There is case law
which suggests an architect or engineer has an ongoing duty to review their design.
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: ‘True, my design was
faulty but of course, I saw to it that the contractors followed it faithfully’
and to be enabled on that ground to succeed in the action.[1]
There is authority that duration of the duty
continues beyond practical completion until the works are truly complete.[2]
The
extent of this duty is not set out in a statute but comes from precedent drawn
from a number of decided cases. There is
some debate as to whether this duty arises as a matter of course or due to a
specific event during a project.
Archie, having designed a wall in 1990 which
would not adequately resist driving rain, goes onto site in 1992 when the
builder starts to construct the wall.
The building is completed in 1995 and is subject to driving rain which causes leaks in 1997.
When he goes on site, Archie sees his design
being built and has an opportunity to recognise and correct his error but does
not do so. This failure to correct his
earlier error is a negligent action, in respect of which a claim for damages
could be brought.
If it is seen as a renewal of his earlier
error, it may be argued that the limitation period for a claim for the design
error runs from 1992 not 1990. If it is
a new and distinct error, there may be some difficulty in sustaining a
worthwhile claim against him. Arguably,
the new error cannot cause a loss, the loss already having been caused by the
earlier negligence in design. The amount
claimable for damages is based on the loss caused. Logically, the second error, however
reprehensible, is not the cause of the loss for the negligent design and causes
no additional loss because, at the time the second error was made, all of the
loss was already an inevitable consequence of the earlier error and, if that
earlier error had not been made, the second error could not exist.
Correcting a design error, apart from the
additional work done by the designer, may not result in any loss if done early
enough. A correctly designed wall may
not cost more to build than an incorrectly designed one. Therefore, finding and correcting the error
before the wall is built to an incorrect design may occasion no loss. Once construction is commenced, the cost of
correcting the error is likely to increase as work progresses and to reach a maximum
once the building is finished and occupied.
If it is accepted that there is a continuing duty to review, delay in
finding the error can be said to increase the loss.
[1] L.J. Sachs in Brickfield Properties v Newton
[2] Judge Bowsher Q.C. in University Court of Glasgow
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