Design Liability

Lecture week 4

Who are designers

• Qualified Person:– Professionals

• Architects

• Engineers

– Contractors– Subcontractors– Suppliers

Contractual liability

• Depend upon the contractual agreement– Standard form contract-PAM or PWD– Conditions of appointment produced by

professional bodies

Duty to use reasonable care and skill

Bolam v Friern Hospital Management Committee

Per Mc Nair J:

“Where you get a situation which involves the use of special skill or competence…the test…is the standard of the ordinary skilled man exercising and profession to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercise the ordinary skill of an ordinary competent man exercising that particular art”.

Liabilities of Designers

• Architects, engineers, surveyors– The liability may commence from the inception of the project1) Have to make clear of objectives of client.

Stormont Main Working Men’s Club v J Roscoe Mine Partnership

Held: If the client has expressed his instructions in terms which leave the architect in doubt as to what his purpose is, the architect has a duty to ascertain what is the purpose he is instructed to achieve.

2) Responsibility to make sure that site, contours, geology and dimensions are appropriate.

Moneypenny v HartlandThe engineer relied upon a third party as to the quality of the ground and did not carry out drilling or the required test.Held: In the absence of proper delegation, the designer is not entitled to rely upon the work of other.

The client will be personally liable if the designer is not a qualified person.

Segar Restu (M) Sdn Bhd v Wong Kai Chuan

The def had mistakenly built the building on adjoining land to the site. He relied upon a registered building draftsman and not a qualified surveyor or architect.

Held: The plf is entitled for damages as def had trespass his land.

• Generally, designers should not delegate the responsibility unless there is a formal delegation.

Moresk Cleaners v Hicks

The contractors (plf) had agreed to carry out excavation work for the HK govt under the HK PWd forms with BQ. Due to adverse ground conditions, the engineers gave eot which was more than doubled the time for completion but the plf also claimed to be entitled for adjusted rates and additional sums of payment to cover some unforeseen conditions. The govt. contended that the plf was bound to them and that the engineer could not adjust the rates.

P.C: The The plf has the right to claim the additional sums based upon the adjusted rates as it was certified by the engineer (whom had been formally delegated with the task of design by the client).

Thomas Saunders Partnership v Martin Harvey

The plf (architect) was appointed by the client to design a new office premises which include a 24- hour computer centre. The plf had formally delegated part of the design work to the def (the contractor) and was given a written warranty by the def. Due to some design errors, the architect had to compensate the client. The plf claimed that def is liable to compensate them for the payment they had made to the client.

Held: The plf is entitled to recover against the def in respect of the written assurance.

Contractors

• Where the contractors are not involved in design and build , their design liability will limited to :

1) Temporary work- PAM cl 1.2

2) Permanent works expressly stated in the contract document, to be contractor’s design.-Pam cl.1.3

University of Glasgow v William Whitfield and John Laing Construction

Contractor owe no general duty to the client tp warn of design deficiencies. The duty only arise where the contractually actually knows of the practical weaknesses.

Brunswick v Nowlan

The resp (def), engaged an architect to design a house. The app was the main contractor. After construction, the roof leaked badly due to basic design inadequacies. The resp sued the app for the resp for the defect.

Supreme Ct of Canada per Ritchie J:“ The app carried out the work of building the house

without supervision of any engineer or the assistance of the architect and I think that the appellant must therefore be taken to have accepted the fact that the resp were relying entirely on its skill and attention as a contractor… in my opinion, a contractor of this experience should have recognized the defects in the plans…I think the contractor was under a duty to warn the resp of the danger inherent in executing the architect’s plan.

Sub contractors/suppliers

• Nominated SC/SPIf the the NSC is made responsible for the design work, the main contractor (who is contractually responsible to the client), will have recourse to the NSC for any inadequacies.

- It is a common practice, where NSC is requested to give formal warranties to the client, which create a contractual relationship with the client.

Greater Nottinghamshire Co-operative Society v Cementation Piling and Foundation Co

The NSC entered into a direct collateral warranty for design of their piling work with the plf (client). When the plf work caused loss, the sued them.

CA: The warranty only covered design and materials but not workmanship which was the cause of the loss…no action for the economic loss suffered could proceed…

• Domestic SC/SP

The DSC has no independent existence from the main contractors, therefore the main contractors shall be fully responsible for the design work carried out by their DSC.