| Date | 24 April 2002 |
|
|
| Judgment | Baxall Securities Limited -v- Sheard Walshaw Partnership, CA 22 January 2002 |
|
|
| The Issue | Liability of architects in the tort of negligence in respect of design defects. |
|
|
| Implication |
An architect may remain liable and may owe a duty of care to subsequent purchasers and tenants for latent defects by failing to adequately specify design parameters or negligently approving sub-contractor's designs. |
printIn November 2000, I reported the case of Baxall Securities -v- Sheard Walshaw Partnership concerning the duties an architect might owe to purchasers or tenants. This case has now been heard by the Court of Appeal where the underlying legal principles have been upheld, but upon the facts of the case the decision of the Technology and Construction Court reversed. Baxall were tenants of an industrial unit in Greater Manchester. The property had been developed by Beresford 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 commenced proceedings against the architects and others engaged in the construction of the building. Of course Baxall had no contract with Sheard Walshaw, the architects. The architect's contract of engagement had 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, Baxall 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. 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. The sub-contractor engaged to do this work 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. The specialist sub-contractor had selected a rainfall of 75mm per hour. It was heard on evidence before the court that this should have been 150mm per hour. In dealing with the design input of the specialist sub-contractor, Sheard Walshaw 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. In the lower court, Judge Bowsher noted that it was not surprising that in such circumstances the sub-contractor had chosen a low and inadequate design rate so as to be able to put in a low tender and get the job. In those respects, he 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. In the Court of Appeal, a particular emphasis was applied to whether the defects in the building were latent or patent. A latent defect is a concealed defect in the workmanship or design. It is concealed in the sense that the defect would not be discovered following an inspection of the building, the nature of which the builder might reasonably anticipate. By contrast, a defect is not latent (and is thus a patent defect) if it is discoverable by the reasonable exercise of due diligence. Put another way, in the normal course of events a surveyor would be engaged to undertake a survey of a building for a purchaser. Where, with the exercise of due diligence, that surveyor would have discovered the defect, that defect is patent. This would apply whether or not a surveyor was actually engaged and if engaged, whether or not that surveyor performed his task competently. The distinction between latent and patent defects is an important one in the context of a claim in the tort of negligence. Actual knowledge of the defect, or alternatively a reasonable opportunity for inspection that would discover the defect, will negative the duty of care, or at least break the chain of causation. Accordingly, a defendant, in this case the architect, could not be liable in tort in the case of a patent defect. In the House of Lords decision in the case of Murphy -v- Brentwood District Council it was said: "But there can be no doubt that, whatever the rationale, a person who is injured through consuming or using a product of the defective nature of which he is well aware, has no remedy against the manufacturer". The Court of Appeal held that the sole effective cause of the floods was the absence of overflows. This was a patent defect, since Baxall ought reasonably to have discovered that absence. Accordingly, the chain of causation between the architect's error in regard to the provision of overflows and the loss suffered by Baxall was broken. Sheard Walshaw were not liable to Baxall.
CJ-0216
|
|||
|
© Brewer Consulting |
|||
 |
|||