Throughout the property sector in Australia, few issues pose greater risk to the safety of building occupants than that of materials being used which fail to meet standards required under the National Construction Code.
As recent investigations into cladding have highlighted, the use of non-compliant products within the Australian building landscape is pervasive. From an architect’s point of view, this prompts questions about the legal issues involved in cases where such materials do happen to make their way onto projects.
At the core of an architect’s responsibilities, Norton Rose Fulbright partner and construction and engineering lawyer Rob Buchanan says, is a common law duty to exercise the degree of skill and care which would reasonably be expected of them as architectural professionals in the course of their work. Exactly how that would play out depends on whether or not the architect is engaged in a design related role at the front end of the project or in a certification related role under which they were certifying, say, the practical completion of the building.
In terms of design, Buchanan says the first issue that needs to be looked at revolves around the compliance of the design itself. Where, for instance, an architect had specified a particular type of handrail and the design of the system itself as opposed to the materials used does not meet requirements specified under the Building Code, it may be able to be argued that the architect in question did not meet the requirement to exercise reasonable skill and care and could therefore be held to be negligent.
In terms of an architect’s responsibility for ensuring that materials specified themselves were compliant, Buchanan says the extent to which they would need to go in order to demonstrate reasonable skill and care would depend upon the situation and the scale of the job in question. In most cases, he says, the duty of care would be satisfied where the architect chooses products from a specification list that was considered to be BCA compliant. In cases where products in question were relatively new and/or the buildings being built were of large scale or bespoke design, however, he says the architect might reasonably be expected to either physically eyeball the system and/or arrange for the product in question to be tested.
“It’s a scale of reasonableness and a question of how serious the consequences of specifying something that inadvertently is not BCA compliant are,” Buchanan said. “(In a large project,) the checks and balances required of the architect may themselves increase...it’s a sliding scale of obligation.”
Beyond design, a similar duty of care exists when architects and other professionals perform a certification type of role at the conclusion of a project. Any architect performing this type of role needs to go to reasonable lengths in order to satisfy himself or herself that the final built outcome corresponds with the Building Code, Buchanan said. Again, questions of scale and proportionality apply, and the lengths to which architects would reasonably be expected to go in order to ascertain compliance would differ according to the scale and size of the building.
In terms of protecting themselves, Buchanan suggests architects engaged to perform design roles should ensure that the extent of their liability under the contract is capped at a reasonable amount. When it comes to certification, he says architects or other professionals performing this role should be careful to outline in their report the extent of their engagement and what they have been engaged to do, the extent of their investigations and the basis upon which they had reached their views.
They should also be careful about contractual provisions which require them to assume a greater than usual extent of liability and responsibility, Buchanan says.
It is worth noting that contracts which require their performance to be at a "fit for purpose" standard would extend their potential liability beyond their normal duty of care and thus potentially beyond what is covered under their professional indemnity insurance. This is often seen in D&C contracts where the lead contractor passes down the fit for purpose duty to its designer.
In terms of risk management, Peter Mulherin, managing director of compliance verification outfit ProductWise, says that ensuring product compliance at the building certification stage is extremely difficult and that instead, non-compliant products needed to be prevented from entering the supply chain in the first place.
In terms of front-end design, whilst third party product certification and selection of products from reputable industry databases have their place, even these are not foolproof, as product substitution is still possible, he says. Accordingly, he suggests architects may try to write themselves out of responsibility for product which goes into buildings by specifying ‘product ABC or similar’ but including disclaimers specifying that ultimate responsibility for sourcing specific products which match the form and function specified rest with the engineer or builder.
Nevertheless, Mulherin said architects have an important role in terms of influencing behaviour by placing an emphasis upon conformance up-front.
“An architect has a role to play as do suppliers as does every stakeholder in the supply chain,” Mulherin said.
“The architect can highlight the importance of conformance and stress that their design and specification is based on compliance with the law, the standards and the codes of practice etc. If there is an emphasis on that, that emphasis will flow through the supply chain. So the engineer will say well ‘this architect has specified that the design is based around conformance’ and they will be reluctant to move away from that. The procurer, the building owner, the financier all of these stakeholders will demand conformance and there will be a focus on that. The builder or the owner or the financier will say ‘what checks are in place to avoid non-conformance and ensure that the product is what it says it is, who is checking that, and what is the first, second and third party verification supporting those claims?’
“All of a sudden you have got this coordinated approach toward conformance of the products.
"This removes risk for all stakeholders and raises the standards, longevity and value of our built environment."