Professional Responsibility for Materials Selection
The question of responsibility for the safety and quality of materials used in the built environment has been pushed to the fore by recent disastrous news events.
Practical issues affect all stakeholders in a premises, with some obvious examples being:
- Building Owners wishing to understand whether their properties are compliant with best practice for building safety
- Occupiers seeking reassurance that their accommodation is safe to use
- Participants in the development of buildings who may not have been paying close attention to the allocation of responsibility for design, or the selection of materials, when documents were originally agreed.
In this article, we review the obligations commonly placed on those holding a design responsibility such as engineers, architects and contractors. There are a wide variety of contractual obligations on professionals, but they can be broadly summarised into these four areas:
That the Professional has used Reasonable Skill and Care
An obligation to use reasonable skill and care means just that: the level of attention and quality decision making should be reasonably expected considering their expertise and experience – and their responsibility in the project.
Wording might be added to a contract to clarify and specify that the level of skill and care is that reasonably expected of a professional in that particular field or experienced in the type of project, which obviously increases the standard required. Reasonable skill and care is judged based on the standards, knowledge, and practices prevalent at the time the work is performed, so we do not generally judge past actions through the lens of today’s improved knowledge and best practices.
The work will be Fit for Purpose
Fitness for purpose means that output will be fit for its intended use. Under this obligation therefore, the party responsible for a design effectively guarantees that the design will be fit for that purpose for which it was intended. This is a higher obligation than reasonable skill and care because the professional consultant could still be liable for a design that does not fulfil the purpose, despite having worked with reasonable skill and care.
If this type of provision is included in a contract, it is vital that the parties fully and clearly identify what is meant by the purpose, and if necessary, exclude outcomes that are not within the professional’s control. Ideally fitness for purpose can be defined by reference to some objective criteria.
There will often be a clause which seeks to prevent the use of certain materials on a project which is referred to as a ‘deleterious materials’ or a ‘prohibited materials’ clause. Those materials might be prohibited because they are dangerous, unlawful, or because of concern for the environment, or because of the Employer’s preference or views on reliability. Breach of such a clause can cause death or serious injury, criminal proceedings, significant delay, or remedial works, as well as having a knock-on effect for the Employer in the value of the project or its performance in the market. Recent news about cladding systems has brought this point into sharp focus.
Services conform with Good Industry Practice
Contracts will often require that the services are completed in accordance with ‘Good Industry Practice’ or similar standards. As there is no strict definition of Good Industry Practice, one party’s definition might look quite different to another’s, and quite different again to that of a judge. Professionals would usually have a good idea of what such standards are, and are encouraged to document any discussion at the outset to comply with these obligations. Certainty may be added by defining Good Industry Practice; for example, by reference to a professional code or guidelines.
So what does this mean for you?
The route to selection of materials is often complex and can involve multiple professional inputs and stakeholders’ opinions.
Take a real life scenario – original materials specified by the Architect could be replaced for cheaper materials proposed by a Contractor as a cost saving to the Employer, a decision which is then approved by the Project Manager. Whose fault is it if there is a problem when construction is completed?
Contractual relationships will establish which parties owed which of the above duties in respect of their decisions, and all must be considered in each case to establish responsibility where inclusion of unsafe materials makes remediation work necessary.
It can be a complex business, creating a contract that reflects these nuances without being overly restrictive. If you would like to chat to one of our Construction or Commercial Property experts about a contract that you are working on or you have been given, just click here.