LLM042 Construction Law 1

Question:

As both the contract administrator and the designer, the traditional role played by the architect has led to

A lot of the law governing obligations and duties of contractors is being developed by

Refer to the position and duties of the architect.

These obligations and duties are equally applicable wherever,

Engineers perform this role under engineering contracts.

The most recent methods of procurement

This has led to the creation of new disciplines, including project managers who are able to perform certain parts of the traditional engineer or architect role.

This chapter will focus on the law in its current form, with reference to the role played by the architect.

Each case is unique and each case’s exact nature and extent of duties will be determined by the terms of engagement and the context in the which they are being performed.

This will include the relationship between the contractor and other consultants involved in the project.

Consider the following: The law as it applies to architects provides a useful starting point when considering the obligations and responsibilities of these other professionals.

Answer:

A warning is an advisory to the general public or a subsection of the population about the dangers of something.

Warnings are quite common.

We are exposed to warnings every day, whether on our roads or on packaged food items.

Warnings are intended to provide a safe environment for humans.

It is the duty of architects to warn others about matters they know could cause harm if not addressed.

In Nye Saunders and Partners, v Alan E. Bristow, an appeal court found that an architect had failed to warn of the potential increase in costs for a building.

Accidents are common on construction sites. An architect’s duty stems from the number of fatalities associated with construction accidents.

Duty to Warn

English law states that architects are not legally required to warn.

But, in some cases, this duty might be required.

The tort law principle of the duty of care provides a basis for a duty to advise.

The duty to warn third parties about potential dangers would fall on the architect.

Similar to contract law, an architect must warn third parties of potential dangers that he is not aware of.

Plant Construction plc V Clive Adams Associates & JMH Construction Services Limited. In this case, the court had to discuss the duty to warn as well as the implied term of care for architects.

The court found that the architect must perform to the standard of any other architect in the same circumstances.

Any discrepancies or defects found in contract documents must be pointed out by an architect before work can begin.

It is important to correct any defects in the contract documents before they are started.

NEC (New Engineering Contract), both the contract parties have a duty to warn.

Sahib Foods Ltd. V Paskin Kyriakides Sands. Clients were held responsible for failing to warn about the possibility of fire in spite of their lack of expertise in design.

Parties are obligated to communicate early warnings about any matter that may delay construction or increase costs.

Worboys against Acme Developments held that an architect who was aware of the need for ground floor toilets was not negligent.

To avoid delays and cut costs, all parties must hold a meeting to discuss ways to minimize or eliminate the dangers associated with the proposed project.

In City of Brantford v Kemp & Wallace-Carruthers Ltd the Court of Appeal ruled the Engineer had to inform the parties about the risks and costs.

An architect must exercise reasonable care, diligence, skills and respect for his client.

Wimpey Construction UK Ltd. against Poole, the court held that an architect’s duty was to render services with reasonable skill, knowledge, and care.

This duty is not however absolute.

Only the law demands that architects use the skills and judgements they have in a professional manner. This is the same as what is expected of other professionals in similar fields and under similar circumstances.

An architect generally cannot promise that the works he undertakes will be suitable for their intended purpose. However, he impliedly promises the exercise of reasonable care as any architect would.

Klein v. Catalano was a case in which an architect’s undertaking meant that he is competent and capable of rendering professional services and that he will endeavor to use his abilities and skills under the circumstances.

While the undertaking doesn’t promise perfection, there are always mistakes.

Construction Projects: Liability of an architect

A building architect is any individual who plans, designs, or reviews buildings.

The design of buildings and surrounding environments that are intended for human use is what an architect does.

A practicing architect assumes that an architect has all the skills and knowledge of other architects.

The architect is liable for any loss that occurs due to the absence of these skills and knowledge.

Professional Liability of an Architect

An architect could be sued for negligence.

The plaintiff must prove that the architect is negligent to prevail in a negligence claim.

This was because the designer professional was negligent.

The plaintiff suffered legal damages because of the designs professional negligence.

This is because an architect who acts professionally is able to have superior knowledge and skills. He is therefore expected to exercise the highest standard of care.

The architect is responsible for any damages resulting from his or her failure to use care, diligence, judgement and skill in the execution of construction related duties.

Because the architect is not responsible for the accuracy or success of any architectural plans or structures, it does not mean that he will be held liable for any damages.

He would be held liable if the architect fails to use his knowledge, skills, and judgement.

Failure to exercise the necessary knowledge, skill, and judgment may result in the architect being held liable for any additional costs incurred for completing the project.

An act of negligence by the architect is not prevented simply because the owner is present during the construction.

The architect would be exempted from liability if the building is unsafely constructed unless there was an express agreement between the owners and the architect.

Metropolitan Property Realisations Ltd. ruled that the builder had a duty to inspect the subsoil and adjoining land.

Except where the contractor is responsible, an architect who is acting as a superintendent for a construction isn’t liable for losses.

An agency agreement may modify the duties of an agent to make an architect liable for failures in skill, fidelity, and care.

The fact that the contractor is responsible for any damages directly caused by bad construction does not exonerate the architect. This also does not allow the architect to seek reimbursement.

Both the architect and the contractor would be held responsible for the entire amount.

Accordingly, the owner would be free to choose to sue either the architect or the contractor.

Any extra work the architect does without authority from the owner, or without a claim to agency, is liable.

Baxall and Sheard Walshaw Partnership held an architect who assumed design duties liable for roof defects.

Although the law protects architects from third-party liability, he may still be liable to the owner and contractor if he uses a method of construction that does not provide sufficient support or causes injury to workers.

When making building plans, an architectural is like an independent contractor, who owes only duty to the employer. But, if he acts in the capacity of an owner’s agent, he may be responsible for providing safe work conditions for all those on site.

Broadway Malyan, J Sainsbury plc v Broadway Malyan describes in detail that designers will not be held responsible if the client exerted control over the design so that the designers followed his exact instructions.

If an architect refuses to give a contractor a certificate, he would be held liable.

The architect is not liable for refusing to grant the certificate that is due if the circumstances are one of lack of skill and care.

However, if the architect is guilty of fraud due to collusion with the owner they are both liable. The contractor may choose to sue either one or both.

An architect is responsible for liability after a disaster like an earthquake or post-construction.

It is important that architects construct earthquake-resistant structures, especially in areas where seismic waves can lead to continental drift and earthquakes.

To identify structures that can resist earthquake waves and still be strong, architects need to conduct feasibility studies.

This study should help architects identify the necessary technology to make earthquake-resistant structures.

Post construction defects can be caused by earthquakes.

When drawing construction plans, architects need to consider the social and economic consequences of earthquakes.

They must be educated about disaster preparedness and management so they can build buildings that resist earthquakes.

The earthquake’s primary impact is on human lives, causing death and injury as well as destroying the built environment.

Although earthquakes can be considered natural disasters, architects with the necessary knowledge and skills should ensure that they either approve and construct structures in areas not vulnerable to earthquakes, or that they use technology to make structures that are more resistant to seismic waves.

Brebbia C., Earthquake resistant Engineering Structures VI: A selection of papers presented at the 6th International Conference on Earthquake Resistant Engineering Structures. Southampton WIT Press 2007.

Cooke J., Architects and Engineers and the Law Annandale (N.S.W.: Federation Press 2010, 2010

Cushman, Robert F. and Michael C., Design build Contracting Handbook, Gaithersburg, Aspen Law & Business. 2001

Hess S., Design Professional & Construction Manager Law Chicago: American Bar Association Forum on the Construction Industry 2007, 2007

Kelley G. Means Company Construction law. An introduction for engineers and architects, Hoboken, New Jersey 2013.

Kevin R. and Robert F. Architect and Engineer Liability, Claims against Design Professionals. New York: Aspen Publishers. 2006

Lupton, S. Cornes, and Lupton’s Design Liability In the Construction Industry (2013)

Sweet, J. and Marc M. Law Aspects of Architecture Engineering and the Construction Process. Stamford: Cengage Learning 2013.

Sweet, Justin, Marc M.

Schneier., Legal aspects of Architecture, Engineering, and the Construction Process. Stamford: Cengage Learning. 2013

Thomas J. Smith and Currie & Hancock Llp’s Common Sense Construction Law. A Practical Guide for the Construction Professional. Hoboken, N.J. J. Wiley. 2005

Uff J. Construction Law London Sweet & Maxwell 2013