Professional Negligence in Tort – Sods Law or a Landmark Victory

Being accused of negligence is troubling enough but for an architect to be accused of ruining construction when not appointed, and to have done so even when not there, might worry the most confident practitioner.  This inventive claim, concerning a back garden, lead to a landmark case on liability for professional negligence in tort.

Background

At the request of a married couple who were her friends, an architect asked a builder if he could terrace a hilly back garden as shown on a gardener’s drawings.  The architect had offered her services but to avoid professional fees the couple did not agree this offer.  Out of friendship she helped get the work underway without requesting payment. 

The builder began shaping the clay banks.  Shortly thereafter the couple fell out over cost, sacked the builder and, dispensing with the architect, continued the ground works with an unsupervised sub-subcontractor.   With stalwart consistency, the couple then dismissed the sub-subcontractor to be left with incomplete work and much mud.  Taking advice from others, in so far as advice could be procured at no cost, the couple threatened to sue in turn, the contractor, the sub-contractor, the sub-sub-contractor and finally the architect.  This last they did.  

Preliminary Hearing

A trial of preliminary issues was held with the following results:  Because of ambiguity and lack of consideration, the architect was not under contract.  Her role was sufficiently akin to a professional relationship for the court to affirm her common law duty of acting with reasonable skill and care.  The judgement was expressed in such a way that an architect’s liability in tort appeared to be no less than that which would exist under a contract for the provision of professional services.  Thus, an architect could be liable under tort for failing to perform services which she had not contracted to provide and for which she was not paid.  This was appealed.

Appeal

The appellant court clarified this judgement as follows: there was no duty to design, budget or inspect.  Insofar as she did perform a professional service, her duty was to do this with reasonable skill and care.   Liability, if any, therefore turned on the facts and the matter returned to the TCC for a full hearing.

Global claim and pure economic loss

The couple’s case included a global claim and pure economic loss.  The courts cautioned against the global claim but allowed it to be heard.  The appeal court confirmed liability in tort could extend to pure economic loss where a professional service, for which responsibility has been assumed, is performed negligently.  Say the architect had intervened while supervising the work and negligently directed the construction with the consequence that it failed causing economic loss, then there would be a clear case of liability.  

Lack of clarity

Undeterred by adverse judgements and mere logic, the claimants confused what was done before and after dismissing the architect, and blamed her for every supposed defect, positing that her absence was as detrimental as was her presence and that she was the root cause of all their woes. This muddying of the case proved unhelpful in court.

Final Hearing

The claim was divided into two parts: i) defective construction and 2) deviations from the design.  The defendant was accused of negligence in: project management, design, supervision, budgeting and cost control.  

Much of the evidence of defects in the claimants’ statement of case was based on the opinions of a builder, a surveyor and an engineer, none of whom they called to give evidence in court.  The claimants’ architect expert had not seen the work.  I had inspected the work.   I could advise the court from direct observation that that part of it, which was done while the architect was involved, was acceptable.  Deviation from the design occurred only where errors in the garden designer’s drawing made this unavoidable.  I could not say the same of the subsequent work which was clearly of a different standard.

The judge recognised that the architect’s involvement was terminated when the wife found out that the budget was higher than her husband had told her and not because of any perceived fault in the works.  The husband denied agreeing a higher budget than known to his wife and claimed the architect had not given him this budget and that if she had he would not have proceeded.  This assertion was dismissed at the 1^st hearing.  The claimants then decided not only to accept they knew the budget but claimed that they had relied on it.  Their claim evolved to include an assertion that the budget produced by the architect was unachievably low and negligently prepared.  They felt they had been seduced into a project which, had they known the real cost, they would not have started.  As a consequence, they argued, the whole of their losses arose out of the architect’s negligent pricing.  

The judge noted both the inconsistencies between the claimants’ evidence and contemporaneous documents and the inconsistencies in the history of the claim which changed after each hearing to circumvent adverse rulings.  He condemned the scatter gun approach to the claim and its lack of clarity.  The claim failed on every point but may have succeeded in doing what the judge astutely noted as; “To pursue this claim suggests that the Claimants seek to punish the Defendant for her alleged negligent mistakes rather than seek fair and reasonable compensation …”.  Being dragged through 5 years of vexatious litigation is punishing. 

The unsubstantiated claims of unsafe work evoked images of imminent landslip threatening to bury the claimants in their house.  The result was a landslide victory for the defendant.  The garden is finished but, with 5 years of litigation, at what cost?

In an age when architects no longer coordinate designs and builders no longer accept responsibility for the building, how do you make sure a building is weatherproof?

From the outset of my career as an architect, I found it regarded as a normal and essential part of the architect’s role to coordinate the design team and integrate architectural, engineering and specialist designs into a working whole.  More recently, as a forensic architect, I find troubled projects where the project architect’s role is diminished, leaving no member of the design team with overall responsibility to coordinate the team and check the compatibility of each specialists’ contribution to the design.  This was brought out recently in a design and build project which leaks.  The general contractor blamed separately: the architect, the brick laying sub-contractor and the curtain walling sub-contractor for the failure.

The main contractor entered a contract under which it was responsible for design, supply and build and then subcontracted all of the work.  When the finished building leaked, the contractor took the stance that, as it had not in fact designed or built anything, it must be blameless and fault must lie with its consultants and subcontractors.  

The architect sought to distance himself from the problem.  As is typical under a design and build contract, the architect was given a limited brief and even more limited fee.  Accordingly the architect stated; ‘We do not approve drawings, we only provide the design intent and a visual concept, along with our understanding of how things go together’.  Despite the usual mishmash of project managers, coordinators, etc. no one had been charged with the task of checking the compatibility of each consultants’ and specialists’ designs with each other.

Without establishing the causes of the leaks, the general contractor withheld money from all whose work might be at fault. 

How does rain penetrate a masonry walls?

By their nature, masonry walls are not waterproof.  The specification, design, detailing and construction of walls should be tailored to local weather conditions.   The likely severity of rain driving through masonry can be assessed from the wall spell index[1] - the more severe the exposure, the more vital the correct detailing.  Particularly important is the detailing of d.p.c.’s, joints and junctions.

D.p.c.’s have limited ability to bond to mortar and, especially if dry bedded, may form continuous capillaries to draw water in. Even without d.p.c.’s, water may enter through the microscopic labyrinth of voids at mortar to masonry junctions and through movement cracks.  Inappropriate detailing, such as recessed mortar joints, can further worsen performance.

Even well designed and built masonry walls may leak if connected to poor roof details.  Parapets, poorly jointed copings and the lack of overhangs, drips and d.p.c.’s commonly let water into walls but may go unnoticed until emerging it manifests itself as damage.

Where does the water go?

Once water has entered masonry walls, it may spread unseen and reappear as leaks, typically at places where the masonry construction is interrupted, such as: floors, doors, windows, etc. 

This is a common problem in cavity walls.  Good practice is to design on the basis that water will penetrate the outer leaf of cavity walls and run down the wall cavities.  To prevent damage, weep holes and cavity trays are customarily installed to drain water harmlessly to the outside. 

Careful detailing is required to prevent water damage where the masonry is interrupted.  Water running through masonry and wall cavities may not be noticed until it flows onto lintels, window heads, etc. and causes visible damage.  This often leads too readily to the assumption that glazing systems are faulty or incorrectly installed as this is where the water damage is seen.    With good design and supervision, glazing and masonry can be combined without problems but when it does go wrong, informed inspection and simple testing can reveal the causes of water damage, allowing effective repair and the correct apportionment of blame.

Getting it right

Successful teamwork is engendered by good planning and management with clearly allocated responsibilities and effective communication.  Empowering skilled designers and tradesmen to work well as a team requires leadership, organization, proper funding and timely payments.   Designs should be well prepared in advance and developed in work as required.  This happens when tradesmen and professionals develop mutual respect and have the resources to work together as and when needed.

Sometimes each trade, specialist, contractor, etc. is left to decipher what is wanted from the contract documents and what they find when it’s their turn on site.  Cost cutting jeopardizes supervision, inspection and design leadership.  Most have, of necessity, developed practical ways of handling the problems arising and produce good work despite the difficulties.  Occasionally the problems can seem intractable. When this happens, independent experts can help.   We can be contacted anytime at fact@ArchiFACT.co.uk or via voicemail on 01484 515701.

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[1] BS 8104 Code of practice for assessing exposure of walls to wind-driven