The AGS Loss Prevention Guidance 2017 was published on Members Day at the National Motorcycle Museum in April and is available free to all AGS members here
The Guidance is a series of documents providing members with an invaluable body of advice on many of the particular issues that affect our potential legal liabilities and associated financial exposure.
The Guidance was originally published as a series of Papers over a period of several years dating back to 2000 and known then as the Loss Prevention Tool Kit. This has only ever been available in hard copy, originally in its own hard back folder – a few of which may still exist no doubt on dusty shelves.
Over the last couple of years the Loss Prevention Working Group grew increasingly concerned;
1. that the information in the Tool Kit was no longer readily accessible to most member companies,
2. that most practitioners were completely unaware of its existence and the advice it contained and
3. perhaps most importantly, that there was clearly a potential for some of the advice and cases cited to have been superseded by more recent law, regulation, judgement or commercial practice.
It was clear to the Group that radical action was required to either ensure that the advice was current and relevant or to consign it all to the dustbin of history. The brave decision was taken to bite the bullet and see whether we could resuscitate this sleeping giant.
The main challenge was to ensure that the legal basis and cases quoted were current and this challenge was met through the efforts of Zita Mansi of BLM (our legal advisors, provider of the AGS Legal Helpline and hosts of the LPWG) who managed to recruit a practicing barrister (Dominic Ruck-Keen) to review all of the original text at a cost within our (meagre) budget. Dominic’s review carried out in 2017 (hence the date in the title of the document) enabled the LPWG to conclude one of three outcomes:
i. The original legal basis remains current and thus confirmed to remain relevant to the issue described. No substantive legal edit required;
ii. The original legal basis relied upon has been superseded by more recent law or judgement. The Guidance has been amended accordingly and the relevant new legal basis is cited;
iii. The original legal basis has been completely superseded or replaced such that the advice provided is no longer relevant. The document has been withdrawn from the current edition of the Guidance (although the AGS retains a copy for reference).
The next task was to bring the twenty three papers together into a consistent and readable format that would encourage Members to read, digest and use the information. Because of the range of age of the original tool kit papers, they were presented in a myriad of styles, fonts and format (including some only available in Word Perfect). The LPWG has now turned this disparate series of papers into a coherent and readable whole. After a final review by AGS Senate and a lot of diligent editing by willing, or press ganged “volunteers” the Loss Prevention Guidance was ready for publication at Member’s Day.
We are determined not to let this 2017 Guidance suffer the fate of the Tool Kit and become a potential liability rather that the asset it undoubtedly is. Accordingly it will be subject to formal review at five yearly intervals by the LPWG (including specialist legal review). The Working Group will endeavour to ensure that any issues arising that affect the advice in any of the papers in the Guidance are addressed. This could be by the publication of an article in the Newsletter, by the preparation of a Loss Prevention Alert, and/ or by the amendment or withdrawal of the relevant paper in the Guidance. In addition to this formal review, AGS members are encouraged to provide comment, advice or suggestions for additional papers relevant to the Guidance which should be addressed to: The Secretary Loss Prevention Working Group at firstname.lastname@example.org
A brief summary of each of the Papers is presented following the Introduction of the Guidance and this will assist and guide all practitioners to Papers of relevance or interest and this is presented below. Members are encouraged to disseminate the advice contained in the Loss Prevention Guidance amongst their colleagues. Many of the issues addressed are relevant to staff mainly concerned with the commercial aspects of our business, to technical staff at a senior level dealing with clients and contracts etc. and also to staff approaching Chartership where awareness of the commercial and legal liabilities are an important part of demonstrating professional competence.
For further help on contract and liability issues Members are reminded that they can contact Berrymans Lace Mawer (020 7638 2811), quote the ‘AGS legal advice line’ and ask for Zita Mansi or Michael Salau.
The AGS Loss Prevention Guidance 2017 can be downloaded here.
This Article contributed by Hugh Mallett, Technical Director, BuroHappold Engineering in the May/June 2018 issue of the AGS Magazine which can be viewed here.
Summary of the Loss Prevention Guidance papers.
|AGS LPG No.||Title||Summary description|
|001||Limiting and Excluding Professional Liability||The consultant generally owes their client in contract and tort a duty to use reasonable care, skill and diligence in the work they carry out. This paper describes means by which consultants may limit liability in both tort and contract.|
|002||The Doctrine of Vicarious Liability||The effect of vicarious liability is to render one party liable to another by the tort of a third party. This paper describes that liability in tort is not the same as that in contract and the distinction between employees and contractors.|
|003||The Criminal Liability of Firms for the Acts of their Directors and Employees||Companies and partnerships can act only through their staff – their directors/partners and employees. This paper sets out to what extent firms are responsible in criminal law for the acts of their staff.|
|004||The Liability of the Individual within the Contracting or Consulting Firm||Because of the rule of vicarious liability where an employee is negligent so causing loss, the party suffering loss will normally sue the employee’s employer. This paper describes how the individual can also be sued and recommends sensible precautions for employees.|
|005||Liability for Independent Contractors||Generally, companies are not liable in tort for the acts of their independent contractors. However, some important exceptions to this rule are described in this paper.|
|006||Different Legal Structures/Forms for a Consulting or Contracting Undertaking||This paper describes the various legal forms a consulting or contracting organisation are likely to take and how this can affect the liability of its owners, managers and employees, as well as the organisation’s liability in its own right.|
|007||Understanding “Fitness for Purpose” and “Skill and Care” Obligations||This paper describes the essential differences between Fitness for Purpose” and “Skill and Care” Obligations, the associated risks and implications for insuring against those risks.|
|008||The Law of Limitation||This paper describes how the law of limitation is designed to protect possible defendants from proceedings relating to old claims.|
|009||The Bare Agreement||Parties to a contract for professional services may agree what the professional is to do but with no other terms defined. This paper describes the issues around a contract based upon implied terms.|
|010||The Basics of Contract||A contract is a bundle of promises that the parties to the contract make to each other. This paper describes the Agreement, Consideration, legal relations and other basic provisions of a contract.|
|011||The Contracts (Rights of Third |Parties) Act||This paper describes the provisions of the Act and how a third party may enforce a contractual term in a contract. Risks are described and recommendations to mitigate those risks presented.|
|012||Common Contract Breaches Committed by Consultants||Some of the common types of breach of contract committed by consultants are described. An overview is presented of the contractual obligations often set out in consultants’ appointments and the ramifications of breach.|
|013||Consultants Undertaking Ground Investigation Contracting||This paper describes the issues faced by consultants in undertaking ground investigation contracting services within the scope of their services. The risks and strategies to mitigate those risks are set out.|
|014||Obligations in Tort||This paper describes how, in addition to contractual obligations the law of torts may also impose obligations to persons who are not parties to the agreement. The tort of negligence, usually the most important to the ground engineering specialist, is described.|
|015||Conflicts between a duty of Confidentiality owed to a Client and a Legal or Moral duty to assist the Authorities||Specialists owe a duty of confidentiality to their client. Conflicts of interest can arise where the regulatory authorities (for example, the Environment Agency) ask for information about or relating to the client’s affairs. This paper describes some of the difficulties in this conflict and advises how they may be reconciled.|
|016||Professional Indemnity Insurance Checklist||This paper presents a checklist of issues that a consultant undertaking professional services should consider when procuring professional indemnity insurance.|
|017||Business Liability Insurance||This paper provides an introduction to various business insurances, other than professional indemnity insurance which are often taken out by smaller companies, consultants and contractors.|
|018||Controlling the Risks of Working Alone||This paper presents advice to member organisations employing people who will at times be working alone.|
|019||Disclaimers in Reports||Ground engineering specialists producing reports often insert disclaimers intended to limit the scope of liability. This paper discusses the legal effect of disclaimers and provides relevant advice.|
|020||Alternative Dispute Resolutions||This paper describes Alternative Dispute Resolution and the traditional forms of dispute resolution, litigation and arbitration.|
|021||Adjudication||This paper describes the nature of adjudication, adjudication pursuant to the HGCRA and the 10 pre-conditions to adjudication under the HGCRA .|
|022||Sources of Advice for Expert Witnesses||This paper provides a brief description of sources of advice for environmental and ground engineering specialists acting as Expert Witnesses|
|023||Freedom of Information Act||This paper provides information on the Freedom of Information Act, its implications and how it can affect AGS members and their clients.|