A cautionary tale for architects (and their Pl insurers!)
A cautionary tale for architects (and their Pl insurers!)Keywords: Architects,Defective premises, Liability
The scope of architects' duties appears to be expanding. Architects can no longer assume that it is the builder's job to know how to build and must now consider issues of "buildability" in addition to the design of the completed works. Architects also face potentially extensive liabilities to later users of a building or even passers-by.
In Baxall v. Sheard Walshaw (2000) the architect was found liable to a user of a building whose goods suffered damage caused by defective design of a roof drainage system. This was despite the fact that the detailed design work had been undertaken by a specialist sub-contractor. If an architect can be liable to a later user for defective design, could he also be liable for breach of other duties?
What if the architect fails in his duty to supervise the works? The contractor may construct a defective and dangerous building that later collapses causing injury. If the contractor is unable to pay, the supervising architect may be the next target. An argument that the architect was entitled to assume that the contractor would do the job properly may not be enough to avoid liability. Reliance on a specialist designer in the Baxall case did not help the architect!
This is of course far removed from the traditional position (expressed by the Court of Appeal almost 40 years ago in Clayton v. Woodman) that the architect is entitled to assume that the work would be properly carried out. The courts may take a more flexible approach in the twenty-first century. A third party who suffers loss is not particularly interested in the niceties of the contracting arrangements between the parties. His only interest is in making a recovery of his loss and that depends on establishing the extent of the duties assumed by the architect.
If, in the course of the construction process, the architect assumes a duty to check that the building is constructed properly and fails in that duty, there is no reason why the "Baxall principle" should not apply. In Baxall, the judge made it clear that the contractual arrangement between architect and employer is only relevant to determine the scope of the duties taken on by the architect. Depending on the nature of the works and the ability of the contractor, it is quite possible that a supervisor may owe a duty to third parties to ensure that the works are carried out properly.
If the economy does slow and contractors fail in significant numbers, there will be further attempts to pin liability on architects and consequently professional indemnity insurers; even where (as in Baxall) the primary wrongdoer is the contractor or a sub-contractor.
For further information: Jonathan Leech at Hammond, Suddards Edge. Tel: +44(0) 21 222 3453; E-mail: jonathan.leech@hammondse.com
