Cutting through the legalese: “Design liability for a D&B contractor”

The reasonable skill and care of a Design and Build Contractor is more onerous when compared to the reasonable skill and care of a designer.  The difference is that the former is obliged to produce an end result that is “fit for purpose”: the latter is not.  The reason is this:

In the absence of any express term in a design and build contract a term would be implied requiring the contractor to meet a ‘fitness for purpose’ obligation.  So the ‘starting point’ for a D&B contractor is to design and build a building which is fit for its intended purpose. So the answer to the question is this –in order to decide whether a D&B contractor has exercised reasonable skill and care it would be measured against what standard of care would have been expected of a D&B contractor in the absence of any express term and the answer to that question is that the contractor would be required to design and build a building which was fit for its intended purpose.

When looking at the reasonable skill and care to be expected of a designer or Architect the starting point is somewhat different, because the implied term would be limited to exercising reasonable skill and care and so the ‘measure’ is lower than that expected of a Design and Build contractor.

The JCT Design & Build Contract contains an express provision relating to design liability, but many employers require the provision to be “beefed up” via the schedule of amendments. We have therefore been really surprised to find many D&B contractors delete the word “architect” and insert “design and build contractor”, suggesting that they believe their proposed amendment lowers their liability, when in actual fact it raises it. 

We would point out that some lawyers have an entirely different view on this matter and believe that the words used ‘reasonable skill and care’ would limit any liability to just that, but there are also a number of other lawyers who think that the foregoing interpretation is more likely to be accepted.  In simple terms it would be better to limit any design responsibility to ‘the reasonable skill and care of a professional designer or Architect’.   

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These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.