| Date | 8 November 2000 |
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| Judgment | Baxall Securities Limited -v- Sheard Walshaw Partnership TCC 30 October 2000 |
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| The Issue | Liability of architects in the tort of negligence in respect of design defects due to deficient sub-contractor design. |
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| Implication |
An architect may remain liable and may owe a duty of care to subsequent purchasers and tenants by failing to adequately specify design parameters, or negligently approving sub-contractor's design. |
printIt seems to be common practice these days for architects to seek to transfer the detail design of components of buildings to specialist sub-contractors. This can give rise to considerable difficulty both in resolving questions of design responsibility for defects in design and also in the process for information flow necessary to allow the builder to construct and complete the works. Often the design responsibility of the specialist sub-contractor is not clearly specified. The parameters within which the design must be carried out will all too often be left to the sub-contractor with the result that the sub-contractor will choose the obvious cheap solution in order to win the contract and maximise profits. Moreover, responsibility for the integration of the sub-contractor's design will often be confused, with the architect failing to recognise its clear responsibility for the approval and co-ordination of such design input. Such problems arose recently in the case between Baxall Securities and Sheard Walshaw Partnership. Baxall were tenants of an industrial unit in Greater Manchester. The property had been developed by Berisford Property Investments who had engaged Sheard Walshaw as architects. Upon taking up tenancy Baxall discovered that the roof drainage system was unable to cope with heavy falls of rain and on two occasions found their warehouse flooded. Baxall decided to commence proceedings against the architects, the engineers, the building contractor and two specialist sub-contractors. By the beginning of the trial all the defendants other than Sheard Walshaw, the architects, had dropped out of the action. It must be noted that Baxall had no contract with the architects. The contract of engagement with the architects had of course been with the developers. Accordingly the action was brought in the tort of negligence and the damages claimed were in respect of business interruption and damages to goods stored in the warehouse. This being an action in tort, they would not be entitled to recover the "economic" loss related to the remedial works to the building itself. At the trial the court heard that the building was constructed with a steel frame with brick facing to about mid-height and metal cladding above. The roof was also comprised of metal cladding, constructed with twin pitches separated at the inner eaves by a valley gutter. The valley gutter was made of metal and since it was not practical to make a seal between the lip of the gutter and the underside of the metal roof cladding, water would pour over the lip of the gutter into the building below if the gutter overfilled. Expert witnesses were agreed that the valley gutter had two fundamental defects. It ought to have had, but did not have, overflows. It was also heard on evidence that a further defect concerned the insufficiency of the drainage outflows to cope with peak rainfall in accordance with the relevant British standard. The court considered who was responsible for these design deficiencies. Sheard Walshaw had been engaged on the standard RIBA conditions. They prepared drawings, a specification and employer's requirements, each of which referred to the question of roof drainage. However, the detailed design of the roof drainage was to be carried out by a specialist sub-contractor to be employed by the main contractor. In the event Birse became the main contractor and they employed FK Roofing Limited to provide the detailed design of the roof drainage and to construct it. FK Roofing did as all good sub-contractors might do in such circumstances. They became insolvent before the trial of the action against them. The capacity of the drainage system depended upon the rainfall intensity selected for the project. FK Roofing selected a rainfall intensity of 75 mm per hour. It was heard on evidence before the court that this should have been 150 mm per hour. In evidence, Sheard Walshaw as architects portrayed an approach all too common by architects. They said that they had neither approved the sub-contractor's design rate nor had they disapproved it. His Honour Judge Bowsher Q.C. noted that the tendency of a sub-contractor when tendering, if not limited by the specification, would be to choose a low and inadequate design rate so as to be able to put in a low tender and get the job. In those respects Judge Bowsher found Sheard Walshaw to be negligent. An ordinarily experienced architect ought to have consulted the relevant BS and specified the parameters within which the sub-contractor should design. Considering the 1990 House of Lords case of Murphy -v- Brentwood, Judge Bowsher recognised that one must accept that a builder owes a duty to a subsequent occupier in appropriate circumstances "I think it must follow that I must take the 51st step and hold that an architect also may owe a duty and be liable in appropriate circumstances". However if Baxall had a reasonable opportunity of inspecting the drainage system and discovering the defects before they suffered damage, it would not be fair, just or reasonable to hold Sheard Walshaw liable for that damage, nor would it be right to say that there was a "proximate" relationship between the parties in the manner discussed in the Murphy case. Considering all the evidence Judge Bowsher concluded that there had been a reasonable opportunity to Baxall to discover the absence of overflows in the drainage system. Since the first flood was primarily caused by that absence of overflow, Sheard Walshaw no longer owed a duty in that regard. However Baxall could not have been expected to have discovered the under-design of the drainage system which was a causative factor of the second flood. Sheard Walshaw were therefore to be held liable for the whole of the loss arising from the second flood.
CJ-0044
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