THE DUTY TO REVIEW DESIGN

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]

PERSONAL AND COMPANY LIABILITY

Individuals who are members of companies may, through their actions, create liabilities – both on the companies and on themselves.  This is true also of individuals who work for partnerships.

Insurance policies will generally be taken out by companies or partnerships rather than by individuals.  These policies, which protect the companies or partnerships, will not necessarily automatically provide the same protection to the members of the companies and partnerships – whether they be principals, employees or owners. 

For this reason, some professional organisations advise and/or require their members to be expressly covered by the insurances taken out by the organisations for whom they work.  Even where this is in place, the insurance cover is unlikely to extend to protect individuals when acting in their own capacity rather than on behalf of their company, etc.

Therefore, professionals who give advice not in pursuit of a commission given to the organisation with which they work may expose themselves to liabilities for which the insurance taken out by the company or partnership offers no protection.

Insurance Cover for Construction?

It is sometimes not enough merely to see that insurance is in place, it is important also to know what is covered by that insurance.

An example of inappropriate insurance came to light when a major building-products manufacturer undertook the role of main contractor in remedial works to a refurbishment project.  Their building system and materials had been used for the refurbishment work, but performance when finished was flawed.  Believing the faults lay in the site work, not in their products, they undertook to confirm this to the building owner by implementing repairs. 

They ably set about correcting the installation.  This done, the work failed.  They had created an excellent test bed for a relatively new product.  By minimising workmanship error and having full control over design and materials, they had ensured there was a full-sized example of their building system, which was correctly set up and exposed as intended to the elements.  This was a much more robust way of evaluating the system than the laboratory tests and computer modelling upon which all had hitherto relied.  The failures were limited and allowed specific flaws in the computer modelling to be identified, with benefits for the future development and use of the system.

Building over the boundary

A development in Worcester was hemmed in by surrounding properties.  For maximum return, the development was taken to the very edge of the legal boundaries.  To prevent dispute, the foundations were designed not to cross the boundaries into the land of those neighbouring owners who were opposed to the development.  This created difficulties in construction. 

The site team did not appreciate the significance of this aspect of the design, particularly as the legal boundaries were to them nought but invisible concepts passing though muddy excavations. In constructing a basement, the builder ran the bottom layer of concrete wide of the site boundaries.

Exclusion Clauses

The doctrine of privity poses particular problems for exclusion clauses in contracts. 

Exclusion or limitation clauses may exclude or limit the liability, for a specific breach or negligent act, of a contracting party to those it contracts with. 

It is sometimes desirable to extend an exclusion clause to parties outside the contract. For example, a company may wish to protect contractors that it employs.  On the whole, however, privity of contract acts to restrict the effect of such clauses on third parties.

A manufacturer of cladding and roofing materials sells its products through builders’ merchants, under a contract of sale which excludes liability for consequential loss and limits liability in any event to the amount paid to them for their materials.

Part of their cladding cracked after it had been installed on a building.  The building owner, the employer under the building contract, sued the contractor who, in turn, sued the cladding subcontractor, and so on down the contractual chain until the action reached the manufacturer.

At the same time, the owner brought an action against the engineer who designed the building. 

Insurance Policies Must Comply with the Governing Law

Under English law, the principle that a contract must not contain agreements which are contrary to law applies equally to a contract of insurance.  This can cause insurers to have to pay out very much larger sums than they anticipated:

A factory building was substantially damaged by fire, causing extensive collapse. The local authority required the reconstruction of the fire-damaged factory to comply fully with current Building Regulations. The factory had been partially demolished by the fire to ground level but parts of the structure were still largely intact.  The building could – but for the Building Regulations – have been rebuilt, retaining the parts of the factory which were still intact, to the original standard of construction.  This would have complied with the regulations current at the time the building was built but not those current at the time of the fire damage.

The local authority pointed out that, where a building was to be reconstructed from within eight metres of the ground, the Building Regulations would apply to the whole of the fabric including the retained part and that the retained part would have to be brought up to current Building Regulation standards. The result was, to all intents and purposes, that the factory had to be rebuilt as a brand new building.

This increased the claim on the insurance by about £1m. The insurers, an American company, were not familiar with this peculiarity of English Building Regulations and had not foreseen, in setting the premium for the insurance, their exposure to this risk.  They nevertheless could not insist that they had a right to limit cover to the cost of reconstruction to a standard below that required by statute and so accepted that they would have to pay for a new building which complied fully with the Building Regulations but which was otherwise the same as that which had been fire damaged.

Building Insurance

There is clearly a distinction between a building component wearing out naturally and failure due to a defect.  When seeking insurance cover it is necessary to be clear which eventualities are to be covered.

Several USA school roofs failed in sub-zero temperatures within two or three years of the expiration of the ten-year warranty period.  The contractor had assured his client that the roofs had service lives of 15-20 years.

The roofing was in pvc sheets, which shattered in sub-zero temperatures.  Pvc roofing contains plasticizer, as otherwise it would be rigid and lack the elasticity and plasticity required to accommodate movement without fracture. 

Plasticized pvc, to retain its flexibility, needs stabilisers and inhibitors – otherwise the volatile plasticizers will gradually be lost.  These roofs failed after the expiration of the warranty period but sooner than expected, due to gradual plasticizer loss.

The school board sought to recover from their insurers.  The insurers accepted liability for consequential damage but not for the cost of replacing the defective roofs themselves, arguing that the loss did not arise from a fortuitous incident.[1]  The insurers contended that the failure was inevitable at the time of construction, and therefore not covered by the policy. 

It was found, as a matter of fact, that failure was not inevitable – two such roofs having survived.  Further, the terms of the policy did not expressly exclude liability in these circumstances.

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[1] A loss is ‘fortuitous’ if it happens by chance or accident, occurring unexpectedly or without known cause.