Ltd. v. N.D. Lea & Associates Ltd., the Supreme Court of Canada, examined this question and came to the conclusion that the design firm owed the bidder a duty of care. This conclusion was based, in part, on the fact that the bid period is too brief to permit bidders to perform an in-depth review of the accuracy of the engineering work and that it would be expensive to duplicate the work. So, people who provide information to bidders must be trustworthy. However, the claim against the specific engineers who sealed the designs was rejected in the Edgeworth judgement. Some engineers have erroneously believed that this ruling completely precludes any lawsuit by the particular engineer who created or sealed the drawings against a plaintiff.
Remember that a careless contractor cannot usually hold the designer responsible for the designer’s inability to identify and correct the contractor’s errors. The same failing, though, is the designer’s fault, according to the owner. The obligation of the designer to the contractor is not always clear, whereas the designer almost always owes the owner both a contractual duty and a duty in tort. Those few instances where the courts have recognised such a duty have drawn criticism because they permit the contractor to escape liability for negligence and breach of contract and instead place that responsibility on the architect. Whether a design expert can be held accountable to a worker for harmful work practises is another crucial duty of care question. In most cases, design experts are not in charge of the actual building. Absent specific contractual language to the contrary, industry culture and practise implies that contractors are accountable for the means, methods, and techniques of construction. These obligations are strengthened by the CCDC 2 contract between the owner and general contractor. The designer may be held to owe a duty of care to employees for safety issues, nevertheless, if they agree to be in charge of overseeing construction.