Architects liability

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[edit] Sources of liability

An architect may be liable to their client for:

• Breach of contract.
• Through the tort of negligence.
• Under statute.

The question of professional liability can be approached under the following headings:

• A minimum standard of reasonable skill and care is to be exercised in the discharge of professional duties carried out under the contract.
• A higher duty to achieve particular results, comparable with the duty generally placed upon a builder, may be contracted for.
• Duties under the law of tort to third parties may also be owed to a client concurrent with a contractual duty.
• A more specialist duty may be owed in tort when giving advice whether to a client or to a third party.
• Additional duties may be imposed by statutes.

[edit] Contractual duty of care

• An architect has a duty to use reasonable skill and care in the course of employment.
• An architect will be tested against the conduct of other architects.
• The courts recognise that failure is not conclusive evidence of breach of duty: ‘The surgeon does not warrant that he will cure the patient, nor does the solicitor warrant that he will win the case’

[edit] Contractual duty of result

• An architect can, under the express terms of a contract, take on the responsibility to ensure that the end product will perform as required.
• This is a much more onerous standard and will have implications for the architect's professional indemnity insurance.
• Such a duty is most likely to arise in design and build contracts where the architect is employed by the contractor, who generally has a duty to achieve a certain result.
• If the architect's involvement is either as part of a package deal to design, supply and erect an end product, or to design something to comply with stated performance criteria then they may be obliged to ensure that the finished article is fit for purpose

[edit] Duties in tort to clients and third parties

Murphy v Brentwood District Council 1990

• Severely limited the remedies available to third parties by restricting the losses which can be recovered in tort.
• Recoverable losses are now limited to personal injury and physical damage to property.
• Pure economic loss cannot be recovered including reduction in the value of property as a result of damage.
• No duty owed in tort to protect building owners/occupiers from the cost of repairing defects in their buildings or financial losses incurred by reason of remedial works.
• However, if a building has defects that threaten the safety of passers-by, the owner may be able to claim the cost of repairing or demolishing the building so as to make it safe.
• Also, if damage to the building causes damage to other property of the claimant, costs can be recovered in respect of the other property.
• As a result, subsequent owners have relied upon collateral warranties
• Contracts (Rights of Third Parties) Act however, confers rights to enforce contractual terms on parties who are not party to that contract

Hedley Byrne & Co Ltd v Heller & Partners Ltd

• The professional may owe a duty when giving advice to avoid causing economic loss to third parties who rely upon that advice

[edit] Liability for breach of contract

The architect’s obligations are both express and implied:

[edit] Express terms

• Incorporated by the use of standard forms of appointment.
• Made orally or in correspondence.

[edit] Implied terms

• Terms may be implied as a matter of law. That is to say they are implied as a matter of policy and are of general application to all contracts. Further terms may be implied as a matter of fact. That is to say as a matter of construction of the presumed intention of the parties to a particular contract.
• For example, it may be implied by the Supply of Goods and Services Act 1982 that the architect must use reasonable skill and care.
• In the absence of express terms as to time, to carry out the work within a reasonable time.

[edit] Breach of contract

• If an architect does not perform their obligations under a contract, they will have committed a breach of contract.
• Liability will be measured in damages.
• That sum may exceed the architects fees.
• The extent to which the architect is liable may be limited by a limitation clause.
• Liability for breach of contract includes liability for consequential loss in so far as those losses are of a reasonably foreseeable type

[edit] Find out more

[edit] Related articles on Designing Buildings Wiki

• Architect.
• Appointing consultants.
• Breach of contract.
• Consequential loss.
• Contract.
• Express terms.
• Implied terms.
• Measure of damages.
• Professional indemnity insurance.
• Tort.