Guide for Architects wanting to offer pro bono services. Bushfire relief services looking after yourself too

Transcription

1 Guide for Architects wanting to offer pro bono services Bushfire relief services looking after yourself too The Institute proudly recognises the community spirit of its members, particularly those of the Tasmanian Chapter, in the many offers of free professional services to assist the victims of the 2013 Tasmanian Bushfires. This generosity does not diminish the more immediate support the Institute and its members have given in adding to the financial and other relief the Australian community has provided, and continues to provide, through the Bushfire Appeal and other sources of funds. However, just as the Teague Royal Commission is charged with reassessing the risk of what, how and where we build near the bush and ultimately to recommend the appropriate risk management strategies going forward, members offering professionals services need to be sure their generosity of spirit does not overwhelm appropriate management of their own risks. While the Institute encourages its members to fulfil their offers of pro bono work, we remind members that no provision of professional service is risk free, even if provided for free and with the best of intentions and motives. Like it or not, when someone is faced with financial loss brought about by a professional person s negligence, the law does not exonerate the professional for exemplary motives and/or gratuitous services. In the following we suggest some simple risk management strategies, tailored to providing partial and gratuitous services in these circumstances. Hopefully, these will assist in avoiding a legal dispute and, if it does arise, preserve the effectiveness of your professional indemnity insurance to mount your defence and minimise your loss if found negligent. 1. Keep Records Keep records in the same way as you would for a fully paid project open a project file and maintain it.

2 2. Have a written client-architect agreement Even for a project taken on for no fee should have a signed client-architect agreement that sets out the agreement between you and your client over what exactly you are going to do for the payment, if any, or none. Without a defined scope, there can still be disagreements over what you said you would do for a fee of $0.00. Be clear on the extent of your services, if you are providing partial services e.g. only schematic drawings, only planning drawings, or contact documents are not detailed to the level usually expected then set this out clearly in your client-architect agreement and make sure that the client understands what they are getting. The Australian Institute of Architect s Client and Architect Agreement (CAA2009) includes a checklist of likely services. You can easily set out the scope of your services by crossing out all the services in clauses A and B which you do not intend to provide. For even greater clarity, you could amend the CAA by separating the scope of services into two sections: Included Services and Excluded Services. If appropriate, Included Services could be further dived into Free Included Services and Charged Included Services. We recommend you get advice on how to amend the CAA2009 appropriately. In particular, be very clear on whether you are or aren t providing contract administration services. If you are, then perform observations with proper care and skill. Although you might be working for no fee, you still owe the client the same duties of professional skill and diligence as a paying client. Do not be tempted to cut corners in your services, unless the client has explicitly agreed in writing to accept a lower standard of work. We recommend you get legal advice on how to explicitly agree to such an arrangement. Since some ruined buildings reportedly contain asbestos, remember that professional indemnity insurance policies almost without exception exclude asbestos from cover. If you take on any responsibilities relating to the identifying or managing the removal of asbestos, those responsibilities are almost certain the be uninsured, and you should either decline to perform those responsibilities, or perform the work with exceptional care since it is done without the protection of insurance. Be clear on whether you are performing this work in your private capacity or on behalf of a practice. Your practise s professional indemnity insurance might not cover your work performed in your private capacity, so either perform the work through the practice, or consider obtaining your own separate insurance cover. Architects Professional Risk Services can advise you on the options for separate cover. Discuss fees and costs with your client; record your decision in a clientarchitect agreement. Examples of matters that need to be recorded in your client-architect agreement:

3 Are there disbursements that the clients will need to pay? Is there a limit to the number of revisions you are prepared to make, or a cap on the number of pro bono hours you are prepared to work? Do you want to retain the right to withdraw your services at any point, or to start charging a fee? Do you want to be paid a retrospective fee if the client should happen to receive a large government grant or insurance payout? Again, we recommend you get advice on how to amend your client-architect agreement accordingly. The Institute, with Architects Professional Risk Services has developed special conditions for its short form Client-Architect Agreement which may assist you in addressing these matters with your client. These are also accessible via Acumen. [You may want to include a link to page 983 of Acumen here?] 3. If you can t deliver something for certain, don t promise it! It may be tempting to reassure those who have suffered what to most of us is unimaginable by making representations about how you can fix this or that or making the future risk of fire go away. At this point in time, we are all aware that the weather conditions over summer were beyond expectations, but equally, that a fire such as that could happen again. As the most recent experience of the aftermath of the Canberra fires in 2003 or the Victorian Black Saturday 2009 shows, we can expect much controversy, if it does not exist already, about what could or should have been done on a macro and micro scale. One aspect of the macro scale is the question of planning rebuilt communities in fire-prone areas, while at the micro scale is the already burgeoning controversy over the effectiveness of private fire shelters in or near dwellings. The Institute is already aware of clients asking their architects to design them fire bunkers. It is wise to be extremely careful about what you say in response to such a request and what promises (representations) you make, either verbally or in writing. Expert opinion is divided over whether such enclosures are generally the answer to safety in bushfires. At this time there seems to be genuine stories of those whose lives appear to have been saved in such enclosures on Black Saturday, but equally, we simply don t know at this stage if any victims were found in similar ones. The CFA have confirmed their belief that there is no tested fire bunker solution and that there is currently no active research into this although it can be expected that the announcement of funding will result in bodies such as the CSIRO undertaking this in the future. There are currently no guidelines or research that you as an architect can draw on in designing such fire bunkers. Apart from the obvious one about what fire rating to achieve, the CFA express concern about lack of standards and guidelines, as well as the potential for toxic gas (smoke) build up and safe paths to (and from the bunker after collapse of the surrounding structure).

4 While you should respond to your client s brief, but before doing so, make it very clear to the client in writing that you will respond to their request for a room or space that they may choose to consider as a fire enclosure, but that you do not promise and cannot guarantee that any such enclosure will keep people or animals safe in a fire. Avoid using words like fire-proof, fire bunker, fire refuge or fire safe, in conversations or in documents. Such words can be considered representations about the future and if ultimately the final product did not live up to the promises (representations) you made to the client about the quality of the fire shelter, you may have no defence to your client s reliance on your statement. It would be difficult for you to prove that your use of a phrase which represented some quality of being fireproof was reasonable in all the circumstances at that time. An expression such as fire-resistant may be more appropriate. You should also be aware that imminent adoption of amendments to the Building Code of Australia to increase the fire performance of buildings and the eventual recommendations of the Teague Royal Commission may further affect what you may design. We suggest you you keep regularly up to date with the amendments and find out at what point in the planning and building approval process new Building Code (BCA) provisions have to be incorporated into your design. Be aware that in the circumstances revisions might come into force without long lead in periods and require last minute incorporation of stricter requirements in your drawings. Be aware that in these circumstances it is conceivable that some BCA amendments might also apply retrospectively to buildings under construction or to recently completed buildings. Warn clients of that possibility and explain the potential implications of late changes for budget, timetable and re-design work as a requirement of amendments to the BCA. Alternatively, advise the client of the merits of delaying construction for say, six to twelve months, in order to consider the recommendations and research that emerges from organisations such as the CSIRO. Point out to your client in writing that in suggesting adoption of higher standards, either equal to or better than what is mandated by the BCA, you are not promising that their home will be able to withstand fire, merely that its defences against fire attack are stronger. Be realistic about the project timetable and warn clients to plan for delays. With thousands of houses to be reconstructed and imminent BCA amendments, the planning process could be slow and building labour could be in short supply. If reconstruction depends on insurance payouts or grants, remember that complex claims might take time to process. At the same time, you might need to remind yourself that some clients will be dealing with very difficult personal circumstances and in coming to terms with this are even less likely to be a model client. At times it may be difficult to secure instructions or consistent briefing to facilitate a straightforward project.

5 4. Don t try to be what you are not Finally, as always, resist the temptation to provide advice that is outside your discipline. If the expertise of another discipline, e.g. a structural engineer, is necessary, you must advise the client to engage a structural engineer. Providing negligent advice on a matter on which you are not qualified increases the risk of being sued, and could mean your professional indemnity insurance policy will not cover you for such negligent provision of services. Especially where your involvement in the project is limited, do not engage the consultant team as your sub-consultant. Engaging a sub-consultant makes you automatically liable to the client for all of the sub-consultant s work. Depending on the terms of the architect-subconsultant agreement, it may also make you liable for the subconsultant s fee, if the client cannot afford or ultimately does not pay for those services. This is a significant risk for you to take on for no fee. Instead, have the client engage them directly as secondary consultants. You can still co-ordinate their work as the agent for and on behalf of the client. You should get legal advice to ensure that the contractual arrangements between you and your client and your client and a consultant are appropriate for you.