Joint and several liability currently applies in NZ. For each defect, the claimant has a right to recover from one or any of the defendants who contributed to that defect, and it is up to the defendants to sort out how they each contribute to the overall settlement.
In proportionate liability each defendant would only be liable for a contribution to settlement in the proportion determined to be their fault.
As part of their current consultation on Building Consents, a paper from MBIE describes the several discussions at government level about joint and several liability versus proportional liability over the past 20+ years, the pros and cons of each, and why the latter is unlikely to be adopted in NZ.
https://www.mbie.govt.nz/dmsdocument/26801-risk-liability-and-insurance-in-the-building-sector-policy-position-statement-pdf
We recommend caution, and that the same vigilance is applied as might be required of guarantees and warranties.
We also recommend the NZIA Practice Note 1.227 "Clause Options, Certificates and Statements" which was updated in May 2023, and which deals with similar issues - on a much wider basis - as well as providing templates for responses.
Building methods and products that are certified under the CodeMark™ scheme provide a means of compliance that must be accepted by building consent authorities, if the product is being used according to the certificate and its instructions. In effect, certification has equivalent legal status to an Acceptable Solution.
A member has reported that the consenting authority issued an RFI requiring the architect to provide a declaration which the supplier had written into their CodeMark terms of compliance as follows: “The Designer shall provide a signed Declaration for the submission with the building consent application that the use of this product in the proposed building work falls within the scope of this certificate and that all the design requirements of this certificate have been met”.
We have underlined the text we consider unacceptable. If the supplier has concerns about how their product is to be used, then it is the supplier who should be involved in assessing the situation. There will be many cases where – for good reason – the actual design may vary from, but be reliant on the supplier’s documentation, and not compromise building code compliance. Further, we think there may be the potential for the statement to boomerang back to the designer in the event of later failure, with the designer now taking on some of the risk that may otherwise have fallen to the supplier.
We see several ways this saga may play out, and meanwhile prefer option 4:
In 2021, Communique had some advice, and Tales of Woe about fire fires. Whereas residential fireplaces were conventionally in brick or concrete chimneys, using a metal flue in a timber frame surround can potentially create a high risk. So we are repeating the messaging!
Pyrophoric carbonisation is when an extended exposure to heat results in combustion at temperatures below that for direct fire exposure. NZACS has had several claims from such events. The enclosure of hot flues within timber framing is a critical element of construction, and getting it wrong can mean expensive repairs and perhaps a risk to life.
Projects which include an internal or external open and/or gas fireplace, or hot extract ductwork as might be the case in a restaurant kitchen, need to specifically deal with the installation and chimney detailing and associated flue design, ventilation, flashings and combustible materials.
Complete reliance on off-the-shelf fireplace kits is not recommended, as they are likely to be generic rather than suiting the specific site circumstances. Later substitution of the specified and detailed item would be unacceptable without the design being rechecked. Dumping a box of parts on site to be assembled by “somebody” is not acceptable: this is a job for a specialist trade.
As well as the correct integration of the manufacturer’s details, combustible construction may require protection, clearances to combustible materials must be detailed and achieved on site; like-wise flue installation; the flue positioning/fixing within chimneys must enable ventilation to avoid trapping heat radiated from the flue into the chimney space; thought must be given to flashing details and tolerances to balance the needs of ventilation and weatherproofing.
Clearly quote the source of the design solution/details on the drawings (e.g. as per BRANZ Bulletin XXX) etc
The specification and contract should be clear on the responsibilities for the selection, installation, and sign-off on completion. Each trade should have an obligation to review and be satisfied that the design documentation and the construction meets the requirements for safe and efficient operation on completion, and if not, to raise their concerns in a way that requires action.
If observing the contract, some critical detailing may not be readily observable: care and prudence is required. It would be useful to have some sort of QA check sheet that a contractor has to get signed off by the participating sub-contractors/suppliers/installers.
The recent NZIA/NZACS Webinars are now on our website:
The NZACS website has 100+ fully searchable articles on various matters of Risk Management.
All you need to access the articles is to log in to https://www.nzacs.co.nz/ , select the “Member’s Log In” tab, and use the User name and Password provided to you when we set up the website. We are keen that members’ staff have access to them on the understanding that they are provided for the benefit of members only; are copyright to NZACS; and are not to be released in whole or in part to, or for the benefit of, others.
Recently added articles:
Reliance on, and co-ordination of trade and consultant advice
Consultants;
Pre-design site information
Design Management;
Engineered Stone Risks
Design Management;
Balustrades and Barriers
Design Management;
BIM – Project Risk Management
Design Management;
BIM - Legal and Engagement Considerations
Design Management;
NZRAB Disciplinary costs
Dispute Management;
Causes of Claims
Dispute Management;
Collecting Fees from Reluctant Clients
Dispute Management;
Do agreements for engagement need to be in writing
Engagement & Fees;
Pro-bono work and PJs
Engagement & Fees;
Cyber Cover - matters for firms to review
Insurance concepts and scope;
Should I Notify
Insurance concepts and scope;
What do you do when a client asks for your insurance certificate
Insurance concepts and scope;
What level of cover should we carry
Insurance concepts and scope;
The risks in being self-insured
Insurance concepts and scope;
What can influence the cost of insurance
Insurance concepts and scope;
NZACS – A Short History 1972 to 2022
NZACS History & Purpose
Observation
Procurement & Contracts;
Contract Administration versus Contract Management
Procurement & Contracts;
Covid or Supply-Chain Costs and Delays
Procurement & Contracts;
Certification of completion
Risk & Liability;
Climate change and Natural Disasters
Risk & Liability;
Does the 10 year longstop still apply
Risk & Liability;
Tales of Woe – the perils of admitting liability
Tales of Woe
Tales of Woe – Variations, warranties, costs, and deflections
Tales of Woe
Tales of Woe – Site information
Tales of Woe
A Grim Tale About Piggies and Wolves
Tales of Woe
Tales of Woe - Site survey matters
Tales of Woe