Expert’s retainer - duty to warn - negligence
A tree on Defendant 1’s land fell and onto the Claimant’s train line, causing damage to a train and other costs. The Claimant sued Defendant 1 (the owner of the land) and also Defendant 2, a tree surgeon who had worked on the tree in the past, but who (it was alleged) had failed to give Defendant 1 the proper advice or warning about the state of the tree.
Dismissing the claim, Coulson J held in favour of the tree surgeon, Defendant 2 on the following grounds:
1) Defendant 2 was retained by Defendant 1 to carry out specific work. He gave his opinion as to how that work was to be carried out. He had not been asked to inspect the tree and he did not do so;
2) A specific retainer to carry out discrete work did not carry with it a general duty to review the condition of the tree and advise on it generally;
3) The specific work which he had been instructed to carry out did not mean he was negligent in failing to notice and warn about the condition and need for work on other, damaged and failing parts of the tree. Such a duty to warn would on arise if there was something obviously dangerous about the condition of the tree, which there was not; it appeared healthy.
This is an interesting case because it deals with the scope of an expert’s duty, and in particular a general “duty to warn” arising out of a retainer to do specific work. At various points in the last 30 or 40 years, the scope of an expert’s responsibility has waxed and waned, but the position now seems clear; an expert retained for a specific task does not thereby undertake a general duty to advise (and thus he does not have general responsibility for any failure to advise). This is obviously right and sensible, although (a) in hard cases, it is often tempting for claimants to throw in allegations based on a failure to advise generally, particularly where there is little else to go on and the expert involved is the only insured defendant, (b) the lack of such a general retainer will not save the expert where there is something obviously wrong and which he should spot (the “duty to warn” case), and last but not least, (c) where a professional is under a general duty to advise, then of course the expert’s position is all the harder. What is encompassed within such a general duty? Does it require the expert to undertake a roving commission to discover and advise upon everything he needs to know about everything conceivably wrong with what he is instructed to look at? Is it fact and circumstance specific, so that if the fee is modest so too is the scope of the investigation required? The judge did not have to consider all of those things in this case because of the narrowness of the retainer, but they are difficult questions for experts who have to deal with them every day in practice.