Responsibility for building design

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[edit] Design duties in law

[edit] Standard of liability

• A guarantee of ‘fitness for purpose’ may be implied into a design and build contract although this cannot override any contrary express terms.
• Under such a contract the contractor will be strictly liable to the client for any defect resulting from an error of design.
• If the design has not been carried out in-house by the main contractor, but has been sub-contracted to either an architect or a specialist sub-contractor, the main contractor will seek to pass liability down the line to the actual designer.
• This can only be done if the designer’s liability on the sub-contract is at the same level as the contractor’s liability on the main contract.
• It should be noted that both JCT CD 98 and JCT CDPS 98 make it clear that the main contractor’s liability goes no further than that which would be incurred by an architect or other appropriate professional designer holding himself as competent to take on work for such design.
• For traditional contracts, the court is highly unlikely to hold the main contractor responsible for a defect resulting from the nominated sub-contractor’s design.
• It is very important for the employer to ensure that the sub-contractor accepts direct design responsibility by entering into a collateral warranty.

[edit] Duration of liability

• The architect remains under a continuing responsibility beyond the signing of the contract to see that the design will work.
• This obligation probably lasts through to the issue of the final certificate.

[edit] Techniques and materials

• Where an architect specifies materials, there will be no implied warranty from the contractor that the materials used will be fit for their purpose.
• Therefore it is important for the architect to ensure the suitability of any new product to be specified.
• It would be sensible to obtain some collateral warranty from the supplier as to the product’s performance if possible.

[edit] Compliance with statutory requirements

• A designer impliedly undertakes only to use professional skill and reasonable care and does not warrant that the design will not contravene any relevant legal principle, however:
• Where traditional contracts are used, responsibility for a building which contravenes the law will usually fall upon the designer rather than the builder.
• JCT 98 Clause 6.1.1: the contractor is generally responsible for ensuring that all statutory rules are complied with, but
• JCT 98 Clause 6.1.5: a contractor who has merely worked in accordance with the contract drawings or bills is protected from that liability.
• This is subject to the proviso that upon discovering any discrepancy between these documents and the legal requirements, the contractor immediately notifies the contract administrator.
• JCT CD 98 Clause 6: gives no such protection – the contractor must bear any cost involved in making the work comply with the law, even when the employer’s requirements are at fault.

[edit] Legal responsibility for design

[edit] Architect

• The overall responsibility for the design of the project will usually be borne by the architect if there is one.
• An architect who lacks the ability or expertise to carry out part of a design job has three choices:

1. To refuse the commission altogether.
2. To persuade the employer to employ a specialist for that part of the work.
3. To employ and pay for a specialist personally, knowing that any liability for defective design can then be passed along the chain of contracts.

• The complexity of construction technology has meant that the employer frequently gives the architect the authority to delegate specified parts of the design and it may even be implied from the circumstances of the case.
• In recommending the appointment of a particular specialist, architects owe their clients the usual duty to use reasonable skill and care.
• They will not automatically be responsible for the defaults of the people they recommend but if their recommendations are negligent they may become liable for their clients’ losses.
• When appointing a specialist, the architect’s responsibility will normally be confined to directing and co-ordinating the expert’s work.
• However, if a problem arises the architect is not entitled to rely blindly on the expert on matters which should have been apparent to him, but must warn the client.

[edit] Contractor

• Under normal circumstances the contractor’s responsibility is merely to build in strict accordance with the designer’s specification.
• However, contractors and sub-contractors tend to take on a measure of design responsibility in the following ways:
• Where the contract documents do not give sufficiently fine detail – this may become a workmanship issue, but a contractor who uses initiative in such circumstances instead of seeking an architect’s instruction will incur responsibility for any defects that ensue.
• Contractors and sub-contractors are often asked their opinion – if such advice is given a duty of care arises.
• A term is often implied into contracts requiring the contractor to warn the employer of any defects in design.
• Where contractor, sub-contractors or suppliers are required to produce drawing for the architect’s approval, any matters of design that are included may be a source of liability – this is despite the possibility that the architect may also be liable.
• Apart from these hidden forms of liability there are certain situations in which a contractor specifically undertakes responsibility for design as well as construction.
• JCT 98 Clause 42: performance specified work makes provision for the contractor to assume some design responsibility for part of the work.
• Specification has two aspects:

1. The decision about the required performance.
2. The way in which the performance will be achieved.

• In performance specified work the contractor undertakes the second part.

[edit] Sub-contractor

• The direct warranty agreement NSC/C which is entered into between the nominated sub-contractor and the employer does not warrant that the sub-contract works will be fit for purpose, but merely that the sub-contractor will exercise reasonable skill and care.
• JCT 98 Clause 35.21 provides that the main contractor shall not be responsible to the employer for anything contained in NSC/C.