Atwal Enterprises Ltd v Donal Toner

[2006] CSOH 76, 12 May 2006. A employed D under a professional services contract to act as architect for a football complex. The contract provided that D inspect the pavilion and pitches. D had no design input, which was left with a sub-contractor. Due to porous foundations, the pitches became dangerous in wet weather. D issued a defects liability certificate and final certificate. As both the contractor and sub-contractor had gone into liquidation, A sued D for professional negligence. "Held": D had been informed by A within weeks of completion of the project that there was ponding on the pitches. D raised the matter with the contractor, but did not investigate directly with the sub-contractor; had D done so, it was reasonable to assume that he would have realised that the work had been carried out incorrectly and caused it to be rectified. In the circumstances, D had been professionally negligent not to investigate, not to withhold money or the practical completion certificate, and not to obtain a warranty from the sub-contractor.