Who’s Fault is it Anyhow?

No surprise therefore that the apportioning of blame when a defect surfaces can be a weighty process with numerous interested parties battling it out to prove that it was someone else’s fault. Not only can the costs run into millions, but if a building defect has led to a loss of life, the moral obligation to find the culprit is paramount. The first port of call is to find an independent “Expert” to assess and advise. But this is no easy task as few are well placed to “get under the skin” of the intricate and complex process of creating a building. The Construction Lawyer will probably go straight to a building

surveyor, but it is actually an architect who is in a unique position to provide such insight; not only do they have an understanding of the very convoluted and subtle design processes but they are also fluent in the multitude of building regulations, legislation and contract law. After all, it takes one to know one.

A Case in Point
In a recent case, an elderly resident of a newly built care home was able to open a restricted window and fall to their death. The HSE were keen to point the finger at the care home provider for failing to protect its residents sufficiently. The Defendants sought our advice as Architects and Expert Witnesses to assess their liability. On a site visit it became apparent that not only was the restrictor on the window fitted wrongly, but that it was the wrong restrictor for the windows. The window opening height was also too low with no protective guard rail to mitigate the risk and that the design allowed for a small radiator to be installed at the foot of the window. In short, the window had not been designed to comply with Part K of the Building Regulations for “Guards and Barriers”.

On the basis that the Defendant had itemised restricted windows as a requirement, it was apparent that other parties could be culpable and an in-depth analysis of the process was undertaken. We identified that there was no robust procedure of risk analysis, particularly given the vulnerable nature of the residents, and that a ‘designer’s risk assessment’ would have highlighted the shortcomings in the window design. As a result of this oversight, the need for restrictors was left out of the NBS Specification at tender despite being included in their design statement. When the problem surfaced much later in the process at the point when the windows were being fitted, the wrong restrictors were ordered in haste and not fitted according to the manufacturer’s instructions. It seems that the only party that didn’t have any part to play at this point was the manufacturer of the windows.

A Costly Business
The ownership of responsibility through contracts of engagement is key and can often be transferred during the process from conception to completion. Defects in construction can be costly, dangerous and damaging to reputations not to mention Professional Indemnity (PI) premiums, but they remain a regular occurrence. The construction of buildings and structures has become increasingly complex. New developments, innovative materials and designs as well as cost and time pressures create potential hazards for the effective delivery of a defect-free project. After all, it’s still a very human industry where the physical work is undertaken by individuals.

Inherent defects in high profile or iconic buildings can attract adverse media coverage, as happened after the collapse of the Royal Plaza Hotel in Thailand (1993) and a section of Paris' Charles de Gaulle Airport (2004). Even if the problem is less spectacular, the consequences can be very serious with the average value in the UK for a major construction dispute rising in the last couple of years to an average high of £18.5. It’s even greater in Asia, the Middle East and the US.

The Legal Standpoint
So how does the law view culpability in the building profession? Increasingly the building professions have moved toward academic qualification and although it is rare for new members to start with less than a bachelor’s degree, as soon as newly qualified professionals begin to practise, it is their actions – not qualifications – which become the gauge of their competence.

In common law, professional competence is assessed in comparative rather than absolute terms. A professional to be in error is not of itself grounds for a claim for professional negligence. Unless the express terms of the contract state to the contrary, or in cases where there is an implied or statutory duty to achieve ‘fitness for purpose’, it is not sufficient merely to show that a defect has arisen from someone’s errors or omissions. 

For example, many engineers have, in the recent past, wrongly specified high-alumina cement. However, they did so at a time when a large part of the profession believed this to be sound. The mere fact that they were wrong and that damage has resulted from this error does not make them liable for the consequential losses. Each professional is judged by comparison with their peers. Thus, for any professional to be liable for the cost of a defect, they would have to have performed their duties to a lower standard than could be expected of a representative body of the same ordinarily competent professionals.

Who is Best Qualified to Judge?
But who is best qualified to decide whether there has been incompetence or where the blame lies? The building surveyor is certainly well placed to assess the technical information and how it has been translated in its isolated form to the end product. But do they have the holistic perspective and can they understand the pragmatic impact of the defect?

The duty owed to a client is to act with the skill and care of the ordinary prudent person holding themselves out as possessing the particular skill offered. It is not simply a question of giving correct or incorrect advice, but of demonstrating a standard of skill commonly found in persons of like discipline.

The professional needs to understand their role as it fits into the lengthy and complicated process of building design and construction. It has to be a totally informed process with a suite of  documentation, guidance, regulations, legislation and all the associated implications to address. One part of the process will impact on another part so along the journey there has to be plenty of consultation.

In our case study, it was the architect, however, who failed in their duty of care to the client, to address the need for windows that were fit for purpose. It was the architect who was involved at all the critical stages of the process and continually failed to notice the omission. And it was an architect, acting as an Expert Witness, who spotted this error when so many other parties had missed it.

There was certainly a liability placed on the client who had experience in the needs of its residents, but they are not building professionals and could not be expected to have the depth of knowledge required in order to manage every detail.

What Constitutes a Defect?
Defects are defined as aspects of the works that are not in accordance with the contract and they can occur from design deficiencies, material deficiencies, inadequate or inappropriate specification and workmanship errors. In each case the finger of responsibility points in a different direction.

For structural defects discovered years after completion, contractors and consultants carry a legal responsibility towards the owner to rectify the problem. This may be by way of contract, warranty professional indemnity, H&S legislation or common law. Whichever it may be, proof of liability is required and proving this can be a lengthy process. Due to the number of different parties involved, often sharing responsibilities, it can be very difficult to prove negligence. While the legal process proceeds slowly, restoration work is typically on hold.

Each Building Journey is Unique
Depending on what is being built, each element of the Building Regulations could be applied differently according to the building’s need. For example, a fire escape will differ fundamentally between a hospital and a residential care home. A hospital is likely to have a sequential escape strategy where each ward becomes an individual module to be fire protected. The escape routine would be to move patients from ward to ward away from the fire hazard, securing off each ward until a safe location is reached. This is obviously necessary as patients are often confined to bed and hooked up to pieces of medical equipment. In a residential care home, there is a need for numerous escape points located at various strategic locations based on the distances between them and the living areas to minimise the length of time needed for an individual to be able to reach a fire escape route.

There are many risks associated with buildings so it is the duty of the architect to design it so that risks are eliminated or at least mitigated. As already mentioned, the developers are ultimately exposed most to the cost of defects and the buck stops with the client, particularly as far as the Health & Safety
Executive is concerned. But there are so many different parties involved that this is often not a fair reflection. In identifying the comparative strengths of the surveyors and the architects, while the former’s strength is in assessing practicalities, the architect has a more holistic view of the whole building process.

Unfortunately, in our case study, the designer:-

• designed a fundamental aspect of the care home incorrectly;

• did not notice the mistake during the years before the building was constructed;

• did not produce a design risk assessment to identify any issues;

• did not specify the correct restrictors even if the window had been designed to the correct height;

• misinterpreted the Building Regulations Part K assuming that a restrictor could function as a barrier;

• did not follow the guidance stated in the clients requirements;

• did not include restrictors in the NBS Specification used to tender the project;

• as part of the contractor's team, when the issue of restrictors was addressed, did not make any comment about the suitability of the restrictors eventually specified.

In this instance, despite there being a catalogue of oversights and mistakes throughout the process which involved healthcare auditors, building control, contractors, suppliers, project managers, the client AND the architect, they were missed. It took a very experienced architect on the outside to understand the relevance of them all.

Interestingly, from April 2015 the Health & Safety requirements will change and the Planning Supervisor’s role will no longer exist. Nearly all pre-construction design responsibilities in relation to Health & Safety will become the ‘principal designer’s’, which in most instances will be the architect. It may be that this will simplify the process or it may mean that there is one less opportunity for defects to be caught earlier. Whatever the outcome,
defects are a human condition and in the complex building environment it is the architect who becomes the Expert as they are the professional who is best placed to see the process from the inside-out and understand the architects and designers from their own perspective

Building contracts have been around for a long time. One of the first could be said to be the code of Hammurabi (King Hammurabi ruled the kingdom of Babylon from 1792 to 1750BC) which dealt with payment and runs as follows: If a builder builds a house for someone and completes it, he shall give him a fee of two shekels in money for each sar of surface.

The code also dealt with responsibility for any defects. Here the position was admirably clear, if ultimately a little harsh: If a builder builds a house for a man and does not make its construction meet the requirements and a wall falls in, that builder shall strengthen the wall at his own expense. If a builder builds a house for a man and does not make its construction firm and the house which he has built collapses and causes the death of the owner of the house that builder shall be put to death.If the son of the owner dies, the son of the builder shall be killed.

Acting as an Expert Witness at Cowan Architects, Simon Duffy has been an architect in private practice for nearly 20 years, designing residential and commercial buildings including award winners in the health sector. He is an Expert Witness in design defects as well as in the accommodation needs of seriously disabled people. He is also currently involved in the design, construction & adaptation of buildings for people with disabilities ranging from amputees to severe Cerebral Palsy.