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Design © Daniel Atkinson 1999
In general, a designer is expected to use reasonable skill and care. A higher duty may be imposed however in some situations. The normal standard was laid down in Bolam -v- Friern Hospital Management Committee (1957) by McNair J. The test is the standard of the ordinary skilled man exercising and professing to have that skill. A person who professes to have a greater expertise than in fact he possesses will be judged on the basis of his pretended skills. In Wimpey Construction UK Ltd -v- D V Poole (1984), it was held that a professional person with special knowledge would be expected to exercise a degree of care in relation to that actual special knowledge. The reasonable skill and care required is measured by reference to the special knowledge and not the lesser knowledge of the ordinary competent practitioner. A further qualification on the designer's liability is the `State of the Art' defence. This means that a designer is only expected to design in conformity with the accepted standards of the time. These standards will generally consist of Codes of Practice, National Standards and any authoritative published information. It is now established that the designer has a duty to amend his design if it appears to be defective during construction : London Borough of Merton -v- Lowe (1981), but, following comments in T.E. Eckersley & West Water Authority (1988), it seems that the designer has no duty of care to continue to warn of potential dangers once his initial involvement has ended except in carefully defined cases. If a designer uses untried materials or methods of construction he will be just as liable for design failure as if he makes a mistake in using traditional techniques. In Victoria University of Manchester -v- Hugh Wilson & Lewis Womersley and Pochin (Contractors) Ltd (1984), Judge John Newey QC held that it is not itself wrong for designers to use untried or relatively untried materials or techniques, but that it would be wise to warn their clients specifically and get their express approval. In particular circumstances, a designer`s obligation may be more onerous than reasonable skill and care. The designer's contract with his client may expressly impose a higher duty of care. What that duty will be depends upon the precise terms.In Greaves (Contractors) Ltd -v- Baynham Meikle & Partners (1975) the Court of Appeal held that the defendant designers were in breach of an implied term that the design would be reasonably fit for the purpose of the use of fork lift trucks. In this case the defendants were expressly informed that the first floor was to take the weight of loaded fork lift trucks. The defendants had failed adequately to design for vibration so that the floors consequently cracked. Design and build contracts can impose a higher standard than reasonable skill and care. This obligation resembles the seller`s duty to supply goods which are reasonably fit for their intended purpose. The fitness for purpose requirement relates to a specific purpose, and requires the additional ingredient of reliance by the Purchaser. A number of cases demonstrate when reliance is considered sufficient. In Viking Grain v White(1985) the owner relied entirely on the expertise of the contractor for the design and construction of a large grain drying and storage installation under a package deal. Although soil investigations showed the absence of ground water, in the event the installation was unfit for its purpose due to the seepage of water into the various parts of below ground structures. The contractor was held liable. The specification of the functional parts of the installation as a whole and the conditions of the ground were integral and interdependent part of the whole. In Young and Martin Ltd - v - MacManus Child Ltd (1969), the Contractor supplied defective roof tiles to the Employer under a house building contract. The brand and manufacturer for the tiles had been specified, but the Contractor had been allowed to make his own contractual arrangements for supply of the tiles from a sub-contractor. The House of Lords held that in the absence of any reliance there was no room for the implication of a term as to reasonable fitness for purpose. However, the absence of reliance did not displace the implication of the term for satisfactory quality. In contrast in Gloucestershire County Council - v - Richardson (1968) the House of Lords were faced with a similar situation in relation to defective columns. The supplier was nominated by the Employer, but in this case the Employer imposed the terms of sub-contract between the Contractor and his supplier which excluded all liability on the suppliers part for deficiency or lack of quality, unless a claim was made within 24 hours. This was sufficient to exclude the implication of either of the two terms, that is fitness for purpose and satisfactory quality. The transfer of construction risks due to widening of the Employer's specification was demonstrated dramatically in Yorkshire Water Authority - v - Sir Alfred McAlpine & Son (Northern) Ltd (1985) 32 BLR 115. The Contractor's method statement was incorporated into the Contract and in the event proved impossible. Under the ICE Conditions (5th Edition) the Contractor was entitled to a variation order with the consequent entitlement to payment of the value of the variation. The Purchaser by incorporating the Contractor's design into the Specification, may in effect reduce the Contractors design liability. In an Australian case, Cable (1956) Ltd and Hutchinson Ltd (1969) 43 AL JR 321, the plant involved was a bulk mineral storage and handling plant including 2 storage bins each of 8,000 tonnes capacity. The Employer's consulting engineers prepared a specification and drawings. The Contractor submitted a tender to design, supply and erect the plant, in accordance with the drawings and specification prepared by the consulting engineer's. The tender included a foundation design by the Contractor since the consulting engineer specification and drawings did not include foundations for the storage bins. The Contractor's foundation drawings was subsequently approved. A formal agreement was entered into and which the Contractor agreed to execute the work shown on the drawings and described in the specification and to do so in a workman like manner. The foundation design was inadequate. The court held that the builder was not responsible for the deficient design. In Equitable Debenture Assets Corporation Ltd -v- William Moss and Others (1984) 2 CLR 1 it was held that a term will be implied into the contract that the contractor should report design defects known to them. In Victoria University of Manchester -v- Hugh Wilson and Others (1984) 2 ConLR 43 it was held that the contractor had a duty under an implied term of JCT 63 to warn of design defects which they believed to exist, but that this did not involve a critical survey of the drawings, bills and specifications looking meticulously for mistakes. In University of Glasgow -v- Whitfield and Laing (1988) 42 BLR 66 it was made clear that the duty was owed to the Employer not the Architect/Engineer or main designer. The essential requirement was that the contractor knew that the owner placed reliance on him in the matter of design, and where there is a special relationship between the parties. In Edward Lindenberg -v- Joe Canning Jerome Contracting Ltd (1992) the contractor was held liable to make a contribution to the cost of remedial works resulting from the demolition of load bearing walls. The walls were shown on the Architect’s drawings as non loadbearing.
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