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Construction Law 1

The traditional role of the architect as the contract administrator as well as the designer has led to
much of the law on the obligations and duties of construction professionals being developed by
reference to the position of the architect. Those obligations and duties have equally applied where,
under engineering contracts, the engineer performs that role. Recent methods of procurement 1
have led to the introduction of other disciplines, in particular, project managers who have performed some parts of the traditional role of the architect or the engineer. This chapter continues to concentrate on the law as it has developed by reference to the role of the architect. In each case, the precise nature and extent of the duties must depend on the terms of engagement of the particular professional and the context in which the duties are to be performed. 

That context will include the relationship with other consultants and with contractors involved in the project. It is suggested that the law as it has developed in relation to the architect provides an essential starting point in considering the obligations of those other professionals. 

Sample Answer

Introduction:
To warn entails advising the general public or a section of the public on the dangers of something. Warnings are very common. We interact with warnings on a daily basis; on our roads, on packed foodstuffs and even on drugs. The intention of a warning is to create a safe environment for human beings.

The duty to warn extends to architects as well, especially on matters within their knowledge that might harm someone if not remedied. An architect was held negligent by failing to warn on the risks of increasing costs of a building by the court of appeal in Nye Saunders and Partners v Alan E. Bristow.  Construction sites are very prone to accidents and an architect duty arises from the fact of fatal accidents associated with construction accidents.

Duty To Warn
The general rule under English law is that an architect has no duty legally to warn. However such a duty can arise in certain circumstances. A duty to warn arises in tort law’s principle of duty of care. The architect would have the duty of warning third parties of potential dangers that he is aware of. Similarly in contract law, an architect has a duty to warn of dangers not in the knowledge of the other party.

In Plant Construction plc V Clive Adams Associates and JMH Construction Services Limited, where the court had to canvass the duty to warn and the implied term of knowledge, skill and care required of architects. The court held that the extent of performance required of an architect is the implied term that he ought to perform his duty with the skill and care of any ordinary architect in similar circumstances and such performance should depend on all circumstances and extends to giving property warnings about any impending risk.

An architect has a duty expressly to point out any defects or discrepancies in the contract documents before works begin. The defects should be remedied by amending those sections of the contract documents that if left may cause disaster during or on completion of the works.

In NEC (New Engineering Contract), the duty to warn extends to both the parties to the contract. In Sahib Foods Ltd v Paskin Kyriakides Sands, the clients were held liable for failing to warn though of the risk of fire even where they had no expertise in design. The parties are under a duty to relay early warnings on any matter that is likely to delay the intended construction works or to increase the cost of construction. In Worboys v Acme Developments an architect was held not to be negligent where the client was aware of the necessity of ground floor toilets but failed to inform the builders.

The parties, in an attempt to avoid delays and reduce costs, they are required to hold a meeting in which to discuss ways of mitigating or avoiding the dangers of the intended project. In City of Brantford v Kemp & Wallace-Carruthers Ltd, the Court of Appeal stated that the Engineer had the duty to inform of the risk in his plan and the costs. An architect has a duty to exercise reasonable care, diligence and skills not only to his client but to any third party who, upon completion of building works gains entry into the building but as a result of defects either in the design or the construction is harmed. In Wimpey Construction UK Ltd v Poole, it was held it was the duty of the architect to render services with reasonable knowledge, skill and care. The duty is however not absolute.

Law only insist on the exercise of skills and judgements possessed by architects in a manner that is professional and can be expected of other professionals in the same field and in similar circumstances. Generally, an architect does not give a guarantee that the works he undertakes would be fit for the intended purpose, he impliedly promise the exercise of a standard reasonable care which any architect would be required to exercise.

In Klein v. Catalano, it was said that an architects undertaking only implies that he has the skill and ability to aide him render his services professionally and that he will endeavour  to apply his ability and skills in the given circumstances without any form of negligence. The undertaking however does not promise perfection, miscalculations might occur as are incidents in all businesses.

Liability Of An Architect In Construction Projects
An architect is any person who engages in the planning, design, and review of constructions of buildings. The services of an architect relates to the design of buildings and the surrounding environment whose purpose is for human occupation.

An architect represents himself impliedly to possess skills and knowledge that every architect in the practice has. If, for any reason he does not possess such skill and knowledge and any loss occurs because of the lack of such judgement and skill, the architect would be held liable for such loss.

Architect’s Professional Liability
A claim for negligence is likely to be brought against an architect. To succeed on a claim of negligence against an architect, the plaintiff has to prove on a preponderance of evidence;

That the design professional was negligent.
The designs professional negligence was the legal cause of damage sustained by the plaintiff.
This is because an architect who acts in a professional way has superior knowledge and skill and is therefore required to exercise the highest degree of care that is consistent with the superior knowledge and skill he possesses and should therefore not fail to use such care, ability, skill, diligence that is ordinarily required of a professional.

An architect is liable for all the damages resulting directly from the failure on the part of the architect to use care, diligence and judgement in the performance of construction related duties. The fact that the architectural plans and structures were not drawn accurately does not put liability for damages resulting thereon since the architect does not ordinarily guarantee any accuracy, success or perfection. But when such accuracy is caused by the architect’s failure to exercise knowledge, skill and judgement he possesses, he would be held liable.

The damage that the architect would become liable for failing to exercise the knowledge, skill, care and judgement may be for the increased cost of completing the building as a result of remedying the defects. The presence of the owner during the construction period does not preclude any act of negligence on the part of the architect because the owner has a right to rely on the architect’s professional skill and knowledge.

An express agreement between the owner and the architect that the owner would not in any circumstance hold the architect liable would however relief the architect from liability for a building completed in an extremely dangerous manner. In Batty v Metropolitan Property Realisations Ltd, it was decided that the duty of the builder extended to defects on the land adjoining the site of construction and he should not build unless an expert investigation on the subsoil including that of the adjoining land is provided.

An architect acting as a superintendent of in a construction is not liable for losses arising from the sole negligence of the contractor except where it is the fault of the architect for he would answer for the fault as an agent of the owner. But in cases where the duties of an architect are modified by an agency agreement, he will be held liable for a failure in the skill, fidelity and care relating to the agency duties. The mere fact that the contractor bears liability for damages directly resulting from bad construction will not relieve the architect of liability as a result of his own neglect and it does not entitle the architect to any form of reimbursement from the contractor. Bothe the contractor and the architect would be held liable for the full amount. The owner would therefore be at liberty to elect to sue either the contractor or the architect or both.

The architect is liable for any extra work he does without any form of authority from the owner or without a claim of agency. In Baxall v Sheard Walshaw Partnership, an architect who assumed the duties of a designer was held liable for the resulting defects on the roof.

Generally, the law protects architects from liability to third parties but however, he is likely to owe legal duties to other persons other than the owner and the contractor if by any chance he adopted a method of work which did not offer adequate support and a defect caused injury to any workman. Therefore, when making building plans, an architect is like an independent contractor who owes duty only to the employer but where he acts as the owner’s agent, he is likely to be charged with the duties of his principal to among other things provide safe ways of work for those working at the site. J Sainsbury plc v Broadway Malyan explains in detail that designers would not bare any liability where the client exercised control over the design such that the designers worked under strict instructions from him.

An architect would be liable to a contractor if he fraudulently declines to offer a certificate to the contractor. However, such refusal for failing to grant a certificate that is due would arise in circumstances of lack of the much needed skill and care that does not make the architect liable. But where the architect’s fraud results from collusion with the owner, both of them are liable and the contractor may elect to sue any or both.

Earthquake Disaster And Post Construction Liability Of An Architect
Architects should construct structures that are resistant to earthquakes especially in areas that are prone to seismic waves that lead to continental drift that lead to earthquakes. Architects should therefore conduct feasibility study to identify structures that would resist earthquake waves and remain strong. Such studies should identify the much needed technology that would assist in building structures that are earthquake resistant.

Architects are therefore liable for post construction defects that result from earthquake effects that cause injury or damage any property that an architect had rendered his professional duties of care, knowledge and skill and ignored the fact that the environment on which the construction stands is an earthquake prone zone.

In drawing plans for construction, architects should consider both social and economic effects of earthquakes. They should be well informed on disaster preparedness and management such that they construct buildings that are not brought down by seismic waves that cause earthquakes. The primary effect of an earthquake is the loss of human life through deaths and injury and to a great extent destruction of the built environment. Though earthquakes are natural disasters, an architect, with the knowledge and skill should morally ensure that they construct and approve construction in areas not prone to earthquake or they should employ technology to build structures that are resistant to seismic waves.

References:
Brebbia, C., Earthquake resistant engineering structures VI: Selected papers presented at the 6th International Conference on Earthquake Resistant Engineering Structures (ERES), Southampton WIT Press, 2007

Cooke, J., Architects, Engineers and the Law, Annandale, N.S.W: Federation Press, 2010

Cushman T., Robert F., and Michael C., Design-build Contracting Handbook, Gaithersburg: Aspen Law & Business, 2001

David D, Earthquake resistant design and risk management, Tauranga New Zealand, 2009

Hess, S., Design Professional and Construction Manager Law, Chicago, Ill: American Bar Association, Forum on the Construction Industry, 2007

James A., Architects & Engineers, Colorado Springs, Colo: Shepard's/McGraw-Hill, 1984

Kelley, G., Means Company Construction law: An introduction for engineers, architects, and contractors, Hoboken, New Jersey, 2013

Kevin R., and Robert F., Architect and Engineer Liability: Claims against Design Professionals, New York: Aspen Publishers, 2006

Lupton, S., Cornes and Lupton's Design Liability in the Construction Industry, 2013

Meyer, D., Illinois Construction Law, New York: Aspen Publishers, 2003

Sweet, J., and Marc M., Legal Aspects of Architecture, Engineering and the Construction Process, Stamford, Conn: Cengage Learning, 2013

Sweet, Justin, and Marc M. Schneier., Legal Aspects of Architecture, Engineering and the Construction Process, Stamford, Conn: Cengage Learning, 2013

Thomas J. Smith, Currie & Hancock Llp's Common Sense Construction Law: A Practical Guide for the Construction Professional, Hoboken, N.J: J. Wiley, 2005

Uff, J., Construction Law, London, Sweet & Maxwell, 2013

 

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