Whose fault is it anyway?

In the recent case of Midlothian Council v Bracewell Stirling Architects and others, a local authority raised an action against the architect, ground investigation consultant and environmental consultant involved in a new-build social housing development. The action arose out of losses suffered by the local authority when the development of 64 houses in Midlothian became uninhabitable due to the ingress of gas from disused coal mine workings.

Under the terms of its appointment, the architect was responsible for carrying out any site investigation works as might be necessary. Unusually, the architect was also to use reasonable endeavours to include reference to those site investigation works in a build specific agreement applicable to each development site. In addition, the architect was to be wholly responsible for the investigation works referred to in the build specific agreement, irrespective of any sub-consultants or contractors appointed. A further clause of the appointment provided that, without prejudice to the architect's responsibility for sub-consultants that it appointed, the architect was not responsible for services provided by any other party appointed by the local authority.

The ground investigation consultant had been separately engaged by the local authority through its principal engineer to produce a report. The report stated that the risk of ingress of gas was low and did not recommend the use of a gas defence system. The local authority had appointed the environmental consultant directly in respect of the development.

The local authority's position was that, due to the terms of its appointment, the architect was responsible for any negligent act or omission of other consultants or contractors in relation to the need to design and install a gas defence system at the development.

The court considered that the natural and ordinary meaning of the terms of the appointment read with the other relevant clauses and the application of business common sense did not support the local authority's interpretation of the architect's appointment. The court found that it would be a striking departure from ordinary legal principles for the architect to be liable for a breach of contract committed in relation to site investigation works by any of the local authority's other consultants or contractors and the action against the architect was dismissed.

This case is an interesting examination of a lead consultant's role, in this instance the local authority clearly thought that the architect was responsible for all investigation works, no matter who carried out those works. This was held not to be the case; the court described such an obligation as "unusual and onerous". This case confirms the principle that a professional is ordinarily only responsible for its own work, or work directly instructed by it. Clear and careful drafting in the appointment documents would be required if parties intended to make a professional responsible for services performed by others.