Architects standard of care

Legal definition

Underpinning the various formulations of the standard of care owed by a professional is the judge's statement in Bolam v Friern Hospital Management Committee:

The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (1957, WLR 582 at 586).

The standard of care owed by an architect was explored in the leading Australian case of Voli v Inglewood Shire. The High Court held that:

What an architect must do to avoid liability for negligence, cannot be more precisely defined than by saying that he must use reasonable care, skill and diligence in the performance of the work he undertakes (Voli, 85).

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Specialist expertise

The case law dealing with the professional's standard of care recognises that areas of speciality may emerge within a profession. The courts have responded to specialisation by measuring the standard of skill owed by a specialist against the standard of skill ordinarily exercised by other specialists in that field.

The law on this point has largely arisen in medical negligence cases, however, in his text Architects, Engineers and the Law, JR Cooke points out that:

Architectural practices known for their work in certain areas may qualify for consideration as specialising in the medical sense. In engineering, there are recognisable fields (civil, structural, geotechnical, mechanical, electrical, etc) and it is arguable that there are specialists within those fields analogous to medical specialists (Cooke n.d.).

Cooke notes in relation to engineers, the example of Eckersley v Binnie & Partners (1988, 18 Con LR 1), where the NSW Court of Appeal held that the standard of skill to be applied to the defendant engineers was that of reasonably competent engineers specialising in the design of water transfer systems, including tunnels (ibid at 43).

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Compliance with accepted practice

Compliance with accepted practices of a profession is not necessarily a defence to a claim of negligence, although evidence as to the ordinary practice may materially assist a court in deciding what in a particular case should have been done to meet the requirement of due care (Florida Hotels Ltd v Mayo (1965) 113 CLR per Windeyer J at 601).

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Approval/review of plans by a planning authority

In Voli, the local council (which was the proponent of the project) required Treasury's approval for the project as a condition of obtaining the state's financial assistance to build the hall. The architect's plans were approved by the Queensland Department of Public Works, on behalf of Treasury.

The architect argued in his defence that he felt that there was 'another authority over [him]' which would tell he was wrong (Voli, op cit at 83).

The High Court rejected that argument and stated that:

There is no doubt that the fact that his plans were going to the Public Works Department did operate in his mind. But what should have operated on his mind was not that his plans would be revised. It was the need to bring his own professional skill and competence to the task he had undertaken. His obligation was not limited to satisfying the Department so that it would approve a loan. It was to use due care and skill as an architect so that the hall would be soundly designed, secure and safe (Voli, ibid at 83).

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Minimum standards

Where a contractual relationship requires a particular 'result' to be produced, liability for a failure to achieve it can apply, irrespective of compliance with permits and standards, and whether or not negligence is established. The following UK decision illustrates the consequences of providing a warranty that a particular result will be achieved, which can be compared with the standard duty for consultants to act with reasonable care and skill.

MT Hojgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Limited & Anor [2017] UKSC 59

In this case, MT Hojgaard A/S (MTH) was contracted by two companies in the E.ON Group (E.ON) to design, construct and install the foundations for sixty offshore wind turbines. The ‘contract’ (derived from various documents) contained the following explicit requirements:

1. The design was to be prepared with due skill and care, in a professional manner and in accordance with good industry practice.
2. The design was to be prepared by the method of integrated analysis in accordance with J101. J101 was a reference to an international standard for the design of offshore wind turbines published by an independent classification and certification agency.
3. The works would be fit for purpose in accordance with the Employer’s Requirements.
4. A minimum site specific 'design life' of 20 years.
5. A lifetime of 20 years without planned replacement.
   

MTH designed and fabricated the foundations in compliance with J101 and without negligence. J101 was a reference to an international standard for the design of offshore wind turbines published by an independent classification and certification agency. The works were completed in February 2009 and shortly after, there was a structural failure of the wind turbines caused by an error in the J101 formula which meant that MTH had overestimated the axial capacity of the grouted connection and the foundations did not have a design life of 20 years.

In 2014, a scheme of remedial action commenced which was agreed to by the parties. However, a dispute arose as to who should pay for the works.

E.ON argued that MTH had been negligent and breached its contractual obligations. MTH’s defence was that it had exercised reasonable skill and care and complied with all its contractual obligations.

Working out how the different contractual obligations applied to MTH was no simple matter, and two lower courts made opposing findings before the final Supreme Court decision.

The UK Supreme Court considered that the fitness for purpose obligation was not inconsistent with the requirement that the structures be designed in accordance with J101. The UK Supreme Court explained that where two provisions in a contract impose different or inconsistent standards or requirements, the more rigorous or demanding of the two clauses should prevail and the less rigorous clause is to be treated as a minimum requirement.

The end result was that the court found that MTH’s contract required MTH to do more than use reasonable care and skill – it required MTH to give an unqualified promise that the project would have a 20-year design life. Because of that promise, MTH were still in breach of contract and were ordered to pay for the remedial costs, even though they had used reasonable care and skill.

This case illustrates the dangers of giving outcome-based promises to do more than use ‘reasonable care and skill’, and demonstrates that complying with standards and specifications may not always be sufficient in circumstances where a warranty or more rigorous standard is also included in the contract.

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Risks and insurance

Professional indemnity insurance generally covers claims against the architect for failing to meet the ‘reasonable care and skill’ standard that is described in the section ‘Legal definition’ above.

However, making an unqualified promise that the architect’s design or services will achieve a particular result is a higher and more onerous standard. Architects should not enter into contracts which contain these kinds of unqualified promises, because these higher and more onerous obligations may not be covered by the architect’s professional indemnity insurance. See, for example, Warranties in client and architect agreements and Professional indemnity insurance basics.

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References

• J R Cooke (n.d.) Architects, Engineers and the Law, 2nd edn, Federation Press, New South Wales, 43.