Hanzo Design Building Information Modelling

Design liability in design and build contracts

Luxuy Penthouse with sea view by Hanzo.Design

We are all prone to mistakes. However, we cannot allow ourselves to do a sloppy job. This can be worse if you are a professional because people’s lives depend on you. Even though we have very high expectations of our design professionals. Not all design projects are perfect. Chances are that your design could end up being defective. In such a case, you may blame your designer for the defect. After all, they designed the project, right?
It should be clear from the outset who is responsible for the design. Allocations of contractual responsibility differ, and such variations can complicate things a bit.
That is why your contract has to clearly state the allocation of design responsibility. The degree of liability depends on it. However, different legal components of a contract interact complexly. Hence, it can be quite a tall order to determine the degree of liability. The practical law requires that liability degrees should be clear and acceptable to you and your designer.
If the allocation of design responsibility is absent from your contract, or even contract is absent altogether, then chances are that responsibility levels exist under tort.
Design Liability Levels
Depending on what company your designer comes from, design liability levels differ. Hence, do not assume that the professional consultant you hire has the same level of design liability as your contractor designer. However, they have the same design liability level under tort.
Reasonable Skill and Care
Your designer is liable to “bring to the exercise of it [profession] a reasonable degree of skill and care”. Tort specifies the minimum design obligation expected of a professional designer. This is referred to as ‘reasonable skill and care’; the calibre of the designer notwithstanding.
Things are a little bit different under contract. A consultant designer is liable for practising reasonable skill and care if they are not aware of the purpose for which the design would serve. This case requires implying a fitness for purpose liability by the consultant.
Fitness for Purpose
Not even a professional indemnity insurance can cover the consultant against the risk of fitness for purpose liability. The obligation or liability is greater than the practice of reasonable skill and care. If that risk is absent, still the consultant cannot escape from the risk of failing to deliver result if there is evidence to indicate that they did not exercise reasonable skill and care. It may also turn out that the consultant committed professional negligence and breaking contractual agreement under tort.
An objective achievement standard is a yardstick for fitness for purpose. Tests which cushion the contractor designer against upon the imposition of liability for reasonable skill and care absent. If the results fail to your expectation, then the designer would be liable to the fitness for purposes obligations, despite exercising reasonable skill and care.
The risk can increase if the contractor designer hires a consultant designer. This is especially so if examining such a decision in light of the Supply of Goods and Services Act 1982 and the Sales of Goods Act 1972. Sadly, the contractor designer bears the brunt of liability because they have to meet contractual warranties, which relate to fitness for purpose and merchantable quality. However, express provisions can reduce these risks. This could partly explain why the design contractor’s liability limit in design and build contract is akin to that of architects in the traditional design and build contract. If the contract has express provisions, the contractor designer is under the obligation for fitness for purpose. However, the Unfair Contract Terms Act 1977 would guide such a responsibility.
All-in-all, a design contractor should is liable to either reasonable skill and care obligation or fitness for purpose obligation. These liabilities can increase significantly if they hire or subcontract design-build job consultant designers.

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