This duty of the architect to exercise due care, skill and diligence may extend not only to the architect's client, but also to a person who, after a building is finished, enters it and by reason of faults in design or construction comes to harm. However, in the absence of a contract between that person and the architect, the duty will only extend where the damage was the reasonably foreseeable consequence of the carelessness or negligent conduct of the architect.
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General duty of care of an architect
The High Court of Australia described the duty of care expected of an architect in the following way:
An architect undertaking any work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments but he must bring to the task he undertakes the competence and skill that is usual among architects practising their profession. And he must use due care. If he fails in these matters and the person who employed him thereby suffers damage, he is liable to that person. This liability can be said to arise either from breach of his contract or in tort (Voli v Inglewood Shire Council (1963) 110 CLR 74).
Whether a duty of care is owed by an architect to a particular person is a question of law – whether it has been breached is a question of fact.
Having set out a general statement of an architect's duty to client and others, this advice examines the specific duties of an architect to correct design and construction errors and to warn of errors. These specific duties, however, only form a part of the general duty of care.
Duty to correct design and construction errors
It is common for an architect to be employed to:
- design a building to meet the particular needs of the client within the client's budget
- periodically inspect the construction of the building to ensure it conforms with the design
- administer the contract to ensure efficient completion of the project.
However, even if an architect was to faithfully follow these requirements, they would nevertheless be exposed to liability should design errors exist or become apparent during construction.
A concise statement of an architect's duty to correct design errors is found in the decision of the English Court of Appeal in Brickfield Properties Limited v Newton (1971, 1 WLR 862):
The Architect is under a continuing duty to check that his design will work in practice and to correct any errors which may emerge. It savours of the ridiculous for the architect to be able to say, as it was here suggested that he could say: 'True, my design was faulty, but, of course, I saw to it that the contractors followed it faithfully,' and be enabled on that ground to succeed in the action.
This duty applies whether the error emerges prior to or during construction.
Having established that the duty exists, of more practical importance is outlining some situations where it may arise.
Discovery of design defects
Errors in design may emerge prior to construction or during construction. In either event, the architect is under a duty to correct those errors.
Discovery of improper contractor performance
The courts are quick to impose a duty on architects to closely inspect construction and to inspect sufficiently frequently, to ensure that materials and workmanship conform with contractual requirements. If an error in construction is discovered, the architect is under a duty to take reasonable steps to have it corrected.
During the course of a County Court case in 1995, it was discovered that the slab of a domestic dwelling was only 12mm thick and had been reinforced with flywire. This type of error is a blatant example when detection and correction should have been undertaken by the architect.
It is generally accepted that the architect may be assisted in his monitoring of the performance of a contract by assistants or clerks of works, but they cannot escape responsibility to periodically inspect construction as a result of the delegation.
Discovering new information which calls the design into question
This situation usually arises where the architect has incorporated something novel in the design or employed a new or untried method of construction. For example, they may wish to suspend a swimming pool over a dance floor employing a new transparent material for the bottom of the pool. If the architect discovers information which renders the design deficient or defective (eg that chlorine reduces the clarity of the new material), then the architect is under a duty to correct that design.
Where the architect has a novel design, or intends to employ a new method of construction, it would be prudent for the architect to explain to the client the risks associated with the novelty and the limitations in the design. It is good practice to confirm the explaination in writing.
This situation may also arise in relation to a particular design which had previously been considered tried and true.
In 1971, a schoolboy aged 15 was skylarking with friends in the school quadrangle a few minutes before school commenced at 8.30am. They were swinging on the halyard attached to a flagpole when the truck (capping piece to flagpole) fastened to the top of the flagpole fell onto the schoolboy's head. The schoolboy commenced proceedings, against the firm of architects (amongst others) who designed the flagpole for negligent design and supervision of the construction of the flagpole (Introvigne v Commonwealth of Australia & Ors, (1980) 32 ALR 251).
The Full Court of the Federal Court of Australia held that the architects would have been negligent if it could be established that they had a duty to take reasonable care to design a flagpole and truck which they should reasonably have foreseen would have been abused in this way. In other words, had the architects become aware, during the course of the design or construction of the flagpole, that it was the practice of schoolboys to swing from halyards, then the architects would have been under a duty to ensure the flagpole and truck were designed and constructed to guard against loss and damage arising out of such abuse.
In this case, the court held that the possibility of abuse was not so notorious or plain as to impose such a duty on the architects.
The above cases are by no means the only situations where a duty to correct design or construction errors arises – they simply provide examples. It goes without saying that timely correction of errors is essential to avoid additional loss and damage.
How design or construction errors are to be corrected will vary from case to case. If an error in design is discovered prior to the commencement of the construction of that part of the design, the architect may be able to rectify the error with a 'stroke of the pen'.
If construction is near completion, substantial work may have to be done to rebuild part of the building or amend its design to compensate for the error.
Corrections which simply restore a building or design to what was originally intended may not require input from the client. However, corrections which amount to a variation or otherwise increase the cost or length of the project may oblige the architect to consult with the client.
Who is to bear the cost of a correction is not always a simple matter to determine. It is often borne by the party responsible for the error if it arose as a result of their negligence. Otherwise, the terms of the contract between the various parties (eg the architect, client and contractor) may identify the person responsible.
Duty to warn of consequences of errors
An architect may discover their negligent errors and take appropriate steps to correct them, but this may still not prevent all the adverse consequences of the negligence.
As stated at the outset, an architect's duty of care extends to all persons who they can reasonably foresee may suffer loss or damage as a consequence of the negligence.
An architect will be held liable for that loss or damage unless they take reasonable steps to guard against reasonably foreseeable risks of injury to others.
If a warning to the client, to the contractor or even a public authority will guard against such risks, then it is part of the architect's duty to provide a written warning. However, the law does recognise that there are limits to the architect's duty. They will not usually be expected to do anything beyond what a reasonable architect would do to guard against a risk having regard to such matters as the likelihood of it arising, the seriousness of its consequences if it does and the cost of guarding against it.
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