International Construction Law Review
DESIGN LIABILITY: DELEGATION AND RELIANCE
PROFESSOR SARAH LUPTON1
MA, Dip Arch, LL M, RIBA, FCI Arb, Chartered Arbitrator
It frequently happens that during the early stages of a project, a consultant may realise that the design is developing in a direction that he or she had not anticipated, and that it is likely that the consultant will not have all the knowledge and skills necessary to complete the design to the agreed level of detail. Faced with this problem, what options are open to the designer?2
A starting point is Moresk Cleaners Ltd v. Thomas Henwood Hicks.
3 In this case Moresk Cleaners employed Thomas Hicks, an architect, to prepare plans and specifications for an extension to their laundry. Although the building was built according to the plans and specifications, the design of the structure had in fact been delegated by the architect to the subcontractor (the contractor was required to engage a nominated subcontractor who had prepared the design). Within two years cracks appeared in the structure and the roof purlins sagged. Moresk Cleaners brought a claim against the architect, who argued that it was an implied term of his contract that he should be able to delegate the design to the subcontractor, or alternatively that he had authority to employ the subcontractor on behalf of Moresk. The court found that there was no such implied term and that the architect had no such authority, stating:
“… if a building owner entrusts the task of designing a building to an architect, he is entitled to look to that architect to see that the building is properly designed. The architect has no power whatever to delegate his duty to anybody else, certainly not to a contractor who would in fact have an interest which was entirely opposite to that of the building owner… If the defendant [the architect] was not able, because this form of reinforced concrete was a comparatively new form of construction, to design it himself, he had three courses open to him. One was to say ‘This is not my field’. The second was to go to the building owner and say ‘This reinforced concrete is out of my line. I would like you to employ a structural engineer to deal with this aspect of the matter.’ Or he can, while retaining responsibility for the design, himself seek the advice and assistance of a structural engineer, paying for his services out of his own pocket but having at any rate the satisfaction of knowing that if he acts on that advice and that it turns out to be wrong, the person whom he employed to give the advice will owe the same duty to him as he, the architect, owes to the building owner.”4
1 Sarah Lupton is a partner in Lupton Stellakis, architects, and holds a personal chair at the Welsh School of Architecture, Cardiff University. She is author of the forthcoming Cornes and Lupton’s Design Liability in Construction, to be published by Wiley Blackwell, from which this article is adapted, and of a series of books on the JCT standard forms of contract, published by RIBA Publishing.
2 The author is grateful to Jeremy Nicholson, QC, for his helpful summary of the relevant case law as presented in his lecture to the Society of Construction Law, 1 November 2011.
3 (1966) 4 BLR 50.
4 Ibid. at 53–54.
Pt 3] Design Liability: Delegation and Reliance
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