“As architects, we have a duty of care in being aware and considering our environment, the society and the users in our designs.”
What does the industry think?
Architecture Journal: Where do architects stand when it comes to duty of care?
Published 21 February 2002
Do architects owe a duty of care in tort to subsequent occupiers for latent defects in a building, built to their design, even though they have no contract with the occupier?
For those architects who qualified during the past decade, this question is likely to cause no more than the raise of an academic eyebrow along the lines of ‘interesting question’. For those longer in the tooth, who can recall the heyday of tortious claims during the l980s, it will probably send a shiver of horror down their spines.
In the years between the two, major House of Lords decisions on this point – Anns v Merton (1978) and Murphy v Brentwood (1991) – showed that anyone who had anything to do with the design or construction of a building could be sued by the ultimate occupier, if it subsequently transpired that the building was defective.
Rarely was there a contract between the end user and the design and construction team. But in those days, it did not matter. The law lords had decided that designers, builders and the local authorities who approved the plans all owed a duty of care to the end user. Thus if the building subsequently failed the occupier could, and frequently did, claim against a long list of defendants, including, invariably, the designers.
All this came to an end in 1991 with the landmark decision of Murphy v Brentwood when the House of Lords reversed its previous decision and held that builders and local authorities did not owe a duty of care to subsequent purchasers in respect of latent defects. At a stroke, the ultimate occupier of a defective building had no claim against anyone involved in its design or construction unless they had a contract with them.
A device then rapidly emerged that gave occupiers some contractual redress – the collateral warranty. Otherwise the general rule for subsequent owners of dodgy buildings was ‘no contract – no claim’. And for a while the pressure was off the designer, well, at least so far as claims by subsequent owners of defective buildings were concerned.
But the law does not stand still and two recent cases have caused a ripple in these apparently calm waters.Last year, Technology and Construction Court (TCC) Judge Bowsher QC explored one of the exceptions to the ‘no contract – no claim’ rule, namely that designers could be liable for defects which the purchaser would not have had an opportunity of discovering before acquiring the building.That case, Baxall Securities Ltd v Sheard Walshaw Partnership (AJ 21.12.00), concerned a flood.
More recently, in Bellefield Computer Services Ltd v E Turner & Sons Ltd (judgment 9.11.01), the TCC considered architects’ liability for damage caused by a fire at a commercial dairy. The defendant contractor had, contrary to the usual practice, itself engaged architect HD Watkins and Associates to provide partial architectural services. After the fire it was discovered that the compartment walls and adjacent fire lining of the first floor had not been constructed in accordance with the specification. Importantly, the fire lining had not been taken up to the underside of the metal roof sheets, but only to the roof ‘s polystyrene insulation.
The judge, adopting the decision in Baxall Securities, found that the architect did owe a duty of care to a subsequent owner for damage caused by these defects, which the owner would not have been able to discover.
In this case, however, the judge rejected the contractor’s claim that the scope of the architect’s duty extended to designing a two-hour fire rated compartment wall. He said the architect’s position was an unusual one in that it was subcontracted to provide partial architectural services to the contractor, who in turn had agreed to carry out some design work.Thus the architect had not produced a detailed design for the construction of the fire-resistance detailing.
As it had not agreed to provide a complete design for the contractor, it could not owe such a duty to the owner. The contractor’s claim failed.
So, in the light of these authorities, the answer to the opening question is now ‘maybe’ but, happily for the architects, ‘not in this case’.
Architecture Registration Board:
An issue concerning the effect of governing legislation when determining a duty of care
Published 17 April 2010
The ARB is a public body having statutory functions; and architects who are registered (or entitled to be) are among the persons most nearly affected (in their livelihood and reputation) by its performance or non-performance of the functions which have been assigned to it by the governing legislation.
In this connection a Court of Appeal decision in March 2010 is an authoritative judicial precedent upholding and applying the legal principle that such a body owes a duty of care to persons affected by its performance or non-performance of its statutory functions, such as could be a cause of action for damages in the event of negligence on the part of that body.
I was reading the Architects’ Journal’s 22.11.2012 publishing which was on the AJ Writing Prize. This year’s question,
Do Architects have a duty to anyone but their client?
, brought up responses in much connection with our studies on Duty of Care, so I decided to include some quotes from some of the essays.
J Schutzer-Weissmann:
“Broadly speaking, the function of the architect tends to revolve, even 2,000 years post-Vitruvius, around his triad of functionality, durability and beauty. But, the first of these, the ‘Utilitas’ is chiefly driven by the client’s brief and the second, ‘Firmitas’, the client could probably supply without recourse to a fee-taking professional. These days more often than not it is the ‘Venustas’ that draws a client towards the dotted line; it is widely assumed, from developers to corporations, from celebrities to status-anxious housewives, that an architect’s duty is to add to this functioning, sturdy structure a certain aesthetic, a recognisable expression of beauty.
If we accept an architect’s duty is to satisfy the demands of his client, then we should accept unquestioningly so much of that is drab and uninspiring in the built environment. There are countless apartment blocks and shopping centres, houses and office parks that ‘function’ admirably, that do not leak and which, with stripe of cladding or an amorphous blob of roof, seem to satisfy their clients’ every demand. If ‘duty’ can be defined as simply satisfying the demands of the client, the architect need go no further than providing him with a preconceived symbol of his desires that doesn’t leak.
…
It reminds me that the duty, as well as the joy, of an architect is not merely to promote (or even sustain) a client through fulfilling a brief but to add value to the place in which it is built and to benefit and delight those who use it and change it in years to come.”
Gemma Owen:
“The built environment, unlike almost all other design disciplines, affects everyone – the client, the city, town or village around it, the society it serves and in the wider context the environment we all inhabit. It can even at times make a political statement. The building, once realised affects all these entities not only now, but critically long into the future and often far beyond the life of the current client.
For those very reasons it’s almost impossible for the architect to design catering for the client’s needs only, and nor should they even try.
Creating design in isolation, devoid of any obligation to consider the building in relation to its larger social, environmental, economic and political context both now and in the future creates poor, ill-conceived design. It is the architect’s ability to see the big picture that sets us apart from other design practices.
But it can, and often does, create some level of friction between architect and the client, and additional, often unpaid, work. It requires a robust sales pitch in explaining the sometimes complex reasoning behind the desire to push the boundaries of the client’s vision.
…
we must complement and enhance the solution with our own unique expertise ensuring that the client’s vision is always connected to the wider context. To encourage new ways of thinking, to create something that rewards not just the client but the wider society and environment from which the building cannot be detached.
Buildings on the whole outlast their clients, they live on long after the client has retired to play golf on the Costa Brava, and we have an obligation to know that we did all we could to make the building a continuing success.
In the current economic climate where construction projects are few and far between and clients are understandably less willing to take perceived ‘risks’ with design, the architect’s desire to push beyond satisfying simply the demands of the client can be daunting – and indeed more challenging.”
Daniel Elsea:
” We live in a world shaped by buildings. This is why no building should be considered in isolation. Architecture is a living, breathing part of overlapping contexts. There are physical and cultural contexts, and perhaps most pertinent in our era of environmental threat, there is ecological context.”
Dominic McAndrew:
“As architects we are all passionate individuals – it was a tough time at university, we needed our passion to get through the semester. So why, pray tell, are we letting our craft down by not making our work accessible and providing a service and design that not only the client didn’t know they needed but a design the client realised they needed through our mentoring and insight?”
by Zsofia
Zsofia Tompa 