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If the Contract tells you in black and white who is responsible for design and for what part, it should be easy to direct the liability when it all goes wrong. However, are there additional implied terms that can be argued, whether the contract is clear or not, on who has design responsibility?

So, when a design failure occurs who is responsible for the resultant damage? The Architect, the Engineer, the Contractor or Another? The Architect or Engineer i s likely to blame the builder with the proposition that the Contractor has an implied obligation to point out a design problem and failed to do so; further there are implied obligations to carry out work satisfactorily with "reasonable skill and care" and "fit for purpose", by executing work that was clearly wrong it is the Contractor’s fault and liability. The Contractor is likely to blame the Architect or Engineer with the proposition that the Architect or Engineer has an absolute responsibility for the design and should have produced a design that works, if it is wrong they are to blame. This is a common dispute situation as the resultant costs of putting right the problems will be charged to the offender. So, who is right?

The Employer, when appointing a designer, will expect the building to operate, when complete, in the manner envisaged, thus when the building fails the Employer will question the integrity of the design or alternatively quality of the work done by the builder. W here design is concerned; there is an implied term that in the absence of an express term, the designer will use reasonable skill and care, but not that of an ordinary man. In Bolam v Friern Hospital Management Committee (1957) it was held that what is expected of a designer is that of a higher standard of skill related to his professed expertise than that of an ordinary man. W here the Contractor is given design responsibility, in the absence of an express term to the contrary, i t is implied that the Contractor has an absolute duty to provide a building that is "fit for purpose". That duty is a much higher obligation than simply designing, where an Architect would be obliged to take reasonable skill and care. The leading cases on fitness for purpose are IBA v EMI Electronics Ltd (1980) and Greaves Contractors Ltd v Baynham Meikle & Partners (1975). However, it is important to note that despite a fitness for purpose obligation, if there is any design responsibility by a third party affecting the obligation to deliver the fit for purpose building, if that design fails it will negate the fitness for purpose obligation as per PSC Freyssinet Ltd v Bryne Brothers (Formwork) Ltd 1996.

Consider now this example, the Contractor obtains drawings from the Architect to re model a flat. The contract makes no reference to the Contractor having any de sign responsibility. Certain internal walls are marked as non-load bearing and for removal. The walls are removed and the flat above collapses as the walls were in fact load bearing.

Who is to blame for the damage, the Architect or the Builder?

This scenario was that of Edward Lindenberg v Joe Canning, Jerome Contracting Ltd (1992). Mr Lindenberg argued that the Builder, Canning, was in breach as there was an implied term that he would proceed in a good workmanlike manner and that he negligently demolished the load bearing walls. It was held that there was an implied term that the Builder would carry out the work in a good and workmanlike manner and carry out the work as that expected of an "ordinary competent builder". It was reasonably foreseeable and Canning should have known that the walls were load bearing. His lack of care was a breach of contract but he was not liable in negligence. Mr Lindenberg was held liable for contributory negligence through his Architect for the defective wall plans and instructions to proceed with the demolition. In quantifying the liability, the judge awarded damages being the costs of reinstating the upper flat, to be paid at the rate of 75% by Mr Lindenberg and 25% by the Builder. Thus, the damages claimed and awarded for the breach of contract were reduced by 75%. The Builder can by implication thus be held liable for design errors on the basis that the resultant damage was reasonably foreseeable by an "ordinary competent builder". It is therefore very import ant for builders to point out any potential errors in design.

It is difficult to comprehend that a builder would willingly carry out defectively designed work without notifying the Employer, indeed in Equitable Debenture Assets Corporation v William Moss (1984) and Plant Construction Plc v Clive Adams (1999) it was held that the builder was obliged to comply with an implied term to report design defects known to them.

It should also be noted that the Supply of Goods and Services Act 1982 under part II section 13 states there is an implied term in any contract that any supply shall be carried out with "reasonable skill and care". This reflects in summary the duty of both designer and builder to deliver to the Employer his building without causing damage and, as can be seen, li ability when the building design fails does not always lie solely with the designer. The blame will depend on the contract, the facts and the conduct of both designer and builder in their exercise of "reasonable skill and care".


Author: Jonathan Nugent

Managing Director - Arbicon ADR Ltd, Chartered Quantity Surveyor, Construction Adjudicator, Arbitrator, Mediator, Expert Witness/Reports/Determination, Lecturer, Delay and Loss Analyst, Leading Authority on Construction Contracts/Law, Commercial Construction Contract Solutions and Dispute Resolution.