Communique Feb 2018

Risks in Recent NZRAB Ethics Changes

A New Zealand Law Society online communication 08 January 2018 has noted the recent changes to the NZRAB ethical code and disciplinary processes (the Rules). In particular, it states:

• If the architect’s advice is not followed, there is an obligation to advise the recipient of the advice of any risk of significant harm or damage * that may result;
• An obligation to report any architectural matter with which the architect is professionally involved that could put the safety of any person at risk;
• An obligation to provide professional services only after written terms of appointment are agreed;
• An obligation to advise clients of significant issues in a timely manner.

The written terms of appointment must cover the scope of work, the allocation of responsibilities, any limitation of responsibilities, fees or the method for calculating fees, and how billing will occur.The * added above is to draw your attention to the fact that s49(2) of the Rules also includes here the words “or financial loss”.NZACS Members should be in no doubt that the provisions noted above provide good ammunition for potential claims. Not only could they result in a complaint to NZRAB, but they may readily morph into de-facto benchmarks against which a designer’s performance will be assessed; as such they could be the basis for a claim in contract or in tort.In the first and last bullet points above, the word “significant” is – well – significant. As is the question about whether the advice about adverse circumstances was given adequately, in due time, or at all. What is intended by the words “financial loss”? No doubt we have all been in discussions from which only decisions (but not rejected issues) are recorded in writing; and it is not unknown for clients to set a budget and then issue instructions which defeat it .Until NZRAB has processed enough complaints to establish precedence, there would seem to be plenty of room for interpretation. Meanwhile, we can only suggest that if the client makes decisions contrary to your advice, that event is recorded so as to be transparent to all.Now would be a good time to read the (newly replaced) Part 3 of the NZRAB rules at: http://www.legislation.govt.nz/regulation/public/2006/0161/latest/whole.html#DLM388939