WHERE A CONTRACTOR’S/SUBCONTRACTOR’S DRAWINGS ARE “APPROVED”, “CHECKED” ETC. BY THE EMPLOYER’S AGENT AND SUBSEQUENTLY AN ERROR IS FOUND, WHO BEARS THE COST?
In general terms when an Employer appoints an Architect or Engineer to design a building or work of a civil engineering nature, he is entitled to expect the Architect or Engineer to be responsible for all design work.
This basic principle was established in the case of Moresk Cleaners Ltd -v- Thomas Henwood Hicks (1996) 4 BLR 50.
The plaintiffs were launderers and dry cleaners who appointed the defendant Architect to undertake the design work of an extension to their laundry. Instead of designing all the work himself, the Architect arranged for the contractor to design the structure and the Employer brought an action against the Architect who argued that his terms of engagement entitled him to delegate the design of the structure to the contractor.
It was held that an Architect has no power whatever to delegate his duty to anybody else. His Honour Sir Walter Carter QC had this to say:
"Mr Stockdale, in a very powerful argument, asks me to say alternatively that the architect had implied authority to act as agent for the building owner to employ the contractor to design the structure and to find that he did just this. I am quite unable to accept that submission. In my opinion he had no implied authority to employ the contractor to design the building. If he wished to take that course, it was essential that he should obtain the permission of the building owner before that was done."
The Architect or Engineer in his terms of engagement may however include a term which permits him to use a specialist contractor, subcontractor or supplier to design any part of the works, leaving the Architect or Engineer with no responsibility if the design work undertaken by others contains a fault.
Where a part of the design work is carried out by a subcontractor or supplier in accordance with an express term in the Architect's or Engineer's conditions of appointment, it is in the Employer's interests to obtain some form of design warranty from the subcontractor or supplier.
The Employer would then be able to seek the recovery of any loss or damage resulting from design faults by the subcontractor or supplier through the agency of the warranty.
If however an Architect or Engineer, having excluded his responsibility for a subcontractor's design in terms of his appointment, approves, checks or inspects a subcontractor's drawing, does he then take on any responsibility for any failure of the design?
It is essential for the Architect or Engineer to make it clear to both Employer and subcontractor exactly what he is doing with the drawings if not checking the design. If he is checking the design carried out by the subcontractor or supplier he may find that even though the terms of his appointment exclude responsibility he may have adopted a post contract amendment to the conditions and at the same time cloaked himself with responsibility.
If the Architect or Engineer is not checking the design then he must make it very clear what he is doing. Ideally it should be set out in the Architect's or Engineers terms of appointment as to what his duties are with regard to design work undertaken by a contractor, subcontractor or supplier.
A different slant was placed upon acceptance of drawings by the Engineer in the case of Shanks and McEwan (Contractors) Ltd -v- Strathclyde Regional Council (1994) which arose out of the construction of a tunnel for a sewer. A method of construction was employed using compressed air to minimise water seepage. The tunnel and shaft segments in compliance with the specification were designed by a supplier to the main contractor who was to be responsible for the adequacy of the design insofar as it was relevant to his operations. It was also a requirement of the specification that design calculations were to be submitted to the Engineer. In the course of construction fine cracks appeared in the prefabricated tunnel segments due to a design fault. The Engineer was prepared to accept the work subject to the segments being made reasonably watertight and confirmed the same in a letter to the contractor dated
21 September 1990. Clause 8(2) of the ICE 5th Edition which governed the contract states that the contractor shall not be responsible for the design of the permanent works. There seemed to be a conflict between clause 8(2) and the specification which placed responsibility for the design of the tunnel segments onto the contractor.
The contractor levied a claim for the cost of the repair work. It was the view of the Court of Session in Scotland that following acceptance by the Engineer of the design of the segments, the contractor was entitled to expect that the approved design would not crack. The letter from the Engineer dated 21 September 1990 which accepted repair work to the segments was held to be a variation and therefore the contractor won the day.
The approval of a contractor or subcontractor's drawings by the Architect or Engineer will not usually relieve the contractor or subcontractor from liability. Employers who incur costs due to this type of error will normally commence an action jointly against the contractor or subcontractor who prepared the drawings and the Architect or Engineer who gave his approval. The court will decide on the apportionment of blame.
In Shanks and McEwan -v- Strathclyde Regional Council the contractor's design which proved faulty was approved by the Engineer. The contractor was held to be entitled to recover from the Employer the cost of remedial works. This case seems to cut across the accepted legal principle that one cannot benefit from one's own errors.
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