Custom and practice alone won’t get you off a negligence charge, but it can play a part
Imagine you’ve designed a block of luxury apartments at a prestigious London address. With completion occurring, you have organised a reception in an apartment on one of the top floors, inviting some of your most important clients whom you wish to impress. As your caterers make the final preparations for the event, they suddenly realise the water supply to the apartment has ceased.
This was exactly the situation in a recent case involving a development in Knightsbridge, where WSP was M&E engineer. When the architect’s caterers realised the water supply had stopped, the water system pumps were turned back on to urgently restore supply. But the sudden surge caused by the water rapidly pumping into empty pipes caused them to fail catastrophically in two places, leading to substantial flooding.
The question is whether WSP was professionally negligent not to have suggested the installation of surge arrestor valves at the top of each riser of the water system. The issue of sudden surge of water up empty pipes was at the time relatively unknown.
The test for professional negligence was set by a doctor’s case from 1957, which states that a professional ‘is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’.
However, it is not enough simply to follow a body of opinion if it does not have a logical basis, and that requires a two fold test.
The body of professional men must have directed its mind to the comparative risks and benefits relating to the matter, so it is the process that is material in the eyes of the courts
First, the body of professional men must have directed its mind to the comparative risks and benefits relating to the matter, therefore it is the process and not the result of the expert’s reasoning that is material in the eyes of the courts. Secondly, as a result of that process, a defensible conclusion must have been reached. This conclusion must be internally consistent, must make cogent sense as a whole, and cannot fly in the face of proven extrinsic facts relevant to the matter.
The judge in the Knightsbridge case applied these tests and deduced that WSP was simply following the general view at the time (mid-2005), ie, most M&E engineers were not fully aware of the risk of sudden surges leading to catastrophic flooding. However, the judge confirmed that a professional person is not exonerated simply by proving that others would have been just as negligent.
The fact that industry practice as a whole had not led to the adoption of surge arrestors did not alleviate WSP’s liability, because it was not clear that a proper body of professional M&E experts had actively considered the risk and concluded logically and rationally that surge arrestors were not needed.
However, while WSP may have failed the test of professional negligence, the property owner still had to prove its loss was caused by WSP’s negligence. On this point, the judge held that even if WSP had suggested at the time that surge arrestors be fitted, it is unclear that the client would have definitively taken that advice and installed them. Indeed, the judge pointed out that even following the catastrophic flooding, the client had not inserted surge arrestors in the building. On that basis, WSP was not found liable for causing the loss as a result of professional negligence.
These tests of an M&E engineer and its design will apply equally to any architect when designing a building. Architects should take heed that ‘everyone designs it this way’, is not necessarily a viable defence against a claim of professional negligence, if that design has not been properly examined by a body of professional opinion.
Alistair McGrigor is a partner with Nabarro
Step-in rights
When granting collateral warranties to beneficiaries, you may have noticed clauses dealing with ‘step-in rights’. These permit a beneficiary to step in and become the architect’s employer if the actual employer defaults in its obligations. Usually these rights are granted only to a bank or, for example, to the developer in a warranty post-novation of the architect’s appointment to a D&B contractor.
The clauses apply both where the employer has defaulted in making payments to the architect, and where the employer has defaulted in its relationship with the beneficiary. For example, if a developer goes bust or meets financial difficulty and therefore defaults under its loan agreement with the bank, the bank will be entitled to step in and take over to ensure the project is completed.
Alternatively, if the developer fails to pay the architect, the clauses would oblige the architect (before terminating its appointment) to notify the funder to let the funder step-in instead.
Usually step-in rights oblige the beneficiary (when stepping in) to pay all sums outstanding and due to the architect. Without that protection, any sums not paid by the original employer might remain outstanding and the architect might not be able to recover them from the beneficiary.