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

Knowledge is what you get from reading the contract. Experience is what you get from not reading it

Many disputes arise because one or other of the parties to a written agreement assumed, rather than read, its contents.  Such disputes can be ruinous where the parties delay taking good advice.

In a recent arbitration, almost 12 years after completion of a new-build, low-rise block containing flats, shops and communal facilities, a developer claimed against his builder for water damage.  The developer particularised the claim in terms of design defects with a few sweep-up allegations of poor workmanship.  The remedial scheme commissioned by the developer involved a redesign of that part of the building alleged to be at fault.  The developer sought compensation from the builder for the full cost of the remedial works.

The builder confidently rejected liability for the cost of correcting design flaws as the design was produced by the developer’s chosen architect whose design the builder had been obliged to accept.  

While the builder correctly understood how the design work had been undertaken, insufficient attention had been paid to the peculiar split between design liability and design duty under the building contract.  The builder had entered a modified JCT design and build contract.  This made the builder liable for negligent design while requiring the builder to engage the developer’s architect, to implement the architect’s design and not to alter the architect’s design.  Thus the builder had, under the express terms of the contract, liability for a design over which he had no control.  

The design, as evidenced by the drawings, was completed more than 12 years before the action was brought.  Practical completion was less than 12 years before the action was commenced.  The developer held that, as a builder’s duty continued until practical completion, the action was not statute barred.  The builder disagreed, holding that if the action was statute barred against the architect, insofar as the claim was for deficiencies in the architect’s design, it must also be statute barred against the builder.   The developer also argued that there was an implied continuing duty to review the design during inspections.  However the building contract did not include a requirement for, and the architect was not engaged to carry out, routine periodic architectural inspections during the works.

From the outset, reports by the project insurer’s surveyor, the occupant’s surveyor and the developer’s surveyor informed the legal proceedings and formed the basis for the remedial work, which was completed earlier this year.  It was while the case was approaching a hearing and after the remedial work was complete that I was invited to prepare expert evidence and still later that the developer obtained an expert report. 

I reported that the design was flawed (but not as the developer asserted) and that the developer’s remedial scheme was similarly flawed.   The developer’s expert advised revising the developer’s case and the builder, on receipt of the developer’s expert’s report, stated that it raised issues other than those pleaded and applied to have much of it struck out unless the claim were revised.  Such a late fundamental revision to the Statement of Case may have exposed the developer to a claim for abortive costs and the developer eschewed this advice and resisted the application.   The arbitrator was minded to allow the claimant’s expert evidence on the basis he could properly ignore any part of it which did not go to the pleaded issues.

Both parties, now close to a hearing, were in possession of expert evidence which put into question the validity of the claim as pleaded but which showed there was, subject to the Statute of Limitations, a viable claim.   The developer’s costs already exceeded the sum claimed and the anticipated costs to go to a full hearing would make the parties’ costs greatly exceed the sum in dispute.  The result was a compromise settlement within a couple of weeks of the experts’ meeting.  Regrettably, due to the legal costs incurred, the settlement left both parties out of pocket by more than the sum claimed.  A high price to pay for the experienced gained.  An earlier reading of the contract documents and appointment of experts could have brought the dispute to a cheaper, quicker and more effective resolution.

Ineffective legal remedy for Building Defects

Applying the basic principles of English contract law, if building work is defective due to a breach of contract, the remedy is the cost of correcting the defects. 

Another approach is to retain the defective work as built and make an equitable deduction in payments to the builder.  Deductions might be based on whichever of the following is applicable: the savings made by the builder’s not having to correct the work, the loss of value in the finished building caused by retaining the defects, the lower cost of building poorly, the foreseeable increased cost of building maintenance, loss of longevity, etc.

The courts have in most cases based remedies on the cost of correction or of diminution in value.  There are exceptions where the courts have awarded nominal damages only.  This has occurred where the defects caused loss of amenity for the owner’s personal preferences.  The case of Ruxlev Electronics and Construction Ltd. v. Forsyth is often cited in this connection.

In a more recent case the courts awarded nominal damages for a failure to build a garage to the specified dimensions.  While the logic by which the courts held that nominal damages were an appropriate remedy can be distinguished from Ruxley, the effect is the same in so far as it makes it uncertain that a contract requiring building work to be done precisely as drawn and specified can be enforced effectively.  Where does this leave building professionals who advise on and prepare building contracts?  Do we have to say to our clients, if you enter a building contract based on agreed drawings and specifications, you may have to put up with a deficient building or pay twice?

The incidence of different types of defects

In the most general sense, a satisfactory building is one which is where it is needed, fits appropriately into its surroundings, and provides adequate space and facilities, protected from adverse weather and other undesirable external conditions. Since this protection cannot readily be achieved with short-lived structures, buildings typically outlast many other modern products, and, if built so that they can be adapted to changing requirements and easily repaired, can give satisfactory service for a long time.
Much can be learnt from the condition of the existing building stock about what mostly causes dissatisfaction after completion.
Existing buildings in Britain number about 25 million. Most are dwellings, which in 2000 numbered about 23 million – well over 90 per cent of the total, but it is estimated that in terms of floor area, domestic and non-domestic buildings are roughly equal.
At the beginning of the 20th century there was, in Britain, one dwelling for every 2.6 persons – slightly above the size of today’s dwindling average household. Population growth is now slow overall, and current demand for building arises largely from changes in household composition and inter-regional migration. The annual rate at which new dwellings were being completed in 2000 had fallen to well under 200,000, compared with more than double that figure in the mid 1960s.
Consequently, for English houses as a whole, recent official figures indicate that more than one fifth are over 80 years old, and around half are 50 years old. There are no comparable statistics for non-residential buildings.

In spite of their age, most existing buildings are still fit for continued use. Government statistics for dwellings officially designate as unfit less than 5 per cent of the total (i.e. 885,000 unfit dwellings). The most common reason for unfitness is disrepair (46%), followed by facilities for the preparation and cooking of food and dampness. Externally, faults occur most commonly in roof features and rainwater goods (34%), exterior wall finish (26%) and windows (25%). Internally faults are most common in ceilings (22%). This is an increase in the number of houses which are in disrepair when compared to the previous year’s survey.

Sustainable Solutions for Old Windows

Plastic windows are often put into older buildings, to ‘upgrade’ wooden windows, though the pvc-U they are manufactured from gives them an expected lifespan of not much more than 30 years. They may provide improvement in insulation via double-glazing and improved draft-proofing and so are often viewed as the sustainable solution. This is potentially belied by the reduction in light transmission, pvc-U window’s limited lifespan and the carbon footprint created in their manufacture.  Pvc-U can now be recycled and one major manufacturer recycles up to 90% of old pvc-U windows, including the glass, though even this process has a carbon footprint in the energy used to re-create the window parts.

Listed historic buildings cannot be sympathetically re-fitted with modern plastic windows and the appearance of many otherwise handsome, though non-listed, older buildings has been spoilt by the addition of carelessly chosen replacement windows. The making, rebuilding and repairing of sliding sash windows has merit.

Wooden window frames and sashes of whatever age can be easily repaired if they have not been allowed to rot, though sliding sash windows in particular are often seen by the inexperienced as more trouble than they are worth to restore.  However weights, cords, pulleys and other traditional sliding sash accessories are readily available and slender, pre-manufactured double glazing units can sometimes be used to replace original Victorian glass, which was often especially thick in larger windows. An expertly restored wooden sliding sash should be no harder to open and close than a UPVC replacement.

Good timber is durable, if taken care of it will last for centuries, though it does require periodic maintenance involving paint and repair. Paint too has a carbon footprint, though modern non-volatile paints are improving all the time. Pvc-u is low-maintenance but cannot be repaired as easily, so its longevity is not as good and older plastic windows may suffer permanent discolouration from exposure to sunlight. They can also become stained, mildewed and bird droppings are reportedly particular problems.

Early steel windows, manufactured prior to the introduction of rustproofing treatments at the end of the 1930’s also require additional maintenance. Wartime painting was often neglected and rust allowed to set in, often unseen beneath the putty in the glazing rebates. Cracked glass, provoked by compression from the building up of corrosion products, is a sure sign.

Such windows are often worth conserving and may be put back in good order. Careful removal of glass and putty, followed by grinding off rust to bright metal and the application of a good zinc based primer is essential, before re-glazing and painting.

When extensive conservation work is required, involving the repair or replacement of hardware, the dismantling of composite assemblies, or the piecing in of replacement bars, it may be worth having the windows taken out, removed to a workshop, stripped down and hot dip galvanized before re-assembly.

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