Site inspection: how to avoid delegating your way into heaps of legal troubles
Two weeks ago I suggested that the growing tendency under modern procurement methods (design and build, etc) to exclude architects from site inspection is leaving clients very exposed.
Last week, I considered the architect's inspection duties under traditional forms of appointment, and noted that sfa/99 generates unwelcome ambiguity in this matter. Here, I will look at the role of site inspectors; theirs is a task traditionally fulfilled by that oft-maligned and bullied figure, the clerk of works.
This interest stems from a recent litigation in which an architect's defence alleged that multiple serious faults discovered post-construction in a hospital project should have been spotted by the clerk of works, who had been in attendance, full-time, throughout the construction phase. This argument seemed all the more robust because the clerk was permanently employed by the hospital's own estates department. Why, claimed the defence, should the architect be held responsible for detailed inspection work which had gone way beyond his duties under item 08 of Work Stages K-L, under which he was only required to visit at appropriate intervals 'to determine that (the works were) being executed generally in accordance with the contract documents?'
Sadly, the architect's position was weakened both through case law (which has largely established that an architect is responsible for the inadequacies and failures of the clerk of works) and though clause 3.3.3 of sfa/92, which states: 'All site staff shall be under the direction and control of the architect.' (It was presumably intended that the term 'site staff' referred to site architects and clerks of works as opposed to site engineers and the builders' employees - but again, the poor drafting of sfa documents can be seen to have left architects deeply at risk.
sfa/99 remains vague on this matter. Clause 3.10 states that (where appointed), 'Site inspectors shall be under the direction of the lead consultant', despite it being the duty of the client to 'appoint and pay them under separate agreements.' However, and in apparent conflict with 3.10, Clause 3.11 goes on to state that 'in respect of any work or services in connection with the project', the client shall 'hold such person (and, by implication, not the architect) responsible for the competence and performance of his services.' This might wash for other consultants such as the structural engineer, but it doesn't work with respect to clerks of works.
Guidance on this matter can be found in 'Design Liability in the Construction Industry' in which D L Cornes considers whether delegation to clerks of works and other inspectors of the 'duty to supervise (sic) relieves (the architect) of part or the whole of his duties to supervise, such that he incurs no liability if there is a breach of duty by the person to whom the supervision has been delegated.' Concluding that an overriding principle applies that the architect 'will not necessarily be held liable for failing to ... detect every minor piece of poor workmanship.' Cornes advises that 'the architect cannot delegate matters of importance so as to divest himself of responsibility, but he can delegate matters of minor importance.' A good test is offered on the basis of case law, which suggests that the architect will usually be liable for breach of duty with respect to his site inspection role if:
he purports to delegate a matter which he should not have delegated, but rather, should have seen to himself;
he purports to delegate where he should have given instructions as to how the supervision was to be carried out, and he failed to give such instructions;
he relies on an unreliable clerk of works or resident engineer when he knows (them) to be unreliable.
Professional practice is a tough game! Don't accept these responsibilities without being paid properly during the construction phase. If the scope of your service is limited you should explicitly shed your responsibilities accordingly. Don't get sued for work you aren't even being paid for.