Introduction
In addition to preparing a design, engineers and architects are often also involved with overseeing the work to ensure that the project is being constructed in accordance with the plans, specifications and applicable building codes or bylaws. These services are often referred to as “field review” or “inspection”.
Field review poses unique and difficult liability challenges for design professionals. On one hand, these professionals are under an obligation to ensure general compliance with the plans and specifications. On the other hand, as they are not responsible for carrying out the work themselves and (typically) not responsible for directing how the work is to be carried out (the contractor is typically responsible), they cannot be expected to ensure prefect compliance, as they cannot and are not expected to review all work carried out by the contractor.
The purpose of this paper is to provide an overview on the potential liability of architects and engineers for “field review” services and to provide some insight into what may or may not constitute negligent field review.
Liability of Design Professionals Generally
The duties of a design professional arise primarily from the contract with his or her clientt. Typically, the contract will spell our the duties and obligations of the architect or engineer to the client.
Unless the contract expressly states otherwise, the architect or engineer owes a duty to exercise skill, care and diligence which may be reasonably expected of a person of ordinary competence, measured by the professional standard of the time. This test imposes several limitations on the duty owed, including:
- Unless the contact explicitly states so, architects and engineers are not obligated to perform to the standard of the most qualified and competent – meaning that only reasonable skill is expected;
- The design professional is to be judged to the prevailing professional standard at that time the work was done and not by what may be later known or accepted;
- It is sufficient for the architect or engineer to follow an accepted body of opinion even where there are competing schools of thought so long as the school of thought was chosen with reasonable competence;
- Design professionals do not guarantee that the work will be successful. As long as they have exercised reasonable skill and diligence in doing their work, the fact that the work proves unsatisfactory will not necessarily render them liable.
Importantly, the content and nature of the duty owed to the client can be modified by the contract. As is discussed further below, reviewing the contract can be critical to determining the scope and content of a design professional’s field review obligations and whether such obligations have been breached.
What is Field Review?
Field review can take many forms. A design professional’s field services may include:
1) Reviewing a contractor’s work for deficiencies and deviations from the plans, building codes, by-laws or general good construction practice;
2) Reviewing and certifying the contractor’s applications for payment;
3) Preparing and issuing project change orders and advising the client of the changes;
4) Certifying substantial performance of the work;
5) Performing annual warranty inspections;
6) Issuing supplemental design details and instructions;
7) Reviewing drawings, data and samples;
8) Attending meetings with the client and the contractor;
9) Coordinating multiple contractors or consultants;
10) Inspecting and testing work; and
11) Interpreting the contract.
There is no “magic number” of times that the design professional must review the work site to avoid liability, but the construction site must be supervised and inspected sufficiently often to ensure that the project is constructed in conformity with the plans and specifications as well as the contractor’s contractual obligations, unless the contract specifies otherwise. Likewise, there is no specific form that a field review is required to take; it can be confined to a visual inspection, but it can also extend to making more invasive or scientific inquiries as are necessary to ascertain that the work has been satisfactorily performed. Again, the form will depend on the circumstances and the contract.
What is clear is that the design professional is not required to be everywhere and see everything on the job site. He or she does not need to supervise everything done during construction, but at a minimum, needs to be in attendance for critical phases of the work and should inspect important aspects of the work before they are hidden from view.
What is the Standard of Care for a Field Review?
As set out above, unless expressly stated in the contract for professional services, in all the work done for the client, design professionals owe a duty to exercise the skill, care and diligence which may reasonably be expected of a person of ordinary competence, measured by the professional standard of the time .
Design professionals have a duty to act impartially and objectively in administering the contract between the owner and the contractor; but also have a duty to protect the client as per their contractual obligations to do so.
Design professionals must exercise reasonable diligence and skill in supervising the work to ensure that it conforms to the contractual requirements. They are not required to guarantee that every departure from the design will be noted and corrected, but only those that reasonable supervision will disclose .
The design professional is not normally required to tell the contractor how to carry out its work – that is the contractor’s responsibility. Further, it is the contractor’s responsibility to construct the project in accordance with the plans and specifications.
While the applicable standard of supervision is largely dependant on the facts of each case (including the contractual provisions), some general comments can be made :
- The design professional is expected to carry out sufficient review to be in a position to certify that the project conforms to the plans and specifications based on a reasonable system of review (i.e. periodic reasonable inspections were done properly and did not uncover any obvious issues) ;
- Generally speaking, design professionals have a higher duty to inspect aspects of the project that are at greater risk of error or where the consequences of any error are more extreme ;
- The design professional is not expected to supervise everything done on the project but is expected to attend during critical phases of the work, particularly if the work will later be covered up;
- The type of contract can impact the duty owed, with “costs plus” contracts generally requiring more supervision;
- The duty to inspect may include both visual and other types of inspections (i.e. measurements, readings, testings, etc.);
- If the contract between the design professional and the client does not clearly set out the scope of field review services to be provided, a court may find an implied duty of inspection or supervision on the design professional ;
- Although design professionals may delegate aspects of supervision in appropriate cases, to cut costs or for other reasons, they may not delegate all of the duties for which they were retained. Final responsibility for the adequacy of supervision remains with the design professional.
The following cases help illustrate the application of the above legal test to different factual situations.
In Willis, Cunliffe, Tate & Co. v. Harmony Estates (1977) Ltd. (1984), 11 C.L.R. 154 (B.C.S.C.), a subdivider hired an engineer to design and provide engineer services for the installation of site services in a development. Their contract required the engineer to complete a design prepared by another engineer, to obtain the necessary approvals and to provide engineering services during construction to ensure compliance with applicable municipal by-laws. After a lengthy hiatus for winter, leaks were revealed and repairs were made which were represented by the contractor to have rendered the services watertight. No further testing was done. In the summer, the contractor abandoned the project and a new contractor was hired to complete the work. Testing by the new contractor revealed a number of leaks caused by the negligence of the previous contractor, and the new contractor completed repairs at great expense to the developer.
The engineer sued for professional fees withheld by the developer who counterclaimed for damages. The developer based its action on (1) failure to supervise and inspect; (2) failure to pressure test; and (3) improper certification of progress estimates.
The engineer’s action was allowed and the developer’s counterclaim was dismissed. The Court held that the contract did not require the engineer to carry out the types of inspections that the client alleged should have been done. While the contract did provide for intermittent inspection, the Court held that these inspections related more to costing issues and did not impose a duty on the engineer to “fully” supervise the work.
n reaching this conclusion, the Court held that the engineer had no authority to direct the contractor as to the manner in which testing was to be done in the absence of a specific contractual requirement. Further, there was no generally accepted practice of testing each section of pipe as it was installed and, in any event, the engineer was not in a position to exert pressure on the contractor to ensure that testing was done. Control over the contractor could only be exercised by the developer, and the engineer’s only recourse was to withhold the certificate of completion until testing was done.
This case demonstrates the critical importance of the contract in determining the nature of the duty owed by the design professional to the client for field review services. Specifically, it illustrates how the contract may limit a design professional’s field review obligations.
In Zimpro Inc. v. Fischbach & Moore of Canada Ltd, (1984), 11 C.L.R. 204 (Ont. H.C.), Zimpro., a specialist in the production of sludge heat treatment equipment, had been hired to supply, deliver, supervise the installation of and guarantee the proper functioning of its process. Zimpro was to work with the architect-engineer of the project to ensure that the system would function properly. The architect-engineer was also responsible for overseeing the activities of the general contractor, whose responsibilities included building the plant, installing equipment, co-ordinating work schedules, and insuring that the work site was secure. One sub trade, F & M Ltd., was responsible for installing plumbing fixtures and equipment. This included the installation of Zimpro’s equipment under Zimpro’s supervision.
On the date of the accident, Zimpro was conducting tests on its equipment. At Zimpro’s request, F & M turned the water supply on in the high-pressure pump room. At the end of the workday, an F & M employee turned off the air compressor but did not turn off the water. Flooding occurred which was not discovered until several hours later. During the course of the proceedings, F & M admitted liability but claimed over against the various parties for contribution and indemnity.
The Court relieved the architect-engineer from liability. While it possessed special knowledge about Zimpro’s process, it was not responsible for teaching every trade about the potential hazards of working with the system when such knowledge should have been possessed by the trade. As the evidence did not disclose anything unique about Zimpro’s process, the architect-engineer was entitled to assume that F & M would be aware of how the system operated.
This case demonstrates that the design professional will not be held responsible for everything that goes wrong under its supervision, so long as it acted reasonably with regard to the reasonable standards of the profession and the contract. It also illustrates that a design professional is not expected to direct the contractor as to how the work should be carried out.
In Dabous v. Zuliani (1974), 6 O.R. (2d) 344 (H.C.), the plaintiff’s house was damaged by fire. The defendant Zuliani was the builder and the defendant Townend, Stefura, Baleshta & Pfister was the architectural firm that designed the house. The plaintiff claimed that the fire was caused by the negligent performance by the builder and the architects of their respective contractual obligations. The fire was caused because the prefabricated metal chimney connected to the fire-box in the fireplace on the ground floor of the house was installed in direct contact with wooden joists at the level of the second floor, without any clearance space and without any fire-stop being installed in the area to ensure the proper degree of clearance. Against the architects the plaintiff alleged negligence in failing to supervise the installation of the fireplace and chimney.
The court held that when the installation of a potentially hazardous fixture such as a fireplace chimney is taking place, a duty is imposed on the architect to make sure that the installation is properly done. Mere instruction to a builder’s employee to build properly will not satisfy the duty of care. The Court stated that while not every undetected or uncorrected departure from the plans and specifications will result in liability, liability is more likely to be imposed where the non-compliant work relates to a component that is of critical importance to the future safety of the building and its inhabitants (especially when, as in this case, the mistake could have been caught quite easily and with little expense).
This case is also authority for the proposition that where work has been covered over before the design professional has had a chance to inspect it, the reasonable design professional will have it uncovered and checked. It further illustrates the point that liability is more likely to be imposed where the design professional did not adequately review a critical component of the construction that, if done improperly, could result in extreme consequences.
In Ramsay v. R., [1952] 2 D.L.R. 819 (Ex. C.C.), multiple dams were constructed on the Souris river, along which the plaintiff owned property. The plaintiff alleged that as a result of the improper construction of the dams, water rose above the natural or man-made banks of the river and flooded valuable portions of agricultural and pasture lands and prevented him from sowing, tilling or harvesting crops or using the lands for eight years. The court found on the evidence that the design professionals exercised all reasonable care and prudence after ascertaining and investigating all available material factors pertaining to the river, surrounding country, and watershed.
This case illustrates that while engineers are expected to be reasonably competent in the exercise of their calling, perfection is not required. Rather, the design professional is required to exercise reasonable care and prudence in the light of scientific knowledge at the time, of which they should be aware.
Letters of Assurance
A separate but related topic that is beyond the scope of this paper is municipal liability for regulating construction. What follows is a brief discussion of one of the measures adopted in British Columbia to attempt to limit municipal liability by requiring design professionals involved with certain types of projects to certify “Letters of Assurance”.
Municipal authorities in British Columbia typically require professional certification of building plans and construction activities in certain circumstances, including multi-housing developments and difficult soil conditions. These are called Letters of Assurance.
Letters of Assurance are a representation to the municipality that the work undertaken by the professional is in substantial compliance with the B.C. Building Code and other provincial and municipal specifications, as well as the agreed-upon building plans.
A municipality’s authority to require a Letter of Assurance resides in section 55 of the Community Charter, S.B.C. 2003, c. 26, which allows a council, by by-law, to require applicants for building permits to provide the municipality with a certification by a qualified professional that the plans submitted with the permit application, or specified aspects of those plans, comply with the then current Provincial building code and other applicable enactments.
Section 290 of the Local Government Act, R.S.B.C. 1996, c. 323 states that a municipality will not be held liable for any damage, loss or expense caused or contributed to by an error, omission or other neglect in relation to its approval of plans submitted with an application for the building permit if the plans have been certified by an architect or engineer. In other words, the legislation attempts to offload liability for negligent construction from municipalities onto design professionals.
Further instructions are laid out for the “registered professional” in the British Columbia Building Code, which stipulates that a registered professional who is retained to undertake design work and field review and is required to write a letter of assurance must place his or her professional seal on the plans submitted in support of the application for the building permit after ascertaining that they substantially comply with the British Columbia Building Code and other applicable enactments respecting safety.
The registered professional must not submit a Letter of Assurance before ascertaining that the components of the project substantially comply with the plans and supporting documents and the requirements of the British Columbia Building Code and other applicable safety enactments. The registered professional must also ensure that all necessary field reviews are properly completed.
Although there is little case law pertaining to liability against a design professional for incorrectly certifying a Letter of Assurance, it follows that liability may be found against a design professional where he or she has not adequately inspected the work that he or she is giving assurance for, or chooses to certify despite detecting deviations from the plans, specifications or building code. Put otherwise, whether a design professional has certified Letters of Assurance in connection with a project will most likely be a relevant consideration in most negligent field review claims.
i. McLachlin, The Canadian Law of Architecture and Engineering, 2nd Ed. (Butterworths: Toronto, 1994), p. 101; York Condominium Corp. No. 76 v. Rose Park Wellesley Investments Ltd. (1984), 48 O.R. (2d) 455 (Ont. H.C); R.W. Tomlinson Ltd. v. Trow Ontario Ltd, (1995), 26 C.L.R. (2d) 37 (Ont. Gen. Div.), Grant v. Dupont (1901), 8 B.C.R. 223 (C.A.).ii. Leslie R. Fairn & Associates v. Colchester Dev. Ltd., (1975), 11 N.S.R. (2d) 389; Sherwood Park Professional Building Ltd. v. Scandinavian Management Services Ltd. (1982), 40 A.R. 233 at 240 (Q.B.). iii. see note i. iv. Dabous v. Zuliani (1974), 6 O.R. (2d) 344 (H.C.), Neisner-Kratt Enterprises Ltd. v. Building Design 2 Ltd., (1988), 63 Sask. R. 26 (Q.B.). v. Auto Concrete Curb Ltd v. South Nation River Conservation Authority, [1993] S.C.R. 201.
vi. Neisner-Kratt Enterprises Ltd. V. Building Design 2 Ltd., supra.
vii. Willis, Cunliffe, Tate & Co. v. Harmony Estates (1977) Ltd., (1984), 11 C.L.R. 154 (B.C.S.C.).
viii. Carle de Wilde Contracting Ltd. v. Thomas (1990), 38 C.L.R. 240 (Ont. H.C.J.).
ix. Doe v. Canadian Surety Co., [1931] S.C.R. 935 at 946.
x. McLachlin, The Canadian Law of Architecture and Engineering, supra, note 1.
xi. Roco Dev. Ltd v. Permasteel Engineerings Ltd. (1983), 46 B.C.L.R. 103 (B.C.S.C.)
xii. Homes by Jayman Ltd. v. Kellam Berg Engineering & Surveys Ltd. (1995), 20 C.L.R.
(2d) 161 (Alta.Q.B.).
