‘State-of-the-Art’ defence

‘State-of-the-art’ may be defined as the current stage of development of practice or technology, involving the use of the latest techniques or equipment. It often involves the first or early use of materials or techniques before they have been proven by long practice. There is inevitably a risk in being one of the first to use something new. This risk may reduce in time as use reveals the weaknesses inherent in each development. Thus, with practice, the flaws in that which was innovative are discovered. Growing familiarity with each state-of-the-art development provides the knowledge base to improve reliability and avoid error.

Where this knowledge was not available at the time the state-of-the-art development was made, the persons involved cannot subsequently be held to be culpable on the basis of better knowledge provided by hindsight. This applies to negligent liability involving common-law duties of care but is not likely to be accepted as a defence in respect of strict contractual duties. It may not apply in the case of novel designs which the employer is not warned are untried. This was made clear by the judiciary in 1984 in relation to designs for a low-maintenance building:

For the architects to use untried or relatively untried materials or techniques could not in itself be wrong, as otherwise the construction industry could never make any progress. However, architects venturing into the untried or little tried were wise to warn their clients specifically of what they were doing and to obtain their express approval. When the architects mentioned their intention to tile to the Plaintiffs, anxiety was displayed which made it all the more incumbent on the architects to be careful. The university wanted a low maintenance building and the architects wrote saying the tiles should last the life of the building. Any doubts about the reliability of the tiles should have been resolved by not using them. Although not obliged to follow the recommendations contained in literature on the subject, the architects should certainly have taken the information into account as opposed to disregarding it. They designed the centre without features to protect from the rain; they used fondu No 1 without waterproofing additive and failed to bring about necessary changes in design where the staining began. It also would seem that on no occasion did they discover that the subcontractors were not doing their work properly. Consequently, it was to be inferred that the architects did not inspect properly. Accordingly, the architects acted in breach of contract and were negligent in their design for both phases, in their supervision and failure to review the design.