Liability for building design - Revision history

Designing Buildings at 10:36, 4 September 2020

2020-09-04T10:36:04Z

← Older revision		Revision as of 10:36, 4 September 2020
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	* George Hawkins v Chrysler (UK) Ltd and Burn Associates.		* George Hawkins v Chrysler (UK) Ltd and Burn Associates.

−	[[Category:~~Other_legislation~~]] [[Category:DCN_Legislation]] [[Category:Appointments]] [[Category:Contracts_/_payment]] [[Category:Design]] [[Category:Procurement]]	+	[[Category:DCN_Case_Law]] [[Category:DCN_Definition]] [[Category:DCN_Guidance]] [[Category:DCN_Legislation]] [[Category:Other_legislation]] [[Category:Appointments]] [[Category:Contracts_/_payment]] [[Category:Design]] [[Category:Procurement]]

Editor at 18:08, 6 August 2019

2019-08-06T18:08:34Z

← Older revision		Revision as of 18:08, 6 August 2019
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	* Design responsibility matrix.		* Design responsibility matrix.
	* Fitness for purpose.		* Fitness for purpose.
		+	* Insurance terminology.
	* Joint and several liability.		* Joint and several liability.
	* Joint names policy.		* Joint names policy.
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	* George Hawkins v Chrysler (UK) Ltd and Burn Associates.		* George Hawkins v Chrysler (UK) Ltd and Burn Associates.

−	[[Category:Other_legislation]] [[Category:Appointments]] [[Category:Contracts_/_payment]] [[Category:Design]] [[Category:Procurement]]	+	[[Category:Other_legislation]] [[Category:DCN_Legislation]] [[Category:Appointments]] [[Category:Contracts_/_payment]] [[Category:Design]] [[Category:Procurement]]

Editor at 15:06, 6 August 2019

2019-08-06T15:06:02Z

← Older revision		Revision as of 15:06, 6 August 2019
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	* Opening up works for inspection and testing.		* Opening up works for inspection and testing.
	* [[Pirelli_General_Cable_Works_Ltd_v_Oscar_Faber_%26_Partners\|Pirelli General Cable Works Ltd v Oscar Faber & Partners.]]		* [[Pirelli_General_Cable_Works_Ltd_v_Oscar_Faber_%26_Partners\|Pirelli General Cable Works Ltd v Oscar Faber & Partners.]]
		+	* Post-completion insurance
	* Professional Indemnity Insurance.		* Professional Indemnity Insurance.
	* Reasonable skill and care.		* Reasonable skill and care.
	* Strict liability.		* Strict liability.

−	=== External references ===	+	= External references =

	* Keating Chambers: Professional negligence in the construction field.		* Keating Chambers: Professional negligence in the construction field.

Editor at 16:25, 1 February 2019

2019-02-01T16:25:08Z

← Older revision		Revision as of 16:25, 1 February 2019
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	* Appointing consultants.		* Appointing consultants.
		+	* Architectural practice.
	* Collateral warranties.		* Collateral warranties.
	* Consultant switch.		* Consultant switch.

Editor at 15:09, 8 November 2018

2018-11-08T15:09:21Z

← Older revision		Revision as of 15:09, 8 November 2018
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	Section 1 of the Defective Premises Act 1972 provides that a contractor building a residential dwelling or converting or enlarging an existing dwelling, has a statutory duty to ensure that the building work '...is done in a workmanlike or, as the case may be, professional manner with proper materials and so that as regards the work the dwelling will be fit for habitation when completed'		Section 1 of the Defective Premises Act 1972 provides that a contractor building a residential dwelling or converting or enlarging an existing dwelling, has a statutory duty to ensure that the building work '...is done in a workmanlike or, as the case may be, professional manner with proper materials and so that as regards the work the dwelling will be fit for habitation when completed'

−	The obligation is a statutory duty and exists without the need for a contract between the house owner and the contractor and for the benefit of future owners. However the duty will not apply if the dwelling is covered by the [http://www.nhbc.co.uk NHBC] Scheme.	+	The obligation is a statutory duty and exists without the need for a contract between the house owner and the contractor and for the benefit of future owners. However, the duty will not apply if the dwelling is covered by the [http://www.nhbc.co.uk NHBC] Scheme.

	Claims must be made no later than 6 years after completion of the work or any remedial work carried out by the contractor to rectify defects in his original work.		Claims must be made no later than 6 years after completion of the work or any remedial work carried out by the contractor to rectify defects in his original work.
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	= Building Information Modelling (BIM) =		= Building Information Modelling (BIM) =

−	As an interactive, collaborative, multi-partite, virtual design process, Building Information Modelling (BIM) creates a complex design liability scenario, often with subsidiary models feeding into a master coordinating model. For BIM, to be collaborative and fully effective, it needs to overarch the usual vertical bi-partite contractual structure of the design obligation (e.g. a specialist subcontractor design obligation will be set out in the subcontract with the main contractor who in turn sets out his responsibility with the client in the main contract).	+	As an interactive, collaborative, multi-partite, virtual design process, Building Information Modelling (BIM) creates a complex design liability scenario, often with subsidiary models feeding into a master coordinating model.
		+
		+	For BIM, to be collaborative and fully effective, it needs to overarch the usual vertical bi-partite contractual structure of the design obligation (e.g. a specialist subcontractor design obligation will be set out in the subcontract with the main contractor who in turn sets out his responsibility with the client in the main contract).

	Bypassing the certainty of this contractual structure could give rise to complex design liability issues, such as claims arising from the different duties of reasonable skill and care and fitness for purpose, software glitches, breach of the duty to warn, conflicts over insurance cover, claims under the Contract (Right of Third Parties) Act 1999 or contribution disputes under the Civil Liability (Contribution) Act 1978.		Bypassing the certainty of this contractual structure could give rise to complex design liability issues, such as claims arising from the different duties of reasonable skill and care and fitness for purpose, software glitches, breach of the duty to warn, conflicts over insurance cover, claims under the Contract (Right of Third Parties) Act 1999 or contribution disputes under the Civil Liability (Contribution) Act 1978.
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	In the ConcensusDocs 301 and the Architects Doc E202, both the contributors and the model element authors have a continuing duty to report design risks and failures.		In the ConcensusDocs 301 and the Architects Doc E202, both the contributors and the model element authors have a continuing duty to report design risks and failures.

−	~~= Find out more =~~	+	= Related articles on Designing Buildings Wiki =
−		+
−	=== Related articles on Designing Buildings Wiki ===	+

	* Appointing consultants.		* Appointing consultants.
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	* Design and build.		* Design and build.
	* Design and build - pros and cons.		* Design and build - pros and cons.
		+	* Design coordinator.
	* Design management.		* Design management.
	* Design responsibility matrix.		* Design responsibility matrix.

Editor at 12:32, 16 August 2018

2018-08-16T12:32:02Z

← Older revision		Revision as of 12:32, 16 August 2018
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	* In the absence of a contract, a design liability may arise in tort by reason of a duty to warn. This duty arises when a reasonably competent contractor should have realised that a design or elements of the design were likely to be defective.		* In the absence of a contract, a design liability may arise in tort by reason of a duty to warn. This duty arises when a reasonably competent contractor should have realised that a design or elements of the design were likely to be defective.

−	= Design and ~~Build~~ contractors =	+	= Design and build contractors =

	Subject to the express terms of the contract, there is an implied term that the design and construction will be fit for its purpose provided there is reliance by the client on design decisions taken by the contractor; for example, there is no reliance if the client insists on a particular construction method or material which subsequently fails.		Subject to the express terms of the contract, there is an implied term that the design and construction will be fit for its purpose provided there is reliance by the client on design decisions taken by the contractor; for example, there is no reliance if the client insists on a particular construction method or material which subsequently fails.
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	* Defective Premises Act.		* Defective Premises Act.
	* Design and build.		* Design and build.
		+	* Design and build - pros and cons.
	* Design management.		* Design management.
	* Design responsibility matrix.		* Design responsibility matrix.

Editor at 15:10, 2 May 2018

2018-05-02T15:10:02Z

Editor at 15:07, 2 May 2018

2018-05-02T15:07:06Z

← Older revision		Revision as of 15:07, 2 May 2018
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	= Introduction =		= Introduction =

−	Design is carried out by a range of construction professionals; the architect, structural engineer, services engineer, and more recently, specialist consultants (such as IT consultants), specialist contractors, subcontractors and suppliers. The design will be described in drawings, plans, specifications, building information models and by the selection of construction methods and materials.	+	Design is carried out by a range of construction professionals: the architect, structural engineer, services engineer and, more recently, specialist consultants (such as IT consultants), specialist contractors, subcontractors and suppliers.
		+
		+	The design will be described in drawings, plans, specifications, building information models, and by the selection of construction methods and materials.

	Design liability determines the standard of care that must be applied by the designer. English law and statute (Section 13 of the Sales of Goods and Services Act 1982 as amended by the Sale and Supply of Goods Act 1994) provides that the designer must carry out the design services with reasonable skill and care. This is analogous to the duty of care in negligence. In the case of Bolam v Friern Hospital Management Committee, the court applied the following test:		Design liability determines the standard of care that must be applied by the designer. English law and statute (Section 13 of the Sales of Goods and Services Act 1982 as amended by the Sale and Supply of Goods Act 1994) provides that the designer must carry out the design services with reasonable skill and care. This is analogous to the duty of care in negligence. In the case of Bolam v Friern Hospital Management Committee, the court applied the following test:
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	'.....where you get a situation which involves the use of some special skill or competence....( a designer) need not possess the highest expert skill.....it is sufficient to exercise the ordinary skill of an ordinary competent man exercising that particular art '		'.....where you get a situation which involves the use of some special skill or competence....( a designer) need not possess the highest expert skill.....it is sufficient to exercise the ordinary skill of an ordinary competent man exercising that particular art '

−	The Bolam case was concerned with medical negligence however it is clear from subsequent court decisions that the test applies to the design function in construction projects.	+	The Bolam case was concerned with medical negligence, however, it is clear from subsequent court decisions that the test applies to the design function in construction projects.

	= General considerations =		= General considerations =
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	* In the absence of a contract, a design liability may arise in tort by reason of a duty to warn. This duty arises when a reasonably competent contractor should have realised that a design or elements of the design were likely to be defective.		* In the absence of a contract, a design liability may arise in tort by reason of a duty to warn. This duty arises when a reasonably competent contractor should have realised that a design or elements of the design were likely to be defective.

−	= Design and Build ~~Contractors~~ =	+	= Design and Build contractors =

	Subject to the express terms of the contract, there is an implied term that the design and construction will be fit for its purpose provided there is reliance by the client on design decisions taken by the contractor, for example, there is no reliance if the client insists on a particular construction method or material which subsequently fails.		Subject to the express terms of the contract, there is an implied term that the design and construction will be fit for its purpose provided there is reliance by the client on design decisions taken by the contractor, for example, there is no reliance if the client insists on a particular construction method or material which subsequently fails.
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	* Novation.		* Novation.
	* Opening up works for inspection and testing.		* Opening up works for inspection and testing.
−	* [[Pirelli_General_Cable_Works_Ltd_v_Oscar_Faber_~~&_Partners~~\|Pirelli General Cable Works Ltd v Oscar Faber & Partners.]]	+	* [[Pirelli_General_Cable_Works_Ltd_v_Oscar_Faber_%26_Partners\|Pirelli General Cable Works Ltd v Oscar Faber & Partners.]]
	* Professional Indemnity Insurance.		* Professional Indemnity Insurance.
	* Reasonable skill and care.		* Reasonable skill and care.

Editor at 15:32, 17 January 2018

2018-01-17T15:32:25Z

← Older revision		Revision as of 15:32, 17 January 2018
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	As an interactive, collaborative, multi-partite, virtual design process, Building Information Modelling (BIM) creates a complex design liability scenario, often with subsidiary models feeding into a master coordinating model. For BIM, to be collaborative and fully effective, it needs to overarch the usual vertical bi-partite contractual structure of the design obligation (e.g. a specialist subcontractor design obligation will be set out in the subcontract with the main contractor who in turn sets out his responsibility with the client in the main contract).		As an interactive, collaborative, multi-partite, virtual design process, Building Information Modelling (BIM) creates a complex design liability scenario, often with subsidiary models feeding into a master coordinating model. For BIM, to be collaborative and fully effective, it needs to overarch the usual vertical bi-partite contractual structure of the design obligation (e.g. a specialist subcontractor design obligation will be set out in the subcontract with the main contractor who in turn sets out his responsibility with the client in the main contract).

−	Bypassing the certainty of this contractual structure could give rise to complex design liability issues, such as claims arising from the different duties of reasonable skill and care and fitness for purpose, software glicthes, breach of the duty to warn, conflicts over insurance cover, claims under the Contract ( Right of Third Parties ) Act 1999 or contribution disputes under the Civil Liability ( Contribution ) Act 1978.	+	Bypassing the certainty of this contractual structure could give rise to complex design liability issues, such as claims arising from the different duties of reasonable skill and care and fitness for purpose, software glicthes, breach of the duty to warn, conflicts over insurance cover, claims under the Contract (Right of Third Parties) Act 1999 or contribution disputes under the Civil Liability (Contribution) Act 1978.

	The importance of BIM to the design process is huge, and so it is crucial that effective protocols are agreed for its use. Unfortunately, to date, none of the standard form contracts in the UK have dealt with this issue (although the new Joint Contracts Tribunal (JCT) Public Sector Supplement does include references to BIM protocols).		The importance of BIM to the design process is huge, and so it is crucial that effective protocols are agreed for its use. Unfortunately, to date, none of the standard form contracts in the UK have dealt with this issue (although the new Joint Contracts Tribunal (JCT) Public Sector Supplement does include references to BIM protocols).
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	* Novation.		* Novation.
	* Opening up works for inspection and testing.		* Opening up works for inspection and testing.
−	* Pirelli General Cable Works Ltd v Oscar Faber & Partners.	+	* [[Pirelli_General_Cable_Works_Ltd_v_Oscar_Faber_&_Partners\|Pirelli General Cable Works Ltd v Oscar Faber & Partners.]]
	* Professional Indemnity Insurance.		* Professional Indemnity Insurance.
	* Reasonable skill and care.		* Reasonable skill and care.
		+	* Strict liability.

	=== External references ===		=== External references ===

Designing Buildings at 07:51, 21 December 2017

2017-12-21T07:51:53Z

← Older revision		Revision as of 07:51, 21 December 2017
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	* Appointing consultants.		* Appointing consultants.
−	* Building Information Modelling.
	* Collateral warranties.		* Collateral warranties.
	* Consultant switch.		* Consultant switch.
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	* Design management.		* Design management.
	* Design responsibility matrix.		* Design responsibility matrix.
−	* Environmental Impairment Liability (EIL).
	* Fitness for purpose.		* Fitness for purpose.
	* Joint and several liability.		* Joint and several liability.
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	* Novation.		* Novation.
	* Opening up works for inspection and testing.		* Opening up works for inspection and testing.
		+	* Pirelli General Cable Works Ltd v Oscar Faber & Partners.
	* Professional Indemnity Insurance.		* Professional Indemnity Insurance.
	* Reasonable skill and care.		* Reasonable skill and care.
−	* Workmanlike manner.

	=== External references ===		=== External references ===

← Older revision		Revision as of 15:10, 2 May 2018
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	= General considerations =		= General considerations =

−	Whilst design liability will always depend on the particular facts and circumstances of any situation the following commentary can be made in relation to the duty to design with reasonable skill and care:	+	Whilst design liability will always depend on the particular facts and circumstances of any situation, the following commentary can be made in relation to the duty to design with reasonable skill and care:

−	* An error of judgement or choosing an incorrect method of construction will not necessarily be a breach of the ~~designers~~ duty, particularly if there is conflicting professional opinion.	+	* An error of judgement or choosing an incorrect method of construction will not necessarily be a breach of the designer's duty, particularly if there is conflicting professional opinion.
	* A designer cannot rely on the test of 'ordinary competency' to lower a higher duty arising from particular facts or knowledge.		* A designer cannot rely on the test of 'ordinary competency' to lower a higher duty arising from particular facts or knowledge.
−	* A designer may be able to rely on the 'state of the art' defence, ie the standard of care depends on what was expected of the competent designer at the material date (the date of the design). Even pioneering designers have to be prudent. In Independent Broadcasting Authority v EMI Electronics Ltd and BICC Construction Ltd, the court held that even though the design and construction of a cylindrical communications mast was '...both at and beyond the frontiers of professional knowledge at that time it was still incumbent on (the designer) to exercise a very high degree of care'.	+	* A designer may be able to rely on the 'state of the art' defence, i.e. the standard of care depends on what was expected of the competent designer at the material date (the date of the design). Even pioneering designers have to be prudent. In Independent Broadcasting Authority v EMI Electronics Ltd and BICC Construction Ltd, the court held that even though the design and construction of a cylindrical communications mast was '...both at and beyond the frontiers of professional knowledge at that time it was still incumbent on (the designer) to exercise a very high degree of care'.
−	* A specialist designer does not, as such, have a higher duty although a specialism may be relevant to the forensic analysis, ie should more care be expected from the specialist?	+	* A specialist designer does not, as such, have a higher duty, although a specialism may be relevant to the forensic analysis, i.e. should more care be expected from the specialist?
−	* Designers should take reasonable steps to keep themselves up to date with new methods and materials.	+	* Designers should take reasonable steps to keep themselves up-to-date with new methods and materials.
−	* The designer is not responsible for elements of the design delegated to other consultants, the contractor or specialist sub-contractors and suppliers, where these parties contract direct with the client. However the designer will be responsible where there is a delegation of the design function to the designer's own sub-consultant or sub-contractor.	+	* The designer is not responsible for elements of the design delegated to other consultants, the contractor or specialist sub-contractors and suppliers, where these parties contract direct with the client. However, the designer will be responsible where there is a delegation of the design function to the designer's own sub-consultant or sub-contractor.
	* When a faulty design is imposed on the designer by the client, the designer will not be liable if the designer has given sufficient warning to the client.		* When a faulty design is imposed on the designer by the client, the designer will not be liable if the designer has given sufficient warning to the client.
−	* The client's approval of the design does not relieve the designer of ~~design~~ liability for structural failures although there may be a defence to issues of function, amenity, aesthetics and possibly, commercial objective.	+	* The client's approval of the design does not relieve the designer of liability for structural failures, although there may be a defence to issues of function, amenity, aesthetics and possibly, commercial objective.
	* The design obligation is a continuing duty up to practical completion.		* The design obligation is a continuing duty up to practical completion.
	* The duty of reasonable skill and care in tort can run concurrently with contractual obligations.		* The duty of reasonable skill and care in tort can run concurrently with contractual obligations.
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	= Design and Build contractors =		= Design and Build contractors =

−	Subject to the express terms of the contract, there is an implied term that the design and construction will be fit for its purpose provided there is reliance by the client on design decisions taken by the contractor, for example, there is no reliance if the client insists on a particular construction method or material which subsequently fails.	+	Subject to the express terms of the contract, there is an implied term that the design and construction will be fit for its purpose provided there is reliance by the client on design decisions taken by the contractor; for example, there is no reliance if the client insists on a particular construction method or material which subsequently fails.

	See:		See:
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	As an interactive, collaborative, multi-partite, virtual design process, Building Information Modelling (BIM) creates a complex design liability scenario, often with subsidiary models feeding into a master coordinating model. For BIM, to be collaborative and fully effective, it needs to overarch the usual vertical bi-partite contractual structure of the design obligation (e.g. a specialist subcontractor design obligation will be set out in the subcontract with the main contractor who in turn sets out his responsibility with the client in the main contract).		As an interactive, collaborative, multi-partite, virtual design process, Building Information Modelling (BIM) creates a complex design liability scenario, often with subsidiary models feeding into a master coordinating model. For BIM, to be collaborative and fully effective, it needs to overarch the usual vertical bi-partite contractual structure of the design obligation (e.g. a specialist subcontractor design obligation will be set out in the subcontract with the main contractor who in turn sets out his responsibility with the client in the main contract).

−	Bypassing the certainty of this contractual structure could give rise to complex design liability issues, such as claims arising from the different duties of reasonable skill and care and fitness for purpose, software ~~glicthes~~, breach of the duty to warn, conflicts over insurance cover, claims under the Contract (Right of Third Parties) Act 1999 or contribution disputes under the Civil Liability (Contribution) Act 1978.	+	Bypassing the certainty of this contractual structure could give rise to complex design liability issues, such as claims arising from the different duties of reasonable skill and care and fitness for purpose, software glitches, breach of the duty to warn, conflicts over insurance cover, claims under the Contract (Right of Third Parties) Act 1999 or contribution disputes under the Civil Liability (Contribution) Act 1978.

	The importance of BIM to the design process is huge, and so it is crucial that effective protocols are agreed for its use. Unfortunately, to date, none of the standard form contracts in the UK have dealt with this issue (although the new Joint Contracts Tribunal (JCT) Public Sector Supplement does include references to BIM protocols).		The importance of BIM to the design process is huge, and so it is crucial that effective protocols are agreed for its use. Unfortunately, to date, none of the standard form contracts in the UK have dealt with this issue (although the new Joint Contracts Tribunal (JCT) Public Sector Supplement does include references to BIM protocols).

−	Until they do it is advisable to agree a BIM schedule or addendum setting out the legal status and management of the model or models which must then be incorporated into all contracts having a design element for the project.	+	Until they do, it is advisable to agree a BIM schedule or addendum setting out the legal status and management of the model or models which must then be incorporated into all contracts having a design element for the project.

	The UK is short on BIM guidance, but helpful and adaptable examples can be found in the US:		The UK is short on BIM guidance, but helpful and adaptable examples can be found in the US: