Design Responsibility: What Difference Does It Make? A CostE NW Inaugural Lecture 23 January 2013 Paul Tracey

Transcription

1 Design Responsibility: What Difference Does It Make? A CostE NW Inaugural Lecture 23 January 2013 Paul Tracey

2 What Is Design? Depends upon the context within which the term is used. Communication of a concept, idea or process. Manifests itself in sketches, plans, drawings, specifications, BIM model and/or other contract documents. Determining feature of design in construction is that it involves exercising a selection or choice.

3 Who Has Responsibility For The Design? Possibly the most fundamental consideration on any construction project is to understand where responsibility for design rests. Depends upon the form of contract. Express and implied terms.

4 Who Has Responsibility For The Design? Designer: Architect, Engineer or Contractor. Design only: ordinarily duty to use reasonable skill and care. Reasonable skill and care: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

5 Reasonable Skill And Care Duty of care imposed on a professional: Designer, Construction Manager, Building Surveyor, Project Manager, Cost Engineer or Quantity Surveyor. Reasonable skill and care: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

6 Design And Build Is Fundamentally Different Physical Product IBA v EMI and BICC House of Lords (1980)14 BLR 1 Sections 4 & 13 Supply of Goods and Services Act 1982

7 Excluding A Fitness For Purpose Obligation Fitness for purpose can apply as a consequence of: An express term of the contract. A term implied by statute. A term implied as a matter of law. The potentially difficult position of a design & build contractor in the absence of an express limitation provision.

8 Fitness For Purpose Absolute obligation to provide a product which is fit for purpose regardless of any failure on the design and build contractor s behalf. Using reasonable skill and care will not be a defence. Professional indemnity insurance & cover for a fitness for purpose obligation.

9 Design Provisions & Standard Forms Of Contract JCT SBC/Q 2011 Contractor s Designed Portion (CDP) & JCT DB (Design & Build Contract) 2011 Design Liabilities and Limitation: See clause of JCT SBC/Q 2011 and clause JCT DB The Contractor shall have the like liability to the Employer as would an architect or, as the case may be, other appropriate professional designer

10 Design Provisions & Standard Forms Of Contract NEC clause 21.1: The Contractor designs the parts of the works which the Works Information states he is to design... Secondary option clause X15: The Contractor is not liable for Defects in the works due to his design so far as he proves that he used reasonable skill and care to ensure that his design complied with the Works Information

11 Design Provisions & Standard Forms Of Contract FIDIC Contracts (Yellow, Silver and Gold) Yellow book for plant design and build, the silver book for turnkey and gold for DBO all contain an express obligation that the: Works shall be fit for the purposes for which the Works are intended as defined in the Contract

12 Design Provisions & Standard Forms Of Contract IChemE Red Book 4 th edition Clause 3.4 the Plant as completed by the Contractor shall be in every respect fit for the purpose for which it is intended as defined in the Specification IChemE Yellow Book 3 rd edition has a similar provision

13 Design Provisions & Standard Forms Of Contract IChemE Burgundy Book 1 st edition & Green Book 3 rd edition do not include express fitness for purpose obligations. IChemE international contracts do not include an express fitness for purpose obligation. Likely that the 2012 editions due to be published in 2013 will likewise not include an express fitness for purpose obligation.

14 What Difference Does It Make? Design & Build Is Fundamentally Different: Implied Fitness For Purpose Obligation In Relation To Design. Absolute Obligation. Express Terms Can Reduce Obligation To Reasonable Skill & Care. Clearly Allocate Responsibility For Design. Managing Risk And Limiting Liability.