Last year we reported on the case of Midlothian Council v Bracewell Stirling Architects which looked at the lead consultant's role in a project and the extent to which it could be held responsible for works carried out by others.
The case turned on the correct interpretation of the lead consultant architect's appointment. According to the Council the architect had assumed responsibility for the works (including the ground investigations) carried out and reviewed by the other defenders. In turn they had assumed responsibility for the other defenders' negligence in carrying out those works.
Having failed to persuade the commercial judge that the lead consultant was responsible for any negligent act or omission of the other defenders, the Council appealed the decision to the Inner House of the Court of Session.
The Inner House dismissed the Council's appeal and held that whilst the architect was responsible as lead consultant for the whole design of the development that obligation was intended to embody the architect's usual responsibilities for overall coordination of the design works. It was not to be construed as an acceptance of liability for anything that might ultimately go wrong with the design, no matter what its cause. The court found that the parties' intention, derived from the language used in its context, was not to impose any responsibility on the architect for a breach of contract, including negligent actings, by the other defenders. That interpretation was consistent with business common sense.
The court acknowledged that although it may be open to a commercial enterprise to assume responsibility for the actings of another with whom they have had no contractual relationship, whose specialist expertise would be outwith their own skill base and whose appointment preceded their own, it would be an unusual step and one carrying very considerable risks. Such risks may not be insurable by the lead consultant.
The extent of a professional's role is determined by the terms of its appointment. This case underlines that if a party is to be subject to an unusual obligation such as assumption of negligence by others then this needs to be made absolutely plain and unambiguous in the contract.
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