Construction design has a fundamental impact on the outcome of construction projects, in terms of performance, dispute management and managing liabilities for design in construction contracts.

Many contractors often carry design responsibility, under the contract, in excess of ‘reasonable skill and care’. In practice, contractors that undertake design completion are obliged to review and validate existing design concepts. Implementation of a design, rather than the design itself can also lead to liability. As such, while there maybe no expressed design obligations under the contract, there maybe a duty on the contractor to raise ‘reg flags’ on design issues that may effect project delivery, performance and overall expected outcomes in terms of time, cost and safety.

The different standards, often outlined in the technical documents at bidding stage can include an obligation to use ‘reasonable care and skill’ on the one hand and to achieve ‘fitness for purpose’ on the other hand. In the case of Hojgaard, the court found Hojgaard was itself responsible for design defects, eventhough it had met its obligations around reasonable skill and care and complied with industry codes where relevant. The courts findings revolved around a design life requirement outlined in the technical documents. The impact of this court decision cost millions of pounds and a lengthy litigation process.

Simarily, in the case of SSE V Hochlief, where Hochlief, despite being found to have exercised reasonable skill and care in its design, was found responsible for design defects. Again, a design life requirement in the technical document supported the court decision, coupled with the fact that the activity in question was found to constitute ‘implementation’ of design rather than the design per se.

In effect, contractors have an obligation to review not only the contract conditions, but also the detailed schedules and technical documents to minimize risk and to understand their obligations under the construction contract. The detail is often captured in subjective requirements like delivering ‘world class’ and ‘satisfactory’ for instance. As such, these wordings can be a breeding ground for disputes in construction contracts.

Background

Different scholars have focused on the issues impacting the legislation concerned with construction and design issues. Different studies describe the need for the design culpability in construction. Furthermore, a few studies have focused on investigating digital culpribility in construction contracts. Despite the importance of design liabilities in construction projects, design culpability has not received much attention over the years.

A review of the different cases that have arisen over the years suggests that more focus should be placed on design culpabilities. The cases suggest that the lack of focus on the requirements of the designs and any party associated with the blame have been seen to be the main reasons that impact the construction contracts and result in legal cases. The need for contracts can be seen from the success they showcase and how they impact the cases that arise from design issues in construction. Researchers have suggested that the focus on making the construction contracts more explicit and focusing on every element is the best way of minimizing construction disputes.

Rationale

From a contractors perspective, understanding what level of responsibility they will undertake with regard to design under the contract is of critical importance. This impacts on the level of professional indemnity insurance cover, and is often difficult to quantify taking the terms of the contract and design obligations which are implied by law into account.

Where contractors use design consultants, the contractor must establish what level of responsibility the law impores on professional design consultants. In fact, design consultants are obliged to provide ‘reasonable care and skill’ and not guarantee project outcomes.

The duty of care and skill is established under Section 13 of the supply of Goods and Services Act 1982, and the common law test for negligence.

However, in other cases, the contractor is responsible for the design and construction, under the contract, and in some situations responsible for the maintenance and operations. For instance, Private Finance Initiatives (PFI) projects in the UK.

The matter becomes increasingly more complex when you consider that the construction (Design and Management) Regulations 2015 (CDM) defines ‘designers’ to include, ‘any person (including a client, contractor, or other person referred to in these regulations) who in the course of furtherance of a business:

Prepare or modify a design, or
Arrange for or instruct any person under the contract to do so.

The regulations detail that the design can include, ‘drawings, design details, specifications, and bill of quantities (including specifiactions, or articles or substances) related to a structure and calculations prepared for the purpose of a design.

As such, the scope of design is vast and involves multiple stakeholders including architects, consultants, surveyors, contractors, sub contractors, and the client themselves. This dissertation is more concerned about who takes the ultimate design risk responsibility, and investigates design culpability in construction contracts.

Problem Statement

The study’s main problem is the number of cases resulting from construction disutes going before the courts. Design conflicts are common among construction projects due to the difficulties of establishing design liabilities. Focusing on and investigating these issues will create a key understanding of the different ways that the issues could be managed by contractors. Another key issue is the vagueness across construction contracts legislation and policies. The Sale and Supply of Goods Act do not entirely focus on the issues resulting from construction design.

Research Aim

This research paper investigates design culpability and describes the issues, challenges with regard to design liability, and improvements that could be included in future construction contracts and the need to properly outline the liability spectra.

Objectives

The objectives described below are essential in guiding the flow of this dissertation. Aiming to achieve each of these objectives will be essential in determining the research paper’s success. The objectives of this study will be as follow:

Reviewing construction contracts and design liabilities
Assessing critical parties’ responsibilities in designing and building contracts.
Reviewing construction contract case laws on the design responsibility delineation.
Assessing views of firms and project stakeholders about contract design culpability.
Using developed guidance to understand construction design responsibility.
Describing further improvements that could be included on current design culpability.

Expected Results

The study’s success will ensure that the objectives described above have been accomplished. The dissertation will also showcase the importance of contracts to incorporate precise aspects. Assigning proper responsibilities to the stakeholders will effectively describe how construction contracts should be drawn. The dissertation will also showcase the need for outlining design liabilities in construction contracts. The government may thus be recommended to include a change on the available laws focusing on design culpability and implement improved laws to reduce disputes.

Research Design

The research design is a key part of this dissertation. The research study will follow a qualitative research methodology. This means the study will analyze different studies focusing on design culpability, understanding design liability under UK law and various forms of construction contracts. The research study will also focus on different case laws to support the understanding. The different case laws will explain the reasons for the the uncertainty around design liability and the subsequent disputes. Case laws, different legislations, and studies focused on construction contracts and design liabilities will be relevant to providing results for the study. The study will include a qualitative research design to investigate design culpability and understand the perspectives of key stakeholders.

Significance of Study

Different benefits result from accomplishing the study. The main benefit of the study is how it ensures that construction conflicts can been reduced by creating an awareness among key project stakeholders.

Chapter 2: Literature Review

2.0 Introduction

A critical analysis of the aspects involved in design culpability in construction contracts is described. The different concepts associated are relevant in the study. Different publications and case laws are also critically analyzed to better understand construction contracts. The review could be described as essential in providing a background on the research study. An analysis of the construction projects with design conflicts is provided through the chapter to showcase the challenges which are currently available in construction contracts. A background on construction contracts and the different laws associated with design culpability will also be described. Each area of focus will be relevant in providing a better conceptual framework of the research question. The different sections described below are thus relevant to the research study.

2.1 UK Construction Laws Associated with Design Conflicts

Different countries have different laws associated with their construction. The laws in construction are essential in avoiding different concepts and issues. Design guilt is among the different areas that are avoided through construction laws. Construction law is huge and involves a great number of concepts. Some of the areas under construction law include infrastructure, design, housing, planning permissions, construction and engineering, and any conflicts that may arise from any of these areas. Contracts formed must follow each of these areas to make them legal. The contracts associated with construction are also regarded as being binding.

The construction law can be divided into two categories. The first category is the non-contentious work. This category describes the different negotiating contracts and procurement involved before a building has been constructed. This category could be described to only focus on the different laws associated with the project before any work has begun. Any planning process and permissions included are all associated with this category. The different processes involved in the planning process are all relevant in ensuring the project’s success. Carefully accomplishing the different aspects before the construction has begun ensures that no challenges are faced by completing the project. The non-contentious branch of construction law is as important as the following branch. Understanding the laws associated with the non-contentious branch is thus important in ensuring the success of any construction project.

The non-contentious laws associated with construction are also focused on the contracts between different stakeholders present. The contracts drawn are involved in planning any issues that might arise through the project. Contracts could be described as being an important part of this stage. The non-contentious laws ensured that contracts drawn were binding and considered different scenarios. The contracts are also supposed to focus on design culpability associated with the project. Various construction projects result in disputes. This means that contracts and culpability sections have been included to easily resolve conflicts. Having a contract that provides a key understanding of which party is associated with any problem is essential in ensuring the entire project has easily been achieved. Non-contentious laws could impact all the stakeholders involved in a project. The stakeholders associated with these projects are always required to develop these contracts and how they might be affected if a conflict arises.

The second category associated with construction laws is the contentious branch of law. This branch is also relevant in ensuring the success of a construction project has been achieved. The contentious laws are very different from non-contentious ones since they apply after a conflict has developed. The different regulations and procedures drawn are created to minimize the time wasted or the costs associated with the conflict. This aspect makes the laws relevant in ensuring that key solutions have been obtained without wasting time. The contentious category does not always have to follow the different laws present but could be an agreement between the parties present. All the parties participate in drawing a solution that will be more effective towards the project.

In the case of a design conflict, an issue that has developed could be resolved through available contention laws. The parties present would have to agree on which party to blame to continue with the project. This solution avoids the courts, which may take more time than required. Finding a solution without the courts is regarded as an effective method. Playing a key part in the design conflicts also suggests an important part of the overall analysis of design culpability in construction contracts. Such cases are always resolved through adjudication. The failure of any results always pushes the case to the courts, which can conclude regarding the party responsible for the design conflict or issue. A special barrister is always included in courts to ensure the entire process has gone smoothly. This makes the courts able to come to a solution for the construction project.

There are six sections associated with the construction laws in the country. Contract law is the main law associated with construction. Any conflicts that result in construction can always be avoided through contracts. The design guilt can also be resolved if a contract is available. The contract law describes the legislation covering the agreements and arrangements between parties. Construction always involves different agreements between different parties. The contract provides basic repercussions and regulations that have to be followed to ensure the project’s success has been achieved.

The next law associated with construction in the UK is the Law of Tort. The law of Tort in the UK resolves any civil conflicts that might result from contracts. Addressing the civil wrongs in contracts makes this law a huge part of this study. When design conflicts arise, the law of Tort plays a huge part in suggesting different solutions that could be followed to ensure the courts have found a solution to the despite that has risen. A judge is required to provide judgment regarding this law when civil wrongs have occurred. Contractual obligations are greatly considered in such a scenario. This law could thus be described as being effective in understanding design culpability in construction. Its focus on conflicts makes it relevant in construction and essential for developing construction contracts.

The next law associated with construction and design conflicts is Criminal law. There are different laws included in criminal law. Criminal law is very important in the country. Several acts and omissions are described as being criminal activity under English law. These laws play a significant part in ensuring that people have not behaved in certain manners. It involves various regulations included to protect the public. Criminal law is a huge part of construction law since it provides key regulations on certain actions that should not be followed. This makes criminal law to be an essential law in construction.

The Law of restitution is also largely associated with construction. This law focuses on rewarding any claimant in the court of law. In the case of a design conflict, the claimant is rewarded a certain aspect by the other party. Different factors are considered before any reward has been provided. This makes the law of restitution hold great importance in construction laws. The law of restitution is heavily included in the construction industry since it ensures that conflicts have been resolved and the parties which had been affected have been provided with certain compensation.

Other than the laws and legislations described above, other procedures and policies are associated with the construction industry. Any construction project is always required to follow these procedures and policies to ensure fairness in the industry. These policies are also included to ensure that the public has been protected. Some construction sites also have different rules associated with these regions. Some areas require a maximum length of a certain building, while others require certain types of buildings to be included. Other laws are also focused on the well-being of employees associated with construction projects. The breach of statutory duty ensures that individuals injured from the constructions have been awarded. The statute ensures that a person who endured has the right to make a civil suit. Having the different policies and laws available ensures the industry is well structured and design conflicts or any other conflicts have been resolved.

The different laws associated with design conflicts and other conflicts in construction ensure that people are protected in the construction projects. Design culpability is mainly resolved through different construction laws. The six laws described above are thus essential in understanding design liability. The judicial courts can decide construction conflicts through the laws described above. The laws described above also ensure that contracts associated with construction have been governed. Each law mentioned above thus plays a specific part in ensuring that the contract has been made more binding and ensures that conflicts that arise have been resolved. Developing the contracts while following the laws described above ensures the contract has become more effective in resolving conflicts properly covered by the law. More details about construction contracts and associated laws are described below.

2.2 Construction Contracts

Contracts play a huge part in the success of construction projects. There are different types of contracts associated with construction. The contracts ensure that responsibility and clarity have been provided to the different stakeholders outlining party’s rights and obligations under the contract. The agreements included through the contracts are always legally or mutually binding.

There are different contract models with the construction industry. These types of contracts include lump-sum contracts, re-measurement contracts and cost-reimbursement contracts, where each contract type has a different risk and reward level.

One of the most common construction contract designs in the UK is the JCT. This type of contract has been studied to reduce the issues resulting from construction conflicts. However, the JCT has been considered to be somehow biased in regards to the pro-contractors. The contracts are popular because they are readily available to any individual. They assist individuals who want to agree with someone in construction. The design of these contracts has brought different discussions and criticism because of their effectiveness and limitations, respectively. They are very popular in the UK, where they make an average of 45% on the average market.

Despite the different criticism on the contract’s design, they have been regarded as effective because they hold the clause for avoiding conflicts resulting in design. The issue of design in the JCT contract makes it an effective contract to analyze to understand the issues of design culpability. This contract’s overall focus provides more details on the number of clauses that ensure design culpability has been handled more effectively in contracts.

The main clause focused on design is 2.17.1 of JCT. This clause describes that the contractor is supposed to deliver any design as per the request offered by the owner. The contract proposals are also considered binding documents based on which the contractor should base their design. Promising to build the building in a specific design means that the building should also be developed with the same idea. The JCT clause 2.17.1 thus indicates that any liability included in the design of the building should be placed on the contractor. This clause is legally binding unless otherwise changed by both parties involved. The clause focuses on different aspects that require a certain design. Having promised a specific aspect requires that the same be offered within the design. A contractor should always provide the same results they promised in their proposal.

The SBC contract, Standard Building Contracts, is also very applicable in construction contracts in the UK. The contracts have largely been adopted across the nation because of the different clauses which are legally binding in the courts. The SBC/Q clause 2.19.1 also focuses on the design issues that might arise from a contract. The clause indicates the different contractors designed liabilities. All the culpabilities associated with the design are mentioned in this section. The liabilities explain who is responsible for any design issues after the project. Lupton, however, describes that the clause is not as biding since the terms are used to override what is expected. However, the clause is described as relevant in any disputes that arise.

Although the contract is regarded as binding, there is a need to ensure that difference. There has also been a need to ensure the contractor’s engagement has been achieved across the project. The effectiveness of the 2.19.1 clause ensures that the contractor has been able to provide the same result that was promised. The clause ensures that designers can achieve the same design promised. The professionals are held on a stronger spot to achieve the design promised. However, the clause also protects the designer because they are supported by law to showcase their effort into work. The clause could be described as focusing on ensuring that a contractor or designer cannot suggest that anyone else is to be blamed for the design issues.

SBC/Q document clause 2.19.1 is thus relevant in ensuring that the design culpability issues in construction have been resolved. The design and construction phases are protected through this clause. The designer and contractor are also protected regarding the culpability of the design. Ensuring that the design has been made responsible for one party ensures a party responsible for the design issues resulting. The construction issue is liable to the contractor, while the design issue is liable to the designer. Several cases have showcased the need for such a clause and its relevance in construction cases.

The employees in the construction industry are also protected under a section in the same clause. The section describes the employees as being under the contractor, meaning that they are responsible for any issues in any conflicts that arise. The contracts could be described as having key importance in ensuring those issues have been mitigated and any issues that may arise have been avoided. The above clauses ensure that the entire construction project has continued without any concerns and that any design culpability has been resolved mutually.

Besides the contracts described above, several regulations regarding the design liability are followed. The parties with design culpability are required to ensure that they have followed different levels of care to ensure that they have avoided conflict or reimbursement of the mistake made. Contracts may also result in the different parties being subjected to an absolute obligation that requires that the design achieved is fit. However, some contracts are not strict as described above and only require that care has been achieved. Contracts could be described as being largely focused on completing the design without any issues and that the designs are working. Design liability across contracts is thus an essential clause to include. It achieves minimal design conflicts and ensures that minimal mistakes have been achieved. The need for a contract in construction could be described as being a required aspect. Different parties are protected through such contracts, as showcased below.

2.3 Design Culpability Cases Analysis

Several cases have resulted from issues of design and its liability. A review of these cases provides a better understanding of how different contracts and parties are associated with conflicts in design. The Cooperative Group Ltd v John Allen Associates Ltd [2010] case is a good example of a case that involves design culpability issues. This case was focused on determining whether the professional engineers in the project had acted in negligence. Negligence is important in determining whether the designers could be held responsible for the damage achieved. Determining whether the Cooperative Group Limited had suffered as a result of John Allen Associates’ negligence was essential. It made it possible to understand who was responsible for the issues affecting the supermarket floor which had been built.

The court described that JAA should be held responsible since they do not divest themselves from responsibility simply by enquiring advice from someone else. Acting reasonably in requesting assistance from a professional was the only way to discharge their responsibilities. The court thus agreed that it had different factors to consider in such a case. The main considerations made by the court would be whether the advice was from a specialist, whether it was reasonable to seek advice, whether issues that arose were provided to the client, and whether the client was notified of the advice. The courts found that JAA was not responsible for the design faults associated with this project by considering these aspects. Reasonable care and skill had been included when asking for the advice meaning that the group did not act in negligence. This resulted in them not being considered responsible for the design failure. A better method described from the case was that a clause in the contract is the most reasonable method of ensuring that the specific conflict would not have risen.

Another case resulted from the issue of Moresk Cleaners Ltd v Hicks. The case involved a situation where the plaintiffs employed the defendants’ architects to develop an extension of their business. After the defendant’s design was defective, the architect sought another party’s advice on the design process. The defendant’s argued that there was a need to delegate the design issues since they had no specialty in achieving this design. They also argued that the contract allowed them to seek guidance from other subcontractors. They also indicated that they had requested the plaintiff for the chance of acting as an agent towards contacting another party for the design process. These issues were all described as the main reasons that impacted the design issues arising. The court, however, disregarded all the arguments provided by the defendants.

The court dealing with the case described that the argument could not be accepted since the architect was not given any power to delegate the employment of a third party for the project. The court described that an owner who has provided a certain task to an architect has the right to look to the architect when something has gone wrong in this case. The plaintiff had the right to look to the defendants regarding design culpability. The court described that the architect did not have any right to delegate for the third party. Having borrowed permission would have ensured that the defendants’ arguments had been accepted.

The Moresk Cleaners Ltd v Hicks case resulted in the understanding that when an architect could not perform a task, they needed to borrow permission from the owner. The architect could also employ a specialist himself and ensure that the liability has still fallen for the architect. This factor thus showcases that the court does not accept the idea of disposing of work or requesting work from a specialist. The court is always concerned with the main parties associated with signing the contract.

Different cases suggest problems resulting in contracts. Most of these problems go to court to achieve Tort. The case of R M Turton & Co (in liq) v Kerslake & Partners is a good example of a case aimed in Tort for negligence. This case is a good example despite not being from the country. The two parties present had entered a deal where R M Turton was required to install air conditioning units to a building that Kerslake was managing. However, the installation resulted in Turton requiring to spend $75000 more as a result of the conditioning units that were installed not being strong enough for the building.

The case was focused on the duty of care between the two parties. The court, however, found that Kerslake was not in breach of the duty of care. There was no clause indicating that Kerslake had breached their contract. The case suggests the key importance to include a clause for duty of care in construction contracts. This clause is important in ensuring that the law of Tort has afforded any breach. RM Turton is a good example of different cases that have been lost due to the contract not being specific enough. The judge, in this case, described that the existence or nonexistence of duty is always fact dependent. This means that there is a huge importance of including clauses that ensure each aspect has been considered to minimize design conflicts in the end.

The case of Greaves and Co (Contractors) Ltd v Baynham Meikle and Partners is another good example focused on the way designers are supposed to act in construction projects. The case involved a claim of Tort law where reasonable care was not practiced. The case involved the engineers who were contracted to build a warehouse to store drums of oil. There was the need to construct the warehouse and ensure that the forklifts could easily be moved around. However, the main contractor made a claim based on the fact that the building first floor started getting cracks after a year’s use. The case involved resulted from the fact that the contractors were arguing on the need for the engineers to not have built a standard design for its use.

The arguments used in this case were focused on the negligence and duty of care provided by professionals in any task or objective. Lord Denning, who was the main judge on the case, made this with the idea that the case could be applied similarly to the employment of any professional man. Samuel v Davis 1943 was cited with the main indication that a dentist must offer services that make the client happy. The case was cited with the indication that there is a need for a professional to ensure that the work provided has been provided with a warranty or guarantee of success. Platform Funding Ltd v Bank of Scotland Plc. (Formerly Halifax Plc.) CA 31-Jul-2008 was also cited to indicate that a surveyor was supposed to provide a valuation of a property that was correct. Not providing such a case required a certain warranty that each aspect was considered.

The different cases analyzed above all suggest that the idea of design culpability is considered through various aspects. The contract is among the main factors that ensure that the conflict has been resolved. The different civil cases described above also suggest that a duty of care clause is essential in ensuring that the case has been resolved. The law of Tort can also be seen to apply in some cases where the employer or owner receives certain remorse on the damages, they have endured. The next aspect showcased is that design culpability is mainly a result of more parties getting involved. This suggests that most design culpability scenarios result from more parties being associated with the task. The cases also provide overall background knowledge on design culpability in construction contracts. The contracts provide more information on how the cases are resolved as well. The case analysis also indicates that the UK law effectively solves issues dealing with design culpability. The citation of the different cases showcased above also provides a better chance of being fairly judged.

2.4 Design liability from contractor perspective

According to Lingard et al., (2015) design responsibility refers to the obligations that are enforceable at law which also comes from the performance or the failure for one to perform the professionally designed services. In the traditional contractual relationships, this would ensure that the client who enters in two separate contracts for the construction and design phase is verified. In most cases the modern tendencies will see a mean towards the design and bespoke and building contracts, where the contractor is going to be burdened with the obligations for construction and designs. In Bolam v Friern Hospital Management committee the case confirms that It is essential of professional designers to exercise “reasonable care and skill:” The criteria of the ordinary skilful man exercising and claiming to have that particular specific ability is used to determine whether or not there has been negligence in a given scenario. It is not necessary for a guy to possess the highest level of expert competence; it is adequate if he exercises the average skill of a competent man who is not an expert within this particular art. Also in Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners Greaves & Co (Contractors) Limited v Baynham Meikle The structural engineers were held liable for a greater standard of care as a result of an implied contractual obligation that required the design to be suitable for the function for which it was intended. However, if this word had not been used, the engineers would have been liable for negligence, since they would have failed to exercise reasonable skill and care in their capacity as qualified, professional persons. Consequently, it should be stressed that assumptions cannot be made about the implied responsibilities of the designer, such as when it comes to professionals, the law does not normally need them to provide a warranty that they will accomplish the intended result, but just to promise them that they will exercise reasonable care and expertise. The surgeon makes no assurances that he will be able to cure the patient. The solicitor also makes no representation as to whether or not he will win the lawsuit.”

Also Kalach et al., (2018) informs that the contractor as the basic point responsibility for the work design and with no authority to delegate the work’s items, then he is going to be personally responsible for all the defects as it was also held in the case of Morest Cleaners Ltd v Hicks When a consultant agrees to design work that has progressed into areas for which they do not have the requisite knowledge or abilities to complete to the needed level of detail, they are confronted with a dilemma. An architect who does not have the capabilities or expertise to complete a portion of a design job has three options: refuse the commission entirely, persuade the employer to hire a specialist for that portion of the work, or hire and pay for a specialist as for myself with the knowledge that any responsibility for defective design can be passed along the chain of contracts. Specifically, an architect was hired to draft specifications and drawings for an addition to Moresk’s laundry, which was later approved. When a claim was brought against the architect in court, he asserted that there was an implied condition in his contract that he had the ability to delegate design work. Alternatively, if a professional is hired to carry out design work and approves the contract, he is confirming that he is capable of performing those services himself. The court determined that no such implied condition existed within the contractual arrangements and stated that, if a building owner entrusts this same task of designing the project to an architect, he has the right to look to that architect to ensure that the construction is properly designed in accordance with the contract.

Based on the evolving nature of construction projects and construction technologies, that have continued to realize the speciality and complexity there are increased chances that employers are going to provide the contractor authority to delegate work. In doing so this will lead to an increase on dependency on contractors at both the construction and the design stages of the projects. In Cooperative Group Ltd v John Allen Associates Ltd the contractor made a consideration of the designer’s reliance including guidance from another professional aspect, the contractors did not by the basic act of obtaining design or advice from another party thus they were able to divest themselves of their duties in regard to the design or advice. The case continued to review Merton LBC v Lowe & Another Construction companies could discharge their responsibility to exercise reasonable care by depending on the opinion or design of an expert if they acted fairly in doing so. This is in contrast to the decision in Moresk, which ruled that when entrusted authority, they had a duty of care to respective employer. This however, does not make the contractor liable for any defects in regard to their specialty, however if they will negligently recommend the use of their skills, they are going to be potentially liable for the losses of their employer. In the case of Pratt v George J Hill Associates it was discovered that that the architect was liable after he claimed that the contract was suitable even when in practice they really were not. Due to this, the contractor was insolvent and the architect was thus liable to the client especially for the money that they were not in a position to recover from the contractor because of their recommendation.

2.4 Contractor role in project success

In the current construction contracts, the design liability can be attached to the contractor who in this case is the architect or the contractor, also this can be direct towards the employer that is required to make a choice during the design. It is also possible to attach liability to the supplier especially in circumstances where they count have even imagined that they are supposed to do the design work. In this case the underlying type of contract will complicate the issue further. For example when looking at projects referred to as the ‘design-build’ where the contract is going to be liable for the construction and design of the work. Any issues that will arise from the design quality is going to be the responsibility of the contractor including any claims from the poor drawings and poor budgeting. This will rest between the designer and the contractor instead of the employer.

Most of the time, it is the employers or the building owner who initiates the process by contracting with a design specialist, whether it is an architect or an engineer, to obtain the design and construction of the facility. According to tradition, the design process begins with the signing of the first contract between an employer and the design expert. The consequence of this relationship is the design of the project, with the output being by far the drawings, specifications, bills of quantities, and other relevant documentation as the result of the interaction. Following the completion of this phase, the employer enters into a second contract with the contractor who undertakes to construct the building in line with the architect’s or engineer’s design specifications. In the following months, the designer will either oversee the construction or function in an administrative capacity until the project is completed and “turned over” to the employer.

In both these forms of contractual arrangements, there are numerous variations, including the more recent “design-build-operate” arrangement, in which the contractor not only designs the initiative, but also builds that and then operates it for a specified number of years before returning it to the employer. The architect designs the project but allows certain expert sections to the contractor, who then obtains further specialist subcontracts to “design-build” particular portions of the project, such as air conditioning. It is always a good practice to identify exactly who is accountable for what aspects of the design in order to avoid accountability finally falling on the shoulders of the wrong person.

However, this is not always a guarantee, in the case of Cable (1956) Ltd v Hutcherson Bros Pty Ltd (1969) the proceeding reported that the employer had the intention of buying a bulk milk storage including handling plant built tht included a two storage bins of 8000 tons capacity. As part of the process the employer engaged a consulting engineer that came up with drawings and specifications for each. However, none of these drawings were related to the foundations developed for the storage bins. Based on the specifications, the tenderers, irrespective of any form would come with association of specifications eated to the drawings, and will take responsibility for the erection and supply of the project”.

As part of the process the contractor submitted a tender calling fo design, supply and erection of the project in reference to the drawings and the preparations which he got from the consulting engineer. The tender was also accompanied by drawing and one of them had the foundation design for the storage bins. All of these were modified in respect to the consulting engineer who also approved the drawings indicating the ring beam foundation. Based on the case, the contract called for the contractor to execult the works as indicated in the drawings and explained in the specifications and this was supposed to be done in a workmanlike manner. There was also another provision where in case of conflict, the articles would override specifications. However, it was later discovered that the foundations had been poorly designed and should have been created with the use of pilings. Based on this argument it was held that the contractor undertook to conduct the work in the selected drawings and not come up with a result and that the obligation of the builder was limited to completing the specified work in the manner of the workman which did not extend to making him liable for the poor designs. Also in the case of Royal Brompton Hospital NHS Trust v Hammond (No 4) the court looked at whether one of the contracting engineers and the subcontractors of Hammond was obligated to come up with coordinated drawings indicating the interellation of electrical, pipe and other work at the site to ensure that the main contract complies with it. According to the argument, their engineer and subcontractor obligation was to provide the drawings before the tender and since they did not do so, it means their duty was to ensure they provided with reasonable diligence instead of being obliged to practice with reasonable skill and care in drawings supply. Based on the case it was held by the court that they two were obliged to provide the drawings under reasonable skills, diligence and care in time for Hammond to prepare the installation drawings and complete the main contract.

Based on the above review, it is important to differentiate the designer and liability; thus one is left with the need to decide who had a duty to guarantee reasonable care and skill. There are situations where the designer will be put under duty to ensure that the design is reasonably fit for the required purpose. This is also another strategy for saying that they are going to guarantee the results will be realized. There are however, other situations where th designer is supposed to use reasonable skill and care in establishing the designs, and so long s the designer will realize this, there will be no liability in the event that the underlying concepts are not realized.

2.4 Contractors duty tort versus contract

There are also situations where design experts may be held accountable to their clients and third parties for harm and loss caused by a breach of contract and/or carelessness on the part of the designers. Moreover, any anyone, such as a contractor, who acts in a “design capacity” will be held accountable under the same standards as those set forth in this section of the Code of Civil Procedure. The first point to consider is whether any alleged damages stemming from alleged carelessness are recoverable under the terms of the contract in question. Unfortunately, there are some circumstances in which a damaged party will be unable to bring a claim for breach of contract, such as when there is no direct contractual relation, when the guilty party has become bankrupt, when the limitation period has expired, and so on. In these instances, a claim for negligence must be considered in addition to any other claims.

Generally, in order to establish a claim for negligence, it is necessary to demonstrate that the defendant had an obligation to the claimant to exercise reasonable care, that the defendant’s conduct fell below the standard of care as a result of the breach of the duty owed, but that there was a causative link between the defendant’s conduct and any damage suffered by the claimant. But, more specifically, what is the obligation of reasonable care that is required? We must emphasize that, in the case of real bodily injury, the only requirement is a reasonable expectation that the harm will occur as a result of the defendant’s activities. In the context of construction, claims can emerge for both physical and economic losses, and it is in this area that the courts have attempted to strike a balance over the course of the years.

The issue can be realized in a case where while trying to further increase the designer liability beyond reasonable care and skill, the implication of the term of fitness for purpose in the designers retainer will often been seen as highly unusual when all that the designer is supplying professional designs and advice. In Greaves & Co v Baynham Meikle & Partners, it was held by the court of appeal that the fitness for purpose may apply however is dependent upon the facts of the case. Based on the case, Greaves entered ion a design and build contract with a client in constructing a warehouse , they later subcontracted the design for the warehouse to Byanham Meikle which is also a firm of structural engineers and ensure that they where made fully aware of the purpose of building th warehouse that include moving of the first floow oil drum storage by forklift trucks. Designs of the warehouse by byanham Meikle did not however take in to account the vibrations that were cuased by the forklift trucks which led to the failure of the concrete floor. This made Greaves liable to the client for this failure where the client also sued Baynham Meikle for the cost to replace the damaged floor. It was then held by the court that Meikle were negligent meaning they were also laible. The court also went on to state that even with no evidence of negligence on the side of the consultants, they would still be liable since the fitness for purpose obligation would be implied in their contract with Greave, but this would depend on the purpose and facts of the case.

2.6 Conclusion

Based on the foregoing analysis, it is necessary to distinguish between the duty of care owed in regard of defects in the performance of the property that is itself the subject of the work and/or service offered by an ordinary design professional and/or contractor on the one hand and the duty of care owed in respect of defects in the quality of a property which is itself the subject of the work and/or services are provided by a construction professional on the other. If an architectural or design professional is under any obligation to continuously assess its work and notify the employer of actual or potential inadequacies in the performance of its own services, that obligation will be superseded if there is an express obligation to do so. A design professional will not be under any need to review its design once practical completion has been attained unless and until something happens that would put a fairly competent designing professional on notice that it should review its design is occurring. As a result, in addition to the design professional’s obligation to execute to a reasonable standard, the contractor has an obligation to notify the employer of design deficiencies.

Chapter 3: Methodology

The chapter examines and compares appropriate research methods with a clear explanation.

Qualitative Research

Qualitative research offers insights by investigating other people’s opinions, views, beliefs, and understandings. A researcher, therefore, gathers a comprehensive overview of the area under scrutiny. Qualitative research focuses on words, is subjective in nature, and emphasizes descriptions, meanings, and experiences. Qualitative research can be exploratory or attitudinal and is also an inductive process causing the emergence of a theory. Exploratory research is commonly employed when the amount of knowledge is restricted in the surrounding topic. On the other hand, Attitudinal research is a subjective way of evaluating people’s opinions.

A common research approach commonly employed in exploring legal matters is triangulation research. Triangulation is an expansive method that involves mixed methods to eliminate the shortcomings of other techniques. In addition, triangulation enriches the results and increases the validity.

Research Design

The research design involves linking data collection methods to the research questions. Reality and validity are crucial at this stage to ensure the researcher makes accurate conclusions. This research took precautions when undertaking interview questions and analysis to maintain unbiasedness. The convergent mixed methods merged data sets to scrutinize the research problem comprehensively. Data was gathered in parallel, and the results were incorporated into the data analysis and conclusion. The diagram below shows how different data sources come together to give depth and breadth.

Adopted Data Collection Methods and Justification

A triangulation data gathering approach was used to ensure that authentic and credible data was acquired. The strategy was adopted to provide a more thorough analysis of the research. Furthermore, the strategy will aid in formulating in-depth insights and conclusions that are frequently neglected by other methods. According to previous studies using mixed methods is essential since the methods complement one another. The study employed a literature review approach to gain an insight into issues arising from design culpability in construction contracts. The study also used questionnaires and interviews to determine opinions from experts on what improvements can be made on design culpability in construction contracts.

Questionnaires are crucial data-gathering instruments that research participants fill and are widely used to gather views and opinions. According to studies, questionnaires also have shortcomings and are essential to carry out a pilot study before administering questionnaires. The study administered a pilot study to test the applicability of the questionnaires to a select sample of construction engineers.

Sample selection

There are two essential things to consider when selecting a sample: what you intend to know and from whom. The findings from the extensive literature review indicated several areas in the current legislation. The most suitable sample to use in this particular study is industry professionals who are currently working as contractors in the United Kingdom. This sample would offer insight into design culpability and provide valid and reliable data. The contractors selected in this study are frequently involved in traditional contracts with design portions and often faces challenges due to design responsibility. In addition, the contractors were carefully considered based on the methods they use in Procurement and the challenges they face.

However, using questionnaires in a study has drawbacks, one of which is that questionnaires are dependent on the sample size. As a result, the participants are responsible for the findings’ validity and reliability. The research participants’ opinions may be biased, and the survey needs to be anonymous. In addition, the Likert scale also has limitations as the participant may choose to answer a question by selecting the mid-point. Many limitations can be reduced by supplementing questionnaires with interviews and triangulating the data collection.

The questionnaires used in this study were sent to 143 different industry professionals working in the UK as contractors. Out of the 143 participants selected, 44 participants responded, achieving a response rate of more than 30%. The data was collected and recorded in Microsoft Excel, coded and statistically examined. The data were analyzed using descriptive statistics, and the standard deviation and mean were determined using a two-tailed T-test.

Interviews

Studies have indicated that interviews are important data collection methods, commonly referred to as a purposeful conversations. The interviewer needs to develop a rapport before asking the participant the questionnaires. Interviews are known to allow free flow of communication and social interaction between the participants and the researcher. The interviewer also needs to remain impartial to the participants’ responses to reduce biasness, but this does not limit the interviewer from asking for clarity when required.

Interviews are always regarded as the best way to obtain high-quality data and can be structured, unstructured or semi-structured. Unstructured interviews are without fixed questions, while structured interviews involve set questions, sometimes with predetermined answers. Semi-structured interviews are commonly used to identify the crucial topics with a specific scope to elaborate. This study used telephone interviews, which is essential since the study participants were geographically scattered. In addition, the use of telephone interviews makes the interviewee committed to the survey and offers a high response rate. The telephone interview used in this survey was unstructured in design, focusing on a general topic that is whether the participants had any comments on improvements that can be made on design culpability in construction contracts.

The use of questionnaires offered participants the opportunity to provide the contact details, provided they are willing to further participate in a telephone interview. This interview offers an insight depth to the findings on the questionnaires. A total of 12 respondents agreed to take part, leading to telephone interviews with these professionals. The participants were kept anonymous for confidentiality.

However, similar to other methods, interviews are not impeccable since they are also susceptible to biasness owing to their flexibility. The way the respondent acts and the non-verbal communication may sometimes mislead the researcher to make an incorrect conclusion. In addition, planning interview consumes time, and a limited number of participants offers limited views, which does not represent the broad perception.

The interviews results were analyzed to identify themes to depict patterns, disparities, and correlations. The interviews were recorded and analyzed. The literature review, interviews, and questionnaires were collated to ensure reliable conclusions.

When conducting research, it is essential to be aware of limitations since they impact the conclusions’ applicability and validity. The study used the triangulation method to overcome these limitations and minimize the gap to ensure the validity of the research findings. The mixed-method employed also reduces the time spent on collecting data, the cost caused by a smaller sample of the interview respondents than questionnaires participants. Availability of resources was restricted to valid and reliable sources; research reports, case law, books, and journals. The research may also be limited to subjective bias from the researcher affecting the data collected. After receiving the questionnaires, 12 participants were contacted to analyze their views and knowledge concerning the questions deeply. This step is essential as it reduces any bias that might have arisen due to inaccurate interpretation of the questionnaire’s response.

Ethical consideration

As demonstrated in many studies, research ethics is the moral principle that governs a study. These guidelines must be followed throughout the research to ensure the researcher maintains the standards and ethical principles of the research. The ethical approval for this study was sought from the University Ethical Review Board. In addition, the confidentiality of the information obtained from the participants was maintained; the participants were also kept anonymous and issued with informed consent prior to participating in the study. The researchers also ensured the participants voluntarily agreed to participate in the study.

Chapter summary

The study conducted a thorough evaluation of the available literature, and the data gathering procedures were carefully considered to ensure that the most appropriate methodology was chosen. The triangulation approach was the most suited because it decreases the study’s constraints while still contributing to valid and reliable outcomes with breadth.

Chapter 4: Data Collection and Analysis

This chapter answers the objectives and aims when reviewing the data gathered to present the results. The results from the telephone interviews and questionnaires were compiled and collated. The data were analyzed and cross-referenced to offer reigning opinions from industries’ perspectives.

Analysis of questionnaires

The questionnaire results were accurately analyzed by classifying the questionnaires into three themes that are congruent with the research objectives and aims. These themes include; the benefit of managing design, classification of design culpability, and the common issues in construction contracts. The participants’ responses were arranged according to themes to analyze the data purposefully. However, numbers and percentages were identified because the sample size was small. A two-tailed independent t-test was used to ascertain the mean value of the questions used, which was carried out in Excel to determine participants’ views. In addition, the study conducted correlation analysis to determine the relationship between the industries professional’s opinions, experience, and job roles. The ordinal scale was used to code the response, as shown below;

Profession	Experience	Opinion
Design Manager	>15 years	1. Strongly agree
Project Manager	10-15 years	2. Agree
Commercial Manager	5-10 years	3. Neutral
Quantity Surveyor	< 5 years	4. Disagree
Legal professional		5. Strongly disagree
Director
Site manager
Other

Profile of questionnaire participants

The study also documented the demographic profile of the questionnaire survey participants. The demographic profile demonstrates the survey’s depth and breadth and provides reliability and validity to the survey. Design managers made up 27.3 per cent of the 44 respondents to the questionnaire study, while Project managers made up 15.9% and Commercial managers made up 15.9%. Quantity surveyors accounted for 11.4 per cent of the total, which is close to the legal profession; directors accounted for 9.1 per cent, site managers for 4.5 per cent, and other disciplines for 4.5 per cent. Professionals with over 15 years of experience represented 50%, those with 10-15 years of experience were 9.1%, those with 5-10 years of experience represented 13.6%, while those with less than five years of experience represented 27.3%. These demographic profiles were as shown in the figure below;

Classification of design culpability

The classification of the design culpability linked to construction contracts and construction was explored with prompts; determining the understanding of liability, compliance with contractual terms and provisions, effectiveness of contractual provisions, awareness of liability, and perceptions of quality care. According to previous studies, two different design liabilities are evident, which the study participants indicated stricter provisions. In addition, most of the participants believe that the design’s requirement for fit to serve its intended purpose is stricter. This is concurrent with previous findings that the participants do not clearly understand design culpability. In addition, the results indicate a positive correlation of 0.781 associated with industry experience with an accurate understanding of the levels of knowledge.

The questionnaires also identified the extent to which design liability a contractor can be liable. The findings show that the use of care and skill accounts for most of the provision. However, because the respondents work for contractors and want to reduce design liability, this response has potential bias. A minority of the participants, on the other hand, chose a stricter liability, which is consistent with the preceding result of a lack of understanding of the distinction. The respondents were also asked if the contractor’s multiple functions are causing increasing conflicts in design construction contracts. About 42% of the participants agreed that a positive correlation is synonymous with suggestions from previous studies that the conflict is because of merging opposing roles. The conflicting opinions were also 35% of respondents who disagree that Procurement is less conflicting because of dual responsibility. The study also indicated a positive correlation of 0.567 that design managers are likely to concur that design culpability has areas on the extent of comparison to other professionals. In addition, design managers’ close relation with managing packages perhaps explains why they encounter resultant issues.

The analysis also revealed that the responses were narrowly differing, with a mean of 1.67 and a standard deviation of 0.78. The majority of participants agreed that design culpability involves very ambiguous areas. One question also covered the efficacy of the current legislation and contract clauses affecting avoiding liability. Focus on violation of the subcontracting clause revealed that the majority of participants, 74%, regard legislation as ineffective since the design team can manipulate the provisions of the clause. This is synonymous with a previous study that highlighted a need for more strict contract protection to reduce the chances of confusion and misuse.

Another sub-theme that was looked into was the need of managing design in order to ensure that projects are completed successfully. The effectiveness of a design coordinator, compliance and acceptance of design requirements, and design perception were all studied as prompts. With a mean of 2.24 and SD of 0.90, the participants had diverse viewpoints on whether the design team was qualified to prepare and approve the design, with 43 per cent agreeing, 35 per cent disagreeing, and 22 per cent remaining neutral. Similarly, a previous study demonstrated that design professionals need to reduce liability. The varying opinion is an indication that no profession is fit, and it may be dependent on the nature of the contract. The person selected also needs to understand the liability. The study also evaluated the views on the process design acceptance. The findings reveal that the majority of the participants, 71% agreed there is an association between the length of the process and low acceptance, which cements the previous findings. The participants were also asked whether responsibility and management were equally important compared to other factors like dual role, project duration constructability, and cost certainty; most participants agreed that these factors were significant.

Another sub-theme explored in this study was the main issues during construction. The study examined participants’ opinions on crucial issues arising during construction using; opinions of disputes and revealing severe issues. Participants debated whether making contractual provisions more clear would minimize the number of disagreements. The majority of the participants (87%) believed that this would reduce conflict, which is consistent with past research. Another survey asked if respondents thought single-point blame produces fewer conflicts than split culpability. The result revealed that 71% of the participants agreed with the question, which corresponds to the previous study.

Respondents also provide their thoughts on contract design conflicts and whether they believe there is a common cause of disagreement between the two parties. The varied points of view were recorded, but a sizable percentage agreed with the statement, with an average response value of 1.68 and a standard deviation of 0.67. Additionally, those with more industry experience had a favourable connection (0.79). The findings differ from the previous study, which shows that participants disagree with the statement. The participants were also examined on crucial issues that affect the project’s construction concerning design culpability. The study participants revealed that poor specification is the leading cause of design culpability, with 63% of participants agreeing. It’s worth mentioning, though, that participants had the option of selecting multiple options. Poor specification 63 per cent, provision of employers’ information 45 per cent, approval of design packages 21 per cent, employers’ changes and instructions 35 per cent, and a faint line of duty for design elements 38 per cent are some of the concerns identified by the participants.

Analysis of interviews

The study conducted unstructured interviews to provide depth and offer validity to the results from the questionnaire survey. The telephone interview results were accurately analyzed by classifying the results into themes, and five themes emerged which are concurrent with the study objectives. These themes include; the requisites at the tender stage, classification of culpability, common issues during project construction, the necessity of managing design, and lack of quality design information.

A total of 12 participants took part in the interview to gain an in-depth insight into the opinions on design culpability in construction contracts. The interview also provides credibility of the data collected using questionnaires.

Classifying culpability

The respondents generally indicated that unclear contractual clauses on the design culpability of the parties involved could be a problem. One of the respondents depicted that designers lack a clear understanding of the contracts, often causing confusion. These findings are also similar to previous studies. This emphasizes the significance of comprehending contractual provisions. Another respondent stated that the design manager should be held accountable for the entire project’s design coordination. The design manager should also be compensated fairly for their efforts. The opinion varies with that of another interviewee, who suggested that the design team caused the problem, and the provision of the contractual clauses is fine. Another interviewee also agrees design team usually lacks practical and technical skills and experience.

The answers also demonstrated the difficulty of identifying design culpability as indicated in D&B contracts, demonstrating that contracts can never have a single point of accountability due to the complexity of the design. Similarly, a previous study suggests that people working on projects with complex designs and finishes are dissatisfied with contractual provisions. According to this, some designs suffer a lack of clear contractual terms. In addition, the respondents indicate that the failings of contracts are ambiguous except down the line, a statement that is evident in other studies. Another respondent revealed that the design team needs to understand design expertise strictly.

The interviewee also indicated that the design department had shown more risks to the contractors. Eventually, clients will realize this, and more contracts will be built and designed. In addition, participants revealed that contracts with wholly construct have more explicit responsibilities.

Importance of managing design

The relevance of design management was also discussed with the participants. Participants feel that the design manager should be included in the tendering process to help identify possibilities and hazards. During the conversation, it was also disclosed that several sectors of the building industry are short on qualified and experienced design managers. In addition, the interviewees have indicated that there is a need to review the standard contract elements. The participants also revealed a need to identify the exact design responsibilities, ensuring every stakeholder understands their obligations.

Major issues during construction

Similar to questionnaire findings, employer information provisions are crucial, and often the contract is never finalized. The interviewee also suggests that there is a need for a different form of contract. However, some interviewees’ responses varied from the questionnaire results; for instance, some respondents highlighted approving design packages as significant. The participants noted that an intense approval process is required, but the only limitation is that these robust processes are usually unmanageable. The respondents also revealed that there is a need to ensure every stakeholder understands precise contract terms since the purpose of a contract is to assist in settling disputes if any arise.

Poor quality design information affecting performance

According to the respondents, conflict can be avoided if good design knowledge is available. According to one respondent, most problems in construction contracts can be prevented by providing sufficient and accurate construction information on time so that all parties involved can adequately perform their tasks. Another respondent confirmed these sentiments, stating that erroneous design information, particularly from the design team, leads to a slew of problems with contractor design portions. This creates situations that often cause the contractor to incur losses, which agrees with findings from previous studies.

Necessities during the tender process

The interview revealed that time is limited during the tender stage to provide enough information. Providing sufficient information enables guidance for the contractor to perform their responsibilities and ensures that all parties understand the intentions of the contractual clauses. The respondents further revealed that should a designer wish to transfer responsibility should be compelled to specify the terms involved in the tender files, a statement that is concurrent with findings from previous studies.

Another respondent suggested that there should be an emphasis on strengthening the contract’s specificity and details. The panellists also agreed that using the template during the tender stage for all other packages, including the contractor design provision, is critical, especially when information is lacking and could lead to design concerns. Delays and disputes can also affect the cost, cementing the findings from other studies. The respondents also recommend that design culpability be identified to not develop as the contract progresses during the tendering stage. The interviewees also depicted that more minor adversarial agreements should be clearly outlined to minimize the risks and identify the design culpability; this would also ensure the design culpability does not grow out of hands.

Discussion

This chapter discusses the findings in relation to the study objectives and the literature review. The construction sector is crucial in any country and, as stated earlier, has many stakeholders, such as clients, lawyers, contractors, designers, consultants, and managers. Therefore, understanding construction and the laws involved is essential. It is also crucial to understand the level of professionalism in the construction industry, and many studies have revealed that there is a need to maintain professionalism in construction. During construction, several issues might arise, and some of these issues can be solved, but others have proved to be incredibly difficult to solve.

Design culpability is design duties applicable according to the law. Many of these design culpabilities arise due to poor performance or low professionalism in the line of duty. National Construction Contracts and Law survey identified the procurement methods used often by contractors. It depicted that design and build Procurement was the most frequently used compared to traditional Procurement because the design and build highlights the obligations of the contractors and the design team under the contract terms.

According to case laws, in the case of Bolam v Friern Hospital Management Committee, professional designers need to use reasonable care and skills. According to the lawsuit, some situations require unique competencies and skills. At this point, there needs to be a test on whether the person exercising the skills is incompetent or negligent. The court further outlined that a person need not have the highest skill; it is enough provided the person exercises the ordinary skills to the competent level. In another lawsuit, Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners, the court found that structural engineers are responsible for the standard care since the contractual clause needs design to fit its intended purpose. However, even without these clauses, the engineers would still be liable for negligence since they breach their duty of using reasonable care and skills as professional and competent people.

Previous studies have indicated that architects have the responsibility to design their work. Without authority to assign the work items, the architect would be personally liable for all the culpability, as depicted in the Moresk Cleaners Ltd v Hicks. In this case, the consultant was assigned to design work that involved areas they did not have the relevant knowledge to perform the required duty, and they had a problem. The court determined that an architect who lacks the skills to carry out the job required has three choices; either refuse the commission, implore the employer to hire a specialist, or employ a specialist. The architect should design work. When a professional is assigned to carry out a design task and agrees to the contract, it is evident that the professional agrees to provide the service. The court further found out that when the owner assigns the designing task to a professional, the owner is responsible for looking for an architect who can provide the service properly.

However, since the nature of projects has changed, construction projects have become complex. There is an increasing chance that employers would give the architect the responsibility to delegate the tasks. This indicates there is increased dependence on specialists during construction and design phases. According to Cooperative Group Ltd v John Allen Associates Ltd, the designers relied on guidance from experts for advice and their duties. The court determined that when construction professionals are given authority, they have the duty of care to their employer. The professional may delegate the responsibility of care by seeking advice from other design specialists, provided they do so reasonably. Therefore, an architect may not be liable for the culpabilities in their specialists’ tasks. Still, if they negligently approve the use of skills that can cause the employer to incur losses, the architect can be liable. In Pratt v George J Hill Associates, the court held the architect responsible for claiming that the contractor was suitable but incompetent in practice. The contractor was insolvent, and the architect was liable to the employer for the money they could not recover from the contractor as a result of their actions.

According to the Court of Appeal in Esso Petroleum Co v Mardon regarding the law of contracts and torts held, the plaintiff can choose the action to claim on a breach of contract. According to this decision, the plaintiff is in a better position since the limitation of the tort law is longer than in the law of contract, implying that a tort action can be initiated even after the contract has expired. The decision was superseded in the case Murphy v Brentwood DC where the court held that development of law is searching for culpability in tort when the parties are in the contract . In addition, it became evident that professionals need to abide by their appointment and ensure that the collateral warranties are available to salvage the defective construction work. The cases also reveal that contractual clauses concerning liability are clearly assessed and redefined not to leave any professional wholly responsible.

According to a previous study by Circo (2005), the contract terms have recently proven to be less significant compared to tort laws in design liability. The study further claimed that not many contracts wholly professionally prescribe the standards of responsibilities. In addition, few contracts have implemented the standard care term found in the tort law. Prier v Refrigeration Engineering Company, which is under design and build contract, where a professional holds to perform a particular task and do as specified, implies that the professional needs to be sufficiently skilled. It is also evident that design culpability in tort law is a subject of reasonable care and skill, irrespective of the designer’s profession.

The organizations and the parties involved in construction enter into a contract to outline the duties, rights, and obligations each party is entitled to. It also helps clarify the expectation of each party. An ideal contract will preserve the parties’ risks, enforce the expectations of each party to a reasonable extent, make the risk of loss bearable on either party and cement the contractual foundations. Some of these construction contracts include Joint Contract Tribunal (JCT), which is frequently used in the UK, especially for small projects. However, according to a study by National Construction Contracts in 2015, there is a decline in the use of standard contracts, including JCT, showing a more than 50% decline in JCT use. Another commonly used contract is the NEC engineering and construction contract. The use of this particular contract has increased by more than 30% in the UK; the contract is mainly used for projects with higher value. The contract differs from JTC in such a way that it is one size fits all, with the option to tailor the project. Another common contract in the United Kingdom is the traditional Procurement which segregates the construction and design team; the professional and the employer are responsible for designing the building, while the contractor accepts to build what the design team has designed.

In addition, the employer’s design team is also responsible for producing complete drawings and specifications that enable the contractor to carry on with construction. In such contracts, it is recommended to determine whether the defect results from the design or construction team. Another contract commonly used is the contractor’s design portions (CDP). According to traditional contracts, the contractor is liable for all the aspects of design, and the employer should inform the contractor of all that should be included in the contract. The need for this section was elaborated in Walter Lilly & Co Ltd v Mackay. The court ruled that the contractor was not responsible for defective work since an explicit notification was never given to the contractor by the employer. The most important clause of this contract is the employer requirements and the subcontracting.

Another type of construction contract that is heavily discussed in this study is the Design and Build Procurement (D&B), which involves, in most cases, both the construction team and design taking sole responsibilities for the work. Previous studies have also indicated that the contractor should be held liable for dual point responsibilities they assigned to themselves.

The study was set out to establish the common issues resulting from the design culpability in construction contracts. The study classified design culpabilities associated with construction contracts. The study outcome revealed that design culpability impacts construction contracts. The findings from the study proved that the contractual term of fit to serve its intended purpose was strict, which is synonymous with results from a previous study that found this to be a more stringent provision. Another design culpability that is evident is the understanding of the liability, which depends on the industrial experience. The more experienced a professional is, the more knowledgeable and aware of the contractual terms and liabilities. Another design culpability that was evident is the extent of liability to the contractor. The results showed that the contractor’s dual role is the leading cause of issues resulting from design culpability and poor understanding of the contractual terms.

The study has also indicated that current laws regarding avoiding design culpability are ineffective since some clauses can be manipulated, especially by the design team. This also highlights the need for stringent laws to protect the contract clauses and reduce the chance of confusion and misuse of contract clauses. In addition, it is clear that design needs to be managed effectively to ensure the completion of projects. According to the response from the participants, the level of acceptance that the design team is competent to prepare and approve was low. The findings are echoed in other studies, demonstrating that the design team needs to reduce liability. However, it is worth noting that no profession is fit, and in most cases, completion of projects and reduction of liabilities is dependent on the nature of contracts.

It is also essential that the study considers the main issues arising during the construction and how the contracts solve such disputes. The study evaluated some of the crucial issues arising during construction. The findings show that many disputes during construction are because of unclear contractual terms since many participants revealed that making the clauses less ambiguous would minimize the conflicts. According to the findings, another issue resulting from culpability is the split culpability, which, it is evident, causes minimal dispute compared to single-point responsibility. Other issues that the results found to be occurring due to design culpability are the poor specification, approval of design packages, employers’ varying instructions, and lack of apparent responsibility, especially in the design and provision of employers’ information.

The interview respondents revealed that designers lack sufficient knowledge about the contractual terms, which leads to confusion. The design manager, in some cases, is considered responsible for the design coordination in the entire department. It is also clear most issues in design culpability arise from the design team, which many believes lack enough skilled and experienced personnel. Another issue arising from design culpability is the classification of the culpability, as is the case in the design and build contracts since the single point responsibility is inappropriate because of the complexity of the design. Compared to other studies, many designs suffer a lack of clear contract terms since many clauses are ambiguous except down the line.

The study has also revealed ways in which the design culpability can be improved in construction contracts. One way of improving design culpability is the inclusion of design managers during the tender process to identify risks and opportunities. Another way the design culpability could minimize is by hiring a sufficient number of skilled and experienced designers, especially design managers. In addition, there is a growing need to outline the responsibilities of the designers and ensure that every stakeholder in the construction industry understands their obligations.

Another major issue arising from design culpability is the provision of employer’s information; without sufficient information from the employer, especially in CDP, the contract is never finalized. The study also indicated that approval of design packages is another issue, which is quite complicated since an intense approval process is required. Still, such robust processes are time-consuming and unmanageable in most cases. The conflict during the construction process can be avoided by providing quality design information. The contractors and the employer must give sufficient design information at the correct time to enable all the parties involved to perform their tasks to the required standards. Inaccurate and inadequate information from the design team often causes multiple issues to the contractors and sometimes creates situations where the contractor incur losses. Another issue is the time during the tendering process, which is limited and insufficient to provide enough information. Sufficient time to provide adequate details would enable guidance for the contractor to perform their responsibilities and ensure that the parties involved understand contractual terms and their intentions. In addition, there is a need to improve the specificity and information outlined in the contract. It is also necessary to identify and correct where the agreement is likely to cause design issues, such as areas where the information provided is insufficient. However, delays and disputes during the tender stage can affect the cost, causing the contractor to incur losses, but identifying design culpabilities during the tender phase before the progress stage of the contract is likely to help reduce the impact of design culpabilities.

Chapter 5: Conclusions and Recommendations

Summary of the study findings

According to the literature review, it was evident that ambiguous language and lack of specific contract provisions is the leading cause of conflicts between the parties, thus, highlighting the need for the definition of duties to the parties. It is also apparent that where the responsibilities overlap, there is a possibility of having conflicts between the parties. It is also essential to identify where there are risks so that the liability does not grow out of hand. Delays are often linked to problems during construction and may affect the completion of the project. The employer’s sufficient information minimizes the design culpability and enables the contractor to carry out the project construction on schedule. It is also essential that construction stakeholders interoperate to understand the standard of design responsibilities during contract formation. In addition, the extent of packages in CDP should be clearly defined, and this can be done at the tender stage, where the scope of work is outlined in the CDP.

The questionnaires were used to assess the challenges regarding professional opinions and their understanding of the levels of liability. The questionnaires have also revealed the likelihood of conflicts because of the dual role of the contractor and the design explaining the increasing levels of design culpability in many construction industries in the UK. In addition, CDP contracts have been implicated as the leading cause of conflicts because of a lack of awareness of grey areas, highlighting the need to identify and clarify such regions. The low acceptance of CDP contracts has been associated with a long design process, ultimately affecting project completion date. Professionals have a growing need to limit their liabilities in relation to design management. During the construction phase, provision of adequate information in a timely manner and poor specification were depicted as the crucial issues facing the contractors during the construction stage. It was also apparent that robust and precise requirements are needed to prevent manipulating a contractual provision and ensure stakeholders do not fall into false security.

According to the interview results, it was clear that the design team lacked the required knowledge on the contract provisions and the skills, often leading to conflicts with the stakeholders. It is common in modern times that design teams have been shifting the blame to the contractor, which often causes a change of Procurement to the single responsibilities. It was also highlighted that lack of sufficient experienced managers to cope with the demand of design management is another problem. In addition, the design and build contracts do not have contractual ability and provisions for handling complex designs. The study also revealed that enough resources and time should be allocated to coordinate designs. In addition, the quality design would significantly minimize the chances of disputes during construction.

Reviewing objectives

The study had several objectives, and one the objective was to review construction contracts. Several construction contracts were examined, such as the Joint Contract Tribunal (JTC), which is often used for low value projects in the UK, and the use of such contracts in the UK is on a decline. Another evident contract is the NEC engineering and construction contract, which is commonly used for high-value projects, and the use of such contracts is increasing. Traditional Procurement is another type of contract reviewed, and the contract separates design and contractor teams. Another contract explored in this study is the Contractor’s Design Portions and the Design and Build Procurement.

Another objective was assessing the responsibilities of crucial parties in designing and building contracts. Using separate agreements, the study has discussed several responsibilities and contracts on design teams, contractors, and employers. The study has also reviewed several case laws regarding the design responsibilities and delineation, as outlined in the literature review and discussion chapters. Using questionnaires and interviews, the study assessed the opinions of various stakeholders concerning design culpability. Using developed guidance, such as case laws, the study explored the understanding of construction design responsibilities. The study also assessed the opinions from the professionals on what can be improved on design culpability. Therefore, it is clear that there is a significant impact of design culpability construction contracts. In addition, there are significant improvements that can be made on design culpability in construction contracts.

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Appendix I

Questionnaire questions

Please indicate your job category

Quantity surveyor
Design manager
Site manager
Legal professional
Project manager
Commercial manager
Director
Other professional (specify)

How long have you worked in the construction department?

Less than five years
5 – 10 years
10 – 15 years
More than 15 years

Category B, with options; Strongly Agree/ Agree/ Neutral/ Disagree/ Strongly Disagree

Making contractual provisions reduces the occurrence of conflicts
The dual responsibility of the contractor and design causes challenges when determining the level of commitment.
CDP contracts have particular areas on the extent of liability
CDP contracts are the leading cause of disputes
Single point responsibility is reducing conflicts compared to split culpability
The employer and design team sometimes insist on CDP subcontracts even when a few are listed to avoid liability.
The client team is responsible for preparing the design; they also approve the design and should be responsible for design coordination for the entire project.
As a contractor, what do you consider to be the most challenging issue during construction;

Poor specification
Approval of design packages
Ambiguous line of duties concerning design elements
Employers’ instructions and variations
Provision of employers’ information.

Which standard care is strict?

The guarantee that the design will fit its targeted purpose
The requirement to use reasonable care and skills.

The contractor in D&B contract should be responsible to what extent regarding design liability.

The obligation to use reasonable care and skill
The guarantee that the design will fit its intended purpose

How is the priority for relevance are design responsibility and management compared to other factors like cost certainty, project duration and constructability?

All have equal relevance
Design responsibility and management are more relevant than other factors
Design responsibility and management are less relevant than other factors
Other (specify).

If you wish to participate in an interview, please leave your contact details below.

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Investigating Design Culpability in Construction Contracts

Table of Contents

Chapter 1: Introduction

Introduction

Background

Rationale

Problem Statement

Research Aim

Objectives

Expected Results

Research Design

Significance of Study

Chapter 2: Literature Review

2.0 Introduction

2.1 UK Construction Laws Associated with Design Conflicts

2.2 Construction Contracts

2.3 Design Culpability Cases Analysis

2.4 Design liability from contractor perspective

2.4 Contractor role in project success

2.4 Contractors duty tort versus contract

2.6 Conclusion

Chapter 3: Methodology

Qualitative Research

Research Design

Adopted Data Collection Methods and Justification

Sample selection

Interviews

Ethical consideration

Chapter summary

Chapter 4: Data Collection and Analysis

Analysis of questionnaires

Profile of questionnaire participants

Classification of design culpability

Analysis of interviews

Classifying culpability

Importance of managing design

Major issues during construction

Poor quality design information affecting performance

Necessities during the tender process

Discussion

Chapter 5: Conclusions and Recommendations

Summary of the study findings

Reviewing objectives

References

Appendix I

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