When project liability issues become as clear as this ink
Next time you're involved in a project where a specialist sub-contractor has a design responsibility, think carefully about your own position in the event of their failure - you may have more liabilities than you expect, and more than are suggested under the riba's Standard Form of Agreement (SFA/92).
Clause 4.2.5 states: 'The Client shall hold any Specialist and not the Architect responsible for the products and materials supplied by the Specialist and for the competence, proper execution, and performance of the work with which such Specialists are entrusted.' Perfectly clear! You might like to think so, but why then, in case after case where specialist sub-contractor firms are deemed to have failed in their design responsibility, is the poor old architect dragged into expensive litigation?
Well, of course, it's all too easy for the plaintiff to cite the architect as a second defendant in an action brought primarily against the specialist sub-contractor - a catch-all tactic providing added security through the architect's pi in the event that the sub-contractor goes 'belly-up'.
That said, when formulating a claim it is often difficult to differentiate responsibility between the various parties in matters of design co-ordination: investigation may well be necessary where problems of co-ordination exist - between, say, curtain wall and steel frame - in order to establish liability for errors.
But what of the apparently 'open-and-shut cases' where an inherent design fault emerges with the product supplied by the specialist? For example, the panel cladding system that bows and looks unsightly; the curtain walling installation that leaks; or the wardrobe system that disintegrates following its installation into that top-grade hotel project.
I had such a case myself when a curtain wall system began to leak badly, shortly after handover of the building. The full wrath of J R Knowles (who frequently acts as claims consultant) was unleashed upon us, and much time was expended defending ourselves.
Our argument was simple: the curtain wall system was a specialist item. We had set out clear performance criteria in terms of issues such as protection against solar gain and thermal performance, and we had given accurate dimensional information. We had received and commented on the specialist's drawings and specification with respect to these issues, but we had not assumed responsibility for the gasket arrangements, which provided the seal at mullion/transom junctions where the problems had arisen. Our arguments were accepted and the case against us was dropped.
However, in a similar dispute involving a newly qualified architect, I was recently advised that the test a court would apply was whether the issue of alleged failure related to an area of expertise that an architect of reasonable competence would be expected to hold. In the matter of, say, a lift, if the lift car failed to function as a result of an engineering problem within the motor, that would be outside the normal experience of an architect. But, if the carpet peeled off the walls because inappropriate adhesive was used, or the walnut veneer deteriorated because it was insufficiently durable for the purpose, the architect is, with ever-greater frequency, dragged into the dispute.
Of course, it's not all over at the stage, and a successful defence may be made, but the cost of defence and heartache involved can be great, to say nothing of ongoing pi premium increases which can be incurred whilst the matter is resolved.
So, next time you seek to rely on sfa clause 4.2.5, think carefully: a lot is at stake. Don't let the client, qs, or project manager land you with some cheapskate and incompetent firm which might suck you into a mire of controversy. And, even if a good firm is appointed, make sure you scrutinise those parts of their work which lie within your experience, and ensure that a client/sub-contractor form of warranty is in place. Finally, of course, comment critically - but 'approve' nothing.