Architects create. Engineers design. Trades build. This is how the world of construction works. Sometimes, what is created is difficult to build, such as the Sagrada Familia in Barcelona. Sometimes, it's just not possible, like a toothpick bridge across the North Saskatchewan River. This post is not interested in those situations. Instead, it addresses what happens when the as-builts don't match the plans.
Engineers or architects often have contracts with the owner of a project; there is generally no privity of contract with the general contractor or with the various trades. Sometimes the contract is just for design; other times there is also a consulting or supervisory role involved. The potential liability for an architect or engineer will depend, at least in part, on the specifics of each contract.
It should follow, then, that absent an agreement to supervise the construction of a building, the engineer or architect is not usually liable where the general contractor or trade fails to construct the building in accordance with the plans. Remember that the engineer or architect is responsible for designing the structure, but the general contractor and the trades are responsible for implementing that design. Just as the engineer or architect is generally not liable to the trades if the design is not followed, the trades are generally not liable to the engineer or architect either.
3 Steps to Mitigate Potential Exposure
- Engage a lawyer to review contracts with supplementary conditions to provide comments on the potential exposure(s).
- Review and understand the duty of care and scope of work undertaken – including when your duty comes to an end.
- The architect or engineer can be liable in the event of damage to property from their negligence, fraud, or misrepresentation.
Ultimately, the potential exposure of an engineer or architect depends on the scope of work undertaken. The duty usually comes to an end with the completion of designs, so long as there is no property damage, fraud or misrepresentation. Absent an agreement to supervise construction, the architect or engineer is usually not responsible for the failures of the general contractor or the trades to implement the design.
This article, That's Not What I Designed – Potential Exposure for Engineers and Architects When Construction Deviates From the Plan, is part of a series relating to issues of Construction Law in Saskatchewan, written by Regina Partner Jason M. Clayards. Follow us on LinkedIn and get notified when the next article in this series is published. This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have.
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.
