Inspection is not something to be carried out lightly. Many architects simply wander onto the site with no very clear idea of what they expect to find, nor indeed what they should be looking for. The RIBA Agreements do not deal in detail with inspection of the Works. They simply require the architect to make visits to the construction Works in connection with general inspection of progress and quality of work; for the approval of any elements reserved for the architect’s approval; for obtaining information necessary for the issue of notices, certificates and instructions at intervals reasonably expected to be necessary at the date of the appointment; and to advise if a clerk of works is necessary. It must be recognised that the number of visits is only an estimate.
It is perhaps cynical to say that a court will find that an architect’s duty is to find just those problems that have been missed.
Nevertheless, architects may have difficulty in ensuring that they are not open to legal action from their clients for failure to inspect adequately. The best safeguard for any architect is to be able to demonstrate to a court that their inspection duties were carried out in an organised manner, having regard to what the courts have said. Therefore, before commencing an inspection of the Works, the architect must have a plan of campaign as follows:
• Inspections should have a definite purpose. They should coincide with particular stages in the Works. It is sensible for the architect to sit down beforehand and draw up a list of parts of the construction that must be inspected on that particular visit, together with items of secondary importance to be inspected if possible. The composition of the list and the frequency of inspections will depend on factors such as the employment of a clerk of works, the size and complexity of the project and the experience and reliability of the contractor. Comments can be made against the checklist as the inspection progresses. The list and the comments are for the architect’s own files, not for distribution. Although an architect’s inspection duties are quite onerous, he or she will be better able to mount a defence in court against an allegation of negligent inspection if, by reference to contemporary notes, it can be shown that inspections were carried out in an organised manner.1
• Times of inspections should be varied so that a devious contractor cannot rely upon concealing poor work between inspections.
• The architect should always finish an inspection by spending a few minutes inspecting at random.
• Action should be taken as soon as the architect returns to the office, whether or not any defects have already been pointed out to the site manager. It is wise to put in writing all comments regarding defective work.
• During site inspections, the architect is bound to be asked to answer queries. It is prudent to give answers on return to the office when it is possible to sit down and calmly assess the situation. Many decisions made on site are either amended or regretted later.
An architect’s failure to inspect will not excuse a contractor from maintaining proper quality control systems. The contractor has undertaken to carry out the Works in accordance with the contract, not to carry out the Works to as low a standard as possible unless the architect notices. Nevertheless, although the architect owes no duty to the contractor to find defects,2 the client is entitled to expect the architect to carry out such inspections as will identify serious defects and a reasonable proportion of minor defects.
If a detail is more complex than usual, the architect will be expected to take more care in inspecting. Just because it is difficult to inspect something does not mean that inspection is not necessary. It is even more necessary, in fact, because the contractor might be relying on the difficulty of inspection to attempt to get away with defective work. If work, by its very nature, is being covered up almost as soon as it is done, the architect might argue that there is little point in inspecting because, although the operatives will carry out the work properly while the architect is there, they will revert to poor workmanship as soon as the architect goes. In fact, that is a cogent reason for continuous inspection of that particular element.3 The architect’s knowledge of the skill and experience of the contractor is an important factor; more time must be spent inspecting the work of an inexperienced contractor. It will usually avail the architect nothing to say that reliance was placed on the contractor’s assurance that everything had been properly executed. But if an architect has a great deal of experience with the work of a particular contractor and knows it to be good, reliable and conscientious, less inspection should be needed.
The number of visits and their duration is not the test of adequate inspection. The key is the number of visits necessary. Therefore, it is no defence for an architect to say, ‘I visited twice a week for an hour each time’. Such a schedule may be excessive in some instances and insufficient in others. Moreover, an architect should expect to have to visit site more often at some stages of the work, occasionally spending full days if very important work is being done. The leading authority on the architect’s duty to inspect is the decision of the House of Lords in East Ham Corporation v Bernard Sunley & Sons Ltd:
As is well known, the architect is not permanently on the site but appears at intervals, it may be of a week or a fortnight, and he has, of course, to inspect the progress of the work. When he arrives on the site there may be very many important matters with which he has to deal: the work may be getting behind hand through labour troubles; some of the suppliers of materials or the sub-contractors may be lagging; there may be physical trouble on the site itself, such as, for example, finding an unexpected amount of underground water. All these are matters which may call for important decisions by the architect. He may in such circumstances think that he knows the builder sufficiently well and can rely upon him to carry out a good job; that it is more important that he should deal with urgent matters on the site than that he should make a minute inspection on the site to see that the builder is complying with the specification laid down by him . . . It by no means follows that, in failing to discover a defect which a reasonable examination should have disclosed, in fact the architect was necessarily thereby in breach of his duty to the building owner so as to be liable in an action for negligence. It may well be that the omission of the architect to find the defects was due to no more than an error of judgment, or was a deliberately calculated risk which, in all the circumstances of the case, was reasonable and proper.
These are comforting words, but it is important to give them due weight in the light of other decisions. A useful summary of the legal position is given in McGlynn v Waltham Contractors & Others (No.3).4
There are two possible reasons why there may be a problem with work covered up. The first is that the work may be defective; if covered up, the defects may not make themselves known until after the employer has taken possession of the completed building, with all the consequent disruption while remedial work is undertaken. The second reason is that some of the work covered up may need measuring in order to value and certify.