Bellefield Computer Services & Ors v E Turner & Sons Ltd & Ors

An architect’s duty to a subsequent owner or occupier is ordinarily limited by the architect’s contractual design and supervisory responsibilities. It may cover latent defects where there is no reasonable possibility of inspection, but it does not extend to defects outside those responsibilities.

Where a safety-critical construction detail is not illustrated and may cause interpretation or construction problems, the architect must clarify the design intention or solution before the work is done. A detailed drawing is usual, but clear instructions, approval or discussion may suffice. Local authority approval does not enlarge a limited architect’s duty into a duty to supervise construction. The scope of liability for loss unassociated with physical damage was left open.

Turner sought a contribution from Watkins, architects engaged to provide partial design services for a dairy constructed for the Unigate group. After a fire caused extensive physical damage, Unigate pursued Turner, who in turn alleged that Watkins had negligently designed the fire compartment wall and adjacent fire lining.

The High Court dismissed the Part 20 claim. It held that Watkins’ retainer did not include a complete design for the relevant fire detailing, that the drawings supplied were sufficient, and that Watkins had no supervisory responsibility. The appeal concerned the scope of Watkins’ duty to subsequent owners, the need for further construction details, the effect of local authority approval, and whether the claim could properly be advanced as one based on omission. The claim for damages was accepted as statute-barred under the Limitation Act 1980, s.14A, leaving a contribution claim.

The appeal was dismissed unanimously. Potter LJ gave the leading judgment, May LJ agreed for reasons of his own, and Sir Anthony Evans agreed with both judgments.

1. Scope of duty. The court accepted the general principle that an architect may owe a tortious duty to a subsequent owner or occupier for latent defects where there is no reasonable possibility of inspection. The scope depends on the architect’s express and implied retainer and on the division of responsibility between the architect, contractor and specialist subcontractors. It does not normally exceed the architect’s duty to the client, although the two duties are not necessarily coextensive. The court referred to Murphy v Brentwood District Council [1991] AC 398, Baxall Securities Ltd v Sheard Walshaw Partnership (2001) TCC 36, and Voly v Inglewood Shire Council [1963] ALR 657. May LJ reserved the question whether the duty could extend to loss unassociated with physical damage.
2. Construction details and delegation. Detailed architectural responsibility is fact-sensitive and depends on the retainer, the responsibilities of others, and expert evidence. If an architect has reason to anticipate that an unillustrated safety-critical detail may create problems of interpretation or solution, the architect must clarify the design intention or solution before the work is done. A detailed drawing is usual, but written instructions, approval or direct discussion may suffice. An architect cannot avoid liability for a dangerous defect caused by negligent omission by delegating the relevant design duty without the employer’s permission, as illustrated by Moresk Cleaners Ltd v Hicks [1966] 2 Lloyds Rep 338. However, specialist details may fall to a specialist subcontractor as part of the original allocation of responsibility. May LJ also referred to the parallel contractual and tortious duties explained in Henderson v Merrett Syndicates [1995] 2 AC 145.
3. Application. Drawing 11C clearly specified the required two-hour fire protection. It provided sufficient design parameters for the wall, fire lining, upstands and fire-stopping, having regard to the requirements of Section E of the Building Regulations 1976. The evidence showed that the specialist subcontractor had produced proposals including upstands and that the relevant detail had been discussed. Watkins therefore discharged their design obligation. The failure resulted from Turner’s uncommunicated departure from the drawings, omissions during construction and the replacement of the specialist subcontractor. Turner did not prove breach or causation.
4. Other issues. Local authority approval did not enlarge Watkins’ limited role into an obligation to ensure that the work was carried out. The court also declined to entertain a late argument that the defects were patent rather than latent, because it had not been properly pleaded or advanced below and had not been supported by evidence. The distinction between misfeasance and nonfeasance did not prevent consideration of the wider design argument.

• Court of Appeal (Civil Division) — [2002] EWCA Civ 1823: appeal dismissed.
• High Court, Queen’s Bench Division, Technology and Construction Court — Mr Justice Thayne Forbes dismissed Turner’s Part 20 contribution claim.