Legalese: Your failure to inspect items properly might cost you dearly in the case of a claim, writes Mark Klimt
The relatively recent case law which upheld, even in domestic contracts, the enforceability of properly worded net contribution clauses has encouraged consideration once again of an architect’s inspection obligations – and how liability should be apportioned between a contractor’s poor workmanship and an architect’s failure to identify and condemn such work.
The starting point will be the architect’s appointment. Architects will be aware that they should not accept an obligation to ‘supervise’ the building works. In certain jurisdictions (for example in Germany and France) such an obligation is hard to resist, as there is a general expectation that architects will perform this role; but in the United Kingdom, the term suggests a more detailed involvement as opposed to the more episodic obligation to inspect at periodic intervals appropriate to the stage of the project. It can be helpful to include an agreed minimum frequency.
Whether an architect will be held liable for subsequently discovered defective workmanship will then depend on a number of factors. Firstly, whether the architect could reasonably have been expected to witness the defective workmanship.
If it concerns a single feature which, if the architect did not happen to be on site on that particular day would not have been discernible, the likelihood of a claimant being able to establish breach against the architect will be remoter than if the defect is of a repetitive nature (say, a succession of balconies on a block of flats).
Where an architect has accepted a contractual obligation to ensure that the works are constructed in accordance with the building contract, without the recommended qualification of the use of reasonable skill and care, liability again will be easier to establish.
But, if there is a paper trail showing the client seeking to ration the architect fees it incurs during the construction phase and failing to authorise site visits, this may provide a proper defence. So architects would be well advised to keep a record of client instructions of that nature.
Assuming liability is established, the old-fashioned starting point would be an 80 per cent liability for the erring constructor and 20 per cent liability for the inspecting architect.
This could, though, be ousted, depending on the individual project facts, and very often the architect ended up having to pay a great deal more than its 20 per cent share by reason of the contractor no longer being in business; hence the introduction of net contribution clauses, limiting the architect’s responsibility to that proportion of loss actually caused by it and assuming that all other responsible parties had paid their fair share.
An architect’s habitual conscience to drive a project through to a successful conclusion and to minimise confrontation can frequently be seen in its approach to inspection duties. There are many instances where an architect has identified within the contract documentation particular items which it wishes to inspect as they are being installed but where, nevertheless, the contractor proceeds without notice to the architect.
The result is that, when the architect next inspects, the item may well have been completed and inspection would necessitate opening up works, possibly for no purpose. A reluctance by the architect to instruct such opening-up is understandable.
However, a failure to insist on applying the contract terms could lead to liability if it transpires that the concealed item was defective. Any concession, therefore, extended to the contractor would need the concurrence of the client. Otherwise, a failure to take admittedly disruptive steps while the project is ongoing could ultimately have far more disruptive and wide-ranging implications.
Mark Klimt is a partner at law firm DWF