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The term “designer” - refers to architects and technicians as individuals, companies, or any other organisation that provides architectural services. It is not exclusive to “architects”.
A designer is expected to have a reasonable working knowledge of laws and legislation which affects him in the discharge of his duties as a designer.
The designer is under a duty to ensure that his plans comply with the Building Regulations.
02: EXPRESS TERMS
The designer duties to his client depends on the express terms of his contract with the client.
03: IMPLIED TERMS
Not all contracts are required to be in writing. Where there is no written contract, the terms of the contract will have to be implied. A term can be implied by law or from the facts.
04: DEGREE OF SKILL
A designer who offers professional architectural services warrants that he/she will use “reasonable care & skill”. The degree of skill required is that of an ordinarily competent architect / technician professing to have that special skill. Contracts for supply of professional architectural services do not normally give any implied warranty beyond reasonable care and skill.
05: DELEGATION OF DUTIES
The appointment of a designer, as with most professional persons is personal to himself. He/she cannot delegate his duty to be performed by someone else. In practice however, due to the complexities of some projects an architect / technician will usually delegate a substantial proportion of the technical aspects of design to other skilled professionals like mechanical & electrical engineers, civil & structural engineers, quantity surveyors, etc.
Where a designer undertakes the design and supervision of a building project under an “umbrella” arrangement, he should let the client know that he is delegating other aspects of the design like the mechanical & electrical design work and structural design work to other professionals.
06: DESIGN RESPONSIBILITIES
Quite apart from the aesthetic designs of a building, the design responsibilities can extend to specifications, selection of finishes choice of construction techniques. The designer must exercise skill and care in the execution of his designs and in the choice and specification of materials.
07: DESIGN & BUILD
In traditional employer / designer relationships, a designer is only required to use reasonable care and skill in the execution of his/hers design services. He/she does not normally warrant the suitability of his design for an intended purpose.
In design and build contracts however, there may be an implied term that his design is suitable for the intended purpose. He has a higher duty of care to his employer to ensure that his design is suitable for the purpose made known to him where his is employed under a design and build contract.
The “employer” is the person with whom the designer has a contractual relationship. In a design and build contract, the “employer” is the builder with whom the designer has teamed up to offer his design. Although no privity of contract exists between the designer and the building owner, a designer is still under a duty of care to ensure that he acts and omissions do not cause loss or damage to the building owner.
08: WHO IS THE CLIENT
It should be pointed that the “client” in the case of design and build contract is the party with whom the designer contracted. It is to be distinguished from the building owner, who may well be the employer of the contractor.
09: SITE INVESTIGATION
This includes preliminary observation and investigation of the site to determine if there are any obvious physical constraints which may affect the site or the building e.g. encroachments, right of way, drainage road reserves, etc. If necessary he should obtain interpretation plans to determine if there are any planning constraints.
He should not rely on information given to him by others but should examine the site for himself. If he does not have the requisite skills to conduct a proper investigation of the site, he must advise the client to engage suitable professionals e.g. land surveyors, structural engineers to conduct the investigation.
10: FEASIBILITY STUDIES
A designer may be called upon to prepare feasibility studies as to the potential of the site. The designer should be careful to advise only on the physical potential of the site and not the commercial viability of a project unless be professes to have that skill as he may find himself liable to the client if the client acts on his advice and suffers a loss.
11: COST ESTIMATES
Very often, a designer is asked to produce a design within a given budget. In such a case, a designer may be under a duty to design works capable of being carried out at a reasonable cost having regard to their scope and function. There will be an express or implied condition of employment that the project should be capable of being built within a stipulated or reasonable cost.
12: RECOMMENDING BUILDERS
In recommending builders, a designer is expected to make reasonable enquiries as to the solvency and competence of the builder although he/she does not guarantee the solvency or capacity of the builder. A designer will be liable to his employer if he carelessly gives a positive recommendation in favour of a contractor.
13: PLANS DRAWINGS SPECIFICATIONS
A designer owes a duty to his employer and to the contractor to ensure that plans, drawings and details are issued within a reasonable time. What is a reasonable will depend on the facts and circumstances of the case. Delay in issuing drawings, which is a common cause of complaint by contractors may lead to claims by contractors rendering the employer ultimately liable to the contractor.
It is a part of the normal duties of a designer to supervise the building works for which he is engaged. In the course of his supervision duties, the designer has concurrent duties in contract and under the Building Regulations. Under contract, his normal duties of supervision is to ensure that the building works are carried out according to the plans, specifications and terms of the building contract. Under Building Regulations, he has to ensure that the building works are carried out in accordance with the Building Regulations.
His supervision duties include the prevention, detection and correction of defective work. A designer who undertakes to supervise the works must exercise due care during construction to ensure that the materials and workmanship conform to the contractual requirements. Failure to do so may render the designer liable to the employer.
15: CLERK OF WORKS
The level of supervision to be provided by the designer in each case depends on the nature of the building contract. In larger contracts, there may be several full time project designers on site, either from the designers office or seconded to the employer. In smaller project, supervisory duties may be delegated to a clerk of works. In any case, even though the designer can delegate his supervisory functions he remains ultimately responsible for providing the level of supervision expected of him under his contract of appointment.
Whether or not a designer has to provide a higher degree of supervision will depend on the facts and circumstances of each case. It has been suggested that the clerk of works is employed to see the matters of detail whereas the architect’s duty is to ensure that his design is complied with.
Almost all building contracts require the building works to be carried out to the satisfaction of the designer. Where the terms of the building contract require the designer to certify payments to the contractor, the designer has a duty to ensure that the works are carried out to his satisfaction before he can certify payment. In issuing certificates, a designer has to act fairly and impartially as between the employer and the contractor.
17: DUTIES INDEPENDENT OF CONTRACT
Apart from his contractual duties and obligations, a designer may be liable in tort to third parties if his acts or omissions cause loss and damage to person or property. So there can be liability for damage to persons or property. So there can be liability for damage to persons or property resulting from building operations or negligently designed or constructed buildings. The crucial element for this liability is foreseeable physical damage negligently caused to the person or property.
18: DUTIES TO CONTRACTORS & SUB CONTRACTORS
Under most building contracts, no privity of contracts exists between the designer and the contractor. However, the acts and omissions of the designer can affect the contractor directly.
The designer is under a duty to act fairly and impartially as between the employer and the contractor in issuing certificates. Until recently, it was thought that a designer does not owe the contractor a duty of care in issuing certificates.
19: DURATION OF ARCHITECT’S DUTIES
In normal circumstances, a designer is employed to arrange for and supervise the building works to completion. It is most likely that the designer’s duty ends upon the issue of the final certificate.
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