Designers must have the will and ability to innovate, but significant pressure can be felt when there is also a trend towards more stringent regulation aimed at safety and risk protection. Regulations tend to encourage designers to follow more proven paths rather than develop bold new innovations.
Pinsent Masons explored these questions at a recent event.
Legal principles applicable to designers
A designer’s duties are defined by the scope of the work and their express, implied, tort, statutory, professional and ethical obligations. All of these elements can overlap and all change rapidly.
The two most common duties of a designer relate to reasonable skill and care and fitness for the job.
The first obligation requires a designer to demonstrate that he acted in accordance with usual practice and professional standards at the time the design was carried out in order to fulfill his obligation.
The duty to exercise reasonable skill and care has become more difficult in modern building or construction projects, with more technologically advanced and complex designs. It is increasingly common for designers to engage in multidisciplinary services, where they are judged against the standard of competence in the particular discipline in which they provide the services.
It’s important for a designer to specifically forgo specialist expertise if they don’t have it, and tell a client to seek specialist advice elsewhere. This is particularly important as the law will not accept the argument that designers failed to meet the required standard due to tight deadlines or low bid.
‘Fitness for purpose’, on the other hand, is a more common requirement in civil law countries, where an architect is required to produce a workable design in accordance with the client’s wishes. However, it has become increasingly common that professional assignments governed by common law also include fitness for duty obligations.
This means that a designer assumes an absolute obligation to achieve a specified result and imposes a higher standard than the reasonable obligation of skill and care.
Although the strict imposition of this duty may impose the requirement to do the impossible, courts in common law jurisdictions are generally inclined to give it full effect.
Challenges for the design sector
In this context, a tension between regulation and innovation in design stems from the need to balance the economic, social and environmental benefits that arise from innovation against the protection of consumers from the risks that may arise from innovative developments.
Regulators and other stakeholders can impose highly prescriptive requirements that impede this progress. For example, standards groups within agencies may stipulate overly restrictive, capital-intensive, and often outdated standards, specifications, and review processes. Design and build certification processes can inhibit innovation because the risks to project participants of making changes are not worth pursuing, especially during delivery.
If the right balance between innovation and safety considerations is not struck, design regulation can act as a barrier to the innovation and rapid progress needed to mainstream environmentally sustainable design and construction.
Striking the right balance requires more dialogue and discussion and a willingness to pursue regulatory reform underpinned by a desire to promote innovation with due regard to safety and liability issues. More collaborative contract models can help support this kind of phased approach.
Design risks have been highlighted in recent years following the facade cladding fires at Grenfell Tower in London and Lacrosse Tower in Melbourne, as well as major and very public structural faults in the towers Opal and Mascot in Sydney.
To address these risks, the current proposal in the UK is to introduce a retrospective limitation period of 30 years for claims under the Defective Premises Act (DPA) 1972 against original builders of a building if that building turns out to be uninhabitable for security reasons. or even other reasons, and a prospective limitation period of 15 years.
This would extend the current six-year limitation period under the DPA, whereas contractual limitation under a deed is generally 12 years.
There is already a significant volume of litigation in the UK over fire safety faults which are proving difficult to resolve. The reasons for this are often related to the design and not being clear whether what was actually built was what was designed, and if and to what extent repair work is now required.
This, and the safety implications that flow from the situation, is the underlying rationale for adopting a ‘golden thread’ approach, to ensure that the design and build status is clear and documented for the building owner, asset managers and term buyers.
The UK Building Safety Bill aims to bring about significant cultural change at all levels. The main architect of the relevant projects will now have to sign jointly with the building contractor that the building complies with building regulations, which means that designers will have to be much more fully involved in the construction phases of a development. .
In addition, there are extensive obligations regarding the notification of design changes to the regulator and, for some larger changes, approval must be sought before work can begin. These issues can all lead to significant delays in work and drive up construction costs.
Technology: risks and opportunities
Building Information Modeling (BIM) is being used much more throughout a building’s lifecycle to enable the collection of carbon data and the operational performance of an asset, and a further increase in its use is expected.
Using BIM means that much more detailed design is done up front, and it becomes increasingly difficult to change fundamental design elements later in the process. This contrasts with traditional design-and-build models, where detailed design is typically carried out throughout the construction phase.
BIM results in a more heavily specified design approach, which makes it harder to transfer responsibility for that design to the supply chain. Parties are now looking to use BIM up to the operational stage, because that’s when you get the most out of a so-called digital twin. This means updating the information model with as-built information, driving a much more intensive approach from defect identification to completion.
More collaborative contracting approaches during the design period, such as early contractor involvement, will deliver more designs sooner, but we also anticipate an increase in approaches such as construction management, which allow clients to better control of design and quality.
The transparency and accuracy of digital information is likely to provide project parties with a much better understanding of the root cause of issues, so accountability can be much clearer and disputes can therefore be resolved more quickly. Digital data and information certainly have the potential to help parties avoid disputes.
The use of BIM is likely to lead to a more collaborative approach to data sharing, and one option could be the development of a customer-led “federated” approach where suppliers are invited to register and share data in exchange for receiving data benefits – related knowledge that will help them manage their own risks.
Construction litigation experts Mohammed Talib, Adam Perl and Zoe de Courcy Arbiser of Pinsent Masons contributed to this article.