000 DC - Roles - of - A - E - QS - 1

PAM CPD LECTURE
David Cheah
18 June 2011
THE ROLES OF THE

ARCHITECT, ENGINEER AND QUANTITY SURVEYOR
1. Introduction
1.1 Architect
“An architect” was defined by the court in R v Architects‟ Registration Tribunal, ex parte.Jagger
1
, as follows:-
“ An Architect is one who possesses, with due regard to aesthetic as well as
practical considerations, adequate skill and knowledge to enable him (i) to
originate, (ii) to design and plan, (iii) to arrange for and supervise the erection of
such buildings or other works calling for skill in design and planning as he
might, in the course of his business, reasonably be asked to carry out or in
respect of which he offers his services as a specialist.”
Such duties include preparing plans and specifications and supervising or inspecting the building
works to ensure that the Contractor is complying with the building contract. An Architect engaged
by an Employer acts as his agent and owes him the contractual and often tortious duty to carry
out his work with the reasonable skill and care to be expected of a competent Architect. He will
also owe a duty when issuing certificates to act fairly as between the Employer and the
2
Contractor. [Sutcliffe v Thackrah and Others (1974) AC 727]
An Architect does not merely design and supervise the erection of buildings, but also gives
prospective building owners preliminary advice on the type of building to be erected and the cost
of doing so. Since it is obvious that a design is wasted which will only produce a building costing
considerably more than the owner‟s resources, or the sums allocated by the owner to the project,
the Architect must possess sufficient knowledge of the cost at current prices of buildings or other
works which he may design, so that the cost of carrying out his designs will come within a
reasonable distance of the owner‟s requirements, insofar as these have been made known to
him [Moneypenny v Hartland (1826) 2 C&P 378].
For the same reason, an Architect will need to know enough about building materials and
construction techniques to avoid designing buildings which can only be constructed above the
client‟s budget or at unreasonable cost.
A person is prohibited from practising or carrying on the business of an architect under a name,
style or title containing the word “architect” if he is not registered under the Architects Act 1967.
However, whilst the term “architect” is protected, there is no prohibition against carrying out
design in the absence of registration. Architects are expected to comply with the Code of
Professional Conduct by LAM. Matters of professional conduct and practice are dealt with by the
Disciplinary Committee which will investigate any “misconduct” or “complaint”.
1.2 Engineer
There is no exact definition of “an engineer”. The Engineer‟s function in relation to design and
supervision is similar to that of the Architect. An Engineer is required to be registered with the
Board of Engineers (Lembaga Jurutera Malaysia - LJM), under the Engineers Act 1967.
Engineers are expected to comply with the Code of Professional Conduct by LJM. Matters of
1
Mr.Jagger, an engineer & surveyor , applied to the Architect‟s Registration Council (ARCUK) and was refused
registration as an archite ct. The CA allowed the appeal.
2
Claim by employer against architect for negligent certification and/or supervision. After Contractor‟s employment
was determined, Contractor went into liquidation. HL held Architect was negligent and liable for over-certification
of interim certificates.
Role of the A/E/QS Page 1 of 32

professional conduct and practice are dealt with by the Disciplinary Committee which will
investigate any “misconduct” or “complaint”.
1.3 Quantity Surveyor

The role of a Quantity Surveyor was described in the 19th Century as being that of a person
“whose business consists in taking out in detail the measurements and quantities from plans
prepared by an Architect for the purpose of enabling builders to calculate the amounts for which
they would execute the plans” [Taylor v Hall (1870) IR4 CL 467].
This is now been considerably broadened, both at the preparatory stage of building contracts and
throughout the life of a project, and includes assisting in the negotiating and obtaining of
quotations for work to be carried out by specialists, the preparation of detailed valuations for the
purposes of interim certificates, and the detailed preparation of the Contractor‟s Final Account
including the valuation of variations and claims, largely as a result of which Quantity Surveyors
now go by many different names, including “Cost Managers”, “Cost Consultants”, etc.
A Quantity Surveyor (QS) is required to be registered with the Board of Quantity Surveyors
(Lembaga Jurukur Malaysia), under the Quantity Surveyors Act 1967. Matters of professional
conduct and practice are dealt with by the Investigating Committee which will investigate any
contravention or failure to comply with the QS Act 1967.
2. Duties and Liabilities to the Employer

2.1 Professional Appointments: Express and implied terms
Express Terms
The architects‟ duties to his client depends on the express terms of his contract with the client.
Generally the conditions of appointment of architect are:-
 The architect will be employed to carry out the architectural services in connection with the
defined purpose and that he will be paid his/her fees.
 The rights of the building owner are that he will be entitled to the skillful services of the
architect in the discharge of all the duties necessary to be performed by an architect in order
to fulfill the defined purpose of the appointment.
If the terms of appointment of an architect/engineer failed to set out the precise scope of his
duties, the ultimate decision will be by the courts if dispute arises.
If the provision is made in the terms of appointment and a dispute arises between the parties, the
court will have to draw implications from the term of the appointment itself to give the agreement
business efficacy.
In Malaysia, Rule 29 of the Architect Rules 1996 provides for the mandatory requirement that an
Architect enters into an agreement for his professional services according to the Architect (Scale
of Minimum Fees) Rules 1986, the conditions of Engagement in the Third Schedule and the
Memorandum of Agreement in the Fourth Schedule.
rd
Note in particular Clauses 2 and 5 of the 3 Schedule, the conditions of engagement of a
professional Architect, the Architects Rules 1996 (Amended 2005).
Clause 2
A professional Architect shall advise the client on the need for other consultants to be engaged
for any part of the project and unless otherwise agreed upon, the consultants shall be engaged
and paid by the client.
Clause 5
Where consultant are engaged by the client for any part of the project pursuant to paragraph 2,
the professional Architect shall not be liable for their performance, acts or omissions.
If the Architect did not advise the employer to appoint other consultants for any part of the
project, he may be held responsible for the discharge. If the Architect then performs those duties
himself then it may be regarded as services done within his appointment.

Implied Terms
Not all contracts however, are required to be in writing. Where there is no written contract, the
terms of the contract will have to be implied. A term can be implied by law or from the facts.
2.2 Degree of Skill

An architect who offers professional architectural services warrants that he will use “reasonable
care & skill”. The degree of skill required is that of an ordinarily competent architect professing to
have that special skill. Contracts for supply of professional architectural services do not normally
give any implied warranty beyond reasonable care and skill.
In Greaves v Baynham Meikle [1975] 1 WLR 1095, the Court of Appeal held :
“ The law does not usually imply a warranty that [a professional man] will achieve
a desired result, but only a term that he will use reasonable care and skill. The
surgeon does not warrant that he will cure the patient. Nor does the solicitor
warrant that he will win the case.”
An external (i.e. not in-house) professional in private practice is in law an independent contractor
- he is entitled to be left free, in the absence of express provision to the contrary, to carry out the
incidental duties necessary to achieve the purpose for which he has been appointed in the way
which seems best to him. Whilst he is entitled to be left undisturbed in matters of the day to day
discharge of his duties, however, he is not entitled to dictate to the Employer on matters which
come within the latter‟s legitimate sphere of interest and decision, and he is indeed in such
matters bound to consult the Employer, at the risk of being liable in negligence for failing to do
so.
2.3 Nature of Duty
There is now universal judicial agreement that the liability of a professional person to their client
arises both in tort and in contract.
As described in Hudson, generally, an owner under a building/ engineering contract will have four
main interests which he employs his professional adviser(s) to secure, namely:
“(i) a design which is skilful and effective to meet his requirements, including those of amenity,
durability and ease of maintenance, reasonable cost and any financial limitations he may
impose or make known, and comprehensive, in the sense that no necessary and
foreseeable work is omitted;
(ii) obtaining a competitive price for the work from a competent contractor, and the placing of
the contract accordingly on terms which afford reasonable protection to the owner‟s
interest both in regard to price and the quality of the work;
(iii) efficient supervision to ensure that the works as carried out conform in detail to the design
and the specification, and
(iv) efficient administration of the contract so as to achieve speedy and economical completion
of the project.”
3. Standard of Care
The precise degree of care owed by those holding themselves out as specially qualified in
a particular trade or profession has been described in a number of different ways.

It is a question of fact which “appears to us to rest upon this further enquiry, viz: whether other
persons exercising the same profession or calling, and being men of experience and skill therein,
would or would not have come to the same conclusion as the defendant” [per Tindal C J in
Chapman v Walton (1833) 10 Bing. 57].
In a medical case, it was said:-

“ It is not enough, to make the defendant liable, that some medical men, of far
greater experience or ability, might have used a greater degree of skill, nor that
even he might possibly have used some greater degree of care. The question is
whether there has been a want of competent care and skill to such an extent as
to lead to the bad result.” [per Erle C J in Rich v Pierpont (1862) 3 F and F 35]
In another medical case, it was stated that:-

“ There is ample scope for genuine difference of opinion, and one man clearly is
not negligent because his conclusion differs from that of other professional men
nor because he has displayed less skill and knowledge than the others would
have shown.” [Hunter v Hanley (1955) SLT 213]
Of architects, it has been said in Canada:-

“ As architect, he is in the same position as any other professional or skilled
person, and whether it be in the preparation of plans and specifications, or the
doing of any other professional work for reward, is responsible if he omits to do
it with an ordinary and reasonable degree of care and skill.” [Badgley v Dickson
(1886) 13 AR 494]
In a case concerning engineers, the Judge said:-

“ …The professional man should command the corpus of knowledge which forms
part of the professional equipment of the ordinary member of his profession. He
should not lag behind other ordinary assiduous and intelligent members of his
profession in knowledge of new advances” [Eckersley v Binnie & Partners
(1988) 18 Con LR1].
Of architects in their role as supervisors, it has been said in an English case that :
“ As regards matters in which the plaintiff (an architect) was employed merely as
agent for the building owner, he was to protect his interests adversely to the
builder, and the plaintiff would be liable to an action by his employer if he acted
3
negligently in such matters.” [Chambers v Goldthorpe (1901) 1 KB 624]
The architect : “Is bound to do his best for his Employer, and to look sharply after the builder
whilst the work is going on, and it is his duty in that capacity to form an opinion as to what his
Employer is entitled while the works are being executed.” [Cross v Leeds Corporation (1902)
th
Hudson, Building Contracts, 4 Edition]
3
The Court of Appeal authority of Chambers v Goldthorpe [1901] KB 624 established that in certification,
specifically, the contract administrator was acting in an arbitral role and should be protected against civil suit by
a form of quasi-judicial immunity.
In 1974, the House of Lords in Sutcliffe v Thackrah overruled this decision and established that an architect
owes a duty of care towards his client in the performance of all duties, including contract administration, and
specifically certification, and could be liable for negligence in the performances of those duties. Negligent over-
certification would be an obvious example. This extends to both interim and final certificates.

The standard of skill and care in professional work is usually stated in the test formulated by
McNair J :
“ Where you get a situation which involves the use of some special skill or
competence … the test is the standard of the ordinary skilled man exercising
and professing to have that special skill. A man need not possess expert skill …
it is sufficient if he exercises the ordinary skill of the ordinary competent man
exercising that particular art.” [Bolam v Friern Hospital Management Committee
(1957) 1 WLR 582]
Thus the professional is to be judged by the standards of the profession prevailing at the time the
design was carried out.
It is important to bear in mind a number of things when considering these various quotations.
Firstly, the language used should not be taken to justify a lower or “ordinary” standard of
professional knowledge and skill in cases where a construction professional happens, whether by
diligence or mere accident, actually to possess greater knowledge or skill than an ordinary similar
situated professional.
For example, a construction professional may have had reason to study the geology of a
particular area, or of a particular site, due to difficulties on another occasion, or have obtained
specific information not normally available, or may have attended some special course which
they have not put forward or professed as a special skill to their client.
In such a case, there will be liability if the skill or knowledge so obtained is not used with care.
“ [Counsel submitted] that it is the duty of a professional man to exercise
reasonable care in the light of his actual knowledge, and that the question of
whether he exercised reasonable care cannot be answered by reference to a
lesser degree of knowledge than he had, on the grounds that the ordinarily
competent practitioner would only have had that lesser degree of knowledge. I
accept [that] submission; but I do not regard it as a gloss upon the test of
negligence as applied to a professional man. As it seems to me, that test is only
to be applied where the professional man causes damage because he lacks
some knowledge or awareness.
The test establishes the degree of knowledge or awareness which he ought to

have in that context. Where, however, a professional man has knowledge, and
acts or fails to act in a way which, having that knowledge, he ought reasonably
to foresee would cause damage, then, if the other aspects of duty are present,
he would be liable in negligence …” [Wimpey Construction UK Ltd v Poole
(1984) 2 Lloyd‟s Rep 499]
If a construction professional professes special qualifications, skills or experience to prospective

clients, then the standard of care will obviously be raised to the new level which they profess.
In addition, it may be that where a client seeks the services of a professional person of
preeminent standing in their field, and pays appropriately higher remuneration for their services,
then a higher standard will be expected than that of the ordinary, everyday practitioner in that
field [Duchess of Argyll v Beuselinck (1972) 2 Lloyds Reports 172]
In Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, Lord Scarman also
made the point that the test is not necessarily the skill of the average member of the profession,
if it is a speciality in question. He stated: “Failure to exercise the ordinary skill of a doctor (in the
appropriate speciality, if he be a specialist) is necessary.”

Against these possible factors raising the standard of skill required, it should be remembered that
in areas of skill such as construction, a degree of experiment and innovation is clearly not only
acceptable but, to quote Hudson, is “to be encouraged if technical progress is not to be
stultified”:-
“ If you employ an architect about a novel thing, about which he has had little
experience, if it has not had the test of experience, failure may be consistent
with skill. The history of all great improvements shows failure of those who
th
embark in them.” [Turner v Garland (1853) Hudson‟s Building Contracts, 4
Edition]
In general, it is an adequate defence for a designer to prove that he acted in accordance with a
practice accepted as proper by a reasonable and responsible body of the profession, even if
others considered it to be wrong: Maynard v West Midlands Regional Health Authority [1984] 1
WLR 634. In that case, a large body of expert medical opinion was presented at the trial
approving of the defendant consultant physician's and surgeon's actions. The Judge at first
instance preferred the evidence of the plaintiff's expert witness, but the House of Lords held that
in the medical profession (as in others) there was room for differences of opinion and practice,
and a court's preference for one body of opinion over another was no basis for conclusion that
following the other body of opinion amounted to negligence. Lord Scarman, with whom the other
members agreed, stated:
“ It is not enough to show that there is a body of competent professional opinion
which considers theirs was a wrong decision, if there also exists a body of
professional opinion equally competent, which supports the decision as
reasonable in the circumstances... a judge‟s preference for one body of
distinguished professional opinion to another also professionally distinguished
is not sufficient to establish negligence in a practitioner, whose opinions have
received the seal of approval of those whose opinions, thoughtfully expressed,
honestly held, were not preferred.”
As can be seen from the quotations from the judgments set out above, an Architect or Engineer
does not warrant the adequacy of his design to their client, but only due professional care in
preparing it.
4 Continuing duty and limitation

The duty of design in a construction contract is essentially a continuing one where the
construction professional‟s employment continues during the supervision stage:-
“ The architect is under a continuing duty to check that his design will work in
practice and to correct any errors which may emerge. It savours of the
ridiculous for the architect to be able to say, as it was here suggested that he
could say: “True, my design was faulty but, of course, I saw to it that the
contractors followed it faithfully” and to be enabled on that ground to succeed in
the action.” [Brickfield Properties Ltd v Newton (1971) 1 WLR 862]
“ I consider that the architect was responsible for the design and that that
responsibility was a continuing one in the sense that, if he subsequently
discovered that what he may initially have been justified in assuming was an
adequate design was in fact a defective design, his responsibility remains.”
[London Borough of Merton v Lowe (1981) 18 BLR 130]
“ I am now satisfied that the architect‟s duty of design is a continuing one, and it
seems to me that the subsequent discovery of a defect in the design, initially
and unjustifiably thought to have been suitable, reactivated or revived the
architect‟s duty in relation to design and imposed upon them the duty to take
such steps as were necessary to correct the result of that initially defective
design.” [London Borough of Merton v Lowe (1981) 18 BLR 130]

5. Measure of Damage
If an error in the design is discovered at an early stage, the Employer should normally, as
part of the duty to mitigate loss, give the professional an opportunity to correct it.
In Columbus Co v Clowes (1903) 1 KB 244, the Judge said:-

“ It seems to me that the most the plaintiffs can get is the reasonable cost of
making the plans good. But then comes the difficulty. The defendant himself
would have made the plans good without any charge. Indeed he would have
been bound to do so. If, however, the plaintiffs had called in another architect,
he would in all probability have insisted on commencing the plans de novo, and
would have refused to make any use of the defendant‟s plans, but would that
have been a reasonable course to pursue? I do not think it would.”
The measure of damage for breach of the design obligation will thus differ widely according to
the nature of the breach. It may be nominal, if the error can be rectified simply at an early stage,
or it may be for loss of value or loss of commercial profitability in the case of a non-structural
suitability breach, which cannot be rectified. Where the design failure relates to the structure
itself, there will then be an argument as to whether the Claimant should recover the cost of
repairs or the amount of diminution in value.
6. Design
An Architect or Engineer (“A/E”) will normally be given a relatively free hand in the design
elements of their duties, but Employers of course sometimes press their own ideas upon them as
to the materials to be used or the plans to be followed. Where the Employer‟s suggestions or
wishes are likely to lead to an unsatisfactory result, the A/E‟s duty will be discharged if they give a
sufficient warning to the Employer. Where an A/E is specifically instructed to use a new method
of construction, its failure may still be consistent with a proper degree of care on the A/E‟s part.
Where a project involves new techniques of construction, the A/E is under a special duty to take
the best advice available upon the use of such new techniques, and to advise their Employer of
any potential risks; and where the selection of the technique is down to the A/E, the onus of
justifying their action will be correspondingly heavier.
In normal circumstances, an A/E will not be automatically relieved from liability for their plans or
design by obtaining their Employer‟s approval of them, if the design defect complained about is
one of construction or of a technical nature.
7. Delegation of Duties
The appointment of an architect, as with most professional persons is personal to himself. He
cannot delegate his duty to be performed by someone else. In practice however, due to the
complexities of some projects an architect will usually delegate a substantial proportion of the
technical aspects of design to other skilled professionals like mechanical & electrical engineers,
civil & structural engineers, quantity surveyors, etc. Where an architect undertakes the design
and supervision of a building project under an “umbrella” arrangement, he should let the client
know that he is delegating other aspects of the design like the mechanical & electrical design
work and structural design work to other professionals.
8 FEASIBILITY STUDIES
8.1 Concept Design and Cost-Benefit Analysis
A project will usually begin from a concept design and the feasibility of the project will be
assessed based on such designs. As part of the feasibility study, relevant constraints and
conditions will be investigated, and forecasts of costs, revenues and other economic benefits will
be prepared. Before proceeding to detailed design and construction, decisions have to be made
on:

 size and layout;
 structural concept;
 the operational use of the works;
 standards.
An architect may be called upon to prepare feasibility studies as to the potential of the site. The
architect should be careful to advise only on the physical potential of the site and not the
commercial viability of a project unless be professes to have that skill as he may find himself
liable to the client if the client acts on his advice and suffers a loss under the Hedley Byrne
principle.
In the earliest stages of the employment of the construction professional, the Employer will
invariably indicate or impose limitations on the cost of the proposed project. Even if no mention of
this is made, it has been suggested that an A/E owes a duty to design works capable of being
carried out at reasonable cost, having regard to their scope and function. There will, therefore, in
most cases be an express or implied condition of the professional‟s employment that the project
should be capable of being completed within a stipulated or reasonable cost, and an A/E will be
liable in negligence if, in fact, the excess of cost is sufficient to show lack of care or skill on their
part.
8.2 Cost Estimates
An architect, engineer or quantity surveyor may be asked by his client for an estimate of the likely
building costs of the proposed project. In providing an estimate the architect is under a duty to
give a figure that is reasonably close to the ultimate cost that takes into account the effect of
inflation or is expressed to be current cost only. The estimate should also fall within any budget
limit imposed by the client. An architect should therefore ascertain whether the client has any
costs limit and prepare a scheme that is capable of being carried out within that limit. In any
event the architect should ensure that the proposals can be executed for a reasonable cost
having regard to the scope and function of the works.
Very often, an architect is asked to produce a design within a given budget. In such a case, an
architect may be under a duty to design works capable of being carried out at a reasonable cost
having regard to their scope and function. There will be an express or implied condition of
employment that the project should be capable of being built within a stipulated or reasonable
cost.
In Gordon Shaw Concrete Products Ltd v Design Collaborative Ltd, Canadian architects were
asked to investigate the possibility of constructing a house for C$60,000. They designed a
scheme that would cost over C$100,000 to build. The plaintiffs sued for negligence and claimed
repayment of fees paid on the grounds that the work carried out was useless. The architects
were found to be negligent and to have failed to provide any consideration for the fees paid to
them.
The judge said: „The architect was under a duty to submit an estimate of construction costs that
was reasonably cost to the ultimate cost and reason for that discrepancy. There was no
reasonable explanation of the great discrepancy between the estimated and ultimate construction
figure.‟
An architect may also be liable if his negligent advice causes the client damage. In the light of the
4
case of Nye Saunders & Partners v. Alan E Bristow (1987) 37 BLR 92 (CA) is authority that
4
Bristow commissioned architects to renovate his Elizabethan mansion in Surrey. He gave a budget figure of
£250,000 and the original estimate of £238,000 was given in February 1974. By the time the works were costed
in September of the same year the likely completion costs were £440,000 and still rising. The defendant refused
to continue with the project and terminated the architect‟s appointment and refused to pay their fees. When sued
for the fees by the architect, he contended he had to cancel the project as he could not proceed because he had
been misled. The court found the architect negligent for failing to point out that the estimate was based on prices
which had not taken inflation into account.

when a person is asked to give an estimate, he must clearly indicate the extent to which the
estimate is subject to variation, or at least that the basis must be clearly stated.
In the case of Moneypenny v Hartland & others (1824) 1 C&P 351, (1826) 2 C&P 378, the judge
said:
“A man should not estimate a work at a price at which he would not contract for it; for if he does,
he deceives his employer… If a surveyor delivers an estimate greatly below the sum at which a
work can be done, and thereby induces a private person to undertake what he would not
otherwise do, then I think he is not entitled to recover; and this doctrine is precisely applicable to
public works. There are many in this metropolis which would never have been undertaken at all,
had it not been for the absurd estimates of surveyors”.
The measure of damages for breach of this duty may often not be very great, since if discovered
an Employer will have lost little, but just suffered a delay in the project coming to fruition. In cases
where the excess of cost over estimate is not appreciated until the work has been completed, the
measure of damage may be difficult to assess since against the price the Employer has had to
pay, work done, to a corresponding value, has been carried out and there has therefore been no
“loss”. The A/E may well lose their right to remuneration, however, under the principle in the
Moneypenny case (see above).
8.3 Consequences of Negligent Forecasts

The law affects the position of those who carry out forecasts and feasibility studies in two
different ways. The early cases concentrated on the entitlement of an architect or engineer to his
fees, or to have his employment continued, when the tenders received exceeded his cost
estimates and the estimate was shown to have been made negligently. Alternatively, those who
have carried out studies and forecasts may be liable in damages to promoters and even third
parties for loss suffered due to reliance on their negligent forecasts.
The distinction between tort and contract is relevant here. Entitlement to fees must be a matter
of contract. Liability in damages to the promoter might be either in contract or tort. Liability to
third parties can only be based in tort.
One needs to appreciate the processes involved in forecasting to understand how negligence
may arise. The first stage to a forecast is the collection of data. Getting the data wrong or failing
to make appropriate enquiries may constitute negligence.
It does not follow automatically that the absence of significant data means negligence. Data will
necessarily be selective. For example, in the investigation of geotechnical or geo-environmental
conditions, investigations involve decisions on where to explore, where to sample and what to
test for. The investigation cannot be exhaustive, unless time and money are limitless.
The second stage is making the forecast on the basis of the data. The law does not impose an
implied warranty of the accuracy of the forecast or figures. As a matter of practicality, the one
certainty about forecasts is that they will be inaccurate. The law does, however, impose a duty to
exercise skill and care in the preparation of the forecast or figures. A forecast might be negligent,
for example, on the basis of failure to take into account some obviously significant factor.
Sometimes liability has been imposed for failure to warn that a forecast might be inaccurate
(perhaps because of limitations on the extent of the investigation), or that it does not include
allowance for some factor, or of the possible degree of inaccuracy.
The architect was entitled to his fees for submitting the planning application prior to the cost estimate and was
not entitled to his fees for work done after his estimate had been acted upon.

8.4 Duty to warn
However, the need for care in preparing preliminary cost plans and specifications in relation to
forecasts of „net lettable area‟ was painfully reinforced in Gable House v Halpern Associates
(1995) 48 Con LR 1. Here, the defendant architect for a refurbishment project, provided a
preliminary cost plan and elemental specification showing a cost of the works at £5.8m and a
useable office space of 33,928ft2. The actual area was only 31,769 ft2. The judge found the
architect knew that the amount of lettable space was important to its client, with the result that it
was liable for its client‟s claim.
The defendants produced plans, and gave estimates of the „net lettable area‟ to be obtained from
the refurbishment. On the basis of the estimates, the plaintiffs went ahead with buying out the
lease of a tenant and proceeded with refurbishment rather than redevelopment or resale. It
transpired that the areas were overstated, principally because the architect had not made
sufficient allowance for the space occupied by the facade support. The areas as stated were all
subject to a label “all areas approximate”, but the judge held that this was insufficient as a
warning and stated:
“I consider that they fell short of the standards to be expected of a competent architect in
failing to draw Gable House‟s attention to the difference between „usable office space‟ and
„lettable area‟.”
liability was still imposed on Halpern for several important reasons including:
• At the time the four alternative development schemes were put forward it would not have
been possible for an architect to forecast the net lettable area to within 500 square feet and
provide plans which were sufficiently developed to do so » Halpern's limitations or
qualifications were insufficient
• Ultimately the work which Halpern had done fell below the standard to be expected from a
competent architect, This opened the way toward liability in tort
• It was found that if Halpern had warned Gable House of these limitations it was improbable
that they would have gone ahead with the development.
8.5 Extent of Liability
More recently, the House of Lords has reviewed the question of liability for information supplied
negligently, in South Australia Asset Management Corp v York Montague [1996] 3 All ER 365.
The Claimants, SAAMCO lent money to property developers to buy commercial property at the
peak of a property boom. The borrowers were unable to re-pay the loans when the boom
collapsed and SAAMCO argued that they only lent money relying on negligent valuations of the
property by the defendant valuers.
The Claimants SAAMCO argued that they would not entered into the transaction at all but for the
negligent valuation and they should recover all losses suffered. The argument was accepted by
the Court of Appeal but rejected by the House of Lords which held that SAAMCO would only
recover that part of the loss which foreseeably followed from the careless valuation and not that
part which flowed from the collapse of the property market.
9 Concurrent Liability in Contract and Tort – Scope of duty

An architect may be concurrently liable in both contract and tort. An architect will be liable in
contract if he is in breach of an implied term as to the exercise of the degree of skill and care to
be expected of an ordinarily competent architect. Under the Limitation Act, claims for breach of
contract are statute barred 6 years from the date of the breach. In building cases, that date can
begin to run before practical completion. The measure of damages recoverable will those losses
arising naturally in the ordinary course of things from the breach and/or losses arising due to
special circumstances known to the defendant at the time the contract was made.

An architect can also be sued by his client for the tort of negligence for breach of the ordinary
duty of care, which for all intents and purposes is identical to the duty owed in contract. In tort,
the limitation period of 6 years begins from the date the damage first occurs, regardless of
whether the damage was discovered. The architect‟s liability in tort can therefore be longer than
in contract.
The existence of a contractual relationship between one party and another will not preclude the
existence of a tortious liability between the same parties. The question of whether or not a
professional person owes a duty of care in tort to their Employer, in addition to, and concurrent
with their contractual obligations, is still a matter of debate in the courts. The law has developed
in this area in recent years.
10. PROCUREMENT STRATEGY
10.1 Decisions and Advice

At the conclusion of, or as part of, feasibility studies, decisions need to be made on the
procurement strategy to be adopted for the project, having regard to the following :
 Division of functions and responsibilities
 Investigation and supply of information
 Buildability.
 Measurement and pricing.
The decisions are, or should be, conditioned by the legal implications (considered in the following
sections), and the policy adopted as regards the allocation of risks.
The need for these decisions also introduces a possible duty of care on architects, engineers and
quantity surveyors, and even lawyers, in respect advice on the choice of method of procurement
and the implications of the choice. There are relatively few reported construction cases involving
this issue, and those that are reported do not indicate a high rate of success in the claims, but
there are plenty of medical negligence cases about failure to warn of the implications of surgical
procedures, and these establish relevant principles of law.
10.2 Recommending a form of contract

The PAM Conditions of Contract for building works is commonly in use in private sector projects.
For public sector projects, an architect may not have a choice as to what form of contract to use.
Whereas an architect is at liberty to recommend the form of contract to be used, he has duty to
his employer, when he recommends a particular form of contract to be used, to ensure that he is
familiar with that form of contract and is able to administer that contract. While most architects
are familiar with the standard form building contracts commonly in use, there are instances
where the building contract used is not a standard form contract. An architect may find himself
liable to his employer and even to the contractor if he is found to be negligent in the
administration of the contract.
10.3 Administration of contract

The architect is the employer‟s agent in all matters connected with the building work and the
contract between the employer and the contractor and owes a duty of care to his employer to
administer the contract properly.
In the case of the administration of building contracts, where the terms of the contract may have
different interpretations, it may be that if a professional acts honestly but erroneously upon one
construction, they will not be liable for so doing. However, this must be a question of degree,
particularly if the contract in question is a standard form recommended by the professional to
their client, and the error relates to an everyday administrative matter under that form which is
either basic or upon which adequate advice or information was available.

Thus, where an Architect deliberately certified the full value of work done for interim payment
without any deduction for defective work of which he was aware, on the ground that the
contractual retention would be sufficient protection for the building owner, the Court of Appeal
considered that as there was no specific mandate in the contract for the use of retentions for that
purpose, the Architect was in breach of their duty to their client. (Townsend v. Stone Toms &
Partners (a firm)(1984) 27 BLR 26).
11. Design responsibilities

Quite apart from the aesthetic designs of a building, the design responsibilities of an architect
can extend to specifications, selection of finishes choice of construction techniques. He must
exercise skill and care in the execution of his designs and in the choice and specification of
materials.
12. Site Investigation and Supply of Information

12.1 Site Investigation
This includes preliminary observation and investigation of the site to determine if there are any
obvious physical constraints which may affect the site or the building e.g. encroachments, right of
way, drainage road reserves, etc. If necessary he should obtain interpretation plans to determine
if there are any planning constraints. He should not rely on information given to him by others but
should examine the site for himself. If he does not have the requisite skills to conduct a proper
investigation of the site, he must advise the client to engage suitable professionals e.g. land
surveyors, structural engineers to conduct the investigation.
In Columbus v. Clowes (1903), an architect was employed by a company to prepare plans. The
architect did not measure the site but acting on information from an unauthorized person, made
the plans on the assumption that the site as smaller than it was. Errors in the plans was
subsequently discovered and the architect was held liable to for errors in the plans.
In practical terms, the starting point for success and safety in construction is adequacy of
information. This applies to both design and construction phases. Under conventional
procurement arrangements, the architect or engineer has been responsible for arranging
investigations into ground conditions and existing structures, and obtaining information on natural
conditions (e.g. wind, waves, tides); on artificial obstructions such as existing pipelines; and on
matters such as access. The responsibility of the architect or engineer has, however,
traditionally been limited to obtaining this information as necessary for the permanent works
design.
The contractor also needs information on these aspects in order to select plant, plan working
methods, design temporary works, estimate rates of progress etc. Historically employers have
been reluctant to provide such information to contractors, or obtain the information specially
required by contractors, or accept responsibility for the accuracy of information which is supplied.
The law has, until recently, abetted that reluctance.
The starting point is probably Appleby v Myers (1867) LR 2 CP 651. The case concerned a
contract to install a boiler and related equipment on the defendant‟s premises. The premises
burnt down before the work was completed. The plaintiff argued that there was an implied term
that the defendant would make the buildings available and keep them in a fit state to enable the
plaintiff to perform its contract. However, the court held that there was no absolute warranty that
the premises would remain available.
The rule derived from the case, that the employer does not impliedly warrant the continuing
existence of the site to enable work, is extended to yield the principle that the employer does not
impliedly warrant the suitability of the site for the work of construction. See also Ibmac v Marshall
(1968) EG 211 where the contractor, on encountering serious difficulties with water, had
withdrawn from the site on the grounds that the employer “had not given them a proper site on

which to do work”. The Court of Appeal held that this amounted to abandonment by the
contractor.
The statement by Telford in Moneypenny v Hartland (1826) 2 C&P 378, quoted in 2.3 above, that
it was the duty of the engineer or architect to examine for himself into the nature of the soil, is an
important principle, but it appears that the duty which was envisaged was limited to investigation
of the site conditions relevant to the permanent works design and the risks borne by the
employer. In practice the information obtained for this purpose has commonly been disclosed to
the tendering contractors, but the law allowed the fiction in the contract that the contractor was to
satisfy himself as to the nature of the site, and not rely on the information provided.
There is an additional practical problem that the investigation carried out by the architect or
engineer was, and often still is, intended only to provide information relevant to the permanent
works design, without regard to the information needs of the contractor. An employer wishing to
satisfy the information needs of the contractor should consider what those needs are. For
example, if the work is to construct a cutting, the permanent works design is concerned with the
ability of the cut slopes to stand at the designed angle without slipping, while the questions for the
contractor are how difficult it is to remove the soil or rock, how much it will bulk, whether it will be
fit for use elsewhere.
A new information problem may be developing with design and build arrangements, in that clients
with experience and data relevant to the design are withholding such information from the design
and build contractors.
13 Buildability
One reason for problems in construction projects under conventional procurement arrangements
has been that employers and their designers have not seen it as part of their responsibility to
consider the buildability of the permanent works. Good designers probably consider buildability
in any event, but the law has not (at least until recently) made it their responsibility. In design and
construct arrangements, on the other hand, the designer is employed by the contractor, so
buildability is a prime consideration for the designer.
The starting point is Thorn v London Corporation (1876) 1 App Cas 120. Mr Joseph Cubitt had
been appointed by the corporation as engineer to produce designs for Blackfriars Bridge. He
produced contract drawings which showed the bridge piers to be built using caissons rather than
cofferdams. The contractor, Thorn, attempted to construct the works using caissons in
accordance with the drawings, but the attempt failed and he had to revert to the more
conventional cofferdam method.
Contractor claimed against the employer for the time and money wasted, on the grounds that the
employer had impliedly warranted the work was possible by the method shown on the drawings.
The House of Lords rejected the contention of such a warranty and held :
(i) No implied warranty that the bridge could be constructed in the manner specified in the
plans and specifications.
(ii) Contractor should take proper precautions to satisfy himself that the works could be
carried out pursuant to the specified method.
This hard line was continued by the House of Lords in Tharsis Sulphur and Copper v M‟Elroy
(1878) 3 App Cas 1040. The Appellants had employed the Respondents to erect a factory
structure including cast iron trough girders. The specified structural steel sections were found to
have been too thin for the fabrication of a steel structure. The engineer allowed the contractor to
use bigger sections but refused to give the instruction. On completion of the work the
Respondent contractor claimed a considerable sum in excess of the contract price for the extra
weight of metal supplied. The claim was rejected. The judge noted that in inviting the submission
of tenders based on the specification, the employer can be said to have effectively asked the
contractor “See if you can do this, and tell us what price you can do it for; satisfy yourselves …
… whether you can do it before you enter into the contract”

In other words, the contract undertakes to figuratively “bring the employer to his destination and
will be entirely responsible to ensure that it happens”. Hudson‟s has summed up the position
taken in the Tharsis Sulphur case very succinctly, i.e. “Can you build to this design, and if
so at what price?”
(i) It appears that the obligation to complete extends to varied works of a similar nature to
the main works;
(ii) By tendering and subsequently accepting an award the contractor is deemed to have
agreed that he can do it for the tendered price.
A separate question is whether the designer owes a duty to the employer to produce a design
which is buildable. In EDAC v Moss (1984) 2 Con LR 1, HHJ Newey QC held that there was
such a duty:
“I think that if implementation of part of a design requires work to be carried out on site, the
designer should ensure that the work can be performed by those likely to be employed to do
it, in the conditions which can be foreseen, by the exercise of the care and skill ordinarily to be
expected of them. If the work would demand exceptional skill, and particularly if it would have
to be performed partly from scaffolding and often in windy conditions, then the design will lack
what the experts in evidence described as „buildability‟
Similarly I think that if a design requires work to be carried out on site in such a way that those
whose duty it is to supervise it and/or check that it has been done will encounter great
difficulty in doing so, then the design will again be defective, It may perhaps be described as
lacking „supervisability‟.”
14. DESIGN, SPECIFICATION AND CONTRACT DOCUMENTATION
14.1 Fitness for Purpose or Skill and Care ?

It is fairly trite law that the duty imposed on a designer by law as an implied term of a contract, is
to exercise due skill and care.
The point is frequently made that the designer, by undertaking a duty of skill and care, does not
warrant that the thing designed, when constructed, will be fit for purpose. The possibility that
there may be a failure to achieve fitness for purpose without breach of the duty of skill and care is
demonstrated in a number of cases. Thus in Turner v Garland and Christopher (1853) HBC 4th
ed Vol 2 p1, the defendant architect was instructed by the plaintiff to include in plans for model
lodging houses a new patent concrete roofing, proposed by the defendant to meet the
requirement for an economical flat roof. The concrete roof proved a failure, let in water, and had
to be replaced. The defendants sued in negligence. After the jury found that “the novelty of the
experiment is a sufficient excuse for the leakage”, the judge held that this was substantively a
verdict for the defendants and stated:
“It appears to me the defendant brought an earnest mind and careful attention to the work he
had undertaken; and if he brought a competent skill, he ought not to be called upon to rectify
any partial failure of the work.”
A recent example is George Hawkins v Chrysler Ltd and Burne Associates (1986) 38 BLR 36.
Burne was an engineer who had designed a communal shower facility for the car manufacturers,
Chrysler. The plaintiff, an employee of Chrysler, slipped on the wet shower room floor and sued
for personal injury. Burne was joined to the action as a third party. The pleadings alleged failure
in the selection and recommendation of the flooring material and averred an implied warranty
that the floor surface would be fit for use in a wet shower room. In the Court of Appeal it was
held, first, that there was no such implied warranty; second, that the engineer had made all
reasonable enquiries before specifying the material and had not been negligent.
The duty of skill and care, does not amount to an implied warranty that the end product will be fit
for purpose, but it is effectively a duty to exercise skill and care to achieve fitness for purpose.
The real difference is that it is a process obligation rather than an end-product obligation. Proof
of breach depends on proof of fault in the process, rather than merely failure of the end product
to be fit for purpose.

14.2 Design and Build
In traditional employer/architect relationships, an architect is only required to use reasonable care
and skill in the execution of his design services. He does not normally warrant the suitability of
his design for an intended purpose. In design and build contracts however, there may be an
implied term that his design is suitable for the intended purpose. He has a higher duty of care to
his employer to ensure that his design is suitable for the purpose made known to him where his
is employed under a design and build contract.
The “employer” is the person with whom the architect has a contractual relationship. In a design
and build contract, the “employer” is the builder with whom the architect has teamed up to offer
his design. Although no privity of contract exists between the architect and the building owner,
an architect is still under a duty of care to ensure that the acts and omissions do not cause loss
or damage to the building owner.
14.3 Who is the “Client”

It should be pointed that the “client” in the case of design and build contract is the party with
whom the architect contracted. It is to be distinguished from the building owner, who may well be
the employer of the contractor.
14.4 Liability under Design and Build Contracts

Liability for defects under design and build contracts raises special considerations. In contracts
to design and build, the law will probably imply a contractual obligation of fitness for purpose, in
the absence of contractual stipulation otherwise, and it is no defence to show that the designer
has exercised all due skill and care in making his design: Newham LBC v Taylor Woodrow-
Anglian (1981) 19 BLR 99.
In Basildon DC v Lesser [1985] QB 839, the plaintiff (the Council) entered into a standard form
contract with the first defendants (System Builders) for the construction of dwellings. The
Contract contained recitals which referred to design drawings amongst other things, stating that
they had been prepared under the direction of the plaintiff's engineer or architect. The benefit of
the Contract was assigned to the second defendants and a Deed of Indemnity was given by the
third defendants, agreeing to indemnify the plaintiffs against any breach of the building contract
by the second defendants. An action to recover damages in respect of defects which developed
in some of the buildings proceeded only against the third defendants.
The Judge also referred to dicta of Lord Denning MR in Hancock v Brazier (Anerley) Ltd [1966] 2
All ER 901, where he said:
"When a purchaser buys a house from a builder who contracts to build it, there is a threefold
implication: that a builder will do his work in a good and workmanlike manner; that he will
supply good and proper materials; and that it will be reasonably fit for human habitation.”
A further strand of reasoning hinged on the fact that a builder, when providing a building, was
engaged in a contract for work and labour done, as well as materials supplied. In performing the
work he should take reasonable care and skill, and in providing materials, he should use those
which will provide an end result fit for the purpose. In a sense, the provision of quality materials
necessarily overlapped with the necessity to use reasonable skill and care in choosing those
materials. This reasoning was summed up when Judge Newey said:
"The implication of a term that a builder should provide a building which is fit for purpose,
imposes on him a higher duty than is ordinarily implied in a contract for the design of a
building by an architect. The latter, like the engineer, solicitor, doctor and other professionally
qualified persons, has only to use reasonable care and skill”....and later...... "However, it
would seem that if the professional person does not merely design, but makes something, it is
to be implied that what he has made will be fit for purpose.”
For these reasons the Judge held that there was an implied term of the Agreement that the
building designed by the Contractor as dwellings should be fit for habitation on completion.
Further, having found that this was the case, it was necessary that the Contractor should have
designed them with the skill and care to be expected of system builders and so this was also
implied.

A turnkey contractor engaged structural engineers to design the frame of a factory building, the
floors of which were required to accept the weight of stacker trucks moving over them carrying oil
drums. As designed, the floors were not in fact able to withstand the resonance forces set up by
the movement of the trucks. The contractor sued the engineer for damages. The trial expressly
stated that there was no negligence but implied a term of suitability, suggesting that a higher duty
might be implied by law than that owed by professional men generally. It was held by the Court
of Appeal that in general no higher duty rested on the structural engineer than that formulated, in
Bolam‟s case for professional negligence, on these particular facts, since the design and build
contractor was liable to the owner without qualifications for a suitable design, the defendants
were liable to the contractor under a term to be implied from the particular facts. Greaves v.
5
Beynham Meikle (1975) 1 WLR 1095.
In Independent Broadcasting Authority (IBA) v EMI and BICC Construction Ltd (1980) 14 BLR
1 the House of Lords held that the defendant (BICC) was liable for its negligent design of a
television aerial mast, causing it to collapse as a result of oscillation of the mast during high
winds. The collapse was in fact caused by two forces of stress on the mast, but BICC were only
liable in respect of one of them.
The television mast collapse due to ice forming on the stays where the design assumed that it
would fall way in the high winds. The contractor played no part in the design. However, its tender
it stated that the offer was „for the design, supply and delivery of a 1,250 ft. high stayed cylindrical
mast in accordance with our line diagram drawing No. 3SP5134/4‟. The use of the word „design‟
allowed the House of Lords to conclude that the contractor had expressly accepted liability for the
design. It justified this on the grounds that it could recover the costs from the sub-contractor.
14.5 Split Responsibility

A further issue may arise where several design professionals are involved, whether one
professional has taken responsibility for design by others which is not within the normal scope of
work carried out by his profession. To what extent is the generalist entitled to rely on or delegate
to the specialist? To what extent is he expected to review or check the work of the specialist?
Architects, in particular, may be found to have taken on responsibility for the whole of the design,
but if the client knows that specialists are to be engaged by the architect as sub-consultants for a
particular part of the work the architect may escape liability.
In Moresk Cleaners v Hicks [1966] 2 Lloyd‟s Rep 338, the defendant architect was employed by
the plaintiff to draw up plans and specification for a factory extension. Without reference to the
plaintiff the defendants invited a firm of specialist contractors to design the building. The building
proved to be defective. The judge stated:
“It was said in the defence that it was an implied term of the defendant‟s employment that he
should be entitled to delegate certain specialised design tasks to qualified specialist sub-
contractors. I am unable to make any such implication... The architect has no power
whatever to delegate his duty to anybody else.”
In Davy Chiesman v Davy Chiesman [1984] Fam 48, a similar question arose in the context of a
solicitor relying on counsel acting in divorce proceedings. There was argument over an
application by the Law Society against the husband‟s solicitor on the grounds that costs had been
5
In Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners [1975] 1 WLR 1095 consultant
engineers were instructed to design a warehouse, the first floor of which, as they knew, was to be used
for storing drums of oil that would be moved around by forklift trucks. The warehouse was built to the
engineers‟ design but after a few months‟ use the first floor began to crack because it was not strong
enough to bear the loads imposed on it. The main contractor, by whom the engineers had been
employed, made a claim against them alleging that they had impliedly warranted that their design would
produce a building fit for its intended use. Despite recognising that a professional man does not
normally undertake an unqualified obligation to produce the desired result, the court held in that case
that the exchanges between the parties were such as to give rise to an implied term that the warehouse
as designed would be fit for the purpose for which it was required. In other words, the engineers
assumed an unqualified obligation to produce a suitable design.

incurred “improperly and without reasonable cause”. The solicitor argued that he was entitled to
rely on properly instructed counsel. In the Court of Appeal, May LJ stated:
“I also agree that a solicitor is in general entitled to rely on the advice of counsel properly
instructed. However, this does not operate so as to give a solicitor an immunity in every such
case. A solicitor is highly trained and rightly expected to be experienced in his particular legal
fields. He is under a duty at all times to exercise that degree of care, to both client and the
court, that can be expected of a reasonably prudent solicitor. He is not entitled to rely blindly
and with no mind of his own on counsel‟s views.”
In Baxall v Sheard Walshaw [2001] BLR 36, the defendant architect relied on a design by
specialist contractors of siphonic drainage for a central valley gutter. HHJ Bowsher QC held that
the architects ought not to have allowed the specialists to choose their own figure for the rainfall
intensity design criterion or that they should have disapproved the figure proposed by the
specialist. The judgment was overturned by the Court of Appeal, Baxall v Sheard Walshaw
[2002] BLR 100, on the grounds that there was only one effective cause of the floods damaging
the goods inside the warehouse, namely the absence of overflows, which was a patent and not a
latent defect, and that it was not possible to say that the underdesign of the gutter was a
contributing cause of the damage. However the Court of Appeal did not disturb the conclusions
regarding the failure to disapprove the design.
14.6 Duty to Warn

A growing number of cases involve the issues of warnings, in particular
 whether there was a duty owed (to a client, other consultant or contractor) to warn of a risk
 whether the duty continued beyond certain stages
 whether a warning given was sufficiently loud and clear
 whether giving a warning discharged a duty of care.
Some of these issues arise after the design stage and will be considered later.
In Williams v Michael Hyde [2001] BLR 99, the facts of which are set out above, the Court of
Appeal upheld a decision that the giving of a warning had not been sufficient to discharge a duty
of skill and care, that there had been a further duty to pursue an investigation.
A good example appears in Parkman v Cumbrian Industrials (2000) 78 Con LR 18, where HHJ
Thornton QC concluded at para 193 that Parkman:
“ should have, at the very least, provided BICC with advice which weighed up the
competing advantages and disadvantages of a membrane and clay liner and
any other possible engineering solution and advised, in connection with the
membrane solution, that full reliance was being placed on the satisfactory
installation of the membrane … and that such reliance was undesirable since
there was no other means of preventing ingress through the cap in the likely
event of the integrity of the membrane being breached.”
In Plant Construction v Clive Adams [2000] BLR 137, the Court of Appeal emphasised the need
for warnings to be very loud and clear if necessary.
15. TENDER STAGE

Even with competitive tendering, there may be duties of care affecting various aspects of the
tender process, including:
 prequalification of tenderers
 preparation of tender documents
 responding to enquiries
 assessment of tenders
 acceptance and preparation of formal contract documents.

Completely open competitive tendering is a high risk strategy for employers in construction.
Although the tendered prices may provide the lowest obtainable, the level of assurance provided
by the process that the work will be satisfactorily completed, as and when required, is also low.
The employer is reliant on a promise to perform in the future. The law provides some backing to
the promise, but legal remedies can only be regarded as a safety net, and even that of doubtful
reliability, particularly since a low tender can be a sign of impending insolvency.
Attempts are made to improve the level of assurance by prequalification of tenderers, or by two
stages or similar procedures intended to introduce quality and reliability as criteria for selection.
„Transparent‟ procedures, showing objective criteria for the selection of companies to be invited
to tender and for selection for the award of contracts, are needed to protect against challenges.
15.2 Prequalification of Tenderers

Where tenderers are to be prequalified, the person carrying out the prequalification faces
potential claims from two sides: from companies excluded from tendering, and from employers
when unsuitable tenderers have not been excluded. The former class of claims may also be
directed against the employer.
Would a disappointed contractor have rights, against the person who carried out the
prequalification? There is no history of successful claims, but the recent case of Spring v
Guardian Assurance [1995] 2 AC 296, in which it was held that an organisation owed a duty of
care in tort to its former employee when preparing and providing a reference, suggests that the
possibility may exist.
On the other side, failure by an architect, engineer or quantity surveyor to warn an employer of
the unsuitability of a tenderer can lead to liability even without a prequalification process. In
Partridge v Morris (1995) CILL 1095, HHJ Hicks held that the defendant architects were liable for
negligence in failure to consider the financial acceptability of tenderers.
15.3 Preparation and Issue of Tender Documentation

The tender documentation represents the employer‟s one chance for the contractor to quantify
obligations and risks within the tender price. It represents the employer‟s chance to obtain
commitments from the contractor as regards potential variations, for example through a priced
bill of quantities, schedule of rates, or dayworks schedule. It provides occasion for the supply of
site information to tenderers.
The objective of the A/E/QS, if he is responsible for preparation of the tender documentation,
should therefore be to ensure that it is complete and consistent. Completeness means that
everything should be covered that is intended to be covered. Consistency means that the
various documents comprised in the contract should be consistent with each other. Curiously
little effort seems to go into checking the final documentation for consistency or completeness,
although the impact on claims is very significant.
If the A/E/QS is responsible for the issue of the documentation, the objective will extend to
ensuring that the documentation is complete, in the sense of containing all the intended
documents when it reaches the tenderer and that the tenderer receives all the documents. It is
probably sufficient as a check for the latter purpose if the documents are listed, it is then up to
the tenderer to check that the documents received comply with the list: Entores v Miles Far East
Corp [1955] 2 QB 327. (That case relates to the duty of the recipient of a telephone call to ask
for words to be repeated if they are spoken but unclear, but the principle is of general
application.)
15.3 Responding to Enquiries

During the tender period, the A/E/QS may be required to respond to enquiries from tenderers.
This creates the possibility of the A/E/QS or the employer becoming directly liable to the
tenderers or eventual contractor for the accuracy of the information supplied, and of the A/E/QS
becoming liable to the employer if the employer is liable to the contractor.

The employer may be liable to the contractor either through the tort of negligent misstatement or
misrepresentation. The duty of care in supplying information at tender stage was considered by
the Court of Appeal in Howard Marine & Dredging v Ogden (Excavations) [1978] QB 574.
In Gran Gelato v Richcliff (Group) Ltd [1992] Ch 560, it was held that the vendor of property was
liable to the purchaser for false statements made by the vendor‟s solicitor. It would appear that
the employer in construction may be liable in respect of false information supplied by the A/E/QS
to tenderers within the scope of his authority.
As between A/E/QS and employer, liabilities could arise if there has been a lack of skill and care
in preparing the information or, perhaps, handling the supply of information. Information should
be supplied to all tenderers equally and they should be fixed with receipt of the information. The
standard of skill and care would thus include the operation of appropriate procedures.
15.4 Assessment of Tenders

In Blackpool & Fylde Aero Club v Blackpool BC [1990] 1 WLR 1195, the Court of Appeal held
that the defendant local authority were liable for refusal to consider the plaintiff‟s tender. The
defendants had wrongly believed that the plaintiff‟s tender had been submitted after the noon
deadline, but it transpired that the box had been emptied early by the defendant‟s employee and
the tender had been delivered correctly. The local authority argued that liability was excluded in
any event by a clause in the invitation to tenders stating that the local authority was not bound to
accept the highest (in this case) tender or any tender, but the Court of Appeal rejected the
argument. Unfortunately the measure of damages was not considered in the reported decision.
Subsequently in Fairclough Building v Port Talbot BC (1992) 62 BLR 82, the Court of Appeal
rejected a claim from a disappointed tenderer, stating that the duty was only to give proper
consideration to the tender, and this had been done.
15.5 Acceptance and Preparation of Formal Contracts

In so far as the A/E/QS is involved in acceptance of tenders and preparation of formal contract
documentation, he needs to be aware of the legal rules that apply and the pitfalls that can arise,
to ensure that binding contracts are entered into when intended, with the intended documents
incorporated, and vice versa.
An A/E/QS undertaking this work would reasonably be expected to have an appropriate

knowledge and understanding of the relevant principles of law. In Pozzolanic Lytag v Bryan
Hobson Associates [1999] BLR 267, a project manager was held liable, after part of the works
collapsed, for failure to ensure that the design and build contractor‟s insurance arrangements
satisfied the requirements of the contract.
16 CONSTRUCTION PHASE
16.1 Design and Information Supply

Timely Delivery of Drawings, Information and Instructions
During the construction phase the architect/engineer has an ongoing duty to complete the design
and supply information to the contractor. This is to be implied as a matter of co-operation to
enable the contractor to fulfil his obligations.
An architect owes a duty to his employer and to the contractor to ensure that plans, drawings and
details are issued within a reasonable time. What is a reasonable will depend on the facts and
circumstances of the case. Delay in issuing drawings, which is a common cause of complaint by
contractors may lead to claims by contractors rendering the employer ultimately liable to the
contractor.
 When is the contractor entitled to receive the information?
 What standing has the contractor‟s programme in this context?

There are several relevant cases. In Wells v Army and Navy Co-op (1902) HBC 4th Ed Vol 2
p346, Wright J stated that where the contract and specification did not prescribe the times at
which detailed drawings were to be supplied by the architect, the contractor was “entitled to be
supplied with them promptly upon request”. His decision was upheld by the Court of Appeal.
However, in Neodox v Swinton & Pendlebury BC (1958) 5 BLR 34, Diplock J held that “from time
to time” meant that the contractor could not expect all the information on day one, and he made
the point that reasonableness had to be viewed from the position of the designer as well as the
contractor.
In Merton LBC v Leach (1985) 32 BLR 51, Vinelott J held that the contractor‟s programme could
serve as a written notice of requirements for information and drawings, in the context of JCT
63/77.
On the other hand, in Glenlion v Guinness Trust (1987) 39 BLR 89, HHJ Fox-Andrews held that,
although the contractor was entitled to finish early, the architect or engineer was not
automatically bound, to provide information in accordance with a programme submitted by the
contractor which showed early completion. The basis of the decision was that programmes
submitted by contractors showing early completion are often unduly optimistic, that the contractor
was not bound by his submission of the programme to complete by the date shown on it,
therefore, as a matter of mutuality, the employer and architect or engineer should not be
regarded as bound by the programme.
In Royal Brompton Hospital v Hammond [2000] BLR 75 HHJ Hicks QC held that the consulting
mechanical and electrical engineers were:
“obliged to use reasonable skill, care and diligence to ensure that the co-ordination drawings
were provided in time to enable the contractor to prepare and complete his works in
accordance with the Contract programme”.
In the absence of any express term, the obligation to supply drawings and information is to do so
within a reasonable time. Failure to meet this obligation is probably the most common cause of
claims by contractors against employers.
There is a lack of legal authority on the exact nature of the professional‟s duty in this regard, no
doubt because, in the vast majority of cases, if a Contractor can show that he has in fact been
held up for lack of information, he would be awarded damages, and because, on the other hand,
even if a point of time at which information should theoretically be available can be shown to
have passed, it will not avail the Contractor if he has not suffered damage. In any particular case,
the enquiry invariably becomes one of fact, and the precise identification of the point of time at
which the Contractor needed the information, which is usually necessary to establish the
quantum of his damages, is also a question of fact which cannot of course be of assistance in
other cases on different facts.
It is submitted by Hudson that the duty needs to be assessed in the light of the following
criteria, among others:-
“(a) By far the most important, the Contractor‟s actual progress, if slower than that
shown by or to be inferred from any programme or the stipulated contract
period (this will also go, of course, to questions of causation or damage);
(b) The stipulated contract period or intermediate dates (dates to be inferred

from these will normally take precedence over „optimistic‟ earlier dates
shown in any post-contract programme furnished by the Contractor, and
over the wording of most contract provisions governing the submission and
approval of such programmes …)
(c) The need of a Contractor for reasonable advance knowledge of the works for
pre-planning purposes on his part, which obviously will vary considerably
according to the subject matter of the information in question;
(d) Whether or not the information relates to a variation;

(e) Any agreed or indicated programmes showing the intended order of
working or dates of completion of parts of the work;
(f) Requests or notices by the Contractor indicating his need for the
information in question.
In an engineering contract, the Contractor alleged an implied term that all necessary instructions
and details should be given to the Contractor “in sufficient time to enable the contractors to
execute and complete the works in an economic and expeditious manner and/or in sufficient time
to prevent the contractors being delayed in such execution and completion”. It was held that it
was clear from the terms of the contract that instructions would be given from time to time in the
course of the contract, and that what was a reasonable time did not depend solely on the
convenience and financial interest of the Contractor. Reasonableness had also to be regarded
from the point of view of the Engineer and his staff and of the owners themselves. Other relevant
matters affecting reasonableness would be the order in which the works were to be carried out
as approved by the Engineer, whether requests for particular details have been made by the
Contractor, whether the details related to variations or to the original works, and also the contract
period. This list was not exhaustive, and what was a reasonable time was a question of fact
having regard to all the circumstances of the case (Neodox Limited v Swinton and Pendlebury
Borough Council).
As far as the late instructing of variations is concerned, any liability of the A/E will depend on
whether the reason for a later variation, and hence of any subsequent more detailed information,
implies negligence or fault on the part of the A/E, either in failing properly to pre-plan the work or
due to a defective design on his part requiring subsequent correction.
Hudson says as follows:
“ Difficult questions of fact can arise as to the time by which the Contractor is
entitled to expect information from the Architect or Engineer to enable orders to
be placed with … sub-contractors and suppliers. It is clear that an owner will
usually have discharged his obligation if the information is made available in
time to permit the sub-contractor to quote delivery or completion dates
consistent with the Contractor‟s programme or progress. Shortages or
lengthened delivery dates have a habit of occurring very suddenly in industry,
and the first that the parties may know of any difficulty may be when the sub-
contractor, on being asked to quote or receiving an order, announces that he
cannot supply or do the work in the required time. It does not necessarily follow
in such a case, it is submitted, that there has been any breach of duty by the
Architect.
Relevant facts in determining what was a reasonable time for such information
to be given would include, it is suggested:
(a) Whether the goods and services concerned were well known in the industry
to be in short supply or the subject of long delivery dates, so requiring very early
nomination by the A/E or perhaps provisional orders being placed even before the
appointment of the main contractor;
(b) Whether the availability of the goods, by their nature, ought to be expected to fall
within the Contractor‟s knowledge (for example, reinforcement steel, or bricks);
(c) Whether, in the light of both the above, he had made any request for the information
or an early nomination;
(d) Whether, on the other hand, the matter was purely within the owner‟s sphere (for
example, complicated pipes and specials requiring to be specially made for the
contract) and, if so, whether reasonable enquiries and assurances as to availability
had been made and obtained by the Architect or Engineer in good time.”

16.2 Ordering and Instructing Variations
If changes are to be incorporated as work proceeds, there needs to be a power to order the
variation, not merely to request it. „Power to order‟ means it must be within a binding contract,
which means there must be „machinery‟ for adjusting the price: Foley v Classique Coaches
[1934] 2 KB 1. A mere agreement to agree is not sufficient.
In ordering variations, the architect or engineer acts as the employer‟s agent. This was stated by
HHJ Davies in Partington v Tameside MBC (1985) 32 BLR 150, where he said:
“The architect... acts as the employer‟s agent in issuing instructions to the contractor, in
accordance with the terms of the contract, and for the purpose of requiring variations and
sanctioning variations required by the contractor.”
The issues which arise in connection with variations, include :
 whether the Architect/Engineer is bound to order a variation when the specified work proves
difficult or impossible;
 what if the Architect/Engineer denies that an instruction amounts to a variation;
 whether a variation order is within the scope of the power conferred by the contract.
The House of Lords‟ decisions in Tharsis Sulphur & Copper Co v M‟Elroy (1878) 3 App Cas 1040
and Thorn v London Corp (1876) 1 App Cas 120 militate against any general duty on the
architect or engineer to order variations to assist the contractor.
In both cases it was held to be the contractor‟s risk whether it was possible to construct the
works as specified; the costs of changing to alternative methods or specifications were to be
borne by the contractor. On the other hand, an agreement by an architect or engineer as to what
should be done to overcome a problem may sometimes be construed as a variation order, even
though the agreement was given to assist the contractor in his own difficulties: Simplex v LB St
Pancras (1958) 14 BLR 80. The argument may also be raised that, under some forms of
contract, the contractor is not permitted to deviate from the contract without a variation order.
As a general principle, where an Engineer denies that an instruction is a variation, the courts may
nevertheless hold that it is a variation: Brodie v Cardiff Corp [1919] AC 337; Mitsui v A-G for
Hong Kong (1986) 33 BLR 1.
Most standard forms of construction contract couch the variation power in very wide terms.
However, there are limits, as demonstrated by Sir Lindsay Parkinson v Commissioner for Public
Buildings & Works [1949] 2 KB 632. That decision suggests that the scope of the power may
depend on the pricing arrangements provided.
The decision of the House of Lords in Ranger v GWR (1854) 5 HL Cas 72 provides authority for
the proposition that if the contractor accepts an instruction without protest, he cannot afterwards
argue that it was outside the contract variation powers. This leads to the contractor‟s dilemma: if
he protests that work ordered is outside the scope of the variation power, he cannot at the same
time insist on being employed and paid to perform the work.
16.3 Approval and Instruction of Method of Working & Temporary Works

Architects and engineers face additional potential liabilities if they undertake approval of methods
of construction or give instructions as to methods. Duties to do this may be imposed by the
construction contract, but there is no implied duty.
In Clayton v Woodman [1962] 2 QB 533, an architect instructed a contractor‟s workman, a

bricklayer, to proceed with cutting a chase in an existing stone gable wall in accordance with the
contract, without any mention of shoring or support, despite the workman‟s protest that it was
unsafe. When the chase was cut, the wall collapsed and injured the workman. The workman
sued the architect.

The judge at first instance, Salmon J, agreed that the “law imposes no duty upon the architect to
advise the builders or their servants about their safety” but held that because the architect chose
to give the instructions direct to the bricklayer he “undertook a duty towards the bricklayer to take
reasonable care for his safety”. The decision was reversed by the Court of Appeal on its facts;
they found that the architect had not done sufficient to usurp the contractor‟s responsibility for
safety, but even the Court of Appeal acknowledged that if the architect had directed the work
when he knew or ought to have known that it would have been done in a dangerous manner, he
would have been subject to a duty of care.
The architect should be extra vigilant to carry out supervision or inspection of critical part of the
works personally where serious risks are involved. In Clay v AJ Crump & Sons Ltd [1964] 1 QB
533, an architect had allowed a demolition contractor to leave a wall standing in a dangerous
state. When the building contractor‟s workmen arrived on site some weeks later, it fell on one of
them before they had started any significant work. The architect was held liable to the workman;
his share of the blame and liability to contribution was assessed at 42%. The Court of Appeal
held that the architect‟s duty “involved taking precautions or giving instruction for them to be
taken so that the work could be done with safety” and that “the builder‟s workmen were within the
class of people to whom the architect owed a duty of care”. It was held that the Architect was
negligent because he merely relied on the demolition contractor‟s verbal assurance that it was all
right to leave the wall standing without him inspecting it personally.
Unless the building contract expressly stipulates to the contrary, the Contractor is entitled to
choose his own methods of working or temporary works; the corollary of this is that the
Contractor is not entitled, when faced with difficulties, to demand or require instructions as to how
to overcome them. The Architect‟s duty is normally confined to stipulating the final permanent
result required, and if this has already been done, he is under no further duty to assist, and if
inclined or requested to do so, should normally be careful to adopt a facilitative attitude rather
than give mandatory instructions.
If an Architect or Engineer sees the Contractor using, or proposing to use, a method of working
which he considers potentially unsafe or likely to fail in its intention, his duty to the Employer will
require him to balance the advantage to the Employer of the method he himself prefers against
the fact that by intervening and giving an instruction, he may expose the Employer to a financial
claim, if the Contractor can show that his own method would have been both safe and equally
efficacious (unless, of course, the building contract expressly prescribes the method of working
or provides that the Contractor‟s price is to include for any one of various methods to be chosen
at the discretion of the Architect or Engineer.) The Employer‟s interest may require the Architect
to intervene in the Contractor‟s method of working or temporary works if he has power to do so
under the building contract, in the following situations.
“(a) Where the contractor‟s methods of working are contrary to what is specified
(almost always the basic reason for specifying a particular working method or
practice expressly in the specification is its relevance to the satisfactory quality
of the final permanent work). Here there will, of course, be little doubt as to the
power to enforce the contract, since there is breach of an express term of the
contract;
(b) Where, in the absence of express designation of the required working methods,
those being used by the contractor are likely to imperil the quality of the
permanent work (and usually will, therefore, constitute a breach of the implied
term of good workmanship, it is submitted). Here an implied power to intervene
may be less evident;
(c) Where the contractor‟s methods are unsafe, and an accident would delay the
project to the serious prejudice of the owner, or might damage adjoining
property, exposing the owner to claims whether for property damage or
personal injuries, for example;
(d) To assist a contractor who has got into difficulties by relaxing the specification or
varying the permanent work where the owner‟s interest in speedy completion is

sufficiently important (though on terms that no additional payment will be due
from the owner).”
(Hudson‟s Building and Engineering Contracts – 11th Edition)
16.4 Recommending Contractors

In recommending contractors, an architect is expected to make reasonable enquiries as to the
solvency and competence of the contractor although he does not guarantee the solvency or
capacity of the contractor. An architect will be liable to his employer if he carelessly gives
appositive recommendation in favour of a contractor. In Valerie Pratt v. George J. Hill (1987 38
6
BLR 25 ) an architect who recommended two builders as “very reliable” was held liable for
negligent misrepresentation when the chosen builder proved to be very unreliable.
More recently, in Partridge v Morris (1995) CILL 1095, the Judge held that the Architect‟s duty of
advising the Employer of the relative merits of tenders extended to the consideration of financial
acceptability. He said:
“ In my view the duty which the defendant undoubtedly undertook of advising the
plaintiff on the relevant merits of the tenders extended to consideration of the
financial acceptability of the tenderers. It was a matter upon which the plaintiff
needed advice; there was no other member of the professional team, as there
might be, more immediately concerned with that responsibility, and it therefore
remained with the defendant as the plaintiff‟s general professional adviser in
relation to the review of tenders and the choice of a contractor”.
The Judge held that the Architect should have undertaken one or more of the following :
 checks on the Contractor‟s financial standing:
• Checking with Builders Merchants;
• Obtaining a bank reference;
• Obtaining trade credit references;
• Making enquiries of other Architects as to the Contractor‟s financial
standing;
• Undertaking a Company Search or asking the Contractor themselves for
their audited and latest management accounts.
He held that the failure to make the necessary enquiries was causative of damage
because, but for the failure by the Architect to make one or more of these enquiries, the
Contractor would not have been selected.
16.5 Extensions of time
Where the architect or engineer is required by the construction contract to take decisions as to
the assessment and granting of extensions of time for completion, it appears that the duty is
personal and must be exercised at the appropriate time. It is difficult to establish general
principles on this topic, since the duty arises from the particular extension of time clause in the
relevant contract. Not only must the duty be derived from the particular clause, but the decisions
in the cases, such as those described below, must be read in the context of the relevant
contracts.
6
In Pratt v George Hill & Associates (1987), an Architect wrote to their client saying that two firms of contractors
were “very reliable”. The client chose one of them. In fact, the chosen Contractor was wholly unreliable, leaving
the work in such a state that it needed to be effectively reinstated from slab level. The Client had paid £2,000 on
interim certificates and subsequently incurred costs of just under £4,000 in an arbitration against the Contractor
before the Contractor became insolvent. The judge found that the Architect had been in breach of their duty of
care to their client and that the disastrous state of the works was due to the unreliability and incompetence of the
Contractor, but disallowed these two sums on the ground that they actually arose from the insolvency of the
Contractor. The case then went to the Court of Appeal, which held that as a matter of causation, the losses
concerned were caused by the Contractor‟s lack of competence and the state in which he had left the work, and
the two sums were recoverable by the Claimant.

In Amalgamated Building Contractors Ltd v Waltham Holy Cross UDC [1952] 2 All ER 452, Lord
Denning disagreed that the architect must always give the contractor a date at which he could
aim in the future. He observed that on principle there was distinction between cases where the
cause of delay was due to some act or default of the employer, and cases where it was not.
In an Australian case, Perini Corp v Commonwealth of Australia (1969) 12 BLR 82, Macfarlane J
stated that the Engineer, who was the employed director of works, had a duty to deal with
applications for extensions of time within a „reasonable time‟ and he defined a reasonable time
as follows:
“ The measurement of a reasonable time in any particular case is always a
matter of fact. Plainly the director must not delay, nor may he procrastinate,
and in my opinion he is not entitled simply to defer a decision. On the other
hand he is, in my opinion, and this follows from the nature of his obligation to
give his own personal decision on the point, necessarily obliged to have
available for that consideration such time as is necessary to enable him to
investigate the facts which are relevant to make it”
16.6 Supervision
The conventional role of the architect and engineer involves supervision of construction on behalf
of the employer. The intention is that the architect or engineer should police the contractor‟s
work to minimise defective work, and ensure that the employer does not pay for work that is
defective. The difficulty for architects and engineers is that, following Sutcliffe v Thackrah, this
appears to make them underwriters of the quality of the contractor‟s work, particularly in the
event of insolvency of the contractor. Architects, who do not usually have a permanent presence
on site, have attempted to redefine the supervision role, calling it „periodic inspection‟, to avoid
the risk, but the cases show a reluctance on the part of the judiciary to let supervisors off the
hook. On civil engineering projects, consulting engineers have traditionally had the permanent
presence of a resident engineer on site, but recently there has been a tendency to leave the
employer to employ the resident engineer and supervise directly.
In most standard construction contract, the A/E‟s primary responsibilities as regards supervision
are to ensure that works are carried out to the standard dimensions, form and quality which the
contract requires and with the furnishing of any further information which the contractor may
require to enable the works to be completed within the contract time for completion.
It is a part of the normal duties of an architect to supervise the building works for which he is
engaged. Under contract, his normal duties of supervision is to ensure that the building works are
carried out according to the plans, specifications and terms of the building contract. Under the
Act, he has to ensure that the building works are carried out in accordance with statutory
requirements.
His supervision duties include :

(i) the prevention, detection and correction of defective work.
(ii) intervention or non-intervention, particularly bearing in mind the Contractor‟s fundamental
obligation to complete the works for the agreed price, including whatever contingent
expenditure may be necessary to overcome difficulties, if the Contractor‟s working
methods or temporary works prove unsuccessful or cause concern – involving a judgment
as to whether or not, in the Employer‟s best interest, to intervene and give instructions.
(iii) Interventions to correct any indications of potential failure of the permanent design.
An architect who undertakes to supervise the works must exercise due care during construction
to ensure that the materials and workmanship conform to the contractual requirements. Failure to
do so may render the architect liable to the employer.
In Sim & Associates v. Alfred Tan (1994) 3 SLR 169, the employer sued his architect for breach
of duties in certifying defective works for payment and neglecting to call on the main contractor to
rectify and complete defective works. The Singapore Court of Appeal held that in the absence of
any provision in the building contract requiring a higher degree of supervision, an architect is
merely required to give the buildings reasonable supervision and whether he has breached the
requisite standard expected of a reasonably qualified architect. The employer‟s claim against the

architect for negligent supervision was dismissed on the grounds that there was insufficient
evidence to prove that the architect had been negligent in supervision.
The facts of the Alfred Tan (1994) case are as follows:-

 The architects were engaged by the building owner to construct a bungalow.
 The specifications to the original building contract provided for marble to be affixed to the
external walls of the bungalow using metal anchorages (“mechanical method”).
 At the time of the award of the tender, the external marble cladding was omitted from the
contract due to high costs.
 However it was subsequently reintroduced using a less costly alternative method known
as the adhesion method.
 There were delays in the construction of the bungalow. The external marble cladding
was not fully completed by the main contractor because of shortage of marble slabs
supplied by building owner.
 Building owner and Main Con (MC) agreed that the MC demobilise and would only
remobilise when owner was able to supply the marble slabs and after new rates have
been agreed between themselves for remobilisation.
 Subsequently disputes arose between building owner and MC on the rates for
remobilisation.
 Architects tried to mediate the dispute failed and they discharged himself as he was not
paid his fees.
 Owner engaged a consultant to prepare a report of the defective works and engaged
another contractor to carry out the rectification works and the uncompleted works.
 Owner then sued the architects alleging that the architect breached their duties in
certifying defective works for payment and neglecting to call upon the main contractor to
rectify the defective works and complete the uncompleted works.
The Court of Appeal of Singapore held that the building owner had failed to discharge the burden
of proving that the architects, by approving the adhesion method had approved a defective
method of affixing the marble cladding. It was held that the building owner must show a failure by
the architect to supervise the building works in a manner or the extent which a reasonably
competent architect would have done. There is no duty to discover defective works at the time
they were been done or soon after they were done.
One factor calling for a higher degree of supervision would be where bad work by the Contractor
had already been seen or reported:-
“I think that the degree of supervision required of an Architect must be governed to some extent
by his confidence in the Contractor. If and when something occurs which should indicate to him a
lack of competence in the Contractor, then, in the interest of his Employer, the standard of his
supervision should be higher”. (Sutcliffe –v- Chippendale & Edmondson).
In this case, the Judge accepted evidence that the Quantity Surveyor owed no duty in respect of
defective work and that it was the Architect‟s function to instruct him whether or not to disallow
the value of defective work from interim certificates, although it is recognised that generally
speaking a Quantity Surveyor who sees, or should have seen, defective work when visiting site
will owe a duty to the Employer at least to report it to the Architect for action or final decision by
the latter.
Most claims against Architects and, to a lesser extent, Engineers, have arisen out of their failure
to note and report on deficiencies in the Contractor‟s works; the authorities make it graphically
clear that the “tradesman‟s work” of supervision is just as important as the apparent artistry
involved in the design.
One of the best known observations about the nature, scope and extent of an Architect‟s
specific duty to supervise the works appears in the speech of Lord Upjohn in the case of
Eastham Corporation v Bernard Sunley & Sons Limited (1966) AC 406 ; he said:

“As is well known, the Architect is not permanently on the site but at… intervals it
may be of a week or a fortnight, and he has, of course, to inspect the progress
of the work. When he arrives on the site there may be very many important
matters with which he has to deal. The work may be getting behindhand
through labour troubles; some of the suppliers of materials or the sub-
contractors may be lagging; there may be physical trouble on the site itself,
such as finding an unexpected amount of underground water. All these are
matters which may call for important decisions by the Architect. He may in such
circumstances think that he knows the builders sufficiently well and can rely
upon them to carry out the job; but it is more important that he should deal with
urgent matters on the site and that he should make a minute inspection of the
site to see that the builder is complying with the specifications laid down by
him… It by no means follows that, in failing to discover a defect which
reasonable examination would have disclosed, in fact the Architect was
necessarily thereby in breach of his duty to the building owner so as to be liable
in an action for negligence. It may well be that the omission of the Architect to
find the defect was due to no more than an error of judgement, or was a
deliberately calculated risk which, in all the circumstances of the case, was
reasonable and proper”.
In Corefield v Grant & Others 29 Con LR 58, the Judge was not impressed by an argument that
the Architect‟s supervision was negligent simply because he had spent so few hours on the site.
He said that what was adequate by way of supervision was not to be tested by the number of
hours worked on site or elsewhere, but by asking whether it was enough to do all the tasks that
an Architect had to perform. He said that at some stages of some projects exclusive attention
may be required to the job in question: at other stages, it will be quite sufficient to give attention
to the job only from time to time. On the facts, he found that the Architect was obliged to carry out
a number of tasks, including supervision, requiring a skilled and experienced assistant which he
did not have.
The mere fact that the Contractor‟s work was defective will not necessarily lead to a finding that
the A/E failed to supervise the work properly. That is particularly true of defects which are the
result of deliberate actions on the part of the Contractor, as distinct from negligence or
incompetence.
In Kensington and Chelsea Area Health Authority v Wettern Composites 1 Con LR 114, the judge
found that the fact that the Architect had become aware during the works of poor workmanship
and “a lack of frankness” on the part of the relevant subcontractors meant that the standard of
supervision should have been higher. He also found that the degree of supervision should be
greater where poor workmanship could result in physical danger.
A helpful statement of the duty (although he preferred to avoid the word „supervision‟) is provided
by HHJ Kershaw QC in Lancashire & Cheshire Association of Baptist Churches v Howard &
Seddon [1993] 3 All ER 467 at 470:
“The traditional role of an architect is not to supervise the work, for that is the role of the
contractor‟s supervisory staff, but rather to exercise care to see that the rights of the employer
(ie building owner) under the building contract to have bad work put right are exercised and to
ensure that the employer does not pay for unsatisfactory work and materials.”
16.7 Duty to Review Design

The supervision or inspection duty has an important secondary element, namely the duty to
review design during construction in the light of what is observed. The point is well made in two
cases. In Brickfield Properties v Newton [1971] 1 WLR 862, Sachs LJ stated, “The architect is
under a continuing duty to check that his design will work in practice and to correct any errors
which emerge.” In Chelmsford District Council v Evers (1983) 25 BLR 99, HHJ Newey stated:
“I think that in the absence of provision to the contrary there must be an obligation upon an
engineer who contracts to design and supervise the execution of his design, to review his
design as necessary until the works are completed.”

This continuing duty to review the design was essential in the early days of engineering, when it
was often necessary to test the prototype on site to check its capacity and to make adjustments
as found necessary.
In Department of National Heritage v Steensen Varming Malcahy (1998) 60 Con LR 33, HHJ
Bowsher acknowledged the general duty and commented:
“I do agree that where a designer adopts an experimental or unusual approach, the duty on
him to keep his design under review is particularly high.”
This raises a question: is a designer necessarily to be adjudged negligent in the original design
when the need for a design change becomes apparent during construction? Also, it should be
appreciated that changes to procurement arrangements which exclude the designer from
supervision or inspection during construction may leave a gap in the function of reviewing the
design.
The duty to review design has also arisen as an issue in connection with commencement of the
limitation period. In New Islington and Hackney HA v Pollard Thomas & Edwards [2001] BLR 74,
the claimant argued that the defendant architects had a continuing duty to review their design
after completion. Dyson J held that the question asked by the claimant when a problem
appeared had not been such as to require the architects to review their design and that there was
no requirement for the architect to do so, after practical completion, as part of the services for
which he was originally engaged.
16.8 Measurement, Valuation and Certification

Almost all building contracts require the building works to be carried out to the satisfaction of the
architect. Where the terms of the building contract require the architect to certify payments to the
contractor, the architect has a duty to ensure that the works are carried out to his satisfaction
before he can certify payment. In issuing certificates, an architect has to act fairly and impartially
as between the employer and the contractor.
Normally, as between the Employer and the Contractor, the Employer does not warrant that the
certifier will be skilful or competent, but only that he will be honest and independent in exercising
that function wherever, under the terms of the contract, he is required so to act. It will,
accordingly, be a breach of contract, as against the Contractor, if the Employer applies pressure
and seeks to influence the A/E in reaching his decisions when acting in that capacity (Sutcliffe –
v- Thackrah).
In Sutcliffe v. Thackrah (1974) an architect knew of defective work by the builder but gave no
instructions to the quantity surveyor to make deductions from interim certificate valuations. The
contractors subsequently became insolvent after the employers had honoured the certificates. In
an action against the architects, the House of Lords held that the architect was not acting in an
arbitral or quasi-arbitral capacity, and was in breach of his contract with his client in not giving
instructions for deductions from interim valuations and certifying the unreduced sums.
As regards valuation, in particular the fixing of rates for additional or varied work, the function of
the architect, engineer or quantity surveyor may be framed by the contract either as a single role,
to fix the rates as an independent third party, or as a two-part role whereby valuation is treated as
potentially a two-stage process. In the latter situation, the A/E/QS is first in the position of
attempting to agree rates with the contractor, but if agreement cannot be reached, he is expected
to assume an independent role to fix the rates. While the A/E/QS is fixing rates, he is expected to
act as an independent third party but, it is submitted, the A/E/QS negotiating in order to agree
rates is actually acting as an agent of the employer.
The issuing of certificates may involve some discretionary elements, but it is principally
concerned with the administration of the contract as it is written. This point was made by HHJ
Davies in Partington v Tameside MBC (1985) 32 BLR 150, as follows:
“The occasions when the architect‟s discretion come into play are few... The indications given
by these provisions seem to me to be that ,... (ii) the issue of certificates generally is part of
the machinery of implementing the contract in accordance with its terms as agreed by the

parties, rather than part of a contract-modifying function vested in the architect. In my view
therefore, the architect in his capacity as administrator of the contract, rather than agent of the
employer, has no power to modify or supplement the terms of the contract as agreed between
the parties... When [his functions] are subject of complaint, it is on the ground that they do not
properly reflect what the parties agreed.”
In Machin v Adams (1997) 59 Con LR 14, the question arose of the liability of an architect to an
unknown third party in respect of a certificate. The facts of the case are rather unusual, but the
Court of Appeal held that the architect was not liable since the evidence did not establish that the
plaintiff had relied on the certificate, and the architect did not have actual or inferential knowledge
of the purpose for which his certificate was being used.
16.9 Duties to contractors and subcontractors

Under most building contracts, no privity of contracts exists between the architect and the
contractor. However, the acts and omissions of the architect can affect the contractor
directly.The architect is under a duty to act fairly and impartially as between the employer and the
contractor in issuing certificates. Until recently, it was thought that an architect does not owe the
contractor a duty of care in issuing certificates.
In 1975, Pacific who were contractors entered into a contract with the Ruler of Dubai for dredging
work in the Persian Gulf using FIDIC conditions of contract. Halcrow were the engineers. The
work was delayed because of the presence of hard materials and the Pacific made claims for
extension of time and additional expenses which were rejected by Halcrow. After arbitration
proceedings commenced, the Ruler agreed to pay Pacific some₤10 million in full and final
settlement of all claims against him. Pacific then claimed against Halcrow ₤45 million being the
unrecovered balance. The Court of Appeal dismissed Pacific‟s appeal and upheld the judge‟s
decision in holding that Halcrow owed no duty of care in certifying or in making decisions under
clause 67 of the conditions. Pacific Associates v. Baxter (1988)
16.10 Correction of Defects

Perhaps the most dreaded duty of an architect is the detection of defects. Under most standard
form contracts, the defects liability period or maintenance period commences with the issue of
the issue of the completion certificate. During this period, an architect has a duty to detect
defects obviously appearing in the works or patent defects. He may be liable to the employer if
he fails to detect defects and notify the contractor to rectify or make good defects, especially if
the contractor becomes insolvent (See Sim & Associates v. Tan Alfred (1994)).
Most contract forms supplement the contractor‟s completion obligation by giving power to the
Architect/Engineer to require the contractor to remove or re-execute any work which is not in
accordance with the contract even before completion has occurred
These clauses generally give power to the architect/engineer to give notices to the contractor of
the existence of defects covered by the clause. Defects covered by the clause will always
include defects caused by non-compliance with the contract but often clauses impose an
obligation to "maintain" or to "repair" the works, and these obligations will be wider than simply
correcting non-compliance with the contract. There is usually provision for the architect/engineer
to issue a schedule of defects at the end of the period. The contractor is then obliged to return to
the site to make good the defects at no cost to the employer.

17. Liability of the Quantity Surveyor
In theory, the Quantity Surveyor (QS) should receive complete drawings and a specification from
the Architect before he starts to prepare the Bills of Quantities. An important aspect of the QS‟s
work will be the drafting of the preambles to the various bills and of the individual items in the
bills, which must embody the Architect‟s specification.
The bills will normally form the contractual basis of valuing variations of the work, as opposed to
the discrepancies between billed and actual quantities, arising from errors or inaccurate
estimates of the quantities, which it is the purpose of a measured contract, but not a lump sum
contract, to correct.
There is a lack of cases on the standard(s) of skill or care owed by a QS to the Employer. Since,
however, his task involves very large numbers of arithmetical calculations, it seems that an
occasional slip or error may be insufficient to sustain an allegation of professional negligence
against him.
In the case of London School Board –v- Northcroft in 1889 a school board employed a QS for
measuring up buildings of a value of £12,000 which had been completed. They brought an action
against him for negligence in making two clerical errors in the calculations, whereby the board
had overpaid two sums, one of £118 and the other of £15. It was held that as the QS had
employed a competent skilled clerk who had carried out hundreds of intricate calculations
correctly, the QS was not liable for these two errors.
Given his professional status and skills, it is argued that a QS‟s staff are employed for the
Employer‟s benefit, should he have an opportunity to do so, even though some other adviser,
such as the A/E, must bear the prime responsibility. If he notices defective work while visiting for
the purposes of making his valuations, for example, he should bring what he has seen to the
A/E‟s attention, in case the latter has missed it. Considering the high degree of skill professed by
QSs in the detail of construction methods, there would seem to be no reason why they should not
also be joined as defendants by an Employer where, for example, the defects were so glaring
that they should have been seen by them in the course of valuation inspections, as well as by the
A/E.
The mere fact that the mistake in question may be a simple mathematical error will not be
sufficient to rebut an allegation of negligence. In Tyrer -v- District Auditor of Monmouthshire there
were a number of successful claims against the QS, including the allegation that the QS had
approved excessive quantities of prices which led to irrecoverable overpayments to the
Contractor. There was, in addition, a simple mathematical error in issuing an interim certificate.
The Judge found that the error could have happened at any time, but “the obligation was on the
appellant to ensure that adequate checks were made”.
In the absence of any contract drawings or specifications, the bills must contain a full description
of all the work necessary to achieve the desired result. In the case of Keete –v- King, the lack of
provision of any shoring in the bills constituted “a grave omission”. The Court held that a duty was
owed to the Employer to prepare contract documents which were sufficient for the purpose of the
erection of the building.
If there are drawings or specifications, the bills must be consistent with them so as to provide a
comprehensive and clear summary of the building works required. Discrepancies between the
contract documents are usually provided for in the standard forms of contract, and are normally
resolved by the issue of an instruction which can entitle the Contractor to additional payment. In
such circumstances, the Employer may be able to recover such monies from the negligent
professional who failed to spot the discrepancy in the contract documents before they were
signed.

If the QS is engaged by the Architect, the Employer will ordinarily be able to look to the Architect
if there are any errors in the bills, and the Architect will then of course pass on any such claims to
the QS. Depending on the facts, the QS may owe a duty of care to the Employer.
It is only in extremely rare circumstances that the QS preparing bills or other contract documents
will owe a duty of care to the Contractor. The QS, like any construction professional, owes a duty
to the person by whom he is employed to carry out his work. In general, the test is whether he
has failed to take the care of an ordinary competent QS in those circumstances.
As in the case of an Architect or Engineer, a QS providing an estimate must assume, in the

absence of any express instruction to the contrary, that the Employer is looking for a forecast of
the likely final cost of the project, and not an estimate based on current prices.
An estimate must make an allowance for, or give warning about, likely inflation and
contingencies. The QS must clearly indicate the extent to which his estimate is subject to any
variation or possible change.
The estimates of the building costs themselves must be reasonably accurate and capable of
being justified in detail. In the case of Savage –v- Board of School Trustees, the estimate of
$110,000 was twice given in respect of proposed works. When tenders were received, the lowest
was $157,800, 43% over the estimated cost. The scope of the project was significantly reduced.
The claimant again estimated that the project would cost no more than $110,000, yet the lowest
tender for even the scaled down project was $132,900. The Judge commented “So on this one
school, the plaintiff was three times gravely in error in his estimates. And three times are a lot”.
The finding that the plaintiff had been negligent was based largely upon the scale of the
underestimation, and the frequency with which it was repeated. But on analysis, the Court‟s
conclusion was based in large part upon a careful consideration of the plaintiff‟s workings, and
the conclusion that “much of the plaintiff‟s difficulty was caused by his methods of checking and
re-checking his estimates”. The mere fact that an estimate is very significantly less than the final
cost is not, on its own, enough to justify a finding of negligence. In Copthorne Hotel (Newcastle)
Limited v Arup Associates, the claimant alleged negligence in respect of the defendant‟s estimate
for piling works. The estimate allowed £425,000 for this work; the successful tender was for
£930,000. The Judge said of this discrepancy as follows:-
“I hope and believe that I am not over simplifying if I record the impression that
the plaintiff‟s main hope was that I would be persuaded to find in their favour
simply by the size of the gap, absolutely proportionately, between the cost
estimate and the successful tender. “
“The gap was indeed enormous. It astonished and appalled the parties at the
time and it astonishes me. I do not see, however, how that alone can carry the
plaintiff home. … Culpable underestimation is of course one obvious
explanation of such discrepancy, but far from the only one. The Contractor may
have over-specified from excessive caution, or to obtain a greater profit, or to
suit the drilling equipment available, or for some other reason. Market
conditions may have changed, or have been subject to some distortion outside
the knowledge or foresight of a reasonably competent professional adviser.
These possibilities are not mutually exclusive among themselves or as between
them and Arup‟s negligence, but without evidence on which I can make a
finding as to the sum which Arup, acting with due care and skill, should have
advised… I am not in a position to find that negligence was even one of the
causes.”
If the Employer specifies a cost limit, the QS must consider whether the limit is likely to be
exceeded and give any relevant warning. In Flanagan –v-Mate the QS‟s fee claim failed because
no warning had been given by them to the Employer that the Employer‟s cost limit could not be
achieved.

Although a building project might have cost the Employer more than he reasonably anticipated, it
will also be worth more than would otherwise have been expected, and the basis for the
assessment of damages arising from a negligent estimate is far from clear cut.
The overrun may be the starting point for any assessment of damages. Even if the claimant has
ultimately obtained value for his unexpected expenditure, he may still have a claim for increased
interest payments on the additional money borrowed to finance the more expensive project.
Other possible heads of claim would include any additional maintenance or staff costs for the
completed building arising due to the additional cost of the work.
Conclusion
It is possible to derive guidance from the law on what is expected of the A/E/QS, but the
authorities mostly relate to different aspects of the role, at different stages of the works. The
cases need to be understood in the context of the relevant period while the rules on architects
and engineers have to fit into the broad legal framework.
Some of the issues and guidance is to be found in cases where it has been alleged that the
contractual machinery involving the architect or engineer has broken down, or that decisions,
instructions or certificates have been invalidated by the conduct of the architect or engineer, or of
the employer. Other cases have concerned the liability of the architect or engineer to the
contractor or to third parties, or the employer‟s liability for the acts and omissions of the architect
or engineer. Some guidance is also to be obtained from analogies with professionals in
comparable situations, for example, cases on valuers and surveyors.
These roles and responsibilities will continue to evolve as new construction techniques and
procurement methods are used.

000 DC - Roles - of - A - E - QS - 1

Caricato da

Informazioni sul documento

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

000 DC - Roles - of - A - E - QS - 1

Caricato da

Copyright:

Formati disponibili

PAM CPD LECTURE

THE ROLES OF THE

Role of the A/E/QS Page 1 of 32

1.3 Quantity Surveyor

2. Duties and Liabilities to the Employer

Role of the A/E/QS Page 2 of 32

2.2 Degree of Skill

2.3 Nature of Duty

Role of the A/E/QS Page 3 of 32

In a medical case, it was said:-

In another medical case, it was stated that:-

Of architects, it has been said in Canada:-

In a case concerning engineers, the Judge said:-

Role of the A/E/QS Page 4 of 32

The test establishes the degree of knowledge or awareness which he ought to

If a construction professional professes special qualifications, skills or experience to prospective

Role of the A/E/QS Page 5 of 32

4 Continuing duty and limitation

Role of the A/E/QS Page 6 of 32

In Columbus Co v Clowes (1903) 1 KB 244, the Judge said:-

Role of the A/E/QS Page 7 of 32

8.2 Cost Estimates

Role of the A/E/QS Page 8 of 32

8.3 Consequences of Negligent Forecasts

Role of the A/E/QS Page 9 of 32

8.5 Extent of Liability

9 Concurrent Liability in Contract and Tort – Scope of duty

Role of the A/E/QS Page 10 of 32

10. PROCUREMENT STRATEGY

10.1 Decisions and Advice

10.2 Recommending a form of contract

10.3 Administration of contract

Role of the A/E/QS Page 11 of 32

11. Design responsibilities

12. Site Investigation and Supply of Information

Role of the A/E/QS Page 12 of 32

Role of the A/E/QS Page 13 of 32

14. DESIGN, SPECIFICATION AND CONTRACT DOCUMENTATION

14.1 Fitness for Purpose or Skill and Care ?

Role of the A/E/QS Page 14 of 32

14.3 Who is the “Client”

14.4 Liability under Design and Build Contracts

Role of the A/E/QS Page 15 of 32

14.5 Split Responsibility

Role of the A/E/QS Page 16 of 32

14.6 Duty to Warn

15. TENDER STAGE

Role of the A/E/QS Page 17 of 32

15.2 Prequalification of Tenderers

15.3 Preparation and Issue of Tender Documentation

15.3 Responding to Enquiries

Role of the A/E/QS Page 18 of 32

15.4 Assessment of Tenders

15.5 Acceptance and Preparation of Formal Contracts

An A/E/QS undertaking this work would reasonably be expected to have an appropriate

16.1 Design and Information Supply

Role of the A/E/QS Page 19 of 32

(b) The stipulated contract period or intermediate dates (dates to be inferred

(d) Whether or not the information relates to a variation;

Role of the A/E/QS Page 20 of 32

Hudson says as follows:

Role of the A/E/QS Page 21 of 32

The issues which arise in connection with variations, include :