Our analysis and guidance on the professional risks you face. Welcome to Griffiths & Armour’s analysis of the issues of the day that affect the lives of construction professionals. Our aim is to help advise and guide you through the professional risk challenges and opportunities present in your world and to highlight trends identified through the claims we deal with and the myriad of contracts we review each month.
Judging an Architect’s duty to inspect
In light of a number of recent disciplinary decisions by the Architects Registration Board (ARB) for unacceptable professional conduct arising out of inspection failures, Tom Handley of Hill Dickinson LLP reviews what exactly is required of an architect when it comes to the duty to inspect.
Whilst the focus of this article is on architects, to some extent the analysis applies equally to any professional in the construction industry carrying out inspection or supervision functions.
Architect’s duty to act with reasonable skill and care
The nature of the duty of care of an architect is neatly set out by Jackson & Powell on Professional Liability: “As in the case of other professions the standard generally required of an architect in discharging his duties is the reasonable skill, care and diligence of an ordinary competent and skilled architect.”
The standard was more fully described by Windeyer J in the Australian case of Voli v Inglewood Shire Council [1963] A.L.R. 657 as follows:
“An architect undertaking any work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among architects practising their profession. And he must use due care. If he fails in these matters and the person who employed him thereby suffers damage, he is liable to that person. This liability can
be said to arise either from a breach of his contract or in tort.”
The fact that a project architect is relatively junior or inexperienced will not of itself provide a defence to being judged by the standards of an ordinary competent member of his or her profession. Similarly, a highly qualified and experienced architect should not be judged more harshly. However, that is not always the case in practice.
Architect’s form and terms of contract
Consideration of the form and terms of the contract are the starting point for an understanding of the architect’s obligations to his client. Of course, each contract will vary depending on the circumstances, including the procurement method, and the size, nature, and complexity of the project.
Architect’s appointments should be in writing and, if possible, on the basis of the RIBA standard form of appointment – although the client may insist on its own bespoke terms. At the very least, the appointment should be evidenced by an exchange of correspondence (an offer and acceptance letter).
However, it is often the case that agreements are oral or partially in writing and partially oral. Likewise, although it is good practice for all terms of a contract to be agreed before the services commence, it is often the case that the main terms are agreed at the beginning but other terms are agreed on an ad hoc basis during the currency of the project.
This is despite Standard 4.4 of the Architects Code: Standards of Conduct and Practice 2010, which provides that an architect is expected to ensure that before he undertakes any professional work he has entered into a written agreement with the client which adequately covers, amongst other things: the contracting parties, the scope of the work, the fee or method of calculating it, who will be responsible for what and any constraints or limitations on the responsibilities of the parties.
This year alone, has seen a number of disciplinary proceedings against architects for a failure to comply with this provision. Whilst the sanction imposed for this offence would commonly be a reprimand or fine, the ARB made it clear in a recent judgment that they will consider erasure from the register for serial offenders. Furthermore, any sanction is published on the ARB website for between one and five years (depending on the penalty imposed) and there is, therefore, the risk ofdamage to the architect’s reputation.
Identifying the services to be performed
It is very important for architects to set out accurately the extent of their services. This is usually straightforward on a traditional contract. But, for more complex or unusual contracts and projects, failure to define roles and responsibilities properly for the architect’s services can result in disputes further down the line. One of the most frequent disputes is in relation to the extent and method of inspection/supervision.
