Site inspection duties are ill-defined by law and by appointment terms
Alleged failure to 'supervise' construction work properly is still a common claim against architects. 'Ah', I hear many of you say, 'we are not responsible for supervision - merely for periodic inspection.'
Reference to supervision is, of course, a hangover from pre-1971 appointment terms. Thereafter, the little A5 purple Conditions of Engagement stipulated that the architect 'shall make such periodic visits to the site as he considers necessary to inspect generally the progress and quality of the work ...'. Note that this reduced responsibility nevertheless implied an obligation to assess the necessity and frequency of visits.
Thereafter, the Architect's Appointment (1982) stipulated under clause 3.10 that visits should be made 'at intervals appropriate to the stage of construction ...' - a quite different requirement.
Under clause 3.1.1 of sfa/92, the obligation was again varied - this time to read 'make such visits to the works as the architect at the date of the appointment reasonably expected to be necessary'. This not only conflicts with earlier appointment terms, and, arguably, with the industry's expectations based on precedent, it also conflicted with Schedule Two, paragraph K-L/08 within the same document, which repeated the duty to visit site 'at intervals appropriate to the stage of construction ...'
Lawyers have earned a fortune while the true extent of these duties has been disputed in the courts. And every time case law comes near establishing an interpretation, our noble profession rewrites its appointment documents. Predictably, we've done it again with the publication of sfa/99.
And, true to form, we've delivered the lawyers another gravy train, and ourselves a real nightmare! Clause 2.8 of sfa/99 retains the sfa/92 obligation to make such visits as 'the architect at the date of the appointment reasonably expected to be necessary'. But paragraph one of Work Stage K of the Services Supplement states 'Make Visits (sic) to the works in connection with the architect's design'.
What does that mean? How often? At what stages? With what purpose? With what level of detail? And note the phrase, 'to inspect generally the progress and quality of the work' with its limiting qualification has vanished.
So architects, now denied the protection of the precious words 'inspect generally', will suffer as lawyers acting for clients inevitably argue that our responsibilities have been substantially extended. Defence lawyers will, of course, run the weaker case that the purpose of the visits is non-specific (general interest, pleasure, photography, even curiosity or perhaps, a picnic!). But such arguments are pretty hopeless!
The seriousness of all this should not be underestimated. Varying the descriptions of the architect's duties has significant legal implications, and should not be done whimsically. If such changes really are, however, either unavoidable or essential, replacement documents must be consistent and clear throughout - as opposed to inconsistent and ambiguous as has too often been the case.
Furthermore, architects must adjust their service in order to comply with their new obligations- difficult when, as with site inspection, those obligations are unclear!
In her book, The Legal Obligations of the Architect, Andrea Burns (assisted by aj columnist Kim Franklin) wrote: 'In actions against architects, plaintiffs rely heavily on the duty of inspection to prosecute cases of poor construction.' That was in 1994 and Burns went on to suggest that as long as appointment terms include the words 'intervals appropriate to the stage of construction' that reliance would continue, for who could define what would constitute appropriate intervals?
Well, lawyers can stop worrying about all that now, as SFA/99 gives them the welcome opportunity to ponder instead just what making visits 'in connection with the architect's design' might mean. Sadly for us, many lawyers will retire very fat on the fees they make arguing that one out.