Design
Design
79 Can the architect escape liability for
defective design by delegating it to a
sub-contractor?
In general, the answer to this question is ‘No’. However, the precise terms of the architect’s engagement by a client will obviously have some bearing. It is possible that an architect can have exclusions of liability for design written into the terms of engagement with a commercial client, but note that such terms will be effective only if they satisfy the test of reasonableness in the Unfair Contract Terms Act 1977. If the architect has entered into an engagement with a client on one of the RIBA Agreements or on a simple exchange of letters, that architect will have overall responsibility for design of the project. The only way in which the architect can avoid that liability is if the client specifically so agrees.
In Moresk Cleaners Ltd v Thomas Henwood Hicks,1 the client was a dry cleaning and laundry company. It engaged the architect to prepare plans and specifications for the extension of its laundry. Unknown to the client, the architect had delegated the design of part of the building to specialist sub-contractors. Subsequently, cracks appeared in the structure that were found to be design defects. It was held that the architect had no power to delegate duties to others without the permission of the client.
In a more recent case, an engineer relied on a specialist sub-contractor to design vibro replacement, but substantial settlement occurred.2 The court held that the engineer was not negligent for relying on the advice of the specialist, and it set out some principles. The court referred to ‘construction professionals’, and the principles are applicable to architects:
(1) Construction professionals do not by the mere act of obtaining advice or a design from another party thereby divest themselves of their duties in respect of that advice or design.
(2) Construction professionals can discharge their duty to take reasonable care by relying on the advice or design of a specialist provided that they act reasonably in doing so.
(3) In determining whether construction professionals act reasonably in seeking the assistance of specialists to discharge their duty to the client, the court has to consider all the circumstances which include:
(a) whether the assistance is taken from an appropriate specialist;
(b) whether it was reasonable to seek assistance from other professionals, research or other associations or other sources;
(c) whether there was information which should have led the professional to give a warning;
(d) whether and to what extent the client might have a remedy in respect of the advice from the other specialist;
(e) whether the construction professional should have advised the client to seek advice elsewhere or should themselves have taken professional advice under a separate retainer.
The RIBA Agreements contain important provisions that allow the architect to advise on the need to appoint consultants to carry out specialist design. In such instances, the architect is clearly not liable for any defects in the consultants’ designs. This point is emphasised in the RIBA Standard Agreement 2010 (2012 revision), in which the client undertakes that where a person is appointed to perform specialist services, the architect will not be responsible for such services. This is a most important provision that protects the architect, and a forerunner of this clause has been upheld by the courts for the architect’s benefit.
Obviously, if the architect fails to advise a client on the appointment of specialist designers, the client will be entitled to assume that the architect will retain design responsibility in those areas. It is not sufficient that the specification or bills of quantities refer to design by specialist consultants or sub-contractors, nor even that the contract versions incorporating contractor designed portions are used (such as in ICD or MWD). The architect will be responsible to the client for all design unless the client has been expressly informed otherwise and has consented. Clearly this is best done in writing. An architect who does advise the transfer of design responsibility to others has a clear duty to ensure that appropriate contracts and warranties are put in place to protect the client in the event that there are defects in the transferred designs. Failure to put such matters in train may well amount to serious professional negligence on the part of the architect.
80 If the architect completes the design but is
asked to make changes, is that simply ‘design
development’?
The term ‘design development’ is frequently used by clients when they do not want the architect to charge for making alterations to the design. It must be clearly understood that it is not a term whose meaning is generally accepted as a term of art, and if it came before a court, the court would try to give it its ordinary everyday meaning. Most dictionaries define ‘development’ as a ‘fuller working out’ or a ‘more elaborate form’. That, of course, is not a change.
In this context it is useful to examine the design process. In essence, it is fairly straightforward. It is the client’s duty to clearly tell the architect what is required. The architect has an important role in teasing out the information and in separating the ‘needs’ from the ‘wants’, but eventually there should be a reasonably comprehensive set of requirements (the ‘brief’). It is the architect’s task to satisfy the brief with the design. If the design, viewed objectively, can be said to satisfy the brief, the architect’s task is completed for that stage. It is often the case that after having seen the brief set out as a design, the client will realise that some of the requirements in the brief were misguided or unnecessary, but that does not detract from the fact that the architect has completed that stage.
In practice, most architects will amend the design without charge, sometimes quite extensively, to satisfy the client’s changes of mind. It is this willingness which is probably responsible for the general view that it is the architect’s task to keep changing the design until the client is satisfied with it. One wonders what the reaction of a painter and decorator would be if a client, having requested a room painted in dark green, had a change of mind on seeing the result and expected the painter to redecorate in beige at no extra cost; then, dissatisfied with the beige, decided on light blue and so on. Although the analogy is not perfect, it is somewhat similar to what architects are commonly expected to do. Once the architect has satisfied the client’s brief, all future changes should be subject to a charge. What can be described as ‘design development’ occurs when the initial designs, commonly referred to as sketch designs, satisfy the brief and the client does not want any changes. The architect then develops the design by putting in more detail (still in accordance with the client’s brief).
In this way, the design develops by being extended and clothed in details, eventually becoming a set of construction drawings. That is the normal process of design development for which the architect charges a fee agreed before the services commence. Architects are entitled to charge additional fees for changes to the design resulting from changes to the brief. That is not ‘design development’; it is simply ‘change’.
81 Is the contractor liable for something done
on its own initiative?
It is surprising how often this question arises, typically when a contractor, working under a JCT traditional contract, knows broadly what is required but does not have drawings or specification which show the detail precisely. The contractor thinks it knows what to do and carries on with the work to its own detail. Subsequently, the detail fails with serious consequences. It might be a badly constructed roof detail, an inadequate stanchion base or perhaps wrongly positioned heating pipes. Who is liable? Under SBC, IC and MW, the contractor has no liability for design. Even where ICD and MWD are used, the contractor’s liability for design is confined to those items clearly listed in the contract particulars. Under a traditional contract, the architect designs and the contractor constructs in accordance with the designs.
Provided that the contractor constructs exactly as drawn or specified, it is likely to have little liability for the result unless the defect is so obvious that the contractor should have warned the employer of the potential danger. However, the position changes if the contractor is not provided with sufficient information to enable it to construct the particular detail. In such situations, it is for the contractor to ask the architect for the missing information. In practice, a contractor may find itself in a situation where it is keen to make progress, but there is no detail. If it pauses until the detail has been requested and eventually provided, there may be a delay of which the contractor has to notify the architect and hope for an extension of time which is by no means certain. If the contractor, thinking it knows what is required, presses on with the work, it places itself in a difficult situation.
There are two problems for the contractor. First, the architect, on seeing the solution which the contractor has adopted, may instruct the contractor that it is not in accordance with the contract and must be removed. That would be strictly correct: The contractor’s work is not in accordance with the contract, because the contract documents do not show what the contractor has done; in fact they show nothing regarding the detail in question. Second, even if the architect does not notice what has been done, there may be a defect that causes a problem – in the worst case, perhaps a collapse. The contractor cannot blame the architect, because the architect has not designed the detail which has been built. In such circumstances, it is likely that the contractor has assumed responsibility for the design.3