Architects and design professionals have experienced an increased exposure to personal injury claims in the last five or so years, particularly in Queensland following the enactment of the Personal Injuries Proceedings Act 2002. Where persons suffer injury as a result of an alleged defect in a premises or structure the architect is commonly joined to the claim, even in cases where the architect has a rather limited involvement. Against this background a recent decision of the New South Wales Court of Appeal is welcome news to architects, design professionals and their insurers.
Drummond and Rosen Pty Limited v Easey & Or's [2009] NSWCA 74.
(Judgement – 16 April 2009)
The Facts
On 9 March 2002 the plaintiff, Berry Easey, was injured when he fell on a tiled ramp at an entry to the Miller Shopping Centre in Miller, New South Wales. It was raining at the time and the tiles were wet. The Centre had only recently undergone a refurbishment. Drummond and Rosen Pty Ltd, architects, prepared the plans and had a defined role during the construction phase which was limited to:-
"Preparation of colour board, schedule of finishes and provision of relevant samples to illustrate concept.
Preparation of building specification in conjunction with the working drawings.
Final selection of finishes and colours.
Inspection of the works for verification that the works are executed in general accordance with the documents prepared by us. Verification and quality control will be based only on a visual inspection of the works and our responsibility will exclude any matters not readily apparent on a visual inspection."
The architects provided specifications to the builder for the tiling work which included a requirement that manufacturers data, product warranties and technical specifications (including confirmation that the minimum coefficient of friction of the tiles exceeded values set in AS 3661 Part 1) be obtained prior to installation.
Samples of tiles for the entry to the Centre and other areas were chosen by the architects and provided to the project manager with no accompanying documents. Minutes of site meetings involving the project manager and builder indicated that manufacturers data, product warranties and material dealing with coefficient of friction values for the tiles used in the refurbishment were not obtained prior to installation.
The Litigation
Mr Easey sued the owners of the Centre, the builder and the architects. Cross claims were made between defendants.
The main allegation against the architects was that they had selected tiles which were not fit for the purpose of being laid on an access ramp exposed to the weather, and had failed to check and ensure that the tiles complied with the requirements of the relevant Australian Standard.
Expert evidence established that the tiles in question had a coefficient of friction in the wet well below that required by AS3661 Part 1.
The Decision
The trial judge found that the tiles laid at the entrance to the Centre did not comply with the relevant Australian Standard by a substantial margin and were "inadequate and not suitable for the ramp." She found that all defendants had been negligent and apportioned liability 50% to the owners, 30% to the architects and 20% to the builder.
With regard to the architects she held that they had selected the tiles, knew of the relevant Standards and had failed to have the tiles tested.
The plaintiff was awarded damages of $304,792.
The Appeal
The architects successfully appealed and had the judgement against them overturned.
The New South Wales Court of Appeal held that:-
- The architects provided the tile samples pursuant to their duty to make "a final selection of finishes and colours". There was no basis for a finding that they intended to step outside their limited role, without additional remuneration, and undertake responsibilities which the specifications imposed on the builder. The architects were entitled to assume that the builder would, amongst other things, ensure that the product complied with the specifications. His Honour, Handley AJA, said:-
"In my judgement therefore the architects, by delivering these samples to the project manager, and by their associated conduct at the time, did not represent to the project manager or the owners or the builder that those tiles complied with the technical requirements of the specification or assume any responsibility to them for such compliance."
- In providing the samples the architects made no representation that they met the technical requirements of the specification.
- There was no evidence that the architects had sought to select tiles which complied with the technical requirements of the specification.
- The architects did not therefore breach the duty of care which they owed to their client. They also did not breach the duty of care owed to persons in the position of the plaintiff using the ramp. They owed no separate duty to users of the Centre to ensure that the tiles complied with the specifications, and otherwise it was never suggested that they were negligent in the design of the ramp or in framing the technical specifications.
The Court Of Appeal substituted an apportionment of liability of 50% to the owners and 50% to the builder (the owners had notice of problems with the ramp shortly after it had been opened).
Comment
The decision is a welcome one for architects and their insurers, and a useful precedent to raise in defending a similar facts claim.
The decision also highlights the importance of clearly defining in writing what role an architect is to play in a project, and for building specifications to assign responsibility where a task is to be done by someone other than the architect.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
