What's an architect's duty when it comes to inspections on site?
During 1998, the Sheikh of Abu Dhabi's summer house in Sunninghill was fitted out. Hutch, the company that was in effect the alter ego of the Sheikh, employed Consarc as architect for the project. The works included the laying of a limestone floor. The parties agreed that the new floor was defective. Hutch said there was a problem with the slab, and that Consarc should have spotted it. This was one of many issues dealt with by HHJ Bowsher QC in Consarc v Hutch (April 2002), and his judgment revisits the topic of an architect's duty in relation to visiting a site to look at the works.
Consarc had contracted on the RIBA standard form of appointment SFA 92, which includes the obligation to visit the works and inspect progress and quality at intervals appropriate to the stage of construction. The RIBA's standard terms have changed over the years in an attempt to lessen the 'looking at works' duty. Older forms include a duty to supervise. The 1999 form requires the architect to visit the works, while inventing a 'site inspector' as someone else to be employed by the client.
In reaching his conclusions, the judge referred to the standard legal work Jackson and Powell on Professional Negligence (5th edition) which discusses what the 'looking at works' duty might be. The judgment adopts the relevant paragraphs, and anyone with a particular interest in this point would be well advised to turn to that text.
Two general principles are clear. First, an architect undertakes to exercise skill and care, rather than guaranteeing a particular result. If at the end of the day works do not achieve the required standard, that does not of itself prove that inspection was insufficient. Second, the usual professional negligence test, the Bolam test, applies: if a responsible body of architects would have acted similarly, there is no negligence.
The judge criticised SFA 92, saying that the relevant clause was 'a vague statement of duty and it is difficult to know what is required'. In the absence of clear contractual guidance, architects must decide for themselves what to do to discharge this duty. Case law shows that a number of factors may be relevant.
In many instances the duty to look at the works will be combined with a certification function. While certification is itself usually subject to a defence of having used skill and care, it seems that the works should be looked at sufficiently to enable the facts certified to be observed.
Where operations on site will cover up things that should be inspected, or there are elements of work that need to be done particularly carefully, that informs when and in what detail the works should be looked at. The cases suggest that an architect should instruct a contractor to give notice of when certain works are going to be carried out so as to facilitate inspection. But be warned that in an Australian case, Florida Hotels v Mayo, it was said that the architect could not necessarily rely on the contractor giving notice.
Other factors can come into play. In Sutcliffe v Edmonsons, the employer terminated the builder's contract. The judge agreed that the contractor had displayed a lack of competence to complete the works. When the employer sued the architect for negligent certification, the judge decided that where the performance of the contractor gives cause for concern, the standard of supervision required of the architect should be higher.
The case law needs to be treated with some caution as it deals largely with 'supervision', rather than 'inspection'. It will be of some comfort to the drafters of the RIBA standard forms that in Consarc the judge found that inspection was a lesser responsibility that supervision.
However, in deciding that Consarc had not been negligent he simply applied the Bolam test and decided that other architects who were competent would not have looked at the slab before the limestone was laid. It seems that whatever label is given to the duty, whether it was discharged will be judged in the light of what was happening on site, and so long as a responsible body of architects would have done the same thing, the skill and care defence should work.