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Where do architects stand when it comes to duty of care?

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legal matters

Do architects owe a duty of care in tort to subsequent occupiers for latent defects in a building, built to their design, even though they have no contract with the occupier?

For those architects who qualified during the past decade, this question is likely to cause no more than the raise of an academic eyebrow along the lines of 'interesting question'. For those longer in the tooth, who can recall the heyday of tortious claims during the l980s, it will probably send a shiver of horror down their spines.

In the years between the two, major House of Lords decisions on this point - Anns v Merton (1978) and Murphy v Brentwood (1991) - showed that anyone who had anything to do with the design or construction of a building could be sued by the ultimate occupier, if it subsequently transpired that the building was defective.

Rarely was there a contract between the end user and the design and construction team. But in those days, it did not matter. The law lords had decided that designers, builders and the local authorities who approved the plans all owed a duty of care to the end user. Thus if the building subsequently failed the occupier could, and frequently did, claim against a long list of defendants, including, invariably, the designers.

All this came to an end in 1991 with the landmark decision of Murphy v Brentwood when the House of Lords reversed its previous decision and held that builders and local authorities did not owe a duty of care to subsequent purchasers in respect of latent defects. At a stroke, the ultimate occupier of a defective building had no claim against anyone involved in its design or construction unless they had a contract with them.

A device then rapidly emerged that gave occupiers some contractual redress - the collateral warranty. Otherwise the general rule for subsequent owners of dodgy buildings was 'no contract - no claim'. And for a while the pressure was off the designer, well, at least so far as claims by subsequent owners of defective buildings were concerned.

But the law does not stand still and two recent cases have caused a ripple in these apparently calm waters.Last year, Technology and Construction Court (TCC) Judge Bowsher QC explored one of the exceptions to the 'no contract - no claim' rule, namely that designers could be liable for defects which the purchaser would not have had an opportunity of discovering before acquiring the building.That case, Baxall Securities Ltd v Sheard Walshaw Partnership (AJ 21.12.00), concerned a flood.

More recently, in Bellefield Computer Services Ltd v E Turner & Sons Ltd (judgment 9.11.01), the TCC considered architects' liability for damage caused by a fire at a commercial dairy. The defendant contractor had, contrary to the usual practice, itself engaged architect HD Watkins and Associates to provide partial architectural services. After the fire it was discovered that the compartment walls and adjacent fire lining of the first floor had not been constructed in accordance with the specification. Importantly, the fire lining had not been taken up to the underside of the metal roof sheets, but only to the roof 's polystyrene insulation.

The judge, adopting the decision in Baxall Securities, found that the architect did owe a duty of care to a subsequent owner for damage caused by these defects, which the owner would not have been able to discover.

In this case, however, the judge rejected the contractor's claim that the scope of the architect's duty extended to designing a two-hour fire rated compartment wall. He said the architect's position was an unusual one in that it was subcontracted to provide partial architectural services to the contractor, who in turn had agreed to carry out some design work.Thus the architect had not produced a detailed design for the construction of the fire-resistance detailing.

As it had not agreed to provide a complete design for the contractor, it could not owe such a duty to the owner. The contractor's claim failed.

So, in the light of these authorities, the answer to the opening question is now 'maybe'but, happily for the architects, 'not in this case'.

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