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Don't rely on specialist input to help you out of a design quandary

legal matters

In his interesting history of building failure (AJ 18.4.02), Clive Richardson advocates trial and error as a means of developing construction design. Simply repeating what has succeeded before, he argues, will lead to stagnation of design. Errors, and in the case of the Millennium Bridge, wobbles, lead ultimately to new trends in modern construction and the delight of the beholder. The price of such delight, he concludes, should be greater tolerance of building failure.

As someone who specialises in, if I can put it this way, the 'wobbly end' of the construction industry, this was cause for thought indeed. The truth is that when a building unexpectedly starts to fall apart, forbearance is the last quality you encounter. The primary objective of those involved, usually above even devising a scheme that will put the ill-fated project back together, is finding someone to blame for the failure.

Designers are therefore presented with something of a quandary. If they experiment with new technologies and designs, if they try out new materials or take traditional materials to their limits, they risk building failure, legal action, disgrace and ruin. If they do not experiment, their designs stagnate, their work falls out of favour and, presumably, disgrace and ruin will follow.

One potential solution to the problem was to be found in the earlier editions of the RIBA Standard Form of Architect's Appointment. The particular provision appeared in various guises over the years, but the gist of it was that the architect could nominate specialist contractors and suppliers to design part of the works and then, and here is the clever bit, the client would hold the specialist, and not the architect, responsible for the proper performance of the work. So the standard form envisaged that when designers reach the limit of their knowledge, they could bring in the specialists who would bear the risk of subsequent failure.

Would it work? Could architects defend negligence claims on the basis that they had relied on the advice or work of specialists who knew much more about particular products or systems than they? You won't be surprised to learn that the answer is something along the lines of 'maybe'.

Factors to be taken into consideration include:

lwhether the terms of the architect's engagement include an express provision to such effect.

The current RIBA standard form of appointment, for example, does not;

lif there is no express contractual provision it becomes a question of fact and degree. However, the starting point is that it is not the ordinary practice of the profession to delegate work on design and then seek to disown responsibility for it;

lwhether the work delegated was beyond the capability of a competent architect. In Moresk Cleaners Ltd v Hicks (1966) the architect's defence succeeded when a specialist ceiling product failed because the supplier alone knew the constituent elements of the product and devised the mix that led to the failure;

lwhether any problem arose in connection with the work which a competent architect ought to have spotted and to which the client ought to have been alerted. In Investors in Industry Commercial Properties v South Bedfordshire District Council (l986), the Court of Appeal was at pains to point out that designers are not entitled to rely blindly upon the expert with no mind of their own on matters which should have been readily apparent to them.

Even if architects might reasonably rely upon specialist input, they are not necessarily off the hook.The designer must show that the specialist they relied upon was appropriately qualified and that it was reasonable to rely upon them.

However, architects have to be aware that dabbling in modern technologies that are clearly beyond them may itself be a breach of duty.

And if their contract permits them to rely on specialist advice, and an appropriate specialist prepares a design that fails, the architect may still be to blame for not warning the client that, in the absence any direct agreement between the client and the specialist, the client will have no legal remedy.Maybe, the way out of the designer's quandary is not so clear-cut after all.

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