This is the second and concluding part of this article. Part 1 was published in the last issue of The Singapore Law Gazette (October 2000, pages 29 to 32). This instalment analyses the duties and responsibilities of architects in the areas of design and supervision, the legal implications of delegation to a clerk-of-works and of following a particular design/supervision industry practice.
The Standard of Care Required of Architects
The standard of care the law expects is that of a reasonably competent professional (Jackson & Powell on Professional Negligence (1997 edition), paragraph 2.81).
An architect is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among architects practicing their profession.
Voli v Inglewood Shire Council (1962-63) 110 CLR 74, per Windeyer J.1
Following Industry Practice
For many years, the leading case on this subject was the 1957 English case of
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at page 586. In
Bolam, the plaintiff mental patient brought a personal injuries claim against the defendant hospital for injuries arising from electro-convulsive therapy (ECT) treatment, without the prior use of relaxant drugs or physical restraints. The expert evidence established that there were several differing techniques used by medical practitioners when administering ECT. One such technique involved ECT treatment without the prior use of relaxant drugs and physical restraint.
The court took the view that the hospital was not negligent, since (at page 587):
[they] acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in the particular art. … [they were] not negligent, if [they are] acting in accordance with such a practice, merely because there is a body of opinion who would take the contrary view.
This willingness to simply accept without question the practices of the profession no longer represents the law. Courts can now rule that a particular technique or practice is negligent, even if it is a long standing practice accepted by the profession, so long as it falls below the requisite objective standard applied by the law.
The current approach by the courts is best illustrated by the Privy Council decision of
Edward Wong Finance Co Ltd v Johnson, Stokes and Masters [1984] 1 AC 296, a decision on appeal from Hong Kong. The Singapore Court of Appeal ('CA') in
Chong Yeo & Partners & Anor v Guan Ming Hardware & Engineering Pte Ltd [1997] 2 SLR 729 endorsed and adopted the approach in
Edward Wong.
In Edward Wong, a Hong Kong finance company sued their solicitors for not taking reasonable steps to protect their interests on a property mortgage transaction. Their solicitors had forwarded the loan moneys to the vendors' solicitors, without securing the duly executed documents of title. The vendors subsequently absconded with the completion monies.
The solicitors argued that their practice followed the normal and customary conveyancing procedures in Hong Kong. The Privy Council refused to accept that a practice was not negligent simply because it was accepted by the profession. Instead, the Privy Council applied a three- stage test, the primary purpose of which was to ascertain if the profession's practice fell short of the law's standards ([1984] 1 AC 296 at page 306E):
did the practice involve a foreseeable risk;
if so, could that risk have been avoided; and
if so, was the professional concerned negligent in failing to take action to avoid that risk.
The CA endorsed this approach in Chong Yeo &
Partners, by making clear that its ruling on the negligent interpretation of a specific rule of procedure by the solicitors would not have been affected, even if the practice of the entire profession had been otherwise. That, the court said 'was immaterial' ([1997] 2 SLR 729 at page 749B).
The court will, therefore, not give unwavering approval to all the practices adopted by the profession or industry. When such a practice is an unreasonable one or one that does not satisfy the law's objective standards, it is open to the court to find that there is negligence.
Error of Judgment
An error of judgment may or may not amount to negligence. It depends on the nature of the error.
A professional is not expected to be 'faultless in his judgment' (Wai Wing Properties Pte Ltd v Lim, Ganesh & Liu [1994] 3 SLR 101 at page 115B). However, merely labelling a mistake as 'an error of judgment' will not necessarily constitute a defence. It is the nature of the error and how it stands when judged against the standards of the reasonably competent professional, that is far more important.
The notion that 'an error of judgment' cannot constitute negligence in a professional man was emphatically rejected by the House of Lords in 1981
(Whitehouse v Jordan [1981] 1 WLR 246 at page 263, per Lord Fraser):
… Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. … it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man … then it is negligent. If on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent.2
Design
Relevant knowledge
Architects are expected to have a general knowledge of all statutes, by-laws affecting buildings, private rights and important clauses in standard form building contracts. Departure from accepted standards and practice codes can be considered prima facie evidence of negligence (the High Court in
MCST Plan 1075 v RSP Architects & Planners (Eastern Lagoon) (Suit No 1260 of 1995) found, on the evidence before it, that the building industry in Singapore follows the British codes of practice and that departure from such codes was prima facie evidence of negligence).
Architects are however not judged with hindsight. If the codes of practice and general literature available at the time of the design would not have reflected the inadequacies of such design, then the architect would not be held liable in negligence if such design should subsequently prove to be inadequate
(Roe v Minister of Health [1954] 2 QB 66).
Duty to correct errors
An architect's duty of design is a continuous one. It carries through into the construction stage where the architect is employed to supervise the construction of the project after having designed it (he is thus bound to keep checking if his design will work in practice and to correct any errors that may emerge during the construction stage - Brickfield Properties Ltd v Newton [1971] 1 WLR 862).
Any subsequent discovery of design errors during the construction phase does not necessarily prove that the architect was guilty of negligent design
(London Borough of Merton v Lowe (1981) 18 BLR 130). If the architect was initially justified in thinking that the design was adequate and suitable for the employer's needs and purposes, then the architect would not be held liable for negligent design. However, he has a duty in these circumstances, to take steps to correct the defective design.
Power to delegate
If a building owner contracts with an architect to design a building, then he can look to the architect to see that the building is properly designed. The architect has no implied power to avoid his own liability by delegating this duty of design to qualified/specialist contractors
(Moresk Cleaners Ltd v Hicks [1966] 2 Lloyd's Rep 338).
The law, however, recognises that there may be areas within the design that are outside the expertise of the architects, thus requiring consultants to be employed to provide for these specialist services. In order to avoid liability, architects are best advised, in these cases, to have the consultant directly employed by the owner. This would go towards showing that the owner was aware that the architect would not be responsible for that part of the design.
There can be limited circumstances in which the courts may excuse the architect from liability for defective design by an independent consultant employed by the architect himself.
In deciding whether architects can escape liability for defective designs by having delegated the task, the court will take into account factors such as whether:
the hiring of an external consultant was reasonable in the circumstances ((1981) 18 BLR 130 at page 148);
the employer can pursue a remedy against the specialist involved; and
the employer had expressly/impliedly agreed that the architect shall not be responsible for that part of the design (Keating on Building Contracts at page 342).
Supervision
The standard of care exercisable in the area of supervision does not differ from that generally expected of professionals - the standard is one of reasonable supervision
(Jameson v Simon (1899) 1 F (Ct of Sess) 1211).
The Singapore Institute of Architects Conditions of Appointment & Scale of Professional Charges 1985 had specific provisions [Clauses 1.8 and 1.9] on architects' duties of inspection and supervision:
1.8 Included as part of the basic services the Architect shall inspect the works at such periodic intervals as the Architect may consider necessary to satisfy the Architect that the works are being executed in accordance with the building contract and to enable the Architect to certify in accordance with statutory and other requirements the completion of various stages of the work.
1.9 Constant or daily inspection does not form any part of the basic services of the Architect. The frequency or degree of inspection shall be decided by the Architect from time to time.
In interpreting these clauses in Chuang Uming (Pte) Ltd v Setron [2000] 1 SLR 166, the CA observed at page 180 that:
under these provisions, there was a duty to inspect and supervise the works carried out by the contractors, not constantly or daily, but certainly periodically, from time to time. How frequent or regular should such inspection and supervision be must, of course, be left to the good sense of architects and must depend on the nature of the work for the time being carried out by the contractors. Where the construction works were important or critical, obviously closer and more frequent inspection and supervision was necessary, and in other areas of work, which were not that important or critical, less frequent inspection and supervision was called for.
What constitutes reasonable supervision will, therefore, vary from case to case. Courts have considered the following factors as relevant in assessing the extent of supervision required:
The price paid for the architectural services - where the price is low, a lower standard of supervision has been held to be reasonable, when contrasted with high fees
(Cotton v Wallis [1955] 1 WLR 1168).
Obviously, however, a certain minimum standard of supervision is required by the law irrespective of the contractual price.
The terms of engagement and the building contract - where specific standards of supervision are provided for in the terms of engagement/building contract, then the architect must meet this standard in order to avoid liability (Sim & Associates (sued as a firm) v Tan Alfred [1994] 3 SLR 169).
Closer and more frequent supervision will be expected of work that is important or critical ([2000] 1 SLR 166 at page 181E).
Where the contractor is guilty of faulty work - the architect has to satisfy a higher standard of care if, as in Sutcliffe v Chippendale and Edmondson [1971] 18 BLR 149, the evidence points to the fact that the contractor has, to the knowledge of the architect, been guilty of faulty work on the site.
The standard of supervision expected of an architect will, however, take into account the fact that he is not always at the site. The High Court in Eastern Lagoon (at paragraph 94) recognised that an architect can discharge the responsibility of supervision if, for example, he supervises the construction of a sample and then instructs his clerk of works to ensure that the rest of the repetitive work follows the sample. However, the architect/engineer will be expected to properly direct and oversee the clerk-of-works.
The duty to supervise includes the duty to intervene in contractors' work to give instructions and correct potential failures found in the permanent features in the
design.3
Faulty construction will not by itself be sufficient proof of a lack of supervision by the architect, ie an architect's duty is not absolute. For example, the High Court in Eastern Lagoon, while accepting faulty work, rejected allegations of inadequate supervision.
In Sim & Associates v Tan Alfred, the CA made it clear that mere allegations of negligent supervision would not be sufficient as a substitute for the concrete evidence required to form a proper claim against architects for negligent supervision.
Delegation to clerk-of-works
Clerk of works ('COW') are a regular feature on construction sites. To what extent is the architect entitled to delegate his duties of supervision to the COW?
The courts here accept that the standard of supervision to be provided by an architect 'properly takes into account the fact that an architect is not permanently on site' (Eastern Lagoon, at paragraph 93). By contrast, the COW is permanently on the site.
The importance of this is seen in the following observation made by the English High Court in
Leicester Board of Guardian v Trollope (1911) 75 JP 197:
… The clerk of works has to see to the matters of detail … the architect is not expected to do so … the architect is responsible to see that his design is carried out … If in this case the architect had taken steps to see that the first block of buildings was done all right, and then in the next block he had left it to the clerk of works with instructions to see that it was done in the second block in the same way … I should then have had some doubt whether he would have been liable …
While architects obviously need to ensure proper feedback from the COW, some aspects of the architects' duty of supervision can be properly delegated to the COW, for example:
matters of detail; and
follow through supervision on a repeat construction of a sample, the construction of which has been overseen by the architect.
Delegation to the COW, however, does not exonerate architects where instances of poor workmanship should have been noticed by the architects. They cannot escape liability by arguing that on site supervision was left to the COW.
This 'exoneration by delegation' argument was soundly rejected by the CA in Setron ([2000] 1 SLR 166 at page 182):
The central question here is whether the architects are entitled to be excused from their contractual duty of inspection and supervision by relying on the clerk-of-works or any other person. In our opinion, it matters not that the clerk-of-works was strictly speaking, employed by the owners in the sense that his emoluments were paid by them. … The architects approved - or must have approved - the appointment of [the COW] … and again whether [the COW] was nominated by the owners or the architects is immaterial. In the performance of his duty, [the COW] was under the control and direction of the architects and was the 'ears and eyes' of the architects in respect of the day to day on-site supervision of the construction works, and he reported to the architects and not the owners. Indeed, he was duty bound to report to the architects on any defect or shortcomings in the construction works. … In our judgment, the architects cannot deflect any liability for lack of supervision by pointing a finger at the clerk-of-works, and say that the presence of the clerk of work at the site who would attend to on-site supervision would negative their contractual duty to the owners.
The authorities, therefore, suggest that an architect :
can properly delegate certain types of supervision duties to the COW; and
will not be responsible for inadequate supervision if the defects in question:
were not easily
detectable by the architect's periodic inspection; and were
not in or part of works that were important or initial, ie of a nature calling, for closer and more frequent inspection and supervision by the architects of a standard that would have detected the defects.
Architects' Liability for Defective Workmanship
Architects, of course, are not directly responsible for the workmanship of the building works. That is the responsibility of the main contractor.
He owes no duty to the main contractor to supervise his works, as observed by the CA in
Setron ([2000] 1 SLR 166 at page 183B).
However, the architect does owe a duty of supervision to his employer. Consequently, an architect can be liable in negligence for defective workmanship to his employer if he fails in his duty of supervision.
Liability in tort can be successfully defended if the party who is sued properly claims to have relied upon the skill and expertise of an independent contractor. For example, a developer would be entitled to reject any claims in tort for a badly designed/built property by relying upon the fact that he entrusted these specialist works to a reasonably competent architect/main contractor
(Eastern Lagoon, at paragraphs 102 and 103).
In Eastern Lagoon, the independent contractor defence was raised in circumstances which gave rise to broad implications for the construction industry. The High Court was faced with the third party main contractors (brought in by the defendant architectural and engineering consultant firm) denying liability for defective cladding/tiling work on, amongst other grounds, the basis that they had hired specialist gangs for these works, ie they had hired 'independent contractors'. The High Court found that the primary cause was design related and not bad workmanship. Nevertheless, the High Court went on to rule that the 'independent contractor' defence would have been available if the defects could have been attributable to bad workmanship.
On appeal to the CA, it was argued that the independent contractor defence should not have been available to the main contractors because brick laying and tiling works was hardly a specialist area of work and should have been within the purview of the main contractors. It was further argued that if the defence was available even when the area of work was not a specialist field, then main contractors would be able to escape liability for shoddy workmanship done by such 'sub-contractors'. This, it was agreed in the submissions, would encourage the main contractors to totally sub-contract all their works to various persons leaving the innocent party (architect) to bear the costs of any shoddy workmanship.
The CA accepted the trial judge's conclusion that the cause of the defects in the building was due to defective design and not bad workmanship. Thus, it did not make a ruling on whether the main contractors were liable for the shoddy workmanship of the sub-contractors or whether they could protect themselves using the independent contractor defence.
Therefore, the issue of whether main contractors can use the independent contractor defence to shield themselves against liability for bad workmanship at the expense of architects remains largely open, in the absence of an authoritative ruling by the CA.
Conclusion
Following the two local CA decisions, architects now owe a duty of care in tort to avoid causing pure economic loss to the MC (representing subsidiary proprietors) in the absence of a contractual relationship.
The prudent course of action is to be diligent and exercise the standard of care of a reasonable person in the profession claiming that level of expertise. Complications arise only when there is a failure to meet this standard.
Mohan Pillay
Wong Partnership
Endnotes
1 As cited with approval in paragraph 80, MCST Plan 1075 v RSP Architects & Planners (Eastern Lagoon) (Suit No 1260 of 1995).
2 This view was cited with approval by Chao Hick Tin J (as he then was) more than ten years later in the case of Wai Wing Properties Pte Ltd v Lim, Ganesh & Liu [1994] 3 SLR 101.
3 Professionals must exercise due care in supervision to see that the materials and workmanship of the contractors conform to contractual requirements in the main contract (Hudsons Building & Engineering Contracts Vol 1, page 341 at paragraph 2.182).