Reasonable Skill & Care vs Fitness for Purpose
In the framework of engineering contracts, there are generally two standards of duty which can be imposed on an engineer: reasonable skill and care and fitness for purpose. In our first article covering the commercial side of professional engineering, we take an in-depth look at the differences between the two standards of duty in the context of contracts executed by engineering professionals. We investigate how and when each standard of duty is likely to be imposed in a contract and we identify the implications of each standard from the perspective of both the client and engineer.
Finally, we take look at a pertinent real-world case study of MT Højgaard A/S v E.On Climate & Renewables UK Robin Rigg East Limited, which highlights the importance of understanding these terms in a contractual context.
To learn more on this subject, visit the complete article on Fitness for Purpose vs Reasonable Skill and Care, otherwise, if you're looking for a quick 60-second summary take a look at the table below.
Table 1: A brief comparison of fitness for purpose and reasonable skill and care
| Fitness For Purpose | Reasonable Skill and Care | |
| Standard of Duty | A higher standard of duty. Requires that the engineer provide a design which is fit for an intended purpose. This simply means that the engineer agrees that the design will meet the client’s requirements, whatever they may be. The client’s requirements may be set out exhaustively in a detailed specification or the client may seek to protect themselves by ensuring that the requirements are intentionally broad. | A lower standard of duty, the engineer need only live up to the prevailing standards in their profession; however, be careful - you can't just blindly copy the work of your peers! |
| Statutory Situation | Common law automatically confers this standard of duty onto Design and Build contractors who are responsible for developing a design and then executing the manufacture, procurement and/or construction of the completed works. | In the case of an engineering consultancy responsible simply for providing a design to their client, in the absence of an express contractual agreement of fitness for purpose or an agreement that the design will meet a specific criterion, common law implies that the consultant will be obliged to use reasonable skill and care and no more. This is broadly in line with the UK statutory requirements laid forth in the United Kingdom Supply of Goods and Services Act 1982 |
| Risks for the Engineer | A higher standard of duty, the risks are higher and therefore the engineer's Professional Indemnity Insurance (PII) is not likely to cover a fitness for purpose obligation. | Limited risk to the engineer; however don't be fooled into thinking you can just emulate the work of others in industry - see 199 Knightsbridge Development Ltd v WSP UK Ltd. [2014] EWHC 43 (TCC). |
| Risks for the Client | Limited risk; however in the event of a claim, if the engineer’s insurance won’t pay out, then the scope for recovery of cost by the client may be significantly reduced and could be dependent on the ability of the engineer’s organisation remain solvent and pay out alone. | Highest risk, only relying on reasonable skill and care infers that the Client has not been able to define specific performance requirements. In the event of a claim, the client has to demonstrate that the engineer made a negligent error, which is very difficult to do. |