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Whose job is it anyway?

As Matt Molloy observed in his blog post last week, it is rare to find a quantity surveyor (QS) being sued in what one might term a “traditional” construction dispute, such as, for instance, the renovation of a domestic dwelling.

Why is that? No QS would ever claim that it is because every QS is always perfect. Instead, it seems to me that the answer can be found by posing a rather simpler question first: on a construction project, who does what?

Dhamija v Sunningdale

The question “who does what?” appears to be what Coulson J considered in Dhamija v Sunningdale. On a normal construction project, the contractor carries out the works. If it can be shown that the contractor has not carried out its works in accordance with the contract because, for instance, there are defects in the works, then the consequence is that the contractor may be liable for those defects, a liability which is usually calculated as the cost of putting the defects right.

What about the architect?

The contract used in Dhamija v Sunningdale was a JCT IFC 98 form of contract. Under that form of contract the architect has a number of specific roles. In particular, the architect/contract administrator issues interim certificates for payment, and must also ultimately exercise his opinion to certify practical completion of the works.

The architect’s responsibility to ensure that the contractor carries out its works in accordance with the contract is not only to be found in the contract, but is also established by law. At paragraph 213 of his judgment in McGlinn v Waltham Contractors, Coulson J affirmed HHJ Stabb’s classic statement of an architect’s liability in the domestic context in Sutcliffe v Chippendale & Edmondson (A Firm) [1971] 18 BLR 149:

“[T]he building owner is entitled to expect his architect so to administer the contract and supervise the work, as to ensure, as far as is reasonably possible, that the quality of work matches up to the standard contemplated.”

What about the QS?

If the contractor and the architect are potentially liable if the work carried out on site is not up to the required standard, does it follow that the QS may also be liable? The editors of Hudson’s Building and Engineering Contracts, Volume 1 (11th Edition, 1995) appeared to think so. At paragraph 2-230, they opined that where a QS fails to draw defects to the architect’s attention:

“[T]here would seem to be no reason why they should not also be joined as defendants by an owner where, for example, the defects were so glaring that they should have been seen by him in the course of valuation inspections…”

But let us return to my original question: on a construction project, who does what?

If the editors of Hudson were correct, then their opinion would be one of considerable concern to all construction professionals – architects, QSs and contractors. Taken to its logical conclusion, the Hudson proposition appears to be that each highly-skilled professional might be liable for the failures of other professionals on a construction project where those failures were “glaringly obvious”.

Such a blurring of the lines of responsibility between professionals would, in my view, have been a most unwelcome development for everyone involved in the construction industry. It could have triggered claims against unlikely defendants who, backed by professional indemnity insurance, would have been required to defend themselves in respect of the performance of services never contemplated in their original contract.

This is, thankfully, a development which Coulson J appears to have rejected in Dhamija:

“[I]nherent in this obligation is a positive duty on the part of [the QS] to inspect the works, so as to draw to the architect’s attention to works which they, as quantity surveyors, thought were ‘obviously defective’. On the basis of the material before me, I can see no basis in fact or in law for this positive duty…”

Of course professionals on a construction project ought to speak to each other and share information; nothing in the judgment in Dhamija suggests they should not. Indeed, it could be argued that by his apparent unwillingness to make one particular professional liable for not drawing something to another professional’s attention, Coulson J may have removed the threat of every communication on a construction project being analysed to see if each person was telling the other how to do their job.

So, what does the QS do?

The answer is that he values the works. The decision in Dhamija reinforces the 40-year old decision in Sutcliffe v Chippendale that the architect tells the QS to exclude work from a valuation, rather than something the QS does of his own motion.

Barlow Lyde & Gilbert LLP act for the third defendant in Dhamija v Sunningdale.

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