CLA: architects duty when providing plans & duty to clarify instructions

Christian Education Ministries – Qld Ltd v Thomson Adsett Pty Ltd [2015] QDC 292

The plaintiff engaged the defendant as architects to provide plans for a multipurpose hall under the then ‘building education revolution program’ for one of its schools. In dispute was whether the plans were to accommodate a full size basketball court, and in particular the required height of 7 metres.

The plans were subsequently changed and the agreed cost of the rectification works were $362,262.00. There was limited documentary evidence as to the nature of the works and the discussions, save the crucial evidence of the plans themselves with the handwritten notation “full-sized basketball court”. The claim was brought against the defendant in contract and in negligence.

His Honour Samios preferred the evidence of Mr Fyfe the group chairman and CEO of the plaintiff, despite some inconsistencies, which did not go to the relevant evidence. The effect of the acceptance of the evidence was that a conversation with the architects concerning a “full-sized basketball court” was the accepted explanation as to how those words came to be on the plan. His Honour did not accept the architects provided an explanation to the contrary. Furthermore, His Honour found that if he was wrong about this, then architects had also either breached their contract or were guilty of negligence, for failing to clarify with the plaintiff the instructions they had been provided with.

In determining negligence His Honour referred to the seminal judgment of Windeyer J in Voli v Inglewood Shire Council [1963] HCA 15(1963) 110 CLR 74 at 84:

An architect undertaking any work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among architects practising their profession. And he must use due care. If he fails in these matters and the person who employed him thereby suffers damage, he is liable to that person. This liability can be said to arise either from a breach of his contract or in tort.

His Honour also considered sections 91011 and 12 of the Civil Liability Act 2003 and determined:

[53] As I accept the evidence of Mr Fyfe I conclude that the school cannot be refused relief against the architect. Not only has there been a breach of the contract of retainer there has also been a breach of the duty of care and this has caused the school’s loss.

[54] I find the architect breached the duty of care owed to the school because the risk of harm to the school by not following Mr Fyfe’s instructions was foreseeable. That is because by not following the instructions the school would receive a basketball court that was not full-size and the school could elect, as it did, to remedy the deficiency at a substantial cost to it. In that way the risk was not insignificant and in the circumstances a reasonable person in the position of the architect would have taken precautions by designing the basketball court as instructed.

[55] I find it was obvious harm would occur if the instructions were not followed. Further, the seriousness of the harm would be significant, or it could require substantial expenditure to rectify the omission.

[56] I find the burden of taking precautions to avoid the risk of harm was minor as the architect could have designed the required size at the same time as the balance of the design.

[57] I do not consider the social utility of the omission of the instructions has any bearing on deciding whether a reasonable person would have taken precautions against the risk of harm.

[58] I find the breach of duty by the architect caused the school’s loss. I find the breach of duty was a necessary condition of the occurrence of the harm and it is appropriate for the scope of the liability of the architect to extend to the harm so caused.

[59] I find if the architect had not been in breach of the duty of care there would not have been any action for the school to take as a full-size basketball court would have been designed and built.

[60] I find there is no good reason not to impose responsibility for the school’s loss on the architect.

[61] I find the school has satisfied the onus of proof on the balance of probabilities that the architect’s breach of duty caused the school’s loss.

[62] Even if I were wrong to find Mr Fyfe gave the express instruction referred to I would find the architect breached the contract or was guilty of negligence in failing to clarify with the school the instructions that Mr Marshall said were given on the veranda that the basketball court would not be used for competition. I consider the weight of the evidence from Mr Jordan and Mr Brown which I accept is that it would be expected of a competent architect to at least clarify the instructions in this instance. Because I accept it was Mr Fyfe’s intention the school have a full-size basketball court I consider if the architect sought clarification it is more likely than not the school would have given the very instruction Mr Fyfe said he gave. I accept Mr Fyfe’s evidence that Mr Woodward rang him pretty much after every meeting Mr Woodward had with the architect so Mr Fyfe was well informed as to what the architect was doing and what they were designing. Therefore, if the architect sought clarification, as it should have, I am satisfied Mr Fyfe more likely than not would have become aware of that and give the instruction Mr Fyfe said he gave.

[63] Having regard to sections 91011 and 12 of the Act the architect’s breach of contract or negligence would be the cause of the school’s loss.

His Honour declined to find the plaintiff had contributed to the loss because of the finding as to the express instructions given to the architects as noted on the plans.

Interest was also allowed ($138,738.04 for 1716 days).

David Cormack – Brisbane Barrister & Mediator.


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