Reference to the production of a disclaimer or waiver/dispensation document, is frequently made by Landscape Contractors seeking to mitigate or absolve their company from liability and responsibility in a case of a potentially difficult situation where unknown factors may arise during works. Often, the subject may be raised by the customer when the contractor is nervous of committing to a plan of action proposed by the client
Recognising that a particular project, or part thereof, may present problems they do not want to take responsibility for – for example, the removal of a large hedge in a garden – and a request is made to, or offered by the owner, to write a letter of disclaimer or waiver allowing the Contractor to abdicate all liability for any Legal actions that may arise if they become involved in carrying out the works.
The Contractor is unsure about certain elements of the project, due to factors that are outside his control or experience, or reluctance to accept responsibility for potential problems for circumstances beyond his immediate knowledge, but does not want to jeopardise securing the work by declining the disclaimer offer.
However, such documents can become legal minefields, and should not be relied upon under any circumstances. It is not possible to opt out of your Duty of Care and ignore professional due diligence with a piece of paper.
Let us take the example of the felling and removal of a semi-mature tree in a private garden, which the owner believes is not subject to a Tree Preservation Order, and therefore can be removed without any need for officialdom or formal permission, simply because there is no TPO they are aware of, and pass this information on to a Contractor.
The Contractor, wishing only to supply a price for the work, asks the owner to confirm that the tree is not subject to a TPO. To cover themselves, the Contractor asks for a letter of waiver in the event of any problems with the project, thinking that such a letter will protect them from any future legal problems.
The letter of waiver may be specific, confirming that the tree is not subject to a TPO, or more general, if the Contractor has recognised potential issues with falling branches unavoidably risking damage to a fence or greenhouse (for example) and is reluctant to carry out the work and be liable for any such damage.
Although legal in their own right, waivers cannot be used to protect the Contractor from their actions if any part of the works or actions can be alleged to be negligent or carried out without due care and attention and due diligence.
Any injuries or damage that may result from the works, or legal enforcement notices that may follow the removal of the tree – or subsequent ground heave or contraction that may be considered a factor in future subsidence or damage to buildings and their foundation – will not release the Contractor from their legal obligations unless previous due diligence can be illustrated and proven.
SOME LEGAL COMMENTS
In English Law of Tort, sometimes known as Common Law, an individual owes a Duty of Care to another to ensure they do not suffer any unreasonable loss or harm, the key word being ‘unreasonable’.
It is the first consideration or legal obligation imposed on an individual requiring a certain standard of reasonable care.
To proceed with a claim of negligence, failure to provide that Duty of Care is a fundamental element of a Claim.
To prove negligence, the Claimant must first of all establish that another person has failed to provide that reasonable level of care such as may be called a Breach of that Duty. Once proven, a claim for damages may proceed.
RESPONSIBILITIES
Following the trail from enquiry into contract, the owner of the tree may believe that there is no TPO in existence as far as they are aware. When the Contractor queries the existence of a TPO, only to be told that the client is happy that the tree is free from any Order, the owner may believe that matter as a fact.
It is however, the responsibility of the Contractor to check the veracity of that belief, by checking with the Local Authority Tree Officer, the true status of the tree (or confirm that a blanket TPO order is not in existence) before providing a quotation. A note to that effect should be included in the quotation.
By requesting a waiver, the Contractor is admitting they have recognised potential problems, and by offering one, the owner is also highlighting the fact that he recognises that there are questions that have not been fully examined.
What wording should be included in the ‘perfect’ waiver? Absolution from everything? No responsibility to check the legality of removing the tree? The potential for future ground issues without checking first with a qualified surveyor? Carrying out risk assessments knowing that there could be potential dangers and possibility (probability?) of collateral damage to the site?
A waiver is essentially a demonstration, in writing, that the Contractor relinquishes all responsibilities and the owner (or producer of the waiver) is voluntarily giving up their right to claim in the event of any problems.
However, any form of negligence on the part of the Contractor will automatically nullify the validity of the waiver letter, as the legal obligations of Duty of Care, which exists to avoid risk of damage or injury to a person or property that may be reasonably foreseen. Any omission in Duty could well be actionable in a Court of Law, despite the existence of the waiver
The example of a tree is a simple straightforward one. There are many other situations that may be deemed suitable for waivers. These may include design features, which may impact on the garden or neighbouring sites. Drainage systems, designed to take water away from a site, can also bring water into the grounds, due to ground water pressures in neighbouring sites, or cause flooding and heave issues to neighbours on lower grounds.
Without undertaking full surveys conducted by qualified, insured specialists, a letter of waiver will not protect a negligent designer from their actions.
A waiver may appear a simple document, to be produced by the Contractor and signed by the owner, or offered by the owner to be signed by the Contractor, but unless they have been properly drafted, by a Solicitor (and counterchecked by your own lawyer) they have the potential to cause many problems in the event of a project that fails or becomes legally problematic for any reason.
It is worth remembering that the existence of a waiver will be taken as a recognition that there are potential problems that have been identified, albeit partially, by a Court in the event of a Claim for injury or damage. Unless a fully detailed site survey and working method statements have been produced by the Contractor to cover the works, the waiver will have little value as an insurance policy against claims for damages.
DISCLAIMERS
If you design a Safety Feature into a garden scheme i.e. a handrail or safety barrier, and the client decides they do not want to have this item constructed or included in the quote, you must get a written Disclaimer from the client expressly asking you not to include that item.
If you have designed it as part of your scheme , in compliance with Regulations and they do not want it included in the actual works programme, they must issue a Notice of Disclaimer (which may a simple yet specific letter titled as such) stating that they accept full responsibility for the exclusion of that safety feature.
Such features may be safety barriers, but also step heights, or any other design element that you feel should be included in your plan to render the site as safe and secure as possible in your opinion. (Some matters such as Play Garden Construction Regulations cannot be subject to Disclaimers due to the very specific rules in place regarding depth of ground cover for example) The use of No Responsibility Disclaimers will limit your liability for damages.
This Notice of Disclaimer is a clear written warning to the customer that you are specifically drawing their attention that there is a real risk of injury or harm that you have highlighted and mitigated in your design, and that you strongly advise against exclusion.
www.landscapelibrary.co.uk Alan Sargent May 2020