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FAULT LINES

LEGAL

Although familiar, the triangular relationship of contractor/architect/employer often gives rise to questions about who owes what obligations to whom, writes Sue Lindsey. In CGA Brown v Carr (16 May 2006), the Court of Appeal considered liability at the contractor/employer interface, where the contractor was working to architect's drawings which a court expert described as '[not providing] a very detailed level of information, and the annotations which are provided leave a lot of assumptions as to interpretation and decisions on the actual intention'.

The drawings were of an extension to a roof . The existing roof falls were different to those shown on the drawings, and there were no details of the joint between the old and new roof. The contractor had built the roof and had used its initiative to create a joint (which the court expert later condemned) before it realised that the falls were unsatisfactory. The judge found that the contractor was in breach of its duties to the employer, having failed to spot the problem with the falls on the architect's drawings and for constructing an inadequate joint. So should architects therefore be happily reassured that, even if they make such errors, it is the contractor who will be found liable?

As always the answer will lie in the particular contracts between parties. But guidance can be gleaned from the cases that have been decided at each interface of the triangle.

First, at the employer/ contractor interface that was looked at in CGA Brown v Carr, it is often the case that the contractor has an obligation to construct a building that is fit for its intended purpose.

That can include finishing off any design that is needed to complete the works. The courts have also held that where an employer has relied on the experience and judgment of its contractor, the contractor can be liable for failing to warn the employer of obvious flaws in designs supplied by others that might result in defects.

But that potential liability does not absolve the architect at the employer/architect interface. The usual obligation of the architect is to carry out its duties, including design, with skill and care. Flaws of the kind identified in CGA Brown v Carr may breach that standard. It would be open to the employer to claim against the architect as well as the contractor.

At the architect/contractor interface there is, in a traditional procurement structure, no contract. If the contractor spots a flaw in the architect's design, does he owe a duty in tort to the architect to flag it up, thereby protecting the architect from potential liability to the employer for a defective design? The answer is, generally, no. The loss the architect would suffer would be a financial one, and it is unlikely that the contractor would owe a duty to protect the architect from an economic loss.

So while an architect's deficient design may sometimes be visited on the contractor, any liability of the architect to the employer is likely to remain unaffected. Architects cannot rely on contractors to point out their mistakes for them.

Sue Lindsey is a barrister at Crown Office Chambers in London. Visit www.crownofficechambers. com

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