Architects' liability

Liability in contract

The elements of breach of contract are the existence of a contract and a failure to fulfil its terms. It is not necessary to prove that the plaintiff has suffered loss or damage, although this will be relevant to the amount and type of compensation awarded. In most contracts it is no defence to say that the defendant acted reasonably.

Real contracts between professionals and their clients reflect the fact that there are many matters over which the professional does not have complete control. As professionals, architects usually contract to provide services in accordance with a generally accepted standard prevalent in their profession and for which they can obtain insurance. An express clause of this nature is in the Institute's 2019 Client Architect Agreement:

'The Architect must: deliver the Services described in this agreement with the reasonable skill, care and diligence expected of an architect who has experience with projects of a similar type, size, complexity and value to the Project.'

In the absence of an agreement in writing, a court is likely to find that there was an implied term in the contract between the architect and client that the architect would act in accordance with the standards of a reasonably competent architect.

The standard can be subject to change. If architects enter agreements demanding a higher standard, or acknowledging a higher standard claimed by the architect in running the project, the higher standard will apply. For this reason, and others, it is important to read client-produced contracts very carefully. A warranty that the building will be finished on a certain date, or an undertaking to work to 'the highest standard', might make architects liable when they would not be otherwise, and therefore not covered by insurance.

Liability for negligence

Negligence is a tort and torts are civil wrongs. They don't depend on the existence of a contract, although they can co-exist with actions for breach of contract. Negligence is actionable carelessness. The elements of negligence are that the defendant must owe the plaintiff a duty of care, the standard of care must have been breached and the plaintiff must have suffered loss or damage which is causally related to the breach.

Duty of care

A duty of care is an obligation not to cause harm to someone else.

Originally it was thought that the duty of care was imposed only on those whose business or profession it was to provide information or advice which requires special skill or care in its preparation; a class which clearly includes architects. However, the law in this area has developed significantly in recent years and it is now clear that liability is not limited to a particular situation or a particular class of persons. A defendant will now be held to owe a duty where he or she knows or ought to realise that their statements are likely to be relied upon by the recipient. The reliance of the recipient must be reasonable in the circumstances. Where a statement is made in a serious business context in relation to a business matter, such as by an architect in the course of acting for a client, a duty will be owed.

To whom is the duty of care owed?

The first question to be asked in determining whether a duty of care is owed is whether the risk of injury to the plaintiff (or a class of persons of whom the plaintiff was a member) was reasonably foreseeable. Where there is a contract for the provision of professional architectural services it will almost always be the case that loss to the client is the reasonably foreseeable consequence of negligent performance by the architect.

Where the test of foreseeability is met there is a further requirement that it is reasonable that a duty of care be imposed upon the defendant in all of the circumstances. The contractual professional relationship is relevant to this in the case of architect and client. The same tests are applied to building users. The fact that a building user could be injured would be relevant to a consideration of whether the tests were met in the specific circumstances of injury to a building end user. There are many examples where the duty of care has been applied.

Has the standard of care been breached?

This requires the court to consider what the reasonable person having the skills of a reasonably competent architect would have done in response to the reasonably foreseeable risk. The court would evaluate this in terms of the state of industry knowledge at the time the relevant decision was made. At this stage the court would weigh up such factors as the magnitude of the risk, the gravity of the likely harm and the burden upon the defendant of taking precautions.

What mistakes lead to liability?

Architectural practice is complex and requires a degree of skill and diligence much higher than many occupations. It therefore provides many opportunities for mistakes that may lead to liability. Extreme care needs to be taken to only provide services within your expertise. This does not mean your own or your colleagues' view of your skills but the ordinarily accepted skills of an architect, for which professional-indemnity insurance (PI) can be obtained.