design responsibility: what difference does it make? a coste nw

Design Responsibility:

What Difference Does It Make?

A CostE NW Inaugural Lecture

23 January 2013

Paul Tracey

All rights reserved. Copyright of Paul Tracey 2013

What Is Design?

Depends upon the context within which the term is used.

Communication of a concept, idea or process.

Manifests itself in sketches, plans, drawings, specifications,

BIM model and/or other contract documents.

Determining feature of design in construction is that it

involves exercising a selection or choice.


Who Has Responsibility For The Design?

Possibly the most fundamental consideration on any

construction project is to understand where responsibility for

design rests.

Depends upon the form of contract.

Express and implied terms.


Who Has Responsibility For The Design?

Designer: Architect, Engineer or Contractor.

Design only: ordinarily duty to use reasonable skill and care.

Reasonable skill and care: Bolam v Friern Hospital

Management Committee [1957] 1 WLR 582


Reasonable Skill And Care

Duty of care imposed on a professional: Designer,

Construction Manager, Building Surveyor, Project Manager,

Cost Engineer or Quantity Surveyor.

Reasonable skill and care: Bolam v Friern Hospital

Management Committee [1957] 1 WLR 582


Design And Build Is Fundamentally Different

Physical Product

IBA v EMI and BICC House of Lords (1980)14 BLR 1

Sections 4 & 13 Supply of Goods and Services Act 1982


Excluding A Fitness For Purpose Obligation

Fitness for purpose can apply as a consequence of:

An express term of the contract.

A term implied by statute.

A term implied as a matter of law.

The potentially difficult position of a design & build

contractor in the absence of an express limitation provision.


Fitness For Purpose

Absolute obligation to provide a product which is fit for purpose regardless of any failure on the design and build contractor’s behalf.

Using reasonable skill and care will not be a defence.

Professional indemnity insurance & cover for a fitness for purpose obligation.


Design Provisions & Standard Forms Of Contract

JCT SBC/Q 2011 Contractor’s Designed Portion (CDP) & JCT DB (Design & Build Contract) 2011

Design Liabilities and Limitation: See clause 2.19.1 of JCT

SBC/Q 2011 and clause 2.17.1 JCT DB 2011.

“The Contractor shall …have the like liability to the

Employer… as would an architect or, as the case may be,

other appropriate professional designer…”



NEC 3 2005 clause 21.1:

“…The Contractor designs the parts of the works which the Works Information states he is to design...”

Secondary option clause X15: “…The Contractor is not liable for Defects in the works due to his design so far as he proves that he used reasonable skill and care to ensure that his design complied with the Works Information…”



FIDIC Contracts (Yellow, Silver and Gold)

Yellow book for plant design and build, the silver book for

turnkey and gold for DBO all contain an express obligation

that the:

“Works shall be fit for the purposes for which the Works are

intended as defined in the Contract”



IChemE Red Book 4th edition Clause 3.4

“…the Plant as completed by the Contractor shall be in every

respect fit for the purpose for which it is intended as

defined in the Specification…”

IChemE Yellow Book 3rd edition has a similar provision



IChemE Burgundy Book 1st edition & Green Book 3rd

edition do not include express fitness for purpose obligations.

IChemE international contracts do not include an express

fitness for purpose obligation.

Likely that the 2012 editions due to be published in 2013 will

likewise not include an express fitness for purpose obligation.All rights reserved. Copyright of Paul Tracey 2013

What Difference Does It Make?

Design & Build Is Fundamentally Different: Implied Fitness

For Purpose Obligation In Relation To Design.

Absolute Obligation.

Express Terms Can Reduce Obligation To Reasonable Skill

& Care. Clearly Allocate Responsibility For Design.

Managing Risk And Limiting Liability.


design responsibility: what difference does it make? a coste nw

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