COVER FEATURE
Liability of Professional Consultants in a Construction Project
By Lam Wai Loon Amy Hiew Kar Yi Partner , Harold & Lam Partnership
Ooi Hui Ying Senior Associate , Harold & Lam Partnership
COVER FEATURE
Although construction claims disputes commonly involve disagreements between employers , contractors , and various parties in the construction contracting chain , it is important to note that professional consultants , such as architects , engineers , and quantity surveyors , may also find themselves entangled in disputes related to their fees and the consultancy services they offer for the projects they participate in .
Professional consultants are usually engaged by the employer at the very early stage of a project , even before the actual implementation of physical works at the project site . Their services in a typical construction project would include the preparation and submission of plans and drawings , providing advice in connection with any feasibility study , planning , survey , design , construction , commissioning , operation , maintenance , and management of the project construction works , and providing advice on costs and budgeting .
In a construction project , professional consultants hold a crucial position . They are tasked with executing their responsibilities with professionalism , independence , and impartiality . Should these consultants fail to meet their contractual or professional duties , or engage in fraudulent behaviours , they may face claims from the employers and potentially even the contractors , especially if these actions result in losses for the employers or contractors .
This article will delve into the issue of the liability of professional consultants in a construction project , shedding light on the stance taken by Malaysian Courts regarding this issue .
Liability of Professional Consultants in Contract and / or Tort
A professional consultant may be liable to his employer in contract or tort of negligence , or even both . In cases where a contractual relationship exists between the employer and the consultant , there is deemed reliance by the employer on the consultant ' s expertise and diligence in fulfilling their obligations as outlined in the consultancy contract . Beyond the contractual duties , professional consultants also owe a tortious duty of care to the employer , necessitating the use of reasonable skill and care in executing their professional responsibilities in a project .
In a standard construction project , professional consultants are typically appointed directly by the employer . In addition to the express terms of appointment set out in the construction consultancy contract , there is an implied term that the professional consultant will perform their duties with reasonable skill and care . Further , a construction consultancy contract would typically set out the repercussions or remedies available to the employer in the event of the consultant ’ s breach of contract . These specified consequences
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