Communique June 2017
We would always prefer that architects are engaged for “full services” but the reality is that it is not always possible. In the event, you should seriously consider whether the risks are acceptable to you under all the circumstances, or whether it is prudent to turn away the project. If you accept such a project, how do you get the message across that you cannot be held accountable for construction-phase activities if you don’t have a meaningful involvement with them? There have been many attempts at Disclaimers, and probably more to overcome them. In respect of housing work, there is a very limited opportunity to limit your liability in contract, and a considerable risk from a subsequent owner of whom you have no knowledge but to whom you may be exposed for an unlimited claim in tort.A large proportion of claims arise from failures or unforeseen issues during the construction process: yes there is an argument that if you are not part of the process you can’t be responsible for it, but usually it works out otherwise. Especially in domestic work. But if and when a problem arises during construction, then whether you are “officially” involved or not, it is commercially sensible to deal with it. The rest of the claims may only arise years after construction – perhaps when the builders are not around to respond – and almost inevitably the claimant manages to assert some failure in design (or partial observation) which in turn lead to the failure in construction. This ongoing and future liability must be thought about at the outset.Below is our suggestion, published in a 2002 Communique but still relevant: short and simple on the basis that adding more words can sometimes result in creating more (rather than less) problems. Particular circumstances, and bigger or more complex projects, will require specific consideration: we have noted some issues you should consider.As you have limited our commission to the preparation of sketch plans, and documentation for Building Consent purposes only, we will not be liable to you (in contract tort or otherwise) for any claim, damage, liability, loss or expense incurred by you arising from construction activities, contract administration, or work undertaken which is at variance with our directions or documentation. In addition, you will indemnify us against claims from others which may arise from this limited architectural service requested by you.Our documentation is prepared on the understanding that the work will be carried out by competent and experienced tradespersons in accordance with the Building Codes and accepted industry practices, and thereafter is appropriately maintained.If we are required to clarify documentation or to attend the site for specific purposes, this shall not be construed as construction observation nor as our acceptance of a wider role in the project.If difficulties do arise which may possibly affect us, you have a duty to consult us as soon as practicable so that matters can be resolved with the least inconvenience and at minimum cost. Issues to think about: It is not uncommon for clients to delete the designer’s construction-phase services after the design is completed. That puts the designer in a very vulnerable position, so it is an issue to be thought about “up front”.Educate the client about what you are doing and what you are not doing, and the value propositions involved. Unless they understand the issues, they are not in a position to make a sensible decision about the extent of the designer’s role during construction.Unless you understand their intentions, you may not be able to match your fees and resources against the documentation requirements. If you are not involved in the construction phase, does that reduce or increase the required documentation? How does it affect material selection, detailing and complexity? To what extent can the build rely on performance specification or design-build elements, and how does that affect your liability?There’s no point in increasing your liability in order to reduce fees, and as an “insured” you are expected to act prudently and with reasonable competence.Site Observation means different things to different people, but the attendant liability – in the event of things going wrong – may be interpreted differently again when it comes to dispute. It is not the same as site management/quality control/site supervision, all of which is the builder’s responsibility. The extent of attendances must be matched to the extent of liability. And recorded as such. Bear in mind that in residential work an unlimited liability may arise.If you agree to be “on call”, then your liability should reflect what you actually attended to and can influence, and not all the other things that you may or may not have been able to have observed during the site visit. Nor the issues which have been created in your absence or without your knowledge before or after a site visit.Guard against the common allegation that because you did or did not see something (ie not built, poorly built, or built other than as per your documentation) then you are deemed to have accepted it as “ok”. If you go on site for a specific reason, stick to that purpose only, and document the attendance accordingly.Avoid adjectives.Your potential liability may arise in contract (out of your drawings/documentation or site attendances) or in tort – possibly to later (probably unknown) owners or occupiers. It may include claim, damage, liability, loss or expense incurred arising in relation to the contract (eg unforeseen variations) or not carrying out and/or completing the works as required in the contract (maybe because some documentation was lacking). The leaky homes saga extended that to failures well beyond the construction period, some of which were from inadequate maintenance but for which inadequate design was the cited cause.There needs to be an understanding of the necessary access and who is to provide it and when. Intermittent observation would be limited to “sampling” of work on the assumption that similar work is done to a similar standard and that in the absence of obvious indications to the contrary, has been carried out in accordance with the contract.Gaps/laps/errors in the design documentation are always a prospect, and it is only reasonable that you have the opportunity to respond in a manner which has the least impact on the project, stakeholders, and your potential liability.It would be nice to get an indemnity from the client, but that might be a hard call! It would be prudent to deal with that issue as part of the work you are contracted for, instead of the work you are not contracted for: if services are “trimmed” later, the provision will already be in place; if services are limited at the outset, you can bear that in mind when considering the content of your design documentation.