By Orla Begley, Litigation Department
With the rise of litigation culture in Ireland and the recent property and development boom architects need to be extra vigilant in the way they carry out their work, limit their warranties and handle complaints against them.
Each day professional indemnifiers are being called upon in order to consider potential claims. This article focuses on some of the most common areas of architect’s negligence.
What is Professional Negligence?
Negligence is the failure to act as a reasonable person would be expected to act in similar circumstances. The standard of care which an architect must uphold is “reasonable care and skill” which is usually established by reference to the general practice of the building profession. A feature of the building profession is the large number of codes of practice relating to the manner of construction. However a professional is not entitled to blindly follow the provisions of a code of conduct without considering the precise relevance to the project at hand. The knowledge required of an architect will generally be judged by the standard of the ordinary competent architect. However if an architect carries out the job of quantity surveyor he or she will be judged by the standards of a reasonably competent quantity surveyor.
Common Areas of Negligence
The list of potential negligence claims against any professional, including architects, is wide and varied. Some of the more common pitfalls which architects should pay particular attention to in order to avoid claims include:-
· Inadequate examination of sites
The architect should examine the site properly before or during the building of a structure. Architects should not rely on information supplied by a third party and should always make their own enquiries.
· Errors in design
Whilst the legal standard commonly applied to architects in designing is that of reasonable care, there may be circumstances were special steps need to be taken to fulfill that standard. There may even be a duty to ensure that the design is reasonably fit for its intended purpose. When a design is experimental an architect is under a continuing duty to inspect his design. Special enquiries should be made if novel materials are being used.
· Providing a misleading estimate
Before embarking on a building project a client will commonly ask an architect or quantity surveyor for an estimate of cost. Reasonable skill and care must be exercised when providing an estimate.
· Errors in preparation of bill of quantities
Preparing bills of quantities is usually the function of a quantity surveyor. When the task is undertaken by an architect the same standards will be required as if carried out by a quantity surveyor. The architect should consider consulting a quantity surveyor if he or she is not suitably proficient or experienced in this area or the project is particularly complex.
· Failing to take reasonable steps in selecting contractors
An architect must make reasonable enquiries as to the solvency and capabilities of contractors. When examining quotations he must not accept rates which are unreasonable in the circumstances.
· Insufficient knowledge of, and non-compliance with legislation, planning and building control requirements and codes of practice
An architect or quantity surveyor is not expected to have a detailed knowledge of the law but rather such knowledge as is expected of the reasonably competent practitioner.
However architects do need to pay particular attention to certain documents such as certificates of compliance and collateral warranties.
When an architect is asked to sign an Architect Certificate of Compliance with Planning Permission and/or Certificate of Compliance with Building Regulations, it is particularly important that the signing architect can “stand over” the certificate. The certificates of compliance should be limited in certain circumstances, for example a Certificate of Compliance with Planning Permission should exclude all references to financial conditions contained in said planning unless the architect has specific knowledge that these conditions have been complied with in full. Similarly, a Certificate of Compliance with Building Regulations should be limited to a “visual inspection” of the building where the architect did not in fact supervise the foundations of the structure.
On signing collateral warranties, architects should again be vigilant and should ensure that such warranties limit their liability. While the standard RIAI warranties have a time limit of twelve years, it would be prudent to limit exposure to six years and also to cap liability by providing that liability shall be no greater than the architect’s level of professional indemnity insurance cover.
· Inadequate supervision
Employers are entitled to expect architects to administer and supervise work to ensure that the quality of work matches the standard contemplated.
· Incorrect certification
In issuing interim and final certificates an architect will generally not be immune from liability in negligence to the employer.
Litigation and the Courts
Should the claimant have a genuine claim against an architect proceedings may be issued in the Circuit Court, the High Court or the Commercial Court. The jurisdiction of the Circuit Court is for claims under €38,092.14 and the jurisdiction of the Commercial Court is for any claims over €1,000,000. All other claims fall within the remit of the High Court.
Where a claimant succeeds in a negligence suit, they will usually be awarded damages against the architect. The amount of damages which is recoverable for negligence is determined by the loss resulting from the negligence. The losses which may result from breach of duty by architects and, to a much lesser extent, quantity surveyors cover a wide variety. For example, damages may be awarded to cover the cost of rectification of the building, wasted expenditure costs, excess expenditure costs, damages to cover any liability to third parties or personal injury claims which arise as a result of the architect’s negligence and damages for inconvenience, to mention but a few.
Even seemingly small negligent errors or omissions by an architect may result in vast awards of damages if buildings must be reworked and rectified. Accordingly it is vital that architects take care and take particular heed of some of the common pitfalls set out above.
If proceedings are threatened or issued against an architect the architect should contact both their insurer and solicitor immediately. Early legal advice can also be of great benefit if complaints or concerns are raised during the course of a project which may lead to problems later on. Often with timely advice matters for which an architect may be found negligent can be resolved at an early stage with far less consequences in terms of damage to reputation and monetary damages.
In line with most standard conditions of employment of architects we also offer alternative dispute resolution services such as mediation and arbitration, in addition to litigation services. Such alternative dispute resolution processes can assist in allowing working relationships to continue between the parties (allowing the project to continue), confidentiality and costs savings. Further information on mediation and arbitration can be viewed in the Spring/Summer 2010 edition of HOMS News which is also available on our website.
For further information on professional negligence or alternative dispute resolution please contact Harry Fehily, Managing Partner, Orla Begley, Solicitor or another member of our Litigation Department.
There are common areas of negligence by architects which frequently become the subject of litigation.
Early legal advice and alternative dispute resolution can assist in damage limitation for architects.
Architects should consider limiting their warranties.